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Exhibit 4.1
Conformed Document
Master Trust Deed
Date: 8 October 1997
(Incorporating Deed of Amendment dated 17 October 1997)
Securitisation Advisory Services Pty Limited
Manager
Perpetual Trustee Company Limited
Trustee
CLAYTON UTZ
Solicitors & Attorneys
Levels 27-35
No.1 O'Connell Street
SY (C) Copyright Clayton Utz
DNEY NSW 2000
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TABLE OF CONTENTS
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1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 11
1.3 Series Supplements 13
1.4 Business Day 13
2. APPOINTMENT OF TRUSTEE AND MANAGER 13
2.1 Appointment of Trustee 13
2.2 Appointment of Manager 13
3. DECLARATION OF TRUST AND CONSTITUTION OF THE
SERIES TRUSTS 14
3.1 Declaration of Trust 14
3.2 Date of Constitution of First Series Trust 14
3.3 Date of Constitution of Additional Series Trusts 14
3.4 Name of Series Trusts 14
3.5 No limit to number of Series Trusts 14
3.6 Commencement and Termination of Series Trusts 14
4. UNITS IN A SERIES TRUST 15
4.1 Beneficial Interest in a Series Trust Divided into Units 15
4.2 Nature of a Unit 15
4.3 Units May be Divided into Classes 15
4.4 Rights and Entitlements of Units 15
4.5 Restrictions on Units 15
4.6 Distributions to Unitholders 15
5. SERIES SUPPLEMENT 15
5.1 Contents of Series Supplement - Mandatory 15
5.2 Contents of Series Supplement - Optional 17
5.3 Manager Must Deliver Proposed Series Supplement to Trustee 18
5.4 Execution of the Series Supplement 18
6. SECURITIES 18
6.1 Acknowledgement of Indebtedness 18
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6.2 Terms of Securities 18
6.3 Payment Entitlement of Securityholders 18
6.4 No Limit on Securities 18
6.5 Excluded Issue, Offer or Invitation only 18
6.6 Denomination of Securities 19
6.7 Securities Not Invalid if Issued in Breach 19
6.8 Location of Securities 19
6.9 No Discrimination between Securityholders 19
7. LIMITS ON RIGHTS OF INVESTORS 19
7.1 Limitation on Entitlement of Investors 19
7.2 Subordination of Unitholder's Interest to Securityholder Entitlement 20
7.3 Further Limit on Interest of Securityholders 21
7.4 No Other Relationship 21
7.5 Investors Bound by this Deed 21
7.6 Investors Not Liable 21
7.7 Covenant Not to Claim against Investors 21
8. PROCEDURE FOR THE ISSUE OF SECURITIES 22
8.1 Issue of Securities 22
8.2 Manager's Power to Negotiate Terms of Securities 22
8.3 Dealer Agreement 22
8.4 Further Issues of Securities 22
8.5 Issue of Unrated Securities 23
8.6 Issue of Security 23
9. REGISTER 23
9.1 Establishment of Register 23
9.2 Details on Register 23
9.3 Correctness of the Register 24
9.4 Notification of Change by Investors 24
9.5 Inspection of the Register 24
9.6 Copy of Register for Manager 24
9.7 Closure of the Register 24
9.8 Closed to calculate Investor Entitlements 25
9.9 Non-recognition of Equitable Interests 25
9.10 Appointment of Third Party Registrar 25
9.11 Manager to Provide Information 25
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9.12 Conclusiveness of Register 25
9.13 Rectification of Register 26
10. TRANSFER OF SECURITIES AND UNITS 26
10.1 No Restriction on Transfer 26
10.2 Form of Transfer 26
10.3 Execution of Transfer 26
10.4 Restrictions on Transfer 26
10.5 Trustee May Refuse to Register 27
10.6 Trustee Not Bound to Give Reasons 27
10.7 Registration of Transferee as Investor 27
10.8 No Transfer if Register Closed 27
10.9 Rights and Obligations of Transferee 28
10.10 Receipt of Transfers 28
10.11 Transfer Received When Register Closed 28
10.12 Issue of Certificate 28
10.13 Execution of Certificate 28
10.14 Worn Out or Lost Certificate 29
10.15 Payments to Transferee 29
10.16 Marked Security Transfers 29
10.17 Reliance on Documents 29
10.18 Specimen Signatures 30
10.19 Persons Entitled on Transmission 30
10.20 Registration on Transmission 30
10.21 Notice of Election 30
10.22 Rights of Transmittee Prior to Registration 30
11. BANK ACCOUNTS 30
11.1 Separate Bank Accounts for each Series Trust 30
11.2 Additional Bank Accounts 30
11.3 Comply with Requirements of Series Supplement 31
11.4 Identifying Name of Bank Account 31
11.5 Restricted use of Bank Account 31
11.6 Operation of Bank Account 31
11.7 Manager, Nominated Servicer and Nominated Seller Not to Deal with
Bank Accounts 31
11.8 Payment of Moneys Into Bank Account 31
11.9 Withdrawals 32
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12. INVESTMENT OF TRUST FUNDS 32
12.1 Principal Investment Policy 32
12.2 Investment Proposals 32
12.3 Maturity of Authorised Short-Term Investments 33
12.4 Limitation on Acquisition of Authorised Short-Term Investments 33
12.5 No Sale of Authorised Short-Term Investments Prior to their Maturity
Date 33
12.6 Voting Rights of Investments 34
12.7 Assets and Liabilities of Series Trust 34
12.8 No Aggregation of Liabilities 34
12.9 Designation and Discharge of Liabilities 35
12.10 No Mixture of Assets 35
12.11 No Co-mingling 35
12.12 Series Trusts and Other Trusts 35
13. INCOME AND CAPITAL OF A SERIES TRUST 35
13.1 Determination of Net Accounting Income 35
13.2 Determination of Net Tax Income 36
13.3 Manager to Make Allocations 36
13.4 Present Entitlement 36
14. REPRESENTATIONS AND WARRANTIES 36
14.1 General Representations and Warranties 36
14.2 Repetition of Representations and Warranties 37
15. MANAGER'S DUTIES AND UNDERTAKINGS 37
15.1 Manager's General Duty 37
15.2 Manager's Covenants 37
15.3 Manager to have discretion 39
15.4 Act on Expert Advice 39
15.5 Negotiation in Relation to Support Facilities 40
15.6 Monitor Support Facilities 40
15.7 Manager's Power to Delegate 40
15.8 Manager May Replace or Suspend Attorneys 40
15.9 Manager Remains Liable for its Agents 41
15.10 No Power to bind Trustee, Nominated Servicer or Nominated Seller 41
15.11 Indemnity for Legal costs 41
15.12 Indemnity for Legal Costs for Alleged Default 41
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15.13 Extent of Liability of Manager 42
15.14 Right of Indemnity 42
15.15 Further Limitation of Liability of Manager 42
15.16 Neither Manager nor Delegate liable 42
16. TRUSTEE'S POWERS, DUTIES, COVENANTS, INDEMNITIES
AND LIABILITIES 43
16.1 Trustee's Powers 43
16.2 Act in Interests of Unitholders and the Securityholders 43
16.3 Trustee's Covenants 43
16.4 Specific Powers of Trustee 44
16.5 Refusal to Exercise Powers 47
16.6 Act on Expert Advice 47
16.7 Absolute Discretion 48
16.8 Delegation of Duties of Trustee 48
16.9 Related Body Corporate of the Trustee 48
16.10 Indemnity of Trustee 48
16.11 Trustee Indemnified for Costs etc 49
16.12 General Business Costs of Trustee 51
16.13 Series Trust Creditors 51
16.14 If Trustee Fails to Exercise Care 51
16.15 Variation of clause 16.14 52
16.16 No Restriction on Action 52
16.17 Limited Recourse of Series Trust Creditors 52
16.18 Limitation of Liability of Trustee 53
16.19 Neither Trustee nor Delegate Liable 53
16.20 Legal Proceedings 54
16.21 Proceedings in Respect of Series Trust or Series Trust Asset 54
16.22 Consents to Legal Proceedings 55
16.23 Registration and Holding of Investments 55
16.24 Limitation of Trustee's Personal Liability 56
16.25 No Liability for Breach by Custodian of Custodial Role 56
16.26 Incur Costs Without Approval 56
16.27 No Liability for Non-payment 56
16.28 No Duty to Investigate 56
17. FURTHER PROVISIONS REGARDING POWERS ETC. 56
17.1 Limitation of liability of Trustee and Manager 56
17.2 Dealings with Series Trust 57
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17.3 Application of clause 17.2 58
17.4 Signatures 58
17.5 Dealings with Instruments 58
17.6 Disclosure of Information 59
18. REMUNERATION OF MANAGER AND TRUSTEE 59
18.1 Management Fee 59
18.2 Trustee Fee 59
19. RETIREMENT OF TRUSTEE 59
19.1 Trustee Must Retire 59
19.2 Manager May Require the Trustee to Retire 60
19.3 Manager May Remove Trustee from Office 60
19.4 Trustee May Retire 60
19.5 Substitute Trustee 61
19.6 Release of Trustee 61
19.7 Rating Agencies Advised 61
19.8 Indemnity 61
19.9 Assets to Vest in Substitute Trustee 62
19.10 Restriction on Security issues 62
20. MANAGER DEFAULT AND RETIREMENT OF MANAGER 62
20.1 Manager Default 62
20.2 Replacement of Manager 62
20.3 Retirement of Manager 62
20.4 Appointment of Substitute Manager 63
20.5 Trustee to act as Manager 63
20.6 Settlement of Amounts Owing by Trustee to the Manager 63
20.7 Payments to Manager 63
20.8 Manager to Provide Full Co-operation 63
20.9 Indemnity 63
21. AUDITOR 64
21.1 Appointment 64
21.2 Qualification of Auditors 64
21.3 Remuneration 64
21.4 Removal 64
21.5 Auditor May Retire 64
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21.6 Trustee to Appoint New Auditor 64
21.7 Auditor May be Auditor of Nominated Servicer, Manager or Trustee 64
21.8 Access to Working Papers 65
21.9 Scope of Audit Duties 65
22. ACCOUNTS AND AUDIT 65
22.1 Maintenance of Accounting Records 65
22.2 Accounts 66
22.3 Audit of Accounts 66
22.4 Information to Auditor 66
22.5 Availability of Audited Accounts 66
22.6 Statutory Returns 66
23. PAYMENTS TO INVESTORS 67
23.1 Methods of Payment 67
23.2 Satisfaction and Discharge 67
23.3 Cheques and Notices 67
23.4 No Interest on Payment of Amounts to Investors After Due Date 67
23.5 Deduction of Taxes 68
23.6 Rounding Down of Payments 68
23.7 Payments Netting 68
24. NOTICES 68
24.1 Notices 68
24.2 Initial addresses 69
24.3 Deemed Receipt 69
24.4 Notices to Investors 69
24.5 Information to Rating Agency by Manager 70
24.6 Manager to Notify Rating Agencies 70
24.7 Late Notice 71
25. AMENDMENT TO TRUST DEED AND SERIES SUPPLEMENT 71
25.1 Supplemental Deed of Variation 71
25.2 Amendments Prejudicial to Unitholders of a Class 72
25.3 Amendments Prejudicial to all Unitholders of a Series Trust 72
25.4 Amendments Prejudicial to Securityholders of a Class 72
25.5 Amendments Prejudicial to all Securityholders of a Series Trust 72
25.6 Manager's Certificate Relating to Rating of Securities 73
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25.7 No Variation may Contradict Transaction Documents 73
26. MEETINGS OF INVESTORS 73
26.1 Convening of Meetings by Manager or Trustee 73
26.2 Notice of Meetings 73
26.3 Chairman 74
26.4 Quorum 74
26.5 Adjournment 74
26.6 Voting Procedure 75
26.7 Right to Attend and Speak 76
26.8 Appointment of proxies 76
26.9 Corporate Representatives 77
26.10 Rights of Representatives 77
26.11 Powers of a Meeting of Securityholders 77
26.12 Extraordinary Resolution Binding on Relevant Investors 78
26.13 Minutes and Records 78
26.14 Written resolutions 78
26.15 Further Procedures for Meetings 79
27. MISCELLANEOUS 79
27.1 Inspection of Transaction Documents 79
27.2 Certificates by Manager 79
27.3 Waivers, Remedies Cumulative 79
27.4 Rights Cumulative 80
27.5 Retention of Documents 80
27.6 Governing Law 80
27.7 Jurisdiction 80
27.8 Severability of Provisions 80
27.9 Counterparts 80
27.10 No Revocation of Power of Attorney 80
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THIS MASTER TRUST DEED is made in the Australian Capital Territory on 8 October
1997
BETWEEN SECURITISATION ADVISORY SERVICES PTY LIMITED, ACN 064 133 946, a
company incorporated in the State of New South Wales and having an
office at Level 8, 48 Martin Place, Sydney (hereinafter included
in the expression the "Manager")
AND PERPETUAL TRUSTEE COMPANY LIMITED, ACN 000 001 007, a company
incorporated in the State of New South Wales and having an office
at Level 3, 39 Hunter Street, Sydney (hereinafter included in the
expression the "Trustee")
RECITALS:
A. It is intended by this Deed to provide for the establishment of an
initial Series Trust and for the possible future establishment of further
Series Trusts, to be collectively known as the "Medallion Trusts" (or
such other name as may from time to time be agreed between the Trustee
and Manager, subject to any approvals required by law).
B. Each Series Trust will be established for the purpose of securitising
pools of Approved Financial Assets that may be assigned from time to time
by a Nominated Seller to the Trustee in its capacity as trustee of the
Series Trust.
C. If the Trustee in its capacity as trustee of a Series Trust acquires a
pool of particular Approved Financial Assets from a Nominated Seller, it
will fund its acquisition of these by the issue of Securities in its
capacity as trustee of the Series Trust.
D. The Trustee and the Manager have agreed to act as trustee and manager
respectively of each Series Trust on the terms and conditions of this
Deed and the Series Supplement relating to that Series Trust.
THIS DEED PROVIDES as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Deed, unless the contrary intention appears:
"1997-1 Series Supplement" means the first Series Supplement executed in
accordance with this Deed.
"Accounts" has the same meaning as given to "accounts" in section 9 of
the Corporations Law.
"Approved Accounting Standards" means:
1.
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(a) the accounting standards from time to time approved under the
Corporations Law;
(b) the requirements of the Corporations Law in relation to the
preparation and content of accounts; and
(c) generally accepted accounting principles and practices in
Australia, consistently applied, except where inconsistent with
the standards or requirements referred to in paragraphs (a) or
(b).
"Approved Financial Assets" means any chose in action, whether present or
future, relating to any indebtedness, borrowing, credit, money advanced,
negotiable or other instrument, receivable, financial accommodation of
whatever nature or any other thing or matter whatsoever and includes,
where the context permits, any document, instrument or thing evidencing
such chose in action, any guarantee, indemnity or Security Interest,
insurance policy or other document or instrument securing or relating in
any way to such chose in action and all rights, benefits, title and
receipts to or of any of the foregoing.
"Assets" in relation to a Series Trust or Other Trust means all assets
and property, real and personal (including choses in action and other
rights), tangible and intangible, present or future, held by the Trustee
as trustee of the Series Trust or Other Trust, as the case may be, from
time to time.
"Auditor" in relation to a Series Trust means the auditor for the time
being of that Series Trust appointed under clause 21.
"Austraclear" means Austraclear Limited or Austraclear Services Limited
(including, where applicable, the computer based system for holding
Securities and recording and settling transactions in those Securities
between members of that system maintained by Austraclear).
"Australian Dollars" and "$" means the lawful currency for the time being
of the Commonwealth of Australia.
"Authorised Short-Term Investments" in relation to a Series Trust means:
(a) bonds, debentures, stock or treasury bills issued by or notes or
other securities issued by the Commonwealth of Australia or the
government of any State or Territory of the Commonwealth of
Australia;
(b) deposits with, or the acquisition of certificates of deposit
issued by, a Bank;
(c) bills of exchange, which at the time of acquisition have a
maturity date of not more than 200 days accepted, drawn on or
endorsed (with recourse) by a Bank;
(d) debentures or stock of any public statutory body constituted under
the laws of the Commonwealth of Australia or any State or
Territory of the Commonwealth where the repayment of the principal
secured and the interest payable on that principal is
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guaranteed by the Commonwealth or the State or Territory;
(e) any other investments which are specified as Authorised Short-Term
Investments in the Series Supplement relating to the Series Trust,
in each case denominated in Australian Dollars.
"Authorised Officer" means:
(a) in relation to the Trustee, a director, secretary or any person
whose title contains the word or words "manager" or "chief
executive officer" or a person performing the functions of any of
them; and
(b) in relation to the Nominated Seller or a Nominated Servicer, any
person appointed by the Nominated Seller or the Nominated Servicer
to act as an Authorised Officer of the Nominated Seller of
Services for the purposes of the Transaction Documents; and
(c) in relation to the Manager, any person appointed by the Manager to
act as an Authorised Officer of the Manager for the purposes of
the Transaction Documents.
"Authorised Trustee Corporation" has the same meaning as given to
"authorised trustee corporation" in section 9 of the Corporations Law.
"Bank" has the same meaning as given to "Australian bank" in section 9 of
the Corporations Law.
"Borrowing" means the borrowing or raising of money and the procuring of
financial accommodation and "Borrow" has an equivalent meaning.
"Business Day" means a day on which Banks are open for business in
Sydney, but does not include a Saturday, a Sunday or a public holiday.
"Certificate" means a Security Certificate or a Unit Certificate (as the
case may be).
"Charge" in relation to a Series Trust means the charge provided for in
the Security Trust Deed for that Series Trust (if any).
"Class" in relation to Securities or Units of a Series Trust means
Securities or Units (as the case may be) having as amongst themselves the
same rights or restrictions with regard to payments voting or otherwise
and "Class" in relation to the Securityholders or Unitholders of a Series
Trust has a corresponding meaning.
"Closing Date" in relation to a Series Trust means the date specified as
the Closing Date in the Series Supplement for the Series Trust.
"Credit Enhancement" in relation to a Series Trust means any security,
support, rights or benefits
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made available to the Trustee in its capacity as trustee of the Series
Trust in support of or in substitution for any Assets of the Series Trust
or income or benefits arising in respect of such Assets and includes
anything specified as a Credit Enhancement in the Series Supplement for
the Series Trust.
"Creditor" in relation to a Series Trust means a creditor of the Trustee
in its capacity as trustee of the Series Trust (including, without
limiting the generality of the foregoing, the Securityholders, the
Manager, the Nominated Seller and the Nominated Servicer in relation to
the Series Trust).
"Custodian" in relation to a Series Trust has the meaning (if any) given
to it in the Series Supplement for that Series Trust.
"Cut-Off Date" in relation to a Series Trust means the date specified as
the Cut-Off Date in the Series Supplement for the Series Trust.
"Dealer Agreement" in relation to a Series Trust means each agreement or
deed containing provisions relating to the manner in which Securities (or
a Class of Securities) will be issued by the Trustee as trustee of that
Series Trust.
"Extraordinary Resolution" in relation to the Investors, the
Securityholders, a Class of Securityholders, the Unitholders or a Class
of Unitholders (as the case may be) means:
(a) a resolution passed at a meeting of the Investors, the
Securityholders, the Class of Securityholders, the Unitholders or
the Class of Unitholders (as the case may be) convened and held in
accordance with clause 26 by a majority consisting of not less
than three quarters of the votes cast thereat; or
(b) a resolution in writing pursuant to clause 26.14 signed by all the
Investors, the Securityholders, the Class of Securityholders, the
Unitholders or the Class of Unitholders (as the case may be).
"Financial Year" in relation to a Series Trust means the period of 12
months ending on the 30th day of June in any year or such other period
that is the year of income of the Series Trust for the purposes of the
Tax Act, provided that:
(a) the first Financial Year of a Series Trust is the period
commencing on the date of the constitution of the Series Trust and
ending on the next succeeding 30th day of June or the last day of
the then current period which is the year of income of the Series
Trust for the purposes of the Tax Act; and
(b) the last Financial Year of a Series Trust is the period to the
date of termination of the Series Trust from the immediately
preceding 1st day of July or the commencement of the then year of
income of the Series Trust for the purposes of the Tax Act.
"Governmental Agency" means the Federal Government of the Commonwealth of
Australia,
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the Government of any State or Territory of the Commonwealth of
Australia, the Government of any other country or political subdivision
thereof and any minister, department, office, commission,
instrumentality, agency, board, authority or organ of any of the
foregoing or any delegate or person deriving authority from any of the
foregoing.
"Hedge Agreement" in relation to a Series Trust means any interest rate
or currency swap, option, cap, collar, forward rate agreement or other
similar arrangement entered into by the Trustee as trustee of the Series
Trust and includes anything specified to be a Hedge Agreement in the
Series Supplement for the Series Trust.
