Series Notice
Perpetual Trustees Victoria Limited
Interstar Securitisation Management Pty Limited
Interstar Securities (Australia) Pty Limited
Perpetual Trustee Company Limited
The Bank of New York, New York branch
Interstar Millennium Trusts
Interstar Millennium Series 2003-3G Trust
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
www.aar.com.au
(C) Copyright Allens Arthur Robinson 2003
Series Notice [ALLENS ARTHUR ROBINSON LOGO]
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Table of Contents
1. Introduction 1
2. Trust 1
3. Definitions and interpretation 1
3.1 Definitions 1
3.2 Interpretation 21
1.3 Liability 22
1.4 Business Day 23
4. Notes 23
4.1 Conditions of Notes 23
4.2 Summary of conditions of Notes 23
1.3 Issue of Notes 25
1.4 Trustee's Covenant to Noteholders 25
1.5 Repayment of Notes on Principal Repayment Dates 26
1.6 Final Redemption 26
1.7 Period during which interest accrues 27
1.8 Calculation of Interest 27
1.9 Aggregate receipts 27
1.10 Ownership of Notes 27
1.11 Taxation 28
5. Class A1 Notes 28
5.1 Note Issue Direction for Class A1 Notes 28
5.2 Conditions to Note Issue Direction 28
5.3 Terms of Note Issue Direction 28
6. Cashflow Allocation Methodology 28
6.1 General 28
6.2 Calculations 29
6.3 Redraws 30
6.4 Liquid Authorised Investments 30
6.5 Interest and other payments 31
6.6 Repayments of Principal Amount and Redemption of Notes 35
6.7 Charge-offs 41
6.8 Payments into US$ Account 41
6.9 Payments out of US$ Account 41
6.10 Payments into Euro Account 42
6.11 Payments out of Euro Account 42
6.12 Rounding of amounts 43
6.13 Prescription 43
6.14 Replacement of Currency Swaps 43
6.15 Payment Priorities Following enforcement of the Security Trust Deed 44
7. Master Trust Deed, Investment Management Agreement and Representations,
Warranties and Undertakings 44
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7.1 Completion of details in relation to Master Trust Deed 44
7.2 Amendments to Master Trust Deed 46
7.3 Amendments to Investment Management Agreement 57
7.4 Additional Representations and Warranties - Approved Seller and Trustee 59
7.5 Additional Representations and Warranties - Trust Manager 61
7.6 Additional Undertakings - Trustee 61
7.7 Additional Undertakings - Trust Manager and Servicer 62
7.8 Additional Representations and Warranties (Loans) - Servicer 64
7.9 Repetition of Representations, Warranties and Undertakings 66
8. Transfers to Other Trust 66
9. Prefunding 66
10. Beneficiary 67
10.1 Issue of Units 67
10.2 Residual Capital Unit 67
10.3 Residual Income Unit 68
10.4 Register 68
10.5 Transfer of Units 69
10.6 Limit on rights 69
11. Note Trustee 69
11.1 Capacity 69
11.2 Exercise of Rights 69
11.3 Representation and warranty 69
11.4 Payments 70
12. Tax Reform [to be confirmed by KPMG] 70
12.1 Taxation of trusts and consolidated groups 70
12.2 Amending Bill - taxation of trusts 71
12.3 Group tax liabilities 71
12.4 Evidence of tax sharing agreement 72
12.5 Objective 72
12.6 Beneficiaries 72
13. Attorneys 72
14. Governing Law 73
15. Ancilliary Facilities 73
15.1 Ancillary Facilities 73
15.2 Record keeping obligations of Trust Manager 74
Schedule 1 76
Schedule 2 80
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Interstar Millennium Series 2003-3G Trust
1. Introduction
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This Series Notice is issued on [*] 2003 pursuant to and subject to the
Master Trust Deed dated 2 December 1999 (the Master Trust Deed) between:
Perpetual Trustees Victoria Limited (ABN 42 004 027 258) of Level 4, 333
Collins Street, Melbourne, Victoria in its capacity as trustee of Interstar
Millennium Series 2003-3G Trust (the Trustee);
Interstar Securitisation Management Pty Limited (ABN 56 100 346 898) of
Level 28, 367 Collins Street, Melbourne, Victoria in its capacity as Trust
Manager (the Trust Manager);
Interstar Securities (Australia) Pty Limited (ABN 72 087 271 109) of Level
28, 367 Collins Street, Melbourne, Victoria in its capacity as Servicer
(the Servicer);
Interstar Securities (Australia) Pty Limited (ABN 72 087 271 109) of Level
28, 367 Collins Street, Melbourne, Victoria (the Approved Seller);
Perpetual Trustee Company Limited (ABN 42 000 001 007) of Level 7, 39
Hunter Street, Sydney, New South Wales (the Security Trustee); and
The Bank of New York, New York branch of 101 Barclay Street, 21W, New York,
New York 10286 (the Calculation Agent, the Principal Paying Agent and the
Note Registrar and, in its capacity as trustee for the Non-A$ Noteholders,
the Note Trustee). This Series Notice is issued by the Trust Manager and
applies in respect of the Interstar Millennium Series 2003-3G 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 the 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.
2. Trust
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The parties agree that the Trust will be a Trust for the purposes of the
Transaction Documents.
3. Definitions and interpretation
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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.
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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 Trust, and do not apply to any other Trust (as defined in the Master
Trust Deed).
A$ Exchange Rate means, on any date:
(a) in relation to the Class A2 Notes, the rate of exchange (set as at the
commencement of the Class A2 Currency Swap) applicable under the Class
A2 Currency Swap for the exchange of US dollars for Australian
dollars;
(b) in relation to the Class A3 Notes, the rate of exchange (set as at the
commencement of the Class A3 Currency Swap) applicable under the Class
A3 Currency Swap for the exchange of Euros for Australian dollars; and
(b) in relation to the Class B1 Notes, the rate of exchange (set as at the
commencement of the Class B1 Currency Swap) applicable under the Class
B1 Currency Swap for the exchange of US dollars for Australian
dollars.
Acceptable Insurance Policy means a policy of insurance effected by the
Servicer:
(a) with an insurance company whose claims paying ability has an assigned
rating of not less than BBB by S&P and Baa2 by Moody's or is otherwise
acceptable to Moody's; and
(b) which provides insurance cover (for an amount of not less than
A$500,000) to the Servicer in relation to the payment of any Penalty
Payment (as defined in clause 32.18 of the Master Trust Deed) by the
Servicer.
Additional Repayment means any repayment of principal made by an Obligor
under a Loan held by the Trustee which is in addition to the scheduled
repayments or instalments which the Obligor is legally obliged to make in
accordance with the terms of the Obligor's Loan Agreement.
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, (including the withdrawal,
qualification or downgrade of the rating of a Note by any Designated Rating
Agency).
Agency Agreement means the Agency Agreement dated on or about the date of
this Series Notice between the Principal Paying Agent, the Note Registrar,
the Calculation Agent, the Trustee, the Note Trustee and the Trust Manager.
Aggregate Principal Loss Amount means, in relation to a Collection Period,
an amount equal to the aggregate of all Principal Losses for that
Collection Period.
Ancillary Facility means any of the following facilities provided to the
Obligors in relation to the Loans of the Trust:
(a) cheque book facility;
(b) paperless direct debit facility;
(c) paperless direct credit facility;
(d) credit card facility;
(e) debit card facility;
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(f) deposit facility;
(g) payment facility known as "BPAY"; or
(h) any other credit or financial facility or form of financial
accommodation to those Obligors.
Ancillary Facility Document means any document from time to time in
relation to an Ancillary Facility and includes:
(a) the Cheque Deposit and Direct Paperless Entry Facilities Agreement
between NAB, the Servicer and Perpetual Trustees Victoria Limited (the
Facilities Agreement);
(b) the Collateral Agreement between NAB, the Servicer and Perpetual
Trustees Victoria Limited; and
(c) the Consent Deed between NAB, Interstar Nominees (B) Pty Limited,
Interstar Nominees (N) Pty Limited; Interstar Nominees (R) Pty
Limited, the Servicer, Interstar Home Loan Corporation Pty Ltd,
Perpetual Trustees Victoria Limited, Perpetual Trustee Company Limited
and the Warehouse Financiers listed in that document,
in relation to the provision of Ancillary Facilities.
Approved Bank means a Bank which has a short term rating of at least A-1+
from S&P and P-1 from Moody's and which is approved by the Trust Manager in
writing.
Approved Seller's Fee has the meaning given in clause 7.1(c).
Arrears subsist in relation to a Loan held by the Trustee if the Obligor
under that Loan fails to pay any amount due under that Loan on the day it
was due.
Asset means any asset of the Trust from time to time including any Loan,
Mortgage or Related Security specified in a Sale Notice which are to be
acquired in favour of the Trust, or any Authorised Investment acquired by
the Trust or the Trustee's rights under any Support Facility.
Authorised Investments has the meaning given to it in the Master Trust Deed
(as amended by this Series Notice) and includes deposits by the Trustee
with an Approved Bank as contemplated under any Ancillary Facility Document
and Liquid Authorised Investments.
Authorised Signatory means:
(a) in relation to the Trustee or the Security Trustee, a director,
secretary or duly appointed attorney of the Trustee or Security
Trustee (as the case may be) or an officer of the Trustee or Security
Trustee (as the case may be) whose title contains the word 'director',
'manager' or 'counsel' or a person performing the functions of any of
them;
(b) in relation to the Trust Manager, the Servicer or the Approved Seller,
a director, secretary or duly appointed attorney of the Trust Manager,
the Servicer or the Approved Seller (as the case may be) or any other
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 the Trust Manager, the Servicer or the
Approved Seller (as the case may be) confirming that person's
appointment as an Authorised Signatory for the purposes of the Trust;
and
(c) in relation to the Note Trustee, any officer within the corporate
trust department of the Note Trustee, including any vice president,
assistant vice president, treasurer, assistant treasurer, trust
officer or any other officer of the Note Trustee who customarily
performs functions
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similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for
the administration of the trust constituted by the Note Trust Deed.
Authorised Swap Provider means a counterparty rated at least A-1 (short
term) by S&P and A2 (long term) or P-1 (short term) by Moody's.
Bank means:
(a) a corporation authorised under the Banking Act 1959 (Cth) 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;
(b) a person authorised under the Financial Services and Markets Act 2000
(UK) to carry on a business of accepting deposits; or
(c) a banking institution or trust company organised or doing business
under the laws of the United States of America or any state of it.
Bank Bill Rate means as at any date the rate per cent per annum being the
average of the buying and selling rates for a three month bill quoted on
the page designated "BBSW" of the Reuters Monitor System at or about 10.30
am (Melbourne time) on that date by each person so quoting (but not less
than five) and rounding the resultant figure upwards to four decimal
places, provided that if in respect of any date the Bank Bill Rate cannot
be determined because fewer than five persons have quoted rates or a rate
is not displayed for a term equivalent to that period, then the Bank Bill
Rate for that date shall mean such rate as determined by the Trust Manager
or a Financial Advisor nominated by the Trust Manager having regard to
comparable indices then available. In the event that any such date is not a
Business Day, then the Bank Bill Rate applicable on that date shall be
deemed to be the Bank Bill Rate which is applicable on the Business Day
next succeeding that date. A certificate signed by the Trust Manager or a
Financial Advisor nominated by the Trust Manager certifying as to the Bank
Bill Rate on any date shall be final and conclusive evidence thereof in the
absence of manifest error.
Bearer Note means, for the purpose of the Master Trust Deed, each Class A3
Note.
Beneficiary means, in relation to the Trust, each holder of a Unit (as
defined in clause 10).
Beneficiary Distribution means a distribution to a Residual Income
Beneficiary under clause 6.5(a)(xii), clause 6.6(a)(i)(E), clause
6.6(b)(iv) or clause 6.6(c)(iv).
Break Costs means any break costs or payments in the nature of compensation
which are payable by the Trustee to a Swap Provider consequent upon the
early termination of a Hedge Agreement and where such break costs or
compensation are not recoverable by the Trustee from any other person.
Without limiting the foregoing, Break Costs do not include any costs or
payments payable to a Swap Provider by the Trustee to the extent such costs
or payments are recoverable by the Trustee from Break Payments.
Break Payment means any amount owed by an Obligor under a Loan which is
subject to a fixed rate of interest and which amount is owed following
payment by that Obligor of any principal before the due date for that
principal, in accordance with the terms of the relevant Loan Agreement (and
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includes any amount owed by the relevant Mortgage Insurer with respect to
the obligation of that Obligor to pay any such amount).
Business Day means any day, other than a Saturday, Sunday or public
holiday, on which Banks are open for business in London, New York City,
Melbourne and Sydney.
Calculation Agent means initially The Bank of New York, New York branch or
such other person appointed as calculation agent under the Agency
Agreement.
Carryover Charge-off means, in relation to a Payment Date, the aggregate
amount of all Charge-offs made prior to that Payment Date and which have
not been reduced under clause 6.5(a)(ix) prior to that Payment Date.
Charge-off means, in relation to a Payment Date, the amount (if any) by
which the Aggregate Principal Loss Amount for the corresponding Collection
Period exceeds the amount allocated or available for allocation on that
Payment Date under clause 6.5(a)(viii).
Class A Note means a Note issued as a Class A1 Note, a Class A2 Note, a
Class A3 Note or a Class A4 Note with the characteristics of a Class A1
Note, a Class A2 Note, a Class A3 Note or a Class A4 Note (as the case may
be) under this Series Notice.
Class A Noteholder means a Noteholder of a Class A Note.
Class A1 Note means a Note issued as a Class A1 Note by the Trustee with
the characteristics of a Class A1 Note under this Series Notice.
Class A1 Noteholder means a Noteholder of a Class A1 Note.
Class A2 A$ Equivalent means, in relation to an amount denominated or to be
denominated in US$:
(a) prior to the termination of the Class A2 Currency Swap, the amount
converted to (and denominated in) A$ at the A$ Exchange Rate in
relation to the Class A2 Notes; and
(b) after the termination of the Class A2 Currency Swap, the amount that,
when converted into US dollars at the then-prevailing spot exchange
rate in New York City for Australian dollar purchases of US dollars,
will equal the US dollar amount owing in respect of principal or
interest, as applicable, on the Class A2 Notes to be paid from or by
reference to such amount.
Class A2 A$ Interest Amount means, in relation to a Payment Date, the
amount in Australian dollars calculated as follows:
(a) on a daily basis at a rate equal to the aggregate of the Bank Bill
Rate and the Spread (as defined in the Class A2 Currency Swap) for the
relevant Interest Period;
(b) on the Class A2 A$ Equivalent of the Principal Amount of the Class A2
Notes as at the first day of the Interest Period ending on that
Payment Date; and
(c) on the basis of the actual number of days in the relevant Interest
Period and a year of 365 days.
Class A2 Currency Swap means, in relation to the Class A2 Notes, the
currency swap agreement entered into between the Class A2 Currency Swap
Provider, the Trust Manager and the Trustee dated on or about the date of
this Series Notice, together with the schedules and confirmations with
respect thereto and any replacement Class A2 Currency Swap entered into in
accordance with the Transaction Documents.
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Class A2 Currency Swap Provider means initially Barclays Bank PLC and
subsequently any replacement currency swap provider appointed in accordance
with the Transaction Documents.
Class A2 Downgrade has the same meaning as Downgrade in the Class A2
Currency Swap.
Class A2 Global Note means any global note issued or to be issued by the
Trustee under the Note Trust Deed representing Class A2 Notes.
Class A2 Note means a Note issued as a Class A2 Note by the Trustee with
the characteristics of a Class A2 Note under this Series Notice.
Class A2 Noteholder means a Noteholder of a Class A2 Note.
Class A2 Note Owner means, with respect to a Class A2 Global Note, the
person who is the beneficial owner of such Class A2 Global Note, as
reflected on the books of the relevant Clearing Agency, or on the books of
the person maintaining an account with such Clearing Agency (directly as
Clearing Agency Participant or as an indirect participant) in each case in
accordance with the rules of such Clearing Agency.
Class A3 A$ Equivalent means, in relation to an amount denominated or to be
denominated in Euros:
(a) prior to the termination of the Class A3 Currency Swap, the amount
converted to (and denominated in) A$ at the A$ Exchange Rate in
relation to the Class A3 Notes; and
(b) after the termination of the Class A3 Currency Swap, the amount that,
when converted into Euros at the then-prevailing spot exchange rate in
London for Australian dollar purchases of Euros, will equal the Euro
amount owing in respect of principal or interest, as applicable, on
the Class A3 Notes to be paid from or by reference to such amount.
Class A3 A$ Interest Amount means, in relation to a Payment Date, the
amount in Australian dollars calculated as follows:
(a) on a daily basis at a rate equal to the aggregate of the Bank Bill
Rate and the Spread (as defined in the Class A3 Currency Swap) for the
relevant Interest Period;
(b) on the Class A3 A$ Equivalent of the Principal Amount of the Class A3
Notes as at the first day of the Interest Period ending on that
Payment Date; and
(c) on the basis of the actual number of days in the relevant Interest
Period and a year of 365 days.
Class A3 Currency Swap means, in relation to the Class A3 Notes, the
currency swap agreement entered into between the Class A3 Currency Swap
Provider, the Trust Manager and the Trustee dated on or about the date of
this Series Notice, together with the schedules and confirmations with
respect thereto and any replacement Class A3 Currency Swap entered into in
accordance with the Transaction Documents.
Class A3 Currency Swap Provider means initially Barclays Bank PLC and
subsequently any replacement currency swap provider appointed in accordance
with the Transaction Documents.
Class A3 Downgrade has the same meaning as Downgrade in the Class A3
Currency Swap.
Class A3 Global Note means the Temporary Class A3 Global Note or the
Permanent Class A3 Global Note.
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Class A3 Note means a Note issued as a Class A3 Note by the Trustee with
the characteristics of a Class A3 Note under this Series Notice.
Class A3 Noteholder means a Noteholder of a Class A3 Note.
Class A3 Note Owner means, with respect to a Class A3 Global Note, the
person who is the beneficial owner of such Class A3 Global Note, as
reflected on the books of the relevant Clearing Agency, or on the books of
the person maintaining an account with such Clearing Agency (directly as
Clearing Agency Participant or as an indirect participant) in each case in
accordance with the rules of such Clearing Agency.
Class A4 Note means a Note issued as a Class A4 Note by the Trustee with
the characteristics of a Class A4 Note under this Series Notice.
Class A4 Noteholder means a Noteholder of a Class A4 Note.
Class B Note means a Note issued as a Class B1 Note or a Class B2 Note with
the characteristics of a Class B1 Note or a Class B2 Note (as the case may
be) under this Series Notice.
Class B Noteholder means a Noteholder of a Class B Note.
Class B1 A$ Equivalent means, in relation to an amount denominated or to be
denominated in US$:
(a) prior to the termination of the Class B1 Currency Swap, the amount
converted to (and denominated in) A$ at the A$ Exchange Rate in
relation to the Class B1 Notes; and
(b) after the termination of the Class B1 Currency Swap, the amount that,
when converted into US dollars at the then-prevailing spot exchange
rate in New York City for Australian dollar purchases of US dollars,
will equal the US dollar amount owing in respect of principal or
interest, as applicable, on the Class B1 Notes to be paid from or by
reference to such amount.
Class B1 A$ Interest Amount means, in relation to a Payment Date, the
amount in Australian dollars calculated as follows:
(a) on a daily basis at a rate equal to the aggregate of the Bank Bill
Rate and the Spread (as defined in the Class B1 Currency Swap) for the
relevant Interest Period;
(b) on the Class B1 A$ Equivalent of the Principal Amount of the Class B1
Notes as at the first day of the Interest Period ending on that
Payment Date; and
(c) on the basis of the actual number of days in the relevant Interest
Period and a year of 365 days.
Class B1 Currency Swap means, in relation to the Class B1 Notes, the
currency swap agreement entered into between the Class B1 Currency Swap
Provider, the Trust Manager and the Trustee dated on or about this Series
Notice, together with the schedules and confirmations with respect thereto
and any replacement Class B1 Currency Swap entered into in accordance with
the Transaction Documents.
Class B1 Currency Swap Provider means initially Barclays Bank PLC and
subsequently any replacement currency swap provider appointed in accordance
with the Transaction Documents.
Class B1 Downgrade has the same meaning as Downgrade in the Class B1
Currency Swap.
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Class B1 Global Note means any global note issued or to be issued by the
Trustee under the Note Trust Deed representing Class B1 Notes.
Class B1 Note means a Note issued as a Class B1 Note by the Trustee with
the characteristics of a Class B1 Note under this Series Notice.
Class B1 Noteholder means a Noteholder of a Class B1 Note.
Class B1 Note Owner means, with respect to a Class B1 Global Note, the
person who is the beneficial owner of such Class B1 Global Note, as
reflected on the books of the relevant Clearing Agency, or on the books of
the person maintaining an account with such Clearing Agency (directly as
Clearing Agency Participant or as an indirect participant) in each case in
accordance with the rules of such Clearing Agency.
Class B2 Note means a Note issued as a Class B2 Note by the Trustee with
the characteristics of a Class B2 Note under this Series Notice.
Class B2 Noteholder means a Noteholder of a Class B2 Note.
Clearing Agency means:
(a) in relation to the US Notes, an organisation registered as a clearing
agency pursuant to section 17A of the Exchange Act appointed by the
Trust Manager and the Trustee to hold Notes (directly or through a
Common Depository), and initially means DTC;
(b) in relation to the Class A3 Notes, Euroclear or Clearstream,
Luxembourg (directly or through a Common Depository); and
(c) in relation to the Class A4 Notes and the Class B2 Notes, Austraclear
(directly or through a registry agent or other agent).
Clearing Agency Participant means a broker, dealer, bank, other financial
institution or other person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Clearstream, Luxembourg means Clearstream Banking, societe anonyme.
Closing Date means, in relation to the Trust and any Purchased Loan, the
date specified in the Sale Notice for that Purchased Loan as the Closing
Date or where a Sale Notice is not required by the Master Trust Deed to be
delivered, as specified in the procedures for transfer agreed in accordance
with the Master Trust Deed.
Collection Account means, in relation to the Trust, an account with NAB for
so long as it is an Approved Bank or any other account, opened and
maintained by the Trustee with an Approved Bank under clause 26 of the
Master Trust Deed.
Collection Period means, in relation to a Payment Date other than the first
and final Payment Dates, the period from (and including) the date which is
6 Business Days before the Payment Date preceding that Payment Date to (but
excluding) the date which is 6 Business Days before that Payment Date. The
first Collection Period is the period from (but excluding) the first
Cut-Off Date to (and including) [*] 2003. The Collection Period in relation
to the final Payment Date is the period from (and including) the date which
is 6 Business Days before the Payment Date immediately prior to that final
Payment Date to (but excluding) [the date which is 6 Business Days
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before] that final Payment Date. [Shouldn't final period run to final
Payment Date? Otherwise there's a 6 day gap]
Collections means, in relation to the Trust for a period, Income and
Mortgage Principal Repayments for that period.
