<PAGE>
EXHIBIT 4.4
HOMESIDE MORTGAGE SECURITIES TRUSTS
MASTER SECURITY TRUST DEED
DATE: 3 January 2001
PARTIES: PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001 007) having
its registered office at Level 7, 39 Hunter Street, Sydney NSW
2000 ("ISSUER TRUSTEE")
P.T. LIMITED (ABN 67 004 454 666 having its registered office
at Level 7, 39 Hunter Street, Sydney NSW 2000 ("SECURITY
TRUSTEE")
HOMESIDE GLOBAL MBS MANAGER, INC. having an office at
7301 Baymeadows Way, Florida, 32256, United States of America
("GLOBAL TRUST MANAGER")
THE BANK OF NEW YORK, NEW YORK BRANCH, a New York banking
corporation acting through its New York branch at 101 Barclay
Street, 21W, New York New York 10286 ("NOTE TRUSTEE")
RECITALS:
A. The Issuer Trustee is the trustee, and the Global Trust
Manager is the manager, of each Trust which is or will be
established pursuant to the Master Trust Deed and a Notice of
Creation of Trust, and which will be regulated by a
Supplemental Deed which provides for this deed to apply to
that Trust.
B. Pursuant to the Master Trust Deed, the Issuer Trustee has the
power to raise money by issuing Notes and will be doing so in
accordance with the terms of the Master Trust Deed.
C. As security for its obligations to the Secured Creditors of a
Trust, the Issuer Trustee, as trustee of that Trust, will
grant to the Security Trustee a charge over all of the Assets
of that Trust for the benefit of those Secured Creditors.
D. The Issuer Trustee of a Trust has the power under the Master
Trust Deed to grant the Charge evidenced in the relevant Deed
of Charge.
E. The Security Trustee of each Security Trust will act as
trustee for the Secured Creditors and hold the benefit of the
Charge on trust for the Secured Creditors and otherwise act in
accordance with this deed and the relevant Deed of Charge.
F. The Note Trustee may have certain rights and obligations under
this deed in respect of a Trust in its capacity as a Voting
Secured Creditor, of that Trust.
OPERATIVE PROVISIONS:
1 INTERPRETATION
------------------------------------------------------------------------------
1.1 The following words have these meanings in this deed unless
the contrary intention appears.
<PAGE>
DEFINITIONS SCHEDULE means the deed called "HomeSide Mortgage
Securities Trusts Definitions Schedule" dated on or about the
date of this deed and made between the parties described in
schedule 1 to that deed.
DEFINITIONS SCHEDULE
1.2 Except to the extent to which words and phrases are otherwise
defined in this deed, words and phrases defined in the
Definitions Schedule or in the Supplemental Deed for a Trust
shall bear the same meaning in this deed when used in respect
of that Trust. In the event of any inconsistency between a
definition in the Definitions Schedule and the Supplemental
Deed for a Trust, the definitions in the Supplemental Deed
will prevail. No change to the Definitions Schedule or to the
Supplemental Deed for a Trust will affect the interpretation
of this deed unless the change has been agreed to by the
Security Trustee.
MISCELLANEOUS
1.3 Clauses 1.2 to 1.5 (inclusive) of the Definitions Schedule are
deemed to be incorporated in this deed as if they were set out
in full.
1.4 The Issuer Trustee, the Global Trust Manager, the Security
Trustee and the Note Trustee will only have rights and
obligations under this deed in respect of a Trust where the
Supplemental Deed for that Trust specifies that this deed (and
the Deed of Charge relating to that Trust) is to apply to that
Trust.
2 DECLARATION OF SECURITY TRUST
------------------------------------------------------------------------------
DECLARATION OF SECURITY TRUST
2.1 The Security Trustee declares that it holds the sum of $10
(contributed by the Global Trust Manager) and will hold the
Security Trust Fund in respect of each Security Trust on trust
for persons who are the Secured Creditors of the Trust
referable to that Security Trust from time to time.
COMMENCEMENT AND TERMINATION
2.2 A Security Trust will commence on the date on which the Deed
of Charge in respect of that Security Trust is executed and
terminates on the earlier of:
(a) the Vesting Date in respect of that Security Trust; and
(b) the date on which the related Trust is terminated in
accordance with the Master Trust Deed.
NAME OF SECURITY TRUST
2.3 The name of each Security Trust will be the "HomeSide Mortgage
Securities X-Y Security Trust", where X is the year in which
the relevant Security Trust is created and Y is the
consecutive number of the Security Trust created in that year
(or such other name agreed between the Issuer Trustee, the
Security Trustee and the Global Trust Manager).
2
<PAGE>
RIGHTS OF SECURED CREDITORS
2.4 The Secured Creditors of a Security Trust are bound by, and
are deemed to have notice of, the provisions of the
Transaction Documents of the Trust to which the Security Trust
relates. The rights of the Secured Creditors of a Security
Trust are limited by the terms of such Transaction Documents.
2.5 Without limiting clause 2.4, no Secured Creditor in respect of
a Trust is entitled (other than as permitted by this deed or
any other Transaction Document in respect of that Trust) to:
(a) interfere with any Trust or any rights or powers of the
Global Trust Manager or the Issuer Trustee under the
Master Trust Deed or any other Transaction Document in
respect of that Trust;
(b) exercise a right in respect of an Asset of any Trust or
lodge a caveat or other notice affecting an Asset of any
Trust or otherwise claim any interest in an Asset of any
Trust;
(c) subject to the Transaction Documents for that Trust,
require the transfer to it of any Asset of any Trust;
(d) seek to terminate or wind up any Trust;
(e) have any recourse whatsoever to the Issuer Trustee or
the Global Trust Manager in its personal capacity except
in the case of fraud, negligence or breach of trust on
the part of the Issuer Trustee or the fraud, negligence
or material breach of obligation on the part of the
Global Trust Manager; or
(f) seek to remove the Issuer Trustee or the Global Trust
Manager.
However, nothing in this clause prevents a Secured Creditor
from:
(i) exercising its rights in connection with any
Transaction Document in respect of that Trust;
(ii) taking proceedings to obtain an injunction or other
order to restrain any breach of any Transaction
Document in respect of that Trust; or
(iii) taking proceedings to obtain declaratory relief in
relation to any Transaction Document in respect of
that Trust.
3 PAYMENTS
------------------------------------------------------------------------------
PAYMENT TO SECURITY TRUSTEE
3.1 Subject to clause 3.2, the Issuer Trustee agrees to pay the
Secured Money referable to a Trust to the Security Trustee in
accordance with the terms of the Transaction Documents for
that Trust.
3
<PAGE>
DISCHARGE BY PAYMENT TO SECURED CREDITORS
3.2
(a) The payment of the Secured Money of a Trust by the
Issuer Trustee to a Secured Creditor of that Trust in
accordance with the terms of the Transaction Documents
for that Trust will discharge the Issuer Trustee from
any obligation to pay that amount to the Security
Trustee in accordance with clause 3.1.
(b) Clause 3.2(a) does not affect or limit the obligation of
the Issuer Trustee to pay to the Security Trustee any
Secured Money of a Trust payable to the Security Trustee
on its own account pursuant to the terms of any
Transaction Document for that Trust.
ELECTION BY SECURITY TRUSTEE
3.3 The Security Trustee may elect, at any time after an Event of
Default has occurred in respect of a Trust, to require payment
to it of all or part of the Secured Money for that Trust.
Clause 3.2(a) will not apply if any such election is made by
the Security Trustee.
4 COVENANTS BY ISSUER TRUSTEE
------------------------------------------------------------------------------
GENERAL COVENANTS
4.1 The Issuer Trustee, in respect of each Trust, agrees to:
(a) (OBSERVE MASTER TRUST DEED) observe the terms of the
Master Trust Deed and the Supplemental Deed for that
Trust in dealing with the Secured Property of that
Trust;
(b) (COPY OF REGISTER) at the same time or as soon as
practicable after a notice referred to in clause 4.1(e)
is given to the Security Trustee, provide to the
Security Trustee:
(i) a current copy of the Register of that Trust
maintained in accordance with the Master Trust
Deed;
(ii) details (including notice details) of each Secured
Creditor of that Trust; and
(iii) details of the Secured Money owing to each Secured
Creditor of that Trust;
(c) (PROVIDE INFORMATION) upon request from the Security
Trustee (acting reasonably), provide to the Security
Trustee such information, copies of any accounting
records and other documents, statements and reports
required to be maintained by, or that are otherwise in
the possession of, the Issuer Trustee, or which the
Issuer Trustee is entitled to obtain from any person
(including information and documents referred to in
clause 4.1(b));
(d) (DEPOSIT DOCUMENTS) if the Charge in respect of that
Trust has taken effect as a fixed charge, deposit with
the Security
4
<PAGE>
Trustee immediately or as soon as the Issuer Trustee
receives them:
(i) anything evidencing a Security Interest in respect
of that Trust and any document of title given to
the Issuer Trustee to secure the payment of a
monetary obligation to the Issuer Trustee in
respect of that Trust; and
(ii) any documents of title relating to property over
which that Charge operates as a fixed charge;
(e) (EVENT OF DEFAULT) notify and provide the Security
Trustee and each Current Rating Agency with details of
any Event of Default in respect of that Trust of which
it becomes actually aware;
(f) (ACTIONS) do all such things as are necessary or
appropriate to give effect to the provisions of this
deed and the Deed of Charge for that Trust;
(g) (OTHER BUSINESS) not engage in any business or other
activities other than those contemplated by the
Transaction Documents for the Trust;
(h) (INSOLVENCY PROCEEDINGS) not take any steps to commence
or initiate any insolvency, dissolution, consolidation,
merger or other similar proceedings in respect of the
Trust unless each Current Rating Agency confirms that
such proceedings will not result in the downgrade,
reduction or withdrawal of the Required Credit Rating in
respect of the Trust;
(i) (OTHER INDEBTEDNESS) not incur any financial
indebtedness in respect of the Trust except as
contemplated by the Transaction Documents for the Trust;
(j) (SEPARATENESS) conduct the business and operations of
the Trust in a manner which is separate from, and on an
arm's length basis with all other business conducted by
the Issuer Trustee;
(k) (SUBSIDIARIES) not establish any subsidiaries; and
(l) (BANK ACCOUNTS) not open or maintain any bank accounts
in respect of the Trust other than as contemplated by
the Transaction Documents for that Trust.
COVENANTS IN RESPECT OF SECURED PROPERTY
4.2 The Issuer Trustee, in respect of each Trust, will not:
(a) dispose of, deal with or part with possession of any
interest in the Secured Property of that Trust over
which the Charge in respect of that Trust is floating in
any manner except as permitted by the Transaction
Documents;
5
<PAGE>
(b) without the prior written consent of the Security
Trustee, dispose of, deal with or part with possession
of any interest in, or permit a set-off or combination
of, accounts in respect of the Secured Property of that
Trust over which the Charge in respect of that Trust is
fixed in any manner except as permitted by the
Transaction Documents; or
(c) without the prior written consent of the Security
Trustee, create or allow to come into existence an
Encumbrance (other than pursuant to this deed or the
Deed of Charge in respect of that Trust) which affects
any Secured Property of that Trust (except an
Encumbrance which is created by the operation of law or
as permitted by the Transaction Documents for that
Trust).
4.3 If the Issuer Trustee creates or allows to exist an
Encumbrance over any Secured Property of a Trust in breach of
clause 4.2(c), without the consent of the Security Trustee,
then, despite anything contained in this deed or any other
agreement in connection with the provision of the Secured
Money in respect of that Trust:
(a) the Issuer Trustee must immediately procure that; and
(b) the Security Trustee and the Secured Creditors of that
Trust need not provide any further accommodation which
would form part of the Secured Money of that Trust until
the Issuer Trustee procures that,
a priority agreement is entered into between the Issuer
Trustee, the Security Trustee and the encumbrancer in a form
acceptable to the Security Trustee. The Security Trustee's
other rights which arise if the Issuer Trustee so creates or
allows to exist an Encumbrance are not affected by this clause
4.3. The Issuer Trustee must provide each Current Rating
Agency with written notice of the creation or existence of the
Encumbrance.
GLOBAL TRUST MANAGER UNDERTAKINGS
4.4 The Global Trust Manager undertakes to the Issuer Trustee and
the Security Trustee that it will not knowingly give any
direction to the Issuer Trustee under the Transaction
Documents which would, if complied with, result in the Issuer
Trustee breaching the terms of this deed or any other
Transaction Document.
4.5 At the request of the Issuer Trustee or the Security Trustee,
the Global Trust Manager must provide to the Issuer Trustee or
the Security Trustee, as the case may be, the information and
other material referred to in clauses 4.1(b)(ii) and (iii) and
clause 4.1(c) to the extent that such information is in the
possession of the Global Trust Manager or which the Global
Trust Manager is entitled to obtain from any person and the
Global Trust Manager is permitted, under any applicable
privacy legislation, to provide that information or material
to the Issuer Trustee or the Security Trustee, as the case may
be.
6
<PAGE>
5 FURTHER ASSURANCES
------------------------------------------------------------------------------
ISSUER TRUSTEE ASSURANCES
5.1 The Issuer Trustee, in respect of each Trust, agrees to:
(a) execute in favour of the Security Trustee, or as the
Security Trustee directs, and in a form acceptable to
the Security Trustee, further documents; and
(b) do the things the Security Trustee stipulates,
to provide more effective security to the Security Trustee
over the Secured Property of the relevant Trust, for the
payment of the Secured Money of the relevant Trust and to
enable the Security Trustee to exercise its rights in
connection with that Secured Property.
