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Exhibit 4.1
HOMESIDE MORTGAGE SECURITIES TRUSTS
MASTER 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")
HOMESIDE GLOBAL MBS MANAGER, INC having an office at 7301
Baymeadows Way, Jacksonville, Florida, United States of
America ("GLOBAL TRUST MANAGER")
RECITALS:
A. It is intended by this deed to provide for the future
establishment of Trusts, in each case, upon the terms and
conditions of a Supplemental Deed.
B. Each Trust will be established for the purpose of securitising
pools of Assets that may be from time to time acquired by the
Issuer Trustee.
C. The Issuer Trustee and the Global Trust Manager have agreed to
act as trustee and manager respectively of each of the Trusts
on the terms and conditions set out in this deed.
OPERATIVE PROVISIONS:
PART A - DEFINITIONS
1 DEFINITIONS AND INTERPRETATION
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DEFINITIONS SCHEDULE
1.1 In this deed, 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
companies described in schedule 1 to that deed.
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 shall bear the same meaning in this deed.
For the avoidance of doubt, in the event of any inconsistency
between a definition in this deed and a definition in the
Definitions Schedule, the definitions in this deed will
prevail. Any amendment to the Definitions Schedule will only
apply to this deed if made in accordance with this deed.
1.3 Clauses 1.2 to 1.5 (inclusive) of the Definitions Schedule are
incorporated into this deed as if those clauses were set out
in full.
INTERPRETATION
1.4 This deed binds the Issuer Trustee, the Global Trust Manager,
the Secured Creditors of each Trust and the Unitholders of
each Trust.
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1.5 By executing this deed, the Issuer Trustee and the Global
Trust Manager agree that, unless the contrary intention
appears, terms used in any Transaction Document have the
meaning given to them in the Definitions Schedule.
PART B - TRUSTS
2 THE TRUSTS
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ISSUER TRUSTEE
2.1 Provided that its appointment has not been terminated in
accordance with this deed and the Supplemental Deed for the
relevant Trust, the Issuer Trustee is appointed and agrees to
act as the trustee of each Trust constituted pursuant to this
deed and the Notice of Creation of Trust for the relevant
Trust, with effect from the date of constitution of the
relevant Trust, on the terms and conditions contained in this
deed and the Supplemental Deed for the relevant Trust.
GLOBAL TRUST MANAGER
2.2 Provided that its appointment has not been terminated in
accordance with this deed and the Supplemental Deed for the
relevant Trust, the Global Trust Manager is appointed and
agrees to act as the manager of each Trust constituted
pursuant to this deed and the Notice of Creation of Trust for
the relevant Trust, with effect from the date of constitution
of the relevant Trust, in accordance with the terms and
conditions of this deed and the Supplemental Deed for the
relevant Trust.
DECLARATIONS OF TRUST
2.3 The Issuer Trustee declares that it will act as trustee in
respect of the Assets of each Trust and will hold the Assets
of each Trust upon the trusts and with, and subject to, the
powers and conditions contained in this deed and the
Supplemental Deed for the relevant Trust.
ASSETS VEST IN ISSUER TRUSTEE
2.4 The Assets of each Trust vest in the Issuer Trustee. The
Issuer Trustee must hold the Assets of each Trust on trust for
the relevant Unitholders and, in respect of the Secured
Creditors and the Unitholders of each Trust, the Issuer
Trustee must act in what the Issuer Trustee considers in good
faith to be in the interests of the relevant Unitholders and
the Secured Creditors as a whole, subject to this deed. The
Issuer Trustee shall not be in breach of this requirement or
any other provision of this deed if it transfers or disposes
of any Assets to any Secured Creditor or any other person in
accordance with the terms of any Transaction Document.
ASSETS TO BE KEPT SEPARATE
2.5 The Issuer Trustee must keep the Assets of each of the Trusts
separate. Each Trust is a separate and distinct trust fund
held by the Issuer Trustee on separate and distinct terms and
conditions.
SUPPLEMENTAL DEEDS
2.6 A Supplemental Deed may specify the provisions which are to
apply to that Trust in addition to the provisions of this
deed, or in place of any provision of this deed or any
provisions which are to be varied or
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deleted from this deed. The provisions contained in a
Supplemental Deed which are expressed to apply to a particular
Trust apply in relation to that Trust only. Any such
Supplemental Deed may vary or amend the terms of this deed or
provide terms in addition to those contained in this deed only
in respect of the Trust which is named in that Supplemental
Deed. Where a Supplemental Deed does vary or amend the terms
of this deed or provide terms in addition to those contained
in this deed in respect of a Trust then references in this
deed to this deed shall be deemed to be references to this
deed incorporating such variations, amendments and additions
in relation to the relevant Trust.
In the event of any conflict between the provisions of a
Supplemental Deed and any provisions in this deed, the
relevant provisions in the Supplemental Deed prevail in
respect of the Trust to which they are expressed to apply.
NAME OF TRUSTS
2.7 Each Trust will be identified by a name specified in the
relevant Supplemental Deed. The name of each Trust may be
varied from time to time by agreement between the Issuer
Trustee and the Global Trust Manager, subject to any approval
required by law.
DESIGNATION AND DISCHARGE OF LIABILITIES
2.8 The Issuer Trustee must allocate to each Trust those
Liabilities which in the opinion of the Global Trust Manager
are properly referable to that Trust. Subject to the
provisions of this deed, the Issuer Trustee must pay out of
the relevant Trust (and/or make such provision the Global
Trust Manager considers adequate for) all Liabilities in
connection with that Trust.
MIXTURE OF ASSETS
2.9 The Issuer Trustee must account for the Assets of each Trust
separately from the Assets of all other Trusts and must
account for the Liabilities of a Trust separate and apart from
the Liabilities and amounts outstanding in respect of all
other Trusts.
NO LIMIT TO NUMBER OF TRUSTS
2.10 There is no limit to the number of Trusts that may be created.
3 DURATION OF THE TRUSTS
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COMMENCEMENT
3.1 Subject to clause 2.1 and 2.2, the Global Trust Manager and
the Issuer Trustee may at any time constitute a Trust by
lodging with the Issuer Trustee:
(a) a Notice of Creation of Trust, substantially in the form
set out in Schedule 1, or such other form as may be
agreed from time to time by the Issuer Trustee and the
Global Trust Manager which relates to that Trust; and
(b) the sum of $10 to constitute the initial Assets of the
Trust.
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TERMINATION
3.2 A Trust terminates on the earliest of:
(a) the date which is 80 years after that Trust's date of
constitution;
(b) the date on which that Trust is terminated under this
deed or the Supplemental Deed for that Trust or by law;
and
(c) following the occurrence of an Event of Default in
respect of that Trust, the date on which the Security
Trustee has notified the Issuer Trustee in writing that
it has enforced the Deed of Charge in respect of that
Trust and has distributed all of the amounts which it is
required to distribute under the Master Security Trust
Deed for that Trust.
3.3 At any time after the date that all the Notes issued in
respect of a Trust have been redeemed in accordance with this
deed and any other Secured Creditors paid in full, the Global
Trust Manager may notify the Issuer Trustee and the
Unitholders of that Trust in writing that the Trust is to be
terminated. The Trust terminates upon receipt of that notice
by the Issuer Trustee.
PROCEDURE
3.4 On termination, and subject to the terms of the Supplemental
Deed for the Trust, the Issuer Trustee must realise the Assets
of the Trust. This must be completed in 180 days if practical
and in any event as soon as possible after that.
FINAL DISTRIBUTION
3.5 The net proceeds of realisation, after discharging or
providing for all Liabilities of a Trust (including any
contingent or potential liabilities) in accordance with this
deed and meeting the expenses (including anticipated expenses)
of termination, must be distributed by the Issuer Trustee to
the Unitholders of the Trust in accordance with the
Supplemental Deed for that Trust.
4 INTEREST OF UNITHOLDERS
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ENTITLEMENT TO A TRUST
4.1 The beneficial interest in each Trust will be constituted by
the issue of:
(a) one or more Residual Capital Units; and
(b) one or more Residual Income Units,
of that Trust in accordance with the relevant Supplemental
Deed. The beneficial interest of each Trust is vested in the
Residual Capital Unitholders and the Residual Income
Unitholders of that Trust in accordance with this deed and
that relevant Supplemental Deed.
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4.2 The rights and interests of the Residual Income Unitholders
and the Residual Capital Unitholders in respect of a Trust
will be determined in accordance with the relevant
Supplemental Deed.
RESTRICTIONS
4.3 No Unitholder 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 this
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 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 Unitholder from:
(i) exercising its rights in connection with any Transaction
Document;
(ii) taking proceedings to obtain an injunction or other
order to restrain any breach of any Transaction
Document; or
(iii) taking proceedings to obtain declaratory relief in
relation to any Transaction Document.
RANKING
4.4 The rights, claim and interest of the Unitholders of a Trust
at all times rank after, and are subject to, the interests of
the Secured Creditors of that Trust including, without
limitation, in relation to any payment obligations in respect
of the Notes of the Trust.
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PART C - ASSETS
5 TRANSFERS BETWEEN TRUSTS
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POWER
5.1 The Issuer Trustee, as trustee of a Trust, has power to
acquire or dispose of Mortgage Loans in accordance with this
deed and the Supplemental Deed relating to that Trust.
DIRECTION BY GLOBAL TRUST MANAGER
5.2 The Global Trust Manager may, from time to time, direct the
Issuer Trustee (in such form as may be agreed between the
Issuer Trustee and the Global Trust Manager) to:
(a) acquire Mortgage Loans from another Trust (in this
clause 5, the "TRANSFEROR TRUST") in its capacity as
trustee of a Trust (in this clause 5, the "TRANSFEREE
TRUST") in accordance with the Supplemental Deeds for
the Transferor Trust and for the Transferee Trust using
the proceeds of Borrowings of the Transferee Trust
and/or other funds available to that Transferee Trust;
or
(b) dispose of Mortgage Loans to the purchaser of the
Mortgage Loans (in this clause 5, the "RELEVANT
ACQUIRER"),
by delivering a Receivables Transfer Direction to the Issuer
Trustee.
REQUIRED INFORMATION
5.3 Any Receivables Transfer Direction given to the Issuer Trustee
in accordance with clause 5.2 must comply with the
requirements of this deed and the relevant Supplemental Deeds
and include all relevant details relating to:
(a) the Relevant Acquirer;
(b) the Transferor Trust and the Transferee Trust;
(c) the Mortgage Loans subject to the direction;
(d) the Cut-Off Date and the Closing Date for the Housing
Loans referable to the relevant Mortgage Loans;
(e) the amount and source of the Borrowings to be raised to
enable the Issuer Trustee to acquire the Mortgage Loans
(where applicable) or, if not a Borrowing, the source of
funds; and
(f) the purchase price (or its method of calculation).
CONDITIONS TO ACCEPTANCE
5.4 The Issuer Trustee will not act on a Receivables Transfer
Direction unless the direction complies with the requirements
of clause 5.3 of this deed and any other requirements
specified in the relevant Supplemental Deeds.
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5.5 If the Issuer Trustee accepts a Receivables Transfer Direction
under clause 5.2, the Global Trust Manager shall do everything
reasonably necessary to enable the Issuer Trustee to implement
the direction.
EFFECT OF ACCEPTANCE
5.6 If the Issuer Trustee complies with a Receivables Transfer
Direction under clause 5.2 to acquire Mortgage Loans, it shall
(acting on the direction of the Global Trust Manager):
(a) in its capacity as trustee of the Transferee Trust:
(i) pay the purchase price specified in the
Receivables Transfer Direction to acquire the
relevant Mortgage Loans; and
(ii) acquire the relevant Mortgage Loans; and
(b) in its capacity as trustee of the Transferor Trust, do
all such things as may be required to dispose of its
right, title and interest in, to and under the relevant
Mortgage Loans to the Transferee Trust in the manner
contemplated by the Receivables Transfer Directions,
and otherwise comply with the Receivables Transfer Direction.
TRANSFERS
5.7 A transfer shall take place under a Receivables Transfer
Direction, or by such other method as the Issuer Trustee and
the Global Trust Manager may determine or as required in a
Transaction Document.
5.8 Upon payment of the purchase price (specified in the
Receivables Transfer Direction and as adjusted in accordance
with the terms of the sale):
(a) by the Issuer Trustee as trustee of the Transferee
Trust, the Issuer Trustee as trustee of the Transferee
Trust will hold automatically, by virtue of this deed
and without any further act or instrument or other thing
being done or brought into existence, the benefit of all
Mortgage Loans of that Trust transferred to it by the
Issuer Trustee as trustee of the Transferor Trust
(together with the benefit of all Support Facilities and
Derivative Contracts which the Issuer Trustee and the
Global Trust Manager agree are to be transferred, and
all other rights and entitlements relating to the
relevant Mortgage Loans); or
(b) by the Relevant Acquirer, the Issuer Trustee as trustee
of the Transferor Trust will treat the Mortgage Loans as
having been repaid in full by that payment.
5.9 The Receivables Transfer Direction or other method of transfer
(as the case may be) may, if so agreed between the Issuer
Trustee and the Global Trust Manager, provide:
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(a) that the Issuer Trustee shall give for the benefit of
the Transferee Trust specified representations,
warranties and undertakings in relation to the Mortgage
Loans; and
(b) for the effect of any breach of a representation,
warranty or undertaking referred to in paragraph (a).
TRANSFER OF RIGHTS
5.10 When Mortgage Loans are transferred from a Trust, the rights
and benefits of the Issuer Trustee in its capacity as trustee
of the Transferor Trust, and the rights of indemnity or
reimbursement of the Issuer Trustee in its capacity as trustee
of the Transferor Trust in respect of the Mortgage Loans
(including, without limitation, any representation, warranty,
covenant or undertaking in favour of that party) are also
transferred, with effect from the date of transfer, for the
benefit of the Transferee Trust.
ADJUSTMENTS
5.11 Following a transfer of Mortgage Loans from a Trust to any
person (including, without limitation, another Trust), the
Global Trust Manager shall calculate, and notify the Issuer
Trustee of, and the Issuer Trustee shall pay, the amount of
any Accrued Interest Adjustment relating to those Housing
Loans that may be due from one Trust to another Trust or other
person at any time in accordance with the provisions (if any)
of the relevant Supplemental Deeds or the relevant Receivables
Transfer Direction (as the case may be).
6 TITLE PERFECTION EVENT IN RESPECT OF A TRUST
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EVENT
6.1 If the Issuer Trustee has notice that a Title Perfection Event
has occurred and is subsisting in respect of a Trust, the
Issuer Trustee must notify the Seller, the Servicer, the
Global Trust Manager and each Current Rating Agency that a
Title Perfection Event has occurred and, unless each Current
Rating Agency confirms in writing within 10 Business Days of
receipt of that notice to the Issuer Trustee, the Global Trust
Manager and the Servicer that the failure to protect the
Issuer Trustee's title to the Mortgage Loans in accordance
with clause 6.2 will not have an Adverse Rating Effect, the
Issuer Trustee must declare that a Title Perfection Event has
occurred in respect of that Trust. The Global Trust Manager
must notify the Issuer Trustee immediately after becoming
aware that a Title Perfection Event has occurred.
PERFECTION OF TITLE
6.2 Trustee in accordance with clause 6.1 in respect of a relevant
Trust, the Issuer Trustee and the Global Trust Manager 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:
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(a) the execution (where necessary, executed under a Power
of Attorney) and lodgement 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 its 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 Housing Loans to the Collections
Account or as otherwise directed by the Issuer Trustee.
POWER OF ATTORNEY
6.3 The Issuer Trustee must only use a Power of Attorney granted
to it in respect of a Trust in the manner contemplated by
clause 6.2, if it has declared that a Title Perfection Event
has occurred in accordance with clause 6.1
ISSUER TRUSTEE TO HOLD LEGAL TITLE OR LODGE CAVEATS
6.4 If the Issuer Trustee does not hold the Mortgage Title
Documents necessary to vest fully and effectively in the
Issuer Trustee the Seller's legal right, title and interest in
and to any Mortgage in relation to a Housing Loan that is part
of the Assets of the Trust, the Issuer Trustee must, as soon
as is practicable in the circumstances after the Issuer
Trustee is aware of the occurrence of the Title Perfection
Event in respect of a Trust, either have commenced to take all
necessary steps to protect the Issuer Trustee's interest in,
and title to, each Mortgage which comprises an Asset of that
Trust or have lodged or entered a caveat or similar instrument
in respect of the Issuer Trustee's interest in the Land
subject to each Mortgage which comprises an Asset of that
Trust.
OTHER SECURED LIABILITIES
6.5 Following a declaration in accordance with clause 6.1 in
respect of a Trust, the Issuer Trustee must continue to hold
its interest in the Seller Trust Assets (if any) which relate
to that Trust in accordance with the relevant Supplemental
Deed.
7 INVESTMENT
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GLOBAL TRUST MANAGER'S ROLE
7.1 The moneys comprised in a Trust must be invested only in
Assets of that Trust. The Global Trust Manager must ensure
that sufficient Assets of each Trust are in Cash to enable the
Issuer Trustee to give effect to the Global Trust Manager's
decisions. The Issuer Trustee must not acquire or dispose of
any Asset of a Trust except as directed by the Global Trust
Manager until the Trust terminates, provided that the Issuer
Trustee is entitled to deal with Assets as it considers
appropriate to satisfy any liability for which it is entitled
to be indemnified and for which it may be personally liable.
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DIRECTIONS
7.2 (a) The Global Trust Manager must give the Issuer
Trustee directions in writing for the investment of any
of the Assets of a Trust in Mortgage Loans or Authorised
Investments and as to the purchase, sale, transfer,
exchange or alteration of any Mortgage Loans or
Authorised Investments. A direction of this type must
identify the Mortgage Loans or Authorised Investments
and the steps that the Global Trust Manager directs that
the Issuer Trustee take in relation to it. The Issuer
Trustee must exercise any voting rights in respect of
Mortgage Loans or Authorised Investments in such manner
as the Global Trust Manager directs from time to time.
