[XXXXXXX XXX LOGO]
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COMMONWEALTH BANK OF AUSTRALIA
ABN 48 123 123 124
The Servicer and a Seller
HOMEPATH PTY LIMITED
ABN 35 081 986 530
A Seller
SECURITISATION ADVISORY SERVICES PTY. LIMITED
ABN 88 064 133 946
Manager
PERPETUAL TRUSTEE COMPANY LIMITED
ABN 42 000 001 007
Trustee
MEDALLION TRUST SERIES 2003-1G
SERIES SUPPLEMENT
[XXXXXXX XXX LOGO]
LAWYERS
Levels 00-00 Xx. 0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
PO Box H3 Australia Square Sydney NSW 1215
xxx.xxxxxxxxxx.xxx
Tel + 00 0 0000 0000 Fax + 00 0 0000 0000
OUR REF - 801/784/21723929 CONTACT - XXX XXXXXXXX
SYDNEY o MELBOURNE o BRISBANE o PERTH o CANBERRA o DARWIN
Liability limited by the Solicitors Scheme approved under the
Professional Standards Act 1994 (NSW)
TABLE OF CONTENTS
1...........DEFINITIONS AND INTERPRETATION........................................................................1
1.1 Definitions...............................................................................1
1.2 Interpretation...........................................................................34
1.3 Master Trust Deed Definitions............................................................36
1.4 Business Day Convention..................................................................36
1.5 Master Trust Deed Inconsistency..........................................................36
1.6 Exclusion of Master Trust Deed Definitions and Provisions................................36
1.7 Support Facilities.......................................................................38
1.8 Security Trust Deed......................................................................39
1.9 Nominated Seller and Nominated Servicer..................................................39
1.10 Binding on Securityholders and the Unitholders...........................................39
1.11 Relationship between Trustee and Securityholders.........................................39
1.12 Incorporated Definitions and other Transaction Documents and provisions..................39
1.13 Indemnity from Homepath..................................................................39
1.14 Name of Series...........................................................................40
1.15 Class A-2 Notes May Not Be Issued........................................................40
2...........THE CBA TRUST........................................................................................40
2.1 Constitution of CBA Trust................................................................40
2.2 Declaration of Trust for the CBA Trust...................................................40
2.3 Name of the CBA Trust....................................................................40
2.4 Entitlement of Sellers to the CBA Trust..................................................40
2.5 Bare Trust...............................................................................41
2.6 Duration of the CBA Trust................................................................41
2.7 Early Termination of the CBA Trust.......................................................41
2.8 Dealing with CBA Trust Assets............................................................41
2.9 Proceeds.................................................................................41
2.10 CBA Trust Assets Not Part of Assets of the Series Trust..................................41
2.11 Shared Securities........................................................................42
2.12 Trustee's Duties.........................................................................42
2.13 Substitute Trustee.......................................................................42
2.14 Transfer of the CBA Trust Assets to Sellers on termination of CBA Trust..................43
2.15 Seller Indemnity.........................................................................43
2.16 Limitation of Liability..................................................................43
3...........UNITS IN THE SERIES TRUST............................................................................43
3.1 Beneficial Interest Represented by a Number of Units.....................................43
3.2 Classes of Capital Units.................................................................43
3.3 Initial Unitholders......................................................................44
3.4 Registration of Initial Unitholders......................................................44
3.5 Beneficial Interest represented by the Income Unit.......................................44
3.6 Beneficial Interest represented by the Capital Units.....................................44
3.7 Right of Income Unitholder to Payments...................................................44
3.8 Rights of Capital Unitholders to Payments................................................45
3.9 Capital and Income Units Subject to this Deed and the Master Trust Deed..................45
3.10 Restrictions on Transfer.................................................................45
3.11 Units Rank Equally Except for Special Rights.............................................45
3.12 Form of Unit Certificate.................................................................45
3.13 Form of Income Unit Transfer.............................................................45
3.14 Additional Capital Subscription..........................................................45
3.15 No Other Relationship....................................................................46
i
4...........ASSIGNMENT OF MORTGAGE LOAN RIGHTS...................................................................46
4.1 Approved Financial Assets of the Series Trust............................................46
4.2 Sale Notice..............................................................................46
4.3 Requirements of Sale Notice..............................................................46
4.4 Mortgage Loan Schedule...................................................................46
4.5 Sale Notice Constitutes an Offer.........................................................47
4.6 Sale Notice Revocable....................................................................47
4.7 Acceptance of Offer......................................................................47
4.8 Timing of Acceptance.....................................................................47
4.9 Seller Not Obliged to Make, and Trustee Not Obliged to Accept, Offer.....................48
4.10 Can Only Accept all Mortgage Loan Rights in Loan Pool....................................48
4.11 Effect of Acceptance.....................................................................48
4.12 Sale in Equity Only......................................................................48
4.13 Sale Not to Amount to Assumption of Obligations..........................................48
4.14 Future Advances..........................................................................49
4.15 Future Receivables.......................................................................49
4.16 Power to Acquire Mortgage Loans in Arrears...............................................49
4.17 Trustee Bound by Priority Agreements.....................................................49
5...........THE SECURITIES.......................................................................................49
5.1 Securities divided into Classes..........................................................49
5.2 Form, constituent documents and denomination of the Securities...........................49
5.3 Trustee must Issue the Notes.............................................................50
5.4 Issue of Redraw Bonds....................................................................50
5.5 Initial Invested Amount of the Securities................................................50
5.6 Interest on the Securities...............................................................50
5.7 Redemption of the Securities.............................................................51
5.8 Interest on Overdue Interest on the Securities...........................................52
5.9 Rounding of Payments on the Securities...................................................52
5.10 Securities Rank Equally Except for Special Rights........................................52
5.11 Transfer of Securities...................................................................52
6...........CONDITIONS PRECEDENT TO ACCEPTANCE OF SALE NOTICE AND ISSUE OF NOTES.................................52
6.1 General Conditions Precedent.............................................................52
6.2 Other Conditions Precedent...............................................................55
6.3 No Liability for Insufficient Moneys.....................................................55
6.4 Manager's Certificate....................................................................55
7...........DIVISION OF MORTGAGE LOAN RIGHTS BETWEEN THE CBA TRUST AND THE SERIES TRUST..........................56
7.1 CBA Trust Assets.........................................................................56
7.2 Mortgages and First Layer of Collateral Securities.......................................56
7.3 Treatment of Shared Securities...........................................................57
7.4 Trustee's duties.........................................................................57
7.5 Upon Repayment of Mortgage Loan Trustee Holds for CBA Trust..............................58
7.6 Application Where 2 Mortgage Loans.......................................................58
7.7 Costs....................................................................................58
7.8 Alternative Structure....................................................................58
8...........DETERMINATIONS BY THE MANAGER........................................................................59
8.1 Applications and payments on Distribution Dates..........................................59
8.2 Insufficient principal to meet Seller Advances...........................................59
8.3 Gross Income Shortfall...................................................................59
8.4 Insufficient principal to meet Seller Advances and Standby
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Redraw Facility Principal................................................................59
8.5 Netting of Seller Advances and Standby Redraw Facility Advances..........................60
8.6 Cash Advance Deposit.....................................................................60
8.7 Break Costs and Break Benefits...........................................................60
8.8 Interest Rate Swap Provider Deposit......................................................61
9...........CHARGEOFFS...........................................................................................61
9.1 Allocation of Principal Chargeoffs.......................................................61
9.2 Allocation of Principal Chargeoff Reimbursements.........................................62
9.3 Loss Recoveries..........................................................................63
10..........PAYMENTS ON DISTRIBUTION DATES BY TRUSTEE............................................................63
10.1 Payment of Accrued Interest Adjustment on first Distribution Date........................63
10.2 Application of the Available Income Amount on each Distribution Date.....................63
10.3 Application of the Available Principal Amount on each Distribution Date..................65
10.4 Payment of Interest on the Class A-1 Notes...............................................65
10.5 Repayment of Principal on the Securities.................................................65
10.6 Repayment of Principal on the Class A-1 Notes............................................66
10.7 Inability to Comply with Order of Priority...............................................66
10.8 No Payment in respect of Obligations ranking Equally or after Class A-1
Notes if no payment made to Currency Swap Provider.......................................66
10.9 Payments in respect of A$ Securities.....................................................67
11..........NET TAX INCOME OF THE SERIES TRUST...................................................................67
11.1 Net Tax Income of the Series Trust absolutely vested in the Income
Unitholder...............................................................................67
11.2 Excess Distribution......................................................................67
12..........EARLY TERMINATION OF SWAPS...........................................................................68
12.1 Early Termination of a Swap..............................................................68
12.2 Servicer to Adjust Mortgage Interest Saver Accounts and Mortgage Rates if
Basis Swap Terminated....................................................................68
12.3 Determination of Threshold Rate..........................................................69
12.4 Trustee to set Mortgage Rate.............................................................69
13..........REPRESENTATIONS AND WARRANTIES REGARDING MORTGAGE LOANS..............................................69
13.1 Seller's Representations and Warranties..................................................69
13.2 Trustee need not Test Warranties.........................................................72
14..........BREACH OF REPRESENTATIONS AND WARRANTIES.............................................................72
14.1 Manager or Seller Becomes Aware of Incorrect Representations or Warranties...............72
14.2 If Trustee Becomes Aware of Incorrect Representations or Warranties......................72
14.3 Remedy of Defaults during Prescribed Period..............................................72
14.4 Holding for CBA Trust during Prescribed Period...........................................72
14.5 Costs....................................................................................73
14.6 Payment..................................................................................73
14.7 Limitation on Rights of Trustee During Prescribed Period.................................73
14.8 Limit of Seller's Liability for Mortgage Loans...........................................74
14.9 CBA's Liability for Damages After Prescribed Period......................................74
14.10 Discharge of obligations.................................................................74
14.11 Fraud....................................................................................74
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14.12 Trustee's Reliance.......................................................................74
15..........SELLER'S GENERAL UNDERTAKINGS........................................................................75
15.1 General Undertakings.....................................................................75
15.2 Seller not bound by Undertaking..........................................................76
15.3 Termination of Mortgage Interest Saver Accounts..........................................76
15.4 Gross Up for Mortgage Interest Saver Accounts............................................76
16..........SERVICING OF MORTGAGE LOAN RIGHTS....................................................................76
16.1 Appointment of Servicer..................................................................76
16.2 Obligation to Act as Servicer until Termination of Appointment...........................76
16.3 General Servicing Obligation.............................................................77
16.4 Power to Service.........................................................................77
16.5 Exercise of Discretions..................................................................77
16.6 Servicer's Undertaking Regarding Mortgage Loan Rights....................................77
16.7 Interest Rates on Mortgage Loans.........................................................79
16.8 Release or Substitution of Security......................................................79
16.9 Variation or Relaxation of Terms of Mortgage Loans.......................................80
16.10 Release of Debt..........................................................................80
16.11 Xxxxxxx, Releases and Compromises........................................................80
16.12 Consent to subsequent Security Interests.................................................80
16.13 Consent to Leases etc....................................................................81
16.14 Relief under Binding Provision or on Order of Competent Authority........................81
16.15 Litigation...............................................................................82
16.16 Enforcement Action.......................................................................82
16.17 Incurring Additional Expenses............................................................82
16.18 Mortgage Insurance and Insurance Policy Claims...........................................82
16.19 Insurance Policy Proceeds................................................................82
16.20 Seller Advances..........................................................................83
16.21 Restrictions on Seller Advances..........................................................83
16.22 Servicer's Actions Binding on Trustee....................................................84
16.23 Servicer to Pay its Own Expenses.........................................................84
16.24 Servicer to transmit information to Manager..............................................84
16.25 Proposed amendments to Servicing Guidelines..............................................84
16.26 Further Servicer Undertakings............................................................85
16.27 Servicer holding Assets of the Series Trust..............................................87
16.28 Servicer's Power to Delegate.............................................................87
16.29 Servicer May Replace or Suspend Attorneys................................................88
16.30 Servicer Remains Liable..................................................................88
17..........SERVICER'S RESPONSIBILITIES AND INDEMNITIES..........................................................88
17.1 Not Liable Where Action Unlawful.........................................................88
17.2 Limitation on Servicer's Responsibility..................................................88
17.3 Servicer's Liability.....................................................................88
18..........SERVICER DEFAULT AND RETIREMENT OF SERVICER..........................................................89
18.1 Servicer Default.........................................................................89
18.2 Retirement of Servicer...................................................................90
18.3 Notice to Securityholders................................................................90
18.4 Removal of Servicer......................................................................90
18.5 Retirement of Servicer...................................................................90
18.6 When appointment of Substitute Servicer effective........................................91
18.7 Trustee to Act as Servicer...............................................................91
18.8 Trustee May Give Discharges..............................................................91
18.9 Servicer May Accept Payment..............................................................91
18.10 Servicer and Manager to Provide Full Co-operation........................................91
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18.11 Indemnity................................................................................91
18.12 No Liability for Servicer Default........................................................91
19..........REMUNERATION OF MANAGER, TRUSTEE, SERVICER AND SECURITY TRUSTEE......................................92
19.1 Management Fee...........................................................................92
19.2 Arranging Fee............................................................................92
19.3 Trustee's Fee............................................................................92
19.4 Servicer's Fee...........................................................................92
19.5 Security Trustee's Fees and Expenses.....................................................92
19.6 Goods and Services Tax...................................................................93
19.7 Adjustments to fees......................................................................93
20..........MANAGER DEFAULT......................................................................................95
21..........REPRESENTATIONS AND WARRANTIES.......................................................................95
21.1 General Representations and Warranties by the Seller and the Servicer....................95
21.2 Repetition of Representations and Warranties.............................................97
22..........COLLECTIONS ACCOUNT AND INVESTMENT...................................................................97
22.1 Collections Account......................................................................97
22.2 Initial Collections Account..............................................................97
22.3 Replacement of Collections Account.......................................................97
22.4 Deposits into Collections Account within 5 Business Days.................................97
22.5 While Collections Account with Commonwealth Bank.........................................97
22.6 Withdrawals from Collections Accounts....................................................98
22.7 All Transactions through Collections Account.............................................98
22.8 Title to and Control of Collections Account..............................................99
22.9 No Deductions by Servicer................................................................99
22.10 Prepayments under Liquidity Facility.....................................................99
22.11 Servicer May Retain Income from Collections..............................................99
22.12 Bank Account Taxes.......................................................................99
22.13 Opening of additional accounts where Collections Account is with an
Eligible Depository......................................................................99
23..........CLEAN-UP AND EXTINGUISHMENT.........................................................................100
23.1 Notification of Trigger Event by Manager to CBA.........................................100
23.2 Response by CBA.........................................................................100
23.3 Determination of Clean-Up Settlement Date...............................................100
23.4 Clean-Up Settlement Price...............................................................101
23.5 Payment of Clean-Up Settlement Price....................................................101
23.6 Effect of Payment of Clean-Up Settlement Price..........................................102
23.7 Costs...................................................................................102
23.8 Alternative Structure...................................................................102
23.9 Alternative Funding Arrangements to Permit Redemption...................................102
24..........PERFECTION OF TITLE.................................................................................102
24.1 Perfection of Title Event...............................................................102
24.2 Declaration of Perfection of Title Event................................................103
24.3 Perfection of Title.....................................................................103
24.4 Trustee to lodge Caveats................................................................104
24.5 Trustee to hold Legal Title or lodge Caveats............................................104
24.6 Powers of Attorney......................................................................104
24.7 Other Loans.............................................................................104
24.8 Indemnity...............................................................................104
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25..........SERVICER AS CUSTODIAN OF THE MORTGAGE LOAN DOCUMENTS................................................104
25.1 Servicer as Custodian...................................................................104
25.2 Application of the Balance of this Clause...............................................104
25.3 Servicer's Covenants as Custodian.......................................................104
25.4 Servicer's Update of Computer Diskette..................................................105
25.5 Servicer's Indemnity in respect of Incorrect Information on Computer
Diskette................................................................................105
25.6 Document Custody Audit Report...........................................................105
25.7 Details of Document Custody Audit Report................................................106
25.8 Document Custody Audit Report...........................................................106
25.9 Timing of Document Custody Audit Reports................................................107
25.10 Adverse Document Custody Audit Report...................................................107
25.11 Document Transfer Event.................................................................107
25.12 Failure to comply with clause 25.11.....................................................108
25.13 Emergency Document transfer.............................................................108
25.14 Exceptions to Transfer..................................................................109
25.15 Indemnity by the Servicer...............................................................109
25.16 Trustee to co-operate with Servicer.....................................................109
25.17 Specific performance....................................................................109
25.18 Trustee's Duty While Holding Mortgage Documents.........................................109
25.19 Reappointment of Servicer as Custodian..................................................109
26..........TERMINATION OF THE SERIES TRUST.....................................................................110
26.1 Potential Termination Events............................................................110
26.2 Determination of Termination Payment Date...............................................110
26.3 Realisation of Assets...................................................................110
26.4 Conditions of Sale During 180 days......................................................111
26.5 Right of Refusal to Seller..............................................................111
26.6 Sale at Lower Price.....................................................................112
26.7 Conditions of Sale After 180 days.......................................................112
26.8 Further Conditions of Sale After 180 days...............................................112
26.9 Procedures Pending Winding-Up...........................................................112
26.10 Costs on Winding-up of the Series Trust.................................................113
26.11 Calculation of Final Distributions......................................................113
26.12 Final Distributions.....................................................................113
26.13 Insufficient Funds......................................................................113
26.14 Excess Funds............................................................................113
26.15 Distribution to Class B Capital Unitholder in Specie....................................114
26.16 Terms of In Specie Distributions........................................................114
27..........GENERAL.............................................................................................114
27.1 Required Credit Rating..................................................................114
27.2 Distribution of information.............................................................114
27.3 Electronic Reporting of Pool Performance Data...........................................114
27.4 Claim for Damages.......................................................................115
27.5 Allocation of Damages...................................................................115
27.6 Additional Expenses.....................................................................115
27.7 Form of Transfers and Certificates......................................................115
27.8 Incur Costs Without Approval............................................................115
27.9 Adverse Effect..........................................................................115
27.10 Notification to Rating Agencies of Redemption of Securities.............................116
27.11 Further Support Facilities..............................................................116
27.12 Supplementary Trustee Powers............................................................116
27.13 Trustee's power to delegate.............................................................117
28..........LIMITATION OF TRUSTEE'S DUTIES......................................................................117
28.1 Trustee May Rely........................................................................117
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28.2 No Duty to Investigate..................................................................117
28.3 Trustee not Liable......................................................................118
29..........TRUSTEE'S LIMITATION OF LIABILITY...................................................................118
29.1 Limitation on Trustee's liability.......................................................118
29.2 Claims against Trustee..................................................................118
29.3 Breach of trust.........................................................................118
29.4 Acts or Omissions.......................................................................118
29.5 No obligation...........................................................................118
29.6 CBA Trust...............................................................................119
30..........CONSUMER CREDIT CODE................................................................................119
30.1 Breach of Consumer Credit Code..........................................................119
30.2 Right of Indemnity - Consumer Credit Code...............................................119
31..........NOTICES.............................................................................................120
31.1 Method of Delivery......................................................................120
31.2 Deemed Receipt..........................................................................120
31.3 Notice to Investors.....................................................................120
32..........CONFIDENTIALITY.....................................................................................121
32.1 General Restriction.....................................................................121
32.2 Exceptions..............................................................................121
33..........MISCELLANEOUS.......................................................................................122
33.1 Amendments..............................................................................122
33.2 Governing Law...........................................................................122
33.3 Jurisdiction............................................................................122
33.4 Notify Rating Agencies..................................................................122
33.5 Severability of Provisions..............................................................122
33.6 Counterparts............................................................................122
33.7 No Revocation of Power of Attorney......................................................122
33.8 Certifications..........................................................................123
33.9 Payments................................................................................123
33.10 Waiver..................................................................................123
33.11 Entire Understanding....................................................................123
33.12 Survival of Indemnities.................................................................123
33.13 Successors and Assigns..................................................................123
33.14 Moratorium Legislation..................................................................123
33.15 Privacy.................................................................................123
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SCHEDULE 1 FORM OF SALE NOTICE...............................................125
SCHEDULE 2 FORMS OF POWER OF ATTORNEY (OTHER THAN FOR QUEENSLAND AND
WESTERN AUSTRALIA)......................................................126
SCHEDULE 3 FORM OF POWER OF ATTORNEY (FOR QUEENSLAND)........................131
SCHEDULE 4 FORM OF POWER OF ATTORNEY (FOR WESTERN AUSTRALIA).................135
SCHEDULE 5 ELIGIBILITY CRITERIA..............................................139
SCHEDULE 6 FORM OF SECURITY CERTIFICATE A$ SECURITIES.......................140
SCHEDULE 7 FORM OF SECURITY TRANSFER.........................................142
SCHEDULE 8 QUARTERLY CERTIFICATE.............................................146
SCHEDULE 9 FORM OF CAPITAL UNIT CERTIFICATE..................................156
SCHEDULE 10 FORM OF INCOME UNIT CERTIFICATE..................................158
SCHEDULE 11 STEPDOWN PERCENTAGE..............................................160
SCHEDULE 12 FORM OF CUSTODIAN POWER OF ATTORNEY..............................163
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THIS SERIES SUPPLEMENT MADE AT SYDNEY ON 5 MARCH 2003
PARTIES COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124, a company
incorporated in Australia and registered in the Australian
Capital Territory and having an office at Level 0, 00 Xxxxxx
Xxxxx, Xxxxxx (hereinafter included in the expressions the
"SELLERS" and the "SERVICER")
HOMEPATH PTY LIMITED ABN 35 081 986 530, a company incorporated
in Australia and registered in the State of New South Wales and
having an office at Level 0, 00 Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx
(hereinafter included in the expression the "SELLERS")
SECURITISATION ADVISORY SERVICES PTY. LIMITED ABN 88 064 133 946,
a company incorporated in Australia and registered in the
Australian Capital Territory and having an office at Level 0, 00
Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx (hereinafter included in the
expression the "MANAGER")
PERPETUAL TRUSTEE COMPANY LIMITED ABN 42 000 001 007, a company
incorporated in Australia and registered in the State of New
South Wales and having an office at Level 0, 0 Xxxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxx (hereinafter included in the expression
the "TRUSTEE")
RECITALS
A. This Deed relates to the Medallion Trust Series 2003-1G.
B. In accordance with the Master Trust Deed, this Deed includes, amongst other
things, the terms upon which:
(i) the Trustee may purchase Mortgage Loans from each of the Sellers;
(ii) the Trustee may issue Securities to fund such purchase; and
(iii) the Trustee appoints the Servicer to service such Mortgage Loans
(if purchased by the Trustee).
C. This Deed also provides for the establishment of the CBA Trust.
D. The Trustee has agreed to act as trustee of the CBA Trust on the terms and
conditions of this Deed and the Master Trust Deed.
THE PARTIES AGREE
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1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed, unless the contrary intention appears:
"A$" and "AUSTRALIAN DOLLARS" means the lawful currency for the time
being of the Commonwealth of Australia.
"A$ CLASS A-1 INTEREST AMOUNT" in relation to a Distribution Date and
the Accrual Period ending on that Distribution Date means an amount
calculated as follows:
N
CA1IA = ACA1IA x CA1IR x ---
365
1
where:
CA1IA = the A$ Class A-1 Interest Amount for that Accrual Period;
ACA1IA = the A$ Equivalent of the aggregate Invested Amounts of the
Class A-1 Notes at the close of business on the first day
of that Accrual Period (after any reduction in the Invested
Amounts on that day);
CA1IR = the A$ Class A-1 Interest Rate for that Accrual Period; and
N = the number of days in that Accrual Period.
"A$ CLASS A-1 INTEREST PAYMENT" in relation to a Distribution Date and
the Accrual Period ending on that Distribution Date means the amount
paid or available to be paid (as the case may be) on that Distribution
Date pursuant to clause 10.2(k)(i) from the Available Income Amount in
respect of that Distribution Date.
"A$ CLASS A-1 INTEREST RATE" in relation to an Accrual Period means the
aggregate of:
(a) the Bank Bill Rate for that Accrual Period; and
(b) the A$ Class A-1 Margin.
"A$ CLASS A-1 MARGIN" has the same meaning as the "Spread" specified in
paragraph 5.2 of the confirmation for the Class A-1 Currency Swap.
"A$ CLASS A-1 PRINCIPAL AMOUNT" in relation to a Distribution Date
means the amount referred to in clause 10.5(b)(i) in relation to that
Distribution Date.
"A$ CLASS A-1 UNPAID INTEREST AMOUNT" in relation to a Distribution
Date means the aggregate of:
(a) any A$ Class A-1 Interest Amounts remaining unpaid pursuant to
clause 10.2(k) from prior Distribution Dates; and
(b) interest on the A$ Class A-1 Interest Amounts referred to in
paragraph (a) at the A$ Class A-1 Interest Rate applicable from
time to time from the date that that A$ Class A-1 Interest Amount
first became payable under clause 10.2(k) until (but not
including) the date actually paid under clause 10.2(k).
"A$ EQUIVALENT" in relation to an amount which is calculated,
determined or expressed in US$ or which includes a component determined
or expressed in US$ means that US$ amount or US$ component (as the case
may be) multiplied by the A$ Exchange Rate.
"A$ EXCHANGE RATE" means the "A$ Exchange Rate" specified in paragraph
7 of the confirmation for the Class A-1 Currency Swap.
"A$ SECURITY" means, as the context requires, a Class A-2 Note, a Class
B Note, a Redraw Bond or all of the foregoing.
"ACCRUAL PERIOD" means initially the period commencing on (and
including) the Closing Date and ending on (but excluding) the first
Distribution Date and, thereafter, is each successive period starting
on (and including) a Distribution Date and ending on (but excluding)
the next Distribution Date. The final Accrual Period ends on (but
excludes) the Termination Payment Date and commences on (and includes)
the Distribution Date immediately preceding the Termination Payment
Date.
"ACCRUED INTEREST ADJUSTMENT" in relation to a Mortgage Loan means the
amount of interest accrued on that Mortgage Loan for, and any fees in
relation to that Mortgage Loan falling due
2
for payment during, the period commencing on (and including) the
Monthly Anniversary Date for that Mortgage Loan immediately prior to
the Cut-Off Date and ending on (but excluding) the Closing Date and any
accrued interest and fees due but unpaid in relation to that Mortgage
Loan prior to that Monthly Anniversary Date.
"ADVERSE DOCUMENT CUSTODY AUDIT REPORT" means a Document Custody Audit
Report in which the overall custodial performance of the Servicer is
graded D in accordance with the grading system referred to in clause
25.8.
"ADVERSE EFFECT" means any event which (determined by the Manager
unless otherwise expressly specified in this Deed or any other
Transaction Document) materially and adversely affects the amount of
any payment due to be made to any Securityholder or materially and
adversely affects the timing of such a payment.
"AGENCY AGREEMENT" means the Agency Agreement to be dated on or about
the Closing Date and made between the Trustee, the Manager, The Bank of
New York, New York Branch (as the initial US Dollar Note Trustee,
Principal Paying Agent, Agent Bank and US Dollar Note Registrar) and
The Bank of New York, London Branch (as the initial additional Paying
Agent).
"AGENT BANK" has the same meaning as in the Agency Agreement.
"ARRANGING FEE" means the fee payable to the Manager on each
Distribution Date calculated in accordance with clause 19.2.
"AVAILABLE INCOME AMOUNT" in relation to a Determination Date and the
immediately following Distribution Date means the aggregate of:
(a) the Preliminary Income Amount as at that Determination Date;
(b) any Liquidity Facility Advance due to be made to meet a Gross
Income Shortfall on that Distribution Date;
(c) any Principal Draw due to be made on that Distribution Date; and
(d) any other amounts received by the Trustee from a Support Facility
Provider under a Support Facility on or prior to that
Distribution Date which the Manager determines should be included
in the Available Income Amount (other than any amounts already
included in paragraphs (a), (b) or (c)).
"AVAILABLE PRINCIPAL AMOUNT" in relation to a Determination Date and
the immediately following Distribution Date means an amount calculated
as follows:
APA = PPA + PDR
where:
APA = the Available Principal Amount as at that Determination Date;
PPA = the Preliminary Principal Amount as at that Determination
Date; and
PDR = the Principal Draw Reimbursement as at that Determination
Date.
"AVERAGE DELINQUENT PERCENTAGE" in relation to a Determination Date
means the amount (expressed as a percentage) calculated as follows:
SDP
ADP = ---
12
3
where:
ADP = the Average Delinquent Percentage; and
SDP = the sum of the Delinquent Percentages for the 12 Collection
Periods immediately preceding or ending (as the case may be)
on that Determination Date,
provided that if on that Determination Date there has not yet been 12
Collection Periods the Average Delinquent Percentage in relation to
that Determination Date means the amount (expressed as a percentage)
calculated as follows:
SDP
ADP = ---
N
where:
ADP = the Average Delinquent Percentage;
SDP = the sum of the Delinquent Percentages for all of the
Collection Periods preceding or ending (as the case may be)
on that Determination Date; and
N = the number of Collection Periods preceding that Determination
Date.
