[ALLEN ALLEN & HEMSLEY
ALLENS ARTHUR ROBINSON GROUP LOGO]
MASTER TRUST DEED
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PERPETUAL TRUSTEES VICTORIA LIMITED
INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED
Interstar Millennium Trusts
ALLEN ALLEN & HEMSLEY
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
(C) Copyright Allen Allen & Hemsley 1999
MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 21
1.3 Binding on Noteholders and Beneficiaries 23
2. TRUSTEE OF INTERSTAR MILLENNIUM TRUSTS 23
2.1 Appointment of Trustee 23
2.2 Trustee to act in interests of Beneficiary and Noteholders of a Trust 23
2.3 Separate and distinct Trusts 24
2.4 Termination of Deed 24
3. THE TRUSTS 24
3.1 Beneficial Interest in the Trusts 24
3.2 Creation of Trusts 24
3.3 Name of the Trusts 25
3.4 Duration of a Trust 25
3.5 Termination; winding up 25
3.6 Costs of winding up of a Trust 26
4. INVESTMENT OF THE TRUSTS GENERALLY 27
4.1 Authorised Investments only 27
4.2 Trust Manager selects investments 27
4.3 Investment proposals 28
4.4 Disposal or realisation of Authorised Investments 28
4.5 Temporary investment of cash and limitation on maturity of Authorised
Investments 29
4.6 Support Facilities 29
4.7 Authorised Trustee Investments 31
4.8 Limitation of Trustee's personal liability 31
4.9 Moneys payable to Trustee 31
4.10 Segregation of Assets of a Trust 31
4.11 Assets of Trusts 32
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4.12 Liabilities of a Trust 32
5. BORROWINGS 32
5.1 Purpose 32
5.2 Borrowings - general 33
5.3 Borrowings - redraws 33
6. ORIGINATION 34
7. TRANSFERS BETWEEN TRUSTS; ACKNOWLEDGEMENT 34
7.1 Transfers between Trusts 34
7.2 Acknowledgement by Approved Seller 35
8. ACQUISITION FROM APPROVED SELLER 35
8.1 Note Issue Direction 35
8.2 Accession of Approved Sellers 36
8.3 Sale Notices 36
8.4 Conditions Precedent to Purchase 37
8.5 Representations and warranties of Approved Seller 37
8.6 Undertakings 40
8.7 First Right of Refusal; Clean Up Offer 40
8.8 Subsequent adjustment 42
8.9 Substitution 42
8.10 Indemnification 43
8.11 Power of Attorney 44
8.12 Approved Seller Fee 44
9. NOTES 44
9.1 Acknowledgement of indebtedness 44
9.2 Legal nature of Notes 45
9.3 Terms of Notice 45
9.4 Interest and Principal Entitlement of Noteholders and Couponholders 45
9.5 Notes not invalid if issued in breach 45
9.6 Location of Registered Notes 45
9.7 No discrimination between Noteholders 45
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10. SELLER NOTE 46
10.1 Seller Note 46
10.2 Form 46
11. LIMITS ON RIGHTS OF NOTEHOLDERS AND BENEFICIARY 46
11.1 General Limits 46
11.2 Interests of Beneficiary assignable 47
11.3 Ranking of interest of Beneficiary 47
11.4 Further limit on interest of Noteholders and Couponholders 47
11.5 No liability of Noteholders or Beneficiary 48
12. PROCEDURE FOR ISSUE OF NOTES 48
12.1 Note Issue Direction for a Trust 48
12.2 Requirements for a Note Issue Direction 49
12.3 Series Notice 50
12.4 Amendment 51
12.5 Comply with Note Issue Direction 52
12.6 Proviso on compliance with Note Issue Direction 52
12.7 Dealer Agreement 52
12.8 Issue of Notes and transfer of benefit of Loans 52
12.9 Action following Note Issue 54
12.10 No liability for insufficient moneys 54
12.11 Further assurance 54
12.12 Further issues subject to Rating Agency affirmation 54
12.13 No limit on Notes 54
13. TRANSFERS OF NOTES 55
13.1 No restrictions on transfer of Notes 55
13.2 Transfers generally 55
13.3 Minimum Transfer 55
13.4 Transfer of Registered Notes 55
14. NOTE ACKNOWLEDGEMENT 59
14.1 Issue of Note Acknowledgement 59
14.2 Note Acknowledgement not certificate of title 59
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14.3 Execution of Note Acknowledgement 59
14.4 More than one Note Acknowledgement 59
14.5 Worn out, defaced or lost Note Acknowledgement 59
14.6 Joint holdings 60
14.7 Delivery of Note Acknowledgement 60
15. THE REGISTER 60
15.1 Details to be kept on Register 60
15.2 Asset Register 61
15.3 Place of keeping Register, copies and access 61
15.4 Details on Register conclusive 61
15.5 Closing of Register 62
15.6 Alteration of details on Register 62
15.7 Rectification of Register 62
15.8 Correctness of Register 62
15.9 Trust Manager must provide information 62
15.10 Third party registrar 62
16. MEETINGS OF NOTEHOLDERS 63
16.1 Bearer Noteholders 63
16.2 Convening of meetings 63
16.3 Notice of meetings 63
16.4 Chairman 64
16.5 Quorum 64
16.6 Adjournment 64
16.7 Voting procedure 65
16.8 Right to attend and speak 66
16.9 Appointment of proxies 66
16.10 Corporate representatives 67
16.11 Rights of Representatives 67
16.12 Powers of a meeting of Registered Noteholders 67
16.13 Extraordinary Resolution binding on Registered Noteholders 68
16.14 Minutes and records 68
16.15 Written resolutions 69
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16.16 Further procedures for meetings 69
17. THE TRUST MANAGER 69
17.1 Appointment of Trust Manager 69
17.2 Complete powers of management 70
17.3 Note issuance 70
17.4 Trust Manager to act in interests of Beneficiary and Noteholders 70
17.5 Trust Manager to assist Trustee 71
17.6 Trust Manager's power to delegate 71
17.7 Trust Manager's power to appoint advisors 71
17.8 Trust Manager's books available to Trustee 72
17.9 Trust Manager will account to Trustee for moneys received 72
17.10 Trust Manager to report data on Reuters 72
17.11 Trust Manager to prepare notices etc. 72
17.12 Prior approval of circulars 72
17.13 Taxes 73
17.14 Acquisition or disposal of Assets 73
17.15 Monitor Support Facilities 73
17.16 Make calculations, co-ordinate and provide reports 73
17.17 Trust Manager cannot bind Trustee unless authorised 74
17.18 Trust Manager must perform obligations under other Transaction Documents 74
17.19 Trust Manager to provide personnel and systems 74
17.20 Additional covenants by Trust Manager 74
18. TRUST MANAGER'S FEE 75
19. RETIREMENT, REMOVAL AND REPLACEMENT OF TRUST MANAGER 75
19.1 Retirement on Trust Manager's Default 75
19.2 Trustee may remove recalcitrant Trust Manager 76
19.3 Trustee appoints replacement Trust Manager 76
19.4 Voluntary Retirement 76
19.5 No resignation by Trust Manager unless successor appointed 77
19.6 Trustee to act as Trust Manager if no successor appointed 77
19.7 Release of outgoing Trust Manager 77
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19.8 New Trust Manager to execute deed 77
19.9 Settlement and discharge 78
19.10 Delivery of books, documents, etc 78
19.11 Notice to Noteholders of new Trust Manager 78
19.12 Waiver of Trust Manager's Defaults 78
20. TRUSTEE'S POWERS 79
20.1 General power 79
20.2 Specific powers 79
20.3 Powers to be exercised with others 81
20.4 Delegation by the Trustee 81
20.5 Generally unlimited discretion 83
21. TRUSTEE'S COVENANTS 83
21.1 General 83
21.2 To act continuously as Trustee 83
21.3 To act honestly, diligently and prudently 83
21.4 No dispositions of Assets except in accordance with Trust Deed 84
21.5 Indemnity re acts of Trustee's delegates 84
21.6 Forward notices etc to Trust Manager 84
21.7 Trustee will implement Trust Manager's directions 84
21.8 Custodian 84
21.9 Bank accounts 85
21.10 Perform Transaction Documents 85
22. TRUSTEE'S FEES AND EXPENSES 85
22.1 Trustee's Fee 85
22.2 Reimbursement of expenses 85
22.3 Segregation of Trust Expenses 85
23. REMOVAL, RETIREMENT AND REPLACEMENT OF TRUSTEE 85
23.1 Retirement for Trustee's Default 85
23.2 Trust Manager may remove recalcitrant Trustee 86
23.3 Trust Manager appoints replacement 86
23.4 Voluntary Retirement 86
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23.5 No resignation by Trustee unless successor appointed 86
23.6 Trust Manager to act as Trustee if no successor appointed 87
23.7 Trusts to be vested in new Trustee 87
23.8 Release of outgoing Trustee 87
23.9 New Trustee to execute deed 87
23.10 Trust Manager and outgoing Trustee to settle amounts payable 88
23.11 Outgoing Trustee to retain lien 88
23.12 Delivery of books, documents, etc 89
23.13 Notice to Noteholders of New Trustee 89
24. APPOINTMENT OF SERVICER 89
25. LEAD MANAGER 89
25.1 Appointment of Lead Manager 89
25.2 Fees 89
26. BANK ACCOUNTS 90
26.1 Opening of bank accounts 90
26.2 Location of bank accounts 90
26.3 Name of bank accounts 90
26.4 Purpose of bank accounts 91
26.5 Authorised signatories 91
26.6 Trust Manager not entitled to have access 91
26.7 Bank statements and account information 91
26.8 Deposits 91
26.9 Withdrawals 91
26.10 All transactions through central accounts 92
27. AUDITOR 92
27.1 Auditor must be registered 92
27.2 Appointment of Auditor 92
27.3 Removal and retirement of Auditor 92
27.4 Appointment of replacement Auditor 93
27.5 Auditor may have other offices 93
27.6 Access to working papers 93
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27.7 Auditor's remuneration and costs 93
27.8 Access to information 93
28. ACCOUNTS AND AUDIT 94
28.1 Keeping Accounts 94
28.2 Location and inspection of books 94
28.3 Accounts to be kept in accordance with Approved Accounting Standards 94
28.4 Preparation of annual Accounts 94
28.5 Annual audited Accounts 94
28.6 Inspection and copies of audited Accounts 94
28.7 Tax returns 94
28.8 Audit 95
28.9 No Responsibility for Servicer 95
29. PAYMENTS 95
29.1 Cashflow Allocation Methodology 95
29.2 Payments to Beneficiary 95
29.3 Subordination of Beneficiary's Entitlements 96
29.4 Insufficient moneys 96
29.5 Income or capital 96
29.6 Income of Trust 96
30. INDEMNITY 97
31. REPRESENTATIONS AND WARRANTIES 98
31.1 General representations and warranties 98
31.2 Trustee entitled to assume accuracy of representations and warranties 99
32. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY GENERALLY 99
32.1 Reliance on certificates 99
32.2 Trustee and Trust Manager may assume signed documents to be genuine 100
32.3 Trustee's reliance on Trust Manager, Approved Seller or Servicer 100
32.4 Trust Manager's reliance on Trustee, Approved Seller or Servicer 101
32.5 Compliance with laws 102
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32.6 Taxes 102
32.7 Reliance on experts 102
32.8 Oversights of others 102
32.9 Powers, authorities and discretions 102
32.10 Impossibility or impracticability 103
32.11 Duties and charges 103
32.12 Legal and other proceedings 103
32.13 No liability except for negligence etc. 104
32.14 Further limitations on Trustee's liability 104
32.15 Further limitations on Trust Manager's liability 105
32.16 Liability of Trustee limited to its right of indemnity 106
32.17 Trustee's right of indemnity - general 107
32.18 Trustee's right of indemnity - Consumer Credit Legislation 108
32.19 Extent of liability of Trust Manager 110
32.20 Right of indemnity 110
32.21 Conflicts 110
32.22 Trustee not obliged to investigate the Trust Manager etc 111
32.23 Independent investigation of credit 111
32.24 Information 112
32.25 Entering into Transaction Documents 112
32.26 Reliance by Trustee 112
32.27 Investigation by Trustee 112
33. NOTICES 113
33.1 Notices Generally 113
33.2 Notices to Noteholders 114
33.3 Notices to Designated Rating Agencies 114
34. PAYMENTS GENERALLY 115
34.1 Payments to Noteholders 115
34.2 Payment Methods Registered Notes 115
34.3 Payment to be made on Business Day 115
34.4 Payment good discharge 115
34.5 Trustee to arrange payments 116
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34.6 Valid receipts 116
34.7 Taxation 116
35. AMENDMENT 117
35.1 Amendment without consent 117
35.2 Amendment with consent 117
35.3 Copy of amendments to Noteholders 118
35.4 Copy of amendments in advance to Designated Rating Agencies 118
36. CONFIDENTIALITY 118
37. MISCELLANEOUS 120
37.1 Data Base to be retained as confidential 120
37.2 Certificates by Trust Manager 121
37.3 Waivers, remedies cumulative 121
37.4 Retention of documents 121
37.5 Governing law 121
37.6 Severability of provisions 121
37.7 Counterparts 121
37.8 Inspection 122
37.9 Attorneys 122
SCHEDULE 1 124
Application For Registered Notes 124
SCHEDULE 2 126
Note Acknowledgement 126
SCHEDULE 3 128
Note Issue Direction 128
SCHEDULE 4 133
Note Transfer and Acceptance 133
SCHEDULE 5 136
Notice of Creation of Trust 136
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SCHEDULE 6 137
Verification Certificate 137
ANNEXURE A 139
Sale Notice 139
ANNEXURE B 143
Seller Accession Certificate 143
ANNEXURE C 145
Memorandum of Agreement 145
ANNEXURE D 146
Series Notice 146
ANNEXURE E 152
Series Notice Checklist 152
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DATE
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PARTIES
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1. PERPETUAL TRUSTEES VICTORIA LIMITED (ACN 004 027 258)of Level 4,
333 Collins Street, Melbourne, Victoria (the TRUSTEE); and
2. INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED (ACN 087 271 109) of
Level 31, 367 Collins Street, Melbourne, Victoria (the TRUST
MANAGER).
RECITALS
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A It is intended by this deed to provide for the establishment of
separate trusts, all being Trusts (collectively the INTERSTAR
MILLENNIUM TRUSTS) (or such other name as the Trustee and the Trust
Manager may from time to time agree).
B The Trustee has agreed to act as the trustee and the Trust Manager
as the manager of the Trusts and servicer of certain Trusts.
C The Trustee may enter into Support Facilities and a Security Trust
Deed in connection with the issue of Notes by the Trustee as the
trustee of a Trust.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
ACCOUNTS means, in relation to a period:
(a) a profit and loss account for that period;
(b) a balance-sheet as at the end of that period; and
(c) statements, reports and notes (other than a trustee's report or
an auditor's report) attached to, or intended to be read with,
that profit and loss account or balance-sheet.
ADVERSE EFFECT means an event which will materially and adversely
affect the amount of any payment to be made to any Noteholder, or will
materially and adversely affect the timing of such payment.
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APPLICATION FOR NOTES means an application for Registered Notes in the
form of schedule 1 or in such other form as may from time to time be
agreed between the Trustee and the Trust Manager.
APPROVED ACCOUNTING STANDARDS means:
(a) the accounting standards from time to time approved under the
Corporations Law;
(b) the requirements of the Corporations Law in relation to the
preparation and content of accounts; and
(c) generally accepted accounting principles and practices in
Australia consistently applied, except where inconsistent with
the standards or requirements referred to in paragraphs (a) or
(b).
APPROVED BANK means:
(a) a Bank which has a short term rating of at least A-1+ (S&P) or
A-1 (S&P) in the case of investments which satisfy paragraphs
(i) and (ii) of the definition of Authorised Investments; or
(b) in relation to a Trust, any bank or financial institution which
is specified to be an Approved Bank in the relevant Series
Notice,
which is approved by the Trust Manager in writing.
APPROVED SELLER means:
(a) other than in clauses 8.2, 8.4, 8.5, 8.6, 8.9, 8.10, 10, 32 and
36, the Trustee as trustee of any Trust; or
(b) any person which the Trust Manager notifies the Trustee is an
Approved Seller for the purposes of this deed and who has
executed a Seller Accession Certificate,
and where used in the context of a Trust means the Approved Seller in
relation to that Trust.
ASSETS in relation to a Trust means the assets forming that Trust from
time to time including the following to the extent to which they relate
to the Trust:
(a) Authorised Investments;
(b) amounts owing to the Trustee by debtors (excluding any bad or
doubtful debts);
(c) income accrued from Loans and Authorised Investments;
(d) any prepayment of expenditure;
(e) any Loans, Loan Securities and other Related Securities and
other rights assigned to the Trustee in its capacity as the
Trustee of that Trust on and subject to the terms of the
Transaction Documents;
(f) the interests of the Trustee in any Support Facility;
(g) the benefit of all representations, warranties and undertakings
made by any party in favour of the Trustee under the Transaction
Documents;
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(h) the amount of any compensation found to be payable by the
Trustee (or admitted by the Trustee to be payable) to restore
the assets of that Trust because of the fraud, negligence or
wilful default of the Trustee;
(i) other property or assets as agreed in writing between the Trust
Manager and the Trustee.
ASSOCIATE in relation to a person means a person that is taken to be an
associate of the first mentioned person by virtue of Division 2 of Part
1.2 of the Corporations Law.
AUDITOR in relation to a Trust means the auditor of that Trust
appointed from time to time under clause 27.
AUSTRACLEAR means Austraclear Limited or any other clearing system
recognised by the Reserve Bank of Australia and the Australian Bankers'
Association or any successor entity from time to time.
AUSTRACLEAR REGULATIONS means any regulations published by Austraclear.
AUSTRACLEAR SYSTEM means the SYSTEM (or another equivalent term) as
defined in the Austraclear Regulations.
AUSTRALIAN JURISDICTION means a State or Territory of the Commonwealth
of Australia and the Commonwealth of Australia.
AUTHORISATION includes:
(a) any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence,
approval, authority or exemption from, by or with a Government
Agency; or
(b) in relation to anything which will be fully or partly prohibited
or restricted by law if a Government Agency intervenes or acts
in any way within a specified period after lodgement, filing,
registration or notification, the expiry of that period without
intervention or action.
AUTHORISED INVESTMENTS in respect of a Trust means, unless otherwise
specified in the relevant Series Notice, any investments which at their
date of acquisition are:
(a) Loans secured by Mortgages, those Mortgages and any other
Related Securities and Loan Rights;
(b) Bills, promissory notes or other negotiable instruments
accepted, drawn or endorsed by an Approved Bank;
(c) cash and/or deposits with an Approved Bank or deposits with, or
the acquisition of certificates of deposit or any other debt
security issued by an Approved Bank;
(d) loan securities issued, secured, or guaranteed by the
Commonwealth of Australia or any State or Territory within the
Commonwealth of Australia; and
(e) any mortgage backed security issued by any entity,
which satisfy the following conditions:
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(i) for so long as S&P is a Designated Rating Agency or unless
otherwise advised in writing by S&P:
(A) each proposed investment falling within categories (b)
and (c) must have a credit rating issued by S&P of A-1,
A-1+ or AAA provided that the value of investments within
categories (b) and (c) which have a credit rating of A-1
shall not exceed 20% of the total Principal Amount of all
relevant Notes on issue;
(B) each proposed investment falling within category (d) must
have a credit rating issued by S&P of A-1+ or AAA; and
(C) each proposed investment falling within category (e) must
have a credit rating issued by S&P of AAA;
(ii) each proposed investment falling within categories (b), (c) and
(d) must mature by the earlier of the following dates:
(A) the Payment Date following the date on which it was
acquired, or in the case of any investment which has a
credit rating of A-1, the date being 30 days following
the date upon which that investment was acquired if that
date is before the Payment Date following the date on
which the investment was acquired; or
(B) such other date as the Trustee and the Trust Manager may
determine to be necessary to enable the Trustee to have
sufficient cash to meet any Expenses which may be payable
prior to that Payment Date;
(iii) unless the relevant Series Notice otherwise provides, all
Authorised Investments must be denominated in Australian
currency and held in Australia; and
(iv) all Authorised Investments must be held in the name of the
Trustee or in the name of such other person or persons as
approved by the Trustee from time to time.
AUTHORISED SIGNATORY means:
(a) in relation to the Trust Manager, any person from time to time
nominated as an Authorised Signatory by an authorised attorney
of the Trust Manager by notice to the Trustee accompanied by:
(i) a certified copy of the power of attorney (if not
previously provided); and
(ii) a certified copy of the signatures of each person so
appointed;
(b) in relation to the Trustee (in its capacity as trustee of a
Trust, as Approved Seller or otherwise), a director or secretary
of the Trustee or officer of the Trustee whose title contains
the word "Manager" or "counsel" or a person performing the
functions of any of them or any duly appointed attorney of the
Trustee;
(c) except as provided in the relevant Series Notice or Security
Trust Deed, in relation to the Security Trustee, any officer or
employee of the Security Trustee whose title includes the word
"Manager"; and
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(d) in relation to any other person, any person from time to time
whose name, title or position and specimen signature are set out
in a certificate signed by two directors or one director and one
secretary of that person confirming that person's appointment as
an Authorised Signatory for the purposes of this deed and/or any
Transaction Document to which that corporation is a party.
AUTHORISED TRUSTEE INVESTMENT means an investment in which a trustee is
for the time being authorised to invest trust funds under the laws of
an Australian Jurisdiction.
BANK means:
(a) a corporation authorised under the BANKING ACT 1959 to carry on
general banking business in Australia or a corporation formed or
incorporated under an Act of the Parliament of an Australian
Jurisdiction to carry on the general business of banking; or
(b) where any Transaction Document requires money to be deposited by
the Trustee outside Australia, a corporation authorised by the
banking legislation of the relevant jurisdiction to carry on the
general business of banking in that jurisdiction.
BEARER COUPON means, in relation to a Definitive Note:
(a) any bearer interest coupon or any bearer principal coupon
relating to that Definitive Note;
(b) any replacement coupon issued under the relevant Condition; or
(c) where the context requires, a Talon relating to that Definitive
Note.
BEARER NOTE means a Note described as such in the relevant Series
Notice.
BEARER NOTE PAYMENT DATE means a Payment Date for a Bearer Note.
BENEFICIARY means, in relation to a Trust, the person nominated in the
Notice of Creation of Trust for that Trust as the beneficiary of that
Trust (including, where relevant, the holder of any unit representing
an interest as beneficiary of the Trust).
BILL means a bill within the meaning of the BILLS OF EXCHANGE ACT 1909
(but does not include a cheque).
BORROWING means, in relation to a Trust, any Financial Indebtedness of
the Trustee in its capacity as trustee of the Trust but does not
include any Financial Indebtedness of the Trustee in any other capacity
or in respect of any other Trust. BORROW has an equivalent meaning.
BUSINESS DAY means any day, other than a Saturday, Sunday or public
holiday in Victoria or New South Wales, on which Banks are open for
business in both Melbourne and Sydney (and, where so specified in the
relevant Series Notice, London, New York or any other specified city).
CERTIFICATE OF TITLE means, in relation to a Mortgaged Property, the
certificate of title (or, if one is not issued, the original
registration confirmation statement or similar document) (if any) to
that Mortgaged Property issued
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under any relevant legislation (and, in the case of Land, issued under
any Real Property Legislation.
CLASS in relation to Notes issued, or to be issued, in respect of a
Trust means Notes having as amongst themselves the same rights or
restrictions with regard to the payment of interest, the repayment of
principal, voting or otherwise.
CLOSING DATE means, in respect of a Trust, the date specified as the
Closing Date in the Series Notice or Sale Notice for that Trust.
COLLECTION ACCOUNT means the account established and maintained under
clause 26 or, in relation to a Trust, any other account specified as
the COLLECTION ACCOUNT in the Series Notice for that Trust.
COLLECTIONS in respect of a Trust means such amounts as may be
specified as Collections for the Trust in the relevant Series Notice.
CONDITIONS in relation to any Notes issued in respect of a Trust has
the same meaning given in the Series Notice applicable to those Notes
for that Trust.
CONSUMER CREDIT LEGISLATION means any legislation relating to consumer
credit including:
(a) the Credit Act of any Australian Jurisdiction;
(b) the Consumer Credit (Victoria) Code 1996; and
(c) any other equivalent legislation of any Australian Jurisdiction.
COUPONHOLDER in relation to a Bearer Coupon issued in respect of a
Trust at any time means the person who is the bearer of that Bearer
Coupon at that time for that Trust.
CREDITOR in relation to a Trust means a creditor of the Trustee
(including the Security Trustee, the Noteholders, Couponholders, the
Approved Seller, the Trustee in its capacity as trustee of another
Trust, the Servicer, the Trust Manager, the Support Facility Providers
and the Lead Manager (if any) in relation to the Trust) in its capacity
as trustee of the Trust.
CUT-OFF DATE means, in relation to a Portfolio of Loans, the date
specified as the CUT-OFF DATE for the Loans relating to that Portfolio
of Loans in the relevant Note Issue Direction or Series Notice.
DATA BASE in relation to the Trustee, the Trust Manager and any
Servicer means all information, data and records collected, held or
stored in any way or in any medium (including computer retention and
storage) by or for the Trustee, the Trust Manager and the Servicer
respectively relating to and including any Loan, Loan Security or
Related Securities which are given or transferred to, or originated by,
the Trustee under or as contemplated by this deed.
DEALER AGREEMENT means, in relation to any Notes, any dealer agreement,
subscription agreement, underwriting agreement or other distribution
agreement (however called) under which dealers, managers or other
persons agree to subscribe for, underwrite or otherwise arrange the
subscription for or distribution of those Notes.
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DEFINITIVE NOTE means a Note described as such in the relevant Series
Notice.
DESIGNATED RATING in relation to a Support Facility provided to, or the
benefit of which is held by, the Trustee in its capacity as trustee of
a Trust, means a credit rating of the party providing the Support
Facility as specified or approved by each Designated Rating Agency for
that Trust.
DESIGNATED RATING AGENCY in relation to a Trust, or Notes issued or to
be issued by the Trustee of a Trust, means each Rating Agency which has
been requested by the Trust Manager to rate such Notes in relation to
that Trust.
DISTRIBUTABLE INCOME has the meaning given in clause 29.6.
ELIGIBLE LOAN means a Loan or Loan Security (as the case may be) which
meets the Eligibility Criteria for that Loan or Loan Security.
ELIGIBILITY CRITERIA in respect of a Loan or a Loan Security and a
Trust has the meaning given in the corresponding Series Notice for that
Trust.
EUROCLEAR means Morgan Guaranty Trust Company of New York (Brussels
office) as operator of the Euroclear System.
EVENT OF DEFAULT in respect of a Trust has the meaning referred to in
the Security Trust Deed in relation to that Trust.
EXPENSES in relation to a Trust means all costs, charges and expenses
incurred by the Trustee or the Beneficiary (as the case may be) or the
Trust Manager in the administration and operation of the Trust under
the Transaction Documents for that Trust including the following to the
extent to which they relate to the Trust:
(a) any amounts payable or incurred by the Trustee or the Trust
Manager in the acquisition, maintenance, review, administration
or disposal of an Asset;
(b) any amounts payable or incurred by the Trustee or the Trust
Manager under any Support Facility or in reviewing documentation
for any proposed Support Facility;
(c) any amounts payable under or incurred by the Trustee or the
Trust Manager under any Security Trust Deed;
(d) any fees and other amounts payable to the Trust Manager under
this deed;
(e) any fees and other amounts payable to the Trustee under this
deed;
(f) any fees and other amounts payable to a Servicer under this deed
or a Servicing Agreement;
(g) any fees and expenses payable to the Auditor;
(h) any fees and expenses payable by the Trustee (including in its
personal capacity for which it has the right of indemnity under
this deed) to the Designated Rating Agency as agreed between the
Trustee and the Trust Manager from time to time;
(i) any costs of postage and printing of all cheques, accounts,
statements, notices, and other documents required to be posted
to the
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Beneficiaries or Noteholders of the Trust under this deed, and
any costs of convening and holding meetings of Noteholders and
of implementing any resolutions;
(j) the cost and expenses of registering the interest of the Trustee
in, caveats or Transfers of, any Loan Security or assignment of
Loans;
(k) any costs of any valuation of the Trust or of any Asset of the
Trust;
(l) any expenses incurred in connection with Trust Accounts of the
Trustee in relation to the Trust and bank fees (including but
not limited to account keeping fees) and other bank or
government charges (including but not limited to bank account
debits, tax and charges in respect of financial institutions
duty) incurred in connection with the keeping of, or the
transaction of business through, the internal accounts and bank
accounts of the Trustee and their management;
(m) any fees, charges and amounts which are paid or payable to any
person appointed or engaged by the Trustee or the Trust Manager
pursuant to this deed to the extent that the fees, charges and
amounts would be payable or reimbursable to the Trustee or the
Trust Manager under any other provision of this definition or
under any other provision of this deed if the services performed
by the person so appointed or engaged had been carried out
directly by the Trustee or the Trust Manager and to the extent
that those fees, charges and amounts are reasonable in amount
and properly incurred;
(n) the amount of any indemnity from the Trust claimed by the
Trustee or the Trust Manager under clause 32.12;
(o) all legal costs and disbursements (calculated in the same manner
under clause 32.12) incurred by the Trust Manager and the
Trustee in relation to settling and executing any Transaction
Document and any subsequent consent, agreement, approval, waiver
or amendment thereto or in relation to any matter of concern to
the Trust Manager or the Trustee in relation to a Transaction
Document or the relevant Trust;
(p) any legal costs and disbursements charged at the usual
commercial rates of the legal services provider incurred by the
Trustee in connection with court proceedings brought against it
under this deed (except (subject always to clause 32.16) where
the Trustee is found to have acted negligently, fraudulently or
in wilful default);
(q) any costs incurred by the Trustee in, or in connection with, the
retirement or removal of the Servicer and the appointment of any
substitute to the extent those costs are properly incurred;
(r) any amount specified as an EXPENSE for the purposes of this deed
in the Series Notice for a Trust;
(s) any costs incurred by the Trust Manager or the Trustee in, or in
connection with, the retirement or removal of the Trustee or the
Manager respectively under this deed and the appointment of any
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person in substitution to the extent that those costs are
properly and reasonably incurred;
(t) any fees and expenses payable to any Stock Exchange, Euroclear
or Cedelbank from time to time by the Trustee; and
(u) any other costs, charges, expenses, fees, liabilities, Taxes
(including stamp duty payable on cheques), imposts and other
outgoings properly incurred by the Trustee or the Trust Manager
in exercising their respective powers, duties and obligations
under this deed or any other Transaction Document (other than
the Notes),
provided that general overhead costs and expenses of the Trustee and
the Trust Manager (including rents and any amounts payable by the
Trustee or the Trust Manager (as applicable) to its employees in
connection with their employment) incurred directly or indirectly in
connection with the business of the Trustee or the Trust Manager (as
applicable) shall not constitute Expenses.
EXPIRY TIME means, in relation to a Sale Notice, the time specified as
the expiry time in that Sale Notice.
EXTRAORDINARY RESOLUTION means:
(a) in relation to the Registered Noteholders, subject to the
provisions of any Security Trust Deed in respect of the relevant
Trust:
(i) a resolution passed at a meeting of the Registered
Noteholders of that Trust or Class (as the case may be)
duly convened and held in accordance with the provisions
contained in clause 16 by a majority consisting of not
less than 75% of the votes able to be cast by the
Registered Noteholders (cast by show of hands or poll, as
the case may be); or
(ii) a resolution in writing under clause 16.15 signed by all
the Registered Noteholders of that Trust or Class; or
(b) in relation to all Noteholders (and in particular in clauses 3.5
and 8.7(a)), and subject to the provisions of any Security Trust
Deed in respect of the relevant Trust, not less than 75% of the
aggregate of all votes cast by poll at a meeting of Registered
Noteholders and at a separate meeting of Bearer Noteholders
based, in each case in relation to a Noteholder, and
notwithstanding the requirements as to polls normally applying
in respect of those meetings, on the Principal Amount of the
Notes held by that Noteholder (and where the Principal Amounts
of different Classes are denominated in different currencies,
converting those currencies in accordance with the relevant
Series Notice).
FAIR MARKET VALUE means in relation to any Loan and the related Loan
Rights, the market value of that Loan and those Loan Rights as
determined by the Trust Manager in good faith.
FINANCIAL INDEBTEDNESS means any indebtedness, present or future,
actual or contingent in respect of moneys borrowed or raised or any
financial
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accommodation whatever. It includes indebtedness under or in respect of
a negotiable or other financial instrument (including any Note),
guarantee, interest, gold or currency exchange, hedge or arrangement of
any kind, redeemable share, share the subject of a guarantee,
discounting arrangement, finance or capital lease, hire purchase,
deferred purchase price (for more than 90 days) of an asset or service
or an obligation to deliver goods or other property or provide services
paid for in advance by a financier or in relation to another financing
transaction.
FINANCIAL YEAR in relation to each Trust means:
(a) each consecutive period of 12 months from 1 January in each year
until 31 December in that year; or
(b) any other consecutive period of 12 months as may at any time be
substituted for the consecutive period referred to in paragraph
(a) of this definition by determination of the Trust Manager
with the approval of the Trustee,
and includes:
(c) any consecutive period greater or less than 12 months that may
arise as a result of the adoption of any substituted period
under paragraph (b) of this definition;
(d) the period commencing on the date of its creation under this
deed to the next succeeding 31 December, or, if a substituted
period is in force under this definition in respect of the Trust
at its commencement, then to the immediately succeeding date of
termination of that substituted period; and
(e) the period to the Termination Date of the Trust from the
immediately preceding 1 January or, if a substituted period is
in force under this definition at the Termination Date then from
the immediately preceding date of commencement of that
substituted period.
FITCH IBCA means Fitch IBCA (Australia) Pty Limited (ACN 081 339 184),
each member of the group of companies of which that company is a
member, and their respective successors and assigns.
FUTURE AGREEMENT means the agreement formed between an Approved Seller
and the Trustee if the Trustee accepts a Sale Notice given under clause
8.
GLOBAL NOTE means a Note described as such in the relevant Series
Notice.
GOVERNMENT AGENCY means:
(a) any body politic or government in any jurisdiction, whether
federal, state, territorial or local;
(b) any minister, department, office, commission, instrumentality,
agency, board, authority or organisation of any government or in
which any government is interested;
(c) any corporation owned or controlled by any government.
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HEDGE AGREEMENT means, in relation to a Trust, any futures contract,
option agreement, hedge, swap, cap, forward rate agreement or other
arrangement in relation to interest rates and/or currency exchanges
made by the Trustee (whether alone or with the Trust Manager or any
other person) with respect to the Loans in, or Notes issued in relation
to, that Trust in accordance with this deed, as specified in the
relevant Series Notice.
INFORMATION MEMORANDUM means, in relation to the issue of any Notes,
any publicity documents publicly circulated to prospective investors in
relation to that issue entitled "Information Memorandum", "Offering
Circular", "Prospectus" or a similar name, but does not include any
term sheet or general correspondence in relation to the placement of
any Notes.
INITIAL PRINCIPAL AMOUNT in relation to a Note has the meaning given in
the relevant Series Notice for that Note.
INSOLVENCY EVENT in relation to the Trustee (in its personal capacity
and as trustee of a Trust), the Trust Manager, an Approved Seller, a
Servicer, a Support Facility Provider or a Mortgage Insurer (each a
RELEVANT CORPORATION) means the happening of any of the following
events:
(a) an administrator of the relevant corporation is appointed;
(b) except for the purpose of a solvent reconstruction or
amalgamation:
(i) an application or an order is made, proceedings are
commenced, a resolution is passed or proposed in a notice
of meeting or an application to a court or other steps
(other than frivolous or vexatious applications,
proceedings, notices and steps) are taken for:
(A) the winding up, dissolution or administration of
the relevant corporation; or
(B) the relevant corporation entering into an
arrangement, compromise or composition with or
assignment for the benefit of its creditors or a
class of them; or
(ii) the relevant corporation ceases, suspends or threatens
to cease or suspend the conduct of all or
substantially all of its business or disposes of or
threatens to dispose of substantially all of its
assets;
(c) the relevant corporation is or states that it is, or under
applicable legislation is taken to be, unable to pay its debts
(other than as the result of a failure to pay a debt or claim
the subject of a good faith dispute) or stops or suspends or
threatens to stop or suspend payment of all or a class of its
debts (except, in the case of the Trustee, where this occurs
only in relation to another trust of which it is the trustee)
and, for the avoidance of doubt, an inability of the Trustee in
its capacity as trustee of the Trust to pay its debts does not
include the Trustee making any drawings under a Support Facility
in accordance with the Transaction Documents;
(d) a receiver, receiver and manager or administrator is appointed
(by the relevant corporation or by any other person) to all or
substantially all
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of the assets and undertaking of the relevant corporation or any
part thereof (except, in the case of the Trustee where this
occurs only in relation to another trust of which it is the
trustee);
(e) an application is made to a court for an order appointing a
liquidator or provisional liquidator in respect of the relevant
corporation, or one of them is appointed, whether or not under
an order;
(f) as a result of the operation of section 459F(1) of the
Corporations Law, the relevant corporation is taken to have
failed to comply with a statutory demand;
(g) the relevant corporation is or makes a statement from which it
may be reasonably deduced that the relevant corporation is, the
subject of an event described in section 459C(2)(b) or section
585 of the Corporations Law;
(h) the relevant corporation takes any step to obtain protection or
is granted protection from its creditors, under any applicable
legislation; or
(i) anything analogous to an event referred to in paragraphs (a) to
(h) (inclusive) or having substantially similar effect, occurs
with respect to the relevant corporation.
INSURANCE POLICY means, in relation to a Loan, any fire and/or risks
insurance policy or other general insurance policy in force in respect
of that Loan or the related Mortgaged Property.
INSURANCE PROCEEDS means any payments received by the designated
beneficiary of an Insurance Policy.
INTEREST in relation to a Note issued in respect of a Trust has the
meaning specified in the Series Notice applicable to that Note for that
Trust and includes any Bearer Coupon.
INTEREST PAYMENT DATE in relation to a Note means each date for the
payment of interest under the Note as specified in the corresponding
Series Notice.
INVESTMENT MANAGEMENT AGREEMENT means the Investment Management
Agreement dated on or about the date of this deed between the Trustee
and the Trust Manager.
INVESTMENT RATE means, in relation to the Loans, the interest rate
(expressed as a per centum per annum) determined by the Servicer in
accordance with the relevant Servicing Agreement.
LAND means:
(a) any estate or interest whether at law or in equity in freehold
or leasehold land situated in an Australian Jurisdiction,
including all improvements on that land; and
(b) any parcel and any lot, common property and land comprising a
parcel within the meaning of the Strata Titles Act, 1973 (New
South Wales) or the Community Land Development Act, 1989 (New
South Wales) or any equivalent legislation in any other
Australian Jurisdiction.
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LEAD MANAGER means, in relation to any issue of Notes, any person who
is appointed as lead manager, co-lead manager, arranger, co-arranger or
any similar participant in relation to that issue.
LIQUIDITY FACILITY AGREEMENT in relation to a Trust means any agreement
specified as a LIQUIDITY FACILITY AGREEMENT in the Series Notice for
that Trust.