(b) It shall be the role of the Issuer Trustee to give
effect to all directions and proposals of the Global
Trust Manager as are communicated by the Global Trust
Manager to the Issuer Trustee in accordance with this
clause 7, but the Global Trust Manager may not give any
direction or proposal to the Issuer Trustee which
conflicts with the terms of the Trust, including the
Supplemental Deed for that Trust.
CONTINGENCIES
7.3 If an investment proposed by the Global Trust Manager involves
the Issuer Trustee incurring:
(a) any material liability as trustee of the Trust (in the
reasonable opinion of the Issuer Trustee); or
(b) any additional liability that may exceed the Net Assets
of the Trust,
then the Global Trust Manager must not give a direction to the
Issuer Trustee to invest any of the Assets unless the Global
Trust Manager reasonably believes that there will be no
Adverse Rating Effect in respect of the Trust and the Issuer
Trustee need not give effect to the Global Trust Manager's
direction unless the Issuer Trustee's liability (other than
its liability as trustee of the Trust) is limited in a manner
which the Issuer Trustee considers satisfactory provided the
Issuer Trustee must notify the Global Trust Manager if it is
not so satisfied as soon as practicable but in any event
within 5 Business Days (or such other period as is agreed
between the Issuer Trustee and the Global Trust Manager) of
receiving a copy of such details as the Issuer Trustee may
reasonably require (as compiled by the Global Trust Manager)
of the proposed investment.
7.4 Subject to clause 7.6, the Global Trust Manager shall from
time to time give to the Issuer Trustee of a Trust a proposal
for an investment in property which is to constitute Assets of
that Trust and for the sale, transfer or other realisation of
or dealing with the Assets of that Trust. Each proposal must:
(a) be in writing in a form agreed between the Issuer
Trustee and the Global Trust Manager;
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(b) specify the Assets to be purchased, sold, transferred or
originated;
(c) specify the action (if any) to be taken by the Issuer
Trustee to give effect to it;
(d) contain a certification by the Global Trust Manager that
the giving effect to the proposal by the Issuer Trustee
will be in accordance with this deed;
(e) specify the price to be paid for the Asset or, in the
case of a loan to be made by or financial accommodation
to be provided to the Issuer Trustee, the amount of the
loan or the accommodation;
(f) specify to whom any amount is payable under paragraph
(e), or if an Asset is to be acquired from a Trust, the
name of that Trust; and
(g) contain all other information which the Issuer Trustee
may reasonably require to satisfy itself that the
certification is correct and to give effect to the
proposal.
DISCRETION OF GLOBAL TRUST MANAGER
7.5 The Global Trust Manager shall have the fullest discretion to
recommend in the proposal the time and mode of and the broker,
contractor or agent (if any) to be engaged in the
implementation of the proposal including the right to
recommend a postponement for so long as the Global Trust
Manager in its discretion shall think fit.
ISSUER TRUSTEE TO ACT
7.6 Subject to this deed, on receipt of any written proposal by
the Global Trust Manager under clause 7.4, the Issuer Trustee:
(a) must comply with that proposal in accordance with this
deed unless the Issuer Trustee considers that it would
be illegal for the Issuer Trustee to do so, would
constitute a breach of any fiduciary duty in respect of
the Trust or of any document, agreement or law or would
result in the Issuer Trustee's exposure to a risk of
personal liability where the Issuer Trustee is not
satisfied (acting reasonably) that it will be adequately
indemnified or reimbursed for any cost, expense, loss or
liability which it will or may incur as a result of
complying with such proposal; and
(b) may rely upon the recommendations and advice of the
Global Trust Manager with respect to any such proposal,
without being under a duty to make any inquiries or to
make any assessments or judgment in relation to:
(i) the merits of the proposal; or
(ii) whether the proposed investment is an Authorised
Investment or is otherwise permitted under or
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complies with this deed. Subject to this deed, the
Issuer Trustee must not make or acquire an
investment if it knows that it is not an
Authorised Investment or that it does not comply
with this deed.
PART D - BORROWINGS
8 BORROWINGS
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BORROWINGS
8.1 Subject to the provisions of this deed and the relevant
Supplemental Deed, the Issuer Trustee, at the written request
of the Global Trust Manager (in the form agreed between the
Issuer Trustee and the Global Trust Manager from time to
time), and in respect of a Trust, must Borrow in accordance
with this deed and the relevant Supplemental Deed for the
purpose of, or ancillary to, the investment in Assets or to
enable the Issuer Trustee to continue to fund its holding in
that investment. The Global Trust Manager will not instruct
the Issuer Trustee to make a Borrowing in respect of a Trust
if the Borrowing would, in the Global Trust Manager's
reasonable opinion, have an Adverse Rating Effect in respect
of that Trust.
TYPES OF BORROWINGS
8.2 A Borrowing (other than under a Derivative Contract) in
respect of a Trust may only take the form of:
(a) an issue of Notes in accordance with this deed, the
relevant Supplemental Deed, the Master Security Trust
Deed, the relevant Deed of Charge and the relevant Note
Trust Deed, if applicable;
(b) a drawdown under a relevant Support Facility; or
(c) any other Borrowing which is at all times subordinated
to, and subject to, the interests of the Secured
Creditors in respect of the Trust (and entered into with
the recourse of the creditor being limited to the funds
available to the Issuer Trustee at any time after
satisfaction of all other Liabilities).
GLOBAL TRUST MANAGER TO SELECT METHOD
8.3 The Global Trust Manager must, by notice in writing to the
Issuer Trustee, select the method of Borrowing in accordance
with clause 8.2 to be undertaken by the Issuer Trustee. If the
Borrowing takes the form referred to in clause 8.2(c) the
Global Trust Manager must notify the Issuer Trustee in writing
of the form of that Borrowing, the total amount of that
Borrowing and the terms and conditions relating to it (which
must be in accordance with the terms of the Transaction
Documents and acceptable to the Issuer Trustee, acting
reasonably).
SECURITY
8.4 The Issuer Trustee may (but is not obliged to) secure the
repayment or payment of any Borrowings referred to in clause
8.2(c) and interest, costs and other charges and expenses in
connection with such Borrowings, upon terms and conditions
determined by the Global
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Trust Manager in writing including, without limitation, giving
a negative pledge or by giving any form of security over all
or any of the Assets of the relevant Trust provided that the
Borrowing and interest, costs and other charges and expenses
in connection with such Borrowing remains subordinated in the
manner described in paragraph 8.2(c).
SUPPLEMENTAL DEED
8.5 Where the Borrowing takes the form of an issue of Notes, the
Supplemental Deed for the relevant Trust must (where relevant)
provide for, amongst other things, the following:
(a) the designation of the Notes for that Trust;
(b) the initial principal amount, Interest Rate, authorised
denominations and maturity of each Class of Notes for
that Trust;
(c) the method for calculating the amount of interest and
principal to be paid to each Class of Notes;
(d) the timing and order of priority of interest and
principal payments;
(e) any applicable redemption features; and
(f) distribution dates and interest accrual periods.
DEBT OF THE ISSUER TRUSTEE
8.6 Subject to this deed, each Note will represent a debt of the
Issuer Trustee as trustee of the relevant Trust and will be
repaid or redeemed in accordance with its terms of issue. The
Issuer Trustee acknowledges its indebtedness in relation to
each such Note.
LOCATION OF NOTES
8.7 For Registered Notes, the property in the Notes is regarded as
situated at the place where the Register on which those
Registered Notes are recorded is located.
PURPOSE OF BORROWINGS
8.8 the proceeds of a Borrowing:
(a) to purchase, refinance or otherwise invest in, Assets
referable to that Trust;
(b) to make payments of amounts due and payable in respect
of Notes previously issued by the Issuer Trustee in
respect of that Trust;
(c) to make payments of amounts due and payable in respect
of any Support Facility, Derivative Contract or any
other Borrowings referable to that Trust; or
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(d) otherwise in accordance with this deed or any other
Transaction Document including, without limitation,
discharging Liabilities in respect of that Trust for
which the Issuer Trustee has or will have a right of
reimbursement out of the Assets of that Trust.
GLOBAL TRUST MANAGER'S POWER
8.9 Where a Borrowing takes the form of an issue of Notes, the
Global Trust Manager has the power to:
(a) negotiate the terms and conditions of the issue of the
Notes;
(b) accept the terms and conditions of the issue of the
Notes with any person managing or arranging the issue of
the Notes and bind the Issuer Trustee to the issue of
the Notes on those terms and conditions; and
(c) direct the Issuer Trustee to issue the Notes on those
terms and conditions.
However, the Global Trust Manager's power to act and bind the
Issuer Trustee in accordance with this clause is conditional
on the Issuer Trustee being satisfied (in its reasonable
discretion) with the terms and conditions of the issue of the
Notes, including the terms and conditions dealing with the
personal liability of the Issuer Trustee. The Issuer Trustee
must notify the Global Trust Manager if it is not satisfied
with the terms and conditions dealing with the personal
liability of the Issuer Trustee within 5 Business Days (or
such other period as is agreed between the Issuer Trustee and
the Global Trust Manager) of receiving a copy of the terms and
conditions of the issue (other than commercial information to
be completed on or about the date of issue) and any other
relevant Transaction Documents in connection with the issue.
NO LIABILITY ATTACHES TO THE GLOBAL TRUST MANAGER
8.10 The Global Trust Manager shall not be liable in any way to
meet any moneys payable by the Issuer Trustee in its capacity
as trustee of any Trust to a Noteholder, or to any other
person, with respect to the preparation and service of an
Issue Notice on the Issuer Trustee, the certifications in such
an Issue Notice or the issue of any Notes.
9 CONDITIONS PRECEDENT TO ISSUE OF NOTES
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ISSUE NOTICE
9.1 The Global Trust Manager must prepare an Issue Notice
(substantially in the form of Schedule 3) and deliver it to
the Issuer Trustee no later than 2 Business Days (or such
other period as the Global Trust Manager and the Issuer
Trustee may agree) before the proposed Issue Date for the
issue of any Notes.
CONDITIONS PRECEDENT TO ISSUE
9.2 The Issuer Trustee must not issue any Notes in relation to a
Trust on an Issue Date unless:
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(a) the Global Trust Manager has directed the Issuer Trustee
to issue the Notes. The Issuer Trustee may rely on the
direction of the Global Trust Manager to issue Notes
without enquiry;
(b) the Issuer Trustee has granted a charge to the Security
Trustee over the Assets of that Trust by executing a
Deed of Charge for the benefit of the Secured Creditors
of that Trust;
(c) on or before the second Business Day before the Issue
Date (or such other period as the Issuer Trustee and
Global Trust Manager may agree), the Global Trust
Manager has provided an Issue Notice for that Trust to
the Issuer Trustee;
(d) the relevant Trust has been constituted according to
this deed and the relevant Supplemental Deed; and
(e) any other conditions precedent to the issuing of the
Notes on that Issue Date referred to in the relevant
Supplemental Deed have been satisfied.
CONDITIONS PRECEDENT TO DIRECTION TO ISSUE
9.3 The Global Trust Manager will not direct the Issuer Trustee to
issue Notes unless:
(a) clause 9.2 has been complied with;
(b) such documentation as the Global Trust Manager regards
as being reasonably necessary for the issue, sale and
distribution of the Notes has been entered into;
(c) it is not actually aware that an Insolvency Event has
occurred in respect of the Issuer Trustee in its
personal capacity or in its capacity as trustee of the
Trust to which the Notes relate; and
(d) any other conditions precedent to the Global Trust
Manager directing the Issuer Trustee to issue Notes
referred to in the relevant Supplemental Deed are
satisfied.
10 TERMS OF ISSUE OF NOTES
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CHARACTERISTICS
10.1 The Notes will have the characteristics specified in the
relevant Supplemental Deed and, in the case of Bearer Notes,
the relevant Note Trust Deed (including the Conditions).
EXCLUDED OFFER OR ISSUE
10.2 The Global Trust Manager must not issue a direction to the
Issuer Trustee pursuant to clause 9.2(a) unless the Global
Trust Manager:
(a) is satisfied that any offer for the issue, or any
invitation to apply for the issue, of:
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(i) the Notes:
(A) is an offer of securities for issue, or is
an invitation to apply for the issue of
securities, which does not need disclosure
to investors under Part 6D.2 of Chapter 6 of
the Corporations Law; and
(B) is made pursuant to an exemption from, or is
not subject to, the registration
requirements of the Exchange Act; or
(ii) at the time the direction is issued, the Notes
comply with:
(A) the Financial Services Act, 1986 (United
Kingdom), all regulations made under or in
relation to that Act and the Public Offers
of Securities Regulations 1995;
(B) the Exchange Act, all regulations made
thereunder and all other laws or regulations
of any jurisdiction of the United States of
America regulating the offer or the issue
of, or the subscription for, the Notes; and
(C) any other relevant laws.
SUBSCRIPTIONS BY OTHER PERSONS
10.3 Subscriptions for Notes must be made in the manner agreed
between the Global Trust Manager and the Issuer Trustee. Upon
receipt of a duly completed subscription form (if required),
completion of any other procedures determined by the Global
Trust Manager and receipt of the Issue Price for the Notes,
the Issuer Trustee must as soon as practicable after an Issue
Date for a Trust and subject to this deed:
(a) issue the Notes in accordance with the relevant Issue
Notice;
(b) where the Notes are Registered Notes, issue an
Acknowledgment to the subscriber in respect of the
Notes;
(c) where the Notes are Registered Notes, enter the relevant
information in respect of the Notes into the Register;
and
(d) where the Notes are Bearer Notes, issue those Bearer
Notes in accordance with the Note Trust Deed and the
Supplemental Deed for the relevant Trust.
NO LIABILITY
10.4 Notwithstanding any other provision of this deed or any
Transaction Document, in no circumstances will the Issuer
Trustee or the Global Trust Manager be obliged to issue or
procure the issue of a Note if the Issuer Trustee has not
received payment in full of the Issue Price in cleared funds
(or as otherwise agreed between the Global Trust
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Manager and the Issuer Trustee) for the Note. If insufficient
moneys are raised on a proposed Issue Date for their intended
purpose in accordance with this deed, neither the Issuer
Trustee nor the Global Trust Manager shall have any obligation
or liability to any person (including, without limitation, to
each other or any intending Noteholder) to issue the Notes or
incur any other liability for any costs, loss or liabilities
incurred in connection with the failure to issue the Notes
other than the obligation to return any subscription moneys
received on the Issue Date unless the failure to raise the
necessary moneys was caused by its own negligence, fraud or
breach of trust (in the case of the Issuer Trustee) or
material breach of obligation (in the case of the Global Trust
Manager).
TERMS OF NOTES
10.5 All Notes issued by the Issuer Trustee as trustee of a Trust
shall be issued with the benefit of, and subject to, this
deed, the relevant Supplemental Deed, the Master Security
Trust Deed, the relevant Deed of Charge and, in the case of
Bearer Notes, the relevant Note Trust Deed. Each such document
in relation to a Trust is binding on the Global Trust Manager,
the Issuer Trustee and each Secured Creditor in respect of
that Trust.
ACKNOWLEDGMENT OF INDEBTEDNESS
10.6 Subject to the terms of this deed and the Supplemental Deed
for the relevant Trust:
(a) each entry in the Register for the Trust in respect of a
Registered Note relating to the Trust; and
(b) in relation to each Bearer Note relating to the Trust,
that Bearer Note,
constitutes an independent and separate acknowledgment to the
relevant Noteholders or Note Owners, as the case may be, by
the Issuer Trustee of its indebtedness as trustee of the Trust
for the Invested Amount of that Note together with the other
rights given to Noteholders and the Note Owners under this
deed, the Supplemental Deed for the relevant Trust, the Master
Security Trust Deed, the Deed of Charge in respect of the
relevant Trust and (in relation to a Bearer Note) the Note
Trust Deed and the Conditions for the relevant Trust.
11 SUPPORT AND OTHER FACILITIES
================================================================================
FACILITIES
11.1 The Issuer Trustee shall, in relation to any Trust, on the
prior direction of the Global Trust Manager, enter into any
Support Facility or Derivative Contract on such terms and
conditions as are reasonably required by the Global Trust
Manager provided the Issuer Trustee is satisfied (in its
reasonable discretion) with the terms and conditions dealing
with the personal liability of the Issuer Trustee (the Issuer
Trustee must notify the Global Trust Manager if not so
satisfied as soon as practicable but in any event within 5
Business Days (or such other period as is agreed between the
Issuer Trustee and the Global
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Trust Manager) of receiving a copy of the terms and conditions
of the relevant facility and any other Transaction Documents
in connection with the relevant facility).
RATED ISSUES
11.2 Clauses 11.3 to 11.5 shall only apply with respect to a Trust
if Notes in respect of that Trust have been, or are to be
rated by a Current Rating Agency.
MANAGER'S DIRECTION
11.3 The Global Trust Manager shall (subject to this deed):
(a) direct the Issuer Trustee that each Support Facility or
Derivative Contract for the benefit of the Trust must be
taken out or executed with a person having at that time
the Required Credit Rating (if required by a Current
Rating Agency); and
(b) take, or direct the Issuer Trustee to take, such other
action as may be necessary to satisfy the requirements
of the Current Rating Agency with respect to the
relevant Support Facility or Derivative Contract in
relation to that Trust.
