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DATED 2001
HOMESIDE MORTGAGE
SECURITIES TRUST 2001-1
SUPPLEMENTAL DEED
PERPETUAL TRUSTEE COMPANY
LIMITED
("ISSUER TRUSTEE")
HOMESIDE GLOBAL MBS MANAGER,
INC.
("GLOBAL TRUST MANAGER")
NATIONAL AUSTRALIA BANK LIMITED
("SELLER")
P.T. LIMITED
("SECURITY TRUSTEE")
NATIONAL AUSTRALIA BANK
LIMITED, TRADING AS HOMESIDE
("SERVICER")
MALLESONS STEPHEN JAQUES
Solicitors
Level 60
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Telephone (61 2) 9296 2000
Fax (61 2) 9296 3999
DX 113 Sydney
Ref: SRF
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CONTENTS HOMESIDE MORTGAGE SECURITIES TRUST 2001-1
SUPPLEMENTAL DEED
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PART 1 - INTERPRETATION 2
1 INTERPRETATION 2
Definitions 2
Transaction Document 16
Limited to Trust 16
Definitions and consistency 16
Master Security Trust Deed 16
Register 16
Transfer of Notes 17
Reporting Statement 17
Definitions Schedule 17
Support Facilities 18
Master Trust Deed 18
PART 2 - THE TRUST AND ITS ASSETS 19
2 TRUST 19
Name of Trust 19
Determination of final Payment Date 19
Realisation of Assets of the Trust 19
Conditions of Sale during 180 days 19
Right of refusal 20
Sale at lower price 20
Conditions of sale after 180 days 20
Further conditions of sale after 180 days 21
Procedures pending winding-up 21
Costs on winding-up of the Trust 22
Calculation of Final Distributions 22
Final Distributions 22
3 ENTITLEMENT OF BENEFICIARIES 22
Issue of Units 22
Residual Capital Unit 23
Residual Income Unit 23
Unit Register 24
Transfer of Units 24
Limit on rights 25
4 CONSUMER CREDIT CODE 25
Right of indemnity - Consumer Credit Legislation 25
Servicer 25
5 REPURCHASE OPTION 26
Clean-Up offer 26
Calculation 26
Acceptance 26
Consent of Noteholders 26
Reconveyance 26
Clean-Up Amount 27
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Purchase of Defaulted Loans 28
6 MORTGAGE LOANS 28
Requirement to satisfy 28
PART 3 - THE NOTES 29
7 PURPOSE 29
Purpose 29
Criteria 29
General 29
8 TERMS OF ISSUE OF THE NOTES 29
Notes to be issued 29
Form, constituent documents and denomination of
the Notes 30
Issue of Redraw Notes 30
Initial Invested Amount of the Notes 31
Interest on the Class A Notes 31
Interest on the A$ Notes 31
Overdue interest 31
Redemption 32
Issuer Trustee's Covenant to the Noteholders 32
Register 33
Transfer and Transmission of Notes 33
Taxation 33
Prescription 34
Rounding of Payments 34
Call Option 34
Redemption for Taxation or Other Reasons 34
9 CONDITIONS PRECEDENT 36
Conditions precedent to the issue of Notes 36
10 REPRESENTATIONS AND WARRANTIES 37
Representations and Warranties 37
Trust representations and warranties 38
11 PAYMENTS 38
Manner 38
Cleared Funds 39
PART 4 - PRINCIPAL AND INCOME DETERMINATIONS AND
PAYMENTS 40
12 COLLECTIONS 40
Establishment of Collections Account with
Servicer 40
Remittance to Collection Account 40
Servicer's Collections 40
13 TERMINATION OF THE SWAPS AND APPLICATION OF
THRESHOLD RATE 40
Calculation of Threshold Rate 40
Termination of Basis Swap or Fixed Rate Swap 41
Servicer's Discretion 41
Issuer Trustee's power 42
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Termination of Linked Deposit Accounts 42
Gross Up for Linked Deposit Accounts 42
14 CASHFLOW ALLOCATION METHODOLOGY 42
General 42
Collection Period 42
Finance Charge Collections 42
Calculation of Available Income 43
Principal Draw 43
Liquidity Drawing 44
Calculation and application of Total Available
Income 44
Required Payments (Interest waterfall) 44
Excess Available Income 46
Principal Collections 47
Redraw Shortfall 47
Principal Distributions 48
Payments of Principal on the Notes and to the
Redraw Facility Provider 49
Principal Charge-Offs 50
Carryover Principal Charge-Offs 51
Increases 51
Early Repayment Costs 52
Application of proceeds following an Event of
Default 52
Excluded Amount 54
15 DETERMINATIONS BY GLOBAL TRUST MANAGER 54
Determinations by Global Trust Manager 54
16 GLOBAL TRUST MANAGER, ISSUER TRUSTEE AND
SERVICER FEES 55
Global Trust Manager's fee 55
Issuer Trustee's fee 55
Servicer's fee 56
Fee and GST 56
PART 5 - GENERAL 57
17 NOTICES 57
Notices 57
Deemed receipt 58
18 COUNTERPARTS 58
19 DAMAGES 58
Claim for Damages 58
Allocation of Damages 59
20 MISCELLANEOUS 59
Certificate 59
Exercise of rights 59
Waiver and variation 59
Supervening legislation 59
Approvals and consent 59
Remedies cumulative 60
Indemnities 60
Time of the essence 60
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Receipts 60
Acknowledgment 60
Disclosure of information 60
Rights cumulative 60
Signatures 61
21 GOVERNING LAW 61
Governing Law 61
Submission to jurisdiction 61
Service 61
22 LIMITED RECOURSE - ISSUER TRUSTEE 61
23 SELLER TRUST 61
Constitution of Seller Trust 61
Declaration of Trust 62
Entitlement 62
Dealing with assets 62
Treatment of Shared Collateral 62
Proceeds 63
Claw-Back 64
Duties 64
Indemnity 64
Termination 64
Transfer 64
Other liabilities 65
Shared Securities 65
24 SELLER PROVISIONS 65
Set-Off 65
Seller Downgrade 65
Reduction or increase of Seller Deposit 66
Interest on Seller Deposit 67
Seller Upgrade 67
Termination of Trust or Amendments to Mortgage
Loans 67
Withdrawals from the account 68
SCHEDULE 1 REGISTER 69
SCHEDULE 2 TRANSFER OF NOTES 72
SCHEDULE 3 STEPDOWN PERCENTAGE 76
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HOMESIDE MORTGAGE SECURITIES TRUST 2001-1
SUPPLEMENTAL DEED
DATE: 2001
PARTIES: PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001 007)
in its capacity as trustee of the Trust having its
registered office at Level 7, 39 Hunter Street, Sydney
NSW 2000 (hereinafter included in the expression
"ISSUER TRUSTEE")
HOMESIDE GLOBAL MBS MANAGER, INC having an office at 7301
Baymeadows Way, Jacksonville, Florida 32256, United
States of America ("GLOBAL TRUST MANAGER")
NATIONAL AUSTRALIA BANK LIMITED (ABN 12 004 044 937)
having its registered office at Level 24, 500 Bourke
Street, Melbourne, Victoria 3000 (in its capacity as
"SELLER")
P.T. LIMITED (ABN 67 004 454 666) in its capacity as
security trustee of the Security Trust having its
registered office at Level 7, 39 Hunter Street, Sydney
NSW 2000 (hereinafter included in the expression
"SECURITY TRUSTEE")
NATIONAL AUSTRALIA BANK LIMITED (TRADING AS HOMESIDE)
(ABN 12 004 044 937) having its registered office at
Level 24, 500 Bourke Street, Melbourne, Victoria 3000 (in
its capacity as "SERVICER")
RECITALS:
A. By the Master Trust Deed, provision was made for the
establishment of the Trust pursuant to a Notice of
Creation of Trust, which will be regulated by this deed.
B. The Issuer Trustee may acquire Mortgage Loans.
C. The Security Trustee will hold a security interest over
the Assets of the Trust under the Master Security Trust
Deed and the Deed of Charge.
D. The Servicer will be appointed to service the Mortgage
Loans, which, from time to time, will comprise Assets of
the Trust under, the Servicing Agreement and this deed.
E. The Issuer Trustee, at the direction of the Global Trust
Manager, may obtain funds by issuing the Notes in
accordance with the terms of this deed.
F. The parties to this deed have agreed that the terms and
conditions for the constitution of the Trust and the
issuing of the Notes in respect of the Trust will be the
terms and conditions set out in the Master Trust Deed and
this deed.
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OPERATIVE PROVISIONS:
PART 1 - INTERPRETATION
1 INTERPRETATION
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DEFINITIONS
1.1 The following words have these meanings unless the
contrary intention appears:
A$ means the lawful currency of the Commonwealth of
Australia.
A$ CLASS A INTEREST AMOUNT means, in respect of a Class
A Note, a Payment Date and the Interest Period ending on
(but excluding) that Payment Date, an amount calculated
as follows:
A = B x C x N
---
365
where:
A = the A$ Class A Interest Amount for that Interest
Period;
B = the Total Invested Amount of the Class A Notes
on the Determination Date immediately preceding
the commencement of that Interest Period;
C = the A$ Class A Interest Rate for that Interest
Period; and
N = the number of days in that Interest Period.
A$ CLASS A INTEREST RATE means, in respect of a Class A
Note, a Payment Date and the Interest Period ending on
(but excluding) that Payment Date, the aggregate of:
(a) the Bank Bill Rate for that Interest Period; and
(b) the A$ Class A Margin for that Class A Note.
A$ CLASS A MARGIN, in respect of a Class A Note, has the
same meaning as the "Spread" specified under the heading
"A$ Floating Amounts payable by Party B" in the
confirmation for each Currency Swap.
A$ CLASS A PRINCIPAL means, in relation to a Payment
Date, the aggregate of:
(a) the amount allocated on that Payment Date from
Principal Collections to the A$ Class A Principal
pursuant to clause 14.13(e); and
(b) the amount allocated on that Payment Date from
Excess Available Income to the A$ Class A
Principal pursuant to clauses 14.10(a)(i) and
14.10(b)(i).
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A$ EQUIVALENT means, in relation to an amount which is
calculated, determined or expressed in US$ or which
includes a component determined or expressed in US$,
that US$ amount or US$ component (as the case may be)
multiplied by the A$ Exchange Rate and expressed in A$.
A$ EXCHANGE RATE means the "A$ Exchange Rate" specified
under the heading "Exchange Rates" in the confirmation
for each Currency Swap.
A$ NOTE means a Class B Note and a Redraw Note, as the
case may be.
A$ NOTE INTEREST AMOUNT means, in respect of an A$ Note,
a Payment Date and the Interest Period ending on (but
excluding) that Payment Date, the amount calculated in
accordance with clause 8.7 for that A$ Note.
A$ NOTE INTEREST RATE means, in respect of an A$ Note, a
Payment Date and the Interest Period ending on (but
excluding) that Payment Date, the aggregate of:
(a) the Bank Bill Rate for that Interest Period; and
(b) the A$ Note Margin for that A$ Note.
A$ NOTE MARGIN means, in relation to an A$ Note, the
margin (expressed as a percentage per annum) notified by
the Global Trust Manager for the relevant A$ Note in
accordance with the Dealer Agreement (in the case of the
Class B Notes) or as determined by the Global Trust
Manager under clause 8.3 of this deed (in the case of
Redraw Notes), as the case may be, and advised by the
Global Trust Manager to the Issuer Trustee.
AGGREGATE STATED AMOUNT means, on any Determination
Date, the aggregate of the A$ Equivalent of the Stated
Amounts of the relevant Notes at that time.
AVAILABLE INCOME means, for any period, the amount
calculated in accordance with clause 14.4.
AVAILABLE LIQUIDITY AMOUNT has the meaning given to it
in the Liquidity Facility Agreement.
AVAILABLE REDRAW AMOUNT has the meaning given to it in
the Redraw Facility Agreement.
BANK BILL RATE means, in respect of any Interest Period,
the rate expressed as a percentage per annum:
(a) calculated by taking the rate appearing on the
Reuters screen BBSW page at or about 10.15 am
(Melbourne time) on the first day of that Interest
Period for each bank so quoting (being no fewer
than five) as being the mean buying and selling
rate for a bill (which for the purpose of this
definition means a bill of exchange of the type
specified for the purpose of quoting on the
Reuters screen BBSW page) having a tenor of 90
days after
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eliminating the highest and the lowest mean rates and
taking the average of the remaining mean rates (rounded
up, if necessary, to the nearest four decimal places);
(b) if fewer than five banks quote on the Reuters
screen BBSW page, the rate calculated as above by
taking the rates otherwise quoted by five banks
otherwise authorised to quote rates on the Reuters
screen BBSW page at or about 10.15 am (Melbourne
time) for a bill of exchange having a tenor of 90
days; or
(c) if a rate cannot be determined in accordance with
the procedures in (a) or (b), the rate specified
in good faith by the Global Trust Manager at or
around that time on that day, having regard, to
the extent possible, to comparable indices then
available as to the rate otherwise bid and offered
for bills of exchange having a tenor of 90 days,
provided that, in respect of the first Interest Period
if the Interest Period is less than 90 days, the Bank
Bill Rate for that Interest Period will be the Bank Bill
Rate for 90 days and if the first Interest Period is
greater than 90 days, the Bank Bill Rate for that
Interest Period will be calculated by the Global Trust
Manager to be a linear interpolated rate for the
relevant period.
BASIS SWAP means an ISDA Master Agreement, the schedule
relating to it and each confirmation between the Basis
Swap Provider, the Issuer Trustee and the Global Trust
Manager under which the Issuer Trustee pays to the Basis
Swap Provider an amount in respect of Purchased Mortgage
Loans that do not bear interest at a fixed rate and
under which the Basis Swap Provider pays to the Issuer
Trustee an amount calculated by reference to the Bank
Bill Rate.
BASIS SWAP PROVIDER means National Australia Bank
Limited or such other person who may be appointed under
this deed or the Basis Swap to act as the Basis Swap
Provider.
CALL OPTION DATE means, in respect of the Notes, each
Payment Date commencing on or after the earlier of:
(a) the Payment Date falling in April 2008; and
(b) the Payment Date on which the aggregate
Outstanding Principal Balance of all Housing Loans
referable to the Purchased Mortgage Loans
(calculated as at the end of the immediately
preceding Collection Period) is less than 10% of
the aggregate Outstanding Principal Balance of all
Housing Loans referable to the Purchased Mortgage
Loans on the Closing Date.
CARRYOVER PRINCIPAL CHARGE-OFF has the meaning given in
clause 14.15.
CLASS A BOOK-ENTRY NOTE means a Book-Entry Note (as
defined in the Definitions Schedule) issued in respect
of the Class A Notes.
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CLASS A DEFINITIVE NOTE means a Definitive Note (as
defined in the Definitions Schedule) issued in respect
of the Class A Notes.
CLASS A NOTE means a Note referred to in clause 8.1(a)
and issued on the terms and conditions contained in the
Class A Note Conditions.
CLASS A NOTEHOLDER has the same meaning as in the Class
A Note Conditions.
CLASS A NOTE CONDITIONS means the terms and conditions
for the Class A Notes as annexed as Schedule 1 to the
Note Trust Deed in respect of the Trust.
CLASS A NOTE OWNER means a Note Owner (as defined in the
Definitions Schedule) in respect of the Class A Notes.
CLASS A NOTE PERCENTAGE means on any Determination Date
a percentage calculated as follows:
ASA(A)
CANP = ---------
ASA + RPO
where:
CANP = the Class A Note Percentage
ASA(A) = the Aggregate Stated Amount of the Class A
Notes on the immediately preceding
Determination Date;
ASA = the Aggregate Stated Amount of all Notes on the
immediately preceding Determination Date;
RPO = the Redraw Principal Outstanding calculated on
the immediately preceding Determination Date,
provided that, in respect of the first Determination
Date, such amounts will be calculated by reference to
the Initial Invested Amount of the relevant Classes of
Notes and RPO will be zero.
CLASS A NOTE REGISTER means the Note Register (as
defined in the Definitions Schedule) maintained in
respect of the Class A Notes.
CLASS A NOTE REGISTRAR means the Note Registrar (as
defined in the Definitions Schedule) in respect of the
Class A Notes.
CLASS B NOTE means a Note referred to in clause 8.1(b)
issued on the terms and conditions contained in this
deed and the Dealer Agreement.
CLASS B NOTEHOLDER means each person who is from time to
time entered in the Register as the holder of a Class B
Note.
CLASS B PERCENTAGE means, on any Determination Date, a
percentage calculated as follows:
ASA(B)
CANP = ---------
ASA + RPO
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where:
CBP = the Class B Percentage;
ASA(B) = the Aggregate Stated Amount of the Class B
Notes on the immediately preceding
Determination Date;
ASA = the Aggregate Stated Amount of all Notes on the
immediately preceding Determination Date;
RPO = the Redraw Principal Outstanding calculated on
the immediately preceding Determination Date,
provided that, in respect of the first Determination
Date, such amounts will be calculated by reference to
the Initial Invested Amount of the relevant Classes of
Notes and RPO will be zero.
CLASS B PRINCIPAL means, in relation to a Payment Date,
the aggregate of:
(a) the amount allocated on that Payment Date from
Principal Collections to the Class B Principal
pursuant to clause 14.13(f); and
(b) the amount allocated on that Payment Date from
Excess Available Income to the Class B Principal
pursuant to clauses 14.10(c) and 14.10(d).
CLEAN-UP ACCOUNT means the bank account established by
the Issuer Trustee under clause 5.6(iii)(A) and, pending
the establishment of that bank account in accordance
with this deed, means the Collections Account.
CLEAN-UP AMOUNT means, on a Determination Date, an
amount equal to the lesser of:
(a) 0.25% x (TIA + RPO); and
(b) $25,000,
where TIA is the Total Invested Amount of all Notes on
that Determination Date and RPO is the Redraw Principal
Outstanding on that Determination Date.
CLEAN-UP OFFER has the meaning given to it in clause
5.1.
CLEAN-UP OFFER AMOUNT has the meaning given to it in
clause 5.1.
CLEAN-UP OPTION means the offer by the Issuer Trustee to
reconvey the Purchased Mortgage Loans to the Seller
under clause 5.1.
CLOSING DATE means the date on which the offer contained
in a Secondary Sale Agreement is accepted by the Issuer
Trustee.
COLLATERAL ACCOUNT means any collateral account (as
defined in, and established under, a Support Facility).
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COLLECTION PERIOD means, in relation to a Payment Date,
the period from (and including) the first day of the
Quarter immediately preceding the related Determination
Date up to (and including) the last day of the Quarter
immediately preceding the related Determination Date
except in the case of the first Collection Period, which
commences on the day after the Cut-Off Date and ends on
31 March 2001.
COLLECTIONS means:
(a) all amounts received by the Seller, the Servicer,
the Global Trust Manager or the Issuer Trustee
after the Cut-Off Date in respect of the Purchased
Mortgage Loans (including, without limitation, all
principal, interest, the proceeds received under
any Mortgage Insurance Policy, any proceeds
recovered from any enforcement action in respect
of a Purchased Mortgage Loan, amounts received on
a repurchase of a Purchased Mortgage Loan, any
amount received from the Seller as damages in
respect of a breach of any representation,
warranty or covenant in connection with the
Purchased Mortgage Loans and any other amounts
received in relation to the Purchased Mortgage
Loans),
but excluding:
(b) the Servicer's Collections;
(c) any Early Repayment Costs; and
(d) any interest credited to any Collateral Account in
respect of a Support Facility.
CURRENCY SWAP means each ISDA Master Agreement, the
schedule to it, each confirmation issued under it, and
any credit support annex entered into in connection with
it between a Currency Swap Provider, the Issuer Trustee,
the Global Trust Manager and a person acting as the
support provider.
CURRENCY SWAP PROVIDER means each of National Australia
Bank Limited and Deutsche Bank AG, New York Branch, and
any other person who subsequently enters into a currency
swap with the Issuer Trustee and the Global Trust
Manager.
DEALER AGREEMENT means the agreement entitled "HomeSide
Mortgage Securities Trust 2001-1 Dealer Agreement"
between the Issuer Trustee, the Global Trust Manager,
the Seller and National Australia Securities Limited
(ABN 84 006 982 332).
DEFINITIONS SCHEDULE means the deed entitled "HomeSide
Mortgage Securities Trusts Definitions Schedule" dated
on or about the date of this deed and made between the
parties named in schedule 1 to that deed.
DELEGATION DEED means the deed entitled "HomeSide
Mortgage Securities Trusts Deed of Delegation" dated 24
January 2001 between
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the Global Trust Manager and National Australia Managers
Limited (ABN 70 006 437 565).
DETERMINATION DATE means the day which is 5 Business
Days prior to a Payment Date.
EARLY REPAYMENT COSTS mean those costs which are
actually received from a Debtor during a Collection
Period as a result of the Debtor prepaying any amount in
respect of a Fixed Interest Rate Loan.
