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EXHIBIT 10.6
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HOMESIDE MORTGAGE SECURITIES TRUSTS
DEED OF DELEGATION
DATE: 2001
PARTIES: HOMESIDE GLOBAL MBS MANAGER, INC. having an office at
7301 Baymeadows Way, Jacksonville, Florida 32256, United
States of America ("GLOBAL TRUST MANAGER")
NATIONAL AUSTRALIA MANAGERS LIMITED (ABN 70 006 437 565)
having its registered office at Level 24, 500 Bourke Street,
Melbourne, Victoria, 3000 ("BOND ADMINISTRATOR")
RECITALS:
A. The Global Trust Manager has entered into a Master Trust
Deed as Global Trust Manager with Perpetual Trustee Company
Limited ("ISSUER TRUSTEE") on or about the date of this deed
which provides for the possible future establishment of
Trusts. Each Trust will be established for the purpose of
issuing securities the proceeds of which will be used from
time to time to purchase or lend against Assets. 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 the Master Trust Deed.
B. The Bond Administrator is appointed and agrees to act as
delegate of the Global Trust Manager in respect of each
Designated Trust with effect from the date of constitution
of the relevant Designated Trust, in accordance with the
terms and conditions of this deed.
1 INTERPRETATION
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1.1 The following words have these meanings in this deed unless
the contrary intention appears.
BLOOMBERG means Bloomberg L.P. or any successor or assign of
Bloomberg L.P. that provides financial information services.
DEFINITIONS SCHEDULE means the deed entitled "HomeSide
Mortgage Securities Trusts Definitions Schedule" dated 3
January 2001 and made between the companies described in
schedule 1 to that deed.
DESIGNATED TRUST means a Trust established under the Master
Trust Deed which the Global Trust Manager and the Bond
Administrator agree, by means of execution of a Designation
Notice, will be subject to this deed.
DESIGNATION NOTICE means a notice substantially in the form
of schedule 1 to this deed or in such other form as the
Global Trust Manager and the Bond Administrator may agree
from time to time.
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DEFINITIONS SCHEDULE
1.2 Except to the extent to which words and phrases are
otherwise defined in this deed, words and phrases defined in
the Definitions Schedule or in the Supplemental Deed for a
Trust shall bear the same meaning in this deed when used in
respect of that Trust. In the event of any inconsistency
between a definition in the Definitions Schedule and the
Supplemental Deed for a Trust, the definitions in the
Supplemental Deed will prevail. No change to the Definitions
Schedule or to the Supplemental Deed for a Trust will affect
the interpretation of this deed unless the change has been
agreed to by the Global Trust Manager and the Bond
Administrator.
OTHER TRANSACTION DOCUMENTS
1.3 Without limiting clause 1.2, except to the extent to which
words and phrases are otherwise defined in this deed, words
and phrases defined in any Transaction Document (other than
the Definitions Schedule or the Supplemental Deed) for a
Trust shall bear the same meaning in this deed when used in
respect of that Trust. No change to a word or phrase defined
in any other Transaction Document will affect the
interpretation of this deed unless the change has been
agreed to by the Global Trust Manager and the Bond
Administrator.
MISCELLANEOUS
1.4 In this deed, unless the contrary intention appears:
(a) a reference to any agreement, deed or document (and
where applicable, any of its provisions) is a reference
to that agreement, deed or document as amended, varied,
novated, supplemented or replaced from time to time;
(b) a reference to a statute, ordinance, code or other law
includes regulations and other instruments under it and
consolidations, amendments, re-enactments or
replacements of any of them;
(c) the singular includes the plural and vice versa;
(d) the word "person" includes a firm, body corporate, an
unincorporated association or an authority;
(e) a reference to a person includes a reference to the
person's executors, administrators, successors,
substitutes (including, without limitation, persons
taking by novation) and assigns;
(f) an agreement, representation or warranty in favour of
two or more persons is for the benefit of them jointly
and severally;
(g) an agreement, representation or warranty on the part of
two or more persons binds them jointly and severally
(provided that an agreement, representation or warranty
on the part of the Issuer Trustee or the Security
Trustee binds it severally only);
(h) a reference to an accounting term is to be interpreted
in accordance with the accounting standards under the
Corporations Law and, if not inconsistent with those
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accounting standards, generally accepted principles and
practices in Australia consistently applied by a body
corporate or as between bodies corporate and over time;
(i) a reference to any thing is a reference to the whole
and each part of it and a reference to a group of
persons is a reference to all of them collectively, to
any two or more of them collectively and to each of
them individually;
(j) a reference to this deed or any other Transaction
Document includes a reference to any applicable
schedule of it;
(k) a reference to a time of day is a reference to that
time in Melbourne;
(l) unless otherwise stated in a Transaction Document, if
an act prescribed under this deed to be done by a party
on or by a given day is done after 5.00 pm on that day,
it is to be taken to be done on the following day;
(m) the Bond Administrator or the Global Trust Manager (as
the case may be) will only be considered to have
knowledge or awareness of, or notice of, a thing, or
grounds to believe any thing, by virtue of the officers
of the Bond Administrator or the Global Trust Manager
(as the case may be) having day to day responsibility
for the administration or management of the Designated
Trust having actual knowledge, actual awareness or
actual notice of that thing, or grounds or reason to
believe that thing (and similar references will be
interpreted in this way);
(n) a party to 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 a party does not prevent a further or other exercise
of that or an exercise of any other right, power or
remedy. Failure by a party to exercise or delay in
exercising a right, power or remedy does not prevent
its exercise;
(o) 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; and
(p) it is not necessary for the indemnified party to incur
expense or make payment before enforcing a right of
indemnity conferred by this deed.
HEADINGS
1.5 Headings are inserted for convenience and do not affect the
interpretation of this deed.