REPLACEMENT OR ADDITIONAL FACILITIES
11.4 Any Support Facility or Derivative Contract for the benefit of
a Trust shall, subject to this deed, be entered into by the
Issuer Trustee on or prior to the Issue Date in relation to
any Notes in respect of that Trust provided that, the Issuer
Trustee may, at the direction of the Global Trust Manager:
(a) enter into a new Support Facility or Derivative Contract
as trustee of a Trust after the Issue Date if, and only
if, the Global Trust Manager has received written
confirmation from the Current Rating Agency that
entering into the Support Facility or Derivative
Contract will not result in a downgrading of any rating
assigned to any Notes issued in respect of that Trust;
or
(b) substitute a new Support Facility or Derivative Contract
for any existing Support Facility or Derivative Contract
(respectively) entered into in accordance with this
clause 11.4 if, and only if, the Global Trust Manager
considers it to be in the interests of that Trust and
the Global Trust Manager has received confirmation from
the Current Rating Agency that the new Support Facility
or Derivative Contract will not result in a downgrading
of any rating assigned to any Notes issued in respect of
that Trust.
REDUCTION IN RATING
11.5 If a person providing a Support Facility or Derivative
Contract to the Issuer Trustee as trustee of a Trust ceases to
have the Required Credit Rating (if a Current Rating Agency
requires it to have a Required Credit Rating) and a Current
Rating Agency has downgraded, or has indicated that it
proposes to downgrade, its rating of the Notes, the Issuer
Trustee must, if directed by the Global Trust Manager (in its
absolute discretion) and subject to this deed:
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(a) enter into any substitute or additional Support Facility
or Derivative Contract identified by the Global Trust
Manager, on such terms as are reasonably required by the
Global Trust Manager; or
(b) take such other action as may be required by the Current
Rating Agency,
to maintain the rating of those Notes as it stood prior to
such downgrading or proposed downgrading of the rating of the
Notes.
PART E - ISSUER TRUSTEE
12 ISSUER TRUSTEE
================================================================================
POWERS
12.1 Subject to the relevant Supplemental Deed in respect of a
Trust, the Issuer Trustee has all the powers in respect of a
Trust that it is legally possible for a natural person or
corporation to have and as though it were the absolute owner
of the Assets of the relevant Trust and acting in its personal
capacity. For example, the Issuer Trustee has power to borrow
(whether or not on security) and to incur all types of
obligations and liabilities (including, without limitation,
Borrowings under clause 8.2).
Without affecting the generality of the above, the Issuer
Trustee has the following powers (to be construed as separate
and independent powers of the Issuer Trustee):
(a) to invest in, acquire or dispose, or otherwise deal with
Mortgage Loans;
(b) to invest in or deal with any other Asset for cash or
upon terms;
(c) to pay all fees payable under the Transaction Documents
and all expenses which are properly incurred in respect
of a Trust;
(d) to borrow and raise moneys as provided in the
Transaction Documents;
(e) subject to this deed, to borrow, raise money or procure
financial accommodation where the Issuer Trustee
considers the same to be in the interests of a Trust
upon such terms as the Global Trust Manager thinks fit
and that are acceptable to the Issuer Trustee (acting
reasonably);
(f) to exercise any power of sale arising on default under
any Housing Loan or any other right or remedy accruing
in respect of a Trust in relation to any asset or under
the Transaction Documents;
(g) to grant any form of discharge, release or partial
discharge or release of any Housing Loan and provide any
type of financial
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accommodation in connection with any Housing Loan where
to do so is in the opinion of the Issuer Trustee not
prejudicial to the Secured Creditors of a Trust;
(h) to enter into and perform its obligations under the
Transaction Documents containing such terms and
conditions as the Global Trust Manager thinks fit and
that are acceptable to the Issuer Trustee (acting
reasonably);
(i) to enter into Support Facilities and Derivative
Contracts;
(j) to enter into any agreement or do anything in connection
with a Trust, such as dealing with the assets over which
security is held, engaging advisers and to execute
proxies and other instruments;
(k) to enter into any document giving effect to a priority
arrangement between the Issuer Trustee (in relation to a
Housing Loan) and another provider of financial
accommodation which will take or has taken security over
the asset which is subject to a Mortgage or a Collateral
Security;
(l) to pay amounts required to remove any lien or charge
over any Assets to permit the Issuer Trustee to deal
with that Asset in accordance with the relevant
Supplemental Deed and any Transaction Document of the
relevant Trust;
(m) to fetter its future discretions in accordance with the
Transaction Documents;
(n) to lodge Bearer Notes, or arrange for Bearer Notes to be
lodged, with a Depository;
(o) to convert currencies on such terms and conditions as
the Global Trust Manager thinks fit and that are
acceptable to the Issuer Trustee (acting reasonably);
(p) to list and maintain the listing of the Bearer Notes on
any stock exchange;
(q) to appoint a Note Trustee, Note Registrar and Agent Bank
in respect of a relevant Trust;
(r) to appoint Paying Agents in respect of a relevant Trust;
and
(s) to appoint the Servicer in respect of a Trust to retain
custody of the Mortgage Title Documents of that Trust in
accordance with the Servicing Agreement and to lodge
such Mortgage Title Documents with such Servicer.
INTERESTS OF SECURED CREDITORS PARAMOUNT
12.2 The Issuer Trustee agrees to, and each Unitholder acknowledges
that the Issuer Trustee will, subject to the provisions of
this deed, exercise its powers in what the Issuer Trustee
considers in good faith to be in
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the interests of the Unitholders and the Secured Creditors in
respect of each Trust as a whole. In the event of any conflict
between those interests, the Issuer Trustee must, subject to
the provisions of this deed, exercise its powers in what the
Issuer Trustee considers in good faith to be in the interests
of the Secured Creditors in respect of the Trust as a whole.
Nothing in this clause limits the rights of the Issuer Trustee
against any Secured Creditor.
DELEGATION
12.3 The Issuer Trustee may, with the consent of the Global Trust
Manager (such consent not to be unreasonably withheld),
authorise any person or persons to act as its delegate (in the
case of a joint appointment, either severally or jointly and
severally) to perform its functions under any Transaction
Document including to hold title to any Asset, perform any act
or obligation or exercise any discretion within the Issuer
Trustee's power (including the power to sub-delegate). The
authorisation must be written. The Issuer Trustee remains
liable for the acts or omissions of a delegate except where
the Issuer Trustee has acted in good faith and without
negligence or breach of trust in relation to the appointment
of the delegate. However, the Issuer Trustee may include
provisions to protect and assist those dealing with the
delegate in the authorisation as the Issuer Trustee thinks
fit. The delegate may be a Related Entity of the Global Trust
Manager or the Issuer Trustee.
INDEMNITY
12.4 The Issuer Trustee is entitled to be indemnified out of the
Assets of a Trust to the extent of those Assets for any
liability incurred by the Issuer Trustee in performing or
exercising any of its powers or duties in relation to the
Trust. This indemnity is in addition to any indemnity allowed
by law, but does not extend to liabilities to the extent
arising from the Issuer Trustee's fraud, negligence or breach
of trust.
ACT ON EXPERT ADVICE
12.5 The Issuer Trustee may obtain and act on the written opinion,
advice or information obtained from Valuers, solicitors,
barristers, legal practitioners, surveyors, contractors,
brokers, qualified advisers (whether financial or otherwise),
accountants and other experts or consultants whether
instructed by the Global Trust Manager or the Issuer Trustee
which the Issuer Trustee considers are necessary, usual or
desirable for the purpose of enabling the Issuer Trustee to be
fully and properly advised and informed in order that it may
properly exercise its powers and obligations under this deed.
ISSUER TRUSTEE'S COVENANTS
12.6 The Issuer Trustee covenants with the Global Trust Manager,
with the intent that the benefit of these covenants enures not
only to the Global Trust Manager but also to the Unitholder
and the relevant Secured Creditors jointly and each of them
severally that it will, in respect of each Trust:
(a) act continuously as trustee of the Trust until the Trust
is terminated in accordance with this deed or until it
has retired or been removed in accordance with this
deed;
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(b) exercise all due diligence and vigilance in carrying out
its functions and duties under this deed;
(c) take all such corporate actions which are necessary to
ensure that it is able to exercise all its powers and
remedies and perform all its obligations under this deed
and all other deeds, agreements and other arrangements
entered into by the Issuer Trustee under this deed;
(d) except where required by statute or by law, not sell,
mortgage, charge or deal with the Assets of the Trust
(or permit any of its officers to do so) except as
permitted by the Transaction Documents relating to that
Trust;
(e) forward promptly to the Global Trust Manager all
notices, reports, circulars and other documents received
by it as holder of the Assets;
(f) act honestly and in good faith in the performance of its
duties and the exercise of its discretions under this
deed;
(g) exercise such diligence and prudence as a prudent man of
business would exercise in performing its express
functions and in exercising its discretions under this
deed, subject to the provisions of this deed, having
regard to the interests of the Unitholders, and the
Secured Creditors of the Trust as a whole;
(h) use its best endeavours to carry on and conduct its
business insofar as it relates to this deed in a proper
and efficient manner;
(i) except as permitted by the Transaction Documents, and
without prejudice to the Issuer Trustee's right of
indemnity or reimbursement under this deed, it will not
give any guarantees or incur or raise any financial
indebtedness (other than in respect of trade creditors
in the ordinary course of business of the relevant
Trust) in respect of the Trust other than the Notes
issued in respect of that Trust or the Borrowings
entered into in respect of that Trust;
(j) not terminate the obligations of any person under the
Transaction Documents in respect of the Trust to which
the Issuer Trustee is a party except in the manner
contemplated by the relevant Transaction Document;
(k) not, in its capacity as trustee of the Trust, conduct
any business other than the business permitted under the
Transaction Documents for that Trust;
(l) subject to this deed and the other Transaction Documents
of the Trust, keep each Trust separate from the others
and not mix or commingle the Assets of the Trust with
the assets or property of any other Trust or any other
person;
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(m) maintain an arms' length relationship with its Related
Entities in relation to dealings affecting the Trust;
(n) not create any Security Interest over the Assets of the
Trust for the benefit of any person except as permitted
by the Transaction Documents for that Trust;
(o) except in the manner contemplated by the Transaction
Documents, not terminate the Trust, transfer or deal
with the Assets of the Trust or agree to the merger of
the Trust with any other person or entity until all of
the Borrowings raised in respect of the Trust have been
repaid in full;
(p) maintain a register of Authorised Investments and other
Assets of that Trust; and
(q) keep (or ensure that the Global Trust Manager keeps, in
which case the Issuer Trustee will provide the Global
Trust Manager with copies of all relevant documents in
its possession or control for such purpose) accounting
records which correctly record and explain all amounts
paid and received by the Issuer Trustee on behalf of
each Trust.
ISSUER TRUSTEE'S INDEMNITY FROM ASSETS
12.7 In respect of each Trust, and without limitation to the terms
of any Transaction Document, the right of the Issuer Trustee
to be exonerated or indemnified for its liability in respect
of all amounts owing by the Issuer Trustee in its capacity as
trustee of a Trust shall be limited to the Assets comprising
that Trust from time to time available to meet such liability
in accordance with this deed. This limitation will not apply
to any obligation or liability of the Issuer Trustee to the
extent that it is not satisfied because under a Transaction
Document or by operation of law there is a reduction in the
extent of the Issuer Trustee's indemnification out of the
Assets of the applicable Trust as a result of the Issuer
Trustee's fraud, negligence or breach of trust.
LIMITATION OF LIABILITY OF ISSUER TRUSTEE
12.8 The Issuer Trustee is not liable:
(a) in connection with anything done by it in good faith in
reliance upon any document, form or list except when it
has reasonable grounds to believe that the document,
form or list is not genuine;
(b) if it fails to do anything because it is prevented or
hindered from doing it by law or order;
(c) to anyone for payments (except when made negligently)
made by it in good faith to a Governmental Authority in
connection with Taxes (including Taxes assessed on the
income of a Trust) or other charges in respect of a
Trust even if the payment need not have been made;
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(d) if a person fails to carry out an agreement with the
Issuer Trustee in connection with any Trust, except to
the extent the failure is due to the Issuer Trustee's
fraud, negligence or breach of trust; or
(e) to anyone because of any error of law or any matter done
or omitted to be done by it in good faith in the event
of the liquidation or dissolution of a corporation
(other than a corporation under its Control).
12.9 If the Issuer Trustee relies in good faith on a written
opinion, advice, information or statement given to it by a
person referred to in clause 12.5, it is not liable for any
misconduct, mistake, oversight, error of judgment,
forgetfulness or want of prudence on the part of that person
except when the person is not independent from the Global
Trust Manager (where the Issuer Trustee has actual notice of
that relationship) or the Issuer Trustee. A person is regarded
as independent notwithstanding that the person acts or has
acted as an adviser to the Global Trust Manager or the Issuer
Trustee or both of them.
12.10 The Issuer Trustee is not liable:
(a) for any loss, costs, liabilities or expenses arising out
of the exercise or non-exercise of its discretions under
this deed or otherwise in respect of a Trust;
(b) for any loss, costs, liabilities or expenses arising out
of the exercise or non-exercise of a discretion on the
part of the Global Trust Manager;
(c) for any loss, costs, liabilities or expenses caused by
the Issuer Trustee's failure to check any calculation,
information, document, form or list supplied or
purported to be supplied to it by the Global Trust
Manager under this deed, under any Transaction Document
or a Borrowing, or any other person;
(d) for any loss, costs, liabilities or expenses caused by
its acting on any instruction or direction given to it
by the Global Trust Manager or by any person in
accordance with the terms of any Transaction Document or
a Borrowing or failure by the Global Trust Manager or
other person to give such an instruction or direction
when required to do so by a Transaction Document or
Borrowing;
(e) for any other act or omission on its part except where
the act or omission is fraudulent, negligent or in
breach of trust;
(f) to the Unitholder or the Secured Creditors of a Trust
other than to the extent of the Issuer Trustee's right
of indemnity in respect of that Trust;
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(g) to make any payment to the Unitholder or the Secured
Creditors of a Trust except out of funds held by it for
that purpose under this deed in respect of that Trust;
(h) for any Global Trust Manager's Default or any other
failure by the Global Trust Manager or other person
providing services or selling assets to or in respect of
a Trust to perform their obligations under or in
connection with a Trust or a Transaction Document; or
(i) for having acted upon:
(i) any resolution purporting to have been passed at
any meeting of Noteholders in respect of which
minutes have been made and signed; or
(ii) any purposed direction, consent or approval of
Noteholders,
even though it may subsequently be found that there was
some defect in the constitution of that meeting, the
passing of that resolution or the giving of the
direction, consent or approval (as the case may be) or
that for any reason that resolution, direction, consent
or approval is not valid or binding upon Noteholders,
except, in all cases, to the extent such loss, cost, liability
or expense is caused by the Issuer Trustee's own negligence,
fraud or breach of trust.
DEALING WITH INSTRUMENTS
12.11 The Issuer Trustee and the Global Trust Manager are not
required to take any action relating to a transfer or other
dealing with any Unit or any Note unless the relevant
Unitholder or Noteholder has first paid in cash all Taxes,
brokerage, transfer fees, registration fees and other charges
which may be payable in respect of the transaction or dealing.
PROCEEDINGS IN RESPECT OF A TRUST
12.12 (a) The Issuer Trustee may institute, prosecute, defend
or otherwise appear in any action, suit or other
proceeding in any court or tribunal in respect of any
matters touching or concerning a Trust, any Asset or any
Transaction Document including an enforcement,
contemplated enforcement of, preservation of rights
under, initiation, carriage and settlement of any court
proceedings in respect of the Trust, any Asset or a
Transaction Document. All costs, disbursements and
expenses incurred by the Issuer Trustee or the Global
Trust Manager in anticipation of or in connection with
any such action, suit or proceeding and all costs and
disbursements incurred by the Issuer Trustee or the
Global Trust Manager in obtaining any legal advice or
opinions concerning such action, suit or proceeding or
relating to the interpretation or construction of this
deed are to be deducted from and paid out of the
relevant Trust, provided that:
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(i) the basis of incurring any of those costs,
disbursements and expenses by the Issuer Trustee:
(A) is approved by the Global Trust Manager or
an Extraordinary Resolution at a meeting of
the Voting Secured Creditors of the relevant
Trust; or
(B) is regarded by the Issuer Trustee as
necessary to protect the interests of the
Voting Secured Creditors in relation to the
Trust following a breach by the Global Trust
Manager of its obligations under this deed
and the Issuer Trustee reasonably believes
that any delay in seeking an approval under
paragraph (A) may be prejudicial to the
interests of the Voting Secured Creditors in
relation to the Trust or the Issuer Trustee;
or
(ii) the Issuer Trustee considers the incurring of
those costs, disbursements and expenses to be
desirable to protect the Issuer Trustee against
potential personal liability.
(b) Each of the Issuer Trustee and the Global Trust Manager
shall be entitled to claim in respect of the
indemnities, stipulated in clauses 12.4 and 14.10
respectively, from the relevant Trust for its expenses
and liabilities incurred in defending any action, suit,
proceeding or dispute in which fraud, negligence or
material breach of obligations (in the case of the
Global Trust Manager only) or fraud, negligence or
breach of trust (in the case of the Issuer Trustee only)
is alleged or claimed against it. However, on the same
being proved, accepted or admitted by it, it shall from
its personal assets immediately repay to that Trust the
amount previously paid by that Trust to it in respect of
that indemnity to the extent that it relates to the
fraud, negligence or a material breach of obligations
(in the case of the Global Trust Manager only) or fraud,
negligence or breach of trust (in the case of the Issuer
Trustee only).
LIMITATION OF ISSUER TRUSTEE'S LIABILITY
12.13 Notwithstanding any other provision of this deed, the Issuer
Trustee is not obliged to execute or do or omit to do anything
(including any instrument), enter into any agreement or incur
any obligation in connection with a Trust (including, without
limitation, in connection with Borrowings of any kind) unless
the Issuer Trustee has received independent legal advice (if
required by the Issuer Trustee) in relation to the act,
omission, instrument, agreement, obligation or liability and
unless the Issuer Trustee's liability in connection with the
act, omission, instrument, agreement, obligation or liability
is limited in a manner satisfactory to the Issuer Trustee.