COMPLETION OF INSTRUMENTS
5.2 An Authorised Person of the Security Trustee may fill in any
blanks in this deed and in any Deed of Charge and complete in
favour of the Security Trustee or anyone purchasing under the
powers given by this deed any instrument executed by or on
behalf of the Issuer Trustee in blank and deposited with the
Security Trustee in connection with this deed or any Deed of
Charge.
REGISTRATION OF CHARGE
5.3 The Global Trust Manager (on behalf of the Security Trustee)
must register the Charge in respect of each Trust at the
Issuer Trustee's expense as a charge on the register of
charges maintained by the Australian Securities and
Investments Commission under the Corporations Law. The Issuer
Trustee agrees to procure execution of all documents required
by the Global Trust Manager which are necessary to register
each such Charge and to provide evidence to the Security
Trustee promptly after registration is completed.
6 REPRESENTATIONS AND WARRANTIES
------------------------------------------------------------------------------
6.1 The Issuer Trustee, as trustee of each Trust, represents and
warrants that:
(a) (NO BREACH) it is not in breach of any material
provision of the Master Trust Deed or the relevant
Supplemental Deed;
(b) (POWER) it has power to enter into this deed and the
Deed of Charge in respect of the Trust, and to observe
its obligations under them and to allow them to be
enforced;
(c) (AUTHORISATIONS) it has in full force and effect the
authorisations necessary to exercise the powers referred
to in paragraph (b) above;
(d) (NO CONTRAVENTION) this deed, the Deed of Charge in
respect of the Trust and the transactions under them do
not contravene its constituent documents or any law,
regulation or official
7
<PAGE>
directive or any of its obligations or undertakings by
which it or any of its assets are bound;
(e) (CREATION OF TRUST) the Trust has been validly created;
(f) (APPOINTMENT OF ISSUER TRUSTEE) the Issuer Trustee has
been validly appointed as the trustee of the Trust;
(g) (SOLE TRUSTEE) the Issuer Trustee is the sole trustee of
the Trust;
(h) (NO REMOVAL) so far as the Issuer Trustee is aware,
there are no proceedings to remove the Issuer Trustee as
trustee; and
(i) (TITLE) it is the legal owner, or owner in equity, of
the Secured Property.
GLOBAL TRUST MANAGER REPRESENTATION AND WARRANTIES
6.2 The Global Trust Manager, as manager of each Trust, represents
and warrants that:
(a) (NO BREACH) it is not in breach of any material
provision of the Master Trust Deed;
(b) (POWER) it has the power to enter into this deed and the
Deed of Charge in respect of the Trust, and to observe
its obligations under them and allow them to be
enforced;
(c) (AUTHORISATIONS) it has in full force and effect the
authorisations necessary to exercise the powers referred
to in paragraph (b);
(d) (NO CONTRAVENTION) as far as the Global Trust Manager is
aware, this deed, the Deed of Charge and the
transactions under them do not contravene its
constituent documents or any law, regulation or official
directive or any of its obligations or undertakings by
which it or any of its assets are bound;
(e) (APPOINTMENT OF GLOBAL TRUST MANAGER) the Global Trust
Manager has been validly appointed as trust manager of
the Trust; and
(f) (NO REMOVAL) as far as the Global Trust Manager is
aware, there are no proceedings to remove the Global
Trust Manager as trust manager.
6.3 The representations and warranties in clauses 6.1 and 6.2 are
taken to be made in respect of a Trust on the date of
execution of the Deed of Charge for that Trust.
7 GENERAL POWERS, RIGHTS AND RESPONSIBILITIES
------------------------------------------------------------------------------
POWER TO INVEST
7.1 All moneys received by the Security Trustee and not required
to be applied immediately under any of the discretions or
powers contained
8
<PAGE>
in this deed may be placed at the time by the Security Trustee
in Authorised Investments.
OTHER POWERS
7.2 The Security Trustee may, whenever it thinks it expedient in
the interests of the Secured Creditors of a Trust, apply to
any court for directions in relation to any question of law or
fact arising either before or after an Event of Default in
respect of that Trust and assent to, and approve of, or oppose
any application to any court made by or at the instance of any
Secured Creditor of that Trust, the Issuer Trustee or the
Global Trust Manager.
Further, the Security Trustee:
(a) (DEFEND SECURITY TRUST FUND) may take such action as it
is directed to take by an Extraordinary Resolution of
Voting Secured Creditors of a Trust to defend the
Security Trust Fund referable to that Trust against any
legal proceedings that, if successful, might adversely
affect the Security Trust Fund referable to that Trust;
and
(b) (DEFEND ITSELF AS SECURITY TRUSTEE) may take such action
as it considers necessary to defend itself as trustee of
the Security Trust against any legal proceedings.
DISCRETION OF SECURITY TRUSTEE AS TO EXERCISE OF POWERS
7.3 Subject to any express provision to the contrary contained in
this deed, the Security Trustee will, as regards all the
powers, authorities and discretions vested in it by this deed
have absolute discretion as to the exercise of them in all
respects and, in the absence of fraud, negligence or breach of
trust on its part, the Security Trustee will not be in any way
responsible for any loss, costs, damages, claims or
obligations that may result from the exercise or non-exercise
of them.
LIMITATION ON SECURITY TRUSTEE'S ACTIONS
7.4 Notwithstanding knowledge by, or notice to, the Security
Trustee of any Event of Default or breach anticipatory or
actual of, or default under, any covenant, obligation,
condition or provision by the Issuer Trustee or the Global
Trust Manager contained in or imposed by this deed or the
Master Trust Deed, the Security Trustee is only required to
take all such steps and do all such things as it is empowered
to do having regard to the powers, authorities and discretions
vested in it pursuant to this deed and the obligations imposed
on the Security Trustee by this deed.
LIMITATIONS ON SECURITY TRUSTEE'S RESPONSIBILITY
7.5 The Security Trustee is not to:
(a) be held responsible if it acts upon any resolution
purporting to have been passed at any meeting of the
Voting Secured Creditors of a Trust at which minutes
were made and signed even though it may subsequently be
found that there was some defect in the constitution of
the meeting or the passing of the resolution or that for
any other reason the resolution was
9
<PAGE>
not valid or binding upon any of those Voting Secured
Creditors whom it purports to bind or upon the Security
Trustee;
(b) be obliged to notify the Secured Creditors of a Trust of
the happening of any Event of Default insofar as they
relate to that Trust except in the circumstances set out
in clause 9.1;
(c) be bound or concerned to examine or enquire into, nor be
liable for any defect or failure in, the title of the
Issuer Trustee to any Secured Property;
(d) be under any liability whatsoever for acting in
accordance with any direction obtained from the Secured
Creditors or the Voting Secured Creditors (as the case
may be) of a Trust at a meeting convened under clause 9;
and
(e) be under any liability whatsoever for a failure to take
any action in respect of any breach by the Issuer
Trustee of its duties as trustee of the Trust of which
the Security Trustee is not actually aware or in respect
of any Event of Default in respect of a Trust of which
the Security Trustee is not actually aware,
except to the extent that any such matter or liability is
caused by the fraud, negligence or breach of trust of the
Security Trustee.
NO LIABILITY
7.6 The Security Trustee is not liable:
(a) for any loss, costs, damages or expenses arising out of
the exercise or non-exercise of a discretion or for any
act or omission on its part under this deed;
(b) for any loss, costs, damages or expenses arising out of
the exercise or non-exercise of a discretion of the
Issuer Trustee or the Global Trust Manager or the act or
omission of the Issuer Trustee or the Global Trust
Manager;
(c) for any loss caused by its failure to check any
information, document, form or list supplied or
purported to be supplied to it by the Issuer Trustee or
the Global Trust Manager;
(d) to the Secured Creditors of a Trust or any other person
for any liability or thing beyond the extent to which it
can be satisfied out of property of the Security Trust
Fund referable to that Trust out of which the Security
Trustee is actually indemnified for the liability or
thing;
(e) to make a payment to any Secured Creditor except out of
funds held for that purpose pursuant to this deed; or
(f) for any other act or omission on its part,
except, in all cases, to the extent that the relevant matter
is due to the fraud, negligence or breach of trust of the
Security Trustee.
10
<PAGE>
SECURITY TRUSTEE NOT RESPONSIBLE FOR MONITORING
7.7 (a) Each Secured Creditor is taken to confirm that:
(i) it has made its own appraisal and investigation of
the business, financial condition, status and
affairs of the Global Trust Manager, the Servicer,
the Issuer Trustee and each other party to each
Transaction Document, of the Assets of each Trust
and of the property comprising the Security Trust
Fund referable to that Trust;
(ii) it is solely responsible for continuing that
appraisal and investigation after the date of this
deed;
(iii) it has not entered into any Transaction Document
as the result of any inducement from, or
representation or statement by, the Security
Trustee; and
(iv) it has made its own appraisal of its financial
return under the Transaction Documents.
(b) Each Secured Creditor is taken to confirm that it has
not relied, and will not rely, on the Security Trustee
at any time, and that the Security Trustee is not
required:
(i) to provide it with any information concerning the
business, financial condition, status or affairs
of the Global Trust Manager, the Servicer, the
Issuer Trustee or any other party to any
Transaction Document;
(ii) to investigate the adequacy, accuracy or
completeness of any information provided by the
Global Trust Manager, the Servicer, the Issuer
Trustee or any other party to any Transaction
Document in connection with the Transaction
Documents (whether or not the information is
provided to that Secured Creditor by the Security
Trustee);
(iii) to assess or keep under review the business,
financial condition, status or affairs of the
Global Trust Manager, the Servicer, the Issuer
Trustee or any other party to any Transaction
Document or to inspect any of their properties or
books;
(iv) to investigate whether or not an Event of Default
has occurred in respect of a Trust; or
(v) to investigate or keep itself informed as to the
performance by any other party to any Transaction
Document of its obligations under any Transaction
Document, or any other document or agreement to
which one or more of them is a party.
11
<PAGE>
(c) Except to the extent contemplated by another Transaction
Document, the Security Trustee has no duty or
responsibility, but is authorised in its absolute
discretion, to provide any Secured Creditor of a Trust
with any credit or other information concerning the
assets, liabilities, financial condition or business of
the Issuer Trustee, the Trust or (to the extent that it
is relevant to the performance by that person of its
obligations under the Transaction Documents) the Global
Trust Manager or the Servicer which may come into the
possession of the Security Trustee.
SECURITY TRUSTEE'S FURTHER DUTIES
7.8 Subject to this deed, the Security Trustee must comply with
the duties imposed on it by this deed and must:
(a) act continuously as trustee of each Security Trust until
it is terminated in accordance with this deed or until
the Security Trustee has retired or been removed in
accordance with this deed;
(b) exercise all due diligence and vigilance in carrying out
its functions and duties under this deed and each Deed
of Charge;
(c) subject to this deed, retain each Security Trust Fund in
safe custody and hold it on trust for the Secured
Creditors of the relevant Trust upon the terms of this
deed and the relevant Deed of Charge; and
(d) not sell, mortgage, charge or part with the possession
of any part or the whole of the Security Trust Fund
referable to a Trust (or permit any of its officers,
agents and employees to do so) except as permitted or
contemplated by this deed and the relevant Deed of
Charge.
ACCEPTANCE OF CERTIFICATES ETC.
7.9 The Security Trustee is, for any purpose and at any time,
entitled to rely on, act upon, accept and regard as conclusive
and sufficient (without being in any way bound to call for
further evidence or information or being responsible for any
loss that may be occasioned by such reliance, acceptance or
regard) any of the following:
(a) any information, report, balance sheet, profit and loss
account, certificate or statement supplied by the Issuer
Trustee or the Global Trust Manager or by any officer,
auditor or solicitor of the Issuer Trustee or the Global
Trust Manager including the Register of a Trust and any
other details of the identity of, Secured Moneys owing
to, and notice details of, any Secured Creditor of a
Trust;
(b) all statements (including statements made or given to
the best of the maker's knowledge and belief or
similarly qualified) contained in any information,
report, balance sheet, profit and loss account,
certificate or statement given pursuant to, or in
relation to, this deed or the Master Trust Deed; and
12
<PAGE>
(c) all accounts supplied to the Security Trustee pursuant
to this deed and all reports of the Auditor supplied to
the Security Trustee pursuant to this deed,
except, in each case, when it is actually aware that the
information supplied pursuant to clauses (a) to (c) is
incorrect.
ACT ON OPINION OF EXPERTS
7.10 The Security Trustee may in relation to this deed or the
rights, powers or obligations conferred or imposed by this
deed act on the advice or opinion or information received from
any adviser of a kind appropriate to the particular case
including any lawyer, banker, accountant, securities company,
broker or valuer or other expert in Australia or elsewhere,
whether obtained by the Security Trustee or otherwise
(including by the Issuer Trustee or the Global Trust Manager).
The Security Trustee is not responsible for any loss
occasioned by so acting in good faith and any such advice or
opinion or information may be given verbally or by letter or
otherwise. The Security Trustee is not to be liable for any
loss occasioned by acting in good faith on any opinion, advice
and information purporting to be so conveyed although the same
contains some error or is not authentic unless it has
reasonable grounds to believe such advice, opinion or
information not to be authentic.
