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EXHIBIT 4.10
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Dated 2001
HOMESIDE MORTGAGE
SECURITIES TRUST 2001-1
SECONDARY SALE AGREEMENT
HOMESIDE MORTGAGE SECURITIES, INC.
("DEPOSITOR")
PERPETUAL TRUSTEE COMPANY
LIMITED
("ISSUER TRUSTEE")
MALLESONS STEPHEN JAQUES
Solicitors
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Telephone (612) 9296 2000
Facsimile (612) 9296 3999
DX 113 Sydney
Ref: SRF:CD3
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CONTENTS SECONDARY SALE AGREEMENT
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1 DEFINITIONS AND INTERPRETATION 2
2 OFFER TO SELL MORTGAGE LOANS 3
Offer 3
3 CONDITIONS PRECEDENT TO ISSUE OF
OFFER AND ACCEPTANCE BY THE
DEPOSITOR 4
Certification 4
Benefit of the Issuer Trustee 4
4 ACCEPTANCE OF THE SECONDARY OFFER
TO SELL 4
Binding agreement 4
Transfer in equity only 5
Sale not to amount to assumption
of obligations 5
Future Receivables 5
5 REPRESENTATIONS AND WARRANTIES 6
General 6
Repetition 7
Mortgage Portfolio 7
Remedy 7
6 MISCELLANEOUS 8
Certificate 8
Exercise of rights 8
Waiver and variation 9
Supervening legislation 9
Approvals and consent 9
Remedies cumulative 9
7 NOTICES 9
How given 9
Effective on receipt 10
When received 10
8 ENCUMBRANCES AND ASSIGNMENT 10
9 GOVERNING LAW, JURISDICTION AND
SERVICE OF PROCESS 10
Governing law 10
Jurisdiction 11
Service 11
10 COUNTERPARTS 11
11 LIMITATION OF ISSUER TRUSTEE'S
LIABILITY 11
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HOMESIDE MORTGAGE SECURITIES TRUST 2001-1
SECONDARY SALE AGREEMENT
DATE: 2001
PARTIES: HOMESIDE MORTGAGE SECURITIES, INC. having an office
at 7301 Baymeadows Way, Jacksonville, Florida 32256,
USA ("DEPOSITOR")
PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001 007)
of Level 7, 39 Hunter Street, Sydney in its capacity
as trustee of the HomeSide Mortgage Securities
Trust 2001-1 ("ISSUER TRUSTEE")
RECITALS:
A. The Issuer Trustee may acquire Mortgage Loans from the
Depositor.
B. The parties to this agreement have agreed that the
terms and conditions for the potential sale of Mortgage
Loans will be the terms and conditions set out in this
agreement and in any Secondary Offer to Sell.
OPERATIVE PROVISIONS:
1 DEFINITIONS AND INTERPRETATION
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DEFINITIONS
1.1 The following words have these meanings in this
agreement unless the contrary intention appears:
DEFINITIONS SCHEDULE means the deed called "HomeSide
Mortgage Securities Trusts Definitions Schedule" dated
3 January 2001 and made between the companies named in
Schedule 1 to that deed.
TRUST means the HomeSide Mortgage Securities Trust
2001-1.
INTERPRETATION
1.2 Except to the extent to which words and phrases are
otherwise defined in this agreement, words and phrases
defined in the Definitions Schedule shall bear the same
meaning in this agreement. For the avoidance of doubt,
in the event of any inconsistency between a definition
in this agreement and a definition in the Definitions
Schedule, the definitions in this agreement will
prevail. Any amendment to the Definitions Schedule will
only apply to this agreement if made in accordance with
the Master Trust Deed.
1.3 Clauses 1.2 to 1.5 (inclusive) of the Definitions
Schedule are incorporated in this agreement as though
they were set out in full with references to "deed"
being construed as references to "agreement".
1.4 By executing this agreement, the Depositor and the
Issuer Trustee agree that terms used in any Transaction
Document have the meaning given to them in the
Definitions Schedule.
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2 OFFER TO SELL MORTGAGE LOANS
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DEPOSITOR MAY MAKE OFFER
2.1 The Depositor may make an offer to sell Mortgage Loans
and certain ancillary assets to the Issuer Trustee in
accordance with clause 2.2.