LIQUIDITY FACILITY PROVIDER means in relation to a Liquidity Facility
Agreement the bank or financial institution which provides that
facility or if it is a syndicated facility the bank or financial
institution which is the agent under that facility.
LOAN means a right or interest under or in relation to a residential
loan originated or acquired, or to be originated or acquired, by the
Trustee in accordance with this deed.
LOAN AGREEMENT means in relation to a Loan, any agreement or
arrangement entered into between the Trustee or an Approved Seller (as
the case may be) and the Obligor under which the Obligor incurs
obligations to the Trustee or Approved Seller (as the case may be) with
respect to the Loan, and in the case of an agreement entered into by an
Approved Seller in a form provided to the Trustee by the Approved
Seller before the Sale Notice with respect to that Loan is given.
LOAN RIGHTS means, in relation to Loans to be acquired by the Trustee,
all of the relevant Approved Seller's or the Trustee's right, title,
benefit and interest (present and future) in, to, under or derived
from:
(a) the Loans and Loan Securities specified in the relevant Sale
Notice; and
(b) such of the following as relate to those Loans and Loan
Securities:
(i) the Related Securities;
(ii) the Relevant Documents;
(iii) the Collections; and
(iv) all moneys, present, future, actual or contingent,
owing at any time by an Obligor (whether alone or with
another person) or any other person (other than the
Approved Seller) under or in connection with a Related
Security, including all principal, interest,
reimbursable costs and expenses and any other amounts
incurred by or payable to the Approved Seller,
irrespective of whether such amounts relate to advances
made or other financial accommodation provided by the
Approved Seller to any Obligor before or after the
Closing Date,
but does not include, in relation to the Loans and Loan Securities
specified in a Sale Notice:
(c) any interest or finance charges accrued up to but excluding the
Closing Date (or any other date specified for that purpose in
the Sale Notice) which are unpaid as at close of business on
that date; and
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
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(d) any interest in Collections received or applied by the Approved
Seller before the Cut-Off Date (or any other date specified for
that purpose in the Sale Notice),
if so specified in the Sale Notice.
LOAN SECURITY means, in relation to a Loan, a Mortgage or any guarantee
relating to that Loan.
MARKED NOTE TRANSFER means a Note Transfer marked by the Trustee in
accordance with clause 13.4(m).
MATURITY DATE in relation to a Note means the date specified in the
corresponding Series Notice to be the last or, where there is only one
specified, the Payment Date for the Note.
MOODY'S means Moody's Investor Services Inc or Moody's Investor
Services Pty Limited, each member of the group of companies of which
that company is a member, and their respective successors and assigns.
MORTGAGE means a registered (or pending registration, registrable)
mortgage over Land, situated in any Australian Jurisdiction, which is
either:
(a) originated by the Trustee under this deed; or
(b) originally granted to the relevant Approved Seller,
and securing the repayment of the principal amount of a Loan and all
other moneys payable under the Loan.
MORTGAGED PROPERTY means:
(a) in relation to a Mortgage, the Land the subject of that
Mortgage; and
(b) in relation to any other Loan Security, the property subject to
that Loan Security.
MORTGAGE INSURANCE POLICY means a policy of insurance under which a
Mortgage Insurer insures the Trustee as trustee of a Trust against loss
under a Loan which is an Asset of that Trust.
MORTGAGE INSURANCE PROCEEDS means any amounts received by the Trustee
(or a Servicer on its behalf) under any Mortgage Insurance Policy.
MORTGAGE INSURER means any mortgage insurer specified, in relation to a
Trust, as a MORTGAGE INSURER in the Series Notice for that Trust.
MORTGAGOR means the security provider under a Loan Security.
NOTE means:
(a) a debt security issued by the Trustee as trustee of a Trust in
accordance with clause 9;
(b) a Seller Note; or
(c) any other security or instrument issued by the Trustee and
agreed by the Trustee and the Trust Manager to be a NOTE.
NOTE ACKNOWLEDGEMENT means an acknowledgement of the registration of a
person as the holder of a Note in the form set out in schedule 2 or in
such
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other form as may from time to time be agreed between the Trustee and
the Trust Manager.
NOTEHOLDER means, in relation to a Trust, unless otherwise defined in a
Series Notice for that Trust, the person who:
(a) in relation to a Definitive Note, bears that Note at that time;
(b) in relation to a Note which is represented by a Global Note, at
that time is shown in the records of Euroclear and Cedelbank
(other than Cedelbank if Cedelbank is an account holder of
Euroclear and other than Euroclear if Euroclear is an account
holder of Cedelbank) as being an account holder with respect to
that Global Note (in which regard any certificate or other
document issued by Cedelbank or Euroclear as to the Principal
Amount of those Notes standing to the account of any person
shall be conclusive and binding on those persons for all
purposes); or
(c) in relation to a Registered Note, is registered as holding that
Registered Note at that time,
and in the case of paragraph (a) includes (in relation to any interest
payable on a Bearer Coupon or where the context so requires) the
Couponholder for that Bearer Coupon.
NOTE ISSUE DATE in relation to a Trust and Notes means the date on
which the Notes are issued by the Trustee as trustee of that Trust and,
in the case of a proposed issue of Notes, means the date for this
referred to in the corresponding Note Issue Direction.
NOTE ISSUE DIRECTION means a direction by the Trust Manager to the
Trustee substantially in the form of schedule 3 or in such other form
as may from time to time be agreed between the Trustee and the Trust
Manager.
NOTE TRANSFER means a transfer and acceptance of Notes materially in
the form of schedule 4 or in such other form as may from time to time
be agreed between the Trustee and the Trust Manager.
NOTICE OF CREATION OF TRUST means a notice substantially in the form of
schedule 5 or in such other form as may from time to time be agreed
between the Trustee and the Trust Manager.
OBLIGOR means, in relation to a Loan, the person who is the account
debtor under that Loan, and includes where the context requires, any
other person obligated to make payments with respect to that Loan
(including any guarantor).
PAYMENT DATE means an Interest Payment Date or a Principal Repayment
Date.
PORTFOLIO OF LOANS means the Loans specified by the Trust Manager in a
Note Issue Direction as a class or type of Loan that has substantially
the same terms and conditions.
PRINCIPAL AMOUNT in relation to a Note has the meaning given in the
relevant Series Notice for that Note.
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PRINCIPAL ENTITLEMENT in relation to a Note and a Principal Repayment
Date means the amount of principal in respect of the Note due to be
repaid on that Principal Repayment Date, determined in accordance with
the corresponding Series Notice.
PRINCIPAL REPAYMENT DATE in relation to a Note means each date for the
repayment of part or all of the outstanding principal in relation to
the Note as specified in the corresponding Series Notice.
PRIVACY ACT means the Privacy Act 1988 (Cth) or any equivalent law of
any Australian Jurisdiction.
PURCHASE PRICE means, in relation to Loans and related Loan Rights
offered for sale under a Sale Notice, the Purchase Price specified in
the relevant Sale Notice as adjusted (where relevant) in accordance
with that Sale Notice.
PURCHASED LOAN means a Loan referred to in a Sale Notice which is
accepted by the Trustee unless the Trustee has ceased to have an
interest in that Loan.
PURCHASED LOAN SECURITY means a Loan Security referred to in a Sale
Notice which is accepted by the Trustee, unless the Trustee has ceased
to have any interest in that Loan Security.
RATING AGENCY means Moody's, S&P and Fitch IBCA or any other recognised
rating agency designated from time to time in writing by the Trust
Manager to the Trustee.
REAL PROPERTY LEGISLATION means any law relating to the registration,
priority or effectiveness of any mortgage over land in any Australian
Jurisdiction.
RECORD DATE means, with respect to a Payment Date for any Note, the
date specified in the Series Notice for the Trust to which that Note
relates.
REGISTER means, in relation to a Trust, the register of Noteholders for
that Trust maintained by or on behalf of the Trustee under clause 15.
REGISTERED COMPANY AUDITOR has the same meaning as in the Corporations
Law.
REGISTERED NOTE means a Note described as such in the relevant Series
Notice.
REGISTERED NOTEHOLDER means the Noteholder in relation to a Registered
Note.
RELATED CORPORATION has the meaning given to RELATED BODY CORPORATE in
the Corporations Law.
RELATED LOAN means, in relation to a Loan Security, the Loan secured by
that Loan Security.
RELATED SECURITY in relation to a Loan means:
(a) any Relevant Document for that Loan;
(b) any Insurance Policy or Insurance Proceeds with respect to the
Loan;
(c) any Mortgage Insurance Policy or Mortgage Insurance Proceeds
with respect to the Loan; or
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
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(d) any other agreement specified as a RELATED SECURITY for the Loan
in the relevant Series Notice.
RELEVANT DOCUMENT means, with respect to a Loan:
(a) the Loan Agreement relating to that Loan;
(b) the mortgage document, guarantee or other document or agreement
in relation to each Loan Security for that Loan;
(c) the Certificate of Title for the Mortgaged Property secured by
each Loan Security;
(d) any amendment or replacement of such documents and any other
document which is entered into by or executed in favour of the
Approved Seller or Trustee (as the case may be) in connection
with that Loan after the Cut-Off Date; or
(e) any other document specified as a RELEVANT DOCUMENT in the
relevant Series Notice.
REPRESENTATIVE means:
(a) in the case of any Registered Noteholder, a person appointed as
a proxy for that Registered Noteholder under clause 16.9; and
(b) without limiting the generality of paragraph (a), in the case of
a Registered Noteholder which is a body corporate, a person
appointed under clause 16.10 by the Registered Noteholder.
REPURCHASE DATE has the meaning, in relation to a Purchased Loan and
the related Loan Rights, given in clause 8.5(d)(ii)(C) with respect to
the Purchased Loan and related Loan Rights.
S&P means Standard & Poor's (Australia) Pty Limited (ACN 007 324 852),
trading as "Standard & Poor's Ratings Group", each member of the group
of companies of which that company is a member, and their respective
successors and assigns.
SALE NOTICE means:
(a) in relation to a purchase of Loans by a Trust other than from
another Trust, a notice in the form of annexure A given under
clause 8; or
(b) in relation to a purchase of Loans by a Trust from another
Trust, a notice in the form agreed by the Trustee and the Trust
Manager in relation to that purchase.
SALE TERMINATION DATE means in relation to the obligations of a party
relating to a Sale Notice, the earlier of:
(a) the date 3 months after the date on which the last relevant
Purchased Loan is discharged; and
(b) the date the Trustee (whether in its capacity as trustee of the
Trust to which the Purchased Loans relate or as trustee of
another Trust) ceases to have any interest in the relevant
Purchased Loan and related Loan Rights.
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SECURITY INTEREST includes any mortgage, pledge, lien or charge or any
security or preferential interest or arrangement of any kind. It
includes:
(a) anything which gives a creditor priority to other creditors with
respect to any asset; and
(b) retention of title other than in the ordinary course of
day-to-day trading and a deposit of money by way of security but
it excludes a charge or lien arising in favour of a Government
Agency by operation of statute unless there is a default in
payment of moneys secured by that charge or lien.
SECURITY TRUST DEED in relation to a Trust means a deed between the
Trustee as trustee of that Trust, the Trust Manager and the Security
Trustee for that Trust under which, amongst other things, the Trustee
in its capacity as trustee of the Trust charges all or some of the
Assets of the Trust to secure the payment of moneys owing to the
Noteholders and other Creditors of the Trust in favour of that Security
Trustee as trustee for such Noteholders and other Creditors.
SECURITY TRUSTEE means, in relation to a Trust, any person who is
appointed as security trustee in relation to the Assets of that Trust.
SELLER ACCESSION CERTIFICATE means a certificate in the form of
annexure B.
SELLER NOTE means, in relation to a Trust, a debt security issued by
the Trustee to the relevant Approved Seller under clause 10.
SERIES NOTICE means a written notice from the Trust Manager to the
Trustee materially in the form of annexure D satisfying the
requirements of clause 12.3.
SERVICER means, in relation to a Trust, the Trust Manager as servicer
under the Investment Management Agreement or, if the Series Notice for
that Trust otherwise provides, the person appointed to service the
Assets of that Trust.
SERVICER TRANSFER EVENT in relation to a Trust has the meaning (if any)
given to that term in the Servicing Agreement for that Trust.
SERVICER'S REPORT means, in relation to a Trust, the report (if any) to
be provided by the relevant Servicer to the Trustee and the Trust
Manager under the relevant Servicer Agreement which is in the format
and includes the information agreed between the Servicer, the Trust
Manager and the Trustee or set out in any Series Notice.
SERVICING AGREEMENT means, in relation to a Trust:
(a) the Investment Management Agreement; or
(b) if the Series Notice for that Trust otherwise provides, any
agreement under which a Servicer is appointed to service any of
the Assets of that Trust.
STOCK EXCHANGE means, in relation to a Note, any stock exchange on
which the Note is listed from time to time, including the Australian
Stock Exchange, the London Stock Exchange Limited or the Luxembourg
Stock Exchange.
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SUBSCRIPTION AMOUNT in relation to any proposed Notes means the total
amount payable by the proposed Noteholders as specified in the
corresponding Note Issue Direction.
SUPPORT FACILITY in relation to a Trust means:
(a) any Mortgage Insurance Policy;
(b) any Liquidity Facility Agreement;
(c) any Hedge Agreement;
(d) any other security, support, rights or benefits in support of or
substitution for an Authorised Investment or the income or
benefit arising thereon on an Authorised Investment, for the
financial management, credit enhancement or liquidity support of
the assets and liabilities of the Trust; or
(e) any other facility or agreement specified as a SUPPORT FACILITY
in the relevant Series Notice,
entered into by the Trustee for that Trust.
SUPPORT FACILITY PROVIDER means, in relation to a Trust, any person who
has entered into or agreed to make available a Support Facility (other
than a Mortgage Insurance Policy) to the Trustee in relation to that
Trust.
TALON means any talon relating to, and exchangeable in accordance with
the provisions of any Definitive Note for further Interest or principal
with respect to, the Definitive Note, and includes any replacement for
that Talon issued under the relevant Conditions.
TAXATION ACT means the Income Tax Assessment Act 1936 (Cth) and the
Income Tax Assessment Act 1997 (Cth).
TAX and TAXES means any tax, levy, impost, deduction, charge, rate,
stamp duty, financial institutions duty, bank accounts debit tax or any
other tax, withholding or remittance of any nature which is now or
later payable or required to be remitted to, or imposed or levied,
collected or assessed by a Government Agency, together with any
interest, penalty, charge, fee or other amount imposed or made in
respect thereof including any value added, goods and services and
turnover tax.
TERMINATION DATE in relation to a Trust means the earliest of the
following dates in relation to that Trust:
(a) the eightieth anniversary of the date of creation of that Trust
under this deed;
(b) the date on which the Trust terminates by operation of statute
or by the application of general principles of law;
(c) if Notes have been issued by the Trustee in its capacity as
trustee of the Trust the earliest of:
(i) the Business Day (in Melbourne, Sydney and London)
immediately following the date upon which the Trustee
pays in full all moneys due or which may become due,
whether contingently or otherwise, to Creditors of the
Trust (as
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determined by the Auditor, that determination to be
conclusive) and the Trustee and the Trust Manager agree
that no further Notes are proposed to be issued by the
Trustee in relation to that Trust; or
(ii) following the occurrence of an EVENT OF DEFAULT under
any Security Trust Deed, the Security Trustee has
enforced to the fullest extent that it is able to do so
all of its powers under the Security Trust Deed which
arise on the occurrence of that Event of Default or on
the Security Trust Deed becoming enforceable, and has
distributed all of the amounts which it is required to
distribute under the Security Trust Deed (as determined
by the Auditor, that determination to be conclusive),
and the Trustee has received a confirmation from the Australian
Taxation Office that the Trustee has lodged its final tax return
in relation to that Trust; or
(d) if Notes have not been issued by the Trustee in its capacity as
trustee of the Trust, the date appointed by the Trust Manager as
the Termination Date by notice in writing to the Trustee after
the Trustee has received a confirmation from the Australian
Taxation Office that the Trustee has lodged its final tax return
in relation to that matter.
TITLE DOCUMENTS means any document of title or other document in
relation to any Authorised Investment.
TRANSACTION DOCUMENTS means:
(a) this deed;
(b) any Series Notice;
(c) any Seller Accession Certificate;
(d) any Security Trust Deed;
(e) any Servicing Agreement;
(f) any Support Facility;
(g) any Note or document evidencing a Note from time to time;
(h) any other document which is expressed (in a Series Notice or
otherwise) to be, or which is agreed by the Trust Manager and
Trustee to be, a TRANSACTION DOCUMENT for the purposes of this
deed; and
(i) any other document that is executed under or which is or is
expressed to be incidental or collateral to, any other
Transaction Document including any Notice of Creation of Trust,
but in relation to a Trust means only those of the above documents
which relate to that Trust.
TRANSFER OF LOAN SECURITY means:
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(a) in relation to a Mortgage or other Related Security that is a
registered mortgage of Land, a transfer of mortgage relating to
that Mortgage or Related Security under the Real Property
Legislation which, on registration, would result in the Trustee
being the registered mortgagee of that Mortgage or Related
Security; and
(b) in relation to any other Loan Security and if required by
relevant legislation or practices a transfer of Security
Interest relating to that Loan Security which, on registration,
would result in the Trustee being the registered holder of that
Loan Security.
TRUST means each Trust constituted from time to time under clause 3 and
TRUSTS means every Trust.
TRUST ACCOUNT means the account opened and operated for each Trust in
accordance with clause 26.
TRUST MANAGER'S DEFAULT means, in relation to any Trust, the happening
of any of the events specified in clause 19.1.
TRUST MANAGER'S FEE in relation to a Trust means the Trust Manager's
fee in relation to that Trust referred to in clause 18.
TRUST MANAGER'S REPORT means, in relation to a Trust, the report to be
provided by the Trust Manager to the Trustee and the Designated Rating
Agency under clause 17.16 which is in the format and includes the
information agreed by the Trust Manager and the Trustee or set out in
the relevant Series Notice.
TRUSTEE'S DEFAULT in relation to a Trust means the occurrence of any of
the events specified in clause 23.1.
TRUSTEE'S FEE in relation to a Trust means the Trustee's fee for that
Trust under clause 22.1.
UNPAID BALANCE means, in relation to any Loan at any time, the sum of:
(a) the unpaid principal amount of that Loan; and
(b) the unpaid amount of all finance charges, interest payments and
other amounts accrued on or payable under or in connection with
that Loan or the related Loan Rights at that time,
or the amount otherwise stated to be the UNPAID BALANCE for that Loan,
in the relevant Series Notice.
1.2 INTERPRETATION
Headings are for convenience only and do not affect interpretation. The
following rules of interpretation apply unless the context requires
otherwise.
(a) The SINGULAR includes the plural and conversely.
(b) A GENDER includes all genders.
(c) Where a WORD OR PHRASE is defined, its other grammatical forms
have a corresponding meaning.
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
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(d) A reference to a PERSON includes a body corporate, an
unincorporated body or other entity and conversely.
(e) A reference to a CLAUSE, SCHEDULE or ANNEXURE is to a clause of,
or schedule or annexure to, this deed.
(f) A reference to any PARTY to this deed or any other agreement or
document includes the party's successors and permitted assigns.
(g) A reference to any AGREEMENT OR DOCUMENT is to that agreement or
document as amended, novated, supplemented, varied or replaced
from time to time, except to the extent prohibited by this deed.
(h) A reference to any LEGISLATION or to any provision of any
legislation includes any modification or re-enactment of it, any
legislative provision substituted for it and all regulations and
statutory instruments issued under it.
(i) A reference to INCLUDE, INCLUDES, INCLUDED or INCLUDING shall be
without limitation to the matter referred to.
(j) A reference to DOLLARS or $ is to Australian currency.
(k) Where any word or phrase is given a defined meaning any other
part of speech or other grammatical form in respect of such word
or phrase has a corresponding meaning.
(l) Where the day on or by which any sum is payable under this deed
or any act, matter or thing is to be done is a day other than a
Business Day such sum shall be paid and such act, matter or
thing shall be done on the next succeeding Business Day except
to the extent otherwise provided in the relevant Series Notice.
(m) A word or phrase defined in the Corporations Law has the same
meaning in this deed, unless separately defined in this deed.
(n) All accounting terms shall be interpreted in accordance with the
Approved Accounting Standards.
(o) A reference to a MONTH is to a calendar month.
(p) A reference to any document is to such document as amended,
varied, supplemented or novated from time to time.
(q) Except as otherwise provided, a reference to any time is a
reference to Melbourne time.
(r) Subject to the provisions relating to deemed receipt of notices
and other communications under the Transaction Documents, the
Trustee will only be considered to have knowledge or awareness
or notice of any thing, or grounds to believe anything, by
virtue of the officers of the Trustee having day to day
responsibility for the administration or management of any of
the Trustee's obligations in relation to a Trust, including its
Assets, 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). In
addition, notice, knowledge or awareness of any event of default
under any Transaction Documents for that Trust (however
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
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called or described) or Trust Manager's Default means notice,
knowledge or awareness or the occurrence of the events or
circumstance constituting an event of default or Trust Manager's
Default (as the case may be).
(s) A reference to WILFUL DEFAULT in relation to the Trustee or the
Trust Manager means any wilful failure to comply with, or wilful
breach by, the Trustee or the Trust Manager (as the case may be)
of any of its obligations under any Transaction Document, other
than a failure or breach which:
(i) arises as a result of a breach of a Transaction
Document by a person other than:
(A) the Trustee or the Trust Manager (as the case
may be); or
(B) any officer, employee, agent or delegate of the
Trustee or the Trust Manager; and
(ii) is in accordance with a lawful court order or direction
or required by law; or
(iii) is, in relation to a Trust:
(A) in accordance with a proper instruction or
direction of the Mortgagees (as defined in the
Security Trust Deed in relation to the Trust)
given at a meeting of Mortgagees convened
pursuant to the Security Trust Deed in relation
to the Trust; or
(B) in accordance with any proper instruction or
direction of the Noteholders of the Trust at a
meeting convened under the Master Trust Deed.
1.3 BINDING ON NOTEHOLDERS AND BENEFICIARIES
This deed shall be binding on all Noteholders and Couponholders and the
Beneficiaries as if each was originally a party to this deed.
2. TRUSTEE OF INTERSTAR MILLENNIUM TRUSTS
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2.1 APPOINTMENT OF TRUSTEE
The Trustee is appointed, and agrees to act, as trustee of each Trust
on, and subject to, the terms and conditions of this deed and the
relevant Series Notice.
2.2 TRUSTEE TO ACT IN INTERESTS OF BENEFICIARY AND NOTEHOLDERS OF A TRUST
The Trustee shall, in respect of each Trust, act in the interests of
the Beneficiary and Noteholders in relation to that Trust on, and
subject to, the terms and conditions of this deed. In the event of any
conflict of interests, the interests of the Noteholders will prevail.
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
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2.3 SEPARATE AND DISTINCT TRUSTS
Each Trust shall be a separate and distinct trust fund held by the
Trustee on separate and distinct terms and conditions.
2.4 TERMINATION OF DEED
This deed shall terminate on the date agreed by the Trustee and the
Trust Manager if at that date:
(a) there are no Trusts in existence;
(b) the Trustee and the Trust Manager are satisfied that all Notes
have been fully redeemed and all Creditors paid in full;
(c) there is no Sale Notice which has been given to the Trustee but
which has not at that date been accepted or rejected by the
Trustee; and
(d) there is no Note Issue Direction which has been given to the
Trustee but which has not been acted on or rejected by the
Trustee.
3. THE TRUSTS
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3.1 BENEFICIAL INTEREST IN THE TRUSTS
(a) The Trustee shall hold each part of each Trust, and each Asset
of each Trust from time to time, on trust for the relevant
Beneficiary on and subject to the terms and conditions of this
deed.
(b) The interest of a Beneficiary under a Trust may be evidenced by
the issue of one or more units by the Trustee, if the relevant
Series Notice so specifies. A unit may give the holder a right
only to capital or only to income, or may give such other rights
as the relevant Series Notice may provide. If a Beneficiary has
paid all subscription and other moneys payable by it for the
issue of a unit, the interests of that Beneficiary under
paragraph (a) are not affected by the failure of the Trustee to
issue any such unit.
3.2 CREATION OF TRUSTS
(a) (TRUST MANAGER MAY CREATE) The Trust Manager may at any time
create a Trust by lodging with the Trustee:
(i) (NOTICE OF CREATION) a duly completed and executed
Notice of Creation of Trust; and
(ii) (INITIAL ASSETS) the sum of $10.00 to constitute the
initial Assets of the Trust (which sum may be evidenced,
at the time of creation of that Trust or a later date,
by the issue of a unit under clause 3.1).
(b) (CONSTITUTION OF A TRUST) On satisfaction of clause 3.2(a), the
Trust referred to in the corresponding Notice of Creation of
Trust under clause 3.2(a)(i) shall be created.
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
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(c) (NO LIMIT ON TRUSTS) There shall be no limit on the number of
Trusts that may be created under this deed.
3.3 NAME OF THE TRUSTS
Each Trust shall be known as:
(a) (INITIAL NAME) the INTERSTAR MILLENNIUM SERIES X-Y TRUST, where
X represents the year in which the Trust was created and Y
represents the consecutive order of creation of the Trust; for
example, in the case of the first Trust the INTERSTAR MILLENNIUM
SERIES 1999 - 1 TRUST; or
(b) (ALTERNATIVE NAME) such other name as the Trustee and the Trust
Manager may from time to time agree.
3.4 DURATION OF A TRUST
Each Trust shall continue until, and shall terminate on the later of:
(a) its respective Termination Date; and
(b) the date on which the provisions of clause 3.5 have been
satisfied.
3.5 TERMINATION; WINDING UP
(a) (REALISATION OF ASSETS) Subject to this clause 3 and to the
Transaction Documents, immediately following the Termination
Date of a Trust the Trustee in consultation with the Trust
Manager or the Beneficiary, to the extent either has title to
the Assets of the relevant Trust following that Termination
Date, must:
(i) sell and realise the Assets of that Trust (having
obtained appropriate expert advice prior to the sale of
any Loan or Loan Security); and
(ii) so far as reasonably practicable and reasonably
commercially viable, and subject to this clause,
complete the sale within 180 days after the Termination
Date for that Trust.
(b) (FIRST RIGHT OF REFUSAL) Where an Approved Seller has a first
right of refusal in relation to those Loans or Loan Securities
under clause 8.7(a), the Trustee or the Beneficiary (as the case
may be) must comply with that clause 8.7(a).
(c) (SALE WITHIN 180 DAYS) During the 180 day period after the
Termination Date of a Trust, the Trustee or the Beneficiary (as
the case may be) must not (subject to paragraph (d)) and the
Trust Manager must not direct it to, sell any Loans and the
related Loan Rights for an amount less than:
(i) in the case of performing Loans, their Unpaid Balance;
or
(ii) in the case of non-performing Loans, their Fair Market
Value.
(d) (PERFORMING LOANS) Notwithstanding sub-paragraph (c)(i), the
Trustee or the Beneficiary (as the case may be) may not and the
Trust Manager must not direct it to, sell any performing Loan
for less than
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
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its Fair Market Value without the consent of an Extraordinary
Resolution of the relevant Noteholders. Any purported sale
without that approval will be ineffective.
(e) (SALE AT LESS THAN UNPAID BALANCE) The Trustee or the
Beneficiary (as the case may be) must not sell any Loan and the
related Loan Rights for less than the Unpaid Balance of the Loan
unless:
(i) if the Principal Amount of each Note is greater than
zero, the Noteholders (including the holder of the
Seller Note) have consented to such sale by
Extraordinary Resolution; or
(ii) if the Principal Amount of each Note is zero, the
relevant Beneficiary consents.
(f) (PROCEDURES BEFORE WINDING UP) The provisions of this deed will
continue to apply to a Trust for the period between the
Termination Date of that Trust and the date on which the Assets
of that Trust have been realised and distributed,
notwithstanding the occurrence of the Termination Date.
(g) (EXPENSES) Subject to the Security Trust Deed, the Trust Manager
must direct the Trustee or the Beneficiary (as the case may be)
to, and the Trustee or the Beneficiary (as the case may be)
must, pay or provide for all Taxes, Expenses, claims and demands
due or incurred, or which the Trustee or the Beneficiary (as the
case may be) believes should be provided for, in connection with
or arising out of the administration or winding up of any Trust,
including the fees of any consultants or advisors employed in
connection with the administration or winding up of the Trust.
(h) (DISTRIBUTION) The Trust Manager shall direct the Trustee or the
Beneficiary (as the case may be) to distribute the proceeds of
realisation of the Assets of a Trust (after deducting the
amounts paid or provided for under paragraph (g)) in accordance
with the cashflow allocation methodology set out in the relevant
Series Notice and in accordance with any directions given to it
by the Trust Manager. The Trustee or the Beneficiary (as the
case may be) shall comply with that direction.
(i) (BENEFICIARY) If all Notes relating to a Trust have been fully
redeemed and the Creditors paid in full, the Trustee may
distribute all or part of the Assets to the relevant Beneficiary
in specie (without recourse to the Trustee or the Beneficiary
(as the case may be) and without any representation or warranty
by the Trustee or the Beneficiary (as the case may be)).
(j) (PERFORMING/NON-PERFORMING) The Trust Manager is to determine
whether a Loan is performing or non-performing for the purposes
of this clause 3.5.
3.6 COSTS OF WINDING UP OF A TRUST
During the winding up of a Trust under clause 3.5:
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
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(a) (TRUSTEE'S FEE) the Trustee shall be entitled to the continued
payment of the Trustee's Fee under clause 22.1;
(b) (TRUST MANAGER'S FEE) the Trust Manager shall be entitled to
continued payment of the Trust Manager's Fee under clause 18;
and
(c) (EXPENSES) the Trustee or the Beneficiary (as the case may be)
and the Trust Manager shall be entitled to reimbursement for,
and the Trust Manager and the Trustee shall make provision for,
all Expenses incurred, made or apprehended in relation to the
Trust (which shall for this purpose include all Taxes, costs,
charges, expenses, claims and demands incurred, made or
apprehended in connection with the winding up of the Trust,
including the fees of any agents, solicitors, bankers,
accountants or other persons who the Trustee or the Beneficiary
(as the case may be) or the Trust Manager may employ in
connection with the winding up of the Trust).
4. INVESTMENT OF THE TRUSTS GENERALLY
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4.1 AUTHORISED INVESTMENTS ONLY
Subject to this deed and the relevant Series Notice, each Trust shall
comprise only assets and property which are Authorised Investments as
at the date of their acquisition.
4.2 TRUST MANAGER SELECTS INVESTMENTS
Subject to the terms of this deed:
(a) the Trust Manager alone shall have absolute and uncontrolled
discretion to determine, and it shall be the duty of the Trust
Manager to:
(i) recommend or to propose in writing to the Trustee
(which may be under a Series Notice), the manner in
which any moneys forming part of a Trust shall be
invested and what purchases, sales, transfers,
exchanges, collections, realisations or alterations of
Assets shall be effected and when and how the same
should be effected; and
(ii) give to the Trustee all directions which the Trustee
may desire in relation to the above matters; and
(b) it shall be the role of the Trustee to give effect to all such
recommendations or proposals of the Trust Manager as are
communicated by the Trust Manager to the Trustee in accordance
with this clause.
However, the Trust Manager may not give any direction to the Trustee in
relation to a Trust which is inconsistent or conflicts with the terms
of the Trust including the Series Notice for that Trust.
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
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4.3 INVESTMENT PROPOSALS
(a) (TRUST MANAGER'S INVESTMENT PROPOSALS) The Trust Manager shall
from time to time give to the Trustee a written proposal for the
acquisition or origination of property which is to constitute
Assets of a Trust and for the sale, transfer or other
realisation of or dealing with the Assets of a Trust.
(b) (SUFFICIENT DETAILS) Except where the Trust Manager's proposal
is a Note Issue Direction, each proposal shall contain all
necessary details relating to the proposal, together with all
information regarding the relevant Assets and the certification
of the Trust Manager that the giving effect by the Trustee of
the proposal is in accordance with this deed. Where the Trust
Manager's proposal is a Note Issue Direction, it will comply
with this deed.
(c) (DISCRETION) The Trust Manager shall have the fullest discretion
to recommend in the proposal the time and mode of and the
broker, contractor or agent (if any) to be engaged for the
implementation of the proposal including the right to recommend
a postponement for so long as the Trust Manager in its
discretion shall think fit.
(d) (TRUSTEE MUST IMPLEMENT INVESTMENT PROPOSALS) On receipt of any
written proposal by the Trust Manager under this clause 4, the
Trustee shall implement that proposal and the Trustee shall not
be required, nor be under a duty, to inquire or to make any
assessment or judgment in relation to that proposal or whether
the proposed investment is an Authorised Investment or is
otherwise permitted under this deed. Subject to this deed, the
Trustee must not make an investment if it knows that it is not
an Authorised Investment.
4.4 DISPOSAL OR REALISATION OF AUTHORISED INVESTMENTS
(a) (AUTHORISED INVESTMENTS TO BE HELD TO MATURITY) Subject to this
deed, the relevant Series Notice, any applicable Security Trust
Deed or Support Facility, Authorised Investments in respect of a
Trust shall be held until their maturity (and the Trustee shall
accordingly not have power to dispose of or realise any
Authorised Investment in a Trust). However, nothing in this deed
shall affect the rights, powers, duties and obligations of the
Trustee in relation to enforcing any Loan, Loan Security or
Related Securities or otherwise in relation to any other
Authorised Investment or Support Facility.
(b) (CIRCUMSTANCES FOR DISPOSAL) Subject to this clause 4.4(b) and
to clause 4.4(c), the Trustee shall have power to dispose of or
realise any Authorised Investment in a Trust if the Trust
Manager confirms to the Trustee that the disposal or realisation
of the Authorised Investment will not lead to a loss or where to
continue to hold such Authorised Investment would:
(i) (BREACH) result in a breach of this deed;
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
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(ii) (AFFECT AUTHORISED TRUSTEE INVESTMENT STATUS) affect
the status of Notes as an Authorised Trustee Investment
(if applicable);
(iii) (ADVERSELY AFFECT RATING) adversely affect the then
rating (if any) of the Notes issued in relation to the
Trust; or
(iv) (PREJUDICIAL TO NOTEHOLDERS) in the opinion of the
Trust Manager, be prejudicial to the interests of
Noteholders in the Trust.
The Trustee may only exercise its power of disposal or
realisation under paragraphs (ii)-(iv) (inclusive) on the
written direction of the Trust Manager.
(c) (NO RESTRICTION ON CERTAIN DISPOSAL) Subject to each Transaction
Document, there shall be no restriction on the disposal or
realisation of, or temporary investment or reinvestment in,
Authorised Investments:
(i) where the disposal is to another Trust under clauses 7
or 8.7(c); or
(ii) where the disposal is specifically contemplated by
this deed or the relevant Series Notice.
(d) (PROCEEDS ON REALISATION) On the settlement of the discharge,
realisation or disposal of an Asset, the Trustee may accept the
proceeds in the form of:
(i) a Bank cheque payable to the Trustee; or
(ii) in other immediately available funds.
4.5 TEMPORARY INVESTMENT OF CASH AND LIMITATION ON MATURITY OF AUTHORISED
INVESTMENTS
The Trust Manager shall in respect of a Trust be entitled to direct the
Trustee to cause cash on hand which represents the income or capital of
the Trust and which is not required for:
(a) (EXPENSES) the immediate payment of the Expenses of the Trust;
(b) (TRUSTEE'S FEE) the immediate payment of the Trustee's Fee in
relation to the Trust; or
(c) (NOTEHOLDERS OR BENEFICIARIES) the immediate payment to the
Noteholders or a
Beneficiary of the Trust,
to be invested in Authorised Investments provided that such Authorised
Investments shall mature on a date on or before the due date for such
payment.
4.6 SUPPORT FACILITIES
(a) (ENTER INTO SUPPORT FACILITIES) The Trustee shall in relation to
any Trust, on the prior direction of the Trust Manager (and
following a review by the Trustee of the documentation for the
proposed Support
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
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Facility), enter into or acquire and perform any Support
Facilities on such terms and conditions as are reasonably
required by the Trust Manager (subject to this deed).
(b) (RATING OF PARTIES TO SUPPORT FACILITY) If Notes have been, or
are proposed to be, issued by the Trustee as trustee of a Trust,
the Trust Manager shall (subject to this deed):
(i) direct the Trustee that each Support Facility for the
benefit of the Trust must be taken out or executed
with a person having at that time a Designated Rating
(if required by the corresponding Designated Rating
Agency); and
(ii) take, or direct the Trustee to take, such other action
as may be necessary to satisfy the requirements of the
relevant Designated Rating Agency in relation to that
Trust.
(c) (SUPPORT FACILITIES) If Notes have been, or are proposed to be,
issued by the Trustee as trustee of a Trust, any Support
Facility for the benefit of the Trust shall be entered into by
the Trustee prior to or on the Note Issue Date in relation to
those Notes provided that the Trustee may, on the prior
direction of the Trust Manager:
(i) enter into a new Support Facility as trustee of a
Trust after a Note Issue Date, if and only if, the
Trust Manager has received written confirmation from
any Designated Rating Agency that entering into the
Support Facility will not result in a downgrading or
withdrawal of the rating of the Notes; or
(ii) substitute a new Support Facility for any existing
Support Facility entered into in accordance with this
clause 4.6 where it has previously issued Notes as
trustee of a Trust, if and only if, the Trust Manager
considers the same to be in the interests of that
Trust and the Trust Manager has received written
confirmation from any Designated Rating Agency that
the new Support Facility will not result in a
downgrading or withdrawal of the rating of the Notes.
(d) (DOWNGRADING OF PARTIES) If a person providing a Support
Facility to the Trustee in its capacity as trustee of a Trust
ceases to have a Designated Rating (if the corresponding
Designated Rating Agency requires it to have a Designated
Rating) and the Designated Rating Agency has downgraded or
withdrawn, or has indicated that it proposes to downgrade or
withdraw, its rating of the Notes, the Trustee shall, if
directed by the Trust Manager and subject to this deed:
(i) enter into any substitute or additional Support
Facility identified by the Trust Manager, and on such
terms required by the Trust Manager; or
(ii) take such other action as may be required by the
relevant Designated Rating Agency,
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to maintain the rating of the Notes as it stood prior to such
downgrading or withdrawal or proposed downgrading or
withdrawal of the rating of the Notes.
(e) (NO OBLIGATION TO HAVE SUPPORT FACILITIES) Nothing in this
clause or this deed shall be construed as requiring that any
given Trust has the benefit of any Support Facility. The Trustee
is not required to enter into any Support Facility except as
provided in this clause.
4.7 AUTHORISED TRUSTEE INVESTMENTS
The Trust Manager shall not direct the Trustee to, and the Trustee
shall not knowingly invest any moneys of a Trust in any Authorised
Investment which prejudices the qualification of Notes in that Trust as
an Authorised Trustee Investment in a given Australian Jurisdiction if
the Trust Manager has indicated to the Trustee that the Notes are, or
are proposed to be, an Authorised Trustee Investment of that Australian
Jurisdiction or any Information Memorandum or prospectus in relation to
such Notes indicates that the Notes are, or are proposed to be, an
Authorised Trustee Investment of that Australian Jurisdiction. The
Trustee may rely on any confirmation from the Trust Manager that any
investment is an Authorised Trustee Investment.