"BANK BILL RATE" in relation to an Accrual Period means the rate
appearing at approximately 10.00 am Sydney time on the Rate Set Date
for that Accrual Period on the Reuters Screen page "BBSW" as being the
average of the mean buying and selling rates appearing on that page for
a bill of exchange having a tenor of three months. If:
(a) on the Rate Set Date fewer than 4 banks are quoted on the Reuters
Screen page "BBSW"; or
(b) for any other reason the rate for that Rate Set Date cannot be
determined in accordance with the foregoing procedures,
then the "BANK BILL RATE" means such rate as is specified by the
Manager having regard to comparable indices then available.
Notwithstanding the foregoing, if the initial Accrual Period is less
than or greater than three months, the relevant rate for that Accrual
Period will be determined by the Manager by straight-line interpolation
by reference to two available rates one of which is the Bank Bill Rate
on that date for the period next shorter than the length of that
Accrual Period and the other of which is the Bank Bill Rate on that
date for the period next longer than the length of that Accrual Period.
"BASIS SWAP" has the same meaning as in the Interest Rate Swap
Agreement.
"BINDING PROVISION" means any provision of the Code of Banking Practice
released by the Australian Bankers' Association on 3 November 1993, any
other code or arrangement binding on a Seller or the Servicer and any
laws applicable to banks or other lenders in the business of making
retail home loans.
"BORROWER" in relation to a Mortgage Loan means the person or persons
to whom a loan or other financial accommodation has been provided under
that Mortgage Loan and includes, where the context requires, the
mortgagor under the corresponding Mortgage.
"BREAK BENEFITS" in relation to a Determination Date means the total
break benefits paid by or on behalf of the Trustee during the
Collection Period ending on that Determination Date to a Borrower in
relation to a Mortgage Loan which is then part of the Assets of the
Series Trust
4
arising from the early termination of that Mortgage Loan or the early
termination of a fixed interest rate period under that Mortgage Loan.
"BREAK COSTS" in relation to a Determination Date means the total break
costs, or amounts in respect of break costs, received by or on behalf
of the Trustee during the Collection Period ending on that
Determination Date from a Borrower, GEMI, GEMICO, PMI or any other
person in relation to a Mortgage Loan which is then part of the Assets
of the Series Trust (or was immediately prior to its Liquidation Date
or the date that it was assigned under a Mortgage Insurance Policy, an
Asset of the Series Trust) arising from the early termination of that
Mortgage Loan or the early termination of a fixed interest rate period
under that Mortgage Loan.
"BUSINESS DAY" means any day on which banks are open for business in
Sydney, New York City and London, other than a Saturday, a Sunday or a
public holiday in Sydney, New York City or London.
"CAPITAL UNIT" means the Class A Capital Unit and the Class B Capital
Unit.
"CASH ADVANCE DEPOSIT" has the same meaning as in the Liquidity
Facility Agreement.
"CAVEAT" in relation to a Mortgage forming part of the Assets of the
Series Trust or in relation to a Shared Security means a land titles
office caveat in registrable form which, upon registration, is
effective to protect the Trustee's interest as equitable assignee of
the relevant Seller's interest in that Mortgage or, in the case of a
Shared Security, is effective to protect that Seller's interest as
beneficiary of the CBA Trust in that Shared Security.
"CAVEAT AND TRANSFER DETAILS" in relation to each Mortgage forming part
of the Assets of the Series Trust means such details as may be required
by the relevant land titles office in order to lodge and obtain
registration of Caveat and/or Mortgage Transfers.
"CBA" means Commonwealth Bank of Australia ABN 48 123 123 124.
"CBA TRUST" means each of the trusts constituted in favour of the
Sellers pursuant to clause 2.1 and all references to "CBA TRUST" shall
mean each or both such trusts (as the context may require).
"CBA TRUST ASSETS" means all assets and property, real and personal
(including choses in action and other rights), tangible and intangible,
present or future, held by the Trustee as trustee of the CBA Trust from
time to time and, in relation to a Seller, means:
(a) the A$100 paid to the Trustee on behalf of that Seller pursuant
to clause 2.1;
(b) each CBA Trust Asset assigned by that Seller to the Trustee;
(c) any proceeds of the foregoing which are CBA Trust Assets; and
(d) any other CBA Trust Asset determined by the Manager, and notified
to the Trustee, to be a CBA Trust Asset in relation to that
Seller.
"CERTIFICATE OF TITLE" in relation to a Mortgaged Property means the
certificate of title or other documents evidencing title to that
Mortgaged Property (including, if applicable, the documents forming any
abstract of that title) or where the certificate of title or other
documents have been cancelled due to the computerisation of the
register, any original registration confirmation, notification or
statement which the relevant Seller has in its files.
"CHARGE" has the same meaning as in the Security Trust Deed.
"CLASS A-1 CHARGEOFF PERCENTAGE" in relation to a Determination Date
means the amount (expressed as a percentage) calculated as follows:
5
CA1SA
CA1CP = ---------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
CA1CP = the Class A-1 Chargeoff Percentage in relation to that
Determination Date;
CA1SA = the A$ Equivalent of the aggregate Stated Amounts of the
Class A-1 Notes on that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that
Determination Date;
RBSA = the aggregate Stated Amount of the Redraw Bonds on that
Determination Date; and
SRFP = the Standby Redraw Facility Principal on that Determination
Date.
"CLASS A-1 CURRENCY SWAP" means the transaction defined as such in the
Currency Swap Agreement.
"CLASS A-1 INTEREST AMOUNT" has the same meaning as in the US Dollar
Note Conditions.
"CLASS A-1 INTEREST PAYMENT" in relation to a Distribution Date means
each US$ Class A-1 Interest Payment (as that term is defined in the
Currency Swap Agreement) paid or payable (as the case may be) by the
Currency Swap Provider to or at the direction of the Trustee on that
Distribution Date in accordance with the Class A-1 Currency Swap.
"CLASS A-1 NOTEHOLDER" has the same meaning as in the US Dollar Note
Conditions.
"CLASS A-1 NOTES" has the same meaning as in the US Dollar Note
Conditions.
"CLASS A-1 PERCENTAGE" in relation to a Determination Date means the
amount (expressed as a percentage) calculated as follows:
CA1SA
CA1P = -------------
CA1SA + CA2SA
where:
CA1P = the Class A-1 Percentage;
CA1SA = the A$ Equivalent of the aggregate Stated Amount of the
Class A-1 Notes on that Determination Date; and
CA2SA = the aggregate Stated Amount of the Class A-2 Notes on that
Determination Date.
"CLASS A-1 UNPAID INTEREST AMOUNT" has the same meaning as in the US
Dollar Note Conditions.
"CLASS A-2 CHARGEOFF PERCENTAGE" in relation to a Determination Date
means the amount (expressed as a percentage) calculated as follows:
CA2SA
CA2CP = ---------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
6
CA2CP = the Class A-2 Chargeoff Percentage in relation to that
Determination Date;
CA1SA = the A$ Equivalent of the aggregate Stated Amounts of the
Class A-1 Notes on that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that
Determination Date;
RBSA = the aggregate Stated Amount of the Redraw Bonds on that
Determination Date; and
SRFP = the Standby Redraw Facility Principal on that Determination
Date.
"CLASS A-2 NOTE" means a Class A-2 Tranche 1 Note or a Class A-2
Tranche 2 Note.
"CLASS A-2 NOTEHOLDER" means a Class A-2 Tranche 1 Noteholder or a
Class A-2 Tranche 2 Noteholder.
"CLASS A-2 PERCENTAGE" in relation to a Distribution Date means 100%
less the Class A-1 Percentage for the Determination Date immediately
preceding that Distribution Date.
"CLASS A-2 TRANCHE 1 NOTE" means a debt security issued by the Trustee,
in its capacity as trustee of the Series Trust, pursuant to the
provisions of this Deed and the Dealer Agreement and forming part of
the Class of Securities described in clause 5.1(e) as Class A-2 Tranche
1 Notes.
"CLASS A-2 TRANCHE 1 NOTEHOLDER" means at any time the person recorded
at that time in the Register as the holder of a Class A-2 Tranche 1
Note.
"CLASS A-2 TRANCHE 2 NOTE" means a debt security issued by the Trustee,
in its capacity as trustee of the Series Trust, pursuant to the
provisions of this Deed and the Dealer Agreement and forming part of
the Class of Securities described in clause 5.1(f) as Class A-2 Tranche
2 Notes.
"CLASS A-2 TRANCHE 2 NOTEHOLDER" means at any time the person recorded
at that time in the Register as the holder of a Class A-2 Tranche 2
Note.
"CLASS A CAPITAL UNIT" means the Class A Capital Unit in the Series
Trust referred to in clause 3.2.
"CLASS A CAPITAL UNITHOLDER" means the Unitholder of the Class A
Capital Unit.
"CLASS A NOTE" means, as the context requires, a Class A-1 Note, a
Class A-2 Note or both.
"CLASS A NOTEHOLDER" means, as the context requires, a Class A-1
Noteholder, a Class A-2 Noteholder or both.
"CLASS A PERCENTAGE" in relation to a Determination Date means the
amount (expressed as a percentage) calculated as follows:
SAA
CAP = ---
NSA
where:
CAP = the Class A Percentage;
7
SAA = the aggregate of the A$ Equivalent of the Stated Amounts for
the Class A-1 Notes and the Stated Amounts for the Class A-2
Notes on that Determination Date; and
NSA = the aggregate of the A$ Equivalent of the Stated Amounts for
the Class A-1 Notes and the Stated Amounts for the Class A-2
Notes and the Class B Notes, on that Determination Date.
"CLASS A PRINCIPAL DISTRIBUTION" in relation to a Distribution Date
means the amount calculated as follows:
CAPD = CASPA + CAUPA + (SDP x CBUPA)
where:
CAPD = the Class A Principal Distribution;
CASPA = the Class A Scheduled Principal Amount on the immediately
preceding Determination Date;
CAUPA = the Class A Unscheduled Principal Amount on the immediately
preceding Determination Date;
SDP = the Stepdown Percentage on the immediately preceding
Determination Date; and
CBUPA = the Class B Unscheduled Principal Amount on the immediately
preceding Determination Date.
"CLASS A SCHEDULED PRINCIPAL AMOUNT" in relation to a Determination
Date means the amount calculated as follows:
CASPA = CAP x NSPA
where:
CASPA = the Class A Scheduled Principal Amount;
CAP = the Class A Percentage on that Determination Date; and
NSPA = the Net Scheduled Principal Amount on that Determination
Date.
"CLASS A UNSCHEDULED PRINCIPAL AMOUNT" in relation to a Determination
Date means the amount calculated as follows:
CAUPA = CAP x NUPA
where:
CAUPA = the Class A Unscheduled Principal Amount;
CAP = the Class A Percentage on that Determination Date; and
NUPA = the Net Unscheduled Principal Amount on that Determination
Date.
"CLASS B AVAILABLE SUPPORT" in relation to a Determination Date means
an amount (expressed as a percentage) calculated as follows:
SAB
CBAS = ----------
ASA + SRFL
8
where:
CBAS = the Class B Available Support;
SAB = the aggregate Stated Amount for the Class B Notes on that
Determination Date;
ASA = the aggregate of the A$ Equivalent of the Stated Amounts of
the Class A-1 Notes, and the Stated Amounts for the A$
Securities, on that Determination Date; and
SRFL = the Standby Redraw Facility Limit on that Determination
Date.
"CLASS B CAPITAL UNIT" means the Class B Capital Unit in the Series
Trust referred to in clause 3.2.
"CLASS B CAPITAL UNITHOLDER" means the Unitholder of the Class B
Capital Unit.
"CLASS B NOTE" means a debt security issued by the Trustee, in its
capacity as trustee of the Series Trust, pursuant to the provisions of
this Deed and the Dealer Agreement and forming part of the Class of
Securities described in clause 5.1(c) as Class B Notes.
"CLASS B NOTEHOLDER" means at any time the person recorded at that time
in the Register as the holder of a Class B Note.
"CLASS B PERCENTAGE" in relation to a Determination Date means 100%
less the Class A Percentage for that Determination Date.
"CLASS B REQUIRED SUPPORT" in relation to a Determination Date means
the amount (expressed as a percentage) calculated as follows:
IIA
CBRS = ----
AIIA
where:
CBRS = the Class B Required Support;
IIA = the aggregate Initial Invested Amount for the Class B Notes;
and
AIIA = the aggregate of the A$ Equivalent of the Initial Invested
Amounts of the Class A-1 Notes and the Initial Invested
Amounts for the A$ Securities, on that Determination Date.
"CLASS B UNSCHEDULED PRINCIPAL AMOUNT" in relation to a Determination
Date means the amount calculated as follows:
CBUPA = CBP x NUPA
where:
CBUPA = the Class B Unscheduled Principal Amount;
CBP = the Class B Percentage on that Determination Date; and
NUPA = the Net Unscheduled Principal Amount on that Determination
Date.
"CLEAN-UP SETTLEMENT DATE" means the Distribution Date determined in
accordance with clause 23.3.
9
"CLEAN-UP SETTLEMENT PRICE" means the amount calculated in accordance
with clause 23.4.
"CLOSING DATE" means the date specified by a Seller to the Trustee and
the Manager in a Sale Notice (if any) to be the Closing Date (or such
other date as the Manager may notify the Trustee and that Seller in
accordance with that Sale Notice).
"COLLATERAL SECURITY" means in respect of a Mortgage Loan:
(a) any:
(i) Security Interest; or
(ii) guarantee, indemnity or other assurance, which secures
or otherwise provides for the repayment or payment of
that Mortgage Loan but does not include the Mortgage
relating to that Mortgage Loan; or
(b) any Mortgage Insurance Policy or Insurance Policy in respect of
the Mortgage relating to the Mortgage Loan or the Land secured by
the Mortgage relating to that Mortgage Loan.
A Collateral Security referred to in paragraph (a) may be given under
the same document that evidences the Mortgage Loan to which that
Collateral Security relates.
"COLLECTION PERIOD" means:
(a) with respect to the first Determination Date, the period
commencing on (and including) the Cut-Off Date and ending on (but
excluding) that Determination Date; and
(b) with respect to each subsequent Determination Date, the period
commencing on and including the previous Determination Date and
ending on (but excluding) that Determination Date.
"COLLECTIONS" means Finance Charge Collections, Other Income Amounts,
Mortgage Insurance Income Proceeds, Principal Collections and Other
Principal Amounts.
"COLLECTIONS ACCOUNT" means the account established and maintained
pursuant to clause 22.1 or any new account established as the
Collections Account under clause 22.3.
"COMPETENT AUTHORITY" means a court, tribunal, authority, ombudsman or
other entity whose decisions, findings, orders, judgment or
determinations (howsoever reached) are binding on a Seller or the
Servicer.
"CONSIDERATION" means the aggregate Mortgage Loan Principal of the
Mortgage Loans assigned to the Trustee as at the Cut-Off Date.
"CONSUMER CREDIT CODE" means, as applicable, the Consumer Credit Code
set out in the Appendix to the Consumer Credit (Queensland) Act 1994 as
in force or applied as a law of any jurisdiction in Australia, the
provisions of the Code set out in the Appendix to the Consumer Credit
(Western Australia) Act 1996 or the provisions of the Code set out in
the Appendix to the Consumer Credit (Tasmania) Act 1996.
"CORPORATIONS ACT" means the Corporations Act 2001 (Cth).
"CURRENCY SWAP AGREEMENT" means the ISDA Master Agreement between the
initial Currency Swap Provider, the Trustee and the Manager, together
with a schedule and a credit support annex and a confirmation relating
respectively thereto and includes any substitute agreement in place of
an existing Currency Swap Agreement.
10
"CURRENCY SWAP PROVIDER" means initially CBA and includes any other
person that subsequently enters into a Currency Swap Agreement with the
Trustee and the Manager.
"CU SECURITISATION SERVICES" means CU Securitisation Services Pty
Limited ACN 103 939 500.
"CUSTODIAN" means CBA.
"CUT-OFF DATE" means the date specified by a Seller as such in a Sale
Notice (or such other date as the Manager may notify the Trustee and
that Seller in accordance with that Sale Notice).
"DEALER AGREEMENT" means the Dealer Agreement dated on or about the
date of this Deed between the Trustee, the Manager, CBA (as lead
manager) and the other institutions (if any) named therein (as
managers) and pursuant to which the lead manager and such other
managers agree to subscribe for or procure subscriptions for the Class
A-2 Notes and Class B Notes.
"DEED OF INDEMNITY" means the Deed of Indemnity dated on or about the
date of this Deed between the Trustee and CBA pursuant to which CBA,
for itself and Homepath, agrees to indemnify the Trustee on the terms
and subject to the conditions set out in that deed.
"DELINQUENT PERCENTAGE" in relation to a Collection Period means the
amount (expressed as a percentage) calculated as follows:
DMLP
DP = ----
AMLP
where:
DP = the Delinquent Percentage;
DMLP = the aggregate Mortgage Loan Principal on the last day of
that Collection Period in relation to Mortgage Loans which
are then part of the Assets of the Series Trust and in
relation to which a payment due from the Borrower has been
in arrears (on that day) by more than 60 days; and
AMLP = the aggregate Mortgage Loan Principal on the last day of
that Collection Period in relation to Mortgage Loans which
are then part of the Assets of the Series Trust.
"DEPOSITORY" means each organisation registered as a clearing agency
pursuant to section 17A of the United States Securities Exchange Act of
1934 that agrees with the Manager and the Trustee to hold Class A-1
Notes (directly or through a nominee) and initially means The
Depository Trust Company.
"DETERMINATION DATE" means the first day of the calendar month in which
each Distribution Date occurs. The first Determination Date is 1 June
2003.
"DISTRIBUTION DATE" means the 21st day of each March, June, September
and December (or if such a day is not a Business Day, the next Business
Day). The first Distribution Date is 21 June 2003 (or if that day is
not a Business Day, the next Business Day).
"DOCUMENT CUSTODY AUDIT REPORT" means a report by the Auditor of the
Series Trust in accordance with clause 25.
"DOCUMENT TRANSFER EVENT" means each of the events referred to in
clause 25.11.
11
"ELIGIBLE DEPOSITORY" means a financial institution which has assigned
to it short term credit ratings equal to or higher than (as the case
may be) A-1 by S&P and P-1 by Xxxxx'x and includes the Servicer to the
extent that:
(a) it is rated in this manner; or
(b) the Rating Agencies confirm that the rating of the Servicer at a
lower level will not result in a reduction, qualification or
withdrawal of the ratings given by the Rating Agencies to the
Securities.
"ELIGIBLE DEPOSIT ACCOUNT" means an account with an Eligible
Depository.
"ELIGIBILITY CRITERIA" has the meaning set out in Schedule 5.
"EXCESS DISTRIBUTION" in relation to a Distribution Date means the
amount (if any) payable to the Income Unitholder on that Distribution
Date pursuant to clause 10.2(p).
"EXPENSES" means all amounts relating to the Series Trust referred to
in clause 16.11 of the Master Trust Deed and includes (without limiting
the generality of the foregoing and without double counting) the
aggregate of:
(a) any reasonable Property Protection Expenses or Mortgage
Enforcement Expenses incurred by the Servicer in connection with
the management, maintenance or sale of any Mortgaged Property or
in the enforcement of any Mortgage Documents;
(b) the cost of registering any Caveats or Mortgage Transfers in
relation to Mortgages forming part of the Assets of the Series
Trust, to the extent not reimbursed by a Seller in accordance
with this Deed;
(c) any reasonable fees, charges and moneys payable to any consultant
appointed by the Trustee, the Manager or the Servicer and all
disbursements, expenses, duties and outgoings properly chargeable
in respect of such consultant;
(d) subject to clause 8.7, any Break Benefits;
(e) the Security Trustee's Expenses; and
(f) any amount received by the Trustee or the Servicer on or after
the Cut-Off Date in respect of a Mortgage Loan forming part of
the Assets of the Series Trust, related Mortgage or related First
Layer of Collateral Security which the Servicer, pursuant to a
decision, finding, order, judgment or determination of a
Competent Authority or pursuant to a Binding Provision or based
on advice from its legal advisers (either internal or external),
has repaid to the liquidator or the trustee-in-bankruptcy (as the
case may be) of a Borrower or the grantor of a First Layer of
Collateral Security as a result of the insolvency or bankruptcy
(as the case may be) of the Borrower or the grantor of the First
Layer of Collateral Security,
but does not include any amount referred to in clauses 10.2(a)-(g)
(inclusive) and (i)-(p) (inclusive), 10.3, 10.4, 10.5 or 10.6.
"FAIR MARKET VALUE" in relation to a Mortgage Loan means the fair
market value for that Mortgage Loan determined by CBA's external
auditors and which value reflects the performing or non-performing
status (as determined by the Servicer) of that Mortgage Loan and any
benefit which the intended purchaser will have in respect of that
Mortgage Loan under any relevant Support Facility.
"FINANCE CHARGE COLLECTIONS" in relation to a Collection Period means
the aggregate of the following amounts (without double counting)
received by or on behalf of the Trustee during
12
that Collection Period in respect of the Mortgage Loans then forming
part of the Assets of the Series Trust:
(a) all amounts received under or in respect of the Mortgage Loans
(including Liquidation Proceeds) in respect of interest, fees,
Government Charges or other amounts due under the Mortgage Loans
(less reversals made during the period in respect of interest or
other charges in relation to any of the accounts where the
original debit entry (or part thereof) was in error) but
excluding principal and any insurance premiums and related
charges payable to the relevant Seller;
(b) all amounts of interest received under or in respect of the
Mortgage Loans and the Mortgage Loan Rights to the extent that
the obligations to pay such amounts are discharged by the
exercise during that Collection Period of a right of set-off or
right to combine accounts; and
(c) subject to clause 8.7, any Break Costs,
but does not include any Mortgage Insurance Income Proceeds or Other
Income Amounts.
"FIRST LAYER OF COLLATERAL SECURITIES" in relation to a Mortgage Loan
means:
(a) the Collateral Securities (other than any Mortgage Insurance
Policy relating to that Mortgage Loan or any related Insurance
Policies) from time to time appearing in the records of the
relevant Seller in relation to that Mortgage Loan to be intended
as security for that Mortgage Loan;
(b) any Mortgage Insurance Policy relating to that Mortgage Loan; and
(c) any related Insurance Policies,
notwithstanding that by their terms the Collateral Securities (other
than the Mortgage Insurance Policies or any Insurance Policies) may
also secure other liabilities to that Seller.
"FIXED RATE SWAP" has the same meaning as in the Interest Rate Swap
Agreement.
"GEMI" means GE Mortgage Insurance Pty Ltd ABN 61 071 466 334.
"GEMICO" means GE Capital Mortgage Insurance Corporation (Australia)
Pty Ltd ABN 52 081 488 440.
"GOVERNMENT CHARGES" means any amount debited to the accounts
established in the Servicer's records for the Mortgage Loans
representing bank accounts debits tax or similar tax or duty imposed by
any Governmental Agency.
"GROSS INCOME SHORTFALL" in relation to a Determination Date means the
amount (if any) by which the Required Income Amount for that
Determination Date exceeds the Preliminary Income Amount for that
Determination Date.
"GROSS UNSCHEDULED PRINCIPAL AMOUNT" in relation to a Determination
Date means the amount calculated as follows:
GUPA = OPA + PCOR + RBA + SRFA + PDR
where:
GUPA = the Gross Unscheduled Principal Amount;
OPA = the Other Principal Amounts on that Determination Date;
PCOR = the Principal Chargeoff Reimbursement on that Determination
Date;
13
RBA = the Redraw Bond Amount on that Determination Date;
SRFA = the Standby Redraw Facility Advance to be made on the
immediately following Distribution Date; and
PDR = the Principal Draw Reimbursement as at that Determination
Date.
"GST" means the goods and services tax imposed pursuant to the GST Act.
"GST ACT" means A New Tax System (Goods and Services Tax) Act, 1999.
"HEDGE PROVIDER" means an Interest Rate Swap Provider or a Currency
Swap Provider.
"HOMEPATH" means Homepath Pty Limited ABN 35 081 986 530.
"INCOME LOSS" in relation to a Mortgage Loan, means on the Liquidation
Date for that Mortgage Loan, the aggregate of:
(a) all interest payable in respect of that Mortgage Loan up to and
including the Liquidation Date calculated at the Mortgage Rate
and otherwise in accordance with the Mortgage Documents, whether
or not such interest has been capitalised;
(b) all fees and other charges of any type whatsoever payable in
respect of that Mortgage Loan up to and including the Liquidation
Date in accordance with the Mortgage Documents, whether or not
such fees and other charges have been capitalised; and
(c) any Property Protection Expenses and Mortgage Enforcement
Expenses incurred in connection with that Mortgage Loan up to and
including the Liquidation Date,
less:
(d) any Liquidation Proceeds received in respect of that Mortgage
Loan up to and including the Liquidation Date in respect of that
Mortgage Loan provided that Liquidation Proceeds will only be
included in this paragraph (d) to the extent that the resulting
Income Loss is zero or a positive number.
"INCOME UNIT" means an Income Unit in the Series Trust referred to in
clause 3.1.
"INCOME UNITHOLDER" means any Unitholder of an Income Unit.
"INITIAL INVESTED AMOUNT" in relation to a Class A-1 Note has the
meaning given to it in clause 5.5(a) and in relation to an A$ Security
has the meaning given to it in clause 5.5(b).
"INSURANCE POLICY" means any insurance policy (whether present or
future) under which the improvements on the Land the subject of a
Mortgage or a Collateral Security are insured against destruction or
damage by events which include fire.
"INSURANCE PROCEEDS" means the proceeds paid by an insurer pursuant to
any Insurance Policy.
"INTEREST AMOUNT" in relation to an A$ Security and an Accrual Period
means the aggregate interest accrued on that A$ Security during that
Accrual Period pursuant to clause 5.6(b).
"INTEREST RATE" in relation to an A$ Security and an Accrual Period
means the aggregate of:
(a) the Bank Bill Rate for that Accrual Period; and
(b) the Issue Margin for that A$ Security.
14
"INTEREST RATE BASIS CAP" has the same meaning as in the Interest Rate
Swap Agreement.
"INTEREST RATE SWAP AGREEMENT" means an agreement in the form of an
amended ISDA Master Agreement dated on or about the date of this Deed
between the Trustee, the Manager and the initial Interest Rate Swap
Provider which provides for each of:
(a) the Fixed Rate Swap;
(b) the Basis Swap; and
(c) the Interest Rate Basis Cap,
and includes any substitute agreement in place of an existing Interest
Rate Swap Agreement.
"INTEREST RATE SWAP PROVIDER" means initially CBA and includes any
other person that subsequently enters into an Interest Rate Swap
Agreement with the Trustee and the Manager.
"INTEREST RATE SWAP PROVIDER DEPOSIT" means any amount deposited by the
Interest Rate Swap Provider in the Collections Account or any other
account held by the Trustee as trustee of the Series Trust by way of
prepayment of the Interest Rate Swap Provider's payment obligations
under the Interest Rate Swap Agreement.
"INVESTED AMOUNT" in relation to:
(a) a Class A-1 Note at any time has the same meaning as in the US
Dollar Note Conditions; and
(b) an A$ Security at any time means the Initial Invested Amount of
that A$ Security less the aggregate of all amounts previously
paid in relation to that A$ Security on account of principal
pursuant to clause 10.5.
"ISSUE DATE" in relation to a Security means the day on which the
Security is issued by the Trustee.
"ISSUE MARGIN" in relation to:
(a) a Class A-2 Tranche 1 Note, a Class A-2 Tranche 2 Note and a
Class B Note means, subject to the following:
(i) in the case of a Class A-2 Tranche 1 Note or Class A-2
Tranche 2 Note, for the period from, and including, the
Closing Date to (but excluding) the Step-Up Date and,
in the case of a Class B Note, to (but excluding) the
date on which the Class B Note ceases to accrue
interest in accordance with clause 5.6(b), the margins
expressed as a percentage per annum applying in
relation, respectively, to each Class A-2 Tranche 1
Note, each Class A-2 Tranche 2 Note and each Class B
Note determined in accordance with the Dealer Agreement
and advised by the Manager to the Trustee; and
(ii) in respect of a Class A-2 Note only, for the period
from, and including, the Step-Up Date to (but
excluding) the date on which the Class A-2 Note ceases
to accrue interest in accordance with clause 5.6(b),
double the margin referred to in paragraph (i) in
relation to that Class A-2 Note,
provided that if on or after the Step-Up Date the Trustee, at the
direction of the Manager, proposes to exercise its option to
redeem the Securities at their Stated Amount in accordance with
Condition 7.3 of the US Dollar Note Conditions on a Distribution
Date but is unable to do so because, following a meeting of
Securityholders convened under the provisions of the Security
Trust Deed by the
15
Manager for this purpose, the Securityholders have not approved
by an Extraordinary Resolution the redemption of the Securities
at their Stated Amount, then the Issue Margin in relation to each
Class A-2 Note from, and including that Distribution Date to, but
excluding, the date on which the Class A-2 Note ceases to accrue
interest in accordance with clause 5.6(b) will be the margin in
relation to the Class A-2 Notes referred to in sub-paragraph
(a)(i) above; and
(b) a Redraw Bond means the margin expressed as a percentage per
annum applying to the Redraw Bond determined in accordance with a
Dealer Agreement (as defined in the Master Trust Deed) in
relation to those Redraw Bonds and advised by the Manager to the
Trustee.