REQUIREMENTS FOR AN OFFER TO SELL MORTGAGE LOANS
2.2 An offer to sell Mortgage Loans must:
(a) comply with, and be accompanied by the materials
required by, the terms of this agreement;
(b) be made by way of a Secondary Offer to Sell, as
executed by the Depositor and delivered to the
Issuer Trustee; and
(c) specify the related Mortgage Loans the subject of
the Secondary Offer to Sell.
NO OBLIGATION TO OFFER OR ACCEPT
2.3 Nothing in this agreement obliges:
(a) the Depositor to sign and deliver any Secondary
Offer to Sell; or
(b) the Issuer Trustee to accept any Secondary Offer
to Sell issued pursuant to clause 2.2.
OFFER
2.4 Once given, a Secondary Offer to Sell constitutes an
offer by the Depositor to assign to the Issuer Trustee
in equity with effect from the relevant Acceptance Date
the Depositor's right, title and interest in and to:
(a) each Housing Loan comprising part of each Mortgage
Loan identified in the Secondary Offer to Sell;
(b) each Mortgage and each Collateral Security in
relation to each such Housing Loan;
(c) any Property Insurance in relation to the Land
which is referable to each Housing Loan and
Mortgage;
(d) each Other Secured Liability which is in existence
from time to time in respect of each Mortgage and
each Collateral Security specified in
clause 2.4(a);
(e) the Monetary Rights from time to time in relation
to each such Housing Loan; and
(f) any Mortgage Title Documents from time to time in
relation to each such Housing Loan.
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3 CONDITIONS PRECEDENT TO ISSUE OF OFFER AND ACCEPTANCE BY THE
DEPOSITOR
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CONDITIONS PRECEDENT TO ISSUE OF OFFER
3.1 The Depositor must not make an offer in accordance with
clause 2 unless and until it has given to the Issuer
Trustee, in form and substance reasonably satisfactory
to the Issuer Trustee, the following:
(a) a certified copy of the power of attorney under
which the Transaction Documents have been (or, in
relation to an Secondary Offer to Sell, will be)
executed by the Depositor;
(b) the number of Powers of Attorney (such number to
be notified by the Depositor to the Seller from
time to time) executed by the Seller; and
(c) a legal opinion from Mallesons Stephen Jaques,
solicitors, addressed to the Depositor (amongst
others);
(d) a letter addressed to the Issuer Trustee from each
provider of Lender's Mortgage Insurance
acknowledging the sale of the Mortgages; and
(e) such other matters, acts or things as the Issuer
Trustee may reasonably request prior to the date
of this agreement.
CERTIFICATION
3.2 Anything required to be certified under this clause 3
must be certified by an Authorised Person of the
Depositor as being true and complete as at a date no
earlier than the date of issue of an offer pursuant to
clause 2.
BENEFIT OF THE ISSUER TRUSTEE
3.3 The conditions precedent set out in this clause 3 are
for the benefit of the Issuer Trustee and any of them
may be waived by the Issuer Trustee in its absolute
discretion.
4 ACCEPTANCE OF THE SECONDARY OFFER TO SELL
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4.1 The Issuer Trustee may only accept a Secondary Offer to
Sell by paying the Purchase Price to the Depositor or
at the Depositor's direction in cleared funds by no
later than 4.00 pm on the Acceptance Date.
BINDING AGREEMENT
4.2 Acceptance of a Secondary Offer to Sell by the Issuer
Trustee in accordance with clause 4.1 will constitute:
(a) a legal, valid and binding agreement between the
Depositor and the Issuer Trustee on the terms
contained in this agreement and the relevant
Secondary Offer to Sell; and
(b) without any further act or instrument by the
parties, an immediate assignment in equity of the
Depositor's entire right,
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title and interest in each of the items referred
to in clause 2.4 with effect from the relevant
Acceptance Date.