BUSINESS DAY
1.6 When the date on or by which any act, matter or thing is to
be done is not a Business Day, such act, matter or thing
shall be done on the next
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Business Day unless otherwise specified in the relevant
Supplemental Deed.
2 THE BOND ADMINISTRATOR
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APPOINTMENT OF BOND ADMINISTRATOR
2.1 The Global Trust Manager hereby appoints the Bond
Administrator as its delegate for the performance of:
(a) the duties set out in clause 4 of this deed; and
(b) such other duties or variation of the above duties and
covenants as may be specified in the relevant
Designation Notice,
in relation to each Designated Trust. The Bond Administrator
accepts such appointment and hereby agrees to provide such
services as delegate of the Global Trust Manager.
2.2 The Bond Administrator shall be entitled, to take such
actions as may be reasonably necessary to accomplish the
duties described in this deed.
BOND ADMINISTRATOR TO HAVE DISCRETION
2.3 Subject to this deed, the Bond Administrator 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.
ACT ON EXPERT ADVICE
2.4 Subject to this deed, the Bond Administrator 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 Bond
Administrator, the Global Trust Manager or by the Issuer
Trustee. If instructed by the Bond Administrator, with the
prior consent of the Global Trust Manager (which consent
shall not be unreasonably withheld), the Global Trust
Manager shall pay the costs or expenses of obtaining such
advice or information.
INDEMNITY
2.5 The Bond Administrator is indemnified by the Global Trust
Manager in respect of any liability, cost or expense (other
than general overhead costs and expenses) incurred by the
Bond Administrator in connection with the performance of its
obligations or exercise of powers under this deed to the
extent that the Global Trust Manager would be entitled to
paid or reimbursed for such liability, cost or expense from
the Assets of the relevant Designated Trust under clause
26.3 of the Master Trust Deed.
BOND ADMINISTRATOR NOT LIABLE
2.6 The Bond Administrator is not liable:
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(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 Designated
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 Issuer Trustee or the Global Trust
Manager or any act, omission, misconduct, mistake,
oversight, error of judgment, forgetfulness or want of
prudence on the part of the Issuer Trustee or the
Global Trust Manager or other person providing services
or selling assets to or in respect of a Designated
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 the Global
Trust Manager 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 the Global
Trust Manager or any other failure by the Issuer
Trustee or the Global Trust Manager or other person
providing services or selling assets to or in respect
of a Designated Trust to perform their obligations
under or in connection with a Designated 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 Designated Trust or any other person,
except, in all cases, to the extent that such loss, cost,
liability or expense is directly caused by the Bond
Administrator's fraud, negligence, or material breach of
obligation under this deed.
3 STANDARD OF CARE
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3.1 In performing its responsibilities in this deed, the Bond
Administrator must exercise the same care that:
(a) it would exercise in taking actions for its own
account; and
(b) the Global Trust Manager is obliged to take under the
Transaction Documents.
3.2 Notwithstanding any provision to the contrary elsewhere in
this deed:
(a) the Bond Administrator will not have any duties or
responsibilities under this deed except those expressly
set forth in this deed or in a Designation Notice; and
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(b) no implied covenants, functions, responsibilities,
duties (fiduciary or otherwise), obligations or
liabilities will be read into this deed or otherwise
exist against the Bond Administrator.
3.3 The Bond Administrator will be entitled to conclusively rely
upon:
(a) any communication, instrument or document believed by
it to be genuine and correct and to have been signed or
sent by an Authorised Person of the Global Trust
Manager or the Issuer Trustee, or any other person; and
(b) opinions and judgments of attorneys, accountants,
experts and other professional advisors selected by it
with reasonable care or selected by the Global Trust
Manager or the Issuer Trustee.
The Bond Administrator will in all cases be fully protected
in acting, or in refraining from acting, under this deed in
accordance with the directions of the Global Trust Manager,
but only to the extent that the relevant action, or failure
to act, was necessary in order to comply with the directions
of the Global Trust Manager.
4 BOND ADMINISTRATOR'S UNDERTAKINGS
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The Bond Administrator agrees to perform and provide the following services to
the Global Trust Manager in respect of each Designated Trust, until the Bond
Administrator retires or is removed in accordance with this deed:
(a) to make available for inspection by the Issuer Trustee and the Auditor
during normal business hours and after receipt of reasonable notice, all
relevant books, records and reports of the Bond Administrator relating to
each Designated Trust to the extent that such books, records, and reports
are kept at the offices of the Bond Administrator;
(b) to 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 Bond Administrator relating to the Assets of the
Designated Trust;
(c) to keep all accounting records which correctly record all amounts paid and
received in connection with each Designated Trust by the Issuer Trustee (to
the extent that the Issuer Trustee or the Global Trust Manager has notified
the Bond Administrator of them);
(d) within a reasonable time of request (having regard to the information
requested), render statements or copies of such books or accounts and
complete and accurate records to the Global Trust Manager;
(e) to cooperate in all audits of each Designated Trust, the Global Trust
Manager (to the extent such an audit relates to a Designated Trust) or the
Issuer Trustee (to the extent such an audit relates to a Designated Trust);
(f) to prepare (or have prepared) and submit to the Issuer Trustee for signing
and filing on a timely basis all income tax returns to be filed with
respect to each Designated Trust;
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(g) to ensure that sufficient Assets of each Designated Trust are in
immediately available funds to enable the Issuer Trustee to give effect to