"LAND" means:
(a) land (including tenements and hereditaments corporeal and
incorporeal and every estate and interest in it whether vested or
contingent, freehold or Crown leasehold, the term of which lease
is expressed to expire not earlier than 5 years after the
maturity of the relevant Mortgage, and whether at law or in
equity) wherever situated and including any fixtures to land; and
(b) any parcel and any lot, common property and land comprising a
parcel within the meaning of the Strata Schemes (Freehold
Development) Act 1973 (New South Wales) or the Community Land
Development Act, 1989 (New South Wales) or any equivalent
legislation in any other Australian jurisdiction.
"LIQUIDATED MORTGAGE LOAN" means a Mortgage Loan with respect to which
a Material Default has occurred and with respect to which the Servicer
has determined that all Liquidation Proceeds likely to be recoverable
have been recovered, having regard to:
(a) any enforcement of the relevant Mortgage Documents;
(b) any sale of the relevant Mortgaged Property;
(c) any proceeds paid on the compulsory acquisition of the relevant
Mortgaged Property by any Governmental Agency;
(d) any Insurance Proceeds paid or payable under any relevant
Insurance Policy;
(e) any payments received from any relevant Borrower; and
(f) such other matters as the Servicer reasonably determines to be
relevant.
"LIQUIDATION DATE" in relation to a Mortgage Loan means the date on
which such Mortgage Loan becomes a Liquidated Mortgage Loan.
"LIQUIDATION PROCEEDS" in relation to a Mortgage Loan means the amount
received by or on behalf of the Trustee in connection with the
liquidation of such Mortgage Loan including, without limitation:
(a) proceeds arising from the enforcement of the relevant Mortgage
and sale of the relevant Mortgaged Property;
(b) proceeds arising from the enforcement of the relevant Mortgage
Documents;
(c) Insurance Proceeds under any relevant Insurance Policy; and
(d) proceeds arising from any resumption or compulsory acquisition of
the relevant Mortgaged Property by any Governmental Agency,
16
but does not include:
(e) any amount required pursuant to the terms of any relevant
Mortgage Document or any law to be paid to the Borrower,
including any person having an interest in the Mortgaged Property
as a mortgagee;
(f) if the Trustee is a party to a Fixed Rate Swap, any Break Costs;
(g) any Mortgage Insurance Income Proceeds; and
(h) any Mortgage Insurance Principal Proceeds.
"LIQUIDITY FACILITY" means a liquidity facility made available by a
Liquidity Facility Provider to the Trustee pursuant to the Liquidity
Facility Agreement.
"LIQUIDITY FACILITY ADVANCE" in relation to a Distribution Date means
the amount to be advanced to the Trustee on that Distribution Date
under the Liquidity Facility.
"LIQUIDITY FACILITY AGREEMENT" means the Liquidity Facility Agreement
dated on or about the date of this Deed between the Trustee, the
Manager and the initial Liquidity Facility Provider and includes any
substitute liquidity facility agreement entered into by the Trustee as
trustee of the Series Trust in place of an existing Liquidity Facility
Agreement.
"LIQUIDITY FACILITY COMMITMENT FEE" means in relation to a
Determination Date and the immediately following Distribution Date, the
commitment fee payable to the Liquidity Facility Provider on that
Distribution Date pursuant to the Liquidity Facility Agreement.
"LIQUIDITY FACILITY INTEREST" in relation to a Distribution Date means
the interest due on that Distribution Date pursuant to the terms of the
Liquidity Facility Agreement.
"LIQUIDITY FACILITY PRINCIPAL" in relation to a Determination Date and
the immediately following Distribution Date means the aggregate of all
Liquidity Facility Advances outstanding under the Liquidity Facility
Agreement at that Determination Date.
"LIQUIDITY FACILITY PROVIDER" means initially CBA and each other person
who may from time to time provide a Liquidity Facility.
"LOAN AGREEMENT" means, with respect to a Mortgage Loan, any agreement,
schedule, terms and conditions, letter, application, approval or other
document (other than the relevant Mortgage) relating to the provision
of financial accommodation by the relevant Seller to the Borrower in
connection with that Mortgage Loan.
"LOAN FILES" in relation to a Mortgage Loan means such books, records,
paper and electronic files (whether originals or copies) relating to
that Mortgage Loan (other than the Mortgage Documents) which the
Servicer has in its custody.
"LOAN TO VALUE RATIO" in relation to a Mortgage Loan means the amount
(expressed as a percentage) calculated as follows:
L
-
V
where:
L = the amount of that Mortgage Loan outstanding as at the date
of determination or if at the date of determination that
Mortgage Loan has not been made, the amount of the then
proposed Mortgage Loan; and
17
V = the aggregate value of the Land subject to any Mortgage
recorded as securing that Mortgage Loan, as determined in
accordance with the then Servicing Standards.
"LOSS RECOVERY" in relation to a Liquidated Mortgage Loan means all
amounts received by or on behalf of the Trustee in respect of that
Liquidated Mortgage Loan after the relevant Liquidation Date.
"MANAGEMENT FEE" means the fee payable to the Manager on each
Distribution Date in accordance with clause 19.1.
"MANAGER" means Securitisation Advisory Services Pty. Limited ABN 88
064 133 946 or if Securitisation Advisory Services Pty. Limited retires
or is removed as Manager of the Series Trusts (as defined in the Master
Trust Deed), any then Substitute Manager and includes the Trustee when
acting as the Manager of the Series Trusts (as defined in the Master
Trust Deed) in accordance with the terms of the Master Trust Deed.
"MASTER TRUST DEED" means the Master Trust Deed dated 8 October 1997
between the Manager and the Trustee, as amended.
"MATERIAL DEFAULT" in relation to a Mortgage Loan means:
(a) a failure by the Borrower (as recognised by the Servicer's
system) to pay on the due date any amount due pursuant to the
corresponding Loan Agreement (including any amount not previously
paid which remains outstanding) where the failure continues,
without remedy, for a period of 60 days from the due date for the
payment of such amount under the relevant Loan Agreement; or
(b) an event of default, howsoever described, (other than an event of
default referred to in paragraph (a)) occurs under any relevant
Mortgage Document where the event of default continues unremedied
for 60 days (or such shorter period as the Servicer may determine
is appropriate in relation to a specific event of default) unless
the Servicer reasonably determines that such event of default is
of a minor or technical nature and will not result in an Adverse
Effect.
"MONTHLY ANNIVERSARY DATE" in relation to a Mortgage Loan means the
date on which interest is debited to the Borrower's Mortgage Loan
account by the Servicer pursuant to the relevant Loan Agreement.
"MOODY'S" means Xxxxx'x Investors Service Inc. and its successors and
assigns.
"MORTGAGE" in relation to a Mortgage Loan means each registered
mortgage over Land situated in any State or Territory of Australia and
appearing on the relevant Seller's records as securing, amongst other
things, the repayment of that Mortgage Loan and the payment of interest
and all other moneys in respect of that Mortgage Loan notwithstanding
that by its terms the mortgage may secure other liabilities to that
Seller. If, at any time after the date of the corresponding Sale
Notice, a mortgage is substituted, or added as security, for an
existing Mortgage, then with effect from the date of such addition or
substitution the definition of "MORTGAGE" will mean the substituted
mortgage or include the additional mortgage, as the case may be.
"MORTGAGE DOCUMENTS" in relation to a Mortgage Loan means:
(a) the Loan Agreement (if other than the Mortgage) relating to that
Mortgage Loan;
(b) the original or duplicate Mortgage documents in relation to that
Mortgage Loan (including any document evidencing any substituted
or additional Mortgage);
18
(c) the Certificate of Title or other indicia of title (if any) in
respect of the Land the subject of the Mortgage in relation to
that Mortgage Loan;
(d) the original or duplicate of the First Layer of Collateral
Securities documents (other than the Insurance Policies) in
relation to that Mortgage Loan;
(e) any Insurance Policy (or certificate of currency for the
Insurance Policy) held by the relevant Seller in respect of the
Mortgage or the First Layer of Collateral Securities in relation
to that Mortgage Loan;
(f) any deed of priority or its equivalent in writing entered into in
connection with the Mortgage or the First Layer of Collateral
Securities in relation to that Mortgage Loan;
(g) all other documents required to evidence the relevant Seller's or
the Trustee's interest in the above Land, the above Mortgage and
the above First Layer of Collateral Securities; and
(h) any amendment or replacement of or to any of the foregoing such
documents which is entered into, and under which rights arise,
whether before or after the Cut-Off Date.
"MORTGAGE ENFORCEMENT EXPENSES" means all costs and expenses properly
incurred by the Servicer, a Seller or the Trustee (other than their
respective internal administrative costs) in connection with the
enforcement of any Mortgage Loan forming part of the Assets of the
Series Trust, the related Mortgage or the related First Layer of
Collateral Securities or the recovery of any amounts owing under the
Mortgage Loan including, without limitation:
(a) legal costs and disbursements (including those of in-house
counsel) charged at the usual commercial rates of the relevant
legal services provider;
(b) costs in connection with the entering into of possession or the
sale of any property secured by any related Mortgage or First
Layer of Collateral Securities and any real estate or
auctioneer's fees and expenses; and
(c) any Tax in connection with the sale of the relevant Mortgaged
Property,
provided that Mortgage Enforcement Expenses will not include Property
Protection Expenses or Restoration Expenses.
"MORTGAGE INSURANCE INCOME PROCEEDS" in relation to a Determination
Date means all amounts received by the Trustee pursuant to any Mortgage
Insurance Policy in relation to any Mortgage Loan then forming part of
the Assets of the Series Trust which the Manager determines should be
accounted for on that Determination Date in respect of an Income Loss.
"MORTGAGE INSURANCE POLICY" means:
(a) the PMI Mortgage Insurance Policy; and
(b) any primary mortgage insurance policy granted by GEMI and/or
GEMICO in force in respect of a Mortgage Loan, an Other Loan, a
Mortgage or a Collateral Security which forms part of the Assets
of the Series Trust.
"MORTGAGE INSURANCE PRINCIPAL PROCEEDS" in relation to a Determination
Date means all amounts received by the Trustee pursuant to any Mortgage
Insurance Policy in relation to any Mortgage Loan then forming part of
the Assets of the Series Trust which the Manager determines should be
accounted for on that Determination Date in respect of a Principal
Loss.
19
"MORTGAGE INTEREST SAVER ACCOUNT" means a deposit account maintained by
a Borrower with CBA under which interest that would otherwise be earned
in respect of the account is off-set (to the extent thereof) against
interest that would otherwise be payable on a Mortgage Loan provided by
CBA to the Borrower.
"MORTGAGE LOAN" means each mortgage loan assigned or to be assigned (as
the case may be) to the Trustee and referred to in a Sale Notice (if
issued), and in relation to a Seller, means a Mortgage Loan assigned to
the Trustee by that Seller.
"MORTGAGE LOAN PRINCIPAL" at any time in relation to a Mortgage Loan
means the principal outstanding at that time in respect of that
Mortgage Loan.
"MORTGAGE LOAN RIGHTS" means each of the items (together with all
rights, title and interest in each of those items) referred to in
clause 4.5 assigned, or which may be assigned, as the case may be, in
accordance with this Deed to the Trustee as trustee of the Series Trust
or the CBA Trust.
"MORTGAGE LOAN SYSTEM" means the electronic and manual reporting
database and record keeping system used by the Servicer to monitor
Mortgage Loans, as updated and amended from time to time.
"MORTGAGE RATE" in relation to a Mortgage Loan means the rate of
interest payable on the corresponding Mortgage Loan Principal, as such
rate may be varied from time to time in accordance with the relevant
Mortgage Documents or any laws.
"MORTGAGE RECEIVABLES" in relation to a Mortgage Loan means all moneys,
present and future, actual or contingent, owing at any time in respect
of or in connection with that Mortgage Loan under the corresponding
Mortgage Documents, including all principal, interest, reimbursable
costs and expenses and any other amounts incurred by or payable to the
relevant Seller (including any payments made by that Seller on behalf
of the Borrower in relation to that Mortgage Loan) irrespective of
whether:
(a) such amounts become due and payable before or after the Cut-Off
Date; and
(b) such amounts relate to advances made or other financial
accommodation provided by that Seller to the Borrower before or
after the Cut-Off Date.
"MORTGAGE TRANSFER" in relation to a Mortgage means a duly executed
land titles office transfer which, upon registration, is effective to
transfer the legal title to the Mortgage to the Trustee.
"MORTGAGED PROPERTY" in relation to a Mortgage means the Land and all
other property mortgaged under that Mortgage.
"NET BREAK PAYMENT" in relation to a Determination Date means the
amount calculated as follows:
NBP = BC - BB
where:
NBP = the Net Break Payment;
BC = the Break Costs in relation to that Determination Date; and
BB = the Break Benefits in relation to that Determination Date,
provided that there will only be a Net Break Payment if the result of
the above calculation is greater than zero.
20
"NET BREAK RECEIPT" in relation to a Determination Date means the
amount calculated as follows:
NBR = BB - BC
where:
NBR = the Net Break Receipt;
BB = the Break Benefits in relation to that Determination Date;
and
BC = the Break Costs in relation to that Determination Date,
provided that there will only be a Net Break Receipt if the result of
the above calculation is greater than zero.
"NET INCOME SHORTFALL" in relation to a Determination Date means the
Gross Income Shortfall on that Determination Date less any Liquidity
Facility Advance to be made on the immediately following Distribution
Date.
"NET SCHEDULED PRINCIPAL AMOUNT" in relation to a Determination Date
means the amount calculated as follows:
NSPA = PC - NUPD
where:
NSPA = the Net Scheduled Principal Amount;
PC = the Principal Collections for the Collection Period ending
on that Determination Date; and
NUPD = the Net Unscheduled Principal Deduction for that
Determination Date,
provided that there will only be a Net Scheduled Principal Amount if
the result of the above calculation is greater than zero.
"NET UNSCHEDULED PRINCIPAL AMOUNT" in relation to a Determination Date
means the amount calculated as follows:
NUPA = GUPA - SA - SRFP - RBD - PD
where:
NUPA = the Net Unscheduled Principal Amount;
GUPA = the Gross Unscheduled Principal Amount on that Determination
Date;
SA = the Seller Advances outstanding on that Determination Date;
SRFP = the Standby Redraw Facility Principal on that Determination
Date;
RBD = the amount (if any) to be paid with respect to the Redraw
Bonds pursuant to clause 10.5(a) on the immediately
following Distribution Date; and
PD = the Principal Draw (if any) on that Determination Date,
provided that there will only be a Net Unscheduled Principal Amount if
the result of the above calculation is greater than zero.
21
"NET UNSCHEDULED PRINCIPAL DEDUCTION" in relation to a Determination
Date means the amount calculated as follows:
NUPD = SA + SRFP + RBD + PD - GUPA
where:
NUPD = the Net Unscheduled Principal Deduction;
GUPA = the Gross Unscheduled Principal Amount on that Determination
Date;
SA = the Seller Advances outstanding on that Determination Date;
SRFP = the Standby Redraw Facility Principal on that Determination
Date;
RBD = the amount (if any) to be paid with respect to the Redraw
Bonds pursuant to clause 10.5(a) on the following
immediately Distribution Date; and
PD = the Principal Draw (if any) on that Determination Date,
provided that there will only be a Net Unscheduled Principal Deduction
if the result of the above calculation is greater than zero.
"NOTE" means, as the context requires, a Class A Note, a Class B Note
or both.
"NOTEHOLDER" means, as the context requires, a Class A-1 Noteholder, a
Class A-2 Noteholder, a Class B Noteholder or any combination of the
foregoing.
"OTHER INCOME AMOUNTS" in respect of a Determination Date and the
Collection Period ending on that Determination Date means the aggregate
of:
(a) any amounts received by the Trustee during the Collection Period
pursuant to clauses 14 and 16 which represent amounts in respect
of accrued but unpaid interest and fees on the Mortgage Loans;
(b) any amounts received by the Trustee during the Collection Period
pursuant to clause 26.3 which represent amounts in respect of
interest and fees on the Mortgage Loans;
(c) any damages received by the Trustee in the Collection Period
(other than pursuant to clauses 14 and 16) and allocated by the
Manager as Other Income Amounts in accordance with clause 27.5;
(d) subject to clause 22.12, interest and other investment income
earned and received on moneys standing to the credit of the
Collections Account during the Collection Period (other than
interest earned on the Collections Account during the Collection
Period in respect of the Cash Advance Deposit as calculated in
accordance with clause 8.6 or the Interest Rate Swap Provider
Deposit as calculated in accordance with clause 8.8) and any
amounts representing interest paid by the Servicer pursuant to
clause 22.5 in respect of that Collection Period;
(e) interest and other investment income earned and received on
Authorised Short-Term Investments during the Collection Period
(other than interest attributable to the Interest Rate Swap
Provider Deposit calculated in accordance with clause 8.8);
(f) subject to clause 9.3, any other receipts in the nature of income
(as determined by the Manager) which have been received by the
Determination Date in respect of the Collection Period; and
22
(g) any amount of input tax credits (as defined in the GST Act)
received by the Trustee in the Collection Period in respect of
the Series Trust,
in each case which have not previously been applied in accordance with
this Deed.
"OTHER LOANS" in relation to a Mortgage Loan means all loans, credit
and financial accommodation of whatever nature (other than that
Mortgage Loan) the payment or repayment of which is secured by a
Mortgage, or by a Collateral Security, which also secures that Mortgage
Loan.
"OTHER PRINCIPAL AMOUNTS" in relation to a Determination Date and the
Collection Period ending on that Determination Date means the aggregate
of:
(a) any Mortgage Insurance Principal Proceeds in respect of that
Determination Date;
(b) the aggregate Liquidation Proceeds in respect of the Mortgage
Loans received during that Collection Period other than
Liquidation Proceeds included in Finance Charge Collections for
that Collection Period;
(c) the Principal Prepayments with respect to that Collection Period;
(d) any amounts received by the Trustee during that Collection Period
pursuant to clauses 14 and 16 which represent amounts in respect
of principal on the Mortgage Loans;
(e) any amounts received by the Trustee during that Collection Period
pursuant to clause 26.3 which represent amounts in respect of
principal on the Mortgage Loans;
(f) any damages received by the Trustee during that Collection Period
(other than pursuant to clauses 14 and 16) and allocated by the
Manager as Other Principal Amounts in accordance with clause
27.5;
(g) in the case of the first Determination Date, the amount (if any)
by which the Subscription Proceeds exceed the Consideration;
(h) any amount remaining unpaid on the immediately previous
Distribution Date as a result of the application of clause 5.9 in
respect of principal; and
(i) any other receipts in the nature of principal (as determined by
the Manager) which have been received by that Determination Date
in respect of that Collection Period,
in each case which have not previously been applied in accordance with
this Deed.
"PAYING AGENT" has the same meaning as in the Agency Agreement.
"PENALTY PAYMENT" means:
(a) the amount of any liability (including, without limitation, any
civil or criminal penalty) which the Trustee is liable for under
the Consumer Credit Code;
(b) any other liability payable by the Trustee, or legal costs or
other expenses payable or incurred by the Trustee, in relation to
such liability;
(c) any amount which the Trustee agrees to pay (with the consent of
the Servicer) to a debtor or other person in settlement of any
application for an order under Part 6 of the Consumer Credit
Code; and
(d) any legal costs or other costs and expenses payable or incurred
by the Trustee in relation to that application,
23
to the extent to which a person can be indemnified for that liability,
money or amount under the Consumer Credit Code.
"PERFECTION OF TITLE EVENT" means each event referred to in clause
24.1.
"PERSONAL INFORMATION" has the same meaning as in the Privacy Act.
"PMI" means PMI Mortgage Insurance Ltd ABN 70 000 000 000.
"PMI MORTGAGE INSURANCE POLICY" means the policy issued by PMI in
relation to some of the Mortgage Loans from time to time forming part
of the Assets of the Series Trust pursuant to the Lenders' Mortgage
Insurance Provisions dated on or about the date of this Deed between
PMI, the Trustee and the Sellers.
"POOL FACTOR" in relation to a Security at any given time means the
amount (expressed as a percentage to 7 decimal places) calculated as
follows:
A
PF = -
B
where:
PF = the Pool Factor in relation to that Security;
A = the Stated Amount for that Security as at that time; and
B = the Initial Invested Amount for that Security.
"POOL PERFORMANCE DATA" means performance data in respect of the
Securities on a Determination Date consisting of prepayment rates,
arrears data and default data in respect of Mortgage Loans then forming
part of the Assets of the Series Trust, the Pool Factor at the last
Determination Date and the Pool Factor on the present Determination
Date, the principal outstanding on the Securities, the Interest Rates
in respect of the A$ Securities, the Class A-1 Interest Rate (as
defined in the US Dollar Note Conditions) for the Class A-1 Notes and
such other information as the Manager may consider necessary from time
to time.
"POTENTIAL TERMINATION EVENT" means:
(a) as a result of the introduction, imposition or variation of any
law it is unlawful for the Trustee, and would also be unlawful
for any new Trustee, to carry out any of its obligations under
this Deed, the Master Trust Deed (in so far as it relates to the
Series Trust), the US Dollar Note Trust Deed, the Class A-1 Notes
or the Security Trust Deed; or
(b) this Deed, the Master Trust Deed (in so far as it relates to the
Series Trust) the US Dollar Note Trust Deed, the Class A-1 Notes
or the Security Trust Deed is or has become void, illegal,
unenforceable or of limited force and effect.
"POWERS OF ATTORNEY" means the powers of attorney referred to in
clauses 6.1(n)(i), (ii) and (iii).
"PRELIMINARY INCOME AMOUNT" in relation to a Determination Date means
the amount calculated as follows:
PIA = FCC + MIIP + OI
where:
PIA = the Preliminary Income Amount for that Determination Date;
24
FCC = the Finance Charge Collections for the Collection Period
ending on that Determination Date;
MIIP = the aggregate Mortgage Insurance Income Proceeds for that
Determination Date; and
OI = any Other Income Amounts in respect of the Collection Period
ending on that Determination Date and which has not
previously been applied in accordance with this Deed.
"PRELIMINARY PRINCIPAL AMOUNT" in relation to a Determination Date and
the immediately following Distribution Date means an amount calculated
as follows:
PPA = PC + PCOR + OPA + RBA + SRFA
where:
PPA = the Preliminary Principal Amount as at that Determination
Date;
PC = the Principal Collections for the Collection Period ending
on that Determination Date;
PCOR = the Principal Chargeoff Reimbursement as at that
Determination Date;
OPA = the Other Principal Amounts as at that Determination Date;
RBA = the Redraw Bond Amount as at that Determination Date; and
SRFA = the Standby Redraw Facility Advance on the immediately
following Distribution Date.
"PRESCRIBED PERIOD" in relation to a Mortgage Loan means the period of
120 days (including the last day of that period) commencing on the
Closing Date or such longer period as may be agreed between the
Australian Prudential Regulation Authority, the Trustee, the relevant
Seller and the Manager.
"PRINCIPAL CHARGEOFF" in relation to a Determination Date means an
amount calculated as follows:
PCO = PL - MIPP - PD
where:
PCO = the Principal Xxxxxxxxx as at that Determination Date;
PL = the total of the Principal Loss on each Mortgage Loan for
which the Manager determines a Principal Loss should be
accounted for on that Determination Date (provided that the
Manager must not account for a Principal Loss on a Mortgage
Loan until the Servicer reasonably believes that no further
amounts in respect of the Mortgage Loan constituting
Mortgage Insurance Principal Proceeds or damages under
clauses 14 and 16 which are to be treated as Other Principal
Amounts will be received);
MIPP = the total Mortgage Insurance Principal Proceeds with respect
to such Mortgage Loans as at that Determination Date; and
PD = any damages received by the Trustee from CBA under clause 14
or from CBA or the Servicer under clause 16 in respect of
such Mortgage Loans which are determined to be Other
Principal Amounts in accordance with clause 27.5.
25
"PRINCIPAL CHARGEOFF REIMBURSEMENT" in relation to a Determination Date
and the Collection Period ending on that Determination Date means an
amount calculated as follows:
PCOR = PIA - RIA - PDR
where:
PCOR = the Principal Chargeoff Reimbursement as at that
Determination Date;
PIA = the Preliminary Income Amount as at that Determination Date;
RIA = the Required Income Amount as at that Determination Date;
and
PDR = the Principal Draw Reimbursement as at that Determination
Date,
provided that there will only be a Principal Chargeoff Reimbursement if
the result of the above calculation is greater than zero and provided
further that where the result of the above calculation exceeds the
Unreimbursed Principal Chargeoffs as at the immediately previous
Determination Date plus the Principal Chargeoffs calculated as at the
current Determination Date, the Principal Chargeoff Reimbursement will
equal such amount.
"PRINCIPAL COLLECTIONS" in relation to a Collection Period means the
aggregate of the following amounts (without double counting) received
by or on behalf of the Trustee during that Collection Period in respect
of the Mortgage Loans then forming part of the Assets of the Series
Trust:
(a) all amounts received under or in respect of the Mortgage Loans in
respect of principal (less reversals made during the period in
respect of interest or other charges in relation to any of the
accounts where the original debit entry (or part thereof) was in
error); and
(b) all amounts of principal payable under or in respect of the
Mortgage Loans and the Mortgage Loan Rights to the extent that
the obligations to pay such amounts are discharged by the
exercise during that Collection Period of a right of set-off or
right to combine accounts,
but does not include the Preliminary Income Amount or Other Principal
Amounts in relation to that Determination Date.
"PRINCIPAL DRAW" in relation to a Determination Date means the amount
equal to the lesser of the Net Income Shortfall as at that
Determination Date and the Principal Draw Available as at that
Determination Date.
"PRINCIPAL DRAW AVAILABLE" in relation to a Determination Date means
the amount calculated as follows:
PDA = PPA - SAP
where:
PDA = the Principal Draw Available as at that Determination Date;
PPA = the Preliminary Principal Amount as at that Determination
Date; and
SAP = the principal allocated to repay Seller Advances on the
immediately following Distribution Date in accordance with
clause 10.3(a),
provided that if the Available Principal Amount for that Determination
Date is insufficient to repay the Seller Advances in full in accordance
with clause 10.3(a), the Principal Draw Available will be zero.
26
"PRINCIPAL DRAW REIMBURSEMENT" in relation to a Determination Date and
the Collection Period ending on that Determination Date means an amount
calculated as follows:
PDR = PIA - RIA
where:
PDR = the Principal Draw Reimbursement as at that Determination
Date;
PIA = the Preliminary Income Amount as at such that Determination
Date; and
RIA = the Required Income Amount as at that Determination Date,
provided that there will only be a Principal Draw Reimbursement if the
result of the above calculation is greater than zero and provided
further that where the result of the above calculation exceeds the
Unreimbursed Principal Draws as at the immediately previous
Determination Date, the Principal Draw Reimbursement will equal the
Unreimbursed Principal Draws as at the immediately previous
Determination Date.
"PRINCIPAL LOSS" in relation to a Mortgage Loan and a Liquidation Date
means an amount calculated as follows:
PL = MLP + RE - BC - LP
where:
PL = the Principal Loss as at that Liquidation Date;
MLP = the Mortgage Loan Principal as at that Liquidation Date;
RE = the Restoration Expenses reasonably and necessarily incurred
up to and including that Liquidation Date;
BC = the Break Costs as at that Liquidation Date provided that
Break Costs will only be included in the calculation of
Principal Loss if the Trustee is then a party to a Fixed
Rate Swap; and
LP = any Liquidation Proceeds received up to and including that
Liquidation Date provided that for the purposes of this
paragraph Liquidation Proceeds will not include any
Liquidation Proceeds which have been applied against an
Income Loss or are to be applied against an Income Loss on
that Liquidation Date,
provided that there will only be such a Principal Loss if the result of
the above calculation is greater than zero.
"PRINCIPAL PAYING AGENT" has the same meaning as in the Agency
Agreement.
"PRINCIPAL PREPAYMENTS" in relation to a Collection Period means all
amounts received by or on behalf of the Trustee during that Collection
Period under or in respect of the Mortgage Loans then forming part of
the Assets of the Series Trust in respect of principal prepayments made
by or on behalf of the Borrower in relation to that Mortgage Loan (less
reversals made during the period in respect of interest or other
charges in relation to any of the accounts where the original debit
entry (or part thereof) was in error) to the extent that the amount
exceeds the then scheduled monthly instalment of principal that would
be payable under that Mortgage Loan (including previous unpaid
instalments of principal) during that Collection Period.
"PRIORITY AGREEMENT" means any agreement between a Seller and a
subsequent mortgagee of Land the subject of a Mortgage or Collateral
Security:
27
(a) under which that Xxxxxx and the subsequent mortgagee agree to a
ranking of their respective securities over the said Land which
provides for that Xxxxxx's security to be a first ranking
security to an agreed amount and the subsequent mortgagee's
security to be a second ranking security; and
(b) whose sole subject matter is the agreement as to ranking referred
to in (a) above and matters ordinarily incidental thereto.
"PRIVACY ACT" means the Privacy Act 1988 (Commonwealth).