Common Depository means:
(a) in relation to US$ Notes, Cede & Co, as nominee for DTC or any
Clearing Agency appointed from time to time to be (or to have its
nominee be) the registered owner of a Global Note; and
(b) in relation to Class A3 Notes, [*] as common depository for Euroclear
and Clearstream, Luxembourg, or any other common depository for
Euroclear and Clearstream, Luxembourg appointed from time to time to
hold any Class A3 Notes.
Conditions means, in relation to a Non-A$ Note, the terms and conditions of
that Non-A$ Note, as annexed to the Note Trust Deed.
Corporations Act means the Corporations Act 2001 (Cth).
Coupon has the meaning given in the Note Trust Deed.
Couponholder has the meaning given in the Note Trust Deed.
Currency Swap means the Class A2 Currency Swap, the Class A3 Currency Swap
or the Class B1 Currency Swap.
Currency Swap Provider means the Class A2 Currency Swap Provider, the Class
A3 Currency Swap Provider or the Class B1 Currency Swap Provider.
Cut-Off Date means:
(a) in relation to any Purchased Loan, the date specified as the Cut-Off
Date for that Purchased Loan in the relevant Sale Notice;
(b) in relation to any Loan originated in accordance with clause 9(b)(ii),
the date for that Loan so specified in the relevant Trust Manager's
direction; or
(c) in relation to any Purchased Loan where a Sale Notice is not required
by the Master Trust Deed to be delivered, as specified in the
procedures for transfer agreed in accordance with the Master Trust
Deed.
Dealer means each of Barclays Capital Inc and [*].
Dealer Agreement means the Dealer Agreement dated on or about the date of
this Series Notice between the Trustee, the Trust Manager, Interstar
Securities (Australia) Pty Limited and the Dealers in relation to the issue
of the Class A4 Notes and the Class B2 Notes.
Defaulting Party has:
(a) in relation to the Interest Rate Swap, the meaning given in the
Interest Rate Swap; and
(b) in relation to a Currency Swap, the meaning given in that Currency
Swap.
Definitive Note means:
(a) a US$ Note in definitive form issued or to be issued in respect of any
US$ Note; or
(b) a Class A3 Note in definitive form issued or to be issued in respect
of any Class A3 Note,
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under, and in the limited circumstances specified in, the Note Trust Deed
and includes any replacement for a Definitive Note issued under the
relevant Conditions.
Designated Rating Agency means S&P and Moody's. [TO BE CONFIRMED WHETHER
MOODY'S WILL RATE SUBORDINATED NOTES]
DTC means The Depository Trust Company.
Eligibility Criteria means the criteria set out in schedule 1.
Enforcement Expenses means the costs and expenses incurred by the Approved
Seller or the Servicer in connection with the enforcement of any Purchased
Loans or the related Loan Rights.
EURIBOR means, in relation to any Interest Period for a Class A3 Note, the
rate EUR-EURIBOR-Telerate (as defined in the ISDA Definitions) being
applicable for deposits in Euros for a period of 3 months which appears on
the Telerate Page 248 as of 11.00 am, Brussels time, on the relevant Rate
Reset Date. If such rate does not appear on the Telerate Page 248, the rate
for that Interest Period will be determined as if the Trustee and the
Calculation Agent had specified EU-EURIBOR-Reference Banks as the
applicable Floating Rate Option under the ISDA Definitions.
EU-EURIBOR-Reference Banks means that the rate for an Interest Period for a
Class A3 Note will be determined on the basis of the rates at which
deposits in Euros are offered by four major banks in the Euro-zone
interbank market agreed to by the Calculation Agent and the relevant
Currency Swap Provider (the Reference Banks) at approximately 11.00 am,
Brussels time, on the relevant Rate Reset Date to prime banks in the
Euro-zone interbank market for a period of 3 months commencing on the first
day of the Interest Period and in a Representative Amount (as defined in
the ISDA Definitions). The Calculation Agent will request the principal
Euro-zone office of each of the Reference Banks to provide a quotation of
its rate. If at least two such quotations are provided by Reference Banks
to the Calculation Agent, the rate for that Interest Period will be the
arithmetic mean of the quotations. If fewer than two quotations are
provided by Reference Banks to the Calculation Agent following the
Calculation Agent's request, the rate for that Interest Period will be the
arithmetic mean of the rates quoted by four major banks in the Euro-zone,
selected by the Calculation Agent and the relevant Currency Swap Provider,
at approximately 11.00 am, Brussels time, on that Rate Reset Date for loans
in Euros to leading European banks for a period of 3 months commencing on
the first day of the Interest Period and in a Representative Amount. If no
such rates are available in the Euro-zone, then the rate for such Interest
Period will be the most recently determined rate in accordance with this
definition.
Euro Account means the Euro account opened and maintained for the purposes
of the Trust with the Principal Paying Agent (so long as the Principal
Paying Agent is an Approved Bank) or with such other person who is an
Approved Bank.
Euroclear means Euroclear Bank S.A./N.V. as operator of the Euroclear
System.
Excess Spread means, in relation to the Trust and each Other Trust, all
amounts available to be distributed to Interstar Securities (Australia) Pty
Limited in its capacity as a beneficiary of the Trust or that Other Trust
(as the case may be) under or in respect of the Trust or that Other Trust
(as the case may be).
Exchange Act means the United States Securities Exchange Act of 1934, as
amended.
Expenses has the meaning in the Master Trust Deed and includes any
Trustee's Fee, any Trust Manager's Fee, any Servicer's Fee, any fees and
other amounts payable by the Trustee to the Note
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Trustee, the Calculation Agent, a Paying Agent or the Note Registrar under
the Transaction Documents and any amounts payable or incurred by the
Trustee, the Trust Manager or the Servicer in relation to the Trust under
any Ancillary Facility but excluding:
(a) any Redraw; and
(b) any amounts required to be applied under clause 6 of the Facilities
Agreement to maintain the minimum balance required to be standing in
credit in the Trust Drawings Account (as defined in the Facilities
Agreement).
Expenses Margin means the percentage as determined by the Servicer
representing a margin to assist with the payment of Expenses and sufficient
to allow each Designated Rating Agency to affirm the ratings on the Notes.
Financial Advisor means a financial institution which is, in the reasonable
opinion of the Trust Manager, experienced and competent in the assessment
of investment cash flows and the provision of financial advice in relation
thereto.
Global Note means a Class A2 Global Note, a Class A3 Global Note or a Class
B1 Global Note.
GST means any goods and services tax, broad based consumption tax or value
added tax imposed by any Government Agency and includes any goods and
services tax payable under the A New Tax System (Goods and Services Tax)
Act 1999.
Hedge Agreement in relation to the Trust, includes an Interest Rate Swap
and a Currency Swap.
Income means, in relation to a Collection Period, all moneys, rights and
property which is received by the Trustee during that Collection Period by
way of interest or otherwise in the nature of income in respect of the
Authorised Investments and, without limiting the generality of the
foregoing, includes:
(a) amounts attributable to interest received under Hedge Agreements;
(b) interest on Income and any other moneys received;
(c) amounts in the nature of, or attributable to, interest derived under a
Support Facility (other than a Hedge Agreement);
(d) any Break Payments received from Obligors or Mortgage Insurers; and
(e) interest and fees received from Obligors.
Income Percentage means, in relation to a Residual Income Beneficiary at
any time, the subscription price paid by that Residual Income Beneficiary
for all Residual Income Units held by that Residual Income Beneficiary
divided by the total subscription prices of all Residual Income Units
recorded in the Register maintained under clause 10.4 at that time,
expressed as a percentage.
Information Memorandum means:
(a) in relation to the US$ Notes, the prospectus relating to those US$
Notes dated [*] 2003;
(b) in relation to the Class A3 Notes, the offering circular relating to
those Class A3 Notes dated on or about [*] 2003;
(c) in relation to the Class A4 Notes and the Class B2 Notes, the
information memorandum relating to those the Class A4 Notes and those
Class B2 Notes dated on or about [*] 2003; and
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(d) in relation to Class A1 Notes, any information memorandum, prospectus
or other selling or distribution information relating to those Class
A1 Notes,
and includes any supplement to or amendment of that prospectus, offering
circular or information memorandum (as the case may be).
Initial Principal Amount means, in respect of a Note, the amount specified
in clause 4.2 as the Initial Principal Amount for that Note.
Interest means, in respect of a Note and an Interest Period for a Note, all
interest accrued on the Note in respect of that Interest Period in
accordance with clause 4.8.
Interest Adjustment means, in relation to the Approved Seller, all interest
and fees accrued on the Purchased Loans, purchased from the Approved
Seller, up to (but excluding) the Closing Date for those Purchased Loans
which are unpaid as at the close of business on that Closing Date.
Interest Payment Date means, for the purposes of the Master Trust Deed, and
each Note, each Payment Date.
Interest Period means in relation to a Note and:
(a) the first Interest Period for that Note, the period commencing on (and
including) the issue date of that Note and ending on (but excluding)
the first Payment Date;
(b) the final Interest Period for that Note, the period commencing on (and
including) the Payment Date prior to the earlier of the Maturity Date
and the date on which that Note is redeemed in accordance with its
terms and ending on (but excluding) the Maturity Date and the date on
which that Note is so redeemed (as the case may be); and
(c) each other Interest Period for that Note, each period commencing on
(and including) a Payment Date and ending on (but excluding) the next
Payment Date.
Interest Rate means:
(a) in relation to a US$ Note and an Interest Period for that US$ Note:
(i) LIBOR on the relevant Rate Reset Date for that Interest Period;
plus
(ii) the MBS Margin for that US$ Note; plus
(iii) from (and including) the Step-Up Margin Date, the Step-Up Margin
for that US$ Note;
(b) in relation to a Class A3 Note and an Interest Period for that Class
A3 Note:
(i) EURIBOR on the relevant Rate Reset Date for that Interest Period;
plus
(ii) the MBS Margin for that Class A3 Note; plus
(iii) from (and including) the Step-Up Margin Date, the Step-Up Margin
for that Class A3 Note;
(c) in relation to a Class A4 Note or a Class B2 Note and an Interest
Period for that Class A4 Note or Class B2 Note:
(i) the Bank Bill Rate on the relevant Rate Reset Date for that
Interest Period; plus
(ii) the relevant MBS Margin for that Class A4 Note or Class B2 Note
(as the case may be); plus
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(iii) from (and including) the Step-Up Margin Date, the relevant
Step-Up Margin for that Class A4 Note or Class B2 Note (as the
case may be); and
(d) in relation to a Class A1 Note and an Interest Period for that Class
A1 Note, the interest rate specified in respect of that Class A1 Note
at its issue.
Interest Rate Swap means any interest rate swap agreement between a party
which is an Authorised Swap Provider on the date the swap agreement is
entered into, the Trust Manager and the Trustee, together with the
schedules and confirmations with respect thereto, in relation to the
interest rate risk arising from a Loan which at any time bears a fixed rate
of interest as at that time.
Interest Rate Swap Provider means a counterparty who enters into an
Interest Rate Swap with the Trustee.
Investment Rate means the rate determined as the Investment Rate from time
to time under this Series Notice and the Servicing Agreement.
ISDA means the International Swaps and Derivatives Association, Inc.
ISDA Definitions means the 2000 ISDA definitions, as amended and updated as
at the Note Issue Date.
LIBOR means, in relation to any Interest Period for a US$ Note, the rate
applicable for deposits in US dollars for a period of 3 months which
appears on the Telerate Page 3750 as of 11.00 am, London time, on the
relevant Rate Reset Date. If such rate does not appear on the Telerate Page
3750, the rate for that Interest Period will be determined as if the
Trustee and the Calculation Agent had specified USD-LIBOR-Reference Banks
as the applicable Floating Rate Option under the ISDA Definitions.
USD-LIBOR-Reference Banks means that the rate for an Interest Period for a
US$ Note will be determined on the basis of the rates at which deposits in
US dollars are offered by four major banks in the London interbank market
agreed to by the Calculation Agent and the relevant Currency Swap Provider
(the Reference Banks) at approximately 11.00 am, London time, on the
relevant Rate Reset Date to prime banks in the London interbank market for
a period of 3 months commencing on the first day of the Interest Period and
in a Representative Amount (as defined in the ISDA Definitions). The
Calculation Agent will request the principal London office of each of the
Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided by Reference Banks to the Calculation Agent, the
rate for that Interest Period will be the arithmetic mean of the
quotations. If fewer than two quotations are provided by Reference Banks to
the Calculation Agent following the Calculation Agent's request, the rate
for that Interest Period will be the arithmetic mean of the rates quoted by
four major banks in New York City, selected by the Calculation Agent and
the relevant Currency Swap Provider, at approximately 11.00 am, New York
City time, on that Rate Reset Date for loans in US dollars to leading
European banks for a period of 3 months commencing on the first day of the
Interest Period and in a Representative Amount. If no such rates are
available in New York City, then the rate for such Interest Period will be
the most recently determined rate in accordance with this definition.
Line of Credit Commitment means as at any date the then amortised facility
limit under an Interstar "Line of Credit" Access Account Loan (as referred
to in schedule 2) (or under an Interstar "Split" Access Account Loan (as
referred to in schedule 2) which has the general characteristics of the
Interstar "Split" Access Account Loan (as referred to in schedule 2)) which
forms part of the Assets of the Trust.
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Liquid Authorised Investments as at any date means any of the following
Authorised Investments:
(a) Bills, promissory notes or other negotiable instruments accepted drawn
or endorsed by a Bank which has a short term rating of at least A-1+
from S&P and P-1 from Moody's which is approved by the Trust Manager
in writing;
(b) cash and/or deposits with an Approved Bank, or the acquisition of
certificates of deposit or any other debt security issued by a Bank
which has a short term rating of at least A-1+ from S&P and P-1 from
Moody's which is approved by the Trust Manager in writing;
(c) loan securities issued, secured or guaranteed by the Government of
Australia or any State or Territory within the Commonwealth of
Australia;
(d) any other Authorised Investments of a type approved by each Designated
Rating Agency.
Liquidated Loan means a Purchased Loan with respect to which a default has
occurred and the Trust Manager has determined that all Liquidation Proceeds
likely to be recoverable have been recovered, having regard to:
(a) the enforcement of the Mortgage and any Loan Security in relation to
that Purchased Loan;
(b) any sale of the Land subject to the Mortgage in relation to that
Purchased Loan;
(c) any proceeds paid on the compulsory acquisition of that Land by any
Government Agency;
(d) any payments received from any relevant Obligor on account of any
amount outstanding under that Purchased Loan;
(e) such other matters as the Trust Manager reasonably determines to be
relevant.
Liquidation Loss means, in relation to a Purchased Loan which becomes a
Liquidated Loan during a Collection Period, the Unpaid Balance of that
Purchased Loan after the application of all Liquidation Proceeds relating
to that Purchased Loan, including any Enforcement Expenses in respect of
that Purchased Loan.
Liquidation Proceeds means, in relation to a Purchased Loan, the amount
received by or on behalf of the Trustee in connection with the liquidation
of such Purchased Loan including, without limitation:
(a) proceeds arising from the enforcement of the Mortgage in relation to
that Purchased Loan and sale of the Land subject to that Mortgage;
(b) proceeds arising from the enforcement of any Loan Security in relation
to that Purchased Loan;
(c) the proceeds of any claim under the relevant Mortgage Insurance Policy
or Title Insurance Policy; and
(d) proceeds arising from any resumption or compulsory acquisition of the
relevant Land by any Government Agency.
Liquidity Purposes includes:
(a) replenishing Liquid Authorised Investments to maintain the Prescribed
Minimum Level under clause 6.6(a)(i)(B);
(b) funding Redraws under clause 6.3; and
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(c) funding advances to Obligors under any Loan Agreement which provides
for a line of credit facility or revolving credit facility.
Loan means, in relation to the Trust, the rights of the Approved Seller or
the Trustee (as the case may require) under or in respect of Loans (as
defined in the Master Trust Deed) which are acceptable to the Trustee (in
all cases in the form certified by the Approved Seller before the Sale
Notice, where those rights are to be acquired from the Approved Seller,
other than Perpetual Trustees Victoria Limited as trustee of any trust, is
or was given, and as certified thereafter from time to time).
Loan Amount means, in relation to a Loan held by the Trustee, the principal
amount of that Loan from time to time.
Loan to Value Ratio means, in relation to a Loan, the ratio (expressed as a
percentage) which the outstanding amount of the Loan secured or to be
secured by the related Mortgage bears to the value of the Land mortgaged or
to be mortgaged both at the time the Obligor entered into the relevant Loan
Agreement.
Low Doc Loan means a Loan that [*].
Maturity Date means, for all Notes, the maturity date specified in clause
4.2.
MBS Margin means, in relation to a Note, the margin specified in clause 4.2
as the MBS Margin for that Note.
Mortgage Insurance Policy means, in relation to a Loan, an insurance
contract issued by a Mortgage Insurer which:
(a) insures, during the whole of the proposed term of the Loan, against
the risk of default by an Obligor covering:
(i) the whole of the Loan Amount due under the Loan;
(ii) any reasonable expenses incurred in enforcing the Loan and
relevant Loan Securities;
(iii) any unpaid interest calculated at the interest rate applicable
if interest is paid on the due date; and
(iv) the timely payment for a period of at least 12 months after the
date upon which a claim is made under that contract of interest
payments under the Loan which remain outstanding for a period of
14 days;
(b) provides that if the Loan is subject to the Consumer Credit
Legislation then the obligation of the Mortgage Insurer to pay the
amounts above cannot be reduced or denied consequent upon a court or
tribunal making an order under the Consumer Credit Legislation for a
change to the terms of the Loan or the relevant credit contract
relating to that Loan; and
(c) provides for the Trustee as the insured party.
Mortgage Insurer means PMI Indemnity Limited (ABN 49 000 781 171), GE
Capital Mortgage Insurance Corporation (Australia) Pty Ltd (ABN 52 081 488
440), the Commonwealth of Australia, PMI Mortgage Insurance Ltd (formerly
MGICA Ltd) (ABN 70 000 511 071) or such other corporation or corporations
as approved from time to time by the Trust Manager and each Designated
Rating Agency.
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Mortgage Principal Repayments means, in relation to a Collection Period,
all amounts received by the Trustee during that Collection Period in
connection with a Loan or Loan Security being:
(a) in respect of the repayment of any part of the Loan Amount under the
Loan;
(b) any net receipts of a principal or capital nature received in respect
of any enforcement or recovery proceedings in respect of the Loan or
Loan Security;
(c) any net receipts of a principal or capital nature under a Support
Facility in respect of the Loan or Loan Security;
(d) any other amount which, under clause 6.5(a)(vii) or 9(c), is to be
treated as a Mortgage Principal Repayment received by the Trustee
during that Collection Period; and
(e) any other amount received on, under or in relation to the Loan or Loan
Security and which is not Income.
NAB means National Australia Bank Limited.
Non-A$ Note means a US$ Note or a Class A3 Note.
Non-A $ Noteholder means a Noteholder of a Non-A$ Note.
Non-Liquid Authorised Investments means Authorised Investments other than
Liquid Authorised Investments.
Note means a note referred to in clause 4.
Noteholder means the person who:
(a) in relation to a Definitive Note or a Global Note for a US$ Note at
any time, is registered in the Note Register as the holder of that
Definitive Note or Global Note (as the case may be) at that time;
(b) in relation to a Definitive Note at any time for a Class A3 Note,
bears that Note at that time;
(c) in relation to a Class A3 Note which is represented by a Global Note
at any time, at that time is shown on the records of Euroclear and
Clearstream, Luxembourg (other than Clearstream, Luxembourg if
Clearstream, Luxembourg is an account holder of Euroclear and other
than Euroclear if Euroclear is an account holder of Clearstream,
Luxembourg) as being an account holder with respect to that Global
Note (in which regard any certificate or other document issued by
Clearstream, Luxembourg 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); and
(d) in relation to a Registered Note at any time, is registered in the
Register as the holder of that Note at that time,
and in the case of paragraph (b) includes (in relation to any interest
payable on a Coupon or where the context so requires) the Couponholder for
that Coupon.
Note Issue Date means [*] 2003.
Note Manager means each Dealer and each Underwriter.
Note Owner means a Class A2 Note Owner, a Class A3 Note Owner or a Class B1
Note Owner.
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Note Register means the register kept by the Note Registrar to provide for
the registration and transfer of US$ Notes under the Note Trust Deed and
the Agency Agreement.
Note Registrar means, initially The Bank of New York, New York branch, or
any successor note registrar appointed under the Agency Agreement.
Note Trust Deed means the Note Trust Deed dated on or about the date of
this Series Notice between the Note Trustee, the Trustee and the Trust
Manager.
Notice of Creation of Trust means the Notice of Creation of Trust dated [*]
2003 issued under the Master Trust Deed in relation to the Trust.
Obligor means an Obligor as defined in the Master Trust Deed and may be a
resident of any country.
Other Trust means any Trust (as defined in an Ancillary Facility Document
from time to time) other than the Trust.
Paying Agent means any person for the time being appointed as a Paying
Agent under the Agency Agreement and includes the Principal Paying Agent.
Payment Date means, subject to clause 3.4(b), the 27th day of each March,
June, September and December, the first such date being 27 September 2003.
Permanent Class A3 Global Note means the permanent bearer global note
issued or to be issued by the Trustee under the Note Trust Deed and the
terms of the Temporary Class A3 Global Note and to be given in exchange for
the Temporary Global Note representing the Class A3 Notes, substantially in
the form of Part C of schedule 1 to the Note Trust Deed.
Portfolio of Loans means all Loans specified in a Note Issue Direction or
Sale Notice.
Prefunding Account means the account held by the Trustee in its capacity as
trustee of the Trust with an Approved Bank into which will be or is
deposited the Prefunding Amount.
Prefunding Amount has the meaning given in clause 9.
Prefunding End Date means the first Payment Date.
Prescribed Minimum Level means, at any time, 1% of the aggregate of:
(a) the Class A2 A$ Equivalent of the Principal Amount of all Class A2
Notes then outstanding;
(b) the Class A3 A$ Equivalent of the Principal Amount of all Class A3
Notes then outstanding;
(c) the Class B1 A$ Equivalent of the Principal Amount of all Class B1
Notes then outstanding; and
(d) the Principal Amount of all Registered Notes then outstanding,
or such other percentage as determined by the Trust Manager and confirmed
by each Designated Rating Agency that such percentage is not detrimental to
the rating (including a qualification or a withdrawal of a rating) of any
Notes outstanding at that time.
Principal Amount means, on a date in relation to a Note, the Initial
Principal Amount of that Note minus the aggregate of Principal Payments
made in respect of that Note on or before that date.
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Principal Entitlement means, in relation to a Note for the purposes of the
Master Trust Deed, the Principal Amount of the Note at the Maturity Date.