the Global Trust Manager's decisions (where the Bond Administrator has
directed the Issuer Trustee or has otherwise been provided with sufficient
prior notification of the decision) and the determinations made by the Bond
Administrator as delegate of the Global Trust Manager under this deed;
(h) to recommend at its discretion Authorised Investments to the Issuer Trustee
and direct the Issuer Trustee in relation to those Authorised Investments,
setting out the steps which the Issuer Trustee must take;
(i) to prepare and provide an Issue Notice to the Issuer Trustee no later than
2 Business Days prior to the proposed Issue Date (or such other time as the
Bond Administrator (on behalf of the Global Trust Manager) and the Issuer
Trustee may agree) for the Issue of any Notes including Redraw Notes (in so
doing, the Bond Administrator is entitled to assume that, without
limitation, clauses 9.3 and 10.2 of the Master Trust Deed are satisfied
unless it has received notification to the contrary from the Global Trust
Manager);
(j) be responsible for monitoring any Clean Up Option and notify the Global
Trust Manager of such pending event at least 10 Business Days prior to any
expected Call Option Date;
(k) prepare (or have prepared) and maintain all accounts, ledgers, financial
records and reports and the tax returns of each Designated Trust;
(l) make any filings required in connection with each Designated Trust or its
Assets with any Governmental Agency in Australia except any filings that
the Issuer Trustee is required to make in relation to its capacity as
trustee of the Designated Trust;
(m) allocate the principal and income in relation to each Designated Trust, and
other amounts credited to the Collections Account for that Designated
Trust;
(n) calculate the distributions to be paid and direct the Issuer Trustee to pay
such distributions;
(o) on or before each Determination Date, determine in respect of each
Designated Trust (with the final amounts to be approved by the Global Trust
Manager (provided that if the Global Trust Manager does not approve or
disapprove such final amounts within two Business Days of receipt of
request for approval (or such other time frame as may be agreed to by each
party from time to time), no such approval of the Global Trust Manager will
be required) the following (or, if inconsistent with the following, the
determinations and payments to be made on each Payment Date in accordance
with the relevant Supplemental Deed):
(i) Finance Charge Collections;
(ii) Other Income;
(iii) Mortgage Insurance Interest Proceeds;
(iv) Available Income;
(v) Total Available Income;
(vi) Principal Draw (if any);
(vii) Liquidity Draw (if any);
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(viii) Expenses of the Trust;
(ix) Required Payments;
(x) Excess Available Income;
(xi) Principal Collections;
(xii) Redraw Shortfall;
(xiii) Principal Charge-Offs and Carryover Principal Charge-Offs;
(xiv) Extraordinary Expenses;
(xv) Enforcement Expenses; and
(xvi) any other relevant determinations;
(p) at the times required under the terms of the relevant Liquidity Facility
Agreement or Redraw Facility Agreement (as applicable) or such other times
as may be agreed between the Bond Administrator (on behalf of the Global
Trust Manager) and the Issuer Trustee under those documents, direct the
Issuer Trustee to make Principal Draws and/or Liquidity Draws and/or
drawings under the Redraw Facility Agreement when necessary, but only after
having any such proposed direction approved by the Global Trust Manager
(provided that if the Global Trust Manager does not approve or disapprove
such direction within two Business Days of receipt of a request for
approval (or such other timeframe as may be agreed between each party from
time to time) no such approval of the Global Trust Manager will be
required);
(q) notify the Global Trust Manager when the current aggregate Outstanding
Principal Balance of Purchased Mortgage Loans equals or first falls below
10% of the original aggregate Outstanding Principal Balance of those
Mortgage Loans;
(r) on or before the time the Global Trust Manager is obliged to send such a
statement under the Transaction Documents, prepare and send a reporting
statement to the Issuer Trustee, the Paying Agents and the Note Trustee
(setting forth the Invested Amount of each class of Notes, Interest Rates
on the Notes and other relevant calculations), but only after having such
proposed reports approved by the Global Trust Manager (provided that if the
Global Trust Manager does not approve or disapprove such final amounts
within two Business Days of a request for approval (or such other time
frame as may be agreed to by each party from time to time) no such approval
of the Global Trust Manager will be required);
(s) on or around each Determination Date, send a copy of the report prepared
under (r) above to the Current Rating Agencies, Bloomberg and any other
provider of financial information agreed to by the Bond Administrator and
the Global Trust Manager;
(t) 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;
(u) promptly notify the Global Trust Manager if it becomes actually aware of a
material breach of a Transaction Document, but the Bond Administrator is
not by virtue of this clause responsible or liable to investigate;
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(v) provide sufficient information to Bloomberg (to the extent such information
is in the possession of the Bond Administrator) to enable Bloomberg to
provide up-to-date modelling of the Senior Notes issued in respect of each
Designated Trust;
(w) arrange for audits of the financial reports of each Designated Trust as
required under the Transaction Documents and obtain the consent of the
Global Trust Manager to the remuneration of the auditor for performing such
service (provided that if the Global Trust Manager does not provide its
consent within five Business Days of receipt of a request for consent (or
such other timeframe as may be agreed between each party from time to
time), no such consent of the Global Trust Manager will be required);
(x) arrange for (and instruct the auditor in relation to) the audit reviews
required under clause 4 of the Servicing Agreement and use its best
endeavours to ensure the Global Trust Manager is provided with a copy of
the reports received from the auditor in connection with such reviews;
(y) calculate the Threshold Rate if required under the Transaction Documents;
(z) request the Servicer to transfer Collections to the Collections Account on
each Determination Date or as otherwise required under the Transaction
Documents and;
(aa) provide a written direction to the Issuer Trustee to enter into the initial
Support Facilities or Derivative Contracts in respect of each Designated
Trust.