RIGHT TO RECTIFY
7.11 The Security Trustee may do anything which should have been
done by the Issuer Trustee under this deed or under the Deed
of Charge but which has not been done or which the Security
Trustee considers has not been done properly, but the Security
Trustee is under no obligation to do so.
CONSENT TO DEALINGS
7.12 During such time that a Charge has effect as a floating charge
over the relevant Secured Property, the Issuer Trustee may
dispose of, or deal with, such Secured Property to the extent
permitted by the Master Trust Deed and the Supplemental Deed
for the relevant Trust.
ASCERTAIN EVENT OF DEFAULT
7.13 The Security Trustee need not:
(a) without limiting any other provision of this deed,
notify any person of the execution of this deed or any
Deed of Charge; or
(b) take any steps to ascertain whether there has occurred
any:
(i) Event of Default in respect of a Trust; or
(ii) event which constitutes, or which with the giving
of notice or the lapse of time would constitute,
an Event of Default in respect of a Trust.
Nothing in this clause limits or restricts the duties of the
Security Trustee to take any action in accordance with clause
9.1 or clause 9.9
13
<PAGE>
of this deed if it becomes actually aware of, or has actual
notice of, an Event of Default in respect of a Trust.
Until it has actual notice to the contrary, the Security
Trustee may assume that no Event of Default has occurred in
respect of a Trust and that the Issuer Trustee and the Global
Trust Manager are observing and performing all the obligations
on their part contained in the Transaction Documents in
respect of the Trust and need not inquire whether that is, in
fact, the case.
NO DUTY TO INVESTIGATE
7.14 The Security Trustee has no duty to keep itself informed about
the circumstances of the Issuer Trustee or the Global Trust
Manager, or the performance by the Issuer Trustee or the
Global Trust Manager of their respective obligations under
this deed, any Deed of Charge or the other Transaction
Documents or (subject to the express requirements of this
deed) to consider or provide any Secured Creditor with any
information with respect to the Issuer Trustee or the Global
Trust Manager.
LIABILITY MUST BE LIMITED
7.15 Except for the obligations imposed on it under clause 9.1, the
Security Trustee is not obliged to do or omit to do any thing
including enter into any transaction or incur any liability
unless the Security Trustee's liability is limited in a manner
which is consistent with clause 25.2.
NOT USE OWN FUNDS
7.16 Except as required by clause 9.1 or clause 9.9, the Security
Trustee will not be under any obligation for whatever reason
to advance or use its own funds for the payment of any costs,
expenses or liabilities whatsoever.
COVER FOR COSTS
7.17
(a) Before exercising a right, power or discretion or
performing an obligation as Security Trustee (except the
power to provide a notice to all Secured Creditors in
accordance with clause 9.1(a) and to convene a meeting
of Voting Secured Creditors in accordance with clause
9.1(b)), the Security Trustee need not act unless its
liability is limited in a manner satisfactory to it or,
if required by the Security Trustee, until the Voting
Secured Creditors place it in funds equivalent to the
amount which the Security Trustee determines may become
liabilities of the Security Trustee in respect of that
act (or until the Voting Secured Creditors provide an
indemnity to the Security Trustee in respect of those
liabilities in a form acceptable to it, acting
reasonably), provided that no Voting Secured Creditor
shall be under any obligation to either contribute to
such placing of funds or provide such indemnity to the
Security Trustee if that Secured Creditor has no Secured
Moneys due or payable to it at that time.
14
<PAGE>
(b) If the Voting Secured Creditors do not place the
Security Trustee in funds, or do not provide the
indemnity, in the manner contemplated by paragraph (a),
then the Security Trustee is not required to exercise
the relevant right, power or discretion or perform the
relevant obligation.
RECEIPT OF INSTRUCTIONS
7.18 Without limiting its rights, powers and discretions, but
subject to its express duties or obligations under clause 9 of
this deed, the Security Trustee will not be required to
exercise any right, power or discretion (including to require
anything to be done, form any opinion or give any notice,
consent, waiver or approval) without the specific instructions
of the Voting Secured Creditors of a Trust given by
Extraordinary Resolution. However, the Security Trustee may
exercise a right, power or discretion before it receives any
such instructions if the Security Trustee reasonably believes
that it is in the best interests of the Secured Creditors of
the Trust that it does so (and provided that the Security
Trustee first notifies in writing the Voting Secured Creditors
of its intention to do so).
DISPUTE OR AMBIGUITY
7.19 In the event of any dispute or ambiguity as to the
construction or enforceability of this deed or any other
Transaction Document, or the Security Trustee's powers or
obligations under or in connection with this deed or the
determination or calculation of any amount or thing for the
purpose of this deed or the construction or validity of any
direction from Voting Secured Creditors, the Security Trustee
may (but will have no obligation to):
(a) obtain and rely on advice from any person referred to in
clause 7.10; and
(b) apply to a court or similar body for any direction or
order the Security Trustee considers appropriate,
and provided the Security Trustee is using reasonable
endeavours to resolve such ambiguity or dispute, the Security
Trustee, in its absolute discretion, may (but will have no
obligation to) refuse to act or refrain from acting in
relation to matters affected by such dispute or ambiguity.
NO LIABILITY FOR DOCUMENTS
7.20 The Security Trustee has no responsibility for the form or
contents of this deed or any other Transaction Document and
will have no liability arising as a result of or in connection
with any inadequacy, invalidity or unenforceability of any
provision of this deed or the other Transaction Documents
except insofar as it applies to the Security Trustee or to any
representation and warranty given by the Security Trustee.
15
<PAGE>
CONFLICT OF DUTY
7.21
(a) If there is at any time a conflict between a duty owed
by the Security Trustee to the Noteholders and a duty
owed by the Security Trustee to any other Secured
Creditor or class of Secured Creditor, then the Security
Trustee must give priority to the interests of the
Noteholders as a whole.
(b) The Security Trustee must give priority to the interests
of the Senior Noteholders as a class if, in the opinion
of the Security Trustee, there is a conflict between the
interests of the Senior Noteholders (on the one hand)
and the interests of the Junior Noteholders or other
persons entitled to the benefit of this deed and the
Deed of Charge in respect of a Trust (on the other
hand).
(c) Provided that the Security Trustee acts in good faith,
it shall not incur any liability to any Secured Creditor
for doing so.
INDEMNITY
7.22 Without prejudice to any right of indemnity given by law to
trustees, the Security Trustee will be indemnified in respect
of a Security Trust out of the Security Trust Fund which
relates to that Security Trust for all costs, fees, charges,
expenses and liabilities incurred in or about the due
execution of that Security Trust.
DELEGATION
7.23 The Security Trustee may in accordance with this clause
authorise in writing specified parties to act as its delegate,
attorney or agent to perform its functions under the
Transaction Documents (including the holding of Mortgage Title
Documents and a power to sub-delegate). The Security Trustee
may include provisions in the authorisation to protect and
assist those dealing with the delegate, attorney or agent as
the Security Trustee thinks fit.
The Security Trustee must not delegate to any person any of
its trusts, duties, powers, authorities and discretions under
this deed or a Deed of Charge in relation to a Security Trust
except:
(a) subject to this clause, to a Related Entity of the
Security Trustee;
(b) to the Global Trust Manager, the Servicer or a Receiver
in accordance with the provisions of this deed or any
other Transaction Document relating to the Security
Trust;
(c) to any Clearing System (in respect of which the Security
Trustee is not liable for its acts or omissions); or
(d) in accordance with the provisions of this deed or the
Supplemental Deed relating to that Security Trust,
16
<PAGE>
provided that, in each case, the Security Trustee must not
delegate to such third parties any material part of its
powers, duties or obligations as Security Trustee.
Where the Security Trustee delegates any of its trusts,
duties, powers, authorities and discretions to any person who
is a Related Entity of the Security Trustee, the Security
Trustee at all times remains liable for the acts or omissions
of such Related Entity and for the payment of fees of that
Related Entity when acting as delegate. Subject to this, the
Security Trustee is not liable for the acts or omissions of
any delegate, attorney or agent if it appointed the delegate,
attorney or agent in good faith.
7.24 Any delegation made by the Security Trustee under clause 7.23
in respect of a Security Trust will automatically terminate if
the Security Trustee retires, or is removed, in accordance
with clause 16 of this deed in respect of that Security Trust.
7.25 The Security Trustee has no duties, obligations or
responsibilities other than those expressly set out in this
deed.
NO LIABILITY
7.26 Without limitation, the Security Trustee is not liable for:
(a) any decline in the value or loss realised upon any sale
or other dispositions made under this deed of any
Secured Property or any other property charged to the
Security Trustee by any other person in respect of or
relating to the obligations of any person in respect of
the Issuer Trustee or the Secured Money or relating in
any way to the Secured Property;
(b) any decline in value directly or indirectly arising from
the Security Trustee acting or failing to act as a
consequence of an opinion reached by it; or
(c) any omission delay or mistake or any loss or
irregularity in or about the exercise, attempted
exercise, non-exercise or purported exercise of any of
its powers under this deed or a Deed of Charge,
except to the extent caused or contributed to by any
fraud, negligence or breach of trust on the part of the
Security Trustee.
8 CRYSTALLISATION OF FLOATING CHARGE
------------------------------------------------------------------------------
CRYSTALLISATION
8.1 If the Charge referable to a Trust has not otherwise taken
effect as a fixed charge over all of the Secured Property
referable to that Trust, it automatically takes effect as a
fixed charge over the Secured Property of that Trust in
respect of which the Charge has not previously taken effect as
a fixed charge immediately prior to the occurrence of any of
the following events:
17
<PAGE>
(a) an Event of Default occurs in respect of that Trust;
(b) the Issuer Trustee breaches any of the covenants in
clause 4.2 of this deed in respect of that Trust;
(c) the Australian Federal Commissioner of Taxation (or some
person authorised to issue on his behalf) issues a
notice in respect of tax due by the Issuer Trustee under
sections 218 or 255 of the Income Tax Assessment Act
1936 (Cwth) or under section 74 of the Sales Tax
Assessment Act 1992 (Cwth) or under any similar
provision of any law;
(d) the Issuer Trustee files an Australian tax return which
results in Tax becoming due by the Issuer Trustee in its
capacity as trustee of that Trust which is not paid on
time; or
(e) if the law provides that the Charge becomes fixed.
REPLACEMENT OF FIXED CHARGE WITH FLOATING CHARGE
8.2 Subject to clauses 8.3 and 8.4 and in respect of any Relevant
Secured Property of a Trust, the Security Trustee:
(a) must give notice of the fixing of such Charge in respect
of the Relevant Secured Property to the Issuer Trustee
and each Current Rating Agency promptly after becoming
actually aware of the fixing of such Charge in respect
of the Relevant Secured Property; and
(b) may and, if directed by Voting Secured Creditors of that
Trust who in aggregate are owed not less than 90% of the
Secured Money of that Trust at the time, the Security
Trustee must, give a notice to the Issuer Trustee
stating that, from the effective date specified in the
notice, it no longer requires that Charge to operate as
a fixed charge over the Relevant Secured Property of
that Trust specified in the notice. Any such
notification does not prejudice the rights of the
Security Trustee to give a notice to the Issuer Trustee
stating that the charge takes effect as a fixed charge
or the fixing of the charge again in accordance with
clause 8.1.
SUBSEQUENT DEALING
8.3 From the effective date specified in a notice given under
clause 8.2(b):
(a) the Issuer Trustee may deal with the Relevant Secured
Property the subject of the notice, if it was acquired
by the Issuer Trustee before the effective date of the
notice, as if it had always been charged by way of
floating charge under this deed;
(b) the floating charge given by the relevant Deed of Charge
over the Relevant Secured Property the subject of the
notice acquired by the Issuer Trustee on or after the
effective date of the notice continues to operate as a
floating charge as if it had never been a fixed charge;
and
18
<PAGE>
(c) a person dealing with the Issuer Trustee in relation to
the Relevant Secured Property the subject of the notice
may rely on the notice from the Security Trustee as
conclusive evidence that, as at the time the notice is
issued, such Relevant Secured Property is charged by way
of floating charge.
FURTHER CHARGE
8.4 The Issuer Trustee charges, by way of floating charge and
further assurance, the Relevant Secured Property the subject
of a notice given pursuant to clause 8.2(b) to the Security
Trustee as security for payment of the Secured Money on the
same terms as the relevant Charge.
9 SECURITY TRUSTEE TO CONVENE MEETINGS
------------------------------------------------------------------------------
CONVENE MEETINGS
9.1 Subject to clause 9.5, the Security Trustee must, upon
becoming actually aware of the occurrence of an Event of
Default in respect of a Trust, take the following steps:
(a) notify all Secured Creditors of that Trust that the
Charge granted in respect of that Trust has taken effect
as a fixed charge over all of the Secured Property of
that Trust and provide to those Secured Creditors full
details of the Event of Default as advised to the
Security Trustee under clause 4.1(e) or otherwise known
to the Security Trustee and the actions and procedures
which the Issuer Trustee and the Global Trust Manager
have notified the Security Trustee are being taken or
will be taken by the Issuer Trustee and the Global Trust
Manager to remedy the relevant Event of Default; and
(b) do all such things as are necessary or appropriate to
promptly convene a meeting of the Voting Secured
Creditors of that Trust in accordance with the
provisions of clause 10.