Principal Loss means, in relation to a Collection Period, the amount of any
Liquidation Loss for that Collection Period referred to in clause
6.2(a)(xiii)(B).
Principal Paying Agent means initially The Bank of New York, New York
branch or such other person appointed as principal paying agent under the
Agency Agreement.
Principal Payment means a payment in relation to a Note under clause 6.6.
Principal Repayment Date means, for the purposes of the Master Trust Deed,
and each Note, each Payment Date.
Property Restoration Expenses means costs and expenses incurred at the
direction of the Trust Manager or the Servicer by or on behalf of the
Trustee in repairing, maintaining or restoring to an appropriate state of
repair and condition any Mortgaged Property, in exercise of a power
conferred on the relevant mortgagee under the relevant Purchased Loan and
Relevant Documents.
Purchased Loan means each Loan and the related Loan Rights specified in a
Sale Notice (or, where relevant, in accordance with the procedures agreed
under the Master Trust Deed) which is accepted by the Trustee, unless the
Trustee has ceased to have an interest in that Loan.
Rate Reset Date means:
(a) in relation to an Interest Period and a US$ Note, the date which is 2
Business Days before the beginning of the Interest Period for that US$
Note. In this paragraph (a) of the definition of Rate Reset Date,
Business Day means any day on which banks are open for business
(including dealings in foreign exchange and foreign currency deposits)
in London and New York City;
(b) in relation to an Interest Period and a Class A3 Note, the date which
is 2 TARGET Settlement Days before the beginning of the Interest
Period for that Class A3 Note; and
(c) in relation to an Interest Period and a Registered Note, the first day
of the Interest Period for that Note.
Record Date means for the purposes of the Master Trust Deed in relation to
a date for payment of any amount in relation to a Note, 4.00 pm (Melbourne
time) on the date which is 4 Business Days before that date for payment.
Recovery Amount means, in relation to a Payment Date, the aggregate of all
amounts applied on that Payment Date under clauses 6.5(a)(viii) and
6.5(a)(ix).
Redraw means, in relation to any Collection Period, an amount re-advanced
to an Obligor by the Trustee under a Loan held by the Trustee in respect of
any previous Additional Repayments of the Obligor.
Registered Note means a Class A1 Note, a Class A4 Note or a Class B2 Note.
Residual Capital Unit has the meaning given in clause 10.1.
Residual Income Unit has the meaning given in clause 10.1.
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Reuters Monitor System means the monitor system used by AAP Reuters
Economic Services (and its successors and assigns) or any similar monitor
system as agreed upon from time to time by the Trust Manager and the
Trustee.
Sale Notice means any Sale Notice (as defined in the Master Trust Deed)
which may be given by the Approved Seller to the Trustee as trustee of the
Trust on or after the date of execution of this Series Notice and which is
subsequently accepted by the Trustee.
Securities Act means the United States Securities Act of 1933, as amended.
Security Trust Deed means the security trust deed dated on or before the
date of this Series Notice between the Trustee, the Trust Manager, the
Security Trustee and the Note Trustee.
Servicer's Fee has the meaning given in clause 7.1(d).
Shortfall has the meaning given in clause 6.5(d).
Step-Up Margin means:
(a) in relation to a Class A2 Note, [*]% per annum;
(b) in relation to a Class A3 Note, [*]% per annum;
(c) in relation to a Class A4 Note, [*]% per annum;
(d) in relation to a Class B1 Note, [*]% per annum; and
(e) in relation to a Class B2 Note, [*]% per annum.
Step-Up Margin Date means:
(a) in relation to any Class A2 Notes, the Payment Date in [*];
(b) in relation to any Class A3 Notes, the Payment Date in [*];
(c) in relation to any Class A4 Notes, the Payment Date in [*];
(d) in relation to any Class B1 Notes, the Payment Date in [*]; and
(e) in relation to any Class B2 Notes, the Payment Date in [*].
Subject Property means the freehold land or leasehold land to be mortgaged
pursuant to a proposed Loan.
Support Facility has the meaning given to it in the Master Trust Deed (as
amended by this Series Notice) and includes any Title Insurance Policy.
Support Facility Provider has the meaning given to it in the Master Trust
Deed (as amended by this Series Notice) but does not include any person who
has provided or agreed to provide any Mortgage Insurance Policy or Title
Insurance Policy.
Swap Provider means, in relation to a Hedge Agreement, the counterparty
which enters into that arrangement with the Trustee.
TARGET Settlement Day means any day, other than a Saturday, Sunday or
public holiday, on which the Trans-European Automated Real-Time
Gross-Settlement Express Transfer (TARGET) System or any successor to it is
open.
Telerate means, when used in relation to any designated page and any
interest rate, the display page so designated on Bridge's Telerate Service
or such other page as may replace that page on that
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service, or such other service as may be nominated as the information
vendor for the purpose of displaying rates or prices comparable to that
interest rate.
Temporary Class A3 Global Note means the temporary bearer global note
issued or to be issued by the Trustee under the Note Trust Deed
representing the Class A3 Notes, substantially in the form of Part B of
schedule 1 to the Note Trust Deed.
Threshold Requirements means, at any time, the existence of each of the
following conditions:
(a) there are no Carryover Charge-offs at that time;
(b) no more than 5% (by unpaid principal balance) of the Purchased Loans
are in Arrears by an amount equal to two or more monthly payments at
that time; and
(c) an amount equal to the aggregate of:
(i) the Class B1 A$ Equivalent of the Principal Amount of all Class
B1 Notes outstanding at that time; plus
(ii) the Principal Amount of all Class B2 Notes outstanding at that
time,
is not less than 0.25% of the amount equal to the aggregate of:
(i) the Class A2 A$ Equivalent of the Initial Principal Amount of all
Class A2 Notes on the Note Issue Date; plus
(i) the Class A3 A$ Equivalent of the Initial Principal Amount of all
Class A3 Notes on the Note Issue Date; plus
(iii) the Initial Principal Amount of all Class A4 Notes on the Note
Issue Date; plus
(iv) the Class B1 A$ Equivalent of the Initial Principal Amount of all
Class B1 Notes on the Note Issue Date; plus
(v) the Initial Principal Amount of all Class B2 Notes on the Note
Issue Date.
Title Insurance Policy means, in relation to a Mortgage, an insurance
policy issued by a Title Insurer in a form reasonably acceptable to the
Trustee which insures against losses arising from that Mortgage providing
insufficient security for the relevant Loan, including, as a result of the
Mortgage:
(a) being subject to any prior encumbrance;
(b) not being validly registered; or
(c) being invalid or unenforceable.
Title Insurer means First American Title Insurance Company of Australia Pty
Limited (ABN 64 075 279 908) or any other entity approved from time to time
by the Trust Manager and which each Designated Rating Agency has confirmed
will not cause the downgrade or withdrawal of the rating of any Note.
Total Initial Principal Amount means, at any time in respect of a Class,
the sum of all Initial Principal Amounts for all Notes in that Class.
Total Principal Amount means, at any time in respect of a Class, the sum of
all Principal Amounts at that time for all Notes in that Class.
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Transaction Document means each of the following documents:
(a) this Series Notice;
(b) the Master Trust Deed;
(c) the Notice of Creation of Trust;
(d) each Currency Swap;
(e) each Interest Rate Swap;
(f) the Investment Management Agreement;
(g) the Agency Agreement;
(h) the Note Trust Deed;
(i) each Note;
(j) the Security Trust Deed;
(k) the Seller Accession Certificate dated 3 February 2003 between
Interstar Securities (Australia) Pty Limited, Perpetual Trustees
Victoria Limited and the Servicer;
(l) any other document which is expressed to be, or which is agreed by the
Trust Manager, the Note Trustee and the Trustee to be, a Transaction
Document for the purposes of this Series Notice; and
(m) any other document that is executed under or which is or is expressed
to be incidental or collateral to, any other Transaction Document.
Trust means the Interstar Millennium Series 2003-3G Trust constituted under
the Master Trust Deed and the Notice of Creation of Trust.
Trust Manager's Fee has the meaning given in clause 7.1(a).
Trustee's Fee has the meaning given in clause 7.1(b).
Underwriter means each of Barclays Capital Inc. and [*].
US$ Account means the US$ account opened and maintained for the purposes of
the Trust with the Principal Paying Agent (so long as the Principal Paying
Agent is an Approved Bank) or with such other person who is an Approved
Bank.
US$ Note means a Class A2 Note or a Class B1 Note.
US$ Noteholder means a Noteholder of a US$ Note.
3.2 Interpretation
(a) 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, any reference to a Trust is
replaced by a reference to the Trust and any reference to the
Corporations Law is replaced by a reference to the Corporations Act.
(b) (i) A reference to US dollars or US$ is to the currency of the United
States of America.
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(c) (i) A reference to Euro or (euro) is to the lawful currency of the
member states of the European Union that adopt the single
currency in accordance with the EC Treaty. [Is there a definition
of "EC Treaty"?]
(ii) A reference to Australian dollars or A$ is to the currency of
Australia.
(d) a Downgrade will be deemed to subsist until such time as provided in
the relevant Currency Swap.
3.3 Liability
(a) (General) Clause 32 of the Master Trust Deed, as amended by this
Series Notice, 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 as amended by this Series Notice 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.
(c) (Unrestricted remedies) Nothing in this clause 3.3 limits a person in:
(i) obtaining an injunction or other order to restrain any breach of
this agreement by any party; or
(ii) obtaining declaratory relief.
(d) (Restricted remedies) Except as provided in paragraph (a) and subject
to paragraph (c), no person shall:
(i) (statutory demand) issue any demand under s459E(1) of the
Corporations Act (or any analogous provision under any other law)
against the Trustee;
(ii) (winding up) apply for the winding up or dissolution of the
Trustee;
(iii) (execution) levy or enforce any distress or other execution to,
on, or against any assets of the Trustee;
(iv) (court appointed receiver) apply for the appointment by a court
or a receiver to any of the assets of the Trustee;
(v) (judgment) obtain a judgment for the payment of money or damages
by the Trustee;
(vi) (set-off or counterclaim) exercise or seek to exercise any
set-off or counterclaim against the Trustee; or
(vii) (administrator) appoint, or agree to the appointment of, any
administrator to the Trustee,
or take proceedings for any of the above and each party (including
each Noteholder) waives its rights to make those applications and take
those proceedings.
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3.4 Business Day
If any payment is due under a Transaction Document on, or a Payment Date or
Determination Date falls on, a day which is not a Business Day, the due
date will be the next Business Day unless that day falls in the next
calendar month, in which case the due date will be the preceding Business
Day.
[To be confirmed by Interstar]
4. Notes
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4.1 Conditions of Notes
(a) The conditions of the Registered Notes will be as set out in the
Master Trust Deed, as supplemented and amended by the provisions set
out in this Series Notice.
(b) The conditions of the Non-A$ Notes will be as set out in the Master
Trust Deed (as supplemented and amended by this Series Notice) and the
relevant Conditions.
4.2 Summary of conditions of Notes
Under clause 9.3 of the Master Trust Deed, the Trust Manager provides the
following information in respect of the Notes.
(a) Class of Note: there will be the following Classes of
Notes:
(i) Class A1 Notes
(ii) Class A2 Notes
(iii) Class A3 Notes
(iv) Class A4 Notes
(v) Class B1 Notes
(vi) Class B2 Notes
(b) Total Initial Principal (i) the Class A1 Notes - the aggregate
Amount of each Class of of the Initial Principal Amounts of
Notes: those Class A1 Notes on the
relevant Note Issue Date
(ii) Class A2 Notes - US$[500,000,000]
(iii) Class A3 Notes - (euro)[*]
(iv) Class A4 Notes - A$[*]
(v) Class B1 Notes - US$[28,000,000]
(vi) Class B2 Notes - A$[47,000,000]
(c) Manner and order in which as set out in clause 6
principal and interest is
to be paid on Notes:
(d) MBS Margin: (i) any Class A1 Note, the percentage
per annum as determined by the
Trust Manager and notified to the
Trustee on the relevant Note Issue
Date
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(ii) any Class A2 Note, [*]% per annum
(iii) any Class A3 Note, [*]%per annum
(iv) any Class A4 Note, [*]%per annum
(v) any Class B1 Note, [*]% per annum
(vi) any Class B2 Note, [*]% per annum
(e) Initial Principal Amount: (i) any Class A1 Note - the amount as
determined by the Trust Manager and
notified to the Trustee on the date
which is 4 Business Days before the
relevant Note Issue Date
(ii) any Class A2 Note - subject to
clause 4.3(b), each denominated
with an Initial Principal Amount of
US$100,000 per Note and,
thereafter, with minimum increments
of US$1,000
(iii) any Class A3 Note - subject to
clause 4.3(c), each denominated
with an Initial Principal Amount of
(euro)100,000 per Note and,
thereafter, with minimum increments
of (euro)1,000
(iv) any Class A4 Note - subject to
clause 4.3(a), each denominated
with an Initial Principal Amount of
A$10,000 per Note
(v) any Class B1 Note - subject to
clause 4.3(b), each denominated
with an Initial Principal Amount of
US$100,000 per Note and,
thereafter, with minimum increments
of US$1,000
(vi) any Class B2 Note - subject to
clause 4.3(a), each denominated
with an Initial Principal Amount of
A$10,000 per Note
(f) Rating: (i) Class A1 Notes - such rating (if
any) notified by the Trust Manager
to the Trustee as approved by each
Designated Rating Agency for those
Class A1 Notes at the relevant Note
Issue Date
(ii) Class A2 Notes - AAA long term
rating from S&P and Aaa long term
rating from Moody's
(iii) Class A3 Notes - AAA long term
rating from S&P and Aaa long term
rating from Moody's
(iv) Class A4 Notes - AAA long term
rating from S&P and Aaa long term
rating from Moody's
(v) Class B1 Notes - [AA-] long term
rating from S&P [and [Aa3] long
term rating from Moody's]
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(iv) Class B2 Notes - [AA-] long term
rating from S&P [and [Aa3] long
term rating from Moody's]
g) Issue Price: (i) any Class A1 Note - issued at par
value
(ii) any Class A2 Note - issued at par
value
(iii) any Class A3 Note - issued at par
value
(iv) any Class A4 Note - issued at par
value
(v) any Class B1 Note - issued at par
value
(vi) any Class B2 Note - issued at par
value
(i) Maturity Date: Payment Date falling in [[*] 2035]
4.3 Issue of Notes
(a) The Registered Notes must be issued in minimum parcels or
subscriptions which have an aggregate Initial Principal Amount of
A$500,000, (disregarding any amount payable to the extent to which it
is to be paid out of money lent by the person offering the Notes or an
associate (as defined in Division 2 of Part 1.2 of the Corporations
Act)) or must otherwise constitute an issue that is not required to be
disclosed under Part 6D.2 of the Corporations Act.
(b) The US$ Notes must be issued in minimum parcels or subscriptions which
have an aggregate Initial Principal Amount of US$100,000 and in
amounts, or on terms, such that their offer for subscription and their
issue will comply with:
(i) the Financial Services and Markets Act 2000 (UK) and all
regulations made under or in relation to that Act and the Public
Offers of Securities Regulations 1995; and
(ii) the Securities Act, the Exchange Act, all regulations made under
or in relation to them, and all other laws or regulations of any
jurisdiction of the United States of America regulating the offer
or issue of, or subscription for, Notes.
(c) The Class A3 Notes must be issued in minimum parcels or subscriptions
which have an aggregate Initial Principal Amount of (euro)100,000 and
in amounts, or on terms, such that their offer for subscription and
their issue will comply with the Financial Services and Markets Act
2000 (UK) and all regulations made under or in relation to that Act
and the Public Offers of Securities Regulations 1995.
(d) No Class A3 Note or Registered Note has been or will be registered
under the Securities Act and the Registered Notes must not be offered
or sold within the United States or to, or for the account or benefit
of, US persons except in accordance with Regulation S under the
Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act. Terms used in this paragraph have
the meanings given to them by Regulation S under the Securities Act.
4.4 Trustee's Covenant to Noteholders
Subject to the terms of the Master Trust Deed and this Series Notice, the
Trustee:
(a) acknowledges its indebtedness in respect of the Principal Amount of
each Note; and
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(b) covenants for the benefit of the Security Trustee, each Registered
Noteholder and the Note Trustee on behalf of the Non-A$ Noteholders
(subject to receiving any directions required under and given in
accordance with the Transaction Documents):
(i) to make all payments on or in respect of the Notes held by that
Noteholder on the due date for payment;
(ii) to comply with the terms of this Series Notice and the
Transaction Documents to which it is a party; and
(iii) to pay the Principal Amount in relation to the Notes held by
that Noteholder on the Maturity Date together with accrued and
unpaid interest thereon.
4.5 Repayment of Notes on Principal Repayment Dates
(a) On each Principal Repayment Date for a Note, the Principal Amount of
that Note shall be reduced by, and the obligations of the Trustee with
respect to that Note shall be discharged to the extent of, the amount
of the Principal Payment made on that Principal Repayment Date in
respect of that Note.
(b) All Principal Payments on the US$ Notes will be made in US dollars.
(c) All Principal Payments on the Class A3 Notes will be made in Euros.
(d) All Principal Payments on the Registered Notes will be made in
Australian dollars.
4.6 Final Redemption
Each Note shall be finally redeemed, and the obligations of the Trustee
with respect to the payment of the Principal Amount of that Note shall be
finally discharged, on the first to occur of:
(a) the date on which the Principal Amount of that Note is reduced to
zero;
(b) the date on which the relevant Noteholder renounces in writing all of
its rights to all amounts payable under or in respect of that Note;
(c) in relation to:
(i) the US$ Notes, the date on which all amounts received by the Note
Trustee with respect to the enforcement of the Security Trust
Deed and payable to the US$ Noteholders are paid to the US$
Noteholders; and
(ii) the Class A3 Notes, the date on which all amounts received by the
Note Trustee with respect to the enforcement of the Security
Trust Deed and payable to the Class A3 Noteholders are paid to
the Class A3 Noteholders; and
(iii) the Registered Notes, the date on which all amounts received
with respect to the enforcement of the Security Trust Deed and
payable to the Registered Noteholders are paid to the Registered
Noteholders;
(d) the Payment Date immediately following the date on which the Trustee
completes a sale and realisation of all Assets of the Trust in
accordance with the Master Trust Deed and this Series Notice; and
(e) the date on which the Note is cancelled or redeemed under clause 6.6.
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4.7 Period during which interest accrues
Each Note bears interest calculated and payable in arrears in accordance
with this Series Notice from the relevant issue date to the date upon which
that Note is finally redeemed in accordance with clause 4.6.
4.8 Calculation of Interest
(a) Interest payable on each Note in respect of each Interest Period for
that Note is calculated:
(i) on a daily basis at the applicable Interest Rate;
(ii) on the Principal Amount of that Note as at the first day of that
Interest Period; and
(iii) on the basis of the actual number of days in that Interest
Period and:
(A) in the case of the Non-A$ Notes, a year of 360 days; and
(B) in the case of the Registered Notes, a year of 365 days,
and shall accrue due from day to day.
(b) The Step-Up Margin for each Class of Notes (other than the Class A1
Notes) is the percentage per annum which:
(i) applies following the relevant Step-Up Margin Date for that
Class;
(ii) is, in the case of any:
(A) Class A2 Notes, [*]% per annum;
(B) Class A3 Notes, [*]% per annum;
(C) Class A4 Notes, [*]% per annum;
(D) Class B1 Notes, [*]% per annum; and
(E) Class B2 Notes, [*]% per annum; and
(iii) in addition to:
(A) (1) LIBOR, in the case of the US$ Notes;
(2) EURIBOR in the case of the Class A3 Notes; or
(3) the Bank Bill Rate, in the case of the Registered
Notes; and
(B) the relevant MBS Margin,
forms the Interest Rate following the relevant Step-Up Margin
Date for that Class.
4.9 Aggregate receipts
Notwithstanding anything in clause 6, no Noteholder will be entitled to
receive aggregate principal under any of the provisions in that clause on
any Note at any time in excess of the Principal Amount for that Note at
that time.
4.10 Ownership of Notes
The Trustee, the Trust Manager and the Security Trustee may treat a
Noteholder as the absolute owner of any Registered Note or US$ Note which
the Noteholder is registered as holding (whether or not that Note is
overdue and despite any notation or notice to the contrary or writing on it
or any
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notice of previous loss or theft of it or of trust or other interest in it)
for the purpose of making payment and for all other purposes.
4.11 Taxation
All payments in respect of the Notes will be made without withholding or
deduction for, or on account of, any present or future Taxes (including,
without limitation, interest withholding tax) unless the Trustee or other
payer is required by any applicable law to make any such payment in respect
of the Notes subject to any withholding or deduction for, or on account of,
any present or future Taxes. In that event, the Trustee or other payer must
make such payment after such withholding or deduction has been made and
must account to the relevant authorities for the amount so required to be
withheld or deducted. The Trustee or other payer will not be obliged to
make any additional payments to Noteholders in respect of that withholding
or deduction.
5. Class A1 Notes
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5.1 Note Issue Direction for Class A1 Notes
If, on a Payment Date, Mortgage Principal Repayments for the Collection
Period preceding that Payment Date are insufficient to fund Redraws for
that Collection Period in accordance with this Series Notice, then the
Trust Manager may give the Trustee a Note Issue Direction to issue a series
of Class A1 Notes in accordance with clause 12 of the Master Trust Deed and
this clause 5.
5.2 Conditions to Note Issue Direction
The Trust Manager must not give a Note Issue Direction under clause 5.1
unless it has received written confirmation from each Designated Rating
Agency that the issue of the Class A1 Notes would not result in a
downgrading or withdrawal of a rating of any Note then outstanding.
5.3 Terms of Note Issue Direction
A Note Issue Direction given under clause 5.1:
(a) must be given no later than the date which is 3 Business Days before
the proposed issue date of the relevant Class A1 Notes, or any other
date agreed by the Trustee and the Trust Manager; and
(b) must specify the MBS Margin, the aggregate Initial Principal Amount,
Initial Principal Amount, rating, issue price and Maturity Date of the
relevant Class A1 Notes (in each case containing the relevant
information specified in clause 4.2).
6. Cashflow Allocation Methodology
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6.1 General
Collections and other amounts credited to the Collection Account will be
allocated by the Trust Manager, and paid by the Trustee as directed by the
Trust Manager, as set out in this clause 6.