5 GLOBAL TRUST MANAGER'S COVENANTS
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5.1 The Global Trust Manager covenants with the Bond
Administrator in respect of each Designated Trust that it
will, until the Designated Trust is terminated in accordance
with this deed and winding up of the Designated Trust is
completed or until the Bond Administrator has retired or
been removed in accordance with this deed:
(a) advise the Bond Administrator of the Accrued Interest
Adjustment (if any) no later than 5 Business Days prior
to the first Determination Date;
(b) provide or procure the provision of a copy of the
Servicer's Statement and any other information which
the Bond Administrator may require in connection with a
Determination Date as soon as reasonably practical
after receipt of the Servicer's Statement by the Global
Trust Manager, and in any event the Global Trust
Manager shall use its best endeavours to provide the
Servicer's Statement at least 3 Business Days prior to
each Determination Date;
(c) use its best endeavours to procure that the Issuer
Trustee will forward promptly to the Bond Administrator
copies of all notices, reports, circulars and other
documents required to be provided to the Global Trust
Manager under clause 12.6(e) of the Master Trust Deed;
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(d) use its best endeavours to procure that the Issuer
Trustee will provide the Bond Administrator with copies
of all documents required to be provided to the Global
Trust Manager under clause 12.6(q) of the Master Trust
Deed;
(e) authorise and direct the Issuer Trustee to appoint a
firm agreed between the Global Trust Manager and the
Bond Administrator as tax agent to prepare and lodge
the taxation returns of each Designated Trust;
(f) promptly respond in writing to all requests from the
Bond Administrator for approval or confirmation
(however, where the parties have agreed a time frame
within which the Global Trust Manager can provide an
approval or confirmation and have agreed in accordance
with this deed that approval or confirmation shall not
be necessary if the Global Trust Manger has not
responded within this time frame, the Global Trust
Manager shall not be obliged to respond to the relevant
request);
(g) upon receipt by the Global Trust Manager or promptly
following a request by the Bond Administrator, use its
best endeavours to provide the Bond Administrator with
such information as is reasonably requested or
necessary for the Bond Administrator to perform its
responsibilities hereunder, including, without
limitation, any information with respect to the Assets,
the Support Facilities and any other Transaction
Documents;
(h) immediately notify the Bond Administrator if it
provides notice of its proposed retirement from the
management of the Designated Trusts to the Issuer
Trustee, including the date of such proposed
retirement;
(i) notify the Bond Administrator of any amendments to any
Transaction Document or change in party to a
Transaction Document or change in address for notices
in connection with any Transaction Document promptly
upon becoming aware of such amendment or change; and
(j) furnish the Bond Administrator with any other
information which it might reasonably require in
connection with its duties under this deed.
6 COMPENSATION OF THE BOND ADMINISTRATOR
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6.1 In consideration of the Bond Administrator performing its
function and duties in respect of each Designated Trust, it
will be paid a fee by the Global Trust Manager in respect of
each Designated Trust quarterly in arrears on each Payment
Date equal to the product of (in respect of each Designated
Trust):
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(a) the Total Invested Amount of all Notes on the last day
of the Quarter ending immediately before that Payment
Date;
(b) such rate as is agreed by the Global Trust Manager and
the Bond Administrator from time to time, plus any GST
which may be applicable; and
(c) the number of days between the immediately preceding
Payment Date (or, if there is no preceding Payment
Date, the Closing Date) and the current Payment Date
divided by 365 days.
The fee shall accrue due from day to day.
6.2 The Bond Administrator will provide the Global Trust Manager
with any reasonable documentation required for GST purposes
so as to enable the recipient to receive an input tax credit
or tax refund for GST purposes.
7 REPRESENTATIONS AND WARRANTIES
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REPRESENTATIONS AND WARRANTIES
7.1 The Bond Administrator represents and warrants (except in
relation to matters disclosed to the Global Trust Manager by
the Bond Administrator and accepted by the Global Trust
Manager in writing) that:
(a) (INCORPORATION AND EXISTENCE) it has been incorporated
as a company limited by shares in accordance with the
laws of its place of incorporation, is validly existing
under those laws and has power and authority to carry
on its business as it is now being conducted;
(b) (POWER) it has power to enter into and observe its
obligations under this deed;
(c) (NO CONTRAVENTION OR EXCEEDING POWER) this deed and the
transactions under it which involve it do not
contravene its constituent documents (if any) or any
law or obligation by which it is bound or to which any
of its assets are subject or cause a limitation on its
powers or the powers of its directors to be exceeded;
and
(d) (AUTHORISATIONS) it has in full force and effect the
authorisations necessary for it to enter into this
deed, to observe its obligations and to allow them to
be enforced;
(e) (VALIDITY OF OBLIGATIONS) its obligations under this
deed are valid and binding and are enforceable against
it in accordance with their terms (subject to laws and
defences affecting creditors' rights generally and the
availability of equitable remedies);
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(f) (BENEFIT) it benefits by entering into this deed to
which it is a party; and
(g) (NOT A TRUSTEE) unless otherwise disclosed in writing
to the Global Trust Manager, it does not enter into
this deed in the capacity of a trustee; and
(h) (NO IMMUNITY) it does not have immunity from the
jurisdiction of a court or from legal process.
7.2 The Global Trust Manager represents and warrants (except in
relation to matters disclosed to the Bond Administrator by
the Global Trust Manager and accepted by the Bond
Administrator in writing) that:
(a) (INCORPORATION AND EXISTENCE) it has been incorporated
as a company limited by shares in accordance with the
laws of its place of incorporation, is validly existing
under those laws and has power and authority to carry
on its business as it is now being conducted; and
(b) (POWER) it has power to enter into this deed and to
comply with its obligations under it; and
(c) (NO CONTRAVENTION OR EXCEEDING POWER) this deed and the
transactions under it which involve it do not
contravene its constituent documents (if any) or any
law or obligation by which it is bound or to which any
of its assets are subject or cause a limitation on its
powers or the powers of its directors to be exceeded;
and
(d) (AUTHORISATIONS) it has in full force and effect the
authorisations necessary for it to enter into this
deed, to comply with its obligations and to allow them
to be enforced; and
(e) (VALIDITY OF OBLIGATIONS) its obligations under this
deed are valid and binding and are enforceable against
it in accordance with their terms (subject to laws and
defences affecting creditors' rights generally and the
availability of equitable remedies); and
(f) (BENEFIT) it benefits by entering into this deed to
which it is a party; and
(g) (NOT A TRUSTEE) unless otherwise disclosed in writing
to the Bond Administrator, it does not enter into this
deed as trustee; and
(h) (NO IMMUNITY) it does not have immunity from the
jurisdiction of a court or from legal process.