"Insolvency Event" in relation to a body corporate means any of the
following events:
(a) an order is made that the body corporate be wound up;
(b) a liquidator, provisional liquidator, controller (as defined in
the Corporations Law) or administrator is appointed in respect of
the body corporate or a substantial portion of its assets whether
or not under an order;
(c) except to reconstruct or amalgamate on terms reasonably approved
by the Trustee (or in the case of a reconstruction or amalgamation
of the Trustee, on terms reasonably approved by the Manager), the
body corporate enters into, or resolves to enter into, a scheme of
arrangement, deed of company arrangement or composition with, or
assignment for the benefit of, all or any class of its creditors;
(d) the body corporate resolves to wind itself up, or otherwise
dissolve itself, or gives notice of its intention to do so, except
to reconstruct or amalgamate on terms reasonably approved by the
Trustee (or in the case of a reconstruction or amalgamation of the
Trustee, except on terms reasonably approved by the Manager) or is
otherwise wound up or dissolved;
(e) the body corporate is or states that it is insolvent;
(f) as a result of the operation of section 459F(1) of the
Corporations Law, the body corporate is taken to have failed to
comply with a statutory demand;
(g) the body corporate takes any step to obtain protection or is
granted protection from its creditors, under any applicable
legislation;
(h) any writ of execution, attachment, distress or similar process is
made, levied or issued against or in relation to a substantial
portion of the body corporate's assets and is not satisfied or
withdrawn or contested in good faith by the body corporate within
21 days; or
(i) anything analogous or having a substantially similar effect to any
of the events specified above happens under the law of any
applicable jurisdiction.
5.
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"Interest Entitlement" in relation to a Security issued by the Trustee as
trustee of a Series Trust and an Interest Payment Date means the amount
of interest accrued in respect of that Security and due for payment on
that Interest Payment Date, determined in accordance with the Series
Supplement for the Series Trust.
"Interest Payment Date" in relation to a Security issued by the Trustee
as trustee of a Series Trust means each date for the payment of interest
under that Security as specified in the Series Supplement for that Series
Trust.
"Investor" means a Securityholder or a Unitholder (as the case may be)
and "Investors" in relation to a Series Trust means the Unitholders and
Securityholders in relation to that Series Trust.
"Investor Entitlement" in relation to a Securityholder or a Unitholder
(as the case may be) of a Series Trust means the entitlement of the
Securityholder or the entitlement of the Unitholder to the payment by the
Trustee in its capacity as trustee of the Series Trust of its
Securityholder Entitlement or Unitholder Entitlement (as the case may be)
as determined in accordance with this Deed and the Series Supplement for
the Series Trust.
"Liabilities" in relation to a Series Trust means all costs, charges,
expenses, outgoings and liabilities incurred by the Trustee in its
capacity as trustee of the Series Trust and includes, without limiting
the generality of the foregoing:
(a) all fees payable to the Manager, the Trustee and the Nominated
Servicer for the Series Trust, in accordance with this Deed and
the Series Supplement for the Series Trust;
(b) all amounts referred to in clause 16.11 relating to the Series
Trust;
(c) all amounts which the Manager, the Nominated Servicer, or the
Nominated Seller or the Nominated Servicer for the Series Trust,
or any other person is entitled to be paid, reimbursed or
indemnified for by the Trustee or out of the Series Trust under
this Deed or the Series Supplement for the Series Trust;
(d) the principal amount of, and any interest, charges and other
amounts under, any Borrowing by the Trustee as trustee of the
Series Trust.
"Liquidity Facility" in relation to a Series Trust means any liquidity
facility entered into by the Trustee in its capacity as trustee of the
Series Trust with a Bank or other financial institution and includes
anything specified as a Liquidity Facility in the Series Supplement for
the Series Trust.
"Management Transfer" means the appointment of a new Manager in
accordance with clause 20.
"Manager" means Securitisation Advisory Services Pty Limited or if
Securitisation Advisory Services Pty Limited retires or is removed as
manager of the Series Trusts, any then Substitute
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Manager and includes the Trustee when acting as the Manager in accordance
with the terms of this Deed.
"Manager Default" means the occurrence of any event specified in clause
20.1.
"Minimum Security Rating" has, in respect of Securities of a Series
Trust, the meaning set out in the relevant Series Supplement.
"Net Tax Income" in relation to a Series Trust for a Financial Year means
the net income of the Series Trust for the Financial Year determined in
accordance with section 95(1) of the Tax Act.
"Net Accounting Income" in relation to a Series Trust for a Financial
Year means the amount calculated under clause 13.1 for the Series Trust
for the Financial Year.
"Nominated Seller" in relation to a Series Trust means the person who
sells or may sell Approved Financial Assets to the Trustee as trustee of
the Series Trust as contemplated by the Series Supplement for the Series
Trust and who is identified as the Nominated Seller for the Series Trust
in its Series Supplement.
"Nominated Servicer" in relation to a Series Trust at any given time
means the person then appointed to act as servicer of the Approved
Financial Assets held by the Trustee as trustee of the Series Trust.
"Other Trust" means each trust (not being a Series Trust) which is
established pursuant to the terms of a Series Supplement in accordance
with clause 5.2 (b).
"Payment Date" in relation to a Series Trust means any Interest Payment
Date or Principal Payment Date in relation to any Securities issued by
the Trustee as trustee of the Series Trust.
"Payment Entitlement" in relation to a Series Trust means any Interest
Entitlement or Principal Entitlement in relation to any Securities issued
by the Trustee as trustee of the Series Trust.
"Principal Entitlement" in relation to a Security issued by the Trustee
as trustee of a Series Trust and a Principal Payment Date means the
amount of principal in respect of the Security due to be repaid on that
Principal Payment Date determined in accordance with the Series
Supplement for the Series Trust.
"Principal Payment Date" in relation to a Security issued by the Trustee
as trustee of a Series Trust means each date for the repayment of part or
all of the outstanding principal in relation to the Security as
determined in accordance with the Series Supplement for the Series Trust.
"Rating Agency" in relation to a Series Trust has the meaning given to it
in the Series Supplement relating to the Series Trust.
"Register" means the register referred to in clause 9.1.
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"Registered Company Auditor" means a person registered as an auditor, or
taken to be registered as an auditor, under Part 9.2 of the Corporations
Law.
"Related Body Corporate" in relation to a body corporate means a body
corporate which is related to the first mentioned body corporate by
virtue of Division 6 of Part 1.2 of the Corporations Law.
"Relevant Investor" has the meaning set out in clause 26.1.
"Representative" means:
(a) a person appointed as a proxy for an Investor pursuant to clause
26.8; and
(b) without limiting the generality of paragraph (a), in the case of
an Investor which is a body corporate, a person appointed pursuant
to clause 26.9 by the Investor.
"Required Credit Rating" in relation to Authorised Short-Term Investments
and a Series Trust means the minimum rating that the Authorised Short-
Term Investments in relation to that Series Trust must have from each
Rating Agency as specified in the Series Supplement for that Series
Trust.
"Secured Creditor" means any person who is a secured creditor (howsoever
described) of the Trustee as trustee of a Series Trust under the Security
Trust Deed (if any) for the Series Trust.
"Security" in relation to a Series Trust means a debt security issued by
the Trustee as trustee of that Series Trust in accordance with this Deed
and the Series Supplement relating to that Series Trust.
"Security Certificate" in relation to a Series Trust means a certificate
in the form specified in the Series Supplement relating to that Series
Trust or in such other form as may be agreed from time to time between
the Trustee and the Manager.
"Securityholder" at any given time means the person then appearing in the
Register as the holder of a Security.
"Securityholder Entitlement" in relation to a Security, a Securityholder
and a Series Trust means the entitlement of the Securityholder in respect
of that Security to the payment by the Trustee in its capacity as trustee
of the Series Trust of its Interest Entitlement and Principal Entitlement
as determined in accordance with this Deed and the Series Supplement for
the Series Trust.
"Security Interest" means any encumbrance, bill of sale, mortgage,
charge, lien, hypothecation, assignment in the nature of security,
security interest, title retention, preferential right, trust
arrangement, flawed-asset arrangement, contractual right of set off or
any other security agreement or arrangement.
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"Security Transfer" in relation to a Series Trust means a transfer and
acceptance of Securities in the form specified in the Series Supplement
relating to that Series Trust or in such other form as may be agreed from
time to time between the Trustee and the Manager.
"Security Trust Deed" in relation to a Series Trust means a Security
Trust Deed between the Trustee, the Manager and the Security Trustee
under which the Trustee as trustee of the Series Trust grants a charge
over some or all of the Assets of the Series Trust in favour of the
Security Trustee to be held on trust by the Security Trustee for the
Securityholders in relation to that Series Trust and for any other
Secured Creditor specified in the Security Trust Deed.
"Security Trustee" means the person who is for the time being the
security trustee under a Security Trust Deed.
"Series Supplement" in relation to a Series Trust means the deed executed
or proposed to be executed (as the case may be) by the Trustee, the
Manager, the Nominated Seller and the initial Nominated Servicer for the
Series Trust, setting out, amongst other things, the matters required or
that may be included by this Deed in respect of that Series Trust.
"Series Trust" means a trust constituted in the manner contemplated by
clauses 3.2 and 3.3.
"Series 1997-1 Medallion Trust" means the trust with that name
established pursuant to this Deed and the 1997-1 Series Supplement.
"Shared Security" in relation to a Series Trust has the meaning given in
the Series Supplement for the Series Trust.
"Substitute Manager" means at any given time the entity then appointed as
Manager under clause 20.
"Substitute Trustee" means at any given time the entity then appointed as
Trustee under clause 19.
"Support Facility" in relation to a Series Trust means any Credit
Enhancement, Hedge Agreement or Liquidity Facility in relation to the
Series Trust and includes anything in addition to the foregoing which is
specified as a Support Facility in the Series Supplement for the Series
Trust.
"Tax" includes all income tax, withholding tax, stamp, financial
institutions, registration and other duties, bank accounts debits tax and
other taxes, levies, imposts, deductions and charges whatsoever
(including, in respect of any duty imposed on receipts or liabilities of
financial institutions, any amounts paid in respect of them to another
financial institution) together with interest on them and penalties with
respect to them (if any) and charges, fees or other amounts made on or in
respect of them.
"Tax Act" means the Income Tax Assessment Act, 1936 (Commonwealth) or, as
the context requires, the Income Tax Assessment Act, 1997 (Commonwealth).
9.
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"Termination Date" in relation to a Series Trust means the earliest of
the following dates to occur in relation to the Series Trust:
(a) the date which is 80 years after the date of the constitution of
the Series Trust in accordance with this Deed;
(b) the date on which the Series Trust terminates by operation of
statute or by the application of general principles of law; and
(c) the date upon which the Series Trust terminates in accordance with
this Deed or its Series Supplement.
"Transaction Documents" in relation to each Series Trust means:
(a) this Deed;
(b) the Series Supplement relating to the Series Trust;
(c) each document (if any) setting out the terms of any Support
Facility in relation to the Series Trust;
(d) the Security Trust Deed (if any) relating to the Series Trust;
(e) the Dealer Agreement (if any) relating to the Series Trust;
(f) any other document that is specified as a Transaction Document in
the Series Supplement relating to the Series Trust; and
(g) any other document which is agreed by the Manager and the Trustee
to be Transaction Document in relation to the Series Trust.
"Transfer" means a Security Transfer or a Unit Transfer (as the case may
be).
"Trustee" means Perpetual Trustee Company Limited or if Perpetual Trustee
Company Limited retires or is removed as trustee, any then Substitute
Trustee and includes the Manager when acting as the Trustee in accordance
with the terms of this Deed.
"Trustee Default" means the occurrence of any events specified in clause
19.1.
"Unit" means a unit in a Series Trust.
"Unit Certificate" in relation to a Series Trust means a certificate in
the form specified in the Series Supplement relating to that Series Trust
or in such other form as may be agreed from time to time between the
Trustee and the Manager.
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"Unitholder" at any given time means the person then appearing in the
Register as a holder of a Unit.
"Unit Transfer" in relation to a Series Trust means a transfer of a Unit
in the form specified in the Series Supplement relating to that Series
Trust or in such other form as may be agreed from time to time between
the Trustee and the Manager.
"Unitholder Entitlement" in relation to a Unit, a Unitholder and a Series
Trust means the entitlement of the Unitholder in respect of that Unit to
the payment by the Trustee in its capacity as trustee of the Series Trust
in accordance with this Deed and the Series Supplement for that Series
Trust.
1.2 Interpretation
In this Deed, unless the contrary intention appears:
(a) a reference to this Deed includes the Recitals and Schedules;
(b) a reference to a statute, ordinance, code or other law includes
regulations and other instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;
(c) a reference to a section of a statute, ordinance, code or other
law includes any consolidation, amendment, re-enactment or
replacement of that section;
(d) the singular includes the plural and vice versa and words denoting
a gender include all other genders;
(e) the word "person" includes an individual, a body politic, a
corporation and a statutory or other authority or association
(incorporated or unincorporated);
(f) a reference to a person includes a reference to the person's
executors, administrators, successors, substitutes (including,
without limitation, persons taking by novation) and assigns;
(g) the word "corporation" means any body corporate wherever formed or
incorporated including, without limiting the generality of the
foregoing, any public authority or any instrumentality of the
Crown;
(h) where a word or phrase has a defined meaning any other part of
speech or grammatical form in respect of such word or phrase has a
corresponding meaning;
(i) a reference to any thing (including, without limitation, any
amount) is a reference to the whole or any part of it and a
reference to a group of persons is a reference to any one or more
of them;
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(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 references 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 "wilful default" in relation to the Trustee or the
Manager, means any wilful failure to comply, or wilful breach by
the Trustee or the Manager (as the case may be) of any of its
obligations under any Transaction Document, other than a failure
or breach which:
(i)
A. arises as a result of a breach by a person other
than the Trustee or the Manager (as the case may be)
of a Transaction Document; and
B. the performance of the action (the non-performance
of which gave rise to such breach) is a pre-
condition to the Trustee or the Manager (as the case
may be) performing the said obligation; or
(ii) is in accordance with a lawful court order or direction or
is otherwise required by law; or
(iii) is in accordance with a proper instruction or direction of
the Securityholders given at a meeting convened under any
Transaction Document;
(o) subject to clause 24.3, the Trustee will only be considered to
have knowledge or awareness of, or notice of, a thing or grounds
to believe anything by virtue of the officers of the Trustee
having day to day responsibility for the administration of the
Series Trust having actual knowledge, actual awareness or actual
notice of that thing, or grounds or reason to believe that thing
(and similar references will be interpreted in this way). In
addition, notice, knowledge or awareness of a Manager Default or
Trustee Default means notice, knowledge or awareness of the
occurrence of the events or circumstances constituting a Manager
Default or Trustee Default (as the case may be);
(p) a reference to this Deed or any other deed, agreement, document or
instrument includes respectively this Deed or such other deed,
agreement, document or instrument as amended, novated,
supplemented or replaced from time to time;
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(q) a reference to a "month" is to a calendar month;
(r) a reference to a clause or a Schedule is a reference to a clause
or a Schedule of this Deed; and
(s) headings are inserted for convenience and do not affect the
interpretation of this Deed.
1.3 Series Supplements
(a) (Series Supplement only applies to its Series Trust): The
provisions contained in any Series Supplement apply only in
relation to the Series Trust to which it relates.
(b) (Variation of this Deed): A Series Supplement may vary or amend
the terms of this Deed in respect of the Series Trust to which the
Series Supplement relates. Such a variation or amendment to the
terms of this Deed by a Series Supplement does not constitute an
amendment, addition or revocation of a provision of this Deed for
the purpose of clause 25.
(c) (Series Supplement paramount in respect of Series Trust to which
it applies): If there is any conflict between the provisions of a
Series Supplement relating to a Series Trust and the provisions of
this Deed, the provisions of the Series Supplement prevail over
the provisions of this Deed in respect of the Series Trust.
1.4 Business Day
When the date on or by which any act, matter or thing is to be done is
not a Business Day, such act, matter or thing must (unless specifically
provided otherwise) be done on the next Business Day.
2. APPOINTMENT OF TRUSTEE AND MANAGER
2.1 Appointment of Trustee
The Trustee is hereby appointed and agrees to act as trustee of each
Series Trust (with effect from the constitution of the Series Trust) on
the terms and conditions in this Deed and the Series Supplement relating
to that Series Trust.
2.2 Appointment of Manager
The Manager is hereby appointed and agrees to act as the manager of each
Series Trust (with effect from the constitution of the Series Trust) on
the terms and conditions in this Deed and the Series Supplement relating
to that Series Trust.
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3. DECLARATION OF TRUST AND CONSTITUTION OF THE SERIES TRUSTS
3.1 Declaration of Trust
The Trustee declares that it will hold the Assets of each Series Trust on
trust for the Unitholders of that Series Trust on the terms and
conditions of this Deed and the Series Supplement for that Series Trust.
3.2 Date of Constitution of First Series Trust
The first Series Trust will be constituted upon the execution of the
1997-1 Series Supplement by the Trustee, the Manager and the Nominated
Servicer and the Nominated Seller for the first Series Trust and the
payment of $100 by the Manager to the Trustee (to constitute the initial
Assets of the first Series Trust).
3.3 Date of Constitution of Additional Series Trusts
A new Series Trust will be constituted upon the execution of a Series
Supplement relating to the Series Trust by the Trustee, the Manager and
the Nominated Servicer and the Nominated Seller for that Series Trust and
upon the payment of $100 to the Trustee by the Manager (to constitute the
initial Assets of that Series Trust).
3.4 Name of Series Trusts
The name of each Series Trust will commence with the word "Series" and
will be followed by the year in which the particular Series Trust was
created and the number and order of Series Trusts created in that year
and followed by the words "Medallion Trust" (for example, the first
Series Trust will be known as the "Series 1997-1 Medallion Trust"). The
name of each Series Trust may be varied from time to time by agreement
between the Trustee and the Manager, subject to any approvals required by
law.
3.5 No limit to number of Series Trusts
There is no limit to the number of Series Trusts that may be created.
3.6 Commencement and Termination of Series Trusts
(a) (Commencement): Each Series Trust commences on the date of its
constitution as referred to in this Deed.
(b) (Termination): Each Series Trust ends on its Termination Date.
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4. UNITS IN A SERIES TRUST
4.1 Beneficial Interest in a Series Trust Divided into Units
The beneficial interest in each Series Trust will be divided into one or
more units in accordance with the Series Supplement relating to that
Series Trust.
4.2 Nature of a Unit
Subject to the Series Supplement for a Series Trust, each Unit in a
Series Trust represents an equal undivided beneficial interest in the
Assets of the Series Trust as a whole but not in any particular Asset of
the Series Trust.
4.3 Units May be Divided into Classes
The Units in a Series Trust may be divided into Classes if so specified
in the Series Supplement relating to the Series Trust.
4.4 Rights and Entitlements of Units
Any rights, entitlements, benefits and restrictions applying to any Unit
or Class of Units in a Series Trust, in addition to those specified in
this Deed, may be specified in the Series Supplement relating to the
Series Trust.
4.5 Restrictions on Units
Any restrictions applying to any Unit or Class of Units in a Series
Trust, in addition to those specified in this Deed, may be specified in
the Series Supplement relating to the Series Trust.
4.6 Distributions to Unitholders
The Unitholders of a Series Trust are entitled to receive payments of
their Unitholder Entitlements pursuant to the provisions of this Deed and
the Series Supplement relating to the Series Trust.
5. SERIES SUPPLEMENT
5.1 Contents of Series Supplement - Mandatory
A Series Supplement in relation to a Series Trust must, amongst other
things, specify:
(a) (Nominated Seller): the Nominated Seller for the Series Trust;
(b) (Approved Financial Assets): the nature of any Approved Financial
Assets which may be acquired by the Trustee as trustee of the
Series Trust from the Nominated Seller, including:
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(i) the procedures and means for acquiring such Approved
Financial Assets;
(ii) the terms and conditions relating to the acquisition of
such Approved Financial Assets;
(iii) the methodology for calculating and paying to the Nominated
Seller the consideration payable by the Trustee to the
Nominated Seller for any Approved Financial Assets that may
be acquired by the Trustee from the Nominated Seller;
(iv) any warranties and undertakings to be given by the
Nominated Seller in connection therewith;
(v) any conditions precedent that must be satisfied prior to
any acquisition of such Approved Financial Assets; and
(vi) any rights or obligations that the Nominated Seller may
have to repurchase such Approved Financial Assets;
(c) (Nominated Servicer): the Nominated Servicer of any Approved
Financial Assets that may be acquired by the Trustee from the
Nominated Seller (who may be the Nominated Seller, the Manager,
the Trustee, any other person or any combination of the foregoing)
and the terms and conditions relating to the appointment of the
Nominated Servicer;
(d) (Securities): the details in relation to any Securities that the
Manager proposes to be issued by the Trustee as trustee of the
Series Trust including:
(i) whether any of the Securities will constitute a Class
separate from any other Securities to be issued by the
Trustee as trustee of the Series Trust;
(ii) the total number and the name of the Securities and, if the
Securities are divided into more than one Class, the number
and the name of the Securities in each Class (or, if such
number is not specified in the Series Supplement, the means
for determining such number);
(iii) the total principal amount of the Securities and, if the
Securities are divided into more than one Class, the
principal amount of each Class (or, if the foregoing is not
specified in the Series Supplement, the means for
determining the foregoing);
(iv) the proposed issue date of the Securities;
(v) each date (if any) for the payment of Interest Entitlements
on the Securities;
(vi) the rate of interest (if any) on the Securities (which may
be fixed, variable or determined by a stated method);
(vii) each date for the repayment of part or all of the Principal
Entitlements on the Securities;
(viii) the amount (or the method of calculating the amount) of
principal to be repaid on the Securities on each Principal
Payment Date;
(ix) any preferred, deferred or special rights or restrictions
applying to the Securities, whether with regard to the
payment of interest, the payment of principal, voting, the
division into Classes or otherwise; and
(x) any other terms or restrictions applying to the Securities;
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(e) (Security Trust Deed): whether there will be any Security Trust
Deed in relation to the Series Trust;
(f) (Support Facilities): the details of any Support Facilities to be
entered into in relation to the Series Trust;
(g) (Order of distribution of available funds): the provisions
relating to the distribution, and the order of priority for the
distribution, of the available funds of the Series Trust to meet
its Liabilities;
(h) (Termination of the Series Trust): the provisions relating to the
termination of the Series Trust and the liquidation and
realisation of the Assets of the Series Trust by the Trustee upon
its termination;
(i) (Fees and expenses): any fees, expenses and other amounts payable
to the Trustee, the Nominated Seller, the Nominated Servicer, the
Manager and any other person in relation to the Series Trust; and
(j) (Any other matter): any other matter that must be included in the
Series Supplement pursuant to this Deed.