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6.2 Calculations
(a) On or before each date which is 4 Business Days before each Payment
Date, the Trust Manager will, in respect of the Collection Period
immediately before that Payment Date, calculate or otherwise
ascertain:
(i) all Income for that Collection Period;
(ii) all Mortgage Principal Repayments for that Collection Period;
(iii) the aggregate of all Redraws made during that Collection Period;
(iv) the Bank Bill Rate for the relevant period (which shall be
calculated and notified on that Payment Date);
(v) the amount of Interest payable on each Note on that Payment Date
(if any);
(vi) the amount of the Principal Payment to be made on each Note on
that Payment Date;
(vii) Expenses for that Collection Period;
(viii) the Principal Amount of each Note as at the first day of the
next Interest Period for that Note (after deducting any Principal
Payment due to be made in respect of each Note on that Payment
Date);
(ix) the amount of the Approved Seller's Fee for that Collection
Period;
(x) in the case of the first Payment Date, the Interest Adjustment
payable to the Approved Seller;
(xi) the Class A2 A$ Interest Amount, the Class A3 A$ Interest Amount
and the Class B1 A$ Interest Amount for that Payment Date;
(xii) each Class A2 A$ Equivalent amount, each Class A3 A$ Equivalent
amount and each Class B1 A$ Equivalent amount required to be
calculated under this Series Notice;
(xiii) in relation to the aggregate of all Liquidation Losses arising
during that Collection Period:
(A) the amount of those Liquidation Losses which is attributable
to interest, fees and expenses in relation to the relevant
Purchased Loans; and
(B) the amount of those Liquidation Losses which is attributable
to principal in relation to the relevant Purchased Loans
(Principal Loss),
on the basis that all Liquidation Proceeds actually received by
or on behalf of the Trustee in relation to a Purchased Loan are
applied first against interest, fees and other Enforcement
Expenses (other than Property Restoration Expenses) relating to
that Purchased Loan, and then against the principal and Property
Restoration Expenses relating to that Purchased Loan;
(xiv) the Charge-offs and Carryover Charge-offs (if any) on that
Payment Date;
(xv) the Recovery Amount (if any) for that Payment Date; and
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(xvi) all other calculations necessary to make allocations and
distributions under this clause 6.
(b) The Trust Manager must:
(i) notify the Trustee of each of the amounts calculated by it in
paragraph (a); and
(ii) notify the Trustee, the Note Trustee, each Paying Agent, the
Calculation Agent and each Currency Swap Provider by not later
than (or as soon as practicable after) the date which is 4
Business Days before the relevant Payment Date of each
determination with respect to the Non-A$ Notes of the Principal
Payment and Principal Amount in respect of that Payment Date and
cause details of each of those determinations to be published in
accordance with the relevant Condition 12. If no Principal
Payment is due to be made on the Class A2 Notes, the Class A3
Notes or the Class B1 Notes on any Payment Date a notice to this
effect will be given to the Class A2 Noteholders, Class A3
Noteholders or Class B1 Noteholders (as the case may be) in
accordance with the relevant Condition 12.
(c) The Trust Manager must instruct the Trustee in writing on or before
the date which is 4 Business Days before the relevant Payment Date as
to the payments to be made by the Trustee on the Payment Date.
6.3 Redraws
If an Obligor makes Additional Repayments in relation to a Loan held by the
Trustee then the Trustee must provide a Redraw to the Obligor upon being so
directed by the Trust Manager in its absolute discretion and subject to the
Trust Manager certifying to the Trustee that:
(a) the Redraw to be provided to the Obligor together with the current
Unpaid Balance of the Loan will not exceed the scheduled balance of
the Loan;
(b) after allowing for all payments which the Trustee is then required to
make or which the Trust Manager reasonably expects that the Trustee
will be required to make, there is or will be sufficient cash in the
Assets of the Trust (whether as a result of the issue of Class A1
Notes or otherwise) for the Trustee to provide that Redraw; and
(c) the Loan is not in Arrears at the time of the request for the Redraw
by the Obligor.
6.4 Liquid Authorised Investments
(a) The Trust Manager shall make such directions to the Trustee, and the
Trustee must comply with those directions, required to ensure that,
subject to paragraph (b), the value of the Liquid Authorised
Investments shall not at any time be less than the Prescribed Minimum
Level at that time.
(b) The Trust Manager must direct the Trustee, and the Trustee must, at
the direction of the Trust Manager, apply all or part of the Liquid
Authorised Investments towards payment of the Shortfall in the amounts
referred to in clauses 6.5(a)(i) to 6.5(a)(vi) (inclusive) as provided
in clause 6.5(d).
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6.5 Interest and other payments
(a) On each Payment Date, the Trustee shall, prior to the enforcement of
the Security Trust Deed (in accordance with the written direction
provided to it by the Trust Manager on or before the date which is 4
Business Days before the Payment Date), out of the Income for the
Collection Period immediately before that Payment Date (and out of the
proceeds of disposal of any Liquid Authorised Investments and/or out
of Mortgage Principal Repayments as provided for in paragraph (d))
make the following payments or retain moneys in the following order of
priority.
(i) First - an amount equal to any Interest Adjustment required to be
paid to the Approved Seller and then outstanding (the Trustee
acknowledges and agrees that it has no entitlement to the moneys
comprising the Interest Adjustment).
(ii) Second - payment of any Taxes payable in relation to the Trust
(not including any GST covered in paragraph (f) or paragraph
(g)).
(iii) Third - subject to sub-paragraph (a)(ii) and paragraph (c),
payment (in the following order of priority) of:
(A) pari passu and rateably, as between themselves, payments of:
(1) the Trustee's Fee for the Collection Period (as
adjusted in accordance with paragraph (g)); and
(2) any fees payable to the Note Trustee under the
Transaction Documents for the Collection Period;
(B) pari passu and rateably, as between themselves, payments of:
(1) any fees payable, pari passu and rateably, to the
Paying Agents under the Transaction Documents for the
Collection Period; and
(2) any fees payable to the Calculation Agent under the
Transaction Documents for the Collection Period;
(C) the Expenses (other than the Trustee's Fee, any fees payable
to the Note Trustee, the Paying Agents or the Calculation
Agent, the Trust Manager's Fee and the Servicer's Fee) in
relation to the Collection Period;
(D) the Expenses (other than the Trustee's Fee, any fees payable
to the Note Trustee, the Paying Agents or the Calculation
Agent, the Trust Manager's Fee and the Servicer's Fee) which
the Trust Manager or the Trustee reasonably anticipates will
be incurred prior to the next Payment Date; and
(E) the Expenses (other than the Trustee's Fee, any fees payable
to the Note Trustee, the Paying Agents or the Calculation
Agent, the Trust Manager's Fee and the Servicer's Fee) not
covered by sub-paragraphs (C) or (D) which have already been
incurred prior to the Payment Date but which have not
previously been paid or reimbursed.
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(iv) Fourth - payment, pari passu and rateably, to:
(A) the Trust Manager of the Trust Manager's Fee for the
Collection Period; and
(B) the Servicer of the Servicer's Fee for the Collection
Period.
(v) Fifth - pari passu and rateably as between themselves:
(A) payment to the Interest Rate Swap Provider of any amounts
payable under the Interest Rate Swap other than any Break
Costs in respect of the termination of the Interest Rate
Swap;
(B) payment of any Interest for the Interest Period for the
Class A1 Notes ending on that Payment Date to the Class A1
Noteholders;
(C) (1) prior to the termination of the Class A2 Currency Swap,
payment to the Class A2 Currency Swap Provider of the
Class A2 A$ Interest Amount for that Payment Date (and
any reciprocal payment by the Class A2 Currency Swap
Provider is thereafter to be applied in accordance with
clause 6.9(a)(i) towards payment of Interest on the
Class A2 Notes); and
(2) after the termination of the Class A2 Currency Swap, to
the Note Trustee for application in accordance with
clause 6.8(a) of the A$ amount that the Trust Manager
determines in good faith needs to be applied on that
Payment Date in order to enable the Trustee to meet its
obligations to pay Interest on the Class A2 Notes on
that Payment Date;
(D) (1) prior to the termination of the Class A3 Currency Swap,
payment to the Class A3 Currency Swap Provider of the
Class A3 A$ Interest Amount for that Payment Date (and
any reciprocal payment by the Class A2 Currency Swap
Provider is thereafter to be applied in accordance with
clause 6.11(a)(i) towards payment of Interest on the
Class A3 Notes); and
(2) after the termination of the Class A3 Currency Swap, to
the Note Trustee for application ion accordance with
clause 6.10(a) of the A$ amount that the Trust Manager
determines in good faith needs to be applied on that
Payment Date in order to enable the Trustee to meets
its obligations to pay Interest on the Class A3 Notes
on that Payment Date;
(E) payment of any Interest for the Interest Period for the
Class A4 Notes ending on that Payment Date to the Class A4
Noteholders;
(F) payment to the Class A2 Currency Swap Provider of any Break
Costs payable by the Trustee under the Class A2 Currency
Swap other than in respect of the termination of the Class
A2 Currency Swap where the Class A2 Currency Swap Provider
is the Defaulting Party; and
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(G) payment to the Class A3 Currency Swap Provider of any Break
Costs payable by the Trustee under the Class A3 Currency
Swap other than in respect of the termination of the Class
A3 Currency Swap where the Class A3 Currency Swap Provider
is the Defaulting Party;
(vi) Sixth - pari passu and rateably based on the amount owing as
between themselves:
(A) payment of any Interest for the Interest Period for the
Class B2 Notes ending on that Payment Date to the Class B2
Noteholders;
(B) (1) prior to the termination of the Class B1 Currency Swap,
payment to the Class B1 Currency Swap Provider of the
Class B1 A$ Interest Amount for that Payment Date (and
any reciprocal payment by the Class B1 Currency Swap
Provider is thereafter to be applied in accordance with
clause 6.9(a)(iii) towards payment of Interest on the
Class B1 Notes); and
(2) after the termination of the Class B1 Currency Swap, to
the Note Trustee for application in accordance with
clause 6.8(a) of the A$ amount that the Trust Manager
determines in good faith needs to be applied on that
Payment Date in order to enable the Trustee to meet its
obligations to pay Interest on the Class B1 Notes on
that Payment Date; and
(C) payment to the Class B1 Currency Swap Provider of any Break
Costs payable under the Class B1 Currency Swap other than in
respect of the termination of the Class B1 Currency Swap
where the Class B1 Currency Swap Provider is the Defaulting
Party.
(vii) Seventh - to be applied by the Trustee as Mortgage Principal
Repayments received by the Trustee during the corresponding
Collection Period, of an amount equal to the aggregate of all
amounts previously applied under clause 6.6(a)(i)(A), to the
extent not previously so replenished under this clause
6.5(a)(vii).
(viii) Eighth - in reducing the Aggregate Principal Loss Amount for
the corresponding Collection Period until the Aggregate Principal
Loss Amount is reduced to zero.
(ix) Ninth - in reducing any Carryover Charge-offs that have not been
reduced prior to that Payment Date until the Carryover
Charge-offs are reduced to zero.
(x) Tenth - in payment, pari passu and rateably, of any Break Costs
payable to:
(A) the Interest Rate Swap Provider in respect of the
termination of the Interest Rate Swap; and
(B) a Currency Swap Provider in respect of the termination of a
Currency Swap where the Currency Swap Provider is the
Defaulting Party.
(xi) Eleventh - in payment of the Approved Seller's Fee.
(xii) Twelfth - subject to clause 15.1(d), in payment of the balance,
by way of a distribution of the income of the Trust, to the
Residual Income Beneficiaries in proportion to their respective
Income Percentages.
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The obligation of the Trustee to make any payment under each of the
above paragraphs of this clause 6.5(a) is limited in each case to the
Income, Liquid Authorised Investments and Mortgage Principal
Repayments or (as the case may be) to the balance of the Income,
Liquid Authorised Investments and Mortgage Principal Repayments
available after payment in accordance with the preceding paragraph or
paragraphs (if any).
(b) In the event that for any reason whatsoever the Trustee does not have
sufficient cash to make all of the payments as provided in paragraphs
(a) and (d) then the amount available to be paid shall be distributed
in the order of priority of distribution as referred to in paragraph
(a), and:
(i) in the case of the payment of Interest to Class A1 Noteholders,
Class A2 Noteholders, Class A3 Noteholders or Class A4
Noteholders under paragraph (a)(v), the proportion of any amount
available to be paid to each Noteholder of such Class shall be
the proportion which the Principal Amount of the Notes of that
Class held by that Noteholder bears to the Total Principal Amount
of all Notes of that Class; and
(ii) in the case of the payment of Interest to Class B1 Noteholders or
Class B2 Noteholders under paragraph (a)(vi), the proportion of
any amount available to be paid to each Noteholder of such Class
shall be the proportion which the Principal Amount of that Class
held by that Noteholder bears to the Total Principal Amount of
all Notes of that Class.
(c) In the event that:
(i) the Trustee receives a payment under clause 6.5(a)(iii) or 6.5(d)
for Expenses which the Trustee reasonably anticipates will be
incurred prior to the next Payment Date; and
(ii) all or any part of such Expenses are not actually incurred prior
to that next Payment Date,
then the following provisions shall apply:
(iii) the Trustee shall repay into the Assets of the Trust on that
next Payment Date such excess amount which was not actually
incurred; or
(iv) if the Trustee fails to repay the amount in accordance with
sub-paragraph (c)(iii), then such amount shall be set-off against
the amount which would otherwise be payable under clause
6.5(a)(iii) to the Trustee with respect to such Expenses on that
next Payment Date.
(d) If, during any Financial Year, the Income accrued for a Collection
Period to be applied on the corresponding Payment Date is less than
the aggregate of the amounts payable by the Trustee under clauses
6.5(a)(i) to 6.5(a)(vi) (inclusive) on that Payment Date (the
Shortfall), then the Trustee shall (at the direction of the Trust
Manager) apply:
(i) first, Liquid Authorised Investments; and
(ii) second, to the extent the Liquid Authorised Investments are
insufficient to cover the Shortfall in full, Mortgage Principal
Repayments,
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in payment of those amounts in the order of priority set out in
clause 6.5(a), to the extent available to do so.
(e) If the Approved Seller's Fee is not paid in full on a relevant Payment
Date, then the unpaid balance shall bear interest at a rate determined
by the Trust Manager and advised to the Trustee from time to time,
such interest to be calculated on a daily balance from the due date up
to and including the date of actual payment.
(f) Any GST which applies or may apply in respect of any services provided
pursuant to this Series Notice or the other Transaction Documents by
the Trust Manager in relation to the Trust will be paid by the Trust
Manager from the Trust Manager's Fee or from the Trust Manager's own
resources.
(g) In relation to any supply by the Trustee under the Transaction
Documents of goods or services in relation to the Trust, the fee
payable will be adjusted to take into account any change after 1 July
2000 in the rate of GST payable pursuant to the A New Tax System
(Goods and Services Tax Imposition - General) Act 1999.
(h) Interest to which any Noteholder may be entitled in respect of a Note
for an Interest Period shall only fall due for payment by the Trustee
to the Noteholder upon the applicable Payment Date.
6.6 Repayments of Principal Amount and Redemption of Notes
(a) (i) All Mortgage Principal Repayments which are received by the
Trustee in each Collection Period, except to the extent the Trust
Manager directs the Trustee in writing that such moneys be
applied or retained for Liquidity Purposes in accordance with the
provisions of this Series Notice and (subject to clause
6.6(a)(ii)) any Liquid Authorised Investments and the Recovery
Amount for the corresponding Payment Date must, prior to the
enforcement of the Security Trust Deed, be deposited or paid by
the Trustee (at the direction of the Trust Manager, such
direction to be given on or before the date which is 4 Business
Days before the relevant Payment Date) on the corresponding
Payment Date in the following order of priority.
(A) First - in accordance with clause 6.5(d).
(B) Second - to replenish Liquid Authorised Investments until
the value of the Liquid Authorised Investments equals the
Prescribed Minimum Level.
(C) Third - to Class A1 Noteholders (in the proportion as
specified in sub-paragraph (iii)) in payment of the
Principal Amount of the Class A1 Notes until such time as
all Class A1 Notes have been redeemed in full.
(D) Fourth
(1) if the Threshold Requirements are satisfied on that
Payment Date, in accordance with clause 6.6(h); or
(2) if the Threshold Requirements are not satisfied on that
Payment Date, in accordance with clause 6.6(i).
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(E) Fifth - subject to clauses 10.2(c) and 15.1(d), in payment
of the balance, by way of a distribution of the capital of
the Trust, to the Residual Income Beneficiaries in
proportion to their respective Income Percentages.
The obligation of the Trustee to make any deposit or payment
under each of the above paragraphs of clause 6.6(a)(i) is limited
in each case to the Mortgage Principal Repayments, (subject to
clause 6.6(a)(ii)) Liquid Authorised Investments and the Recovery
Amount or (as the case may be) to the balance of the Mortgage
Principal Repayments, (subject to clause 6.6(a)(ii)) Liquid
Authorised Investments and the Recovery Amount available after
deposit or payment in accordance with the preceding paragraph or
paragraphs (if any).
(ii) The Trust Manager must not direct the Trustee to, and the Trustee
must not, deposit or pay any Liquid Authorised Investments under
clause 6.6(a)(i)(C), 6.6(a)(i)(D) or 6.6(a)(i)(E) where such
deposit or payment would result in the value of the Liquid
Authorised Investments being less than the Prescribed Minimum
Level.
(iii) The proportion of any amount available to be paid to any
Noteholder as contemplated in clause 6.6 in respect of any Class
of Notes will be the proportion which the Principal Amount of the
Note in respect of that Class of Notes held by that Noteholder
bears to the Total Principal Amount of all Notes in respect of
that Class of Notes.
(b) On any Payment Date when the Total Principal Amount of all Notes does
not exceed 10% of the Initial Principal Amount of all Notes the
Trustee must, if so directed in writing by the Trust Manager on or
before the date which is 4 Business Days before that Payment Date,
repay the whole of the Principal Amount of all Notes together with any
outstanding Interest in relation to those Notes subject to the
following conditions:
(i) the Trust Manager having provided to:
(A) each relevant Noteholder, the Note Trustee and the Trustee,
30 days prior notice; and
(B) each Designated Rating Agency, 30 days prior written notice,
of the Trust Manager's intention to direct the Trustee to redeem
the relevant Notes under this paragraph;
(ii) the Trustee having sufficient cash to make such repayment (upon
which the Trustee may rely conclusively on a certification from
the Trust Manager);
(iii) the Trustee retaining such amount as the Trust Manager or the
Trustee reasonably determines will be necessary to satisfy any
outstanding or anticipated Expenses or payment to any Swap
Provider under a Hedge Agreement; and
(iv) the repayment being made in the order of priority set out in
clause 6.6(a).
(c) On any Payment Date on or after a Step-Up Margin Date the Trustee
must, if so directed by the Trust Manager on or before the date which
is 4 Business Days before that Payment Date, repay the whole of the
Principal Amount of any Class of Notes together with any outstanding
Interest in relation to those Notes subject to the following
conditions:
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(i) the Trust Manager having provided to:
(A) each relevant Noteholder, the Note Trustee and the Trustee,
30 days prior notice; and
(B) each Designated Rating Agency, 30 days prior written notice,
of the Trust Manager's intention to direct the Trustee to redeem
the relevant Notes under this paragraph;
(ii) the Trust Manager receiving from each Designated Rating Agency
written confirmation that the repayment will not result in a
downgrade or withdrawal of the rating of any other Notes;
(iii) the Trustee having sufficient cash to make such repayment (upon
which the Trustee may rely conclusively on a certification from
the Trust Manager);
(iv) the Trustee retaining such amount as the Trust Manager or the
Trustee reasonably determines will be necessary to satisfy any
outstanding or anticipated Expenses, payment to any Noteholder in
respect of a Note (other than a Note in respect of which the
Principal Amount and Interest are to be so repaid) or payment to
any Swap Provider under a Hedge Agreement; and
(v) the repayment being made in the order of priority set out in
clause 6.6(a).
The Trust Manager may give a direction described in paragraph (c) in
respect of any one Class of Notes, with a particular Step-Up Margin
Date notwithstanding that it has not given a similar direction in
relation to any other Class with the same Step-Up Margin Date,
provided that in no circumstance may the Trust Manager give a
direction described in paragraph (c) in relation to Class B
Noteholders unless:
(1) there are at that time no Class A Notes outstanding; or
(2) the Trust Manager at the same time gives or has given a direction
described in paragraph (c) in relation to all Class A Notes then
outstanding.
(d) If the Trust Manager satisfies the Trustee and the Note Trustee
immediately prior to giving the notice referred to below that:
(i) on the next Payment Date the Trustee or a Paying Agent would be
required to deduct or withhold from any payment:
(A) of principal or interest in respect of the Notes; or
(B) to a Currency Swap Provider under a Currency Swap,
any amount for or on account of any present or future taxes,
duties, assessments or governmental charges of whatever nature
imposed, levied, collected, withheld or assessed by any
Government Agency; or
(ii) a Government Agency requires the deduction or withholding from
any payment by an Obligor in respect of a Purchased Loan of any
amount for or on account of any taxes, duties, assessments or
governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by that Government Agency,
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the Trustee must, when so directed by Noteholders representing at
least 75% of the Principal Amount of the Notes (provided that the
Trustee will be in a position on the next Payment Date to discharge
(and the Trust Manager will so certify to the Trustee and the Note
Trustee) all its liabilities in respect of the Notes (at their
relevant Principal Amount) and any amounts which would be required
under the Security Trust Deed to be paid in priority or pari passu
with the Notes if the security for the Notes were being enforced),
having given not more than 60 nor less than 45 days notice to the
Noteholders, redeem all, but not some only, of the Notes at their
relevant Principal Amount together with accrued interest to (but
excluding) the date of redemption on the next Payment Date, provided
that the redemption is made in the order of priority set out in
paragraph (a).
(e) If the Trust Manager satisfies the Trustee and the Note Trustee
immediately prior to giving the notice referred to below that on the
next Payment Date a Currency Swap Provider would be required to deduct
or withhold from any payment under a Currency Swap any amount for or
on account of any present or future taxes, duties, assessments or
governmental charges of whatever nature imposed, levied, collected,
withheld or assessed by any Government Agency, the Trustee must, when
so directed by the Trust Manager (in its sole discretion) (provided
that the Trustee will be in a position on such Payment Date to
discharge (and the Trust Manager will so certify to the Trustee and
the Note Trustee) all its liabilities in respect of the Notes (at
their relevant Principal Amount) and any amounts which would be
required under the Security Trust Deed to be paid in priority or pari
passu with the Notes if the security for the Notes were being
enforced), having given not more than 60 nor less than 45 days notice
to the Noteholders, redeem all, but not some only, of the Notes at
their relevant Principal Amount together with accrued interest to (but
excluding) the date of redemption on the next Payment Date, provided
that the redemption is made in the order of priority set out in
paragraph (a).
(f) A Noteholder shall not be entitled to receive any amounts other than:
(i) the Interest payable on, and
(ii) the Principal Amount of,
Notes held by that Noteholder.
(g) The Trustee may not recover any Beneficiary Distribution from a
Beneficiary once it is paid to that Beneficiary except where there has
been an error in the relevant calculation of the Beneficiary
Distribution.