EXTRAORDINARY RESOLUTIONS
9.2 Subject to the terms of the Supplemental Deed for the relevant
Trust, at a meeting of Voting Secured Creditors of a Trust
referred to in clause 9.1(b), the Voting Secured Creditors of
that Trust must vote on whether to direct the Security Trustee
by Extraordinary Resolution to:
(a) declare the Secured Moneys in respect of that Trust
immediately due and payable;
(b) appoint a Receiver in accordance with clause 11 (and, if
a Receiver is to be appointed, the Voting Secured
Creditors of that Trust must determine the amount of the
Receiver's remuneration);
(c) instruct the Security Trustee in writing to sell and
realise the Secured Property of that Trust where the
Security Trustee has agreed to do so; or
19
<PAGE>
(d) take such other action as the Voting Secured Creditors
may specify in the terms of such Extraordinary
Resolution and which the Security Trustee indicates that
it is willing to take.
NOTICE
9.3 If the Voting Secured Creditors of a Trust pass an
Extraordinary Resolution pursuant to this clause 9 at a
meeting convened following an Event of Default in respect of
that Trust, the Security Trustee must notify the Issuer
Trustee and the Global Trust Manager in writing one Business
Day after such Extraordinary Resolution is so passed of any
direction thereby given to the Security Trustee by the Voting
Secured Creditors of that Trust.
NO OBLIGATION TO APPOINT RECEIVER
9.4 The Security Trustee must not take any steps to appoint a
Receiver under clause 11 or otherwise to enforce the Charge
created under a Deed of Charge unless:
(a) the Voting Secured Creditors of the relevant Trust have
passed an Extraordinary Resolution referred to in clause
9.2 or at a meeting convened pursuant to clauses 9.6,
9.7 or 9.8; or
(b) in the opinion of the Security Trustee, the delay
required to obtain the consent of the Voting Secured
Creditors of the relevant Trust would be prejudicial to
the interests of those Voting Secured Creditors.
Nothing in this clause 9.4 affects or restricts the operation
of clause 8 of this deed.
WAIVER OF EVENT OF DEFAULT
9.5 The Security Trustee may, at its discretion but not in
contravention of an Extraordinary Resolution of the Voting
Secured Creditors, waive or ignore an Event of Default in
respect of a Trust or determine that any event that would
otherwise be an Event of Default will not be treated as such,
if such action, in the opinion of the Security Trustee, will
not be prejudicial to the interests of the Secured Creditors
of that Trust.
MEETINGS
9.6 The Security Trustee may at any time convene a meeting of
Voting Secured Creditors of a Trust to consider such
Extraordinary Resolutions as are put to the meeting by the
Security Trustee including, without limitation, resolutions
put for the purpose of seeking directions from Voting Secured
Creditors as to the exercise of its powers and duties and
performance of its obligations.
GLOBAL TRUST MANAGER CONVENES MEETING
9.7 If the Security Trustee fails to convene a meeting in
accordance with clause 9.1(b), the Global Trust Manager may
convene a meeting of the relevant Voting Secured Creditors in
accordance with this clause 9. Any such meeting is to have
only the same powers as if convened by the Security Trustee
and is to be conducted in accordance with the provisions of
clause 10.
20
<PAGE>
SECURED CREDITORS CONVENE MEETING
9.8 The Voting Secured Creditors of a Trust who in aggregate are
owed not less than 10% of the Secured Money of a Trust may
convene a meeting of Voting Secured Creditors at any time. Any
such meeting is to have only the same powers as if convened by
the Security Trustee or the Global Trust Manager pursuant to
this clause 9 and is to be conducted in accordance with the
provisions of clause 10.
NOTICE OF EVENT OF DEFAULT
9.9 If the Security Trustee becomes actually aware of the
occurrence of an Event of Default in respect of a Trust, and
the Issuer Trustee has not given the Security Trustee notice
in accordance with clause 4.1(e), the Security Trustee must
give the Issuer Trustee notice of the occurrence of that Event
of Default.
NOTICE OF ACTION TO REMEDY EVENT OF DEFAULT
9.10 If the Issuer Trustee and the Global Trust Manager take any
action or procedures referred to in clause 9.1(a) to remedy an
Event of Default in respect of a Trust, both the Issuer
Trustee and the Global Trust Manager must keep the Security
Trustee informed of those actions and procedures.
LIMITATION ON RIGHTS OF SECURED CREDITORS
9.11 Subject to this deed, the powers, rights and remedies
conferred on the Security Trustee by this deed are exercisable
by the Security Trustee only, and no Secured Creditor is
entitled without the written consent of the Security Trustee
to exercise the same or any of them. Without limiting the
generality of the foregoing, no Secured Creditor is entitled
to enforce the Deed of Charge in respect of a Trust or the
provisions of this deed or to appoint or cause to be appointed
a Receiver to any of the Secured Property or otherwise to
exercise any power conferred by the terms of any applicable
law on charges except as provided in this deed and the Deed of
Charge in respect of the Trust.
10 MEETING OF VOTING SECURED CREDITORS
------------------------------------------------------------------------------
NOTICE OF MEETING
10.1 (a) The Security Trustee, if it wishes to convene a meeting
of Voting Secured Creditors, must give at least five
days' notice specifying the place, day and hour of the
meeting and the general nature of the business to be
transacted and containing such or any further
information as the Security Trustee may think fit and
the terms of any resolution of which the Security
Trustee is aware will be proposed.
(b) Subject to clause 10.2, such notice must be sent to all
Voting Secured Creditors of the relevant Trust. The
accidental omission to send such notice to, or the
non-receipt of a notice of meeting by, any such Voting
Secured Creditor will not invalidate the meeting.
(c) The Security Trustee must notify the Issuer Trustee and
the Global Trust Manager of the place, day and hour of
the
21
<PAGE>
meeting and of the nature of the business to be
transacted at that meeting.
(d) The omission to give a notice referred to in the
preceding paragraph (c) to either the Global Trust
Manager or the Issuer Trustee will invalidate the
meeting, but the party who failed to receive the notice
may waive the same.
(e) The Security Trustee, the Issuer Trustee and the Global
Trust Manager and any person on behalf of any of them
and its solicitors and any officer, solicitor or auditor
of any of them and any counsel instructed by the
solicitor of any of them may attend any meeting or any
adjourned meeting of Voting Secured Creditors and all
such persons have the right of audience at such meeting.
(f) Notwithstanding the other provisions of this clause 10,
a resolution of Voting Secured Creditors (including an
Extraordinary Resolution) may be passed, without any
meeting or previous notice being required, by an
instrument or instruments in writing which has or have:
(i) been signed by or on behalf of all Voting Secured
Creditors; and
(ii) been presented to the Security Trustee for entry
in the records referred to in clause 10.21.
ADVERTISEMENT OF MEETING IN NEWSPAPER
10.2 Instead of the notice requirements of clause 10.1, but without
limiting any obligations of the Issuer Trustee or the Note
Trustee in respect of a Trust to provide the notices required
by the Note Trust Deed for a Trust, notice of any meeting of
the Voting Secured Creditors of a Trust may be given by
advertisement in a daily newspaper circulating generally
throughout the relevant jurisdictions and by electronic means
(including without limitation email or otherwise as agreed
between the Security Trustee and the Global Trust Manager) at
least five days before the proposed meeting and giving the
same details as set out in clause 10.1(a). Notwithstanding the
foregoing provisions of clauses 10.1 and 10.2, if it is so
agreed by Voting Secured Creditors who:
(a) are a majority in number of Voting Secured Creditors
(present in person or by proxy) having the right to
attend and vote at the meeting; and
(b) hold or represent between them an amount which is at
least 95% of the Secured Money at the time,
a resolution may be proposed and passed at a meeting of which
no notice has been given in the manner contemplated by this
deed.
QUORUM
10.3 No business is to be transacted at any such meeting unless a
quorum is present when the meeting proceeds to business. The
quorum necessary
22
<PAGE>
for a meeting at which any resolution including an
Extraordinary Resolution is to be proposed must be at least
such number of Voting Secured Creditors (present in person or
by proxy) having the right to attend and vote at that meeting
who hold or are owed between them an amount which is not less
than 67% of the Secured Money at the time.
QUORUM AT ADJOURNED MEETING
10.4 If within 15 minutes from the time appointed for any meeting,
a quorum is not present, the meeting must stand adjourned for
such period as the chairman directs and notice of the
adjourned meeting in accordance with clause 10.1 or clause
10.2 must be given to the Voting Secured Creditors by the
Security Trustee.
At an adjourned meeting two or more Voting Secured Creditors
present in person, holding or who are owed between them an
amount which is not less than 50% of the Secured Money at the
time form a quorum.
CHAIRMAN
10.5 At a meeting of Voting Secured Creditors, some person
nominated by the Security Trustee (whether a Secured Creditor,
a representative of the Security Trustee or not) must preside
as chairman. If no such person is present within 15 minutes
after the time appointed for holding the meeting the Voting
Secured Creditors present must choose one of their number to
preside as chairman.
VOTING
10.6 (a) Every question submitted to a meeting of Voting Secured
Creditors must be decided in the first instance by a
show of hands. In the case of an equality of votes, the
chairman both on the show of hands and on a poll is
entitled to have a second or casting vote in addition to
the vote or votes (if any) to which he may be entitled
as a Voting Secured Creditor.
(b) The chairman or such number of Voting Secured Creditors
(present in person or by proxy) holding or who are owed
between them an amount which is not less than 2% of the
Secured Money may, before or on the declaration of the
result of a show of hands, demand a poll. If at any
meeting a poll is so demanded, it must be taken in such
manner and, subject to this deed, either at once or
after such adjournment as the chairman directs and the
result of such poll will be deemed to be the resolution
of the meeting in which the poll was demanded as at the
date of the taking of the poll. The demand for a poll
must not prevent the continuance of meeting for the
transaction of any business other than the question on
which the poll has been demanded. Any poll demanded at
any meeting on the election of a chairman or any
question of adjournment must be taken at the meeting
without adjournment. The demand for a poll may be
withdrawn.
VOTES
10.7 (a) The Voting Secured Creditors are only entitled to vote:
23
<PAGE>
(i) at a meeting convened by the Security Trustee
following the occurrence of an event referred to
in clause 9.1(b) to consider the Extraordinary
Resolutions referred to in clause 9.2 or such
other resolutions put to the meeting (or at any
adjournment of such a meeting) by the Security
Trustee which are related to, or incidental to,
such resolutions; and
(ii) at any meeting convened under clauses 9.6, 9.7 or
9.8 to consider such Extraordinary Resolutions as
are put to the meeting.
(b) On a show of hands every Voting Secured Creditor who is
present in person or by proxy and who has the right to
vote shall have one vote.
(c) On a poll every Voting Secured Creditor who is present
in person or by proxy and has the right to vote shall
have one vote for each $10 (but not a part thereof) of
the Secured Moneys that the Voting Secured Creditor
holds.
VOTING BY JOINT NOTEHOLDERS
10.8 In the case of joint holders of a Note, the vote of the senior
joint holder who tenders a vote whether in person or by proxy
is to be accepted to the exclusion of the votes of the other
joint holders and for this purpose seniority is to be
determined on the basis of whose name stands first in the
Register maintained in accordance with the Master Trust Deed.
VOTING BY CORPORATION
10.9 A corporation being a Voting Secured Creditor may vote by any
officer or representative duly authorised in writing who is
entitled to speak, demand a poll, vote, act as a proxy and in
all other respects exercise the rights of a Voting Secured
Creditor and must be reckoned as a Voting Secured Creditor for
all purposes.
VOTING BY PERSON OF UNSOUND MIND
10.10 A Voting Secured Creditor of unsound mind or in respect of
whom an order has been made by any court having jurisdiction
in respect of mental health may vote whether on a show of
hands or on a poll by his committee curator bonis or other
person in the nature of a committee curator bonis appointed by
such court.
OBJECTION TO VOTER'S QUALIFICATION
10.11 No objection is to be raised to the qualification of any voter
except at the meeting or adjourned meeting at which the vote
objected to is given or tendered and every vote not disallowed
at such meeting shall be valid for all purposes. Any such
objection made in due time shall be referred to the chairman
of the meeting and his decision shall be final and conclusive.
24
<PAGE>
METHOD OF VOTING
10.12 On a show of hands and on a poll votes may be given either
personally or by proxy and a proxy is to have the same right
of audience as a Voting Secured Creditor.
PROXY INSTRUMENT
10.13 The instrument appointing a proxy must be in writing under the
hand of the appointor or of his attorney duly authorised in
writing or if the appointor is a corporation either under its
common seal or under the hand of an officer or attorney so
authorised.
ATTENDANCE AT MEETINGS AND APPOINTMENT OF PROXY
10.14 Each Voting Secured Creditor is entitled to attend and
(subject to clause 10.7) to vote at any meeting of Voting
Secured Creditors convened under this deed and is entitled to
appoint another person (whether a Voting Secured Creditor or
not) as his proxy to attend and vote. Such proxy has the same
rights as the Voting Secured Creditor to vote, whether on a
poll or on a show of hands, to speak and to be reckoned in a
quorum.
VOTING AUTHORITY TO BE DEPOSITED WITH SECURITY TRUSTEE
10.15 The instrument appointing a proxy and the power of attorney or
other authority (if any) under which it is signed or a
certified copy of such power or authority must be deposited
with the Security Trustee or its duly appointed agent not less
than 2 days before the time appointed for holding the meeting
or adjourned meeting at which the person named in the
instrument proposes to vote and in default the instrument or
proxy is invalid. A copy of a proxy (and the authority under
which it is signed) sent by fax will be sufficient for the
foregoing requirement provided the relevant original or
certified copy (in the case of the authority) is received by
the Security Trustee prior to the relevant meeting. No
instrument appointing a proxy is valid after the expiration of
12 months from the date named in it as the date of its
execution.