TRANSFER IN EQUITY ONLY
4.3 Unless otherwise specified, any assignment to the
Issuer Trustee of the items referred to in clause 2.4
is equitable only. Unless and until the Depositor or
the Issuer Trustee protects its title and interest in
and to such items in accordance with the Initial Sale
Agreement to which this agreement, the Master Trust
Deed and a Sale Agreement relates, the Issuer Trustee
must not:
(a) take any steps to protect its title and interest
in and to those items; or
(b) disclose any information in respect of any sale,
transfer or assignment, or give any notice to, or
communicate with, any Debtor or Security Provider,
except in accordance with this agreement and the
Initial Sale Agreement to which this agreement and a
Sale Agreement relates. The Issuer Trustee must not
lodge any Transfer in respect of a Mortgage with the
land titles office of any State or Territory of
Australia unless, and until, the Issuer Trustee
declares that a Title Perfection Event has occurred.
The Issuer Trustee may lodge a caveat if it has
actual notice of the Seller or the Depositor taking
action which will, or is likely to, adversely affect
the Trustee's equitable ownership of the Housing
Loan, the Mortgage and the Collateral Securities.
SALE NOT TO AMOUNT TO ASSUMPTION OF OBLIGATIONS
4.4 (a) Any sale of Mortgage Loans to the Issuer Trustee
as contemplated by this agreement and a
Secondary Offer to Sell does not constitute an
assumption by the Issuer Trustee of any
obligation or liability of the Seller or the
Depositor or of any other person in relation to
such Mortgage Loans or any other item referred
to in clause 2.4. In particular, the Seller
retains the obligation to make such further
advances or provide such other financial
accommodation as the Seller was required to
make or provide under such Mortgage Loans.
(b) If, after the sale of any Mortgage Loans to the
Issuer Trustee, with the consent of the Issuer
Trustee, the cashflows or collections in
respect of those Mortgage Loans are adjusted or
renegotiated in any manner, the Issuer Trustee
is the person who is subject to the
renegotiated or adjusted terms, and not the
Seller or the Depositor.
FUTURE RECEIVABLES
4.5 Without limiting the effect of any assignment of the
items referred to in clause 2.4 occurring upon the
Issuer Trustee accepting a Secondary Offer to Sell
in accordance with this agreement, the Depositor's
right, title and interest in respect of any such
items arising after the relevant Acceptance Date
form part of the rights assigned to the Issuer
Trustee and, immediately following the vesting of
those items in the Depositor
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under an Initial Offer to Sell, vest in the Issuer Trustee
in accordance with the assignment of those items pursuant
to this agreement.
PERFECTION OF TITLE
4.6 If, and only if, a declaration is made by the Depositor in
accordance with clause 6.1 of the Initial Sale Agreement in
respect of the relevant Trust, the Depositor must as soon as
practicable take all necessary steps to protect the Issuer
Trustee's interest in, and title to, the Mortgage Loans
forming part of the Assets of that Trust, including:
(a) the lodgment of Transfers or caveats with the land
titles office of the appropriate jurisdiction;
(b) give notice to the relevant Debtors and Security
Providers of the sale of the relevant Mortgage Loans;
(c) give notice of the Issuer Trustee's interest in, and
title to, the relevant Mortgage Loans to any other
interested person; and
(d) require each relevant Debtor to make all payments in
respect of the relevant Mortgage Loans to the
Collections Account.
5 REPRESENTATIONS AND WARRANTIES
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GENERAL
5.1 The Depositor represents and warrants to the Issuer Trustee
that:
(a) it has been duly incorporated as a company limited by
shares in accordance with the laws of its place of
incorporation, is validly existing under those laws and
has power and authority to carry on its business as it
is now being conducted;
(b) it has power to enter into and observe its obligations
under the Transaction Documents to which it is a party
and to carry out the transactions contemplated by those
documents;
(c) each authorisation which is required in relation to:
(i) the execution, delivery and performance by it of
the Transaction Documents to which it is a party
and the transactions contemplated by those
documents,
(ii) the validity and enforceability of those
documents,
has been obtained or effected. Each is in full force
and effect. It has complied with such authorisation
and has paid all applicable fees for each of them;
(d) its obligations under the Transaction Documents to
which it is a party are valid and binding and are
enforceable against it in accordance with their terms;
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(e) the execution, delivery and performance by it of the
Transaction Documents to which it is a party does not
and will not violate in any respect any material
provision of:
(i) any law, regulation, authorisation, ruling,
consent, judgement, order or decree of any
Governmental Agency;
(ii) its constitution; or
(f) no Insolvency Event has occurred in respect of it;
(g) it does not enter into any Transaction Document in the
capacity of a trustee of any trust or settlement; and
(h) it benefits by executing each Transaction Document to
which it is a party.