ENFORCEMENT EXPENSES means all expenses paid by or on
behalf of the Servicer in connection with the
enforcement of any Purchased Mortgage Loan.
EXCESS AVAILABLE INCOME has the meaning given to it in
clause 14.10.
EXPENSES OF THE TRUST means all costs, charges and
expenses reasonably and properly incurred by the Issuer
Trustee or the Global Trust Manager in connection with
the Trust and any other amounts for which the Issuer
Trustee is entitled to be reimbursed or indemnified out
of the Trust and which the Issuer Trustee elects to pay,
including, without limitation, the expenses as described
in -clause 26.3 of the Master Trust Deed.
EXTRAORDINARY EXPENSES means, on a Determination Date,
any out of pocket expenses incurred by the Issuer
Trustee during the immediately preceding Collection
Period that are not Required Payments in respect of that
Determination Date.
FINAL MATURITY DATE means the Payment Date occurring in
January 2027.
FINAL TERMINATION DATE means the date referred to in
clause 2.2.
FINANCE CHARGE COLLECTIONS means, in respect of a
Determination Date, the amount calculated in accordance
with clause 14.3.
FIXED INTEREST RATE LOAN means any Housing Loan
comprising part of a Mortgage Loan in respect of which
the Seller or the Servicer cannot vary the interest rate
charged to the Debtor for a specified period of time.
FIXED RATE SWAP means an ISDA Master Agreement, the
schedule relating to it and each confirmation between
the Fixed Rate Swap Provider, the Issuer Trustee and the
Global Trust Manager, under which the Issuer Trustee
pays to the Fixed Rate Swap Provider an amount in
respect of Purchased Mortgage Loans that bear interest
at a fixed rate and under which the Fixed Rate Swap
Provider pays to the Issuer Trustee an amount calculated
by reference to the Bank Bill Rate.
FIXED RATE SWAP PROVIDER means National Australia Bank
Limited, or such other person who may be appointed under
this deed or the Fixed Rate Swap to act as the Fixed
Rate Swap Provider.
INITIAL INVESTED AMOUNT has, in relation to a Class A
Note, the meaning given to it in clause 8.5(a) and, in
relation to an A$ Note, has the meaning given to it in
clause 8.5(b).
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INTEREST AMOUNT means, in respect of a Class A Note and
in respect of any Interest Period, the amount calculated
in accordance with clause 8.6.
INTEREST PERIOD, in respect of a Note, means (initially)
the period from (and including) the Issue Date to (but
excluding) the first Payment Date and thereafter each
period from (and including) each Payment Date to (but
excluding) the next following Payment Date. The final
Interest Period is from (and including) the Payment Date
immediately preceding the date on which interest ceases
to accrue on the Note pursuant to the Class A Note
Conditions or this deed, as the case may be, to (but
excluding) the date on which interest ceases to accrue
on the Note pursuant to the Class A Note Conditions or
this deed, as the case may be.
INVESTED AMOUNT on any Determination Date:
(a) in respect of a Class A Note, has the same meaning
as in the Class A Note Conditions;
(b) in respect of an A$ Note, means an amount equal
to:
(i) the Initial Invested Amount of that A$
Note; less
(ii) the aggregate of all Principal Amounts
which have been paid before that date in
relation to that A$ Note; less
(iii) the Principal Amount to be paid on the next
Payment Date in relation to that A$ Note.
LINKED DEPOSIT ACCOUNT means a deposit account
maintained by a Debtor with the Seller under which
either:
(a) interest that would otherwise be earned in respect
of the deposit account is set off against interest
due under the Housing Loan of that Debtor; or
(b) interest is not earned on the deposit account, but
interest due under the Housing Loan of that Debtor
is calculated by deducting the credit balance of
that deposit account from the balance of the
Housing Loan, and then applying the interest rate
applicable to the Housing Loan to the result.
LIQUIDITY DRAWING means the amount drawn under the
Liquidity Facility on any Payment Date.
LIQUIDITY SHORTFALL means, on a Determination Date, the
amount (if any) by which the Payment Shortfall on that
Determination Date exceeds the Principal Draw which is
allocated on that Determination Date for application
towards the Payment Shortfall in accordance with clause
14.5.
MORTGAGE INSURANCE INTEREST PROCEEDS means, in respect
of a Purchased Mortgage Loan, the amount received by or
on behalf of the Issuer Trustee under a Mortgage
Insurance Policy and which is
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determined by the Global Trust Manager not to be in the
nature of principal.
MORTGAGE INSURANCE POLICY includes, for the purposes of
the Definitions Schedule, the Pool Insurance Policy.
MORTGAGE INSURER means each of:
(a) GE Mortgage Insurance Pty Limited (ABN 61 071 466
334);
(b) GE Capital Mortgage Insurance Corporation
(Australia) Pty Limited (ABN 52 081 488 440); and
(c) Housing Loans Insurance Corporation,
and any other mortgage insurer approved by the Global
Trust Manager and acceptable to each Current Rating
Agency.
NOTES means:
(a) the Class A Notes;
(b) the Class B Notes; and
(c) the Redraw Notes.
OTHER INCOME means, on a Determination Date (and without
double counting any amounts included in Other Income on
a preceding Determination Date) any interest received on
Authorised Investments or on the Collections Account
during the immediately preceding Collection Period and
any other miscellaneous income received or expected to
be received by the Issuer Trustee on or before the
immediately following Payment Date but excluding any
interest received on any Collateral Account.
PAYMENT DATE means the 20th day of each of January,
April, July and October. The first Payment Date will be
20 April 2001.
PAYMENT SHORTFALL means, on a Determination Date, the
amount by which the Available Income is insufficient to
meet the Required Payments as calculated on that
Determination Date.
PENALTY PAYMENT means:
(a) the amount of any liability (including, without
limitation, any civil or criminal penalty) which
the Issuer Trustee is liable for under the
Consumer Credit Code;
(b) any other liability payable by the Issuer Trustee,
or legal costs or other expenses payable or
incurred by the Issuer Trustee, in relation to
such liability;
(c) any amount which the Issuer Trustee agrees to pay
(with the consent of the Servicer) to a Debtor or
other person in settlement of any liability or
alleged liability or application for an order
under Part 6 of the Consumer Credit Code; and
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(d) any legal costs or other costs and expenses
payable or incurred by the Issuer Trustee in
relation to that application or settlement,
to the extent to which a person can be indemnified for
that liability, money or amount under the Consumer
Credit Code.
POOL INSURANCE POLICY means the policy of insurance to
be issued to the Issuer Trustee and the Seller by GE
Capital Mortgage Insurance Corporation (Australia) Pty
Limited in respect of Purchased Mortgage Loans which are
not subject to Lender's Mortgage Insurance. The POOL
INSURANCE POLICY comprises a MORTGAGE INSURANCE POLICY
for the purposes of the Definitions Schedule in respect
of the Trust.
PRINCIPAL AMOUNT means, in respect of any Note and any
Payment Date, any amount of principal which is payable
in respect of such Note on such Payment Date.
PRINCIPAL CHARGE-OFFS means, in respect of a Collection
Period, the aggregate losses including principal and
interest (as determined by the Global Trust Manager) for
all Purchased Mortgage Loans which arise during that
Collection Period after all enforcement action has been
taken in respect of any Purchased Mortgage Loan and
after taking into account:
(a) all proceeds received as a consequence of
enforcement under any Purchased Mortgage Loans
(less the relevant Enforcement Expenses) during
that Collection Period;
(b) proceeds of any claims under a Mortgage Insurance
Policy during that Collection Period; and
(c) any payments received during that Collection
Period from the Seller or the Servicer for a
breach of its obligations under the Transaction
Documents.
PRINCIPAL COLLECTIONS means, in respect of a
Determination Date and the Collection Period immediately
preceding that Determination Date, the amount calculated
in accordance with clause 14.11.
PRINCIPAL DRAW means each distribution of Principal
Collections made in accordance with clauses 14.5 and
14.13(c).
QUARTER means the three month period in each year
commencing on 1 January, 1 April, 1 July and 1 October.
RECOVERIES means amounts received from or on behalf of
Debtors or under any Mortgage or any Collateral Security
in respect of Purchased Mortgage Loans that were
previously the subject of a loss as described in the
definition of Principal Charge-Offs.
REDRAW means the Seller's re-advance to a Debtor of
repayments of principal made by that Debtor on its
Housing Loan in accordance with the terms of the
relevant Loan Agreement.
REDRAW DRAWING has the meaning given to that term in the
Redraw Facility Agreement.
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REDRAW LIMIT has the meaning given to it in the Redraw
Facility Agreement in respect of the Trust.
REDRAW NOTE means a Note referred to in clause 8.1(c)
issued on the terms and conditions contained in this
deed.
REDRAW NOTE PERCENTAGE means on any Determination Date a
percentage calculated as follows:
ASA(RN)
CANP = ---------
ASA + RPO
where:
RNP = the Redraw Note Percentage;
ASA(RN) = the Aggregate Stated Amount of the Redraw
Notes on the immediately preceding
Determination Date;
ASA = the Aggregate Stated Amount of all Notes on
the immediately preceding Determination Date;
and
RPO = the Redraw Principal Outstanding on the
immediately preceding Determination Date,
provided that, on the first Determination Date, the
Redraw Note Percentage will be zero.
REDRAW NOTEHOLDER means each person who is from time to
time entered in the Register as the holder of a Redraw
Note.
REDRAW NOTE PRINCIPAL means, in relation to a Payment
Date, the aggregate of:
(a) the amount allocated on that Payment Date from
Principal Collections to the Redraw Note Principal
pursuant to clause 14.13(d); and
(b) the amount allocated on that Payment Date from
Excess Available Income to Redraw Note Principal
pursuant to clauses 14.10(a)(iii) and
14.10(b)(iii).
REDRAW PRINCIPAL in relation to a Payment Date, means
the aggregate of:
(a) the amount allocated on that Payment Date from
Principal Collections to the Redraw Principal
pursuant to clause 14.13(b); and
(b) the amount allocated on that Payment Date from
Excess Available Income to the Redraw Principal
pursuant to clauses 14.10(a)(ii) and 14.10(b)(ii).
REDRAW PRINCIPAL OUTSTANDING means, on a Determination
Date, an amount equal to:
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(a) the aggregate of all Redraw Drawings previously
made or to be made on the immediately following
Payment Date; less
(b) the aggregate amount of all Redraw Principal
previously paid under clause 14.14(b) to the
Redraw Facility Provider; less
(c) the amount of any Redraw Principal under clause
14.14(b) to be paid to the Redraw Facility
Provider on the immediately following Payment
Date; less
(d) the amount of any Principal Charge-Offs allocated
to the Redraw Principal Outstanding under clause
14.14A(b)(ii) on that Determination Date which
will not be reimbursed on the immediately
following Payment Date under clause 14.10(a)(ii);
less
(e) (without double counting any Principal
Charge-Offs) any Carryover Principal Charge-Offs
in respect of the Redraw Principal Outstanding
which have not been reimbursed on or before the
immediately following Payment Date under clause
14.10(b)(ii).
REDRAW SHORTFALL means, on a Determination Date, the
amount (if any) by which the Principal Collections (as
calculated on that Determination Date and prior to
taking into account any Redraw Drawings to be made on
the next Payment Date and the proceeds of any Redraw
Notes to be issued on the next Payment Date) are
insufficient to meet in full any Redraws made by the
Seller during the immediately preceding Collection
Period which are repayable to the Seller pursuant to
clause 14.13(a).
RELEVANT PARTIES means each of the Global Trust Manager,
the Seller, the Servicer, the Security Trustee, the
Depositor, the Calculation Agent, each Paying Agent, the
Note Trustee, each Counterparty, the Redraw Facility
Provider and the Liquidity Facility Provider.
REQUIRED PAYMENTS means the aggregate of the priority
payments in paragraphs (a) to (g) inclusive of clause
14.8 calculated by the Global Trust Manager on each
Determination Date under clause 14.8.
REQUIRED CREDIT RATING means in respect of:
(a) S&P, either a short term rating of A-1+ or a long
term rating of AAA (as the case may be) or such
other rating agreed between the Global Trust
Manager and S&P and notified to the Issuer
Trustee; and
(b) Fitch, F1+ (or where the Seller is the Servicer,
F1) or such other rating agreed between the Global
Trust Manager and Fitch and notified to the Issuer
Trustee; and
(c) Moody's, P-1 or such other rating agreed between
the Global Trust Manager and Moody's and notified
to the Issuer Trustee; and
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(d) any other Current Rating Agency, a rating
acceptable to that Current Rating Agency.
SECURED MONEY has the meaning given to it in the Deed of
Charge for the Trust.
SECURED PROPERTY has the meaning given to it in the Deed
of Charge for the Trust.
SECURITIES ACT means the Securities Act of 1933 (US).
SERVICER'S COLLECTIONS means any and all amounts in the
nature of a fee, charge or expense (however described)
paid by a Debtor under or in connection with a Purchased
Mortgage Loan during the life of, or on prepayment or
repayment of, that Purchased Mortgage Loan, in each case
as determined by the Servicer and notified to the Global
Trust Manager and the Issuer Trustee (but excluding any
Early Repayment Costs).
STATED AMOUNT:
(a) has, in relation to a Class A Note, the same
meaning as in the Class A Note Conditions;
(b) means, in relation to an A$ Note on any
Determination Date, an amount equal to:
(i) the Invested Amount of that A$ Note on that
Determination Date; less
(ii) the amount of any Principal Charge-Offs to
be allocated to that A$ Note under clause
14.14A on that Determination Date which
will not be reimbursed on the immediately
following Payment Date under clause
14.10(a)(iii) (in the case of a Redraw
Note) or clause 14.10(c) (in the case of a
Class B Note); less
(iii) (without double counting any Principal
Charge-Offs) any Carryover Principal
Charge-Offs in respect of that A$ Note
which have not been reimbursed on or before
the immediately following Payment Date
under clause 14.10(b)(iii) (in the case of
a Redraw Note) or clause 14.10(d) (in the
case of a Class B Note).
STEPDOWN PERCENTAGE means, on any Determination Date and
in respect of the immediately following Payment Date,
the percentage calculated in accordance with schedule 3
on that Determination Date.
SUPPORT FACILITIES includes, in addition to those items
set out in the Definitions Schedule:
(a) the Basis Swap;
(b) the Fixed Rate Swap; and
(c) each Currency Swap.
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THRESHOLD RATE means the sum of the minimum interest
rates required to be set on the Housing Loans forming
part of the Purchased Mortgage Loans which will ensure
that the Issuer Trustee has sufficient funds available
to meet its obligations under the Transaction Documents
(assuming that all parties comply with their obligations
under such documents and such Housing Loans) and taking
into account Housing Loans where the Seller does not
have the discretion under the Loan Agreement to vary the
interest rate of that Housing Loan and moneys held in
Authorised Investments where the yield is determined
externally and not by the Servicer.
TOTAL AVAILABLE INCOME means, on a Determination Date,
the amount calculated in accordance with clause 14.7 on
that Determination Date.
TOTAL INVESTED AMOUNT means, on any Determination Date,
the aggregate A$ Equivalent of the Invested Amount of
the relevant Notes on that Determination Date.
TRANSACTION DOCUMENTS means in respect of the Trust:
(a) the Master Trust Deed (insofar as it applies to
the Trust);
(b) the Definitions Schedule (insofar as it applies to
the Trust);
(c) the Notice of Creation of Trust in respect of the
Trust;
(d) this deed;
(e) the Servicing Agreement (insofar as it applies to
the Trust);
(f) the Master Security Trust Deed (insofar as it
applies to the Trust); (g) the Deed of Charge;
(h) each Support Facility;
(i) the Note Trust Deed;
(j) the Agency Agreement;
(k) the Delegation Deed;
(l) the Initial Sale Agreement;
(m) any Initial Offer to Sell;
(n) the Secondary Sale Agreement;
(o) any Secondary Offer to Sell;
(p) each Note;
(q) the Underwriting Agreement;
(r) the Dealer Agreement; and
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(s) such other documents as may be agreed from time to
time between the Issuer Trustee and the Global
Trust Manager.
TRUST means the HomeSide Mortgage Securities Trust
2001-1.
US$ or US DOLLARS means the lawful currency of the
United States of America.
UNDERWRITING AGREEMENT means the agreement entitled
"Underwriting Agreement" between the Issuer Trustee, the
Global Trust Manager, the Seller and Deutsche Securities
Inc. (as representative for the underwriters named in
it).
UNIT REGISTER has the meaning given to it in clause
3.7(a).
WAIVER OF SET-OFF in relation to a Housing Loan means a
provision, in the related Mortgage or Loan Agreement or
otherwise, by which, inter alia, the Debtor agrees to
make all payments in respect of the Housing Loan without
set-off or counterclaim unless prohibited by law.
TRANSACTION DOCUMENT
1.2 This deed is a Transaction Document for the purposes of
the Master Trust Deed.
LIMITED TO TRUST
1.3 The rights and obligations of the parties under this
deed relate only to the Trust (as defined in this deed),
and do not relate to any other Trust (as defined in the
Definitions Schedule).
DEFINITIONS AND CONSISTENCY
1.4 Terms which are defined in this deed apply to the Trust
only. Capitalised terms used but not defined in this
deed have the meanings given to them in the Definitions
Schedule. In the event of any inconsistency between a
term defined in this deed and a term defined in the
Definitions Schedule, the term defined in this deed will
prevail. In the event of any inconsistency between a
provision of this deed and a provision of any other
Transaction Document, the provision of this deed shall
prevail.
1.5 Subject to clause 1.6, clauses 1.2 to 1.5 (inclusive) of
the Definitions Schedule are deemed to be incorporated
in this deed as if set out in full in it.
1.6 If after the date of this deed any amendment is made to
the Definitions Schedule, such amendment shall apply to
this deed only if each party to this deed so agrees and
if the amendment is made in a manner consistent with
clause 28 of the Master Trust Deed.
MASTER SECURITY TRUST DEED
1.7 The Master Security Trust Deed applies to the Trust.
REGISTER
1.8 The Register in respect of the A$ Notes issued in
respect of the Trust is to be maintained in accordance
with Schedule 1. The Register will be maintained in
respect of A$ Notes only and all references in Schedule
1 to "Notes" are to be construed accordingly.
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TRANSFER OF NOTES
1.9 A transfer of A$ Notes of the Trust shall be effected in
accordance with clause 8.12 and with Schedule 2. All
references in Schedule 2 to "Notes" are to be construed
as references to "A$ Notes".
REPORTING STATEMENT
1.10 The Reporting Statement in respect of the Trust shall
contain (amongst other things) the following details:
(a) the Total Invested Amount and the Aggregate Stated
Amount of each class of Notes as calculated on the
related Determination Date;
(b) the A$ Note Interest Rates on the A$ Notes for the
related Interest Period;
(c) the interest payments and principal distributions
on each class of Notes in respect of the related
Payment Date;
(d) the Total Available Income as calculated on the
related Determination Date;
(e) the aggregate Outstanding Principal Balance of the
Housing Loans forming part of the Purchased
Mortgage Loans as at the close of business on the
last day of the related Collection Period;
(f) the delinquency and loss statistics with respect
to the Mortgage Loans as at the close of business
on the last day of the related Collection Period;
(g) the Redraw Shortfall, if any, calculated on the
related Determination Date;
(h) the amount of any shortfall in Total Available
Income as calculated on the related Determination
Date;
(i) the amount of any Liquidity Drawing, to be made on
the related Payment Date;
(j) the amount of Principal Collections that are
available for distribution on the related Payment
Date;
(k) the Redraw Note Principal, if any, in respect of
the related Payment Date;
(l) the amount of any Principal Draw, to be made on
the related Payment Date;
(m) the Principal Charge-Offs and the Carryover
Principal Charge-Offs for each class of Notes and
the Redraw Facility; and
(n) any other items of information applicable to the
Notes and the related Determination Date or
Payment Date.
DEFINITIONS SCHEDULE
1.11 For the purposes of the Definitions Schedule:
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(a) the Class A Notes and the Redraw Notes are "Senior
Notes";
(b) the Class A Noteholders and the Redraw Noteholders
are "Senior Noteholders";
(c) the Class B Notes are "Junior Notes"; and
(d) the Class B Noteholders are "Junior Noteholders".
1.12 For the purposes of the Trust:
(a) the Global Trust Manager confirms that it has
requested each of S&P, Moody's and Fitch to rate
the Notes; and
(b) the Residual Capital Unitholder and the Residual
Income Unitholder is the National Australia Bank
Limited.
SUPPORT FACILITIES
1.13 For the purposes of the Definitions Schedule and the
Deed of Charge, each Support Facility is a "Support
Facility".
MASTER TRUST DEED
1.14 The Global Trust Manager and the Issuer Trustee agree
that, for the purposes of the Trust, clause 19 of the
Master Trust Deed is deleted and replaced with the
following:
"(a) Subject to paragraph (b), the recourse of
the Issuer Trustee, the Global Trust Manager
and any creditor (including, without
limitation, any Secured Creditor) in respect
of a Trust is limited to the Assets of that
particular Trust.