(h) If, on a Payment Date, the Trust Manager directs the Trustee that the
Threshold Requirements are satisfied, amounts applied under clause
6.6(a)(i)(D)(1) must be deposited or paid, pari passu and rateably:
(i) (A) prior to the termination of the Class A2 Currency Swap, to
the Class A2 Currency Swap Provider of the Class A2 A$
Equivalent of the Principal Amount of the Class A2 Notes on
that Payment Date (and any reciprocal payment by the Class
A2 Currency Swap Provider is thereafter to be applied in
accordance with clause 6.9(a)(ii) towards payment of the
Principal Amount of the Class A2 Notes (in the proportion as
specified in
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clause 6.6(a)(iii)) until such time as all Class A2 Notes
have been redeemed in full; and
(B) after the termination of the Class A2 Currency Swap, to the
Note Trustee for application in accordance with clause
6.8(a) of the Class A2 A$ Equivalent of the Principal Amount
of the Class A2 Notes on that Payment Date until such time
as all Class A2 Notes have been redeemed in full;
(ii) (A) prior to the termination of the Class A3 Currency Swap, to
the Class A3 Currency Swap Provider of the Class A3 A$
Equivalent of the Principal Amount of the Class A3 Notes on
that Payment Date (and any reciprocal payment by the Class
A3 Currency Swap Provider is thereafter to be applied in
accordance with clause 6.11(a)(ii) towards payment of the
Principal Amount of the Class A3 Notes (in the proportion as
specified in clause 6.6(a)(iii)) until such time as all
Class A3 Notes have been redeemed in full; and
(B) after the termination of the Class A3 Currency Swap, to the
Note Trustee for application in accordance with clause
6.10(a) of the Class A3 A$ Equivalent of the Principal
Amount of the Class A3 Notes on that Payment Date until such
time as all Class A3 Notes have been redeemed in full;
(iii) to Class A4 Noteholders (in the proportion as specified in
clause 6.6(a)(iii)) in payment of the Principal Amount of the
Class A4 Notes until such time as all Class A4 Notes have been
redeemed in full;
(iv) (A) prior to the termination of the Class B1 Currency Swap, to
the Class B1 Currency Swap Provider of the Class B1 A$
Equivalent of the Principal Amount of the Class B1 Notes on
that Payment Date (and any reciprocal payment by the Class
B1 Currency Swap Provider is thereafter to be applied in
accordance with clause 6.9(a)(iv) towards payment of the
Principal Amount of the Class B1 Notes (in the proportion as
specified in clause 6.6(a)(iii)) until such time as all
Class B1 Notes have been redeemed in full; and
(B) after the termination of the Class B1 Currency Swap, to the
Note Trustee for application in accordance with clause
6.8(a) of the Class B1 A$ Equivalent of the Principal Amount
of the Class B1 Notes on that Payment Date until such time
as all Class B1 Notes have been redeemed in full; and
(v) to Class B2 Noteholders (in the proportion as specified in clause
6.6(a)(iii)) in payment of the Principal Amount of the Class B2
Notes until such time as all Class B2 Notes have been redeemed in
full,
provided that each such amount specified in this clause 6.6(h) shall
only be paid or deposited to the extent that such payment or deposit
will not result in a breach of the Threshold Requirements.
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(i) If, on a Payment Date, the Trust Manager directs the Trustee that the
Threshold Requirements are not satisfied, amounts applied under clause
6.6(a)(i)(D)(2) must be deposited or paid in the following order of
priority:
(i) first, pari passu and rateably:
(A) (1) prior to the termination of the Class A2 Currency Swap,
to the Class A2 Currency Swap Provider of the Class A2
A$ Equivalent of the Principal Amount of the Class A2
Notes on that Payment Date (and any reciprocal payment
by the Class A2 Currency Swap Provider is thereafter to
be applied in accordance with clause 6.9(a)(ii) towards
payment of the Principal Amount of the Class A2 Notes
(in the proportion as specified in clause 6.6(a)(iii));
and
(2) after the termination of the Class A2 Currency Swap, to
the Note Trustee for application in accordance with
clause 6.8(a) of the Class A2 A$ Equivalent of the
Principal Amount of the Class A2 Notes on that Payment
Date,
and, in each case, until such time as the Class A2 Notes
have been redeemed in full;
(B) (1) prior to the termination of the Class A3 Currency Swap,
to the Class A3 Currency Swap Provider of the Class A3
A$ Equivalent of the Principal Amount of the Class A3
Notes on that Payment Date (and, any reciprocal payment
by the Class A3 Currency Swap Provider is thereafter to
be applied in accordance with clause 6.11(a)(ii)
towards payment of the Principal Amount of the Class A3
Notes (in the proportion as specified in clause
6.6(a)(iii)); and
(2) after the termination of the Class A3 Currency Swap, to
the Note Trustee for application in accordance with
clause 6.10(a) of the Class A3 A$ Equivalent of the
Principal Amount of the Class A3 Notes on that Payment
Date,
and, in each case, until such time as the Class A3 Notes
have been redeemed in full;
(C) to Class A4 Noteholders (in the proportion as specified in
clause 6.6(a)(iii)) in payment of the Principal Amount of
the Class A4 Notes, until such time as the Class A4 Notes
have been redeemed in full.
(ii) second, pari passu and rateably:
(A) (1) prior to the termination of the Class B1 Currency Swap,
to the Class B1 Currency Swap Provider of the Class B1
A$ Equivalent of the Principal Amount of the Class B1
Notes on that Payment Date (and any reciprocal payment
by the Class B1 Currency Swap Provider is thereafter to
be applied in accordance with clause 6.9(a)(iv) towards
payment of the Principal Amount of the
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Class B1 Notes (in the proportion as specified in
clause 6.6(a)(iii)); and
(2) after the termination of the Class B1 Currency Swap, to
the Note Trustee for application in accordance with
clause 6.8(a) of the Class B1 A$ Equivalent of the
Principal Amount of the Class B1 Notes on that Payment
Date; and
(B) to Class B2 Noteholders (in the proportion as specified in
clause 6.6(a)(iii)) in payment of the Principal Amount of
the Class B2 Notes,
and, in each case, until such time as the Class B Notes have been
redeemed in full.
6.7 Charge-offs
If, on any Payment Date, the Aggregate Principal Loss Amount for the
corresponding Collection Period exceeds the amount allocated or available
for allocation on that Payment Date under clause 6.5(a)(viii), the amount
of such excess will be the Charge-off for that Payment Date.
6.8 Payments into US$ Account
(a) The Note Trustee must, on each Payment Date on which the Trustee pays
an amount under clause 6.5(a)(v)(C)(2), 6.5(a)(vi)(B)(2),
6.6(h)(i)(B), 6.6(h)(iv)(B), 6.6(i)(i)(A)(2) or 6.6(i)(ii)(A)(2) (the
AUD US$ Amount), pay into the US$ Account or to the Principal Paying
Agent under the Agency Agreement, an amount in US$ equal to the AUD
US$ Amount at the spot exchange rate in New York City for US$
purchases of Australian dollars on that Payment Date.
(b) The Trustee must direct each Currency Swap Provider to pay all amounts
denominated in US$ payable to the Trustee by that Currency Swap
Provider under the relevant Currency Swap into the US$ Account or to
the Principal Paying Agent under the Agency Agreement.
(c) If the Trustee, the Trust Manager or the Servicer receives any amount
denominated in US$ from a Currency Swap Provider under a Currency Swap
or from the Note Trustee under clause 6.8(a) it will promptly pay that
amount to the credit of the US$ Account.
6.9 Payments out of US$ Account
(a) The Trustee must, or must require that the Paying Agents on its
behalf, at the direction of the Trust Manager, pay all amounts
credited to the US$ Account by each Currency Swap Provider, by the
Note Trustee under clause 6.8(a) or under clause 6.8(c) as follows
(and in accordance with the Note Trust Deed and the Agency Agreement)
(in no order of priority):
(i) as contemplated in clauses 6.5(a)(v)(C)(1) and 6.5(a)(v)(C)(2),
pari passu in relation to Class A2 Notes as payments of Interest
on those Class A2 Notes;
(ii) as contemplated in clauses 6.6(h)(i)(A), 6.6(h)(i)(B),
6.6(i)(i)(A)(1) and 6.6(i)(i)(A)(2), pari passu to Class A2
Noteholders in payment of the Principal Amount of the Class A2
Notes until such time as all Class A2 Notes have been redeemed in
full;
(iii) as contemplated in clauses 6.5(a)(vi)(B)(1) and
6.5(a)(vi)(B)(2), pari passu in relation to Class B1 Notes as
payments of Interest on those Class B1 Notes;
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(iv) as contemplated in clauses 6.6(h)(iv)(A), 6.6(h)(ii)(B),
6.6(i)(iv)(A)(1) and 6.6(i)(ii)(A)(2), pari passu to Class B1
Noteholders in payment of the Principal Amount of the Class B1
Notes until such time as all Class B1 Notes have been redeemed in
full;
(v) as contemplated in clauses 6.6(b), (c), (d) or (e):
(A) pari passu to Class A2 Noteholders in relation to Class A2
Notes; and
(B) pari passu to Class B1 Noteholders in relation to Class B1
Notes,
as payment of redemption amounts; and
(vi) as contemplated in clause 4.4(b)(iii):
(A) pari passu to Class A2 Noteholders in relation to Class A2
Notes; and
(B) pari passu to Class B1 Noteholders in relation to Class B1
Notes,
as payment of redemption amounts.
6.10 Payments into Euro Account
(a) The Note Trustee must, on each Payment Date on which the Trustee pays
an amount under clause 6.5(a)(v)(D)(2), 6.6(h)(ii)(B) or
6.6(i)(i)(B)(2) (the AUD Euro Amount), pay into the Euro Account or to
the Principal Paying Agent under the Agency Agreement, an amount in
Euro equal to the AUD Euro Amount at the spot exchange rate in London
for Euro purchases of Australian dollars on that Payment Date.
(b) The Trustee must direct each Currency Swap Provider to pay all amounts
denominated in Euros payable to the Trustee by that Currency Swap
Provider under the relevant Currency Swap into the Euro Account or to
the Principal Paying Agent under the Agency Agreement.
(c) If the Trustee, the Trust Manager or the Servicer receives any amount
denominated in Euros from a Currency Swap Provider under the Class A3
Currency Swap or from the Note Trustee under clause 6.10(a) it will
promptly pay that amount to the credit of the Euro Account.
6.11 Payments out of Euro Account
(a) The Trustee must, or must require that the Paying Agents on its
behalf, at the direction of the Trust Manager, pay all amounts
credited to the Euro Account by the Class A3 Currency Swap Provider,
by the Note Trustee under clause 6.10(a) or under clause 6.10(c) as
follows (and in accordance with the Note Trust Deed and the Agency
Agreement) (in no order of priority):
(i) as contemplated in clauses 6.5(a)(v)(D)(1) and 6.5(a)(v)(D)(2),
pari passu in relation to Class A3 Notes as payments of Interest
on those Class A3 Notes;
(ii) as contemplated in clauses 6.6(h)(ii)(A), 6.6(h)(ii)(B),
6.6(i)(i)(B)(1) and 6.6(i)(i)(B)(2), pari passu to Class A3
Noteholders in payment of the Principal Amount of the Class A3
Notes until such time as all Class A3 Notes have been redeemed in
full;
(iii) as contemplated in clauses 6.6(b), (c), (d) or (e) pari passu to
Class A3 Noteholders in relation to Class A3 Notes as payment of
redemption amounts; and
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(iv) as contemplated in clause 4.4(b)(iii) pari passu to Class A3
Noteholders in relation to Class A3 Notes as payment of
redemption amounts.
6.12 Rounding of amounts
In making the calculations required or contemplated by this clause 6, the
Servicer or the Trust Manager (as the case may be) shall round calculations
to four decimal places, except that all monetary amounts shall be rounded
down to the nearest cent or as otherwise required in this Series Notice.
6.13 Prescription
Despite any other provision of this Series Notice and the Master Trust
Deed:
(a) Condition 8 of the US$ Notes applies to all amounts payable in
relation to any US$ Note; and
(b) Condition 8 of the Class A3 Notes applies to all amounts payable in
relation to any Class A3 Note.
6.14 Replacement of Currency Swaps
(a) If a Currency Swap is terminated, the Trustee must, at the direction
of the Trust Manager, enter into one or more currency swaps which
replace that Currency Swap (in a form reasonably satisfactory to the
Trustee) (collectively a Replacement Currency Swap) but only on the
following conditions:
(i) the Settlement Amount (as defined in the relevant Currency Swap)
payable (if any) by the Trustee to the relevant Currency Swap
Provider will be paid in full when due in accordance with this
Series Notice and the relevant Currency Swap;
(ii) the Designated Rating Agencies confirm that the Replacement
Currency Swap will not cause a reduction or withdrawal of the
rating of the Class A2 Notes (in the case of a replacement of the
Class A2 Currency Swap), the Class A3 Notes (in the case of a
replacement of the Class A3 Currency Swap) or the Class B1 Notes
(in the case of a replacement of the Class B1 Currency Swap); and
(iii) the liability of the Trustee under the Replacement Currency Swap
is limited to at least the same extent that its liability is
limited under the replaced Currency Swap.
(b) If the conditions in (a) are satisfied, the Trustee must, at the
direction of the Trust Manager, enter into the Replacement Currency
Swap and if it does so it must direct the Replacement Currency Swap
Provider to pay any upfront premium to enter into the Replacement
Currency Swap due to the Trustee directly to the outgoing Currency
Swap Provider in satisfaction of and only to the extent of the
Trustee's obligation to pay the Settlement Amount (as defined in the
relevant Currency Swap) as referred to in (a) and:
(i) to the extent that such premium is not greater than or equal to
the Settlement Amount (as defined in the relevant Currency Swap),
the balance must be satisfied by the Trustee as an Expense of the
Trust; or
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(ii) to the extent that such premium is greater than the Settlement
Amount (as defined in the relevant Currency Swap), the excess
will form part of the Assets of the Trust.
(c) If the conditions in (a) are satisfied and the Trustee has entered
into the Replacement Currency Swap, the Trustee must direct the
outgoing Currency Swap Provider to pay any Settlement Amount (as
defined in the relevant Currency Swap) payable by the outgoing
Currency Swap Provider to the Trustee on termination of the relevant
Currency Swap directly to the Replacement Currency Swap Provider in
satisfaction of and only to the extent of any premium payable by the
Trustee to enter into the Replacement Currency Swap, in satisfaction
of and to the extent of the outgoing Currency Swap Provider's
obligation to pay that part of the Settlement Amount (as defined in
the relevant Currency Swap) to the Trustee, and:
(i) to the extent that such premium is greater than or equal to the
Settlement Amount (as defined in the relevant Currency Swap), the
balance must be satisfied by the Trustee as an Expense of the
Trust; or
(ii) to the extent that such premium is not greater than the
Settlement Amount (as defined in the relevant Currency Swap), the
excess will form part of the Assets of the Trust.
6.15 Payment Priorities Following enforcement of the Security Trust Deed
Notwithstanding any other provision of this clause 6, following the
enforcement of the Security Trust Deed pursuant to clause 9.1 of the
Security Trust Deed, the priority of payments with respect to the Trust
will be governed by that deed.
7. Master Trust Deed, Investment Management Agreement and Representations,
Warranties and Undertakings
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7.1 Completion of details in relation to Master Trust Deed
(a) (Trust Manager's Fee) For the purpose of clause 18 of the Master Trust
Deed, the fee payable to the Trust Manager in respect of the Trust for
each Collection Period will be an amount calculated:
(i) on the aggregate of:
(A) the Principal Amount of all Registered Notes;
(B) the Class A2 A$ Equivalent of the Principal Amount of all
Class A2 Notes;
(C) the Class A3 A$ Equivalent of the Principal Amount of all
Class A3 Notes; and
(D) the Class B1 A$ Equivalent of the Principal Amount of all
Class B1 Notes,
on the first day of that Collection Period;
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(ii) at the rate of 0.055% per annum or as otherwise agreed by the
Trust Manager and the Trustee from time to time; and
(iii) on the actual number of days in the Collection Period divided by
365 days,
and shall accrue from day to day.
(b) (Trustee's Fee) For the purpose of clause 22.1 of the Master Trust
Deed, the fee payable to the Trustee in respect of the Trust for each
Collection Period will be an amount as agreed between the Trustee and
the Trust Manager from time to time, subject to clause 6.5(g), which
fee shall not include the Trust Manager's Fee or the Approved Seller's
Fee.
(c) (Approved Seller's Fee)
For the purpose of clause 8.12 of the Master Trust Deed, the fee
payable to the Approved Seller in respect of the Trust for each
Collection Period will be an amount as agreed between the Approved
Seller and the Trust Manager from time to time, which fee may include
an entitlement to interest in the event of late payment but which fee
shall not include any amount attributable to:
(i) any Taxes;
(ii) any Trustee's Fee;
(iii) any other Expenses (other than the Trust Manager's Fee);
(iv) any payment to the Trust Manager of the Trust Manager's Fee;
(v) any net amounts payable to any Swap Provider as required under
any Hedge Agreement;
(vi) any payment of Interest to Noteholders; and
(vii) any amount by way of replenishment of the Assets of the Trust.
(d) (Servicer's Fee) For the purpose of clause 6.1 of the Investment
Management Agreement, the fee payable to the Servicer in respect of
the Trust for each Collection Period will be an amount calculated:
(i) on the aggregate of:
(A) the Principal Amount of all Registered Notes;
(B) the Class A2 A$ Equivalent of the Principal Amount of all
Class A2 Notes;
(C) the Class A3 A$ Equivalent of the Principal Amount of all
Class A3 Notes; and
(D) the Class B1 A$ Equivalent of the Principal Amount of all
Class B1 Notes,
on the first day of that Collection Period;
(ii) at the rate of [0.22]% per annum or as otherwise agreed by the
Servicer and the Trustee from time to time; and
(iii) on the actual number of days in the Collection Period divided by
365 days,
and shall accrue from day to day.
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(e) (Fee changes to take account of GST) Subject to clause 6.5(f), none of
the above fees in this clause 7.1 are to be increased by reference to
any applicable GST unless:
(i) the Trustee, the Trust Manager and the recipient of the relevant
fee agree (that agreement not to be unreasonably withheld); and
(ii) the increase will not result in the downgrading or withdrawal of
the rating assigned to any Notes by any Designated Rating Agency.
7.2 Amendments to Master Trust Deed
The Master Trust Deed is amended for the purpose of the Trust as follows:
(a) Clause 1 - Definitions and interpretation
(i) For the purposes of the definition of Authorised Investments in
clause 1.1 of the Master Trust Deed:
(A) delete the words "an Approved Bank" in paragraph (b) and
replace it with the words "a bank rated A-1+ by S&P and P-1
by Moody's (an Authorised Bank)";
(B) delete the words "Approved Bank" in paragraph (c) and
replace them with the words "Authorised Bank";
(C) replace the wording in sub-paragraph (i) before
sub-paragraph (i)(A) with "unless otherwise advised in
writing by each Designated Rating Agency";
(D) replace sub-paragraph (i)(A) and (i)(B) with a sub-paragraph
(i)(A) as follows:
"(A) each proposed investment falling within categories (b),
(c) and (d) must have a credit rating issued by S&P of
A-1+ and by Moody's of P-1 or by S&P of AAA and by
Moody's of Aaa;
(E) re-label sub-paragraph (i)(C) to be (i)(B) and insert at the
end of the sub-paragraph the words " and by Moody's of Aaa";
and
(F) delete the words in sub-paragraph (ii)(A) after "it was
acquired".
(ii) For the purposes of the definition of Expenses in clause 1.1 of
the Master Trust Deed:
(A) insert ", DTC" in paragraph (t) after "Stock Exchange" ;
(B) in paragraph (t), delete the word "and' after the
semi-colon;
(C) replace the comma at the end of paragraph (u) with "; and";
and
(D) add a new paragraph (v) at the end as follows:
"(u) any fees or expenses payable to a Paying Agent or
Calculation Agent,".
(iii) For the purposes of the definition of Insolvency Event in clause
1.1 of the Master Trust Deed, replace "or a Mortgage Insurer"
with ", a Mortgage Insurer, a Title Insurer or any other
corporation" before "(each a relevant corporation)".
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(iv) For the purposes of the definition of Related Security in clause
1.1 of the Master Trust Deed:
(A) re-letter the existing subparagraph (d) as subparagraph (e);
and
(B) insert as a new subparagraph (d) "any Title Insurance Policy
in relation to a Mortgage securing the loan and any amounts
received by the Trustee (or a Servicer on its behalf) under
any Title Insurance Policy.".
(v) Insert the following new definitions in clause 1.1 of the Master
Trust Deed:
Residual Income Beneficiary means, in relation to a Trust at any
time, any person who holds a Residual Income Unit in that Trust
at that time.
Residual Income Unit in relation to a Trust, has the meaning
given in the Series Notice for that Trust.
(vi) Insert the following definition in clause 1.1 of the Master Trust
Deed:
Title Insurance Policy means any title insurance policy specified
as a Title Insurance Policy in the Series Notice for that Trust.
(vii) Insert the following definition in clause 1.1 of the Master
Trust Deed:
Title Insurer means any title insurer specified as a Title
Insurer in the Series Notice for that Trust.
(b) Clause 6 - Origination
For the purposes of clause 6(a) of the Master Trust Deed, insert the
words "or the Trust Manager" after "Note Issue Direction".
(c) Clause 8 - Acquisition from Approved Seller
(i) The following provisions replace clause 8.1 of the Master Trust
Deed.
"Where:
(a) a Note Issue Direction directs that the Trustee issues Notes
to fund; or
(b) there is an investment proposal or direction by the Trust
Manager (in accordance with the Transaction Documents) for,
the acquisition of Authorised Investments from an Approved Seller
under a Sale Notice under clause 8.3 of the Master Trust Deed and
the Trustee implements the direction or proposal, the Trustee
shall use the proceeds of the relevant issue of Notes for the
purpose of the acquisition in accordance with clause 8 of the
Master Trust Deed."
(ii) For the purposes of clause 8.4(a) of the Master Trust Deed:
(A) delete clause 8.4(a)(i);
(B) insert in clause 8.4(a)(ii) before "the Trust Manager", the
words "(where clause 8.1(a) applies)"; and
(C) each of the following is a condition precedent to the giving
of the Sale Notice:
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(Certified copies) The Trustee has received certified copies
of the forms of each Mortgage Insurance Policy and Title
Insurance Policy, and the forms of the Loan Agreements,
relating to the Purchased Loans.
(Release) The Trustee has received evidence that the
Purchased Loans and related Loan Rights will be released
from any Security Interest as of the Closing Date.