4.8 LIMITATION OF TRUSTEE'S PERSONAL LIABILITY
Notwithstanding any other provision of this deed, the Trustee is not
obliged to execute any instrument, enter into any agreement, take any
action, or incur any obligation in connection with a Trust (including
in connection with Support Facilities or Assets) unless:
(a) in the case of agreements, actions or obligations that are
expressly contemplated by the Transaction Documents and are
between parties to the Transaction Documents, its personal
liability in connection with the instrument, agreement, action
or obligation is limited in a manner consistent with clause
32.16; or
(b) in any other case, the Trustee's liability is limited in a
manner satisfactory to the Trustee in its absolute discretion.
4.9 MONEYS PAYABLE TO TRUSTEE
Subject to this deed, the Trust Manager and the Trustee shall ensure
that any agreements entered into in relation to the Trusts contain a
provision to the effect that any moneys belonging to the Trusts under
the agreements shall be paid to the Trustee or to an account, or
Authorised Investment, in the name of the Trustee as trustee of the
relevant Trust.
4.10 SEGREGATION OF ASSETS OF A TRUST
Subject to this deed (and in particular to clause 26.10) and any Series
Notice the Trustee shall:
(a) ensure that no money or other Assets of a Trust are commingled
with the money or other Assets of another Trust or any assets of
the Trustee in any capacity other than as Trustee of the Trust;
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(b) account for the Assets included in each Trust separately from
the Assets included in all other Trusts and any assets of the
Trustee in any capacity other than as Trustee of the Trust; and
(c) keep the liabilities of, and principal amounts outstanding to
Noteholders and providers of Support Facilities or other
Creditors in relation to each Trust separate and apart from the
liabilities of, and principal amounts outstanding to Noteholders
and providers of Support Facilities or other Creditors in
relation to all other Trusts and any liabilities of the Trustee
in any capacity other than as Trustee of the Trust.
4.11 ASSETS OF TRUSTS
Assets of a Trust shall not be available to meet any liability of, or
principal amounts outstanding to Noteholders and providers of Support
Facilities or other Creditors in relation to:
(i) any Trust other than the Trust of which those Assets form a
part; or
(ii) any liability of the Trustee in any capacity other than as
trustee of the Trust.
4.12 LIABILITIES OF A TRUST
Any liabilities to the extent that they relate to a Trust and principal
amounts outstanding to Noteholders and providers of Support Facilities
or other Creditors to the extent that they relate to a Trust, shall not
be aggregated with any liabilities, and principal amounts outstanding
to Noteholders and providers of Support Facilities or other Creditors,
to the extent that they relate to any other Trust or offset against the
Assets of any Trust other than the Trust of which those liabilities and
principal amounts form a part or to which they relate or any liability
of the Trustee in any capacity other than as trustee of the Trust.
5. BORROWINGS
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5.1 PURPOSE
Subject to this deed and any Series Notice, the Trustee may (at the
direction of the Trust Manager) Borrow for the purpose of or in
connection with:
(a) the making of, investment in, or funding of assets underlying,
Loans and Loan Securities;
(b) in relation to paragraph (a), investment in other Authorised
Investments; or
(c) the continued funding of any investment in Loans, Loan
Securities or other Authorised Investments.
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5.2 BORROWINGS - GENERAL
Subject to clause 5.3, the Trustee may only Borrow in relation to a
Trust following receipt of a Note Issue Direction under clause 12 and
only by way of:
(a) the issue of Notes (including a Seller Note, and any Borrowing
relating to that Seller Note) at any time and from time to time
under this deed and the relevant Trust;
(b) a Support Facility contemplated by the Note Issue Direction or
Series Notice (as the case may be) (and any Notes issued with
respect to that Support Facility); or
(c) a Borrowing which is:
(i) at all times subordinated and subject to the Notes,
the interests of the Noteholders under the Notes, and
the interests of the providers of any Support
Facilities, in relation to the relevant Trust; or
(ii) rated by all Designated Rating Agencies at least as
high as the rating given by them to the Notes; or
(iii) without recourse to the Trustee or any assets of the
Trustee, other than the excess funds of the Trust
after meeting the principal and interest requirements
of the Noteholders and any Expenses of the Trust,
provided that the Borrowing does not constitute a
claim against the Trustee to the extent that there are
insufficient funds to meet repayments on the
Borrowing,
and in any event does not adversely affect the current ratings
of the relevant Notes.
5.3 BORROWINGS - REDRAWS
Where there are, or may be, ongoing obligations of the Trustee or
Approved Seller (as the case may be) to provide Obligors with the
ability to redraw amounts prepaid under a Loan, or to increase the
principal amount of or owing in relation to any Loan, the Trustee
shall, subject to any applicable restriction in the Transaction
Documents (whether under a Series Notice or otherwise), at the
direction of the Trust Manager (without limiting its rights or powers
under this deed):
(a) (where the Approved Seller has those obligations) issue a Seller
Note to the Approved Seller with respect to those obligations of
the Approved Seller;
(b) issue Notes to reimburse the relevant Approved Seller or itself
for any redrawn amounts funded; or
(c) enter into any other arrangements as may be agreed between the
Trustee, the Trust Manager and (where the Approved Seller has
those obligations) the Approved Seller.
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6. ORIGINATION
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(a) Where a Note Issue Direction directs the Trustee to fund the
making of Loans other than by acquisition from an Approved
Seller (an ORIGINATION), and the Trustee implements the
direction, the Trustee shall use the proceeds of the relevant
issue of Notes or drawing under the relevant Support Facility
(as the case may be) for the purpose of the Origination in
accordance with the detailed procedure for Origination set out
in the relevant Series Notice and as agreed by the Trustee, the
Trust Manager and the relevant originator.
(b) The Trustee is not required to Originate Loans unless it is
satisfied (in its absolute direction) with the procedures for
the Origination (including as to any indemnity for liability
under Consumer Credit Legislation).
7. TRANSFERS BETWEEN TRUSTS; ACKNOWLEDGEMENT
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7.1 TRANSFERS BETWEEN TRUSTS
(a) Where a transfer of Assets is to occur between Trusts, or from
the Trustee as the trustee of any other trust, the provisions of
this clause 7.1 apply.
(b) The transfer may take place under a Sale Notice, under a
relevant Series Notice, or by such other method as the Trustee
and the Trust Manager may determine. The information and timing
of that transfer and the delivery of that Sale Notice or any
other document will be as agreed between the Trustee and the
Trust Manager.
(c) Subject to payment of the agreed Purchase Price (as adjusted in
accordance with the terms of the sale), the Trustee as trustee
of a Trust will hold automatically by virtue of this deed and
without any further act or instrument or other thing being done
or brought into existence, the benefit of all Loan Rights
transferred to it by the Trustee as trustee of another Trust
(together with the benefit of all Support Facilities which the
Trustee and the Trust Manager agree are to be transferred, and
all other rights and entitlements relating to the relevant
Loans). The Trustee will hold the Loan Rights so acquired as
trustee of the Trust which acquires those Loan Rights and no
longer as the trustee of Trust which disposed of the Loan
Rights.
(d) The Sale Notice, Series Notice or other method of transfer (as
the case may be) may, if so agreed between the Trustee and the
Trust Manager, provide:
(i) that the Trust Manager, the Servicer or the Approved
Seller of the Assets which are the subject of the
transfer shall give for the benefit of the acquiring
Trust specified representations, warranties and
undertakings in relation to the Assets; and
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(ii) for the effect of any breach of a representation,
warranty or undertaking referred to in sub-paragraph
(i).
(e) Where an Approved Seller has any interest in the Loan Rights
following a transfer between Trusts, each of:
(i) the Trustee as trustee of the Trust which transfers
the relevant Loan Rights (the OLD TRUST);
(ii) the Trustee as trustee of the Trust which acquires the
relevant Loan Rights (the NEW TRUST); and
(iii) the relevant Approved Seller,
agrees that with effect from the date of transfer of the
relevant Loan Rights the rights and obligations as between the
Approved Seller and the Trustee as trustee of the Old Trust will
be novated, and enjoyed by, the Approved Seller and the Trustee
as trustee of the New Trust as between themselves (without the
need for further action on the part of any person). The Approved
Seller and the Trustee as trustee of the Old Trust shall, as
between themselves, cease from that date to owe any obligations
or hold any rights as between themselves.
(f) Following a transfer of Assets between Trusts, the Trust Manager
shall calculate, and notify the Trustee of, the amount of:
(i) any accrued interest under the relevant Loans that may
be due from the New Trust to the Old Trust at any
time; and
(ii) any repaid or prepaid principal under the relevant
Loans that may be due from the Old Trust to the New
Trust,
in accordance with the provisions (if any) of the relevant
Series Notice or Sale Notice.
The Trust Manager directs the Trustee (as Trustee of the Trust
with any obligation under this paragraph (f)) to pay any amount
so calculated to the other relevant Trust as an adjustment to
the corresponding purchase price, in accordance with the
relevant Series Notice.
7.2 ACKNOWLEDGEMENT BY APPROVED SELLER
Each Approved Seller (which has any interest in the Loans) acknowledges
and agrees that any interest in Loans acquired from it by the Trustee
as trustee of any Trust may be disposed of by the Trustee to another
Trust.
8. ACQUISITION FROM APPROVED SELLER
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8.1 NOTE ISSUE DIRECTION
Where a Note Issue Direction directs that the Trustee issues Notes to
fund the acquisition of Authorised Investments from an Approved Seller
under a Sale Notice under clause 8.3, and the Trustee implements the
direction, the
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Trustee shall use the proceeds of the relevant issue of Notes for the
purpose of the acquisition in accordance with this clause.
8.2 ACCESSION OF APPROVED SELLERS
(a) (APPROVED SELLER) A person approved by the Trust Manager (as
advised in writing to the Trustee) may at any time become an
Approved Seller for the purposes of this deed by entering into a
Seller Accession Certificate.
(b) (ACCESSION) On execution of a Seller Accession Certificate by
that person and the Trustee, that person shall be taken to be an
Approved Seller for the purposes of this deed with all the
rights and obligations as if it were an original party to this
deed.
(c) (TRUSTEE AS APPROVED SELLER) If the Trustee as trustee of a
Trust, or as trustee of any other trust, is to be an Approved
Seller, it need not execute a Seller Accession Certificate but
will be bound by this deed as an Approved Seller as trustee of
that Trust or other trust (as the case may be).
8.3 SALE NOTICES
(a) An Approved Seller may (but is not obliged to) offer to sell its
beneficial interest in any Authorised Investments to the Trustee
by delivering a Sale Notice to the Trustee.
(b) Unless the Trustee otherwise agrees, a Sale Notice given under
this deed shall be delivered to the Trustee not later than 4.00
pm on the Business Day before the day on which the Expiry Time
falls (which must also be a Business Day).
(c) An offer in a Sale Notice is irrevocable during the period up to
and including the Expiry Time of that Sale Notice.
(d) If so directed by the Trust Manager, the Trustee shall accept
the offer contained in a Sale Notice at any time prior to the
Expiry Time by, and only by, the payment by the Trustee to the
Approved Seller (or as it directs) of the Purchase Price in same
day funds to the bank account specified by the Approved Seller
for that purpose in that Sale Notice.
(e) Notwithstanding:
(i) satisfaction of all relevant conditions precedent; or
(ii) any negotiations undertaken between the Approved
Seller and the Trustee prior to the Trustee accepting
the offer contained in a Sale Notice,
the Trustee is not obliged to accept the offer contained in a
Sale Notice and no contract for the sale or purchase of any
Loans or related Loan Rights referred to in a Sale Notice will
arise unless and until the Trustee accepts the offer contained
in the Sale Notice in accordance with this clause.
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(f) The offer contained in a Sale Notice may only be accepted in
relation to all the Loans and related Loan Rights referred to in
the Sale Notice.
8.4 CONDITIONS PRECEDENT TO PURCHASE
(a) (GENERAL) The right of an Approved Seller (other than the
Trustee as trustee of a Trust) to give a Sale Notice under
clause 8.3 shall be subject to the Trustee having received in
form and substance satisfactory to the Trustee on or before the
date such offer is given:
(i) (VERIFICATION CERTIFICATE) except where the Approved
Seller is the Trustee as trustee of a Trust or any
other trust, a certificate in relation to the Approved
Seller given by an Authorised Signatory of the
Approved Seller substantially in the form of schedule
6 with the attachments referred to and dated as at the
date of the Sale Notice;
(ii) (NOTE ISSUE DIRECTION) the Trust Manager having
delivered to the Trustee a Note Issue Direction and
executed Series Notice under clause 12 in relation to
the issue of the relevant Notes; and
(iii) (OTHER CONDITIONS) any other condition precedent
specified in the relevant Series Notice.
(b) (FURTHER CONDITIONS PRECEDENT) The rights of an Approved Seller
(other than the Trustee as trustee of a Trust or any other
trust) to give a Sale Notice shall be subject to the further
conditions precedent that on the date of giving a Sale Notice
the following statements shall be true (and the Approved Seller,
other than the Trustee, shall, by virtue of giving that Sale
Notice be deemed to have certified that):
(i) (REPRESENTATIONS TRUE) the representations and
warranties in clause 8.5 are true as of such day as
though they had been made at that date in respect of
the facts and circumstances then subsisting;
(ii) (NO INSOLVENCY) no Insolvency Event with respect to
the Approved Seller has occurred and is subsisting or
would result from the acceptance of a Sale Notice.
8.5 REPRESENTATIONS AND WARRANTIES OF APPROVED SELLER
Each Approved Seller (other than the Trustee as trustee of a Trust)
makes the following representations and warranties.
(a) (i) (STATUS) It is a corporation validly existing under
the laws of the place of its incorporation specified
in this deed and the Commonwealth of Australia (or in
the relevant Seller Accession Certificate).
(ii) (POWER) It has the power to enter into and perform its
obligations under the Transaction Documents to which
it is expressed to be a party and to carry on its
business as contemplated by the Transaction Documents.
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(iii) (CORPORATE AUTHORISATIONS) It has taken all necessary
action to authorise the entry into and performance of
each Transaction Document to which it is a party and
to carry out the transactions contemplated by such
Transaction Documents.
(iv) (OBLIGATIONS BINDING) Its obligations under each
Transaction Document to which it is a party are legal,
valid, binding and enforceable in accordance with
their respective terms subject to principles of equity
and the laws concerning insolvency, bankruptcy,
liquidation, administration or reorganisation, or by
other laws generally affecting creditors' rights or
duties.
(v) (TRANSACTIONS PERMITTED) The execution and performance
by it of each Transaction Document to which it is a
party and each transaction contemplated under those
documents will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a
default under, any provision of:
(A) its constitution; or
(B) any law applicable to it,
which is material in the context of performing its
duties under each Transaction Document to which it is
a party.
(vi) (AUTHORISATIONS) It holds all Authorisations necessary
to carry on its business and to act as required by
each Transaction Document to which it is a party and
by law to comply with the requirements of any
legislation and subordinate legislation (including, to
the extent relevant, any Consumer Credit Legislation).
(vii) (NO BREACH OF OBLIGATION) As at the Cut-Off Date, the
Approved Seller was not in breach of any obligations
or agreements which has had or may have an Adverse
Effect.
(viii) (SERIES NOTICE) Any representations and warranties
required to be made by the Approved Seller as set out
in the relevant Series Notice.
(b) (TIME AT WHICH REPRESENTATIONS AND WARRANTIES MADE) The
representations and warranties in clause 8.5(a) are deemed to be
made by an Approved Seller, by reference to the facts and
circumstances then existing in relation to the relevant Trust,
on each of the dates on which a Sale Notice is given and on the
Closing Date specified in that Sale Notice (unless otherwise
specified in the representation or warranty).
(c) (RELIANCE ON REPRESENTATIONS AND WARRANTIES) Each Approved
Seller acknowledges that the Trustee may accept an offer in
accordance with clause 8.3 and, if an offer is accepted, will
pay the Purchase Price in reliance on the representations and
warranties in clause 8.5(a).
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(d) (BREACH OF REPRESENTATIONS AND WARRANTIES)
(i) (DUTY TO GIVE NOTICE) For the purposes of
sub-paragraph (d)(ii) (and without affecting the
Trustee's right to damages), if an Approved Seller,
the Trust Manager or the Trustee becomes aware that a
representation or warranty in relation to any
Purchased Loan or other Loan Rights is incorrect
(including relating to whether a Purchased Loan is an
Eligible Loan) otherwise than as a result of receiving
notice from the other, it must notify the other
parties and each Designated Rating Agency, within 5
Business Days of it becoming so aware.
(ii) (OFFER AND ACCEPTANCE - REPURCHASE) If:
(A) such a representation and warranty is
incorrect; and
(B) the Trustee does not waive that breach, or
the Approved Seller does not remedy the
breach to the satisfaction of the Trustee,
within the period of 5 Business Days, or such
longer time as the Trustee in its absolute
discretion permits,
then, without any action being required by either
party:
(C) the Approved Seller shall be taken to have
offered to repurchase the relevant Purchased
Loans and related Loan Rights:
(1) where it gives a notice under
sub-paragraph (d)(i), on the date
which is the earlier of the date
specified in that notice and 10
Business Days after that notice is
given; or
(2) otherwise, on the date which is 10
Business Days after the notice it
receives or should have given (as
the case may be) under sub-paragraph
(d)(i),
(in either case, the REPURCHASE DATE) for an
amount equal to its Unpaid Balance;
(D) the Trustee, by not waiving the breach or
agreeing to a longer time as referred to in
sub-paragraph (d)(ii)(B) above, shall be
taken to have accepted that offer;
(E) the Trustee shall be entitled to:
(1) all Collections received in relation
to the relevant Purchased Loan and
the related Loan Rights on and from
the Closing Date to (but excluding)
the Repurchase Date; and
(2) the Unpaid Balance of the relevant
Purchased Loan as at the Repurchase
Date; and
(F) the Approved Seller shall pay to the Trustee
the Unpaid Balance as at the Repurchase Date
of that
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Loan within 5 Business Days of the Repurchase
Date, together with any relevant break costs
for which the Approved Seller is liable in
relation to the prepayment of any Hedge
Agreement for the relevant Trust.
(iii) (EFFECT OF REPURCHASE) On payment of the amount under
sub-paragraph (d)(ii)(F):
(A) the Trustee shall cease to have any
beneficial interest in the relevant Purchased
Loans and related Loan Rights;
(B) the Approved Seller shall hold the beneficial
interest in those Loans and Loan Rights and
be entitled to all interest and fees that
accrue in respect of them from (and
including) the Repurchase Date; and
(C) the Approved Seller shall not be obliged to
pay any damages for a breach of
representation or warranty under any
Transaction Document, in respect of the
relevant Purchased Loans and related Loan
Rights except to the extent the Trustee has
incurred any liability to any person as a
result of that breach.
8.6 UNDERTAKINGS
(a) (APPROVED SELLER UNDERTAKINGS) Each Approved Seller undertakes
to the Trustee as follows in relation to the relevant Trust and
Loans and related Loan Rights:
(i) (COMPLY WITH SERIES NOTICE) it will comply with its
obligations under the relevant Series Notice; and
(ii) (COMPLY WITH SERVICING AGREEMENT) it will comply with
its obligations under the Servicing Agreement.
(b) (TERM OF UNDERTAKING) Each undertaking in this clause continues
from the date of this deed until the date following the Sale
Termination Date when the Trustee ceases to have any interest in
the Purchased Loans or related Loan Rights.
8.7 FIRST RIGHT OF REFUSAL; CLEAN UP OFFER
(a) (FIRST RIGHT OF REFUSAL)
(i) As soon as practical after the Termination Date of the
Trust, the Trust Manager shall direct the Trustee to
offer to assign to the relevant Approved Seller its
beneficial interest in and to the Purchased Loans, and
related Loan Rights (if any) in consideration of the
payment to the Trustee by the Approved Seller in
relation to the Trust of:
(A) in the case of performing Purchased Loans,
the Unpaid Balance of the relevant Purchased
Loans; and
(B) in the case of non-performing Purchased
Loans, their Fair Market Value.
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In each case, the Trust Manager is to determine
whether a Loan is performing or non-performing and
notify the Trustee accordingly.
(ii) The Approved Seller cannot accept the offer if the
Fair Market Value of relevant Purchased Loans is less
than the Unpaid Balance without the approval of an
Extraordinary Resolution of the Noteholders. Any
purported acceptance without that approval will be
ineffective.
(iii) During the 180 day period after the Termination Date
of a Trust, the Trustee must not sell any Loans and
the related Loan Rights for an amount less than:
(A) in the case of performing Loans, their Unpaid
Balance; or
(B) in the case of non-performing Loans, their
Fair Market Value.
(iv) The Approved Seller may accept or reject that offer in
its discretion.
(v) The Trustee will not sell or deal with the relevant
Purchased Loans and related Loan Rights except in
accordance with sub-paragraph (a)(i) unless the
Approved Seller has failed to accept the offer
referred to in sub-paragraph (a)(i) within 180 days
after the occurrence of the Termination Date of the
Trust by paying to the Trustee, within 180 days, the
purchase price referred to in sub-paragraph (a)(i) for
all of those Purchased Loans and related Loan Rights.
(b) (CLEAN UP OFFER)
(i) A Series Notice for a Trust may provide that the Trust
Manager may, in certain circumstances, direct a Trust
to purchase Loans or Mortgages held by another Trust
at a particular time or a Trust otherwise to dispose
of Loans or Mortgages at a particular time. The
parties will comply with that Series Notice.
(ii) Unless otherwise provided in that Series Notice, the
consideration for the purchase in sub-paragraph (b)(i)
will be:
(A) in the case of performing Loans, the Unpaid
Balance of the relevant Loans; and
(B) in the case of non-performing Loans, their
Fair Market Value.
In each case, the Trust Manager is to determine
whether a Loan is performing or non-performing and
notify the Trustee accordingly.
(c) (COSTS OF REPURCHASE) An Approved Seller shall pay all costs and
expenses (including stamp duty) relating to the repurchase or
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extinguishment of its relevant Purchased Loans and related Loan
Rights under clauses 8.5(d) and 8.7(a).
8.8 SUBSEQUENT ADJUSTMENT
(a) Where Loans in a Portfolio of Loans have been acquired from an
Approved Seller:
(i) (INTEREST) where so specified in the relevant Series
Notice or Sale Notice, the Trust Manager shall direct
the Trustee after a Note Issue Date for a Trust to
debit any interest or fees received by the Trustee in
respect of a Loan referred to in the corresponding
Note Issue Direction, with an amount that represents
accrued but unpaid interest on the Loan up to the date
specified for that purpose in the Series Notice, and
to credit that amount to the relevant Approved Seller;
(ii) (REPAID PRINCIPAL) where so specified in the relevant
Series Notice or Sale Notice, after the Note Issue
Date the relevant Approved Seller will as soon as
possible (but by close of business on the date
specified for that purpose in that Series Notice)
pay to the Trustee, as an adjustment to the amount
paid by the Trustee under clause 12.8(f), an amount
equal to the amount of any principal received by the
Approved Seller on or after the date specified for
that purpose in the Sale Notice in respect of any
Loans referred to in the corresponding Note Issue
Direction;
(b) (OTHER COSTS) subject to clause 8.8(a), the Trust Manager may in
its absolute discretion direct the Trustee on or at any time
after a Note Issue Date for a Trust to debit or credit the
corresponding Trust with such other amounts that the Trust
Manager believes are appropriate so that the Approved Seller has
the benefit of any receipts, and bears the cost of any
outgoings, in respect of each Loan referred to in the
corresponding Note Issue Direction (and any corresponding Loans,
Loan Securities, Related Securities and Support Facilities) up
to (but not including) the Note Issue Date and so that the
relevant Trust has the benefit of such receipts, and bears such
costs, from (and including) the Note Issue Date; and
(c) (TRUSTEE OR APPROVED SELLER TO ACT IN ACCORDANCE WITH DIRECTION)
the Trustee or the Approved Seller (as the case may be) shall
act in accordance with, and may rely on, a direction of the
Trust Manager in accordance with this clause 8.8.
8.9 SUBSTITUTION
If:
(a) an Obligor under a Purchased Loan is, in accordance with the
relevant legal owner's ordinary course of business, entitled to
replace the related Loan Security, or a Security Interest which
is a Related Security, with another security securing the same
Loan;
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(b) the representations and warranties of the Approved Seller in
clause 8.5(a) and in the relevant Series Notice would be true
and correct in relation to the Loan and the new Security
Interest at the time of substitution as if it was specified as a
Purchased Loan in the Sale Notice; and
(c) without limitation, in relation to Land, the new security would
be subject to a Mortgage Insurance Policy under which the
Trustee would be the insured;
then:
(i) the legal owner may discharge the related Loan Security, or the
relevant Related Security, on the giving of the new security;
(ii) the new security shall be taken to be a Purchased Loan Security
or a Related Security in relation to the relevant Trust, as the
case may be, for the purposes of each Transaction Document and
it and the related Loan Rights shall be Assets of the relevant
Trust; and
(iii) the legal owner shall do anything else reasonably necessary to
assure to the Trustee its interest in that new security.
8.10 INDEMNIFICATION
(a) Without limiting any other rights which the Trustee may have
under any Transaction Document or under applicable law, each
Approved Seller agrees to indemnify the Trustee from and against
any and all damages, losses, claims, liabilities and related
costs and expenses including legal costs and expenses charged at
the usual commercial rates of the legal services provider the
Trustee may sustain or incur as a direct or indirect consequence
of:
(i) the breach of any representation or warranty or
undertaking made by that Approved Seller under or in
connection with any Transaction Document, or any other
information or report delivered by that Approved
Seller under any Transaction Document, being false or
incorrect in any respect when made or deemed made or
delivered;
(ii) the failure by that Approved Seller to comply with any
applicable law, rule or regulation with respect to any
Loan Security, including the nonconformity of any Loan
Security or the Related Loan with any such applicable
law, rule or regulation; and
(iii) any dispute, claim, offset or defence of the Obligor
to the payment of any Purchased Loan Security which
results from a breach by the Approved Seller under any
Transaction Document.
To the extent that the matters referred to in paragraph (a) are
covered by clause 8.5(d), clause 8.5(d) shall apply.
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(b) An Approved Seller shall not be obliged to pay any indemnity for
a breach of representation, warranty or undertaking under any
Transaction Document, unless:
(i) the Trustee first establishes that there has been a
breach by the relevant Approved Seller;
(ii) the indemnity claimed represents no more than the loss
incurred; and
(iii) the Trustee first gives the Approved Seller a written
notice specifying:
(A) the quantum of the claim; and
(B) the basis of the claim.
(c) (PAYMENT) Where an Approved Seller is liable to pay damages
under this clause, it shall make such payment within 5 Business
Days of receipt by the Approved Seller of a notice that complies
with paragraph (b).
8.11 POWER OF ATTORNEY
(a) The Trustee shall ensure that each power of attorney given by an
Approved Seller to the Trustee under or in relation to this deed
shall be exercised only strictly in accordance with its terms.
(b) The Trustee shall:
(i) register each such power of attorney with the land
titles office of each relevant jurisdiction; and
(ii) keep each such power of attorney in a secure place.
8.12 APPROVED SELLER FEE
If the Series Notice for a Trust so provides, the Trustee will pay the
Approved Seller a fee for originating Loans with respect to that Trust,
in the amount set out in that Series Notice.
9. NOTES
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9.1 ACKNOWLEDGEMENT OF INDEBTEDNESS
Subject to the terms of this deed and the relevant Series Notice:
(a) each entry in the Register for the Trust in respect of a
Registered Note relating to the Trust; and
(b) in relation to each Bearer Note relating to the Trust, that
Bearer Note,
constitutes an independent and separate acknowledgement to the relevant
Noteholder by the Trustee of its indebtedness as trustee of the Trust
for the Principal Amount of that Note together with the other rights
given to Noteholders under this deed, the relevant Series Notice and
the Security
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Trust Deed (if any), and (in relation to a Bearer Note) the relevant
Conditions.
9.2 LEGAL NATURE OF NOTES
(a) Registered Notes will be in the form of inscribed stock, and the
Trustee's obligations in relation to the Notes and under this
deed and the relevant Series Notice in respect of those Notes
(including any obligation to pay interest or principal) will
become effective on inscription in the Register for the Trust
under this deed and the relevant Series Notice of the details
for those Notes.
(b) Bearer Notes will be in bearer form, and may be Definitive Notes
(with coupons and talons attached), Temporary Global Notes or
Permanent Global Notes (as such terms are defined in the
relevant Series Notice).
9.3 TERMS OF NOTICE
All Notes issued by the Trustee as trustee of the Trust shall be issued
with the benefit of, and subject to, this deed, the relevant Series
Notice and the Security Trust Deed (if any) and, in relation to Bearer
Notes, the relevant Conditions.
9.4 INTEREST AND PRINCIPAL ENTITLEMENT OF NOTEHOLDERS AND COUPONHOLDERS
Subject to this deed, the relevant Series Notice and the Security Trust
Deed (if any) and, in relation to Bearer Notes, the relevant Conditions
(and, in particular, subject to any such provisions which provide for
principal losses to be charged off against any Notes), the Trustee as
trustee of the Trust shall in respect of the Notes issued by it in that
capacity pay or cause to be paid to the Noteholders and Couponholders
(as relevant) of those Notes:
(a) (INTEREST) their Interest on each Interest Payment Date; and
(b) (PRINCIPAL) their Principal Entitlement on each Principal
Repayment Date.
9.5 NOTES NOT INVALID IF ISSUED IN BREACH
No Note shall be invalid or unenforceable on the ground that it was
issued in breach of this deed, the relevant Series Notice or any other
Transaction Document.
9.6 LOCATION OF REGISTERED NOTES
The property in Registered Notes shall for all purposes be regarded as
situated at the place where the Register is located on which those
Registered Notes are recorded.
9.7 NO DISCRIMINATION BETWEEN NOTEHOLDERS
There shall not be any discrimination or preference between Notes
within the same Class, or the corresponding Noteholders, in relation to
a Trust by reason of the time of issue of Notes or for any other
reason, subject only to
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the Series Notice relating to the Notes and the terms of the Security
Trust Deed (if any) relating to the Trust.
10. SELLER NOTE
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10.1 SELLER NOTE
Where a Series Notice so provides, the Trustee may issue a debt
instrument (the SELLER NOTE) to the relevant Approved Seller with
respect to any ongoing obligations of the Approved Seller with respect
to Purchased Loans acquired from the Approved Seller by the Trustee.
10.2 FORM
The Seller Note:
(a) may be issued in any form and on any terms agreed by the
Trustee, the Approved Seller and the Trust Manager; and
(b) may relate to any current or future obligations of the relevant
Trust, actual or contingent, and whether or not quantifiable at
the date of issue of the Seller Note.
11. LIMITS ON RIGHTS OF NOTEHOLDERS AND BENEFICIARY
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11.1 GENERAL LIMITS
No Noteholder or Beneficiary shall be entitled to:
(a) (FIDUCIARY OBLIGATION) in the case of any Noteholder, require
the Trustee to owe to it, or act in a manner consistent with,
any fiduciary obligation in any capacity;
(b) (PARTICULAR INTEREST) an interest in any particular part of any
Trust or Asset comprised in any Trust;
(c) (REQUIRE TRANSFER) subject (in the case of the Beneficiary) to
this deed, require the transfer to it of any Asset comprised in
any Trust;
(d) (INTERFERE IN MANAGEMENT) interfere with or question the
exercise or non-exercise of the rights or powers of a Servicer,
the Trust Manager or the Trustee in their dealings with any
Trust or any Asset;
(e) (EXERCISE RIGHTS IN RESPECT OF ASSETS) exercise any rights,
powers or privileges in respect of any Asset in any Trust;
(f) (ACT IN TRUSTEE'S PLACE) attend meetings or take part in or
consent to any action concerning any property or corporation
which the Trustee as trustee of a Trust holds an interest;
(g) (TERMINATE TRUSTS) seek to wind up or terminate any Trust
(except as provided in clause 16);
(h) (REMOVE) seek to remove the relevant then Servicer, Trust
Manager, Trustee or any Support Facility Provider;
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(i) (INTERFERE) interfere in any way with any Trust;
(j) (LODGE CAVEATS ETC) lodge or enter a caveat or similar
instrument in relation to a Register or claim any estate or
interest in any Land over which a Mortgage or any Related
Securities are held or to which any other Asset relates in
respect of any Trust;
(k) (COMMUNICATE WITH MORTGAGORS ETC) except where the Noteholder or
Beneficiary is an Associate of the Trust Manager or the Trustee
has otherwise consented, and subject to any provision of a
Transaction Document which allows any such communication,
negotiate or otherwise communicate in any way with any
Mortgagor, or Obligor or other security provider in respect of
any Loan, Loan Security or Related Security or with any person
providing a Support Facility to the Trustee or any other person
who is party to any Transaction Document;
(l) (TAKE PROCEEDINGS) take any proceedings of any nature whatsoever
in any court or otherwise or to obtain any remedy of any nature
(including against the Trustee, the Trust Manager or a Servicer
or any former Trustee, Trust Manager or Servicer or in respect
of any Trust or any Asset of any Trust) provided that it shall
be entitled to compel the Trustee, the Trust Manager and any
Servicer to comply with their respective duties and obligations
under the Transaction Documents and, if the Noteholders are
entitled to the benefit of any applicable Security Trust Deed,
the Noteholders may compel the Security Trustee to comply with
its duties and obligations under the Security Trust Deed; and
(m) (RECOURSE TO PERSONAL ASSETS OF TRUSTEE OR TRUST MANAGER) any
recourse whatsoever to the Trustee or the Trust Manager in their
personal capacity, except to the extent of any fraud, negligence
or wilful default on the part of the Trustee or the Trust
Manager respectively.
11.2 INTERESTS OF BENEFICIARY ASSIGNABLE
Subject to the relevant Series Notice a Beneficiary may assign, or
create or allow to exist a Security Interest over, its rights and
interests in respect of a Trust without the prior written consent of
any person.
11.3 RANKING OF INTEREST OF BENEFICIARY
The rights, claims and interest of a Beneficiary in relation to any
Trust, the Assets of any Trust and in relation to any payment or
distribution out of any Trust (including on the winding up of a Trust)
shall at all times rank after, and be subject to, the interests of
Noteholders under the Notes issued in relation to that Trust (including
in relation to any payment obligations on the Notes).
11.4 FURTHER LIMIT ON INTEREST OF NOTEHOLDERS AND COUPONHOLDERS
A Noteholder or a Couponholder in relation to a Trust shall only be a
creditor of the Trustee in its capacity as trustee of that Trust to the
extent of
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the Notes held by that Noteholder or the Bearer Coupons held by that
Couponholder (as the case may be) and shall not be entitled to any
beneficial or, subject to any applicable Security Trust Deed, other
interest in the Trust.
11.5 NO LIABILITY OF NOTEHOLDERS OR BENEFICIARY
No Noteholder by reason of being a Noteholder, or Beneficiary by reason
of being a Beneficiary, shall in respect of a Trust:
(a) (LIABILITY) have any liability to make any contribution to the
Assets of the Trust or any payment to the Trustee, the Trust
Manager or any other person in relation to the Trust; and
(b) (INDEMNITY) be under any obligation to indemnify the Trustee,
the Trust Manager or any Creditor of the Trustee as trustee of
the Trust in respect of any of the liabilities (actual,
contingent or otherwise and whether due to any deficiency or
not) of the Trustee or the Trust Manager in relation to, arising
from or in connection with the Assets of the Trust or the Trust
generally.
12. PROCEDURE FOR ISSUE OF NOTES
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12.1 NOTE ISSUE DIRECTION FOR A TRUST
(a) (DELIVERY OF DIRECTION) If the Trust Manager proposes that the
Trustee will issue Notes as trustee of a Trust, it shall, at
least 3 Business Days (or such other period agreed by the
Trustee or as specified in a relevant Series Notice) prior to
the proposed Note Issue Date, deliver to the Trustee a Note
Issue Direction directing amongst other things that the Trustee
(subject to this deed and the relevant Series Notice):
(i) (TRANSFER BENEFIT OF MORTGAGES) hold as trustee of the
Trust the benefit of the Portfolio of Loans specified
by the Trust Manager in the Note Issue Direction; and
(ii) (ISSUE NOTES) issue as trustee of the Trust the Notes
specified by the Trust Manager in the Note Issue
Direction.
(b) (CONDITIONS PRECEDENT TO FIRST DIRECTION) The right of the Trust
Manager to give a Note Issue Direction for any Trust is subject
to the Trustee receiving in form and substance satisfactory to
it:
(i) in relation to the first Note Issue Direction for that
Trust, a certificate in relation to the relevant
Servicer, the Trust Manager and (if any) the relevant
Approved Seller (except where the Approved Seller is
the Trustee as trustee of a Trust) given by a director
or secretary of that company substantially in the form
of Schedule 6 with the attachments referred to in that
certificate;
(ii) in relation to the first Note Issue Direction for that
Trust, unless the Trustee already holds a copy as
trustee of another Trust a duly executed and stamped
counterpart of this deed;
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(iii) in relation to the first Note Issue Direction for that
Trust, a legal opinion on this deed, or the Trustee
being satisfied that it will receive that legal
opinion on or before the first proposed Note Issue
Date; and
(iv) any other document or condition specified in the
relevant Series Notice.
12.2 REQUIREMENTS FOR A NOTE ISSUE DIRECTION
A Note Issue Direction given by the Trust Manager to the Trustee in
respect of a Trust under this deed shall (whether in that Note Issue
Direction, or in the accompanying Series Notice):
(a) (CONTAIN THE FOLLOWING INFORMATION) specify the following in
respect of the Notes:
(i) (CLASSES) whether any of the Notes will constitute a
Class separate from any other Notes previously issued
by the Trustee as trustee of the Trust or from any
other Notes referred to in the Note Issue Direction;
(ii) (NAME) the name of the Notes or, if the Notes are
divided into more than one Class, the name of each
Class of Notes;
(iii) (AMOUNT) the total number of Notes and, if the Notes
are divided into more than one Class, the number of
Notes in each Class;
(iv) (PRINCIPAL AMOUNT) the total principal amount of the
Notes and, if the Notes are divided into more than one
Class, the principal amount of each Class;
(v) (MINIMUM SUBSCRIPTION) the minimum subscription amounts
for Notes (if any);
(vi) (ISSUE PRICE) where the Notes are to be issued at a
discount or a premium to the face value, the issue
price of the Notes;
(vii) (NOTE ISSUE DATE) the proposed Note Issue Date;
(viii) (SECURITY TRUST DEED AND SUPPORT FACILITIES) whether a
Security Trust Deed or any Support Facilities need to
be effected in relation to the proposed Note Issue
Date and, if so, reasonable details of these;
(ix) (LOANS) all relevant details (including where relevant
the nature, principal amount and rate of return) of
Loans held or to be held under the Trust to which the
Trust to which the Note Issue Direction relates;
(x) (SELLER) where relevant, the identity and details of
the relevant Approved Seller from which the Loans are
to be acquired;
(xi) (LEAD MANAGER) if there is to be a Lead Manager in
relation to the issue of the Notes, the identity and
address of that Lead Manager and any fees to which the
Lead Manager is entitled in relation to the issue;
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(xii) (DEALER AGREEMENT) if a Dealer Agreement is to be
effected in relation to the proposed Note Issue Date,
reasonable details of that agreement (including the
parties to that agreement and the amount of their
proposed subscriptions);
(xiii) (SUCH OTHER REQUIRED INFORMATION) such other
information required by the Note Issue Direction or
the relevant Series Notice; and
(b) (DULY COMPLETED) without limiting paragraph (a), be otherwise
duly completed; and
(c) (ACCOMPANIED BY A SERIES NOTICE) be accompanied by a duly
completed and executed Series Notice for the Notes, or if the
Notes are divided into more than one Class and the Trust Manager
elects to have a separate Series Notice for each Class, a duly
completed Series Notice for each Class. However, if the terms of
a Series Notice for the Notes, or a particular Class of the
Notes, are the same as for a previous issue of Notes or a Class
of Notes in respect of the Trust, or if the Notes are
contemplated by or issued under a previous Series Notice, this
requirement may be satisfied if the Note Issue Direction
specifies that this is the case and is accompanied by the
relevant previous Series Notice.
