<PAGE>
EXHIBIT 4.9
-------------------------------------------------
DATED 2001
HOMESIDE MORTGAGE
SECURITIES TRUST 2001-1
INITIAL SALE AGREEMENT
NATIONAL AUSTRALIA BANK LIMITED
("SELLER")
HOMESIDE MORTGAGE SECURITIES INC.
("DEPOSITOR")
MALLESONS STEPHEN JAQUES
Solicitors
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Telephone (61 2) 9296 2000
Facsimile (61 2) 9296 3999
DX 113 Sydney
Ref: SRF:CD3
<PAGE>
<TABLE>
<CAPTION>
CONTENTS INITIAL SALE AGREEMENT 1
------------------------------------------------------------------------------
<S> <C> <C>
1 DEFINITIONS AND INTERPRETATION 1
2 OFFER TO SELL MORTGAGE LOANS 2
Offer 2
Acknowledgment 3
3 CONDITIONS PRECEDENT TO ISSUE OF OFFER AND
ACCEPTANCE BY THE DEPOSITOR 3
Certification 3
Benefit of the Depositor 3
4 ACCEPTANCE OF THE INITIAL OFFER TO SELL 4
Binding agreement 4
Transfer in equity only 4
Sale not to amount to assumption of
obligations 4
Future Receivables 5
5 REPRESENTATIONS AND WARRANTIES 5
General 5
Repetition 6
Mortgage Portfolio 6
Remedy 7
6 TITLE PERFECTION EVENT 8
7 COSTS, CHARGES, EXPENSES AND INDEMNITIES 9
8 MISCELLANEOUS 10
Certificate 10
Exercise of rights 10
Waiver and variation 10
Supervening legislation 10
Approvals and consent 10
Remedies cumulative 11
9 NOTICES 11
How given 11
Effective on receipt 11
When received 11
10 ENCUMBRANCES AND ASSIGNMENT 12
11 GOVERNING LAW, JURISDICTION AND SERVICE
OF PROCESS 12
Governing law 12
Jurisdiction 12
Service 12
12 COUNTERPARTS 13
ANNEXURE 1 QUALIFYING MORTGAGE LOANS 15
</TABLE>
<PAGE>
1
------------------------------------------------------------------------------
HOMESIDE MORTGAGE SECURITIES TRUST 2001-1
INITIAL SALE AGREEMENT
DATE: 2001
PARTIES: NATIONAL AUSTRALIA BANK LIMITED
(ABN 12 004 044 937) having its registered
office at Level 24, 500 Bourke Street,
Melbourne Vic 3000 ("SELLER")
HOMESIDE MORTGAGE SECURITIES, INC. of
7301 Baymeadows Way, Jacksonville, Florida
32256, USA (hereinafter included in the
expression "DEPOSITOR")
RECITALS:
A. The Depositor may acquire Mortgage Loans from
the Seller.
B. The parties to this agreement have agreed that
the terms and conditions for the potential
sale of Mortgage Loans will be the terms and
conditions set out in this agreement and in
any Initial Offer to Sell.
OPERATIVE PROVISIONS:
1 DEFINITIONS AND INTERPRETATION
--------------------------------------------------------------------------------
DEFINITIONS
1.1 The following words have these meanings in this agreement,
unless the contrary intention appears:
DEPOSITOR means HomeSide Mortgage Securities Inc., and any
person (including, without limitation, the Issuer Trustee in
its capacity as trustee of the Trust) to whom the Depositor
assigns the whole or any part of its rights under this
agreement with the prior written consent of the Seller.
DEFINITIONS SCHEDULE means the deed called "HomeSide
Mortgage Securities Trusts Definitions Schedule" dated 3
January 2001 and made between the companies described in
Schedule 1 to that deed.
TRUST means the HomeSide Mortgage Securities Trust 2001-1.
INTERPRETATION
1.2 Except to the extent to which words and phrases are
otherwise defined in this agreement, words and phrases
defined in the Definitions Schedule shall bear the same
meaning in this agreement. For the avoidance of doubt, in
the event of any inconsistency between a definition in this
agreement and a definition in the Definitions Schedule, the
definitions in this agreement will prevail. Any amendment to
the Definitions Schedule will only apply to this agreement
if made in accordance with the Master Trust Deed.