(b) Paragraph (a) does not limit the rights of
any Secured Creditor under clause 33 (or any
similar provision in any Transaction
Document) or any other provision in any
Transaction Document entitling a Secured
Creditor to exercise its rights or to take
proceedings in respect of the Trust."
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PART 2 - THE TRUST AND ITS ASSETS
2 TRUST
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NAME OF TRUST
2.1 The Trust to which this deed applies will be known as
the "HomeSide Mortgage Securities Trust 2001-1".
DETERMINATION OF FINAL PAYMENT DATE
2.2 The Issuer Trustee must, as soon as practicable
following the Termination Date of the Trust, declare on
the direction of the Global Trust Manager, a date
("FINAL TERMINATION DATE") (which, if Notes have been
issued and have not then been redeemed (or deemed to be
redeemed) in full, must be a Payment Date and must not
be the next Payment Date immediately after the
declaration if the Determination Date in relation to
that Payment Date has then passed), being a date by
which the Issuer Trustee reasonably believes that the
sale and distribution of the Assets of the Trust will be
completed in accordance with this clause 2. Based on the
direction of the Global Trust Manager, the Issuer
Trustee may substitute another date as the Final
Termination Date (which, if the Notes have not been
redeemed in full, must be a Payment Date) if it
reasonably believes that the Assets will not in fact be
sold and distributed by the then Final Termination Date.
REALISATION OF ASSETS OF THE TRUST
2.3 Subject to clause 2.2, upon the occurrence of the
Termination Date of the Trust, the Issuer Trustee, in
consultation with the Global Trust Manager, must sell
and realise the Assets of the Trust (and, in relation to
the sale (other than pursuant to clause 2.5) of any
Mortgage Loans forming part of the Assets of the Trust,
the Issuer Trustee must obtain appropriate expert advice
prior to the sale) and such sale (so far as is
reasonably practicable and reasonably commercially
viable) must be completed within 180 days of the
Termination Date of the Trust provided that during the
period of 180 days from that Termination Date:
(a) the Issuer Trustee must not sell the Mortgage
Loans at less than an amount equal to the
Repurchase Price of the Housing Loans which
comprise part of the Mortgage Loans that then form
part of the Assets of the Trust;
(b) the Issuer Trustee must not sell any Mortgage
Loans unless the sale is on terms in accordance
with clause 2.4; and
(c) the Issuer Trustee must not sell any Mortgage
Loans unless it has first offered the Mortgage
Loans for sale to the Seller or its nominee in
accordance with clause 2.5 and the Seller or its
nominee has either not accepted that offer within
90 days of that Termination Date or has accepted
that offer but not paid the consideration due by
the time required pursuant to clause 2.5.
CONDITIONS OF SALE DURING 180 DAYS
2.4 The Issuer Trustee must not conclude a sale pursuant to
clause 2.3 (other than pursuant to clause 2.5) unless:
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(a) any Mortgage Loans sold pursuant to that sale are
assigned in equity only (unless the Issuer Trustee
already holds legal title to such Mortgage Loans);
(b) the sale is expressly subject to the Servicer's
rights to be retained as Servicer of the Mortgage
Loans in accordance with the terms of this deed;
and
(c) the sale is expressly subject to the rights of the
Seller Trust in respect of those Mortgage Loans
pursuant to this deed and the Seller's rights (as
beneficiary of the Seller Trust) in respect of
those Mortgage Loans pursuant to this deed.
RIGHT OF REFUSAL
2.5 (a) On the Termination Date of the Trust, the Issuer
Trustee is deemed to irrevocably offer to
extinguish in favour of the Seller, its entire
right, title and interest in the Mortgage Loans
forming part of the Assets of the Trust in return
for the payment to the Issuer Trustee of an amount
equal to the Repurchase Price (as at the
Termination Date of the Trust) of the Housing
Loans which comprise part of the Mortgage Loans
then forming part of the Assets of the Trust.
(b) The Seller may verbally accept the offer referred
to in clause 2.5(a) within 90 days after the
Termination Date of the Trust and having accepted
the offer, must pay to the Issuer Trustee, in
immediately available funds, the amount referred
to in clause 2.5(a) by the expiration of 180 days
after the Termination Date of the Trust. If the
Seller accepts such offer, the Issuer Trustee must
execute whatever documents the Seller reasonably
requires to complete the extinguishment of the
Issuer Trustee's rights, title and interest in the
Mortgage Loans then forming part of the Assets of
the Trust.
(c) The Issuer Trustee must not sell any Mortgage
Loans referred to in clause 2.5(a) unless the
Seller has failed to accept the offer referred to
in clause 2.5(a) within 90 days after the
Termination Date of the Trust or, having accepted
the offer, has failed to pay the amount referred
to in clause 2.5(a) by the expiration of 180 days
after the Termination Date of the Trust.
SALE AT LOWER PRICE
2.6 If, after the expiration of the period of 180 days from
the Termination Date of the Trust, the Issuer Trustee
has not sold the Mortgage Loans which form part of the
Assets of the Trust for the amount determined in
accordance with clause 2.3(a), the Issuer Trustee may
proceed to sell such Mortgage Loans free from the
prohibition contained in clause 2.4(a) and may, if
necessary, sell such Mortgage Loans on the terms set out
in clause 2.7 if the terms of that clause are satisfied.
If any Mortgage Loans are sold for less than the price
for those Mortgage Loans determined in accordance with
clause 2.5(a), then any such shortfall must be allocated
as provided for in clause 2.11.
CONDITIONS OF SALE AFTER 180 DAYS
2.7 Upon the expiration of the period of 180 days from the
Termination Date of the Trust, the Issuer Trustee may,
if necessary (in its
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reasonable opinion) sell the Mortgage Loans forming part
of the Assets of the Trust for an amount which is less
than the Repurchase Price of the Housing Loans which
comprise part of the Mortgage Loans and, in that case,
the Issuer Trustee shall:
(a) take all necessary steps to protect the Issuer
Trustee's interest in, and title to, the Mortgage
Loans;
(b) terminate the rights and obligations of the
Servicer in respect of those Mortgage Loans; and
(c) sell the legal and beneficial ownership in such
Mortgage Loans to the prospective purchaser free
of the Seller Trust and all rights of the Seller
to repurchase such Mortgage Loans in accordance
with this deed.
FURTHER CONDITIONS OF SALE AFTER 180 DAYS
2.8 If the Issuer Trustee sells the Mortgage Loans forming
part of the Assets of the Trust pursuant to clause 2.7,
the Issuer Trustee must include as a condition of the
sale that the purchaser will:
(a) consent to the granting in favour of the Seller of
mortgages and other Security Interests subsequent
to the Mortgages assigned to the purchaser;
(b) enter into priority agreements with the Seller, in
the form then specified in the Servicing
Procedures, limiting the priority of the Mortgages
and Collateral Securities assigned to the
purchaser over any subsequent mortgages and other
Security Interests held by the Seller to the then
principal outstanding of the relevant Housing Loan
and any interest fees and expenses on this amount;
and
(c) use reasonable endeavours to obtain the consent of
the providers of Mortgages and Collateral
Securities assigned to the purchaser, and any
other relevant person, to the grant of subsequent
mortgages and other Security Interests to the
Seller.
PROCEDURES PENDING WINDING-UP
2.9 During the period commencing on the Termination Date of
the Trust and ending on the Final Termination Date:
(a) the Issuer Trustee, the Servicer and the Global
Trust Manager must continue to perform their
respective roles in accordance with the Master
Trust Deed and this deed in respect of the Assets
of the Trust;
(b) all Collections (if any) must continue to be
deposited in the Collections Account in accordance
with this deed;
(c) all proceeds arising from the sale of Assets of
the Trust must be deposited into the Collections
Account; and
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(d) the Issuer Trustee must continue to make all
payments determined and directed by the Global
Trust Manager as required to be made in accordance
with this deed.
COSTS ON WINDING-UP OF THE TRUST
2.10 On the Determination Date (if applicable) prior to the
Final Termination Date, the Global Trust Manager (in
consultation with the Issuer Trustee) must in respect of
the Trust make provision for all Taxes, costs, charges,
expenses, claims and demands anticipated to become
payable after the Final Termination Date in connection
with or arising out of the administration or winding up
of the Trust, including the fees of any consultants whom
the Issuer Trustee, the Seller, the Servicer, the
Security Trustee or the Global Trust Manager have
employed in connection with the administration or
winding up of the Trust. Such costs (if any) will be
treated as an Expense of the Trust by the Global Trust
Manager in making its determinations as to payments to
be made on the Final Termination Date in accordance with
clause 2.11.
CALCULATION OF FINAL DISTRIBUTIONS
2.11 Prior to the Final Termination Date, the Global Trust
Manager must determine how the amounts (if any) standing
to the credit of the Collections Account are to be
distributed and must make such determination in
accordance with the provisions of this deed for payments
and allocations of any Principal Collections and Finance
Charge Collections. After making such determinations the
Global Trust Manager must notify the Issuer Trustee of
the allocations and payments to be made on the Final
Termination Date.
FINAL DISTRIBUTIONS
2.12 On the Final Termination Date determined under clause
2.2, the Issuer Trustee must make the payments that the
Global Trust Manager directs it to make pursuant to
clause 2.11.
3 ENTITLEMENT OF BENEFICIARIES
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ISSUE OF UNITS
3.1 The beneficial interest in the Trust is, on the date of
this deed, represented by the issue of:
(a) one Residual Capital Unit; and
(b) one Residual Income Unit,
to the Residual Capital Unitholder and the Residual
Income Unitholder, respectively, pursuant to the Notice
of Creation of Trust.
3.2 The Global Trust Manager must evidence the issue of the
Units referred to in clause 3.1 by entering each
Unitholder's name in the Unit Register.
3.3 The holder of the Residual Capital Unit and the holder
of each Residual Income Unit, issued in accordance with
this clause and the Notice of Creation of Trust, hold
the beneficial interest in the Trust in accordance with
the Master Trust Deed and this deed.
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3.4 A failure by the Issuer Trustee to issue a Residual
Income Unit does not affect the Residual Income
Unitholders' rights as beneficiary of the Trust under
the Master Trust Deed and this deed.
RESIDUAL CAPITAL UNIT
3.5 (a) The initial holder of the Residual Capital Unit is
National Australia Bank Limited.
(b) The issue price of the Residual Capital Unit was
the amount of $5, paid by National Australia Bank
Limited under the Notice of Creation of Trust on
establishment of the Trust.
(c) The beneficial interest held by the holder of the
Residual Capital Unit is limited to the Trust and
each Asset of the Trust (other than any Asset of
the Trust held on trust for the holders of
Residual Income Units under clause 3.6) subject to
and in accordance with the Master Trust Deed and
this deed.
(d) The holder of the Residual Capital Unit has no
right to receive distributions in respect of the
Trust other than the right to receive on the Final
Termination Date the entire beneficial interest of
the Trust subject to the rights of holders of
Residual Income Units. The Residual Capital Unit
may not be redeemed at any time or in any other
way.
(e) The Residual Capital Unit is not transferable
without the written consent of the Issuer Trustee.
RESIDUAL INCOME UNIT
3.6 (a) The initial holder of the first Residual Income
Unit is National Australia Bank Limited. The issue
price of the first Residual Income Unit was the
amount of $5 paid by National Australia Bank
Limited under the Notice of Creation of Trust on
establishment of the Trust.
(b) A person may, with the consent of the Issuer
Trustee and the Global Trust Manager (whose
consent may be given or withheld in their absolute
discretion), become the holder of any additional
Residual Income Unit by paying the issue price for
the Residual Income Unit.
(c) The issue price of a Residual Income Unit will be
the amount agreed between the Issuer Trustee, the
Global Trust Manager and the person applying for
such Residual Income Unit.
(d) The beneficial interest held by the holder of a
Residual Income Unit is limited to the right to
receive on the Final Termination Date, repayment
of the issue price paid for the Residual Income
Unit under clause 3.6(a) or clause 3.6(b) (to the
extent funds are available therefore) and to
receive distributions under clause 14 of this deed
only to the extent that funds are available for
distribution to the Residual Income Unitholders,
provided that the Residual Income Unitholders are
entitled to receive an amount in accordance with
clause 14.8(a) to enable the Global Trust Manager
to comply with its obligations under clause 21.2
of the Master Trust Deed.
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(e) The holder of a Residual Income Unit has the right
to receive distributions in respect of the Trust
under the Master Trust Deed and this deed only to
the extent that amounts are available for
distribution under the Master Trust Deed and this
deed.
(f) Each Residual Income Unit is transferable in
accordance with clause 3.8.
UNIT REGISTER
3.7 (a) (a) The entitlement of any person to a Unit will be
evidenced by registration in the register maintained
under this clause 3.7 (the "UNIT REGISTER").
(b) The Global Trust Manager will keep the Unit
Register at its office in a form that it considers
appropriate (which may be electronic) and will
enter the following particulars:
(i) the name and address of the holder of each
Unit;
(ii) the date on which the name of the holder of
each Unit is entered in the Unit Register;
(iii) the date on which the holder of a Unit
ceases to be registered as the holder of
that Unit;
(iv) the issue price initially paid for each
Unit, and the aggregate issue price of all
Units from time to time; and
(v) any other details which the Issuer Trustee
may consider reasonably necessary or
desirable.
(c) The holder of a Unit shall promptly notify the
Global Trust Manager of any change of its name or
address and the Global Trust Manager will alter
the Unit Register accordingly.
(d) Without limiting clause 3.1, the interest of any
holder in a Unit will be constituted by
registration in the Unit Register.
TRANSFER OF UNITS
3.8 (a) (i) Subject to clause 3.5(e) the holder of a
Unit may transfer the Unit by instrument in
writing in any form approved by the Issuer
Trustee. No fee will be charged on the
transfer of a Unit.
(ii) An instrument of transfer shall be executed
by or on behalf of both the transferor and
the transferee.
(iii) A transferor of a Unit remains the holder
of the Unit transferred until the transfer
is registered and the name of the
transferee is entered in the Unit Register
in respect of the Unit.
(b) The instrument of transfer of a Unit must be left
for registration at the address where the Unit
Register on which the Unit to which the transfer
relates are registered is kept. It
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must be left together with any information that
the Issuer Trustee properly requires to show the
right of the transferor to make the transfer.
LIMIT ON RIGHTS
3.9 Each Unitholder is subject to, and bound by, the
provisions of the Master Trust Deed and this deed.
4 CONSUMER CREDIT CODE
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RIGHT OF INDEMNITY - CONSUMER CREDIT LEGISLATION
4.1 (a) Without prejudice to the right of indemnity given
by law to trustees, and without limiting any other
provision of this deed, the Issuer Trustee will be
indemnified out of the Trust, free of any set-off
or counterclaim against all Penalty Payments which
the Issuer Trustee is required to pay personally
or in its capacity as trustee of that Trust and
arising in connection with the performance of its
duties or exercise of its powers under the
Transaction Documents in relation to the Trust.
(b) The Issuer Trustee's right to be indemnified in
accordance with clause 4.1(a) applies
notwithstanding any allegation that the Issuer
Trustee has incurred any such Penalty Payment as a
result of its fraud, negligence or breach of trust
or any other act or omission which may otherwise
disentitle the Issuer Trustee to be so
indemnified. However, the Issuer Trustee is not
entitled to that right of indemnity or
reimbursement to the extent that there is a
determination by a relevant court of negligence,
fraud or breach of trust by the Issuer Trustee
(provided that, until such determination, the
Issuer Trustee is entitled to that right of
indemnity or reimbursement but must, upon such
determination, repay to the relevant Trust any
amount paid to it under this clause 4.1).
(c) This clause 4.1 overrides any other provision of
this deed.
(d) The Servicer indemnifies the Issuer Trustee, free
of any set-off or counterclaim, against all
Penalty Payments which the Issuer Trustee is
required to pay personally or in its capacity as
trustee of the Trust and arising in connection
with the performance of its duties or exercise of
its powers under the Transaction Documents in
relation to the Trust. The Issuer Trustee may rely
on others in relation to compliance with the
Consumer Credit Code.
(e) The Issuer Trustee shall call upon the indemnity
referred to in paragraph (d) before it calls upon
the indemnity in paragraph (a). If any such claim
is not satisfied within 3 Business Days of the
claim being made, the Issuer Trustee may (without
prejudice to its rights under any indemnity under
paragraph (d)) exercise its right of indemnity
referred to in paragraph (a).
SERVICER
4.2 With effect on and from the Closing Date, National
Australia Bank Limited agrees to act as the Servicer of
the Purchased Mortgage Loans
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and undertakes to comply with the duties and obligations
imposed on it under the Servicing Agreement and this
deed. For the purposes of the Servicing Agreement, the
Trust is a "Relevant Trust".
5 REPURCHASE OPTION
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CLEAN-UP OFFER
5.1 At least five Business Days before each Call Option Date
(but not later than the Termination Date) the Issuer
Trustee, at the written request of the Global Trust
Manager, may give notice to the Seller of an offer
("CLEAN-UP OFFER") to re-convey the Purchased Mortgage
Loans to the Seller on a Call Option Date for an amount
("CLEAN-UP OFFER AMOUNT") equal to (as at the last day
of the immediately preceding Interest Period) the
aggregate of the Repurchase Price for each Housing Loan
which comprises part of the Purchased Mortgage Loans
then forming part of the Assets of the Trust as
determined by the Global Trust Manager.
CALCULATION
5.2 The Global Trust Manager agrees to calculate the amount
described in clause 5.1 and include such amount in its
request to the Issuer Trustee to make a Clean-Up Offer.
ACCEPTANCE
5.3 Acceptance of a Clean-Up Offer may only be effected by
payment in immediately available funds by the Seller to
the Collections Account of the Clean-Up Offer Amount.
For the avoidance of doubt, the Seller is under no
obligation to accept any Clean-Up Offer.
CONSENT OF NOTEHOLDERS
5.4 If:
(a) Notes have been issued and have not been redeemed
(or deemed to be redeemed) on or before a Call
Option Date; and
(b) the Clean-Up Offer Amount is less than the amount
which is sufficient to ensure that the Issuer
Trustee can redeem the Total Invested Amount of
all Notes (as at the Determination Date
immediately preceding the Call Option Date) in
full,
the Issuer Trustee must, prior to giving notice to the
Seller, obtain the consent by way of an Extraordinary
Resolution of the Noteholders in favour of making a
Clean-Up Offer for the Aggregate Stated Amount (without
double counting) of all Notes.
RECONVEYANCE
5.5 Upon receipt of the Clean-Up Offer Amount by the Issuer
Trustee in immediately available funds:
(a) the Issuer Trustee's entire right and interest in
the Purchased Mortgage Loans is automatically
extinguished; and
(b) the Issuer Trustee must apply the Clean-Up Offer
Amount towards the redemption of the A$ Notes in
accordance with
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clause 8.16 of this deed and the redemption of the
Class A Notes in accordance with the Class A Note
Conditions.
CLEAN-UP AMOUNT
5.6 Where:
(a) the Total Invested Amount of all Notes on any
Determination Date is less than or equal to 10% of
the A$ Equivalent of the aggregate of the Initial
Invested Amount of all Notes; and
(b) the Issuer Trustee has not been directed by the
Global Trust Manager to redeem all of the Notes
outstanding on the next Payment Date or the Issuer
Trustee has been directed by the Global Trust
Manager to redeem all of the Notes on the next
Payment Date but the Issuer Trustee has
insufficient funds on that Payment Date to do so,
then the Global Trust Manager must, on that Payment
Date:
(i) calculate the Clean-Up Amount as at the
Determination Date immediately preceding
that Payment Date;
(ii) notify the Seller, the Issuer Trustee and
each Current Rating Agency of the Clean-Up
Amount and the method of its calculation;
and
(iii) direct the Issuer Trustee to:
(A) as soon as practicable, establish in
the name of the Issuer Trustee a
bank account with an Eligible Bank;
(B) deduct an amount equal to the
Clean-Up Amount as at that
Determination Date from the amount
(if any) payable to the Residual
Income Unitholders under clause
14.10(f) on that Payment Date; and
(C) deposit the amount deducted in
accordance with clause 5.6(iii)(B)
into the Clean-Up Account and hold
that amount on trust for the
Residual Income Unitholders until
that amount is repaid to the
Residual Income Unitholders in
accordance with clause 5.7.
5.7 The Issuer Trustee must only withdraw any amount
standing to the credit of the Clean-Up Account:
(a) if, on any Determination Date after the first
Payment Date referred to in clause 5.6(i), the
Issuer Trustee determines that Extraordinary
Expenses have been incurred by the Issuer Trustee
during the immediately preceding Collection
Period, to meet in whole or in part the payment or
satisfaction of such Extraordinary Expenses on the
next Payment Date; and
(b) upon the first to occur of:
(i) the date on which all Notes have been fully
and finally redeemed in accordance with the
Master Trust Deed and this deed; and
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(ii) the Termination Date of the Trust,
to pay the amount standing to the credit of the Clean-Up
Account to the Residual Income Unitholders.