CONTINUATION OF REPRESENTATIONS AND WARRANTIES
7.3 The representations and warranties in this clause 7 are
deemed to be repeated on each date Notes are issued under a
Designated Trust after
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the date of this deed with reference to then current
circumstances. The party giving a representation or warranty
agrees to notify the other of anything that happens which
would mean it could not truthfully repeat all its
representations and warranties in this clause 7 on that date
by reference to the then current circumstances.
8 EFFECTIVENESS; BENEFITS OF AGREEMENT
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8.1 With the sole exception of the Bond Administrator's
responsibilities under clause 4(aa) of this deed, which may
be performed prior to the execution of the Supplemental Deed
in respect of the relevant Designated Trust, this deed will
become effective upon:
(a) the execution and delivery by the Global Trust Manager
and the Bond Administrator of this deed;
(b) the execution and delivery by the Issuer Trustee and
the Global Trust Manager of the Master Trust Deed; and
(c) in respect of a Designated Trust, the execution and
delivery by the Issuer Trustee and the Global Trust
Manager of the Supplemental Deed in respect of that
Designated Trust and the execution and delivery by the
Global Trust Manager and the Bond Administrator of a
Designation Notice in respect of that Designated Trust.
8.2 Subject to clause 8.3, no party may assign its rights or
delegate its obligations under this deed without the prior
written consent of the other party. The Bond Administrator
may, pursuant to a deed of sub-delegation or otherwise,
authorise any person or persons to act as its sub-delegate
(in the case of a joint appointment, either severally or
jointly and severally) to perform any or all of its
functions under this deed in respect of a Designated Trust
and to perform any act or exercise any discretion within the
Bond Administrator's power. The Bond Administrator remains
liable for the performance of all of its obligations under
this deed notwithstanding any such appointment.
8.3 The Bond Administrator may delegate to any related body
corporate or any officer of it or any related body corporate
without the consent of the Global Trust Manager, but the
Bond Administrator shall at all times remain liable for the
acts and omissions of any such delegate.
8.4 Nothing expressed or implied in this deed is intended or
should be construed to confer upon or to give to any person,
other than the parties to this deed and their respective
successors and assigns, any right, remedy or claim under or
by reason of this deed or of any term, covenant or condition
under this deed.
8.5 All of the terms, covenants, conditions, promises and
agreements contained in this deed shall be for the sole and
exclusive benefit of the parties to this deed and their
respective successors and assigns.
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8.6 National Australia Managers Limited may by deed novate its
rights and obligations under this deed with the consent of
the Global Trust Manager. Upon any such assignment and
novation, National Australia Managers Limited shall be
discharged and released from all obligations and liabilities
under and in connection with this deed, except in respect of
any antecedent material breach, negligence or wilful default
by it.
9 BOND ADMINISTRATOR'S LIABILITY; INDEMNITY
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9.1 The Bond Administrator assumes no liability for anything
under this deed other than to render or stand ready to
render the duties provided for in this deed. In addition,
except as set forth in clause 9.4 and 9.5 below, the Bond
Administrator shall not be liable for, nor shall have any
obligation with respect to, any of the liabilities, whether
direct or indirect, absolute or contingent, of the Global
Trust Manager in connection with any of the Transaction
Documents.
9.2 All services to be performed by the Bond Administrator under
this deed may be furnished by an officer or employee of the
Bond Administrator or, subject to clause 8, any other person
designated by it.
9.3 The Global Trust Manager recognises that the accuracy and
completeness of the records maintained and the information
supplied by the Bond Administrator under this deed is
dependent upon the accuracy and completeness of the
information obtained by the Bond Administrator from the
parties to the Transaction Documents and other sources. The
Bond Administrator will not be responsible for any
inaccuracy in the information so obtained or for any
inaccuracy in the records maintained, notices prepared,
calculations or determinations made or information
distributed by the Bond Administrator under or in connection
with this deed which may result therefrom.
9.4 The Bond Administrator agrees that if:
(a) it or any of its officers, employees, directors or
agents shall breach any of its duties under clause 2 of
this deed in any respect; and
(b) as a direct result of such failure the Global Trust
Manager incurs (whether as a result of any action so
taken or omitted to be taken in violation of the terms
hereof) any costs, expenses, actions, suits, judgments,
demands, damages, losses or liabilities (including,
without limitation, reasonable attorneys' fees and
expenses) (collectively, the "INDEMNIFIED EXPENSES"),
then the Bond Administrator agrees to indemnify and hold
harmless the Global Trust Manager for such Indemnified
Expenses.
9.5 Without limitation to the foregoing, the Bond Administrator
hereby agrees to indemnify the Global Trust Manager, and
hold it harmless
<PAGE>
15
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from and against any and all damages, losses, liabilities,
reasonable costs and expenses incurred by it resulting from
the Bond Administrator's fraud, negligence or material
breach of obligation under this deed. The indemnities set
forth in this clause 9.5 will survive any termination of
this deed.
9.6 The Global Trust Manager agrees to indemnify, defend and
hold harmless the Bond Administrator from and against and
reimburse the Bond Administrator for any and all claims,
expenses, obligations, liabilities, losses, damages,
injuries (to person, property, or natural resources),
penalties, stamp or other similar taxes, actions, suits,
judgments, reasonable costs and expenses (including legal
costs and expenses charged at the usual rates of the
relevant legal services provider) of whatever kind or nature
regardless of their merit, demanded, asserted or claimed
against the Bond Administrator directly or indirectly
relating to, or arising from, claims against the Bond
Administrator by reason of its participation in the
transactions contemplated by this deed, except in each case
to the extent caused by the Bond Administrator's fraud,
negligence or material breach of obligation under this deed.