<PAGE>
2
------------------------------------------------------------------------------
1.3 Clauses 1.2 to 1.5 (inclusive) of the Definitions Schedule
are incorporated in this agreement as though they were set
out in full, with references to "deed" being construed as
references to "agreement".
1.4 By executing this agreement, the Seller and the Depositor
agree that terms used in any Transaction Document have the
meaning given to them in the Definitions Schedule.
2 OFFER TO SELL MORTGAGE LOANS
-------------------------------------------------------------------------------
SELLER MAY MAKE OFFER
2.1 The Seller may make an offer to sell Mortgage Loans to the
Depositor in accordance with clause 2.2.
REQUIREMENTS FOR AN OFFER TO SELL MORTGAGE LOANS
2.2 An offer to sell Mortgage Loans must:
(a) comply with, and be accompanied by the materials
required by, the terms of this agreement;
(b) be made by way of an Initial Offer to Sell, as executed
by the Seller and delivered to the Depositor; and
(c) specify the Mortgage Loans the subject of the Initial
Offer to Sell.
NO OBLIGATION TO OFFER OR ACCEPT
2.3 Nothing in this agreement obliges:
(a) the Seller to sign and deliver any Initial Offer to
Sell; or
(b) the Depositor to accept any Initial Offer to Sell
issued pursuant to clause 2.2.
OFFER
2.4 Once given, an Initial Offer to Sell constitutes an offer by
the Seller to assign to the Depositor in equity with effect
from the relevant Acceptance Date the Seller's right, title
and interest in and to:
(a) each Housing Loan comprising part of each Mortgage Loan
identified in the Initial Offer to Sell;
(b) each Mortgage and each Collateral Security in relation
to each such Housing Loan;
(c) any Property Insurance in relation to the Land which is
referable to each Housing Loan and Mortgage;
(d) each Other Secured Liability which is in existence from
time to time in respect of each Mortgage and each
Collateral Security specified in clause 2.4(b);
(e) the Monetary Rights from time to time in relation to
each such Housing Loan; and
<PAGE>
3
------------------------------------------------------------------------------
(f) any Mortgage Title Documents from time to time in
relation to each such Housing Loan.
ACKNOWLEDGMENT
2.5 The Seller acknowledges that, pursuant to section 166 of the
Consumer Credit Code, it remains the credit provider under
the Mortgage Loans for the purposes of the Consumer Credit
Code despite any acceptance by the Depositor of an Initial
Offer to Sell, unless and until the Depositor perfects its
legal title to the Mortgage Loans under clause 6 in which
case the Depositor or its assignee (if applicable) will
become the credit provider.
3 CONDITIONS PRECEDENT TO ISSUE OF OFFER AND ACCEPTANCE BY THE DEPOSITOR
-------------------------------------------------------------------------------
CONDITIONS PRECEDENT TO ISSUE OF OFFER
3.1 The Seller must not make an offer in accordance with clause
2 unless and until it has given to the Depositor, in form
and substance reasonably satisfactory to the Depositor, the
following:
(a) a certified copy of the power of attorney under which
the Transaction Documents have been (or, in relation to
an Initial Offer to Sell, will be) executed by the
Seller;
(b) the number of Powers of Attorney (such number to be
notified by the Depositor to the Seller from time to
time) executed by the Seller;
(c) a legal opinion from Mallesons Stephen Jaques,
solicitors, addressed to the Depositor (amongst
others);
(d) a letter addressed to the Depositor from each provider
of Lender's Mortgage Insurance acknowledging the sale
of the Mortgages; and
(e) such other matters, acts or things as the Depositor may
reasonably request prior to the date of this agreement.
CERTIFICATION
3.2 Anything required to be certified under this clause 3 must
be certified by an Authorised Person of the Seller as being
true and complete as at a date no earlier than the date of
issue of an offer pursuant to clause 2.
BENEFIT OF THE DEPOSITOR
3.3 The conditions precedent set out in this clause 3 are for
the benefit of the Depositor and any of them may be waived
by the Depositor in its absolute discretion.