"PROPERTY PROTECTION EXPENSES" in relation to a Mortgage Loan means the
aggregate amount of any costs or expenses actually paid or incurred by
the Servicer, the relevant Seller or the Trustee in connection with the
maintenance, preservation and protection of the corresponding Mortgaged
Property in its existing state of repair at its existing value,
including, without limitation:
(a) any real estate property Taxes, statutory charges or other
outgoings payable in connection with the corresponding Mortgaged
Property; and
(b) any insurance premiums payable under any Insurance Policy with
respect to the corresponding Mortgaged Property,
provided that Property Protection Expenses will not include any
Mortgage Enforcement Expenses or any Restoration Expenses.
"QUARTERLY CERTIFICATE" means the certificate prepared on each
Determination Date by the Manager pursuant to clause 27.2(a)
substantially in the form set out in Schedule 8 (or in such other form
as is from time to time agreed between the Manager and the Trustee).
"RATE SET DATE" in relation to an Accrual Period means the first day of
that Accrual Period.
"RATING AFFIRMATION NOTICE" in relation to an event or circumstances
means a notice in writing from each Rating Agency confirming that the
event or circumstances, as applicable, will not result in a reduction,
qualification or withdrawal of the ratings then assigned by that Rating
Agency to the Securities.
"RATING AGENCIES" means S&P and Xxxxx'x.
"REDRAW BOND" means a debt security issued by the Trustee, in its
capacity as trustee of the Series Trust, in accordance with clause 5.4
and forming part of the Class of Securities described in clause 5.1(d)
as Redraw Bonds.
"REDRAW BOND AMOUNT" in relation to a Determination Date means the
proceeds (if any) received by the Trustee from any issue of Redraw
Bonds on that Determination Date or during the Collection Period ending
on that Determination Date (but excluding the immediately preceding
Determination Date).
"REDRAW BOND CHARGEOFF PERCENTAGE" in relation to a Determination Date
means the amount (expressed as a percentage) calculated as follows:
RBSA
RBCP = ---------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
RBCP = the Redraw Bond Chargeoff Percentage in relation to that
Determination Date;
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CA1SA = the A$ Equivalent of the aggregate Stated Amounts of the
Class A-1 Notes on that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that
Determination Date;
RBSA = the aggregate Stated Amount of the Redraw Bonds on that
Determination Date; and
SRFP = the Standby Redraw Facility Principal on that Determination
Date.
"REDRAW BOND PRINCIPAL LIMIT" means A$50 million or such other amount
from time to time agreed between the Rating Agencies and the Manager
and notified by the Manager to the Trustee.
"REDRAW BONDHOLDER" means at any time the person recorded at that time
in the Register as the holder of a Redraw Bond.
"RELEVANT PARTY" means each party to a Transaction Document other than
the Trustee.
"RELEVANT MORTGAGE DOCUMENTS" has the meaning given to it in clause
25.1.
"REQUIRED CREDIT RATING" has the meaning specified in clause 27.1.
"REQUIRED INCOME AMOUNT" in relation to a Determination Date means the
aggregate of the amounts referred to in clauses 10.2(a)-(l) inclusive
for the immediately following Distribution Date provided that, in
respect only of the first Determination Date, the total amount payable
by the Trustee to the Sellers under clause 10.1 will be included in the
Required Income Amount.
"RESTORATION EXPENSES" in relation to a Mortgage Loan means the
aggregate amount of any costs or expenses actually paid or incurred by
the Servicer, a Seller or the Trustee in connection with the
restoration of the corresponding Mortgaged Property including, without
limitation, any costs or expenses:
(a) in restoring the corresponding relevant Mortgaged Property to its
condition as at the date on which that Mortgage Loan was made to
the Borrower; and
(b) in connection with the reduction, elimination or clean-up of any
environmental hazard relating to the corresponding Mortgaged
Property,
provided that Restoration Expenses will be calculated without reference
to the fact that the amount expended was paid from the Servicer's, that
Seller's or the Trustee's own funds or from Insurance Proceeds or from
any other source whatsoever and provided further that Restoration
Expenses will not include any Property Protection Expenses or Mortgage
Enforcement Expenses.
"S&P" means Standard & Poor's (Australia) Pty. Ltd. ABN 62 007 324 852
and its successors and assigns.
"SALE NOTICE" means a notice from a Seller to the Trustee in or
substantially in the form of Schedule 1 (or in such other form as may
be agreed between the relevant Seller, the Manager and the Trustee).
"SCHEDULED BALANCE" in relation to a Mortgage Loan means the amount
that would be owing on that Mortgage Loan at the date of determination
if the Borrower had made, prior to that date, the minimum payments
required under that Mortgage Loan.
"SCHEDULED MATURITY DATE" means the Distribution Date occurring in
December 2033 (or if this is not a Business Day, on the next succeeding
Business Day).
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"SECOND LAYER OF COLLATERAL SECURITIES" in relation to a Mortgage Loan
means all Collateral Securities in respect of that Mortgage Loan which
do not constitute the First Layer of Collateral Securities for that
Mortgage Loan.
"SECURED CREDITOR" has the same meaning as in the Security Trust Deed.
"SECURITIES ACT" means the United States Securities Act of 1933 as
amended.
"SECURITY" means as the context requires a Class A-1 Note, an A$
Security or both.
"SECURITYHOLDER" means a Noteholder or a Redraw Bondholder or both, as
the context may require.
"SECURITY REGISTER" means the system which is used by a Seller to
record Security Interests granted to that Seller to secure the
repayment of a Mortgage Loan originated by that Seller.
"SECURITY TRUST DEED" means the Security Trust Deed dated on or about
the date of this Deed between the Trustee, the Manager, the US Dollar
Note Trustee and the Security Trustee.
"SECURITY TRUSTEE" means the person who is for the time being the
security trustee under the Security Trust Deed.
"SECURITY TRUSTEE'S EXPENSES" means the costs and fees to be reimbursed
to the Security Trustee on each Distribution Date in accordance with
clause 19.5(b).
"SECURITY TRUSTEE'S FEE" means the fee payable to the Security Trustee
on each Distribution Date in accordance with clause 19.5(a).
"SELLER ADVANCE" means an advance made by a Seller to a Borrower
pursuant to clause 16.20(c) or clause 16.21(c) on or after the Cut-Off
Date which appears in the records of the Servicer or on the Security
Register as secured by a Mortgage which also secures a Mortgage Loan,
and a reference to "SELLER ADVANCES" is a reference to all Seller
Advances made by either Seller.
"SERIES TRUST" means the trust known as the Medallion Trust Series
2003-1G established pursuant to this Deed and the Master Trust Deed.
"SERVICER" means CBA or if CBA is removed or retires as Servicer, any
then Substitute Servicer, and includes the Trustee when acting as
Servicer in accordance with clause 18.7.
"SERVICER DEFAULT" means the occurrence of any event specified in
clause 18.1.
"SERVICER'S FEE" means the remuneration payable to the Servicer
pursuant to clause 19.4.
"SERVICING GUIDELINES" means the relevant written guidelines, policies
and procedures established by the Servicer for servicing mortgage loans
recorded on the Mortgage Loan System, including the Mortgage Loans, as
amended or updated in writing from time to time.
"SERVICING STANDARDS" at any given time means the relevant standards
and practices set out in the then Servicing Guidelines and, to the
extent that a servicing function is not covered by the Servicing
Guidelines, the standards and practices of a prudent lender in the
business of making retail home loans.
"SERVICING TRANSFER" means the appointment of a new Servicer in
accordance with clause 18.
"SETTLEMENT DATE" in relation to a Mortgage Loan means the date on
which an agreement between the relevant Seller and a Borrower for the
making of that Mortgage Loan was made.
"SHARED SECURITY" means any Security Interest, guarantee, indemnity or
other form of assurance that by its terms secures both (on the one
hand) the payment or repayment of any
30
Mortgage Loan forming or to form part of the Assets of the Series Trust
and (on the other hand) any Other Loan forming or to form part of the
CBA Trust Assets.
"SPECIFIED RATING" means a long term debt rating by S&P of BBB and by
Xxxxx'x of Baa2.
"STANDBY REDRAW CHARGEOFF PERCENTAGE" in relation to a Determination
Date means the amount (expressed as a percentage) calculated as
follows:
SRFP
SRCP = ---------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
SRCP = the Standby Redraw Chargeoff Percentage in relation to that
Determination Date;
CA1SA = the A$ Equivalent of the aggregate Stated Amounts of the
Class A-1 Notes on that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that
Determination Date;
RBSA = the aggregate Stated Amounts of the Redraw Bonds on that
Determination Date; and
SRFP = the Standby Redraw Facility Principal on that Determination
Date.
"STANDBY REDRAW FACILITY" means a standby redraw facility made
available by the Standby Redraw Facility Provider to the Trustee
pursuant to the Standby Redraw Facility Agreement.
"STANDBY REDRAW FACILITY ADVANCE" in relation to a Distribution Date
means the amount to be drawn down by the Trustee under a Standby Redraw
Facility on that Distribution Date.
"STANDBY REDRAW FACILITY AGREEMENT" means the Standby Redraw Facility
Agreement dated on or about the date of this Deed between the Trustee,
the Manager and the initial Standby Redraw Facility Provider and
includes any substitute standby redraw facility agreement entered into
by the Trustee as trustee of the Series Trust in place of an existing
Standby Redraw Facility Agreement.
"STANDBY REDRAW FACILITY COMMITMENT FEE" means in relation to a
Determination Date and the immediately following Distribution Date, the
commitment fee payable to the Standby Redraw Facility Provider on that
Distribution Date pursuant to the Standby Redraw Facility Agreement.
"STANDBY REDRAW FACILITY INTEREST" in relation to a Distribution Date
means the interest due on that Distribution Date pursuant to the terms
of the Standby Redraw Facility Agreement.
"STANDBY REDRAW FACILITY LIMIT" means the Facility Limit from time to
time as defined in the Standby Redraw Facility Agreement.
"STANDBY REDRAW FACILITY PRINCIPAL" has the same meaning as in the
Standby Redraw Facility Agreement.
"STANDBY REDRAW FACILITY PROVIDER" means initially CBA and each other
person who may from time to time provide a Standby Redraw Facility.
"STATED AMOUNT" in relation to:
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(a) a Class A-1 Note at any given time has the same meaning as in the
US Dollar Note Conditions; and
(b) an A$ Security at any given time means the Initial Invested
Amount of that A$ Security at that time less the sum of the
following at that time:
(i) the aggregate of all amounts previously paid in relation to
that A$ Security on account of principal pursuant to clause
10.3(d); and
(ii) the aggregate of all then Unreimbursed Principal Chargeoffs
in relation to that A$ Security.
"STEPDOWN PERCENTAGE" in relation to a Determination Date means the
percentage calculated in accordance with Schedule 11 for that
Determination Date.
"STEP-UP DATE" has the same meaning as in the US Dollar Note Terms and
Conditions.
"SUBSCRIPTION AMOUNT" in relation to the Income Unit at any time means
the aggregate of the amounts, if any, previously paid by the Income
Unitholder to, or at the direction of, the Trustee pursuant to clause
3.14 less the aggregate of all amounts previously applied towards the
reduction of the Subscription Amount pursuant to clause 11.2(b)(ii).
"SUBSCRIPTION PROCEEDS" means the amounts paid or to be paid by the
underwriters for the Class A-1 Notes under the Underwriting Agreement
(converted into A$ pursuant to the Class A-1 Currency Swap) and the
amounts paid by the subscribers for the Class A-2 Notes and the Class B
Notes under the Dealer Agreement, without taking into account in
reduction of such amounts any fees or other amounts paid to such
underwriters by or on behalf of the Trustee.
"SUBSTITUTE SERVICER" means at any given time the entity then appointed
as Servicer under clause 18.6.
"SUPPORT FACILITIES" means the agreements or arrangements referred to
in clause 1.7 or such other agreement or arrangement which the Trustee
and the Manager agree is a Support Facility for the purposes of this
Deed.
"SUPPORT FACILITY PROVIDER" means the person or persons providing any
applicable Support Facility to the Trustee as trustee of the Series
Trust.
"SWAP" means, as the context requires, the Basis Swap, the Fixed Rate
Swap, the Class A-1 Currency Swap or all or any of the foregoing.
"TERMINATION DATE" means the earliest of the following dates:
(a) the date which is 80 years after the date of the constitution of
the Series Trust in accordance with this Deed and the Master
Trust Deed;
(b) the date that the Trustee becomes obliged pursuant to clause
26.1(d) to liquidate the Assets of the Series Trust following the
occurrence of a Potential Termination Event;
(c) if Securities have been issued by the Trustee, the date appointed
by the Manager as the Termination Date by notice in writing to
the Trustee, which must not be a date prior to the earlier of the
following:
(i) the date that all Securities have been redeemed in full; or
(ii) if an Event of Default (as defined in the Security Trust
Deed) occurs and the Charge is enforced, the date of the
final distribution by the Security Trustee under the
Security Trust Deed; and
32
(d) if no Securities have been issued by the Trustee, the date
appointed by the Manager as the Termination Date by notice in
writing to the Trustee.
"TERMINATION PAYMENT DATE" means the date declared by the Trustee to be
the Termination Payment Date of the Series Trust pursuant to clause
26.2 (subject to any substitution of another date as the Termination
Payment Date in accordance with that clause).
"THRESHOLD RATE" means, at any time, the minimum rate of interest that
must be set on all Mortgage Loans (where permitted by the terms of the
Mortgage Loan and corresponding Loan Agreement) which will be
sufficient (assuming that all relevant parties comply with their
obligations at all times under the Transaction Documents and the
Mortgage Documents), when aggregated with the income produced by the
rate of interest on all other Mortgage Loans and the income from
Short-Term Authorised Investments, to ensure that the Trustee will have
available to it sufficient Finance Charge Collections and Other Income
Amounts to enable it to comply with its obligations under the
Transaction Documents as they fall due.
"TRUSTEE" means Perpetual Trustee Company Limited ABN 42 000 001 007 or
if Perpetual Trustee Company Limited retires or is removed as trustee
of the Series Trusts (as defined in the Master Trust Deed) and the CBA
Trust, any then Substitute Trustee and includes the Manager when acting
as the Trustee in accordance with the terms of the Master Trust Deed.
"TRUSTEE'S FEE" means the fee payable to the Trustee on each
Distribution Date calculated in accordance with clause 19.3.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement dated after
the date of this Deed between the Trustee, the Manager, CBA and X.X.
Xxxxxx Securities Inc. as representative for the Underwriters named
therein pursuant to which, subject to the terms and conditions
contained therein, the Trustee will agree to issue, and each of the
Underwriters named therein will severally agree to subscribe for, the
Class A-1 Notes.
"UNPAID INTEREST AMOUNT" in relation to an A$ Security and a
Distribution Date means the aggregate of any Interest Amounts in
relation to that A$ Security remaining unpaid from previous
Distribution Dates and any interest accrued but remaining unpaid on
that A$ Security as at that Distribution Date pursuant to clause
5.8(b).
"UNREIMBURSED PRINCIPAL CHARGEOFFS" in relation to:
(a) a Class A-1 Note at any time has the same meaning as in the US
Dollar Note Conditions; and
(b) an A$ Security and the Standby Redraw Facility Principal at any
time means the aggregate of the Principal Chargeoffs up to and
including that time allocated to that A$ Security or the Standby
Redraw Facility Principal (as the case may be) in accordance with
clause 9.1 less the aggregate of the Principal Chargeoff
Reimbursements prior to that time allocated to that A$ Security
or the Standby Redraw Facility Principal (as the case may be) in
accordance with clause 9.2.
"UNREIMBURSED PRINCIPAL DRAWS" in relation to a Determination Date
means the aggregate of the Principal Draws allocated in accordance with
clause 10.3(b) less the aggregate of the Principal Draw Reimbursement
allocated in accordance with clause 10.2(n) up to and including that
Determination Date.
"US$" and "US DOLLARS" means the lawful currency for the time being of
the United States of America.
"US DOLLAR NOTE CONDITIONS" means the terms and conditions of the Class
A-1 Notes as annexed to the Class A-1 Notes.
"US DOLLAR NOTE REGISTRAR" has the same meaning as in the Agency
Agreement.
33
"US DOLLAR NOTE TRUST DEED" means the US Dollar Note Trust Deed to be
dated on or about the Closing Date and made between the Trustee, the
Manager and the US Dollar Note Trustee.
"US DOLLAR NOTE TRUSTEE" means The Bank of New York, New York Branch
or, if The Bank of New York is removed or retires as the trustee for
the Class A-1 Noteholders, any person appointed from time to time in
its place in accordance with the US Dollar Note Trust Deed.
"US$ EQUIVALENT" in relation to an amount which is calculated,
determined or expressed in A$ or which includes a component determined
or expressed in A$ means the A$ amount or A$ component (as the case may
be) multiplied by the US$ Exchange Rate.
"US$ EXCHANGE RATE" means "US$ Exchange Rate" specified in paragraph 7
of the confirmation for the Class A-1 Currency Swap.
"WAIVER OF SET-OFF" in relation to a Mortgage Loan means a provision,
in the related Mortgage or Loan Agreement or otherwise, by which, inter
alia, the Borrower agrees to make all payments in respect of that
Mortgage Loan without set-off or counterclaim unless prohibited by law.
1.2 INTERPRETATION
In this Deed, unless the contrary intention appears:
(a) a reference to this Deed includes the Recitals and the Schedules;
(b) a reference to a statute, ordinance, code or other law includes
regulations and other instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;
(c) a reference to a section of a statute, ordinance, code or other
law includes any consolidation, amendment, re-enactment or
replacement of that section;
(d) the singular includes the plural and vice versa and words
denoting a gender include all other genders;
(e) the word "PERSON" includes an individual, a body politic, a
corporation and a statutory or other authority or association
(incorporated or unincorporated);
(f) a reference to a person includes a reference to the person's
executors, administrators, successors, substitutes (including,
without limitation, persons taking by novation) and assigns;
(g) the word "CORPORATION" means any body corporate wherever formed
or incorporated including, without limiting the generality of the
foregoing, any public authority or any instrumentality of the
Crown;
(h) where a word or phrase has a defined meaning any other part of
speech or grammatical form in respect of such word or phrase has
a corresponding meaning;
(i) a reference to any thing (including, without limitation, any
amount) is a reference to the whole or any part of it and a
reference to a group of persons is a reference to any one or more
of them;
(j) if an act prescribed under this Deed to be done by a party on or
by a given day is done after 5.30 p.m. on that day, it is to be
taken to be done on the following day;
(k) references to time are to Sydney time;
34
(l) the expression "CERTIFIED" by a corporation or person means
certified in writing by 2 Authorised Officers of the Corporation
or by that person respectively and "CERTIFY" and like expressions
will be construed accordingly;
(m) a reference to extinguish includes a reference to rights and
interests being surrendered and released;
(n) a reference to a "MONTH" is to a calendar month;
(o) the expression "OWING" includes amounts that are owing whether
such amounts are liquidated or not or are contingent or presently
accrued or due and includes all rights sounding in damages only;
(p) a reference to "WILFUL DEFAULT" in relation to the Trustee, the
Manager or the Servicer means, subject to clause 1.2(q), any
wilful failure to comply, or wilful breach, by the Trustee, the
Manager or the Servicer (as the case may be) of any of its
obligations under any Transaction Document, other than a failure
or breach which:
(i) A. arises as a result of a breach of a Transaction
Document by a person other than the Trustee, the
Manager or the Servicer (as the case may be) or
other than any person referred to in clause 1.2(q)
in relation to the Trustee, the Manager or the
Servicer (as the case may be); and
B. the performance of the action (the non-performance
of which gave rise to such breach) is a
pre-condition to the Trustee, the Manager or the
Servicer (as the case may be) performing the said
obligation;
(ii) is in accordance with a lawful court order or direction
or is required by law; or
(iii) is in accordance with a proper instruction or direction
of:
A. the Secured Creditors given at a meeting (or
deemed meeting) of Secured Creditors convened
under the Security Trust Deed; or
B. the Investors given at a meeting (or deemed
meeting) convened under the Master Trust Deed;
(q) a reference to the "FRAUD", "NEGLIGENCE" or "WILFUL DEFAULT" of
the Trustee, the Manager or the Servicer means the fraud,
negligence or wilful default of the Trustee, the Manager or the
Servicer (as the case may be) and of its officers, employees,
agents or any other person where the Trustee, the Manager or the
Servicer (as the case may be) is liable for the acts or omissions
of such other person under the terms of any Transaction Document;
(r) subject to clause 31.2, each party will only be considered to
have knowledge or awareness of, or notice of, a thing or grounds
to believe anything by virtue of the officers of that party (or
any Related Body Corporate of that party) having day to day
responsibility for the administration or management of that
party's (or a Related Body Corporate of that party's) obligations
in relation to the Series Trust or the CBA Trust, having actual
knowledge, actual awareness or actual notice of that thing, or
grounds or reason to believe that thing (and similar references
will be interpreted in this way). In addition, notice, knowledge
or awareness of a Servicer Default, Manager Default, Trustee
Default or Perfection of Title Event means notice, knowledge or
awareness of the occurrence of the events or circumstances
35
constituting the Servicer Default, Manager Default, Trustee
Default or Perfection of Title Event (as the case may be);
(s) subject to clause 1.12 a reference to this Deed, the Master Trust
Deed or any other deed, Agreement, document or instrument
includes respectively this Deed, the Master Trust Deed or such
other deed, Agreement, document or instrument as amended,
novated, supplemented or replaced from time to time;
(t) a reference to the enforcement of the Charge means that the
Security Trustee appoints (or the Voting Secured Creditors as
contemplated by clause 8.4 of the Security Trust Deed appoint) a
Receiver over any Charged Property, or takes possession of any
Charged Property, pursuant to the Security Trust Deed
(expressions used in this clause which are not defined in this
Deed have the same meanings as in the Security Trust Deed);
(u) a reference to a clause or a Schedule is a reference to a clause
or a Schedule of this Deed; and
(v) headings are inserted for convenience and do not affect the
interpretation of this Deed.
1.3 MASTER TRUST DEED DEFINITIONS
Subject to clause 1.12 unless defined in this Deed, words and phrases
defined in the Master Trust Deed have the same meaning in this Deed.
Where there is any inconsistency in a definition between this Deed and
the Master Trust Deed, this Deed prevails. Where words or phrases used
in this Deed are defined in the Master Trust Deed in relation to a
Series Trust (as defined as the Master Trust Deed) and/or an Other
Trust such words or phrases are to be construed, where necessary, as
being used only in relation to the Series Trust (as defined in this
Deed) and/or the CBA Trust, as the context requires.
1.4 BUSINESS DAY CONVENTION
(a) (NEXT BUSINESS DAY): When the date on or by which any act, matter
or thing is to be done is not a Business Day, the act, matter or
thing must (unless expressly provided otherwise) be done on the
next Business Day.
(b) (DETERMINATION DATES): Clause 1.4(a) does not apply to any act,
matter or thing to be done on a Determination Date.
1.5 MASTER TRUST DEED INCONSISTENCY
In accordance with clause 1.3 of the Master Trust Deed the provisions
contained in this Deed apply only in relation to the Series Trust. If
there is any conflict between the provisions of this Deed and the
provisions of the Master Trust Deed, the provisions contained in this
Deed prevail over the provisions of the Master Trust Deed in respect of
the Series Trust. Without limiting the generality of the foregoing, the
provisions of the Transaction Documents (other than the Master Trust
Deed) insofar as they apply to the Securities (as defined herein)
prevail over any inconsistent provision in the Master Trust Deed that
would otherwise apply to such Securities.
1.6 EXCLUSION OF MASTER TRUST DEED DEFINITIONS AND PROVISIONS
(a) (VARIATION OF TERMS): For the purposes of the Master Trust Deed
(in so far as it applies to the Series Trust):
(i) "TRANSACTION DOCUMENT" means each of the following
documents:
36
A. the Master Trust Deed (in so far as it applies to
the Series Trust);
B. this Deed;
C. each document specified in clause 1.7 as a Support
Facility;
D. the Security Trust Deed;
E. the Dealer Agreement;
F. the Underwriting Agreement;
G. the US Dollar Note Trust Deed;
H. the Class A-1 Notes;
I. the Agency Agreement; and
X. any other document which is agreed by the Manager
and the Trustee to be a Transaction Document in
relation to the Series Trust;
(ii) a "SECURITY" has the same meaning as in this Deed; and
(iii) a "SECURITYHOLDER" has the same meaning in this Deed.
(b) (MEETING PROCEDURES): The procedures for convening a meeting of
the Securityholders or the Class A-1 Noteholders for the purposes
of clause 26 of the Master Trust Deed, in so far as those
procedures apply to the Securityholders or the Class A-1
Noteholders (as the context requires), are varied as follows:
(i) if the Class A-1 Noteholders are included within the,
or are the only, Relevant Investors for the purposes of
a meeting under clause 26 of the Master Trust Deed:
A. any notice of a meeting given or required to be
given to the Class A-1 Noteholders must also be
given to the US Dollar Note Trustee;
B. any notice given to Class A-1 Noteholders of a
meeting under clause 26 of the Master Trust Deed
must be given in accordance with Condition 11.1 of
the US Dollar Note Conditions (in lieu of notice
pursuant to clause 26.2(e) of the Master Trust
Deed); and
C. a meeting under clause 26 of the Master Trust Deed
at which the US Dollar Note Trustee is the only
Relevant Investor pursuant to clause 1.6(b)(ii)
must not, unless otherwise agreed by the US Dollar
Note Trustee, be held until the US Dollar Note
Trustee has had the opportunity of seeking and
obtaining directions from the Class A-1
Noteholders regarding how the US Dollar Note
Trustee is to vote at the meeting;
(ii) the Relevant Investors in relation to the Class A-1
Notes, for the purposes of clause 26 of the Master
Trust Deed, means the US Dollar Note Trustee alone,
acting on behalf of the Class A-1 Noteholders under the
US Dollar Note Trust Deed or, if the US Dollar Note
Trustee has become bound to take steps and/or to
proceed under the US Dollar Note
37
Trust Deed and fails to do so within a reasonable time
and such failure is continuing, the Class A-1
Noteholders;
(iii) if the US Dollar Note Trustee is the only Relevant
Investor in relation to the Class A-1 Notes pursuant to
clause 1.6(b)(ii), it will be regarded as a
Representative holding or representing all of the Class
A-1 Notes for the purposes of determining whether a
quorum is present at such meeting, for determining the
votes to which the US Dollar Note Trustee is entitled
to cast at such meeting and any other relevant matter
relating to such meeting;
(iv) if the Class A-1 Noteholders become entitled to attend
a meeting of Relevant Investors pursuant to clause
1.6(b)(ii), the evidence of the entitlement of such
Class A-1 Noteholders to attend such meeting and to
vote thereat, and any other relevant matters, will be
determined in accordance with the provisions of the US
Dollar Note Trust Deed and the Agency Agreement, with
such amendments as determined by the Trustee to be
necessary; and
(v) if at a particular time the US Dollar Note Trustee is
or would be the only Relevant Investor in respect of a
meeting under clause 26 of the Master Trust Deed,
notwithstanding any other provision of the Master Trust
Deed the requirement to convene such a meeting and put
such issue to such meeting will be satisfied if
directions are sought from the US Dollar Note Trustee
on the particular issue that would otherwise be put to
such meeting. Upon such a direction being given by the
US Dollar Note Trustee, a meeting of the Relevant
Investors will be regarded as having been duly called,
convened and held and the direction will be regarded as
properly passed as an Extraordinary Resolution of such
meeting.
(c) (MASTER TRUST DEED PROVISIONS): The following provisions of the
Master Trust Deed will not apply to the Class A-1 Notes or the
Class A-1 Noteholders: clauses 5.1(d), 6, 8.1, 9, 10, 23.1 and
24.4.
(d) (RIGHTS OF INVESTORS): Nothing in clause 7.1(i) of the Master
Trust Deed limits any right of Class A-1 Noteholders under the US
Dollar Note Trust Deed to compel the Trustee, the Manager or the
US Dollar Note Trustee to comply with their respective
obligations under the US Dollar Note Trust Deed.
(e) (CLAUSE 16.10(A)): Clause 16.10(a) of the Master Trust Deed will
not apply in relation to the Series Trust.
1.7 SUPPORT FACILITIES
The Series Trust has the following Support Facilities:
(a) (CURRENCY SWAP AGREEMENT): each Currency Swap Agreement (which is
also a Hedge Agreement of the Series Trust for the purposes of
the Master Trust Deed);
(b) (INTEREST RATE SWAP AGREEMENT): each Interest Rate Swap Agreement
(which is also a Hedge Agreement of the Series Trust for the
purposes of the Master Trust Deed);
(c) (LIQUIDITY AND STANDBY REDRAW FACILITIES): each Liquidity
Facility and the Standby Redraw Facility (which are each also
Liquidity Facilities of the Series Trust for the purposes of the
Master Trust Deed); and
(d) (MORTGAGE INSURANCE POLICIES): the Mortgage Insurance Policies
(which are also Credit Enhancements of the Series Trust for the
purposes of the Master Trust Deed).
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1.8 SECURITY TRUST DEED
The obligations of the Trustee under the Securities (amongst other
things) will be secured to the Securityholders (among others) by the
Security Trust Deed which is a Security Trust Deed relating to the
Series Trust for the purposes of the Master Trust Deed.