5.2 Contents of Series Supplement - Optional
A Series Supplement in relation to a Series Trust may, amongst other
things, specify:
(a) (Rights and Obligations of Nominated Seller, Nominated Servicer,
Manager and the Trustee): any further rights or obligations of the
Nominated Seller, the Nominated Servicer, the Manager and the
Trustee relating to the Series Trust;
(b) (Other Trusts): the provisions relating to any other trust where
the Trustee holds or may hold an interest in any Approved
Financial Assets partly as Trustee for the Series Trust and partly
as trustee of the other trust (in addition to any other property
that the Trustee may hold as trustee of the other trust) and the
provisions regulating the holding of such interest between the
Series Trust and the other trust;
(c) (Other Matters in this Deed): any other matter that this Deed
provides or contemplates may be in a Series Supplement; and
(d) (Other Matters Desired by Manager): any other matter that the
Manager and the Trustee agree should be included in the Series
Supplement.
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5.3 Manager Must Deliver Proposed Series Supplement to Trustee
If the Manager proposes that a Series Trust will be constituted as
contemplated by this Deed, it must deliver to the Trustee at least 5
Business Days (or such other period agreed to by the Trustee) prior to
the proposed date of the constitution of the Series Trust a Series
Supplement for execution by the Trustee, accompanied by a written
direction by the Manager to the Trustee to execute the Series Supplement.
5.4 Execution of the Series Supplement
If the Trustee decides in its absolute discretion to do so, the Trustee
may execute the Series Supplement and, if it does so, must return it to
the Manager on the proposed date for the constitution of the Series
Trust.
6. SECURITIES
6.1 Acknowledgement of Indebtedness
Subject to the terms of this Deed, the Trustee hereby acknowledges its
indebtedness as trustee of each Series Trust for the principal
represented by the Securities issued by it as trustee of the Series
Trust.
6.2 Terms of Securities
All Securities issued by the Trustee as trustee of a Series Trust will be
issued with the benefit of, and subject to, this Deed, the Series
Supplement relating to the Series Trust and the Security Trust Deed (if
any) relating to that Series Trust.
6.3 Payment Entitlement of Securityholders
Subject to this Deed, the corresponding Series Supplement and the
Security Trust Deed (if any) relating to a Series Trust, the Trustee as
trustee of each Series Trust must in respect of the Securities issued by
it in such capacity pay to the Securityholders of those Securities their
Payment Entitlements on each Payment Date relating thereto.
6.4 No Limit on Securities
Subject to this Deed and the corresponding Series Supplement, there is no
limit on the amount or value of Securities that may be issued in respect
of a Series Trust.
6.5 Excluded Issue, Offer or Invitation only
Notwithstanding anything herein contained, no issue of Securities, offer
of Securities for subscription or purchase or invitation to subscribe for
or buy Securities will be made unless the issue, offer or invitation is
an excluded issue, excluded offer or excluded invitation for the purposes
of the Corporations Law.
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6.6 Denomination of Securities
The denomination of each Security will be $100,000 or such other amount
specified in the corresponding Series Supplement.
6.7 Securities Not Invalid if Issued in Breach
No Securities will be invalid or unenforceable on the ground that it was
issued in breach of this Deed or any other Transaction Document.
6.8 Location of Securities
The property in the Securities will for all purposes be regarded as
situated at the place where the Register is located on which the
Securities are recorded.
6.9 No Discrimination between Securityholders
There will not be any discrimination or preference between the
Securities, or the corresponding Securityholders, in relation to a Series
Trust by reason of the time of issue of the Securities or for any other
reason, subject only to the Series Supplement and the Security Trust Deed
(if any) relating to the Series Trust.
7. LIMITS ON RIGHTS OF INVESTORS
7.1 Limitation on Entitlement of Investors
No Investor (in its capacity as such) in respect of a Series Trust is
entitled (other than as provided in this Deed and notwithstanding any
rule of law or equity to the contrary) to:
(a) (Interfere with Trustee etc.): interfere with or question the
exercise or non-exercise of the rights or powers of any Nominated
Seller, any Nominated Servicer, the Manager or the Trustee in
their dealings with any Series Trust or any Asset of any Series
Trust;
(b) (Require transfer of Assets of a Series Trust): require the
transfer to it of any Asset of any Series Trust;
(c) (Attend meetings concerning Trustee's property): attend meetings,
take part in or consent to any action concerning any property or
corporation in which the Trustee holds an interest;
(d) (Exercise rights in respect of Assets of a Series Trust): exercise
any rights, powers or privileges in respect of any Asset of any
Series Trust;
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(e) (Lodge caveats): lodge with a Governmental Agency or any person
any caveat or other notice whether under the provisions of any
legislation of a State or Territory of the Commonwealth of
Australia or otherwise to:
(i) forbid (either conditionally or absolutely) the
registration of any person as transferee or proprietor of
or any instrument affecting any Asset of any Series Trust;
or
(ii) claim any estate or interest in any Asset of any Series
Trust;
(f) (Negotiate with persons in respect of Approved Financial Assets
etc): negotiate or communicate in any way with any person in
respect of any Approved Financial Assets of any Series Trust or
with any person providing a Support Facility to the Trustee;
(g) (Wind-up): seek to wind up or terminate any Series Trust;
(h) (Seek to remove Trustee, etc.): seek to remove the Manager, the
Trustee or any Nominated Servicer;
(i) (Take proceedings): subject to clause 16.22(a), take any
proceedings of any nature whatsoever in any court or otherwise or
to obtain any remedy of any nature (including, without limitation,
against the Trustee, the Manager, any Nominated Seller or any
Nominated Servicer or in respect of any Series Trust or any Asset
of a Series Trust). However, an Investor in relation to a Series
Trust is entitled to compel the Trustee or the Manager to comply
with their respective duties and obligations under this Deed and
the corresponding Series Supplement to the Investor. If a
Securityholder in relation to a Series Trust is entitled to the
benefit of a Security Trust Deed in relation to the Series Trust,
the Securityholder is also entitled to compel the Security Trustee
to comply with its duties and obligations under that Security
Trust Deed;
(j) (Have recourse to Trustee or Manager personally): any recourse
whatsoever to the Trustee or the Manager in its personal capacity,
except to the extent of any fraud, negligence or wilful default on
the part of the Trustee or the Manager respectively; or
(k) (Have recourse to Nominated Seller or Nominated Servicer): any
recourse whatsoever to any Nominated Seller or Nominated Servicer
in respect of a breach by the Nominated Seller or the Nominated
Servicer of their respective obligations and duties under a Series
Supplement.
7.2 Subordination of Unitholder's Interest to Securityholder Entitlement
The rights, claims and interest of the Unitholders in respect of a
Series Trust, the Assets of that Series Trust and any payments or
distribution out of the Series Trust (including, without limiting the
generality of the foregoing, on the winding-up of the Series Trust) at
all times rank after, and are subject to, the interests of
Securityholders under the Securities in relation to the Series Trust
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(including, without limiting the generality of the foregoing, the
Securityholder Entitlements in respect of those Securities).
7.3 Further Limit on Interest of Securityholders
(a) (No interest in Assets of a Series Trust): A Securityholder in
relation to a Series Trust is only a Creditor of the Trustee in
its capacity as trustee of the Series Trust to the extent of the
Securities held by that Securityholder and is not entitled to any
beneficial or, subject to any applicable Security Trust Deed,
other interest in any Assets of the Series Trust.
(b) (No interest in other Series Trusts): A Securityholder in relation
to a Series Trust does not have an interest in any other Series
Trust or in any Assets of any other Series Trust.
7.4 No Other Relationship
Nothing in this Deed or any Series Supplement constitutes the Trustee,
any Nominated Servicer, any Nominated Seller or the Manager as the agent
of any Investor, nor creates any relationship between any Investor on the
one hand and the Nominated Servicer, the Trustee (other than as trustee
in the case of a Unitholder or creditor in the case of a Securityholder),
the Nominated Seller or the Manager on the other.
7.5 Investors Bound by this Deed
The terms and conditions of this Deed are binding on each Investor and
all persons claiming through any Investor as if that Investor and such
persons were a party to this Deed and the corresponding Series
Supplement.
7.6 Investors Not Liable
No Investor, by reason alone of being an Investor or by reason alone of
the relationship created under this Deed with the Trustee, any Nominated
Seller, any Nominated Servicer or the Manager, is under any obligation
personally to indemnify the Trustee, the Nominated Seller, the Nominated
Servicer or the Manager or any creditor of any of them if there is a
deficiency of Assets of a Series Trust as compared with its Liabilities.
The right (if any) of the Trustee, the Nominated Seller, the Nominated
Servicer or the Manager or of a creditor to seek indemnity is limited to
having recourse to the Series Trust.
7.7 Covenant Not to Claim against Investors
The Trustee covenants with the Manager, with the intent that the benefit
of this covenant extends not only to the Manager but also to each
Investor of a Series Trust jointly and to each of them severally not to
make any claim upon, and not take any action or legal proceedings
against, any Investor (in that person's capacity as an Investor) if there
is a deficiency referred to in clause 7.6.
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An Investor may plead this clause as an absolute bar to such a pleading
or claim.
8. PROCEDURE FOR THE ISSUE OF SECURITIES
8.1 Issue of Securities
The Trustee must, as trustee of a Series Trust, issue Securities in
accordance with (and subject to) the Series Supplement in relation to the
Series Trust.
8.2 Manager's Power to Negotiate Terms of Securities
The Manager has the power to:
(a) (Negotiate): negotiate the terms and conditions of the issue of
Securities; and
(b) (Direct Trustee to issue): direct the Trustee to issue Securities
on those terms and conditions.
However, the Manager's power to act and bind the Trustee in accordance
with this clause is conditional on the Trustee being satisfied (in its
absolute discretion) with the terms and conditions of the issue of
Securities including the terms and conditions dealing with the personal
liability of the Trustee.
8.3 Dealer Agreement
The Trustee is empowered on the recommendation of the Manager to enter
into a Dealer Agreement on terms upon which the Trustee can agree in
advance to issue Securities in its capacity as trustee of a Series Trust
on the Closing Date in relation to a Series Trust if:
(a) (Trustee satisfied as to certain matters): the Trustee (or the
Manager on its behalf) is satisfied that the matters referred to
in this Deed or the Series Supplement for the Series Trust to be
done on or prior to the Closing Date have occurred prior to the
date of the commitment to issue Securities; or
(b) (Arrangements made): arrangements have been entered into so that
the Trustee (or the Manager on its behalf) is satisfied that the
matters referred to in paragraph (a) will occur prior to the
Closing Date.
8.4 Further Issues of Securities
Where the Trustee as trustee of a Series Trust has issued Securities,
then unless otherwise specified in the Series Supplement relating to the
Series Trust, no further Securities must be issued by the Trustee as
trustee of that Series Trust.
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8.5 Issue of Unrated Securities
Nothing in this Deed is to be construed as requiring the Trustee to issue
Securities rated by any Rating Agency.
8.6 Issue of Security/1/
A Security will be deemed to be created and issued upon completion of all
the following:
(a) (Subscription): the receipt by the Trustee of a duly completed and
executed subscription form in respect of the proposed Security by
the subscriber of that Security;
(b) (Subscription proceeds): the receipt by the Trustee, or as it may
otherwise direct, of the subscription proceeds for that proposed
Security in cleared and immediately available funds; and
(c) (Entry in the Register): the entry in the Register of the
subscriber as the initial Securityholder of that Security.
9. REGISTER
9.1 Establishment of Register
The Trustee must keep at its principal office in such place as is from
time to time agreed between the Trustee and the Manager an up to date
register in respect of the Securities and Units of each Series Trust.
9.2 Details on Register
The Trustee must promptly enter in the Register in respect of the Series
Trust:
(a) (Name of Series Trust): the name of the Series Trust;
(b) (Name and address of Investors): the name and address of each
holder of a Security or Unit in respect of the Series Trust as
notified to the Trustee by the relevant Investor;
(c) (Number of Securities and Units): the number of Securities held by
each Securityholder and the number of Units held by each
Unitholder;
(d) (Date entered on Register): the date on which each Investor was
first registered in the Register as a Securityholder or Unitholder
in respect of the Securities or Units held by him or her;
--------------------------------------------------------------------------------
/1/ Inserted by Deed of Amendment dated 17 October 1997.
23.
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(e) (Date ceases to be Investor): the date on which any person ceases
to be an Investor;
(f) (Payment details): account to which any payments to an Investor
are to be made (if applicable);
(g) (Payment record): a record of each payment in respect of
Securities and Units in relation to the Series Trust;
(h) (Series Supplement): such information as is required to be entered
in the Register pursuant to the corresponding Series Supplement;
and
(i) (Other particulars): such other particulars that the Manager or
the Trustee considers to be desirable.
9.3 Correctness of the Register
The Manager may accept the correctness of the Register and is not
required to enquire into its authenticity. Neither the Manager nor the
Trustee is liable for any mistake in the Register or in any purported
copy except to the extent that the mistake is attributable to its own
negligent or fraudulent act or wilful default.
9.4 Notification of Change by Investors
Any change of name or address on the part of any Investor must promptly
be notified by that Investor to the office of the Trustee in Sydney who
must alter the Register within five Business Days of receipt of that
notice.
9.5 Inspection of the Register
The Manager and each Investor are entitled to inspect, but (subject to
clause 9.6) not copy, the Register in respect of a Series Trust at any
time when the Trustee's registered office is required by the Corporations
Law to be accessible to the public. An Investor is entitled to inspect
the Register only in respect of information relating to that Investor.
9.6 Copy of Register for Manager
The Trustee must make a copy of the Register available to the Manager
upon request by the Manager within one Business Day of receipt of the
request.
9.7 Closure of the Register
The Trustee may from time to time close the Register but no part of the
Register may be closed for more than 35 Business Days in aggregate in any
calendar year or such greater period as may be permitted pursuant to the
Corporations Law. If the Register is closed in accordance with this
clause
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or clause 9.8 Investor Entitlements determined in accordance with
clause 9.8 are determined as at the immediately preceding Business Day.
9.8 Closed to calculate Investor Entitlements
In addition to the Trustee's rights pursuant to clause 9.7, in order to
calculate Investor Entitlements the Register may be closed by the Trustee
from 3.30 pm on the Business Day preceding the date for the calculation
of these (or such other Business Day as the Trustee notifies the
Investors from time to time) and reopened at the commencement of business
on the Business Day immediately following the date of such calculation.
9.9 Non-recognition of Equitable Interests
Except as otherwise provided in this Deed and except as required by
statute or as ordered by a court of competent jurisdiction, no notice of
any trust, whether express, implied or constructive, is to be entered in
the Register and except as required by statute or as ordered by a court
of competent jurisdiction, neither the Trustee nor the Manager is to be
affected by or compelled to recognise (even when having notice of it) any
right or interest in any Securities or Units other than the registered
Investor's absolute right to the entirety of them and the receipt of a
registered Investor is a good discharge to the Trustee and Manager.
9.10 Appointment of Third Party Registrar
The Trustee, with the approval of the Manager, may cause the Register to
be maintained by a third party on its behalf and require that person to
discharge the Trustee's obligations under this Deed in relation to the
Register. The Trustee is not liable for any act or omission of such
person if:
(a) (Third party not Austraclear): such person is not Austraclear, the
Trustee has taken reasonable steps to ensure that such person is
properly performing its functions; or
(b) (Third party is Austraclear): such person is Austraclear, except
where the Trustee did not act in good faith in selecting
Austraclear pursuant to this clause 9.10 to maintain the Register.
9.11 Manager to Provide Information
The Manager must provide the Trustee and any person appointed in
accordance with clause 9.10 with such information as the Trustee or such
person reasonably requires to maintain the Register.
9.12 Conclusiveness of Register
A Certificate is not a certificate of title and the Register is the only
conclusive evidence of title to Securities and Units.
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9.13 Rectification of Register
If:
(a) (Entry omitted): an entry is omitted from the Register;
(b) (Entry made otherwise than in accordance with this Deed): an entry
is made in the Register otherwise than in accordance with this
Deed;
(c) (Wrong entry exists): an entry wrongly exists in the Register;
(d) (Error or defect exists in Register): there is an error or defect
in any entry in the Register; or
(e) (Default made): default is made or unnecessary delay takes place
in entering in the Register that any person has ceased to be the
holder of Securities or Units,
then the Trustee may rectify the same and the Trustee is not liable for
any loss, costs or liability incurred as a result of any of the foregoing
occurring provided that it is not as a result of the Trustee's fraud,
negligence or wilful default.
10. TRANSFER OF SECURITIES AND UNITS
10.1 No Restriction on Transfer
Subject to this Deed and subject to the corresponding Series Supplement,
there is no restriction on the transfer of Securities and Units.
10.2 Form of Transfer
All transfers of Securities and Units must be in writing and in the form
of, respectively, a Transfer.
10.3 Execution of Transfer
Every Transfer must be duly completed, duly stamped (if applicable)
executed by the transferor and the transferee and delivered to the
Trustee together with the Certificate relating to the Securities or Units
to be transferred. The transferor is deemed to remain the owner of the
Securities or Units for the purpose of establishing and paying Investor
Entitlements until the name of the transferee is entered in the Register.
10.4 Restrictions on Transfer
An Investor is only entitled to transfer a Security or a Unit if:
(a) (Excluded offer): the offer or invitation to the proposed
transferee by the
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Securityholder or the Unitholder (as the case may be) in relation
to the Securities or Units (as the case may be) is an excluded
offer or an excluded invitation for the purposes of the
Corporations Law or complies with Division 3A of Part 7.12 of the
Corporations Law; and
(b) (Transfer complies with Series Supplement): the transfer would not
otherwise breach any restriction on transfer for the Securities or
Units (as the case may be) contained in the relevant Series
Supplement.
10.5 Trustee May Refuse to Register
The Trustee may refuse to register any Transfer if:
(a) (Not duly completed): if it is not duly completed, executed and
(if necessary) stamped;
(b) (Does not comply): it contravenes or fails to comply with the
terms of this Deed or the Series Supplement relating to the
Securities or Units (as the case may be); or
(c) (Contravention of Law): the transfer would result in a
contravention of or failure to observe the provisions of a law of
a State or Territory of the Commonwealth of Australia, or of the
Commonwealth of Australia.
10.6 Trustee Not Bound to Give Reasons
The Trustee is not bound to give any reason for refusing to register any
Transfer and its decision is final, conclusive and binding. If the
Trustee refuses to register a Transfer, it must, as soon as practicable
following that refusal, send to the transferor, and the party seeking to
take the transfer of the Security or Unit, notice of that refusal.
10.7 Registration of Transferee as Investor/1/
Subject to this clause 10, the Trustee must upon receipt of Transfer
register the transferee in the Register. No fee is to be charged for the
registration of any Transfer. The registration in the Register of a
transfer of a Unit or Security to a transferee will constitute the
passing of title in the Unit or Security to the transferee.
10.8 No Transfer if Register Closed
The Trustee may not register any Transfer whilst the Register is closed
for any purpose.
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/1/ As amended by Deed of Amendment dated 17 October 1997.
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10.9 Rights and Obligations of Transferee
A transferee of Securities or Units pursuant to this Deed has the
following rights and obligations from the time of registration:
(a) (Transferor's rights): all the rights which the transferor
previously had; and
(b) (Obligations of Investor): all the obligations of an Investor as
provided by this Deed and the corresponding Series Supplement as
if the transferee was originally a party to this Deed and the
Series Supplement.
10.10 Receipt of Transfers/3/
Subject to clause 10.11, a Transfer will be regarded as received by the
Trustee for the purposes of this Deed on the Business Day that the
Trustee actually receives the Transfer at the place at which the Register
is then kept, except that if a Transfer is actually received by the
Trustee after 3.30pm on a Business Day at the place at which the Register
is then kept, it will be regarded as having been received by the Trustee
for the purposes of this Deed on the next Business Day.
10.11 Transfer Received When Register Closed/4/
If a Transfer is received by the Trustee during a period when the
Register is closed or on any non-Business Day, the Transfer will be
regarded as having been received by the Trustee for the purposes of this
Deed on the first Business Day thereafter on which the Register is open.