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ISSUER TRUSTEE'S RELIANCE
12.14 The Issuer Trustee is entitled to conclusively rely on (unless
actually aware to the contrary), and is not required to
investigate the accuracy of:
(a) the contents of any notice, report, certificate,
statements, representations or warranties made or given
by any party other than itself pursuant to this deed,
any Issue Notice or direction from the Global Trust
Manager provided in accordance with the Transaction
Documents;
(b) any calculations made by the Global Trust Manager under
any Transaction Document including, without limitation,
the calculation of amounts to be paid to, or charged
against, the Secured Creditors of the relevant Trust and
the Unitholders; or
(c) the amount of, or allocation of, collections or other
receipts received by a Trust,
and the Issuer Trustee is not liable to any person in any
manner whatsoever in respect of all such matters.
NO LIABILITY FOR NON-PAYMENT
12.15 Except in the case of and to the extent of fraud, negligence
or breach of trust on the part of the Issuer Trustee, the
Issuer Trustee is not liable for any losses, costs,
liabilities or claims in the event of a failure to pay moneys
on the due date for payment for any loss howsoever arising in
respect of a Trust to the Secured Creditors of the relevant
Trust or the Unitholder or any other person.
ISSUER TRUSTEE NO OTHER DUTIES
12.16 The Issuer Trustee in respect of a Trust only has the
obligations which are expressly set out in this deed, the
relevant Supplemental Deed and the other Transaction Documents
for the relevant Trust.
GLOBAL TRUST MANAGER'S ACTIONS
12.17 The Global Trust Manager shall take such action as is
consistent with its powers under this deed and shall give all
necessary instructions and directions to assist the Issuer
Trustee to perform its obligations under this deed and the
other Transaction Documents.
USE OF CLEARING SYSTEM
12.18 The Issuer Trustee is entitled to exercise any of its powers
and perform any of its obligations under this deed (including
the holding of Assets and the payment and receipt of money)
through or in conjunction with any recognised clearing system.
NO SUPERVISION OR INVESTIGATION
12.19 Except as expressly set out in this deed and the other
Transaction Documents, the Issuer Trustee has no obligation to
supervise the Global Trust Manager or any other party or take
any action to investigate the accounts, management, control or
activities of the Global Trust Manager or any other person.
The Issuer Trustee has no
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duty, and is under no obligation, to investigate whether any
of the following has occurred in relation to a Trust (except
where the Issuer Trustee has actual notice):
(a) Global Trust Manager's Default;
(b) Servicer Termination Event; or
(c) Title Perfection Event.
INFORMATION
12.20 Except as expressly required by this deed and the other
Transaction Documents, the Issuer Trustee has no duty to
provide any person (including any Secured Creditor) with any
credit or any other information concerning the affairs,
financial condition or business of a Trust.
INFORMATION MEMORANDUM
12.21 (a) The Issuer Trustee has no responsibility for (and
will have no liability to any person, including the
Unitholders and the Secured Creditors), in respect of
any statement or information in or omission from any
information memorandum, advertisement, circular or other
document prepared by the Global Trust Manager, the
Seller or any other person, including in connection with
the issue of Notes. Without prejudice to the foregoing,
the Global Trust Manager must not publish or permit to
be published any such document in connection with the
offer of Notes or an invitation for subscriptions for
Notes without the prior consent of the Issuer Trustee,
which consent must not be unreasonably withheld. In
considering whether to give its consent, the Issuer
Trustee is not required to review any such document or
take into account the interests of the Unitholders or
the Secured Creditors or any other person except that
the Issuer Trustee must not withhold its consent if it
has not reviewed the relevant document (provided the
Issuer Trustee has been granted 5 Business Days (or such
other period as is agreed between the Issuer Trustee and
the Global Trust Manager) to review the relevant
document and seek any appropriate advice under clause
12.5).
(b) The Issuer Trustee must not, except with the prior
consent of the Global Trust Manager, prepare or
circulate any statement, information or other document
in connection with the issue of Notes.
ISSUER TRUSTEE DECISIONS
12.22 In the event of any dispute, ambiguity or doubt as to the
construction or enforceability of this deed or of any other
Transaction Document, or of the Issuer Trustee's powers or
obligations under or in connection with this deed or any other
Transaction Document, or the determination or calculation of
any amount or thing under or for the purpose of this deed or
any other Transaction Document, the Issuer Trustee may (but
will have no obligation to):
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(a) obtain and rely on advice from any person referred to in
clause 12.5; and/or
(b) apply to a court or similar body for any direction or
order the Issuer Trustee considers appropriate,
and provided the Issuer Trustee is using reasonable endeavours
to resolve such ambiguity, dispute or doubt, the Issuer
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, ambiguity or
doubt.
LIABILITY FOR TRANSACTION DOCUMENTS
12.23 The Issuer Trustee has no responsibility for the form or
contents of this deed or any other Transaction Document and
will have no personal liability (including in respect of
negligence) 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. Nothing in this
clause limits the Issuer Trustee's representations and
warranties as to the enforceability of its obligations against
it under the Transaction Documents.
REPRESENTATIONS AND WARRANTIES
12.24 The Issuer Trustee represents and warrants to the Global Trust
Manager that:
(a) it has been duly incorporated as a company limited by
shares in accordance with the laws of the place of its
incorporation, is validly existing under those
respective 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 this deed and the Transaction Documents to which
it is a party;
(c) it has in full force and effect the authorisations
necessary to authorise its execution, delivery and
performance of this deed and the Transaction Documents
to which it is a party, observe obligations under them
and allow them to be enforced, and has filed all
necessary returns with the Australian Securities and
Investments Commission;
(d) its obligations under this deed and the Transaction
Documents to which it is a party are valid, binding and
enforceable against it in accordance with their terms
subject to registration (where required), the payment of
any necessary stamp duty and laws and defences generally
affecting creditor's rights and the availability of
equitable remedies; and
(e) no Issuer Trustee Default continues unremedied.
12.25 The representations and warranties in clause 12.24 are made on
the date of this deed and on each date Notes are issued in
respect of a Trust after the date of this deed.
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BREACH OF CONSUMER CREDIT LEGISLATION
12.26 Where the Issuer Trustee is held liable for breaches under the
Consumer Credit Code, the Issuer Trustee must seek relief
initially under any indemnities provided to it by the Global
Trust Manager, the Seller or the Servicer before exercising
its right to recover against any Assets of a Trust. Only after
any claim being made under all such indemnities is not
satisfied within 3 Business Days of it being made, the Issuer
Trustee is entitled to exercise its right of indemnity out of
the Assets of the relevant Trust.
13 ISSUER TRUSTEE'S RETIREMENT
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NOTICE FROM GLOBAL TRUST MANAGER
13.1 The Global Trust Manager may, by written notice, require the
Issuer Trustee to retire if it reasonably believes that an
Issuer Trustee Default has occurred.
ISSUER TRUSTEE'S MANDATORY RETIREMENT
13.2 The Issuer Trustee must retire as trustee of a Trust when
required to do so by the Global Trust Manager under clause
13.1.
REMOVAL
13.3 If the Issuer Trustee refuses to retire within 30 days of
being required to do so under clause 13.1 or 13.2, the Global
Trust Manager is entitled to remove the Issuer Trustee from
office immediately by notice in writing.
NEW ISSUER TRUSTEE
13.4 Upon the retirement or removal of the Issuer Trustee under
clauses 13.1, 13.2 or 13.3, the Global Trust Manager may
appoint a replacement trustee by deed if that appointment will
not, in the reasonable opinion of the Global Trust Manager,
materially prejudice the interests of Noteholders. The
appointment is not complete until the new trustee executes a
deed by which it covenants to be bound by this deed. Until the
appointment of any replacement trustee is complete, the Global
Trust Manager must act as trustee (subject to the law) in
accordance with this deed. The Global Trust Manager will be
entitled to the Issuer Trustee's fee for the period it so acts
as Issuer Trustee.
ISSUER TRUSTEE'S VOLUNTARY RETIREMENT
13.5 The Issuer Trustee may retire by giving 3 months' notice in
writing to the Global Trust Manager or such period as the
Global Trust Manager and the Issuer Trustee may agree.
13.6 The purported retirement of the Issuer Trustee under clause
13.5 and the purported appointment of a new trustee has no
effect until the new trustee executes a deed under which it
covenants to act as trustee in accordance with this deed. Such
a new trustee may be appointed by the Global Trust Manager at
any time after receipt of the notice referred to in clause
13.5. If the Global Trust Manager fails to appoint a new
trustee within 60 days of the receipt of the notice referred
to in clause 13.5 then the Issuer Trustee may appoint a new
trustee provided
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that each Current Rating Agency has confirmed that the
appointment of such person as the new trustee will not have an
Adverse Rating Effect in relation to any Trust.
RELEASE
13.7 When it retires or is removed, the Issuer Trustee is released
from all obligations in relation to the Trust arising after
the date it retires or is removed except that the Issuer
Trustee is still obliged, at the cost of the Trust, to vest
the Assets in the new trustee (or the Global Trust Manager if
the Global Trust Manager is acting as trustee) and to promptly
deliver all books and records (including computer records to
the extent and in the form the Issuer Trustee is able to
deliver them) relating to the Trust to the new trustee (or to
the Global Trust Manager if the Global Trust Manager is acting
as trustee). The Issuer Trustee agrees to co-operate with the
new Trustee (or the Global Trust Manager if it is acting as
Issuer Trustee) in the transfer of the books and records. The
retiring Issuer Trustee may make it a condition of vesting
Assets in the new trustee (or the Global Trust Manager, if the
Global Trust Manager is acting as trustee) that all
liabilities of the retiring Issuer Trustee for which it is
entitled to be indemnified and for which it may be personally
liable are first satisfied or provided for to the satisfaction
of the retiring Issuer Trustee. Removal, retirement or
discharge of the Issuer Trustee will not affect the rights or
indemnities available to it under this deed or at law in
relation to the performance by the Issuer Trustee of its
obligations and powers as trustee.
SETTLEMENT OF AMOUNTS
13.8 The Global Trust Manager may settle with the Issuer Trustee
the amount of any sums payable by the Issuer Trustee to the
Global Trust Manager or by the Global Trust Manager to the
Issuer Trustee and may give to or accept from the Issuer
Trustee a discharge in respect of those sums which is then
conclusive and binding as between the Issuer Trustee and the
Global Trust Manager.
COSTS
13.9 The Issuer Trustee will bear the reasonable costs of its
removal if it is removed because of an Issuer Trustee Default.
The Issuer 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.
13.10 Any delegation made by the Issuer Trustee under clause 12.3 in
respect of a Trust will automatically terminate if the Issuer
Trustee retires, or is removed, in accordance with this clause
13 in respect of that Trust.
PART F - GLOBAL TRUST MANAGER
14 GLOBAL TRUST MANAGER
================================================================================
POWERS
14.1 The Global Trust Manager must (subject to the Transaction
Documents for a Trust) manage each Trust until it retires or
is removed. This power extends to the management of the Assets
(other
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than the Mortgage Loans) and Liabilities of each Trust, and
excludes the Issuer Trustee from management except as set out
in this deed.
MANAGER TO HAVE DISCRETION
14.2 Subject to this deed, the Global Trust Manager has absolute
discretion with respect to all the powers, authorities and
discretions vested in it whether or not in relation to the
manner or time of exercise.
SERVICES
14.3 Without limiting any other provision of this deed, the Global
Trust Manager agrees to perform and provide the following
services to the Issuer Trustee in respect of each Trust:
(a) to prepare and maintain all accounts, ledgers and
financial records and reports in respect of the Trust
and the tax returns of the Trust;
(b) to prepare and deliver (by facsimile or such other
method as the Global Trust Manager may consider
appropriate) such statements and reports as may be
required to be prepared and delivered by the Global
Trust Manager under the Transaction Documents for that
Trust;
(c) to calculate the amount of each payment to each Secured
Creditor in accordance with the provisions of the
Transaction Documents and advise the Issuer Trustee of
such amount of each payment;
(d) to notify the Issuer Trustee immediately if:
(i) it becomes actually aware of a material breach of
a Transaction Document;
(ii) it becomes actually aware that a representation or
warranty in a Transaction Document was incorrect
when made; or
(iii) it becomes actually aware of the occurrence of a
Global Trust Manager's Default,
provided that the Global Trust Manager is not
responsible or liable to investigate (except in the case
of manifest error);
(e) subject to the terms of the Transaction Documents and
any confidentiality undertakings to which the Global
Trust Manager is subject, to provide the Issuer Trustee,
in a timely manner (having regard to the information
requested) the information reasonably requested by the
Issuer Trustee in connection with the Trust. The costs
and expenses of the Global Trust Manager in connection
with providing such information will fall within the
indemnity referred to in clause 14.10;
(f) the co-ordination of Borrowings of the Trust;
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(g) subject to the appointment of any Servicer, the
management of Mortgage Loans, Authorised Investments and
any Support Facilities and Derivative Contracts required
to be established and maintained pursuant to the
Supplemental Deed of that Trust; and
(h) the calculation of all determinations to be made on each
Determination Date and of all payments to be made on
each Payment Date in accordance with the Supplemental
Deed of that Trust.
DELEGATION
14.4 The Global Trust Manager may, pursuant to a Deed of Delegation
or otherwise, authorise any person or persons to act as its
delegate (in the case of a joint appointment, either severally
or jointly and severally) to perform any or all of its
functions in respect of a Trust or under any Transaction
Document in respect of a Trust, to perform any act or exercise
any discretion within the Global Trust Manager's power
(including the power to sub-delegate). The Global Trust
Manager remains liable for the performance of all of its
obligations under this deed notwithstanding any such
appointment.
The delegate may be a Related Entity of the Global Trust
Manager or the Issuer Trustee.
ACT ON EXPERT ADVICE
14.5 The Global Trust Manager may obtain and act upon the written
opinion, advice or information obtained from Valuers,
barristers, solicitors, legal practitioners, contractors,
brokers, qualified advisers (both financial and otherwise) and
other experts whether instructed by the Global Trust Manager
or by the Issuer Trustee.
NO POWER TO BIND ISSUER TRUSTEE
14.6 The Global Trust Manager acknowledges that in exercising its
powers, authorities and discretions vested in it and carrying
out and performing its duties and obligations in relation to
any Trust or any Asset, whether under this deed or under any
Transaction Document, neither it nor its delegate has any
power to bind the Issuer Trustee, otherwise than as expressly
provided in this deed or such other Transaction Document, or
with the express authority of the Issuer Trustee.
GLOBAL TRUST MANAGER'S COVENANTS
14.7 The Global Trust Manager covenants with the Issuer Trustee in
respect of each Trust that it will, until the Trust is
terminated in accordance with this deed and winding up of the
Trust is completed or until it has retired or been removed in
accordance with this deed:
(a) use its best endeavours to carry on and conduct its
business to which its obligations and functions under
this deed relate, in a proper and efficient manner;
(b) manage the Trust;
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(c) act honestly and in good faith in the performance of its
duties and in the exercise of its discretions under this
deed;
(d) make available for inspection by the Issuer Trustee and
the Auditor during normal business hours and after the
receipt of reasonable notice, the books of the Global
Trust Manager relating to the Trust;
(e) give to the Issuer Trustee and the Auditor written or
oral information which either may reasonably require
with respect to all matters in possession of the Global
Trust Manager relating to the Assets or the Trust;
(f) pay to the Issuer Trustee within two Business Days of
becoming actually aware of receipt of money that is
payable by the Global Trust Manager to the Issuer
Trustee under this deed;
(g) within two Business Days of each 30 June and 31 December
and within two Business Days of a request (there being
no more than two such requests in each calender year)
from the Issuer Trustee, provide to the Issuer Trustee a
certificate signed by two Authorised Persons of the
Global Trust Manager stating that, as at that date, to
the best of the Global Trust Manager's knowledge,
information and belief no Global Trust Manager's Default
is subsisting;
(h) not release any Assets of any Trust to any party except
in accordance with the provisions of this deed and with
the prior written permission of the Issuer Trustee;
(i) not merge or consolidate into another entity, unless the
surviving entity assumes the obligations of the Global
Trust Manager under the Transaction Documents;
(j) make any filings required in connection with the Trust
or the Assets with any Governmental Agency except any
filings that the Issuer Trustee is required to make in
relation to its capacity as trustee of the Trust;
(k) keep all accounting records which correctly record all
amounts paid and received in connection with the
relevant Trust by the Issuer Trustee (to the extent that
the Issuer Trustee has notified the Global Trust Manager
of them) and by the Global Trust Manager;
(l) take all such corporate actions which are necessary to
ensure that it is able to exercise all its powers and
remedies and perform all its obligations under this deed
and all other deeds, agreements and other arrangements
entered into by the Global Trust Manager under this
deed;
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(m) not direct the Issuer Trustee to act if the Global Trust
Manager is aware that that direction could reasonably be
expected to have an Adverse Rating Effect;
(n) prepare and submit to the Issuer Trustee for signing and
filing on a timely basis all income Tax returns or
elections required to be filed with respect to the Trust
and ensure that the Issuer Trustee is directed to pay
any Taxes (including Taxes assessed on the income of the
Trust, it being acknowledged however that the Issuer
Trustee and the Global Trust Manager will cooperate to
use their best endeavours to ensure that no such Tax
falls due) required to be paid by the Trust;
(o) notify the Issuer Trustee and the Current Rating Agency
as soon as practicable after becoming aware that a Title
Perfection Event or a Global Trust Manager's Default has
occurred;
(p) deliver to the Note Trustee (with a copy to the Issuer
Trustee) at least annually a written statement
certifying to the best of its knowledge the Issuer
Trustee's fulfilment of its obligations under the
Transaction Documents for each Trust; and
(q) obtain and maintain any licences that it is required to
obtain and maintain in order to perform its material
obligations as Global Trust Manager under the
Transaction Documents for each Trust.