1.9 NOMINATED SELLER AND NOMINATED SERVICER
For the purposes of the Master Trust Deed, the Nominated Seller in
relation to the Series Trust is each of the Sellers (namely CBA and
Homepath) and the Nominated Servicer in relation to the Series Trust
for the purposes of the Master Trust Deed is the Servicer.
1.10 BINDING ON SECURITYHOLDERS AND THE UNITHOLDERS
This Deed is binding on each Securityholder and each Unitholder as if
each was originally a party to this Deed.
1.11 RELATIONSHIP BETWEEN TRUSTEE AND SECURITYHOLDERS
The obligations of the Trustee to the Securityholders expressed in this
Deed or the Master Trust Deed, in so far as the Master Trust Deed
relates to the Series Trust, are contractual obligations only and do
not create any relationship of trustee or fiduciary between the Trustee
and the Securityholders.
1.12 INCORPORATED DEFINITIONS AND OTHER TRANSACTION DOCUMENTS AND PROVISIONS
Where in this Deed a word or expression is defined by reference to its
meaning in another Transaction Document or there is a reference to
another Transaction Document or to a provision of another Transaction
Document, any amendment to the meaning of that word or expression or to
that other Transaction Document or provision (as the case may be) will
be of no effect for the purposes of this Deed unless and until the
amendment is consented to by the parties to this Deed (construed in the
absence of clause 1.10).
1.13 INDEMNITY FROM HOMEPATH
(a) (TRANSACTION DOCUMENTS): Homepath acknowledges that certain
representations, warranties, undertakings and indemnities are
given by CBA under the Transaction Documents in relation to:
(i) Assets of the Series Trust (including Mortgage Loans)
that were assigned to the Trustee by Homepath; and
(ii) Mortgage Loans (and related Mortgage Loan Rights,
including without limitation, security granted by the
Borrower) which are or may be legally owned by
Homepath; and
(iii) actions or potential activities of Homepath (including
breaches by Homepath of the Transaction Documents),
and Homepath indemnifies CBA against all loss, costs, damages,
charges and expenses incurred by CBA in relation to the matters
referred to in (i)-(iii) above;
(b) (DEED OF INDEMNITY): Homepath acknowledges that certain
representations, warranties, undertakings and indemnities are
given by CBA under the Deed of Indemnity in relation to and on
behalf of Homepath and Homepath indemnifies CBA against all loss,
costs, damages, charges and expenses incurred by CBA in relation
to the matters referred to in that Deed of Indemnity.
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1.14 NAME OF SERIES
In accordance with clause 3.4 of the Master Trust Deed, the Trustee and
the Manager have agreed that the name of the Series Trust will be
Medallion Trust Series 2003-1G.
1.15 CLASS A-2 NOTES MAY NOT BE ISSUED
The Manager, in its discretion, may determine that Class A-2 Notes will
not be issued by the Trustee. If the Manager so determines, and does
not direct the Trustee to issue Class A-2 Notes on the Closing Date in
its direction given under clause 6.1(q), this Deed is to be construed
on the basis that the Class A-2 Notes do not exist and, without
limiting the foregoing:
(a) (SECURITIES AND SECURITYHOLDERS): references to the Notes, Class
A Notes, Securities, A$ Securities, Senior Securities and
Securityholders and related expressions will not include any
Class A-2 Notes or Class A-2 Noteholders, as applicable;
(b) (CLASS A NOTES): the Class A-1 Notes will be the only Class A
Notes and references to the Class A-1 Notes or the Class A Notes
are to be interpreted accordingly;
(c) (CALCULATIONS): the Stated Amounts and Invested Amounts of Class
A-2 Notes will be zero for the purposes of any calculations; and
(d) (OBLIGATIONS): no party will have any obligations with respect to
Class A-2 Notes or Class A-2 Noteholders.
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2. THE CBA TRUST
2.1 CONSTITUTION OF CBA TRUST
The CBA Trust is constituted upon:
(a) (EXECUTION OF THIS DEED): the execution of this Deed by the
Trustee, the Manager, the Servicer and each Seller; and
(b) (PAYMENT OF A$100): the payment of the sum of A$100 by or on
behalf of each Seller to the Trustee (the receipt of which the
Trustee acknowledges by executing this Deed).
2.2 DECLARATION OF TRUST FOR THE CBA TRUST
The Trustee declares that it will hold all the right, title and
interest in, to and under the A$200 referred to in clause 2.1(b) and
any further CBA Trust Asset on trust for the relevant Seller in
relation to those CBA Trust Assets in accordance with this clause 2 and
subject to the trusts and other terms and conditions of this Deed.
2.3 NAME OF THE CBA TRUST
The CBA Trust will be known as the "CBA Series 2003-1 Trust" or such
other name from time to time agreed between the Trustee and the Sellers
(subject to any approvals required by law).
2.4 ENTITLEMENT OF SELLERS TO THE CBA TRUST
The beneficial interest in the CBA Trust is vested absolutely in the
Sellers, in accordance with clause 2.2.
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2.5 BARE TRUST
The Trustee holds each CBA Trust Asset in relation to a Seller on bare
trust for that Seller in accordance with clause 2.2.
2.6 DURATION OF THE CBA TRUST
The CBA Trust commences on the date of its constitution as referred to
in this Deed and ends on its Termination Date (as if every reference in
the definition of this term in clause 1.1 of the Master Trust Deed to a
Series Trust was to the CBA Trust).
2.7 EARLY TERMINATION OF THE CBA TRUST
Immediately upon the termination of the Series Trust, the Sellers must
notify the Trustee that the CBA Trust is to be terminated. Upon receipt
of that notice, the Trustee must promptly terminate the CBA Trust.
2.8 DEALING WITH CBA TRUST ASSETS
Subject to the terms of this Deed:
(a) (SELLERS MAY DEAL WITH CBA TRUST ASSETS): each Seller is entitled
to deal with the CBA Trust Assets in relation to that Seller in
its absolute discretion; and
(b) (TRUSTEE MAY ONLY DEAL WITH CBA TRUST ASSETS AS DIRECTED BY
RELEVANT SELLER):
(i) the Trustee must not deal with the CBA Trust Assets in
relation to a Seller other than in accordance with
directions given by that Seller from time to time; and
(ii) the Trustee must act in accordance with any direction
given to it by the Seller in respect of the CBA Trust
Assets in relation to that Seller,
save that, in either case, the Trustee is not obliged to act in
accordance with the directions of a Seller where to do so would be
illegal or result in the Trustee's exposure to a risk of personal
liability where the Trustee is not satisfied, in its absolute
discretion, that the Seller will be able to reimburse the Trustee in
accordance with clause 2.15.
2.9 PROCEEDS
(a) (SELLER MAY RETAIN PROCEEDS): A Seller may retain any proceeds
received by it from the CBA Trust Assets in relation to it.
(b) (TRUSTEE MUST PAY PROCEEDS TO SELLER): Subject to clause
7.3(d)(i), the Trustee must immediately pay to the relevant
Seller (or otherwise pay as that Seller directs) any proceeds the
Trustee receives in respect of the CBA Trust Assets in relation
to that Seller.
(c) (SELLER'S RECEIPT GOOD DISCHARGE): The receipt of amounts by a
Seller pursuant to clauses 2.9(a) and (b) constitutes a good
discharge to the Trustee.
2.10 CBA TRUST ASSETS NOT PART OF ASSETS OF THE SERIES TRUST
(a) (CBA TRUST ASSETS NOT PART OF THE SERIES TRUST): The Trustee's
right, title and interest in the CBA Trust Assets do not form
part of the Assets of the Series Trust.
(b) (TRUSTEE MUST ACCOUNT FOR CBA TRUST ASSETS): The Trustee must
account for the CBA Trust Assets and each of the trusts
established pursuant to clause 2.5
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separately from one another and each such trust separately from
the Assets of the Series Trust.
(c) (LIABILITIES): The Trustee must not apply the Assets of the
Series Trust to meet any liabilities of the CBA Trust (or either
of the two trusts comprised therein) and the Trustee must not
apply the CBA Trust Assets to meet any Liabilities of the Series
Trust.
(d) (NO CO-MINGLING): The Trustee must not co-mingle any money held
by the Trustee in respect of the Series Trust with any money held
by the Trustee in respect of the CBA Trust (or either of the two
trusts comprised therein) (and vice versa).
2.11 SHARED SECURITIES
(a) (NOT SELL ETC. SHARED SECURITIES): The Trustee must not, and the
Manager must not direct the Trustee to, sell, transfer or grant
any Security Interest over any Shared Security which is held by
it partly as trustee for the Series Trust and partly by it as
trustee for the CBA Trust without notifying the relevant
transferee or holder of the Security Interest of the existence of
the interest of the relevant Seller as beneficiary of the CBA
Trust in that Shared Security.
(b) (POWER TO LODGE CAVEATS): Each Seller has the power to lodge a
Caveat over any Shared Security in which it has an interest where
the Trustee has sold, transferred or granted any Security
Interest or that Seller reasonably believes that the Trustee will
sell, transfer or grant any Security Interest over any such
Shared Security in breach of clause 2.11(a).
2.12 TRUSTEE'S DUTIES
The Trustee owes no fiduciary or other duties to the Sellers in respect
of the CBA Trust Assets other than pursuant to clauses 2.8, 2.9(b),
2.10 and 7.3 and, in any event, is not liable in any manner whatsoever
to a Seller for any loss to the CBA Trust Assets in relation to that
Seller as a result of acting on the direction of that Seller or for not
acting as a result of that Seller failing to give any direction to the
Trustee or for otherwise acting in accordance with this Deed.
2.13 SUBSTITUTE TRUSTEE
(a) (SUBSTITUTE TRUSTEE): Any Substitute Trustee (other than the
Manager when acting as Trustee) must be approved by each Seller
which approval is not to be unreasonably withheld or delayed.
(b) (RETIREMENT OR REMOVAL OF THE TRUSTEE FROM THE CBA TRUST): The
provisions of clause 19 of the Master Trust Deed apply with
necessary modifications to the CBA Trust as if every reference in
such clause to:
(i) a Series Trust or the Series Trusts included a
reference to the CBA Trust; and
(ii) as if every reference to the "Manager" was a reference
to both Sellers.
(c) (CBA TRUST ASSETS TO VEST IN SUBSTITUTE TRUSTEE): Upon the
retirement or removal of the Trustee as trustee of the Series
Trust in accordance with the Master Trust Deed, the Trustee must
vest the CBA Trust Assets, or cause them to be vested, in the
Substitute Trustee and must deliver to the Substitute Trustee (or
to the Manager if it is acting as Trustee) all books, documents,
records and other property whatsoever in its possession (if any)
relating to the CBA Trust. The costs and expenses of this are to
be paid by the Sellers.
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2.14 TRANSFER OF THE CBA TRUST ASSETS TO SELLERS ON TERMINATION OF CBA TRUST
On the termination of the CBA Trust, the Trustee is deemed to offer to
immediately transfer the CBA Trust Assets in relation to a Seller to
that Seller (so that each Seller is deemed to receive an offer to
accept an assignment or other transfer of the CBA Trust Assets in
relation to that Seller). A Seller can accept such offer only by an
Authorised Officer of that Seller accepting such offer orally
(including by way of telephone) communicated to an Authorised Officer
of the Trustee. The Trustee must execute and deliver to a Seller such
instruments as that Seller reasonably requests to vest in that Seller
all right, title and interest of the Trustee in the CBA Trust Assets in
relation to that Seller.
2.15 SELLER INDEMNITY
(a) (CBA TRUST): Subject to clause 2.15(b), but without limiting any
indemnity to which the Trustee is otherwise entitled at general
law, the Sellers (jointly and severally) unconditionally and
irrevocably indemnify the Trustee in respect of, and agree to pay
within 5 Business Days of receipt of a written demand from the
Trustee:
(i) any liability incurred by the Trustee as a result of
the Trustee complying with any directions by either
Seller in accordance with clause 2.8 or not acting as a
result of a Seller failing to give any direction to the
Trustee;
(ii) any liability incurred by the Trustee in connection
with the transfer of any CBA Trust Asset to either
Seller (including, but not limited to, stamp duties and
Taxes payable in connection with such transfer); and
(iii) all other costs, charges, Taxes, expenses and
liabilities incurred by the Trustee in respect of the
CBA Trust in accordance with this clause 2, clause 7.5,
clause 7.7, clause 7.8 or clause 14.4.
(b) (LIMITATION OF SELLER INDEMNITY): A Seller's obligations under
clause 2.15(a) to indemnify and reimburse the Trustee do not
apply to the extent that such liabilities, costs, charges, Taxes,
stamp duties or expenses arise as a result of the Trustee's
negligence, fraud or wilful default.
2.16 LIMITATION OF LIABILITY
The Trustee enters into this Deed in its capacity as trustee of the CBA
Trust (in addition to entering into this Deed in its capacity as
trustee of the Series Trust). A liability arising under or in
connection with this Deed and the CBA Trust is limited to and can be
enforced against the Trustee only to the extent to which it can be
satisfied out of the CBA Trust Assets out of which the Trustee is
actually indemnified for the liability. This clause will not apply to
any obligation or liability of the Trustee in respect of the CBA Trust
to the extent that it is not satisfied because, under this Deed or by
operation of law, there is a reduction in the extent of the Trustee's
indemnification out of the CBA Trust Assets as a result of the
Trustee's fraud, negligence or wilful default.
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3. UNITS IN THE SERIES TRUST
3.1 BENEFICIAL INTEREST REPRESENTED BY A NUMBER OF UNITS
The beneficial interest in the Series Trust is divided into 3 Units: 2
Capital Units and 1 Income Unit. The Income Unit is a separate Class of
Unit to the Capital Units.
3.2 CLASSES OF CAPITAL UNITS
The Capital Units are divided into two Classes: 1 Class A Capital Unit
and 1 Class B Capital Unit.
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3.3 INITIAL UNITHOLDERS
(a) (INCOME UNIT): The initial holder of the Income Unit in the
Series Trust is CBA.
(b) (CAPITAL UNITS): The initial holder of the:
(i) Class A Capital Unit in the Series Trust is CU
Securitisation Services; and
(ii) Class B Capital Unit in the Series Trust is CBA.
3.4 REGISTRATION OF INITIAL UNITHOLDERS
Immediately upon the execution of this Deed, the Trustee must:
(a) (ENTER IN REGISTER): enter into the Register:
(i) CBA as:
A. the initial Income Unitholder in the Series Trust;
and
B. the initial Class B Capital Unitholder in the
Series Trust; and
(ii) CU Securitisation Services as the initial Class A
Capital Unitholder in the Series Trust; and
(b) (ISSUER UNIT CERTIFICATES): issue a Unit Certificate to:
(i) CBA in respect of the:
A. Income Unit; and
B. Class B Capital Unit; and
(ii) CU Securitisation Services in respect of the Class A
Capital Unit.
3.5 BENEFICIAL INTEREST REPRESENTED BY THE INCOME UNIT
The beneficial interest in the Series Trust represented by the Income
Unit is limited to the amount (if any) standing from time to time to
the credit of the Collections Account representing any then due but
unpaid Excess Distribution.
3.6 BENEFICIAL INTEREST REPRESENTED BY THE CAPITAL UNITS
(a) (CLASS A CAPITAL UNIT): The beneficial interest in the Series
Trust represented by the Class A Capital Unit is in each Asset of
the Series Trust (other than the beneficial interest in the
Assets represented by the Income Unit) up to a maximum amount of
A$1,000.
(b) (CLASS B CAPITAL UNIT): The beneficial interest in the Series
Trust represented by the Class B Capital Unit is in each Asset of
the Series Trust (other than the beneficial interests in the
Assets represented by the Income Unit and the Class A Capital
Unit).
3.7 RIGHT OF INCOME UNITHOLDER TO PAYMENTS
(a) (EXCESS DISTRIBUTIONS): The Income Unitholder has only the right
to receive payments of the Excess Distributions in accordance
with this Deed and only to the
44
extent that funds are available for this purpose in accordance
with this Deed.
(b) (SUBSCRIPTION AMOUNT): The Income Unitholder has no entitlement
to the capital of the Series Trust other than for the
Subscription Amount to be deducted pursuant to clause 11.2(b)(ii)
from the Excess Distributions on deposit by the Trustee with the
Income Unitholder pursuant to clause 11.2(a).
3.8 RIGHTS OF CAPITAL UNITHOLDERS TO PAYMENTS
(a) (CLASS A CAPITAL UNITHOLDER): The Class A Capital Unitholder has
only the right to receive payments under clause 10.3(e)(i) and
only to the extent that funds are available for this purpose in
accordance with this Deed up to a maximum amount in aggregate of
A$1000.
(b) (CLASS B CAPITAL UNITHOLDER): The Class B Capital Unitholder has
only the right to receive:
(i) payments under clause 10.3(e)(ii) and only to the
extent that funds are available for this purpose in
accordance with this Deed; and
(ii) except to the extent included in (i), on the
termination of the Series Trust the capital of the
Series Trust remaining after the payment (or the
provision for payment) of all other outgoings and
amounts by the Trustee pursuant to clause 26
(including, without limitation, payments or the
provision of payments to the Class A Capital Unitholder
in that capacity).
3.9 CAPITAL AND INCOME UNITS SUBJECT TO THIS DEED AND THE MASTER TRUST DEED
The rights, benefits and entitlements in respect of the Capital Units
and the Income Unit are subject to the terms of this Deed and the
Master Trust Deed.
3.10 RESTRICTIONS ON TRANSFER
The Capital Units are non-transferable. The Income Unit may be
transferred at any time subject to the prior written consent of the
Trustee and the Manager (which, in each case, must not be unreasonably
withheld) and notification to each Rating Agency by the Manager.
3.11 UNITS RANK EQUALLY EXCEPT FOR SPECIAL RIGHTS
The Income Unit and the Capital Units enjoy the same rights,
entitlements, benefits and restrictions, except as expressly provided
in this Deed and the Master Trust Deed.
3.12 FORM OF UNIT CERTIFICATE
The initial form of the Unit Certificate is as set out in Schedule 9 in
respect of a Capital Unit and Schedule 10 in respect of the Income
Unit.
3.13 FORM OF INCOME UNIT TRANSFER
The form of the Unit Transfer for the Income Unit may be agreed from
time to time between the then Income Unitholder, the Manager and the
Trustee (acting reasonably).
3.14 ADDITIONAL CAPITAL SUBSCRIPTION
The Income Unitholder may, on or prior to the Closing Date, invest
amounts by way of an increase in the capital of the Series Trust by
paying such amounts to the Trustee or as the Trustee, upon the written
instruction of the Manager, directs.
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3.15 NO OTHER RELATIONSHIP
Nothing in this Deed constitutes either the Trustee, the Manager or the
Servicer as the agent of a Unitholder nor creates any relationship
between a Unitholder on the one hand and the Manager (other than as
Manager), the Servicer (other than as Servicer) or the Trustee (other
than as Trustee) on the other.
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4. ASSIGNMENT OF MORTGAGE LOAN RIGHTS
4.1 APPROVED FINANCIAL ASSETS OF THE SERIES TRUST
The nature of the Approved Financial Assets that may be acquired by the
Trustee for the purposes of the Master Trust Deed are Mortgage Loan
Rights.
4.2 SALE NOTICE
If a Seller wishes to offer to assign to the Trustee, on the terms of
this Deed, its right, title and interest in any Mortgage Loan Rights,
that Seller is only entitled to do so by giving to the Trustee (with a
copy to the Manager) a Sale Notice in relation to those Mortgage Loan
Rights 5 Business Days (or such other period as that Seller has agreed
with the Trustee and the Manager) before the date specified in that
Sale Notice as the Closing Date.
4.3 REQUIREMENTS OF SALE NOTICE
A Sale Notice must:
(a) (STATE THAT IT IS A SALE NOTICE): state that it is a Sale Notice
pursuant to clause 4.2 and that it relates to the Series Trust;
(b) (TIMING): not be issued:
(i) until at least 1 Business Day after the Series Trust
has been constituted; or
(ii) after the Termination Date in respect of the Series
Trust;
(c) (BE DELIVERED): be delivered to the Trustee and copied to the
Manager;
(d) (SCHEDULE OF MORTGAGE LOANS): be accompanied by a schedule of the
Mortgage Loans offered to be assigned to the Trustee that
contains the information required by clause 4.4;
(e) (CLOSING DATE): state the proposed Closing Date (which, unless
otherwise agreed by the Trustee in writing, must be at least 5
Business Days after the date of the receipt by the Trustee of the
Sale Notice);
(f) (CUT-OFF DATE): state the Cut-Off Date (which, unless otherwise
agreed by the Trustee in writing, must be at least 10 Business
Days before the Closing Date); and
(g) (AUTHORISED OFFICER): be signed by an Authorised Officer of the
relevant Seller.
4.4 MORTGAGE LOAN SCHEDULE
The schedule required by clause 4.3(d) to accompany a Sale Notice must
contain the following details in respect of each Mortgage Loan as at
the commencement of business on the Cut-Off Date:
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(a) (NAME AND ADDRESS): the name and address of the Borrower under
the Mortgage Loan (as recorded in the relevant Seller's records
in accordance with the Servicing Standards) and the address of
the Mortgaged Property secured by each Mortgage;
(b) (ACCOUNT NUMBER): the account number of the Mortgage Loan;
(c) (AMOUNT OUTSTANDING): the principal amount outstanding, and
accrued interest, under the Mortgage Loan; and
(d) (LVR): the Loan to Value Ratio of the Mortgage Loan.
4.5 SALE NOTICE CONSTITUTES AN OFFER
A Sale Notice constitutes an offer by the relevant Seller to assign to
the Trustee with effect from the commencement of business on the
Cut-Off Date and subject to the terms of this Deed and the Master Trust
Deed that Seller's entire right, title and interest in, to and under
the following:
(a) (MORTGAGE LOANS): each Mortgage Loan identified in the schedule
accompanying the Sale Notice;
(b) (OTHER LOANS): all Other Loans in existence from time to time in
relation to the above Mortgage Loans;
(c) (MORTGAGES): all Mortgages in existence from time to time in
relation to the above Mortgage Loans;
(d) (COLLATERAL SECURITIES): all Collateral Securities in existence
from time to time in relation to the above Mortgage Loans;
(e) (MORTGAGE INSURANCE POLICY): all Mortgage Insurance Policies as
at the commencement of business on the Cut-Off Date (other than
the PMI Mortgage Insurance Policy);
(f) (MORTGAGE RECEIVABLES): all Mortgage Receivables in existence
from time to time in relation to the above Mortgage Loans; and
(g) (MORTGAGE DOCUMENTS): all Mortgage Documents in existence from
time to time in relation to the above Mortgage Loans.
4.6 SALE NOTICE REVOCABLE
A Sale Notice is revocable by the Seller that issued that Sale Notice
by notice received by the Trustee (and copied to the Manager) prior to
the close of business (Sydney time) 4 Business Days before the proposed
Closing Date. If no such notice is received by the Trustee and the
Manager by that time, that Sale Notice is then irrevocable.
4.7 ACCEPTANCE OF OFFER
The offer contained in a Sale Notice may be accepted by the Trustee
only in accordance with this clause 4.
4.8 TIMING OF ACCEPTANCE
(a) (MEANS OF ACCEPTANCE): The Trustee will, if so directed by the
Manager in writing, accept the offer contained in a Sale Notice
at any time after 10.00 a.m. and before 3.30 p.m. (or between
such other times as may be agreed by the Trustee and the relevant
Seller) on the Closing Date by, and only by, the Trustee paying,
or
47
causing payment of, the Consideration to the relevant Seller in
cleared and immediately available funds.
(b) (NO FURTHER ACTS REQUIRED): The Trustee is not required to do any
further act, matter or thing to accept the offer contained in
that Sale Notice.
4.9 SELLER NOT OBLIGED TO MAKE, AND TRUSTEE NOT OBLIGED TO ACCEPT, OFFER
Notwithstanding satisfaction of all relevant conditions precedent or
any negotiations undertaken between a Seller and the Trustee prior to
any acceptance by the Trustee of the offer contained in a Sale Notice
issued by that Seller:
(a) (SELLER NOT OBLIGED TO MAKE OFFER): that Seller is not obliged to
issue that Sale Notice and the Trustee is not obliged to accept
the offer contained in that Sale Notice and no contract for the
sale or purchase of any Mortgage Loan Rights will arise unless
and until the Trustee accepts the offer contained in that Sale
Notice in accordance with this clause 4; and
(b) (TRUSTEE ACQUIRES NO RIGHTS UNTIL OFFER IRREVOCABLE): the Trustee
acquires no rights against that Seller or the Servicer in respect
of the Mortgage Loan Rights specified in that Sale Notice until
such time as that Sale Notice (if issued) becomes irrevocable.
4.10 CAN ONLY ACCEPT ALL MORTGAGE LOAN RIGHTS IN LOAN POOL
The offer contained in a Sale Notice may only be accepted in relation
to all the Mortgage Loan Rights specified in that Sale Notice.
4.11 EFFECT OF ACCEPTANCE
Acceptance, in accordance with this Deed, of the offer contained in a
Sale Notice constitutes an immediate assignment with effect from the
commencement of business on the Cut-Off Date of the relevant Seller's
entire right, title and interest in the Mortgage Loan Rights specified
in that Sale Notice. The Trustee's right, title and interest in such
Mortgage Loan Rights is at all times subject to the terms of this Deed
and the Master Trust Deed.
4.12 SALE IN EQUITY ONLY
(a) (ASSIGNMENT IN EQUITY): An assignment of Mortgage Loan Rights in
accordance with this Deed takes effect initially in equity only.
(b) (TRUSTEE MUST NOT COMMUNICATE, DISCLOSE OR PERFECT TITLE): The
Trustee must not:
(i) take any steps to perfect its legal title to the
Mortgage Loan Rights;
(ii) give any notice to, or communicate in any other way
with, a Borrower or the provider of any Collateral
Security; or
(iii) disseminate or disclose any information in respect of
the assignment of the Mortgage Loan Rights,
except in accordance with the terms of this Deed.
4.13 SALE NOT TO AMOUNT TO ASSUMPTION OF OBLIGATIONS
An assignment of Mortgage Loan Rights in accordance with this Deed, and
the acceptance of a Sale Notice, does not constitute an assumption by
the Trustee, the Servicer, the Manager or any Securityholder of any
obligation of the relevant Seller or any other person pursuant to, or
in connection with, the Mortgage Loan Rights or any other obligation of
that Seller to the
48
Borrower or any other party pursuant to, or in connection with, the
corresponding Mortgage Documents.
4.14 FUTURE ADVANCES
Without limiting the generality of clause 4.13, a Seller retains the
obligation to make such further advances or provide such other
financial accommodation as that Seller was required to make under the
terms of the relevant Mortgage Loan prior to the Cut-Off Date for that
Mortgage Loan.
4.15 FUTURE RECEIVABLES
Without limiting the effect of any assignment of any Mortgage Loan
occurring on the Trustee accepting a Sale Notice but subject to clauses
4.13 and 4.14, a Seller's right, title and interest in respect of any
Mortgage Loan Rights arising, and any Mortgage Documents entered into,
on or after the Cut-Off Date, form part of the rights assigned to the
Trustee (to be held subject to the terms of the Master Trust Deed and
this Deed) and, immediately following creation (including, without
limitation, Mortgage Loan Rights created by the making of any further
advance or the provision of any financial accommodation under the terms
of a Mortgage Loan), vest in the Trustee in accordance with the
assignment of that Mortgage Loan pursuant to this Deed.
4.16 POWER TO ACQUIRE MORTGAGE LOANS IN ARREARS
In accordance with clause 16.4(v) of the Master Trust Deed, the parties
expressly agree that the Trustee has the power to acquire Mortgage
Loans as Assets of the Series Trust notwithstanding that payments due
from Borrowers under such Mortgage Loans are in arrears as at the date
of their acquisition by the Trustee.
4.17 TRUSTEE BOUND BY PRIORITY AGREEMENTS
Where a Seller has entered into a Priority Agreement with a subsequent
mortgagee of Land the subject of a Mortgage or Collateral Security
assigned to the Trustee under clause 4.11 the Trustee agrees for the
benefit of any such subsequent mortgagee to be bound by the provisions
of any such Priority Agreement.
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5. THE SECURITIES
5.1 SECURITIES DIVIDED INTO CLASSES
The Securities are divided into three or four Classes as follows:
(a) the Class A-1 Notes;
(b) the Class A-2 Notes (if these are issued);
(c) the Class B Notes; and
(d) the Redraw Bonds,
with the Class A-2 Notes (if issued) being further divided into two
sub-classes as follows:
(e) the Class A-2 Tranche 1 Notes; and
(f) the Class A-2 Tranche 2 Notes.
5.2 FORM, CONSTITUENT DOCUMENTS AND DENOMINATION OF THE SECURITIES
(a) (CLASS A-1 NOTE): The Class A-1 Notes will:
49
(i) be in registered form, without coupons;
(ii) upon issue, be represented by 1 or more Class A-1 Book
Entry Notes (as defined in the US Dollar Note Trust
Deed) (and interests in such Class A-1 Book Entry Notes
may be exchanged for Class A-1 Definitive Notes (as
defined in the US Dollar Note Trust Deed) in the
circumstances set out in clause 3.4(a) of the US Dollar
Note Trust Deed);
(iii) be constituted, issued and authenticated pursuant to
the US Dollar Note Trust Deed; and
(iv) be denominated in US dollars.