12.3 SERIES NOTICE
(a) (MANDATORY INFORMATION) A Series Notice shall specify the
following in respect of the Notes to which it refers or if it
relates to more than one Class of Notes for each Class to which
it refers:
(i) (INTEREST PAYMENT DATES) each date (if any) for the
payment of interest under the Notes;
(ii) (PRINCIPAL REPAYMENT DATES) each date for the
repayment of part or all of the outstanding principal
under the Notes;
(iii) (RATE OF INTEREST) the rate of interest (if any) on
the Notes (which may be fixed, variable, calculated by
way of discount on the issue price or determined by a
stated method) and the method for calculating the
interest;
(iv) (REPAYMENT OF PRINCIPAL) where principal on the Notes
is to amortise, the amount (or the method of
calculating the amount) of principal to be repaid on
the Notes on each Principal Repayment Date;
(v) (CLASS RIGHTS) if the corresponding Note Issue
Direction specifies that the Notes are to constitute a
Class separate from any other Notes previously issued
by the Trustee as trustee of the relevant Trust or
from any other Notes referred to in the Note Issue
Direction, the rights or restrictions that constitute
the first mentioned Notes as a separate Class and the
relationship of those rights and restrictions to any
other then or proposed Class of Notes;
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(vi) (CASHFLOW ALLOCATION METHODOLOGY) the manner in which
cashflow from the Loans (and any relevant Support
Facilities) will be applied by the Trustee, and in
which any shortfalls in income will be allocated among
Notes and/or Classes of Notes;
(vii) (CONVERSION RIGHTS) where the Notes may be converted
into a different Class of Notes, details of that
conversion (including when and in what manner it can
occur); and
(viii) (FEES) any relevant fee (for example, fees to the
Servicer) for the relevant Trust.
(b) (OPTIONAL INFORMATION) A Series Notice may specify the following
in respect of the Notes or Classes of Notes to which it refers:
(i) (SPECIAL RIGHTS) any preferred, deferred or special
rights or restrictions applying to the Notes whether
with regard to the payment of interest, the repayment
of principal, voting, the division into classes or
otherwise, which may include that the Notes are to be
initially issued on a partly paid basis or shall have
an additional entitlement to the principal or capital
of the corresponding Trust beyond the repayment in
full of their Initial Principal Amount; and
(ii) (OTHER INFORMATION) any other terms or restrictions
applying to the Notes that may be included in the
Series Notice.
(c) (INCONSISTENCY) If a term of a Series Notice is inconsistent
with any provision of this deed, the Series Notice shall prevail
to the extent of the inconsistency, with respect only to the
Trust and Notes to which that Series Notice relates.
(d) (AMENDMENT) A Series Notice in relation to a Trust may expressly
amend any provision of this deed with respect to that Trust and
the relevant Notes. This deed and those Notes shall be construed
accordingly.
(e) (EXECUTION) Once the Trustee, the Trust Manager, the relevant
Servicer, the provider of any relevant Support Facility and any
relevant Approved Seller have agreed to the terms of a Series
Notice they shall execute that Series Notice in the Australian
Capital Territory (or another place or jurisdiction agreed
between the Manager and the Trustee), on or before the date on
which the Trust Manager proposes to issue the relevant Note
Issue Direction.
12.4 AMENDMENT
The Trust Manager may (and where the Trustee has acknowledged the Note
Issue Direction in accordance with clause 12.6(b), the Trustee), prior
to a proposed Note Issue Date amend a previously issued Note Issue
Direction or Series Notice (including any Note Issue Direction or
Series Notice previously amended under this clause). Such an amendment
shall only be made if prior notice of the amendment has been given to
the Designated Rating Agency.
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12.5 COMPLY WITH NOTE ISSUE DIRECTION
Subject to this clause 12, the Trustee may comply with a Note Issue
Direction.
12.6 PROVISO ON COMPLIANCE WITH NOTE ISSUE DIRECTION
(a) (TRUSTEE SHALL NOT ACCEPT DIRECTION) The Trustee shall not
comply with a Note Issue Direction unless at least 3 Business
Days (or such other period agreed by the Trustee) prior to the
proposed Note Issue Date the Trust Manager has certified to the
Trustee that the Note Issue Direction and any corresponding
Series Notice comply with this deed.
(b) (ACKNOWLEDGEMENT OF DIRECTION) If the Trustee is satisfied that
the Note Issue Direction has been given in accordance with this
deed and has elected to accept the Note Issue Direction then it
shall immediately (and in no event later than the close of
business 2 Business Days (or such other period agreed by the
Trust Manager) prior to the proposed Note Issue Date) sign the
acknowledgement of receipt on the Note Issue Direction and
return it to the Trust Manager. This acknowledgement will not of
itself constitute a declaration of trust and a trust will only
arise in accordance with clause 12.8(g) or clause 7.1(c) (as the
case may be).
12.7 DEALER AGREEMENT
If a Series Notice so provides, the Trustee shall enter into a Dealer
Agreement in relation to the relevant Notes on such terms and
conditions as are reasonably required by the Trust Manager and the
Trustee (subject to this deed).
12.8 ISSUE OF NOTES AND TRANSFER OF BENEFIT OF LOANS
If the Trustee has:
(a) (ACKNOWLEDGED THE NOTE ISSUE DIRECTION) acknowledged receipt of
a Note Issue Direction;
(b) (SUFFICIENT APPLICATIONS FOR NOTES) received from the Lead
Manager (if any) confirmation that the Subscription Amount for
such Notes is not less than the amount specified in the
corresponding Note Issue Direction;
(c) (RECEIVED OR GRANTED SUPPORT FACILITIES ETC) on or prior to the
proposed Note Issue Date:
(i) (SECURITY TRUST DEED) entered into a Security Trust
Deed as trustee of the relevant Trust (unless not
required for the issue of the Notes by the Trust
Manager in the corresponding Note Issue Direction);
and
(ii) (SUPPORT FACILITIES) obtained, or entered into
arrangements to obtain with effect from the
corresponding Note Issue Date, as trustee of the
relevant Trust the benefit of the Support
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Facilities referred to in the corresponding Note Issue
Direction,
and, to the extent required, received any legal opinions on
those documents reasonably requested by the Trustee;
(d) (RATING) the Trust Manager has advised the Trustee that it has
received a provisional indication from the Designated Rating
Agency that the Notes will have a rating equal to or higher than
the rating specified in the relevant Series Notice; and
(e) (LISTING) if the Notes are to be listed on a Stock Exchange, an
indication from the relevant Stock Exchange that the Notes have
been approved for listing on that Stock Exchange,
then, subject to the other requirements of this deed being satisfied in
relation to matters which must be done on or prior to the Note Issue
Date, the Trustee agrees with the Trust Manager (for the benefit solely
of the Trust Manager) that if, on the direction of the Trust Manager on
the Note Issue Date, it issues Notes, as trustee of the relevant Trust,
to the intending Noteholders for the amount referred to in the
corresponding Note Issue Direction:
(f) (i) (ACQUISITION) where the relevant Loans are to be
acquired from an Approved Seller:
(A) the Trustee will accept the relevant Sale
Notice (but only if the Trustee has issued
the relevant Notes) and without any
obligation to the Approved Seller to do so;
and
(B) the Trustee agrees with the Trust Manager
(for the benefit solely of the Trust Manager)
to pay to the Approved Seller from the
proceeds of the issue of the Notes the
principal amounts of the Loans relating to
the Portfolio of Loans, or such other
consideration specified in relation to the
Note Issue Direction, as at the date
specified in the corresponding Note Issue
Direction; or
(ii) (ORIGINATION) where the Trustee is to originate the
relevant Loans, the Trustee will originate those Loans
(and any relevant Loan Securities) in accordance with
the procedures agreed under clause 6; and
(g) (TRANSFER OF BENEFIT OF LOANS) subject to payment of the amount
referred to in sub-paragraph (f)(i) (where applicable), the
Trustee will hold automatically by virtue of this deed and
without any further act or instrument or other thing being done
or brought into existence, the benefit of the Portfolio of Loans
referred to in the corresponding Note Issue Direction with
effect from the Note Issue Date as trustee of the relevant Trust
(together with the benefit with effect from the Note Issue Date
of all such Loans, Related Securities, Support Facilities and
other rights and entitlements relating thereto).
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12.9 ACTION FOLLOWING NOTE ISSUE
The Trustee shall issue Notes in accordance with the applicable Series
Notice. Where applicable, as soon as practicable after a Note Issue
Date for a Trust:
(a) in relation to Registered Notes only:
(i) (ENTER DETAILS IN THE REGISTER) the Trustee shall
enter into the Register for that Trust in accordance
with clause 15 the information required under clause
15.1;
(ii) (ISSUE NOTE ACKNOWLEDGEMENT) the Trustee shall issue a
Note Acknowledgement to each Registered Noteholder in
respect of its holding of Registered Notes; and
(iii) (ISSUE MARKED NOTE TRANSFERS) if requested by a
Registered Noteholder in its Application for Notes,
the Trustee shall issue a Marked Note Transfer to the
Registered Noteholder.
(b) In relation to Bearer Notes only, the Trustee shall issue those
Bearer Notes in accordance with the relevant Series Notice.
12.10 NO LIABILITY FOR INSUFFICIENT MONEYS
If insufficient moneys are raised on a proposed Note Issue Date to
satisfy clause 12.8(b), neither the Trustee nor the Trust Manager shall
have any obligation or liability to any person (including each other,
any intending Noteholder or any Beneficiary) to issue the Notes or, in
the case of a proposed issue in relation to a Trust, to hold the
benefit of the Portfolio of Loans referred to in the corresponding Note
Issue Direction for the Trust, or otherwise.
12.11 FURTHER ASSURANCE
Subject to the Transaction Documents, the Trustee shall following a
Note Issue Date for a Trust execute such documentation and do all such
other acts, matters or things as the Trust Manager reasonably requires
to transfer the benefit of the Portfolio of Loans referred to in the
corresponding Note Issue Direction (and the benefit of all
corresponding Loans, Related Securities and Support Facilities) to the
Trust.
12.12 FURTHER ISSUES SUBJECT TO RATING AGENCY AFFIRMATION
Where the Trustee as trustee of a Trust has issued Notes, no further
Notes in respect of that Trust shall be created unless the Trustee
receives a certificate from each Designated Rating Agency in respect of
the Notes then on issue in respect of the Trust confirming the rating
of those Notes.
12.13 NO LIMIT ON NOTES
Subject to the provisions of this deed, there shall be no limit on the
amount or value of Notes which may be issued in respect of a Trust.
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13. TRANSFERS OF NOTES
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13.1 NO RESTRICTIONS ON TRANSFER OF NOTES
Subject to this deed and the corresponding Series Notice, there shall
be no restriction on the transfer of Notes.
13.2 TRANSFERS GENERALLY
(a) A Noteholder must not transfer any Notes except in accordance
with all applicable laws in any jurisdiction in which it may
offer, sell or deliver Notes and will not directly or indirectly
offer, sell or deliver Notes or distribute any prospectus,
circular, advertisement, Information Memorandum or other
offering material relating to the Notes in any country or
jurisdiction except under circumstances that will result in
compliance with any applicable laws and regulations.
(b) None of the Trustee, the Trust Manager, the Servicer, the
Security Trustee or an Approved Seller is liable to any
Noteholder in relation to a breach by that Noteholder of
paragraph (a).
13.3 MINIMUM TRANSFER
This clause 13.3 applies to Noteholders in relation to dealings with
Notes within Australia or which are otherwise subject to the provisions
of Part 7.12 of the Corporations Law.
(a) (CORPORATIONS LAW) A Registered Noteholder shall not be entitled
to transfer any of its Registered Notes unless the offer or
invitation to the transferee by the Registered Noteholder in
relation to such Registered Notes is an excluded offer or an
excluded invitation for the purposes of the Corporations Law.
(b) (SERIES NOTICE) Without limiting the generality of clause 13.1,
or the operation of clause 13.2(a), a Registered Noteholder
shall not be entitled to transfer any of its Registered Notes
unless the amount payable by the transferee is greater than the
minimum amount (if any) provided in the Series Notice for the
Registered Notes.
13.4 TRANSFER OF REGISTERED NOTES
This clause 13.4 only applies to Registered Notes.
(a) (FORM OF TRANSFER) Every transfer of Registered Notes shall be
effected by a Note Transfer.
(b) (EXECUTION OF NOTE TRANSFER) Every Note Transfer shall be duly
completed and executed by the transferor and transferee.
(c) (STAMPING OF NOTE TRANSFER) Every Note Transfer lodged with the
Trustee shall be duly stamped (if applicable).
(d) (DELIVERY OF NOTE TRANSFER TO TRUSTEE) Every Note Transfer shall
be delivered to the Trustee together with the Note
Acknowledgement to which it relates for registration.
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(e) (REGISTRATION OF TRANSFEREE AS REGISTERED NOTEHOLDER) Subject to
this clause 13 the Trustee shall on receipt of a Note Transfer
enter the transferee in the relevant Register as the holder of
the Registered Notes which are the subject of the Note Transfer.
(f) (TRUSTEE ENTITLED TO REFUSE TO REGISTER REGISTERED TRANSFER) The
Trustee may refuse to register any Note Transfer which would
result in:
(i) (BREACH) a contravention of or failure to observe:
(A) (THIS DEED) the terms of this deed;
(B) (SERIES NOTICE) the Series Notice for the
Registered Notes;
(C) (SECURITY TRUST DEED) the Security Trust Deed
(if any) relating to the Registered Notes; or
(D) (THE LAW) a law of an Australian Jurisdiction;
or
(ii) (REQUIRES REGISTRATION) an obligation to procure
registration of any of the above with, or the approval
of any of the above by, any Government Agency.
(g) (REFUSAL TO REGISTER ABSOLUTE) The Trustee shall not be bound to
give any reason for refusing to register any Note Transfer and
its decision shall be final, conclusive and binding. If the
Trustee refuses to register a Note Transfer it shall as soon as
practicable (and in no event later than 7 days after the date
the Note Transfer was lodged with it) send to the transferor and
the transferee notice of such refusal.
(h) (NO FEE FOR REGISTRATION OF A NOTE TRANSFER) No fee shall be
charged for the registration of any Note Transfer.
(i) (TAKING EFFECT OF NOTE TRANSFERS)
(i) (NOT UNTIL REGISTRATION) A Note Transfer shall not
take effect until registered by the Trustee and, until
the transferee is entered in the relevant Register as
the holder of the Registered Notes which are the
subject of the Note Transfer, the transferor shall
remain the holder of those Registered Notes.
(ii) (TRANSFER RECEIVED WHEN REGISTER CLOSED) When a Note
Transfer is received by the Trustee during any period
when the relevant Register is closed for any purpose,
the Trustee shall not register the Note Transfer until
the next Business Day on which that Register is
reopened.
(j) (RIGHTS AND OBLIGATIONS OF TRANSFEREE) Subject to this deed and
the relevant Series Notice, a transferee of Registered Notes on
being noted in the relevant Register as the holder of the
Registered Notes shall have the following rights and
obligations:
(i) (THOSE OF THE TRANSFEROR) all the rights and the
obligations which the transferor previously had; and
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(ii) (THOSE UNDER THIS DEED) all the rights and obligations
of a Noteholder as provided by this deed as if the
transferee was originally a party to this deed.
(k) (PAYMENTS TO TRANSFEREE) Subject to this deed (including clause
34.1), on the entry of a transferee of Registered Notes in the
relevant Register the transferee shall become entitled to
receive any payments then due or which may become due to the
holder of the relevant Registered Notes (including whether or
not the entitlement to payment wholly or partly arose or accrued
prior to the transfer and the Trustee shall be discharged for
any such payment made to the transferee).
(l) (TRANSMISSION OF ENTITLEMENTS)
(i) (ELECTION) Any person becoming entitled to Registered
Notes as a result of the death, mental incapacity or
bankruptcy of a Registered Noteholder may, on
producing such evidence as the Trustee requires of
their entitlement, elect to be either registered as
the Registered Noteholder or to transfer the
Registered Notes in the manner specified in this
clause 13.
(ii) (METHOD OF ELECTION) If an entitled person elects to
be registered as the Registered Noteholder, the person
shall deliver to the Trustee a notice in writing to
this effect signed by the person. If the person elects
to have another person registered, he or she shall
execute a Note Transfer in relation to the Registered
Notes in favour of that person. All the provisions of
this deed relating to the transfer of Registered Notes
and the registration of Note Transfers shall be
applicable to any such notice or Note Transfer as if
the death, mental incapacity or bankruptcy of the
Registered Noteholder had not occurred and the notice
or Note Transfer was a Note Transfer executed by the
Registered Noteholder.
(iii) (DISCHARGE) Any person entitled to Registered Notes
under this clause shall be entitled to receive and may
give a good discharge for all moneys payable in
respect of such Registered Notes but, except as
otherwise provided by this deed, shall not be entitled
to any of the rights or privileges of a Registered
Noteholder unless and until the person is entered in
the relevant Register as the holder of such Registered
Notes.
(m) (MARKED NOTE TRANSFER)
(i) (ENTITLEMENT TO MARKING) A Registered Noteholder may
from time to time request the Trustee to provide the
Registered Noteholder with a Marked Note Transfer.
(ii) (MARKING) The Registered Noteholder shall deliver a
Note Transfer to the Trustee and the Trustee shall
mark the Note Transfer in such manner as agreed from
time to time by the
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Trustee and the Trust Manager and issue the same to
the Registered Noteholder.
(iii) (TRUSTEE WILL NOT REGISTER TRANSFER) Until the expiry
of 90 days (or any substitute period as the Trustee
and Trust Manager agree from time to time and as
advised to Registered Noteholders of the relevant
Trust) from the date on which the Note Transfer was
marked, the Trustee shall not register any transfer of
Registered Notes relating to the Marked Note Transfer
otherwise than on that Marked Note Transfer.
(iv) (NO EXTENSION BY CLOSING OF REGISTER) The period
referred to in sub-paragraph (m)(iii) shall not be
extended by the closing of the relevant Register for
any purpose.
(v) (DELIVERY) A Marked Note Transfer shall be issued to a
Registered Noteholder by personal delivery at the time
the Registered Noteholder attends the offices of the
Trustee (or such other place nominated by the Trustee)
for the marking of the Note Transfer by the Trustee.
(n) (RELIANCE ON DOCUMENTS) The Trustee shall be entitled to accept
and assume the authenticity and genuineness of any Note Transfer
or other document produced to it to be duly executed. The
Trustee shall not be bound to enquire into the authenticity or
genuineness of any Note Transfer or other document, nor shall it
incur any liability for registering any Note Transfer which is
subsequently discovered to be a forgery or otherwise defective,
unless the Trustee had actual notice of such forgery or defect
at the time of registration of such Note Transfer.
(o) (SPECIMEN SIGNATURES) The Trustee may (but need not) require
each Registered Noteholder to submit specimen signatures (and in
the case of a corporation may require those signatures to be
authenticated by the secretary or director of such Registered
Noteholder) of persons authorised to execute Note Transfers on
behalf of such Registered Noteholder and shall be entitled to
assume (until notified to the contrary) that such authority has
not been revoked.
(p) (NOTES LODGED WITH AUSTRACLEAR) If Registered Notes are lodged
into the Austraclear System, the Trustee shall enter Austraclear
in the relevant Register as the holder of those Registered
Notes. While those Registered Notes remain in the Austraclear
System:
(i) all payments and notices required of the Trustee and
the Trust Manager in relation to those Registered
Notes will be directed to Austraclear; and
(ii) all dealings (including transfers) and payments in
relation to those Registered Notes within the
Austraclear System will be governed by the Austraclear
Regulations and need not comply with this clause 13 to
the extent of any inconsistency.
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14. NOTE ACKNOWLEDGEMENT
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14.1 ISSUE OF NOTE ACKNOWLEDGEMENT
When a person has been entered in the relevant Register as the holder
of Registered Notes, as soon as practicable (and in any event no later
than 10 Business Days or such shorter period specified in the relevant
Series Notice or as otherwise agreed by the Trustee with the person or
the Trust Manager) thereafter, the Trustee shall issue a Note
Acknowledgement to that person in respect of those Notes. If the person
has been entered into the relevant Register under a Note Transfer and
the transferor continues to retain a holding of Registered Notes, the
Trustee shall within the same period stated above issue to the
transferor a Note Acknowledgement in respect of that retained holding
of Registered Notes. No certificates will be issued in respect of
Registered Notes.
14.2 NOTE ACKNOWLEDGEMENT NOT CERTIFICATE OF TITLE
A Note Acknowledgement shall not be a certificate of title as to
Registered Notes and the relevant Register shall be the only conclusive
evidence of the ownership of Registered Notes and the entitlements
under them. A Note Acknowledgement cannot be pledged or deposited as
security nor can a Registered Note be transferred by delivery of only a
Note Acknowledgement.
14.3 EXECUTION OF NOTE ACKNOWLEDGEMENT
Each Note Acknowledgement shall be signed on behalf of the Trustee
manually, or in facsimile by mechanical or electronic means, by any
Authorised Signatory of the Trustee. If any Authorised Signatory of the
Trustee whose signature appears on a Note Acknowledgement dies or
otherwise ceases to be an Authorised Signatory before the Note
Acknowledgement has been issued, the Trustee may nevertheless issue the
Note Acknowledgement.
14.4 MORE THAN ONE NOTE ACKNOWLEDGEMENT
If a Registered Noteholder wishes more than one Note Acknowledgement it
shall return its Note Acknowledgement to the Trustee and at the same
time request in writing the issue of a specified number of separate
Note Acknowledgements. Subject to any minimum denomination requirements
in this deed or the relevant Series Notice, the Trustee shall then
cancel the original Note Acknowledgement and issue in lieu separate
Note Acknowledgements. A fee prescribed by the Trustee (not exceeding
$10 for each Note Acknowledgement) shall be paid by the Registered
Noteholder to the Trustee.
14.5 WORN OUT, DEFACED OR LOST NOTE ACKNOWLEDGEMENT
If any Note Acknowledgement is worn out or defaced then on production
to the Trustee it may cancel the same and may issue a new Note
Acknowledgement. If any Note Acknowledgement is lost or destroyed then
on proof to the satisfaction of the Trustee, and on such indemnity as
the
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Trustee may consider adequate having been given, a new Note
Acknowledgement shall be given to the person entitled to such lost or
destroyed Note Acknowledgement. An entry as to the issue of the new
Note Acknowledgement and of the indemnity (if any) shall be made in the
relevant Register. A fee prescribed by the Trustee (not exceeding $10)
shall be paid by the person requesting the new Note Acknowledgement to
the Trustee.
14.6 JOINT HOLDINGS
If a single parcel of Registered Notes is held by more than one person,
only the person whose name stands first in the relevant Register in
relation to that parcel of Registered Notes shall be entitled to:
(a) be issued the relevant Note Acknowledgement and, if applicable,
a Marked Note Transfer;
(b) be given any notices; and
(c) be paid any moneys due in respect of such Registered Notes.
14.7 DELIVERY OF NOTE ACKNOWLEDGEMENT
A Note Acknowledgement may be sent to the relevant Registered
Noteholder by mail or by personal delivery to the Registered
Noteholder's address appearing in the relevant Register and the Note
Acknowledgement so sent shall be at the risk of that Registered
Noteholder.
15. THE REGISTER
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15.1 DETAILS TO BE KEPT ON REGISTER
The Trustee shall keep or cause to be kept a register with respect to
each Trust, on which shall be entered the following information
relating to that Trust:
(a) (NAME) the name of the Trust;
(b) (NOTE ISSUE DATES) the Note Issue Dates for Registered Notes
issued in relation to the Trust;
(c) (INITIAL PRINCIPAL AMOUNT) the total Initial Principal Amount of
Registered Notes issued on each such Note Issue Date;
(d) (PRINCIPAL AMOUNT) the Principal Amount of each Registered Note
or Class of Registered Notes from time to time;
(e) (SERIES) details of relevant Classes of Registered Notes;
(f) (DETAILS OF NOTEHOLDERS) the name and address of each Registered
Noteholder;
(g) (NOTE ACKNOWLEDGEMENT) the serial number of each Registered Note
Acknowledgement issued to each Registered Noteholder;
(h) (DATE OF ENTRY) the date on which a person was entered as the
holder of Registered Notes;
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(i) (ACCOUNT) the account to which any payments due to a Registered
Noteholder are to be made (if applicable);
(j) (DETAILS) where applicable in relation to the Trust, Payment
Dates, Principal Repayment Dates, Maturity Dates, MBS Margin (as
defined in the Series Notice) and Step-Up Margin (as defined in
the Series Notice) on the Notes; and
(k) (ADDITIONAL INFORMATION) such other information as:
(i) is required by the relevant Series Notice;
(ii) the Trustee considers necessary or desirable; or
(iii) the Trust Manager reasonably requires.
15.2 ASSET REGISTER
The Trustee shall keep or cause to be kept an asset register with
respect to each Trust. The Authorised Investments and other Assets of
the Trust (other than Purchased Loans and the related Loan Rights)
shall be entered into the relevant asset register on an individual
basis.
15.3 PLACE OF KEEPING REGISTER, COPIES AND ACCESS
Each Register shall be:
(a) (PLACE KEPT) kept at the Trustee's principal office in Melbourne
or at such place as the Trustee and the Trust Manager may agree;
(b) (ACCESS TO TRUST MANAGER AND AUDITOR) open to the Trust Manager
and the Auditor of the Trust to which it relates to inspect
during normal business hours;
(c) (INSPECTION BY REGISTERED NOTEHOLDERS) open for inspection by a
Registered Noteholder during normal business hours but only in
respect of information relating to that Registered Noteholder;
and
(d) (NOT FOR COPYING) not available to be copied by any person
(other than the Trust Manager) except in compliance with such
terms and conditions (if any) as the Trust Manager and Trustee
in their absolute discretion nominate from time to time.
15.4 DETAILS ON REGISTER CONCLUSIVE
(a) (RELIANCE ON REGISTER) The Trustee shall be entitled to rely on
a Register as being a correct, complete and conclusive record of
the matters set out in it at any time and whether or not the
information shown in that Register is inconsistent with any
other document, matter or thing.
(b) (NO TRUSTS ETC) The Trustee shall not be obliged to enter on a
Register notice of any trust, Security Interest or other
interest whatsoever in respect of any Registered Notes and the
Trustee shall be entitled to recognise a Registered Noteholder
as the absolute owner of Registered Notes and the Trustee shall
not be bound or
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affected by any trust affecting the ownership of any Registered
Notes unless ordered by a court or required by statute.
(c) (REGISTER NOT TO BE SIGNED) The Trustee shall ensure that it
does not sign or otherwise execute any entry in a Register.
15.5 CLOSING OF REGISTER
The Trustee may close a Register for the periods specified in the
relevant Series Notice.
15.6 ALTERATION OF DETAILS ON REGISTER
On the Trustee being notified of any change of name or address or
payment or other details of a Registered Noteholder by the Registered
Noteholder, the Trustee shall alter the relevant Register accordingly.
15.7 RECTIFICATION OF REGISTER
If:
(a) an entry is omitted from a Register;
(b) an entry is made in a Register otherwise than in accordance with
this deed;
(c) an entry wrongly exists in a Register;
(d) there is an error or defect in any entry in a Register; or
(e) default is made or unnecessary delay takes place in entering in
a Register that any person has ceased to be the holder of
Registered Notes,
the Trustee may rectify the same.
15.8 CORRECTNESS OF REGISTER
Neither the Trust Manager nor the Trustee shall be liable for any
mistake in a Register or in any purported copy except to the extent
that the mistake is attributable to its fraud, negligence or wilful
default.
15.9 TRUST MANAGER MUST PROVIDE INFORMATION
The Trust Manager must provide the Trustee and any person appointed in
accordance with clause 20.4 with such information as the Trustee may
reasonably require to maintain each Register.
15.10 THIRD PARTY REGISTRAR
The Trustee may cause a Register to be maintained by a third party on
its behalf and require that person to discharge the Trustee's
obligations under this deed in relation to that Register.
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
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16. MEETINGS OF NOTEHOLDERS
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16.1 BEARER NOTEHOLDERS
(a) Meetings of Bearer Noteholders will be held in accordance with
the terms of the relevant Series Notice. A meeting held, or a
resolution passed, at a meeting in accordance with the terms of
the relevant Series Notice will be taken to be a meeting held or
resolution passed by Bearer Noteholders under this clause 16 for
the purposes of the Transaction Documents.
(b) The provisions of this clause 16, other than this clause 16.1,
shall not apply to Bearer Notes.
16.2 CONVENING OF MEETINGS
(a) The Trustee or the Trust Manager may at any time convene a
meeting of the Registered Noteholders of that Trust or Class of
Noteholders of a Trust.
(b) Registered Noteholders of a Trust or a Class of Registered
Noteholders holding in aggregate not less than 20% of the
Principal Amounts of all Registered Notes issued by that Trust
or in that Class, may at any time convene a meeting of the
Registered Noteholders of that Trust or Class, as the case may
be.
16.3 NOTICE OF MEETINGS
(a) (PERIOD OF NOTICE) Subject to clause 16.3(b) at least 7 days'
notice (inclusive of the day on which the notice is given and of
the day on which the meeting is held) of a meeting of all
Registered Noteholders or any Class of Registered Noteholders of
a Trust shall be given to the relevant Registered Noteholders of
the Trust.
(b) (SHORT NOTICE) Notwithstanding clause 16.3(a), if it is so
agreed by a majority in number of the Registered Noteholders of
a Trust or the Class (as the case may be) having the right to
attend and vote at the meeting, being a majority that together
hold at least 95% of the then outstanding Registered Notes in
relation to the Trust or the Class, a resolution may be proposed
and passed at a meeting of which less than 7 days' notice has
been given.
(c) (FAILURE TO GIVE NOTICE) The accidental omission to give notice
to or the non-receipt of notice by any Registered Noteholder
shall not invalidate the proceedings at any meeting.
(d) (COPIES) A copy of a notice convening a meeting shall be given
by the Trustee or the Trust Manager convening the meeting to the
other, and also to the relevant Beneficiary and the Designated
Rating Agencies. Failure to give such a notice in accordance
with this clause shall invalidate the meeting unless the party
who has not received the notice waives the invalidation.
(e) (METHOD OF GIVING NOTICE) Notice of a meeting shall be given in
the manner provided in this deed.
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(f) (CONTENTS OF A NOTICE) Notice of a meeting of Registered
Noteholders shall specify:
(i) (TIME ETC) the day, time and place of the proposed
meeting;
(ii) (AGENDA) the agenda of the business to be transacted at
the meeting;
(iii) (PROPOSED RESOLUTION) the terms of any proposed
resolution;
(iv) (CLOSING OF REGISTER) that the persons appointed to
maintain the relevant Register for the purpose of
determining those entitled to attend may not register
any Registered Note Transfer in the period of 2
Business Days prior to the meeting;
(v) (APPOINTMENT OF PROXIES) that appointments of proxies
must be lodged no later than 24 hours prior to the
time fixed for the meeting; and
(vi) (ADDITIONAL INFORMATION) such additional information
as the person giving the notice thinks fit.
16.4 CHAIRMAN
The Trustee may nominate a person to be chairman of a meeting which has
been convened by the Trustee, the Trust Manager or the Registered
Noteholders. The chairman need not be a Registered Noteholder of the
Trust and may be a representative of the Trustee. If such a person is
not present or is present but unwilling to act, then the Registered
Noteholders present may choose a Noteholder to be the chairman.
16.5 QUORUM
At any meeting any two or more persons present in person being
Registered Noteholders holding, or Representatives holding or
representing, in the aggregate not less than 75% of the Principal
Amounts of all Registered Notes issued in relation to the Trust or
constituting the Class (as the case may be) and then outstanding shall
form a quorum for the transaction of business and no business (other
than the choosing of a chairman) shall be transacted at any meeting
unless the requisite quorum is present at the commencement of business.
16.6 ADJOURNMENT
(a) (QUORUM NOT PRESENT) If within 15 minutes from the time
appointed for any meeting a quorum is not present, the meeting
shall stand adjourned (unless the Trustee agrees that it be
dissolved) for such period, not being less than 7 days nor more
than 42 days, as may be appointed by the chairman. At such
adjourned meeting two or more persons present in person being
Registered Noteholders holding, or being Representatives holding
or representing, in the aggregate not less than 50% of the
Principal Amounts of all Registered Notes issued in relation to
the Trust or constituting the Class (as the case may be) and
then outstanding shall form a quorum
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and shall have the power to pass any resolution and to decide on
all matters which could properly have been dealt with at the
meetings from which the adjournment took place had a quorum been
present at such meeting.
(b) (ADJOURNMENT OF MEETING) The chairman may with the consent of
(and shall if directed by) any meeting adjourn the same from
time to time and from place to place but no business shall be
transacted at any adjourned meeting except business which might
lawfully have been transacted at the meeting from which the
adjournment took place.
(c) (NOTICE OF ADJOURNED MEETING) At least 5 days' notice of any
meeting adjourned through want of a quorum shall be given in the
same manner as for the original meeting and such notice shall
state the quorum required at such adjourned meeting. It shall
not, however, otherwise be necessary to give any notice of an
adjourned meeting.
16.7 VOTING PROCEDURE
(a) (SHOW OF HANDS) Every resolution submitted to a meeting shall be
decided in the first instance by a show of hands.
(b) (CASTING VOTE) In case of equality of votes, the chairman shall
both on a show of hands and on a poll have a casting vote in
addition to the vote or votes (if any) to which he or she may be
entitled as a Registered Noteholder or as a Representative.
(c) (DECLARATION) At any meeting, unless a poll is (before or on the
declaration of the result of the show of hands) demanded, a
declaration by the chairman that a resolution has been carried
by a particular majority or lost or not carried by any
particular majority is conclusive evidence of the fact without
proof of the number or proportion of the votes recorded in
favour of or against such resolution.
(d) (POLL) If at any meeting a poll is demanded by the chairman, the
Trustee or the Trust Manager or by one or more persons being
Registered Noteholders holding, or being Representatives holding
or representing, in aggregate not less than 2% of the Registered
Notes issued by the Trust or constituting the Class (as the case
may be) and then outstanding, it shall be taken in such manner
and (subject to this clause) either at once or after such an
adjournment as the chairman directs and the result of such poll
shall be deemed to be the resolution of the meeting at which the
poll was demanded as at the date of the taking of the poll. The
demand for a poll shall not prevent the continuance of the
meeting for the transaction of any business other than the
question on which the poll has been demanded. The demand for a
poll may be withdrawn.
(e) (NO ADJOURNMENT) Any poll demanded at any meeting on the
election of a chairman or on any question of adjournment shall
be taken at the meeting without adjournment.
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(f) (VOTES) Subject to clause 16.7(b), at any meeting:
(i) on a show of hands, every person present being a
Registered Noteholder holding, or being a Representative
holding or representing, then outstanding Registered
Notes issued by the Trust shall have one vote; and
(ii) on a poll, every person present shall have one vote for
each Registered Note issued by the Trust and then
outstanding that he or she holds or in respect of which
he or she is a Representative as stated in the relevant
Register at the date the notices are dispatched to
Registered Noteholders for the meeting.
Any person entitled to more than one vote need not use all his
or her votes or cast all his or her votes to which he or she is
entitled in the same way.
16.8 RIGHT TO ATTEND AND SPEAK
The Trustee, the Trust Manager and the relevant Beneficiary (through
their respective representatives) and their respective financial and
legal advisors shall be entitled to attend and speak at any meeting of
the Registered Noteholders of a Trust or any Class (as the case may
be). No person shall otherwise be entitled to attend or vote at any
meeting of the Registered Noteholders of a Trust or any Class (as the
case may be) unless he or she holds outstanding Registered Notes in
relation to the Trust or is a Representative holding or representing
such Registered Notes.
16.9 APPOINTMENT OF PROXIES
(a) (REQUIREMENTS) Each instrument appointing a proxy shall be in
writing and, together (if so required by the Trustee) with proof
satisfactory to the Trustee of its due execution, shall be
deposited at the registered office of the Trustee or at such
other place as the Trustee shall designate or approve not less
than 24 hours before the time appointed for holding the meeting
or adjourned meeting at which the named proxy proposes to vote
and in default, the instrument or proxy shall be treated as
invalid unless the chairman of the meeting decides otherwise
before such meeting or adjourned meeting proceeds to business. A
notarially certified copy proof (if applicable) of due execution
shall if required by the Trustee be produced by the proxy at the
meeting or adjourned meeting but the Trustee shall not be
obliged to investigate or be concerned with the validity of, or
the authority of, the proxy named in any such instrument. Any
person may act as a proxy whether or not that person is a
Registered Noteholder.
(b) (PROXY REMAINS VALID) Any vote given in accordance with the
terms of an instrument of proxy conforming with clause 16.9(a)
shall be valid notwithstanding the previous death or insanity of
the principal, revocation or amendment of the proxy or of any of
the Registered Noteholder's instructions under which it was
executed, so long as no
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intimation in writing of such death, insanity, revocation or
amendment is received by the Trustee at its registered office or
by the chairman of the meeting in each case not less than 24
hours before the commencement of the meeting or adjourned
meeting at which the proxy is used.
16.10 CORPORATE REPRESENTATIVES
A person authorised under section 250D of the Corporations Law by a
Registered Noteholder being a body corporate to act for it at any
meeting shall, in accordance with his or her authority until his or her
authority is revoked by the body corporate concerned, be entitled to
exercise the same powers on behalf of that body corporate as that body
corporate could exercise if it were an individual Registered Noteholder
and shall be entitled to produce evidence of his or her authority to
act at any time before the time appointed for the holding of or at the
meeting or adjourned meeting or for the taking of a poll at which he
proposes to vote.
16.11 RIGHTS OF REPRESENTATIVES
A Representative of a Registered Noteholder shall have the right to
demand or join in demanding a poll and shall (except and to the extent
to which the Representative is specially directed to vote for or
against any proposal) have power generally to act at a meeting for
Registered Noteholder. The Trustee, the Trust Manager and any officer
of the Trustee and the Trust Manager may be appointed a Representative.