FORM OF PROXY
10.16 An instrument appointing a proxy may be in the following form
or in any other form which the Security Trustee may approve:
"I, , of ,
being a Voting Secured Creditor in respect of the [ ] [X]
Security Trust appoint of (and in his
or her absence or if this instrument of proxy is duly
completed except as to the name of the proxy, the chairman of
the meeting) to vote for me and on my behalf at the meeting of
Voting Secured Creditors to be held on the .... day of
.......... 20.. and at any adjournment thereof.
Signed at by me this day of [year]
I direct my proxy to vote for/against the proposed
resolution.* (In the absence of direction the proxy may vote
as he/she thinks fit or abstain from voting.)
* If more than one resolution, refer to each separately."
25
<PAGE>
PROXY - EFFECT OF DEATH OR INSANITY
10.17 A vote given in accordance with the terms of an instrument of
proxy is valid notwithstanding the previous death or insanity
of the principal or revocation of the proxy or of the
authority under which the proxy was executed if no intimation
in writing of such death, insanity or revocation has been
received by the Security Trustee before the commencement of
the meeting or adjourned meeting at which the proxy is used.
DETERMINATION OF VOTING
10.18 At any meeting of Voting Secured Creditors unless a poll is
demanded in accordance with clause 10.6(b) a statement by the
chairman that a resolution has been carried or carried by any
particular majority or lost or not carried by any particular
majority is to be conclusive evidence of the fact.
ADJOURNMENT
10.19 The chairman may with the consent of a majority of Voting
Secured Creditors (present in person or by proxy) at a meeting
adjourn that meeting from time to time and from place to
place.
EFFECT OF RESOLUTION
10.20 An Extraordinary Resolution passed at a meeting of Voting
Secured Creditors of a Trust duly convened and held in
accordance with this clause 10 is binding upon all the Secured
Creditors of that Trust whether present or not present at such
meeting and each of such Secured Creditors and (subject to
clauses 7.15 to 7.17 inclusive) the Security Trustee is bound
to give effect to the Extraordinary Resolution provided that a
resolution of all Voting Secured Creditors of a Trust which in
its terms (or having regard to the terms of this deed) affects
a particular Class of Voting Secured Creditors only, or in a
manner different to the rights of Voting Secured Creditors
generally, is not binding on the Voting Secured Creditors of
that particular Class unless the Voting Secured Creditors of
that particular Class have, by Extraordinary Resolution or
Written Resolution, agreed to be bound thereby. Nothing in
this clause 10.20 requires the Security Trustee to do or omit
to do any act if, in the opinion of the Security Trustee, this
might cause it to breach a law, a Transaction Document, a
fiduciary duty or an obligation owed to another person.
MINUTES
10.21 Minutes of all resolutions passed and proceedings at every
meeting of Voting Secured Creditors must be made and duly
entered in a book to be provided for that purpose by the
Security Trustee and any such minutes if purporting to be
signed by the chairman of the meeting at which such
resolutions were passed or proceedings had or by the chairman
of the next succeeding meeting (if any) of Voting Secured
Creditors are conclusive evidence of the matters stated in
them and until the contrary is proved every such meeting in
respect of the proceedings of which minutes have been made is
deemed to have been duly held and convened and all resolutions
passed and proceedings conducted at such meeting are deemed to
have been duly passed and conducted.
26
<PAGE>
11 APPOINTMENT OF RECEIVER
------------------------------------------------------------------------------
APPOINTMENT
11.1 Subject to clause 11.2, if the Voting Secured Creditors of a
Trust pass the Extraordinary Resolution referred to in clause
9.2(b) or resolve to appoint a receiver or receiver and
manager at a meeting convened under clauses 9.6, 9.7 or 9.8,
the Security Trustee must (subject to clauses 7.15 to 7.17
inclusive) appoint a person or persons as receiver or receiver
and manager of the Secured Property of that Trust to deal with
that Secured Property in accordance with any reasonable
instructions given by the Voting Secured Creditors by
Extraordinary Resolution passed at a meeting of the Voting
Secured Creditors convened in accordance with this deed and
the Security Trustee must fix the remuneration of a Receiver
in accordance with the terms of the Extraordinary Resolution
passed at any such meeting.
NEW RECEIVER
11.2 If a Receiver is removed, retires or dies, then the Security
Trustee may appoint a new Receiver on substantially the same
terms as the previous Receiver.
NO LIABILITY FOR RECEIVER
11.3 The Security Trustee will not be responsible for anything done
or not done by the Receiver. To the extent permitted by law,
the Receiver will be the agent of the Issuer Trustee and not
the Security Trustee. The Receiver's remuneration and
necessary expenses must be paid out of the Secured Property in
accordance with this deed.
TWO OR MORE RECEIVERS
11.4 If 2 or more persons are appointed as Receiver of the same
part of the Secured Property, then the Security Trustee may
provide that their rights, powers and remedies vest in them
jointly and severally, or jointly.
APPOINTMENT OVER PART
11.5 The power to appoint a receiver or receiver and manager over
all of the Secured Property may be exercised whether or not a
Receiver has already been appointed over part of it.
INDEMNITY TO RECEIVER
11.6 The Security Trustee may give an indemnity, in such terms as
it in its absolute discretion considers appropriate, in favour
of a Receiver appointed in accordance with this clause 11. Any
indemnity granted to the Receiver by the Security Trustee must
be limited so as not to exceed the Security Trustee's right of
indemnity out of the relevant Security Trust Fund.
12 POWERS OF RECEIVER
------------------------------------------------------------------------------
12.1 A Receiver may do all such things as are necessary or
expedient to deal with the Secured Property of a Trust as if
the Receiver were the absolute and beneficial owner of it. The
Receiver may, in addition to powers conferred by statute or by
the terms of its appointment, but
27
<PAGE>
subject to the Supplemental Deed for that Trust, exercise any
or all of the following powers:
(a) (POSSESSION, ETC) enter, take possession of, have access
to and make use of that Secured Property as often as the
Receiver deems expedient;
(b) (EXERCISE RIGHTS) exercise the rights, powers and
remedies of the Issuer Trustee over, in connection with
or comprising part of that Secured Property (including,
without limitation, collecting in, recovering and suing
for that Secured Property);
(c) (MANAGE) manage that Secured Property;
(d) (CARRY ON BUSINESS) carry on any business or pursuit
that is within the powers of the Issuer Trustee, and is
carried on by the Issuer Trustee at the time the
Receiver is appointed;
(e) (SELL) subject to obligations imposed by law, sell or
agree to sell that Secured Property on any terms,
including, without limitation, the following:
(i) the sale may take place whether or not the
Receiver has taken possession of that Secured
Property;
(ii) the sale may be by public auction, private treaty
or by tender;
(iii) the sale may be in one lot or in parcels, and with
or without special provisions about title, or
time, or mode of payment of purchase money, or
otherwise;
(iv) allow the purchase money to remain secured by
a mortgage or charge of the Secured Property
sold, or secured by other security, or
without security, and on any other terms,
without being responsible for any resultant
loss;
(v) enter into, rescind or vary a contract for sale,
and resell without being responsible for loss, and
execute assurances of that Secured Property in the
name and on behalf of the Issuer Trustee or
otherwise; or
(vi) do anything to complete any sale which the
Receiver considers desirable, and set aside from
the proceeds of sale the amount which the Receiver
considers desirable to meet future claims until
the possibility of claims being made is ended;
(f) (BENEFIT OF AGREEMENTS) obtain the benefit of any
agreement entered into by the Issuer Trustee (including,
without limitation, by specific performance), whether or
not the agreement is entered into in the exercise of the
rights, powers and remedies conferred by this deed;
28
<PAGE>
(g) (PROCEEDINGS) institute, conduct, defend, submit to
arbitration, settle, compromise or defer in the name of
the Issuer Trustee or otherwise on any terms, any
proceeding, claim, question or dispute in connection
with that Secured Property or this deed and execute
releases or other discharges in connection with them;
(h) (DELEGATE) delegate the Receiver's powers including this
power of delegation to any person for any period;
(i) (SURRENDER, ETC) end, surrender, or accept the surrender
of a lease or licence of, that Secured Property, and
compromise with or make concessions to tenants, lessees
or licensees, or agree to do any of these things, for
any period and on any terms;
(j) (TRANSFER) surrender or transfer that Secured Property
to any person;
(k) (EXCHANGE) exchange that Secured Property with a person
for an interest in other property of any tenure (with or
without giving or receiving other consideration). The
property so acquired may be dealt with by the Receiver
as if it were part of that Secured Property and the
Receiver may grant a Security Interest over that
property for the payment of the Secured Money;
(l) (REMOVE ITEMS) remove personal property from that
Secured Property and store that property in the name of
the Issuer Trustee without liability for loss or damage
suffered by the Issuer Trustee;
(m) (OTHER ACTS) do anything which should have been done by
the Issuer Trustee under this deed but which has not
been done or which the Receiver considers has not been
done properly;
(n) (EMPLOY) employ or engage persons (including, without
limitation, employees of the Receiver and consultants
and professional advisers) in connection with the powers
conferred on the Receiver by this clause 12;
(o) (PROTECT PRIORITY) do or cause to be done anything to
protect the priority of this deed in respect of that
Secured Property, to protect the Issuer Trustee's or the
Security Trustee's or a Secured Creditor's estate or
interest in that Secured Property, to enforce this deed,
to recover the Secured Money or to protect or enhance
that Secured Property;
(p) (BANK ACCOUNTS) operate (to the exclusion of the Issuer
Trustee) the bank accounts which form part of that
Secured Property;
29
<PAGE>
(q) (INCUR LIABILITIES) expend money or incur liabilities in
exercising the powers conferred on the Receiver by this
clause 12;
(r) (MASTER TRUST DEED) do anything which the Issuer Trustee
is empowered to do under the Master Trust Deed;
(s) (NOTICE) serve notice that the Charge has become fixed
on any Relevant Secured Property of the Issuer Trustee;
(t) (AUTHORITY) collect that Secured Property or any part of
it; and
(u) (INCIDENTAL) to do anything which is ancillary to, or
incidental to, any of the foregoing.
13 POWERS OF SECURITY TRUSTEE AND EXCLUSION OF STATUTORY NOTICES
------------------------------------------------------------------------------
SECURITY TRUSTEE HAS POWERS OF RECEIVER
13.1 At any time after an Event of Default has occurred in relation
to a Trust, the Security Trustee, in addition to powers
conferred by other provisions of this deed or by law, may,
subject to the provisions of clause 12, exercise any of the
powers set out or referred to in clause 12 (each of which is
to be construed as if the reference to the Receiver were a
reference to the Security Trustee) and whether or not a
Receiver has been or could be appointed under this deed.
NO LIABILITY AS MORTGAGEE IN POSSESSION
13.2 If either the Security Trustee or a Receiver exercises its
rights under this deed (including without limitation, under
clause 7 or clause 12), exercises its rights conferred by law
or takes possession of the Secured Property pursuant to this
deed, then neither of them is liable to account as mortgagee
in possession.
GIVE UP POSSESSION OF SECURED PROPERTY
13.3 The Security Trustee may give up possession of the Secured
Property of a Trust at any time if the Security Trustee:
(a) believes in good faith that it is in the interests of
the Secured Creditors of that Trust to do so; or
(b) reasonably considers that it will, by retaining
possession of that Secured Property, incur a liability
which is not limited in accordance with clause 25.2.
EXCLUSION OF NOTICES
13.4 The Security Trustee or a Receiver need not give notice or a
demand to the Issuer Trustee or allow time to elapse before
exercising a right, power or remedy under this deed or
conferred by law, unless notice or demand or a lapse of time
is required by a law which cannot be excluded. If the law
requires that a period of notice must be given or a lapse of
time must occur or be permitted before a right, power or
remedy under this deed or conferred by law may be exercised,
then:
30
<PAGE>
(a) when a period of notice or lapse of time is mandatory,
that period of notice must be given or that lapse of
time must occur or be permitted by the Security Trustee
or Receiver; or
(b) when the law provides that a period of notice or lapse
of time may be stipulated or fixed by this deed, one day
is stipulated and fixed as that period of notice or
lapse of time and, without limitation, where applicable,
one day is stipulated and fixed as the period of notice
or lapse of time during which:
(i) default must continue before a notice is given or
requirement otherwise made for payment of the
Secured Money or the observance of obligations
under this deed; and
(ii) a notice or requirement for payment of the Secured
Money or the observance of obligations under this
deed must remain not complied with before the
Security Trustee's or Receiver's rights, powers or
remedies may be exercised.
NO DUTY AS CHARGEE
13.5 Nothing in this deed imposes a duty upon the Security Trustee
to exercise its powers as chargee under this clause 13 or at
law in circumstances where a motion at a meeting of Voting
Secured Creditors that a Receiver be appointed is put and is
not passed.
14 COSTS, CHARGES, EXPENSES AND INDEMNITIES
------------------------------------------------------------------------------
INDEMNITY BY ISSUER TRUSTEE
14.1 Subject to this deed and without prejudice to any right of
indemnity given by law, the Security Trustee will be
indemnified by the Issuer Trustee against all costs and
expenses, and all loss and liability, properly incurred by the
Security Trustee and the Receiver (as the case may be) in
performing any of their duties or exercising any of their
powers under this deed.