5.8 The Global Trust Manager must, on each Payment Date,
notify the Residual Income Unitholders of any withdrawal
made by the Issuer Trustee under clause 5.7.
PURCHASE OF DEFAULTED LOANS
5.9 Subject to clause 5.10, the Servicer may at its option
(but in no circumstances is obliged to) from time to
time offer to the Issuer Trustee to purchase from the
Issuer Trustee a Purchased Mortgage Loan in respect of
which default in payment of any amount due in respect of
the related Housing Loan has occurred and has continued
for a period of 90 consecutive days or more. If the
Servicer makes any such offer, the price that it must
pay to the Issuer Trustee in respect of a Purchased
Mortgage Loan is an amount equal to the Repurchase Price
of the Housing Loan comprising part of that Purchased
Mortgage Loan. Upon payment of that amount, any right,
title and interest of the Issuer Trustee is extinguished
in favour of the Servicer and the Issuer Trustee must
execute whatever documents the Servicer requires to
complete such extinguishment.
5.10 The Servicer must not exercise the option contained in
clause 5.9 in respect of a Purchased Mortgage Loan
unless the Repurchase Price of the Housing Loan
comprising part of that Purchased Mortgage Loan is at
least equal to the then Unpaid Balance of the Housing
Loan that comprises part of that Purchased Mortgage
Loan.
6 MORTGAGE LOANS
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REQUIREMENT TO SATISFY
6.1 Each Mortgage Loan to be purchased by the Issuer Trustee
must be a Qualifying Mortgage Loan.
6.2 The Issuer Trustee is not required to investigate
whether any Mortgage Loan is a Qualifying Mortgage Loan
and is not liable to any person in any manner whatsoever
if any Mortgage Loan is not a Qualifying Mortgage Loan.
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PART 3 - THE NOTES
7 PURPOSE
------------------------------------------------------------------------------
PURPOSE
7.1 (a) Subject to clause 7.2, the Issuer Trustee must, as
directed by the Global Trust Manager, use the
proceeds of all Notes (other than Redraw Notes)
and all payments received from each Currency Swap
on the Closing Date to fund the acquisition of
Mortgage Loans (or to fund Authorised Investments
to be acquired with any surplus of the proceeds
and payments over the amount required to fund the
acquisition of the Mortgage Loans, such surplus
created due to the size of the parcels of Notes to
be issued) or for any other purpose agreed between
the Issuer Trustee and the Global Trust Manager
(and which each Current Rating Agency confirms in
writing will not have an Adverse Rating Effect).
(b) The Issuer Trustee must, as directed by the Global
Trust Manager, use the proceeds of all Redraw
Notes to meet the Issuer Trustee's obligations in
respect of the reimbursement of Redraws and the
repayment of the Redraw Principal Outstanding in
accordance with clause 8.3. Any surplus of the
proceeds of issue over the amounts required to
meet such obligations created due to the size of
the parcels of Notes to be issued is to be
distributed in accordance with clause 14.13.
CRITERIA
7.2 Notwithstanding any other provision of the Transaction
Documents in respect of the Trust, the Global Trust
Manager must not direct the Issuer Trustee to issue
Notes under this deed to acquire, or invest in, any
Mortgage Loans or to reimburse the Seller in respect of
Redraws unless such Mortgage Loans are Qualifying
Mortgage Loans. In this regard, the Global Trust Manager
is entitled to rely upon a representation and warranty
from the Seller that such Mortgage Loans are Qualifying
Mortgage Loans.
GENERAL
7.3 The Issuer Trustee (at the direction of the Global Trust
Manager) may issue Notes, for the purposes set out in
clause 7.1 in accordance with this deed.
8 TERMS OF ISSUE OF THE NOTES
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NOTES TO BE ISSUED
8.1 The Issuer Trustee will, subject to satisfaction of the
conditions precedent described in clause 9.1 of the
Master Trust Deed, and on the direction of the Global
Trust Manager, issue three classes of Notes as follows:
(a) the Class A Notes;
(b) the Class B Notes; and
(c) the Redraw Notes.
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FORM, CONSTITUENT DOCUMENTS AND DENOMINATION OF THE NOTES
8.2 (a) (CLASS A NOTES): The Class A Notes will be:
(i) in book-entry form, without coupons;
(ii) upon issue represented by one or more
Book-Entry Notes (and interests in such
Book-Entry Notes may be exchanged for
Definitive Notes in the circumstances set
out in the Note Trust Deed); and
(iii) constituted, issued and authenticated
pursuant to the Note Trust Deed and will be
denominated in US$.
(b) (A$ NOTES): The A$ Notes will, upon issue, be in
the form of registered debt securities, will be
constituted pursuant to the Master Trust Deed and
this deed and will be denominated in A$. The A$
Notes are direct, secured, limited recourse
obligations of the Issuer Trustee and (in the case
of the Class B Notes only) are subordinated in the
manner set out in this deed. Each of the Class B
Notes and the Redraw Notes rank equally and
rateably and without any preference or priority
among themselves.
ISSUE OF REDRAW NOTES
8.3 If the Issuer Trustee receives:
(a) a notice from the Global Trust Manager; and
(b) written confirmation from each Current Rating
Agency that the proposed issue of Redraw Notes
will not result in an Adverse Rating Effect
(provided that, if such confirmation is requested
but is not received by the Global Trust Manager by
the close of business on the day which is 2
Business Days after the date on which the
confirmation is requested, the Global Trust
Manager and the Issuer Trustee may assume that the
proposed issue of Redraw Notes will not result in
an Adverse Rating Effect),
the Issuer Trustee must, on the Payment Date referred to
in the notice, issue Redraw Notes up to the amount
specified in the notice and at the A$ Note Margin
specified in the notice.
8.4 The Global Trust Manager may give such notice to the
Issuer Trustee if, on or prior to a Determination Date,
the Global Trust Manager considers that the Principal
Collections to be calculated on the relevant
Determination Date (disregarding any proposed issue of
Redraw Notes on the immediately following Payment Date)
; (as estimated by the Global Trust Manager) are likely
to be insufficient to meet in full the aggregate of any
Redraws provided by the Seller during the preceding
Collection Periods and due to be repaid or reimbursed to
the Seller pursuant to clause 14.13(a) on the
immediately following Payment Date.Where the relevant
calculations are made by the Global Trust Manager before
the relevant Determination Date, such calculations and
amounts will be the Global Trust Manager's estimate, as
at the date of calculation, of such calculations and
amounts.
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The Total Invested Amount of the Redraw Notes
outstanding on any Determination Date must not exceed
the amount specified by the Global Trust Manager and
which is the subject of the confirmation referred to in
clause 8.3(b) from each Current Rating Agency.
INITIAL INVESTED AMOUNT OF THE NOTES
8.5 (a) (CLASS A NOTES): Each Class A Note on its issue
will have an Initial Invested Amount as set out on
the face of that Class A Note and will be issued
at par value.
(b) (A$ NOTES): Each A$ Note on its issue will have an
Initial Invested Amount of $500,000 and will be
issued at par value.
INTEREST ON THE CLASS A NOTES
8.6 Each Class A Note will accrue interest, and such
interest will be calculated and payable, in accordance
with the Class A Note Conditions.
INTEREST ON THE A$ NOTES
8.7 Each A$ Note will have interest payable in respect of
each Interest Period calculated:
(a) at the A$ Note Interest Rate for that A$ Note for
that Interest Period;
(b) on the Invested Amount of that A$ Note on the
first day of that Interest Period (after taking
into account any reduction in the Invested Amount
of that A$ Note on that day); and
(c) on the basis of the actual number of days in that
Interest Period and a year of 365 days,
and payable in arrears on each Payment Date.
Each A$ Note will cease to accrue interest from the date
upon which the A$ Note is redeemed in accordance with
clause 8.9(b), unless upon such date, payment is
improperly withheld or refused in which case the A$ Note
will continue to accrue interest in accordance with this
deed (both before and after judgment) until but
excluding the earlier of the day on which all sums due
in respect of the A$ Note up to that day are received by
or on behalf of the relevant Noteholder and the seventh
day after notice is given to the Noteholder that such
payment will be made, provided that such payment is in
fact made on that day.
OVERDUE INTEREST
8.8 (a) (CLASS A NOTES): If interest is not paid in
respect of a Class A Note on the date when due and
payable in accordance with the Class A Note
Conditions, the unpaid interest will in turn bear
interest in accordance with the Class A Note
Conditions.
(b) (A$ NOTES): If any interest is not paid in respect
of an A$ Note on the date when due and payable in
accordance with this deed (but without regard to
any limitation herein contained) that unpaid
interest will in turn bear interest at the A$ Note
Interest Rate from time to time applicable for the
relevant A$ Note
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until (but excluding) the date on which the unpaid
interest is paid in accordance with clause
14.8(f).
REDEMPTION
8.9 (a) (CLASS A NOTES) The Class A Notes will be redeemed
(or deemed to be redeemed) in accordance with the
Class A Note Conditions.
(b) (A$ NOTES) Each A$ Note will be fully and finally
redeemed, and the obligations of the Issuer
Trustee with respect to the payment of the
Invested Amount of that A$ Note will be fully and
finally discharged, on the first to occur of:
(i) the date upon which the Invested Amount of
that A$ Note is reduced to zero and all
accrued but previously unpaid interest is
paid in full (including, but not limited
to, the exercise by the Issuer Trustee of
the Clean-Up Option);
(ii) if the Stated Amount in relation to the A$
Note is less than the Invested Amount in
relation to the A$ Note, the date on which
the Stated Amount of that A$ Note is
reduced to zero and all accrued but
previously unpaid interest is paid in full
(including, but not limited to, the
exercise by the Issuer Trustee of the
Clean-Up Option);
(iii) the date upon which the relevant Noteholder
renounces all of its rights to any amounts
payable under or in respect of that A$
Note;
(iv) the Final Maturity Date; and
(v) the date upon which the Issuer Trustee
completes a sale and realisation of all
Assets of the Trust in accordance with the
Master Trust Deed and this deed and the
proceeds of such sale and realisation are
applied, to the extent available, to repay
the Invested Amount plus any accrued, but
unpaid, A$ Note Interest Amount in respect
of that A$ Note in accordance with the
Master Trust Deed or this deed.
Each A$ Note redeemed in full (or deemed to be
redeemed in full) pursuant to this deed will be
cancelled and may not be resold or reissued.
ISSUER TRUSTEE'S COVENANT TO THE NOTEHOLDERS
8.10 Subject to the terms of the Master Trust Deed and this
deed, the Issuer Trustee:
(a) acknowledges to each Noteholder its indebtedness
in respect of the Invested Amount of each Note;
and
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(b) covenants for the benefit of each Noteholder:
(i) to make all payments of interest in respect
of the Notes held by the Noteholder on each
Payment Date;
(ii) to comply with the terms of this deed and
the Transaction Documents to which it is a
party; and
(iii) to pay the Stated Amount, together with all
then accrued but unpaid interest, in
relation to the Notes held by the
Noteholder on the Final Maturity Date.
Subject to this deed (and in the case of the Class A
Notes the Class A Note Conditions), no amount of
principal will be paid in respect of a Note in excess of
the Stated Amount of that Note.
REGISTER
8.11 The Issuer Trustee shall keep an up to date Register in
respect of the $A Notes in accordance with Schedule 1.
The Register may be maintained in electronic form.
TRANSFER AND TRANSMISSION OF NOTES
8.12 (a) (TRANSFER OF A$ NOTES IN ACCORDANCE WITH
CORPORATIONS LAW): A Noteholder is only entitled
to transfer an A$ Note if the offer of the A$ Note
for sale, or the invitation to purchase the A$
Note, to the proposed transferee by the Noteholder
is an offer or invitation that does not need
disclosure to investors under Part 6D.2 of Chapter
6 of the Corporations Law and otherwise complies
with the Corporations Law and if the transfer of
the A$ Note complies with Schedule 2.
(b) (REGULATION S): An A$ Note may not be offered or
sold within the United States of America or to, or
for the account or benefit of, United States
persons except in accordance with Regulation S
under the Securities Act or pursuant to an
exemption from the registration requirements of
the Securities Act. Terms used in this clause 8.12
have the meaning given to them by Regulation S
under the Securities Act.
TAXATION
8.13 All payments in respect of the Notes will be made
without withholding or deduction for, or on account of,
any present or future taxes, duties or charges of
whatsoever nature unless the Issuer Trustee (or, in the
case of the Class A Notes, any Paying Agent) is required
by any applicable law to make such a withholding or
deduction. In that event the Issuer Trustee (or, in the
case of the Class A Notes, any Paying Agent) will, after
making such withholding or deduction, account to the
relevant authorities for the amount so required to be
withheld or deducted. Neither the Issuer Trustee nor any
such Paying Agent will be obliged to make any additional
payments in respect of the relevant Notes in relation to
the withholding or deduction. Immediately after becoming
aware that such a withholding or deduction is or will be
required, the Issuer Trustee will notify the Note
Trustee or the relevant Noteholders in the manner
required by the Transaction Documents.
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PRESCRIPTION
8.14 A Note will become void in its entirety unless
surrendered for payment within a period of 10 years from
the Relevant Date in respect of any payment of principal
or interest thereon, the effect of which will be to
reduce the Stated Amount of, and all accrued but unpaid
interest on, that Note to zero. After the date on which
a Note becomes void in its entirety, no claim can be
made in respect of it.
"RELEVANT DATE" in respect of a Note means the date on
which a payment in respect thereof first becomes due or,
if the full amount of the moneys payable in respect of
the Note which is due on or before that date has not
been duly received by the relevant Noteholder on or
prior to such date, the date on which the full amount of
such moneys has been so received.
ROUNDING OF PAYMENTS
8.15 Except as otherwise specified in this deed, all payments
in respect of a given currency will be rounded to the
nearest cent of that currency.
CALL OPTION
8.16 (a) The Issuer Trustee will, subject to the other
provisions of this deed, when directed by the
Global Trust Manager (at the Global Trust
Manager's option), redeem all, but not some only,
of the Notes at their then Invested Amount
(without double counting), subject to the
following, together with all accrued but unpaid
interest in respect of the Notes to (but
excluding) the date of redemption, on any Call
Option Date.
(b) Notwithstanding the foregoing, the Issuer Trustee
may redeem the Notes at their Stated Amount on a
Call Option Date, instead of at their Invested
Amount (without double counting), together with
accrued but unpaid interest in respect of the
Notes to (but excluding) the date of redemption,
if so approved by an Extraordinary Resolution of
the Noteholders.
(c) The Issuer Trustee must not redeem the Notes
unless it is in a position on the relevant Call
Option Date to repay the then Invested Amounts or
the Stated Amounts (without double counting), as
required, of the Notes together with all accrued
but unpaid interest to (but excluding) the date of
redemption and to discharge all its liabilities in
respect of amounts which are required under the
Master Security Trust Deed and this deed to be
paid in priority to or equally with the Notes as
if the Deed of Charge in respect of the Trust were
enforced.
REDEMPTION FOR TAXATION OR OTHER REASONS
8.17 (a) If the Global Trust Manager satisfies the Issuer
Trustee (and, in the case of the Class A Notes,
the Note Trustee) immediately prior to giving the
direction referred to below that by virtue of
either a change in law of the Commonwealth of
Australia or any of its political subdivisions or
any of its authorities or any other jurisdiction
to which the Issuer Trustee becomes subject (a
"RELEVANT JURISDICTION"), or a change in
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the application or official interpretation
thereof, from that in effect on the Closing Date,
either:
(i) on the next Payment Date the Issuer Trustee
will be required to deduct or withhold from
any payment of principal or interest in
respect of the Notes including
corresponding payments under any Currency
Swap, any amount for or on account of any
present or future taxes, duties,
assessments or governmental charges of
whatever nature imposed, levied, collected,
withheld or assessed by a Relevant
Jurisdiction; or
(ii) on the next Payment Date the total amount
payable in respect of interest in relation
to any of the Mortgage Loans for a
Collection Period ceases to be receivable
(whether or not actually received) by the
Issuer Trustee by reason of any present or
future taxes, duties, assessments or
governmental charges of whatever nature
imposed, levied, collected, withheld or
assessed by a Relevant Jurisdiction,
and, in each case, such obligation cannot be
avoided by the Issuer Trustee taking reasonable
measures available to it, the Issuer Trustee must,
when so directed by the Global Trust Manager (at
the Global Trust Manager's option), redeem all,
but not some only, of the Notes on any subsequent
Payment Date at their then Invested Amount without
double counting, subject to the following,
together with accrued but unpaid interest in
respect of the Notes to (but excluding) the date
of redemption. Notwithstanding the foregoing, the
Issuer Trustee may redeem the Notes at their
Stated Amount, instead of at their Invested Amount
without double counting, together with accrued but
unpaid interest in respect of the Notes to (but
excluding) the date of redemption, if so approved
by an Extraordinary Resolution of the Noteholders.
(b) The Global Trust Manager will not direct the
Issuer Trustee to, and the Issuer Trustee will
not, so redeem the Notes unless the Issuer Trustee
is in a position on such Call Option Date to repay
in respect of the Notes their then Invested Amount
or Stated Amount (without double counting), as
required, together with all accrued but unpaid
interest to (but excluding) the date of redemption
and to discharge all its liabilities in respect of
amounts which are required under the Master
Security Trust Deed and this deed to be paid in
priority to or equally with the Notes as if the
Deed of Charge in respect of the Trust was
enforced.
(c) This clause is subject to the Class A Notes
Conditions in respect of the Class A Notes.
8.18 For the purpose of any redemption under clauses 8.16 and
8.17, the Issuer Trustee may rely on any certificate
from an Authorised Person of the Global Trust Manager
that the Issuer Trustee will be in a position to repay
the Notes at their then Invested Amount or Stated Amount
without double counting, as applicable, together with
all
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accrued but unpaid interest to (but excluding) the date
of redemption and to discharge all its liabilities in
respect of amounts which are required under the Master
Security Trust Deed and this deed to be paid in priority
to or equally with the Notes as if the Deed of Charge in
respect of the Trust were enforced.
9 CONDITIONS PRECEDENT
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CONDITIONS PRECEDENT TO THE ISSUE OF NOTES
9.1 The obligation of the Issuer Trustee to issue Notes is
subject to:
(a) (CONSTITUTION) receipt by the Global Trust Manager
of a certified copy of the constitution of the
Seller and the Servicer;
(b) (TRANSACTION DOCUMENTS) receipt by the Global
Trust Manager of a certified copy of each executed
and (where relevant) stamped Transaction Document;
(c) (RATING) confirmation from each Current Rating
Agency that the Class A Notes have been assigned a
provisional rating of AAA (in the case of S&P and
Fitch) and Aaa (in the case of Moody's) and the
Class B Notes have been assigned a provisional
rating of AA (in the case of S&P and Fitch) and
Aa2 (in the case of Moody's); and
(d) (LEGAL OPINIONS) receipt by the Global Trust
Manager of:
(i) a legal opinion from Mallesons Stephen
Jaques, in relation to the obligations of
the Global Trust Manager, the Seller, the
Depositor, the Servicer, the Liquidity
Facility Provider, the Redraw Facility
Provider, the Currency Swap Provider, the
Basis Swap Provider and the Fixed Rate Swap
Provider under the Transaction Documents to
which they are bound;
(ii) a legal opinion from Henry Davis York, in
relation to the obligations of the Issuer
Trustee under the Transaction Documents to
which it is bound;
(iii) a legal opinion from Brown & Wood LLP, in
relation to the validity and enforceability
of the obligations of the Seller, the
Depositor and the Global Trust Manager in
relation to the Transaction Documents which
are expressed to be governed by the laws of
New York and as to certain other matters of
United States law;
(iv) a legal opinion from Emmett, Marvin and
Martin LLP as to the due execution by The
Bank of New York of the Transaction
Documents to which it is a party and
Emmett, Marvin and Martin LLP in relation
to the obligations of The Bank of New York
under the Transaction Documents to which it
is bound;
(v) an opinion in respect of each Currency Swap
Provider in relation to the validity and
enforceability of the
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obligations of each Currency Swap Provider
under each Currency Swap; and
(vi) a legal opinion from Allen Allen & Hemsley
as to the validity and enforceability of
the Pool Insurance Policy.
The Global Trust Manager must provide confirmation
to the Issuer Trustee upon its receipt of such
documents.