FURTHER LIMITATION OF LIABILITY OF GLOBAL TRUST MANAGER
14.8 If the Global Trust Manager relies in good faith on a written
opinion, advice, information or statement given to it by a
person referred to in clause 14.5, it is not liable for any
misconduct, mistake, oversight, error of judgment,
forgetfulness or want of prudence on the part of that person
except when the person is not independent from the Global
Trust Manager. A person will be regarded as independent
notwithstanding that:
(a) the person acts or has acted as adviser to the Global
Trust Manager or the Issuer Trustee or both of them so
long as separate instructions are given by the Global
Trust Manager to that person; or
(b) the person is a Related Entity of the Global Trust
Manager or the Issuer Trustee.
GLOBAL TRUST MANAGER LIABLE
14.9 The Global Trust Manager is not liable:
(a) for any loss, costs, liabilities or expenses arising out
of the exercise or non-exercise of its discretions under
this deed or otherwise in respect of a Trust;
(b) for any loss, costs, liabilities or expenses arising out
of the exercise or non-exercise of a discretion on the
part of the
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Issuer Trustee or any act, omission, misconduct,
mistake, oversight, error of judgment, forgetfulness or
want of prudence on the part of the Issuer Trustee or
other person providing services or selling assets to or
in respect of a Trust;
(c) for any loss, costs, liabilities or expenses caused by
its failure to check any calculation, information,
document, form or list supplied or purported to be
supplied to it by the Issuer Trustee or any other
person;
(d) for any other act or omission, misconduct, mistake,
oversight, error of judgment, forgetfulness or want of
prudence on its part;
(e) for any default by the Issuer Trustee or any other
failure by the Issuer Trustee or other person providing
services or selling assets to or in respect of a Trust
to perform their obligations under or in connection with
a Trust or a Transaction Document; or
(f) for any failure to pay any moneys on the due date for
payment of such moneys to the Secured Creditors of the
relevant Trust or any other person,
except, in all cases, to the extent that such loss, cost,
liability or expense is caused by the Global Trust Manager's
fraud, negligence, or material breach of obligation under this
deed.
INDEMNITY
14.10 The Global Trust Manager is indemnified out of the Assets of a
Trust in respect of any liability, cost or expense (other than
general overhead costs and expenses) properly incurred by it
in its capacity as Global Trust Manager of the Trust.
REPRESENTATIONS AND WARRANTIES
14.11 The Global Trust Manager 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 the place of its
incorporation, is validly existing under those
respective 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 this deed and the Transaction Documents to which
it is a party;
(c) it has in full force and effect the authorisations
necessary to authorise its execution, delivery and
performance of this deed and the Transaction Documents
to which it is a party, observe obligations under them
and allow them to be enforced, and has filed all
necessary returns with the Australian Securities &
Investments Commission;
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(d) its obligations under this deed and the Transaction
Documents to which it is a party are valid, binding and
enforceable against it in accordance with their terms
subject to the payment of any necessary stamp duty and
laws and defences generally affecting creditor's rights;
(e) no Global Trust Manager's Default continues unremedied;
and
(f) it does not enter into this deed or any Transaction
Document in the capacity of a trustee of any trust or
settlement other than where the Global Trust Manager
acts as Issuer Trustee under clause 13.4 or as Security
Trustee under the Deed of Charge.
14.12 The representations and warranties in clause 14.11 are made on
the date of this deed and on each date Notes are issued in
respect of a Trust after the date of this deed.
LIMITATION OF LIABILITY OF GLOBAL TRUST MANAGER
14.13 The Global Trust Manager is not liable:
(a) in connection with anything done by it in good faith in
reliance upon any document, form or list except when it
has reasonable grounds to believe that the document,
form or list is not genuine;
(b) if it fails to do anything because it is prevented or
hindered from doing it by law or order;
(c) to anyone for payments (except when made negligently)
made by it in good faith to a Governmental Agency in
connection with Taxes (including Taxes assessed on the
income of a Trust) or other charges in respect of a
Trust even if the payment need not have been made;
(d) if a person fails to carry out an agreement with the
Global Trust Manager in connection with any Trust,
except when the failure is due to the Global Trust
Manager's fraud, negligence or material breach of
obligation;
(e) to anyone because of any error of law or any matter done
or omitted to be done by it in good faith in the event
of the liquidation or dissolution of a corporation
(other than a corporation under its Control); or
(f) except to the extent expressly provided for in a
Transaction Document, to indemnify the Issuer Trustee or
make any payments to any other person in relation to the
Trusts except that there will be no limit on the Global
Trust Manager's liability for any fraud, negligence or
material breach of obligation by it in its capacity as
Global Trust Manager of the Trusts.
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NO LIABILITY FOR NON-PAYMENT
14.14 Except in the case of and to the extent of fraud, negligence
or material breach of obligation on the part of the Global
Trust Manager, the Global Trust Manager is not liable in the
event of a failure to pay moneys on the due date for payment
for any loss howsoever arising in respect of a Trust to the
Secured Creditors of the relevant Trust or the Unitholders or
any other person.
REPORTING
14.15 In respect of a Trust, the Global Trust Manager will on or
about each Determination Date send:
(a) to the Issuer Trustee, the Paying Agents and the Note
Trustee, the Reporting Statement; and
(b) to the Current Rating Agencies, such information as they
reasonably require,
unless otherwise specified in the relevant Supplemental Deed.
15 GLOBAL TRUST MANAGER'S RETIREMENT
================================================================================
GLOBAL TRUST MANAGER'S DEFAULT
15.1 The Issuer Trustee may, by written notice, require the Global
Trust Manager to retire if it reasonably believes that a
Global Trust Manager's Default has occurred.
GLOBAL TRUST MANAGER'S MANDATORY RETIREMENT
15.2 The Global Trust Manager must retire as Global Trust Manager
of a Trust when required to do so by the Issuer Trustee under
clause 15.1.
REMOVAL
15.3 Upon the occurrence of, or at any time after, a Global Trust
Manager's Default (of which the Issuer Trustee has actual
notice and which has not been waived by the Issuer Trustee),
the Issuer Trustee must, upon giving written notice to the
Global Trust Manager and each Current Rating Agency for that
Trust, immediately terminate the rights and obligations of the
Global Trust Manager in respect of each relevant Trust and
appoint another entity acceptable to the Current Rating Agency
to act in its place.
RETIREMENT
15.4 The Global Trust Manager may retire from the management of all
of the Trusts upon giving 3 months written notice to the
Issuer Trustee (or such other period as the Global Trust
Manager and the Issuer Trustee may agree).
NEW GLOBAL TRUST MANAGER
15.5 Upon the retirement or removal of the Global Trust Manager
under clauses 15.1, 15.2, 15.3 and 15.4, the Global Trust
Manager must (as soon as practicable) appoint in writing
another corporation to be the manager of the Trust, subject to
the approval of the Issuer Trustee and any approval required
by law provided that the appointment will not,
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in the reasonable opinion of the Issuer Trustee, materially
prejudice the interests of the Noteholders. If the Global
Trust Manager does not propose a replacement at least 30 days
before the Global Trust Manager proposes to retire or the
Issuer Trustee does not approve of the replacement proposed by
the Global Trust Manager, the Issuer Trustee may appoint a new
manager as of the date of the proposed retirement. An
appointment is not complete until the new manager executes a
deed by which it covenants to be bound by this deed. The
appointment of the replacement manager must not cause an
Adverse Rating Effect.
ISSUER TRUSTEE ACT AS GLOBAL TRUST MANAGER
15.6 Until the appointment of any replacement manager is complete,
the Issuer Trustee must (subject to any approval required by
law) act as Global Trust Manager in accordance with this deed.
For so long as it so acts, the Issuer Trustee is entitled to
the fee which, but for its removal, the Global Trust Manager
would have been entitled to receive.
RELEASE
15.7 When it retires or is removed, the Global Trust Manager is
released from all obligations in relation to each Trust
arising after the date of its retirement or removal except
that the Global Trust Manager is still obliged to promptly
deliver all books and records (including computer records to
the extent and in the form the Global Trust Manager is able to
deliver them) relating to the Trust in the Global Trust
Manager's possession or control as at the date of retirement
to the new Global Trust Manager (or the Issuer Trustee if it
is acting as Global Trust Manager). The Global Trust Manager
agrees to co-operate with the new Global Trust Manager (or the
Issuer Trustee if it is acting as Global Trust Manager) in the
transfer of the books and records. The Issuer Trustee may
settle with the Global Trust Manager the amount of any sums
payable by the Global Trust Manager to the Issuer Trustee or
the Issuer Trustee to the Global Trust Manager and may give to
or accept from the Global Trust Manager a discharge in respect
of those sums which will be conclusive and binding as between
the Issuer Trustee and the Global Trust Manager.
CHANGE IN TERMS OF APPOINTMENT
15.8 No change in the terms and conditions of appointment of the
Global Trust Manager may be made without the approval of the
Issuer Trustee which approval may not be unreasonably
withheld.
COSTS
15.9 The Global Trust Manager will bear the reasonable costs of its
removal if it is removed because of a Global Trust Manager's
Default. The Global Trust Manager will indemnify the Issuer
Trustee and each Trust for these costs.
15.10 Any delegation made by the Global Trust Manager under clause
14.4 in respect of a Trust will automatically terminate if the
Global Trust Manager retires, or is removed, in accordance
with this clause in respect of that Trust.
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PART G - OTHER
16 TRANSFER AND TRANSMISSION OF NOTES
================================================================================
NO RESTRICTION ON TRANSFER
Subject to the relevant Supplemental Deed, there is no
restriction on the transfer of Notes for a Trust. The relevant
Supplemental Deed regulates the transfer and transmission of
Notes for a Trust.
17 REGISTER OF NOTEHOLDERS
================================================================================
REGISTER OF NOTEHOLDERS
The Issuer Trustee shall keep an up to date Register in
respect of the Registered Notes only, and in accordance with
Schedule 6 to this deed and the relevant Supplemental Deed.
The Register may be maintained in electronic form. The Issuer
Trustee will procure that a register be maintained with
respect to any Bearer Notes in accordance with the Note Trust
Deed for the relevant Trust, if any.
18 MEETINGS OF NOTEHOLDERS
================================================================================
18.1 Any proposal requiring the consent of holders of Bearer Notes
of a Trust will be determined in accordance with the Note
Trust Deed for that Trust. Any proposal requiring the consent
of the holders of Registered Notes of a Trust will be
determined in accordance with this deed and the Supplemental
Deed for that Trust.
18.2 In respect of Registered Notes, the Issuer Trustee, the Global
Trust Manager and each Noteholder must comply with the
contents of Schedule 4 in relation to the meetings of
Noteholders. Subject to clause 18.3, Schedule 4 does not apply
to Bearer Notes.
18.3 The procedure for convening a meeting at which all Noteholders
are entitled to participate is set out in Schedule 4, amended
as follows:
(a) any notice of a meeting given or required to be given to
the holders of Bearer Notes must also be given to the
Note Trustee;
(b) a meeting at which the Note Trustee is the only
Noteholder pursuant to clause 18.3(c) must not, unless
otherwise agreed by the Note Trustee, be held until the
Note Trustee has had the opportunity of seeking and
obtaining directions from the holders of Bearer Notes
regarding how the Note Trustee is to vote at the
meeting;
(c) the Noteholders in relation to the Bearer Notes means
the Note Trustee alone, acting on behalf of the holders
of Bearer Notes under the Note Trust Deed or, if the
Note Trustee has become bound to take steps and/or to
proceed under the Note Trust Deed and fails to do so
within a reasonable time and such failure is continuing,
the holders of Bearer Notes;
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(d) if the Note Trustee is the only Noteholder in relation
to the Bearer Notes pursuant to clause 18.3(c), it will
be regarded as a representative holding or representing
all of the Bearer Notes for the purposes of determining
whether a quorum is present at such meeting, for
determining the votes to which the Note Trustee is
entitled to cast at such meeting and any other relevant
matter relating to such meeting;
(e) if the holders of Bearer Notes become entitled to attend
a meeting of Noteholders pursuant to clause 18.3(c), the
evidence of the entitlement of such Noteholders to
attend such meeting and to vote thereat, and any other
relevant matters, will be determined in accordance with
the provisions of the Note Trust Deed and the Agency
Agreement, with such amendments as determined by the
Issuer Trustee to be necessary; and
(f) if at a particular time the Note Trustee is or would be
the only Noteholder in respect of a meeting of
Noteholders, notwithstanding any other provision of this
deed, the requirement to convene such a meeting and put
such issue to such meeting will be satisfied if
directions are sought from the Note Trustee on the
particular issue that would otherwise be put to such
meeting. Upon such a direction being given by the Note
Trustee, a meeting of the Noteholders will be regarded
as having been duly called, convened and held and the
direction will be regarded as properly passed as an
Extraordinary Resolution of such meeting.
19 RECOURSE OF CREDITORS
================================================================================
RECOURSE LIMITED
Without limiting clause 33, the recourse of the Issuer
Trustee, the Global Trust Manager and any creditor (including,
without limitation, any Secured Creditor) in respect of a
Trust is limited to the Assets of that particular Trust.
PART H - MISCELLANEOUS
20 PAYMENTS
================================================================================
SATISFACTION AND DISCHARGE
20.1 Payment of any amount in accordance with clause 20.4 will be
in satisfaction of the money payable and is a good discharge
to the Issuer Trustee.
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CHEQUES AND NOTICES
20.2 The Issuer Trustee must prepare or cause to be prepared all
Cheques and notices which are to be issued to Noteholders in
relation to a Trust under this deed and stamp the same as
required by law at the expense of the relevant Trust, and the
Issuer Trustee must sign (by autographical, mechanical or
other means) such Cheques for dispatch by the day on which
they ought to be despatched.
PAYMENTS TO NOTEHOLDERS
20.3 Any payment made by or on behalf of the Issuer Trustee in
respect of any Registered Note shall be made to the person
whose name is entered in the Register as the registered owner
of the relevant Registered Note (or in the case of joint
registered owners, to the person whose name first appears in
the Register). Any payment by or on behalf of the Issuer
Trustee in respect of any Bearer Note shall be made in
accordance with the Note Trust Deed and the Agency Agreement
for the relevant Trust.
PAYMENT METHODS
20.4 Any moneys payable by the Issuer Trustee, the Global Trust
Manager or the Servicer under any Transaction Document shall
be paid by the Issuer Trustee, the Global Trust Manager or the
Servicer (as the case may be) in the manner required by the
Transaction Documents and may be paid to such person by:
(a) (CHEQUE) crossed "not negotiable" Cheque in favour of
the relevant person and despatched by post to the
address of the relevant person being in the case of a
Registered Noteholder, the address of that Registered
Noteholder shown in the Register on the Record Date or,
in the case of any other relevant person, to the address
of that other relevant person for the purposes of clause
20;
(b) (ELECTRONIC TRANSFER) electronic transfer through a
Clearing System;
(c) (DIRECT PAYMENT) by direct transfer to a designated
account of the relevant person and agreed to by the
Global Trust Manager and the Issuer Trustee; or
(d) (OTHER AGREED MANNER) any other manner specified by the
relevant person and agreed to by the Global Trust
Manager, the Servicer (but only in the case of a payment
to be made by the Servicer) and the Issuer Trustee.
The agreement referred to in paragraphs (c) and (d) above may
be constituted by the Global Trust Manager directing the
Issuer Trustee to make a payment by direct transfer and the
Issuer Trustee effecting such transfer.
VALID RECEIPTS
20.5 A receipt issued by the Issuer Trustee, the Global Trust
Manager or the Servicer (as the case may be) for any moneys
shall exonerate the person paying the same from all liability
to make any further enquiry.
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Every such receipt shall as to the moneys paid or expressed to
be received in such receipt, effectually discharge the person
paying such moneys from such liability or enquiry and from
being concerned to see to the application or being answerable
or accountable for any loss or misapplication of such moneys.
21 PAYMENTS, INCOME AND DISTRIBUTIONS
================================================================================
PAYMENTS
21.1 The principal and income in relation to a Trust, and other
amounts credited to the Collections Account for that Trust,
will be allocated by the Global Trust Manager, and paid by the
Issuer Trustee at the direction of the Global Trust Manager,
in accordance with the Supplemental Deed for that Trust.
21.2 The Global Trust Manager must, to the extent it is possible to
do so, determine that there is an amount of Net Trust Income
of each Trust in respect of each Financial Year (being an
amount not less than $1) and for the purpose of those
calculations:
(a) the Global Trust Manager may determine whether any
deemed or actual receipt, profit, gain, payment, loss,
outgoing, provision or reserve or any sum of money or
investment in a Financial Year is or is not to be
treated as being on income or capital account of the
Trust (including treating the transfer of amounts from
the corpus of the Trust as income of the Trust for any
purpose) and whether and the extent to which any
provisions and reserves need to be made for the
Financial Year;
(b) unless determined otherwise in accordance with clause
21.2(a), an item is to be taken into account in
calculating the Net Trust Income if it would be taken
into account in determining the Net Annual Income; and
(c) the Global Trust Manager will make such determinations
as are necessary to ensure, as far as possible, that any
tax liability in respect of the Trust in respect of a
year of income under Division 6 of the Tax Act (or any
similar provision of any replacement act) is borne by
the Unitholders and not by the Issuer Trustee.
21.3 The Global Trust Manager must determine the Net Annual Income
of each Trust for each Financial Year and in doing so, it may
have regard to the determinations made by it under clause
21.2. The Residual Income Unitholders of a Trust shall be
entitled to the whole of the Net Annual Income of that Trust
for each Financial Year in accordance with the relevant
Supplemental Deed.
21.4 The Residual Income Unitholders of a Trust shall be presently
entitled for the purposes of the Tax Act to the whole of the
Net Trust Income of that Trust in respect of each Financial
Year.