EXTENT OF INDEMNITY
14.2 Without limiting clause 14.1, the Security Trustee in respect
of each Security Trust is entitled to be indemnified by the
Issuer Trustee of the relevant Trust for:
(a) the costs, charges and expenses (including legal costs
and disbursements charged at the usual commercial rates
of the relevant legal services provider) of the Security
Trustee in connection with the negotiation, preparation,
execution, stamping, registration and completion of this
deed, any deed amending this deed and the Deed of Charge
for that Trust;
(b) the costs, charges and expenses (including legal costs
and disbursements charged at the usual commercial rates
of the relevant legal services provider) of the Security
Trustee in connection with any consent, exercise or
non-exercise of rights
31
<PAGE>
or powers or performance of obligations (including,
without limitation, in connection with the contemplated
or actual enforcement or preservation of any rights or
powers or performance of obligations under this deed),
production of title documents, waiver, variation,
release or discharge in connection with the Deed of
Charge for that Trust or the Secured Property of that
Trust;
(c) Taxes and fees (including, without limitation,
registration fees) and fines and penalties in respect of
Taxes and fees, which may be payable or determined to be
payable in connection with this deed or a payment or
receipt or any other transaction contemplated by this
deed;
(d) without limiting the generality of clause 14.2(b), all
legal costs and disbursements charged at the usual
commercial rates of the relevant legal services provider
and all other costs, disbursements, outgoings and
expenses of the Security Trustee in connection with the
initiation, carriage and settlement of any court
proceedings (including, without limitation, proceedings
against the Issuer Trustee arising from any fraud,
neglect, breach or default by the Issuer Trustee under
this deed) in respect of this deed,
except to the extent that any such amount is caused or
contributed to by the Security Trustee's and Receiver's fraud,
negligence or breach of trust. If the Security Trustee is not
indemnified for these amounts from the Issuer Trustee within a
reasonable period of requesting that indemnification, then the
Security Trustee may exercise its rights of indemnity out of
the assets of the Security Trust Fund for that amount.
COSTS OF EXPERTS
14.3 The costs, charges and expenses referred to in clause 14.2
include, without limitation, those payable to any independent
consultant or other person appointed to evaluate any matter of
concern (including any person consulted by the Security
Trustee pursuant to clause 7.10), any agent of the Security
Trustee, any Receiver or any attorney appointed under this
deed, and, in the case of the Security Trustee, its
administration costs in connection with any event referred to
in clause 14.2.
GST
14.4 Any amount representing a cost, charge, fee, liability or
expense paid to the Security Trustee under this deed will be
inclusive of GST. The supplier will provide the recipient any
reasonable documentation required for GST purposes so as to
enable the recipient to receive an input tax credit or tax
refund for GST purposes.
15 APPLICATION OF MONEY
------------------------------------------------------------------------------
APPLICATION
15.1 To the extent permitted by law, money received in connection
with this deed or the Deed of Charge in respect of a Trust is
to be applied
32
<PAGE>
(after satisfaction of claims taking priority over the Charge
of which the Security Trustee has actual notice) in the order
set out in the Supplemental Deed for that Trust.
CREDITING
15.2 In an application of money in accordance with clause 15.1 the
parties entitled to payments under that clause are to be
credited only with so much of that money as is actually
received by the Security Trustee. The credit dates from the
time of receipt. This provision applies even if in exercising
a power of sale the Security Trustee or a Receiver transfers
the Secured Property and takes a Security Interest to secure
the unpaid balance of purchase money.
SUSPENSE ACCOUNT
15.3 If the Security Trustee receives money in connection with this
deed and a Security Trust when it considers that an amount
will become owing to it under clause 14 at a future date or
when part of the Secured Money is contingently owing, then the
Security Trustee may deposit an amount not exceeding that
amount or part in an interest bearing deposit account
repayable on demand which constitutes an Authorised Investment
on terms which the Security Trustee thinks fit with any person
until that amount or part becomes actually payable or it
considers that the amount will not (and no other amount will)
become owing to it under clause 14 or until that part no
longer falls within the definition of Secured Money, as
appropriate. At that time, the Security Trustee may retain for
its own account the amount which is then actually payable to
it. The balance is to be paid in accordance with clause 15.1.
15.4 No money received by the Security Trustee on the realisation
of the Secured Property in relation to a Trust is payable to
any person claiming any amount due in respect of another
Trust. The determination by the Security Trustee (advised by
the Global Trust Manager) of which property constitutes the
Secured Property in relation to a Trust is conclusive in the
absence of manifest error.
15.5 Where any costs, fees, charges, expenses and liabilities
of the Security Trustee or a Receiver are referable to
more than one Trust, they may be apportioned between
those Trusts at the discretion of the Security Trustee
(as advised by the Global Trust Manager). Such
apportionment by the Security Trustee is conclusive in
the absence of manifest error.
15.6 If for any reason the periodic fees payable to the Global
Trust Manager, the Servicer, the Issuer Trustee, the
Security Trustee or any other person cannot be allocated
to a particular Trust and are therefore required to be
allocated between Trusts, those fees shall be allocated
on a proportionate basis having regard to the average
daily value of the Assets of each of those Trusts.
33
<PAGE>
16 REMUNERATION AND RETIREMENT OF SECURITY TRUSTEE AND DEALINGS WITH
SECURITY TRUST
------------------------------------------------------------------------------
REMUNERATION
16.1 The Security Trustee is to receive a fee in an amount and
payable at such times and in such manner as may from time to
time be agreed between the Global Trust Manager and the Issuer
Trustee in respect of each Security Trust.
MANDATORY RETIREMENT
16.2 The Security Trustee covenants that it will retire as Security
Trustee if:
(a) the Security Trustee ceases to carry on business in all
respects or as a professional trustee;
(b) there is a change in ownership of the Security Trustee
of more than 50%;
(c) there is a change in the effective management of the
Security Trustee without prior written consent of the
Global Trust Manager such that the Security Trustee is
in the reasonable opinion of the Global Trust Manager no
longer able to fulfil its duties and obligations;
(d) an Insolvency Event occurs in respect of the Security
Trustee in its personal capacity (but not in its
capacity as trustee of any other trust);
(e) an Extraordinary Resolution requiring the removal of the
Security Trustee as trustee of any Security Trust is
passed at a meeting of Voting Secured Creditors convened
under clauses 9.6, 9.7 or 9.8; or
(f) when required to do so by the Global Trust Manager or
the Issuer Trustee by notice in writing, the Security
Trustee fails or neglects within 14 days after receipt
of such notice to carry out or satisfy any material duty
imposed on the Security Trustee in respect of the
Security Trust.
REMOVAL BY GLOBAL TRUST MANAGER
16.3 If the Security Trustee refuses to retire, the Global Trust
Manager is entitled to remove the Security Trustee from office
immediately by notice in writing if an event referred to in
clause 16.2 has occurred. On the retirement or removal of the
Security Trustee under the provisions of clause 16.2 or this
clause 16.3 the Global Trust Manager, subject to any approval
required by law, is entitled to and must use its best
endeavours to appoint in writing some other person whose
appointment will not have an Adverse Rating Effect.
VOLUNTARY RETIREMENT
16.4 Subject to the appointment of a new Security Trustee, the
Security Trustee may retire as trustee under this deed upon
giving not more than 90 days' and not less than 30 days'
notice in writing to the Issuer Trustee and the Global Trust
Manager (or such other time as the
34
<PAGE>
Global Trust Manager, the Issuer Trustee and the Security
Trustee agree). Subject to any approval required by law, the
Security Trustee may appoint in writing as the replacement any
other person who is approved by the Global Trust Manager (such
approval not to be unreasonably withheld) and whose
appointment each Current Rating Agency confirms will not cause
an Adverse Rating Effect. If the Security Trustee does not
propose a replacement in the notice given by the Security
Trustee under this clause or by the date which is 30 days
prior to the date of the Security Trustee's proposed
retirement, as the case may be, the Global Trust Manager must
appoint a new security trustee as of the date of the proposed
retirement.
APPOINTMENT OF NEW SECURITY TRUSTEE BY VOTING SECURED CREDITORS
16.5 If a new security trustee has not been appointed under clauses
16.3 or 16.4 at a time when the position of security trustee
becomes vacant in accordance with those clauses, the Global
Trust Manager must act as security trustee in accordance and
subject to the protections contained in this deed and must
promptly convene a meeting of the Voting Secured Creditors of
all Trusts at which Voting Secured Creditors, holding or who
are owed between them an amount which is not less than 75% of
the Secured Money at the time, appoint any person nominated by
any of them to act as security trustee.
RELEASE OF SECURITY TRUSTEE
16.6 Upon retirement or removal of the Security Trustee, the
Security Trustee is released from all obligations under this
deed arising after the date of the retirement or removal
except for its obligation to vest each Security Trust Fund in
the new security trustee and to deliver all books and records
relating to the Security Trust to the new security trustee (at
the cost of each Security Trust Fund). The Global Trust
Manager and the Issuer Trustee may settle with the Security
Trustee the amount of any sums payable by the Security Trustee
to the Global Trust Manager or the Issuer Trustee or by the
Global Trust Manager or the Issuer Trustee to the Security
Trustee and may give to or accept from the Security Trustee a
discharge in respect of those sums which will be conclusive
and binding as between the Global Trust Manager, the Issuer
Trustee and the Security Trustee but not as between the
Security Trustee and the Voting Secured Creditors. The
removal, retirement or discharge of the Security Trustee will
not affect the rights or indemnities available to it under
this deed or at law in relation to the performance and
exercise by the Security Trustee of its obligations and powers
as Security Trustee.
VESTING OF SECURITY TRUST FUND IN NEW SECURITY TRUSTEE
16.7 The Security Trustee, on its retirement or removal, must vest
each Security Trust Fund of the relevant Security Trusts or
cause it (or them) to be vested in the new security trustee
and must deliver and assign to such new security trustee as
appropriate all books, documents, records and other property
whatsoever relating to the Security Trust Fund or Security
Trust Funds. Except on removal, the Security Trustee may make
it a condition of vesting property in the new security trustee
that all liabilities of the retiring
35
<PAGE>
security trustee for which it is entitled to be indemnified
and for which the retiring security trustee considers it is
personally liable are first satisfied or provided for to the
reasonable satisfaction of the retiring security trustee.
NEW SECURITY TRUSTEE TO EXECUTE DEED
16.8 Each new security trustee must upon its appointment execute a
deed in such form as the Global Trust Manager may require
whereby such new security trustee must undertake to the
relevant Voting Secured Creditors jointly and severally to be
bound by all the covenants on the part of the Security Trustee
under this deed from the date of such appointment. Any
appointment of a new security trustee has no effect until such
a deed is executed by the new security trustee.
SECURITY TRUSTEE FURTHER ASSURANCE
16.9 The Security Trustee must do all such things and execute all
such documents which are necessary or appropriate for the new
security trustee to obtain the benefit of this deed.
DEALINGS WITH TRUST
16.10 None of the:
(a) Security Trustee;
(b) Related Entities of the Security Trustee;
(c) directors or officers of the Security Trustee or its
Related Entities; or
(d) shareholders of the Security Trustee or its Related
Entities,
is prohibited from:
(i) subscribing for, purchasing, holding, dealing in
or disposing of Notes;
(ii) at any time:
(A) contracting with;
(B) acting in any capacity as representative or
agent for; or
(C) entering into any financial, banking, agency
or other transaction with,
any other of them, the Issuer Trustee (and
its Related Entities), the Global Trust
Manager (and its Related Entities) or any
Secured Creditor;
(iii) being interested in any contract or transaction
referred to in paragraph (ii); or
(iv) doing anything it could do if the Security Trustee
and the Issuer Trustee were not parties to this
deed.
36
<PAGE>
None of the persons mentioned is liable to account to the
Voting Secured Creditors for any profits or benefits
(including, without limitation, bank charges, commission,
exchange brokerage and fees) derived in connection with
anything referred to in paragraph (i) to (iv).
The preceding provisions of this clause 16.10 only apply if
the Security Trustee, in connection with the action, contract
or transaction, acts in good faith to all Voting Secured
Creditors.
Without limiting the rest of this clause 16.10, the Security
Trustee and any Related Entity of the Security Trustee may
perform different roles in connection with the Transaction
Documents, including roles as issuer trustee, security
trustee, registrar, paying agent, beneficiary, and
notwithstanding that interests or duties of the Related Entity
of the Security Trustee in respect of those roles may conflict
with interests or duties of the Security Trustee or the
interests of any Secured Creditor of a Trust. The Security
Trustee and each Related Entity of the Security Trustee will
have no liability to any person for assuming different roles
or for any use, non-use or communication of any information as
contemplated by this deed and the Transaction Documents. This
paragraph is subject to the requirement that the Security
Trustee and each relevant Related Entity of the Security
Trustee acts in good faith without fraud, negligence or breach
of trust regarding the Voting Secured Creditors of each Trust
in exercising any powers or rights or taking any action of the
kind permitted under this clause.
16.11 The Security Trustee will bear the reasonable costs of its
removal if it is removed because of an Insolvency Event. The
Security Trustee will indemnify the Global Trust Manager and
each Trust for these costs. These costs are not payable out of
the Assets of a Trust.