10 REPRESENTATIONS AND WARRANTIES
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REPRESENTATIONS AND WARRANTIES
10.1 Each of the Issuer Trustee, the Servicer and the Global
Trust Manager represents and warrants to each other (but
with respect to itself only) as follows:
(a) (INCORPORATION) it is validly incorporated and
existing under the laws pursuant to which it
purports to have been incorporated;
(b) (CORPORATE POWER) it has the corporate power to
own its assets and to carry on its business as it
is now being conducted and the business proposed
to be conducted under this deed;
(c) (POWER) it has full power and authority to enter
into and perform its obligations under this deed
and each of the Transaction Documents to which it
is a party;
(d) (ALL ACTION TAKEN) it has taken all necessary
internal corporate action to authorise the
execution, delivery and performance of this deed
and each of the Transaction Documents to which it
is a party in accordance with their respective
terms and no additional approval or consent of any
person is required;
(e) (VALIDITY OF OBLIGATIONS) this deed and each of
the Transaction Documents to which it is a party
constitute legal, valid and binding obligations of
it and, subject to any necessary stamping and
registration and to doctrines of equity and laws
and defences generally affecting creditors'
rights, are enforceable in accordance with their
respective terms;
(f) (NO VIOLATION) the execution, delivery and
performance by it of this deed and each of the
Transaction Documents to which it is a party does
not and will not violate in any respect any
material provision of:
(i) any law, regulation, authorisation, ruling,
consent, judgement, order or decree of any
Governmental Agency;
(ii) the constitution or other constituent
documents of it; or
(iii) any Encumbrance or document which is
binding upon it or any of its assets,
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and (except, in the case of the Issuer Trustee and
the Servicer, in respect of the Deed of Charge)
does not and will not result in:
(iv) the creation or imposition of any
Encumbrance or restriction of any nature on
any of its assets under the provision of;
or
(v) the acceleration of the date of payment of
any obligation existing under,
any Encumbrance or document which is binding
upon it or its assets;
(g) (AUTHORISATIONS) it has obtained all
Authorisations necessary for it to enter into, and
perform its obligations under, the Transaction
Documents and such Authorisations remain in full
force and effect.
TRUST REPRESENTATIONS AND WARRANTIES
10.2 Without limiting the representations and warranties
provided in clause 10.1, the Issuer Trustee represents
and warrants to the Global Trust Manager and the
Servicer that:
(a) (CREATION OF TRUST) the Trust has been validly
created;
(b) (APPOINTMENT OF ISSUER TRUSTEE) it has been
validly appointed as the trustee of the Trust;
(c) (SOLE ISSUER TRUSTEE) it is the sole trustee of
the Trust;
(d) (TRUST POWER) it has power under the Transaction
Documents to enter into, perform and comply with
its obligations, and to carry out the transactions
contemplated by, this deed;
(e) (NO REMOVAL) as far as it is aware, there are no
proceedings to remove it as trustee of the Trust;
and
(f) (VESTING DATE) the vesting date has not occurred
in respect of the Trust.
11 PAYMENTS
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MANNER
11.1 The Issuer Trustee and the Servicer will make all
payments under this deed:
(a) in immediately available funds (unless otherwise
agreed) to the account specified by the payee, in
either case, by 4.00 pm (Melbourne time) on the
due date;
(b) without set-off, counterclaim or other deduction;
and
(c) in accordance with this deed.
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CLEARED FUNDS
11.2 Notwithstanding any other provision of this deed, where
the proceeds of a payment due to the Issuer Trustee on a
day are required to be applied by the Issuer Trustee
towards some other payment due on the same day, the
payment to the Issuer Trustee must be made in
immediately available funds in sufficient time to allow
the Issuer Trustee to make that other payment and the
Issuer Trustee will have no obligation to make the other
payment until the first payment has been made.
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PART 4 - PRINCIPAL AND INCOME DETERMINATIONS AND PAYMENTS
12 COLLECTIONS
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ESTABLISHMENT OF COLLECTIONS ACCOUNT WITH SERVICER
12.1 Immediately following the date of constitution of the
Trust, the Issuer Trustee must establish the Collections
Account with the Servicer (provided that such Servicer
has the Required Credit Rating) or such other Eligible
Bank as the Global Trust Manager may determine from time
to time.
REMITTANCE TO COLLECTION ACCOUNT
12.2 To the extent that the Servicer is the Seller and the
Servicer has the Required Credit Rating, it is entitled
to retain any Collections in respect of a Collection
Period until 10.00 am (Melbourne time) on the Payment
Date following the end of the relevant Collection
Period, on or before which time it must deposit such
Collections into the Collections Account or pay such
amount in the manner directed by the Issuer Trustee
(acting on the direction of the Global Trust Manager).
12.3 To the extent that the Servicer is not the Seller, and
for so long as the Servicer has short term credit
ratings of no lower than A-1 from S&P, P-1 from Moody's
and F1 from Fitch, it may retain Collections until
10:00am (Melbourne time) on the Business Day which is
the earlier of 30 days from receipt and 2 Business Days
before the Payment Date following the end of the
relevant Collection Period. However, while the sum of
all Collections held by the Servicer and the value of
any short term Authorised Investments which are with, or
issued by, a bank or financial institution which has a
short-term credit rating of A-1 from S&P exceeds an
amount equal to 20% of the Aggregate Stated Amount of
all Notes, the Servicer will only be entitled to retain
any additional Collections received for 2 Business Days
following receipt.
12.4 Subject to clauses 12.2 and 12.3, the Servicer must
remit all Collections it receives to the Collections
Account within 2 Business Days of receipt of such
Collections.
SERVICER'S COLLECTIONS
12.5 The Issuer Trustee irrevocably authorises the Servicer
to deduct from any amount received from a Debtor in
respect of, in relation to or in connection with, a
Purchased Mortgage Loan, the amount of any Servicer's
Collections and for the Servicer to retain that amount
for its own account.
13 TERMINATION OF THE SWAPS AND APPLICATION OF THRESHOLD RATE
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CALCULATION OF THRESHOLD RATE
13.1 The Global Trust Manager shall, on each Payment Date
after the date on which the Basis Swap is terminated and
not replaced in the manner contemplated by clause
13.2(a)(i), and on any other date required by the
Transaction Documents:
(a) calculate the Threshold Rate on that day; and
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(b) notify the Issuer Trustee, the Servicer and the
Seller of that Threshold Rate.
TERMINATION OF BASIS SWAP OR FIXED RATE SWAP
13.2 If, at any time, the Basis Swap or the Fixed Rate Swap
terminates due to the default or failure to perform by
the Basis Swap Provider or the Fixed Rate Swap Provider
(as the case may be), the Global Trust Manager and the
Issuer Trustee must endeavour to:
(a) in the case of the Basis Swap:
(i) (in the case of the Issuer Trustee, to the
extent that the Global Trust Manager has
made appropriate arrangements to ensure
that it is possible for the Issuer Trustee
to) enter into a replacement swap on
substantially similar terms and with a
counterparty acceptable to each Current
Rating Agency;
(ii) (in the case of the Issuer Trustee, to the
extent that the Global Trust Manager has
made appropriate arrangements to ensure
that it is possible for the Issuer Trustee
to) ensure the Seller sets the weighted
average (rounded up to 4 decimal places) of
the variable interest rates payable under
each applicable Purchased Mortgage Loan
which then forms part of the Assets of the
Trust to at least equal to the Threshold
Rate; or
(iii) (in the case of the Issuer Trustee, to the
extent that the Global Trust Manager has
made appropriate arrangements to ensure
that it is possible for the Issuer Trustee
to) within 3 Business Days, enter into such
other arrangements which each Current
Rating Agency has confirmed will not result
in an Adverse Rating Effect; and
(b) in the case of the Fixed Rate Swap, within 3
Business Days:
(i) (in the case of the Issuer Trustee, to the
extent that the Global Trust Manager has
made appropriate arrangements to ensure
that it is possible for the Issuer Trustee
to) immediately enter into a replacement
swap on substantially similar terms and
with a counterparty acceptable to each
Current Rating Agency; or
(ii) (in the case of the Issuer Trustee, to the
extent that the Global Trust Manager has
made appropriate arrangements to ensure
that it is possible for the Issuer Trustee
to) enter into such other arrangements
which each Current Rating Agency has
confirmed will not result in an Adverse
Rating Effect.
SERVICER'S DISCRETION
13.3 If clause 13.2(a)(ii) applies, the Seller may, at its
discretion, set the interest rate on the Purchased
Mortgage Loans (where permitted under the relevant Loan
Agreement) at an interest rate higher than the Threshold
Rate.
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ISSUER TRUSTEE'S POWER
13.4 If the Issuer Trustee has notice that the Seller has
failed to fulfil its obligations under clause
13.2(a)(ii), the Issuer Trustee has the power to set the
interest rate on the Purchased Mortgage Loans in
accordance with clause 13.2(a)(ii).
TERMINATION OF LINKED DEPOSIT ACCOUNTS
13.5 The Seller will, following notice by the Issuer Trustee
to the relevant Debtors after the occurrence of a Title
Perfection Event, subject to any contractual notice
requirements by which the Seller is bound, promptly
withdraw all interest off-set benefits (if any) that
would otherwise be available to Debtors under the terms
of their Linked Deposit Accounts.
GROSS UP FOR LINKED DEPOSIT ACCOUNTS
13.6 The Seller must pay the Servicer (as part of the
Collections to be deposited by the Servicer into the
Collections Account) any amount which would otherwise be
received by the Servicer as a Collection to the extent
that the obligation to pay such amounts is discharged or
reduced by virtue of the terms of a Linked Deposit
Account. Such payment must be made on the day that the
relevant amount would otherwise have been received.
14 CASHFLOW ALLOCATION METHODOLOGY
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GENERAL
14.1 Prior to the occurrence of an Event of Default, the
Collections, Other Income and any amount required to be
drawn under the Support Facilities will be allocated by
the Global Trust Manager and paid in accordance with
clauses 14.2 to 14.17 below.
COLLECTION PERIOD
14.2 The Servicer will collect all Collections on behalf of
the Issuer Trustee during each Collection Period. On
each Determination Date, the Global Trust Manager will
allocate the Collections between Finance Charge
Collections and Principal Collections.
FINANCE CHARGE COLLECTIONS
14.3 On each Determination Date, the Finance Charge
Collections for the immediately preceding Collection
Period will be calculated by the Global Trust Manager as
the aggregate of the following items:
(a) any interest and other amounts in the nature of
interest or income (including any previously
capitalised interest) received in respect of any
Purchased Mortgage Loan, or any similar amount
deemed by the Servicer to be in the nature of
income or interest, including without limitation
amounts of that nature:
(i) recovered from the enforcement of a
Purchased Mortgage Loan (but excluding any
amount received under any Mortgage
Insurance Policy);
(ii) paid by a Debtor following notice given to
that Debtor in accordance with clause 13.5;
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(iii) paid by the Seller or the Servicer to the
Issuer Trustee upon repurchase of a
Purchased Mortgage Loan;
(iv) paid by another trust or any other person
as an Accrued Interest Adjustment upon the
transfer of a Purchased Mortgage Loan from
the Trust to that other trust or that
person;
(v) payable as interest by a Debtor on a Redraw
from the date on which the relevant Redraw
was provided by the Seller; (vi) received
from the Seller or the Servicer in respect
of a breach of a representation or warranty
contained in the Transaction Documents in
respect of a Purchased Mortgage Loan or
under any obligation to indemnify or
reimburse the Issuer Trustee; and
(vii) received from the Seller under clause 13.6
of this deed; and
(b) any Recoveries received in respect of a Purchased
Mortgage Loan.
CALCULATION OF AVAILABLE INCOME
14.4 On each Determination Date, the Available Income is
calculated by the Global Trust Manager (without double
counting) as follows:
(a) the Finance Charge Collections received during the
immediately preceding Collection Period; plus
(b) the Mortgage Insurance Interest Proceeds received
during the immediately preceding Collection
Period; plus
(c) any Other Income in respect of that Determination
Date; plus
(d) any net payments due to be received by the Issuer
Trustee under the Fixed Rate Swap or the Basis
Swap on the next Payment Date; plus
(e) all other amounts received by or on behalf of the
Issuer Trustee in respect of the Assets of the
Trust in the nature of income.
PRINCIPAL DRAW
14.5 If, on any Determination Date, there is a Payment
Shortfall then the Global Trust Manager must direct the
Issuer Trustee to make a Principal Draw on the Payment
Date immediately following that Determination Date equal
to the lesser of:
(a) the Payment Shortfall; and
(b) the amount of Principal Collections available for
application for that purpose on the following
Payment Date in accordance with clause 14.13(c),
and apply it towards the Payment Shortfall.
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LIQUIDITY DRAWING
14.6 If, on any Determination Date, there is a Liquidity
Shortfall, the Global Trust Manager must direct the
Issuer Trustee to make a Liquidity Drawing on the
Payment Date immediately following that Determination
Date equal to the lesser of:
(a) the Liquidity Shortfall on that Determination
Date; and
(b) the Available Liquidity Amount on that
Determination Date.
The Issuer Trustee must, if so directed by the Global
Trust Manager, make that Liquidity Drawing and have the
proceeds deposited or transferred into the Collections
Account on the relevant Payment Date.
CALCULATION AND APPLICATION OF TOTAL AVAILABLE INCOME
14.7 On each Determination Date, the Total Available Income
is calculated as the aggregate of:
(a) any Available Income calculated in accordance with
clause 14.4 on that Determination Date;
(b) any Principal Draw calculated in accordance with
clause 14.5 on that Determination Date; and
(c) any Liquidity Drawing calculated in accordance
with clause 14.6 on that Determination Date.
The Total Available Income in respect of a Determination
Date must be applied on the immediately following
Payment Date to meet Required Payments in accordance
with clause 14.8.
REQUIRED PAYMENTS (INTEREST WATERFALL)
14.8 The Global Trust Manager must direct the Issuer Trustee
to pay (or direct the payment of) the following items in
the following order of priority out of the Total
Available Income (as calculated on the relevant
Determination Date) on each Payment Date:
(a) first, at the Global Trust Manager's discretion,
up to $1 to each Residual Income Unitholder;
(b) second, solely with respect to the first Payment
Date, any Accrued Interest Adjustment to the
Seller upon the transfer of any Mortgage Loan to
the Trust during the Collection Period immediately
preceding that Payment Date;
(c) third, pari passu and rateably:
(i) any Taxes payable in relation to the Trust
for the Collection Period immediately
preceding that Payment Date;
(ii) the Issuer Trustee's fee payable on that
Payment Date;
(iii) the Servicer's fee payable on that Payment
Date;
(iv) the Global Trust Manager's fee payable on
that Payment Date;
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(v) the Security Trustee's fee payable on that
Payment Date;
(vi) any Enforcement Expenses incurred during
the Collection Period immediately preceding
that Payment Date; and
(vii) any other Expenses of the Trust incurred
during the Collection Period immediately
preceding that Payment Date;
(d) fourth, pari passu and rateably:
(i) any fees payable by the Issuer Trustee on
that Payment Date under the Redraw Facility
Agreement and the Liquidity Facility
Agreement;
(ii) any net amount payable by the Issuer
Trustee on that Payment Date under the
Basis Swap and the Fixed Rate Swap; and
(e) fifth, to the Liquidity Facility Provider in
repayment or reimbursement of any Liquidity
Drawing made before that Payment Date;
(f) sixth, pari passu and rateably:
(i) to each Currency Swap Provider, such amount
of the A$ Class A Interest Amount for the
Interest Period ending on (but excluding)
that Payment Date as is payable to the
Currency Swap Provider on that Payment Date
in accordance with the relevant Currency
Swap and any unpaid A$ Class A Interest
Amounts in respect of preceding Interest
Periods;
(ii) the A$ Note Interest Amounts for the Redraw
Notes for the Interest Period ending on
(but excluding) that Payment Date and any
unpaid A$ Note Interest Amounts for the
Redraw Notes in respect of preceding
Interest Periods;
(iii) any interest payable by the Issuer Trustee
under the Redraw Facility Agreement for the
Interest Period ending on (but excluding)
that Payment Date and any unpaid interest
amounts for the Redraw Facility in respect
of preceding Interest Periods; and
(iv) any interest payable by the Issuer Trustee
under the Liquidity Facility Agreement for
the Interest Period ending on (but
excluding) that Payment Date and any unpaid
interest in respect of preceding Interest
Periods; and
(g) seventh, the A$ Note Interest Amount for the Class
B Notes for the Interest Period ending on (but
excluding) that Payment
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Date and any unpaid A$ Note Interest Amounts for
the Class B Notes in respect of preceding Interest
Periods.
The Issuer Trustee will only make a payment under any of
paragraphs (a) to (g) inclusive to the extent that any
Total Available Income remains from which to make the
payment after amounts with priority to that amount have
been paid and distributed.
14.9 On each Payment Date that any amount is payable to a
Currency Swap Provider under clause 14.8(f)(i), the
Issuer Trustee must comply with Condition 6.9 of the
Class A Note Conditions.
EXCESS AVAILABLE INCOME
14.10 To the extent that, on any Payment Date, the Total
Available Income exceeds the amounts payable under
clause 14.8 (as calculated on the relevant Determination
Date) ("EXCESS AVAILABLE INCOME"), the Global Trust
Manager must apply any such excess and direct the Issuer
Trustee to pay (or direct the payment of) such amount on
that Payment Date in the following order of priority:
(a) firstly, pari passu and rateably:
(i) as an allocation to the A$ Class A
Principal, an amount equal to any Principal
Charge-Offs allocated to the Class A Notes
on that Determination Date in respect of
Principal Charge-Offs for the immediately
preceding Collection Period;
(ii) as an allocation to the Redraw Principal,
an amount equal to any Principal
Charge-Offs allocated to the Redraw
Principal Outstanding on that Determination
Date in respect of Principal Charge-Offs
for the immediately preceding Collection
Period; and
(iii) as an allocation to the Redraw Note
Principal, an amount equal to any Principal
Charge-Offs allocated to the Redraw Note
Principal on that Determination Date in
respect of Principal Charge-Offs for the
immediately preceding Collection Period;
(b) second, pari passu and rateably:
(i) as an allocation to the A$ Class A
Principal, an amount equal to the Carryover
Principal Charge-Offs in respect of the
Class A Notes;
(ii) as an allocation to the Redraw Principal,
an amount equal to the Carryover Principal
Charge-Offs in respect of the Redraw
Principal Outstanding; and
(iii) as an allocation to the Redraw Note
Principal, an amount equal to the Carryover
Principal Charge-Offs in respect of the
Redraw Note Principal;
(c) third, as an allocation to the Class B Principal,
an amount equal to any Principal Charge-Offs
allocated to the Class B
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Notes on the immediately preceding Determination
Date in respect of Principal Charge-Offs for the
immediately preceding Collection Period;
(d) fourth, as an allocation to the Class B Principal,
an amount equal to any Carryover Principal
Charge-Offs in respect of the Class B Notes;
(e) fifth, all Principal Draws which have not been
repaid as at that Payment Date; and
(f) sixth, as to any surplus, pari passu and rateably
to each Residual Income Unitholder by way of
distribution of the income of the Trust.
The Issuer Trustee will only make a payment under any of
paragraphs (a) to (f) above inclusive to the extent that
any Excess Available Income remains from which to make
the payment after amounts with priority to that amount
have been paid and distributed.
PRINCIPAL COLLECTIONS
14.11 On each Determination Date, the Principal Collections is
calculated as to the aggregate of:
(a) (i) the Collections for the immediately
preceding Collection Period;
(ii) any amount to be drawn under the Redraw
Facility Agreement on the Payment Date
immediately following that Determination
Date in accordance with clause 14.12;
(iii) the issue proceeds of any Redraw Notes to
be issued on the Payment Date immediately
following that Determination Date in
accordance with clause 8.3; and (iv) in
respect of the first Determination Date
only, any amount received by the Issuer
Trustee upon the initial issue of Notes in
excess of the Purchase Price of Purchased
Mortgage Loans,
less the sum of:
(b) the Finance Charge Collections as calculated on
that Determination Date; and
(c) any Mortgage Insurance Interest Proceeds received
during the immediately preceding Collection
Period.
REDRAW SHORTFALL
14.12 If the Global Trust Manager determines on any
Determination Date that there is a Redraw Shortfall, the
Global Trust Manager must direct the Issuer Trustee in
writing to request from the Redraw Facility Provider, in
accordance with the Redraw Facility Agreement, a Redraw
Drawing under the Redraw Facility Agreement on the
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immediately following Payment Date in an amount equal to
the lesser of:
(a) the Redraw Shortfall on that Determination Date;
and
(b) the Available Redraw Amount on that Determination
Date.
The Issuer Trustee must, if so directed by the Global
Trust Manager, make that Redraw Drawing and have the
proceeds deposited or transferred into the Collections
Account on the relevant Payment Date.