(b) (A$ SECURITIES): The A$ Securities will be:
(i) in the form of registered debt securities;
(ii) constituted pursuant to the Master Trust Deed and this
Deed; and
(iii) denominated in Australian dollars.
5.3 TRUSTEE MUST ISSUE THE NOTES
Subject to the satisfaction of all conditions precedent in respect
thereof in the Transaction Documents, the Trustee on the Closing Date
must issue:
(a) (CLASS A-1 NOTES): the Class A-1 Notes in accordance with the US
Dollar Note Trust Deed and the Underwriting Agreement; and
(b) (CLASS A-2 AND B NOTES): the Class A-2 Notes (if any) and the
Class B Notes in accordance with this Deed and the Dealer
Agreement.
5.4 ISSUE OF REDRAW BONDS
If the Trustee receives:
(a) (NOTICE UNDER CLAUSE 8.4): a notice from the Manager pursuant to
clause 8.4; and
(b) (NO DOWNGRADE): a Rating Affirmation Notice from each Rating
Agency in relation to the proposed issue of Redraw Bonds,
the Trustee must issue Redraw Bonds up to the amount specified in the
notice on the date for issue of the Redraw Bonds referred to in the
notice.
5.5 INITIAL INVESTED AMOUNT OF THE SECURITIES
(a) (CLASS A-1 NOTES): Each Class A-1 Note on its issue will have an
Initial Invested Amount as set out on the face of that Class A-1
Note and will be issued at par value.
(b) (A$ SECURITIES): Each A$ Security on its issue will have an
Initial Invested Amount of A$100,000 and will be issued at par
value.
5.6 INTEREST ON THE SECURITIES
(a) (CLASS A-1 NOTES): Each Class A-1 Note will accrue interest, and
such interest will be payable, in accordance with the US Dollar
Note Conditions.
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(b) (A$ SECURITIES):
(i) Each A$ Security will accrue interest from (and
including) its Issue Date and will cease to accrue
interest from (and including) the earlier of:
A. the date on which the Stated Amount of the A$
Security is reduced to zero and all accrued
interest in respect of the A$ Security is paid in
full; and
B. the date on which the A$ Security is deemed to be
repaid in accordance with clause 5.7(b)(iv).
(ii) The period that an A$ Security accrues interest in
accordance with clause 5.6(b)(i) will be divided into
periods (each included within the definition of an
"ACCRUAL PERIOD"). The first such period for an A$
Security will commence on (and include) the Issue Date
for that A$ Security and will end on (but will not
include) the next Distribution Date. Each succeeding
such period will be equal to each corresponding Accrual
Period. The final such period for an A$ Security will
end on (but will not include) the date on which
interest ceases to accrue on the A$ Security pursuant
to clause 5.6(b)(i).
(iii) Interest on each A$ Security for each of its Accrual
Periods will accrue on a daily basis at the product of
the Interest Rate applicable to that A$ Security and
the Invested Amount of the A$ Security at the close of
business on the first day of that Accrual Period and
will be calculated on a daily basis and based on a 365
day year.
(iv) Interest so calculated on an A$ Security will, subject
to this Deed, be payable in arrears on each
Distribution Date.
5.7 REDEMPTION OF THE SECURITIES
(a) (CLASS A-1 NOTES): The Class A-1 Notes will be redeemed (or
deemed to be redeemed) in accordance with the US Dollar Note
Conditions.
(b) (A$ SECURITIES):
(i) Unless previously redeemed in full, the Trustee will,
subject to this Deed, redeem each A$ Security at its
then Stated Amount, together with all accrued but
unpaid interest, on the Scheduled Maturity Date.
(ii) Subject to clauses 5.7(b)(iii) and (iv), on each
Distribution Date referred to in clause 10.5, an A$
Security will be redeemed (either in whole or in part
as the context requires) to the extent that any moneys
are applied by the Trustee pursuant to clause 10.5 to
that A$ Security.
(iii) Unless previously redeemed in full, the Trustee must
redeem all, but not some only, of the A$ Securities,
when required to do so in accordance with, and for the
amount required under, Conditions 7.3 and 7.4 of the US
Dollar Note Conditions.
(iv) Upon a final distribution being made in respect of an
A$ Security under clause 26.12 of this Deed or clause
13.1 of the Security Trust Deed, each A$ Security will
thereupon be deemed to be redeemed and discharged in
full and any obligation to pay any accrued but unpaid
interest and any then unpaid, Stated Amount, Invested
Amount or any other amounts in relation to the A$
Security will be extinguished in full.
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(v) Subject to clause 5.7(b)(iii), no amount of principal
will be repaid in respect of an A$ Security in excess
of the Stated Amount of that A$ Security.
5.8 INTEREST ON OVERDUE INTEREST ON THE SECURITIES
(a) (CLASS A-1 NOTES): If interest is not paid in respect of a Class
A-1 Note on the date when due and payable in accordance with the
US Dollar Note Conditions, the unpaid interest will in turn bear
interest in accordance with the US Dollar Note Conditions.
(b) (A$ SECURITIES): If interest is not paid in respect of an A$
Security on the date when due and payable in accordance with this
Deed (but without regard to any limitation herein contained) that
unpaid interest will in turn bear interest at the Interest Rate
from time to time applicable on that A$ Security until (but
excluding) the date on which the unpaid interest, and interest on
it, is paid in accordance with clause 10.2.
5.9 ROUNDING OF PAYMENTS ON THE SECURITIES
(a) (CLASS A-1 NOTES): All payments in respect of the Class A-1 Notes
will be rounded in accordance with the US Dollar Note Conditions.
(b) (A$ SECURITIES): All payments in respect of the A$ Securities
will be rounded down to the nearest cent.
5.10 SECURITIES RANK EQUALLY EXCEPT FOR SPECIAL RIGHTS
The Securities enjoy the same rights, entitlements, benefits and
restrictions, except as expressly provided in this Deed, the Master
Trust Deed, the US Dollar Note Trust Deed, the Class A-1 Notes and the
Security Trust Deed.
5.11 TRANSFER OF SECURITIES
(a) (MASTER TRUST DEED): Clause 10.4(a) of the Master Trust Deed does
not apply to the Securities.
(b) (TRANSFER OF A$ SECURITIES IN ACCORDANCE WITH CORPORATIONS ACT):
A Securityholder is only entitled to transfer an A$ Security if
the offer of the A$ Security for sale, or the invitation to
purchase the A$ Security, to the proposed transferee by the
Securityholder is an offer or invitation that does not need
disclosure to investors under Part 6D.2 of Chapter 6 of the
Corporations Act and otherwise complies with the Corporations Act
and is not made to a person who is a "retail client" within the
meaning of section 761G of the Corporations Act.
(c) (REGULATION S): An A$ Security may not be offered or sold within
the United States of America 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 clause
5.11(c) have the meaning given to them by Regulation S under the
Securities Act.
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6. CONDITIONS PRECEDENT TO ACCEPTANCE OF SALE NOTICE AND ISSUE OF NOTES
6.1 GENERAL CONDITIONS PRECEDENT
The Trustee must receive each of the following documents before it can
accept the offer contained in any Sale Notice (if issued) or issue the
Notes:
52
(a) (STANDBY REDRAW FACILITY): an executed original counterpart of
the Standby Redraw Facility Agreement together with a letter from
the Standby Redraw Facility Provider confirming that all
conditions precedent to the Standby Redraw Facility have been
received in a form and substance satisfactory to it;
(b) (LIQUIDITY FACILITY): an executed original counterpart of the
Liquidity Facility Agreement, together with a letter from the
Liquidity Facility Provider confirming that all conditions
precedent to the Liquidity Facility have been received by it in
form and substance satisfactory to it;
(c) (INTEREST RATE SWAP AGREEMENT): an executed original counterpart
of the Interest Rate Swap Agreement together with a letter from
the Interest Rate Swap Provider confirming that all conditions
precedent to the Interest Rate Swap Agreement have been received
in form and substance satisfactory to it;
(d) (CURRENCY SWAP AGREEMENT): an executed original counterpart of
the Currency Swap Agreement, together with a letter from the
Currency Swap Provider confirming that all conditions precedent
to the Currency Swap Agreement have been received by it in form
and substance satisfactory to it.
(e) (SECURITY TRUST DEED): an executed original counterpart of the
Security Trust Deed;
(f) (US DOLLAR NOTE TRUST DEED): an executed original counterpart of
the US Dollar Note Trust Deed;
(g) (AGENCY AGREEMENT): an executed original counterpart of the
Agency Agreement;
(h) (DEALER AGREEMENT AND UNDERWRITING AGREEMENT): an executed
original counterpart of the Dealer Agreement and the Underwriting
Agreement;
(i) (PMI MORTGAGE INSURANCE POLICY): an executed original counterpart
of the PMI Mortgage Insurance Policy together with a letter from
PMI confirming that it has accepted for insurance under the PMI
Mortgage Insurance Policy the Mortgage Loans referred to in the
certificate attached to the letter and that the Trustee has paid
the premium in respect of the PMI Mortgage Insurance Policy;
(j) (COMPUTER DISKETTE): a computer diskette from each Seller in a
form agreed between that Seller and the Trustee containing in
relation to the Mortgage Loans the subject of that Seller's Sale
Notice:
(i) a list of all of the offices at which the Mortgage
Documents relating to the Mortgage Loans are retained,
showing the street address and telephone number of the
relevant office;
(ii) the surname and address of the Borrower under each
Mortgage Loan;
(iii) the account number of each Mortgage Loan;
(iv) the street address of the Land which is the subject of
the Mortgage relating to each Mortgage Loan; and
(v) such other information in respect of the Mortgage Loans
as is agreed between that Seller and the Trustee;
(k) (LETTER EXPLAINING IDENTIFICATION METHODOLOGY): a letter from
each Seller which explains (in a manner satisfactory to the
Trustee) how the security packages containing the Mortgage
Documents are marked or segregated so as to enable the
53
Trustee to identify those security packages when at the premises
of the Servicer where the security packages are stored;
(l) (SELLER LETTER): a letter (copied to the Rating Agencies) from
each Seller which, in a manner satisfactory to the Trustee,
explains how the Mortgage Loans are marked on the Mortgage Loan
System so that those Mortgage Loans, if necessary, can be
separately identified by the Trustee;
(m) (CONFIRMATION FROM RATING AGENCIES): confirmation from each of
the Rating Agencies that the Class A Notes have been assigned a
provisional rating of AAA (in the case of S&P) and Aaa (in the
case of Xxxxx'x) and the Class B Notes have been assigned a
provisional rating of AA (in the case of S&P);
(n) (POWERS OF ATTORNEY):
(i) 10 originals of a power of attorney from each Seller in
favour of the Trustee substantially in the form
contained in Schedule 2 or in such other form or such
other number of copies as is required to enable
registration of such power of attorney in each State
and Territory of Australia in which registration is
necessary or desirable (other than Queensland or
Western Australia);
(ii) 2 originals of a power of attorney from each Seller in
favour of the Trustee substantially in the form
contained in Schedule 3 or in such other form as is
required to enable registration of such power of
attorney in Queensland; and
(iii) 2 originals of a power of attorney from each Seller in
favour of the Trustee substantially in the form
contained in Schedule 4 or in such other form as is
required to enable registration of such power of
attorney in Western Australia;
(o) (AUTHORISED OFFICERS): a certificate setting out in full the name
and specimen signature of each Authorised Officer of the Manager,
the Servicer and each Seller;
(p) (LEGAL OPINIONS): legal opinions from:
(i) Xxxxxxx Xxx:
A. as to, amongst other things, the validity and
enforceability of the obligations of each Seller,
the initial Servicer and the initial Manager under
the Transaction Documents, or those parts of the
Transaction Documents, expressed to be governed by
Australian law;
B. as to the tax and stamp duty implications of the
Series Trust and the transactions contemplated by
the Transaction Documents; and
(ii) Mallesons Xxxxxxx Xxxxxx as to the validity and
enforceability of the obligations of the Trustee and
the Security Trustee under the Transaction Documents;
(iii) Xxxxxxx Wisewoulds as to the validity and
enforceability of the obligations of PMI under the PMI
Mortgage Insurance Policy;
(iv) Xxxxx, Xxxxx, Xxxx & Xxx as to, amongst other things,
the validity and enforceability of the obligations of
each Seller and the Manager under the Transaction
Documents, or those parts of the Transaction
54
Documents, expressed to be governed by the laws of the
State of New York; and
(v) Xxxxx, Xxxxxx & Xxxxxx, LLP as to due execution by The
Bank of New York of the Transaction Documents to which
The Bank of New York is a party;
(q) (DIRECTION FROM THE MANAGER): a written direction from the
Manager for the Trustee to accept the Sale Notice and to issue
the Notes (which direction must include the Classes, sub-classes
and Invested Amounts of the Notes to be issued); and
(r) (CONFIRMATION FROM CBA): confirmation from CBA that it has
received 2 originals of a power of attorney from Homepath in
favour of the Servicer in its role as Custodian substantially in
the form contained in Schedule 12 (or such other form as the
Servicer may reasonably require in relation to its custodial
duties under this Deed).
6.2 OTHER CONDITIONS PRECEDENT
Without limiting the generality of clauses 4.9 and 6.1, the Trustee
must not accept the offer contained in any Sale Notice (if issued) and
must not issue any Notes unless it is satisfied that the form and
content of that Sale Notice complies with this Deed.
6.3 NO LIABILITY FOR INSUFFICIENT MONEYS
If on the Closing Date the Trustee has not received each of the
documents specified in clause 6.1 or the condition specified in clause
6.2 is not fulfilled:
(a) (NO ACCEPTANCE): the Trustee must not accept the offer contained
in any Sale Notice (if issued);
(b) (NO ISSUE): the Trustee must not issue any Notes and must refund
the Subscription Proceeds (if any) received by it to the relevant
subscribers entitled to such Subscription Proceeds; and
(c) (NO LIABILITY): none of the Trustee, the Manager, the Servicer or
the Sellers will have any obligation or liability to any person
as a result of not issuing the Notes.
6.4 MANAGER'S CERTIFICATE
The Manager must not issue a direction to the Trustee pursuant to
clause 6.1(q) unless the Manager:
(a) (COMPLIANCE WITH SECURITIES LAWS): is satisfied that any offer
for the issue, or any invitation to apply for the issue, of:
(i) the Class A-2 Notes and the Class B Notes:
A. is an offer of securities for issue, or is an
invitation to apply for the issue of securities,
which does not need disclosure to investors under
Part 6D.2 of Chapter 6 of the Corporations Act;
and
B. is made pursuant to an exemption from, or is not
subject to, the registration requirements of the
Securities Act; and
(ii) the Class A-1 Notes complies with:
55
A. the Financial Services and Markets Act, 2000
(United Kingdom), all regulations made under or in
relation to that Act and the Public Offers of
Securities Regulations 1995 as amended; and
B. the Securities Act, all regulations made
thereunder and all other laws or regulations of
any jurisdiction of the United States of America
regulating the offer or the issue of, or the
subscription for, the Class A-1 Notes.
The Manager on becoming satisfied as to the above matters is
entitled to rely conclusively, unless it has actual knowledge to
the contrary, on, amongst other things, legal opinions or other
advice issued to this effect to it or any representation or
undertaking made to this effect in the applicable Dealer
Agreement or Underwriting Agreement;
(b) (NO BREACH BY SELLER OF REPRESENTATIONS): is not actually aware
that any representation or warranty made or taken to be made by a
Seller in any Transaction Document in respect of the Series Trust
is incorrect in any material respect on the Cut-Off Date as if
repeated on that Cut-Off Date with reference to facts and
circumstances then subsisting;
(c) (BREACH OF OBLIGATIONS BY SELLER): is not actually aware that a
Seller is in breach in any material respect of any of its
obligations under this Deed (unless that breach has been remedied
to the satisfaction of the Manager);
(d) (INSOLVENCY EVENT FOR SELLER): is not actually aware that an
Insolvency Event has occurred in relation to a Seller (unless
that event has been remedied to the satisfaction of the Manager);
and
(e) (OTHER CONDITIONS PRECEDENT): is satisfied that such other
conditions precedent to the issue of the Notes and the acceptance
by the Trustee of the offer contained in any Sale Notice as are
specified in the Transaction Documents have been met.
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7. DIVISION OF MORTGAGE LOAN RIGHTS BETWEEN THE CBA TRUST AND THE SERIES
TRUST
7.1 CBA TRUST ASSETS
The Trustee will hold as trustee of the CBA Trust all its right, title
and interest in:
(a) (OTHER LOANS): the Other Loans;
(b) (BALANCE OF MORTGAGES ETC.): the balance of the Mortgages, the
Mortgage Documents, the First Layer of Collateral Securities and
the Mortgage Receivables referred to in clause 7.2(b); and
(c) (SECOND LAYER OF COLLATERAL SECURITIES): the Second Layer of
Collateral Securities,
which are assigned to the Trustee by a Seller.
7.2 MORTGAGES AND FIRST LAYER OF COLLATERAL SECURITIES
(a) (THE SERIES TRUST): The Trustee will hold as trustee of the
Series Trust all its right, title and interest in so much of any
Mortgage Loan, Mortgage, the First Layer of Collateral
Securities, the Mortgage Receivables and the Mortgage Documents
for each Mortgage Loan assigned to the Trustee (including,
without limitation, the
56
proceeds of enforcement of such in relation to the Mortgage Loan)
as is necessary to enable the full and final repayment of all
amounts owing with respect to the Mortgage Loan.
(b) (THE CBA TRUST): The Trustee will hold as trustee for the CBA
Trust the balance (if any) of its right, title and interest in
any Mortgage Loan, Mortgage, First Layer of the Collateral
Securities, Mortgage Receivables and Mortgage Documents referred
to in clause 7.2(a).
7.3 TREATMENT OF SHARED SECURITIES
If:
(a) (MORTGAGE LOANS IN SERIES TRUST): a Mortgage Loan forms part of
the Assets of the Series Trust;
(b) (OTHER LOANS IN CBA TRUST): an Other Loan forms part of the CBA
Trust Assets; and
(c) (COLLATERAL SECURITY SECURES BOTH): a Collateral Security which
is part of the First Layer of Collateral Securities or a Mortgage
which secures the Mortgage Loan also secures the Other Loan,
then:
(d) (IF RELEVANT SELLER IS SERVICER): where the relevant Seller in
relation to the Mortgage Loan is the Servicer, the Servicer is
entitled to enforce that Collateral Security or Mortgage (as the
case may be) upon a default occurring in respect of the Other
Loan provided that the enforcement proceeds are paid to the
Trustee. Upon receipt of such proceeds the Trustee must:
(i) treat as Collections the amount of such proceeds as is
equal to all amounts outstanding under the relevant
Mortgage Loan; and
(ii) pay the excess (if any) of such proceeds to that Seller
(as beneficiary of the CBA Trust) in respect of amounts
outstanding under the Other Loan; or
(e) (IF RELEVANT SELLER IS NOT SERVICER): where the relevant Seller
in relation to a Mortgage Loan is not the Servicer, the Servicer
must enforce that Collateral Security or Mortgage (as the case
may be) upon receipt of a direction to do so from that Seller (as
beneficiary of the CBA Trust) which states that the relevant
Other Loan is in default. Upon receipt of the enforcement
proceeds in respect of that Collateral Security or Mortgage (as
the case may be) the Servicer must pay to the Trustee all such
proceeds and the Trustee must:
(i) treat as Collections the amount of such proceeds as is
equal to all amounts outstanding under the relevant
Mortgage Loan; and
(ii) pay the excess (if any) of such proceeds to that Seller
(as beneficiary of the CBA Trust) in respect of amounts
outstanding under the Other Loan.
7.4 TRUSTEE'S DUTIES
Subject to clauses 2.8(b), 2.9(b), 2.10 and 7.3, the Trustee is not
required to take any action in respect of an Other Loan or the Second
Layer of Collateral Securities or the balance of the Trustee's right,
title and interest in any Mortgage, First Layer of Collateral
Securities and Mortgage Receivables referred to in clause 7.2(b).
57
7.5 UPON REPAYMENT OF MORTGAGE LOAN TRUSTEE HOLDS FOR CBA TRUST
Subject to clause 7.6, if a Mortgage Loan has been repaid in full or is
treated as having been repaid in full pursuant to clause 16.20(b), and
the Mortgage Loan is not discharged, then, from the date of repayment
or treated repayment in full of the Mortgage Loan, automatically by
virtue of this Deed, and without the necessity for any further act or
instrument or other thing to be done or brought into existence:
(a) (TITLE NOT PERFECTED): if the Trustee has not perfected its legal
title to the Mortgage Loan, the Trustee's entire right, title and
interest in the Mortgage Loan and in the Mortgage Loan Rights in
relation to the Mortgage Loan then forming part of the Assets of
the Series Trust will be extinguished in favour of the relevant
Seller with respect to the Mortgage Loan with immediate effect;
or
(b) (TITLE PERFECTED): if the Trustee has perfected its legal title
to the Mortgage Loan, the Trustee will hold the benefit of its
right, title and interest in and to:
(i) the Mortgage Loan;
(ii) any Mortgages, and the First Layer of Collateral
Securities, held in respect of that Mortgage Loan;
(iii) any Mortgage Documents held in relation to that
Mortgage Loan; and
(iv) the Mortgage Receivables held in relation to that
Mortgage Loan,
as trustee of the CBA Trust.
7.6 APPLICATION WHERE 2 MORTGAGE LOANS
If the Mortgages, First Layer of Collateral Securities, Mortgage
Documents, and Mortgage Receivables referred to in clause 7.5 apply to
more than one Mortgage Loan forming part of the Assets of the Series
Trust, the holding of the Trustee's interest in such as trustee of the
CBA Trust occurs only upon repayment in full of all such Mortgage Loans
secured by such Mortgages, First Layer of Collateral Securities,
Mortgage Documents and Mortgage Receivables.
7.7 COSTS
Each Seller must pay to, or reimburse, the Trustee immediately on
demand for all costs and expenses including, without limitation, all
legal costs charged at the usual commercial rates of the relevant legal
services provider and any stamp duty and registration fees arising out
of, or necessarily incurred in connection with, the Trustee coming to
hold its right, title and interest in any Mortgage Loan Rights as part
of the CBA Trust Assets in relation to that Seller for the CBA Trust in
accordance with clause 7.5.
7.8 ALTERNATIVE STRUCTURE
The Trustee must co-operate with a Seller in transferring or holding
the relevant assets set out in clause 7.5 in any reasonable way other
than as set out in this clause 7 if to do so would materially reduce
the liability of that Seller to reimburse the Trustee for any of the
costs and expenses set out in clause 7.7 and provided that any proposal
pursuant to this clause is permitted in law and does not result in the
Trustee being exposed to the risk of personal liability unless the
Trustee is satisfied, in its absolute discretion, that that Seller will
be able to indemnify the Trustee in respect of such risk in accordance
with clause 2.15(a).
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8. DETERMINATIONS BY THE MANAGER
8.1 APPLICATIONS AND PAYMENTS ON DISTRIBUTION DATES
Prior to each Distribution Date, based on information provided by the
Servicer, the Manager must make all necessary determinations to enable
the Trustee to make the payments or allocations to be made by the
Trustee on that Distribution Date pursuant to this Deed (including, for
the first Distribution Date, the aggregate of the Accrued Interest
Adjustment) and must give to the Trustee a written direction by 11 am
(Sydney time) on the Business Day prior to each Distribution Date in
relation to the payments and allocations to be made on that
Distribution Date in accordance with this Deed.
8.2 INSUFFICIENT PRINCIPAL TO MEET SELLER ADVANCES
(a) (MANAGER MUST PREPARE XXXXXXX XXXXXX NOTICE): If on a
Determination Date the Manager determines that the amount by
which the aggregate of the Principal Collections, the Principal
Draw Reimbursement, the Principal Chargeoff Reimbursement and the
Other Principal Amounts for the Collection Period then ended
exceeds any Net Income Shortfall on that Determination Date is
insufficient to meet in full the Seller Advances referred to in
clause 10.3(a), the Manager must prepare and forward to the
Trustee no later than the close of business 3 Business Days prior
to the immediately following Distribution Date a drawdown notice
under and in accordance with the Standby Redraw Facility
Agreement requesting a drawing under the Standby Redraw Facility
for an amount equal to the lesser of the shortfall and the amount
which is available for drawing under the Standby Redraw Facility
(which notice must also specify the calculations used in
determining the drawing so requested).
(b) (TRUSTEE MUST EXECUTE AND SERVE STANDBY REDRAW NOTICE): If the
Trustee receives a drawdown notice from the Manager pursuant to
clause 8.2(a), the Trustee must promptly sign and serve the
drawdown notice on the Standby Redraw Facility Provider pursuant
to the Standby Redraw Facility Agreement requesting a drawing on
the immediately following Distribution Date.
8.3 GROSS INCOME SHORTFALL
(a) (MANAGER MUST PREPARE LIQUIDITY NOTICE): If on a Determination
Date there is a Gross Income Shortfall, the Manager must prepare
and forward to the Trustee no later than the close of business 3
Business Days prior to the immediately following Distribution
Date a drawdown notice under and in accordance with the Liquidity
Facility Agreement requesting a drawing under the Liquidity
Facility for an amount equal to the lesser of the Gross Income
Shortfall and the amount which is available for drawing under the
Liquidity Facility (which notice must also specify the
calculations used in determining the drawing so requested).
(b) (TRUSTEE MUST EXECUTE AND DELIVER LIQUIDITY NOTICE): If the
Trustee receives a drawdown notice from the Manager pursuant to
clause 8.3(a) then the Trustee must immediately sign and serve
the drawdown notice on the Liquidity Facility Provider pursuant
to the Liquidity Facility Agreement requesting a drawing on the
immediately following Distribution Date.
8.4 INSUFFICIENT PRINCIPAL TO MEET SELLER ADVANCES AND STANDBY REDRAW
FACILITY PRINCIPAL
If, in respect of a Determination Date, the Manager considers that the
aggregate of:
(a) (PRINCIPAL COLLECTIONS): the amount by which the aggregate of the
Principal Collections, the Principal Draw Reimbursement, the
Principal Chargeoff
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Reimbursement and the Other Principal Amounts for the Collection
Period ending on that Determination Date exceeds any Net Income
Shortfall on that Determination Date; and
(b) (STANDBY REDRAW FACILITY ADVANCE): the Standby Redraw Facility
Advance (if any) to be made on the immediately following
Distribution Date,
as estimated by the Manager are likely to be insufficient to meet in
full under clause 10.3 the aggregate of:
(c) (SELLER ADVANCES): the Seller Advances; and
(d) (STANDBY REDRAW FACILITY PRINCIPAL): the Standby Redraw Facility
Principal,
that the Manager estimates will be outstanding on that Determination
Date, the Manager may prepare and forward to the Trustee a notice
directing the Trustee to issue Redraw Bonds for a principal amount and
on an issue date (which must be no earlier than 5 Business Days from
the date of receipt of the notice by the Trustee) specified in the
notice. The Manager must not issue such a notice to the Trustee if the
Manager considers that the Stated Amount of the Redraw Bonds at the
immediately following Distribution Date (after including the proposed
issue of Redraw Bonds and taking into account any expected repayments
of principal on the Redraw Bonds pursuant to clause 10.5) will exceed
the Redraw Bond Principal Limit.
8.5 NETTING OF SELLER ADVANCES AND STANDBY REDRAW FACILITY ADVANCES
If whilst the Standby Redraw Facility Provider is CBA, the Standby
Redraw Facility Provider makes a Standby Redraw Facility Advance on a
Distribution Date by way of a book entry in its records pursuant to
clause 4.6 of the Standby Redraw Facility Agreement:
(a) (STANDBY REDRAW FACILITY ADVANCE TO BE TAKEN INTO ACCOUNT): the
amount of the Standby Redraw Facility Advance will be taken into
account for the purpose of the calculations to be made hereunder
on that Distribution Date and the immediately previous
Determination Date; and
(b) (CBA'S SELLER ADVANCES REDUCED): the amount of the then
outstanding Seller Advances made by CBA will be reduced by the
amount of such book entry on that Distribution Date, without the
Trustee needing to make the corresponding payment under clause
10.3(a).
8.6 CASH ADVANCE DEPOSIT
On each Determination Date the Manager will determine the amount (if
any) that has been received in the Collection Period just ended in
respect of interest that has been earned on the Collections Account and
which is attributable to the Cash Advance Deposit (if any) deposited in
the Collections Account and will instruct the Trustee to pay such
interest to the Liquidity Facility Provider on the immediately
following Distribution Date.
8.7 BREAK COSTS AND BREAK BENEFITS
(a) (APPLICATION OF CLAUSE): If the Trustee is party to a Fixed Rate
Swap:
(i) this clause 8.7 will apply (but otherwise shall be of
no effect); and
(ii) Break Costs will not be included in the definition of
Finance Charge Collections (except as set out in
clauses 8.7(c) and (d)) and Break Benefits will not be
included in the definition of Expenses.