<PAGE>
4
------------------------------------------------------------------------------
4 ACCEPTANCE OF THE INITIAL OFFER TO SELL
-------------------------------------------------------------------------------
4.1 The Depositor may only accept an Initial Offer to Sell by
paying the Purchase Price to the Seller in cleared funds by
no later than 4.00 pm on the Acceptance Date.
BINDING AGREEMENT
4.2 Acceptance of an Initial Offer to Sell by the Depositor in
accordance with clause 4.1 will constitute:
(a) a legal, valid and binding agreement between the Seller
and the Depositor on the terms contained in this
agreement and the relevant Initial Offer to Sell; and
(b) without any further act or instrument by the parties,
an immediate assignment in equity of the Seller's
entire right, title and interest in each of the items
referred to in clause 2.4 with effect from the relevant
Acceptance Date.
TRANSFER IN EQUITY ONLY
4.3 Unless otherwise specified, any sale, transfer or assignment
to the Depositor of the items referred to in clause 2.4 is
equitable only. Unless and until the Depositor protects its
title and interest in and to such items in accordance with
this agreement, the Master Trust Deed and the relevant
Supplemental Deed, the Depositor must not:
(a) take any steps to protect its title and interest in and
to those items; or
(b) disclose any information in respect of any sale,
transfer or assignment, or give any notice to, or
communicate with, any Debtor or Security Provider,
except in accordance with this agreement. The Depositor must
not lodge any Transfer in respect of a Mortgage with the
land titles office of any State or Territory of Australia
unless, and until, the Depositor or the Issuer Trustee of
the Trust declares that a Title Perfection Event has
occurred. The Depositor may lodge a caveat if it has actual
notice of the Seller taking action which will, or is likely
to, adversely affect the Depositor's equitable ownership of
the Mortgage Loan.
SALE NOT TO AMOUNT TO ASSUMPTION OF OBLIGATIONS
4.4 (a) Any sale of Mortgage Loans to the Depositor as
contemplated by this agreement and an Initial Offer to
Sell does not constitute an assumption by the Depositor
of any obligation or liability of the Seller or of any
other person in relation to such Mortgage Loans or any
other item referred to in clause 2.4. In particular,
the Seller retains the obligation to make such further
advances or provide such other financial accommodation
as the Seller was required to make or provide under
such Mortgage Loans.
(b) If, after the sale of any Mortgage Loans to the
Depositor, with the consent of the Depositor, the
cashflows or collections in
<PAGE>
5
------------------------------------------------------------------------------
respect of those Mortgage Loans are adjusted or
renegotiated in any manner, the Depositor is the
person who is subject to the renegotiated or adjusted
terms, and not the Seller.
FUTURE RECEIVABLES
4.5 Without limiting the effect of any assignment of the items
referred to in clause 2.4 occurring upon the Depositor
accepting an Initial Offer to Sell in accordance with this
agreement, the Seller's right, title and interest in respect
of any such items arising after the relevant Acceptance Date
form part of the rights assigned to the Depositor and,
immediately following the making of any additional financial
accommodation under a Mortgage Loan, vest in the Depositor
in accordance with the assignment of those items pursuant to
this agreement.
5 REPRESENTATIONS AND WARRANTIES
-------------------------------------------------------------------------------
GENERAL
5.1 The Seller represents and warrants to the Depositor that:
(a) it has been duly incorporated as a company limited by
shares in accordance with the laws of its place of
incorporation, is validly existing under those laws and
has power and authority to carry on its business as it
is now being conducted;
(b) it has power to enter into and observe its obligations
under the Transaction Documents to which it is a party
and to carry out the transactions contemplated by those
documents;
(c) each authorisation which is required in relation to:
(i) the execution, delivery and performance by it of
the Transaction Documents to which it is a party
and the transactions contemplated by those
documents; and
(ii) the validity and enforceability of those
documents,
has been obtained or effected. Each is in full force
and effect. It has complied with such authorisation and
has paid all applicable fees for each of them;
(d) its obligations under the Transaction Documents to
which it is a party are valid and binding and are
enforceable against it in accordance with their terms
(subject to laws relating to insolvency and creditors'
rights generally);
(e) the execution, delivery and performance by it of the
Transaction Documents to which it is a party does not
and will not violate in any respect any material
provision of:
(i) any law, regulation, authorisation, ruling,
consent, judgement, order or decree of any
Governmental Agency;
<PAGE>
6
------------------------------------------------------------------------------
(ii) its constitution;
(f) no Insolvency Event has occurred in respect of it;
(g) it does not enter into any Transaction Document in the
capacity of a trustee of any trust or settlement; and
(h) it benefits by executing each Transaction Document to
which it is a party.