PRINCIPAL DISTRIBUTIONS
14.13 On each Payment Date and based on the calculations,
instructions and directions provided to it by the Global
Trust Manager, the Issuer Trustee must distribute out of
Principal Collections (as calculated on the
Determination Date immediately preceding that Payment
Date), the following amounts in the following order of
priority:
(a) first, to repay or reimburse any Redraws provided
by the Seller (up to and including the last day of
the immediately preceding Collection Period) in
relation to the Housing Loans comprising part of
the Purchased Mortgage Loans to the extent that
they have not previously been repaid or
reimbursed;
(b) second, an amount equal to the Redraw Principal
Outstanding (as calculated on the Determination
Date immediately preceding that Payment Date but
excluding any Redraw Drawings to be made on that
Payment Date and any Redraw Principal to be paid
on that Payment Date under clause 14.14(b)) will
be allocated to the Redraw Principal to be applied
in accordance with clause 14.14(b) on that Payment
Date;
(c) third, as a Principal Draw (if required) under
clause 14.5 on that Payment Date;
(d) fourth, an amount equal to the Aggregate Stated
Amount of the Redraw Notes (as calculated on the
Determination Date immediately preceding that
Payment Date but excluding any Redraw Note
Principal to be paid on that Payment Date under
clause 14.14(c)) will be allocated to the Redraw
Note Principal to be applied in accordance with
clause 14.14(c) on that Payment Date;
(e) fifth, an amount equal to the aggregate of:
(i) Class A Note Percentage of the Principal
Collections; and
(ii) the Stepdown Percentage (calculated on the
immediately preceding Determination date)
of the Class B Percentage of the Principal
Collections,
will be allocated to the A$ Class A Principal to
be applied in accordance with clause 14.14(a) on
that Payment Date;
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(f) sixth, an amount equal to the Class B Percentage
of the Principal Collections (after any
application of the Stepdown Percentage under
paragraph (e) above) will be allocated to the
Class B Principal to be applied in accordance with
clause 14.14(d) on that Payment Date; and
(g) seventh, as to any surplus (if any), to the
Residual Capital Unitholder.
The Issuer Trustee will only make a payment under any of
paragraphs (a) to (g) inclusive to the extent that any
Principal Collections remain from which to make the
payment after amounts with priority to that amount have
been paid and distributed.
PAYMENTS OF PRINCIPAL ON THE NOTES AND TO THE REDRAW FACILITY PROVIDER
14.14 On each Payment Date prior to the occurrence of an Event
of Default, the Issuer Trustee must, in accordance with
the directions given by the Global Trust Manager and
subject to the payment priority provided for in clause
14.13, pay:
(a) (A$ CLASS A PRINCIPAL) the A$ Class A Principal
payable for that Payment Date to each Currency
Swap Provider in accordance with Condition 7.2(a)
of the Class A Note Conditions and the terms of
the relevant Currency Swap and comply with
Condition 7.2 of the Class A Note Conditions;
(b) (REDRAW PRINCIPAL) the Redraw Principal payable
for that Payment Date to the Redraw Facility
Provider towards the Redraw Principal Outstanding
(as calculated on the Determination Date
immediately preceding that Payment Date but
excluding any Redraw Principal to be paid to the
Redraw Facility Provider under this clause
14.14(b) on that Payment Date);
(c) (REDRAW NOTE PRINCIPAL) the Redraw Note Principal
payable for that Payment Date, amongst the Redraw
Notes (if any) as a repayment of principal on the
Redraw Notes in the following order:
(i) first, pari passu and rateably amongst
those Redraw Notes with the earliest Issue
Date until the Aggregate Stated Amount of
those Redraw Notes (as calculated on the
Determination Date immediately preceding
that Payment Date but without double
counting amounts to be paid under this
clause 14.14(c) on that Payment Date) is
reduced to zero;
(ii) secondly, pari passu and rateably amongst
those Redraw Notes with the next earliest
Issue Date (if any) until the Aggregate
Stated Amount (as calculated on the
Determination Date immediately preceding
that Payment Date but without double
counting amounts to be paid under this
clause 14.14(c) on that Payment Date) of
those Redraw Notes is reduced to zero; and
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(iii) subsequently, pari passu and rateably
amongst each subsequent group of Redraw
Notes (if any) with the same Issue Date
until the Aggregate Stated Amount of those
Redraw Notes (as calculated on the
Determination Date immediately preceding
that Payment Date but without double
counting amounts to be paid under this
clause 14.14(c) on that Payment Date) is
reduced to zero on the basis that a Redraw
Note will not be entitled to any payment in
respect of principal under this clause
14.14(c) until the Aggregate Stated Amount
of all Redraw Notes with an earlier Issue
Date than that Redraw Note has been reduced
to zero; and
(d) (CLASS B PRINCIPAL) the Class B Principal payable
for that Payment Date, pari passu and rateably
amongst the Class B Notes until the Aggregate
Stated Amount of the Class B Notes (as calculated
on the Determination Date immediately preceding
that Payment Date but without double counting
amounts to be paid under this clause 14.14(d) on
that Payment Date) is reduced to zero.
PRINCIPAL CHARGE-OFFS
14.14A If, on any Determination Date, the Global Trust Manager
determines that there are Principal Charge-Offs in
respect of the immediately preceding Collection Period,
the Global Trust Manager must, on that Determination
Date, allocate such Principal Charge-Offs in the
following order:
(a) first, towards the Class B Notes until the amount
so allocated equals the Aggregate Stated Amount
(without double counting) of the Class B Notes (as
at that Determination Date); and
(b) second, pari passu and rateably (based on the
Aggregate Stated Amounts of the relevant Notes and
the Redraw Principal Outstanding as at the
immediately preceding Determination Date) towards:
(i) the Class A Notes until the amount so
allocated equals the Aggregate Stated
Amount (without double counting) of the
Class A Notes (as at that Determination
Date);
(ii) the Redraw Principal Outstanding until the
amount so allocated equals the Redraw
Principal Outstanding (without double
counting) (as at that Determination Date);
and
(iii) the Redraw Notes until the amount so
allocated equals the Aggregate Stated
Amount (without double counting) of the
Redraw Notes (as at that Determination
Date).
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CARRYOVER PRINCIPAL CHARGE-OFFS
14.15 If, on any Determination Date, the Principal Charge-Offs
for the immediately preceding Collection Period exceed
the amount of the Excess Available Income available for
allocation to Principal Charge-Offs under clause
14.10(a) on that Determination Date, the Global Trust
Manager must, on and with effect from the next Payment
Date:
(a) first, (without double counting any Principal
Charge-Offs) reduce the Aggregate Stated Amount of
the Class B Notes by the amount of that excess
until the Aggregate Stated Amount of the Class B
Notes (as at that Determination Date) is reduced
to zero; and
(b) second, (without double counting any Principal
Charge-Offs) pari passu and rateably (based on the
Aggregate Stated Amounts of the relevant Notes and
the Redraw Principal Outstanding as at the
immediately preceding Determination Date) reduce:
(i) the Aggregate Stated Amount of the Class A
Notes by the amount of that excess until
the Aggregate Stated Amount of the Class A
Notes (as at that Determination Date) is
reduced to zero;
(ii) the Redraw Principal Outstanding by the
amount of that excess until the Redraw
Principal Outstanding (as at that
Determination Date) is reduced to zero; and
(iii) the Aggregate Stated Amount of the Redraw
Notes by theamount of that excess until the
Aggregate Stated Amount of the Redraw Notes
(as at that Determination Date) is reduced
to zero,
(each a "CARRYOVER PRINCIPAL CHARGE-OFF").
INCREASES
14.16 To the extent that on any Determination Date amounts are
available for allocation under clauses 14.10(b) and (d),
then an amount equal to these amounts shall be applied
on the next Payment Date to increase respectively:
(a) first, pari passu and rateably (based on the
Aggregate Stated Amounts of the relevant Notes and
the Redraw Principal Outstanding as at the
immediately preceding Determination Date), the
Aggregate Stated Amount of the Class A Notes,
until it reaches the Total Invested Amount of the
Class A Notes (as at that Determination Date), the
Redraw Principal until it reaches the Redraw
Principal Outstanding (as at that Determination
Date) and the Aggregate Stated Amount of the
Redraw Notes until it reaches the Total Invested
Amount of the Redraw Notes (as at that
Determination Date); and
(b) second, the Aggregate Stated Amount of the Class B
Notes until it reaches the Total Invested Amount
of the Class B Notes (as at that Determination
Date).
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EARLY REPAYMENT COSTS
14.17 On each Determination Date, the Global Trust Manager
will calculate the aggregate of the Early Repayment
Costs in respect of the Purchased Mortgage Loans during
the immediately preceding Collection Period and will
direct the Servicer to pay that amount, on the
immediately following Payment Date, to the Fixed Rate
Swap Provider under the terms of the Fixed Rate Swap.
APPLICATION OF PROCEEDS FOLLOWING AN EVENT OF DEFAULT
14.18 Following the occurrence of an Event of Default, the
Security Trustee must apply all moneys received by it in
respect of the Secured Property in the following order:
(a) first, to pay rateably amounts owing or payable
under the Master Security Trust Deed to indemnify
the Security Trustee against all loss and
liability incurred by the Security Trustee or any
receiver in acting under the Master Security Trust
Deed, except the Receiver's remuneration;
(b) second, to pay rateably any fees and any
liabilities, losses, costs, claims, expenses,
actions, damages, demands, charges, stamp duties
and other taxes due to the Global Trust Manager,
the Issuer Trustee, the Security Trustee, the Note
Trustee or any Agent and the Receiver's
remuneration;
(c) third, to pay rateably other outgoings and
liabilities that the Receiver, the Issuer Trustee,
the Global Trust Manager, the Security Trustee or
the Note Trustee have incurred in acting under the
Master Trust Deed, this deed, the Master Security
Trust Deed, and, in the case of the Note Trustee,
under the Note Trust Deed;
(d) fourth, to pay rateably any security interests
over the Assets of the Trust of which the Security
Trustee is aware having priority to the Deed of
Charge in the order of their priority;
(e) fifth, to pay rateably:
(i) the Seller any unpaid Accrued Interest
Adjustment; and
(ii) the Fixed Rate Swap Provider and the Basis
Swap Provider amounts in respect of
collateral or prepayments owing under the
Fixed Rate Swap or Basis Swap;
(f) sixth, to pay rateably:
(i) the Class A Noteholders and Redraw
Noteholders all other Secured Moneys owing
in relation to the Class A Notes and the
Redraw Notes. For this purpose, the Secured
Moneys owing in respect of the Class A
Notes and Redraw Notes will be converted
from US$ to Australian dollars at the A$
Exchange Rate. This will be applied:
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(A) first, rateably towards all unpaid
interest on the Class A Notes and
Redraw Notes; and
(B) second, rateably to reduce the
Aggregate Stated Amount of the Class
A Notes and Redraw Notes;
(ii) any other Secured Money owing to the
Liquidity Facility Provider;
(iii) any Secured Moneys owing to the Redraw
Facility Provider, provided that for this
purpose the Secured Moneys owing in respect
of the Redraw Facility Provider will be the
Redraw Principal Outstanding;
(iv) rateably all other Secured Moneys owing to
each Currency Swap Provider; and
(v) rateably all other Secured Moneys owing to
each Swap Provider (other than each
Currency Swap Provider);
(g) seventh, to pay rateably to the Class A
Noteholders, the Redraw Noteholders and the Redraw
Facility Provider, all Principal Charge-Offs and
Carryover Principal Charge-Offs constituting
remaining Secured Moneys owing in respect of the
Class A Notes, the Redraw Notes and the Redraw
Facility. For this purpose, the Secured Moneys in
respect of the Class A Notes will be converted
from US$ to Australian dollars at the A$ Exchange
Rate;
(h) eighth, if there are still Secured Moneys owing in
respect of the Class A Notes and the Redraw Notes,
after the application of the preceding paragraphs,
to pay the remaining Secured Moneys owing in
relation to the Class A Notes and the Redraw
Notes;
(i) ninth, equally to the Class B Noteholders to be
applied:
(A) first, rateably towards all unpaid interest
on the Class B Notes;
(B) second, rateably to reduce the Aggregate
Stated Amount of the Class B Notes;
(j) tenth, to pay rateably to each Secured Creditor
any monetary liabilities owing to that Secured
Creditor under any Transaction Document and not
satisfied under the preceding paragraphs;
(k) eleventh, to pay subsequent security interests
over the Assets of the Trust of which the Security
Trustee is aware, in the order of their priority;
and
(l) twelfth, to pay any surplus to the Issuer Trustee
to be distributed in accordance with the terms of
the Master Trust Deed and this deed. The surplus
will not carry interest as against the Security
Trustee.
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EXCLUDED AMOUNT
14.19 The proceeds of any collateral provided by a Support
Facility Provider will not be treated as Secured
Property available for distribution in accordance with
clause 14.18. Any such collateral shall (subject to the
operation of any netting provisions in the relevant
Support Facility) be returned to the relevant Support
Facility Provider except to the extent that the relevant
Support Facility requires it to be applied to satisfy
any obligation owed to the Issuer Trustee by the
relevant Support Facility Provider.
15 DETERMINATIONS BY GLOBAL TRUST MANAGER
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DETERMINATIONS BY GLOBAL TRUST MANAGER
15.1 On each Determination Date, the Global Trust Manager
will (and where applicable, in respect of the Collection
Period ending immediately prior to that Determination
Date) determine or otherwise ascertain:
(a) the Finance Charge Collections;
(b) the Other Income;
(c) the Mortgage Insurance Interest Proceeds;
(d) the Available Income;
(e) the Total Available Income;
(f) the Principal Draw, if any;
(g) the Liquidity Draw, if any;
(h) the Expenses of the Trust;
(i) the Required Payments (and each amount comprising
the Required Payments);
(j) the Excess Available Income;
(k) the Principal Collections;
(l) the Redraw Shortfall (if any);
(m) the Principal Charge-Offs (if any);
(n) the Carryover Principal Charge-Offs (if any);
(o) the Extraordinary Expenses, if any;
(p) the Enforcement Expenses, if any; and
(q) any other relevant determinations.
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15.2 The Global Trust Manager must:
(a) notify the Issuer Trustee of each of the amounts
calculated by it in clause 15.1; and
(b) instruct the Issuer Trustee as to the payments to
be made by the Issuer Trustee on the relevant
Payment Date in accordance with clause 14.
15.3 On or before midday on the day which is two Business
Days prior to each Payment Date, the Global Trust
Manager must:
(a) determine any net amounts required to be drawn
under Support Facilities on that Payment Date;
(b) notify the Issuer Trustee of such determinations;
and
(c) direct the Issuer Trustee to make such drawings.
16 GLOBAL TRUST MANAGER, ISSUER TRUSTEE AND SERVICER FEES
------------------------------------------------------------------------------
GLOBAL TRUST MANAGER'S FEE
16.1 For the purposes of clause 26.1 of the Master Trust
Deed, and in consideration of the Global Trust Manager
performing its function and duties in respect of the
Trust, it will be paid a fee by the Issuer Trustee from
the Trust quarterly in arrears on each Payment Date
equal to the product of:
(a) the Total Invested Amount of all Notes on the last
day of the Quarter ending immediately before that
Payment Date;
(b) 0.10% per annum or such other rate as is agreed by
the Global Trust Manager and the Issuer Trustee
from time to time, notice of which must be sent by
the Global Trust Manager to each Current Rating
Agency; and
(c) the number of days between the immediately
preceding Payment Date and the current Payment
Date divided by 365 days,
provided that the fee payable to the Global Trust
Manager in respect of the first period shall be
calculated with respect to the number of days between
the Closing Date and the first Payment Date.
The fee shall accrue due from day to day.
ISSUER TRUSTEE'S FEE
16.2 For the purposes of clause 26.2 of the Master Trust
Deed, and in consideration of the Issuer Trustee
performing its functions and duties in respect of the
Trust it will receive a fee, in an amount and calculated
in such manner as may be agreed between the Issuer
Trustee and the Global Trust Manager from time to time
provided there is no Adverse Rating Effect.
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SERVICER'S FEE
16.3 For the purposes of clause 6.1 of the Servicing
Agreement, and in consideration of the Servicer
performing its functions and duties in respect of the
Trust, it will be paid a fee by the Issuer Trustee from
the Trust payable quarterly in arrears on each Payment
Date equal to the product of:
(a) the aggregate Outstanding Principal Balance of all
Housing Loans comprising part of the Purchased
Mortgage Loans on the first day of the Quarter
ending immediately before that Payment Date;
(b) 0.40% per annum or such other rate as is agreed by
the Global Trust Manager, the Issuer Trustee and
the Servicer from time to time, notice of which
must be sent by the Global Trust Manager to each
Current Rating Agency; and
(c) the number of days between the immediately
preceding Payment Date and the current Payment
Date divided by 365 days,
provided that the fee payable to the Servicer in respect
of the first period shall be calculated with respect to
the number of days between the day after the Cut-Off
Date and the first Payment Date and based on the
aggregate Outstanding Principal Balance of all Housing
Loans comprising part of the Purchased Mortgage Loans as
at the Cut-Off Date.
That fee shall accrue due from day to day.
FEE AND GST
16.4 The fees payable to the Global Trust Manager, the Issuer
Trustee and the Servicer are inclusive of GST. Each
supplier will provide the corresponding recipient any
reasonable documentation required for GST purposes so as
to enable the relevant recipient to receive an input tax
credit or tax refund for tax purposes.
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PART 5 - GENERAL
17 NOTICES
--------------------------------------------------------------------------------
NOTICES
17.1 Any notice, request, certificate, approval, demand,
consent or other communication to be given under this
deed:
(a) must be given by an Authorised Person of the
relevant party;
(b) must be in writing; and
(c) must be left at the address of the addressee or
sent by prepaid ordinary post to the address of
the addressee or sent by facsimile to the
facsimile number of the addressee, or sent by
e-mail to the e-mail address of the addressee set
out below or as are notified by the party to the
other parties as its address for service of
communications pursuant to this deed.
ISSUER TRUSTEE:
Address: Level 3
39 Hunter Street
Sydney NSW 2000
Facsimile: (61 2) 9221 7870
Attention: Manager, Securitisation
E-mail: as notified from time to time
GLOBAL TRUST MANAGER:
Address: 7301 Baymeadows Way
Jacksonville
Florida 32256
United States of America
Facsimile: 904 281 3062
Attention: General Counsel
E-mail: [email protected]
SECURITY TRUSTEE:
Address: Level 3
39 Hunter Street
Sydney NSW 2000
Facsimile: (61 2) 9221 7870
Attention: Manager, Securitisation
E-mail: as notified from time to time
SELLER:
Address: Level 24
500 Bourke Street
Melbourne Vic 3000
Facsimile: (61 3) 8641 4927
Attention: Company Secretary
SERVICER:
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<TABLE>
<S> <C>
Address: Level 1
120 Spencer Street
Melbourne Vic 3000
Facsimile: (61 3) 9601 7600
Attention: Head of Servicing and Head of Securitisation
</TABLE>
DEEMED RECEIPT
17.2 A notice, request, certificate, demand, consent or other
communication under this deed is deemed to have been
received:
(a) where delivered in person, upon receipt at the
relevant office;
(b) where sent by post, on the third (seventh if
outside Australia) day after posting;
(c) 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; and
(d) in the case of an e-mail, on receipt by the sender
of an e-mail from the recipient stating that the
e-mail was delivered in its entirety and the
contents and attachments of the e-mail have been
received.
However, if the time of deemed receipt of any notice is
not before 4.00 p.m. (local time at the address of the
recipient) on a Business Day it is deemed to have been
received at the commencement of business on the next
following Business Day.
18 COUNTERPARTS
--------------------------------------------------------------------------------
This deed may be executed in any number of counterparts.
All counterparts together will be taken to constitute
one instrument.
19 DAMAGES
------------------------------------------------------------------------------
CLAIM FOR DAMAGES
19.1 Where this deed provides for damages to be payable by
the Seller, the Servicer or the Global Trust Manager to
the Issuer Trustee:
(a) (CLAIM MUST BE IN WRITING) a written notice of a
claim for damages must be provided to the relevant
party by the Issuer Trustee;
(b) (CLAIM MUST SPECIFY THE AMOUNT OF DAMAGES) such
notice must specify the amount of damages claimed
and how such amount has been determined by
reference to the loss incurred as a result of the
breach leading to the claim for damages; and
(c) (ISSUER TRUSTEE MUST ACT ON INSTRUCTIONS) the
Issuer Trustee in preparing a notice in accordance
with clauses 19.1(a) and (b) will act on the
instructions of the Global Trust Manager (in the
case of a claim against the Seller or the
Servicer) or take expert advice, if necessary (in
the case of a claim against the Global Trust
Manager).
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ALLOCATION OF DAMAGES
6.2 If damages or indemnities are payable to the Issuer
Trustee by the Servicer, the Seller or the Global Trust
Manager for breach of a representation, warranty or
obligation under the Master Trust Deed, this deed or
another Transaction Document, such damages (or
indemnities, as the case may be) are to be treated as
Finance Charge Collections. On each Determination Date
the Global Trust Manager must notify the Issuer Trustee
of the damages (or the indemnities, as the case may be)
received (if any) in the Collection Period just ended.
20 MISCELLANEOUS
--------------------------------------------------------------------------------
CERTIFICATE
20.1 A certificate signed by the Issuer Trustee or its
solicitors about a matter or about a sum payable to the
Issuer Trustee in connection with this deed is
sufficient evidence of the matter or sum stated in the
certificate unless the matter or sum is proved to be
false.