(b) (PAYMENT OF BREAK BENEFITS): The Servicer must pay any Break
Benefits payable to Borrowers during a Collection Period from the
Finance Charge Collections
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received during that Collection Period and not yet deposited by
the Servicer in the Collections Account in accordance with clause
22. If the Finance Charge Collections held by the Servicer and
not deposited in the Collections Account are insufficient to pay
any Break Benefits due to be paid to a Borrower, the Servicer
must direct the Trustee, and upon such direction the Trustee must
pay to the Borrower, such Break Benefits from the Finance Charge
Collections in the Collections Account received during that
Collection Period to the extent of the shortfall.
(c) (NET BREAK PAYMENT): If there is a Net Break Payment on a
Determination Date, the Trustee must:
(i) pay the Break Costs in relation to the immediately
preceding Collection Period to the extent of the Net
Break Payment to the Interest Rate Swap Provider on the
immediately following Distribution Date in accordance
with the Interest Rate Swap Agreement; and
(ii) treat the balance of the Break Costs in relation to the
immediately preceding Collection Period as Finance
Charge Collections in relation to that Collection
Period.
(d) (NET BREAK RECEIPT): If there is a Net Break Receipt on a
Determination Date, the Trustee must:
(i) treat the Break Costs in relation to the immediately
preceding Collection Period as Finance Charge
Collections in relation to that Collection Period; and
(ii) treat any amount received from the Interest Rate Swap
Provider on the immediately following Distribution Date
in respect of the Net Break Receipt in accordance with
the Interest Rate Swap Agreement as an Available Income
Amount with respect to that Distribution Date.
(e) (MANAGER TO DETERMINE): The Manager must determine on each
Determination Date the Net Break Payment or Net Break Receipt, as
the case may be, and must direct the Trustee as to the payments
to be made by the Trustee, if any, in accordance with this clause
8.7.
8.8 INTEREST RATE SWAP PROVIDER DEPOSIT
On each Determination Date the Manager will determine the amount (if
any) that has been received in the Collection Period just ended in
respect of interest that has been earned on the Collections Account or
any other account held by the Trustee as trustee of the Series Trust
and which is attributable to the Interest Rate Swap Provider Deposit
(if any) deposited in the Collections Account or that other account and
will instruct the Trustee to pay such interest to the Interest Rate
Swap Provider on the immediately following Distribution Date.
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9. CHARGEOFFS
9.1 ALLOCATION OF PRINCIPAL CHARGEOFFS
If there is a Principal Xxxxxxxxx on a Determination Date prior to the
enforcement of the Charge, it will be allocated in the following order:
(a) (CLASS B NOTES): first, amongst the Class B Notes equally in
reduction of the Stated Amount of the Class B Notes until the
Stated Amount of the Class B Notes is reduced to zero; and
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(b) (OTHER SECURITIES AND XXXXXXX XXXXXX FACILITY PROVIDER):
secondly, any balance of the Principal Xxxxxxxxx remaining after
the application of clause 9.1(a) will be allocated as follows:
(i) the Class A-1 Chargeoff Percentage of such balance
rateably amongst the Class A-1 Notes according to the
Stated Amount of each Class A-1 Note;
(ii) the Class A-2 Chargeoff Percentage of such balance
rateably amongst the Class A-2 Notes according to the
Stated Amount of each Class A-2 Note;
(iii) the Redraw Bond Chargeoff Percentage of such balance
rateably amongst the Redraw Bonds according to the
Stated Amount of each Redraw Bond; and
(iv) the Standby Redraw Chargeoff Percentage of such balance
to the Standby Redraw Facility Principal,
in reduction, respectively, of the Stated Amount of the
Class A-1 Notes (in accordance with the US Dollar Note
Conditions), the Stated Amount of the Class A-2 Notes,
the Stated Amount of the Redraw Bonds and the Standby
Redraw Facility Principal, until such Stated Amounts and
the Standby Redraw Facility Principal are reduced to
zero.
A reduction in the Stated Amount of a Security and the Standby Redraw
Facility Principal in accordance with the foregoing will take effect on
the immediately following Distribution Date by the amount so allocated.
9.2 ALLOCATION OF PRINCIPAL CHARGEOFF REIMBURSEMENTS
If there is a Principal Chargeoff Reimbursement on a Determination
Date, then it will be allocated in the following order:
(a) (CLASS A NOTES, REDRAW BONDS AND STANDBY REDRAW FACILITY
PROVIDER): first, pro-rata (according to, in the case of the
Class A-1 Notes, the A$ Equivalent of the aggregate Unreimbursed
Principal Chargeoffs on that Determination Date, in the case of
the Class A-2 Notes and the Redraw Bonds, their respective
aggregate Unreimbursed Principal Chargeoffs on that Determination
Date and, in the case of the Standby Redraw Facility Principal,
its Unreimbursed Principal Chargeoffs on that Determination Date)
as follows:
(i) rateably amongst the Class A-1 Notes according to the
Unreimbursed Principal Chargeoff of each Class A-1
Note;
(ii) rateably amongst the Class A-2 Notes according to the
Unreimbursed Principal Chargeoff of each Class A-2
Note;
(iii) rateably amongst the Redraw Bonds according to the
Unreimbursed Principal Chargeoff of each Redraw Bond;
and
(iv) the Standby Redraw Facility Principal,
in reduction of, respectively, the amount of the Unreimbursed
Principal Chargeoffs on the Class A-1 Notes (in accordance with
the US Dollar Note Conditions) and the Unreimbursed Principal
Chargeoffs on the Class A-2 Notes, the Redraw Bonds and the
Standby Redraw Facility Principal, until such Unreimbursed
Principal Chargeoffs are reduced to zero; and
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(b) (CLASS B NOTES): secondly, equally amongst the Class B Notes
until the amount of Unreimbursed Chargeoffs on the Class B Notes
are reduced to zero.
A reduction of an Unreimbursed Principal Chargeoff in accordance with
the foregoing will take effect on the immediately following
Distribution Date by the amount so allocated.
9.3 LOSS RECOVERIES
If the Servicer receives or collects any Loss Recoveries in respect of
a Mortgage Loan for which payment has already been received by or on
behalf of the Trustee from a Support Facility Provider, then the
Servicer must pay such amount to the relevant Support Facility Provider
pursuant to the relevant Support Facility. Where the Trustee is
entitled to retain any such Loss Recoveries pursuant to such Support
Facility, or receives any Loss Recoveries from the Support Facility
Provider, then such amounts will be included in Other Income Amounts.
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10. PAYMENTS ON DISTRIBUTION DATES BY TRUSTEE
10.1 PAYMENT OF ACCRUED INTEREST ADJUSTMENT ON FIRST DISTRIBUTION DATE
On the first Distribution Date, the Trustee must, in accordance with
the directions given to it by the Manager pursuant to clause 8.1, pay
from the Collections Account to each Seller the aggregate of the
Accrued Interest Adjustment for all Mortgage Loans then forming part of
the Assets of the Series Trust and which were assigned to the Trustee
by that Seller. Such aggregate sum will, for the purposes of making the
determinations pursuant to clause 8.1 on the first Determination Date,
be deducted by the Manager from the Available Income Amount in respect
of the first Distribution Date.
10.2 APPLICATION OF THE AVAILABLE INCOME AMOUNT ON EACH DISTRIBUTION DATE
On each Distribution Date prior to the enforcement of the Charge, the
Trustee must, in accordance with the directions given by the Manager
pursuant to clause 8.1, apply the Available Income Amount in respect of
that Distribution Date in making the following allocations, and the
following payments from the Collections Account, in the following order
of priority:
(a) (TAXES): first, in or towards payment of or provision for Taxes
in relation to the Series Trust (including Government Charges
paid by the Servicer on behalf of the Trustee);
(b) (TRUSTEE'S FEE): secondly, in or towards payment to the Trustee
of the Trustee's Fee due on that Distribution Date;
(c) (SECURITY TRUSTEE'S FEE): thirdly, in or towards payment to the
Security Trustee of the Security Trustee's Fee due on that
Distribution Date;
(d) (MANAGEMENT FEE): fourthly, in or towards payment to the Manager
of the Management Fee due on that Distribution Date;
(e) (SERVICER'S FEE): fifthly, in or towards payment to the Servicer
of the Servicer's Fee due on that Distribution Date;
(f) (LIQUIDITY FACILITY COMMITMENT FEE): sixthly, in or towards
payment to the Liquidity Facility Provider of the Liquidity
Facility Commitment Fee due on that Distribution Date;
(g) (SUPPORT FACILITIES): seventhly, in or towards payment rateably
of any net amounts due to a Support Facility Provider under a
Support Facility on that Distribution
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Date, but excluding any amounts specified in paragraph (f) above,
paragraphs (i), (j) and (k)(i) & (iv) below and clauses 9.3 and
10.3(c);
(h) (EXPENSES): eighthly, in or towards payment of or provision for
all Expenses in respect of the Accrual Period ending on that
Distribution Date;
(i) (STANDBY REDRAW FACILITY COMMITMENT FEE): ninthly, in or towards
payment to the Standby Redraw Facility Provider of the Standby
Redraw Facility Commitment Fee due on that Distribution Date;
(j) (LIQUIDITY FACILITY ADVANCE): tenthly, in or towards repayment to
the Liquidity Facility Provider of any outstanding Liquidity
Facility Advance made on or prior to the immediately previous
Distribution Date;
(k) (CLASS A NOTE, REDRAW BOND AND STANDBY REDRAW FACILITY INTEREST):
eleventhly, subject to clause 10.8, in payment rateably as
follows:
(i) to the Currency Swap Provider in accordance with clause
10.4 of the A$ Class A-1 Interest Amounts, and any A$
Class A-1 Unpaid Interest Amounts, in relation to that
Distribution Date;
(ii) rateably, according to the sum of the Interest Amounts
for the Accrual Period ending on that Distribution
Date, and the Unpaid Interest Amounts (if any), for
each Class A-2 Note, amongst the Class A-2 Notes of the
aggregate of the Interest Amounts in relation to the
Class A-2 Notes for the Accrual Period ending on that
Distribution Date and any then Unpaid Interest Amounts
in relation to the Class A-2 Notes;
(iii) rateably, according to the sum of the Interest Amounts
for the Accrual Period ending on that Distribution
Date, and the Unpaid Interest Amounts (if any), for
each Redraw Bond, amongst the Redraw Bonds of the
aggregate of the Interest Amounts in relation to the
Redraw Bonds for the Accrual Period ending on that
Distribution Date and any then Unpaid Interest Amounts
in relation to the Redraw Bonds; and
(iv) to the Standby Redraw Facility Provider of the
aggregate of the Standby Redraw Facility Interest (if
any) due on that Distribution Date and any Standby
Redraw Facility Interest remaining unpaid from prior
Distribution Dates;
(l) (CLASS B INTEREST): twelfthly, subject to clause 10.8, in payment
equally amongst the Class B Notes of the aggregate of the
Interest Amounts in relation to the Class B Notes for the Accrual
Period ending on that Distribution Date and any then Unpaid
Interest Amounts in relation to the Class B Notes;
(m) (PRINCIPAL DRAW REIMBURSEMENT): thirteenthly, subject to clause
10.8, the amount of any Principal Draw Reimbursement for the
immediately preceding Determination Date is to be allocated to
the Available Principal Amount to be paid in accordance with
clause 10.3;
(n) (PRINCIPAL CHARGEOFF REIMBURSEMENT): fourteenthly, subject to
clause 10.8, the amount of the Principal Chargeoff Reimbursement
for the immediately preceding Determination Date is to be
allocated to the Available Principal Amount to be paid in
accordance with clause 10.3;
(o) (ARRANGING FEE): fifthteenthly, subject to clause 10.8, in
payment to the Manager of the Arranging Fee due on that
Distribution Date and any Arranging Fee outstanding from any
prior Distribution Date; and
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(p) (DISTRIBUTION): sixthteenthly, subject to clause 10.8, the
balance in payment to the Income Unitholder, to be dealt with,
and held by, the Income Unitholder pursuant to clause 11.2.
The obligations of the Trustee to make any payment or allocation under
each of the above paragraphs is limited in each case to the balance of
the Available Income Amount (if any) available after application in
accordance with the preceding paragraph or paragraphs.
10.3 APPLICATION OF THE AVAILABLE PRINCIPAL AMOUNT ON EACH DISTRIBUTION DATE
On each Distribution Date prior to the enforcement of the Charge, the
Trustee must in accordance with the directions given by the Manager
pursuant to clause 8.1, apply the Available Principal Amount in respect
of that Distribution Date in making the following allocations and the
following payments from the Collections Account, in the following order
of priority:
(a) (SELLER ADVANCES): first, subject to clause 8.5, in or towards
repayment rateably to each Seller on the next Distribution Date
of any Seller Advances made by that Seller during or prior to the
Collection Period just ended and which have not previously been
repaid in accordance with this clause 10.3(a);
(b) (PRINCIPAL DRAWS): secondly, to be applied as a Principal Draw in
relation to the immediately preceding Determination Date and
allocated to the Available Income Amount to be paid in accordance
with clause 10.2;
(c) (STANDBY REDRAW FACILITY PRINCIPAL): thirdly, in or towards
repayment to the Standby Redraw Facility Provider of any Standby
Redraw Facility Principal;
(d) (SECURITYHOLDERS): fourthly, subject to clause 10.8, in
accordance with clause 10.5; and
(e) (CAPITAL UNITHOLDERS): fifthly, subject to clause 10.8, the
balance (if any) is to be paid:
(i) first, to the Class A Capital Unitholder up to a
maximum amount (in total for all such distributions) of
A$1,000; and
(ii) second, to the Class B Capital Unitholder.
The obligations of the Trustee to make any payment under each of the
above paragraphs is limited in each case to the balance of the
Available Principal Amount (if any) available after application in
accordance with the previous paragraph or paragraphs.
10.4 PAYMENT OF INTEREST ON THE CLASS A-1 NOTES
On each Distribution Date that any amount is payable to the Currency
Swap Provider pursuant to clause 10.2(k)(i), the Trustee must comply
with Condition 6.9 of the US Dollar Note Conditions in relation to the
Currency Swap Provider.
10.5 REPAYMENT OF PRINCIPAL ON THE SECURITIES
On each Distribution Date, prior to the enforcement of the Charge, the
Trustee must pay the amount available for distribution on that
Distribution Date in accordance with clause 10.3(d) in the following
order:
(a) (REDRAW BONDS): first, amongst the Redraw Bonds (if any) as a
repayment of principal on the Redraw Bonds in the following
order:
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(i) first, equally amongst those Redraw Bonds with the
earliest Issue Date until the Stated Amount of those
Redraw Bonds is reduced to zero;
(ii) secondly, equally amongst those Redraw Bonds with the
next earliest Issue Date (if any) until the Stated
Amount of those Redraw Bonds is reduced to zero; and
(iii) subsequently, equally amongst each subsequent group of
Redraw Bonds (if any) with the same Issue Date until
the Stated Amount of those Redraw Bonds is reduced to
zero on the basis that a Redraw Bond will not be
entitled to any payment in respect of principal under
this clause 10.5 until the Stated Amount of all Redraw
Bonds with an earlier Issue Date than that Redraw Bond
has been reduced to zero;
(b) (CLASS A NOTES): secondly, subject to clause 10.8, the lesser of
the balance (if any) of the amount available for distribution and
the Class A Principal Distribution for that Distribution Date
(such lesser amount being the "CLASS A AVAILABLE PRINCIPAL
DISTRIBUTION") rateably as follows:
(i) the Class A-1 Percentage of the Class A Available
Principal Distribution to the Currency Swap Provider in
accordance with clause 10.6; and
(ii) the Class A-2 Percentage of the Class A Available
Principal Distribution amongst the Class A-2 Notes in
the following order:
A. first, equally amongst the Class A-2 Tranche 1
Notes until the Stated Amount of the Class A-2
Tranche 1 Notes is reduced to zero; and
B. secondly, equally amongst the Class A-2 Tranche 2
Notes until the Stated Amount of the Class A-2
Tranche 2 Notes is reduced to zero,
until the Stated Amount of the Class A Notes is reduced to zero;
and
(c) (CLASS B NOTES): thirdly, subject to clause 10.8, the balance (if
any) of the amount available for distribution under this clause
10.5 equally amongst the Class B Notes until the Stated Amount of
the Class B Notes is reduced to zero.
10.6 REPAYMENT OF PRINCIPAL ON THE CLASS A-1 NOTES
On each Distribution Date that any amount is payable to the Currency
Swap Provider pursuant to clause 10.5(b)(i), the Trustee must comply
with Condition 7.2 of the US Dollar Note Conditions in relation to the
Currency Swap Provider.
10.7 INABILITY TO COMPLY WITH ORDER OF PRIORITY
The inability of the Trustee or the Manager to comply with any order of
priority of payment specified in this Deed due to any law relating to
the rights of creditors generally or specifically does not constitute a
Trustee Default or a Manager Default and does not entitle any
Securityholder or Unitholder to take any action against the Trustee or
the Manager. Nothing in clause 8 or this clause 10 requires the Trustee
or the Manager to breach any Transaction Document or to fail to comply
with any applicable law.
10.8 NO PAYMENT IN RESPECT OF OBLIGATIONS RANKING EQUALLY OR AFTER CLASS A-1
NOTES IF NO PAYMENT MADE TO CURRENCY SWAP PROVIDER
If on a given Distribution Date for whatever reason payment is not made
in full to the Currency Swap Provider in accordance with clauses
10.2(k)(i) and 10.5(b)(i), the Trustee must
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not make any payment or allocation (as the case may be) pursuant to
clauses 10.2(k)-(p) (inclusive), 10.3(d) & (e) or 10.5(b) & (c) on that
Distribution Date or thereafter until and unless all amounts
outstanding under clauses 10.2(k)(i) and 10.5(b)(i) are paid to the
Currency Swap Provider (or other arrangements are entered into) that
enables all amounts of interest and principal due in respect of the
Class A-1 Notes to be paid or repaid to the Class A-1 Noteholders in
full in US dollars in accordance with the US Dollar Note Conditions.
10.9 PAYMENTS IN RESPECT OF A$ SECURITIES
All payments in respect of an A$ Security on a Distribution Date
referred to in this Deed must be made to the person recorded in the
Register as the holder of that A$ Security as at close of business on
the Business Day immediately preceding that Distribution Date.
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11. NET TAX INCOME OF THE SERIES TRUST
11.1 NET TAX INCOME OF THE SERIES TRUST ABSOLUTELY VESTED IN THE INCOME
UNITHOLDER
The Net Tax Income of the Series Trust for each Financial Year will be
absolutely vested in the Income Unitholder and the Income Unitholder
will have an absolute vested interest in the Net Tax Income of the
Series Trust for that Financial Year. To the extent that such balance
has not actually been paid to the Income Unitholder pursuant to clause
10.2(p) during that Financial Year, it will constitute an amount
payable by the Trustee to the Income Unitholder to be satisfied only
from Excess Distributions otherwise payable to the Income Unitholder in
accordance with clause 10.2(p) on the Distribution Dates following the
close of the Financial Year. If in the last Financial Year of the
Series Trust, such amount (if any) in respect of the previous Financial
Year has not been satisfied from the Excess Distributions otherwise
payable to the Income Unitholder in accordance with clause 10.2(p) on
the Distribution Dates in the last Financial Year, the shortfall, plus
any such amount for the last Financial Year, will be satisfied in full
from, and only by, the payment of the excess funds (if any) by the
Trustee to the Income Unitholder pursuant to clause 26.12.
11.2 EXCESS DISTRIBUTION
(a) (DEPOSIT WITH THE INCOME UNITHOLDER): A payment to the Income
Unitholder of the Excess Distribution pursuant to clause 10.2(p)
will be held by the Income Unitholder as a deposit by the Trustee
with the Income Unitholder and will be dealt with in accordance
with this clause 11.2.
(b) (APPLICATION TOWARDS NET TAX INCOME): At the end of each
Financial Year, the Income Unitholder will, and will be entitled
to, deduct from so much of the deposit standing to the credit of
the Trustee pursuant to clause 11.2(a)
(i) first, the Net Tax Income of the Series Trust for that
Financial Year absolutely vested in the Income
Unitholder for that Financial Year pursuant to clause
11.1
(ii) secondly, an amount not exceeding the then Subscription
Amount notified by the Manager to the Trustee and the
Income Unitholder that the Income Unitholder is
entitled to deduct as a return of capital in the Series
Trust represented by the Income Unit.
To the extent that there is any surplus in the amount so
deposited over the aggregated Net Tax Income vested pursuant to
clause 11.2(b)(i) or paid as a return of capital pursuant to
clause 11.2(b)(ii), in a Financial Year, after the capital in the
Series Trust has been reduced, the surplus will be dealt with in
accordance with this clause 11.2(b) in the succeeding Financial
Year.
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12. EARLY TERMINATION OF SWAPS
12.1 EARLY TERMINATION OF A SWAP
If at any time a Fixed Rate Swap terminates prior to its scheduled
termination date, or the Basis Swap terminates, in each case whilst
there are Securities which have not then been redeemed (or deemed to be
redeemed) in full or the Class A-1 Currency Swap terminates whilst
there are Class A-1 Notes which have not then been redeemed (or deemed
to be redeemed) in full, the Manager and the Trustee must:
(a) (ENTER INTO REPLACEMENT SWAP): in the case of the Trustee, to the
extent that the Manager has made appropriate arrangements to
ensure that it is practicable enter into one or more swaps which
replace the terminated Swap on terms and with a counterparty in
respect of which each Rating Agency issues a Rating Affirmation
Notice and, in the case of the Manager, use all reasonable
endeavours to make appropriate arrangements to ensure that it is
practicable for the Trustee to enter into one or more such swaps
not later than 5 Business Days after it becomes aware of the
termination of such terminated Swap;
(b) (TERMINATION OF BASIS SWAP): in the case of a termination of the
Basis Swap (but without limiting the operation of paragraphs (a)
and (c) in relation to the termination of the Basis Swap), as
soon as the Trustee becomes actually aware of the termination,
direct the Servicer to ensure compliance with clause 12.2; or
(c) (OTHER ARRANGEMENTS): enter into such other arrangements in
respect of which each Rating Agency issues a Rating Affirmation
Notice.
12.2 SERVICER TO ADJUST MORTGAGE INTEREST SAVER ACCOUNTS AND MORTGAGE RATES
IF BASIS SWAP TERMINATED
If at any time the Basis Swap terminates whilst there are any
Securities which have not been redeemed (or deemed to be redeemed) in
full and it is directed by the Manager and the Trustee pursuant to
clause 12.1(b) to comply with this clause 12.2, the Servicer must, in
respect of each Accrual Period commencing thereafter until the date on
which clause 12.1(a) or (c) may be implemented:
(a) (REDUCE MORTGAGE INTEREST SAVER ACCOUNTS): reduce, except as may
be provided by applicable laws (including the Consumer Credit
Code), any Binding Provision and any Competent Authority, the
rates at which the interest off-set benefits under the Mortgage
Interest Saver Accounts are calculated to rates which produce an
amount of income at least equal to the lesser of:
(i) the aggregate amount of income that would be produced
if the rates at which the interest off-set benefits
under the Mortgage Interest Saver Accounts are
calculated were reduced to zero; and
(ii) the amount of income which is sufficient, when
aggregated with the amount of income produced by the
rate of interest on the Mortgage Loans, and the income
from Authorised Short-Term Investments, then forming
part of the Assets of the Series Trust to ensure that
the Trustee will have available to it sufficient
Finance Charge Collections and Other Income Amounts to
enable it to comply with its obligations under the
Transaction Documents as they fall due; and
(b) (SET THRESHOLD RATE): if the amount of income produced pursuant
to clause 12.2(a) is not sufficient, when aggregated with the
amount of income produced by the rate of interest payable on the
Mortgage Loans, and the income from Authorised Short-Term
Investments, then forming part of the Assets of the Series Trust
to
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ensure that the Trustee will have sufficient Finance Charge
Collections and Other Income Amounts to enable it to meet its
obligations under the Transaction Documents as they fall due,
ensure, except as may be provided by applicable law (including
the Consumer Credit Code), any Binding Provision and any
Competent Authority, that the weighted average Mortgage Rate
applicable to the Mortgage Loans forming part of the Assets of
the Series Trust on each Rate Set Date is not lower than the
Threshold Rate determined by the Manager on that Rate Set Date
pursuant to clause 12.3 and will promptly notify the Borrower in
relation to each Mortgage Loan of any change where required in
accordance with the relevant Mortgage or Loan Agreement.
12.3 DETERMINATION OF THRESHOLD RATE
While clause 12.2(b) applies, the Manager will, on each Rate Set Date,
determine the Threshold Rate for the Accrual Period commencing on that
Rate Set Date and:
(a) (NOTIFY SERVICER): in the case of Mortgage Loans the assignment
of which to the Trustee has not been perfected by the giving of
notice to the relevant Borrower, promptly notify on that date the
Servicer of such rate; and
(b) (NOTIFY TRUSTEE AND SERVICER): in the case of Mortgage Loans the
assignment of which has been so perfected, promptly notify on
that date the Trustee and the Servicer of such rate.
12.4 TRUSTEE TO SET MORTGAGE RATE
If:
(a) (SERVICER DEFAULT): a failure by the Servicer to comply with
clause 12.2 results in the occurrence of the Servicer Default
referred to in clause 18.1(f); and
(b) (NO SUBSTITUTE SERVICER APPOINTED): a Substitute Servicer is not
appointed immediately pursuant to clause 18 of this Deed,
the Manager must immediately direct the Trustee (in its capacity as
Substitute Servicer pursuant to clause 18 of this Deed), and the
Trustee must as soon as practicable thereafter comply with such
direction, to adjust or maintain the Mortgage Rate (as the case may be)
in accordance with clause 12.2 until such time as a Substitute Servicer
is appointed in accordance with the Trust Deed.