10.12 Issue of Certificate
Whenever in respect of a Transfer the Trustee is required under this Deed
to register a person as a Securityholder or a Unitholder, the Trustee
must issue by mail to the transferee (at the address stated on the
Transfer) within 10 Business Days of such registration a Certificate to
the transferee in respect of the relevant Securities or Units (as the
case may be) and, where some but not all Securities or Units held by an
Investor have been transferred, issue a new Certificate (within 10
Business Days of the registration) to the transferor as confirmation of
the balance of the Securities or Units (as the case may be) registered in
the name of the transferor.
10.13 Execution of Certificate
A Certificate may be engraved, lithographed or printed and must be
signed, either manually, mechanically, electronically, by facsimile or by
other means agreed between the Manager and the Trustee, by an Authorised
Officer or other delegate of the Trustee. A Certificate is valid
--------------------------------------------------------------------------------
/3/ As amended by Deed of Amendment dated 17 October 1997.
/4/ As amended by Deed of Amendment dated 17 October 1997.
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notwithstanding that when the Certificate is issued the person whose
facsimile signature has been applied to the Certificate has died or
otherwise ceased to hold office.
10.14 Worn Out or Lost Certificate
If a Certificate becomes worn out or defaced, then upon production of it
to the Trustee, a replacement will be issued. If a Certificate is lost
or destroyed, and upon proof of this to the satisfaction of the Trustee
and the provision of such indemnity as the Trustee considers adequate, a
replacement Certificate will be issued. A fee not exceeding $10 may also
be charged by the Trustee for the new Certificate if it so requires.
10.15 Payments to Transferee
Subject to this Deed, upon entry of a transferee in the relevant
Register, the transferee is ipso facto entitled to receive any payments
then due or which become due to the holder of the relevant transferred
Securities or Units (as the case may be) and the Trustee is discharged
for any such payment made to the transferee and, without limiting the
foregoing, whether or not the entitlement to payment wholly or partly
arose or accrued prior to the transfer provided always that where a
transfer is registered after the closure of the Register but prior to the
date upon which any Investor Entitlement is due to be paid in respect of
the relevant transferred Securities or Units, then that Investor
Entitlement in respect of the relevant transferred Securities or Units
(as the case maybe) must be paid to the transferor and not the
transferee.
10.16 Marked Security Transfers
The Trustee must, unless the parties otherwise agree, provide marking
services in the manner set out in this clause 10.16 at each of the
Trustee's offices, or the offices of a third party appointed pursuant to
clause 9.10 in Sydney. If the Trustee or a third party appointed
pursuant to clause 9.10 is requested by a Securityholder to mark a
Security Transfer, the Trustee or any third party appointed pursuant to
clause 9.10 must so mark the Security Transfer. Until a period of 90
days (or such other period as determined by the Manager) has elapsed from
the date any Security Transfer is so marked, the Trustee or any third
party appointed pursuant to clause 9.10 must not register any Security
Transfer in respect of the Securities described in that Security Transfer
except that marked Security Transfer. The period referred to in this
clause 10.16 will not be extended or deemed to be extended by the closing
of the Register for any purpose.
10.17 Reliance on Documents
The Trustee is entitled to accept and assume the authenticity and
genuineness of any Transfer or other document unless the Trustee is
actually aware that the same is not authentic or genuine. The Trustee is
not bound to enquire into the authenticity or genuineness of any Transfer
or other document, nor incurs any liability for registering any Transfer
which is subsequently discovered to be a forgery or otherwise defective,
unless the Trustee had actual notice of such forgery or defect at the
time of registration of such Transfer.
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10.18 Specimen Signatures
The Trustee may (but need not) require each Investor to submit specimen
signatures (and in the case of a corporation may require those signatures
to be authenticated by the secretary or director of such Investor) of
persons authorised to execute Transfers on behalf of such Investor and is
entitled to assume (until notified to the contrary) that such authority
has not been revoked.
10.19 Persons Entitled on Transmission
If an Investor dies, the Trustee and the Manager will recognise only the
survivor or survivors (where the deceased was a joint holder) or the
executors or administrators (in all other cases) as having any title to
the Securities or Units registered in the name of the deceased.
10.20 Registration on Transmission
A person who becomes entitled to a Security or Unit (and gives evidence
of that entitlement to the Manager in a form satisfactory to the Manager
and the Trustee) because of the death, insolvency, bankruptcy, insanity
or other disability of an Investor is entitled to be registered as the
Investor or to nominate some other person to be registered as the
Investor.
10.21 Notice of Election
To effect a registration under clause 10.20 the person must give a
written notice to the Manager requesting the registration. If the
Securities or Units are to be registered in the name of a nominee of the
person, the person must also execute a transfer of the Securities or
Units to the nominee. All the provisions of this Deed relating to the
registration of transfers apply to such a notice or transfer as if it
were a transfer executed by a Securityholder or Unitholder.
10.22 Rights of Transmittee Prior to Registration
A person who becomes entitled to a Security or Unit because of the death,
insolvency, bankruptcy, insanity or other disability of an Investor is
entitled to receive and may give a discharge for all the money payable in
respect of the Security or Unit (as the case may be).
11. BANK ACCOUNTS
11.1 Separate Bank Accounts for each Series Trust
The Trustee must open a separate bank account with a Bank in respect of
each Series Trust.
11.2 Additional Bank Accounts
The Trustee may open additional bank accounts with a Bank in respect of a
Series Trust in accordance with the Series Supplement relating to that
Series Trust.
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11.3 Comply with Requirements of Series Supplement
Each bank account in relation to a Series Trust with a Bank must comply
with the requirements (if any) specified in the Series Supplement
relating to that Series Trust.
11.4 Identifying Name of Bank Account
Any bank accounts opened in accordance with this clause 11 must be opened
by the Trustee in its name and must identify the name of the relevant
Series Trust.
11.5 Restricted use of Bank Account
No bank account opened in accordance with this clause 11 may be used for
any purpose other than those of the relevant Series Trust in respect of
which it is opened.
11.6 Operation of Bank Account
The only authorised signatories for any bank account opened in accordance
with this clause 11 must be officers or employees of the Trustee.
11.7 Manager, Nominated Servicer and Nominated Seller Not to Deal with Bank
Accounts
Other than as set out in this Deed or the relevant Series Supplement,
none of the Manager, any Nominated Servicer nor any Nominated Seller may
deal with any bank account opened by the Trustee in respect of any Series
Trust or the moneys in any such account in any way. The Manager agrees
that it has no right of set-off, banker's lien, right of combination of
accounts, right to deduct moneys (other than Taxes in respect of a bank
account or moneys incorrectly credited to a bank account) or any other
analogous right or security in or against any funds held in any bank
account in respect of any Series Trust for any amount owed to the
Manager.
11.8 Payment of Moneys Into Bank Account
Except in respect of business transacted through Austraclear and subject
to this clause 11 and the corresponding Series Supplement, the Trustee
must pay into the bank account in relation to a Series Trust:
(a) (Initial settlement): moneys paid to the Trustee in initial
settlement and constitution of the Series Trust;
(b) (Subscription moneys): all subscription moneys raised in respect
of the Securities and the Units and other moneys deposited with
the Trustee in respect of the Series Trust, except where such
moneys are to be applied on the same day in the acquisition of the
Assets of the Series Trust, in which case the Trustee must see to
that application;
(c) (Proceeds): all proceeds of the Assets of the Series Trust;
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(d) (Money under Support Facilities): all moneys received under all
Support Facilities (if any) in respect of the Series Trust; and
(e) (Other Money): all other moneys received by the Trustee in respect
of the Series Trust.
11.9 Withdrawals
Subject to the corresponding Series Supplement, the Trustee must withdraw
funds from the bank account of a Series Trust and apply the same when
necessary for:
(a) (Purchasing Assets of the Series Trust): purchasing Assets of the
Series Trust in compliance with this Deed and the corresponding
Series Supplement and making payments required in connection with
Assets of the Series Trust;
(b) (Paying parties to Transaction Documents): making payments to
itself, the Manager, the Nominated Servicer, the Nominated Seller,
the Security Trustee and the Custodian and to any other persons of
amounts entitled to be paid to or retained by them under this Deed
and the other Transaction Documents for the Series Trust;
(c) (Paying Investors): making payments to the Investors in relation
to the Series Trust in accordance with this Deed and the
corresponding Series Supplement; and
(d) (Other payments): making any other payments permitted or
contemplated by this Deed, the corresponding Series Supplement and
the other Transaction Documents for the Series Trust.
12. INVESTMENT OF TRUST FUNDS
12.1 Principal Investment Policy
The principal investment policy of each Series Trust is the acquisition
of Approved Financial Assets of the nature specified in the Series
Supplement relating to that Series Trust.
12.2 Investment Proposals
(a) (Manager's Investment Proposals): The Manager may from time to
time give to the Trustee a written proposal for the acquisition of
the Assets of a Series Trust and for the sale, transfer, exchange
or other realisation of or dealing with the Assets of a Series
Trust and must give to the Trustee all directions as the Trustee
may reasonably require in relation to all such matters.
(b) (Sufficient Details): The Manager's proposal must contain details
thereof, together with all such information and evidence, as is
reasonably necessary to show that the
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implementation of the proposal is permitted under this Deed and
the corresponding Series Supplement.
(c) (Discretion): The Manager has the fullest discretion to recommend
in the proposal the time and mode of and the broker, contractor or
agent (if any) to be engaged for the implementation of the
proposal including the right to recommend a postponement for so
long as the Manager in its discretion thinks fit.
(d) (Trustee Must Implement Investment Proposals): If:
(i) the Trustee receives any such written proposal from the
Manager in relation to a Series Trust;
(ii) the Trustee is satisfied (acting reasonably) that the
action referred to in the proposal is in accordance with
the this Deed and the relevant Series Supplement;
(iii) the Trustee is satisfied that all conditions precedent in
the Transaction Documents relating to the Series Trust (if
any) have been met; and
(iv) the Manager's proposal relates to the Approved Financial
Assets of the Series Trust or to an Authorised Short-Term
Investment,
then the Trustee must effect and pay for any such investments,
purchase, transfer or alteration of investment to the extent of
funds held by it in relation to the Series Trust.
12.3 Maturity of Authorised Short-Term Investments
The Manager must ensure that any Authorised Short-Term Investments in
relation to a Series Trust to the extent that these represent moneys
required for the payment of the Liabilities of the Series Trust are
either at call or have a scheduled maturity on a date on or before the
due date for the payment of those Liabilities.
12.4 Limitation on Acquisition of Authorised Short-Term Investments
The Manager must only give to the Trustee as a trustee of a Series Trust
a proposal to acquire Authorised Short-Term Investments where the
Authorised Short-Term Investment, or the issuer in respect thereof, at
the time of the proposed acquisition, has at least the Required Credit
Rating for that Series Trust.
12.5 No Sale of Authorised Short-Term Investments Prior to their Maturity Date
Save as otherwise permitted by this Deed or the Series Supplement
relating to a Series Trust, no Authorised Short-Term Investment of the
Series Trust may be sold prior to its maturity date except where:
(a) (Rating downgrade): the sale occurs because the Authorised Short-
Term Investment,
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or the issuer in respect thereof, no longer has at least the
Required Credit Rating for the Series Trust and the Trustee has
received written confirmation from the Manager that the sale will
not cause the rating of the Securities by each Rating Agency in
respect of that Series Trust to be downgraded; or
(b) (No loss will be suffered): the sale of the Authorised Short-Term
Investment will not result in a loss being suffered by the Series
Trust; or
(c) (Sale not prejudicial): the sale is not, in the opinion of the
Manager, prejudicial to the interests of the Investors referable
to the Series Trust.
12.6 Voting Rights of Investments
(a) (Trustee must Exercise in Accordance with Manager's Directions):
Subject to this Deed, the Trustee must in relation to each Series
Trust, exercise all voting rights conferred by the Assets of that
Series Trust in the manner the Manager directs from time to time.
At the request and expense of the Manager, the Trustee must
execute, deliver and appoint or cause to be executed, delivered
and appointed the necessary proxies, attorneys and representatives
to enable the Manager or its nominees to exercise such voting
rights.
(b) (No Responsibility for Votes Not Cast): Subject to this Deed,
neither the Manager nor the Trustee nor any holder of any proxy or
power of attorney referred to in clause 12.6(a) is liable or
responsible for any vote cast or not cast including, without
limitation, in connection with the management of any entity in
which the Assets of any Series Trust are held.
12.7 Assets and Liabilities of Series Trust
The Trustee must not apply the Assets of a Series Trust to meet any
Liabilities of any other Series Trust.
12.8 No Aggregation of Liabilities
The Trustee must not:
(a) (Aggregated with other Liabilities): aggregate the Liabilities of
a Series Trust with the Liabilities of any other Series Trust; or
(b) (Offset against other Assets of the Series Trust): set-off the
Liabilities of a Series Trust against any other Assets of the
Series Trust, other than the Assets of the Series Trust to which
those Liabilities relate.
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12.9 Designation and Discharge of Liabilities
The Trustee must allocate to each Series Trust those Liabilities which in
the opinion of the Manager are properly referable to that Series Trust
(including, without limitation, those Liabilities which were incurred in
purchasing the Assets of that Series Trust). Subject to the provisions of
this Deed, the Trustee must pay out of a Series Trust (or make adequate
provision for) all Liabilities in connection with that Series Trust.
12.10 No Mixture of Assets
The Trustee must account for the Assets of each Series Trust separately
from the Assets of all other Series Trusts and must account for the
Liabilities which are referable to each Series Trust separate and apart
from the Liabilities which are referable in all other Series Trusts but
must (after consultation with the Manager) make a fair apportionment
between Series Trusts of any property coming into the hands of the
Trustee which belongs to one or more Series Trusts.
12.11 No Co-mingling
The Trustee must not co-mingle any money held by the Trustee in respect
of a Series Trust with any money held by the Trustee in respect of any
other Series Trust.
12.12 Series Trusts and Other Trusts
The Trustee may mix the Assets of a Series Trust and the Assets of any
Other Trust constituted by the Series Supplement in relation to that
Series Trust, and may co-mingle money held in respect of a Series Trust
and that Other Trust, to the extent set out in or contemplated by that
Series Supplement.
13. INCOME AND CAPITAL OF A SERIES TRUST
13.1 Determination of Net Accounting Income
The Manager must determine in accordance with the Approved Accounting
Standards:
(a) (Net Accounting Income): the net income of a Series Trust in
respect of each Financial Year of the Series Trust and may
determine whether any receipt, profit, gain, payment, loss,
outgoing, provision or reserve or any sum of money or investment
in a Financial Year is or is not to be treated as being on income
or capital account of the Series Trust (including treating the
transfer of amounts from the capital of the Series Trust as income
of the Series Trust for any purpose); and
(b) (Provisions and reserves): whether and the extent to which any
provisions and reserves need to be made for the Financial Year.
In particular, the Manager must make such determinations as are necessary
to ensure that any tax
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liability in respect of a Series Trust in respect of a Financial Year
under Division 6 of the Tax Act is borne by the Unitholders of the Series
Trust as contemplated by clause 13.4 and not by the Trustee.
13.2 Determination of Net Tax Income
The Manager must determine the Net Tax Income of each Series Trust for
each Financial Year and in doing so, it may have regard to the
determinations made by it under clause 13.1.
13.3 Manager to Make Allocations
Having regard to the determinations made under clauses 13.1 and 13.2, the
Manager must make the allocation in clause 13.4.
13.4 Present Entitlement
On the last day of each Financial Year of a Series Trust, the Unitholders
of the Series Trust are to be allocated from the Assets of the Series
Trust, and are presently entitled to, their pro-rata share of the whole
of the Net Accounting Income of that Series Trust in respect of that
Financial Year of the Series Trust in accordance with the Series
Supplement for the Series Trust.
14. REPRESENTATIONS AND WARRANTIES
14.1 General Representations and Warranties
Each of the Trustee and the Manager represents and warrants in respect of
itself to the other that:
(a) (Due incorporation): it has been duly incorporated as a company
limited by shares in accordance with the laws of its place of
incorporation and is validly existing under those respective laws
and has power and authority to carry on its business as it is now
being conducted;
(b) (Power to enter and observe this Deed): it has power to enter into
and observe its obligations under this Deed;
(c) (Authorisations): it has in full force and effect the
authorisations necessary to authorise its execution, delivery and
performance of this Deed;
(d) (Obligations enforceable): its obligations under this Deed are
valid, binding and enforceable against it in accordance with their
terms subject to stamping and necessary registration and except as
such enforceability may be limited by any applicable bankruptcy,
insolvency, reorganisations, moratorium or trust or other similar
laws affecting creditor's rights generally;
(e) (This Deed does not contravene constituent documents): this Deed
does not
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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;
(f) (No Insolvency Event): no Insolvency Event has occurred and is
subsisting in respect of it; and
(g) (No Trusts): (represented and warranted by the Manager only) it
does not enter into this Deed in the capacity of a trustee of any
trust or settlement.
14.2 Repetition of Representations and Warranties
The representations and warranties in clause 14.1 are taken to be also
made on each Closing Date after the date of this Deed.
15. MANAGER'S DUTIES AND UNDERTAKINGS
15.1 Manager's General Duty
Having regard to the Manager's powers and discretions under this Deed and
the corresponding Series Supplement, the Manager must manage the Assets
forming part of each Series Trust to the extent that they are not
serviced by the Nominated Servicer for the Series Trust.
15.2 Manager's Covenants
The Manager covenants with the Trustee in respect of each Series Trust
that it will until the Series Trust is terminated in accordance with this
Deed or until it has retired or been removed as Manager in accordance
with this Deed:
(a) (Use best endeavours to conduct business properly): use its best
endeavours to carry on and conduct its business to which its
obligations and functions under this Deed and the other
Transaction Documents relating to the Series Trust in a proper and
efficient manner;
(b) (Do all necessary things): do everything and take all such actions
which are necessary (including, without limitation, obtaining and
complying with all material authorisations, licences and approvals
and laws as are appropriate) to ensure that it and the Trustee in
respect of the Series Trust are able to exercise all their
respective powers and remedies and perform all their respective
obligations under this Deed and the other Transaction Documents
relating to the Series Trust and all other deeds, agreements and
other arrangements entered into by the Manager and the Trustee
pursuant to this Deed or any of such other Transaction Documents
except all necessary actions that the Trustee is obliged to
perform under clause 16.3(c) of this Deed;
(c) (Act honestly): act honestly and in good faith in the
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exercise of its discretions under this Deed and under the Series
Supplement in relation to the Series Trust;
(d) (Exercise diligence): exercise at least the degree of skill, care
and diligence that an appropriately qualified manager of trusts
equivalent to the Series Trusts would reasonably be expected to
exercise, having regard to the interests of the Investors in
relation to the Series Trust; and
(e) (Exercise prudence): exercise such prudence as a prudent person of
business would exercise in performing its express functions and in
exercising its discretions under this Deed and the other
Transaction Documents relating to the Series Trust, having regard
to the interests of the Investors in relation to the Series Trust;
(f) (Allow Trustee and Auditor to inspect): make available for
inspection by the Trustee and the Auditor during normal business
hours and after the receipt of reasonable notice, the books of the
Manager relating to the Series Trust whether kept at its
registered office or elsewhere;
(g) (Give Trustee and Auditor information): give to the Trustee and
the Auditor written or oral information which either may
reasonably require with respect to all matters in possession of
the Manager relating to the Series Trust;
(h) (Make information available): make available or ensure that there
is made available to the Trustee the details within the Manager's
knowledge or possession that the Trustee requests with respect to
all matters relating to the Series Trust;
(i) (Pay Trustee): pay to the Trustee within one Business Day of
receipt all money that is payable by the Manager to the Trustee
under this Deed or the corresponding Series Supplement in relation
to the Series Trust;
(j) (Audited Accounts): give the Trustee the audited Accounts of the
Manager for each financial year of the Manager within 120 days of
the end of that year;
(k) (Notify material misrepresentations): promptly notify the Trustee
if it becomes actually aware that any material representation or
warranty made or taken to be made by or on behalf of the Manager
in connection with any Transaction Document relating to the Series
Trust is incorrect when made or taken to be made;
(l) (Notify defaults): promptly notify the Trustee if it becomes
actually aware of any Manager Default and at the same time or as
soon as possible thereafter provide full details of such Manager
Default;
(m) (Certificate): within two Business Days of a request from the
Trustee, provide to the Trustee a certificate signed by two
Authorised Officers of the Manager on behalf of the
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Manager which states whether a Manager Default has occurred (a
request under this clause will not be made by the Trustee more
than once in each six calendar month period, unless the Trustee
when making the request sets out reasonable grounds for believing
that a Manager Default is subsisting);
(n) (Not recommend release of Assets): not recommend the release of
any Assets of the Series Trust to the Nominated Seller, the
Nominated Servicer or any other party except in accordance with
the express provisions of this Deed or the other Transaction
Documents relating to the Series Trust, without the prior written
permission of the Trustee;
(o) (Not merge without assumption): not merge or consolidate into
another entity, unless the surviving entity assumes the
obligations of the Manager under the Transaction Documents
relating to the Series Trust and unless the Rating Agencies
relating to that Series Trust have received at least 15 Business
Days prior notice in writing from the Manager of the proposed
merger or consolidation and such Rating Agencies confirm within 10
Business Days of such notice that the then rating by each such
Rating Agency in respect of the Securities will not be downgraded
or withdrawn as a result of the proposed merger or consolidation;
(p) (Filings): make all filings required in connection with the Series
Trust or Assets of the Series Trust with any Governmental Agency
in Australia;
(q) (Tax returns): prepare and submit to the Trustee for signing and
filing on a timely basis all income or other Tax returns or
elections required to be filed with respect to a Series Trust and
ensure that the Trustee is directed to pay any Taxes required to
be paid by a Series Trust;
(r) (Prepare consents and notices): prepare and mail any consents or
notices required to be provided by the Trustee under this Deed or
any other Transaction Documents for the Series Trust; and
(s) (Comply with other undertakings): promptly comply with all other
undertakings given by the Manager in the Series Supplement, or
another Transaction Document, in relation to the Series Trust.