EXERCISE OF RIGHTS
20.2 The Issuer Trustee or an attorney appointed under this
deed may exercise a right, power or remedy at its
discretion, and separately or concurrently with another
right, power or remedy. A single or partial exercise of
a right, power or remedy by the Issuer Trustee does not
prevent a further exercise of that or an exercise of any
other right, power or remedy. Failure by the Issuer
Trustee to exercise or delay in exercising a right,
power or remedy does not prevent its exercise. The
Issuer Trustee is not liable for any loss caused by its
exercise, attempted exercise, failure to exercise or
delay in exercising it except in the case of the Issuer
Trustee, its negligence, fraud or breach of trust.
WAIVER AND VARIATION
20.3 A provision of or a right created under this deed may
not be waived or varied except in writing signed by the
party or parties to be bound.
SUPERVENING LEGISLATION
20.4 Any present or future legislation which operates to vary
the obligations of the Issuer Trustee in connection with
this deed with the result that the Issuer Trustee's
rights, powers or remedies are adversely affected
(including, without limitation, by way of delay or
postponement) is excluded except to the extent that its
exclusion is prohibited or rendered ineffective by law.
APPROVALS AND CONSENT
20.5 The Issuer Trustee, the Global Trust Manager or an
attorney appointed under this deed may give
conditionally or unconditionally or withhold its
approval or consent in its absolute discretion, unless
this deed expressly provides otherwise.
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REMEDIES CUMULATIVE
20.6 The rights, powers and remedies provided in this deed
are cumulative with and not exclusive of the rights,
powers or remedies provided by law independently of this
deed.
INDEMNITIES
20.7 Each indemnity in this deed is a continuing obligation,
separate and independent from the other obligations of
the Issuer Trustee and the Global Trust Manager and
survives termination of this deed. It is not necessary
for the Issuer Trustee or the Global Trust Manager to
incur expense or make payment before enforcing a right
of indemnity conferred by this deed.
TIME OF THE ESSENCE
20.8 Time is of the essence in this deed in respect of an
obligation of the Issuer Trustee to pay money.
RECEIPTS
20.9 The receipt of a Receiver, or an Authorised Person of
the Issuer Trustee, releases the person paying money to
the Receiver or the Issuer Trustee in connection with
this deed from:
(a) liability for the money paid or expressed to be
received; and
(b) being concerned to see to its application or being
answerable or accountable for its loss or
misapplication.
ACKNOWLEDGMENT
20.10 The parties acknowledge and agree that the Issuer
Trustee and the Global Trust Manager in exercising their
powers and discretions under this deed, and in
performing their obligations under this deed, must act
in accordance with their duties and obligations under
the Transaction Documents in respect of the Trust and
may exercise such powers and discretions as provided in
the Transaction Documents in respect of the Trust and
(without limitation) in forming any opinion may obtain
and act upon the advice of persons who are not parties
to the Transaction Documents in respect of the Trust.
20.11 The parties acknowledge that they are bound by the terms
of the Master Trust Deed, the Deed of Charge in respect
of the Trust and this deed in respect of the Trust.
DISCLOSURE OF INFORMATION
20.12 Subject to this deed, the Issuer Trustee is not required
(unless ordered so to do by a court of competent
jurisdiction) to disclose to any Unitholder, Secured
Creditor or any other person confidential, financial or
other information made available to the Issuer Trustee
in connection with this deed.
RIGHTS CUMULATIVE
20.13 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.
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SIGNATURES
20.14 The Issuer Trustee and the Global Trust Manager may rely
on the validity of any signature on any transfer, form
of application or other instrument or document unless
the Issuer Trustee or the Global Trust Manager (as the
case may be) has reasonable grounds to believe that the
signature is not genuine. Neither the Issuer Trustee nor
the Global Trust 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 Global Trust Manager) is to be borne by
the relevant Trust in respect of which the loss is
incurred.
21 GOVERNING LAW
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GOVERNING LAW
21.1 This deed and each Trust are governed by the law in
force in the Australian Capital Territory and the
rights, liabilities and obligations of the parties to it
are governed by the laws in force in the Australian
Capital Territory.
SUBMISSION TO JURISDICTION
21.2 Each party irrevocably and unconditionally submits to
the non-exclusive jurisdiction of the courts of the
Australian Capital Territory and courts of appeal from
them. Each party waives any right it has to object to an
action being brought in those courts including, without
limitation, by claiming that the action has been brought
in an inconvenient forum or that those courts do not
have jurisdiction.
SERVICE
21.3 Without preventing any other mode of service, any
document in an action (including, without limitation,
any writ of summons or other originating process or any
third or other party notice) may be served on any party
by being delivered to or left for that party at its
address for service of notices under clause 17.
22 LIMITED RECOURSE - ISSUER TRUSTEE
--------------------------------------------------------------------------------
Clause 2 of the Definitions Schedule applies to this
deed as if set out in full in it (with any consequential
changes as are necessary to give effect to that clause
in this deed).
23 SELLER TRUST
--------------------------------------------------------------------------------
CONSTITUTION OF SELLER TRUST
23.1 Subject to this clause 23, a Seller Trust is constituted
upon execution of this deed and the payment of $20 by
the Seller to the Issuer Trustee. The Seller Trust
Assets of the Seller Trust vest in the Issuer Trustee
and are held by the Issuer Trustee on the terms of and
subject to this deed.
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DECLARATION OF TRUST
23.2 The Issuer Trustee declares that it will hold all its
right, title and interest in the Seller Trust Assets of
the Seller Trust on bare trust for the Seller.
23.3 With respect to:
(a) the Trust, the Issuer Trustee will hold all of its
right, title and interest in so much of any
Mortgage Loan, Mortgage Title Documents and
Monetary Rights for each Purchased Mortgage Loan
from time to time assigned to the Issuer Trustee
(including, without limitation, the proceeds of
enforcement of that Purchased Mortgage Loan) as is
necessary to enable the full and final repayment
of all amounts owing by the Debtor in respect of
the Purchased Mortgage Loan, on trust for the
Trust; and
(b) the Seller Trust, the Issuer Trustee will hold
each Other Secured Liability and the balance (if
any) of any Mortgage Loans, Mortgage Title
Documents and Monetary Rights on trust for the
Seller Trust.
ENTITLEMENT
23.4 The beneficial interest in the Seller Trust Assets
relating to the Seller Trust vests absolutely in the
Seller.
DEALING WITH ASSETS
23.5 Subject to the terms of this deed:
(a) the Seller is entitled to deal with the Seller
Trust Assets in its absolute discretion;
(b) the Issuer Trustee must not deal with the Seller
Trust Assets of the Seller Trust other than in
accordance with the directions given to it by the
Seller from time to time; and
(c) the Issuer Trustee must act in accordance with any
direction given to it by the Seller in respect of
the Seller Trust Assets,
except if the Issuer Trustee considers that it would be
illegal for the Issuer Trustee to do so, would
constitute a breach of any document, agreement or law or
would result in the Issuer Trustee's exposure to a risk
of personal liability where the Issuer Trustee is not
satisfied, in its absolute discretion, that the Seller
will be able to indemnify or reimburse the Issuer
Trustee in accordance with clause 23.11.
TREATMENT OF SHARED COLLATERAL
23.6 Where:
(a) a Purchased Mortgage Loan forms part of the Trust;
(b) an Other Secured Liability forms part of the
Seller Trust; and
(c) the Mortgage which secures the Mortgage Loan also,
in accordance with the terms of this deed, secures
the Other Secured Liability,
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then all moneys received by the Seller, the Servicer,
the Global Trust Manager, or the Issuer Trustee or any
receiver, receiver and manager or attorney under or in
relation to a Purchased Mortgage Loan or any Other
Secured Liability as a result of the enforcement of a
Purchased Mortgage Loan shall be applied in accordance
with the directions of the Global Trust Manager and in
the following order of priority:
(d) first, to meet all costs, charges and expenses of
the Issuer Trustee or the relevant mortgagee or
any receiver, receiver and manager or attorney
incurred in the enforcement of the Purchased
Mortgage Loan;
(e) second, in satisfaction of amounts owing under the
Purchased Mortgage Loan, to be held on the terms
of the Trust; and
(f) third, as to any excess, in satisfaction of the
Other Secured Liability.
For the avoidance of doubt, the Seller acknowledges
that:
(i) it may not take any action that would
restrict or prevent the transfer of, and
its consent will not be required to
transfer, Mortgage Loans between trusts, or
from the Trust to any other person, in
accordance with this deed and the Master
Trust Deed or any other action which the
Issuer Trustee may take in respect of the
Mortgage Loans in accordance with this deed
and the Master Trust Deed (provided that
the other trust, or the other person, to
whom the Mortgage Loans are transferred is
made aware of the existence of the
interests of the Seller in the Mortgage
Loans);
(ii) it will not, and has no right to, take any
action which may affect or restrict the
ability of the Issuer Trustee or the
Security Trustee (or any receiver, receiver
and manager or attorney appointed by any of
them) to take any enforcement action in
respect of a Mortgage Loan. The Seller will
not demand, nor will it receive (or be
entitled to receive) any payment in respect
of an interest in the Mortgage Loan until
all payments referred to in clauses 23.6(d)
and (e) have been paid in full; and
(iii) it may not direct the Issuer Trustee to
take any action with respect to a Seller
Trust Asset that may prejudice the
interests of Unitholders and/or Secured
Creditors.
PROCEEDS
23.7 Subject to clause 23.6, the Seller may retain any
proceeds received by it from the Seller Trust Assets of
the Seller Trust.
23.8 Subject to clause 23.6, the Issuer Trustee must
immediately pay to or at the direction of the Seller any
proceeds the Issuer Trustee receives in respect of the
Seller Trust Assets of the Seller Trust. Any such
payment constitutes a good discharge of the Issuer
Trustee.
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CLAW-BACK
23.9 The Seller must immediately pay to or at the direction
of the Issuer Trustee any payments made erroneously by
the Issuer Trustee to the Seller under clause 23.8.
DUTIES
23.10 (a) The Issuer Trustee owes no fiduciary or other
duties to the Seller in respect of the Seller
Trust Assets of the Seller Trust other than as set
out in this clause. The Issuer Trustee is not, in
any event, liable to the Seller for any loss to
the Seller Trust Assets of a Seller Trust as a
result of acting on the directions of the Seller
or for not acting as a result of the Seller
failing to give a direction to the Issuer Trustee.
The only recourse of the Seller against the Issuer
Trustee in respect of the Seller Trust will be for
any loss suffered by the Seller to the extent of
the Issuer Trustee's fraud, negligence or breach
of trust.
(b) The Issuer Trustee has no liability to the
Unitholders of the Trust or to the Secured
Creditors of the Trust for acting on the
directions of the Seller (or for not acting, where
the Seller fails to give a direction to the Issuer
Trustee) in respect of the Seller Trust Assets
that are referable to the Trust.
INDEMNITY
23.11 Without limiting any other indemnity to which the Issuer
Trustee is entitled, and subject to clause 23.12, the
Seller indemnifies the Issuer Trustee against any cost,
expense, loss or liability incurred by the Issuer
Trustee as a result of any dealing with the Seller Trust
Assets by the Seller, the Issuer Trustee complying with
directions given to it by the Seller in respect of any
Seller Trust Assets or as a result of not acting if the
Seller gives it no direction. The Seller must pay or
reimburse the Issuer Trustee on demand for all expenses
payable in connection with this indemnity. The
provisions of clause 2 of the Definitions Schedule and
clauses 12.3, 12.5 and 12.8 to 12.24 (inclusive) of the
Master Trust Deed apply to the Seller Trust as if it
were a "Trust" as defined in the Master Trust Deed.
23.12 The indemnity given by the Seller in clause 23.11 will
not apply to the extent that the relevant cost, expense,
loss or liability arises as a result of the Issuer
Trustee's fraud, negligence or breach of trust.
TERMINATION
23.13 Subject to this deed, the Seller Trust terminates when
the Issuer Trustee ceases to have any right to or
interest in, the Seller Trust Assets of the Seller
Trust.
TRANSFER
23.14 If:
(a) any Purchased Mortgage Loans are transferred from
the Trust to another trust in accordance with this
deed or the Master Trust Deed; and
(b) a Seller Trust exists in respect of any such
Mortgage Loans,
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then, subject to this deed, the Seller Trust in respect
of the relevant Mortgage Loans will cease to exist in
respect of the Trust from which those Mortgage Loans are
transferred and the Seller Trust established under this
deed to which those Mortgage Loans are transferred will
from that time apply to those Mortgage Loans. The
consent or approval of the Seller is not required in
respect of such a transfer.
OTHER LIABILITIES
23.15 The Seller may provide additional or further financial
accommodation to a Debtor which is secured by a Shared
Security (other than any such financial accommodation
provided in respect of a Purchased Mortgage Loan) which
has been assigned to the Trust after that assignment has
taken place.
SHARED SECURITIES
23.16 (a) The Issuer Trustee must not, and the Global Trust
Manager must not direct the Issuer Trustee to,
sell, transfer or grant any Security Interest over
any Shared Security which is held by it partly as
trustee for the Trust and partly by it as trustee
for the Seller Trust without notifying the
relevant transferee or holder of the Security
Interest of the existence of the interest of the
Seller as beneficiary of the Seller Trust in that
Shared Security.
(b) The Seller (as beneficiary of the Seller Trust)
has the power, in the case of a Shared Security
over Land, to lodge a caveat over any Shared
Security where the Issuer Trustee has, in breach
of clause 23.16(a) sold, transferred or granted
any Security Interest or the Seller reasonably
believes that the Issuer Trustee will sell,
transfer or grant any Security Interest.
24 SELLER PROVISIONS
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SET-OFF
24.1 If the Seller exercises a right of set-off or
combination in respect of any Mortgage Loan, or if any
right of set-off is exercised against the Seller in
respect of any Mortgage Loan, the Seller must pay to the
Issuer Trustee, subject to any laws relating to
preferences (or the equivalent), the amount of,
respectively, any benefit accruing to the Seller as a
result of the exercise of its right of set-off or
combination or the amount of any right of set-off
exercised against the Seller.
SELLER DOWNGRADE
24.2 If at any time the Seller has a short term deposit
credit rating assigned by Moody's which is lower than
P-1 (or such other rating as is agreed between the
Global Trust Manager, the Issuer Trustee, the Seller and
Moody's) or has a short term deposit credit rating
assigned by S&P which is lower than A-1+ (or such other
rating as is agreed between the Global Trust Manager,
the Issuer Trustee, the Seller and S&P) or has a long
term rating assigned by Fitch of lower than BBB (or such
other rating as is agreed between the Global Trust
Manager, the Issuer Trustee, the Seller and Fitch) then
(whether or not clause 24.5 has previously applied) the
Seller must:
(a) (MAKE A SELLER DEPOSIT): as a prepayment of its
obligations pursuant to clause 24.1, pay to the
Issuer Trustee the amount of
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any set-off that may thereafter be exercised
against the Seller, deposit or maintain in an
account ("SET-OFF ACCOUNT") with an Eligible Bank
which has a short term credit rating of A-1+ from
S&P (which may be the Collections Account while
the holder of the Collections Account is rated in
this manner) on each Payment Date thereafter
(after giving effect to the payments to be made on
that Payment Date) an amount which is the greater
of the following ("SELLER DEPOSIT"):
(i) in the case of a lower rating by S&P, the
amount from time to time agreed with S&P
or, failing agreement, the amount from time
to time specified by S&P, which is
sufficient in either case (as applicable)
so as to not result in an Adverse Rating
Effect in respect of S&P; or
(ii) in the case of a lower rating by Moody's or
Fitch (as applicable), unless otherwise
agreed by Moody's or Fitch (as the case may
be), an amount equal to 125% of the
aggregate of the amounts then standing to
the credit of the deposit accounts held by
Debtors with Housing Loans that comprise
part of the Purchased Mortgage Loans that
do not have a Waiver of Set-Off as at the
preceding Payment Date; or
(b) (OTHER ARRANGEMENTS): implement such other
arrangements as are from time to time agreed
between the Seller and S&P (in the case of a lower
rating by S&P), Moody's (in the case of a lower
rating by Moody's) or Fitch (in the case of a
lower rating by Fitch) (and notified by the Seller
to the Issuer Trustee and the Global Trust
Manager) so as to ensure that an Adverse Rating
Effect does not result in respect of either S&P,
Moody's or Fitch (as the case may be) if such
other arrangements cannot be so agreed with S&P,
Moody's or Fitch (as the case may be), the Seller
must comply with clause 24.2(a) in relation to
S&P, Moody's or Fitch, as the case may be),
provided that the Seller will not have any obligation
pursuant to this clause 24.2 if all Housing Loans which
are part of the Purchased Mortgage Loans which are
Assets of the Trust have a Waiver of Set-Off.
REDUCTION OR INCREASE OF SELLER DEPOSIT
24.3 If on a Payment Date to which clause 24.2 applies:
(a) (REDUCTION): the required amount of the Seller
Deposit pursuant to clause 24.2(a) is less than
the existing amount of the Seller Deposit, the
Global Trust Manager will direct the Issuer
Trustee to repay (and upon receipt of such
direction the Issuer Trustee will repay on that
Payment Date) to the Seller from the Set-Off
Account the difference between the required amount
of the Seller Deposit on that Payment Date and the
existing amount of the Seller Deposit; and
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(b) (INCREASE): the required amount of the Seller
Deposit pursuant to clause 24.2(a) is greater than
the existing amount of the Seller Deposit, the
Seller will deposit in the Set-Off Account on that
Payment Date the difference between the required
amount of the Seller Deposit on that Payment Date
and the existing amount of the Seller Deposit.
INTEREST ON SELLER DEPOSIT
24.4 On each Determination Date, the Global Trust Manager
will determine the amount (if any) that has been
received in the Collection Period just ended in respect
of interest that has been earned on the Set-Off Account
and which is attributable to the Seller Deposit (if any)
deposited in the Set-Off Account and will instruct the
Issuer Trustee to pay such interest to the Seller on the
next Payment Date.
SELLER UPGRADE
24.5 If, following the application of clause 24.2(a), the
Seller is assigned (by the relevant Current Rating
Agency or Current Rating Agencies responsible for
triggering the application of the clause) a short term
deposit credit rating by Moody's of at least P-1 (or
such other rating as is agreed between the Global Trust
Manager, the Issuer Trustee, the Seller and Moody's), a
short term deposit credit rating by S&P of at least
A-1+_ (or such other rating as is agreed between the
Global Trust Manager, the Issuer Trustee, the Seller and
S&P) or a long term rating by Fitch of BBB (or such
other rating as is agreed between the Global Trust
Manager, the Issuer Trustee, the Seller and Fitch), or
if alternative arrangements referred to in clause
24.2(b) are agreed (with the relevant Current Rating
Agency or Current Rating Agencies referred to therein)
which do not require the maintenance of a Seller
Deposit, the Global Trust Manager will direct the Issuer
Trustee to repay (and within 2 Business Days of receipt
of such direction of the Issuer Trustee will repay) to
the Seller from the Set-Off Account the then Seller
Deposit (which has not previously been utilised in
accordance with clause 24.7(b)) together with all
accrued, but unpaid, interest on that amount determined
in accordance with clause 24.4.
TERMINATION OF TRUST OR AMENDMENTS TO MORTGAGE LOANS
24.6 On the earlier of:
(a) the date upon which all Housing Loans that
comprise part of the Purchased Mortgage Loans
which are Assets of the Trust have a Waiver of
Set-Off;
(b) the Termination Date; and
(c) the Payment Date immediately following the
occurrence of a Title Perfection Event,
the Global Trust Manager will direct the Issuer Trustee
to repay (and upon receipt of such direction the Issuer
Trustee will repay) to the Seller from the Set-Off
Account the then Seller Deposit (which has not
previously been utilised in accordance with clause
24.7(b)) together with all accrued, but unpaid, interest
on that amount determined in accordance with clause
24.4.
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WITHDRAWALS FROM THE ACCOUNT
24.7 The Global Trust Manager may only direct the Issuer
Trustee to, and the Issuer Trustee may only, make
withdrawals from the Seller Deposit in the Set-Off
Account as follows:
(a) (REPAY SELLER DEPOSIT) to repay to the Seller the
Seller Deposit pursuant to clauses 24.3(a), 24.5
and 24.6; or
(b) (MEET SELLER OBLIGATIONS) to meet any obligation
of the Seller (in that capacity) to make any
payment to the Issuer Trustee pursuant to clause
24.1 in relation to the amount of any right of
set-off exercised against the Seller referred to
therein, provided that the Seller has failed to
make such payment within 20 Business Days of
receipt by the Seller of notice from the Issuer
Trustee or the Global Trust Manager that such
payment is due and unpaid.
EXECUTED as a deed.