REPETITION
5.2 The representations and warranties in clause 5.1 are made by
the Seller on the date of this agreement and on the date
each offer is made pursuant to clause 2 and on the relevant
Acceptance Date for the relevant offer.
MORTGAGE PORTFOLIO
5.3 The Seller represents and warrants to the Depositor that the
following will be true and correct in relation to each
Mortgage Loan specified in an offer made pursuant to clause
2 as at the Acceptance Date:
(a) at the time the Seller entered into the related Housing
Loan, the related Mortgage, the Loan Agreement and each
Collateral Security complied in all material respects
with all applicable laws;
(b) the related Mortgage and each Collateral Security have
been or will be duly stamped;
(c) the terms of the related Housing Loan, and related
Mortgage or Collateral Security, have not been
impaired, waived, altered or modified in any respect,
except by a written instrument forming part of the
Mortgage Title Documents;
(d) the related Housing Loan, related Mortgage and any
Collateral Security are enforceable in accordance with
their terms against the relevant Debtor;
(e) the Mortgage Loan is a Qualifying Mortgage Loan,
satisfying the requirements set out in Annexure 1 to
this agreement;
(f) at the time the Seller entered into the related Housing
Loan, it did so in good faith;
(g) at the time that the Seller entered into the related
Housing Loan, the Housing Loan was originated in the
ordinary course of the Seller's business;
(h) at the time the Seller entered into the related Housing
Loan, it had not received any notice of the insolvency
or bankruptcy of the Debtor or that the Debtor did not
have the legal capacity to enter into the Housing Loan;
<PAGE>
7
------------------------------------------------------------------------------
(i) the Seller is the sole legal and beneficial owner of
the Mortgage Loan and no Encumbrance exists in relation
to its right, title and interests in the Mortgage Loan;
(j) it holds all documents necessary to enforce the
provisions of, and the security created by, the related
Mortgage and each Collateral Security;
(k) it has not received notice from any person that claims
to have an Encumbrance ranking in priority to or equal
with the related Mortgage or Collateral Security;
(l) except if the Mortgage Loan is subject to a fixed rate
of interest at any time and except as may be provided
by applicable laws or any Binding Provision, the
interest payable on the related Housing Loan is not
subject to any limitation and no consent, additional
memoranda or other writing is required from the Debtor
to give effect to a change in the interest rate payable
on the relevant Housing Loan and any change will be
effective on notice being given to the Debtor in
accordance with the terms of the Housing Loan;
(m) it is lawfully entitled to assign the Mortgage Loan
upon the terms and conditions of the relevant Initial
Offer to Sell and no consent to the sale and assignment
of the Mortgage Loan or notice of that sale and
assignment is required to be given by or to any person
including, without limitation, any Debtor;
(n) upon the acceptance of the offer contained in an
Initial Offer to Sell, beneficial ownership of the
Mortgage Loan will vest in the Depositor free and clear
of all Encumbrances; and
(o) the sale of the Mortgage Loan will not be held by a
court to constitute a transaction at an undervalue, a
fraudulent conveyance or a voidable preference under
any insolvency laws.