16.12 POWERS OF A MEETING OF REGISTERED NOTEHOLDERS
(a) (POWERS) Subject to the Security Trust Deed (and in particular
any power of any trustee appointed on behalf of any Noteholders
to override the decisions of Registered Noteholders), a meeting
of the Registered Noteholders of a Trust shall, without
prejudice to any rights or powers conferred on other persons by
the Transaction Documents, only have power exercisable by
Extraordinary Resolution:
(i) to sanction any action that the Trustee, the Trust
Manager or the relevant Servicer proposes to take to
enforce the provisions of any Transaction Document
relating to the Trust;
(ii) to sanction any proposal by the Trust Manager, the
Trustee or the relevant Servicer for any modification,
abrogation, variation or compromise of, or arrangement
in respect of, the rights of the Registered
Noteholders against the Trustee, the Trust Manager,
the relevant Approved Seller or the relevant Servicer
whether such rights arise under any Transaction
Document or otherwise;
(iii) to sanction the exchange or substitution of Registered
Notes for or the conversion of Registered Notes into,
other obligations or securities of the Trustee or any
other body corporate formed or to be formed;
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(iv) under clause 35.2, to consent to any alteration,
addition or modification of any Transaction Document
which shall be proposed by the Trustee or the Trust
Manager;
(v) to discharge or exonerate the Trustee, the Trust
Manager, the relevant Approved Seller or the relevant
Servicer from any liability in respect of any act or
omission for which it may become responsible under any
Transaction Document relating to the Trust;
(vi) to authorise the Trustee, the Trust Manager, the
relevant Servicer or any other person to concur in and
execute and do all such documents, acts and things as
may be necessary to carry out and give effect to any
Extraordinary Resolution; and
(vii) to exercise any other power expressly granted under a
Series Notice.
(b) (NO POWER) A meeting of the Registered Noteholders of a Trust
shall not have power to, nor shall any resolution submitted to
the meeting propose or have the effect of:
(i) removing the relevant Servicer or the Trust Manager
from office;
(ii) interfering with the management of the Trust;
(iii) winding up or terminating the Trust (except as
contemplated by clause 16.12(a)(vii));
(iv) altering the Authorised Investments of the Trust;
(v) amending any Transaction Document (except as
contemplated by clause 16.12(a)); or
(vi) altering the Interest Payment Dates, Principal
Payment Dates, Coupons, Principal Entitlements or the
other terms of the Series Notice (subject to clause
16.12(a)(iii)).
16.13 EXTRAORDINARY RESOLUTION BINDING ON REGISTERED NOTEHOLDERS
An Extraordinary Resolution passed at a meeting of the Registered
Noteholders of a Trust or of any Class duly convened and held in
accordance with this deed shall be binding on all the Registered
Noteholders of the Trust or of the Class whether or not present at such
meeting. Each of the Registered Noteholders of the Trust or of the
Class (as the case may be), the Trustee and the Trust Manager shall be
bound to give effect to that resolution accordingly.
16.14 MINUTES AND RECORDS
Minutes of all resolutions and proceedings at every meeting of the
Registered Noteholders of a Trust or any Class (as the case may be)
shall be made and duly entered in the books to be from time to time
provided for that purpose by the Trustee and any such minutes
purporting to be signed by the chairman of the meeting at which such
resolutions were passed or proceedings transacted or by the chairman of
the next succeeding meeting of the
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Registered Noteholders of the Trust or of the Class (as the case may
be) shall be conclusive evidence of those matters and until the
contrary is proved every such meeting in respect of the proceedings of
which minutes have been made and signed shall be deemed to have been
duly convened and held and all resolutions passed or proceedings
transacted at such meeting to have been duly passed and transacted.
16.15 WRITTEN RESOLUTIONS
Notwithstanding the preceding provisions of this clause 16, a
resolution of the Registered Noteholders of a Trust or any Class
(including an Extraordinary Resolution) may be passed, without any
meeting or previous notice being required, by an instrument or
instruments in writing which has or have:
(a) in the case of a resolution (including an Extraordinary
Resolution) of the Registered Noteholders of a Trust or any
Class, been signed by all Registered Noteholders of the Trust or
the Class (as the case may be); and
(b) any such instrument shall be effective on presentation to the
Trustee for entry in the records referred to in clause 16.14.
16.16 FURTHER PROCEDURES FOR MEETINGS
Subject to all other provisions contained in this deed, the Trustee may
without the consent of the Registered Noteholders of a Trust or any
Class prescribe such further regulations regarding the holding of
meetings of the Registered Noteholders of a Trust or any Class of
Registered Noteholders and attendance and voting at such meetings as
the Trustee may with the agreement of the Trust Manager determine
including particularly (but without prejudice to the generality of the
above) such regulations and requirements as the Trustee thinks
reasonable:
(a) (ENTITLEMENT TO VOTE) so as to satisfy itself that persons who
purport to attend or vote at any meeting of the Registered
Noteholders of a Trust or any Class of Registered Noteholders
are entitled to do so in accordance with this deed; and
(b) (FORMS OF REPRESENTATIVE) as to the form of appointment of a
Representative,
but the Trustee may not decrease the percentage of Registered
Noteholders required to pass an Extraordinary Resolution or an ordinary
resolution.
17. THE TRUST MANAGER
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17.1 APPOINTMENT OF TRUST MANAGER
(a) The Trust Manager is appointed, and agrees to act, as the
manager of the Trusts on and subject to the terms of this deed
and any relevant Series Notice.
(b) Except as provided in clause 17.17 and clause 19.3:
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(i) the Trust Manager will be an independent contractor and
not an agent of the Trustee;
(ii) the Trust Manager will not represent or hold itself out
to any person to be an agent of the Trustee; or
(iii) the Trustee will not be responsible for the acts,
omissions or defaults of the Trust Manager.
17.2 COMPLETE POWERS OF MANAGEMENT
Subject to the Transaction Documents, the Trust Manager shall carry out
and perform the duties and obligations on its part contained in this
deed and shall have full and complete powers of management of the
Trusts, including:
(a) (ASSETS AND LIABILITIES) the administration and servicing of the
Assets (which are not serviced by a Servicer), borrowings and
other liabilities of the Trusts (including concluding the
commercial terms of the Hedge Agreements to be entered into by
the Trustee); and
(b) (DAY TO DAY OPERATION) the conduct of the day to day operation
of the Trusts.
17.3 NOTE ISSUANCE
The Trust Manager has the power, where the Borrowing takes the form of
an issue of Notes, to:
(a) (i) negotiate the terms and conditions of the issue of
Notes and any relevant Dealer Agreement;
(ii) to negotiate with any Lead Manager in relation to the
issue of relevant Notes;
(iii) to invite bids from any Lead Manager for relevant Notes
on behalf of the Trustee; and
(iv) to accept any such bid on behalf of the Trustee;
(b) accept the terms and conditions of the issue of Notes and any
relevant Dealer Agreement with the Lead Manager, managers or
dealers for the issue of Notes and bind the Trustee to an issue
of Notes on those terms and conditions; and
(c) direct the Trustee to enter that Dealer Agreement and issue
Notes on those terms and conditions.
However, the Trust Manager's power to act and bind the Trustee in
accordance with this clause is conditional on the Trustee being
satisfied, in its absolute discretion, with the terms and conditions of
the Dealer Agreement and the issue of Notes including the terms and
conditions dealing with the personal liability of the Trustee.
17.4 TRUST MANAGER TO ACT IN INTERESTS OF BENEFICIARY AND NOTEHOLDERS
The Trust Manager shall, in respect of each Trust, act in the interests
of the Beneficiary and the Noteholders in relation to that Trust on,
and subject to,
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the terms and conditions of this deed. In the event of any conflict of
interests, the interests of the Noteholders will prevail.
17.5 TRUST MANAGER TO ASSIST TRUSTEE
The Trust Manager shall take such action as is consistent with its
powers under this deed to assist the Trustee to perform its obligations
under this deed.
17.6 TRUST MANAGER'S POWER TO DELEGATE
The Trust Manager may in carrying out and performing its duties and
obligations contained in this deed:
(a) (DELEGATE TO EMPLOYEES) delegate to any of its Associates or any
of the Trust Manager's or its Associate's officers and employees
all acts, matters and things (whether or not requiring or
involving the Trust Manager's judgment or discretion);
(b) (APPOINT ATTORNEYS AND AGENTS) appoint any person to be its
attorney, agent, delegate or sub-contractor for such purposes
and with such powers, authorities and discretions (not exceeding
those vested in the Trust Manager) as the Trust Manager thinks
fit including:
(i) power for the attorney, agent, delegate or
sub-contractor to sub-delegate any such powers,
authorities or discretions;
(ii) power to authorise the issue in the name of the Trust
Manager of documents bearing facsimile signatures of
the Trust Manager or of the attorney, agent, delegate
or sub-contractor (either with or without proper
manuscript signatures of its officers); and
(iii) such provisions for the protection and convenience of
those dealing with any such attorney, agent, delegate,
sub-contractor or sub-delegate as they may think fit;
and
(c) (REMOVE AGENTS AND DELEGATES) supersede or suspend any such
agent, delegate, sub-contractor or sub-delegate for such cause
or reason as the Trust Manager may in its sole discretion think
sufficient with or without assigning any cause or reason and
either absolutely or for such time as it may think proper,
but despite any delegation or appointment under the above paragraphs of
this clause, the Trust Manager shall remain liable for the acts or
omissions of such Associate or of any such officer, employee, attorney,
delegate, agent, sub-delegate, sub-contractor or sub-agent and shall be
solely responsible for the fees and expenses of such Associate or of
such officer, employee, attorney, agent, delegate, sub-delegate,
sub-contractor or sub-agent.
17.7 TRUST MANAGER'S POWER TO APPOINT ADVISORS
The Trust Manager may appoint and engage any valuers, solicitors,
barristers, accountants, surveyors, property managers, real estate
agents, contractors, qualified advisors and such other persons as may
be necessary, usual or desirable for the purpose of enabling the Trust
Manager to properly exercise
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its powers and perform its obligations under this deed and all proper
fees, charges and moneys payable to any such persons and all
disbursements, expenses, duties and outgoings properly chargeable to
them shall constitute Expenses of the Trust to which they relate.
17.8 TRUST MANAGER'S BOOKS AVAILABLE TO TRUSTEE
The Trust Manager will, in relation to each Trust:
(a) (KEEP PROPER RECORDS) keep proper books and records for the
Trust separate from any other books or records;
(b) (PRODUCE BOOKS) during normal business hours on reasonable
notice make available to the Trustee or the Auditor for
inspection all of the books and records of the Trust maintained
by the Trust Manager; and
(c) (PROVIDE INFORMATION) give to the Trustee or the Auditor such
written or oral information as the Trustee or the Auditor
reasonably requires with respect to all matters in possession of
the Trust Manager relating to the Trust,
subject, in each case, to the provisions of the Privacy Act.
17.9 TRUST MANAGER WILL ACCOUNT TO TRUSTEE FOR MONEYS RECEIVED
(a) The Trust Manager will pay to the Trustee, within one Business
Day of receipt, all moneys coming into its hands belonging to
the Trusts or payable to the Trusts.
(b) The Trust Manager will keep any Assets which it may come to hold
from time to time separate from any other property belonging to
or entrusted to or held by the Trust Manager.
17.10 TRUST MANAGER TO REPORT DATA ON REUTERS
The Trust Manager may, if so specified in a Series Notice for a Trust,
prepare and arrange for the publication by Reuters (or another
customary electronic medium) of data for that Trust as it considers
appropriate.
17.11 TRUST MANAGER TO PREPARE NOTICES ETC.
The Trust Manager shall prepare or cause to be prepared all notices and
statements which the Trustee is required to serve under any of the
provisions of this deed or any other Transaction Document and shall
produce such notices and statements (as the case may be) to the Trustee
at least one Business Day (or any other period as the Trustee and the
Trust Manager agree) before the day on which the notice or statement is
required to be served.
17.12 PRIOR APPROVAL OF CIRCULARS
(a) Where the Trust Manager has prepared any:
(i) Information Memorandum; or
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(ii) circular, offer letter, notice, report or the like to
Noteholders, or prospective Noteholders (a
PUBLICATION), on behalf of the Trustee,
for which the Trustee will have any liability, the Trust
Manager shall submit the Information Memorandum or Publication
to the Trustee for the Trustee's consent (not to be
unreasonably withheld) prior to the issue of the document
(unless otherwise waived by the Trustee).
(b) Where the Trustee or the Trust Manager has prepared any
Information Memorandum or Publication which names, or purports
to be issued by or on behalf of, a Servicer or an Approved
Seller, the Trustee or the Trust Manager (as the case may be)
shall submit the Information Memorandum or Publication to the
Servicer or Approved Seller (as the case may be) for its consent
(not to be unreasonably withheld) prior to the issue of the
document (unless the Servicer or Approved Seller otherwise
agrees).
17.13 TAXES
The Trust Manager shall direct the Trustee to make all payments (as and
when they fall due) out of a Trust to any duly empowered Government
Agency for Taxes levied on any Trust or on the Trustee in its capacity
as trustee of any Trust.
17.14 ACQUISITION OR DISPOSAL OF ASSETS
Subject to this deed, the Trust Manager shall ensure that all steps
which it thinks are desirable are taken in connection with the
investigation or negotiation for the acquisition or disposal of Assets.
17.15 MONITOR SUPPORT FACILITIES
The Trust Manager shall monitor all Support Facilities in respect of a
Trust and shall properly perform the functions which are necessary for
it to perform under those Support Facilities.
17.16 MAKE CALCULATIONS, CO-ORDINATE AND PROVIDE REPORTS
The Trust Manager shall:
(a) calculate all payments due on any relevant Payment Date;
(b) co-ordinate the issue of relevant Notes and the raising of funds
from those issues, or from any Support Facility; and
(c) as and when required by any Series Notice or other Transaction
Document prepare and distribute for each Trust the Trust
Manager's Report,
and where relevant (and when the Trust Manager is actually aware that
the directions need to be given, including any directions expressly
required of it under the Transaction Documents) provide all directions
to the Trustee as may be required for the Trustee to comply with its
obligations under the Transaction Documents.
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17.17 TRUST MANAGER CANNOT BIND TRUSTEE UNLESS AUTHORISED
The Trust Manager acknowledges that in exercising its powers,
authorities and discretions vested in it and carrying out and
performing its duties and obligations in relation to any Trust or any
Asset, whether under any Transaction Document or any other deed,
agreement or other arrangement, neither it nor its delegate has any
power to bind the Trustee, otherwise than as expressly provided in any
Transaction Document or such other deed, agreement or other
arrangement.
17.18 TRUST MANAGER MUST PERFORM OBLIGATIONS UNDER OTHER TRANSACTION
DOCUMENTS
The Trust Manager shall properly perform the functions which are
necessary for it to perform under the other Transaction Documents to
which it is a party.
17.19 TRUST MANAGER TO PROVIDE PERSONNEL AND SYSTEMS
The Trust Manager shall at its own expense, procure sufficient trained
and experienced personnel, equipment and systems to enable it to carry
out its obligations under this deed and shall at all times maintain
complete and accurate records, books of account and an adequate system
of internal controls so as to perform its obligations under this deed.
17.20 ADDITIONAL COVENANTS BY TRUST MANAGER
The Trust Manager shall:
(a) (ACT HONESTLY) act honestly and in good faith and comply with
all laws in the performance of its duties and in the exercise of
its discretions under this deed;
(b) (PRUDENTLY) manage the Trust exercising the degree of diligence
and care reasonably expected of an appropriately qualified
manager, having regard to the interests of the Beneficiaries,
the Noteholders and the other Creditors;
(c) (CONDUCT ITS BUSINESS PROPERLY) use reasonable endeavours to
carry on and conduct its business in so far as it relates to
this deed in a proper and efficient manner;
(d) (DO ALL THINGS NECESSARY TO PERFORM OBLIGATIONS) do everything
and take all such actions which are necessary (including
obtaining all such Authorisations as are appropriate) to ensure
that it is able to exercise all its powers and remedies and
perform all its obligations under this deed, the Transaction
Documents and all other deeds, agreements and other arrangements
entered into by the Trust Manager under this deed;
(e) (NOTIFY DEFAULTS) promptly, on an officer of the Trust Manager
who has responsibility for the transactions contemplated by the
Transaction Documents for a Trust, becoming actually aware,
notify the Trustee and the Designated Rating Agency of any Trust
Manager's Default, Event of Default, Servicer Transfer Event or
any
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Adverse Effect relating to that Trust and at the same time or as
soon as possible afterwards provide details of that default or
effect;
(f) (NOT MERGE) not merge or consolidate into another entity unless
the surviving entity assumes the obligations of the Trust
Manager under the Transaction Documents;
(g) (INVESTMENT RATE) where so required under a Series Notice,
calculate Investment Rates; and
(h) (SUPPORT FACILITIES) perform all obligations within its power to
ensure that all Support Facilities for each Trust are maintained
and available to the Trustee.
18. TRUST MANAGER'S FEE
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In consideration of the Trust Manager performing its function and
duties under this deed, it shall be entitled to be paid from each Trust
a fee in the amount and at the times set out in the corresponding
Series Notice.
19. RETIREMENT, REMOVAL AND REPLACEMENT OF TRUST MANAGER
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19.1 RETIREMENT ON TRUST MANAGER'S DEFAULT
The Trust Manager shall retire from the management of the Trusts if and
when directed to do so by the Trustee in writing (which direction must
be copied to each Servicer and the Designated Rating Agency). A
direction may only be given on the Trustee becoming actually aware of
the occurrence of any or more of the following events (each a TRUST
MANAGER'S DEFAULT).
(a) (COLLECTIONS AND DISTRIBUTIONS) The Trust Manager fails to make
any payment required from it within the time period specified in
a Transaction Document, and that failure is not remedied within
5 Business Days of receipt from the Trustee of notice of that
failure.
(b) (INSOLVENCY EVENT) An Insolvency Event has occurred and is
continuing in relation to the Trust Manager.
(c) (BREACH BY THE TRUST MANAGER)
(i) The Trust Manager breaches any obligation or duty
imposed on the Trust Manager under this deed, any
other Transaction Document or any other deed,
agreement or arrangement entered into by the Trust
Manager under this deed in relation to the Trust;
(ii) the Trustee reasonably believes that breach has a
Adverse Effect; and
(iii) the Trust Manager fails after 30 days' notice from the
Trustee (which notice specifies the breach with
reasonable particularity and requires rectification)
to remedy that breach
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or pay compensation to the Trustee for its loss from
such breach,
except, in each case, where the Trust Manager has relied on
information provided, or other action taken, by a Servicer or
has not received information from the Servicer which the Trust
Manager requires to comply with the obligation or duty.
(d) (MISREPRESENTATION) A representation, warranty or statement by
or on behalf of the Trust Manager in a Transaction Document or a
document provided under or in connection with a Transaction
Document, is not true in a material respect or is misleading
when repeated and is not remedied to the Trustee's reasonable
satisfaction within 90 days after notice from the Trustee where
(as determined by the Trustee) it has an Adverse Effect.
The costs of removal of a Trust Manager in default shall be borne by
the Trust Manager. The Trust Manager indemnifies the Trustee and the
Trust for those costs.
19.2 TRUSTEE MAY REMOVE RECALCITRANT TRUST MANAGER
In default of the Trust Manager retiring in accordance with clause 19.1
within 30 days of being directed by the Trustee in writing so to do,
the Trustee must by deed poll executed by the Trustee remove the Trust
Manager from the management of the Trusts except that:
(a) until a replacement Trust Manager is appointed under clause
19.3, the Trust Manager must continue as Trust Manager; and
(b) if a replacement Trust Manager is not appointed under clause
19.3 within 120 days of the Trustee electing to appoint a new
Trust Manager, the Trustee will be the new Trust Manager.
19.3 TRUSTEE APPOINTS REPLACEMENT TRUST MANAGER
On the retirement or removal of the Trust Manager, the Trustee shall be
entitled to appoint some other corporation to be the Trust Manager of
the Trusts provided that appointment will not materially prejudice the
interests of Noteholders. Until that appointment is complete the
Trustee may and, if required under clause 19.2(b) shall, subject to
this deed and to any approval required by law, act as Trust Manager and
will be entitled to the Trust Manager's Fee for the period it acts as
Trust Manager. A new Trust Manager shall not be appointed without prior
notice being given by the Trustee to the Designated Rating Agency.
19.4 VOLUNTARY RETIREMENT
The Trust Manager may, subject to clause 19.5, resign on giving to the
Trustee (with a copy to the Designated Rating Agency) not less than 3
months' notice in writing (or such other period as the Trust Manager
and the Trustee may agree) of its intention to do so.
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19.5 NO RESIGNATION BY TRUST MANAGER UNLESS SUCCESSOR APPOINTED
The Trust Manager must not, subject to clause 19.6, resign under clause
19.4 unless:
(a) either:
(i) it procures that, before the date on which that
termination becomes effective, another person assumes
all of the obligations of the Trust Manager under this
deed and the relevant Series Notices as its successor,
and executes such documents as the Trustee requires to
become bound by this deed and the relevant Series
Notices, with effect from that date, as if it had
originally been a party to this deed and the relevant
Series Notice as the Trust Manager; or
(ii) the Trustee elects not to appoint a successor Trust
Manager, and to perform itself the obligations and
functions which this deed and the relevant Series
Notices contemplate being performed by the Trust
Manager;
(b) the appointment of the successor Trust Manager, or (as the case
may be) the election of the Trustee, will not materially
prejudice the interests of Noteholders; and
(c) in the case of the appointment of a successor Trust Manager
pursuant to paragraph (a), the appointment is approved by the
Trustee.
19.6 TRUSTEE TO ACT AS TRUST MANAGER IF NO SUCCESSOR APPOINTED
If at the end of the period of notice specified in a notice given under
clause 19.4, no successor Trust Manager has been appointed, as
contemplated by clause 19.5(a)(i):
(a) the Trustee must itself perform the obligations and functions
which this deed contemplates being performed by the Trust
Manager, until a successor Trust Manager is appointed in
accordance with this deed; and
(b) the resignation of the Trust Manager will become effective.
19.7 RELEASE OF OUTGOING TRUST MANAGER
On retirement or removal and provided there has been payment to the
Trustee of all sums due to it by the outgoing Trust Manager under this
deed at that date, the outgoing Trust Manager shall be released from
all further obligations under this deed but no release under this
clause 19.7 shall extend to any existing or antecedent fraud,
negligence or wilful default on the part of the outgoing Trust Manager
or its officers, employees, agents or delegates.
19.8 NEW TRUST MANAGER TO EXECUTE DEED
(a) A new Trust Manager shall execute a deed in such form as the
Trustee may require under which the new Trust Manager undertakes
to the Trustee, the Beneficiaries and the Noteholders jointly
and severally to be bound by all the covenants on the part of
the Trust
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Manager under the Transaction Documents from the date of
execution of the new deed on the same terms contained in the
Transaction Documents.
(b) On and from the date of execution of the new deed, the new Trust
Manager shall and may afterwards exercise all the powers, enjoy
all the rights and shall be subject to all the duties and
obligations of the Trust Manager under the Transaction Documents
as fully as though the new Trust Manager had been originally
named as a party to the Transaction Documents.
19.9 SETTLEMENT AND DISCHARGE
The Trustee shall settle with the outgoing Trust Manager the amount of
any sums payable by the outgoing Trust Manager to the Trustee or by the
Trustee to the outgoing Trust Manager and shall give to or accept from
the outgoing Trust Manager a discharge in respect of those sums which
shall be conclusive and binding as between the Trustee, the outgoing
Trust Manager, the new Trust Manager, the Beneficiaries and the
Noteholders.
19.10 DELIVERY OF BOOKS, DOCUMENTS, ETC
(a) On the retirement or removal of the Trust Manager in accordance
with the provisions of this clause 19 the outgoing Trust Manager
shall immediately deliver to the new Trust Manager appointed in
respect of any Trust (or the Trustee if it is acting as Trust
Manager) the Data Base and all other books, documents, records
and property relating to the Trusts and any other information
relating to a Trust or the outgoing Trust Manager as the Trustee
or new Trust Manager may reasonably request. The reasonable
costs and expenses of this incurred by the new Trust Manager
(but not the outgoing Trust Manager) are to be paid out of the
relevant Trust.
(b) The outgoing Trust Manager shall be entitled to take, and retain
as its own property, copies of such books, documents and
records. Each of the Trustee and the new Trust Manager shall
produce the originals of such books, documents and records in
its possession on the giving of reasonable written notice by the
outgoing Trust Manager.
19.11 NOTICE TO NOTEHOLDERS OF NEW TRUST MANAGER
As soon as practicable after the appointment of a new Trust Manager
under this clause 19, the new Trust Manager shall notify the
Noteholders of its appointment.
19.12 WAIVER OF TRUST MANAGER'S DEFAULTS
Subject to first giving notice to the Designated Rating Agency, the
Trustee may waive any Trust Manager's Default. On any such waiver, the
default shall cease to exist, and that Trust Manager's Default shall be
deemed to have been remedied for every purpose of this deed. No such
waiver shall extend to any subsequent or other default or impair any
right consequent on a Trust Manager's Default except to the extent
expressly waived.
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20. TRUSTEE'S POWERS
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20.1 GENERAL POWER
Subject to this deed, the Trustee shall have all the rights, powers and
discretions over and in respect of the Assets of the Trusts which it
could exercise if it were the absolute and beneficial owner of such
Assets.
20.2 SPECIFIC POWERS
Without in any way affecting the generality of the above or the other
provisions of this deed, but subject to the Trustee's obligations under
this deed, the Trustee shall have the following powers (which shall be
construed as separate and independent powers of the Trustee):
(a) (ENTER INTO LOAN SECURITIES) to enter into, provide, purchase
and acquire Loans on the security of Loan Securities and Related
Securities;
(b) (DEAL IN OTHER AUTHORISED INVESTMENTS) to make, purchase,
acquire or dispose of any other Authorised Investment for cash
or on terms;
(c) (FEES AND EXPENSES) to pay all fees payable under this deed and
all Expenses which were properly incurred in respect of a Trust;
(d) (ADVISORS) to engage, and to incur reasonable expenses in
relation to, any valuers, solicitors, barristers, accountants,
surveyors, property advisors, real estate agents, contractors,
qualified advisors, and such other persons as may be necessary,
usual or desirable for the purpose of enabling the Trustee to be
fully and properly advised and informed in order that it may
properly exercise its powers and perform its obligations under
this deed;
(e) (EXECUTE PROXIES, ETC) to execute all such proxies and other
instruments as may be necessary or desirable to enable the
Trustee, or any officer, delegate or agent of the Trustee to
exercise any power, discretion or right of the Trustee as the
Trustee shall in its absolute discretion see fit;
(f) (DEALINGS OVER MORTGAGED LAND) to consent to any mortgage, lease
and/or sub-lease of or dealing with the property (including
Land) over which a Loan Security is held provided that, in the
case of any such mortgage, the Loan Security held by the
relevant Trust is not prejudiced by or ranks or will rank in
priority to any dealing for which consent is sought;
(g) (DISCHARGE LOANS) subject to this deed and the other relevant
Transaction Documents, to grant any form of discharge or release
or partial discharge or release of any Loan, Loan Security or
Related Security where to do so is in the opinion of the Trustee
not prejudicial to the relevant Trust (and, without limitation,
will not have the effect of removing a Loan from the coverage of
any Support Facility prior to the receipt of all moneys owing or
which may become owing under the Loan) and to execute all deeds
or other
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documents as shall be necessary or incidental to such a
discharge or release and to deal with certificates of title or
other indicia of title as the Trustee sees fit;
(h) (POWERS OF MORTGAGEE) subject to this deed and the other
relevant Transaction Documents, to exercise any power of sale
arising on default under any Loan, Loan Security or Related
Securities or any other right or remedy accruing in respect of
any Trust in relation to any Asset, Support Facility or other
Transaction Document and to exercise all customary powers,
authorities and discretions following on the exercise of that
power, right or remedy where the Trustee considers it is in the
interests of the relevant Trust;
(i) (PROCEEDINGS) to institute, prosecute, defend, settle and
compromise legal or administrative proceedings of any nature and
generally to enforce and pursue its rights under and in respect
of Assets;
(j) (WAIVERS) wherever it thinks it expedient or desirable in the
interests of any Trust, to give any waiver, time or indulgence
to any person on such terms as it may in its discretion
determine;
(k) (AUSTRACLEAR) register Austraclear as the holder of Notes, and
to lodge Note Acknowledgements and Marked Note Transfers with
Austraclear, to facilitate transactions through the Austraclear
System;
(l) (EUROCLEAR AND CEDELBANK) to lodge Notes, or arrange for Notes
to be lodged with, Euroclear or Cedelbank, or a depository for
Euroclear and/or Cedelbank;
(m) (NOTES) subject to this deed and the other relevant Transaction
Documents, to borrow and raise moneys by the issue of Notes as
provided in this deed;
(n) (OTHER BORROWINGS) to borrow, raise moneys or procure financial
accommodation where the Trustee considers the same to be in the
interests of the relevant Trust on such terms and conditions as
the Trust Manager thinks fit and that are acceptable to the
Trustee (acting reasonably);
(o) (TRANSACTION DOCUMENTS) to enter into and perform its
obligations under any Transaction Document containing such terms
and conditions as the Trust Manager thinks fit and that are
acceptable to the Trustee (acting reasonably);
(p) (INSURANCE) insure any Asset for amounts, on conditions and for
types of insurance determined to be necessary by the Trust
Manager;
(q) (ATTEND MEETINGS) attend and vote at meetings in accordance with
the written directions of the Trust Manager;
(r) (INDEMNITY) give an indemnity out of a Trust on any terms
whatsoever to such persons and against such expenses and damages
as the Trust Manager reasonably considers necessary or desirable
and that are acceptable to the Trustee;
(s) (UNDERTAKINGS IN TRANSACTION DOCUMENTS) without limiting the
above provisions of this clause 20.2, give any representation,
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warranty, indemnity or other undertaking required in respect of
a Support Facility, or other Transaction Documents, the sale or
issue of Notes or other transaction in any way relating to a
Trust as the Trust Manager thinks fit and that are acceptable to
the Trustee (acting reasonably, even if the subject matter of
such representation, warranty, indemnity or other undertaking
may refer to the Trustee in its personal capacity or otherwise
to the Trustee's personal affairs provided that any such
representation, warranty, indemnity or undertaking referring to
the Trustee in its personal capacity or to its personal affairs
must be acceptable to the Trustee in its absolute discretion;
(t) (CUSTODY) appoint the Servicer in respect of a Trust to
undertake custodial duties in accordance with the relevant
Servicing Agreement;
(u) (TRANSFER ASSETS) transfer any of the Assets of a Trust to
another Trust in accordance with the relevant Transaction
Documents;
(v) (PAYMENT DIRECTION) where a person owes an amount to the Trustee
as trustee of any Trust, direct that debtor to make that payment
to another person on behalf of the Trustee, including direct
payments due in respect of Loans to be made to the Servicer;
(w) (CURRENCY CONVERSION) convert currencies on such terms and
conditions as the Trust Manager thinks fit and that are
acceptable to the Trustee acting reasonably
(x) (STOCK EXCHANGE) list and maintain the listing of the Notes on
any stock exchange; and
(y) (INCIDENTAL POWERS) with the written agreement of the Trust
Manager (that agreement not to be unreasonably withheld), to do
all such things incidental to any of the above powers or
necessary or convenient to be done for or in connection with any
Trust or the Trustee's functions under this deed.
20.3 POWERS TO BE EXERCISED WITH OTHERS
The Trustee's rights, powers and discretions under this deed shall be
exercised by such persons, or exercised in conjunction with, with the
approval of, or at the discretion of such persons, as contemplated by
this deed or any other Transaction Document.
20.4 DELEGATION BY THE TRUSTEE
(a) In exercising any right, power, authority, discretion or remedy
conferred on the Trustee by this deed or any applicable law but
subject to clause 20.4(d), the Trustee may, with the approval of
the Trust Manager and subject to the covenants on the part of
the Trustee contained in this deed, authorise in writing
specified parties to act as its delegate, attorney or agent (in
the case of a joint appointment, either severally or jointly and
severally) to perform its functions under the Transaction
Documents (including a power to sub-delegate). The Trustee may
include provisions in the
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authorisation to protect and assist those dealing with the
delegate, attorney or agent as the Trustee thinks fit.
(b) The Trustee must not delegate to any person any of its trusts,
duties, powers, authorities and discretions under this deed in
relation to the trusts contained in this deed except:
(i) subject to this clause, to a Related Corporation of the
Trustee;
(ii) in accordance with the provisions of this deed
(including without limitation, clause 20.4(d));
(iii) to Austraclear (in respect of which the Trustee is not
liable for its acts or omissions).
(c) Where the Trustee delegates any of its trusts, duties, powers,
authorities and discretions to any person who is a Related
Corporation of the Trustee, the Trustee at all times remains
liable for the acts or omissions of such Related Corporation
when acting as a delegate.
(d) The Trustee must not delegate:
(i) the receipt or payment of money, otherwise than to an
Approved Bank or Austraclear (or, in the case of the
purchase price, sale proceeds or other moneys payable
or receivable in respect of Authorised Investments to
a solicitor, stockbroker, authorised dealer or real
estate agent); or
(ii) the exercise of any right of enforcement in respect of
the Purchased Loans under a Sale Notice or in respect
of any other assets of the Trust, other than under a
Security Trust Deed.
(e) The Trustee is liable for the action or inaction of any of its
delegate to the same extent as if it had acted personally.
(f) The Trustee is liable for any attorney or agent if:
(i) that attorney or agent was not appointed in good faith
with due care by the Trustee; or
(ii) the Trustee directs that the relevant action be taken
or not be taken, as the case may be.
(g) (i) Subject to paragraphs (a) to (f) of clause 20.4, the
Trustee may appoint an agent, including a manager,
solicitor, accountant, broker or attorney to:
(A) provide advice;
(B) do anything required or permissible regarding
the administration and management of all the
assets and property held by or on behalf of
the Trustee under the Trust, including the
receipt and payment of money and the
execution of any document by the Trustee; and
(C) transact any business.
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(ii) The Trustee may revoke any appointment under clause
20.4(g)(i).
20.5 GENERALLY UNLIMITED DISCRETION
Subject to the Trustee duly observing its duties, covenants and
obligations under this deed and any other Transaction Document, the
Trustee has absolute discretion as to the exercise or non-exercise of
the trusts, powers, authorities and discretions vested in it by this
deed.
21. TRUSTEE'S COVENANTS
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21.1 GENERAL
The provisions contained in this clause 21 shall be for the benefit of
the Trust Manager, each Servicer, the Beneficiaries, the Noteholders
and other Creditors jointly and severally.
21.2 TO ACT CONTINUOUSLY AS TRUSTEE
The Trustee shall act continuously as trustee of each Trust until the
Trust is terminated as provided by this deed or the Trustee has retired
or been removed from office in the manner provided under this deed.
21.3 TO ACT HONESTLY, DILIGENTLY AND PRUDENTLY
The Trustee shall:
(a) (ACT HONESTLY) act honestly and in good faith in the performance
of its duties and in the exercise of its discretions under this
deed;
(b) (PRUDENTLY) subject to this deed, exercise such diligence and
prudence as a prudent person of business would exercise in
performing its express functions and in exercising its
discretions under this deed, having regard to the interests of
the Beneficiaries, the Noteholders and other Creditors;
(c) (CONDUCT ITS BUSINESS PROPERLY) use its best endeavours to carry
on and conduct its business in so far as it relates to this deed
in a proper and efficient manner;
(d) (RECORDS) keep, or ensure that the Trust Manager keeps,
accounting records which correctly record and explain all
amounts paid and received by the Trustee;
(e) (SEPARATE TRUSTS AND ASSETS) keep the Trusts separate from each
other Trust which is constituted under this deed and account for
Assets and liabilities of the Trust separately from those of
other Trusts;
(f) (DO ALL THINGS NECESSARY TO PERFORM OBLIGATIONS) do everything
and take all such actions which are necessary (including
obtaining all appropriate Authorisations) to ensure that it is
able to exercise all its powers and remedies and perform all its
obligations under this deed,
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the Transaction Documents and all other Deeds, agreements and
other arrangements entered into by the Trustee under this deed;
and
(g) (STOCK EXCHANGE) in respect of listed Notes, comply with the
rules and regulations of the relevant Stock Exchange.
21.4 NO DISPOSITIONS OF ASSETS EXCEPT IN ACCORDANCE WITH TRUST DEED
Except as provided in any Transaction Document, the Trustee shall not,
nor shall it permit any of its officers to, sell, mortgage, charge or
otherwise encumber or part with possession of any Asset.
21.5 INDEMNITY RE ACTS OF TRUSTEE'S DELEGATES
Subject to clause 32.16 and this deed generally, the Trustee covenants
that its officers, employees, agents, attorneys, delegates and
sub-delegates shall duly observe and perform the covenants and
obligations of this deed in the same manner as is required of the
Trustee, and agrees to indemnify the Trust Manager for its own benefit
or for the benefit of the Trusts (as the occasion may require) against
any loss or damage that the Trusts, the Trust Manager, the Servicers,
the Beneficiaries, the Noteholders or other Creditors incur or sustain
in connection with, or arising out of, any breach or default by such
officers, employees, agents, attorneys, delegates and sub-delegates in
the observance or performance of any such covenant or obligation, to
the extent that the Trustee would have been liable if that breach or
default had been the Trustee's own act or omission.
21.6 FORWARD NOTICES ETC TO TRUST MANAGER
The Trustee shall without delay forward to the Trust Manager all
notices, reports, circulars and other documents received by it or on
its behalf as trustee of a Trust except to the extent they are:
(a) private or confidential documents of the Trustee; or
(b) received from the Trust Manager.
21.7 TRUSTEE WILL IMPLEMENT TRUST MANAGER'S DIRECTIONS
Subject to this deed and any other Transaction Document to which it is
a party, the Trustee will act on all directions given to it by the
Trust Manager in accordance with the terms of this deed.
21.8 CUSTODIAN
(a) Subject to any relevant Series Notice, the Trustee will act as
custodian of all Relevant Documents for each Trust and any other
documents of title to or evidencing any Assets of each Trust in
accordance with the relevant Servicing Agreement. In the absence
of any agreed procedures the Trustee shall hold those documents
on and in accordance with procedures which a reputable and
prudent person in its position would adopt.
(b) The Trustee may lodge any Relevant Document or any documents of
title to or evidencing any Asset in its vault or, with the prior
consent
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of the relevant Servicer and the Trust Manager, in the vault of
a subcustodian, on behalf of the Trustee or with Austraclear or
another recognised clearing system to the order of the Trustee
or subcustodian on behalf of the Trustee.
(c) Where the Trustee acts as custodian of any Relevant Document or
any documents of title to or evidencing any Asset, it shall
allow the Trust Manager and any relevant Servicer to have access
to them during normal business hours on reasonable notice.
21.9 BANK ACCOUNTS
The Trustee will open and operate the bank accounts in accordance with
clause 26.
21.10 PERFORM TRANSACTION DOCUMENTS
The Trustee shall properly perform the functions which are necessary
for it to perform under all Transaction Documents in respect of a
Trust.
22. TRUSTEE'S FEES AND EXPENSES
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22.1 TRUSTEE'S FEE
In consideration of the Trustee performing its functions and duties
under this deed, the Trustee shall be entitled to deduct from each
Trust a fee in the amount and at the times set out in the corresponding
Series Notice.