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21.5 On the last day of each Financial Year of a Trust, the
Residual Income Unitholders of that Trust will be entitled to
be paid an amount equal to whichever is the greater of the
following:
(a) its proportion of the Net Trust Income to which it is
presently entitled under clause 21.4; and
(b) its proportion of the Net Annual Income to which it is
entitled under clause 21.3.
21.6 The Global Trust Manager may in its absolute discretion
require the Residual Income Unitholders of a Trust to invest
an amount in the Trust if:
(a) that amount represents an amount to which the Residual
Income Unitholders are presently entitled to under
clause 21.4 hereof and which amount was not actually
paid to the Residual Income Unitholders in the relevant
Financial Year; and
(b) the Residual Income Unitholders request the Global Trust
Manager (or Issuer Trustee) to pay, or otherwise deal
with such amount on behalf of the Residual Income
Unitholders,
as a payment, or additional payment, in respect of its
interest in the Trust.
PAYMENT
21.7 The Global Trust Manager must calculate the distributions to
be paid and direct the Issuer Trustee to pay such
distributions.
ISSUER TRUSTEE TO ACT
21.8 Subject to this deed, the Issuer Trustee must act in
accordance with any direction to pay given to it by the Global
Trust Manager in accordance with this clause 21.
22 ACCOUNTS AND AUDIT
================================================================================
ACCOUNTS
22.1 The accounts of each Trust must be prepared by the Global
Trust Manager in accordance with the accounting standards
under the Corporations Law, and, if not inconsistent with
those accounting standards, generally accepted principles and
practices in Australia consistently applied by a body
corporate or as between bodies corporate and over time. The
accounts must be maintained at the office of the Global Trust
Manager. The Global Trust Manager covenants with the Issuer
Trustee to keep the accounts of each Trust.
AUDIT
22.2 At the recommendation of the Global Trust Manager, the Issuer
Trustee must appoint a person qualified to act as required by
the Corporations Law as the Auditor to audit the accounts of
each Trust. The Issuer Trustee may replace any Auditor. The
Auditor may retire on one month's written notice to the Issuer
Trustee. The Auditor's
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remuneration will be as determined by the Global Trust Manager
from time to time.
ESTABLISHMENT OF BANK ACCOUNTS
22.3 Immediately upon lodgment of any Supplemental Deed in
accordance with clause 2.6, the Issuer Trustee must open a
Collections Account for the Trust established under the
Supplemental Deed with an Eligible Bank in its name which is
referable to that Trust. The Issuer Trustee must open such
other Collections Accounts as it is directed to do so by the
Global Trust Manager. A Collections Account of a Trust:
(a) may be a money market account;
(b) must have Authorised Persons of the Issuer Trustee as
the only authorised signatories;
(c) must be such that any moneys deposited in it are
Authorised Investments of the Trust; and
(d) must be operated by the Issuer Trustee in accordance
with the Transaction Documents.
22.4 The Issuer Trustee must pay into the Collections Account of a
Trust (or procure the payment into the Collections Account of
a Trust of):
(a) all moneys raised from the issue of Units and the Notes
in respect of that Trust (except to the extent that such
moneys are paid directly to the seller of an Asset by
the Issuer Trustee); and
(b) any other money received by the Issuer Trustee in
respect of the Trust.
WITHDRAWALS
22.5 The Issuer Trustee must withdraw or procure the withdrawal of
funds from the Collections Account for a Trust in accordance
with the directions of the Global Trust Manager and apply the
same when necessary for:
(a) providing consideration for the acquisition of Assets or
the redemption of the Face Value of the Notes for that
particular Trust;
(b) making payments for itself, the Global Trust Manager,
the Security Trustee or other persons in accordance with
this deed for that particular Trust;
(c) making payments to the Secured Creditors for that
particular Trust;
(d) any other payments permitted or contemplated by the
Transaction Documents for that particular Trust; and
(e) investing any surplus funds in Assets for that
particular Trust.
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23 ADMINISTRATION AND REPORTING
================================================================================
REGISTER OF UNITHOLDERS
23.1 The Global Trust Manager must establish a register of
Unitholders, which may be in electronic form, and keep it up
to date in accordance with the Supplemental Deed for the
relevant Trust. Subject to the terms of the relevant
Supplemental Deed, the Global Trust Manager must decide what
information is to be recorded in the register, in consultation
with the Issuer Trustee. A complete copy of the register (or
part of it) must be provided to the Issuer Trustee within
three Business Days after request. The Issuer Trustee is
entitled to rely on and assume the accuracy of the register.
TRANSFERS
23.2 The Unitholders may transfer Units in accordance with the
Supplemental Deed for the relevant Trust. Transfers must be in
a form approved by the Global Trust Manager and be presented
for registration duly stamped, together with the relevant Unit
certificate (if any). A transfer is not effective until
registered. The Global Trust Manager may refuse to register
any transfer of a Unit in its absolute discretion.
DEATH, LEGAL DISABILITY
23.3 If a Unitholder of a Trust dies or becomes subject to a legal
disability such as bankruptcy or insanity, only the survivor
(in the case of joint holders) or the legal personal
representative (in any other case) will be recognised as
having any claim to Units registered in the Unitholder's name.
DEDUCTIONS
23.4 The Issuer Trustee and Global Trust Manager may deduct from
any amount to be paid to a Unitholder any amount of Tax (or an
estimate of it) which they are required or authorised to
deduct in respect of that payment by law or by this deed or
which the Global Trust Manager considers should be deducted.
24 RIGHTS AND LIABILITIES OF GLOBAL TRUST MANAGER AND ISSUER TRUSTEE
================================================================================
HOLDING UNITS
24.1 The Issuer Trustee and its Related Entities may hold any Unit
issued in respect of a Trust.
OTHER CAPACITIES
24.2 None of the:
(a) Issuer Trustee;
(b) Global Trust Manager;
(c) Related Entities of the Issuer Trustee;
(d) Related Entities of the Global Trust Manager;
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(e) directors or officers of the Issuer Trustee or its
Related Entities;
(f) directors or officers of the Global Trust Manager or its
Related Entities;
(g) shareholders of the Issuer Trustee or its Related
Entities; or
(h) shareholders of the Global Trust Manager or its Related
Entities,
is prohibited from:
(A) subscribing for, purchasing, holding, dealing in
or disposing of Notes;
(B) at any time:
(i) contracting with;
(ii) acting in any capacity as representative or
agent for; or
(iii) entering into any financial, banking, agency
or other transaction with,
any other of them in any capacity (including,
without limitation, themselves in another
capacity), the Security Trustee, any other
party to a Transaction Document, or any
Unitholder, Secured Creditor or Noteholder;
(C) being interested in any contract or transaction referred
to in paragraph (B); or
(D) doing anything which it could do if the Issuer Trustee
or the Global Trust Manager was not party to this deed
or the other Transaction Documents (provided the
Transaction Documents are complied with).
None of the persons mentioned is liable to account to the
Secured Creditors, the Unitholders or the Noteholders for any
profits or benefits (including, without limitation, bank
charges, commission, exchange brokerage and fees) derived in
connection with any contract or transaction referred to above.
The preceding provisions of this clause 24.2 only apply if the
Issuer Trustee or the Global Trust Manager (as the case may
be), in connection with the action, contract or transaction,
acts in good faith to the Secured Creditors and the
Unitholders as a whole.
EXERCISE OF DISCRETION
24.3 Without limiting clause 24.2, the Issuer Trustee and any
Related Entity of the Issuer Trustee may perform different
roles in connection with the Transaction Documents, including
roles as trustee, security trustee,
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registrar, paying agent, shareholder, beneficiary, and
notwithstanding that interests of or duties to the Issuer
Trustee in respect of those roles may conflict with interests
or duties of any Unitholder or Secured Creditor of a Trust.
The Issuer Trustee and each Related Entity of the Issuer
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 clause. This clause
24.3 is subject to the requirement that the Issuer Trustee
acts in good faith regarding the Unitholders and Secured
Creditors of each Trust in exercising any powers or rights or
taking any action of the kind permitted under this clause.
24.4 Subject to the terms of the Transaction Documents, the Issuer
Trustee and the Global Trust Manager may each decide how and
when to exercise their powers in their absolute discretion.
25 LIABILITY OF THE UNITHOLDERS AND NOTEHOLDERS
================================================================================
LIABILITY LIMITED
25.1 Subject to clause 21.6, the liability of the Unitholders and
the Noteholders in respect of a Trust is limited to the
application price or Issue Price (as the case may be) paid or
agreed to be paid for a Unit or Note. No Unitholder or
Noteholder is under any obligation to indemnify the Issuer
Trustee or the Global Trust Manager if there is a deficiency
in the Net Assets of a Trust or meet the claim of any creditor
of the Issuer Trustee or the Global Trust Manager in respect
of that Trust.
26 REMUNERATION AND EXPENSES
================================================================================
GLOBAL TRUST MANAGER
26.1 The Global Trust Manager is entitled to a fee, in respect of a
Trust, in an amount agreed from time to time between the
Issuer Trustee and the Global Trust Manager in respect of that
Trust. Such fee accrues on a daily basis and is to be
calculated in relation to, and paid from, the Assets of the
relevant Trust in accordance with the Supplemental Deed for
that Trust.
ISSUER TRUSTEE
26.2 The Issuer Trustee is entitled to a fee, in respect of a
Trust, in an amount agreed between the Issuer Trustee and the
Global Trust Manager in respect of that Trust from time to
time. Such fee accrues on a daily basis and is to be
calculated in relation to, and paid from, the Assets of the
relevant Trust in accordance with the Supplemental Deed for
that Trust.
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EXPENSES
26.3 All liabilities and expenses (except general overhead costs
and expenses) incurred reasonably and in good faith by the
Issuer Trustee or the Global Trust Manager in connection with
any Trust or in performing their obligations or exercising
their powers under this deed are payable or reimburseable out
of the Assets of that Trust in accordance with this clause.
This includes (without limitation) liabilities and expenses
connected with:
(a) this deed and the formation of the Trust and any
Transaction Documents for that Trust;
(b) the sale, purchase, insurance, custody and any other
dealing with Assets;
(c) any proposed investment;
(d) the administration, management or promotion of the Trust
or its Assets and Liabilities (including the issuance of
Notes);
(e) convening and holding meetings of Noteholders, the
implementation of any resolutions and communications
with Noteholders;
(f) Tax (including Taxes assessed on the income of the
Trust, provided it is not on the personal account of the
Issuer Trustee or the Global Trust Manager) and bank
fees;
(g) the engagement of agents, Valuers, barristers,
solicitors, legal practitioners, contractors, brokers,
qualified advisers and any other person engaged in
accordance with this deed;
(h) preparation and audit of the taxation returns and
accounts of the Trust;
(i) subject to clauses 13.9 and 15.9, termination of the
Trust and the retirement or removal of the Issuer
Trustee or Global Trust Manager and the appointment of a
new trustee or manager;
(j) any court proceedings, arbitration or other dispute
concerning the Trust including proceedings against the
Issuer Trustee or the Global Trust Manager by the other
of them (except to the extent that the person incurring
the expenses is found by a court to be fraudulent, in
breach of trust (in the case of the Issuer Trustee only)
or to have been negligent or in material breach of its
obligations in which case any expenses reimbursed under
this clause 26.3(j) must be repaid to the extent the
expenses are referable to the fraud, breach of trust,
material breach of obligations or negligence);
(k) any other costs, liabilities or expenses incurred in
respect of, or in connection with, any Transaction
Document; and
(l) any expenses payable to each Current Rating Agency.
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All such costs, liabilities and expenses are payable on a full
indemnity basis (or, in the case of legal costs and
disbursements, charged at the usual commercial rates of the
relevant legal services provider).
DEFERRAL
26.4 The Issuer Trustee and the Global Trust Manager may with the
other's approval defer reimbursement of any or all expenses
under clause 26.3 for an agreed period.
GST
26.5 The fees set out in clauses 26.1 and 26.2 are inclusive of
GST. The supplier of the fee will provide the Global Trust
Manager and the Issuer Trustee with any reasonable
documentation required for GST purposes so as to enable the
Global Trust Manager and the Issuer Trustee to receive an
input tax credit or tax return for GST purposes.
APPLICATION
26.6 To the extent permitted by law, money received in connection
with this deed or the Supplemental Deed in respect of a Trust
is to be applied in the order set out in the Supplemental Deed
for that Trust.
27 NOTICES
================================================================================
NOTICES
27.1 Subject to clauses 27.4 and 27.5, any notice, approval,
consent or other communication in connection with this deed:
(a) must be given by an Authorised Person of the relevant
party;
(b) must be in writing; and
(c) must be left at the address of the addressee or sent by
prepaid ordinary post to the address of the addressee or
sent by facsimile to the facsimile number of the
addressee, or sent by e-mail to the e-mail address of
the addressee specified in clause 27.2 or any other
address, facsimile number or e-mail address any party
may from time to time notify to the other parties as its
address for service of communications pursuant to this
deed.
INITIAL ADDRESSES
27.2 The initial address and facsimile numbers of the Issuer
Trustee and the Global Trust Manager are:
ISSUER TRUSTEE:
Address: Level 3
39 Hunter Street
Sydney NSW 2000
Facsimile: (02) 9221 7870
Attention: Manager, Securitisation
E-mail: as notified from time to time
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GLOBAL TRUST MANAGER:
Address: 7301 Baymeadows Way
Jacksonville Florida 32256
United States of America
Facsimile: 904 281 3062
Attention: General Counsel
E-mail: [email protected]
TIME EFFECTIVE
27.3 Unless a later time is specified in it, a notice,
approval, consent or other communication takes effect
from the time it is received.
RECEIPT
27.4 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 4.00 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.
27.5 All notices with respect to the Unitholders or the Noteholders
are valid if despatched by prepaid ordinary post (airmail if
posted to a place outside Australia) to the Unitholders or the
Noteholders at their registered office (or, in the case of
Registered Noteholders, to the address specified in the
Register and, in the case of joint holders, to the person
whose name first appears in the Register ). Such notice is
taken to be received on the third (seventh, if posted to a
place outside Australia) day after posting.
27.6 Where a notice or other communication is to be provided under
this deed to a Noteholder of a Note in bearer form, the notice
may be given in accordance with the relevant Note Trust Deed.
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28 AMENDMENTS TO THIS DEED AND SUPPLEMENTAL DEED
================================================================================
AMENDING POWER
28.1 Subject to this clause 28.1 and to any approval required by
law and by clause 28.2, and provided that 10 Business Days
prior notice of the proposed amendment has been given to the
Current Rating Agency, the Issuer Trustee and the Global Trust
Manager by deed may amend, add to or revoke any provision of
this deed (including this clause 28.1) as it applies to any
Trust or any provision of any Supplemental Deed for the Trust
if the amendment, addition or revocation:
(a) in the reasonable opinion of the Issuer Trustee or of
legal counsel appointed by the Issuer 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 Issuer Trustee is made to correct
a manifest error or is of a formal, technical or
administrative nature only;
(c) in the opinion of the Issuer Trustee or the Global Trust
Manager will enable the provisions of this deed or the
Supplemental Deed to be more conveniently,
advantageously, profitably or economically administered;
(d) in the opinion of the Issuer Trustee is otherwise
desirable for any reason; or
(e) is considered by the Issuer Trustee not to be materially
prejudicial to the interests of the Noteholders as a
whole or the interests of any individual Noteholder or
group of Noteholders; or
(f) in the reasonable opinion of the Issuer Trustee or of
legal counsel appointed by the Issuer Trustee is
required by, is a consequence of, is consistent with or
is appropriate or expedient as a consequence of, any
amendment to any statute, regulation or requirements of
any Governmental Agency (including, without limitation,
any amendment, addition or revocation which is in the
opinion of the Issuer Trustee appropriate or expedient
as a result of any amendment to any legislation dealing
with, or associated with, taxation or any ruling by the
Commissioner or Deputy Commissioner of Taxation or any
government announcement or statement that has or may
have the effect of altering the manner or basis of
taxation of trusts generally or of trusts similar to any
of the Trusts).
CONSENT REQUIRED
28.2 If in the reasonable opinion of the Issuer Trustee any
amendment, addition or revocation referred to in clause
28.1(c) or clause 28.1(d) will be or is likely to become
prejudicial to the interests of Noteholders of a particular
class in respect of the Trust or to the
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interests of all Noteholders in respect of the Trust, the
amendment, addition or revocation may be effected only if in
accordance with clause 28.3 or 28.4 (as the case may be).
AMENDMENTS PREJUDICIAL TO NOTEHOLDERS OF A CLASS
28.3 Subject to clause 28.4, if in the reasonable opinion of the
Issuer Trustee any amendment, addition or revocation referred
to in clause 28.1(c) or clause 28.1(d) will be or is likely to
become prejudicial to the interests of Noteholders of a
particular class, the amendment, addition or revocation may
only be effected if the relevant Noteholders pass an
Extraordinary Resolution approving such amendment, addition or
revocation in accordance with this deed.
AMENDMENTS PREJUDICIAL TO ALL NOTEHOLDERS
28.4 If in the reasonable opinion of the Issuer Trustee, any
amendment, addition or revocation referred to in clause
28.1(c) or clause 28.1(d) will be or is likely to become
prejudicial to the interests of all Noteholders in respect of
the Trust:
(a) the amendment, addition or revocation may only be
effected if the relevant Noteholders pass an
Extraordinary Resolution approving such amendment,
addition or revocation in accordance with this deed; and
(b) there will not be a separate Extraordinary Resolution
required for each class of Noteholders pursuant to
clause 28.3.
28.5 The Issuer Trustee will be entitled to assume that any
proposed alteration, addition or revocation referred to in
clause 28 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.