REMEDY
5.4 (a) (a) If the Seller or the Depositor becomes aware within
120 days after the Closing Date ("PRESCRIBED DATE")
that any representation or warranty given under clause
5.3 in respect of a Mortgage Loan is materially
incorrect when made or taken to be made (provided that
if either of those parties makes such a finding, it
must give such notice with all relevant details to the
other and each Current Rating Agency within 5 Business
Days of becoming aware but in any event not later than
5 Business Days prior to the Prescribed Date) and the
Seller does not remedy the breach to the satisfaction
of the Depositor within that period of 5 Business Days
or any longer period that the Issuer Trustee permits,
then without any further action required by the
Depositor, the Depositor's interest in the Mortgage
Loan will, on the Prescribed Date, be transferred to
the Seller. The Seller must pay to the Depositor the
<PAGE>
8
-------------------------------------------------------------------------------
Outstanding Principal Balance of the Housing Loan which
comprises part of that Mortgage Loan as at the
Prescribed Date together with any accrued but unpaid
interest and any outstanding fees and other amounts
(excluding any Servicer's Collections) due as at the
Prescribed Date under such Housing Loan. The Depositor
will, however, retain all Collections received in
connection with such Housing Loan from the Acceptance
Date to the Prescribed Date.
(b) If a representation or warranty given under clause 5.3
in respect of a Mortgage Loan is found or is notified
by the Seller after the Prescribed Date to be
incorrect, the Seller must pay damages to the Depositor
for any direct loss suffered by the Depositor as a
result. The maximum amount which the Seller is liable
to pay is the Outstanding Principal Balance of the
Housing Loan which comprises part of that Mortgage Loan
at the time of payment of the damages. This is the
Depositor's only remedy for a breach of any
representation and warranty which is found after the
Prescribed Date.
(c) If a breach of a representation or warranty in relation
to the Mortgage Loans occurs, the Seller is obliged to
pay damages to the Depositor in accordance with clause
5.4(b) within 14 Business Days of receipt of notice
from the Depositor.
5.5 The Seller acknowledges that the Depositor may assign to the
Issuer Trustee its rights and obligations under this
agreement (including, without limitation, the benefit of the
representations and warranties given by the Seller under
clause 5 of this agreement) and that, upon any such
assignment, the Issuer Trustee can enforce the relevant
provisions of this agreement against the Seller.
6 TITLE PERFECTION EVENT
-------------------------------------------------------------------------------
TITLE PERFECTION EVENT
6.1 If a Title Perfection Event is subsisting, the Depositor may
by notice in writing to the Seller declare that a Title
Perfection Event has occurred.
PERFECTION OF TITLE
6.2 If, and only if, a declaration is made by the Depositor in
accordance with clause 6.1 in respect of the Trust, the
Depositor, the Global Trust Manager and the Seller must as
soon as practicable take all necessary steps to protect the
Depositor's interest in, and title to, the Mortgage Loans
forming part of the Assets of the Trust, including:
(a) the execution (where necessary, executed under a Power
of Attorney) and lodgment of Transfers or caveats with
the land titles office of the appropriate jurisdiction;
(b) give notice to the relevant Debtors and Security
Providers of the sale of the relevant Mortgage Loans;
<PAGE>
9
-------------------------------------------------------------------------------
(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 Mortgage Loans to the
Collections Account.
POWER OF ATTORNEY
6.3 The Depositor must only use a Power of Attorney to execute
Transfers in respect of Mortgages forming part of the
Purchased Mortgage Loans and only then if it has declared a
Title Perfection Event in accordance with clause 6.2.
INDEMNITY
6.4 The Seller indemnifies the Depositor and each of its
successors and assigns against all loss arising from, and
any costs, damages, charges and expenses incurred in
connection with the Depositor protecting its interest in,
and title to, the Mortgages forming part of the Purchased
Mortgage Loans after a Title Perfection Event has occurred,
including all registration fees, stamp duty, legal fees and
disbursements, and the cost of preparing and transmitting
all necessary documentation.
7 COSTS, CHARGES, EXPENSES AND INDEMNITIES
------------------------------------------------------------------------------
AMOUNTS PAYABLE ON DEMAND
7.1 The Seller agrees to pay or reimburse the Depositor on
demand for:
(a) the costs, charges and expenses of the Depositor in
connection with any consent, approval, exercise or
non-exercise of rights (including, without limitation,
in connection with the contemplated or actual
enforcement or preservation of any rights under any
Transaction Document), waiver, variation, release or
discharge in connection with any Transaction Document;
and
(b) Taxes and fees (including, without limitation,
registration fees) and fines and penalties in respect
of fees, which may be payable or determined to be
payable in connection with any Transaction Document or
a payment or receipt or any other transaction
contemplated by any Transaction Document; and
including in each case, without limitation, legal costs and
expenses on a full indemnity basis or solicitor and own
client basis, whichever is the higher.