15.3 Manager to have discretion
Subject to this Deed, the Manager has an absolute discretion with respect
to all the powers, authorities and discretions vested in it whether in
relation to the manner or time of exercise.
15.4 Act on Expert Advice
The Manager may obtain and act upon the opinion, advice or information
obtained from barristers, solicitors, valuers, surveyors, contractors,
land agents, brokers, letting agents, property managers,
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qualified advisers and other experts whether instructed by the Manager,
any Nominated Servicer, any Nominated Seller or by the Trustee. The
Trustee must pay from the relevant Series Trust the reasonable and proper
fees, disbursements and expenses, duties and outgoing payable in relation
to any such person.
15.5 Negotiation in Relation to Support Facilities
The Manager must ensure, to the extent that it is within the Manager's
power, that all steps which it thinks are desirable are taken in
connection with the negotiation of the documentation to effect on a
timely basis any Support Facilities for each Series Trust.
15.6 Monitor Support Facilities
The Manager must monitor, to the extent that it is within the Manager's
power, all Support Facilities in respect of a Series Trust. The Manager
must properly perform the functions which are necessary for it to perform
under any Support Facility.
15.7 Manager's Power to Delegate
The Manager, in carrying out and performing its duties and obligations in
relation to each Series Trust, may:
(a) (Appoint attorneys): by power of attorney appoint any person to be
attorney or agent of the Manager for those purposes and with those
powers, authorities and discretions (not exceeding those vested in
the Manager) as the Manager thinks fit including, without
limitation, a power to sub-delegate and a power to authorise the
issue in the name of the Manager of documents bearing facsimile
signatures of the Manager 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
Manager as the Manager thinks necessary or proper for those
purposes and with those powers, authorities and discretions (not
exceeding those vested in the Manager) as the Manager thinks fit,
provided that, in each case, the Manager must not delegate to such third
parties a material part of its duties and obligations as Manager in
relation to a Series Trust.
15.8 Manager May Replace or Suspend Attorneys
The Manager may replace or suspend any attorney, agent or sub-agent
appointed under clause 15.7 for any cause or reason as the Manager may in
its sole discretion think sufficient with or without assigning any cause
or reason.
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15.9 Manager Remains Liable for its Agents
The Manager at all times remains liable for:
(a) (Acts and omissions): the acts or omissions of any person
appointed under clause 15.7(a) or (b) to the extent that the
Manager would itself be liable; and
(b) (Fees and expenses): the payment of fees of any person appointed
under clause 15.7(a) or (b).
15.10 No Power to bind Trustee, Nominated Servicer or Nominated Seller
The Manager in exercising its powers, authorities and discretions vested
in it and carrying out and performing its duties and obligations in
relation to any Series Trust or any Asset of a Series Trust, whether
pursuant to this Deed, a Series Supplement, any other Transaction
Document or any other deed, agreement or other arrangement, does not (nor
does any of its delegates) have any power to bind the Trustee, any
Nominated Servicer or any Nominated Seller, otherwise than as expressly
provided in this Deed, such Series Supplement, the other Transaction
Documents or such other deed, agreement or arrangement.
15.11 Indemnity for Legal costs
Subject to clause 15.13, the Manager is indemnified out of each Series
Trust for all legal costs and disbursements (on a full indemnity basis
and in the case of solicitors' costs, calculated at each solicitor's
usual charge-out rate) and all other costs, disbursements, outgoings and
expenses reasonably incurred by the Manager in connection with:
(a) (Enforcement): the enforcement or contemplated enforcement of, or
preservation of rights under; and
(b) (Litigation): without limiting the generality of paragraph (a),
the initiation, defence, carriage and settlement of any action,
suit, proceeding or dispute in respect of,
this Deed, or any other Transaction Document, in relation to the Series
Trust or otherwise under or in respect of the Series Trust.
15.12 Indemnity for Legal Costs for Alleged Default
The Manager is indemnified and is entitled to be reimbursed out of the
relevant Series Trust in accordance with clause 15.11 in respect of all
legal costs and disbursements (calculated in the manner provided for in
clause 15.11) reasonably incurred by the Manager in connection with court
proceedings brought against it alleging negligence, fraud, wilful default
or breach of duty under this Deed. However, the Manager is not entitled
to such a right of indemnity or reimbursement where there is a
determination by the relevant court of negligence, fraud, wilful default
or breach of duty by the Manager (provided that until such determination,
the Manager is entitled to such right of
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indemnity or reimbursement but must upon such a determination repay to
the Trustee any amount paid to it pursuant to this clause).
15.13 Extent of Liability of Manager
The Manager is not personally liable to indemnify the Trustee or to make
any payments to any other person in relation to any Series Trust except
for any fraud, negligence, wilful default or breach of duty by it in its
capacity as Manager of the Series Trust.
15.14 Right of Indemnity
The Manager is indemnified out of each Series Trust in respect of any
liability, cost or expense properly incurred by it in its capacity as
Manager of the Series Trust.
15.15 Further Limitation of Liability of Manager
If the Manager relies in good faith on an opinion, advice, information or
statement given to it by a person referred to in clause 15.4, it is not
liable for any misconduct, mistake, oversight, error of judgment,
forgetfulness or want of prudence on the part of that person except when
the person is not independent from the Manager. A person is regarded as
independent notwithstanding that the person acts or has acted as adviser
to the Manager so long as separate instructions are given by the Manager
to that person.
15.16 Neither Manager nor Delegate liable
Neither the Manager nor its delegate appointed under this Deed or any
other Transaction Document is liable for:
(a) (Loss and liabilities except in respect of default of Manager):
any loss, costs, liabilities or expenses arising out of the
exercise or non-exercise of its discretions under this Deed, any
Transaction Document or otherwise in relation to a Series Trust
except to the extent that any of the foregoing is caused by the
Manager's or such delegate's own fraud, negligence or wilful
default;
(b) (Loss and liabilities arising out of Trustee, Nominated Seller or
Nominated Servicer exercise of discretion): any loss, costs,
liabilities or expenses arising out of the exercise or non-
exercise of a discretion on the part of the Trustee, any Nominated
Seller or any Nominated Servicer or any act or omission of the
Trustee, any Nominated Seller or any Nominated Servicer except to
the extent that any of the foregoing is caused by the Manager's or
such delegate's own fraud, negligence or wilful default;
(c) (Failure to check): any loss, costs, liabilities or expenses
caused by its failure to check any calculation, information,
document, form or list supplied or purported to be supplied to it
by the Trustee, any Nominated Seller, any Nominated Servicer or
any other person except to the extent that any of the foregoing is
caused by the Manager's or such
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delegate's own fraud, negligence or wilful default;
(d) (Other acts or omissions): any other act or omission on its part
except to the extent that the act or omission is fraudulent,
negligent or in wilful default; or
(e) (Trustee Default): any Trustee Default except to the extent that
it is caused by the Manager's or such delegate's fraud, negligence
or wilful default.
16. TRUSTEE'S POWERS, DUTIES, COVENANTS, INDEMNITIES AND LIABILITIES
16.1 Trustee's Powers
Subject to this Deed, the Trustee has all the powers in respect of the
Assets of each Series Trust, which it could exercise if it were the
absolute and beneficial owner of the relevant Assets.
16.2 Act in Interests of Unitholders and the Securityholders
The Trustee agrees to act in the interests of the Unitholders and
Securityholders of each Series Trust on the terms and conditions of this
Deed and of the relevant Series Supplement. If there is a conflict
between the interests of the Unitholders and the Securityholders of a
Series Trust, the Trustee is empowered to, and must, act in the interests
of the Securityholders.
16.3 Trustee's Covenants
The Trustee covenants with the Manager, with the intent that the benefit
of these covenants extends not only to the Manager, but also to the
Unitholders and the Securityholders of the Series Trust jointly and to
each of them severally, that it will in respect of each Series Trust:
(a) (Act continuously): act continuously as Trustee until the Series
Trust is terminated in accordance with this Deed or until it has
retired or been removed in accordance with this Deed;
(b) (Exercise due diligence): exercise all due diligence and vigilance
in carrying out its functions and duties and in protecting the
rights and interests of the Unitholders and the Securityholders in
relation to the Series Trust;
(c) (Do all things necessary): do everything and take all such actions
which are necessary (including, without limitation, obtaining all
such authorisations and approvals as are appropriate) to ensure
that it is able to maintain its status as trustee of the Series
Trust;
(d) (Give reasonable assistance): give the Manager all such
reasonable assistance as the Manager may require to enable the
Manager to comply with its obligations under clause 15.2(b) of
this Deed;
(e) (Retain Assets safely): subject to this Deed and the corresponding
Series Supplement
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retain the Assets of the Series Trust in safe custody and hold
them on trust for the Unitholders of the Series Trust upon the
terms of this Deed and the Series Supplement;
(f) (Not sell, Encumber etc.): not sell, grant a Security Interest
over or part with the possession of any of the Assets of the
Series Trust (or permit any of its officers to do so) except as
permitted by this Deed, the Series Supplement of the Series Trust
and the Security Trust Deed (if any) relating to the Series Trust;
(g) (Forward notices): forward promptly to the Manager all notices,
reports, circulars and other documents received by it as holder of
the Assets of the Series Trust;
(h) (Maintain Support Facilities): use its best endeavours having
regard to its powers, duties and obligations under this Deed and
the corresponding Series Supplement to ensure that each Support
Facility in relation to the Series Trust remains in full force and
effect in respect of itself at all times during the period that
any Securities relating to the Series Trust remain outstanding;
(i) (Act honestly): act honestly and in good faith in the performance
of its duties and in the exercise of its discretions under this
Deed and the corresponding Series Supplement;
(j) (Exercise diligence and prudence): exercise such diligence and
prudence as a prudent man of business would exercise in performing
its express functions and in exercising its discretions hereunder,
having regard to the interests of the Investors of the Series
Trust;
(k) (Use best endeavours): use its best endeavours to carry on and
conduct its business in so far as it relates to this Deed and the
corresponding Series Trust in a proper and efficient manner;
(l) (Maintain title): use its best endeavours to ensure that the
Trustee's title to each Series Trust Asset of the Series Trust is
maintained; and
(m) (Notify Manager): notify the Manager promptly after the Trustee
becomes actually aware of the occurrence of any Trustee Default
and at the same time or as soon as possible thereafter provide
full details of such Trustee Default.
16.4 Specific Powers of Trustee
Without limiting the generality of clause 16.1, or the other powers of
the Trustee contained in this Deed, but subject to the limitations on the
Trustee imposed pursuant to this Deed, the Trustee has full power to do
the following (which are to be construed as separate and independent
powers):
(a) (Acquire): to accept, select, acquire, invest in, dispose of or
deal with any Assets in accordance with the written proposals of
the Manager;
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(b) (Purchase and sell): to purchase and sell any Assets of a Series
Trust for cash or upon terms in accordance with the written
proposals of the Manager;
(c) (Enter into Transaction Documents): to enter into, perform and,
subject to any restrictions contained in clauses 16.21 and 16.22,
enforce any Transaction Documents in relation to a Series Trust
containing such terms and conditions as the Manager thinks fit and
are acceptable to the Trustee;
(d) (Issue Securities): to Borrow money as trustee of a Series Trust
by the issue of Securities as trustee of the Series Trust as
provided for in this Deed and the Series Supplement relating to
the Series Trust;
(e) (Other Borrowings): to otherwise Borrow money as trustee of a
Series Trust on such terms and conditions as the Manager thinks
fit and are acceptable to the Trustee. If at the time of the
proposed Borrowing in relation to a Series Trust, Securities are
outstanding in relation to the Series Trust and are rated by a
Rating Agency in relation to the Series Trust, the Trustee may
only enter into such Borrowing if the Trustee receives a
certificate from the Manager that the proposed Borrowing, and any
Security Interest to be granted in connection with the Borrowing,
will not result in a reduction or withdrawal of the rating
assigned by such Rating Agency to such Securities;
(f) (Grant security): to secure any such Borrowing in relation to a
Series Trust by the grant of a Security Interest (including,
without limitation, the Charge) over any or all of the Assets of
the Series Trust on such terms and conditions as the Manager
thinks fit and are acceptable to the Trustee;
(g) (Appoint Custodian): to appoint a Nominated Seller to undertake
custodial duties in relation to the Approved Financial Assets of a
Series Trust in accordance with the provisions of the Series
Supplement for the Series Trust or to appoint a Custodian in
accordance with the Series Supplement to perform such custodial
duties on such terms and conditions as the Manager thinks fit and
are acceptable to the Trustee(subject to the limitations (if any)
contained in the Series Supplement for the Series Trust);
(h) (Give representations and warranties): give any representation,
warranty, indemnity or other undertaking required in respect of
any Transaction Document or other transaction in any way relating
to a Series Trust and notwithstanding that the subject matter of
such representation, warranty, indemnity, or other undertaking may
refer to the Trustee in its personal capacity or otherwise to the
Trustee's personal affairs as the Manager considers necessary or
desirable but:
(i) only in accordance with the Manager's directions from time
to time; and
(ii) to the extent that the subject matter of such
representation, warranty, indemnity or undertaking does
refer to the Trustee in its personal capacity such
representation, warranty, indemnity or undertaking is
acceptable to the Trustee in its absolute discretion;
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(i) (Insure): to insure any Asset of a Series Trust for amounts, on
conditions and for types of insurance, determined to be necessary
by the Manager;
(j) (Attend meetings): to attend and vote at meetings in accordance
with the Manager's written directions;
(k) (Give indemnities): to give an indemnity to such persons and
against such costs, expenses and damages as the Manager considers
necessary or desirable but only in accordance with the Manager's
directions from time to time;
(l) (Pay fees and expenses): to pay all fees and expenses of any
Series Trust which were properly incurred and payable out of the
relevant Series Trust and (subject to clause 16.26) approved by
the Manager;
(m) (Execute proxies): to execute all such proxies (subject to clause
12.6), powers of attorney and other instruments as may be
necessary or desirable to enable the Trustee, the Manager, any
Nominated Seller, any Nominated Servicer or any officer, delegate
or agent of any of the foregoing to exercise any power, discretion
or right of the Trustee;
(n) (Lease): subject to the Nominated Servicer's functions and
obligations under the corresponding Series Supplement in relation
to a Series Trust, to lease or sub-lease any real property, or act
as bailor or bailee of any chattels;
(o) (Discharge and release): subject to the Nominated Servicer's
functions and obligations under the corresponding Series
Supplement in relation to a Series Trust, to grant any form of
discharge or release or partial discharge or release of any
Approved Financial Asset in the manner permitted by this Deed and
the corresponding Series Supplement;
(p) (Delegate): to appoint, as permitted by clause 16.8:
(i) any person to be delegate, attorney, agent or sub-agent of
the Trustee for such purposes and with such powers,
discretions and authorities as it thinks fit (not exceeding
those vested in the Trustee) with power for the delegate,
attorney, agent or sub-agent to sub-delegate any such
power, authorities or discretions and also to authorise the
issue in the name of the Trustee of documents bearing
facsimile signatures of the Trustee or of the attorney or
agent either with or without proper manuscript signatures
of their officers on them; or
(ii) without limiting the generality of the foregoing, the
Manager as delegate of the Trustee to perform any of the
Trustee's obligations and to exercise any of the Trustee's
powers, discretions and authorities in respect of any
Support Facility;
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(q) (Exercise powers through Austraclear): at the written direction of
the Manager, exercise any of its powers and perform any of its
obligations under this Deed or any other Transaction Document
through or in conjunction with Austraclear;
(r) (Register Austraclear): at the written request of the Manager,
register Austraclear as the holder of Securities, and to lodge
Security Transfers with Austraclear, to facilitate transactions
through Austraclear's system;
(s) (Give waivers): at the written direction of the Manager, give any
waiver, time or indulgence to any person on such terms as it may
in its discretion decide;
(t) (Legal proceedings): subject to the restrictions contained in
clauses 16.21 and 16.22, institute, prosecute, defend, settle and
compromise legal or administrative proceedings of any nature
whatsoever and generally to enforce and pursue its rights pursuant
to and in respect of Assets;
(u) (Power of sale): subject to the Nominated Servicer's functions and
obligations under the corresponding Series Supplement in relation
to a Series Trust, exercise any power of sale arising on default
under any Security Interest forming part of the Assets of the
Series Trust or any other rights or remedy accruing in respect of
the Approved Financial Assets of the Series Trust;
(v) (Series Supplement): exercise any other power in relation to a
Series Trust or the Assets of a Series Trust conferred on the
Trustee by the Series Supplement for the Series Trust; and
(w) (Necessary and incidental): subject to clause 16.27, with the
agreement of the Manager to do all such things incidental to any
of the foregoing powers or necessary or convenient to be done for
or in connection with any Series Trust or the Trustee's functions
under this Deed.
16.5 Refusal to Exercise Powers
Notwithstanding anything in clause 16.4, the Trustee may refuse to comply
with any instruction or direction from the Manager, the Nominated
Servicer or the Nominated Seller in respect of a Series Trust where it
reasonably believes that in so doing the rights and interests of the
Unitholders and Securityholders in respect of that Series Trust are
likely to be materially prejudiced by so complying (if the Trustee
purports to rely on this power it must at the time of so refusing, give
reasons for its grounds to the Manager, the Nominated Servicer or the
Nominated Seller (as the case may be)).
16.6 Act on Expert Advice
The Trustee may obtain and act upon the opinion, advice or information
obtained from solicitors, barristers, surveyors, valuers, contractors,
land agents, brokers, letting agents, property managers, qualified
advisers and other experts whether instructed by the Manager or by the
Trustee which are
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necessary, usual or desirable for the purpose of enabling the Trustee to
be fully and properly advised and informed in order that it may properly
exercise its powers and obligations under this Deed.
16.7 Absolute Discretion
Subject to the Trustee duly observing its duties, covenants and
obligations under this Deed, the Trustee has absolute discretion as to
the exercise or non-exercise of the trusts, powers, authorities and
discretions vested in it by this Deed.
16.8 Delegation of Duties of Trustee
The Trustee must not delegate to any person any of its trusts, duties,
powers, authorities and discretions under this Deed or a Series
Supplement in relation to a Series Trust except:
(a) (To Manager, Nominated Servicer, Nominated Seller, Security
Trustee): to the Manager, the Nominated Servicer, the Nominated
Seller or the Security Trustee in accordance with the provisions
of this Deed or any other Transaction Document relating to the
Series Trust;
(b) (Related Body Corporate): subject to clause 16.9 to a Related Body
Corporate of the Trustee; or
(c) (As otherwise permitted): in accordance with the provisions of
this Deed or the Series Supplement relating to the Series Trust.
16.9 Related Body Corporate of the Trustee
Where the Trustee delegates any of its trusts, duties, powers,
authorities and discretions to any person who is a Related Body Corporate
of the Trustee, the Trustee at all times remains liable for the acts or
omissions of such Related Body Corporate and for the payment of fees of
that Related Body Corporate when acting as delegate.
16.10 Indemnity of Trustee
The Trustee is entitled to be indemnified out of the Assets of a Series
Trust for any liability properly incurred by the Trustee in performing or
exercising any of its powers or duties in relation to the Series Trust.
This indemnity is in addition to any indemnity allowed by law, but does
not extend to liabilities arising:
(a) from a breach of trust by the Trustee; or
(b) from the Trustee's fraud, negligence or wilful default.
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Except in the case of fraud, negligence or wilful default on the part of
the Trustee or its officers, employees, agents or delegates (where
applicable under this Deed), the Trustee is not liable to any person
(including, without limitation, any Securityholder or Unitholder), nor
will any such person be entitled to enforce any rights against the
Trustee, to any greater extent than the Trustee is entitled to recover
through its right of indemnity from the Assets of the Series Trust to
which the liability or rights relate. If any such person does not recover
all moneys owing to it under such liabilities or rights, it may not seek
to recover the shortfall by bringing proceedings against the Trustee in
its personal capacity or in its capacity as the trustee of any other
trust or by applying to have the Trustee wound up or proving in the
winding up of the Trustee unless another creditor has initiated
proceedings to wind up the Trustee.