REPETITION
5.2 The representations and warranties in clause 5.1 are made by
the Depositor on the date of this agreement and on the date
each offer is made pursuant to clause 2 and on the relevant
Acceptance Date for the relevant offer.
MORTGAGE PORTFOLIO
5.3 The Depositor assigns to the Issuer Trustee all of the
Depositor's right, title and interest in, to and under:
(a) the representations and warranties given to the
Depositor by the Seller under the Initial Sale
Agreement and the Initial Offer to Sell to which any
offer made under this agreement relates;
(b) the indemnities given to the Depositor by the Seller
under the Initial Sale Agreement and the Initial Offer
to Sell to which any offer made under this agreement
relates;
(c) each power of attorney granted in favour of the
Depositor by the Seller; and
(d) such other rights, protections and remedies as are
available to the Depositor under the Initial Sale
Agreement (to the extent not already covered in
paragraphs (a) and (b) above), such rights, protections
and remedies to be enforced by the Depositor at the
direction of the Issuer Trustee.
REMEDY
5.4 (a) If the Depositor or the Issuer Trustee becomes
aware within 120 days after the Closing Date
("PRESCRIBED DATE") that any representation or warranty
assigned under clause 5.3 in respect of a Mortgage Loan
is materially incorrect when made or taken to be made
(provided that if either of those parties makes such a
finding, it must give such notice with all relevant
details to the other and each Current Rating Agency
within 5 Business Days after becoming aware but in any
event not later than 5 Business Days prior to the
Prescribed Date) and the Depositor does not
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remedy the breach to the satisfaction of the Issuer
Trustee within that period of 5 Business Days or any
longer period that the Issuer Trustee permits, then
without any further action required by the Issuer
Trustee, the Issuer Trustee's interest in the Mortgage
Loan will, on the Prescribed Date, be transferred to
the Depositor. The Depositor must pay to the Issuer
Trustee the Outstanding Principal Balance of the
Housing Loan which comprises part of that Mortgage
Loan as at the Prescribed Date together with any
accrued but unpaid interest and any outstanding fees
and other amounts due as at the Prescribed Date under
such Housing Loan. The Issuer Trustee will, however,
retain all Collections received in connection with
such Housing Loan from the Acceptance Date to the
Prescribed Date.
(b) If a representation or warranty assigned under clause
5.3 in respect of a Mortgage Loan is found or is
notified by the Depositor after the Prescribed Date to
be incorrect, the Depositor must pay damages to the
Issuer Trustee for any loss suffered by the Issuer
Trustee as a result. The maximum amount which the
Depositor is liable to pay is the Outstanding Principal
Balance of the Housing Loan which comprises part of
that Mortgage Loan at the time of payment of the
damages. This is the Issuer Trustee's only remedy for a
breach of any representation and warranty which is
found after the Prescribed Date.
(c) If a breach of a representation or warranty in relation
to the Mortgage Loan occurs, the Depositor is obliged
to pay damages to the Issuer Trustee in accordance with
clause 5.4(b) within 14 Business Days of receipt of
notice from the Issuer Trustee.
6 MISCELLANEOUS
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CERTIFICATE
6.1 A certificate signed by the Issuer Trustee or its solicitors
about a matter or about a sum payable to the Issuer Trustee
in connection with a Transaction Document 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
6.2 The Issuer Trustee may exercise a right, power or remedy at
its discretion, and separately or concurrently with another
right, power or remedy. A single or partial exercise of a
right, power or remedy by the Issuer Trustee does not
prevent a further exercise of that or an exercise of any
other right, power or remedy. Failure by the Issuer Trustee
to exercise or delay in exercising a right, power or remedy
does not prevent its exercise. The Issuer Trustee is not
liable for any loss caused by the exercise or attempted
exercise of, failure to exercise, or delay in exercising the
right, power or remedy, whether or not caused by the Issuer
Trustee's negligence.