29 TAX REFORM
================================================================================
29.1 The parties acknowledge that:
(a) the Commonwealth Government of Australia has announced
its intention that trusts be taxed as companies from 1
July 2001;
(b) it is not known whether the Trusts will be excluded from
this new regime;
(c) it is in the interest of all parties, including the
Issuer Trustee, the Noteholders and the Residual Income
Unitholders, that:
(i) the Issuer Trustee always be in a position to pay
any tax liability when due;
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(ii) the payment of tax by the Issuer Trustee must not
affect the amount of principal or interest payable
on the rated Notes or the timing of such payments;
and
(iii) the rating of the Notes be maintained; and
(d) no draft legislation to implement this change has been
introduced into the Australian Federal Parliament, and
it is not conclusively known when or whether tax will be
payable (by the Trusts) or what, if any, transition
provisions will apply.
29.2 If and when draft legislation is introduced into Australian
Federal Parliament, and the result of that draft legislation
if it becomes law will be that the Issuer Trustee will become
liable to pay tax on the Net Trust Income of the Trust, or any
part of it, then the Global Trust Manager shall promptly
consult with the Issuer Trustee and each Current Rating Agency
to determine what changes, if any, are necessary to the
cashflow methodology and/or to the Transaction Documents to
achieve the objective referred to in clause 29.1(c) (the
"OBJECTIVE");
(a) within a reasonable time of the draft legislation being
introduced into Parliament (or such longer time as the
Issuer Trustee and each Current Rating Agency permit)
the Global Trust Manager shall provide a written
recommendation to the Issuer Trustee and a draft
amending deed ("AMENDING Deed") that if executed will
achieve the Objective; and
(b) upon the Issuer Trustee being notified that the draft
Amending Deed will achieve the Objective (and in this
regard the Issuer Trustee may rely (amongst others) upon
advice of tax lawyers) the Issuer Trustee and the Global
Trust Manager shall execute the Amending Deed.
29.3 Provided that the Issuer Trustee and each Current Rating
Agency receives written advice from an experienced and
reputable tax lawyer or tax accountant to the effect that if
the cashflow methodology, as amended by the Amending Deed, is
followed the Objective will be met, and each Current Rating
Agency confirms the change in Tax law or the Amending Deed
will not have an Adverse Rating Effect in respect of the
relevant Trust:
(a) the Issuer Trustee shall not be obliged to obtain the
consent of any Noteholder, Secured Creditor or Residual
Income Unitholder to the Amending Deed;
(b) subject to its terms, the Amending Deed shall be
effective when executed, and may:
(i) permit the Issuer Trustee to accumulate a reserve
out of moneys that would otherwise be payable to
the Residual Income Unitholders; and
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(ii) provide for Tax to be paid out of moneys that
would otherwise have been payable to the Residual
Income Unitholders; and
(c) without limiting this clause 29, in formulating a
proposal to meet the Objective, the Global Trust Manager
shall have regard to the impact of any change to the
cashflow methodology to the Residual Income Unitholders,
and shall consider proposals made by the Residual Income
Unitholders that will enable the Issuer Trustee to meet
the Objective.
30 UNITHOLDERS AND SECURED CREDITORS BOUND BY DEED
================================================================================
The terms and conditions of this deed as duly altered,
modified, added to or cancelled from time to time are binding
on the Issuer Trustee, the Global Trust Manager, each
Unitholder, each Secured Creditor and all persons claiming
through any of them respectively as if that person were a
party to this deed.
31 MISCELLANEOUS
================================================================================
CERTIFICATE
31.1 A certificate signed by the Issuer Trustee or its solicitors
about a matter or about a sum payable to the Issuer Trustee in
connection with this deed or a Supplemental Deed is sufficient
evidence of the matter or sum stated in the certificate unless
the matter or sum is proved to be false.
EXERCISE OF RIGHTS
31.2 The Issuer Trustee or an attorney appointed under this deed
may exercise a right, power or remedy at its discretion, and
separately or concurrently with another right, power or
remedy. A single or partial exercise of a right, power or
remedy by the 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 Issuer Trustee,
negligence, fraud or breach of trust.
WAIVER AND VARIATION
31.3 A provision of or a right created under this deed may not be
waived or varied except in writing signed by the party or
parties to be bound.
SUPERVENING LEGISLATION
31.4 Any present or future legislation which operates to vary the
obligations of the Issuer Trustee in connection with this deed
with the result that the Issuer Trustee's rights, powers or
remedies are adversely affected (including, without
limitation, by way of delay or postponement) is excluded
except to the extent that its exclusion is prohibited or
rendered ineffective by law.
55
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APPROVALS AND CONSENT
31.5 The Issuer Trustee, the Global Trust Manager or an attorney
appointed under this deed may give conditionally or
unconditionally or withhold its approval or consent in its
absolute discretion, unless this deed expressly provides
otherwise.
REMEDIES CUMULATIVE
31.6 The rights, powers and remedies provided in this deed are
cumulative with and not exclusive of the rights, powers or
remedies provided by law independently of this deed.
INDEMNITIES
31.7 Each indemnity in this deed is a continuing obligation,
separate and independent from the other obligations of the
Issuer Trustee and the Global Trust Manager and survives
termination of this deed. It is not necessary for the Issuer
Trustee or the Global Trust Manager to incur expense or make
payment before enforcing a right of indemnity conferred by
this deed.
TIME OF THE ESSENCE
31.8 Time is of the essence in this deed in respect of an
obligation of the Issuer Trustee to pay money.
RECEIPTS
31.9 The receipt of a Receiver, or an Authorised Person of the
Issuer Trustee, releases the person paying money to the
Receiver or the Issuer Trustee in connection with this deed
from:
(a) liability for the money paid or expressed to be
received; and
(b) being concerned to see to its application or being
answerable or accountable for its loss or
misapplication.
ACKNOWLEDGMENT
31.10 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.
31.11 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.
DISCLOSURE OF INFORMATION
31.12 Subject to this deed, the Issuer Trustee is not required
(unless ordered so to do by a court of competent
jurisdiction) to disclose to any Unitholder, Secured
Creditor or any other person confidential,
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financial or other information made available to the
Issuer Trustee in connection with this deed.
RIGHTS CUMULATIVE
31.13 The rights, powers and remedies provided in this deed
are cumulative and not exclusive of the rights, powers
or remedies provided by law independently of this deed.
SIGNATURES
31.14 The Issuer Trustee and the Global Trust Manager may rely
on the validity of any signature on any transfer, form
of application or other instrument or document unless
the Issuer Trustee or the Global Trust Manager (as the
case may be) has reasonable grounds to believe that the
signature is not genuine. Neither the Issuer Trustee nor
the Global Trust Manager is liable to make good out of
its own funds any loss incurred by any person if a
signature is forged or otherwise fails to bind the
person whose signature it purports to be or on whose
behalf it purports to be made. Any such loss, subject to
any right of reimbursement from any other person
(including the Global Trust Manager) is to be borne by
the relevant Trust in respect of which the loss is
incurred.
MEETINGS
31.15 A reference in this deed to a meeting of Secured
Creditors of a Trust is a reference to a meeting of
Secured Creditors of the Trust conducted in accordance
with the provisions of the relevant Deed of Charge.
32 GOVERNING LAW
================================================================================
GOVERNING LAW
32.1 This deed and each Trust are governed by the law in
force in the Australian Capital Territory and the
rights, liabilities and obligations of the Global Trust
Manager, the Issuer Trustee, the Unitholders and the
Secured Creditors are governed by the laws in force in
the Australian Capital Territory.
SUBMISSION TO JURISDICTION
32.2 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
32.3 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 27.
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33 LIMITED RECOURSE
================================================================================
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).
34 COUNTERPARTS
================================================================================
This deed may consist of a number of counterparts and
the counterparts taken together constitute one and the
same instrument.
EXECUTED as a deed in the Australian Capital Territory.
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SCHEDULE 1 NOTICE OF CREATION OF TRUST
================================================================================
To: Perpetual Trustee Company Limited ("ISSUER
TRUSTEE")
From: HomeSide Global MBS Manager, Inc ("GLOBAL TRUST
Manager")
Under clause 3.1 of the Master Trust Deed dated [ ] 2001
between the Issuer Trustee and the Global Trust Manager
establishing the HomeSide Mortgage Securities Trusts (as
amended from time to time) ("MASTER TRUST DEED") the
Global Trust Manager gives notice of the creation of a
Trust under the Master Trust Deed to be known as the [ ]
[Trust X-Y] Trust [or such other name as the Global Trust
Manager and the Issuer Trustee have agreed under clause
2.7 of the Master Trust Deed].
The [ ] [Trust X-Y] Trust will be a Trust for the
purposes of the Master Trust Deed.
This Notice of Creation of Trust is accompanied by $10 in
accordance with clause 3.1(b) of the Master Trust Deed.
The Residual Capital Unitholder of the Trust is [ ] and
the Residual Income Unitholder of the Trust is [ ] each
of whom has contributed $5 of the accompanying $10 as the
initial application price of their respective units.
The above sum of $10 will vest in the Issuer Trustee and
be held by the Issuer Trustee on and subject to the
trusts, terms and conditions of the Master Trust Deed and
the Supplemental Deed dated [ ] in respect of this Trust
and will be invested by the Issuer Trustee in accordance
with the provisions of the Supplemental Deed and the
Master Trust Deed.
Terms defined for the purposes of the Master Trust Deed
have the same meaning when used in this Notice of
Creation of Trust.
Dated:
For and on behalf of the Global Trust Manager
---------------------------------------
Authorised Person
For and on behalf of the Issuer Trustee
---------------------------------------
Authorised Person
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SCHEDULE 2 RECEIVABLES TRANSFER DIRECTION
================================================================================
TO: PERPETUAL TRUSTEE COMPANY LIMITED as trustee of the [ ] Trust
[and [ ]] Trust ("ISSUER TRUSTEE")
FROM: HOMESIDE GLOBAL MBS MANAGER, INC ("GLOBAL TRUST MANAGER")
1 DIRECTION TO ACQUIRE RECEIVABLES
Under clause 5.2 of the Master Trust Deed dated [ ] 2001
(as amended from time to time) establishing the HomeSide
Mortgage Securities Trusts ("MASTER TRUST DEED"), the
Global Trust Manager proposes and directs in this
direction ("DIRECTION") that the Issuer Trustee on [ ]
will:
(a) [offer to [ ] to cease to hold as trustee of the
[ ] Trust, and dispose of to [ ], the Assets
specified in Annexure A;] or [hold as trustee of
the [ ] Trust ("TRUST") on the terms of the Master
Trust Deed the benefit of the portfolio of Assets
specified in Annexure A ("PORTFOLIO OF ASSETS");]
and
(b) [receive from [ ] ("RELEVANT ACQUIRER") the
principal amount of the Housing Loans relating to
the Portfolio of Assets at [date] being $[ ].]
2 GLOBAL TRUST MANAGER'S CERTIFICATIONS
The Global Trust Manager certifies to the Issuer Trustee
that:
(a) this direction complies with the Master Trust Deed
and the relevant Supplemental Deed dated [ ];
(b) after due enquiry it believes the Issuer Trustee
as trustee of both the [ ] Trust and the [ ] Trust
will be able to satisfy all its present and future
obligations and liabilities having regard to any
Notes to be issued, any other Borrowings, any
Assets to be acquired and other anticipated
rights, liabilities and obligations of the Issuer
Trustee.
INTERPRETATION
Each expression used in this Direction that is not
defined has the same meaning as in the [ ] Master
Definitions Schedule dated [ ] between the Issuer
Trustee, the Security Trustee and the Global Trust
Manager.
Dated:
For and on behalf of [ ]
Authorised Person
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ANNEXURE A
PORTFOLIO OF ASSETS
[Specify Portfolio of Assets]
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SCHEDULE 3 ISSUE NOTICE
================================================================================
TO: [ ]
Dear Sirs
[ ] TRUST
[ ] ("GLOBAL TRUST MANAGER") refers to the Master Trust
Deed dated [ ] and the
Supplemental Deed referable to the
[ ] Trust dated [ ] ("MASTER
TRUST DEED").
NOTES
Pursuant to clause 9.1 of the Master Trust Deed, the
Global Trust Manager hereby notifies the Issuer Trustee
of the details of the issue of Notes on the following
terms:
(a) Class;
(b) Name;
(c) Issue Date;
(d) Maturity Date;
(e) the number of Notes to be issued;
(f) the initial Face Value of those Notes;
(g) the Notes are [interest bearing/not interest
bearing] and the interest is [fixed/floating/at a
discount]
(h) the [Margin] is [ ];
(i) the [Payment Date] is [ ];
(j) the Notes are secured by [ ];
(k) the Support Facilities are [ ];
(l) [INSERT SALE NOTICE DETAILS];
(m) the minimum subscription for the Notes is [ ];
(n) [the currency of the Note];
(o) [OTHERS].
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GLOBAL TRUST MANAGER'S CERTIFICATIONS
For the purposes of clause 9.2 of the Master Trust Deed,
the Global Trust Manager confirms that:
(a) based on the anticipated Assets of the Trust at
the date of this Issue Notice, the Issuer Trustee
should (and the Global Trust Manager reasonably
believes that the Issuer Trustee will) be able to
meet its anticipated obligations and Liabilities
in respect of the Trust as and when they fall
due;
(b) the terms of the Master Trust Deed with respect
to the proposed issue or drawing have been, and
will on the Issue Date or the date of the drawing
continue to be, complied with; and
(c) the acquisition of the Assets (if any) and the
characteristics of the Assets are consistent with
all information memoranda, notices, reports,
statements and the like given to Secured
Creditors.
Yours faithfully
FOR AND ON BEHALF OF THE GLOBAL TRUST MANAGER
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SCHEDULE 4 MEETINGS OF NOTEHOLDERS
================================================================================
1 A meeting of Noteholders of a Trust must be convened by
notice in writing sent to every Noteholder of that Trust
entitled to attend and vote at the meeting at least 7
Business Days before the date of the meeting. The notice
of meeting must include a proxy form. The notice of
meeting need not set out the terms of any resolution to
be proposed, but must state the general nature of the
business to be transacted at the meeting. Either the
Global Trust Manager or the Issuer Trustee may convene a
meeting but must first give the other at least 10
Business Days notice of its intention to do so.
NON-RECEIPT
2 If a Noteholder does not receive a notice (including if
notice was accidentally omitted to be given to them) the
meeting is not invalidated.
QUORUM
3 The quorum for a meeting of a Trust is Noteholders
present in person or by proxy together holding between
them at least 67% of the Invested Amount of the Notes
for that Trust.
NO QUORUM
4 If a quorum is not present within 30 minutes after the
scheduled time for the meeting, the meeting is:
(a) if convened on the requisition of Noteholders -
dissolved; or
(b) otherwise - adjourned to such place and time as
the Global Trust Manager decides in consultation
with the Issuer Trustee.
At any adjourned meeting, those Noteholders present in
person or by proxy holding between them at least 50% of
the Invested Amount of the Notes constitute a quorum.
CHAIRMAN
5 A person may be appointed as the chairman of a meeting
of Noteholders of a Trust (the "CHAIRMAN") by an
ordinary resolution of the Noteholders of that Trust
present at the meeting or, in the absence of such an
appointment, nominated by the Issuer Trustee. The
Chairman need not be a Noteholder.
ADJOURNMENT
6 The Chairman has power to adjourn a meeting for any
reason to such place and time as the Chairman thinks
fit.
VOTING
7 Voting at a meeting of Noteholders of a Trust is by a
show of hands, unless a poll is duly demanded or the
Resolution
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proposed is required by this deed or by law to be
decided by a percentage of all Notes. Each Noteholder of
the Trust present in person or by proxy has one vote on
a show of hands. On a poll, each Noteholder of the Trust
present in person or by proxy has one vote for every $10
of the Invested Amount (rounded down to the nearest $10)
in respect of that Noteholder. In the case of joint
holders, only the person whose name appears first in the
register may vote.
POLL
8 A poll may be demanded before or on declaration of the
result of a show of hands by either:
(a) the Chairman; or
(b) at least 1 Noteholder present in person or by
proxy.
CASTING VOTE
9 If votes are equal, whether on a show of hands or on a
poll, the Chairman has a casting vote in addition to the
vote or votes (if any) to which the Chairman is entitled
as a Noteholder.
PROXIES
10 A Noteholder may be represented at a meeting by proxy.
Proxies are governed by Part 2G.4 Division 5 of the
Corporations Law as if all meetings were convened under
Part 2G.4 Division 5. The Issuer Trustee is not
obligated to enquire whether a proxy has been validly
given. A proxy expires after 12 months. A proxy is still
valid after it is revoked or after the Noteholder who
gave it dies or becomes under a legal disability, unless
the Issuer Trustee has received written notice of that
fact before the meeting at which the proxy is used.
REPRESENTATIVES
11 A body corporate may be represented at a meeting by a
person appointed in the manner provided in section 250D
of the Corporations Law. The person may exercise on the
body's behalf the same powers as the body could if it
were a natural person and the body is taken to be
present at the meeting in person.
OTHER ATTENDEES
12 The Issuer Trustee, the Global Trust Manager, the
Unitholders and the Auditor may attend and speak at any
meeting, or invite any other person to attend and speak.
RESOLUTIONS BINDING
13 A Resolution in respect of a Trust binds all Noteholders
of the Trust, whether or not they are present at the
meeting. No objection may be made to any vote cast
unless the objection is made at the meeting. The
decision of the Chairman on any matter is final.
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MINUTES
14 The minutes of a meeting of Noteholders signed by the
Chairman of the meeting are conclusive evidence of the
matters stated in them unless the contrary is proved.
WRITTEN RESOLUTIONS
15 Notwithstanding the provisions of this schedule, a
Resolution of the Noteholders of a Trust (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:
(a) in the case of a resolution (including an
Extraordinary Resolution) of the Noteholders of a
Trust, been signed by all Noteholders of the
Trust; and
(b) any such instrument shall be effective upon
presentation to the Issuer Trustee for entry in
the records referred to in paragraph 13.