(iii) For the purposes of clause 8.7(b) of the Master Trust Deed and
clauses 6.6(b) to (d) (inclusive), the following provisions
apply:
(A) On the date on which a redemption of Notes under clause
6.6(b), (c) or (d) is to occur, the Trust Manager may direct
the Trustee to offer to sell the Loans held by the Trustee
to an Other Trust or any other person in accordance with the
Master Trust Deed and any relevant Series Notice.
(B) The Trustee as trustee of the Trust will do all things
reasonably necessary to give effect to the disposal of the
Loans held by the Trustee to that Other Trust or other
person (as the case may be) in accordance with the Master
Trust Deed and any relevant Series Notice.
(C) In the case of a disposal to an Other Trust, the Trust
Manager may only give the direction referred to in
sub-paragraph (iii)(A) to the extent that funds are
available to the Other Trust to acquire those assets.
(iv) For the purposes of clause 8.8 of the Master Trust Deed:
(A) in relation to sub-paragraph (a)(i):
(1) delete the words "after a Note Issue Date"; and
(2) replace the words "corresponding Note Issue Direction"
with "relevant Sale Notice";
(B) in relation to sub-paragraph (a)(ii):
(1) delete the words "after the Note Issue Date" and the
words "as soon as possible";
(2) insert the words "or Sale Notice" after "in that Series
Notice";
(3) insert the words "Series Notice or" before "Sale Notice
in respect of"; and
(4) replace the words "corresponding Note Issue Direction"
with "relevant Sale Notice"; and
(C) in relation to paragraph (b):
(1) delete the words "on or" and "after a Note Issue Date";
(2) replace the words "corresponding Note Issue Direction"
with "relevant Sale Notice"; and
(3) replace the words "the Note Issue Date" with "the
relevant Closing Date" (where it appears twice).
(d) Clause 11 - Limits on rights of Noteholders and Beneficiary
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For the purposes of clause 11.1 of the Master Trust Deed:
(i) in relation to paragraph (h), insert ", Security Trustee" after
"Trustee";
(ii) in relation to paragraph (k), insert "or an Approved Seller"
after "Trust Manager";
(iii) replace paragraph (l) with the following:
"(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, the Security Trustee or the Servicer or any former
Trustee, Trust Manager, Security Trustee 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, the Security Trustee and the Servicer to comply
with their respective duties and obligations under the
Transaction Documents"; and
(iv) replace paragraph (m) with the following:
"(m) (recourse to personal assets) any recourse whatsoever to the
Trustee, the Security 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 or as provided in the relevant Transaction
Documents in relation to the Security Trustee."
(e) Clause 12 - Procedure for Issue of Notes
(i) For the purposes of clause 12.1 of the Master Trust Deed, the
Note Issue Direction for the Notes may be issued by the Trust
Manager on or at any time prior to the Note Issue Date for the
Notes.
(ii) For the purposes of clause 12.6(a) of the Master Trust Deed, the
certification by the Trust Manager may occur on or at any time
prior to the Note Issue Date for the Notes.
(f) Clause 13 - Transfers of Notes
The following provisions replace clause 13.3 of the Master Trust Deed:
"(a) Notes can only be transferred if:
(i) the amount payable on acceptance of the offer by the
transferee is a minimum amount of $500,000 (disregarding any
amount payable to the extent to which it is to be paid out
of money lent by the person offering the Notes or an
associate (as defined in Division 2 of Part 1.2 of the
Corporations Act)); or
(ii) the offer or invitation to the transferee by the Noteholder
in relation to such Notes does not otherwise require
disclosure under Part 6D.2 of the Corporations Act and the
Corporations Regulations made under the Corporations Act.
(b) Prior to purchasing any Notes, purchasers should consult counsel
with respect to the availability and conditions of exemption from
the restriction on resale or transfer.".
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(g) Clause 15 - The Register
(i) For the purposes of clause 15.3(a) of the Master Trust Deed, the
Trustee and the Trust Manager agree that the Register with
respect to the Trust may be kept at the Trustee's principal
office in Sydney.
(ii) For the purposes of clause 15.5 of the Master Trust Deed, the
Trustee may:
(A) without prior notice to the Noteholders close the Register:
(1) in relation to any Note, each period from the close of
business (Sydney time) on the date which is 5 Business
Days before each Payment Date for that Note to close of
business on that Payment Date; or
(2) when required for the Auditor to conduct any audit in
relation to the Trust; or
(B) with prior notice to the Registered Noteholders, close the
Register for other periods not exceeding 30 days (or such
other period of time as agreed between the Trustee and the
Trust Manager, with the approval of an Extraordinary
Resolution of Registered Noteholders) in aggregate in any
calendar year.
(h) Clause 17 - The Trust Manager
Reference in clause 17.20(e) to "the Designated Rating Agency' is
amended to be reference to "each Designated Rating Agency".
(i) Clause 19 - Retirement, removal and replacement of Trust Manager
(i) Each reference in clause 19 to "the Designated Rating Agency",
"the Trusts" and "Series Notices" is amended to be a reference to
"each Designated Rating Agency", "the Trust" and "Series Notice"
respectively.
(ii) Clause 19.3 is amended by adding as a final sentence: "In this
clause `materially prejudice' includes withdrawal, qualification
or downgrade of the rating assigned to a Note by any Designated
Rating Agency".
(j) Clause 20 - Trustee's powers
For the purposes of clause 20.4 of the Master Trust Deed:
(i) insert "in relation to the Registered Notes," at the beginning of
sub-paragraph (b)(iii);
(ii) insert a new sub-paragraph (b)(iv) as follows:
"(iv) in relation to Non-A$ Notes, to a Paying Agent (in respect
of which the Trustee is not liable for its acts or
omissions)"; and
(iii) replace "or Austraclear" in sub-paragraph (d)(i) with ",
Austraclear or a Paying Agent".
(k) Clause 23 - Removal, retirement and replacement of Trustee
Each reference in clause 23 of the Master Trust Deed to "the
Designated Rating Agency" is amended to be reference to "each
Designated Rating Agency".
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(l) Clause 26 - Bank Accounts
Clause 26.1(d)(i) of the Master Trust Deed is amended by adding "or
P-2 or below by Moody's" after the words "A-1 (S&P) or below".
(m) Clause 27 - Auditor
Each reference in clause 27 to "the Designated Rating Agency" is
amended to be reference to "each Designated Rating Agency".
(n) Clause 29 - Income Entitlements and Payments
For the purposes of the Trust, clause 29 of the Master Trust Deed is
deleted and a new clause 29 inserted as follows:
"29. Income Entitlements and Payments
29.1 Cashflow Allocation Methodology
Collections in relation to a Trust and other amounts credited to
the Collection Account for that 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 Income of the Trust
For each Financial Year in respect of a Trust the Trust Manager
will ascertain the following on behalf of the Trustee:
(a) the net income of that Trust in accordance with section
95(1) of the Tax Act (the Tax Income); and
(b) the net income of that Trust in accordance with conventional
accounting principles applicable to the administration of
trusts (the Accounting Income).
29.3 Income Entitlement
Notwithstanding anything to the contrary contained in this deed:
(a) (Present entitlement) the Residual Income Beneficiaries
shall, as at the end of each Financial Year for that Trust,
have an absolute vested interest in, and be presently
entitled to, the income of that Trust; and
(b) (Application of income) unless the Trust Manager otherwise
determines, having regard to any relevant taxation or other
implications for the Trustee (disregarding for these
purposes any possible operation of clause 29.4) or both for
any Financial Year for that Trust, for the purposes of
paying, applying, distributing, setting aside or allocating
any income for the benefit of those Residual Income
Beneficiaries in accordance with the terms of this deed in
respect of that Financial Year, the income that is to be so
paid, applied, distributed, set aside or allocated shall be
whichever is the greater of the Tax Income or the Accounting
Income for that Financial Year.
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29.4 Distribution of excess Tax Income
For the avoidance of doubt, in the event that the Tax Income
exceeds the Accounting Income for a Trust in any Financial Year
for that Trust then, notwithstanding anything to the contrary in
this deed, the Trust Manager must direct the Trustee to, and the
Trustee must, so far as possible, ensure that such excess is
allocated to the Residual Income Beneficiaries of that Trust in
proportion to their respective Income Percentages for that
Financial Year and shall take such action as is necessary to give
effect to this clause.
29.5 Payments to Beneficiaries
(a) (Distributable income due as at close of Financial Year) The
income of a Trust for a Financial Year (to the extent not
previously distributed) shall, subject to clause 29.7,
constitute a debt due as at the end of that Financial Year
by the Trustee as trustee of the Trust to each Residual
Income Beneficiary of that Trust who is entitled to the
income under clause 29.3(a) and shall, subject to clause
29.7, be payable under clause 29.5(b).
(b) (Payment) Subject to clause 29.7, the Trustee may make
interim distributions of the income of a Trust to the
relevant Residual Income Beneficiaries 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 income of that Trust (to
the extent not previously distributed) from the central bank
account of that Trust to the bank accounts of each Residual
Income Beneficiary of that Trust as directed by the relevant
Beneficiary.
(c) (Residual capital) On the termination of a Trust, the
surplus capital of that Trust remaining after satisfaction
by the Trustee of all its obligations in respect of that
Trust shall be paid to the Residual Income Beneficiaries of
that Trust in accordance with the terms of the Series Notice
for that Trust.
29.6 Application of Trust income
(a) If by the last day of any Financial Year for a Trust (the
Last Day) the Trustee has not effectively dealt with the
whole of the income of that Trust for that Financial Year by
paying, applying or distributing it, or by setting it aside,
then the income not so paid, applied, distributed or set
aside shall be deemed to have been irrevocably applied and
set aside on the Last Day by the Trustee on behalf of, and
shall be held by the Trustee on and from the Last Day upon
trust absolutely for, the Residual Income Beneficiaries of
that Trust in accordance with their entitlement to income
under this deed (including, for these purposes, the
allocation of excess Tax Income (if any) pursuant to clause
29.4).
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(b) If the Trustee fails to effectively allocate any excess to a
Residual Income Beneficiary in accordance with clause 29.4,
then such excess shall vest or be deemed to be vested in
that Residual Income Beneficiary.
(c) Unless the Trust Manager otherwise determines, having regard
to any relevant taxation or other implications for the
Trustee or both for any Financial Year for that Trust, for
the purposes of this clause 29.6 references to income of
that Trust for any Financial Year shall be to the greater of
the Tax Income or the Accounting Income for that Financial
Year.
29.7 Subordination of Residual Income Beneficiaries' Entitlements
(a) No moneys may be paid out of a Trust during a Financial Year
to a Residual Income Beneficiary under clause 29.5, 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 that Trust, accruing
during that 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 a Residual Income
Beneficiary, that Residual Income Beneficiary directs the
Trustee to meet the amount payable under clause 29.1 as an
application of that Residual Income Beneficiary's
entitlement to the income of that Trust.
(b) Notwithstanding paragraph (a) of this clause, once an amount
is paid out of a Trust to a Residual Income Beneficiary
during a Financial Year, that amount may not be recovered
from that Residual Income Beneficiary for any reason or by
any person except to the extent that the amount was paid in
error.
29.8 Insufficient moneys
If after the application of the provisions of clauses 29.1 and
29.3 there is insufficient money available to the Trustee in
respect of a Trust to pay the full amount due to Noteholders for
that Trust, the deficiency shall, subject to the Series Notice
for the Notes or any Class of the Notes issued in relation to
that Trust, be borne by the Noteholders in the manner set out in
the relevant Series Notice.
29.9 Trust Manager to ensure compliance by Trustee
Without limiting its other obligations under this deed, the Trust
Manager, in exercising its powers and carrying out its duties in
accordance with this deed, must, to the extent possible, ensure
that the Trustee complies with its obligations under clauses
29.3(b) and 29.4."
(o) Clause 32 - Trustee's and Trust Manager's powers, liability and
indemnity generally
(i) The following provisions replace clause 32.16 of the Master Trust
Deed.
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"(a) The Trustee enters into the Transaction Documents and issues
the Notes only in its capacity as trustee of the Trust and
in no other capacity. A liability incurred by the Trustee
acting in its capacity as trustee of the Trust arising under
or in connection with the Transaction Documents or the Trust
or in respect of the Notes is limited to and can be enforced
against the Trustee only to the extent to which it can be
satisfied out of the Assets of the 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 the Transaction Documents 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 the
Transaction Documents or the Trust.
(b) The parties other than the Trustee may not sue the Trustee
in any capacity other than as trustee of the Trust or seek
the appointment of a receiver (except in relation to the
Assets of the Trust), liquidator, administrator or similar
person to the Trustee or prove in any liquidation,
administration or arrangements of or affecting the Trustee
(except in relation to the Assets of the Trust).
(c) The provisions of this clause 32.16 do not apply to any
obligation or liability of the Trustee to the extent that it
is not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of the
Trustee's indemnification out of the Assets of the Trust as
a result of the Trustee 's fraud, negligence, or wilful
default.
(d) It is acknowledged that the Relevant Parties are responsible
under the Transaction Documents for performing a variety of
obligations relating to the Trust. No act or omission of the
Trustee (including any related failure to satisfy its
obligations or breach of representation or warranty under
the Transaction Documents) 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 Relevant Parties (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
Relevant Parties (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 a Transaction Document 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
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appointed by the Trustee) that the Trustee has exercised
reasonable care in the selection of such persons.
(f) The Trustee will not be regarded as negligent or in breach
of trust to the extent to which it accepts and relies on an
opinion, advice or letter from a professional adviser
(legal, financial, audit or otherwise) which contains a
dollar amount limitation on that professional adviser's
liability.
(g) In this clause 32.16, Relevant Party means each of the Trust
Manager, the Servicer, the Calculation Agent, each Paying
Agent, the Note Trustee and any Support Facility Provider."
(ii) (A) Subject to sub-paragraph (B), the following provisions
replace clause 32.18 of the Master Trust Deed.
"(a) (Indemnity from the 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 the 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 the 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 the Trust.
(b) (Preservation of right and indemnity) The Trustee's
right to be indemnified in accordance with paragraph
(a), applies 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 the Master Trust Deed or any Series
Notice.
(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,
the Trust Manager and the Servicer agree that:
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(A) the Servicer shall be the "nominated credit
provider" for the purposes of regulation 75 of any
Consumer Credit Legislation in relation to the
Trust; and
(B) the Servicer shall not cease to be the "nominated
credit provider" until such time as:
(1) the Servicer is removed from the office of
Servicer; and
(2) another person (other than the Trustee)
becomes the "nominated credit provider" in
relation to the Trust.
(e) (Indemnity from Servicer) The Servicer indemnifies the
Trustee in relation to the 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 the Trust and arising in
connection with the performance of its duties or
exercise of its powers under this deed in relation to
the Trust, except to the extent that such Penalty
Payments arose as a result of the fraud, negligence or
wilful default of the Trustee.
(f) (Acceptable Insurance Policy)
(i) To further and better secure the obligations of
the Servicer under this clause 32.18, the Servicer
shall effect an Acceptable Insurance Policy.
(ii) If the Servicer is obliged to indemnify the
Trustee under this clause 32.18, the Servicer will
promptly make a claim under the Acceptable
Insurance Policy and do all things reasonably
required to obtain payment of that claim.
(iii) The Servicer shall provide the Trustee with
evidence of the renewal of the Acceptable
Insurance Policy within seven days of the date of
renewal of the Acceptable Insurance Policy.
(iv) Upon the Acceptable Insurance Policy lapsing or
becoming void for any reason whatsoever, the
Servicer shall immediately:
(A) notify the Trustee that the Acceptable
Insurance Policy has lapsed or become void;
and
(B) effect alternative arrangements acceptable to
the Trustee and obtain confirmation from each
Designated Rating Agency that the rating of
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the Notes rated by it will not be adversely
affected.
(g) (Calling upon indemnity) The Trustee will call upon the
indemnity under paragraph (e) before it calls on 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).
(h) (Granting indemnity) 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
Servicer."
(B) The definition of Penalty Payment in clause 32.18 of the
Master Trust Deed shall apply.
7.3 Amendments to Investment Management Agreement
The Investment Management Agreement is amended for the purposes of the
Trust as follows.
(a) Interstar Securitisation Management Pty Limited accedes to the
Investment Management Agreement and each of the Servicer, the Trustee
and Interstar Securitisation Management Pty Limited agree, acknowledge
and confirm that:
(i) as trust manager of the Interstar Millennium Series 2003-3G
Trust, Interstar Securitisation Management Pty Limited will be
bound by the duties and obligations imposed on the "Trust
Manager" (as that term is defined in the Investment Management
Agreement) by the Investment Management Agreement in all respects
as if it had originally been named as a party to the Investment
Management Agreement as the trust manager; and
(ii) as trust manager of the Interstar Millennium Series 2003-3G
Trust, Interstar Securitisation Management Pty Limited shall be
entitled to the benefit of any rights or powers conferred on the
"Trust Manager" (as that term is defined in the Investment
Management Agreement) under the Investment Management Agreement
as if it had originally been named a party to the Investment
Management Agreement as the trust manager.
(b) Clause 1.3 - Liability of Chargor limited to its right of indemnity
Clause 1.3 of the Investment Management Agreement is deleted and
replaced with the following.
"(a) Clause 32 of the Master Trust Deed (as amended by the Notice of
Creation of Trust and the Series Notice) applies to the
obligations and liabilities of the Trustee and the Trust Manager
under this agreement.
(b) Without limiting the generality of clause 1.3(a), clause 32.16 of
the Master Trust Deed (as amended by the Notice of Creation of
Trust and the Series Notice) is
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incorporated into this agreement as if set out in full, except
that any reference to deed is replaced by a reference to
agreement and any reference to Trust refers to each Relevant
Trust.
(c) Nothing in this clause 1.3 limits a party in:
(i) obtaining an injunction or other order to restrain any
breach of this agreement by any party;
(ii) obtaining declaratory relief; or
(iii) in relation to its rights under the Security Trust Deed.
(d) Except as provided in paragraphs (a) and (b) and subject to
paragraph (c), no party shall:
(i) (statutory demand) issue any demand under s459E(1) of the
Corporations Act (or any analogous provision under any other
law) against the Trustee;
(ii) (winding up) apply for the winding up or dissolution of the
Chargor;
(iii) (execution) levy or enforce any distress or other execution
to, on, or against any assets of the Trustee (other than the
Trust Assets);
(iv) (court appointed receiver) apply for the appointment by a
court or a receiver to any of the assets of the Trustee
(other than the Trust Assets);
(v) (judgment) obtain a judgment for the payment of money or
damages by the Trustee;
(v) (set-off or counterclaim) exercise or seek to exercise any
set-off or counterclaim against the Trustee (other than in
respect of the Trust Assets); or
(vi) (administrator) appoint, or agree to the appointment of, any
administrator to the Trustee,
or take proceedings for any of the above and each party waives
its rights to make those applications and take those proceedings.
(c) Clause 2 - Appointment of Servicer
In clause 2.3(d) of the Investment Management Agreement, add "or Title
Insurer in relation to a Title Insurance Policy" after "any law firm".
(d) Clause 4 - Undertakings
(i) In clause 4.1(c)(ii) of the Investment Management Agreement, add
"or Title Insurer (as the case may be)" after "the Mortgage
Insurer".
(ii) In clause 4.1(c)(iii) of the Investment Management Agreement, add
"or Title Insurer (as the case may be)" after "the Mortgage
Insurer".
(iii) Add the following clause 4.1(c)(iv) in the Investment Management
Agreement: "promptly notify the Title Insurer (if any) of that
default in accordance with the provisions of the relevant Title
Insurance Policy, if required".
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(iv) Relabel clause 4.1(d)(i)(B) of the Investment Management
Agreement as clause 4.1(d)(i)(C).
(v) Add the following clause 4.1(d)(i)(B) in the Investment
Management Agreement: "Title Insurance Policies; and".
(vi) In clause 4.1(d)(ii) of the Investment Management Agreement, add
", Title Insurance Policy" after "Mortgage Insurance Policy".
(vii) In clause 4.1(d)(iii) of the Investment Management Agreement,
add ", Title Insurance Policy" after "Mortgage Insurance Policy".
(viii) Clause 4.1(f) of the Investment Management Agreement is amended
by inserting the words " and provided that the variation,
amendment or modification does not result in the downgrade or
withdrawal of rating of the Notes".
(ix) Replace 4.1(h) of the Investment Management Agreement to read as
follows:
"set the Investment Rate as 0.25% higher than the percentage rate
of return which it determines in its absolute discretion would be
required to be set on the Authorised Investments held by the
Trustee, in order to ensure that the Trustee has sufficient cash
available at all times to enable the Trustee to pay all payments
of Interest in respect of the Trust and otherwise comply with all
of the Trustee's duties and obligations under the Transaction
Documents as and when they fall due, including payment of the
Approved Seller's Fee as and when it falls due".
(e) Clause 6 - Servicer Fees
In clause 6.2(a) of the Investment Management Agreement, add "or Title
Insurance Policy" after "Mortgage Insurance Policy".
7.4 Additional Representations and Warranties - Approved Seller and Trustee
Each of the Approved Seller and the Trustee makes the following additional
representations and warranties in respect of itself only to the Trust
Manager, to each Noteholder and to the Security Trustee (who holds the
benefit of the representations and warranties for the Mortgagees (as
defined in the Security Trust Deed):
(a) it is not in default under this deed or the Investment Management
Agreement (to which it is a party) in a manner which has or may have
an Adverse Effect;
(b) it has no immunity from the jurisdiction of a court or from legal
process;
(c) (in relation to Interstar Securities (Australia) Pty Limited only, in
its capacity as the Approved Seller) it holds sole beneficial
ownership as at the relevant Closing Date of the Loans referred to in
the Sale Notice given by it;
(d) (in relation to Interstar Securities (Australia) Pty Limited only, in
its capacity as the Approved Seller) it holds such beneficial interest
in the Authorised Investments (other than the Loans referred to in
paragraph (c)) which form part of the Assets of the Trust as is
validly transferred to it unless it has disposed of that interest in
accordance with the provisions of the Transaction Documents;
(e) (in relation to the Trustee only) the Trustee has not resettled, set
aside or transferred any property of the Trust other than in
accordance with the Transaction Documents;
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(f) (in relation to the Trustee only) the Trustee has not terminated the
Trust nor has any event of which it is aware for the vesting of the
assets of the Trust occurred;
(g) (in relation to the Trustee only) the Trustee is not aware that an
Event of Default as defined in the Security Trust Deed is subsisting;
(h) (in relation only to the Approved Seller) as at the relevant Closing
Date, beneficial title in the Authorised Investments referred to in
the Sale Notice given by it, or otherwise to be transferred by it, are
entitled to be and will be transferred to the Trustee.