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SCHEDULE 1 REGISTER
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REGISTER
1 The Issuer Trustee must, in respect of the Trust, keep
an up to date Register in respect of that Trust. The
Issuer Trustee must enter into the Register:
(a) the name of the Trust;
(b) the names and addresses of the Noteholders;
(c) the number of Notes held by each Noteholder;
(d) the date on which each Noteholder was first
registered in the Register;
(e) the date on which any person ceases to be a
Noteholder;
(f) the class of Note issued;
(g) the A$ Note Interest Rate payable in relation to
the Note;
(h) the Final Maturity Date (if applicable) in
relation to the Note;
(i) the account into which any payments to a
Noteholder are to be paid (if applicable);
(j) the Invested Amount and Stated Amount, if any, in
relation to the Note; and
(k) any other particulars the Global Trust Manager and
the Issuer Trustee agree are desirable or as
required under this deed.
ISSUER TRUSTEE NOT LIABLE FOR MISTAKE
2 The Issuer Trustee is not liable for any mistake in the
Register or in any purported copy except to the extent
that the mistake is attributable to the Issuer Trustee's
own fraud, negligence or breach of trust.
GLOBAL TRUST MANAGER ACCEPT CORRECTNESS
3 The Global Trust Manager is entitled to accept the
correctness of all information contained in the Register
and is not liable to any person for any error in it.
INSPECTION
4 The Global Trust Manager, or Noteholders and their
authorised representatives may inspect that part of the
Register which relates to the Noteholder free of charge
and on reasonable notice. The Issuer Trustee shall give
a copy of the Register or part of it to the Global Trust
Manager within 3 Business Days of receipt of a request
from the Global Trust Manager.
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CHANGE IN INFORMATION
5 A Noteholder must advise the Issuer Trustee of any
change to the information noted in the Register in
respect of that Noteholder. Upon receipt of such advice,
the Issuer Trustee must promptly update the information
contained in the Register.
CLOSURE
6 The Issuer Trustee from time to time may close the
Register but no part of the Register may be closed for
more than 30 days in aggregate in any calendar year.
NOTICE OF OTHER INTEREST
7 Except as otherwise provided in this deed, no notice of
any trust, whether express, implied or constructive,
shall be entered in the Register and neither the Issuer
Trustee nor the Global Trust Manager shall be affected
by or compelled to recognise (even when having notice of
it) any right or interest in any Note other than the
Noteholders' absolute right to the entirety of them and
the receipt by a Noteholder shall be a good discharge to
the Issuer Trustee and Global Trust Manager.
INFORMATION
8 The Global Trust Manager shall furnish the Issuer
Trustee with such information as the Issuer Trustee may
reasonably require to maintain the Register.
CLOSURE TO CALCULATE ENTITLEMENT
9 In order to calculate Noteholder entitlements and
interest entitlements, the Register may be closed by the
Issuer Trustee from 3:30 pm on such Business Day as the
Global Trust Manager may determine from time to time
(not exceeding 5 Business Days) and recommence at the
commencement of business on the Business Day immediately
following the day the Noteholder entitlements and any
coupon or interest are payable.
APPOINTMENT OF THIRD PARTY REGISTRAR
10 The Issuer Trustee, with the approval of the Global
Trust Manager, may cause the Register to be maintained
by a third party on its behalf and require that person
to discharge the Issuer Trustee's obligations under this
deed in relation to the Register. The Issuer Trustee is
not liable for any act or omission of such person
provided the Issuer Trustee has taken reasonable steps
to select a person competent to perform this function.
CONCLUSIVENESS OF REGISTER
11 An Acknowledgment is not a certificate of title as to
Notes and the Register is the only conclusive evidence
of title to Notes.
WORN OUT OR LOST ACKNOWLEDGMENT
12 If an Acknowledgment becomes worn out or defaced, then
upon production of it to the Issuer Trustee, a
replacement will be issued. If an Acknowledgment is lost
or destroyed, and upon proof of this to the satisfaction
of the Issuer Trustee and
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the provision of such indemnity as the Issuer Trustee
considers adequate, a replacement Acknowledgment will be
issued. A fee not exceeding $10 may also be charged by
the Issuer Trustee for the new Acknowledgment if it so
requires.
RECTIFICATION OF REGISTER
13 If:
(a) an entry is omitted from the Register;
(b) an entry is made in the Register otherwise than in
accordance with this deed;
(c) an entry wrongly exists in the Register;
(d) there is an error or defect in any entry in the
Register; or
(e) a default is made or an unnecessary delay takes
place in entering into the Register that any
person has ceased to be the holder of a Note or
any other information,
the Issuer Trustee may rectify the same and the Issuer
Trustee is not liable for any loss, costs or liability
incurred as a result of any of the foregoing occurring.
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SCHEDULE 2 TRANSFER OF NOTES
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FORM OF TRANSFER
1 All transfers of Notes must be in writing in the form of
the transfer as agreed between the Global Trust Manager
and the Issuer Trustee ("TRANSFER FORM").
EXECUTION OF TRANSFER
2 Every Transfer Form must be duly completed, duly stamped
(if applicable), executed by the transferor and the
transferee and delivered to the Issuer Trustee together
with the Acknowledgment relating to the Notes to be
transferred. The transferor is deemed to remain the
owner of the Notes for all purposes until the name of
the transferee is entered into the Register.
RESTRICTIONS ON TRANSFER
3 A Noteholder is only entitled to transfer any Notes if:
(a) the offer or invitation to the proposed transferee
by the Noteholder in relation to the Notes does
not require disclosure to investors in accordance
with Part 6D.2 of the Corporations Law; and
(b) the transfer would not otherwise breach any
restriction on transfer of the Notes contained in
the Master Trust Deed or this deed.
ISSUER TRUSTEE MAY REFUSE TO REGISTER
4 The Issuer Trustee may refuse to register any Transfer
Form:
(a) if it is not duly completed, executed and stamped
(if necessary);
(b) if it contravenes or fails to comply with the
terms of this deed; or
(c) if 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, or
any other relevant laws.
The Issuer Trustee is not bound to give any reason for
refusing to register any Transfer Form and its decision
is final, conclusive and binding. If the Issuer Trustee
refuses to register a Transfer Form, it must, as soon as
practicable following that refusal, send to the
Noteholder and to the parties seeking to take the
transfer of the Notes notice of that refusal. The Issuer
Trustee has no obligation to enquire whether a transfer
of Notes complies with the restrictions in this deed.
REGISTRATION OF TRANSFEREE
5 Subject to the terms of this schedule, the Issuer
Trustee must upon receipt of a Transfer Form register
the transferee in the
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Register. No fee is to be charged for the registration
of any Transfer Form.
NO TRANSFER IF REGISTER CLOSED
6 The Issuer Trustee may refuse to register any Transfer
Form for such period as the Register is closed for any
purpose.
RIGHTS AND OBLIGATIONS OF TRANSFEREE
7 Notes are negotiable. A transferee of Notes pursuant to
this deed has the following rights and obligations from
the time of registration:
(a) all those rights which the transferor previously
had; and
(b) all those obligations of a Noteholder as provided
by this deed as if the transferee was originally a
party to it.
WHEN TRANSFER EFFECTIVE
8 Subject to refusal by the Issuer Trustee to register a
transfer of Notes under this schedule, and subject to
condition 9, a Transfer Form is deemed for the purposes
of this deed to take effect and be registered from the
beginning of the Business Day on which the Transfer Form
was received by the Issuer Trustee, except that if a
Transfer Form is received by the Issuer Trustee after
4.00 pm in Sydney, the Transfer Form is deemed not to be
effective until the next Business Day (when the Register
is open) following its receipt by the Issuer Trustee.
TRANSFER FORM RECEIVED WHEN REGISTER CLOSED
9 Where a Transfer Form is received by the Issuer Trustee
during any period when the Register is closed under this
deed, or on any day which is not a Business Day, the
Transfer Form is deemed to be effective and registered
(subject to refusal by the Issuer Trustee to register a
transfer) from the beginning of the first Business Day
on which the Register is re-opened.
ISSUE OF ACKNOWLEDGMENT
10 Whenever, in respect of a transfer, the Issuer Trustee
is required under this deed to register a person as a
Noteholder, the Issuer Trustee must issue by mail to the
transferee (at the address stated on the Transfer Form),
or arrange for the relevant Noteholder to collect from
the Issuer Trustee, within 10 Business Days of such
registration, an Acknowledgment to the transferee in
respect of the relevant Notes and, where some, but not
all, Notes held by a Noteholder have been transferred,
issue a new Acknowledgment (within 10 Business Days of
the registration) to the transferor as confirmation of
the balance of the Notes registered in the name of the
transferor.
FORM OF ACKNOWLEDGMENT
11 Acknowledgments may be engraved, lithographed or printed
and must be signed, either manually, mechanically,
electronically, by facsimile or by other means agreed
between
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the Global Trust Manager and the Issuer Trustee, by an
Authorised Person or other delegate of the Issuer
Trustee.
PAYMENTS TO TRANSFEREE
12 Subject to this deed, upon entry of a transferee in the
Register, the transferee is ipso facto entitled to
receive any payments then due or which become due to the
Noteholder and the Issuer 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, except that where a transfer is received
after the closure of the Register as referred to in this
deed for the purpose of determining entitlements to
interest or principal, but prior to the date upon which
that interest or principal is due to be paid in respect
of the relevant Notes, then that interest and principal
must be paid to the transferor and not the transferee.
MARKED TRANSFERS
13 The Issuer Trustee must, unless the parties otherwise
agree, provide marking services in the manner set out in
this schedule at the Issuer Trustee's offices or the
offices of a third party appointed pursuant to this deed
in Sydney. If the Issuer Trustee or a third party is
requested by a Noteholder to mark a Transfer Form, the
Issuer Trustee or the third party must so mark the
Transfer Form. Until a period of 90 days (or such other
period as determined by the Global Trust Manager and the
Issuer Trustee) has elapsed from the date any Transfer
Form is so marked, the Issuer Trustee or any third party
must not register any Transfer Form in respect of such
Notes except that marked Transfer Form.
RELIANCE ON DOCUMENTS
14 The Issuer Trustee is entitled to accept and assume the
authenticity and genuineness of any Transfer Form or any
other document unless the Issuer Trustee has reasonable
grounds to believe that it has not been duly executed.
The Issuer Trustee is not bound to enquire into the
authenticity or genuineness of any Transfer Form or
other document, nor incurs any liability for registering
any Transfer Form which is subsequently discovered to be
a forgery or otherwise defective, unless the Issuer
Trustee had actual notice of such forgery or defect at
the time of registration of such Transfer Form.
SPECIMEN SIGNATURES
15 The Issuer Trustee may (but need not) require each
Noteholder to submit specimen signatures (and, in the
case of a corporation, may require those signatures to
be authenticated by a secretary or director of such
Noteholder) of persons authorised to execute Transfer
Forms on behalf of such Noteholder and is entitled to
assume (until notified to the contrary) that such
authority has not been revoked.
PERSONS ENTITLED ON TRANSMISSION
16 If a Noteholder dies, the Issuer Trustee and the Global
Trust Manager will recognise only the survivor or
survivors (where
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the deceased was a joint holder) or the administrators
(in all other cases) as having any title to the Notes
registered in the name of the deceased.
REGISTRATION ON TRANSMISSION
17 A person who becomes entitled to a Note (and gives
evidence of that entitlement to the Global Trust Manager
in a form satisfactory to the Global Trust Manager and
the Issuer Trustee) because of the death, insolvency,
bankruptcy, insanity or other disability of a Noteholder
is entitled to be registered as the Noteholder or to
nominate some other person to be registered as the
Noteholder.
NOTICE OF ELECTION
18 To effect a registration under condition 17, the person
must give a written notice to the Global Trust Manager
and the Issuer Trustee requesting the registration. If
the Notes are to be registered in the name of a nominee
of the person, the person must also execute a transfer
of the Notes 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 Noteholder.
RIGHTS OF TRANSMITTEE PRIOR TO REGISTRATION
19 A person who becomes entitled to a Note because of the
death, insolvency, bankruptcy, insanity or other
disability of a Noteholder is entitled to receive and
may give a discharge for all money payable in respect of
the Notes.
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SCHEDULE 3 STEPDOWN PERCENTAGE
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The Stepdown Percentage on a Determination Date is determined as follows:
1. If the Stepdown Conditions (as defined below) are not
satisfied on that Determination Date, the Stepdown
Percentage is 100%.
2. If the Stepdown Conditions are satisfied on that
Determination Date, the Stepdown Percentage is 100%
unless the following apply:
(a) if the Payment Date immediately following that
Determination Date falls prior to 20 April 2004,
the Stepdown Percentage is 50%;
(b) if:
(i) the Payment Date immediately following that
Determination Date falls on or after 20
April 2004 but prior to 20 April 2011; and
(ii) the Class B Available Support on that
Determination Date is equal to or greater
than two times the Class B Required Support
on that Determination Date;
the Stepdown Percentage is 0%;
(c) if:
(i) paragraph (b) above does not apply;
(ii) the Payment Date immediately following that
Determination Date falls on or after 20
April 2006 but prior to 20 April 2011; and
(iii) the Class B Available Support on that
Determination Date is equal to or greater
than the Class B Required Support on that
Determination Date,
then:
(i) if the Payment Date immediately following
that Determination Date falls on or after
20 April 2006 but prior to 20 April 2007,
the Stepdown Percentage is 70%;
(ii) if the Payment Date immediately following
that Determination Date falls on or after
20 April 2007 but prior to 20 April 2008,
the Stepdown Percentage is 60%;
(iii) if the Payment Date immediately following
that Determination Date falls on or after
20 April 2008 but prior to 20 April 2009,
the Stepdown Percentage is 40%;
(iv) if the Payment Date immediately following
that Determination Date falls on or after
20 April 2009 but prior to 20 April 2010,
the Stepdown Percentage is 20%; or
(v) if the Payment Date immediately following
that Determination Date falls on or after
20 April 2010 but prior to 20 April 2011,
the Stepdown Percentage is 0%; or
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(d) if the Payment Date immediately following that
Determination Date falls on or after 20 April
2011, the Stepdown Percentage is 0%.
STEPDOWN CONDITIONS
The Stepdown Conditions are satisfied on a Determination Date if:
1. the following applies:
(a) the Class B Available Support on that
Determination Date is equal to or greater than two
times the Class B Required Support on that
Determination Date;
(b) the Aggregate Stated Amount for the Class B Notes
as at the immediately preceding Determination Date
is equal to or greater than 0.25% of the aggregate
Initial Invested Amount of the Class B Notes as at
the Closing Date;
(c) either:
(i) the Average Arrears Ratio on that
Determination Date does not exceed 2% and
the aggregate Carryover Principal
Charge-Offs as at the immediately preceding
Determination Date does not exceed 30% of
the aggregate of Initial Invested Amounts
of the Class B Notes; or
(ii) the Average Arrears Ratio on that
Determination Date does not exceed 4% and
the aggregate Carryover Principal
Charge-Offs as at the immediately preceding
Determination Date does not exceed 10% of
the aggregate Initial Invested Amounts of
the Class B Notes; and
(d) the event referred to in Condition 7.3 of the
Class A Note Conditions has not occurred on or
prior to the Determination Date and is not
expected to occur on or prior to the next Payment
Date thereafter, or
2. the following applies:
(a) that Determination Date falls on or after 20 April
2006;
(b) the Average Arrears Ratio on that Determination
Date does not exceed 2%;
(c) the Aggregate Stated Amount of all the Notes (as
at the immediately preceding Determination Date)
is greater than 10% of the aggregate of the
Initial Invested Amount of all the Notes
(excluding any Redraw Notes);
(d) the Aggregate Stated Amount for the Class B Notes
(as at the immediately preceding Determination
Date) is equal to or greater than 0.25% of the
aggregate Initial Invested Amount of the Class B
Notes as at the Closing Date; and
(e) the aggregate of all Carryover Principal
Charge-Offs (as at the immediately preceding
Determination Date) does not exceed:
(i) if the Determination Date falls on or after
20 April 2006 but prior to 20 April 2007,
30% of the aggregate of the Initial
Invested Amounts of the Class B Notes;
(ii) if the Determination Date falls on or after
20 April 2007 but prior to 20 April 2008,
35% of the aggregate of the Initial
Invested Amounts of the Class B Notes;
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(iii) if the Determination Date falls on or after
20 April 2008 but prior to 20 April 2009,
40% of the aggregate of the Initial
Invested Amounts of the Class B Notes;
(iv) if the Determination Date falls on or after
20 April 2009 but prior to 20 April 2010,
45% of the aggregate of the Initial
Invested Amounts of the Class B Notes; or
(ii) if the Determination Date falls on or after
20 April 2010, 50% of the aggregate of the
Initial Invested Amounts of the Class B
Notes.
The following terms have these meanings in this schedule:
ARREARS RATIO means, on a Determination Date, the
percentage of the Outstanding Principal Balance of the
Housing Loans referable to all Purchased Mortgage Loans
in relation to which default in payment of any amount
due has occurred and has continued for a period of 60
days or more as at the last day of the immediately
preceding Collection Period to the total Outstanding
Principal Balance of the Housing Loans referable to all
Purchased Mortgage Loans (calculated on the last day of
the immediately preceding Collection Period).
AVERAGE ARREARS RATIO means, on any Determination Date,
the amount (expressed as a percentage) calculated as
follows:
SAR
AAR = ---
4
where:
AAR = the Average Arrears Ratio; and
SAR = the sum of the Arrears Ratios for the 4
Determination Dates preceding or ending on that
Determination Date,
provided that if on that Determination Date there has
not yet been 4 Determination Dates the Average Arrears
Ratio in relation to that Determination Date means the
amount (expressed as a percentage) calculated as
follows:
SAR
AAR = ---
N
where:
AAR = the Average Arrears Ratio; and
SAR = the sum of the Arrears Ratios for all of the
Determination Dates preceding or ending on the
Determination Date; and
N = the number of Determination Dates preceding or
ending on that Determination Date.
CLASS B AVAILABLE SUPPORT in relation to a Determination
Date means an amount (expressed as a percentage)
calculated as follows:
ASA(B)
CBAS = --------
ASA + RL
<PAGE>
79
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where:
CBAS = the Class B Available Support;
ASA(B) = the Aggregate Stated Amount of the Class B
Notes on the immediately preceding
Determination Date;
ASA = the Aggregate Stated Amounts of all Notes on
the immediately preceding Determination Date;
and
RL = the Redraw Limit on the immediately preceding
Determination Date,
provided that, in respect of the first Determination
Date, such amounts will be calculated by reference to
the Initial Invested Amount of the relevant Classes of
Notes and the RL will be the Redraw Limit on the Closing
Date.
CLASS B REQUIRED SUPPORT in relation to a Determination
Date means the amount (expressed as a percentage)
calculated as follows:
IIAB
CBAS = ----
AIIA
where:
CBRS = the Class B Required Support;
IIAB = the aggregate Initial Invested Amount of the
Class B Notes; and
AIIA = the aggregate of the A$ Equivalent of Initial
Invested Amounts of the Class A Notes, and the
Initial Invested Amounts for the Class B Notes.
<PAGE>
80
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EXECUTION PAGE
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SIGNED SEALED AND DELIVERED )
by )
as attorney for PERPETUAL TRUSTEE )
COMPANY LIMITED under power of )
attorney dated )
)
in the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) )
)
................................ ) ...................................
Address of witness ) By executing this deed the
) attorney states that the attorney
................................ ) has received no notice of
Occupation of witness ) revocation of the power of attorney
SIGNED by )
on behalf of and SEALED AND )
DELIVERED by HOMESIDE )
GLOBAL MBS MANAGER, INC. in )
the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) )
)
................................ )
Address of witness )
) .................................
................................ ) By executing this deed the
Occupation of witness ) signatory states that the
) signatory has received no notice
) of revocation of the authority
) under which this deed is executed
<PAGE>
81
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SIGNED SEALED AND DELIVERED )
by )
as attorney for NATIONAL )
AUSTRALIA BANK LIMITED under )
power of attorney dated )
)
in the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) )
) ...................................
................................ ) By executing this deed the
Address of witness ) attorney states that the attorney
) has received no notice of
................................ ) revocation of the power of attorney
Occupation of witness )
SIGNED SEALED AND DELIVERED )
by )
as attorney for P.T. LIMITED under )
power of attorney dated )
)
in the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) )
)
................................ ) ...................................
Address of witness ) By executing this deed the
) attorney states that the attorney
................................ ) has received no notice of
Occupation of witness ) revocation of the power of attorney
)
<PAGE>
82
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SIGNED SEALED AND DELIVERED )
by )
as attorney for NATIONAL )
AUSTRALIA BANK LIMITED )
(TRADING AS HOMESIDE) under power )
of attorney dated )
)
in the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) )
)
................................ ) ...................................
Address of witness ) By executing this deed the
) attorney states that the attorney
................................ ) has received no notice of
Occupation of witness ) revocation of the power of attorney
SIGNED by )
on behalf of and SEALED AND )
DELIVERED by HOMESIDE )
MORTGAGE SECURITIES, INC. in )
the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) )
)
................................ )
Address of witness )
) ..................................
................................ ) By executing this deed the
Occupation of witness ) signatory states that the
) signatory has received no notice
) of revocation of the authority
under which this deed is executed