POWERS OF A MEETING
16
(a) Subject to paragraph (b) below, a meeting of the
Noteholders of a Trust shall, without prejudice to
any rights or powers conferred on other persons by
the Transaction Documents, have power exercisable
by Extraordinary Resolution:
(i) to sanction any action that the Issuer
Trustee or the Global Trust Manager proposes
to take to enforce the provisions of any
Transaction Documents relating to the Trust;
(ii) to sanction any proposal by the Global Trust
Manager or the Issuer Trustee for any
modification, abrogation, variation or
compromise of, or arrangement in respect of,
the rights of the Noteholders against the
Issuer Trustee or the Global Trust Manager,
whether such rights arise under any
Transaction Document or otherwise;
(iii) to sanction the exchange or substitution of
Notes for or the conversion of Notes into
any other obligations or securities of the
Issuer Trustee or any other body corporate
formed or to be formed;
(iv) subject to the Master Trust Deed and the
relevant Supplemental Deed, to consent to
any alteration, addition or modification of
the Master Trust Deed or the relevant
Supplemental Deed which is proposed by the
Issuer Trustee or the Global Trust Manager;
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(v) to discharge or exonerate the Issuer Trustee
or the Global Trust Manager from any
liability in respect of any act or omission
for which it may become responsible under
any Transaction Document relating to the
Trust; and
(vi) to authorise the Issuer Trustee, the Global
Trust Manager or any other person to concur
in and execute and do all such documents,
acts and things as may be necessary to carry
out and give effect to any Extraordinary
Resolution.
(b) A meeting of the Noteholders of the Trust shall
not have power to, nor shall any resolution
submitted to the meeting propose or have the
effect of:
(i) removing the Issuer Trustee or Global Trust
Manager from office;
(ii) interfering with the management of any
Trust;
(iii) winding-up or terminating a Trust, except as
contemplated by the Master Trust Deed;
(iv) altering the Authorised Investments of a
Trust; or
(v) altering the terms upon which any Notes are
issued (subject to the specific provisions
of paragraph (a) above).
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SCHEDULE 5 FORM OF ACKNOWLEDGEMENT
================================================================================
To: (Name)
---------------------------------------------
(Address)
---------------------------------------------
---------------------------------------------
---------------------------------------------
Register:
---------------------------------------
Number of Notes:
--------------------------------
Final Maturity Date:
----------------------------
Face Value of each Note:
------------------------
Coupon (if applicable):
-------------------------
Payment Dates:
----------------------------------
This is to acknowledge that the person named above has
been entered in the Register of Noteholders in respect of
the abovementioned Notes ("NOTES") issued by Perpetual
Trustee Company Limited (ABN 42 000 001 007) ("ISSUER
TRUSTEE") as trustee of the [ ] Trust ("TRUST") as
constituted by the Supplemental Deed dated [ ] under the
terms of the Master Trust Deed dated [ ] ) (together the
"MASTER TRUST DEED") each between the Trustee and
HomeSide Global MBS Manager, Inc. ("GLOBAL TRUST
MANAGER"). The Notes described above are registered and
held by the Noteholder(s) named above subject to the
terms and conditions of the Master Trust Deed and the
Master Security Trust Deed ("SECURITY TRUST DEED")
between the Issuer Trustee, Global Trust Manager, P. T.
Limited (ABN 67 004 454 666)("SECURITY TRUSTEE") and the
Bank of New York, New York Branch ("NOTE TRUSTEE").
A tax file number has/has not been obtained from the
person named above.
Copies of the Master Trust Deed and Master Security Trust
Deed are available for inspection by appointment at the
office of the Global Trust Manager at [ ].
None of the Global Trust Manager, Security Trustee nor
the Issuer Trustee is under any obligation at any time to
repurchase Notes from Noteholders.
The Acknowledgment is not a certificate of title and the
Register of Noteholders on which these Notes are
registered is the only conclusive evidence of the title
of the abovementioned person to the Notes.
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The Issuer Trustee's liability to make payments on the
Notes is limited under the Master Trust Deed and the
Master Security Trust Deed to its right of indemnity from
the assets of the Trust. The Issuer Trustee will (subject
to the terms of the Master Trust Deed) only be liable in
respect of the Notes for anything beyond its actual right
of indemnity from the assets of the Trust in respect of
any negligence, fraud, or breach of trust on the part of
the Issuer Trustee.
None of the Global Trust Manager, the Security Trustee or
the Issuer Trustee guarantees the repayment of the Face
Value of, or the Coupon due on, the Notes.
Transfers of the Notes must be made pursuant to a
transfer form as are available from the Global Trust
Manager at [ ]. Executed transfer forms of the Notes must
be lodged with the Issuer Trustee and be accompanied by
this Acknowledgment.
Each expression in this Acknowledgment that is not
defined herein has the same meaning as in the Master
Trust Deed.
Dated
For and on behalf of
[ISSUER TRUSTEE]
--------------------------- ----------------------------
Authorised Person Authorised Person
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SCHEDULE 6 REGISTER OF NOTEHOLDERS
================================================================================
REGISTER
1 The Issuer Trustee must, in respect of each Trust, keep an up
to date Register in respect of that Trust. The Issuer Trustee
must enter into the Register for a particular Trust:
(a) the name of the Trust;
(b) the names and addresses of the Noteholders;
(c) the number of Notes held by each Noteholder;
(d) the date on which each Noteholder was first registered
in the Register;
(e) the date on which any person ceases to be a Noteholder;
(f) the Coupon (if applicable) payable in relation to the
Note;
(g) the Final Maturity Date (if applicable) in relation to
the Note;
(h) the account into which any payments to a Noteholder are
to be paid (if applicable);
(i) the Issue Price in relation to the Notes;
(j) the Face Value of the Notes;
(k) the Invested Amount in relation to the Notes; and
(l) any other particulars the Global Trust Manager or the
Issuer Trustee agree are desirable or as required under
the relevant Supplemental Deed.
ISSUER TRUSTEE NOT LIABLE FOR MISTAKE
2 The Issuer Trustee is not liable for any mistake in the
Register or in any purported copy except to the extent that
the mistake is attributable to the Issuer Trustee's own fraud,
negligence or breach of trust.
GLOBAL TRUST MANAGER ACCEPT CORRECTNESS
3 The Global Trust Manager is entitled to accept the correctness
of all information contained in the Register and is not liable
to any person for any error in it.
INSPECTION
4 The Global Trust Manager, or Noteholders and their authorised
representatives may inspect that part of the Register which
relates to the Noteholder free of charge at any time when the
Issuer Trustee's registered office is required to be open and
accessible to the public. The Issuer Trustee shall give a copy
of the Register or part of it to the Global Trust Manager
within three Business Days of receipt of a request from the
Global Trust Manager.
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CHANGE IN INFORMATION
5 A Noteholder must advise the Issuer Trustee of any change to
the information noted in the Register in respect of that
Noteholder. Upon receipt of such advice, the Issuer Trustee
must promptly update the information contained in the Register
and copy the updated information to the Global Trust Manager.
CLOSURE
6 The Issuer Trustee from time to time may close the Register
but no part of the Register may be closed for more than 30
days in aggregate in any calendar year.
NOTICE OF OTHER INTEREST
7 Except as otherwise provided in this deed, no notice of any
trust, whether express, implied or constructive, shall be
entered in the Register and neither the Issuer Trustee nor the
Global Trust Manager shall be affected by or compelled to
recognise (even when having notice of it) any right or
interest in any Note other than the Noteholders' absolute
right to the entirety of them and the receipt by a Noteholder
shall be a good discharge to the Issuer Trustee and Global
Trust Manager.
INFORMATION
8 The Global Trust Manager shall furnish the Issuer Trustee with
such information as the Issuer Trustee may reasonably require
to maintain the Register.
CLOSURE TO CALCULATE ENTITLEMENT
9 In order to calculate any payments due to Noteholders and
interest entitlements, the Register may be closed by the
Issuer Trustee from 4:30 pm on such Business Day as the Global
Trust Manager determines from time to time (not exceeding five
Business Days) and recommence at the commencement of business
on the Business Day immediately following the day that such
payments or interest entitlements are payable.
APPOINTMENT OF THIRD PARTY REGISTRAR
10 The Issuer Trustee, with the approval of the Global Trust
Manager, may cause the Register to be maintained by a third
party on its behalf and require that person to discharge the
Issuer Trustee's obligations under this deed in relation to
the Register. The Issuer Trustee is not liable for any act or
omission of such person provided the Issuer Trustee has acted
in good faith and without negligence or breach of trust in
selecting a person competent to perform this function and in
the appointment of the person.
CONCLUSIVENESS OF REGISTER
11 An Acknowledgment is not a certificate of title as to Notes
and subject to the terms of the relevant Note the Register is
the only conclusive evidence of title to Notes.
WORN OUT OR LOST ACKNOWLEDGMENT
12 If an Acknowledgment becomes worn out or defaced, then upon
production of it to the Issuer Trustee, a replacement will be
issued. If
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an Acknowledgment is lost or destroyed, and upon proof of this
to the satisfaction of the Issuer Trustee and the provision of
such indemnity as the Issuer Trustee considers adequate, a
replacement Acknowledgment will be issued. A fee not exceeding
$10 may also be charged by the Issuer Trustee for the new
Acknowledgment if it so requires.
RECTIFICATION OF REGISTER
13 If:
(a) an entry is omitted from the Register; or
(b) an entry is made in the Register otherwise than in
accordance with this deed; or
(c) an entry wrongly exists in the Register; or
(d) there is an error or defect in any entry in the
Register; or
(e) a default is made or an unnecessary delay takes place in
entering into the Register that any person has ceased to
be the holder of a Note or any other information,
the Issuer Trustee may rectify the same and the Issuer Trustee
is not liable for any loss, costs or liability incurred as a
result of any of the foregoing occurring except to the extent
that the loss, costs or liability is the result of fraud,
negligence or breach of trust on behalf of the Issuer Trustee.
72
<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
Occupation of witness ) has received no notice of
) revocation of the power of attorney
SIGNED by )
)
)
on behalf of and SEALED AND )
DELIVERED by HOMESIDE )
GLOBAL MBS MANAGER, INC )
in the presence of: )
)
)
-------------------------------- )
Signature of witness )
)
-------------------------------- )
Name of witness (block letters) )
)
-------------------------------- )
Address of witness ) ------------------------------------
) By executing this deed the signatory
-------------------------------- ) states that the signatory has
Occupation of witness ) received no notice of revocation of
) the authority pursuant to which they
) execute this deed
73
<PAGE>
-------------------------------------
DATED 3 January 2001
HOMESIDE MORTGAGE
SECURITIES TRUSTS
MASTER TRUST DEED
PERPETUAL TRUSTEE COMPANY LIMITED
("ISSUER TRUSTEE")
HOMESIDE GLOBAL MBS MANAGER, INC.
("GLOBAL TRUST MANAGER")
MALLESONS STEPHEN JAQUES
Solicitors
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Telephone (02) 9296 2000
Facsimile (02) 9296 3999
DX 113 Sydney
Ref: CD3:SRF
<PAGE>
CONTENTS MASTER TRUST DEED
================================================================================
1 DEFINITIONS AND INTERPRETATION 2
Definitions Schedule 2
Interpretation 2
2 THE TRUSTS 3
Issuer Trustee 3
Global Trust Manager 3
Declarations of trust 3
Assets vest in Issuer Trustee 3
Assets to be kept separate 3
Supplemental Deeds 3
Name of Trusts 4
Designation and discharge of Liabilities 4
Mixture of Assets 4
No limit to number of Trusts 4
3 DURATION OF THE TRUSTS 4
Commencement 4
Termination 5
Procedure 5
Final Distribution 5
4 INTEREST OF UNITHOLDERS 5
Entitlement to a Trust 5
Restrictions 6
Ranking 6
5 TRANSFERS BETWEEN TRUSTS 7
Power 7
Direction by Global Trust Manager 7
Required information 7
Conditions to acceptance 7
Effect of acceptance 8
Transfers 8
Transfer of rights 9
Adjustments 9
6 TITLE PERFECTION EVENT IN RESPECT OF A TRUST 9
Event 9
Perfection of title 9
Power of Attorney 10
Issuer Trustee to hold Legal Title or
lodge Caveats 10
Other Secured Liabilities 10
7 INVESTMENT 10
Global Trust Manager's role 10
Directions 11
Contingencies 11
Discretion of Global Trust Manager 12
Issuer Trustee to act 12
1
<PAGE>
8 BORROWINGS 13
Borrowings 13
Types of Borrowings 13
Global Trust Manager to select method 13
Security 13
Supplemental Deed 14
Debt of the Issuer Trustee 14
Location of Notes 14
Purpose of Borrowings 14
Global Trust Manager's power 15
No liability attaches to the Global
Trust Manager 15
9 CONDITIONS PRECEDENT TO ISSUE OF NOTES 15
Issue Notice 15
Conditions precedent to issue 15
Conditions precedent to direction to issue 16
10 TERMS OF ISSUE OF NOTES 16
Characteristics 16
Excluded offer or issue 16
Subscriptions by other persons 17
No liability 17
Terms of Notes 18
Acknowledgment of indebtedness 18
11 SUPPORT AND OTHER FACILITIES 18
Facilities 18
Rated issues 19
Manager's Direction 19
Replacement or additional facilities 19
Reduction in rating 19
12 ISSUER TRUSTEE 20
Powers 20
Interests of Secured Creditors paramount 21
Delegation 22
Indemnity 22
Act on expert advice 22
Issuer Trustee's covenants 22
Issuer Trustee's indemnity from Assets 24
Limitation of liability of Issuer Trustee 24
Dealing with instruments 26
Proceedings in respect of a Trust 26
Limitation of Issuer Trustee's liability 27
Issuer Trustee's reliance 28
Issuer Trustee no other duties 28
Global Trust Manager's actions 28
Use of clearing system 28
No supervision or investigation 28
Information 29
Information Memorandum 29
Issuer Trustee decisions 29
Liability for Transaction Documents 30
2
<PAGE>
Representations and warranties 30
Breach of Consumer Credit Legislation 31
13 ISSUER TRUSTEE'S RETIREMENT 31
Notice from Global Trust Manager 31
Issuer Trustee's mandatory retirement 31
Removal 31
New Issuer Trustee 31
Issuer Trustee's voluntary retirement 31
Release 32
Settlement of amounts 32
Costs 32
14 GLOBAL TRUST MANAGER 32
Powers 32
Manager to have discretion 33
Services 33
Delegation 34
Act on expert advice 34
No power to bind Issuer Trustee 34
Global Trust Manager's covenants 34
Further limitation of liability of Global
Trust Manager 36
Global Trust Manager liable 36
Indemnity 37
Representations and warranties 37
Limitation of liability of Global
Trust Manager 38
No liability for non-payment 39
Reporting 39
15 GLOBAL TRUST MANAGER'S RETIREMENT 39
Global Trust Manager's Default 39
Global Trust Manager's Mandatory Retirement 39
Removal 39
Retirement 39
New Global Trust Manager 39
Issuer Trustee act as Global Trust Manager 40
Release 40
Change in terms of appointment 40
Costs 40
16 TRANSFER AND TRANSMISSION OF NOTES 41
No restriction on transfer 41
17 REGISTER OF NOTEHOLDERS 41
Register of Noteholders 41
18 MEETINGS OF NOTEHOLDERS 41
19 LIABILITY OF THE UNITHOLDERS AND CREDITORS 42
Liability limited 42
Recourse limited 42
20 PAYMENTS 42
Satisfaction and discharge 42
3
<PAGE>
Cheques and notices 43
Payments to Noteholders 43
Payment Methods 43
Valid receipts 43
21 PAYMENTS, INCOME AND DISTRIBUTIONS 44
Payments 44
Payment 45
Issuer Trustee to act 45
22 ACCOUNTS AND AUDIT 45
Accounts 45
Audit 45
Establishment of bank accounts 46
Withdrawals 46
23 ADMINISTRATION AND REPORTING 47
Register of Unitholders 47
Transfers 47
Death, legal disability 47
Deductions 47
24 RIGHTS AND LIABILITIES OF GLOBAL TRUST
MANAGER AND ISSUER TRUSTEE 47
Holding Units 47
Other capacities 47
Exercise of discretion 48
25 LIABILITY OF THE UNITHOLDERS AND NOTEHOLDERS 49
Liability limited 49
Recourse limited 49
26 REMUNERATION AND EXPENSES 49
Global Trust Manager 49
Issuer Trustee 49
Expenses 50
Deferral 51
GST 51
Application 51
27 NOTICES 51
Notices 51
Initial addresses 51
Time effective 52
Receipt 52
28 AMENDMENTS TO THIS DEED AND SUPPLEMENTAL DEED 53
Amending power 53
Consent required 53
Amendments prejudicial to Noteholders of a
Class 54
Amendments prejudicial to all Noteholders 54
29 TAX REFORM 54
30 UNITHOLDERS AND SECURED CREDITORS BOUND BY
DEED 56
4
<PAGE>
31 MISCELLANEOUS 56
Certificate 56
Exercise of rights 56
Waiver and variation 56
Supervening legislation 56
Approvals and consent 57
Remedies cumulative 57
Indemnities 57
Time of the essence 57
Receipts 57
Acknowledgment 57
Disclosure of information 57
Rights cumulative 58
Signatures 58
Meetings 58
32 GOVERNING LAW 58
Governing Law 58
Submission to jurisdiction 58
Service 58
33 LIMITED RECOURSE 59
34 COUNTERPARTS 59
SCHEDULE 1 NOTICE OF CREATION OF TRUST 60
SCHEDULE 2 RECEIVABLES TRANSFER DIRECTION 61
SCHEDULE 3 ISSUE NOTICE 63
SCHEDULE 4 MEETINGS OF NOTEHOLDERS 65
SCHEDULE 5 FORM OF ACKNOWLEDGEMENT 69
SCHEDULE 6 REGISTER OF NOTEHOLDERS 71
5