22.2 REIMBURSEMENT OF EXPENSES
In addition to the Trustee's remuneration under clause 22.1, the
Trustee shall pay, or be reimbursed, from a Trust all Expenses that
relate to the Trust. These will be paid or reimbursed in accordance
with the corresponding Series Notice.
22.3 SEGREGATION OF TRUST EXPENSES
The Trust Manager directs the Trustee to segregate, and apply, all
Expenses to the Trust to which they relate.
23. REMOVAL, RETIREMENT AND REPLACEMENT OF TRUSTEE
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23.1 RETIREMENT FOR TRUSTEE'S DEFAULT
The Trustee shall retire as trustee of the Trusts if and when directed
to do so by the Trust Manager in writing (which direction must be
copied to each Servicer and the Designated Rating Agency). A direction
may only be given on the occurrence of one or more of the following
events (each a TRUSTEE'S DEFAULT):
(a) (INSOLVENCY EVENT) an Insolvency Event has occurred and is
continuing in relation to the Trustee;
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(b) (RATING DOWNGRADE) any action is taken by or in relation to the
Trustee which causes the rating of any Notes to be downgraded;
(c) (BREACH BY THE TRUSTEE) the Trustee, or any employee, delegate,
agent or officer of the Trustee, breaches any obligation or duty
imposed on the Trustee under this deed or any other Transaction
Document in relation to a Trust (including any negligence or
wilful default having regard to the interests of the relevant
Mortgagees (as defined in the relevant Security Trust Deed))
where the Trust Manager reasonably believes it may have an
Adverse Effect and the Trustee fails or neglects after 30 days'
notice from the Trust Manager to remedy that breach;
(d) (MERGER OR CONSOLIDATION) the Trustee merges or consolidates
with another entity without obtaining the consent of the Trust
Manager (which consent will not be unreasonably withheld in the
case of a bona fide corporate reorganisation of the Trustee
where no Insolvency Event has occurred) and ensuring that the
resulting merged or consolidated entity assumes the Trustee's
obligations under the Transaction Documents; or
(e) (CHANGE IN CONTROL) there is a change in effective control of
the Trustee from that subsisting as at the date of this deed
unless approved by the Trust Manager.
23.2 TRUST MANAGER MAY REMOVE RECALCITRANT TRUSTEE
In default of the Trustee retiring in accordance with clause 23.1
within 30 days of being directed by the Trust Manager in writing to do
so the Trust Manager shall have the right to and shall by deed poll
executed by the Trust Manager remove the Trustee from its office as
trustee of the Trusts.
23.3 TRUST MANAGER APPOINTS REPLACEMENT
On the retirement or removal of the Trustee under clause 23.1 or 23.2
the Trust Manager, subject to giving prior notice to the Designated
Rating Agency shall be entitled to appoint in writing some other
statutory trustee to be the Trustee under this deed provided that
appointment will not in the reasonable opinion of the Trust Manager
materially prejudice the interests of Noteholders. Until the
appointment is completed the Trust Manager shall act as Trustee and
will be entitled to the Trustee's Fee for the period it so acts as
Trustee.
23.4 VOLUNTARY RETIREMENT
The Trustee may, subject to clause 23.5, resign on giving to the Trust
Manager (with a copy to the Designated Rating Agency) not less than 3
months' notice in writing (or such other period as the Trust Manager
and the Trustee may agree) of its intention to do so.
23.5 NO RESIGNATION BY TRUSTEE UNLESS SUCCESSOR APPOINTED
The Trustee must not, subject to clause 23.6, resign under clause 23.4
unless:
(a) either:
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(i) it procures that, before the date on which that
termination becomes effective, another person assumes
all of the obligations of the Trustee under this deed
and the relevant Series Notices as its successor, and
executes such documents as the Trust Manager requires
to become bound by this deed and the relevant Series
Notices, with effect from that date, as if it had
originally been a party to this deed and the relevant
Series Notice as the Trustee; or
(ii) the Trust Manager elects to perform itself the
obligations and functions which this deed and the
relevant Series Notices contemplate being performed by
the Trustee;
(b) the appointment of the successor Trustee, or (as the case may
be) the election of the Trust Manager, will not materially
prejudice the interests of Noteholders; and
(c) in the case of the appointment of a successor Trustee pursuant
to paragraph (a), the appointment is approved by the Trust
Manager.
23.6 TRUST MANAGER TO ACT AS TRUSTEE IF NO SUCCESSOR APPOINTED
If at the end of the period of notice specified in a notice given under
clause 23.4, no successor Trustee has been appointed, as contemplated
by clause 23.5(a)(i):
(a) the Trust Manager must itself perform the obligations and
functions which this deed contemplates being performed by the
Trustee, until a successor Trustee is appointed in accordance
with this deed; and
(b) the resignation of the Trustee will become effective.
23.7 TRUSTS TO BE VESTED IN NEW TRUSTEE
The Trustee shall, on retirement or removal, vest the Trusts or cause
these to be vested, in the new Trustee.
23.8 RELEASE OF OUTGOING TRUSTEE
On retirement or removal and provided there has been payment to the
Trust Manager or the new Trustee (as the case may be) of all sums due
to it by the outgoing Trustee at that date, the outgoing Trustee shall
be released from all further obligations under the Transaction
Documents. No release under this clause shall extend to any existing or
antecedent fraud, negligence or wilful default on the part of the
outgoing Trustee or its officers, employees, agents or delegates.
23.9 NEW TRUSTEE TO EXECUTE DEED
On appointment of the new Trustee of the Trusts the new Trustee shall:
(a) execute a deed in such form as the Trust Manager may require
under which it undertakes to the Trust Manager (for the benefit
of the Trust Manager, each relevant Approved Seller, the
Servicers, each relevant Beneficiary and the Noteholders jointly
and severally) to be bound by
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all the obligations of the outgoing Trustee under the
Transaction Documents from the date of the deed;
(b) on and from the date of execution of the new deed, exercise all
the powers, enjoy all the rights and be subject to all duties
and obligations of the Trustee under the Transaction Documents
as if the new Trustee had been originally named as a party to
the Transaction Documents; and
(c) indemnify the outgoing Trustee for the amount of all Notes
issued in the name of the outgoing Trustee and maturing on or
after the date of the retirement or removal of the outgoing
Trustee and for all other liabilities and expenses incurred by
the outgoing Trustee for which it is entitled to be indemnified
out of the Trusts and which have not been recouped by it, but
the liability of the new Trustee under such indemnity shall be
limited to the same extent provided for in clause 32.16 and any
payment shall rank in the same priority under clause 29 as the
corresponding liability for which the outgoing Trustee claims
such indemnification.
23.10 TRUST MANAGER AND OUTGOING TRUSTEE TO SETTLE AMOUNTS PAYABLE
(a) The Trust Manager shall be entitled to settle with the outgoing
Trustee the amount of any sums payable by the outgoing Trustee
to the Trust Manager or the new Trustee or by the Trust Manager
to the outgoing Trustee and to give or accept from the outgoing
Trustee a discharge and any such agreement or discharge shall
(except in the case of any existing or antecedent fraud,
negligence or wilful default on the part of the outgoing Trustee
or its officers, employees, agents and delegates) be conclusive
and binding on all persons (including the Trust Manager, the new
Trustee, each relevant Approved Seller, each relevant
Beneficiary and the Noteholders).
(b) Even though no new Trustee is appointed in its place, the Trust
Manager may make such arrangements as it thinks fit for the
discharge of the outgoing Trustee from any existing liability
and any liability which might arise under this deed and any
discharge of the outgoing Trustee in accordance with such
arrangements shall (except as stated above) be conclusive and
binding on all persons claiming under the Transaction Documents.
23.11 OUTGOING TRUSTEE TO RETAIN LIEN
Notwithstanding the retirement or removal of the outgoing Trustee and
the indemnity in favour of the outgoing Trustee by the new Trustee as
contemplated by clause 23.9(c), the outgoing Trustee will retain a lien
over a Trust to meet claims of any Creditors of the Trustee as trustee
of the Trust to the extent that the claims of those Creditors are not
properly and duly satisfied by the incoming Trustee.
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23.12 DELIVERY OF BOOKS, DOCUMENTS, ETC
(a) On the retirement or removal of the Trustee in accordance with
the provisions of this clause 23 the outgoing Trustee shall
immediately deliver to the new Trustee appointed in respect of
any Trust (or the Trust Manager if it is acting as Trustee) the
Data Base and all other books, documents, records and property
relating to the Trusts. Any related costs and expenses incurred
by the incoming Trustee (but not the outgoing Trustee) are to be
paid out of the relevant Trust.
(b) The outgoing Trustee shall be entitled to take, and retain as
its own property, copies of such books, documents and records.
Each of the Trust Manager and the new Trustee shall produce the
originals of such books, documents and records in its possession
on the giving of reasonable written notice by the outgoing
Trustee.
23.13 NOTICE TO NOTEHOLDERS OF NEW TRUSTEE
As soon as practicable after the appointment of a new Trustee under
this clause 23, the new Trustee shall notify the Noteholders of its
appointment.
24. APPOINTMENT OF SERVICER
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Each Servicer shall be appointed, and shall act, as servicing agent for
the Trustee in respect of any Loans, Loan Securities and Related
Securities on and subject to the terms of the relevant Servicing
Agreement.
25. LEAD MANAGER
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25.1 APPOINTMENT OF LEAD MANAGER
(a) The Trust Manager may appoint any one or more persons to be Lead
Manager in relation to any issue of Notes, with remuneration
determined by the Trust Manager. An issue of Notes may have more
than one Lead Manager. An issue of Notes under a Trust may have
a different Lead Manager, or different Lead Managers, from other
issues of Notes under that Trust.
(b) The Trust Manager may terminate the appointment of a Lead
Manager at any time.
25.2 FEES
The Trustee shall be entitled to pay from each Trust for which any
person is a Lead Manager fees (if any) to that person in the amount and
at the times set out in the corresponding Note Issue Direction.
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26. BANK ACCOUNTS
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26.1 OPENING OF BANK ACCOUNTS
(a) (COLLECTION ACCOUNT) The Trustee must open at least one account
with an Approved Bank into which Collections can be paid.
(b) (SEPARATE BANK ACCOUNTS FOR EACH TRUST) The Trustee must open
and maintain a separate account with an Approved Bank in respect
of each Trust.
(c) (ADDITIONAL BANK ACCOUNTS) The Trustee may open such additional
accounts with an Approved Bank in respect of a Trust as it sees
fit or as required by the Transaction Documents. However, only
the accounts specified in the Transaction Documents for a Trust
may be opened.
(d) (CHANGE BANK ACCOUNTS) If an account in respect of a Trust is
held with a bank which ceases to be an Approved Bank then the
Trustee shall as soon as practicable on becoming aware of that
fact (and in any event within:
(i) where the bank then has a rating of A-1 (S&P) or below,
5 days; or
(ii) otherwise, 30 days):
(A) close that account: and
(B) transfer all funds standing to the credit of
that account to another existing account in
respect of that Trust with an Approved Bank
or, if none, the Trustee shall immediately
open an account with an Approved Bank.
26.2 LOCATION OF BANK ACCOUNTS
(a) (CENTRAL BANK ACCOUNT) Unless otherwise directed in writing by
the Trust Manager, the central bank account of each Trust shall
be opened and maintained at a branch of an Approved Bank in
Victoria.
(b) (INTERSTATE BRANCH BANK ACCOUNTS) The Trustee may, if necessary
or desirable for the operation of a Trust, open bank accounts
with a branch outside Victoria of an Approved Bank provided that
if such accounts are opened it shall enter into arrangements so
that as soon as practicable after the receipt of moneys to the
credit of such accounts, such moneys are to be transferred to
the credit of the central bank accounts of the Trust in Victoria
(subject to a direction to the contrary by the Trust Manager
under clause 26.2(a)).
26.3 NAME OF BANK ACCOUNTS
Each bank account for a Trust shall be opened by the Trustee in its
name as trustee of the Trust.
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26.4 PURPOSE OF BANK ACCOUNTS
No bank account shall be used for any purpose other than for the
relevant Trust in respect of which the account is maintained and other
than in accordance with this deed.
26.5 AUTHORISED SIGNATORIES
The only authorised signatories for any bank account are to be officers
or employees of the Trustee or any person nominated by the Trustee in
writing.
26.6 TRUST MANAGER NOT ENTITLED TO HAVE ACCESS
Except as expressly provided in this deed or any relevant Transaction
Document, the Trust Manager may not withdraw money from any bank
account for a Trust on its own behalf. However, the Trust Manager may:
(a) obtain information about, negotiate interest rates for and make
payments to any bank account for a Trust; and
(b) direct the Trustee to withdraw money from any bank account for a
Trust in accordance with the relevant Transaction Documents.
26.7 BANK STATEMENTS AND ACCOUNT INFORMATION
(a) (COPIES OF BANK STATEMENTS) The Trustee shall promptly on
receipt of a statement in respect of each bank account for a
Trust provide a copy to the Trust Manager (and any other person
from time to time specified by the Trust Manager).
(b) (DIRECT ACCESS) Subject to the Privacy Act, the Trustee
authorises the Trust Manager (and any other person from time to
time specified by the Trust Manager) to obtain direct from an
Approved Bank, statements and information in relation to each
bank account of a Trust.
26.8 DEPOSITS
Subject to this deed, the Servicing Agreement and any relevant Series
Notice and except in respect of business transacted through the
Austraclear System, the Trustee shall pay (or cause the relevant
Servicer to pay) into a bank account of a Trust within one Business Day
of receipt the following moneys and proceeds:
(a) (SUBSCRIPTION MONEYS) all subscription moneys raised in respect
of Notes issued by the Trustee as trustee of the Trust;
(b) (PROCEEDS) all proceeds of the Authorised Investments and
Support Facilities in respect of the Trust; and
(c) (OTHER MONEYS) all other moneys received by the Trustee in
respect of the Trust.
26.9 WITHDRAWALS
Subject to this deed, the Trustee shall withdraw funds from a bank
account of a Trust and apply the same when necessary for the following
outgoings:
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(a) (AUTHORISED INVESTMENTS) purchasing Authorised Investments and
making payments required in connection with Authorised
Investments;
(b) (PAYMENTS TO CREDITORS ETC) making payments to the Creditors or
the Beneficiary in relation to the Trust; and
(c) (OTHER PAYMENTS) making payments to Austraclear or any other
person of Expenses or other amounts entitled to be paid to or
retained for their respective benefit under this deed or any
other Transaction Document.
26.10 ALL TRANSACTIONS THROUGH CENTRAL ACCOUNTS
(a) (RECEIPTS AND OUTGOINGS) Unless otherwise directed by the Trust
Manager, all moneys and proceeds in relation to a Trust referred
to in clause 26.8 shall, subject to clause 26.10(b), be credited
to the central bank account of the Trust (whether credited
direct to the central account or transferred from an interstate
bank account of the Trust) and all outgoings of a Trust referred
to in clause 26.9 shall, subject to clause 26.10(b), be paid
from the central bank account of the Trust (either by direct
payment or by transfer to an interstate bank account of the
Trust).
(b) (BANK CHARGES, ETC) Any amounts referred to in paragraph (i) of
the definition of EXPENSES in clause 1.1 to the extent they
relate to an interstate bank account of a Trust may be deducted
or withdrawn direct from the interstate bank account.
27. AUDITOR
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27.1 AUDITOR MUST BE REGISTERED
The Auditor of each Trust shall be a firm of chartered accountants some
of whose members are Registered Company Auditors.
27.2 APPOINTMENT OF AUDITOR
The Auditor of each Trust shall be a person nominated by the Trust
Manager and shall be appointed by the Trustee within three months of
the creation of that Trust under this deed on such terms and conditions
as the Trustee and the Trust Manager agree. The Auditor holds office
subject to this clause.
27.3 REMOVAL AND RETIREMENT OF AUDITOR
(a) (REMOVAL BY TRUSTEE) Subject to paragraph (b) the Trustee may,
on giving one month's notice to the Auditor and the Designated
Rating Agency, remove the Auditor as Auditor of a Trust on
reasonable grounds (to be notified to the Trust Manager before
notice of removal is given to the Auditors).
(b) (REMOVAL AT REQUEST OF TRUST MANAGER OR NOTEHOLDERS) The Trustee
may, on the recommendation of the Trust Manager and shall,
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if so requested by an Extraordinary Resolution of Noteholders of
a Trust, remove the Auditor as Auditor of a Trust.
(c) (RETIREMENT) An Auditor may retire at any time on giving six
months' written notice (or such shorter period approved by the
Trust Manager and the Trustee) to the Trustee of its intention
to retire as Auditor of a Trust.
27.4 APPOINTMENT OF REPLACEMENT AUDITOR
The Trustee shall fill any vacancy in the office of Auditor by
appointing:
(a) where the Auditor was removed by Extraordinary Resolution of
Noteholders, and a person was nominated to be appointed as
Auditor in that resolution, that person; or
(b) in any other case, a person qualified to be appointed Auditor
under this clause.
27.5 AUDITOR MAY HAVE OTHER OFFICES
An Auditor may also be the auditor of the Trustee, the Trust Manager, a
Servicer, a Lead Manager or any of their Related Corporations or of any
other trust (whether of a similar nature to the Trusts or otherwise)
but a member of the firm appointed as an Auditor may not be an officer
or employee, or the partner of an officer or an employee, of the
Trustee, the Trust Manager, a Servicer, the Lead Manager (if any) or
any of their Related Corporations.
27.6 ACCESS TO WORKING PAPERS
Each Auditor shall be appointed on the basis that it will make its
working papers and reports available for inspection by the Trustee and
the Trust Manager.
27.7 AUDITOR'S REMUNERATION AND COSTS
The Trustee may pay out of a Trust, or reimburse itself from a Trust,
the reasonable remuneration of the Auditor of the Trust as agreed
between the Trust Manager and the Auditor and notified to the Trustee
and any reasonable expenses of the Auditor of the Trust sustained in
the course of the performance of the duties of the Auditor.
27.8 ACCESS TO INFORMATION
The Auditor of a Trust shall be entitled to require from the Trust
Manager and the Trustee, and they shall furnish to the Auditor, such
information, accounts and explanations as may be necessary for the
performance by the Auditor of its duties under this deed.
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
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28. ACCOUNTS AND AUDIT
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28.1 KEEPING ACCOUNTS
The Trust Manager shall, having regard to its functions, keep or cause
to be kept accounting records which provide a true and fair view of all
sums of money received and expended by or on behalf of each Trust, the
matters in respect of which such receipt and expenditure takes place,
of all sales and purchases of Authorised Investments and of the assets
and liabilities of each Trust. The Trustee shall furnish to the Trust
Manager from time to time any information it may have which is
necessary for this purpose.
28.2 LOCATION AND INSPECTION OF BOOKS
The accounting records of each Trust shall be kept at the office of the
Trustee or the Trust Manager (as the case may be) or at such other
place as the Trustee and the Trust Manager may from time to time agree
and shall be open to the inspection of the Trust Manager, the Trustee,
the Auditor of the Trust and the relevant Beneficiary on reasonable
notice and during usual business hours.
28.3 ACCOUNTS TO BE KEPT IN ACCORDANCE WITH APPROVED ACCOUNTING STANDARDS
The accounting records of each Trust shall be maintained in accordance
with the Approved Accounting Standards and in a manner which will
enable true and fair Accounts of the Trust to be prepared and audited
in accordance with this deed.
28.4 PREPARATION OF ANNUAL ACCOUNTS
The Trust Manager shall cause the preparation of the Accounts for each
Financial Year of each Trust.
28.5 ANNUAL AUDITED ACCOUNTS
At the time of preparation of the Accounts for each Financial Year, the
Trustee shall ensure that the Accounts prepared by the Trust Manager in
respect of each Trust shall be audited by the Auditor.
28.6 INSPECTION AND COPIES OF AUDITED ACCOUNTS
A copy of the audited Accounts of a Trust and any Auditor's report
shall be available for inspection, but not copying, by the Noteholders
in relation to the Trust at the offices of the Trust Manager.
28.7 TAX RETURNS
The Trust Manager shall, or shall procure the Auditor to:
(a) prepare and lodge all necessary income tax returns and other
statutory returns for each Trust; and
(b) confirm that all the income of each Trust has either been
distributed or offset by deductible losses or expenses or that
no Trust has any liability to pay income tax.
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28.8 AUDIT
The Trustee must require the Auditor, as part of each annual audit
carried out by the Auditor in relation to each Trust, to provide a
written report to the Trustee and the Trust Manager as to:
(a) the nature and extent of the audit performed (as specified by
the Trustee to the Auditor); and
(b) whether the Auditor is satisfied as to the correctness of the
Accounts,
that report to be in the form agreed by the Trustee and the Trust
Manager.
28.9 NO RESPONSIBILITY FOR SERVICER
Provided that it complies with its obligations under clause 17, the
Trust Manager shall have no liability to any person under this clause
28 if it fails to keep records relating to the Assets of a Trust and
that failure is caused by the failure of the relevant Servicer to keep
any records and provide any reports which it is obliged to keep and
provide under the relevant Servicing Agreement.
29. PAYMENTS
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29.1 CASHFLOW ALLOCATION METHODOLOGY
Collections in relation to a Trust and other amounts credited to the
Collection Account for a Trust will be allocated by the Trust Manager
on behalf of the Trustee, and paid by the Trustee as directed by the
Trust Manager, in accordance with the Series Notice for that Trust.
29.2 PAYMENTS TO BENEFICIARY
(a) (DISTRIBUTABLE INCOME ABSOLUTELY VESTED) The Beneficiary of a
Trust shall as at the end of each Financial Year of that Trust
have an absolute vested interest in the Distributable Income of
that Trust for that Financial Year.
(b) (DISTRIBUTABLE INCOME DUE AS AT CLOSE OF FINANCIAL YEAR) The
Distributable Income of a Trust for a Financial Year (to the
extent not previously distributed) shall, subject to clause
29.3, constitute a debt due as at the end of the Financial Year
by the Trustee as trustee of the Trust to the Beneficiary
entitled to the Distributable Income under clause 29.2(a) and
shall, subject to clause 29.3, be payable under clause 29.2(c).
(c) (PAYMENT OF DISTRIBUTABLE INCOME) Subject to clause 29.3, the
Trustee may make interim distribution of the Distributable
Income of a Trust to the relevant Beneficiary in accordance with
the terms of the Series Notice for that Trust and shall as soon
as practicable after the end of a Financial Year transfer an
amount representing the Distributable Income of the Trust (to
the extent not previously distributed) from the central bank
account of the Trust to the bank accounts of the Beneficiary of
the Trust.
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(d) (RESIDUAL CAPITAL) On the termination of a Trust, the surplus
capital of the Trust remaining after satisfaction by the Trustee
of all its obligations in respect of the Trust shall be paid to
the Beneficiary of the Trust.
29.3 SUBORDINATION OF BENEFICIARY'S ENTITLEMENTS
(a) No moneys may be paid out of a Trust during a Financial Year to
a Beneficiary under clause 29.2, whilst there is any amount due,
but unpaid, which is in accordance with clause 29.1 to be paid
in priority to those amounts and before the Trustee is
satisfied, after consulting with the Trust Manager, that
sufficient allowance has been made for those priority amounts in
relation to the Trust, accruing during the Financial Year. To
the extent that there is an amount payable under clause 29.1
which is to be paid in priority to the amounts payable to the
Beneficiary, the Beneficiary directs the Trustee to meet the
amount payable under clause 29.1 as an application of the
Beneficiary's entitlement to the Distributable Income of the
Trust.
(b) Notwithstanding paragraph (a), once an amount is paid out of a
Trust to a Beneficiary during a Financial Year, that amount may
not be recovered from that Beneficiary for any reason or by any
person except to the extent that amount was paid in error.
29.4 INSUFFICIENT MONEYS
If after the application of the provisions of clauses 29.1 and 29.2
there is insufficient money available to the Trustee in respect of a
Trust to pay the full amount due to Noteholders in the Trust, the
deficiency shall, subject to the Series Notice for the Notes or any
Class of the Notes issued in relation to the Trust, be borne by the
Noteholders in the manner set out in the relevant Series Notice.
29.5 INCOME OR CAPITAL
The Trust Manager shall determine whether any amount is of an income or
capital nature in accordance with clause 29.6 and, subject only to a
contrary determination by the Auditor of the relevant Trust in
accordance with clause 29.6, the determination by the Trust Manager
shall be final and binding.
29.6 INCOME OF TRUST
(a) The income of each Trust for each Financial Year will include:
(i) any amount (including a profit made by the Trustee)
which is included in the assessable income of the
Trust for the purposes of the Taxation Act (other than
Part IIIA);
(ii) any realised capital gains derived by the Trustee to
the extent to which the same are reflected in the net
capital gain (if any) calculated under Part IIIA of
the Taxation Act which is included in the assessable
income of the Trust for the purposes of the Taxation
Act,
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and otherwise will be determined in accordance with Approved
Accounting Standards. All periodic income of the Trust will be
deemed to accrue from day to day and will be brought to account
as arising on a daily basis where that is required for tax
purposes (using a daily accruals method of accounting where that
is the method required for tax purposes).
(b) The expenses of each Trust for each Financial Year will include
losses or outgoings which are allowable deductions in
calculating the net income of the Trust under Section 95(1) of
the Taxation Act and otherwise will be determined in accordance
with Approved Accounting Standards. All periodic expenses of the
Trust will be deemed to accrue from day to day and will be
brought to account on a daily basis where that is required for
tax purposes (using a daily accruals method of accounting where
that is the method required for tax purposes).
(c) The Trust Manager will determine the Net Accounting Income for
each Trust for each Financial Year by applying against the
income of the Trust for that Financial Year:
(i) so much of the expenses specified in paragraph (b) as
are referable to that Financial Year; and
(ii) any Net Accounting Loss carried forward from a
preceding Financial Year.
The balance of the income of the Trust for the Financial Year
remaining after those applications will constitute the NET
ACCOUNTING INCOME for that Financial Year except where the
amount is negative, in which case, it will be the NET ACCOUNTING
LOSS for that Financial Year.
(d) The Net Accounting Income in respect of a Financial Year for
each Trust will constitute the distributable income
(DISTRIBUTABLE INCOME) of the Trust for that Financial Year.
30. INDEMNITY
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The Trust Manager fully indemnifies the Trustee from and against any
expense, loss, damage, liability, fines, forfeiture, legal fees and
related costs which the Trustee may incur (whether directly or
indirectly) as a consequence of:
(a) any Trust Manager's Default;
(b) a failure by the Trust Manager to perform its duties or comply
with its obligations under any Transaction Document;
(c) any fraud, negligence or wilful default on the part of the Trust
Manager;
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(d) any conduct or statement of the Trust Manager in relation to the
issue of any Notes which is misleading or deceptive or likely to
mislead or deceive; and
(e) any material fact contained in any Information Memorandum for
the issue of Notes which is misleading or deceptive or likely to
mislead or deceive.
31. REPRESENTATIONS AND WARRANTIES
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31.1 GENERAL REPRESENTATIONS AND WARRANTIES
Each party makes the following representations and warranties for the
benefit of the others:
(a) (STATUS) it is a corporation duly incorporated and existing
under the laws of its place of incorporation and the
Commonwealth of Australia;
(b) (POWER) it has the power to enter into and perform its
obligations under each Transaction Document to which it is a
party, to carry out the transactions contemplated by this deed
and to carry on its business as now conducted or contemplated;
(c) (CORPORATE AUTHORISATIONS) it has taken all necessary action to
authorise the entry into and performance of each Transaction
Document to which it is a party and to carry out the
transactions contemplated by such Transaction Documents;
(d) (OBLIGATIONS BINDING) its obligations under each Transaction
Document to which it is a party are legal, valid, binding and
enforceable in accordance with their respective terms (subject
to laws relating to solvency and general doctrines of
insolvency, except in the case of an Approved Seller with
respect to any Sale Notice and the transactions contemplated
therein);
(e) (TRANSACTIONS PERMITTED) the execution and performance by it of
each Transaction Document to which it is a party and each
transaction contemplated under those documents will not conflict
with or result in a breach of any of the terms or provisions of,
or constitute a default under, any provision of:
(i) a law or treaty or a judgment, ruling, order or decree
of a Government Agency binding on it (including
Consumer Credit Legislation);
(ii) its constitution; or
(iii) any other document or agreement which is binding on it
or its assets,
which is material in the context of performing its duties under
each Transaction Document to which it is a party; and
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(f) (AUTHORISATIONS) it holds all Authorisations necessary to carry
on its business and to act as required by each Transaction
Document to which it is a party and by law to comply with the
requirements of any legislation and subordinate legislation
(including, to the extent relevant, any Consumer Credit
Legislation).
31.2 TRUSTEE ENTITLED TO ASSUME ACCURACY OF REPRESENTATIONS AND WARRANTIES
Each Noteholder acknowledges that the Trustee is not under any
obligation to:
(a) make any enquiries which a prudent purchaser of such assets
would be expected to make;
(b) conduct any investigation to determine if the representations
and warranties given by the Approved Seller in relation to the
Loan, Loan Securities and Related Securities are incorrect; or
(c) to test the truth of those representations and warranties,
and is entitled to conclusively accept and rely entirely on the Loans
satisfying the Eligibility Criteria and on the accuracy of the
representations and warranties made by a Servicer or an Approved
Seller, unless the Trustee has actual notice of any event to the
contrary.
32. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY GENERALLY
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Without prejudice to any indemnity allowed by law or elsewhere in this
deed given to the Trustee or the Trust Manager, it is expressly
declared as follows.
32.1 RELIANCE ON CERTIFICATES
The Trustee and the Trust Manager shall not incur any liability in
respect of any action taken or thing suffered by it in reliance on any
notice, resolution, direction, consent, certificate, receipt,
affidavit, statement, valuation report or other document (including any
of the above submitted or provided by the Trust Manager (in the case of
the Trustee only), by the Trustee (in the case of the Trust Manager
only) or by an Approved Seller or a Servicer) which it has no reason to
believe is not genuine, signed by the proper parties and with
appropriate authority.
Without limiting the generality of the above the Trustee may
conclusively rely on:
(a) (STATEMENTS BY THE TRUST MANAGER) a statement by the Trust
Manager that an investment of the Trust is an Authorised
Investment or that the price paid by the Trustee to acquire the
beneficial interest in the Authorised Investment equals the
market price for that Authorised Investment (taking into account
any relevant Hedge Agreement);
(b) (NOTE ISSUE DIRECTIONS) a Note Issue Direction issued by the
Trust Manager; and
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(c) (CERTIFICATES) a certificate by the Trust Manager under this
deed.
In preparing any notice, certificate, advice or proposal the Trustee
and the Trust Manager shall be entitled to assume that each person
under any Authorised Investment, Support Facility, Loan, Loan Security,
Related Securities, other Transaction Document or any other deed,
agreement or arrangement incidental to any of the above or to any
Trust, will perform their obligations under those documents in full by
the due date and otherwise in accordance with their terms.
32.2 TRUSTEE AND TRUST MANAGER MAY ASSUME SIGNED DOCUMENTS TO BE GENUINE
(a) (RELIANCE ON DOCUMENTS) Subject to sub-clause (b):
(i) (TRUSTEE MAY ASSUME AUTHENTICITY) the Trustee shall be
entitled to assume the authenticity and validity of
any signature on any application, request or other
instrument or document delivered to the Trustee (other
than a document executed or purporting to be executed
by or on behalf of a Servicer, an Approved Seller or
the Trust Manager, as to which clause 32.3 shall
apply);
(ii) (TRUSTEE NOT LIABLE FOR LOSS ON FORGERIES) the Trustee
shall not be in any way liable to make good out of its
own resources any loss incurred by any person in the
event of any signature on any document being forged or
otherwise failing to bind the person whose signature
it purports to be or the person on whose behalf it
purports to be executed;
(iii) (TRUST MANAGER MAY ASSUME AUTHENTICITY) the Trust
Manager shall be entitled to rely on the authenticity
and validity of any signature on any application,
request or other instrument or document delivered to
the Trust Manager (other than a document executed or
purporting to be executed by or on behalf of the
Trustee, an Approved Seller or a Servicer, as to which
clause 32.4 shall apply); and
(iv) (TRUST MANAGER NOT LIABLE FOR LOSS ON FORGERIES) the
Trust Manager shall not be in any way liable to make
good out of its own resources any loss incurred by any
person in the event of any signature on any document
being forged or otherwise failing to bind the person
whose signature it purports to be or the person on
whose behalf it purports to be executed.
(b) (LIMITATIONS ON ASSUMPTIONS WHERE ACTUAL KNOWLEDGE) The Trustee
or the Trust Manager shall not be entitled to the benefit of
paragraph (a) in relation to an application, request or other
instrument or document if it was actually aware that the
signature was not genuine.
32.3 TRUSTEE'S RELIANCE ON TRUST MANAGER, APPROVED SELLER OR SERVICER
(a) (TRUST MANAGER'S AUTHORISED SIGNATORIES ARE SUFFICIENT EVIDENCE)
Whenever any certificate, notice, proposal, direction,
instruction or
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other communication is to be given by the Trust Manager, an
Approved Seller or a Servicer to the Trustee, the Trustee may
accept as sufficient evidence as to the form and content of a
document unless it has reason to believe that the relevant
document was not signed on behalf of the Trust Manager, the
Approved Seller or the Servicer (as the case may be) or by any
Authorised Signatory of the Trust Manager, the Approved Seller
or the Servicer (as the case may be).
(b) (TRUSTEE NOT LIABLE FOR LOSS) The Trustee shall not be
responsible for any loss arising from any act, neglect, mistake
or discrepancy of the Trust Manager, an Approved Seller or a
Servicer or any officer, employee, agent or delegate of the
Trust Manager, the Approved Seller or the Servicer in preparing
any such document or in compiling, verifying or calculating any
matter or information contained in any such document, if the
officers of the Trustee responsible for the administration of
the Trust are not actually aware, or should not reasonably have
been aware, that such document is not genuine and correct,
whether or not an error in any such information, document, form
or list is reproduced by the Trustee in any step taken by it.
32.4 TRUST MANAGER'S RELIANCE ON TRUSTEE, APPROVED SELLER OR SERVICER
(a) (TRUSTEE'S AUTHORISED SIGNATORIES ARE SUFFICIENT EVIDENCE)
Whenever any certificate, notice, proposal, direction,
instruction or other communication is to be given by the
Trustee, an Approved Seller or a Servicer to the Trust Manager,
the Trust Manager may (unless, in the case of such communication
from the Servicer, the Trust Manager and the Servicer are the
same entity) accept as sufficient evidence as to the form and
content of a document unless it has reason to believe that the
relevant document was not signed on behalf of the Trustee, the
Approved Seller or the Servicer (as the case may be) or by any
Authorised Signatory of the Trustee, the Approved Seller or the
Servicer (as the case may be).
(b) (TRUST MANAGER NOT LIABLE FOR LOSS) The Trust Manager shall not
be responsible for any loss arising from any act, neglect,
mistake or discrepancy of the Trustee, an Approved Seller or
(except where the Servicer is the Trust Manager) a Servicer, or
any officer, employee, agent or delegate of the Trustee, the
Approved Seller or the Servicer in preparing any such document
or in compiling, verifying or calculating any matter or
information contained in any such document, if the officers of
the Trust Manager responsible for the administration of the
Trust are not actually aware, or should not reasonably have been
aware, that such document is not genuine and correct, whether or
not an error in any such information, document, form or list is
reproduced by the Trust Manager in any step taken by it.
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32.5 COMPLIANCE WITH LAWS
The Trustee and the Trust Manager shall not incur any liability to
anyone in respect of any failure to perform or to do any act or thing
which by reason of any provision of any relevant present or future law
of any place or any ordinance, rule, regulation or by law or of any
decree, order or judgment of any competent court or other tribunal, the
Trustee and/or the Trust Manager shall be hindered, prevented or
forbidden from doing or performing.
32.6 TAXES
The Trustee and the Trust Manager shall not be liable to account to any
person for any payments made in good faith to any duly empowered
Government Agency of any Australian Jurisdiction or any other place for
Taxes or other charges on any of the Trusts or on any Notes or with
respect to any transaction under or arising from this deed or any other
Transaction Document notwithstanding that any such payment ought or
need not have been made.
32.7 RELIANCE ON EXPERTS
The Trustee and the Trust Manager may act on the opinion or statement
or certificate or advice of or information obtained from the Trust
Manager (in the case of the Trustee only), the Trustee (in the case of
the Trust Manager only), a Servicer, barristers or solicitors (whether
instructed by the Trust Manager or the Trustee), bankers, accountants,
brokers, valuers and other persons believed by it in good faith to be
expert or properly informed in relation to the matters on which they
are consulted and the Trustee and the Trust Manager shall not be liable
for anything done or suffered by it in good faith in reliance on such
opinion, statement, certificate, advice or information.
32.8 OVERSIGHTS OF OTHERS
Subject to this deed, the Trustee and the Trust Manager shall not be
responsible for any act, omission, misconduct, mistake, oversight,
error of judgment, forgetfulness or want of prudence on the part of the
Trust Manager (in the case of the Trustee only), the Trustee (in the
case of the Trust Manager only), a Servicer or agent appointed by the
Trustee or the Trust Manager or on whom the Trustee or the Trust
Manager is entitled to rely under this deed (other than a Related
Corporation), attorney, banker, receiver, barrister, solicitor, agent
or other person acting as agent or advisor to the Trustee or the Trust
Manager.
32.9 POWERS, AUTHORITIES AND DISCRETIONS
Except as otherwise provided in this deed and in the absence of fraud,
negligence or wilful default, the Trustee and the Trust Manager shall
not be in any way responsible for any loss (whether consequential or
otherwise), costs, damages or inconvenience that may result from the
exercise or non-exercise of any powers, authorities and discretions
vested in it.
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32.10 IMPOSSIBILITY OR IMPRACTICABILITY
If for any reason whatsoever it becomes impossible or impracticable to
carry out any or all of the provisions of this deed or any other
Transaction Document the Trustee and the Trust Manager shall not be
under any liability and, except to the extent of their own fraud,
negligence or wilful default, nor shall either of them incur any
liability by reason of any error of law or any matter or thing done or
suffered or omitted to be done in good faith by either of them or their
respective officers, employees, agents or delegates.
32.11 DUTIES AND CHARGES
The Trustee and the Trust Manager shall not be required to effect any
transaction or dealing with any Notes or with all or any part of the
Authorised Investments of a Trust on behalf or at the request of any
Noteholder or other person unless such Noteholder or other person (as
the case may be) shall first have paid in cash or otherwise provided to
its satisfaction for all duties, Taxes, governmental charges,
brokerage, transfer fees, registration fees and other charges
(collectively DUTIES AND CHARGES) which have or may become payable in
respect of such transaction or dealing but the Trustee and the Trust
Manager shall be entitled if it so thinks fit to pay and discharge all
or any of such duties and charges on behalf of the Noteholder or other
person and to retain the amount so paid of any moneys or property to
which such Noteholder or other person may be or become entitled under
this deed.