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WAIVER AND VARIATION
6.3 A provision of or a right created under this agreement may
not be waived or varied except in writing signed by the
party or parties to be bound.
SUPERVENING LEGISLATION
6.4 Any present or future legislation which operates to vary the
obligations of the Depositor in connection with this
agreement with the result that the Depositor'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
6.5 The Issuer Trustee may give conditionally or unconditionally
or withhold its approval or consent in its absolute
discretion unless this agreement expressly provides
otherwise.
REMEDIES CUMULATIVE
6.6 The rights, powers and remedies provided in this agreement
are cumulative with and not exclusive of the rights, powers
or remedies provided by law independently of this agreement.
7 NOTICES
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HOW GIVEN
7.1 A notice, approval, consent or other communication in
connection with a Transaction Document:
(a) may be given by an Authorised Person of the relevant
party;
(b) must be in writing;
(c) must be marked for the attention of the person referred
to below; and
(d) 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 or if the addressee notifies
another address facsimile number or e-mail address then
to that address, facsimile number or e-mail address.
The address, and facsimile number and e-mail address of
each party is:
THE DEPOSITOR:
Address: 7301 Baymeadows Way
Jacksonville Florida 32256
United States of America
Facsimile: 904 281 3062
Attention: General Counsel
E-mail: [email protected]
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THE ISSUER TRUSTEE:
Address: Level 3
39 Hunter Street
Sydney NSW 2000
Australia
Facsimile: 61 2 9221 7870
Attention: Manager, Securitisation
E-mail: as notified from time to time
EFFECTIVE ON RECEIPT
7.2 Unless a later time is specified in it, a notice, approval,
consent or other communication takes effect from the time it
is received.
WHEN RECEIVED
7.3 A letter or facsimile 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 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 address have been received.
However, if the time of deemed receipt of any notice is not
before 4.00 p.m. (local time at the address of the
recipient) on a Business Day it is deemed to have been
received at the commencement of business on the next
following Business Day.
8 ENCUMBRANCES AND ASSIGNMENT
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The Depositor may not, without the consent of the Issuer
Trustee, create or allow to exist an Encumbrance over or an
interest in any Transaction Document or assign or otherwise
dispose of or deal with its rights under any Transaction
Document. The Issuer Trustee at any time may do any of these
things as the Issuer Trustee sees fit provided that it
notifies the Depositor of any such action as soon as
reasonably practicable.
9 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
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GOVERNING LAW
9.1 This agreement is governed by the law in force in the
Australian Capital Territory and the rights, liabilities and
obligations of the Issuer Trustee and the Depositor are
governed by the laws in force in the Australian Capital
Territory.
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JURISDICTION
9.2 Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of the Australian
Capital Territory and courts of appeal from them. Each party
waives any right it has to object to an action being brought
in those courts including, without limitation, by claiming
that the action has been brought in an inconvenient forum or
that those courts do not have jurisdiction.
SERVICE
9.3 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 7.
10 COUNTERPARTS
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This agreement may consist of a number of counterparts and
the counterparts taken together constitute one and the same
instrument.
11 LIMITATION OF ISSUER TRUSTEE'S LIABILITY
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Clause 2 of the Definitions Schedule applies to this
agreement as if set out in full in it (with any
consequential changes as are necessary to give effect to
that clause in this agreement).
EXECUTED as an agreement.
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EXECUTION PAGE
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<S> <C> <C>
SIGNED by )
on behalf of HOMESIDE MORTGAGE SECURITIES, INC. in )
the presence of: )
)
................................................ )
Signature of witness )
)
................................................ )
Name of witness (block letters) )
)
................................................ )
Address of witness )
)
................................................ ) ................................................
Occupation of witness ) By executing this agreement the signatory
) states that the signatory has received no
) notice of revocation of the authority pursuant
) to which it executes this agreement
SIGNED 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 agreement the attorney
) states that the attorney has received no
................................................ ) notice of revocation of the power of attorney
Occupation of witness )
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