(i) (in relation to the Approved Seller only) the sale, transfer and
assignment of the Approved Seller's interest in the Purchased Loans,
will not constitute a breach of any Relevant Document or the Approved
Seller's obligations or a default by the Approved Seller under any
Security Interest;
(j) (in relation to the Approved Seller only) the Approved Seller holds in
its possession or control all Relevant Documents that relate to the
Purchased Loans and the related Loan Securities necessary to register
and enforce the provisions of and the security created by the relevant
Loan Securities;
(k) (in relation to the Approved Seller only) the Approved Seller is
solvent, is able to pay its debts as and when they become due and
payable and has no notice of, nor taken any steps in relation to, any
application or order for its winding up or the appointment of a
receiver or liquidator to it or any of its assets;
(l) (in relation to the Approved Seller only) at the time each Purchased
Loan and each Related Security was entered into it complied in all
material respects with the Approved Seller's underwriting and
operations procedures, as agreed with the Servicer;
(m) (in relation to the Approved Seller only) each Purchased Loan and Loan
Security and each Related Security was entered into by the Approved
Seller in good faith;
(n) (in relation to the Approved Seller only) at the time each Purchased
Loan and each Loan Security and each Related Security was entered into
at any time prior to the Closing Date, the Approved Seller had not
received any notice of any insolvency, bankruptcy or liquidation of
the Obligor(s) or any guarantors or security providers (except that if
a Loan is in Arrears but complies with the Eligibility Criteria, the
fact that it is in Arrears is not in and of itself notice of
insolvency) or any notice that any such person did not have the legal
capacity to enter into the relevant Mortgage;
(o) (in relation to the Approved Seller only) as at the Cut-Off Date, none
of the Purchased Loans and none of the Loan Securities and no Related
Security had been waived or altered, except in writing and as part of
the Relevant Documents;
(p) (in relation to the Approved Seller only) all information provided by
the Approved Seller to the Trustee in connection with the Loans, the
Loan Securities and the Related Securities was, when given, true and
accurate in all material respects and not misleading or deceptive and
did not omit to state a material fact necessary in order to make the
statements therein in light of the circumstances in which they were
made not misleading or deceptive; and
(q) (in relation to the Approved Seller only) as at the Cut-Off Date, the
Approved Seller was not aware of any circumstance or event that may
materially and adversely affect:
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(i) the value or enforceability of any Loan, Loan Security or Related
Security; or
(ii) the ability of the Approved Seller to perform its obligations
under the Transaction Documents.
7.5 Additional Representations and Warranties - Trust Manager
Each of the Servicer and the Trust Manager makes the following
representations and warranties to the Trustee, to each Noteholder and to
the Security Trustee (who holds the benefit of the representations and
warranties for the Mortgagees (as defined in the Security Trust Deed):
(a) to its knowledge, no litigation, arbitration or administrative
proceedings are taking place, pending or threatened against it which,
if adversely determined, has or may have an Adverse Effect;
(b) it is not in default under any Transaction Document to which it is a
party in a manner which has or may have an Adverse Effect;
(c) to the best of its knowledge and belief the Loans which are subject to
the provisions of the Consumer Credit Legislation comply with the
Consumer Credit Legislation; and
(d) it is not aware of any act or circumstance that would permit a
Mortgage Insurer or a Title Insurer to reduce or avoid any claim under
its Mortgage Insurance Policy or Title Insurance Policy (as the case
may be).
7.6 Additional Undertakings - Trustee
The Trustee undertakes to the Servicer, the Trust Manager, to each
Noteholder and to the Security Trustee (who holds the benefit of the
undertakings for the Mortgagees (as defined in the Security Trust Deed)
that:
(a) it will treat the Noteholders of the same Class equally and will treat
Noteholders of different Classes fairly;
(b) it will not deal in any way with any person except at arm's length in
the ordinary course of business for valuable commercial consideration;
(c) it will not advance money or make available financial accommodation to
or for the benefit of any person or give a guarantee or security
interest in connection with an obligation or liability of any person
except as permitted under the Transaction Documents;
(d) it will not take any action in respect of a Mortgage which action is
contrary to the terms of the Mortgage Insurance Policy covering that
Mortgage unless it is approved by the relevant Mortgage Insurer (the
Trustee is entitled to rely without enquiry on a certificate from the
Servicer to the effect that the relevant Mortgage Insurer has given
its consent);
(e) provided that the Trustee has been provided with a copy of the form of
the relevant Title Insurance Policy and has agreed in writing with the
Servicer that this paragraph (e) will apply to all Title Insurance
Policies issued in that agreed form, it will not take any action in
respect of a Mortgage which action is contrary to the terms of any
Title Insurance Policy covering that Mortgage unless it is approved by
the relevant Title Insurer (the Trustee is entitled to rely without
enquiry on a certificate from the Servicer to the effect that the
relevant Title Insurer has given its consent);
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(f) it shall not:
(i) amend or vary, or consent to any amendment or variation of,
(ii) avoid, release, surrender, terminate, rescind, discharge (other
than by performance) or accept the repudiation of, or
(iii) expressly or impliedly waive, or extend or grant time or
indulgence of, any provision of or obligation under,
any Transaction Document where to do so would have an Adverse Effect
(the Trustee is entitled to rely without enquiry on a certificate from
the Trust Manager to the effect that any such action will not have an
Adverse Effect);
(g) it shall not amend or vary the form which will be used for any
Mortgage which it acquires or settles in any manner which would have
an Adverse Effect (the Trustee is entitled to rely without enquiry on
a certificate from the Servicer to the effect that any amendment or
variation of the form used for any Mortgage will not have an Adverse
Effect);
(h) it will not resettle, set aside or transfer any asset held under the
Trust other than a transfer which complies with the Transaction
Documents (the Trustee is entitled to rely without enquiry on a
certificate from the Trust Manager to the effect that any such
transfer complies with this deed);
(i) except as contemplated by clause 23 of the Master Trust Deed, the
Trustee will not do anything which would cause or enable its removal,
nor will it retire, as trustee of the Trust; and
(j) the Trustee will not permit any person to act or be appointed as
trustee of the Trust jointly with the Trustee.
7.7 Additional Undertakings - Trust Manager and Servicer
Each of the Trust Manager and the Servicer undertakes to the Trustee, to
each Noteholder and to the Security Trustee (who holds the benefit of the
undertakings for the Mortgagees (as defined in the Security Trust Deed) to:
(a) upon being so directed by the Trustee, rectify any books of account
which the Trustee reasonably believes to be incorrect or inadequate in
any respect;
(b) ensure that the Authorised Investments yield an amount (expressed as a
percentage per annum) equal to or greater than the then current
Investment Rate;
(c) deliver to the Trustee all documents necessary to enable the Trustee
to have each and every Authorised Investment registered in the name of
the Trustee or in the name of such other person or persons as approved
by the Trustee;
(d) not deal in any way with any person except at arm's length in the
ordinary course of business for valuable commercial consideration;
(e) not advance money or make available financial accommodation to or for
the benefit of any person or give a guarantee or Security Interest in
connection with an obligation or liability of any person except as
permitted under the Transaction Documents;
(f) not cease or materially change its business,
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(g) not take any action in respect of a Loan which action is contrary to
the terms of the Mortgage Insurance Policy covering that Loan unless
it is approved by the relevant Mortgage Insurer;
(h) not take any action in respect of a Loan which action is contrary to
the terms of any Title Insurance Policy covering that Loan unless it
is approved by the relevant Title Insurer;
(i) not:
(i) amend or vary, or consent to any amendment or variation of,
(ii) avoid, release, surrender, terminate, rescind, discharge (other
than by performance) or accept the repudiation of, or
(iii) expressly or impliedly waive, or extend or grant time or
indulgence of, any provision of or obligation under,
any Transaction Document, where to do so would have an Adverse Effect;
(j) take such steps as are reasonably available to it to ensure that a
Mortgage Insurer is not relieved from its liability under its Mortgage
Insurance Policy;
(k) take such steps as are reasonably available to it to ensure that a
Title Insurer is not relieved from its liability under any of its
Title Insurance Policies;
(l) where it is required to make any calculation, give any notice or do
any thing in order to enable the Trustee to perform its obligations
under any Transaction Document - make that calculation, give that
notice or do that thing;
(m) co-operate with the Trustee in respect of the establishment and
maintenance by the Trustee of a compliance system relating to the
Assets of the Trust and any Mortgage made by it which is reasonable in
scope having regard to industry standards and criteria for the
purposes of establishing a system for ensuring that the Trustee's
obligations and liabilities under or in connection with the Assets of
the Trust and those Mortgages are fully discharged and that the
Trustee is informed of significant issues relating to any of them;
(n) take such actions as are necessary to enforce or enable the Trustee to
enforce the rights of the Trustee under any Transaction Document;
(o) ensure that:
(i) the aggregate amount of all Line of Credit Commitments at any
time does not comprise more than 20% of the value of the Assets
of the Trust; and
(ii) the aggregate of the amounts outstanding under the following
Loans (as referred to in schedule 2):
(1) Interstar "Fix'n Float" Access Account Loans; and
(2) Interstar "IO Fixed" Access Account Loans,
which form part of the Assets of the Trust does not comprise more than
25% of the value of the Assets of the Trust;
(iii) subject to any other provisions, there will be no restriction on
the percentage of the Assets of the Trust which may comprise:
(A) Interstar "Premium" Access Account Loans; and
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(B) Interstar "IO Float" Access Account Loans,
as referred to in schedule 2;
(iv) during any period when a fixed lower or acceptable rate of
interest (as opposed to the higher or default rate of interest)
is applicable under any Interstar "Fix'n Float" Access Account
Loan or any Interstar "IO Fixed" Access Account Loan (as referred
to in schedule 2) such rate of interest will not be less than the
aggregate of:
(A) the weighted average of the Interest Rate of the Class B2
Notes and the rate equal to the Bank Bill Rate and the
Spread (as defined in the Class B1 Currency Swap);
(B) the Expenses Margin; and
(C) 0.25%;
(p) procure payment of any stamp duty payable in respect of transfers to
the Trustee of Authorised Investments by Perpetual Trustees Victoria
Limited as trustee of any trust (other than a Trust as defined in the
Master Trust Deed); and
(q) in the event that it becomes aware of the Trustee failing to pay any
Interest in relation to Class B Notes within 10 Business Days of the
Payment Date on which the Interest was due to be paid, promptly notify
each Designated Rating Agency.
7.8 Additional Representations and Warranties (Loans) - Servicer
The Servicer makes the following representations and warranties to the
Trust Manager, the Trustee, to each Noteholder and to the Security Trustee
(who holds the benefit of the representations and warranties for the
Mortgagees (as defined in the Security Trust Deed) in relation to a Sale
Notice containing an offer in relation to which the Trust Manager has
directed the Trustee to accept and the Loans, Loan Rights and Related
Securities referred to in that Sale Notice (or the Loans originated in
accordance with clause 9(b)(ii) or otherwise transferred to the Trustee by
Perpetual Trustees Victoria Limited as trustee of a trust in accordance
with the Master Trust Deed).
(a) (Eligible Loan) As at the Cut-Off Date, each Loan which is specified
in that Sale Notice (or so originated or transferred) is an Eligible
Loan. In relation to any related Loan Security that is required to be
registered with any Government Agency and which is not registered at
the Cut-Off Date, it will be registered.
(b) (Loan Securities) It has not done, or omitted to do, anything which
would prevent each Loan, Loan Security and Related Security which is
specified in that Sale Notice (or so originated or transferred) from
being valid, binding and enforceable against the relevant Obligor(s)
in all material respects except to the extent that it is affected by
laws relating to creditors rights generally, or doctrines of equity.
(c) (Ownership) In relation to each Loan Security which is specified in
that Sale Notice (or the relevant Trust Manager's direction or
transfer procedure), it has not done, or omitted to do anything which
would prevent the relevant Obligor from being the sole legal owner of
the relevant Mortgaged Property and registered as the sole proprietor
of the relevant Mortgaged Property.
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(d) (Insurance) As at the relevant Closing Date (or the date specified in
the relevant Trust Manager's direction), each Loan which is specified
in the Sale Notice (or the relevant Trust Manager's direction or
transfer procedure) is the subject of a valid, binding and enforceable
Mortgage Insurance Policy from a Mortgage Insurer for the scheduled
term of that Loan. In the case of the assignment of Loans, the
assignment of each such Loan to the Trustee is not contrary to the
relevant Mortgage Insurance Policy. The Servicer has not done or
omitted to do anything which might prejudicially affect or limit the
rights of the Trustee under or in respect of a Mortgage Insurance
Policy to the extent that those rights relate to that Loan or the
related Loan Security. On transfer to the Trustee of beneficial title
to a Purchased Loan (or on origination of a Loan), the Trustee will
have the benefit of the relevant Mortgage Insurance Policy for that
Loan.
(e) (Solvency of Mortgage Insurers and Title Insurers) The officers of the
Servicer who have responsibility for the transactions contemplated by
the Transaction Documents do not have actual notice that any Mortgage
Insurer under any Mortgage Insurance Policy or any Title Insurer under
any Title Insurance Policy in relation to a Loan is insolvent or will
be unable to pay a valid claim.
(f) (Selection process) There is no fraud, dishonesty, material
misrepresentation or negligence on the part of the Servicer in
connection with the selection and offer to the Trustee of any Loans or
related Loan Securities which are specified in that Sale Notice (or
the relevant Trust Manager's direction or the transfer procedure).
(g) (No rescission, etc) As at the Cut-Off Date, none of the Loans or Loan
Securities which are specified in that Sale Notice (or the relevant
Trust Manager's direction or the transfer procedure) were satisfied,
cancelled, discharged or rescinded and the Mortgaged Property relating
to each relevant Loan and Loan Security had not been released from the
security of the relevant Loan Securities.
(h) (Interest rate) Except as may be provided in a Loan Agreement or Loan
Security which is specified in the Sale Notice (or the relevant Trust
Manager's direction or the transfer procedure), and subject to
applicable laws, the Servicer has not done, or omitted to do anything
which would render the interest rate for each such Loan subject to any
limitation, or to any consent, additional memoranda or other writing
required from the relevant Obligor to give effect to a change in that
rate and any change in that rate will be effective on notice being
given to that Obligor in accordance with the terms of the relevant
Loan or Loan Security.
(i) (Assignability) In the case of the assignment of Loans, all consents
required in relation to the assignment of the Loans and the related
Loan Rights specified in that Sale Notice (or the relevant Trust
Manager's direction or the transfer procedure) have been obtained.
Those Loans and Loan Rights are assignable.
(j) (Ordinary course of business) Between the relevant Cut-Off Date and
the relevant Closing Date (or the date specified in the relevant Trust
Manager's direction), the Servicer dealt with the Loans and the Loan
Securities specified in the Sale Notice (or the relevant Trust
Manager's direction or the transfer procedure) in the ordinary course
of its business.
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7.9 Repetition of Representations, Warranties and Undertakings
The representations, warranties and undertakings set out in clauses 7.4,
7.5, 7.6, 7.7 and 7.8 will be deemed to be repeated on each date upon which
Notes are issued.
8. Transfers to Other Trust
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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 (as the case may be);
(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. Prefunding
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(a) If on a Note Issue Date, the Purchase Price for the Purchased Loans is
less than the amount received in Australian dollars by the Trustee
from the proceeds of the issue of the Notes, the Trustee shall (at the
direction of the Trust Manager) retain the difference between the two
amounts to the extent it is not invested in Liquid Authorised
Investments in accordance with this Series Notice (the Prefunding
Amount) in the Prefunding Account. The Prefunding Amount must not, at
any time, exceed 25% of the sum of the Class A2 A$ Equivalent of
US$[500,000,000] and the Class B1 A$ Equivalent of US$[28,000,000].
(b) The Trustee must, at the direction of the Trust Manager (at the Trust
Manager's option), apply any or all of the Prefunding Amount to:
(i) acquire Loans:
(A) from the Approved Seller by the Approved Seller delivering
to the Trustee (on or before the Prefunding End Date) a Sale
Notice in relation to those Loans in accordance with clause
8 of the Master Trust Deed (as amended by this Series
Notice); or
(B) from Perpetual Trustees Victoria Limited as trustee of a
trust (on or before the Prefunding End Date) in accordance
with the Master Trust Deed; or
(ii) originate Loans in accordance with the procedures in the ordinary
course of the Servicer's business (before the Prefunding End
Date),
provided that each Loan so acquired or originated:
(iii) complies with the Eligibility Criteria; and
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(iv) would not result in the downgrade or withdrawal of rating of any
Note by a Designated Rating Agency.
(c) On the Prefunding End Date, the balance of the Prefunding Amount that
has not been applied under paragraph (b) shall be treated as Mortgage
Principal Repayments received by the Trustee during the immediately
preceding Collection Period and applied in accordance with clause 6.6
of this Series Notice.
(d) The Trustee shall maintain the Prefunding Account as an interest
bearing account in accordance with the Transaction Documents
(including clause 26 of the Master Trust Deed). The Trust Manager
shall not direct the Trustee to, and the Trustee shall not make any
withdrawal from, the Prefunding Account except for the following
purposes:
(i) to apply the Prefunding Account in accordance with paragraphs (b)
and (c) above;
(ii) to transfer the credit balance of the Prefunding Account in
accordance with clause 26.1(d) of the Master Trust Deed; and
(iii) to pay Taxes payable in respect of the Prefunding Account.
10. Beneficiary
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10.1 Issue of Units
(a) The beneficial interest in the Trust will be constituted by the issue
of:
(i) a single residual capital unit (the Residual Capital Unit); and
(ii) such numbers of residual income units (each, a Residual Income
Unit) as the Trustee may issue from time to time in accordance
with this clause 10.1 and clause 10.3.
The holders of the Residual Capital Unit and the Residual Income Units
(each, a Unit) hold the beneficial interest in the Trust in accordance
with the Master Trust Deed and this Series Notice.
(b) The Trustee must, on payment by the relevant Beneficiary of the issue
price of the Unit specified below, issue a Unit by registering that
Beneficiary's name in the register kept under this clause 10. A
failure by the Trust Manager to issue a Unit does not affect the
Beneficiary's rights as beneficiary of the Trust under the Master
Trust Deed and this Series Notice.
10.2 Residual Capital Unit
(a) The holder of the Residual Capital Unit is Allens Arthur Robinson
Corporate Advisory Pty Ltd.
(b) The issue price of the Residual Capital Unit is the amount of $10,
paid on establishment of the Trust.
(c) The holder of the Residual Capital Unit has no right to receive
distributions in respect of the Trust other than the right to receive
the amount of $10 on the termination of the Trust. The Residual
Capital Unit may not be redeemed at any other time or in any other
way.
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(d) The Residual Capital Unit is not transferable.
(e) No other Residual Capital Units may be issued.
10.3 Residual Income Unit
(a) A person may, with the consent of the Trust Manager and (where there
is at that time any existing holder of a Residual Income Unit) that
holder (each of whose consent may be given or withheld in their
absolute discretion), become the holder of a Residual Income Unit by
paying the subscription price for the Residual Income Unit.
(b) The issue price of a Residual Income Unit will be the amount agreed
between the Trust Manager and the person applying for the Residual
Income Unit.
(c) The beneficial interest held by the Residual Income Beneficiaries is
limited to the Trust and each Asset of the Trust (other than any Asset
of the Trust held on trust for the holder of the Residual Capital Unit
under clause 10.2) subject to and in accordance with the Master Trust
Deed and this Series Notice.
(d) Subject to clause 29 of the Master Trust Deed, no Residual Income
Beneficiary has a right to receive distributions in respect of the
Trust other than:
(i) the right to receive, pari passu, distributions in respect of the
Trust under the Master Trust Deed and this Series Notice to the
extent that Beneficiary Distributions are available for
distribution under the Master Trust Deed and this Series Notice;
and
(ii) the right to receive, pari passu, on the termination of the Trust
the entire beneficial interest of the Trust, subject to the
rights of the holder of the Residual Capital Unit.
(e) Residual Income Units may not be redeemed at any other time or in any
other way.
(f) Each Residual Income Unit is transferable in accordance with clause
10.5.
10.4 Register
(a) The entitlement of any person to a Unit will be evidenced by
registration in the register maintained under this clause 10.4 (the
Register).
(b) The Trustee will keep the Register at its registered office in a form
that it considers appropriate and will enter the following
particulars.
(i) The name and address of the holder of each Unit.
(ii) The date on which the name of the holder of each Unit is entered
in the Register.
(iii) The date on which the holder of a Unit ceases to be registered
as the holder of that Unit.
(iv) The subscription moneys initially paid for each Unit, and the
aggregate subscription moneys of all Units from time to time.
(v) Any other details which the Trustee may consider necessary or
desirable.
(c) The holder of a Unit shall promptly notify the Trustee of any change
of name or address and the Trustee will alter the Register
accordingly.
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(d) Without limiting clause 10.1, the interest of any holder in a Unit
will be constituted by registration in the register.
10.5 Transfer of Units
(a) (i) Subject to clause 10.2(d), the holder of a Unit may transfer the
Unit by instrument in writing in any form approved by the
Trustee. No fee will be charged on the transfer of a Unit.
(ii) An instrument of transfer shall be executed by or on behalf both
of the transferor and the transferee.
(iii) A transferor of a Unit remains the holder of the Unit
transferred until the transfer is registered and the name of the
transferee is entered in the register in respect of the Unit.
(b) The instrument of transfer of a Unit must be left for registration at
the address where the Register is kept on which the Unit to which the
transfer relates are registered. It must be left together with any
information that the Trustee properly requires to show the right of
the transferor to make the transfer.
(c) The Trustee must notify each Designated Rating Agency and the Trust
Manager of any transfer of Units under this clause 10.5.
10.6 Limit on rights
Each Beneficiary is subject to, and bound by, the provisions of the Master
Trust Deed (including clause 9.1 and 11.1).
11. Note Trustee
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11.1 Capacity
The Note Trustee is a party to this Series Notice in its capacity as
trustee for the Non-A$ Noteholders from time to time under the Note Trust
Deed.
11.2 Exercise of Rights
(a) The rights, remedies and discretions of the Non-A$ Noteholders under
the Transaction Documents including all rights to vote or give
instructions to the Security Trustee and to enforce undertakings or
warranties under the Transaction Documents, except as otherwise
provided in the Note Trust Deed or the Security Trust Deed, may only
be exercised by the Note Trustee on behalf of the Non-A$ Noteholders
in accordance with the Note Trust Deed and the Security Trust Deed.
(b) The Non-A$ Noteholders, except as otherwise provided in the Note Trust
Deed or the Security Trust Deed, may only exercise enforcement rights
in respect of the Mortgaged Property in accordance with the
Transaction Documents.
11.3 Representation and warranty
The Note Trustee represents and warrants to each other party to this Series
Notice that it has the power under the Note Trust Deed to enter into the
Transaction Documents to which it is a party and
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to exercise the rights, remedies and discretions of, and to vote on behalf
of, the Non-A$ Noteholders.
11.4 Payments
Any payment to be made to the Non-A$ Noteholders under the Transaction
Documents may be made to the Principal Paying Agent or the Note Trustee (as
the case may be) in accordance with the Agency Agreement and the Note Trust
Deed.