32.12 LEGAL AND OTHER PROCEEDINGS
(a) (INDEMNITY FOR LEGAL COSTS) The Trustee and the Trust Manager
shall be indemnified out of a Trust for all legal costs and
disbursements and all other cost, disbursements, outgoings and
expenses incurred by the Trustee and the Trust Manager in
connection with:
(i) the enforcement or contemplated enforcement of, or
preservation of rights under; and
(ii) without limiting the generality of sub-paragraph (a)
(i) above, the initiation, defence, carriage and
settlement of any action, suit, proceeding or dispute
in respect of, this deed or any other Transaction
Document or otherwise under or in respect of the Trust
provided that the enforcement, contemplated
enforcement or preservation by the Trustee of the
rights referred to in sub-paragraph (a)(i) or the
court proceedings referred to in sub-paragraph (a)(ii)
(other than in each case the defence of any action,
suit, proceeding or dispute brought against the
Trustee), and the basis of incurring any those costs,
disbursements, outgoings and expenses by the Trustee;
(iii) has been approved in advance by the Trust Manager or
by an Extraordinary Resolution of the Noteholders of
the Trust; or
(iv) is regarded by the Trustee as necessary to protect the
interests of the Noteholders in relation to the Trust
following a breach
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by the Trust Manager of its obligations under this
deed and the Trustee reasonably believes that any
delay in seeking an approval under sub-paragraph
(a)(iii) will be prejudicial to the interests of the
Noteholders in relation to the Trust.
(b) (DEFENCE OF PROCEEDINGS ALLEGING NEGLIGENCE ETC.) Each of the
Trustee and the Trust Manager shall be entitled to claim in
respect of the above indemnity from the relevant Trust for its
expenses and liabilities incurred in defending any action, suit,
proceeding or dispute in which fraud, negligence or wilful
default is alleged or claimed against it, but on the same being
proved, accepted or admitted by it, it shall from its personal
assets immediately repay to such Trust the amount previously
paid by such Trust to it in respect of that indemnity.
32.13 NO LIABILITY EXCEPT FOR NEGLIGENCE ETC.
In the absence of fraud, negligence or wilful default on its part or on
the part of any of its officers, employees, (in the case of the Trust
Manager only) agents or (in the case of the Trust Manager only)
delegates, none of the Trustee and the Trust Manager shall be liable
personally in the event of failure to pay moneys on the due date for
payment to any Noteholder, any Beneficiary, the Trust Manager (in the
case of the Trustee), the Trustee (in the case of the Trust Manager) or
any other person or for any loss howsoever caused in respect of any of
the Trusts or to any Noteholder, any Beneficiary, the Trust Manager (in
the case of the Trustee), the Trustee (in the case of the Trust
Manager) or other person.
32.14 FURTHER LIMITATIONS ON TRUSTEE'S LIABILITY
Subject to clause 20.4 and clause 32.3, the Trustee shall not be
liable:
(a) (FOR LOSS ON ITS DISCRETIONS) for any losses, costs, liabilities
or expenses arising out of the exercise or non-exercise of its
discretion or for any other act or omission on its part under
this deed, any other Transaction Document or any other document
except where the exercise or non-exercise of any discretion, or
any act or omission, by the Trustee, or any of its officers or
employees, constitutes fraud, negligence or wilful default;
(b) (FOR LOSS ON TRUST MANAGER'S DISCRETIONS) for any losses, costs
liabilities or expenses arising out of the exercise or
non-exercise of a discretion by the Trust Manager or the act or
omission of the Trust Manager except to the extent that it is
caused by the Trustee's, or any of its officer's or employee's,
fraud, negligence or wilful default;
(c) (FOR LOSS ON DIRECTIONS) for any losses, costs, damages or
expenses caused by its acting on any instruction, information or
direction given to it by:
(i) the Trust Manager, a Servicer or an Approved Seller
under this deed, any other Transaction Document or any
other document;
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(ii) by any person under a Support Facility, Loan or Loan
Security; or
(iii) an Obligor,
except to the extent that it is caused by the Trustee's, or any
of its officer's or employee's, fraud, negligence or wilful
default;
(d) (FOR CERTAIN DEFAULTS) for any Trust Manager's Default or any
Insolvency Event with respect to an Approved Seller;
(e) (FOR ACTS OF SERVICER) without limiting the Trustee's
obligations or powers under the Transaction Documents, for any
act, omission or default of a Servicer in relation to its
obligations under the relevant Servicing Agreement; or
(f) (RESOLUTION OF NOTEHOLDERS) for any losses, costs, liabilities
or expenses arising out of it:
(i) acting in accordance with a resolution of Noteholders
as provided under the Transaction Documents; or
(ii) relying in good faith on any advice obtained from
valuers, solicitors, barristers, surveyors,
contractors, brokers, qualified advisors, accountants
and other experts,
except to the extent that it is caused by the Trustee's, or any
of its officer's or employee's, fraud, negligence or wilful
default.
Nothing in this clause 32.14 alone (but without limiting the operation
of any other clause of this deed) shall imply a duty on the Trustee to
supervise the Trust Manager in the performance of the Trust Manager's
functions and duties, and the exercise by the Trust Manager of its
discretions.
32.15 FURTHER LIMITATIONS ON TRUST MANAGER'S LIABILITY
Subject to clause 32.4, the Trust Manager shall not be liable:
(a) (FOR LOSS ON ITS DISCRETIONS) for any losses, costs, liabilities
or expenses arising out of the exercise or non-exercise of its
discretion or for any other act or omission on its part under
this deed, any other Transaction Document or any other document
except where the exercise or non-exercise of any discretion, or
any act or omission, by the Trust Manager, or any of its
officers, employees, agents or delegates, constitutes fraud,
negligence or wilful default;
(b) (FOR LOSS ON TRUSTEE'S DISCRETIONS) for any losses, costs,
liabilities or expenses arising out of the exercise or
non-exercise of a discretion by the Trustee or the act or
omission of the Trustee except to the extent that it is caused
by the Trust Manager's, or any of its officer's, employee's,
agent's or delegate's, fraud, negligence or wilful default;
(c) (FOR LOSS ON TRUSTEE'S DIRECTIONS) for any losses, costs,
damages or expenses caused by its acting on any instruction or
direction given to it by:
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(i) the Trustee, the Servicer or an Approved Seller under
this deed, any other Transaction Document or any other
document;
(ii) by any person under a Support Facility, Loan or Loan
Security; or
(iii) an Obligor,
except to the extent that it is caused by the Trust Manager's,
or any of its officer's, employee's, agent's or delegate's,
fraud, negligence or wilful default;
(d) (FOR CERTAIN DEFAULTS) for any Trustee's Default or any
Insolvency Event with respect to an Approved Seller; or
(e) (FOR ACTS OF SERVICER) (where the Trust Manager is not the
Servicer) for any act, omission or default of a Servicer in
relation to its obligations under the relevant Servicing
Agreement.
Nothing in this clause 32.15 alone (but without limiting the operation
of any other clause of this deed) shall imply a duty on the Trust
Manager to supervise the Trustee in the performance of the Trustee's
functions and duties, and the exercise by the Trustee of its
discretions.
32.16 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT OF INDEMNITY
(a) This deed applies to the Trustee only in its capacity as trustee
of each Trust and in no other capacity. A liability incurred by
the Trustee acting in its capacity as trustee of a Trust arising
under or in connection with this deed or a Trust is limited to
and can be enforced against the Trustee only to the extent to
which it can be satisfied out of property of the relevant Trust
out of which the Trustee is actually indemnified for the
liability. This limitation of the Trustee's liability applies
despite any other provision of this deed and extends to all
liabilities and obligations of the Trustee in any way connected
with any representation, warranty, conduct, omission, agreement
or transaction related to this deed or a Trust.
(b) The parties (including the Beneficiary) other than the Trustee
may not sue the Trustee in any capacity other than as trustee of
the relevant Trust or seek the appointment of a receiver (except
in relation to the Assets of that Trust), liquidator,
administrator or similar person to the Trustee or prove in any
liquidation, administration or arrangement of or affecting the
Trustee (except in relation to the Assets of that Trust).
(c) The provisions of this clause 32.16 shall not apply to any
obligation or liability of the Trustee to the extent that it is
not satisfied because under this deed or any other Transaction
Document in relation to the relevant Trust or by operation of
law there is a reduction in the extent of the Trustee's
indemnification out of the Assets of the Trust, as a result of
the Trustee's fraud, negligence or wilful default.
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(d) It is acknowledged that the Trust Manager and the Servicer are
responsible under this deed and the other Transaction Documents
for performing a variety of obligations relating to each Trust.
No act or omission of the Trustee (including any related failure
to satisfy its obligations or breach of representation or
warranty under this deed) will be considered fraud, negligence
or wilful default of the Trustee for the purpose of paragraph
(c) of this clause 32.16 to the extent to which the act or
omission was caused or contributed to by any failure by the
Trust Manager, the Servicer or any other person who provides
services in respect of the Trust (other than a person whose acts
or omissions the Trustee is liable for in accordance with the
Transaction Documents) to fulfil its obligations relating to the
Trust or by any other act or omission of the Trust Manager, the
Servicer, or any other person who provides services in respect
of the Trust (other than a person whose acts or omissions the
Trustee is liable for in accordance with the Transaction
Documents) regardless of whether or not that act or omission is
purported to be done on behalf of the Trustee.
(e) No attorney, agent, receiver or receiver and manager appointed
in accordance with this deed has authority to act on behalf of
the Trustee in a way which exposes the Trustee to any personal
liability and no act or omission of any such person will be
considered fraud, negligence or wilful default of the Trustee
for the purpose of paragraph (c) of this clause 32.16, provided
(in the case of any person selected and appointed by the
Trustee) that the Trustee has exercised reasonable care in the
selection of such persons.
32.17 TRUSTEE'S RIGHT OF INDEMNITY - GENERAL
(a) (INDEMNITY FROM EACH TRUST) Subject to this deed and without
prejudice to the right of indemnity given by law to trustees,
the Trustee will be indemnified out of each Trust against all
losses and liabilities properly incurred by the Trustee in
performing any of its duties or exercising any of its powers
under this deed in relation to that Trust.
(b) (PRESERVATION OF RIGHT OF INDEMNITY) Subject to clause 32.17(c),
and without limiting the generality of clause 32.17(a), the
Trustee's right to be indemnified in accordance with clause
32.17(a) and to effect full recovery out of a Trust, will apply
in relation to any liabilities to Creditors of the Trust
notwithstanding any failure by the Trustee to exercise a degree
of care, diligence and prudence required of the Trustee having
regard to the powers, authorities and discretions conferred on
the Trustee under this deed or any other act or omission which
may not entitle the Trustee to be so indemnified and/or effect
such recovery (including fraud, negligence or wilful default).
(c) (INDEMNITY IN CERTAIN CIRCUMSTANCES HELD FOR TRUST CREDITORS)
Subject to clause 32.17(d), if the Trustee fails to exercise the
degree of care, diligence and prudence required of a trustee
having regard to the powers, authorities and discretions
conferred on the Trustee by this deed or if any other act or
omission occurs which may not entitle the
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Trustee to be indemnified in accordance with clause 32.17(a) or
to effect full recovery out of a Trust (including fraud,
negligence or wilful default):
(i) the Trustee may not receive or hold or otherwise have
the benefit of the indemnity given in clause 32.17(a)
otherwise than on behalf of and on trust for Creditors
in relation to that Trust; and
(ii) the Trustee may only be indemnified to the extent
necessary to allow it to discharge its liability to
Creditors in relation to that Trust.
(d) (NOT TO LIMIT RIGHTS OF OTHERS) Nothing in clauses 32.17(a) to
(c) shall be taken to:
(i) impose any restriction on the right of any Noteholder,
a Beneficiary, the Trust Manager or any other person
to bring an action against the Trustee for loss or
damage suffered by reason of the Trustee's failure to
exercise the degree of care, diligence and prudence
required of a trustee having regard to the powers,
authorities and discretions conferred on the Trustee
by this deed (including fraud, negligence or wilful
default); or
(ii) confer on the Trustee a right to be indemnified out of
a Trust against any loss the Trustee suffers in
consequence of an action brought against it by reason
of the Trustee's failure to exercise the degree of
care, diligence and prudence required of a Trustee
having regard to the powers, authorities and
discretions conferred on the Trustee by this deed
(including fraud, negligence or wilful default).
(e) (NOT TO LIMIT TRUSTEE'S DUTY) Nothing in this clause 32.17 shall
limit the Trustee's duties and obligations under this deed or
prevent or restrict any determination as to whether there has
been, or limit the Trustee's personal liability under this deed
for, a breach of trust or fraud, negligence or wilful default on
the part of the Trustee or its officers, employees, agents or
delegates.
32.18 TRUSTEE'S RIGHT OF INDEMNITY - CONSUMER CREDIT LEGISLATION
(a) (INDEMNITY FROM EACH TRUST) Without prejudice to the right of
indemnity given by law to trustees, and without limiting any
other provision of a Transaction Document, the Trustee will be
indemnified out of the assets of each Trust, free of any set off
or counterclaim, against all Penalty Payments which the Trustee
is required to pay personally or in its capacity as trustee of
that Trust and arising in connection with the performance of its
duties or exercise of its powers under this deed or a
Transaction Document in relation to that Trust.
(b) (PRESERVATION OF RIGHT AND INDEMNITY) The Trustee's right to be
indemnified in accordance with clause 32.18(a) applies
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notwithstanding any allegation that the Trustee has incurred
such Penalty Payment as a result of its negligence, fraud or
wilful default or any other act or omission which may otherwise
disentitle the Trustee to be so indemnified. However, the
Trustee is not entitled to that right of indemnity to the extent
that there is a determination by a relevant court of negligence,
fraud or wilful default by the Trustee (provided that, until
such determination, the Trustee is entitled to that right of
indemnity or reimbursement but must, upon such determination,
repay to the Trust any amount paid to it under this clause). The
Trustee may in accordance with the Transaction Documents rely on
others in relation to compliance with the Consumer Credit
Legislation.
(c) (OVERRIDING) This clause 32.18 overrides any other provision of
this deed.
(d) (NOMINATED CREDIT PROVIDER) Subject to the limitation of
indemnity in paragraph (e), in jurisdictions where a provision
identical to s169A of the Consumer Credit (Victoria) Code 1996
is not in operation, for so long as such a provision is not in
operation, the Trustee and the Trust Manager agree that:
(i) the Trust Manager shall be the "nominated credit
provider" for the purposes of regulation 75 of any
Consumer Credit Legislation in relation to the Trust;
and
(ii) the Trust Manager shall not cease to be the "nominated
credit provider" until such time as:
(A) the Trust Manager is removed from the office
of Trust Manager; and
(B) another person (other than the Trust Manager)
becomes the "nominated credit provider" in
relation to the Trust.
(e) (INDEMNITY) The Trust Manager indemnifies the Trustee in
relation to each relevant Trust, free of any set off or
counterclaim, against all Penalty Payments which the Trustee is
required to pay personally or in its capacity as trustee of that
Trust and arising in connection with the performance of its
duties or exercise of its powers under this deed in relation to
that Trust, except to the extent that such Penalty Payments
arose as a result of the fraud, negligence or wilful default of
the Trustee.
(f) The Trustee will call upon the indemnity under paragraph (e)
before it calls upon the indemnity in paragraph (a). If any such
claim is not satisfied within 3 Business Days of the claim being
made, the Trustee may (without prejudice to its rights under any
indemnity under paragraph (e)) exercise its right of indemnity
referred to in paragraph (a).
(g) The Trustee agrees that it will not grant an indemnity to any
other person within the terms of paragraph (iv) of the
definition of Penalty Payment without the prior written consent
of the Trust Manager.
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In this clause 32.18, PENALTY PAYMENT means:
(i) any civil or criminal penalty incurred by the Trustee
under the Consumer Credit Legislation;
(ii) any money ordered by a court or other judicial body to
be paid by the Trustee in relation to any claim
against the Trustee under the Consumer Credit
Legislation;
(iii) a payment by the Trustee, with the consent of the
Trust Manager, in settlement of a liability or alleged
liability under the Consumer Credit Legislation; or
(iv) a liability under another indemnity for any liability
under the Consumer Credit Legislation,
and includes any legal costs and expenses incurred by the
Trustee or which the Trustee is ordered by a court or other
judicial body to pay (in each case charged at the usual
commercial rates of the relevant legal services provider) in
connection with paragraphs (i) to (iv) above.
32.19 EXTENT OF LIABILITY OF TRUST MANAGER
Subject to clause 30, the Trust Manager shall not be personally liable
to indemnify the Trustee or make any payments to any other person in
relation to any Trust except that there shall be no limit on the Trust
Manager's liability for any fraud, negligence or wilful default by it
in its capacity as the Trust Manager of the relevant Trust.
32.20 RIGHT OF INDEMNITY
The Trust Manager shall be indemnified out of the relevant Trust in
respect of any liability, cost or expense properly incurred by it in
its capacity as Trust Manager of the relevant Trust or so incurred by
any of its delegates, sub-delegates or agents. The Trust Manager will
not be so indemnified where any liability, cost or expense is caused by
the negligence, fraud or wilful default of the Trust Manager.
32.21 CONFLICTS
(a) (NO CONFLICT) Nothing in this deed shall prevent the Trustee,
any Lead Manager, the Trust Manager or any Related Corporation
or Associate of any of them or their directors or other officers
(each a RELEVANT PERSON) from:
(i) subscribing for purchase, holding, dealing in or
disposing of any Notes;
(ii) entering into any financial, banking, development,
insurance, agency, broking or other transaction with,
or providing any advice or services for any of the
Trusts; or
(iii) being interested in any such contract or transaction
or otherwise at any time contracting or acting in any
capacity as representative or agent.
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(b) (NOT LIABLE TO ACCOUNT) A Relevant Person shall not be in any
way liable to account to any Noteholder, any Beneficiary or any
other person for any profits or benefits (including any profit,
bank charges, commission, exchange, brokerage and fees) made or
derived under or in connection with any transaction or contract
specified in paragraph (a) above.
(c) (FIDUCIARY RELATIONSHIP) A Relevant Person shall not by reason
of any fiduciary relationship be in any way precluded from
making any contracts or entering into any transactions with any
such person in the ordinary course of the business or from
undertaking any banking, financial, development, agency or other
services including any contract or transaction in relation to
the placing of or dealing with any investment and the acceptance
of any office or profit or any contract of loan or deposits or
other contract or transaction which any person or company not
being a party to this deed could or might have lawfully entered
into if not a party to this deed. A Relevant Person shall not be
accountable to Noteholders, the Beneficiaries or any other
person for any profits arising from any such contracts,
transactions or offices.
32.22 TRUSTEE NOT OBLIGED TO INVESTIGATE THE TRUST MANAGER ETC
The Trustee shall be responsible only for so much of the Authorised
Investments, and the income and proceeds emanating from the Authorised
Investments as may be actually transferred or paid to it and the
Trustee is expressly excused from:
(a) taking any action or actions to investigate the accounts,
management, control or activities of the Trust Manager or any
other person; or
(b) inquiring into or in any manner questioning or bringing any
action, suit or proceeding or in any other manner seeking to
interfere with the management, control or activities (including
the exercise or non-exercise of powers and discretions) of such
persons or seeking to remove from office such persons, taking
any steps or bringing any action, suit or proceedings or in any
other manner seeking to vary, amend delete from or add to this
deed or other instrument establishing the Trusts, or wind up any
of such persons or vest the Trusts.
32.23 INDEPENDENT INVESTIGATION OF CREDIT
(a) (TRUSTEE AND TRUST MANAGER MAY ASSUME INDEPENDENT INVESTIGATION)
The Trustee and the Trust Manager shall be entitled to assume
that each Noteholder has, independently and without reliance on
the Trustee, the Trust Manager or any other Noteholder, and
based on documents and information as each has deemed
appropriate, made its own investigations in relation to the
Notes, the Trustee, the Trust Manager and the provisions of this
deed and any other Transaction Document.
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(b) (ACKNOWLEDGEMENT OF INDEPENDENT INVESTIGATION) Each Noteholder
agrees that it will, independently and without reliance on the
Trustee, the Trust Manager, a Servicer or any other Noteholder
and based on documents and information as it shall deem
appropriate at the time, continue to make its own analysis and
decisions as to all matters relating to this deed and any other
Transaction Document.
32.24 INFORMATION
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the Trustee
under this deed or any other Transaction Document, the Trustee shall
not have any duty or responsibility to provide any person (including
any Noteholder or Beneficiary but not including the Trust Manager) with
any credit or other information concerning the affairs, financial
condition or business of any of the Trusts.
32.25 ENTERING INTO TRANSACTION DOCUMENTS
Notwithstanding any other provision of this deed, the Trustee is not
obliged to enter into any Transaction Document for a Trust unless the
Trustee, with the agreement of the Trust Manager, has received
independent legal advice (if required by the Trustee) in relation to
the Transaction Document.
32.26 RELIANCE BY TRUSTEE
The Trustee is entitled conclusively to rely on and is not required to
investigate the accuracy of:
(a) the contents of a Sale Notice given to it by an Approved Seller;
(b) the contents of any Trust Manager's Report or Servicer's Report;
(c) any calculations made by an Approved Seller, a Servicer or the
Trust Manager under any Transaction Document including the
calculation of amounts to be paid to, or charged against,
Noteholders, the Beneficiary or the Seller on specified dates;
(d) the amount of, or allocation of, Collections;
(e) the contents of any certificate provided to the Trustee under
this deed and any certificate given by the Trust Manager or the
Servicer pursuant to a report or otherwise pursuant to
subsequent amendments to this deed or any Series Notice,
unless actually aware to the contrary, and the Trustee is not liable to
any person in any manner whatsoever in respect of all such matters.
32.27 INVESTIGATION BY TRUSTEE
The Trust Manager, each Servicer, each Approved Seller, each Noteholder
and the Beneficiary of each Trust acknowledges that:
(a) the Trustee has no duty, and is under no obligation, to
investigate whether a Trust Manager's Default or Servicer
Transfer Event has occurred in relation to that Trust other than
where it has actual notice;
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(b) the Trustee is required to provide the notices referred to in
this deed in respect of a determination of Adverse Effect only
if it is actually aware of the facts giving rise to the Adverse
Effect; and
(c) in making any such determination, the Trustee will seek and rely
on advice given to it by its advisors in a manner contemplated
by this deed.
33. NOTICES
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33.1 NOTICES GENERALLY
Subject to clause 33.2,
(a) (METHOD OF DELIVERY) and subject to paragraph (d), any notice,
request, certificate, approval, demand, consent or other
communication to be given under this deed must:
(i) except in the case of communications by email, be in
writing and signed by an Authorised Signatory of the
party giving the same; and
(ii) be:
(A) left at the address of the addressee;
(B) sent by prepaid ordinary post to the address
of the addressee;
(C) by facsimile to the facsimile number of the
addressee; or
(D) sent by email by an Authorised Signatory of
the party giving the same to the addressee's
specified email address;
(b) (ADDRESS FOR NOTICES) the address and facsimile number of a
party is the address and facsimile number notified by that party
to the other parties from time to time;
(c) (DEEMED RECEIPT) a notice, request, certificate, demand, consent
or other communication under this deed is deemed to have been
received:
(i) where delivered in person, upon receipt;
(ii) where sent by post, on the 3rd (7th if outside
Australia) day after posting;
(iii) where sent by facsimile, on production by the
dispatching facsimile machine of a transmission report
which indicates that the facsimile was sent in its
entirety to the facsimile number of the recipient; and
(iv) where sent by email, on the date that the email is
received,
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however, if the time of deemed receipt of any notice is not
before 5.30 pm local time on a Business Day at the address of
the recipient it is deemed to have been received at the
commencement of business on the next Business Day; and
(d) (EMAIL) a notice, request, certificate, approval, demand,
consent or other communication to be given under this deed may
only be given by email where the recipient has agreed that that
communication, or communications of that type, may be given by
email.
33.2 NOTICES TO NOTEHOLDERS
(a) A notice, request or other communication by the Trustee, the
Trust Manager or a Servicer to Registered Noteholders shall be
deemed to be duly given or made by:
(i) an advertisement placed on a Business Day in The
Australian Financial Review (or other nationally
distributed newspaper); or
(ii) mail, postage prepaid, to the address of the
Noteholders as shown on the Register. Any notice so
mailed shall be conclusively presumed to have been
duly given whether or not the Noteholder actually
receives the notice.
(b) A notice, request or other communication by the Trustee, the
Trust Manager or a Servicer to Noteholders other than Registered
Noteholders shall be deemed to be duly given or made if given or
made in accordance with the relevant Conditions.
33.3 NOTICES TO DESIGNATED RATING AGENCIES
(a) The Trust Manager shall provide a copy of each notice, request
or other communication by the Trustee, the Trust Manager or a
Servicer to Noteholders in a Trust to each Designated Rating
Agency (if any) for the Trust:
(i) as from time to time agreed in writing with that
Designated Rating Agency; and
(ii) as required by a Transaction Document (including where
a Transaction Document specifies that notice is to be
given to each Designated Rating Agency, but the person
who is to give that notice is not specified).
(b) The Trust Manager, or failing it, the Trustee will notify each
Designated Rating Agency as soon as practicable after all of the
Notes in respect of a Trust have been repaid in full.
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34. PAYMENTS GENERALLY
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34.1 PAYMENTS TO NOTEHOLDERS
(a) Any payment made by or on behalf of the Trustee in respect of
any Registered Note shall be made to the person whose name is,
on the Record Date, entered in the relevant Register as the
registered owner of the relevant Registered Note (or in the case
of joint registered owners, to the person whose name first
appears in the Register).
(b) Any payment by or on behalf of the Trustee in respect of any
Bearer Note shall be made in accordance with the relevant Series
Notice.
34.2 PAYMENT METHODS - REGISTERED NOTES
Any moneys payable by the Trustee, the Trust Manager or a Servicer to a
Registered Noteholder or to a Beneficiary under this deed shall be paid
by the Trustee in Melbourne or Sydney or if the Trustee elects may be
paid by:
(a) (CHEQUE) crossed NOT NEGOTIABLE cheque in favour of the
Registered Noteholder or the Beneficiary (as the case may be)
and despatched by post to the address of the Noteholder shown in
the relevant Register on the Record Date or to the address of
the Beneficiary for the purposes of clause 33;
(b) (ELECTRONIC TRANSFER) electronic transfer through Austraclear;
(c) (DIRECT PAYMENT) by direct transfer to a designated account of
the Registered Noteholder or the Beneficiary held with a bank or
other financial institution in Australia; or
(d) (OTHER AGREED MANNER) any other manner specified by the
Registered Noteholder and agreed to by the Trust Manager and the
Trustee.
34.3 PAYMENT TO BE MADE ON BUSINESS DAY
If any payment is due under a Transaction Document on a day which is
not a Business Day, the due date will be the next Business Day.
34.4 PAYMENT GOOD DISCHARGE
(a) There is a full satisfaction of the moneys payable under a
Registered Note, and a good discharge to the Trustee, the Trust
Manager or a Servicer (as the case may be) in relation to that
Registered Note, when the cheque is despatched by post in
accordance with clause 34.2(a) or, if not posted, delivered to
the Registered Noteholder or as directed by the Registered
Noteholder. None of the Trustee, the Trust Manager or a Servicer
shall be responsible for any moneys which are not credited to
the bank account of a Registered Noteholder or a Beneficiary if
the Trustee's bank has been instructed to effect the direct
transfer referred to in clause 34.2(c).
(b) There is a full satisfaction of the moneys payable under a
Bearer Note, and a good discharge to the Trustee, the Trust
Manager or a
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Servicer (as the case may be) in relation to that Bearer Note,
when so provided under the relevant Series Notice.
34.5 TRUSTEE TO ARRANGE PAYMENTS
The Trustee will:
(a) prepare or cause to be prepared all cheques which are to be
issued to Registered Noteholders and to Beneficiaries and stamp
the same as required by law; or
(b) otherwise arrange payments under clause 34.20.
The Trustee will sign (by autographical, mechanical or other means)
cheques for despatch on the day on which they ought to be despatched.
34.6 VALID RECEIPTS
The receipt of the Trustee for any moneys shall exonerate the person
paying the same from all liability to make any further enquiry. Every
such receipt shall as to the moneys paid or expressed to be received in
such receipt, effectually discharge the person paying such moneys from
such liability or enquiry and from being concerned to see to the
application or being answerable or accountable or any loss or
misapplication of such moneys.
34.7 TAXATION
(a) (NET PAYMENTS) All payments in respect of the Notes shall be
made free and clear of, and without deduction for, or by
reference to, any present or future Taxes of any Australian
Jurisdiction unless required by law.
(b) (INTEREST WITHHOLDING TAX - REGISTERED NOTES) The Trustee or any
person making payments on behalf of the Trustee will be obliged
to deduct interest withholding tax imposed by the Commonwealth
of Australia from payments of interest in respect of the
Registered Notes to non-residents of the Commonwealth of
Australia not carrying on business in the Commonwealth of
Australia at or through a permanent establishment and to
residents of the Commonwealth of Australia (INTEREST WITHHOLDING
TAX) unless a certificate pursuant to Section 221YM of the
Taxation Act is produced to the Trustee not later than close of
business on the tenth Business Day immediately preceding the
relevant payment date. The Trustee, or any person making any
payments on behalf of the Trustee, is entitled to deduct
Interest Withholding Tax in relation to payments on any
Registered Notes.
(c) (INTEREST WITHHOLDING TAX - BEARER NOTES) Payments on Bearer
Notes by or on behalf of the Trustee will be made subject to
deduction for any Interest Withholding Tax and all other
withholdings and deductions referred to in the relevant
Conditions.
(d) (TAX FILE NUMBERS) The Trustee or any person making payments on
behalf of the Trustee will be required to deduct tax-at-source
on interest payments on any Registered Note to each Registered
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Noteholder at the highest personal marginal tax rate unless the
Trustee receives from such Registered Noteholder the Tax File
Number of that Registered Noteholder or evidence of any
exemption the Registered Noteholder may have from the need to
advise the Trustee of a Tax File Number. The Tax File Number or
appropriate evidence (as the case may be) must be received by
the Trustee not less than ten Business Days prior to the
relevant payment date. The Trustee, or any person making any
payments on behalf of the Trustee, is entitled to deduct any
such tax-at-source required to be paid by it in relation to
Registered Notes at that highest personal marginal tax if no Tax
File Number is provided.
35. AMENDMENT
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35.1 AMENDMENT WITHOUT CONSENT
The Trustee, the Trust Manager and a Servicer (in relation to a Trust)
may by way of supplemental deed alter, add to or modify this deed
(including this clause 35) or a Series Notice in respect of any one or
more Trusts so long as such alteration, addition or modification either
complies with clause 35.2 or is:
(a) (CORRECT MANIFEST ERROR) to correct a manifest error or
ambiguity or is of a formal, technical or administrative nature
only;
(b) (COMPLY WITH LAW) necessary to comply with the provisions of any
statute or regulation or with the requirements of any Government
Agency;
(c) (CHANGE IN LAW) appropriate or expedient as a consequence of an
amendment to any statute or regulation or altered requirements
of any Government Agency (including an alteration, addition or
modification which is appropriate or expedient as a consequence
of the enactment of a statute or regulation or an amendment to
any statute or regulation or ruling by the Commissioner or
Deputy Commissioner of Taxation or any governmental announcement
or statement, in any case which has or may have the effect of
altering the manner or basis of taxation of trusts generally or
of trusts similar to any of the Trusts);
(d) (NOT YET CONSTITUTED TRUST) to apply only in respect of a Trust
not yet constituted under this deed; or
(e) (OTHERWISE DESIRABLE) in the opinion of the Trustee desirable to
enable the provisions of this deed to be more conveniently,
advantageously, profitably or economically administered or is
otherwise desirable for any reason.
35.2 AMENDMENT WITH CONSENT
Where in the reasonable opinion of the Trustee a proposed alteration,
addition or modification to this deed (except an alteration, addition
or modification referred to in clause 35.1) is prejudicial or likely to
be prejudicial
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to the interests of the Noteholders or a Class of Noteholders or the
Beneficiaries in particular then constituted Trust such alteration,
addition or modification may only be effected by the Trustee with the
prior consent of the Noteholders or a Class of Noteholders (as the case
may be) in the particular Trust under an Extraordinary Resolution of
the Noteholders or a Class of Noteholders (as the case may be) in the
Trust or with the prior written consent of the Beneficiaries (as the
case may be).
35.3 COPY OF AMENDMENTS TO NOTEHOLDERS
The Trustee shall on request by a Noteholder, provide the Noteholder
with a copy of the supplemental deed effecting any alteration, addition
or modification to this deed.
35.4 COPY OF AMENDMENTS IN ADVANCE TO DESIGNATED RATING AGENCIES
The Trust Manager shall provide a copy of a proposed alteration,
addition or modification to any Transaction Document in relation to a
Trust, where the Transaction Document requires notice be given to the
Designated Rating Agency to each Designated Rating Agency (if any) for
the Trust at least 5 Business Days (or such other period as may from
time to time be agreed by the Trust Manager with the Designated Rating
Agency) prior to any alteration, addition or modification taking
effect.
36. CONFIDENTIALITY
- --------------------------------------------------------------------------------
(a) Each party agrees that:
(i) (A) subject to sub-paragraph (a)(i)(B) and clause
36(b), it will not disclose without the prior
consent of the other (other than to the
directors, employees, auditors, legal
advisors, other professional advisors which
it is entitled to consult under the
Transaction Documents, affiliates or Related
Corporations (collectively, REPRESENTATIVES)
of such party, each of whom shall be informed
by such party of the confidential nature of
the Information and of the terms of this
clause 36:
(1) any information regarding, or copies
of, any Transaction Document or any
transaction contemplated by any
Transaction Document; or
(2) any information regarding an
Approved Seller which information is
furnished by the Approved Seller to
such party and which is designated
by the Approved Seller to such party
in writing as confidential or not
otherwise available to the general
public,
(the information referred to in sub-
paragraphs (a)(i)(A)(1) and (a)(i)(A)(2) is
collectively referred to as the
INFORMATION); and
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
(B) such party may disclose any such Information:
(1) to any other party to this deed for
the purposes contemplated by this
deed;
(2) as may be required by any
Governmental Agency;
(3) in order to comply with any law,
order, regulation, regulatory
request or ruling applicable to such
party (including any request or
requirement of the Australian Stock
Exchange);
(4) subject to clause 36(c), in the
event such party is legally
compelled (by interrogatories,
requests for information or copies,
subpoena, civil investigative demand
or similar process) to disclose any
such Information;
(5) in the case of the Trustee, to a
successor or bona fide potential
successor as trustee of the Trust;
(6) to the Designated Rating Agency;
(7) to the provider, or potential
provider, of a Support Facility;
(8) as required or contemplated by the
Transaction Documents;
(9) in any legal proceedings arising out
of or in connection with any
Transaction Document, as such party
reasonably considers necessary to
protect its interests; or
(10) with the prior written consent of
the other party;
(ii) it will use the Information solely for the purposes of
evaluating, and administering the transactions
contemplated by Transaction Documents, making any
necessary business judgments with respect thereto and
exercising its rights and performing its obligations
under the Transaction Documents and in any event shall
comply with the Privacy Act and all applicable privacy
laws;
(iii) it will, on demand, return (and cause each of its
representatives to return) to the Approved Seller all
documents or other written material received from the
Approved Seller in connection with sub-paragraph
(a)(i)(A)(2) above and all copies thereof made by such
party which contain the Information except to the
extent that such Information forms part of the
business records of that party, or is delivered to
that party pursuant to an obligation to do so under
any Transaction Document.
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
(b) This clause 36 shall be inoperative as to such portions of the
Information which are or become generally available to the
public or such party on a non-confidential basis or were known
to such party on a non-confidential basis prior to its
disclosure by the Approved Seller.
(c) In the event that any party or anyone to whom such party or its
representatives transmits the Information is requested or
becomes legally compelled (by interrogatories, requests for
information or documents, subpoena, civil investigative demand
or similar process) to disclose any of the Information, such
party will:
(i) provide the Approved Seller with prompt written notice
so that the Approved Seller may seek a protective
order or other appropriate remedy and/or waive
compliance with the provisions of this clause 36;
(ii) take such action as required by any protective order
or other appropriate remedy.
(d) This clause 36 shall survive termination of this deed and the
Transaction Documents.
(e) Each party shall ensure that its officers, employees and agents
comply with this clause 36 and any other confidentiality
agreement between any Approved Seller and the Trustee relating
to the transactions contemplated by this deed.
37. MISCELLANEOUS
- --------------------------------------------------------------------------------
37.1 DATA BASE TO BE RETAINED AS CONFIDENTIAL
Each party shall retain as confidential to itself the Data Base in so
far as the same is held by it and shall not disclose the Data Base to
any other person (including any of its Related Corporations) except:
(a) (TRANSACTION DOCUMENTS) as permitted or required by any
Transaction Document or necessary for any party to a Transaction
Document to perform its respective duties and obligations;
(b) (ENFORCEMENT) as required for the enforcement or attempted
enforcement of any Transaction Document, Loan, Loan Security or
Related Securities;
(c) (PROFESSIONAL ADVISORS) to any professional advisor, delegate,
agent or sub-agent of that party under a power contained in a
Transaction Document;
(d) (OFFICERS) to the officers, employees and directors of that
party made in the performance by that party respectively of its
duties and obligations under the Transaction Documents or at
law;
(e) (AUDITORS) to the Auditor of any Trust or as required by the
Auditor of any Trust; or
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
(f) (LAW) as required by law or by any Government Agency or by the
listing rules of any relevant Stock Exchange,
subject in all cases to the Privacy Act.
37.2 CERTIFICATES BY TRUST MANAGER
Any statement or certificate by the Trust Manager in relation to any
act, matter, thing or state of affairs in relation to any of the
Trusts, this deed or any other Transaction Document shall, in the
absence of manifest error be final, be binding and conclusive on the
Trustee, the Beneficiaries, the Noteholders and all other persons.
37.3 WAIVERS, REMEDIES CUMULATIVE
Save as provided in this deed, no failure to exercise and no delay in
exercising on the part of any party of any right, power or privilege
under this deed shall operate as a waiver. Nor shall any single or
partial exercise of any right, power or privilege preclude any other or
further exercise of that or any other right, power or privilege.
37.4 RETENTION OF DOCUMENTS
(a) All Applications for Notes, cancelled Note Acknowledgements,
Note Transfers and instruments of transmission shall be retained
by the Trust Manager (in paper or other form) for such period as
required by law. On the expiration of that period, the document
may be destroyed.
(b) All files in respect of each Loan, Loan Security or Related
Securities and related electronic data storage media held by a
Servicer shall be retained by the Servicer (in paper or other
form) for such period as required by law.
37.5 GOVERNING LAW
This deed shall be governed by and construed in accordance with the
laws of New South Wales. Each of the parties and the Noteholders
submits to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
37.6 SEVERABILITY OF PROVISIONS
Any provision of any Transaction Document which is prohibited or
unenforceable in any jurisdiction is, as to that jurisdiction,
ineffective to the extent of that prohibition or unenforceability. This
does not invalidate the remaining provisions of that Transaction
Document nor affect the validity or enforceability of that provision in
any other jurisdiction.
37.7 COUNTERPARTS
This deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
37.8 INSPECTION
The Noteholders may inspect a copy of this deed, each relevant Series
Notice, Servicing Agreement and Security Trust Deed at the office of
the Trust Manager during normal business hours, but shall not be
entitled to a copy of any of them. However, any person wishing to
inspect these documents must first undertake not to disclose the
contents of the documents without the prior written consent of the
Trust Manager and must first execute an agreement in relation to their
confidentiality in such form as the Trust Manager may require.