The provisions of this clause 8.6 shall survive the
termination of this deed or the earlier resignation or
removal of the Bond Administrator.
9.7 The Bond Administrator acknowledges and agrees that it shall
not be entitled to make a claim for or to seek or obtain
from the Global Trust Manager any damages, losses,
liabilities, costs or expenses pursuant to clause 12.9 of
the Master Trust Deed if and to the extent that such
damages, losses, liabilities, costs or expenses arise or
arose directly or indirectly from the Bond Administrator's
fraud, negligence or material breach of obligation under
this deed.
9.8 The Global Trust Manager agrees to allow the Bond
Administrator, as its delegate, to rely upon the provisions
of the Master Trust Deed which apply to the Global Trust
Manager.
9.9 The Bond Administrator acknowledges and agrees that, where
this deed provides for confirmation or approval by the
Global Trust Manager in connection with the performance of
an obligation of the Bond Administrator, the Global Trust
Manager may, in the absence of knowledge to the contrary,
assume the correctness of any information provided to the
Global Trust Manager by the Bond Administrator for the
purposes of that confirmation or approval.
10 RETIREMENT AND TERMINATION
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RETIREMENT
10.1 The Bond Administrator may retire from the administration of
all of the Designated Trusts upon giving 6 months' written
notice to the Global Trust Manager (or such other period as
the Global Trust Manager and the Bond Administrator may
agree).
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16
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TERMINATION
10.2 (a) Unless earlier terminated as described in clause
10.1 or 10.2(b), this deed shall terminate
(i) in whole, upon the termination of the Master
Trust Deed; and
(ii) in respect of a Designated Trust, upon
termination of the Global Trust Manager's
management obligations in respect of a
Designated Trust.
(b) The Global Trust Manager may terminate this deed at any
time upon 1 month's written notice to the Bond
Administrator (or such other period as agreed between
the Global Trust Manager and the Bond Administrator),
or immediately upon written notice to the Bond
Administrator in the case of negligence or wilful
default on the part of the Bond Administrator.
11 NOTICES
-------------------------------------------------------------------------------
FORM
11.1 Any notice, request, certificate, approval, demand, consent
or other communication to or with any person in connection
with this deed:
(a) must be given by an Authorised Person of the relevant
party; and
(b) must be in writing; and
(c) must be left at the address of the addressee, or sent
by prepaid ordinary post (airmail if posted to or from
a place outside Australia) to the address of the
addressee, or sent by facsimile to the facsimile number
of the addressee, or sent by e-mail to the e-mail
address of the addressee specified in clause 10.4 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.
WHEN NOTICES TAKE EFFECT
11.2 Unless a later time is specified in it, a notice,
approval, demand, consent or other communication to or
with a person takes effect from the time it is
received.
WHEN RECEIVED
11.3 A notice, request, certificate, demand, consent or
other communication under this deed is deemed to have
been received:
(a) in the case of delivery in person, upon receipt
at the relevant office;
(b) in the case of a posted letter, on the third
(seventh if posted to or from a place outside
Australia) day after posting;
<PAGE>
17
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(c) 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; and
(d) in the case of an e-mail, on receipt by the
sender of an e-mail from the recipient stating
that the e-mail was delivered in its entirety
and the contents and attachments of the e-mail
have been received.
INITIAL CONTACT DETAILS
11.4 The initial address, facsimile and telephone numbers of
the Global Trust Manager and Bond Administrator are:
(a) in the case of the Global Trust Manager:
Address: 7301 Baymeadows Way
Jacksonville
Florida 32256
United States of America
Attention: General Counsel
Facsimile: 904 281 3062
E-mail: [email protected]
(b) in the case of the Bond Administrator:
Address: 3rd Floor South
271 Collins Street
Melbourne VIC 3000
Attention: Senior Executive, Securitisation
Facsimile: [(03) 9659 6927]
E-mail: [email protected]
12 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
-------------------------------------------------------------------------------
GOVERNING LAW
12.1 This deed is governed by the law in force in the Australian
Capital Territory and the rights, liabilities and
obligations of the parties to it are governed by the laws in
force in the Australian Capital Territory.
NON-EXCLUSIVE JURISDICTION
12.2 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.
<PAGE>
18
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SERVICE OF PROCESS
12.3 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 11.
13 MISCELLANEOUS
-------------------------------------------------------------------------------
CERTIFICATE
13.1 A certificate signed by any party or their respective
solicitors about a matter or about a sum payable to such
party in connection with a Transaction Document is prima
facie evidence of the matter or of the amount or of any
other factual matter stated in it.
EXERCISE OF RIGHTS
13.2 Any party 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 any party does not prevent a
further exercise of that or any other right, power or
remedy. Failure by any party to exercise or delay in
exercising a right, power or remedy does not prevent its
exercise. No party is liable for any loss caused by the
exercise, attempted exercise, failure to exercise or delay
in exercising a right, power or remedy whether or not caused
by that party's negligence.
WAIVER AND VARIATION
13.3 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
13.4 Any present or future legislation which operates to vary the
obligations of a party in connection with this deed with the
result that the rights, powers or remedies of another party
are adversely affected (including, without limitation, by
way of delay or postponement) is excluded except to the
extent that its exclusion is prohibited or rendered
ineffective by law.
APPROVALS AND CONSENTS
13.5 Any party may give conditionally or unconditionally or
withhold its approval or a consent in its absolute
discretion unless this deed expressly provides otherwise.
REMEDIES CUMULATIVE
13.6 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
13.7 Each indemnity in this deed is a continuing obligation,
separate and independent from the other obligations of the
parties and survives termination of this deed. It is not
necessary for any party to incur
<PAGE>
19
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expense or make payment before enforcing a right of
indemnity conferred by this deed.