16.11 Trustee Indemnified for Costs etc
The Trustee, in addition to its remuneration in accordance with clause
18.2 and without limitation to clause 16.10, is to be indemnified and is
entitled to be reimbursed out of a Series Trust, in respect of all costs,
charges and expenses which it may incur in respect of and can attribute
to that Series Trust in accordance with this Deed and the Series
Supplement for the Series Trust in relation to the following matters:
(a) (Disbursements): all disbursements in connection with the
acquisition or proposed acquisition, maintenance, insurance,
custody or disposal of or any other dealing with any Asset of the
Series Trust including, without limitation, commission, brokerage
and stamp duty (other than costs which the Nominated Seller has
agreed to pay pursuant to this Deed or the Series Supplement
relating to the Series Trust);
(b) (Auditor): the remuneration of the Auditor and any reasonable
expenses of the Auditor sustained in the course of the performance
of the duties as an Auditor of the Series Trust and the fees, if
any, charged by a registered tax agent for the preparation and
lodgement of taxation returns for the Series Trust;
(c) (Units): any costs, charges, liabilities and expenses which the
Trustee may incur in respect of, and can attribute to it, being
trustee of the Series Trust in respect of the Units issued in
relation to the Series Trust;
(d) (Taxes): all Taxes payable in respect of the Series Trust,
including stamp duty payable on distribution cheques;
(e) (Transaction Documents): all costs, charges, expenses and
liabilities in relation to or under any Transaction Document in
relation to the Series Trust;
(f) (Postage and printing): the costs of postage and printing of all
cheques, accounts, statements, notices, Certificates and all other
documents required to be posted to the Investors under this Deed
or the Series Supplement in respect of the Series Trust;
(g) (Valuations): the costs of any valuation of any Assets of the
Series Trust;
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(h) (Bank account costs): any expenses incurred in connection with the
bank accounts of the Trustee in relation to the Series Trust and
bank fees (including but not limited to account keeping fees) and
other bank or government charges (including but not limited to
bank account debits tax and charges in respect of financial
institutions duty) incurred in connection with the keeping of or
the transaction of business through the bank accounts of the
Trustee in relation to the Series Trust;
(i) (Attorney's fees): any fees payable to attorneys, managers,
consultants, advisers and experts engaged by the Trustee or the
Manager in relation to a Series Trust to the extent that those
fees are reasonable in amount and properly incurred;
(j) (Austraclear's fees): any fees payable to Austraclear;
(k) (Custodial fees): any fees payable to the Nominated Seller, the
Trustee, or any other person for performing custodial duties in
accordance with the Series Supplement relating to the Series
Trust;
(l) (Other fees): any other fees, charges and amounts which are paid
or payable to any person appointed or engaged by the Trustee
pursuant to this Deed or the Series Supplement for the Series
Trust to the extent that the fees, charges and amounts would be
payable or reimbursable to the Trustee under any provision of this
clause or under any other provision of this Deed or the Series
Supplement if the services performed by the person so appointed or
engaged had been carried out directly by the Trustee and to the
extent that those fees, charges and amounts are reasonable in
amount and properly incurred;
(m) (Retirement and removal): all costs in or in connection with the
retirement or removal of the Trustee, the Nominated Servicer or
the Manager under this Deed in relation to the Series Trust and
the appointment of any person in substitution to the extent that
those costs are reasonable in amount and properly incurred;
(n) (Legal costs connected with documents): all costs and expenses (on
a full indemnity basis) in connection with:
(i) the negotiation, preparation, execution and stamping of
this Deed or any other Transaction Document in relation to
the Series Trust; and
(ii) the negotiation, preparation, execution and stamping of any
deed amending this Deed or any other Transaction Document
in relation to the Series Trust;
(o) (Legal costs connected with proceedings): all legal costs and
disbursements incurred by the Trustee (on a full indemnity basis)
in connection with court proceedings brought against it alleging
negligence, fraud, wilful default, breach of trust or duty by the
Trustee in relation to the Series Trust provided that the Trustee
is not entitled to such a right of indemnity or reimbursement
where there is a determination by the relevant court of
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negligence, fraud or wilful default by the Trustee (provided that
until such determination, the Trustee is entitled to such right of
indemnity or reimbursement but upon such determination the Trustee
must repay to the Series Trust any amount paid to it pursuant to
this clause);
(p) (Security Trustee indemnity): any amounts which the Trustee is
required to pay to the Security Trustee pursuant to its indemnity
in favour of the Security Trustee contained in the Security Trust
Deed (if any) in relation to the Series Trust;
(q) (Other amounts): any other amounts for which, pursuant to any
express provision of this Deed or the Series Supplement for the
Series Trust, the Trustee is properly entitled to be reimbursed or
indemnified; and
(r) (Amounts approved by Manager): any other amounts in connection
with the exercise of any power or discretion or the performance of
any obligation under a Transaction Document in relation to the
Series Trust which are approved by the Manager (such approval not
to be unreasonably withheld).
16.12 General Business Costs of Trustee
Nothing in this clause 16 entitles or permits the Trustee to be
reimbursed or indemnified for general overhead costs and expenses of the
Trustee (including, without limitation, rents and any amounts payable by
the Trustee to its employees in connection with their employment)
incurred directly or indirectly in connection with the business
activities of the Trustee (including, without limitation, general
overhead costs and expenses in the provision by the Trustee of any
custodial services to a Series Trust) or in the exercise of its rights,
powers and discretions or the performance of its duties and obligations
in relation to a Series Trust.
16.13 Series Trust Creditors
Without limiting clause 16.10, the Trustee's right to be indemnified in
accordance with clause 16.10 and to effect full recovery out of the
relevant Series Trust pursuant to such right, applies in relation to any
liability to Creditors in respect of that Series Trust, notwithstanding
any failure by the Trustee to exercise the degree of care, diligence and
prudence required of a trustee having regard to the powers, authorities
and discretions conferred on the Trustee under this Deed or any other act
or omission which may not entitle the Trustee to be so indemnified and/or
effect such recovery.
16.14 If Trustee Fails to Exercise Care
Subject to clause 16.15, if the Trustee fails to exercise the degree of
care, diligence and prudence required of a trustee having regard to the
powers, authorities and discretions conferred on the Trustee by this Deed
or by a Series Supplement or if any other act or omission occurs which
may not entitle the Trustee to be indemnified in accordance with clauses
16.10 or 16.11 or to effect full recovery out of the relevant Series
Trust:
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(a) (Indemnity held on behalf of Creditors): the Trustee may not
receive or hold or otherwise have the benefit of the indemnity
given in clauses 16.10 or 16.11 otherwise than on behalf of and on
trust for the Creditors in respect of that Series Trust; and
(b) (Indemnity limited to liabilities to Series Trust Creditors):
the Trustee may be indemnified only to the extent necessary to
allow it to discharge its liabilities to the Creditors in respect
of that Series Trust.
16.15 Variation of clause 16.14
The provisions of clause 16.14 may be varied in respect of a Series Trust
if an Extraordinary Resolution is passed consenting to the variation at a
separate meeting of the Investors referable to that Series Trust convened
for the purpose in accordance with clause 26.
16.16 No Restriction on Action
Nothing in clauses 16.13 to 16.15 (inclusive) is taken to:
(a) (Restrict Investors): impose any restriction upon the rights of
the Investors or any other persons to bring an action against the
Trustee for loss or damage suffered by reason of the Trustee's
failure to exercise the degree of care, diligence and prudence
required of a trustee having regard to the powers, authorities and
discretions conferred on the Trustee by this Deed or the relevant
Series Supplement; or
(b) (Confer right to be indemnified for default): confer on the
Trustee a right to be indemnified out of any Series Trust against
any loss the Trustee suffers in consequence of an action brought
against it by reason of the Trustee's failure to exercise the
degree of care, diligence and prudence required of a Trustee
having regard to the powers, authorities and discretions conferred
on the Trustee by this Deed or the relevant Series Trust.
16.17 Limited Recourse of Series Trust Creditors
The Trustee is not obliged to enter into any other Transaction Document
or any other agreement or deed relating to a Series Trust unless:
(a) (Limited recourse provision): the Transaction Document, agreement
or deed contains a provision to the effect that the Trustee's
liability to the corresponding Creditor is incurred by the Trustee
only in its capacity as trustee of the Series Trust and that the
recourse of the Creditor is limited, except in the case of the
Trustee's fraud, negligence or wilful default, to the amount that
the Trustee is actually indemnified out of the Assets of the
Series Trust and which are available for payment to the Creditors
of the Series Trust in accordance with this Deed and the
corresponding Series Supplement; and
(b) (Liability limited): the Trustee's liability under the Transaction
Document, agreement
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or deed is limited in a manner substantially similar to that
contained in this Deed.
16.18 Limitation of Liability of Trustee
If the Trustee relies in good faith on an opinion, advice, information or
statement given to it by a person referred to in clause 16.6, it is not
liable for any misconduct, mistake, oversight, error of judgment,
forgetfulness or want of prudence on the part of that person except when
the person is not independent from the Trustee. A person is regarded as
independent notwithstanding that the person acts or has acted as an
adviser to the Manager or the Trustee or both of them so long as separate
instructions are given to that person by the Trustee.
16.19 Neither Trustee nor Delegate Liable
Neither the Trustee nor its delegate is liable:
(a) (Loss arising out of exercise of its discretions): for any loss,
costs, liabilities or expenses arising out of the exercise or non-
exercise of its discretions under this Deed, a Series Supplement,
any other Transaction Document or otherwise in respect of a Series
Trust except to the extent that any of the foregoing is caused by
the Trustee's or the delegate's own fraud, negligence or wilful
default;
(b) (Loss arising out of exercise of Manager's, Nominated Seller's or
Nominated Servicer's discretions): for any loss, costs,
liabilities or expenses arising out of the exercise or non-
exercise of a discretion on the part of the Manager, any Nominated
Seller or any Nominated Servicer except to the extent that any of
the foregoing is caused by the Trustee's or the delegate's own
fraud, negligence or wilful default;
(c) (Failure to check information): for any loss, costs, liabilities
or expenses caused by the Trustee's failure to check any
calculation, information, document, form or list supplied or
purported to be supplied to it by the Manager, any Nominated
Seller or Nominated Servicer under this Deed or a Series
Supplement or by any other person pursuant to a Transaction
Document except to the extent that any of the foregoing is caused
by the Trustee's or the delegate's own fraud, negligence or wilful
default;
(d) (Acting on instructions): for any loss, costs, liabilities or
expenses caused by its acting on any instruction or direction
properly given to it by the Manager, any Nominated Seller or any
Nominated Servicer under this Deed or by any person pursuant to a
Transaction Document except to the extent that any of the
foregoing is caused by the Trustee's or the delegate's own fraud,
negligence or wilful default;
(e) (Delegation): for any loss, costs, liabilities or expenses arising
out of the delegation in accordance with the provisions of this
Deed or of a Series Supplement of any of its duties, powers,
authorities and discretions to any person as permitted by clause
16.8 (subject to clause 16.9) except to the extent that any of the
foregoing is caused by the Trustee's or the delegate's own fraud,
negligence or wilful default;
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(f) (Other acts or omissions): for any other act or omission on its
part except where the act or omission is fraudulent, negligent or
in wilful default;
(g) (To Investors except to extent of right of indemnity): subject
always to the foregoing provisions of this clause 16, to an
Investor other than to the extent of the Trustee's right of
indemnity in respect of the relevant Series Trust;
(h) (To pay Investors, except to extent in funds to do so): subject
always to the foregoing provisions of this clause 16.19, to make a
payment to an Investor in respect of a Series Trust except out of
funds held by it for that purpose under this Deed and the Series
Supplement for that Series Trust; or
(i) (Manager Default): for any Manager Default.
16.20 Legal Proceedings
Subject to clause 16.22, the Trustee may bring legal proceedings in its
capacity as trustee of a Series Trust:
(a) (To recover money): to obtain or recover money that is payable to
the Trustee (in its capacity as trustee of the Series Trust) or to
obtain an Asset of a Series Trust that is to be vested in the
Trustee in accordance with this Deed or the relevant Series
Supplement;
(b) (If legal owner of Approved Financial Asset): at any time after
legal title to an Approved Financial Asset has been transferred
into its name, to enforce such Approved Financial Asset or any
other deed or agreement to which the Trustee is a party;
(c) (For damages): for damages against any person arising out of any
loss suffered by an Investor as a result of any negligence,
default, omission or breach of duty or trust;
(d) (To secure compliance): to secure compliance with the provisions
of this Deed or any Transaction Document; or
(e) (As it thinks fit): in any other circumstance that it thinks fit
after notifying the Manager.
The Trustee may abandon, settle, compromise or release any such action,
suit or proceeding as it considers desirable having regard to the
interests of the Investors, and persons who provide Support Facilities,
in respect of the relevant Series Trust.
16.21 Proceedings in Respect of Series Trust or Series Trust Asset
Subject to clause 16.22, the Trustee may institute, prosecute, defend or
otherwise appear in any action, suit or other proceeding in any court or
tribunal in respect of any matters touching or
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concerning a Series Trust, any Asset of any Series Trust or any
Transaction Document of any Series Trust including the enforcement,
contemplated enforcement of, preservation of rights under, initiation,
carriage and settlement of any court proceedings in respect of a
Transaction Document. Subject to clause 16.11(r), all costs,
disbursements and expenses incurred by the Trustee (including costs of
obtaining advisory opinions) in anticipation of or in connection with any
such action, suit or proceeding and all costs and disbursements incurred
by the Trustee in obtaining any legal advice or opinions concerning or
relating to the interpretation and construction of this Deed or a
Transaction Document are to be deducted from and paid out of the relevant
Series Trust on a full indemnity basis ( and in the case of solicitor's
costs, calculated at the solicitor's usual charge out rate).
16.22 Consents to Legal Proceedings
(a) (Manager's consent): Subject to paragraph (b) below, the Trustee
may not institute, prosecute or otherwise appear in any action,
suit or other proceeding in any court or tribunal in respect of
the matters detailed in clauses 16.20 or 16.21 unless it has first
obtained the consent of the Manager or the consent of an
Extraordinary Resolution of the Securityholders of the relevant
Series Trust except where the Trustee is of the view that failure
to bring an action would be to the detriment of the Investors of
that Series Trust and any delay whilst obtaining the necessary
consent would be prejudicial to the interests of the Investors of
that Series Trust.
(b) (If necessary): Nothing in paragraph (a) above prevents the
Trustee appearing in any action, suit or other proceeding in any
court or tribunal where it is necessary for it to appear in order
to defend itself against any action, suit or other proceeding or
to recover money owed to it in its personal capacity.
16.23 Registration and Holding of Investments
Subject to the relevant Series Supplement, the Trustee has the right to
have:
(a) (Authorised Short-Term Investments held by officers): any
Authorised Short-Term Investments capable of being registered
which the Trustee is precluded by the constitution of the Trustee
from holding in its own name vested in officers of the Trustee
nominated by it; or
(b) (Title documents held by Bank): any documents of title in relation
to an Authorised Short-Term Investment of which the Trustee is the
registered holder or is otherwise the legal owner held in custody
by a Bank.
Subject to the relevant Series Supplement, if the Trustee exercises any
rights referred to in this clause the Trustee remains liable for any act
or omission of the relevant officer or Bank as if the act or omission was
an act or omission of the Trustee.
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16.24 Limitation of Trustee's Personal Liability
Notwithstanding any other provision of this Deed, the Trustee is not
obliged to execute any instrument, enter into any agreement or incur any
obligation in connection with a Series Trust (including, without
limitation, in connection with any Transaction Document) unless the
Trustee has received independent legal advice (if required by the
Trustee) in relation to the instrument, agreement or obligations and
unless the Trustee's personal liability in connection with the
instrument, agreement or obligation is limited in accordance with clause
16.17.
16.25 No Liability for Breach by Custodian of Custodial Role
The Trustee is not liable to any person in any manner whatsoever for any
breach by the Custodian in respect of a Series Trust of its obligations
under the Series Supplement unless the Trustee or a Related Body
Corporate of the Trustee is the Custodian.
16.26 Incur Costs Without Approval
Notwithstanding clause 16.4(l), 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 is provided in a Series
Supplement or as it believes necessary (acting reasonably) in respect of
any action where the Trustee believes (acting reasonably) the Manager is
in a position where its personal interests in relation to that action
conflict with its duties and obligations under this Deed or any other
Transaction Document.
16.27 No Liability for Non-payment
Except in the case of fraud, negligence or wilful default on the part of
the Trustee, the Trustee is not liable in the event of a failure to pay
moneys on the due date for payment to any Investor or any other person or
for any loss howsoever arising in respect of the relevant Series Trust or
to any Investor or any other person.
16.28 No Duty to Investigate
The Trustee has no duty, and is under no obligation, to investigate
whether a Manager Default has occurred other than where it has actual
notice that such has occurred.
17. FURTHER PROVISIONS REGARDING POWERS ETC.
17.1 Limitation of liability of Trustee and Manager
Neither the Trustee nor the Manager is liable:
(a) (If it relies on a document): in connection with anything done by
it in good faith in reliance upon any certificate, document, form
or list except when it has reason to believe that the document,
form or list is not genuine;
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(b) (If prevented by law): if it fails to do anything because it is
prevented or hindered from doing it by law or order;
(c) (For Taxes paid in good faith): to anyone for payments (except
when made negligently) made by it in good faith to a fiscal
authority in connection with Taxes or other charges in respect of
the Series Trust even if the payment need not have been made;
(d) (Failure of another): subject to the Corporations Law and clauses
15.9 and 16.9, if a person fails to carry out an agreement with
the Trustee or the Manager in connection with a Series Trust
(except when the failure is due to the Trustee's or the Manager's
(as the case may be) fraud, negligence or wilful default; or
(e) (Error of law or done in good faith connected with liquidation):
to anyone because of any error of law or any matter done or
omitted to be done by it in good faith in the event of the
liquidation or dissolution of a corporation (other than a
corporation under its control).
17.2 Dealings with Series Trust
None of the following:
(a) (Trustee): the Trustee (in any capacity);
(b) (Manager): the Manager;
(c) (Nominated Seller): any Nominated Seller;
(d) (Nominated Servicer): any Nominated Servicer;
(e) (Directors and officers): the directors or officers of the
Trustee, the Manager, any Nominated Seller or any Nominated
Servicer;
(f) (Related Bodies Corporate): the Related Bodies Corporate of the
Trustee, the Manager, any Nominated Seller or any Nominated
Servicer;
(g) (Shareholders): the shareholders of the Trustee, the Manager, any
Nominated Seller or any Nominated Servicer or any such Related
Body Corporate; or
(h) (Directors and officers of Related Body Corporate): the directors
or officers of any such Related Body Corporate,
is prohibited in relation to a Series Trust from:
(i) (Subscribing): subscribing for Securities or Units in respect of a
Series Trust or
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purchasing, holding, dealing in or disposing of
Securities or Units in respect of a Series Trust;
(j) (Contracting, acting or otherwise being interested): at any time:
(i) contracting with;
(ii) acting in any capacity as representative or agent for; or
(iii) entering into any financial, banking, agency or other
transaction with,
any other of them or an Investor; or
(k) (Being interested): being interested in any contract or
transaction referred to in paragraph (j).
None of the persons mentioned is liable to account to any other or to an
Investor for any profits or benefits (including, without limitation, bank
charges, commission, exchange brokerage and fees) derived in connection
with any contract or transaction referred to in paragraph (j).
17.3 Application of clause 17.2
Clause 17.2 applies only if the relevant person, in connection with the
action, contract or transaction, acts in the utmost good faith in
relation to all Investors in respect of the relevant Series Trust.
17.4 Signatures
The Trustee and the Manager may rely on the validity of any signature on
any transfer, form of application or other instrument or document unless
the Trustee or the Manager (as the case may be) has reason to believe
that the signature is not genuine. Neither the Trustee nor the Manager
is liable to make good out of its own funds any loss incurred by any
person if a signature is forged or otherwise fails to bind the person
whose signature it purports to be or on whose behalf it purports to be
made. Any such loss, subject to any right of reimbursement from any
other person (including the Manager) is to be borne by the relevant
Series Trust.
17.5 Dealings with Instruments
Neither the Manager nor the Trustee is obliged to effect a transaction or
dealing with a transfer or other instrument on behalf of, for the benefit
or at the request of an Investor unless the Investor has first paid or
otherwise provided for to the Manager's and the Trustee's satisfaction
all Taxes, brokerage, transfer fees, registration fees and other charges
(whether similar to the foregoing or not) whether in respect of the
transfer or other instrument or otherwise (in this clause 17.5 called
collectively "duties and charges") which may have become or may be
payable in respect of or prior to or upon the occasion of the transaction
or dealing. However, the Trustee may pay and discharge any duties and
charges on behalf of an Investor and retain the amount so paid out of any
money or property to which the Investor is or becomes entitled to under
this Deed or a Series
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Supplement. This clause does not affect the other obligations of the
Trustee or the Manager in this Deed relating to duties and other expenses
in respect of Assets referable to a Series Trust.
17.6 Disclosure of Information
Subject to this Deed and the relevant Series Supplement, no Nominated
Seller, Nominated Servicer or the Trustee is (unless ordered so to do by
a court of competent jurisdiction) required to disclose to any Investor
of a Series Trust confidential, financial or other information either
made available to the Nominated Seller, the Nominated Servicer or the
Trustee respectively by the Manager or in relation to the Trustee, the
Nominated Servicer or the Nominated Seller in connection with this Deed
or a Series Supplement.
18. REMUNERATION OF MANAGER AND TRUSTEE
18.1 Management Fee
The Manager is entitled to the payment from the Trustee (as trustee of a
Series Trust) of a fee for administering and managing the Series Trust,
calculated and payable in accordance with the terms of the Series
Supplement relating to that Series Trust.