SELLER INDEMNITY
7.2 The Seller indemnifies the Depositor and each of its
successors and assigns against any liability or loss arising
from, and any costs, charges and expenses incurred in
connection with:
(a) the payment, omission to make payment or delay in
making payment of an amount referred to in clause 7.1;
<PAGE>
10
-------------------------------------------------------------------------------
(b) any failure by the Seller to comply with its
obligations under a Transaction Document; or
(c) a Title Perfection Event, including, without
limitation, liability, loss, costs, charges or expenses
on account of funds borrowed, contracted for or used to
fund any amount payable or expense incurred under a
Transaction Document and including in each case,
without limitation, legal costs and expenses on a full
indemnity basis or solicitor and own client basis,
whichever is the higher.
8 MISCELLANEOUS
------------------------------------------------------------------------------
CERTIFICATE
8.1 A certificate signed by the Depositor or its solicitors
about a matter or about a sum payable to the Depositor in
connection with a Transaction Document is sufficient
evidence of the matter or sum stated in the certificate
unless the matter or sum is proved to be false.
EXERCISE OF RIGHTS
8.2 The Depositor 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 Depositor does not prevent a
further exercise of that or an exercise of any other right,
power or remedy. Failure by the Depositor to exercise or
delay in exercising a right, power or remedy does not
prevent its exercise. The Depositor is not liable for any
loss caused by the exercise or attempted exercise of,
failure to exercise, or delay in exercising the right, power
or remedy, whether or not cause by the Depositor's
negligence.
WAIVER AND VARIATION
8.3 A provision of or a right created under this agreement may
not be waived or varied except in writing signed by the
party or parties to be bound.
SUPERVENING LEGISLATION
8.4 Any present or future legislation which operates to vary the
obligations of the Seller in connection with this agreement
with the result that the Depositor's rights, powers or
remedies are adversely affected (including, without
limitation, by way of delay or postponement) is excluded
except to the extent that its exclusion is prohibited or
rendered ineffective by law.
APPROVALS AND CONSENT
8.5 The Depositor may give conditionally or unconditionally or
withhold its approval or consent in its absolute discretion
unless this agreement expressly provides otherwise.
<PAGE>
11
-------------------------------------------------------------------------------
REMEDIES CUMULATIVE
8.6 The rights, powers and remedies provided in this agreement
are cumulative with and not exclusive of the rights, powers
or remedies provided by law independently of this agreement.
9 NOTICES
------------------------------------------------------------------------------
HOW GIVEN
9.1 A notice, approval, consent or other communication in
connection with a Transaction Document:
(a) may be given by an Authorised Person of the relevant
party;
(b) must be in writing;
(c) must be marked for the attention of the person referred
to below; and
(d) must be left at the address of the addressee, or sent
by prepaid ordinary post (airmail if posted to or from
a place outside Australia) to the address of the
addressee or sent by facsimile to the facsimile number
of the addressee, or sent by e-mail to the e-mail
address of the addressee, or if the addressee notifies
another address, facsimile number or e-mail address
then to that address, facsimile number or e-mail
address.
The address and facsimile number of each party is:
THE SELLER:
Address: Level 24
500 Bourke Street
Melbourne Victoria 3000
Australia
Facsimile: 61 3 8641 4927
Attention: Company Secretary
THE DEPOSITOR:
Address: 7301 Baymeadows Way
Jacksonville
Florida 32256
United States of America
Facsimile: 904 281 3062
Attention: General Counsel
E-mail: [email protected]
EFFECTIVE ON RECEIPT
9.2 Unless a later time is specified in it, a notice, approval,
consent or other communication takes effect from the time it
is received.