FURTHER ASSURANCES
13.8 The Bond Administrator must at its own expense execute and
cause its successors to execute the documents and do
everything necessary or appropriate to bind the Bond
Administrator and its successors under this deed.
14 CONFIDENTIALITY
-------------------------------------------------------------------------------
CONFIDENTIALITY
14.1 Unless a Transaction Document expressly states otherwise,
each party agrees not to disclose information provided by
any other party that is not publicly available except:
(a) in connection with any person exercising rights or
dealing with rights or obligations under a Transaction
Document (including in connection with preparatory
steps such as negotiating with any potential assignee
or other person who is considering contracting with the
Global Trust Manager in connection with a Transaction
Document); or
(b) to officers, employees, legal and other advisers and
auditors of the Global Trust Manager or Bond
Administrator; or
(c) to any party to this deed or any Related Entity of any
party to this deed, provided the recipient agrees to
act consistently with this clause 14; or
(d) with the disclosing party's consent (not to be
unreasonably withheld); or
(e) as allowed by any law or stock exchange.
Each party consents to disclosures made in accordance with
this clause 14.1.
15 NO JOINT VENTURE
-------------------------------------------------------------------------------
Nothing contained in this deed shall constitute the Global
Trust Manager and the Bond Administrator, as members of any
partnership, joint venture, association, syndicate or
unincorporated business.
16 COUNTERPARTS
-------------------------------------------------------------------------------
This deed may consist of a number of counterparts and the
counterparts taken together constitute one and the same
instrument.
<PAGE>
20
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17 LIMITATION OF LIABILITY
-------------------------------------------------------------------------------
GLOBAL TRUST MANAGER
17.1 The Global Trust Manager enters into each Transaction
Document to which it is a party in its capacity as manager
of a Trust and in no other capacity.
17.2 Despite anything else contained in any Transaction Document,
the Global Trust Manager has no liability under any
Transaction Document or in respect of any cause of action,
claim or loss arising:
(a) under or in connection with any Transaction Document;
(b) in connection with any transaction, conduct or other
agreement contemplated by any Transaction Document;
(c) under or in connection with (to the extent permitted by
law) any representation or undertaking given in
connection with any Transaction Document; or
(d) under or in connection with any breach of, or default
under, any Transaction Document or the occurrence of an
Event of Default,
whether to pay any moneys or to compensate for any loss or
damage however arising, in any case except where the Global
Trust Manager has breached its express undertakings,
indemnities, representations or warranties as Global Trust
Manager of the Trust.
17.3 Where in any Transaction Document, the Global Trust Manager
has a discretion with respect to an action or refraining
from an action, such discretion may only be exercised in
accordance with the Transaction Documents.
17.4 Without limiting any other provision of this clause 17, each
party agrees and acknowledges that it must not, in respect
of any liability, cause of action, claim or loss referred to
in clause 17.2 (except where the Global Trust Manager has
breached its express undertakings, indemnities,
representations or warranties as Global Trust Manager of the
Designated Trust):
(a) appoint or seek to appoint an administrator or
liquidator to the Global Trust Manager;
(b) commence or seek for winding up, dissolution, official
management or administration of the Global Trust
Manager;
(c) appoint or seek to appoint a receiver, receiver or
manager, administrator receiver or similar official to
all or any of the assets of the Global Trust Manager;
(d) bring, support or assert any claim, demand, action,
suit or proceeding against the Global Trust Manager or
any assets of the Global Trust Manager, whether at law
or in equity;
<PAGE>
21
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(e) levy or enforce or seek to attempt to levy or enforce a
distress or other execution upon or against any assets
of the Global Trust Manager;
(f) exercise any right of set-off or counterclaim against
or in respect of the Global Trust Manager; or
(g) obtain, or seek to attempt to obtain, any judgment,
order or declaration against or in respect of the
Global Trust Manager or any of its assets.
BOND ADMINISTRATOR
17.5 Despite anything else contained in any Transaction Document,
the Bond Administrator has no liability under any
Transaction Document or in respect of any cause of action,
claim or loss arising:
(a) under or in connection with any Transaction Document;
(b) in connection with any transaction, conduct or other
agreement contemplated by any Transaction Document;
(c) under or in connection with (to the extent permitted by
law) any representation or undertaking given in
connection with any Transaction Document; or
(d) under or in connection with any breach of, or default
under, any Transaction Document or the occurrence of an
Event of Default,
whether to pay any moneys or to compensate for any loss or
damage however arising, in any case except where the Bond
Administrator has breached its express undertakings,
indemnities, representations or warranties as Bond
Administrator of the relevant Designated Trust.
17.6 Without limiting any other provision of this clause 17, each
party agrees and acknowledges that it must not, in respect
of any liability, cause of action, claim or loss referred to
in clause 17.5 (except where the Global Trust Manager has
breached its express undertakings, indemnities,
representations or warranties as Bond Administrator of the
relevant Designated Trust):
(a) appoint or seek to appoint an administrator or
liquidator to the Bond Administrator;
(b) commence or seek for winding up, dissolution, official
management or administration of the Bond Administrator;
(c) appoint or seek to appoint a receiver, receiver or
manager, administrator receiver or similar official to
all or any of the assets of the Bond Administrator;
(d) bring, support or assert any claim, demand, action,
suit or proceeding against the Bond Administrator or
any assets of the Bond Administrator, whether at law or
in equity;
<PAGE>
22
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(e) levy or enforce or seek to attempt to levy or enforce a
distress or other execution upon or against any assets
of the Bond Administrator;
(f) exercise any right of set-off or counterclaim against
or in respect of the Bond Administrator; or
(g) obtain, or seek to attempt to obtain, any judgment,
order or declaration against or in respect of the Bond
Administrator or any of its assets.