18.2 Trustee Fee
The Trustee is entitled to deduct from the Assets for the Series Trust
and to pay to itself a fee for performing its duties in relation to the
Series Trust, calculated and payable in accordance with the terms of the
Series Supplement relating to the Series Trust.
19. RETIREMENT OF TRUSTEE
19.1 Trustee Must Retire
The Trustee must retire as trustee of each Series Trust if:
(a) (If required by Manager): having been required to do so by the
Manager by notice in writing, the Trustee fails or neglects within
20 Business Days (or such longer period as the Manager may agree
to) after receipt of such notice to carry out or satisfy any
material duty or obligation imposed on the Trustee by this Deed or
any other Transaction Document in respect of a Series Trust;
(b) (Insolvency Event): an Insolvency Event occurs with respect to the
Trustee in its personal capacity;
(c) (Cease to carry on business): the Trustee ceases to carry on
business;
(d) (Merger without assumption): the Trustee merges or consolidates
into another entity, unless approved by the Manager, which
approval will not be withheld if, in the
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Manager's reasonable opinion, the commercial reputation and
standing of the surviving entity will not be less than that of the
Trustee prior to such merger or consolidation, and unless the
surviving entity assumes the obligations of the Trustee under the
Transaction Documents; or
(e) (Change in ownership): there is a change in the ownership of 50
per cent or more of the issued equity share capital of the Trustee
from the position as at the date of this Deed, or effective
control of the Trustee alters from the position as at the date of
this Deed, unless in either case approved by the Manager, which
approval will not be withheld if, in the Manager's reasonable
opinion, the change in ownership or control of the Trustee will
not result in a lessening of the commercial reputation and
standing of the Trustee.
19.2 Manager May Require the Trustee to Retire
The Manager may, by written notice, direct the Trustee to retire if it
believes in good faith that an event referred to in clause 19.1 has
occurred.
19.3 Manager May Remove Trustee from Office
If the Trustee refuses to retire after being required to do under clause
19.1 or 19.2, the Manager is entitled to remove the Trustee from office:
(a) upon the occurrence of an event set out in clauses 19.1 (a), (b)
or (c), immediately by notice in writing; and
(b) upon the occurrence of an event set out in clauses 19.1 (d) or (e)
(and where clause 19.3 (a) does not apply) upon 30 days notice in
writing.
On the retirement or removal of the Trustee under clause 19.1, clause
19.2 or this clause the Manager, subject to any approval required by law,
is entitled to and must use its reasonable endeavours to appoint in
writing within 30 days of the retirement or removal of the Trustee some
other Authorised Trustee Corporation, who is approved by the Rating
Agencies for all then Series Trusts, to be the Trustee. Until the
appointment of the Substitute Trustee is complete, the Manager must act
as Trustee in accordance with the terms of this Deed and is entitled to
receive the fee payable in accordance with clause 18.2 for the period
during which the Manager so acts. If, after 30 days, the Manager has
been unable to appoint an Authorised Trustee Corporation as Trustee in
accordance with this clause then the Manager must convene a single
meeting of Investors of all then Series Trusts at which a new Trustee may
be appointed by Extraordinary Resolution of all Investors of the then
Series Trusts.
19.4 Trustee May Retire
The Trustee may retire as trustee of all Series Trusts upon giving three
months' notice in writing to the Manager or such lesser time as the
Manager and the Trustee agree. Upon such retirement the
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Trustee, subject to any approval required by law, must appoint as
trustee of the Series Trusts in writing any other Authorised Trustee
Corporation who is approved by the Rating Agencies of all then Series
Trusts and the Manager, which approval must not be unreasonably withheld
by the Manager. If the Trustee does not propose a replacement by the date
which is one month prior to the date of its proposed retirement, the
Manager is entitled to appoint a Substitute Trustee, which must be an
Authorised Trustee Company who is approved by the Rating Agencies of all
then Series Trusts. If a Substitute Trustee has not been appointed upon
the expiry of the three month period commencing when the Trustee notifies
the Manager of its intention to retire, then from the expiry of that
three month period, the Manager must act as Trustee and must appoint an
Authorised Trustee Corporation approved by the Rating Agencies as Trustee
within 30 days. If the Manager is unable within 30 days to appoint such
an Authorised Trustee Corporation as Trustee then the Manager must
convene a single meeting of Investors of all then Series Trusts at which
a new Trustee may be appointed by Extraordinary Resolution of the
Investors of all the then Series Trusts.
19.5 Substitute Trustee
The purported appointment of a Substitute Trustee has no effect until the
Substitute Trustee executes a deed under which it covenants to act as
Trustee in respect of each Series Trust in accordance with this Deed and
the other Transaction Documents.
19.6 Release of Trustee
Upon retirement or removal of the Trustee as trustee of each Series
Trust, the Trustee is released from all obligations under this Deed and
the other Transaction Documents arising after the date of the retirement
or removal in respect of each Series Trust except for its obligation to
vest all Assets in the Substitute Trustee and to deliver all books and
records relating to each Series Trust to the Substitute Trustee (but the
Trustee is not released from any obligations or liability that accrued
prior to the date of the retirement of the Trustee). The Manager may
settle with the Trustee the amount of any sums payable by the Trustee to
the Manager or by the Manager to the Trustee and may give to or accept
from the Trustee a discharge in respect of those sums which is then
conclusive and binding as between the Trustee and the Manager but not as
between the Trustee and the Investors.
19.7 Rating Agencies Advised
In respect of any consents required by the Rating Agencies to the
replacement of a Trustee pursuant to this clause 19 the Manager must
approach and liaise with the Rating Agencies of the then Series Trusts.
In addition, the Manager must inform the Rating Agencies of the then
Series Trusts of the retirement or removal of the Trustee and give them
the details of the Substitute Trustee.
19.8 Indemnity
Subject to clause 19.10, the retiring Trustee must indemnify the Manager
and the Substitute Trustee in respect of all costs incurred as a result
of:
(a) (Removal): its removal pursuant to clause 19.1, 19.2 or 19.3; or
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(b) (Retirement): its retirement pursuant to clause 19.4.
19.9 Assets to Vest in Substitute Trustee
Upon the retirement or removal of the Trustee from each Series Trust in
accordance with the provisions of this clause 19, the Trustee must vest
the Assets of each Series Trust, or cause them to be vested, in the
Substitute Trustee and must deliver to the Substitute Trustee (or the
Manager if it is acting as Trustee) all books, documents, records and
other property whatsoever relating to the Series Trusts. Subject to
clause 19.8, the costs and expenses of this are to be paid out of the
relevant Series Trust.
19.10 Restriction on Security issues
The Manager is not entitled to issue any further Securities during any
period it acts as Trustee in accordance with clauses 19.3 and 19.4.
20. MANAGER DEFAULT AND RETIREMENT OF MANAGER
20.1 Manager Default
A Manager Default occurs if:
(a) (Insolvency Event): an Insolvency Event occurs in relation to the
Manager; or
(b) (Other Manager Defaults): any other event occurs which is
specified in any Series Supplement to constitute a Manager
Default.
20.2 Replacement of Manager
While a Manager Default is subsisting and after the Trustee becomes aware
of that Manager Default, the Trustee must , upon giving written notice to
the Nominated Servicer, the Manager and the Rating Agencies (if any) of
each then Series Trust, immediately terminate the rights and obligations
of the Manager and appoint another entity to act in its place.
20.3 Retirement of Manager
The Manager may retire from the management of all the Series Trusts upon
giving to the Trustee three months notice in writing or such lesser time
as the Manager and the Trustee agree. Upon that retirement the Manager,
subject to any approval required by law, may appoint in writing any other
corporation approved by the Trustee as Manager in its stead. If the
Manager does not propose a replacement by the date which is one month
prior to the date of its proposed retirement, the Trustee is entitled to
appoint a new Manager as of the date of the proposed retirement.
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20.4 Appointment of Substitute Manager
The purported appointment of a Substitute Manager has no effect until the
Substitute Manager executes a deed under which it assumes the obligations
of Manager under this Deed and all other Transaction Documents to which
the Manager is a party.
20.5 Trustee to act as Manager
Until the appointment of the Substitute Manager is complete, the Trustee
must act as Manager and in doing so must act in accordance with the
provisions of this Deed. The Trustee is entitled to receive the fee
payable in accordance with clause 18.1 for the period during which the
Trustee so acts.
20.6 Settlement of Amounts Owing by Trustee to the Manager
The Trustee may settle with the Manager the amount of any sums payable by
the Manager to the Trustee or the Trustee to the Manager and may give to
or accept from the Manager a discharge in respect of those sums which
will be conclusive and binding as between the Trustee and the Manager, as
between the Manager and the Investors.
20.7 Payments to Manager
The Manager may accept a payment or benefit, in connection with its
retirement or removal, from the Substitute Manager. The Manager is also
entitled to receive payments or benefits which have accrued to the
Manager under this Deed prior to the date of the Manager's retirement or
removal from office.
20.8 Manager to Provide Full Co-operation
The Manager must provide its full co-operation in the event of a
Management Transfer. The Manager must provide to the Substitute Manager
copies of all paper and electronic files, information and other materials
in its possession as the Trustee or the Substitute Manager may reasonably
request within five days of the removal or retirement of the Manager in
accordance with this clause.
20.9 Indemnity
The Manager indemnifies the Trustee in respect of all costs, damages,
losses, expenses (including, without limitation, the costs and expenses
of transferring all records and information specified in clause 20.8)
incurred as a result of the replacement of the Manager pursuant to clause
20.2.
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21. AUDITOR
21.1 Appointment
The Auditor of each Series Trust must be nominated by the Manager and
acceptable to, and appointed by, the Trustee (and, failing such
nomination by the Manager, the Trustee may nominate and appoint the
Auditor).
21.2 Qualification of Auditors
The Auditor must be a firm of chartered accountants, some of whose
members are Registered Company Auditors.
21.3 Remuneration
The remuneration of the Auditor of a Series Trust is to be determined by
the Trustee and approved by the Manager.
21.4 Removal
The Trustee, after consulting with the Manager, may remove the Auditor of
a Series Trust at any time.
21.5 Auditor May Retire
The Trustee must ensure that the terms of the appointment of the Auditor
of a Series Trust provide that the Auditor may only retire as Auditor of
the Series Trust upon giving six months' written notice to the Trustee.
21.6 Trustee to Appoint New Auditor
Any vacancy in the office of the Auditor of a Series Trust must be filled
by the Trustee appointing a qualified person.
21.7 Auditor May be Auditor of Nominated Servicer, Manager or Trustee
The Auditor of a Series Trust may be the auditor of any Nominated Seller,
any Nominated Servicer, the Manager or the Trustee or of any other trust
whether of a similar nature to the Series Trusts or otherwise but may not
be a director, officer or employee (or the partner or employee of a
director, officer or employee) of any Nominated Seller, any Nominated
Servicer, the Manager or of the Trustee.
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21.8 Access to Working Papers
The Auditor of a Series Trust must only be appointed on the basis that it
will make its working papers and reports available for inspection by the
Trustee and the Manager.
21.9 Scope of Audit Duties
The Auditor must at the end of each financial year and every six months
thereafter audit a sample of transactions in respect of each Series Trust
conducted under the Transaction Documents and provide a written report to
the Trustee, the Manager and the Rating Agencies prepared in accordance
with Approved Accounting Standards, consistently applied, and without
limitation:
(a) (Outlining scope of audit): outlining the scope of the audit
conducted;
(b) (Detailing breaches or confirming no breaches): either:
(i) detailing any material breaches identified by the audit on
the part of the Nominated Seller, the Nominated Servicer or
the Manager under the Transaction Documents relating to the
Series Trust; or
(ii) confirming that there were no material breaches of such
Transaction Documents identified by the audit and that the
Auditor is not aware of any events, facts or circumstances
which would result in a breach of such Transaction
Documents;
(c) (Reporting perceived errors or deviations): reporting on any
errors or deviations from the procedures outlined in such
Transaction Documents that had come to the Auditor's attention;
and
(d) (Confirming income): in respect of the report provided at the end
of each financial year, confirming in respect of each Series Trust
that either:
(i) there is no amount of Net Tax Income in respect of the
previous year of income; or
(ii) any Net Tax Income in respect of the previous year is, for
the purposes of the Tax Act, properly included in the
assessable income of the Unitholders pursuant to clause
13.4 of this Deed.
22. ACCOUNTS AND AUDIT
22.1 Maintenance of Accounting Records
The Trustee must keep accounting records which correctly record and
explain all amounts paid and received by the Trustee with respect to each
Series Trust. The Manager must keep accounting records which correctly
record and explain all other transactions and the financial position of
each Series Trust. The Manager and the Trustee from time to time upon
request must provide each other
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with any information necessary to enable the Manager and the Trustee to
perform their respective functions under this clause 22. Based on these
records, the Manager must keep at its principal place of business (or
another place approved by the Trustee) proper books of account in
relation to each Series Trust that enable the Accounts in relation to the
Series Trust to be prepared and audited in accordance with this Deed. The
books of account in relation to a Series Trust must be open to inspection
by the Manager, the Trustee, the Nominated Servicer for the Series Trust
and the Auditor in relation to a Series Trust. Separate books of account
must be maintained for each Series Trust.
22.2 Accounts
The Accounts for each Series Trust must be maintained in accordance with
the Approved Accounting Standards. Subject to compliance with the
Approved Accounting Standards, the Accounts for each Series Trust may be
varied, augmented or limited as is determined by the Manager, considered
necessary by the Trustee or requested by the Auditor.
22.3 Audit of Accounts
The Manager must ensure that the Accounts of a Series Trust are audited
as at the end of each Financial Year of the Series Trust and reported on
by the Auditor of the Series Trust in accordance with the Corporations
Law within 120 days of the end of the Financial Year.
22.4 Information to Auditor
The Auditor of a Series Trust is entitled to require from the Manager and
the Trustee, and they must provide to the Auditor, all reasonable,
information, accounts and explanations which are necessary for the
performance of the duties of the Auditor.
22.5 Availability of Audited Accounts
A copy of the Accounts of a Series Trust and the Auditor's report in
relation thereto will not be sent to the Investors of the Series Trust
but will be furnished to an Investor of the Series Trust upon request and
must, in any event, be available for inspection by the Investors of the
Series Trust during business hours at the offices of the Trustee.
22.6 Statutory Returns
The Manager must prepare and lodge (or cause to be prepared and lodged)
the Tax return for each Series Trust in respect of each of its Financial
Years and any other statutory returns which are required to be prepared
in respect of each Series Trust. The Trustee must sign these returns.
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23. PAYMENTS TO INVESTORS
23.1 Methods of Payment
Any money payable by the Trustee to the Investors of a Series Trust under
the provisions of this Deed or the corresponding Series Supplement may be
paid:
(a) (By cheque): by crossed "not negotiable" cheque made payable to
the payee and sent through the post to the registered address of
the payee or, in the case of joint Investors, made payable to the
joint Investors and sent to the registered address of the Investor
whose name stands first in the Register or otherwise despatched,
delivered or made available to be collected as the payee may from
time to time specify;
(b) (Through Austraclear): by means of electronic transfer through
Austraclear;
(c) (To bank account): by payment to a bank account in Australia of
the payee nominated in writing by the payee; or
(d) (Other manner): in any other manner specified by the payee and
agreed to by the Manager and the Trustee.
23.2 Satisfaction and Discharge
Payment of any amount in accordance with clause 23.1 will be in
satisfaction of the money payable and is a good discharge to the Manager
and the Trustee.
23.3 Cheques and Notices
The Trustee must prepare or cause to be prepared all cheques and notices
which are to be issued in relation to a Series Trust and stamp the same
as required by law at the expense of the relevant Series Trust, and the
Trustee must sign (by autographical, mechanical or other means) such
cheques for despatch by the day on which they ought to be despatched.
23.4 No Interest on Payment of Amounts to Investors After Due Date
Except as may be provided in the Series Supplement relating to a Series
Trust, interest does not accrue on any amount which is due to be paid to
any Investor of the Series Trust in accordance with this Deed or the
Series Supplement after the date on which that amount falls due for
payment under this Deed or the Series Supplement. Without limiting the
other rights of each Investor contained in this Deed, the Investor is not
entitled to claim from the Trustee, any Nominated Servicer or the Manager
or take any action against the Trustee, any Nominated Servicer or the
Manager for an amount representing such interest or for any damages or
loss suffered by the Investor for failure, or a delay, to pay any amount
so due.
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23.5 Deduction of Taxes
(a) (Withholding Tax for non-residents): The Trustee or any person
making payments on behalf of the Trustee may deduct interest
withholding tax imposed by the Commonwealth of Australia from
payments of interest in respect of the Securities to non-residents
of the Commonwealth of Australia not carrying on business in the
Commonwealth of Australia at or through a permanent establishment
and to residents of the Commonwealth of Australia carrying on
business at or through a permanent establishment outside the
Commonwealth of Australia unless a certificate pursuant to section
221YM of the Tax Act is produced to the Trustee not later than
close of business on the 2nd Business Day immediately preceding
the relevant payment date.
(b) (Tax file numbers): The Trustee or any person making payments on
behalf of the Trustee may deduct tax-at-source on interest
payments to each Securityholder at the highest personal marginal
tax rate (plus levies) unless the Trustee receives from such
Securityholder the tax file number of that Securityholder or
evidence of any exemption the Securityholder may have from the
need to advise the Trustee of such tax file number. The tax file
number or appropriate evidence (as the case may be) must be
received by the Trustee not less than 2 Business Days prior too
the relevant payment date.
23.6 Rounding Down of Payments
Subject to the corresponding Series Trust, any payment to an Investor in
relation to a Series Trust must be rounded down to the nearest cent.
23.7 Payments Netting
Notwithstanding any other provision of this Deed, if on any day the
Trustee as trustee of a Series Trust is required under this Deed or a
Series Supplement in relation to the Series Trust to make payments to a
person or to credit an account in relation to a Series Trust and is also
entitled or required to receive payments from that person or debit that
account in relation to the Series Trust, unless otherwise directed by the
Manager the Trustee is only obliged to pay or credit the amount (if a
positive number) or to receive or debit (if a negative number) the
difference between the amounts payable or required to be credited by the
Trustee on that day less the amounts receivable or required to be debited
by the Trustee on that day.
24. NOTICES
24.1 Notices
Any notice, request, certificate, approval, demand, consent or other
communication to be given under this Deed:
(a) (Authorised Officer): must be given by an Authorised Officer of
the relevant party;
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(b) (In writing): must be in writing; and
(c) (Delivery): must be left at the address of the addressee or sent
by prepaid ordinary post to the address of the addressee or by
facsimile to the facsimile number of the addressee, specified in
clause 24.2 or any other address or facsimile number any party may
from time to time notify to the other parties as its address for
service pursuant to this Deed.
24.2 Initial addresses
The initial address and facsimile numbers of the Trustee and the Manager
are:
(a) (Trustee): in the case of the Trustee:
Address: Perpetual Trustee Company Limited
Level 3, 39 Hunter Street, Sydney, NSW, 2000
Facsimile: (02) 9221 7870
Attention: Manager, Securitisation Services
(b) (Manager): in the case of the Manager:
Address: Securitisation Advisory Services Limited
Level 3, 85 Harrington Court, Sydney, NSW, 2000
Facsimile: (02) 9378 2481
Attention: Head of Securitisation
24.3 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 at the
relevant office;
(b) (Post): where sent by post, on the third (seventh if outside
Australia) day after posting;
(c) (Fax): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report by the machine from
which the facsimile was sent which indicates that the facsimile
was sent in its entirety to the facsimile number of the recipient.
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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
following Business Day.
24.4 Notices to Investors
Any notice required or permitted to be given to an Investor must be given
by mail, postage prepaid, at the address of the Investor as shown in the
Register. In the case of a Unit or Security held jointly the notice will
be sent to the registered address of the joint Investor whose name stands
first in the Register. Any notice so mailed within the time prescribed
in this Deed is conclusively presumed to have been duly given, whether or
not the Investor receives such notice. Notwithstanding the foregoing,
any notice may be given to an Investor by an advertisement placed on a
Business Day in The Australian Financial Review (or another nationally
delivered newspaper).
24.5 Information to Rating Agency by Manager
The Manager must send the following information to each Rating Agency (if
any) in relation to a Series Trust within a reasonable time of that
information becoming available to it:
(a) (Statistics): such statistics as the Rating Agency and the Manager
agree relating to the performance of the Approved Financial Assets
forming part of the Assets of the Series Trust;
(b) (Notices): all notices and information sent to Investors of the
Series Trust, including any notices of shortfalls in payments to
the Securityholders;
(c) (Notice of changes): any change in the appointment of the Manager,
the Trustee or the Auditor or Nominated Servicer of the Series
Trust;
(d) (Insolvency Event information): any information relating to an
Insolvency Event occurring in relation to the Manager, the Trustee
or the Nominated Servicer or the Nominated Seller of the Series
Trust;
(e) (Accounts): the audited Accounts in relation to the Series Trust
prepared at the end of each Financial Year of the Series Trust,
together with a copy of the Auditor's report on those Accounts;
and
(f) (Other information): such other information, reports and materials
required by the Series Supplement relating to the Series Trust.