WHEN RECEIVED
9.3 A letter, facsimile or e-mail is taken to be received:
<PAGE>
12
-------------------------------------------------------------------------------
(a) in the case of a posted letter, on the third (seventh,
if posted to or from a place outside Australia) day
after posting;
(b) in the case of facsimile, on production of a
transmission report by the machine from which the
facsimile was sent which indicates that the facsimile
was sent in its entirety to the facsimile number of the
recipient notified for the purpose of this clause; and
(c) in the case of an e-mail, on receipt by the sender of
an e-mail from the recipient stating that the e-mail
was delivered in its entirety and the contents and
attachments of the e-mail 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.
10 ENCUMBRANCES AND ASSIGNMENT
-------------------------------------------------------------------------------
The Seller may not, without the consent of the Depositor,
create or allow to exist an Encumbrance over or an interest
in any Transaction Document or assign or otherwise dispose
of or deal with its rights under any Transaction Document.
The Depositor at any time may do any of these things as the
Depositor sees fit provided that it notifies the Seller of
any such action as soon as reasonably practicable.
11 GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
-------------------------------------------------------------------------------
GOVERNING LAW
11.1 This agreement is governed by the law in force in the
Australian Capital Territory and the rights, liabilities and
obligations of the Seller and the Depositor are governed by
the laws in force in the Australian Capital Territory.
JURISDICTION
11.2 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
11.3 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 9.
<PAGE>
13
--------------------------------------------------------------------------------
12 COUNTERPARTS
--------------------------------------------------------------------------------
This agreement may consist of a number of
counterparts and the counterparts taken
together constitute one and the same
instrument.
EXECUTED as an agreement.
<PAGE>
14
-------------------------------------------------------------------------------
EXECUTION PAGE
-------------------------------------------------------------------------------
SIGNED by )
as attorney for NATIONAL AUSTRALIA BANK )
LIMITED under power of attorney dated )
)
in the presence of: )
)
.......................................... )
Signature of witness )
)
.......................................... )
Name of witness (block letters) )
)
.......................................... ) .................................
Address of witness ) By executing this agreement 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 HOMESIDE MORTGAGE )
SECURITIES INC. in the presence of: )
)
.......................................... )
Signature of witness )
)
.......................................... )
Name of witness (block letters) )
)
.......................................... ) .................................
Address of witness ) By executing this agreement the
) signatory states that the
.......................................... ) signatory has received no notice
Occupation of witness ) of revocation of the authority
) pursuant to which it executes
) this agreement
)
<PAGE>
15
------------------------------------------------------------------------------
ANNEXURE 1 QUALIFYING MORTGAGE LOANS
------------------------------------------------------------------------------
A Mortgage Loan is a Qualifying Mortgage Loan if, at the
time it is identified in an Initial Offer to Sell, it
satisfies the following eligibility criteria:
(a) it is due from a Qualifying Debtor;
(b) it is repayable in Australian dollars;
(c) the term of the related Housing Loan does not exceed 30
years;
(d) it is freely capable of being dealt with by the Seller
as contemplated by this agreement and any Initial Offer
to Sell;
(e) each related Housing Loan is secured by a Mortgage over
Land which is either:
(i) a first ranking mortgage; or
(ii) a second ranking mortgage where:
(A) there are two mortgages over the Land
securing the Mortgage Loan and the Seller is
the first mortgagee; and
(B) the first ranking mortgage is also being
acquired by the Depositor;
(f) the Land subject to a Mortgage has erected on it a
residential dwelling which is not under construction;
(g) each Mortgage Loan is, or will by the Closing Date be,
insured under a Mortgage Insurance Policy;
(h) no Housing Loan is a Defaulted Housing Loan as at the
relevant Cut-Off Date;
(i) no Housing Loan was made to an employee of the Seller
or its affiliates with a concessional rate of interest;
(j) each Housing Loan is fully drawn (other than to the
extent to which redraws are available to the Debtor
under such Housing Loan) at the Acceptance Date;
(k) it has a total principal amount outstanding of no more
than A$505,000 as at the Cut-Off Date; and
(l) it is scheduled to mature at least 1 year prior to the
Final Maturity Date of the Notes.