17.7 The provisions of this clause 17:
(a) are paramount and apply regardless of any other
provision of a Transaction Document or other
instrument, even a provision which seeks to apply
regardless of any other provision; and
(b) survive and enure beyond the termination of any
Transaction Document for any reason; and
are not severable from this deed or any other Transaction
Document.
EXECUTED as a deed.
<PAGE>
23
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SCHEDULE 1 FORM OF DESIGNATION NOTICE
-------------------------------------------------------------------------------
To: National Australia Managers Limited ("BOND ADMINISTRATOR")
This is a Designation Notice given under the HomeSide Mortgage Securities
Trusts Deed of Delegation dated [ ] between HomeSide Global MBS
Manager, Inc. ("GLOBAL TRUST MANAGER") and the Bond Administrator ("DEED OF
DELEGATION").
Each of the Global Trust Manager and the Bond Administrator designate the
following Trust as a "Designated Trust" pursuant to clause 2.1 of the Deed of
Delegation: [HomeSide Mortgage Securities Trust 2001-1].
[For the purposes of clause 2.1(c) the Global Trust Manager hereby appoints the
Bond Administrator as its agent for the performance of the following additional
duties [or proposes a variation to the duties specified in clause 2.1]:
[ ]].
Terms defined or assigned in the Deed of Delegation have the same meaning when
used in this Designation Notice.
Dated: [ ]
For and on behalf of the Global Trust Manager
---------------------------------------------
Authorised Person
We accept the designation described above [and agree to perform the [additional
duties/duties as varied] as described above].
For and on behalf of the Bond Administrator
---------------------------------------------
Authorised Person
<PAGE>
24
-------------------------------------------------------------------------------
EXECUTION PAGE
-------------------------------------------------------------------------------
SIGNED, SEALED AND DELIVERED )
by )
as attorney for NATIONAL AUSTRALIA )
MANAGERS LIMITED under power of )
attorney dated )
)
in the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) )
)
................................ ) ................................
Address of witness ) By executing this deed the
) attorney states that the attorney
................................ ) has received no notice of
Occupation of witness ) revocation of the power of attorney
)
SIGNED by )
)
)
on behalf of and SEALED AND )
DELIVERED by HOMESIDE GLOBAL MBS )
MANAGER, INC. in the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) ) ................................
) By executing this deed the
................................ ) signatory states that the
Address of witness ) signatory has received no notice
) of revocation of the authority
................................ ) pursuant to which they execute
Occupation of witness ) this deed
<PAGE>
1
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CONTENTS DEED OF DELEGATION
HOMESIDE MORTGAGE SECURITIES TRUSTS
-------------------------------------------------------------------------------
1 INTERPRETATION...........................................................1
DEFINITIONS SCHEDULE.........................................................2
MISCELLANEOUS................................................................2
HEADINGS.....................................................................3
BUSINESS DAY.................................................................3
2 THE BOND ADMINISTRATOR...................................................4
APPOINTMENT OF BOND ADMINISTRATOR............................................4
BOND ADMINISTRATOR TO HAVE DISCRETION........................................4
ACT ON EXPERT ADVICE.........................................................4
BOND ADMINISTRATOR NOT LIABLE................................................4
3 STANDARD OF CARE.........................................................5
4 BOND ADMINISTRATOR'S UNDERTAKINGS........................................6
5 GLOBAL TRUST MANAGER'S COVENANTS.........................................9
6 COMPENSATION OF THE BOND ADMINISTRATOR..................................10
7 REPRESENTATIONS AND WARRANTIES..........................................11
REPRESENTATIONS AND WARRANTIES..............................................11
CONTINUATION OF REPRESENTATIONS AND WARRANTIES..............................12
8 EFFECTIVENESS; BENEFITS OF AGREEMENT....................................13
9 BOND ADMINISTRATOR'S LIABILITY; INDEMNITY...............................14
10 RETIREMENT AND TERMINATION..............................................15
RETIREMENT..................................................................15
TERMINATION.................................................................16
11 NOTICES.................................................................16
FORM........................................................................16
<PAGE>
2
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WHEN NOTICES TAKE EFFECT....................................................16
WHEN RECEIVED...............................................................16
INITIAL CONTACT DETAILS.....................................................17
12 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS......................17
GOVERNING LAW...............................................................17
NON-EXCLUSIVE JURISDICTION..................................................17
SERVICE OF PROCESS..........................................................18
13 MISCELLANEOUS...........................................................18
CERTIFICATE.................................................................18
EXERCISE OF RIGHTS..........................................................18
WAIVER AND VARIATION........................................................18
SUPERVENING LEGISLATION.....................................................18
APPROVALS AND CONSENTS......................................................18
REMEDIES CUMULATIVE.........................................................18
INDEMNITIES.................................................................18
FURTHER ASSURANCES..........................................................19
14 CONFIDENTIALITY.........................................................19
CONFIDENTIALITY.............................................................19
15 NO JOINT VENTURE........................................................19
16 COUNTERPARTS............................................................19
17 LIMITATION OF LIABILITY.................................................20
GLOBAL TRUST MANAGER........................................................20
BOND ADMINISTRATOR..........................................................21
Schedule 1 Form of Designation Notice....................................23
Execution page............................................................24
<PAGE>
----------------------
DATED 2001
HOMESIDE MORTGAGE
SECURITIES TRUSTS
DEED OF DELEGATION
HOMESIDE GLOBAL MBS MANAGER, INC.
("GLOBAL TRUST MANAGER")
NATIONAL AUSTRALIA MANAGERS
LIMITED
(ABN 70 006 437 565)
("BOND ADMINISTRATOR")
MALLESONS STEPHEN JAQUES
Solicitors
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Telephone (02) 9296 2000
Fax (02) 9296 3999
DX 113 Sydney
Ref: MTG:SRF