17 PRESERVATION OF SECURITY TRUSTEE'S RIGHTS
------------------------------------------------------------------------------
LIABILITIES OF ISSUER TRUSTEE NOT AFFECTED
17.1 The liabilities under this deed of the Issuer Trustee and the
rights under this deed of the Security Trustee, a Receiver or
an attorney appointed under this deed are not affected by
anything which might otherwise affect them at law or in equity
including, without limitation, one or more of the following
(whether occurring with or without the consent of a person):
(a) the Security Trustee or another person granting time or
other indulgence (with or without the imposition of an
additional burden) to, compounding or compromising with,
or wholly or partially releasing the Issuer Trustee or
another person in any way;
(b) laches, acquiescence, delay, acts, omissions or mistakes
on the part of the Security Trustee or another person or
both the Security Trustee and another person;
37
<PAGE>
(c) any variation or novation of a right of the Security
Trustee or another person, or material alteration of a
document, in respect of the Issuer Trustee or another
person including, without limitation, an increase in the
limit of or other variation in connection with the
Secured Money;
(d) the transaction of business, expressly or impliedly,
with, for or at the request of the Issuer Trustee or
another person;
(e) a change in the legal capacity, rights or obligations of
a person;
(f) the fact that a person is a trustee, nominee, joint
owner, joint venturer or a member of a partnership, firm
or association;
(g) a judgment against the Issuer Trustee or another person;
(h) any part of the Secured Money being irrecoverable;
(i) an assignment of rights in connection with the Secured
Money;
(j) the acceptance of repudiation or other termination in
connection with the Secured Money;
(k) without limiting the provisions of the Transaction
Documents, the invalidity or irregularity in the
execution of this deed by the Issuer Trustee or any
other person or any deficiency in the powers of the
Issuer Trustee or any other person to enter into or
observe its obligations under this deed; or
(l) any obligation of the Issuer Trustee or any other person
being discharged by operation of law or otherwise.
CONTINUING SECURITY
17.2 This deed is a continuing security despite any intervening
payment, settlement of account or other thing until a release
has been executed and given to the Issuer Trustee.
OTHER RIGHTS UNAFFECTED
17.3 Except as expressly limited under this deed, this deed does
not otherwise affect any other right, power or remedy of a
Secured Creditor at law or in equity.
PURCHASER FROM SECURITY TRUSTEE
17.4 A purchaser from or other person dealing with the Security
Trustee, or any Receiver, or any attorney appointed under this
deed or a person to whom is tendered for registration an
instrument duly executed by any of them need not inquire:
(a) whether the Secured Money is in fact owing or payable;
(b) whether default has occurred;
(c) whether a right, power or remedy which they have
exercised or purported to exercise has been properly
exercised;
38
<PAGE>
(d) whether a Receiver has been properly appointed; or
(e) about any other thing in connection with the exercise or
purported exercise of a right, power or remedy.
The title of any person relying on this clause is not affected
by express or constructive notice of anything in connection
with the matters referred to in clauses 17.4(a) to (e)
(inclusive).
18 POWER OF ATTORNEY
------------------------------------------------------------------------------
ATTORNEY OF ISSUER TRUSTEE
18.1 The Issuer Trustee, in respect of each Trust, irrevocably
appoints the Security Trustee, each Authorised Person of the
Security Trustee, and each Receiver severally its attorneys.
ATTORNEY'S POWERS
18.2 Upon the occurrence of an Event of Default in relation to a
Trust, each attorney may:
(a) in the name of the Issuer Trustee (in its capacity as
trustee of that Trust) or the attorney do anything which
the Issuer Trustee (in its capacity as trustee of that
Trust) may lawfully authorise an attorney to do in
connection with this deed or the Secured Property of
that Trust or which in the attorney's opinion is
necessary or expedient to give effect to any right,
power or remedy conferred on the Security Trustee or a
Receiver by this deed, by law or otherwise, (including,
without limitation, executing deeds and instituting,
conducting and defending legal proceedings);
(b) delegate such of its powers (including, and where
applicable, this power of delegation) as it would be
entitled to delegate under clause 7.23 if it held those
powers in its own right rather than as attorney of the
Issuer Trustee (in its capacity as trustee of the Trust)
to any person for any period and may revoke a
delegation; and
(c) exercise or concur in exercising its powers even if the
attorney has a conflict of duty in exercising its powers
or has a direct or personal interest in the means or
result of that exercise of powers.
RATIFICATION BY ISSUER TRUSTEE
18.3 The Issuer Trustee agrees to ratify anything done by an
attorney or its delegate in accordance with clause 18.2.
19 NOTICES
------------------------------------------------------------------------------
FORM
19.1 A notice, approval, consent or other communication in
connection with this deed:
39
<PAGE>
(a) may be given by an Authorised Person of the relevant
party; and
(b) must be in writing; and
(c) must be left at the address of the addressee, or sent by
prepaid ordinary post (airmail if posted to or from a
place outside Australia) 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 which is notified to the
parties from time to time after execution of 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
SECURITY TRUSTEE
Address: Level 7
1 Castlereagh Street
Sydney NSW 2000
Facsimile: (61 2) 9229 9009
Attention: Manager, Securitisation
E-mail: as notified from time to time
GLOBAL TRUST MANAGER
Address: 7301 Baymeadows Way
Jacksonville. Florida USA
Facsimile: 904 281 3062
Attention: General Counsel
E-mail: [email protected]
NOTE TRUSTEE
Address: 101 Barclay Street, 21W
New York, New York 10286 USA
Facsimile: (212) 815 3522
Attention: Global Structured Products Unit
E-mail: as notified from time to time
TIME EFFECTIVE
19.2 Unless a later time is specified in it a notice, approval,
consent or other communication takes effect from the time it
is received.
40
<PAGE>
RECEIPT
19.3 A letter, facsimile or e-mail is taken to be received:
(a) in the case of a posted letter, on the third (seventh,
if posted to or from a place outside Australia) day
after posting;
(b) in the case of a facsimile, on production 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 notified for the purpose of this clause; and
(c) 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 4.00pm local time on a Business Day at the address of
the recipient, it is deemed to have been received at the
commencement of business on the next Business Day.
19.4 All notices with respect to the Secured Creditors are valid if
despatched by prepaid ordinary post (airmail if posted to a
place outside Australia) to the Secured Creditors at their
registered office (or, in the case of Noteholders holding
Registered Notes, to the address specified in the Register
and, in the case of joint holders, to the person whose name
first appears in the Register) or, in the case of the owners
of Bearer Notes, any notice will be effectively given if it is
given to the Note Trustee in accordance with this clause and
in the manner contemplated by the relevant Note Trust Deed and
the terms and conditions of issue (if any) of the relevant
Bearer Notes. Such notice is taken to be received on the third
(seventh, if posted to a place outside Australia) day after
posting.
20 RELEASE AND ASSIGNMENT
------------------------------------------------------------------------------
RELEASE
20.1 (a) The Security Trustee agrees to execute a release of the
Secured Property of a Trust from the relevant Charge at
the request of the Issuer Trustee and the Global Trust
Manager of the relevant Trust on the earlier to occur of
the full and final payment of all of the Secured Money
of that Trust and the termination of the Trust.
(b) The Security Trustee agrees to execute a release of any
part of the Security Property of a Trust from the
relevant Charge if such a release is permitted under the
Transaction Documents for that Trust.
ASSIGNMENT
20.2 The Issuer Trustee of a Trust may not create or allow to exist
a Security Interest over an interest in this deed or assign or
otherwise
41
<PAGE>
dispose of or deal with its rights under this deed otherwise
than in accordance with the Master Trust Deed or the relevant
Supplemental Deed.
21 MISCELLANEOUS
------------------------------------------------------------------------------
CERTIFICATE
21.1 A certificate signed by the Security Trustee or its solicitors
about a matter or about a sum payable to the Security Trustee
in connection with this deed or a Deed of Charge 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
21.2 The Security Trustee, a Receiver 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 person does not prevent a further
exercise of that or an exercise of any other right, power or
remedy. Failure by the person to exercise or delay in
exercising a right, power or remedy does not prevent its
exercise. The person with the right, power or remedy 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 its fraud or wilful default or, in the case of
the Security Trustee, negligence, fraud or breach of trust.
WAIVER AND VARIATION
21.3 Subject to clause 9.5, 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
21.4 Any present or future legislation which operates to vary the
obligations of the Security Trustee in connection with this
deed, the Secured Money or the Secured Property with the
result that the Security 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
21.5 The Security Trustee, a Receiver 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.
REMEDIES CUMULATIVE
21.6 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.
42
<PAGE>
INDEMNITIES
21.7 Each indemnity in this deed is a continuing obligation,
separate and independent from the other obligations of the
Security Trustee and survives termination of this deed. It is
not necessary for the Security Trustee to incur expense or
make payment before enforcing a right of indemnity conferred
by this deed.
TIME OF THE ESSENCE
21.8 Time is of the essence in this deed in respect of an
obligation of the Security Trustee to pay money.
RECEIPTS
21.9 The receipt of a Receiver, or an Authorised Person of the
Security Trustee, releases the person paying money to the
Receiver or the Security Trustee in connection with this deed
from:
(a) liability to enquire whether the Secured Money has
become payable;
(b) liability for the money paid or expressed to be
received; and
(c) being concerned to see to its application or being
answerable or accountable for its loss or
misapplication.
ACKNOWLEDGMENT
21.10 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 this deed, the Deed of Charge in
respect of each Trust, the Master Trust Deed and the
Supplemental Deed in respect of each Trust and may exercise
such powers and discretions as provided in this deed, the Deed
of Charge in respect of each Trust, the Master Trust Deed and
the Supplemental Deed in respect of each Trust and (without
limitation) in forming any opinion may obtain and act upon the
advice of persons who are not parties to this deed.
21.11 The parties acknowledge that they are bound by the terms of
this deed, the Master Trust Deed, the Deed of Charge in
respect of each Trust and the Supplemental Deed in respect of
each Trust.
22 AMENDMENT TO MASTER SECURITY TRUST DEED AND DEED OF CHARGE
------------------------------------------------------------------------------
AMENDMENTS
22.1 Subject to this clause 22.1 and to any approval required by
law (including, without limitation, under the TIA) and by
clause 22.2, and provided that 10 Business Days prior notice
of the proposed amendment has been given to the Security
Trustee and the Current Rating Agency, the Issuer Trustee, the
Global Trust Manager, the Security Trustee and the Note
Trustee by deed may amend, add to or revoke any provision of
this deed (including this clause 22.1) as it applies to any
Security Trust or any provision of any Deed of Charge for the
Security Trust if the amendment, addition or revocation:
43
<PAGE>
(a) in the opinion of the Security Trustee or of a barrister
or solicitor instructed by the Security Trustee is
necessary or expedient to comply with or be consistent
with the provisions of any statute, ordinance,
regulation or by-law or with the requirement of any
statutory authority;
(b) in the opinion of the Security Trustee is made to
correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(c) in the opinion of the Security Trustee or the Global
Trust Manager will enable the provisions of this deed or
the Deed of Charge to be more conveniently,
advantageously, profitably or economically administered;
(d) in the opinion of the Security Trustee or the Global
Trust Manager is otherwise desirable for any reason; or
(e) is considered by the Security Trustee not to be
materially prejudicial to the interests of the Voting
Secured Creditors as a whole or the interests of any
individual Voting Secured Creditors or group of Voting
Secured Creditors.
CONSENT REQUIRED
22.2 If in the reasonable opinion of the Security Trustee any
amendment, addition or revocation referred to in clause
22.1(c) or clause 22.1(d) will be or is likely to become
prejudicial to the interests of Voting Secured Creditors of a
particular class in respect of the Security Trust or to the
interests of all Voting Secured Creditors in respect of the
Security Trust, the amendment, addition or revocation may be
effected only if in accordance with clause 22.3 or 22.4 (as
the case may be).
AMENDMENTS PREJUDICIAL TO VOTING SECURED CREDITORS OF A CLASS
22.3 Subject to clause 22.4, if in the opinion of the Security
Trustee any amendment, addition or revocation referred to in
clause 22.1(c) or clause 22.1(d) will be or is likely to
become prejudicial to the interests of Voting Secured
Creditors of a particular class, the amendment, addition or
revocation may only be effected if the relevant Voting Secured
Creditors pass an Extraordinary Resolution approving such
amendment, addition or revocation in accordance with clause
10.
AMENDMENTS PREJUDICIAL TO ALL VOTING SECURED CREDITORS
22.4 If in the opinion of the Security Trustee, any amendment,
addition or revocation referred to in clause 22.1(c) or clause
22.1(d) will be or is likely to become prejudicial to the
interests of all Voting Secured Creditors in respect of the
Security Trust:
(a) the amendment, addition or revocation may only be
effected if the relevant Voting Secured Creditors pass
an Extraordinary Resolution approving such amendment,
addition or revocation in accordance with clause 10; and
44
<PAGE>
(b) there will not be a separate Extraordinary Resolution
required for each class of Voting Secured Creditors
pursuant to clause 22.3.
CONSENT TO PAYMENT MODIFICATION IN RELATION TO NOTES
22.5 If any alteration, addition or revocation referred to in
clause 22 effects or purports to effect a Payment Modification
it will not be effective as against a given Noteholder unless
consented to by that Noteholder.
22.6 The Security Trustee will be entitled to assume that any
proposed alteration, addition or revocation referred to in
clause 22 (other than a Payment Modification) will not be
materially prejudicial to the interests of a Class of
Noteholders or all Noteholders if each of the Current Rating
Agencies confirms in writing that if the alteration, addition
or revocation is effected this will not lead to a reduction,
qualification or withdrawal of the then rating given,
respectively, to the Class of Notes, or to each Class of
Notes, by the Current Rating Agency.
UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL AND INTEREST
22.7 Notwithstanding any other provision of this deed, any
Noteholder shall have the right, which is absolute and
unconditional, to receive payment of the principal of and
interest, if any, on each Note held by it on or after the
respective due dates thereof expressed in such Note or in this
deed or to institute suit for the enforcement of any such
payment if and to the extent that the institution or
prosecution thereof or the entry of judgment therein would,
under applicable law, result in the surrender, impairment,
waiver, or loss of the Security Interest created by this deed
and each Deed of Charge upon any property subject to such
Security Interest, and such right shall not be impaired
without the consent of such Noteholder, except to the extent
that the Transaction Documents contain provisions limiting or
denying the right of any Noteholder to institute any such
suit.
23 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
------------------------------------------------------------------------------
GOVERNING LAW
23.1 This deed and each Security Trust are governed by the law in
force in the Australian Capital Territory and the rights,
liabilities and obligations of the Issuer Trustee, Security
Trustee, Global Trust Manager, the Note Trustee, the
Unitholders and the Secured Creditors are governed by the laws
in force in the Australian Capital Territory.
NON-EXCLUSIVE JURISDICTION
23.2 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
45
<PAGE>
limitation, by claiming that the action has been brought in an
inconvenient forum or that those courts do not have
jurisdiction.
SERVICE OF PROCESS
23.3 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 19.
24 COUNTERPARTS
------------------------------------------------------------------------------
This deed may consist of a number of counterparts and the
counterparts taken together constitute one and the same
instrument.
25 LIMITED RECOURSE
------------------------------------------------------------------------------
25.1 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).
SECURITY TRUSTEE LIABILITY
25.2 Notwithstanding any other provision of this deed, the Security
Trustee will have no liability under or in connection with
this deed, a Security Trust, or any other Transaction Document
(whether to the Voting Secured Creditors, the Issuer Trustee,
the Global Trust Manager or any other person) other than to
the extent to which the liability is able to be satisfied in
accordance with this deed out of the property of the Security
Trust Fund of the Security Trust from which the Security
Trustee is actually indemnified for the liability. This
limitation will not apply to a liability of the Security
Trustee to the extent that it is not satisfied because, under
this deed or by operation of law, there is a reduction in the
extent of the Security Trustee's indemnification out of the
relevant Security Trust Fund as a result of the Security
Trustee's fraud, negligence or breach of trust. Nothing in
this clause 25.2 or any similar provision in any other
Transaction Document limits or adversely affects the powers of
the Security Trustee, any Receiver or attorney in respect of
any Security Trust Deed or any Secured Property.
26 RELEVANT NOTE TRUSTEE
------------------------------------------------------------------------------
CAPACITY
26.1 The Note Trustee is a party to this deed in its capacity as
trustee from time to time for the Bearer Noteholders of each
Trust which are issued with the benefit of a Note Trust Deed
in respect of such Trust (under the relevant Note Trust Deed
for each such Trust) in respect of which the Supplemental Deed
for that Trust specifies that this deed, and the role of the
Note Trustee, is to apply to that Trust.
46
<PAGE>
EXERCISE OF RIGHTS
26.2 Except as otherwise provided in this deed and in the relevant
Note Trust Deed:
(a) (ONLY BY NOTE TRUSTEE): the rights, remedies and
discretions of the relevant Bearer Noteholders under
this deed including all rights to vote or give
instructions or consent to the Security Trustee and to
enforce any undertakings or warranties under this deed,
may only be exercised by the relevant Note Trustee on
behalf of the relevant Bearer Noteholders in accordance
with the relevant Note Trust Deed; and
(b) (LIMITED RIGHT OF ENFORCEMENT BY BEARER NOTEHOLDERS):
the relevant Bearer Noteholders may only exercise
enforcement rights in respect of the Secured Property
through the relevant Note Trustee and only in accordance
with this deed.
INSTRUCTIONS OR DIRECTIONS
26.3 The Security Trustee may rely on any instructions or
directions given to it by the relevant Note Trustee as being
given on behalf of all the Bearer Noteholders from time to
time and need not inquire whether any such instructions or
directions are in accordance with the relevant Note Trust
Deed, whether the relevant Note Trustee or the Bearer
Noteholders from time to time have complied with any
requirements under the relevant Note Trust Deed or as to the
reasonableness or otherwise of the relevant Note Trustee.
VOTING AT MEETINGS
26.4 If the Note Trustee in respect of a Trust is entitled under
this deed to vote at any meeting of the Secured Creditors or
Voting Secured Creditors of that Trust on behalf of the Bearer
Noteholders of that Trust, the Note Trustee must vote in
accordance, where applicable, with the directions of the
Bearer Noteholders of that Trust in accordance with the Note
Trust Deed and otherwise in its absolute discretion.
PAYMENTS
26.5 Any payment to be made to a Bearer Noteholder under this deed
may be made to the relevant Note Trustee or a Paying Agent on
behalf of that Bearer Noteholder.
NOTICES
26.6 Any notice to be given to a Bearer Noteholder under this deed
may be given to the relevant Note Trustee on behalf of that
Bearer Noteholder. Any costs to the relevant Note Trustee of
publishing such notice to the Bearer Noteholders will, subject
to this deed, be reimbursed by the Issuer Trustee to the
relevant Note Trustee.
LIMITATION OF RELEVANT NOTE TRUSTEE'S LIABILITY
26.7 The liability of the relevant Note Trustee under this deed is
limited in the manner and to the same extent as under the
relevant Note Trust Deed.
47
<PAGE>
EXECUTED as a deed in the Australian Capital Territory.
48
<PAGE>
EXECUTION PAGE
------------------------------------------------------------------------------
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, 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
49
<PAGE>
SIGNED by )
)
)
on behalf of and SEALED AND )
DELIVERED by HOMESIDE )
GLOBAL TRUST MANAGER, INC )
in the presence of: )
)
)
-------------------------------- )
Signature of witness )
)
-------------------------------- )
Name of witness (block letters) )
)
-------------------------------- )
Address of witness ) ------------------------------------
) By executing this deed the signatory
-------------------------------- ) states that the signatory has
Occupation of witness ) received no notice of revocation of
) the authority pursuant to which they
) execute this deed
SIGNED, SEALED AND DELIVERED )
by )
as authorised signatory for THE )
BANK OF NEW YORK, NEW YORK BRANCH )
)
in the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) ) ................................
) By executing this deed the
................................ ) signatory states that signatory
Address of witness ) has received no notice of
) revocation of the authority under
................................ ) which this deed is signed, sealed
Occupation of witness ) and delivered
50
<PAGE>
CONTENTS HOMESIDE MORTGAGE SECURITIES TRUSTS
MASTER SECURITY TRUST DEED
------------------------------------------------------------------------------
1 INTERPRETATION 1
Definitions Schedule 2
Miscellaneous 2
2 DECLARATION OF SECURITY TRUST 2
Declaration of Security Trust 2
Commencement and Termination 2
Name of Security Trust 2
Rights of Secured Creditors 3
3 PAYMENTS 3
Payment to Security Trustee 3
Discharge by Payment to Secured Creditors 4
Election by Security Trustee 4
4 COVENANTS BY ISSUER TRUSTEE 4
General Covenants 4
Covenants in respect of Secured Property 5
Global Trust Manager Undertakings 6
5 FURTHER ASSURANCES 7
Issuer Trustee Assurances 7
Completion of Instruments 7
Registration of Charge 7
6 REPRESENTATIONS AND WARRANTIES 7
Global Trust Manager representation and
warranties 8
7 GENERAL POWERS, RIGHTS AND RESPONSIBILITIES 8
Power to Invest 8
Other Powers 9
Discretion of Security Trustee as to
Exercise of Powers 9
Limitation on Security Trustee's Actions 9
Limitations on Security Trustee's
Responsibility 9
No Liability 10
Security Trustee not responsible for
monitoring 11
Security Trustee's Further Duties 12
Acceptance of Certificates etc. 12
Act on Opinion of Experts 13
Right to Rectify 13
Consent to Dealings 13
Ascertain Event of Default 13
No duty to investigate 14
Liability must be limited 14
Not use own funds 14
Cover for costs 14
Receipt of instructions 15
Dispute or ambiguity 15
No liability for documents 15
<PAGE>
Conflict of duty 16
Indemnity 16
Delegation 16
No Liability 17
8 CRYSTALLISATION OF FLOATING CHARGE 17
Crystallisation 17
Replacement of fixed charge with
floating charge 18
Subsequent dealing 18
Further charge 19
9 SECURITY TRUSTEE TO CONVENE MEETINGS 19
Convene Meetings 19
Extraordinary Resolutions 19
Notice 20
No obligation to appoint Receiver 20
Waiver of Event of Default 20
Meetings 20
Global Trust Manager convenes meeting 20
Secured Creditors convene meeting 21
Notice of Event of Default 21
Notice of action to remedy Event of Default 21
Limitation on rights of Secured Creditors 21
10 MEETING OF VOTING SECURED CREDITORS 21
Notice of Meeting 21
Advertisement of Meeting in Newspaper 22
Quorum 23
Quorum at Adjourned Meeting 23
Chairman 23
Voting 23
Votes 24
Voting by Joint Noteholders 24
Voting by Corporation 24
Voting by Person of Unsound Mind 24
Objection to Voter's Qualification 24
Method of Voting 25
Proxy Instrument 25
Attendance at Meetings and Appointment of
Proxy 25
Voting Authority to be Deposited with
Security Trustee 25
Form of Proxy 25
Proxy - Effect of Death or Insanity 26
Determination of Voting 26
Adjournment 26
Effect of Resolution 26
Minutes 26
11 APPOINTMENT OF RECEIVER 27
Appointment 27
New Receiver 27
No Liability for Receiver 27
Two or more Receivers 27
Appointment over part 27
Indemnity to Receiver 27
<PAGE>
12 POWERS OF RECEIVER 28
13 POWERS OF SECURITY TRUSTEE AND EXCLUSION OF
STATUTORY NOTICES 30
Security Trustee has powers of Receiver 30
No liability as mortgagee in possession 30
Give up possession of Secured Property 30
Exclusion of notices 30
No duty as chargee 31
14 COSTS, CHARGES, EXPENSES AND INDEMNITIES 31
Indemnity by Issuer Trustee 31
Extent of Indemnity 31
Costs of experts 32
GST 32
15 APPLICATION OF MONEY 33
Application 33
Crediting 33
Suspense account 33
16 REMUNERATION AND RETIREMENT OF SECURITY
TRUSTEE AND DEALINGS WITH SECURITY TRUST 34
Remuneration 34
Mandatory Retirement 34
Removal by Global Trust Manager 34
Voluntary Retirement 34
Appointment of new Security Trustee by
Voting Secured Creditors 35
Release of Security Trustee 35
Vesting of Security Trust Fund in new
Security Trustee 35
New Security Trustee to Execute Deed 36
Security Trustee Further Assurance 36
Dealings with Trust 36
17 PRESERVATION OF SECURITY TRUSTEE'S RIGHTS 37
Liabilities of Issuer Trustee not affected 37
Continuing Security 38
Other rights unaffected 38
Purchaser from Security Trustee 38
18 POWER OF ATTORNEY 39
Attorney of Issuer Trustee 39
Attorney's Powers 39
Ratification by Issuer Trustee 39
19 NOTICES 39
Form 39
Time effective 40
Receipt 41
20 RELEASE AND ASSIGNMENT 41
Release 41
Assignment 42
<PAGE>
21 MISCELLANEOUS 42
Certificate 42
Exercise of rights 42
Waiver and variation 42
Supervening legislation 42
Approvals and consent 42
Remedies cumulative 42
Indemnities 43
Time of the essence 43
Receipts 43
Acknowledgment 43
22 AMENDMENT TO MASTER SECURITY TRUST DEED AND
DEED OF CHARGE 43
Amendments 43
Consent required 44
Amendments prejudicial to Voting Secured
Creditors of a Class 44
Amendments prejudicial to all
Voting Secured Creditors 44
Consent to Payment Modification in relation
to Notes 45
Unconditional Rights of Noteholders to
Receive Principal and Interest 45
23 GOVERNING LAW, JURISDICTION AND SERVICE OF
PROCESS 45
Governing Law 45
Non-exclusive jurisdiction 45
Service of process 46
24 COUNTERPARTS 46
25 LIMITED RECOURSE 46
Security Trustee Liability 46
26 RELEVANT NOTE TRUSTEE 46
Capacity 46
Exercise of rights 47
Instructions or directions 47
Voting at Meetings 47
Payments 47
Notices 47
Limitation of relevant Note Trustee's
Liability 47
<PAGE>
EXTERNAL DRAFT 6: 29.12.00
---------------------------------
DATED 3 January 2001
HOMESIDE MORTGAGE
SECURITIES TRUSTS
MASTER SECURITY TRUST DEED
PERPETUAL TRUSTEE COMPANY
LIMITED
("ISSUER TRUSTEE")
P.T. LIMITED
("SECURITY TRUSTEE")
HOMESIDE GLOBAL MBS MANAGER,
INC.
("GLOBAL TRUST MANAGER")
THE BANK OF NEW YORK, NEW YORK
BRANCH
("NOTE TRUSTEE")
MALLESONS STEPHEN JAQUES
Solicitors
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Telephone (02) 9296 2000
Fax (02) 9296 3999
DX 113 Sydney
Ref: SRF:CD3