37.9 ATTORNEYS
Each attorney executing this deed states that he has no notice of
revocation or suspension of his power of attorney.
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
EXECUTED as a Deed in Sydney.
TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of )
PERPETUAL TRUSTEES )
VICTORIA LIMITED )
by its attorney )
in the presence of: )
-------------------------------------
Signature
- ---------------------------------------- -------------------------------------
Witness Print name
- ----------------------------------------
Print name
TRUST MANAGER
SIGNED SEALED and DELIVERED )
on behalf of )
INTERSTAR SECURITIES )
(AUSTRALIA) PTY LIMITED )
by its attorney )
in the presence of: )
-------------------------------------
Signature
- ---------------------------------------- -------------------------------------
Witness Print name
- ----------------------------------------
Print name
- --------------------------------------------------------------------------------
PAGE 123
MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
SCHEDULE 1
APPLICATION FOR REGISTERED NOTES
- --------------------------------------------------------------------------------
INTERSTAR MILLENNIUM SERIES [*] TRUST
TO: Perpetual Trustees Victoria Limited as trustee of the Interstar
Millennium Series [*] Trust (the TRUSTEE)
FROM: [*] (ACN [*]) of [*] (the APPLICANT).
1. APPLICATION
- --------------------------------------------------------------------------------
The Applicant applies for the following Notes (the NOTES) to be issued
by the Trustee as trustee of the Interstar Millennium Series [*] Trust
(the TRUST) under the Master Trust Deed dated [*] 1999 (as amended from
time to time) establishing the Interstar Millennium Trusts (the MASTER
TRUST DEED):
(a) The Notes applied for are:
(b) The amount of Notes applied for is:
2. APPLICANT BOUND
- --------------------------------------------------------------------------------
The Applicant agrees that the Notes will be issued subject to, and
agrees to be bound by, the provisions of the Master Trust Deed, the
Series Notice in relation to the Notes [and the Security Trust Deed
dated [*] in relation to the Trust].
3. ACKNOWLEDGEMENT BY APPLICANT
- --------------------------------------------------------------------------------
The Applicant acknowledges that the liability of the Trustee to make
payments in respect of the Notes is limited to its right of indemnity
from the assets of the Trust from time to time available to make such
payments under the Master Trust Deed.
The Applicant further acknowledges that:
(c) it has independently and without reliance on the Trustee, the
Trust Manager or any other person (including without reliance on
any materials prepared or distributed by any of the above) made
its own assessment and investigations regarding its investment
in the Notes; and
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
(d) the Applicant's holding of the Notes is subject to investment
risk, including possible delays in repayment and loss of income
and principal invested.
4. GENERAL
- --------------------------------------------------------------------------------
Payments due under the Notes may be made either by cheque posted to the
above address or to the credit of the following account:
Name of Bank:
Address of Bank:
Account Details:
Account No.:
Name of Account:
A Marked Note Transfer of the abovementioned Notes is required: Yes/No.
Applicant's Tax File Number:
5. INTERPRETATION
- --------------------------------------------------------------------------------
Each expression used in this Application for Notes that is not defined
has the same meaning as in the Master Trust Deed.
DATED:
SIGNED:
o This Application for Notes together with a cheque for the amount of
the Notes applied for should be sent to the Trustee at the address
above.
o Where the Applicant is a trustee, this Application for Notes must be
completed in the name of the trustee and signed by the trustee without
reference to the trust.
o Where this Application for Notes is executed by a corporation, it must
be executed either under common seal or under a power of attorney.
o If this Application for Notes is signed under a power of attorney, the
attorney certifies that it has not received notice of revocation of
that power of attorney. A certified copy of the power of attorney must
be lodged with this Application for Notes.
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
SCHEDULE 2
NOTE ACKNOWLEDGEMENT
- --------------------------------------------------------------------------------
INTERSTAR MILLENNIUM TRUST NO. [*]
NAME:
[CLASS]:
INITIAL PRINCIPAL AMOUNT:
INTEREST RATE:
INTEREST PAYMENT DATES:
[PRINCIPAL REPAYMENT DATES]:
MATURITY DATE:
This confirms that:
NOTEHOLDER:
ACN (if applicable):
ADDRESS:
appears in the Register as the holder of the abovementioned Notes (the NOTES).
The Notes are issued by Perpetual Trustees Victoria Limited (ACN 004 027 258)
(the TRUSTEE) in its capacity as trustee of the abovementioned Trust (the TRUST)
under a Master Trust Deed dated [*] 1999 (as amended from time to time)
establishing the Interstar Millennium Trusts (the MASTER TRUST DEED).
The Notes are issued subject to the provisions of the Master Trust Deed, the
Series Notice in relation to the Notes and the Security Trust Deed dated [*] in
relation to the Trust. A copy of the Trust Deed, the Series Notice and the
Security Trust Deed are available for inspection by Noteholders at the offices
of Interstar Securities (Australia) Pty Limited (ACN 087 271 109) (the TRUST
MANAGER) at Level 31, 367 Collins Street, Melbourne, Victoria.
The Trustee's liability to make payments in respect of the Notes is limited to
its right of indemnity from the Assets of the Trust from time to time available
to make such payments under the Master Trust Deed and Series Notice. All claims
against the Trustee in relation to the Notes may only be satisfied out of the
assets of the Trust except in the case of (and to the extent of) any fraud,
negligence or wilful default on the part of the Trustee or its officers,
employees, agents or delegates.
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
The Noteholder is required to accept any distribution of moneys under the
Security Trust Deed in full and final satisfaction of all moneys owing to it,
and any debt represented by any shortfall that exists after any such final
distribution is extinguished.
The Trustee shall not be liable to satisfy any obligations or liabilities from
its personal assets except (and to the extent) of any fraud, negligence or
wilful default on the part of the Trustee or its officers or employees. Neither
the Trustee nor the Trust Manager guarantees the payment of interest or the
repayment of principal due on the Notes.
This Note Acknowledgement is not a certificate of title and the Register is the
only conclusive evidence of the abovementioned Noteholder's entitlement to
Notes.
Transfers of Notes must be under a Note Transfer in the form contained in
Schedule 4 to the Master Trust Deed (copies of which are available from the
Trustee at its abovementioned address). Executed Note Transfers must be
submitted to the Trustee.
Each expression used in this Note Acknowledgement that is not defined has the
same meaning as in the Master Trust Deed.
This Note Acknowledgement and the Notes to which it relates will be governed by
the laws of New South Wales.
EXECUTED in Victoria.
DATED:
- ------------------------
AUTHORISED SIGNATORY
FOR AND ON BEHALF OF PERPETUAL TRUSTEES VICTORIA LIMITED
- --------------------------------------------------------------------------------
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
SCHEDULE 3
NOTE ISSUE DIRECTION
- --------------------------------------------------------------------------------
TO: PERPETUAL TRUSTEES VICTORIA LIMITED (ACN 004 027 258) as trustee of the
Interstar Millennium Series [*] Trust (the TRUSTEE)
FROM: Interstar Securities (Australia) Pty Limited (ACN 087 271 109) (the
TRUST MANAGER)
1. PROPOSAL TO ISSUE NOTES
- --------------------------------------------------------------------------------
Under clause 12.1(a) of the Master Trust Deed dated [*] 1999 (as
amended from time to time) establishing the Interstar Millennium Trusts
(the TRUST DEED) the Trust Manager proposes and directs in this Note
Issue Direction (the NOTE ISSUE DIRECTION) that the Trustee on [*] (the
NOTE ISSUE DATE) will:
(a) hold as trustee of the Interstar Millennium Series [*] Trust
(the TRUST) on the terms of the Trust Deed the benefit of the
Portfolio of Loans specified in [the attached Sale
Notice/Annexure "A"] (the PORTFOLIO OF LOANS);
(b) issue as trustee of the Trust the Notes specified below (the
PROPOSED NOTES):
(i) the name(s), total principal amount, total number and
Subscription Amount of the proposed Notes are as
follows:
(a) Name(s):
(b) Total principal amount:
(c) Total number:
(d) Subscription Amount:
(e) Bearer/Registered Form:
(f) Aggregate Initial Principal
Amount of each Note:
(g) MBS Margin:
(h) [Step-Up Margin:]
(i) Initial Principal Amount:
(j) Rating:
(k) Issue Price:
(l) Maturity Date:
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
(ii) the proposed Notes [will/will not] constitute a Class
separate from any other Notes previously issued by the
Trustee as trustee of the Trust or from any other
proposed Notes referred to in this Note Issue
Direction.
[The details of each Class are as follows:
[SPECIFY INFORMATION IN (I) ABOVE FOR EACH CLASS]]
[(c) pay to [[*] (the APPROVED SELLER) the principal amount of the
Loans relating to the Portfolio of Loans at [date] (the
CUT-OFF DATE) being $[*]; and]
[(d) the Lead Manager for the issue is [ ]].
2. SECURITY TRUST DEED AND SUPPORT FACILITIES
- --------------------------------------------------------------------------------
For the purposes of clause 12.2(a)(viii) of the Trust Deed:
(a) a Security Trust Deed for the Trust [must/need not] be put in
place prior to the Note Issue Date.
(b) the following Support Facilities must be effected prior to the
Note Issue Date:
[INSERT DETAILS]
3. SERIES NOTICE
- --------------------------------------------------------------------------------
The terms of the Series Notice for the proposed Notes [each Class of
the proposed Notes] are contained [in the attached duly completed
Series Notice/in the Series Notice attached to the Note Issue Direction
dated [*]].
4. TRUST MANAGER'S CERTIFICATIONS
- --------------------------------------------------------------------------------
For the purposes of clause 12.6(a) of the Trust Deed, but subject to
the Trust Deed, the Trust Manager certifies to the Trustee that this
Note Issue Direction, and each accompanying Series Notice, complies
with the Trust Deed.
5. INTERPRETATION
- --------------------------------------------------------------------------------
Each expression used in this Note Issue Direction that is not defined
has the same meaning as in the Trust Deed.
DATED:
- ----------------------------
AUTHORISED SIGNATORY
- --------------------------------------------------------------------------------
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
FOR AND ON BEHALF OF INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED
- --------------------------------------------------------------------------------
PAGE 130
MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
RECEIPT
We acknowledge receipt of the above Note Issue Direction.
This acknowledgement shall not constitute a declaration by the Trustee that any
property (including any Loan Security) shall be held on trust for any person.
DATED:
- -------------------------
AUTHORISED SIGNATORY
FOR AND ON BEHALF OF PERPETUAL TRUSTEES VICTORIA LIMITED
- --------------------------------------------------------------------------------
PAGE 131
MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
ANNEXURE "A"
LOANS
[Attach Sale Notice or specify Loans]
- --------------------------------------------------------------------------------
PAGE 132
MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
SCHEDULE 4
NOTE TRANSFER AND ACCEPTANCE
- --------------------------------------------------------------------------------
INTERSTAR MILLENNIUM SERIES [*] TRUST
TO: Perpetual Trustees Victoria Limited Date Lodged [*]
(ACN 004 027 258) as trustee of the REGISTRY USE ONLY
Interstar Millennium Series [*] Trust
(the TRUSTEE)
TRANSFEROR
(Full name, ACN (if applicable) and address):
(please print)
APPLIES TO ASSIGN
AND TRANSFER TO
TRANSFEREE
(Full name, ACN (if applicable) and address):
(please print)
and its/their executors, administrators or assigns
The following Notes in the Interstar Millennium Series [*] Trust
Number of Notes:
Name:
[Class]:
Initial Principal Amount:
Interest Payment Dates:
[Principal Payment Dates]:
Maturity Date:
Settlement Amount: $[*]
and all my/our/its property and interests in rights to those Notes and to the
interest accrued on them.
- --------------------------------------------------------------------------------
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
TRANSFEROR
--------------------------------------------------------
(Signature: see Notes)
WITNESS
-----------------------------------------------------------
DATED:
TRANSFEREE
--------------------------------------------------------
(Signature: see Notes)
WITNESS
-----------------------------------------------------------
DATED:
PAYMENTS (Tick where appropriate)
o In accordance with existing instructions (existing holders only)
o By cheque posted to the above address
o By credit to the following account in Australia in the name of the
Transferee only
Tax File Number (if applicable):
Authorised signature of Transferee
-------------------------------------
Date:
NOTES:
1. The Transferor and the Transferee acknowledge that the transfer of the
Notes specified in this Transfer and Acceptance (the NOTES) shall only
take effect on the entry of the Transferee's name in the Register as the
registered owner of the Notes.
2. The Transferee agrees to accept the Notes subject to the provisions of
the Master Trust Deed dated [*] 1999 (as amended from time to time)
establishing the Interstar Millennium Trusts (the TRUST DEED), the Series
Notice in relation to the Notes [and the related Security Trust Deed
dated [*].]
3. The Transferee acknowledges that it has independently and without
reliance on the Trustee, Interstar Securities (Australia) Pty Limited
(ACN 087 271 109) (the TRUST MANAGER) or any other person (including
without reliance on any materials prepared or distributed by any of the
above) made its own assessment and investigations regarding its
investment in the Notes.
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
4. The Trustee's liability to make payments in respect of the Notes is
limited to its right of indemnity from the assets of the abovementioned
Trust from time to time available to make such payments under the Trust
Deed.
5. Where the Transferor and/or the Transferee is a trustee, this Note
Transfer must be completed in the name of the trustee and signed by the
trustee without reference to the trust.
6. Where this Note Transfer is executed by a corporation, it must be
executed either under common seal or under a power of attorney.
7. If this Transfer and Acceptance is signed under a power of attorney, the
attorney certifies that it has not received notice of revocation of that
power of attorney. A certified copy of the power of attorney must be
lodged with this Note Transfer.
8. This Note Transfer must be lodged with the Trustee for registration.
9. The Trustee may, in the manner and for the periods specified in the Trust
Deed and any relevant Series Notice, close the Register. The total period
that the Register may be closed will not exceed 30 days (or such other
period agreed to by the Trust Manager) in aggregate in any calendar year.
No Note Transfer received after 4.00 pm Melbourne time on the day of
closure of the Register or whilst the Register is closed will be
registered until the Register is re-opened.
10. If the Transferee is a non-resident for Australian taxation purposes,
withholding tax will be deducted from all interest payments unless an
exemption is provided to the Trustee [or withholding tax is no longer
payable as a result of any change in the relevant Australian laws.]
11. [INSERT ANY RESTRICTIONS ON THE TRANSFER OF NOTES.]
[MARKING WHERE CLAUSE 13.4(M) APPLIES]
12. The Trustee certifies that the Transferor is inscribed in the Register as
the holder of the Notes specified in this Note Transfer and that it will
not register any transfer of such Notes other than under this Note
Transfer before [insert date].
DATED:
- ---------------------------------
AUTHORISED SIGNATORY
FOR AND ON BEHALF OF [*] LIMITED
- --------------------------------------------------------------------------------
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
SCHEDULE 5
NOTICE OF CREATION OF TRUST
- --------------------------------------------------------------------------------
TO: Perpetual Trustees Victoria Limited (ACN 004 027 258) (the TRUSTEE)
FROM: Interstar Securities (Australia) Pty Limited (ACN 087 271 109) (the
TRUST MANAGER)
Under clause 3.2(a)(i) of the Master Trust Deed dated [*] 1999 between the
Trustee as trustee and the Trust Manager as trust manager establishing the
Interstar Millennium Trusts (as amended from time to time) (the MASTER TRUST
DEED) the Trust Manager gives notice of the creation of a Trust under the Master
Trust Deed to be known as the INTERSTAR MILLENNIUM SERIES [*] TRUST [or such
other name as the Trust Manager and the Trustee have agreed under clause 3.3(b)
of the Master Trust Deed].
The Interstar Millennium Series [*] Trust will be a TRUST for the purposes of
the Master Trust Deed.
This Notice of Creation of Trust is accompanied by $10.00 from [*] in accordance
with clause 3.2(a)(ii) of the Master Trust Deed. [The Trustee must issue a
residual capital unit to [*]]
The Beneficiary of the Trust is [NAME], of [ADDRESS] [GIVE DETAILS OF UNITS AND
OTHER BENEFICIARIES, IF ANY]
Terms defined in the Master Trust Deed have the same meaning when used in this
Notice.
DATED:
- ------------------------------
AUTHORISED SIGNATORY
FOR AND ON BEHALF OF INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED
DATED:
- ------------------------------
AUTHORISED SIGNATORY
FOR AND ON BEHALF OF PERPETUAL TRUSTEES VICTORIA LIMITED
- --------------------------------------------------------------------------------
PAGE 136
MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
SCHEDULE 6
VERIFICATION CERTIFICATE
- --------------------------------------------------------------------------------
TO: Perpetual Trustees Victoria Limited (ACN 004 027 258) as trustee of the
Interstar Millennium Series [*] Trust (the TRUSTEE).
INTERSTAR MILLENNIUM TRUSTS
I [*] am a [director/secretary/Authorised Signatory] of [*] Limited of [*] (the
COMPANY).
I refer to the Master Trust Deed (the MASTER TRUST DEED) to be entered into
between the Trustee as trustee and Interstar Securities (Australia) Pty Limited
as Trust Manager.
Definitions in the Master Trust Deed apply in this Certificate.
I CERTIFY as follows.
1. Attached to this Certificate are complete and up to date copies of:
(a) the constitution of the Company (marked A); and
(b) a duly stamped and registered power of attorney granted by the
Company for the execution of each Transaction Document to
which it is expressed to be a party (marked B). That power of
attorney has not been revoked or suspended by the Company and
remains in full force and effect.
2. The following are signatures of the Authorised Signatories of the
Company and the persons who have been authorised to sign each
Transaction Document to which it is expressed to be a party and to give
notices and communications under or in connection with the Transaction
Documents.
AUTHORISED SIGNATORIES
NAME POSITION SIGNATURE
- --------------------------------------------------------------------------------
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
DATED:
- -------------------------------
[DIRECTOR/SECRETARY/AUTHORISED SIGNATORY]
PRINT NAME:
- --------------------------------------------------------------------------------
PAGE 138
MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
ANNEXURE A
SALE NOTICE
- --------------------------------------------------------------------------------
TO: Perpetual Trustees Victoria Limited (ACN 004 027 258) as
trustee of the Interstar Millennium Series [*] Trust (the
TRUSTEE)
Attention: [*]
FROM: [*]
(the APPROVED SELLER)
Dear Sirs
MASTER TRUST DEED
We refer to the Master Trust Deed (the MASTER TRUST DEED) dated [*] between the
Trustee and Interstar Securities (Australia) Pty Limited (ACN 087 271 109) and
the Series Notice issued under the Master Trust Deed in relation to the [*]
Trust (the SERIES NOTICE).
1. DEFINITIONS AND INTERPRETATION
- --------------------------------------------------------------------------------
1.1 DEFINITIONS
Terms defined in the Master Trust Deed and the Series Notice shall have
the same meaning in this Sale Notice unless the context otherwise
requires except that:
CLOSING DATE means [ ].
CUT-OFF DATE means [ ].
EXPIRY TIME means 4:00pm on [*].
OFFERED LOAN INTEREST means that part of the Offered Loan Rights which
consists of the Approved Seller's right, title, benefit, interest
(present and future) in, to, under or derived from any Loan Security
and the Related Loans. [FOR LAND ONLY]
OFFERED LOAN RIGHTS means the Approved Seller's right, title and
interest in and to the Loans and Loan Securities described in the
attached electronic data storage media and/or printout, and the related
Loan Rights, except to the extent of the exclusion in paragraphs (c)
and (d) of the definition of Loan Rights.
PURCHASE PRICE means [ ].
A reference to any clause is a reference to that clause in this Sale
Notice.
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
1.2 INTERPRETATION
The provisions of the Master Trust Deed will apply to any contract
formed if the offer contained in this Sale Notice is accepted.
2. OFFER
- --------------------------------------------------------------------------------
Subject to the terms and conditions of this Sale Notice, the Approved
Seller, as beneficial owner, offers to sell and assign the Offered Loan
Rights (free from any Security Interest) to the Trustee for the
Purchase Price.
3. ACCEPTANCE
- --------------------------------------------------------------------------------
(a) The offer in clause 2 is irrevocable during the period up to and
including the Expiry Time.
(b) The Trustee may accept the offer contained in this Sale Notice
at any time prior to the Expiry Time by, and only by, the
payment by the Trustee to the Approved Seller (or as it
directs) of $[*] in same day funds [by bank cheque] [to the
following bank account: [*], Account Number [*].]
(c) Notwithstanding:
(i) satisfaction of all relevant conditions precedent; or
(ii) any negotiations undertaken between the Approved
Seller and the Trustee prior to the Trustee accepting
the offer contained in this Sale Notice,
the Trustee is not obliged to accept the offer contained in
this Sale Notice and no contract for the sale or purchase of
any Offered Loan Rights will arise unless and until the
Trustee accepts the offer contained in the Sale Notice in
accordance with this clause.
(d) The offer contained in this Sale Notice may only be accepted
in relation to all the Offered Loan Rights.
(e) On the acceptance of the offer contained in this Sale Notice,
the Trustee shall:
(i) subject to the Master Trust Deed and any relevant
Series Notice, hold the legal and beneficial interest
in the Offered Loan Rights on and from the Closing
Date, free of any set-off or counterclaim; and
(ii) not assume any obligation under the Offered Loan
Rights.
4. CONSIDERATION
- --------------------------------------------------------------------------------
[(a) If the Trustee accepts the offer in this Sale Notice, the
Purchase Price shall be divided between the property purchased
as follows:
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
(i) the lesser of $100 or 5% of the Purchase Price to that
part of the Offered Loan Rights which is not part of
the Offered Loan Interest; and
(ii) the balance to the Offered Loan Interest.] [ONLY FOR
MORTGAGES]
[(b) On the payment of the Purchase Price, the Trustee shall ensure
that any Interest Adjustment (as defined in the Series Notice)
is made in accordance with the Master Trust Deed and any
relevant Series Notice.]
[(c) After the Closing Date, the Approved Seller will on the next
Payment Date pay to the Trustee, as an adjustment to the
Purchase Price, an amount equal to the amount of any principal
received by the Approved Seller in relation to the Purchased
Loans from the close of business on the Cut-Off Date to but
excluding the Closing Date. Such payment will be discharged by
the Trust Manager or the Servicer depositing such amount in
the relevant Collection Account.]
5. ACKNOWLEDGEMENT
- --------------------------------------------------------------------------------
The Approved Seller acknowledges, agrees and confirms to the Trustee
that:
(a) (MASTER TRUST DEED BINDING ON IT) the Master Trust Deed is a
valid and binding obligation of the Approved Seller
enforceable in accordance with its terms;
(b) (REPEAT REPRESENTATIONS) the Approved Seller repeats the
representations and warranties made by it in clause 8.5 of the
Master Trust Deed in so far as they apply to the Offered Loan
Rights;
(c) (DESCRIPTION OF LOANS)
(i) a description of the Loans and Loan Securities is in
the attached electronic data storage media and/or
printout; [and
(ii) each Loan or Loan Security included or referred to in
the Offered Loan Rights constitutes an Eligible Loan;]
(d) (NO INSOLVENCY) no Insolvency Event with respect to it is
subsisting as at the date of this Sale Notice nor, if the
offer is accepted, will there be any Insolvency Event
subsisting at the date the offer is accepted or the date the
purchase price is paid nor will any Insolvency Event result
from the offer evidenced by this Sale Notice or the transfer
of the Offered Loan Rights; and
(e) (AUTHORISATIONS) all necessary Authorisations for the offer
evidenced by this Sale Notice and the transfer of the Offered
Loan Rights have been taken, or as the case may be, obtained.
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
6. [MEMORANDUM OF SALE OF OFFERED LOAN INTEREST
- --------------------------------------------------------------------------------
Accompanying this Sale Notice is a Memorandum of the Agreement (in the
form of annexure C to the Master Trust Deed) in relation to Loan
Securities relating to Mortgaged Property in Queensland, Western
Australia and Tasmania, which the Approved Seller undertakes it will,
if the Trustee accepts the offer of sale in this Sale Notice, execute
and within 30 days lodge for stamping and then return to the Trustee
duly stamped.]
7. GOVERNING LAW
- --------------------------------------------------------------------------------
This Sale Notice is governed by the laws of New South Wales.
- -------------------------------
AUTHORISED SIGNATORY
FOR AND ON BEHALF OF [*]
- --------------------------------------------------------------------------------
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
ANNEXURE B
SELLER ACCESSION CERTIFICATE
- --------------------------------------------------------------------------------
DATE
- -------------
PARTIES
- -------------
1. [*] (ACN [*]) of [*] (the APPROVED SELLER);
2. PERPETUAL TRUSTEES VICTORIA LIMITED (ACN 004 027 258 of Level 4,
333 Collins Street, Melbourne, Victoria (the TRUSTEE); and
3. INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED (ACN 087 271 109)
of 367 Collins Street, Melbourne, Victoria (the TRUST MANAGER).
RECITALS
- -------------
Under a Master Trust Deed (the MASTER TRUST DEED) dated [*] 1999
between the Trustee and the Trust Manager, Trusts may be
established to purchase Loans from the Approved Seller.
- --------------------------------------------------------------------------------
IT IS AGREED as follows.
1. In this deed terms defined in the Master Trust Deed have the same
meaning.
2. The Approved Seller shall as and from the date of this deed be an
Approved Seller for the purposes of the Master Trust Deed as if named
as a party to the Master Trust Deed in the capacity of an Approved
Seller. The Approved Seller agrees to comply with the Master Trust Deed
(including clause 8.5). All the terms and conditions of it shall bind
the Approved Seller accordingly, and it shall be entitled to all rights
of an Approved Seller under the Master Trust Deed.
3. This deed is governed by the laws of New South Wales.
4. Each attorney executing this deed states that he has no notice of the
revocation of his power of attorney.
- --------------------------------------------------------------------------------
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
APPROVED SELLER
SIGNED SEALED and DELIVERED )
on behalf of )
[*] )
by its attorney )
in the presence of: )
------------------------------------
Signature
- ----------------------------------------- ------------------------------------
Witness Print name
- -----------------------------------------
Print name
TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of )
PERPETUAL TRUSTEES )
VICTORIA LIMITED )
by its attorney )
in the presence of: )
------------------------------------
Signature
- ----------------------------------------- ------------------------------------
Witness Print name
- -----------------------------------------
Print name
TRUST MANAGER
THE COMMON SEAL of )
INTERSTAR SECURITIES )
(AUSTRALIA) PTY LIMITED
was duly affixed in the presence of: )
- ----------------------------------------- ------------------------------------
Signature Signature
- ----------------------------------------- ------------------------------------
Print name Print name
- ----------------------------------------- ------------------------------------
Office held Office held
- --------------------------------------------------------------------------------
PAGE 144
MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
ANNEXURE C
MEMORANDUM OF AGREEMENT
- --------------------------------------------------------------------------------
DATE
- -------------
PARTIES
- -------------
1. [*] (ACN [*]) of [*] (the APPROVED SELLER), and
2. PERPETUAL TRUSTEES VICTORIA LIMITED (ACN 004 027 258) of Level
4, 333 Collins Street, Melbourne, Victoria as trustee of the
Interstar Millennium Series [*] Trust (the TRUSTEE).
- --------------------------------------------------------------------------------
IT IS AGREED as follows.
The Approved Seller and the Trustee agree that the Approved Seller has sold to
the Trustee any beneficial interest in the Approved Seller's right, title,
benefit and interest (present and future) in, to, under or derived from any Loan
Security listed in the First Schedule and certain collections under those Loan
Securities for the consideration specified in the Second Schedule.
FIRST SCHEDULE
(Loan Securities)
(LIST ALL MORTGAGES)
SECOND SCHEDULE
(Consideration)
The consideration payable by the Trustee for the sale of the Loan Securities was
A$[*] and any further amounts as agreed between the parties.
- -------------------------------------------------
AUTHORISED SIGNATORY OF THE APPROVED SELLER
- -------------------------------------------------
AUTHORISED SIGNATORY OF THE TRUSTEE
- --------------------------------------------------------------------------------
PAGE 145
MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
ANNEXURE D
SERIES NOTICE
- --------------------------------------------------------------------------------
SEE ANNEXURE E OF THE MASTER TRUST DEED
FOR DETAILS TO BE INCLUDED
INTERSTAR MILLENNIUM SERIES [*] TRUST
SERIES NOTICE
1. INTRODUCTION
- --------------------------------------------------------------------------------
This Series Notice is issued on [*] 1999 pursuant to and subject to the
Master Trust Deed dated [*] (the MASTER TRUST DEED) between:
PERPETUAL TRUSTEES VICTORIA LIMITED (ACN 004 027 258) of Level 4, 333
Collins Street, Melbourne, Victoria in its capacity as trustee of the
Interstar Millennium Series [*]Trust (the TRUSTEE);
INTERSTAR SECURITIES (AUSTRALIA) PTY LIMITED (ACN 087 271 109) of Level
31, 367 Collins Street, Melbourne, Victoria in its capacity as Trust
Manager (the TRUST MANAGER);
[*] (ACN [*]) of [*] (the SERVICER);
[*] (ACN [*]) of [*] (the APPROVED SELLER); and
[[*] (ACN [*]) of [*] (the SECURITY TRUSTEE)].
This Series Notice is issued by the Trust Manager and applies in
respect of Interstar Millennium Series [*] Trust.
Each party to this Series Notice agrees to be bound by the Transaction
Documents as amended by this Series Notice in the capacity set out with
respect to them in this Series Notice or the Master Trust Deed.
The parties agree that each Approved Seller is to be an Approved Seller
for the purposes of the Master Trust Deed, this Series Notice and the
other Transaction Documents for the Trust.
The parties agree that the Servicer is to be a Servicer for the
purposes of the Master Trust Deed, this Series Notice and the other
Transaction Documents for the Trust.
[The parties agree that the Security Trustee is to be a Security
Trustee for the purposes of the Master Trust Deed, this Series Notice
and other Transaction Documents for the Trust.]
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
2. TRUST
- --------------------------------------------------------------------------------
The parties agree that the Trust will be a TRUST for the purposes of
the Transaction Documents.
3. DEFINITIONS AND INTERPRETATION
- --------------------------------------------------------------------------------
3.1 DEFINITIONS
Unless otherwise defined in this Series Notice, words and phrases
defined in the Master Trust Deed have the same meaning where used in
this Series Notice.
In this Series Notice, and for the purposes of the definitions in the
Master Trust Deed, the following terms have the following meanings
unless the contrary intention appears. These definitions apply only in
relation to the Interstar Millennium Series [*]Trust, and do not apply
to any other Trust (as defined in the Master Trust Deed).
[*]
3.2 INTERPRETATION
Clause 1.2 of the Master Trust Deed is incorporated into this Series
Notice as if set out in full, except that any reference to DEED is
replaced by a reference to SERIES NOTICE.
3.3 LIABILITY
(a) (GENERAL)
Clause 32 of the Master Trust Deed applies to the
obligations and liabilities of the Trustee and the Trust
Manager under this Series Notice.
(b) (LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT OF INDEMNITY)
Without limiting the generality of paragraph (a), clause
32.16 of the Master Trust Deed is incorporated into this
Series Notice as if set out in full, except that any
reference to DEED is replaced by a reference to SERIES
NOTICE and any reference to TRUST refers to the Trust.
4. NOTES
- --------------------------------------------------------------------------------
[*]
5. [CLASS A1 NOTES]
- --------------------------------------------------------------------------------
[*]
- --------------------------------------------------------------------------------
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
6. CASHFLOW ALLOCATION METHODOLOGY
- --------------------------------------------------------------------------------
[*]
7. MASTER TRUST DEED
- --------------------------------------------------------------------------------
7.1 COMPLETION OF DETAILS IN RELATION TO MASTER TRUST DEED
(a) (TRUST MANAGER'S FEE)
[*]
(b) (TRUSTEE'S FEE)
[*]
(c) (SERVICING FEE)
[*]
7.2 AMENDMENTS TO MASTER TRUST DEED
The Master Trust Deed is amended for the purpose of the Interstar
Millennium Series [*] Trust as follows:
[*]
8. TRANSFERS TO OTHER TRUST
- --------------------------------------------------------------------------------
[The Trust Manager may, from time to time, direct the Trustee to
transfer a Loan held by the Trustee to any Other Trust. That transfer:
(a) must be in accordance with clause 7 of the Master Trust Deed and
the Series Notice for that Other Trust;
(b) must be for a consideration equal to the Unpaid Balance of that
Loan;
(c) must not involve the transfer of a Loan which is in Arrears; and
(d) may only be made if there are funds available to that Other
Trust to enable that Other Trust to pay the necessary
consideration for the transfer.
The Trustee must comply with that direction.]
9. BENEFICIARY
- --------------------------------------------------------------------------------
[*]
10. ATTORNEYS
- --------------------------------------------------------------------------------
Each attorney executing this deed states that he or she has no notice of
revocation or suspension of his or her power of attorney.
- --------------------------------------------------------------------------------
PAGE 148
MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
EXECUTED as a deed in Melbourne.
TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of )
PERPETUAL TRUSTEES VICTORIA LIMITED )
)
by its attorney )
in the presence of: )
----------------------------------
Signature
- ------------------------------------------- ----------------------------------
Witness Print name
- -------------------------------------------
Print name
TRUST MANAGER
THE COMMON SEAL of )
INTERSTAR SECURITIES )
(AUSTRALIA) PTY LIMITED
was duly affixed in the presence of: )
- ------------------------------------------- ----------------------------------
Signature Signature
- ------------------------------------------- ----------------------------------
Print name Print name
- ------------------------------------------- ----------------------------------
Office held Office held
APPROVED SELLER
SIGNED SEALED and DELIVERED )
on behalf of )
[*] )
by its attorney )
in the presence of: )
----------------------------------
Signature
- ------------------------------------------- ----------------------------------
Witness Print name
- -------------------------------------------
Print name
- --------------------------------------------------------------------------------
PAGE 149
MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
SERVICER
[*]
[SECURITY TRUSTEE]
[*]
- --------------------------------------------------------------------------------
PAGE 150
MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
SCHEDULE *
An Eligible Loan means a Loan which, as at the Cut-Off Date for that
Loan has the following characteristics:
[*]
- --------------------------------------------------------------------------------
PAGE 151
MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
ANNEXURE E
SERIES NOTICE CHECKLIST
- --------------------------------------------------------------------------------
CLAUSE 1.1 DEFINITIONS:
APPROVED BANK
AUTHORISED INVESTMENTS
AUTHORISED SIGNATORY
BEARER NOTE
CLOSING DATE
COLLECTION ACCOUNT
COLLECTIONS
CONDITIONS
CUT-OFF DATE
DEALER AGREEMENT
DEFINITIVE NOTE
ELIGIBILITY CRITERIA
ENFORCEMENT EXPENSES
EXPENSE
EXTRAORDINARY RESOLUTION
FINAL MATURITY DATE
GLOBAL NOTE
HEDGE AGREEMENT
INFORMATION MEMORANDUM
INITIAL PRINCIPAL AMOUNT
- --------------------------------------------------------------------------------
PAGE 152
MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
INTEREST
INTEREST PAYMENT DATE
PRINCIPAL AMOUNT
LIQUIDITY FACILITY AGREEMENT
MATURITY DATE
MORTGAGE INSURER
NOTEHOLDER
PRINCIPAL ENTITLEMENT
PRINCIPAL REPAYMENT DATE
RECORD DATE
REGISTERED NOTE
RELATED SECURITY
RELEVANT DOCUMENT
SERVICER'S REPORT information and format
SUPPORT FACILITY
INVESTMENT RATE
TRANSACTION DOCUMENT
TRUST MANAGER'S REPORT information and format
UNPAID BALANCE
Clause 1.2(l) Business Day
Clause 2.1 Appointment of Trustee
Clause 3.1(b) Beneficiary's unit(s)
Clause 3.5(e) restrictions relating to Seller Note on sale proceeds
Clause 3.5(h) cashflow allocation methodology
Clause 4.1 restrictions on Authorised Investments
- --------------------------------------------------------------------------------
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
Clause 4.2 investment recommendation
Clause 4.10(a) segregation of Assets contrary to Trust Deed
Clause 5.1 Borrowing contrary to Trust Deed
Clause 5.3 direction as to redraws
Clause 6 origination procedure
Clause 7.1 transfers between Trusts
Clause 8.4(a)(iii) other conditions precedent to sale
Clause 8.5(a)(vii) Approved Seller representations
Clause 8.6(a)(i) Approved Seller undertakings
Clause 8.8(a)(i) accrued interest to Approved Seller, together with relevant date
Clause 8.8(a)(ii) principal received by Approved Seller, together with relevant date
Clause 8.9(b) Substitution and representatives and warranties
Clause 9.1 entry in Register contrary to Trust Deed.
Clause 9.2 definitions of Bearer Notes, Definitive Notes, Temporary Global
Notes or Permanent Global Notes
Clause 9.4 paying interest or principal contrary to Trust Deed
Clause 9.7 any discrimination between Noteholders
Clause 10.1 Seller Note
Clause 11.2 if Beneficiary interest is not assignable
Clause 12.1(a) period for Note Issue Direction if not 3 Business Days
Clause 12.1(b) other conditions precedent to issue of Notes
Clause 12.2 requirement for Series Notice with each Note Issue Direction
Clause 12.2(a)(xiii) additional information in Note Issuance Direction
Clause 12.3 information to be included: Clause 12.3(a) is mandatory; clause 12.3(b) is optional
Clause 12.7 Dealer Agreement
- --------------------------------------------------------------------------------
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MASTER TRUST DEED ALLEN ALLEN & HEMSLEY
- --------------------------------------------------------------------------------
Clause 12.8(d) rating specified
Clause 12.9 procedure for issue of Notes to be in accordance with Series
Notice
Clause 13.1 restrictions on Note transfer
Clause 13.3(b) minimum transfer amount
Clause 14.1 timing of Note Acknowledgement
Clause 15.1(k) additional information required in the Register
Clause 15.5 periods for closing of Register
Clause 16.1 Bearer Noteholder meeting provisions
Clause 16.2 override meeting provisions in Trust Deed?
Clause 16.12(a) other powers of Extraordinary Resolution
Clause 17.1(a) additional provisions relating to Trust Manager
Clause 17.10 publication by Reuters
Clause 17.16(b) and (c) when drawings to be made under Support Facilities
Clause 17.20(g) calculate Investment Rate
Clause 18 Trust Manager's fee
Clause 19.5 Resignation of Trust Manager
Clause 21.8(a) if Trustee is not Custodian
Clause 22.1 Trustee's fee
Clause 22.2 reimbursement of Trustee's expenses
Clause 23.5 resignation of Trustee
Clause 26.8 deposits if contrary to Trust Deed
Clause 29.1 applying income and capital of Trust
Clause 29.2(c) distribution of Distributable Income
Clause 29.4 manner in which shortfalls are to be borne by Noteholders
Clause 32.18 non Approved Seller nominated as credit provider
Clause 34.1(b) payment by Trustee in respect of any Bearer Note
Clause 34.4 good discharge in relation to Bearer Note
- --------------------------------------------------------------------------------
PAGE 155