24.6 Manager to Notify Rating Agencies
In addition to the information to be provided pursuant to clause 24.5,
the Manager must give notice to each Rating Agency (if any) of a Series
Trust and the Trustee, within a reasonable time of becoming aware, of any
other event or occurrence in respect of the Series Trust which the
Manager
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reasonably believes would materially and adversely affect the interests
of the Investors in respect of that Series Trust or affect the rating
assigned by the Rating Agency to any Securities in respect of that Series
Trust.
24.7 Late Notice
The giving of late notice does not operate to release any party from its
obligations under this Deed.
25. AMENDMENT TO TRUST DEED AND SERIES SUPPLEMENT
25.1 Supplemental Deed of Variation
Subject to the other provisions of this clause 25, the Trustee and the
Manager may amend, add to or revoke any provision of this Deed or a
Series Supplement (including this clause 25 .1) if the amendment,
addition or revocation:
(a) (Necessary or expedient): in the opinion of the Trustee or of a
barrister or solicitor instructed by the Trustee is necessary or
expedient to comply with the provisions of any statute, ordinance,
regulation or by-law or with the requirement of any statutory
authority;
(b) (Manifest error): in the opinion of the Trustee is made to correct
a manifest error or is of a formal, technical or administrative
nature only;
(c) (Amendment to law): in the opinion of the Trustee, is:
(i) required by; or
(ii) a consequence of; or
(iii) consistent with; or
(iv) appropriate or expedient as a consequence of,
any amendment to any statute, regulation or altered requirements
of any Governmental Agency (including, without limitation, any
amendment, addition or revocation which is in the opinion of the
Trustee appropriate or expedient as a result of any amendment to
the Tax Act or any ruling by the Commissioner or Deputy
Commissioner of Taxation or any government announcement or
statement that has or may have the effect of altering the manner
or basis of taxation of trusts generally or of trusts similar to
any of the Series Trusts);
(d) (Relates to future Series Trusts): in the case only of this Deed,
relates only to a Series Trust not yet constituted;
(e) (Convenient): in the opinion of the Trustee, will enable the
provisions of this Deed or a Series Supplement to be more
conveniently, advantageously, profitably or economically
administered; or
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(f) (Otherwise desirable): in the opinion of the Trustee is otherwise
desirable for any reason.
25.2 Amendments Prejudicial to Unitholders of a Class
Subject to clause 25.3, if in the reasonable opinion of the Trustee any
amendment, addition or revocation referred to in clauses 25.1(e) or (f)
is likely to be prejudicial to the interests of a particular Class of
Unitholders of a Series Trust, the amendment, addition or revocation may
only be effected if the Unitholders of the Class pass an Extraordinary
Resolution approving such amendment, addition or revocation.
25.3 Amendments Prejudicial to all Unitholders of a Series Trust
If in the reasonable opinion of the Trustee any amendment, addition or
revocation referred to in clause 25.1(e) or (f) is likely to be
prejudicial to the interests of all Unitholders in respect of a Series
Trust:
(a) (Extraordinary Resolution): the amendment, addition or revocation
may be effected only if the Unitholders pass an Extraordinary
Resolution approving such amendment, addition or revocation; and
(b) (Class meetings not required): even if the proposed amendment,
addition or revocation affects Unitholders of a particular Class,
a separate Extraordinary Resolution is not required for each Class
of Unitholders pursuant to clause 25.2.
25.4 Amendments Prejudicial to Securityholders of a Class
Subject to clause 25.5, if in the reasonable opinion of the Trustee any
amendment, addition or revocation referred to in clause 25.1(e) or (f) is
likely to be prejudicial to the interests of a particular Class of
Securityholders in respect of a Series Trust, the amendment, addition or
revocation may only be effected if the Securityholders of the Class pass
an Extraordinary Resolution approving such amendment, addition or
revocation.
25.5 Amendments Prejudicial to all Securityholders of a Series Trust
If in the reasonable opinion of the Trustee, any amendment, addition or
revocation referred to in clause 25.1(e) or (f) is likely to be
prejudicial to the interests of all Securityholders in respect of a
Series Trust:
(a) (Extraordinary Resolution): the amendment, addition or revocation
may only be effected if the Securityholders in respect of that
Series Trust pass an Extraordinary Resolution approving such
amendment, addition or revocation; and
(b) (Class meetings not required): even if the proposed amendment,
addition or
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revocation affects Securityholders of a particular
Class, a separate Extraordinary Resolution is not required for
each Class of Securityholders pursuant to clause 25.4.
25.6 Manager's Certificate Relating to Rating of Securities
The Trustee must not amend, add to or revoke any provision of this Deed
or a Series Supplement, unless except in relation to clause 25.1(d), the
Trustee receives a certificate from the Manager that:
(a) (Notice to Rating Agencies): 10 Business Days' prior written
notice of the amendment, addition or revocation was given by the
Manager to each Rating Agency (if any) of any Series Trust
affected by the amendment, addition or revocation; and
(b) (No downgrade): no such Rating Agency (if any) has advised the
Manager that the amendment, addition or revocation if implemented
will cause the then rating of the Securities by such Rating Agency
to be withdrawn or downgraded.
25.7 No Variation may Contradict Transaction Documents
The Trustee may not amend, add to or revoke any provision of this Deed or
a Series Supplement in respect of a Series Trust where such amendment,
addition or revocation requires the consent of another party under any
Transaction Document in respect of that Series Trust and such consent has
not been obtained in accordance with the provisions of the relevant
Transaction Document.
26. MEETINGS OF INVESTORS
26.1 Convening of Meetings by Manager or Trustee
The Manager or the Trustee may convene a meeting of the Investors,
Securityholders, a Class of Securityholders, Unitholders or a Class of
Unitholders (the "Relevant Investors") if required pursuant to this Deed
or if it wishes to do so at any other time.
26.2 Notice of Meetings
(a) (Notice): Subject to clause 26.2(b) at least seven days' notice
(inclusive of the day on which the notice is given and of the day
on which the meeting is held) of a meeting of the Relevant
Investors must be given to the Relevant Investors.
(b) (Shorter notice): Notwithstanding clause 26.2(a), if it is so
agreed by a majority in number of the Relevant Investors having
the right to attend and vote at the meeting, being a majority that
together hold at least 95% of the then outstanding Securities or
Units corresponding to the meeting of the Relevant Investors, a
resolution may be proposed and passed at a meeting of which less
than seven days' notice has been given.
(c) (Accidental omission does not invalidate): The accidental omission
to give notice to or the non-receipt of notice by any Relevant
Investor does not invalidate the
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proceedings at any meeting.
(d) (Copies of notices): A copy of a notice convening a meeting must
be given by the Trustee to the Manager.
(e) (Manner of notice): Notice of a meeting must be given in the
manner provided in this Deed.
(f) (Details to be included in notice): A notice of a meeting of the
Relevant Investors must specify:
(i) the day, time and place of the proposed meeting; and
(ii) the reason for the meeting being convened; and
(ii) the agenda of the business to be transacted at the meeting;
and
(iv) the terms of any proposed resolution; and
(v) that the persons appointed to maintain the Register may for
the purpose of determining those entitled to attend may not
register any transfer of a Security or Unit (as the case
may be) in the period of two Business Days prior to the
meeting; and
(vi) that appointments of proxies must be lodged no later than 24
hours prior to the time fixed for the meeting; and
(vi) such additional information as the person giving the notice
thinks fit.
26.3 Chairman
The chairman of a meeting must be a person (who need not be a Relevant
Investor and who may be a representative of the Trustee) nominated by the
Trustee.
26.4 Quorum
At any meeting any two or more persons present in person being Relevant
Investors or Representatives holding or representing, in the aggregate
not less than 67% of the Securities or Units corresponding to the meeting
of the Relevant Investors and then outstanding will form a quorum for the
transaction of business and no business (other than the choosing of a
chairman) must be transacted at any meeting unless the requisite quorum
is present at the commencement of business.
26.5 Adjournment
(a) (Adjournment): If within 15 minutes from the time appointed for
any meeting a quorum is not present the meeting will stand
adjourned (unless the Trustee agrees that it be dissolved) for
such period, not being less than seven days nor more than 42 days,
as may be appointed by the chairman. At such adjourned meeting
two or more persons present in person being Relevant Investors
holding, or being Representatives holding or representing, in the
aggregate not less than 50% of the Securities or Units
corresponding
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to the meeting of the Relevant Investors and then outstanding will
form a quorum and will have the power to pass any resolution and
to decide upon all matters which could properly have been dealt
with at the meetings from which the adjournment took place had a
quorum been present at such meeting.
(b) (Place and time of adjourned meeting): The chairman may with the
consent of (and must if directed by) any meeting adjourn the same
from time to time and from place to place but no business must be
transacted at any adjourned meeting except business which might
lawfully have been transacted at the meeting from which the
adjournment took place.
(c) (Notice of adjourned meeting): At least five days' notice of any
meeting adjourned through want of a quorum must be given in the
same manner as for the original meeting and such notice must state
the quorum required at such adjourned meeting. It is not,
however, otherwise necessary to give any notice of an adjourned
meeting.
26.6 Voting Procedure
(a) (Voting): Every question submitted to a meeting must be decided in
the first instance by a show of hands and in case of equality of
votes the chairman has both on a show of hands and on a poll a
casting vote in addition to the vote or votes (if any) to which he
or she may be entitled as a Relevant Investor or as a
Representative of a Relevant Investor.
(b) (Poll): At any meeting, unless a poll is (before or on the
declaration of the result of the show of hands) demanded by the
chairman, the Trustee or the Manager or by one or more persons
being Relevant Investors holding, or being Representatives holding
or representing, in aggregate not less than 2% of the Securities
or Units corresponding to the meeting of the Relevant Investors
and then outstanding, a declaration by the chairman that a
resolution has been carried by a particular majority or lost or
not carried by any particular majority is conclusive evidence of
the fact without proof of the number or proportion of the votes
recorded in favour of or against such resolution.
(c) (Method of poll): If at any meeting a poll is so demanded, it must
be taken in such manner and (subject as hereinafter provided)
either at once or after such an adjournment as the chairman
directs and the result of such poll will be deemed to be the
resolution of the meeting at which the poll was demanded as at the
date of the taking of the poll. The demand for a poll will not
prevent the continuance of the meeting for the transaction of any
business other than the question on which the poll has been
demanded.
(d) (Poll for election of chairman or adjournment): Any poll demanded
at any meeting on the election of a chairman or on any question of
adjournment must be taken at the meeting without adjournment.
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(e) (Representatives): Subject to clause 26.6(a), at any meeting:
(i) on a show of hands every person being a Relevant Investor
holding, or being a Representative holding or representing,
then outstanding Securities or Units corresponding to the
meeting of the Relevant Investors has one vote; and
(ii) on a poll every person who is present has one vote for each
Security or Unit corresponding to the meeting of the
Relevant Investors and then outstanding that he or she
holds or in respect of which he or she is a Representative.
Any person entitled to more than one vote need not use all
his or her votes or cast all his or her votes to which he
or she is entitled in the same way.
26.7 Right to Attend and Speak
The Trustee and the Manager (through their respective representatives)
and their respective financial and legal advisers are entitled to attend
and speak at any meeting of Relevant Investors. No person is otherwise
entitled to attend or vote at any meeting of Relevant Investors unless he
or she holds outstanding Securities or Units corresponding to the meeting
of the Relevant Investors or is a Representative holding or representing
such Securities or Units.
26.8 Appointment of proxies
(a) (Proxy): Each appointment of a proxy must be in writing and,
together (if so required by the Trustee) with proof satisfactory
to the Trustee of its due execution, must be deposited (including
by facsimile provided the original is received by the Trustee
prior to the relevant meeting) at the registered office of the
Trustee or at such other place as the Trustee designates or
approves not less than 24 hours before the time appointed for
holding the meeting or adjourned meeting at which the named proxy
proposes to vote and in default, the appointment of proxy will not
be treated as valid unless the chairman of the meeting decides
otherwise before such meeting or adjourned meeting proceeds to
business. A notarially certified copy proof as aforesaid (if
applicable) of due execution must if required by the Trustee be
produced by the proxy at the meeting of adjourned meeting but the
Trustee is not thereby obliged to investigate or be concerned with
the validity of, or the authority of, the proxy named in any such
appointment. The proxy named in any appointment of proxy need not
be a Relevant Investor.
(b) (Proxy votes valid): Any vote given in accordance with the terms
of an appointment of proxy conforming with clause 26.8(a) will be
valid notwithstanding the previous revocation or amendment of the
appointment of proxy or of any of the Relevant Investor's
instructions pursuant to which it was executed, provided that no
intimation in writing of such revocation or amendment is received
by the Trustee at its registered office or by the chairman of the
meeting in each case not less than 24 hours before the
commencement of the meeting or adjourned meeting at which the
appointment of proxy is used.
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26.9 Corporate Representatives
A person authorised pursuant to sections 249(3)-(6) of the Corporations
Law by a Relevant Investor being a body corporate to act for it at any
meeting is, in accordance with his or her authority until his or her
authority is revoked by the body corporate concerned, entitled to
exercise the same powers on behalf of that body corporate as that body
corporate could exercise if it were an individual Relevant Investor and
is entitled to produce evidence of his or her authority to act at any
time before the time appointed for the holding of or at the meeting or
adjourned meeting or for the taking of a poll at which he or she proposes
to vote.
26.10 Rights of Representatives
A Representative of a Relevant Investor has the right to demand or join
in demanding a poll and (except and to the extent to which the
Representative is specially directed to vote for or against any proposal)
has power generally to act at a meeting for the Relevant Investor. The
Trustee, the Manager and any officer of the Trustee and the Manager may
be appointed a Representative.
26.11 Powers of a Meeting of Securityholders
(a) (Powers): A meeting of Relevant Investors has, without prejudice
to any rights or powers conferred on other persons by the
Transaction Documents, only power exercisable by Extraordinary
Resolution:
(i) to sanction any action that the Trustee or the Manager
proposes to take to enforce the provisions of any
Transaction Document relating to the Relevant Investors;
(ii) to sanction any proposal by the Manager or the Trustee, for
any modification, abrogation, variation or compromise of,
or arrangement in respect of, the rights of the Relevant
Investors against the Trustee or the Manager whether such
rights arise under any Transaction Document or otherwise;
(ii) to sanction the exchange or substitution of Securities or
Units for or the conversion of Securities or Units into,
other obligations or securities of the Trustee or any other
body corporate formed or to be formed;
(iv) pursuant to clause 25 to consent to any amendment, addition
or revocation of this Deed proposed by the Trustee or the
Manager;
(v) to discharge or exonerate the Trustee, the Manager, the
Nominated Seller or the Nominated Servicer from any
liability in respect of any act or omission for which it
may become responsible under any Transaction Document
relating to the Relevant Investors; and
(vi) to authorise the Trustee, the Manager or any other person
to concur in and execute and do all such documents, acts
and things as may be necessary to carry out and give effect
to any Extraordinary Resolution.
(b) (Limitation): A meeting of Relevant Investors does not have power
to, nor will any
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resolution submitted to the meeting propose or have the effect of:
(i) removing the Trustee, the Manager or any Nominated Servicer
from office, other than in accordance with the terms of
this Deed or the corresponding Series Supplement;
(ii) interfering with the management of any Series Trust;
(ii) winding up or terminating any Series Trust; or
(iv) disposing of, or otherwise dealing with, the Assets of any
Series Trust.
26.12 Extraordinary Resolution Binding on Relevant Investors
An Extraordinary Resolution passed at a meeting of Relevant Investors
duly convened and held in accordance with this Deed or passed in
accordance with clause 26.14 is binding upon all the Relevant Investors
whether or not present at such meeting and each of the Relevant
Investors, the Trustee and the Manager are bound to give effect thereto
accordingly provided that:
(a) (If resolution affects particular Class): a resolution of all
Relevant Investors which in its terms (or having regard to the
terms of this Deed) affects a particular Class of Securityholders
or Unitholders only, or in a manner different to the rights of the
Relevant Investors generally, is not binding on the
Securityholders or Unitholders of that particular Class unless the
Securityholders or Unitholders of that particular Class have, by
Extraordinary Resolution, agreed to be bound thereby; and
(b) (If resolution affects a particular Investor): a resolution of
Relevant Investors which in its terms (or having regard to the
terms of this Deed) affects a particular Investor only, or in a
manner different to the rights of all Investors of its Class
generally, is not binding on that Investor unless it has agreed to
be bound thereby.
26.13 Minutes and Records
Minutes of all resolutions and proceedings at every meeting of Relevant
Investors must be made and duly entered in the books to be from time to
time provided for that purpose by the Trustee and any such minutes as
aforesaid if purporting to be signed by the chairman of the meeting at
which such resolutions were passed or proceedings transacted or by the
chairman of the next succeeding meeting of the Relevant Investors are
conclusive evidence of the matters therein contained and until the
contrary is proved every such meeting in respect of the proceedings of
which minutes have been made and signed as aforesaid are deemed to have
been duly convened and held and all resolutions passed or proceedings
transacted thereat to have been duly passed and transacted.
26.14 Written resolutions
Notwithstanding the preceding provisions of this clause 26, a resolution
of Relevant Investors (including an Extraordinary Resolution) may be
passed, without any meeting or previous notice being required, by an
instrument or instruments in writing which has or have:
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(a) (Written resolution): in the case of a resolution (including an
Extraordinary Resolution) of Relevant Investors, been signed by
all Relevant Investors; and
(b) (When effective): any such instrument is effective upon
presentation to the Trustee for entry in the records referred to
in clause 26.13.
26.15 Further Procedures for Meetings
Subject to all other provisions contained in this Deed, the Trustee may,
without the consent of the Relevant Investors, prescribe such further
regulations regarding the holding of meetings of Relevant Investors and
attendance and voting thereat as the Trustee may in its sole discretion
determine including particularly (but without prejudice to the generality
of the foregoing) such regulations and requirements as the Trustee thinks
reasonable:
(a) (Regarding entitlement to vote): so as to satisfy itself that
persons who purport to attend or vote at any meeting of the
Relevant Investors are entitled to do so in accordance with this
Deed; and
(b) (Regarding Representatives): as to the form of appointment of a
Representative.
27. MISCELLANEOUS
27.1 Inspection of Transaction Documents
A copy of the Transaction Documents (other than any Dealer Agreement) in
relation to a Series Trust, together with all amendments, must at all
times during usual business hours be made available by the Manager in
Sydney for inspection (but not copying) by each Unitholder and
Securityholder in respect of the Series Trust.
27.2 Certificates by Manager
Any statement or certificate by the Manager in relation to any act,
matter, thing or state of affairs in relation to any of the Series
Trusts, this Deed or any other Transaction Document will, in the absence
of manifest error be final, and be binding and conclusive upon the
Trustee, the Unitholders, the Securityholders and all other persons.
27.3 Waivers, Remedies Cumulative
Save as provided in this Deed, no failure to exercise and no delay in
exercising on the part of the Trustee or the Manager of any right, power
or privilege under this Deed shall will operate as a waiver, nor will any
single or partial exercise of any right power or privilege preclude any
other or further exercise of such right power or privilege, or the
exercise of any other right, power or privilege.
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27.4 Rights Cumulative
The rights, powers and remedies provided in this Deed are cumulative and
not exclusive of the rights, powers or remedies provided by law
independently of this Deed.
27.5 Retention of Documents
All applications for Securities, cancelled Security Certificates,
Security Transfers and instruments of transmission must be retained by
the Manager for a period of 7 years but on the expiration of 7 years from
the date of any such document the same may be destroyed.
27.6 Governing Law
This Deed will be governed by and construed in accordance with the laws
of the Australian Capital Territory.
27.7 Jurisdiction
(a) (Submission to Jurisdiction): The Trustee, the Manager, each
Unitholder and each Securityholder, irrevocably submit to and
accept, generally and unconditionally, the non-exclusive
jurisdiction of the courts and appellate courts of the Australian
Capital Territory with respect to any legal action or proceedings
which may be brought at any time relating in any way to this Deed.
(b) (Waiver of inconvenient forum): The Trustee, the Manager, each
Unitholder and each Securityholder, 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.
27.8 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.
27.9 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.
27.10 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.
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EXECUTED as a deed.
SIGNED, SEALED AND DELIVERED )
for and on behalf of )
SECURITISATION ADVISORY )
SERVICES PTY LIMITED, ) Signature of Alfonso del Rio
ACN 064 133 946, by Alfonso del Rio ) Solicitor (ACT & NSW)
under a power of attorney dated 7 October ) -------------------------------
1997 and registered number 109792, ) (Signature of Attorney)
in the presence of: )
)
Signature of Rachael Lewis
--------------------------
(Signature of Witness)
RACHAEL LEWIS
Solicitor, A.C.T.
--------------------------
(Name of Witness in Full)
SIGNED, SEALED AND DELIVERED )
for and on behalf of PERPETUAL )
TRUSTEE COMPANY LIMITED, ACN )
000 001 007, by Merle Hunt ) Signature of Merle Hunt
under a power of attorney dated ) -------------------------------
8 October 1997 and registered number ) (Signature of Attorney)
109963, in the presence of: )
Signature of Rachael Lewis
-----------------------------
(Signature of Witness)
RACHAEL LEWIS
Solicitor, A.C.T.
-----------------------------
(Name of Witness in Full)
81.