12. Tax Reform [to be confirmed by KPMG]
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12.1 Taxation of trusts and consolidated groups
The parties acknowledge that:
(a) the Commonwealth Government has withdrawn draft legislation under
which non-fixed trusts would have been taxed as companies from 1 July
2001 but has indicated its intention to take steps to avoid tax
abusive use of trusts which may include taxing some trusts as
companies;
(b) on 22 August 2002, the New Business Tax System (Consolidation) Act
(No. 1) 2002 was enacted (the Act). Commencement of the Act is pending
the enactment of further legislation dealing with the consolidation
measures. Whilst it is not, as at the date of this Series Notice, the
intention of the Trustee or the Trust Manager that the Trust form part
of a consolidated group of companies and trusts for tax purposes (a
consolidated tax group), if the Trust becomes a member of a
consolidated tax group, under the Act, the Trustee could be liable for
all, or a share, of a tax-related liability of the head company of
that consolidated tax group (a group tax liability) if:
(i) the head company of the consolidated tax group does not pay that
group tax liability by the time it becomes due and payable; and
(ii) that group tax liability is not covered by a tax sharing
agreement which is consistent with regulations made, or
guidelines published by the Commissioner of Taxation, concerning
the allocation of group tax liabilities of a consolidated tax
group amongst certain members of that group or which is otherwise
accepted by the Commissioner of Taxation as allocating the group
tax liabilities of the consolidated tax group amongst those
members on a reasonable basis (a valid tax sharing agreement);
and
(c) it is in the interest of all parties, including the Trustee, the
Noteholders and the Beneficiaries, that:
(i) the Trustee always be in a position to pay any tax liability when
due;
(ii) the payment of tax by the Trustee must not affect the amount of
principal or interest payable on the Notes or the timing of such
payments; and
(iii) the rating of the Notes be maintained.
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12.2 Amending Bill - taxation of trusts
If and when an amending Bill is introduced into the Federal Parliament (the
amending Bill), and the result of that amending Bill if it becomes law will
be that the Trustee will become liable to pay tax on the net income of the
Trust (as described in clause 12.1(a)), then:
(a) the Trust Manager shall promptly consult with the Trustee and each
Designated Rating Agency to determine what changes, if any, are
necessary to the cashflow methodology in clause 6 to achieve the
objective referred to in clause 12.1(c) (the Objective); and
(b) within one month of the amending Bill being introduced into the
Federal Parliament (or such longer time as the Trustee and each
Designated Rating Agency permit) the Trust Manager shall provide a
written recommendation to the Trustee and use its best endeavours to
provide a draft deed amending this Series Notice that, if executed,
will achieve the Objective.
If and when the amending Bill becomes law and upon the Trustee being
notified that the draft deed amending this Series Notice will achieve the
Objective (and in this regard the Trustee may rely (amongst others) upon
advice of tax lawyers) and each of the other parties to this Series Notice
being reasonably satisfied that it will not be adversely affected by the
proposed amendments to this Series Notice, each party to this Series Notice
shall execute that amendment deed.
If the Trust Manager and the Trustee cannot agree to amend the Series
Notice, they will proceed with unwinding the transaction.
12.3 Group tax liabilities
If the Trust becomes a member of a consolidated tax group and the head
company of that consolidated tax group does not at that time, or at any
subsequent time, provide evidence to the satisfaction of the Trustee (which
may rely upon the advice of tax lawyers, amongst others) that the tax
liabilities of the consolidated group are covered by a valid tax sharing
agreement that apportions those tax liabilities to the Trustee on a basis
acceptable to the Trustee (and the Trustee acknowledges that a nil
allocation of the group tax liabilities will be acceptable to it) then:
(a) the Trustee shall, as soon as is practicable, take steps to ensure
that the Trust ceases to be a member of that consolidated group;
(b) the Trust Manager shall promptly consult with the Trustee and each
Designated Rating Agency to determine what changes, if any, are
necessary to the cashflow methodology in clause 6 to achieve the
Objective; and
(c) within one month of such consultations commencing (or such longer time
as the Trustee and each Designated Rating Agency may permit) the Trust
Manager shall provide a written recommendation to the Trustee and use
its best endeavours to provide a draft deed amending this Series
Notice that, if executed, will achieve the Objective.
Upon the Trustee being notified that the draft deed amending this Series
Notice will achieve the Objective (and in this regard the Trustee may rely
upon advice of tax lawyers, amongst others) and each of the other parties
to this Series Notice being reasonably satisfied that it will not be
adversely affected by the proposed amendments to this Series Notice, each
party to this Series Notice shall execute that amendment deed.
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If the Trust Manager and the Trustee cannot agree to amend this Series
Notice, or that amendments to this Series Notice are not necessary, they
will proceed with unwinding the transaction.
12.4 Evidence of tax sharing agreement
The Trust Manager shall procure that the head company of a consolidated tax
group of which the Trust becomes a member will:
(a) ensure that the group tax liabilities of that consolidated tax group
are covered by a valid tax sharing agreement; and
(b) provide evidence of such a tax sharing agreement being in place for
the purposes of clause 12.3:
(i) at the time the Trust becomes a member of the consolidated tax
group; and
(ii) on each occasion that there is any alteration, amendment or
replacement of a tax sharing agreement covering the tax
liabilities of the consolidated tax group.
12.5 Objective
Provided that the Trustee and the Designated Rating Agencies receive
written advice from an experienced and reputable tax lawyer or tax
accountant to the effect that if the cashflow methodology, as amended under
clause 12.2 or 12.3, is followed the Objective will be met, and each
Designated Rating Agency confirms in writing that the change in Tax law or
the amendment under clause 12.2 or 12.3 (as the case may be) will not give
rise to the downgrade or withdrawal of the rating of any Note rated by it:
(a) the Trustee shall not be obliged to obtain the consent of any
Noteholder, Creditor or Beneficiary to the amendment; and
(b) subject to its terms, the amendment shall be effective when executed,
and may:
(i) permit the Trustee to accumulate a reserve out of moneys that
would otherwise be payable to any Beneficiary; and/or
(ii) provide for Tax to be paid out of moneys that would otherwise
have been payable to any Beneficiary.
12.6 Beneficiaries
Without limiting clause 12.5, in formulating a proposal to meet the
Objective, the Trust Manager shall have regard to the impact of any change
to the cashflow methodology to the Beneficiaries, and shall consider
proposals made by the Beneficiaries that will enable the Trustee to meet
the Objective.
13. Attorneys
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Each attorney executing this deed states that he or she has no notice of
revocation or suspension of his or her power of attorney.
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14. Governing Law
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This Series Notice is governed by the laws of New South Wales. Each party
submits to the non-exclusive jurisdiction of courts exercising jurisdiction
there.
15. Ancilliary Facilities
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15.1 Ancillary Facilities
(a) Notwithstanding any other provision of the Transaction Documents in
relation to the Trust (including the Master Trust Deed, the Security
Trust Deed and the Servicing Agreement), the Trust Manager, the
Servicer and the Trustee may:
(i) enter into and perform;
(ii) carry out any transaction contemplated by; and
(iii) pay any amount payable or incurred under,
any Ancillary Facility Document.
(b) Without limiting the generality of paragraph (a):
(i) the Trustee may mix, join or co-mingle all or any part of the
Assets of the Trust with any other assets, investments or other
property held or owned by the Trustee (in its capacity as trustee
or custodian of any other trust or custodial program) in:
(A) entering into and performing;
(B) carrying out any transaction contemplated by; and
(C) paying any amount payable or incurred under,
any Ancillary Facility Document provided that, except in the case
of the powers in paragraphs (vii) and (viii), Moody's has first
confirmed in writing that nothing in this paragraph (i) will
adversely affect Moody's rating of any Notes;
(ii) the Trustee has the power to pay or to contribute towards payment
of any amount payable or liability incurred by the Trustee
arising out of, or in connection with, any Ancillary Facility
even though the amount payable or liability incurred:
(A) does not relate specifically to the Trust; and/or
(B) relates to a number of trusts or custodial arrangements
which includes the Trust,
provided that, except in the case of the powers in paragraphs
(vii) and (viii), Moody's has first confirmed in writing that
nothing in this paragraph (ii) will adversely affect Moody's
rating of any Notes;
(iii) the Trustee has the power to pay any fees, charges, commissions,
disbursements or any other outgoings to any person arising out
of, or in connection with, the Authorised Investments or any
Ancillary Facility;
(iv) an Obligor under a Purchased Loan shall be entitled to make any
repayment under the relevant Loan Agreement or Mortgage
(including any Additional Repayment)
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utilising any payment method as approved by the Trust Manager
from time to time including any payment by way of cheque,
paperless direct credit entry or the payment method known as
"BPAY";
(v) the Trust Manager, the Servicer and the Trustee may give any
indemnity in respect of any debt or other obligation owing to any
person arising out of, or in connection with, the Authorised
Investments or any Ancillary Facility, including the power to
make any payment pursuant to any such obligation, in accordance
with the Ancillary Facility Documents; and
(vi) the Security Trustee confirms that the entry into and performance
of any Ancillary Facility Document, the carrying out of any
transaction contemplated by any Ancillary Facility Document, and
the payment of any amount payable or incurred under any Ancillary
Facility Document, by the Trust Manager, the Servicer or the
Trustee does not constitute any Event of Default under the
Security Trust Deed,
and the Trustee has power to:
(vii) deposit moneys into a joint account in which the money of Other
Trusts are or may be deposited; and
(viii) permit the drawing by an Obligor of any moneys from that joint
account, notwithstanding that an Obligor is an Obligor in respect
of one trust only, and the moneys are commingled with moneys of
Other Trusts.
(c) The Trustee and the Trust Manager agree that the Ancillary Facility
Documents will apply in respect of the Trust.
(d) For the avoidance of doubt, notwithstanding any other provision of
this Series Notice, the Trustee must apply Excess Spread from the
Trust or any Other Trust to meet any fees, costs, and expenses and to
pay any amounts described in clauses 15.1(b)(iii) and 15.1(b)(iv) and
any other amounts due to NAB under any Ancillary Facility (including,
without limitation, any amounts required to be applied under clause 6
of the Facilities Agreement) and Interstar Securities (Australia) Pty
Limited acknowledges that such Excess Spread must be so applied.
15.2 Record keeping obligations of Trust Manager
In addition to and without limiting any obligations under any Finance
Document, the Trust Manager:
(a) must keep proper records and accounts in relation to funds in any
Drawings Account, drawings by the relevant Borrower or Mortgagor (as
defined in the Ancillary Facility Documents) made using any of the
facilities or functionality provided by NAB under the Ancillary
Facility Documents and fees charged to any Drawings Account, and shall
make those records and accounts available to any party on request; and
(b) undertakes for the benefit of the Trustee to:
(i) comply with all its obligations under the Ancillary Facility
Documents and undertakes to use its best endeavours to ensure
that each of the matters referred to in clauses 4.20 and 5.8 of
the Ancillary Facility Document which is the Cheque
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Deposit and Direct Paperless Entry Facilities Agreement is
complied with irrespective of whether it has an obligation to NAB
to do so; and
(ii) ensure that no Facilities Cheque or Direct Paperless Entry (as
defined in the Ancillary Facility Documents) which it instructs
or allows NAB to accept, honour or pay will:
(A) result in a Borrower or Mortgagor (as defined in the
Ancillary Facility Documents) redrawing more than can
properly be redrawn in accordance with the terms of that
Borrowers' or Mortgagor's Loan Agreement; or
(B) result in a debit to the Drawings Account in an amount
which, taking into account all other transactions on the
Drawings Account, exceeds the amount in the Drawings Account
which is referrable to the Trust which holds the Loan under
which the Facilities Cheque or Direct Paperless Entry was
drawn or authorised.
(c) In this clause 15.2, Drawings Account means:
(i) any account referred to in the Ancillary Facility Documents as a
Trust Drawings Account or a Nominated Account; or
(ii) any other account which the parties agree is to be a Drawings
Account.
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Schedule 1
[Low Doc Loan restrictions to be provided by Interstar]
An Eligible Loan means a Loan which, as at the Cut-Off Date for that Loan
has the following characteristics:
(a) is denominated and payable only in Australian dollars in Australia;
(b) the interest rate applicable to the Loan must be either:
(i) a variable rate based upon any determinant as may be considered
appropriate by the Servicer in its absolute discretion;
(ii) a fixed rate provided that a Loan shall only incorporate a fixed
rate of interest where:
(A) the fixed rate does not apply for a continuous period
exceeding five years from:
(1) the settlement date of the Loan where the Loan bears a
fixed rate of interest from the date it is settled; or
(2) the date on which the Loan starts to bear a fixed rate
of interest, where that Loan either:
(a) bears a floating rate of interest and is
converting to a fixed rate of interest; or
(b) bears a fixed rate of interest which is scheduled
to convert to a floating rate of interest but
(with the approval of the relevant Mortgage
Insurer) the relevant Obligor has elected to pay a
new fixed rate of interest; and
(B) the fixed rate cash flows are swapped to a floating rate
pursuant to an Interest Rate Swap and the floating rate
payable by the Swap Provider is set on the same dates as the
Interest Rate is set on Notes; or
(iii) a combination of a variable rate (as described in sub-paragraph
(b)(i)) as to part of the Loan Amount and a fixed rate (as
described in sub-paragraph (b)(ii)) as to the balance of the Loan
Amount;
(c) is secured by a Mortgage that constitutes a first ranking mortgage
over freehold land or Crown leasehold land in Australia which is or
will be registered under Real Property Legislation and satisfies the
following criteria:
(i) the amount secured or to be secured by the Mortgage must not
exceed $1,500,000;
(ii) in respect of a Mortgage:
(A) to secure a Loan for a principal amount:
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(1) not exceeding $300,000 - the Loan to Value Ratio in
respect of that Loan must not exceed 95%; and
(2) exceeding $300,000 but not exceeding $500,000 - the
Loan to Value Ratio in respect of that Loan must not
exceed 90%;
(B) to secure a Loan exceeding $500,000 but not exceeding
$1,000,000 - the Subject Property must constitute a single
property within the metropolitan areas of Sydney, Melbourne,
Brisbane, Adelaide or Perth and the Loan to Value Ratio in
respect of that Loan must not exceed 80%;
(C) to secure a Loan exceeding $1,000,000 but not exceeding
$1,250,000 - the Subject Property must constitute a single
property within the metropolitan areas of Melbourne or
Sydney and the Loan to Value Ratio in respect of that Loan
must not exceed 75%; and
(D) to secure a Loan exceeding $1,250,000 - the Subject Property
must constitute a single property within the metropolitan
areas of Melbourne or Sydney and the Loan to Value Ratio in
respect of that Loan must not exceed 65%.
(iii) the Subject Property has a completed residential dwelling
erected thereon;
(iv) the improvements on the Subject Property are insured against such
risks (including fire and general insurance) as the Servicer
deems in its absolute discretion should be the subject of
insurance cover and the insurance policy in respect of such cover
must be endorsed with the name of the Trustee as mortgagee;
(v) the Subject Property is valued by a valuer approved of by the
Servicer unless:
(A) the Loan to Value Ratio does not exceed 80%;
(B) the Loan Amount does not exceed:
(1) $250,000 when secured over a single property within the
metropolitan area of Sydney;
(2) $200,000 when secured over a single property within any
other city and metropolitan areas of Australia; or
(3) $150,000 when secured over a single property within any
other areas of Australia; and
(C) the predominant purpose of the Loan is the purchase of the
Subject Property; and
(vi) all security documents have been:
(A) prepared by law firms or Title Insurers appointed by and
acting for the Approved Seller and the Servicer or, where
Loans are originated by the Trustee, acting for the Trustee
and the Servicer; and
(B) prepared in accordance with applicable Consumer Credit
Legislation;
(d) which, together with all other Loans held by the Trustee, has the
following characteristics:
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(i) at least 90% of the aggregate Subject Property of all Loans must
be located in metropolitan areas of the capital cities and major
regional centres of Australia; and
(ii) not more than 15% of the aggregate Loan Amount of the Loans shall
comprise individual Loans each with a Loan Amount exceeding
$500,000 and secured by a Mortgage over a single property;
(e) (i) the Approved Seller is the beneficial owner of each Loan and
Mortgage at the time of the equitable assignment;
(ii) the Trustee will be the beneficial owner of each Loan and
Mortgage after that assignment (free of any encumbrances);
(iii) the Loan and Mortgage are valid and enforceable;
(iv) all applicable stamp duties have been paid on the Mortgage;
(v) the Loan and Mortgage will form part of the Assets of the Trust;
(vi) the whole of the right, title and interest of the mortgagee under
the Mortgage will be acquired by the Trustee;
(vii) the Loan has been serviced and managed in accordance with the
requirements of the Servicer's policy and procedures manual;
(viii) the Mortgage Insurance Policy and any Title Insurance Policy in
relation to the Loan and the related Mortgage does not restrict
the assignment to the Trustee;
(ix) the Loan is not in Arrears over 30 days at the Cut-Off Date;
(x) the Loan is subject to monthly, fortnightly or weekly payments
which fully amortise the Loan over its term;
(xi) the Loan Agreement and the Mortgage comply in all material
respects with all applicable laws (including any Consumer Credit
Legislation);
(xii) the Loan Agreement and the Mortgage are assignable by the
Approved Seller in equity without prior consent being required
from, or notice of the assignment needing to be given to, the
mortgagor, the Obligor or any other person; and
(xiii) the Loan Agreement and the Mortgage have been duly authorised
and are in full force and effect and constitute legal, valid and
binding obligations of the relevant Obligor and mortgagor
enforceable against that Obligor and mortgagor in accordance with
its terms and is not subject to any dispute, offset or
counterclaim;
(f) is covered by a valid, binding and enforceable Mortgage Insurance
Policy;
(g) has an Obligor (and where the Servicer so requires, a guarantor) that
is a natural person or a corporation;
(h) was approved and (if relevant) originated by the Servicer in the
ordinary course of its business;
(i) the relevant Obligor in respect of which is required to repay the Loan
by no later than [*]; and
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(j) does not require (nor does the relevant Loan Agreement require) the
Trustee to provide any Redraws or other advances once the initial
funding has been provided under the relevant Loan Agreement.
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Schedule 2
- ----------------------------------- ------------------------------------------------------------
NAME OF LOAN GENERAL CHARACTERISTICS OF LOAN
- ----------------------------------- ------------------------------------------------------------
Interstar "Premium" Access Account Amortising principal and interest repayment ("P&I") loans
with an interest rate variable at the discretion of the
Servicer and incorporating limited "redraw" facilities that
will be available to borrowers only at the sole discretion
of the Servicer.
- ----------------------------------- ------------------------------------------------------------
Interstar "Fix'n Float" Access Amortising "P&I" loans with an interest rate fixed for a
Account specific initial period of up to five years after which the
interest rate converts to a variable rate at the discretion
of the Servicer.
- ----------------------------------- ------------------------------------------------------------
Interstar "IO Float" Access Account Non-amortising loans requiring interest only repayments by
the borrowers for a specific initial period of up to ten
years with an interest rate variable at the discretion of
the Servicer. At the expiration of the initial period the
loans convert to the standard amortising "P&I" loans with an
interest rate variable at the discretion of the Servicer.
- ----------------------------------- ------------------------------------------------------------
Interstar "IO Fixed" Access Account Non-amortising loans requiring interest only repayments by
the borrowers for a specific initial period of up to five
years with an interest rate fixed for this initial period.
At the expiration of the initial period the loans convert to
the standard amortising "P&I" loans with an interest rate
variable at the discretion of the Servicer.
- ----------------------------------- ------------------------------------------------------------
Interstar "Line of Credit" Access Amortising line of credit "P&I" loans with an interest rate
Account variable at the discretion of the Servicer, and
incorporating facilities that allow borrowers to:
(a) draw funds up to a predetermined amortising limit;
(b) repay some or all of those funds; and
(c) redraw those funds again up to the then-current
amortised limit subject always to such right to redraw
funds being at the absolute discretion of the Servicer,
during the life of the loan facility.
- ----------------------------------- ------------------------------------------------------------
- --------------------------------------------------------------------------------
Page 80
Series Notice [ALLENS ARTHUR ROBINSON LOGO]
- --------------------------------------------------------------------------------
- ----------------------------------- ------------------------------------------------------------
NAME OF LOAN GENERAL CHARACTERISTICS OF LOAN
- ----------------------------------- ------------------------------------------------------------
Interstar "Split" Access Account A combined facility which:
(a) as to a specified dollar proportion of the facility has
the general characteristics of one type of Loan as
referred to above; and
(b) as to the remaining dollar proportion of the facility
has the general characteristics of another type of Loan
as referred to above.
- ----------------------------------- ------------------------------------------------------------
- --------------------------------------------------------------------------------
Page 81
Series Notice [ALLENS ARTHUR ROBINSON LOGO]
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Executed as a deed.
Each attorney executing this deed states that he or she has no notice of
revocation or suspension of his or her power of attorney.
Trustee
Signed Sealed and Delivered for
Perpetual Trustees Victoria Limited
by its attorney in the presence of:
- ----------------------------------- ------------------------------------------
Witness Signature Attorney Signature
- ----------------------------------- ------------------------------------------
Print Name Print Name
Trust Manager
Signed Sealed and Delivered for
Interstar Securitisation Management
Pty Limited by its attorney in the
presence of:
- ----------------------------------- ------------------------------------------
Witness Signature Attorney Signature
- ---------------------------------- ------------------------------------------
Print Name Print Name
- --------------------------------------------------------------------------------
Page 82
Series Notice [ALLENS ARTHUR ROBINSON LOGO]
- --------------------------------------------------------------------------------
Servicer
Signed Sealed and Delivered for
Interstar Securities (Australia)
Pty Limited by its attorney in the
presence of:
- ----------------------------------- ------------------------------------------
Witness Signature Attorney Signature
- ----------------------------------- ------------------------------------------
Print Name Print Name
Security Trustee
Signed Sealed and Delivered for
Perpetual Trustee Company Limited
by its attorney in the presence of:
- ----------------------------------- ------------------------------------------
Witness Signature Attorney Signature
- ----------------------------------- ------------------------------------------
Print Name Print Name
- --------------------------------------------------------------------------------
Page 83
Series Notice [ALLENS ARTHUR ROBINSON LOGO]
- --------------------------------------------------------------------------------
Approved Seller
Signed Sealed and Delivered for
Interstar Securities (Australia)
Pty Limited by its attorney in the
presence of:
- ----------------------------------- ------------------------------------------
Witness Signature Attorney Signature
- ----------------------------------- ------------------------------------------
Print Name Print Name
Note Trustee, Calculation Agent, Principal Paying Agent and Note Registrar
Executed as a deed by The Bank of
New York, New York branch in the
presence of:
- ----------------------------------- ------------------------------------------
Witness Signature Attorney Signature
- ----------------------------------- ------------------------------------------
Print Name Print Name
- --------------------------------------------------------------------------------
Page 84