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13. REPRESENTATIONS AND WARRANTIES REGARDING MORTGAGE LOANS
13.1 SELLER'S REPRESENTATIONS AND WARRANTIES
As at the Cut-Off Date, CBA represents and warrants, for itself and for
Homepath, to the Trustee in respect of each Mortgage Loan that:
(a) (MORTGAGE COMPLIED WITH LAWS): at the time that the relevant
Seller entered into the Mortgage relating to the Mortgage Loan,
the Mortgage complied in all material respects with applicable
laws (including applicable Consumer Credit Code laws);
(b) (GOOD FAITH): at the time that the relevant Seller entered into
the Mortgage Loan, it did so in good faith;
(c) (ORDINARY COURSE OF BUSINESS): at the time that the relevant
Seller entered into the Mortgage Loan, the Mortgage Loan was
originated in the ordinary course of that Seller's business and
since that time that Seller has dealt with that Mortgage Loan in
accordance with the Servicing Guidelines and the Servicing
Standards;
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(d) (FIRST RANKING SECURITY): at the time that the relevant Seller
entered into the Mortgage Loan, all necessary steps were taken in
respect of a Mortgage created in connection with the Mortgage
Loan so that the Mortgage complied with the legal requirements
applicable at that time to ensure that the Mortgage was a
first-ranking mortgage (subject to any statutory charges, any
prior charges of a body corporate, service company or equivalent,
whether registered or otherwise, and any other prior Security
Interests which do not prevent the Mortgage from being considered
to be a first-ranking mortgage in accordance with the Servicing
Standards) secured over Land in the jurisdiction in which the
relevant Land is located subject to stamping and registration of
the relevant Mortgage in due course;
(e) (PRIORITY ARRANGEMENTS): where there is a second or other
mortgage in existence over Land the subject of a Mortgage in
relation to the Mortgage Loan and the relevant Seller is not the
mortgagee of that second or other mortgage, that Seller has
ensured (by way of a priority agreement with the subsequent
mortgagee or otherwise) that the Mortgage will rank ahead in
priority to the second or other mortgage on enforcement for an
amount not less than the principal amount (plus accrued but
unpaid interest) outstanding on the Mortgage Loan plus such extra
amount determined in accordance with the Servicing Guidelines;
(f) (BORROWER NOT INSOLVENT): at the time that the Mortgage Loan was
approved, the relevant Seller had not received any notice of the
insolvency or the bankruptcy of the corresponding Borrowers or
that the corresponding Borrowers did not have the legal capacity
to enter into the corresponding Mortgage;
(g) (SELLER SOLE LEGAL AND BENEFICIAL OWNER): the relevant Seller is
the sole legal and beneficial owner of the Mortgage Loan and the
related Mortgages and First Layer of Collateral Securities (other
than the Insurance Policies) and to its knowledge, subject to
clause 13.1(d), no prior ranking Security Interest exists in
relation to its right, title and interest in that Mortgage Loan
and the related Mortgages and First Layer of Collateral
Securities;
(h) (DUE STAMPING): each of the Mortgage Documents (other than the
Insurance Policies in respect of Land) relating to the Mortgage
Loan which is required to be stamped with stamp duty has been
duly stamped;
(i) (MORTGAGE LOAN NOT DISCHARGED): the Mortgage Loan has not been
satisfied, cancelled, discharged or rescinded and the property
relating to each relevant Mortgage has not been released from the
security of that Mortgage;
(j) (HOLDS ALL DOCUMENTS NECESSARY TO ENFORCE): the relevant Seller
holds, in accordance with the Servicing Standards, all documents
which, pursuant to the Servicing Standards, it should hold to
enforce the provisions of, and the security created by, the
corresponding Mortgage and the First Layer of Collateral
Securities;
(k) (TERMS UNQUALIFIED): other than the relevant Mortgage Documents,
there are no documents entered into between the relevant Seller
and the Borrower or any other relevant party in relation to the
Mortgage Loan which would qualify or vary the terms of the
Mortgage Loan except as permitted by the Servicing Standards
(including any variations of a Mortgage Loan which may be made by
notice to the Borrower from that Seller) and except in relation
to CBA, any documentation relating to any corresponding Mortgage
Interest Saver Account;
(l) (NO NOTICE OF SECURITY INTERESTS): other than in respect of
priorities granted by statute, the relevant Seller has not
received notice from any person that it claims to have a Security
Interest ranking in priority to or equal with the Security
Interest held by that Seller and constituted by any corresponding
Mortgage;
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(m) (LVR NOT EXCEEDED): the relevant Seller is not aware of any
restrictive covenants, licences or leases existing in respect of
freehold Land the subject of any corresponding Mortgage which
would reduce the value of the Mortgage over such Land such that
the Loan to Value Ratio determined as at the Cut-Off Date in
respect of the Mortgage Loan would exceed 95% (but retaining for
this purpose the original "V" for the Mortgage Loan under the
definition of "Loan to Value Ratio" in clause 1.1);
(n) (MORTGAGE INSURANCE POLICIES): the Mortgage Loan is, or will be
on and from the Closing Date, insured under a Mortgage Insurance
Policy;
(o) (SUPPORT FACILITY REQUIREMENTS): the relevant Seller has complied
with all material requirements of each Support Facility relating
to the Mortgage Loan, except as otherwise permitted by the
corresponding Support Facility Provider;
(p) (ALL LICENCES AND CONSENTS): the relevant Seller holds all
consents, licences, approvals, authorisations and exemptions from
any Governmental Agency required as at the Cut-Off Date for, or
in connection with, performance and enforceability in respect of
the Mortgage Loan which, in accordance with the Servicing
Standards, it should hold in relation to the Mortgage Loan as at
the Cut-Off Date;
(q) (ELIGIBILITY CRITERIA): the Mortgage Loan complies with the
Eligibility Criteria as at the Cut-Off Date;
(r) (INTEREST RATE MAY BE VARIED): except in respect of a Mortgage
Loan subject to a fixed rate of interest (or a rate of interest
which can be converted into a fixed rate of interest or a fixed
margin relative to a benchmark) and except as may be provided by
applicable laws (including the Consumer Credit Code), any Binding
Provision or any Competent Authority or as may be provided in the
corresponding Mortgage Documents, the interest rate payable on
the Mortgage Loan is not subject to any limitation and no
consent, additional memoranda or other writing is required from
the relevant Borrower to give effect to a change in the interest
rate payable on the Mortgage Loan and, subject to the foregoing,
any change in the interest rate may be set at the sole discretion
of the Servicer and is effective no later than when notice is
given to the Borrower in accordance with the terms of the
relevant Mortgage Loan;
(s) (SELLER ENTITLED TO SELL): the relevant Seller is lawfully
entitled to sell and assign its interests in the corresponding
Mortgage Loan Rights and to transfer valid and beneficial title
to the Trustee free from all Security Interests (other than as
described in clause 13.1(d));
(t) (NO PREFERENCE): it is not aware of anything in relation to the
sale of the Mortgage Loan Rights to the Trustee which might cause
a court to hold that the sale constitutes an under-value
transfer, a fraudulent conveyance or a voidable preference under
any law relating to insolvency;
(u) (NO BREACH): the sale, transfer and assignment of the relevant
Seller's interest in the Mortgage Loan Rights will not constitute
a breach of its obligations or a default under any Security
Interest binding on that Seller or its property; and
(v) (WAIVER OF SET-OFF): the terms of the Loan Agreement relating to
the Mortgage Loan require payments in respect of the Mortgage
Loan to be made to the Seller free of set-off, unless prohibited
by law.
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13.2 TRUSTEE NEED NOT TEST WARRANTIES
The Trustee is under no obligation to test the truth of any warranty or
representation in clause 13.1 and is entitled to accept them
conclusively at all times (unless it is actually aware of any breach).
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14. BREACH OF REPRESENTATIONS AND WARRANTIES
14.1 MANAGER OR SELLER BECOMES AWARE OF INCORRECT REPRESENTATIONS OR
WARRANTIES
If the Manager or a Seller becomes actually aware that a material
representation or warranty made pursuant to clause 13.1 was incorrect
when given in respect of a Mortgage Loan assigned to the Trustee in
accordance with this Deed it must give notice to the other parties to
this Deed accompanied by sufficient details to identify the relevant
Mortgage Loan, and the reason the representation or warranty is
incorrect, within 5 Business Days of the Manager or that Seller (as the
case may be) becoming so actually aware. Neither the Manager nor the
Sellers are under any ongoing obligation whatsoever to conduct any
investigation in any manner whatsoever to determine if a representation
or warranty made pursuant to clause 13.1 is incorrect when given in
respect of a Mortgage Loan.
14.2 IF TRUSTEE BECOMES AWARE OF INCORRECT REPRESENTATIONS OR WARRANTIES
If the Trustee becomes actually aware that a material representation or
warranty made pursuant to clause 13.1 was incorrect when given in
respect of a Mortgage Loan assigned to the Trustee in accordance with
this Deed, it must give notice to the Manager and the Sellers,
accompanied by sufficient details to identify the relevant Mortgage
Loan and the Trustee's reasons for believing that the representation or
warranty is incorrect, within 5 Business Days of becoming so aware. The
Trustee is under no obligation whatsoever to conduct any investigation
in any manner whatsoever to determine if a representation or warranty
made pursuant to clause 13.1 is incorrect when given in respect of a
Mortgage Loan.
14.3 REMEDY OF DEFAULTS DURING PRESCRIBED PERIOD
If with respect to any Mortgage Loan:
(a) (REPRESENTATION OR WARRANTY INCORRECT): any representation or
warranty made by CBA pursuant to clause 13.1 is incorrect when
given; and
(b) (NOTICE GIVEN UNDER CLAUSE 14.1 OR 14.2):
(i) the Manager or a Seller gives a notice to the Trustee
pursuant to clause 14.1; or
(ii) the Sellers receive a notice from the Trustee (pursuant
to clause 14.2),
in either case, not later than 5 Business Days prior to the last
day of the Prescribed Period in relation to that Mortgage Loan,
then, if that breach is not remedied to the satisfaction of the
Trustee within 5 Business Days of the Seller or the Manager
giving or receiving the notice (as the case may be), the Mortgage
Loan Rights to which that Mortgage Loan relates will be held by
the Trustee in accordance with the terms of clause 14.4.
14.4 HOLDING FOR CBA TRUST DURING PRESCRIBED PERIOD
If, in relation to a Mortgage Loan during its Prescribed Period, any
breach referred to in a notice pursuant to clause 14.3 is not remedied
within the period specified in clause 14.3, then, on the expiry of the
time period for remedying the breach specified in clause 14.3
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automatically by virtue of this Deed, and without the necessity for any
further act or instrument or other thing being done or brought into
existence:
(a) (TITLE NOT PERFECTED): if the Trustee has not perfected its legal
title to the Mortgage Loan, the Trustee's entire right, title and
interest in the Mortgage Loan and in the Mortgage Loan Rights in
relation to that Mortgage Loan then forming part of the Assets of
the Series Trust will be extinguished in favour of the relevant
Seller with respect to the Mortgage Loan with immediate effect;
or
(b) (TITLE PERFECTED): if the Trustee has perfected its legal title
to the Mortgage Loan, the Trustee will hold the benefit of its
right, title and interest in and to:
(i) the Mortgage Loan;
(ii) any Mortgages, and the First Layer of Collateral
Securities, held in respect of that Mortgage Loan;
(iii) any Mortgage Documents held in relation to that
Mortgage Loan; and
(iv) the Mortgage Receivables held in relation to that
Mortgage Loan,
as trustee of the CBA Trust.
However, the Trustee is entitled to retain for the Series Trust all
Finance Charge Collections and Principal Collections received by the
Trustee pursuant to the relevant Mortgage Loan from the Cut-Off Date to
the date of delivery of the relevant notice in accordance with clause
14.3.
14.5 COSTS
The Sellers (jointly and severally) must pay to, or reimburse, the
Trustee for all costs and expenses (including, without limitation, any
legal costs charged at the usual commercial rates of the relevant legal
services provider and any stamp duty and registration fees) arising out
of or necessarily incurred in connection with the holding by the
Trustee of either Seller's interest in any Mortgage Loan Rights in
accordance with clause 14.4. Such payment (if any) must be made on the
same date as payments in respect of the relevant Mortgage Loan must be
made pursuant to clause 14.6.
14.6 PAYMENT
Subject to clause 14.8, CBA must pay (or procure payment) to the
Trustee, in respect of any Mortgage Loan Rights held for the CBA Trust
pursuant to clause 14.4, within 2 Business Days of the Mortgage Loan
Rights becoming so held for the CBA Trust an amount equal to the sum
of:
(a) (PRINCIPAL AMOUNT): the principal amount outstanding in respect
of the relevant Mortgage Loan (as recorded on the Mortgage Loan
System) as at the date of delivery of the relevant notice in
accordance with clause 14.3; and
(b) (ACCRUED INTEREST): the accrued but unpaid interest (as at the
date of delivery of the relevant notice pursuant to clause 14.3)
in respect of that Mortgage Loan.
14.7 LIMITATION ON RIGHTS OF TRUSTEE DURING PRESCRIBED PERIOD
The performance by CBA of its obligations under clause 14.6 is the sole
remedy available to the Trustee during the relevant Prescribed Period
in respect of a representation or warranty being incorrect when given
by CBA pursuant to clause 13.1 in respect of a Mortgage Loan. The
Trustee
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expressly acknowledges and agrees that during the Prescribed Period,
other than pursuant to clause 14.6, it has no remedy against either
Seller in respect of any representation or warranty being incorrect
when given by CBA pursuant to clause 13.1 and which the Trustee becomes
actually aware of prior to the last day on which the notices referred
to in clause 14.3(b) can be given.
14.8 LIMIT OF SELLER'S LIABILITY FOR MORTGAGE LOANS
Other than the rights of the Trustee pursuant to clause 14.6, neither
Seller has any liability for any loss or damage caused to the Trustee,
any Securityholder, any Creditor or any other person in respect of any
representation or warranty being incorrect when given by CBA pursuant
to clause 13.1 in respect of a Mortgage Loan in relation to which a
notice has been received or given pursuant to clause 14.3(b).
14.9 CBA'S LIABILITY FOR DAMAGES AFTER PRESCRIBED PERIOD
(a) (CBA TO INDEMNIFY THE TRUSTEE): CBA indemnifies the Trustee
(whether for its own account or for the account of
Securityholders) against any costs, damages or loss arising from
any representation or warranty being incorrect when made by CBA
pursuant to clause 13.1 in relation to a Mortgage Loan and which
is discovered by the Trustee after the last day on which a notice
under clause 14.3(b) can be given. The amount of such costs,
damages or loss is to be agreed between the Trustee and CBA.
Failing such agreement the amount is to be the amount determined
by CBA's external auditors. The amount cannot exceed the
principal amount outstanding in respect of the Mortgage Loan (as
recorded on the Mortgage Loan System) and any accrued but unpaid
interest and any outstanding fees in respect of the Mortgage Loan
(calculated at the time of agreement between the Trustee and CBA
or determination by CBA's external auditors, as the case may be).
(b) (CBA TO PAY DAMAGES WITHIN 7 BUSINESS DAYS): CBA must, within 7
Business Days of agreement or determination (as the case may be)
pursuant to clause 14.9(a), pay the relevant sum to the Trustee.
(c) (LIMITATION): The Trustee agrees and acknowledges that the
Trustee's sole remedy against CBA for breach of any
representation or warranty in clause 13.1 of which the Trustee
has actual notice on or after the last day on which the notice
referred to in clause 14.3(b) can be given is pursuant to clause
14.9(a); and
14.10 DISCHARGE OF OBLIGATIONS
The compliance by CBA with its obligations under clause 14.6 or clause
14.9 (as the case may be) will discharge all obligations of the Sellers
with respect to any breach of any representation or warranty made in
clause 13.1, regardless, in the case of clause 14.6, of whether such
breach is specified in the relevant notice referred to in clause
14.3(b) or not.
14.11 FRAUD
If the Trustee is unable to give a notice under clause 14.2 due to the
fraud, negligence or wilful default on the part of a Seller or any of
its officers, employees or agents, the Trustee may take such action
against that Seller as the Trustee will think fit.
14.12 TRUSTEE'S RELIANCE
CBA acknowledges that the Trustee has relied, and will if it accepts
the offer contained in a Sale Notice rely, on the representations and
warranties made or to be made by it pursuant to clause 13.1.
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15. SELLER'S GENERAL UNDERTAKINGS
15.1 GENERAL UNDERTAKINGS
Each Seller undertakes to the Trustee and the Manager that, on or after
the Closing Date it will, in addition to any of its other undertakings
under this Deed and in respect of those Mortgage Loan Rights which then
form part of the Assets of the Series Trust, at its own expense:
(a) (EXECUTE FURTHER INSTRUMENTS): following the occurrence of a
Perfection of Title Event and the request in writing of the
Trustee, promptly execute, acknowledge and deliver or cause to be
executed, acknowledged and delivered such amendments to this Deed
and such further instruments and take such further action as may
be reasonably necessary to preserve and protect the interest of
the Trustee in and the value of the Mortgage Loan Rights and
assist and co-operate with the Trustee, the Servicer and the
Manager in the Trustee obtaining legal title to the Mortgage Loan
Rights following a Perfection of Title Event;
(b) (GIVE NOTICE OF ADVERSE CLAIM): following receipt of actual
notice of a claim by a third party with respect to or a challenge
to the sale and/or assignment of any Mortgage Loan Right,
promptly:
(i) give notice in writing of such action or claim to the
Trustee and, if CBA is not the Servicer, the Servicer;
(ii) give notice in writing to the third party claimant of
the Trustee's beneficial ownership of the Mortgage Loan
Right, with a copy to the Trustee;
(iii) give notice in writing to the court (if any) in which
such claim was filed of the Trustee's interest in the
Mortgage Loan, with a copy to the Trustee; and
(iv) pay to, or reimburse, the Trustee immediately upon
demand all reasonable costs and expenses, including,
without limitation, any stamp duty and registration
fees, necessarily incurred by the Trustee in
maintaining its interest in the Mortgage Loan Rights or
with respect to giving any related notices to any
Borrower or other party to any Transaction Document;
(c) (ASSIST SERVICER): take such action as the Servicer may from time
to time reasonably request in connection with the management,
maintenance and enforcement of the Mortgage Loan Rights;
(d) (GIVE NOTICE OF SECURITY INTERESTS): promptly notify the Trustee
after it becomes aware of the creation or existence of any
Security Interest in relation to any Mortgage Loan Rights
competing with its interest or the interest of the Trustee in any
Mortgage Loan Rights;
(e) (RETAIN LEGAL TITLE TO MORTGAGE LOAN RIGHTS): subject to this
Deed, at all times ensure that it retains the legal ownership of
its Mortgage Loan Rights;
(f) (EXECUTE DOCUMENTS OF EXTINGUISHMENT): execute such documents and
instruments as will reasonably be requested by the Trustee to
effect the extinguishment of the Trustee's right, title and
interest in a Mortgage Loan Right pursuant to this Deed;
(g) (PAY COSTS OF EXTINGUISHMENT): pay to, or reimburse, the Trustee
immediately on demand for all reasonable costs and expenses
including, without limitation, any
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stamp duty and registration fees, arising out of or necessarily
incurred in connection with the extinguishment of the Trustee's
right, title and interest in a Mortgage Loan Right pursuant to
this Deed;
(h) (PERFORM OBLIGATIONS): duly and punctually perform each of its
obligations under each of the Mortgage Documents to which it is a
party, including any obligation to notify a Borrower of any
change in interest rates;
(i) (NOTIFY BREACHES): give notice to the Manager and to the Trustee
promptly upon becoming aware that any representation or warranty
made by CBA in clause 13.1 was incorrect when made;
(j) (SET-OFF): if a Seller exercises a right of set-off or
combination in respect of any Mortgage Loan, or if any right of
set-off is exercised against a Seller in respect of any Mortgage
Loan, pay to the Trustee, subject to any laws relating to
preferences (or the equivalent), the amount of, respectively, any
benefit accruing to that Seller as a result of the exercise of
its right of set-off or combination or the amount of any right of
set-off exercised against that Seller; and
(k) (SECURITY INTEREST): not grant any Security Interest over its
remaining right, title and interest in any Mortgage Loan Right.
15.2 SELLER NOT BOUND BY UNDERTAKING
If the Trustee has legal title to a Mortgage Loan Right which has been
assigned to it, the undertakings of the relevant Seller set out in
paragraphs (d), (e), (h), (i), (j) and (k) of clause 15.1 cease to
apply in respect of that Mortgage Loan Right.
15.3 TERMINATION OF MORTGAGE INTEREST SAVER ACCOUNTS
CBA will, following notice by the Trustee to the relevant Borrowers
pursuant to clause 24.3(b) after the occurrence of a Perfection of
Title Event, subject to any contractual notice requirements by which
CBA is bound, promptly withdraw all interest off-set benefits (if any)
that would otherwise be available to Borrowers under the terms of their
Mortgage Interest Saver Accounts.
15.4 GROSS UP FOR MORTGAGE INTEREST SAVER ACCOUNTS
CBA must pay the Servicer (as part of the Collections to be deposited
by the Servicer into the Collections Account in accordance with clause
22) any amount which would otherwise be received by the Servicer as a
Collection to the extent that the obligation to pay such amounts is
discharged or reduced by virtue of the terms of a Mortgage Interest
Saver Account. Such payment must be made on the day that the relevant
amount would otherwise have been received.
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16. SERVICING OF MORTGAGE LOAN RIGHTS
16.1 APPOINTMENT OF SERVICER
The Servicer is hereby appointed and agrees to act as the Servicer of
the Mortgage Loan Rights (with effect on and from the Cut-Off Date)
which, from time to time, form part of the Assets of the Series Trust,
on the terms and conditions of this Deed.
16.2 OBLIGATION TO ACT AS SERVICER UNTIL TERMINATION OF APPOINTMENT
The Servicer's duties and obligations contained in this Deed continue
until the date of the Servicer's retirement or removal as Servicer in
accordance with this Deed. 16.3 GENERAL SERVICING OBLIGATION
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16.3 GENERAL SERVICING OBLIGATION
The Servicer must ensure that the servicing of the Mortgage Loan Rights
which from time to time form part of the Assets of the Series Trust
(including the exercise of the express powers set out in this clause
16) is:
(a) (IN COMPLIANCE WITH THIS CLAUSE 16): in compliance with the
express limitations in this clause 16 (unless the prior written
consent of the Manager and the Trustee is obtained); and
(b) (IN ACCORDANCE WITH SERVICING STANDARDS): to the extent that this
clause 16 does not provide otherwise, in accordance with the
Servicing Standards.
16.4 POWER TO SERVICE
(a) (SERVICING FUNCTIONS VESTED IN SERVICER): The function of
servicing the Mortgage Loan Rights which at any given time form
part of the Assets of the Series Trust is vested in the Servicer
and it is entitled to undertake the servicing of those Mortgage
Loan Rights to the exclusion of the Trustee (other than when
acting as Servicer in accordance with clause 18) and the Manager.
(b) (EXPRESS POWERS): Without limiting its general powers, the
Servicer has the express powers set out in this clause 16 in
relation to the servicing of the Mortgage Loan Rights which at
any given time form part of the Assets of the Series Trust.
16.5 EXERCISE OF DISCRETIONS
The Servicer must, in servicing the Mortgage Loan Rights which then
form part of the Assets of the Series Trust, exercise its power and
discretions under this Deed, the Servicing Guidelines, and the relevant
Mortgage Documents to which it is a party in accordance with standards
and practices suitable for a prudent lender in the business of making
retail home loans.
16.6 SERVICER'S UNDERTAKING REGARDING MORTGAGE LOAN RIGHTS
The Servicer undertakes for the benefit of the Trustee, that it will
either directly (including by the exercise of its delegated powers
under this Deed and the Master Trust Deed from the Trustee and the
Sellers) or indirectly:
(a) (DULY STAMP): promptly ensure that any Mortgage Loan Document in
relation to a Mortgage Loan following any amendment,
consolidation, supplementation, novation or substitution of a
Mortgage, is duly stamped (if liable to stamp duty) and duly
registered (where registration is required) with the relevant
land titles office to constitute, in the case of a Mortgage, a
subsisting first-ranking registered mortgage over the relevant
property;
(b) (NOTIFY BREACHES OF SERVICING GUIDELINES): promptly notify the
Trustee and the Manager of any material breach of the Servicing
Guidelines by the Servicer in relation to the servicing of the
Mortgage Loan Rights then forming part of the Assets of the
Series Trust;
(c) (COMPLY WITH MORTGAGE INSURANCE POLICIES): notwithstanding any
other provision in this Deed, comply with its material
obligations under any Mortgage Insurance Policy in respect of
Mortgage Loans then forming part of the Assets of the Series
Trust;
(d) (EXECUTE DOCUMENTS): at the Trustee's request (acting on the
direction of the Manager), execute such further documents and do
anything else (including, without limitation, executing further
powers of attorney substantially in the form of
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Schedules 2, 3 and 4) that the Trustee reasonably requires to
ensure its ability to register Mortgage Transfers and the
registration of the Power of Attorney in each jurisdiction of
Australia;
(e) (UPSTAMP): if a Seller makes any further advance or otherwise
provides further financial accommodation to a Borrower, ensure
that any further stamp duty which becomes payable on the relevant
Mortgage Documents as a result of such further advance or
provision of financial accommodation is duly paid promptly in
accordance with any applicable laws;
(f) (MAKE CALCULATIONS): upon receipt of notice that a Borrower
desires to repay a Mortgage Loan in full, prepare and make
available documentation and make such calculations as are
necessary to enable the repayment of the Mortgage Loan and
discharge of the corresponding Mortgage and any Collateral
Securities (provided that the Servicer is not required to
discharge a Mortgage or Collateral Securities if they also secure
another Mortgage Loan or an Other Loan);
(g) (DELIVER MORTGAGE DOCUMENTS AND PERFORM OBLIGATIONS):
(i) if a Perfection of Title Event occurs, promptly deliver
to the Trustee (or procure delivery to the Trustee of)
all Mortgage Documents not otherwise provided to the
Trustee in accordance with clause 25 and (subject to
any restrictions imposed by any law) promptly provide
such evidence in its possession or control as may be
required by the Trustee to support any claim in respect
of any Mortgage Loan Rights; and
(ii) duly and punctually perform each of its material
obligations under this Deed and under each of the
Mortgage Documents and the Transaction Documents to
which it is a party;
(h) (PERFECTION OF TITLE EVENT): assist and co-operate with the
Trustee and the Manager in the Trustee obtaining legal title to
the Mortgage Loan Rights following a Perfection of Title Event;
(i) (WRITE-OFFS): where any material amount of a Mortgage Loan has
been written off as uncollectible in accordance with the
Servicing Guidelines and this Deed and GEMI, GEMICO or PMI, as
the case may be, has rejected a claim made by the Servicer under
the applicable Mortgage Insurance Policy, ensure that the
documentation relevant to that Mortgage Loan is examined to
determine whether the representations and warranties made
pursuant to clause 13.1 in respect of that Mortgage Loan were
correct at the Cut-Off Date. After such examination, the Servicer
must notify the Trustee if the representations and warranties
made pursuant to clause 13.1 were incorrect when given in respect
of that Mortgage Loan as at the Cut-Off Date (and if the Servicer
and the relevant Seller in relation to the Mortgage Loan are the
same person such notice will be deemed to be a notice given by
that Seller under clause 14.1, and must comply with that clause)
and if this is the case CBA must, if the determination made by
the Servicer in this paragraph is made after the expiry of the
Prescribed Period, pay damages to the Trustee in accordance with
clause 14.9;
(j) (FIXED RATE SWAPS): ensure that before the Servicer agrees with a
Borrower, or allows a Borrower to elect, to vary the rate of
interest payable under a Mortgage Loan to become a fixed rate for
a given period, the Trustee and the Manager have entered into (or
have confirmed that they will enter into) a Fixed Rate Swap for
that given period in accordance with section 16 of the Interest
Rate Swap Agreement. Upon the request of the Servicer, the
Manager must enter into and must direct the Trustee to enter into
(and upon such direction the Trustee must enter into) a Fixed
Rate Swap in accordance with section 16 of the Interest Rate Swap
Agreement.
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The maximum term of a Fixed Rate Swap entered into pursuant to
this clause must not exceed 10 years unless each Rating Agency
issues a Rating Affirmation Notice in respect of such longer
period. The Servicer is not in breach of this clause 16.6(j) if
the Trustee and the Manager fail to enter into a Fixed Rate Swap
in accordance with a request of the Servicer pursuant to this
clause 16.6(j); and
(k) (BASIS CAP): ensure that before the Servicer agrees with a
Borrower, or allows a Borrower to elect, to cap the variable rate
of interest payable under a Mortgage Loan for a given period, the
Trustee and the Manager have entered into (or have confirmed that
they will enter into ) an Interest Rate Basis Cap for that given
period in accordance with Part 5(18) of the Schedule to the
Interest Rate Swap Agreement. Upon the request of the Servicer,
the Manager must enter into and must direct the Trustee to enter
into (and upon such direction the Trustee must enter into) an
Interest Rate Basis Cap in accordance with such Part. The maximum
term of an Interest Rate Basis Cap entered into pursuant to this
clause must not exceed 10 years unless each Rating Agency issues
a Rating Affirmation Notice in respect of such longer period. The
Servicer is not in breach of this clause 16.6(k) if the Trustee
and the Manager fail to enter into an Interest Rate Basis Cap in
accordance with a request of the Servicer pursuant to this clause
16.6(k).
16.7 INTEREST RATES ON MORTGAGE LOANS
The Servicer must, as part of its function of servicing the Mortgage
Loans, set the interest rate charged and the monthly instalment to be
paid by the Borrower on each Mortgage Loan forming part of the Assets
of the Series Trust. The Servicer must ensure that the monthly
instalment to be paid in relation to each Mortgage Loan is equal to or
greater than the monthly interest payable on that Mortgage Loan (but
without limiting any right of the Borrower to pay less than the monthly
instalment, or no monthly instalment, where the amount outstanding
under the Mortgage Loan is less than the Scheduled Balance of the
Mortgage Loan). For so long as CBA is the Servicer, such interest rate
must be the interest rate which the relevant Seller charges on the same
type of mortgage loan (having regard, among other things, to the nature
of the Mortgage Loan product and the type of borrower) which is
recorded on its Mortgage Loan System but which has not been assigned to
the Trustee, unless this Deed requires the Servicer to charge a
different interest rate in respect of that Mortgage Loan.
16.8 RELEASE OR SUBSTITUTION OF SECURITY
(a) (SUBSTITUTION AND RELEASE): The Servicer may, in relation to a
Mortgage Loan which is then an Asset of the Series Trust, release
or substitute any corresponding Mortgage or First Layer of
Collateral Security provided that this is in accordance with the
corresponding Mortgage Insurance Policy and the Servicing
Guidelines.
(b) (INDEMNITY): The Servicer indemnifies the Trustee (whether on its
own account or for the account of the Securityholders of the
Series Trust) against any costs (including legal costs charged at
the usual commercial rates of the relevant legal services
provider), damages or loss it suffers as a result of any release
or substitution of any Mortgage or First Layer of Collateral
Securities which then are Assets of the Series Trust not being in
accordance with clause 16.8(a). The amount of the costs, damages
and loss is to be determined by agreement between the Trustee and
the Servicer or, failing agreement, by the Servicer's external
auditors. The amount cannot exceed the principal amount
outstanding in respect of the Mortgage Loan (as recorded on the
Mortgage Loan System) and any accrued but unpaid interest and any
outstanding fees in respect of the Mortgage Loan (calculated at
the time of Agreement between the Trustee and the Servicer or by
the Servicer's external auditors, as the case may be).
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16.9 VARIATION OR RELAXATION OF TERMS OF MORTGAGE LOANS
(a) (VARIATIONS): Subject to clauses 16.9(b) and 16.25, the Servicer
may vary, extend or relax the time to maturity, the terms of
repayment or any other term of a Mortgage Loan and its related
Mortgage and First Layer of Collateral Securities which are then
Assets of the Series Trust.
(b) (LIMITATIONS ON VARIATIONS): Except as contemplated by clause
16.14 or where a Mortgage Loan is regarded as having been repaid
in full as provided in clause 16.20(b), the Servicer must not
grant any extension of the time to maturity of a Mortgage Loan
which is then an Asset of the Series Trust beyond 30 years from
the Settlement Date for the Mortgage Loan or allow any reduced
monthly payment that would result in such an extension.
16.10 RELEASE OF DEBT
Subject to clause 16.14, the Servicer may not voluntarily release a
Borrower from any amount owing in respect of a Mortgage Loan, related
Mortgage or First Layer of Collateral Security unless that amount has
been written off by the Servicer, or the Servicer has determined to
write-off such amount, in either case in accordance with the Servicing
Standards.
16.11 WAIVERS, RELEASES AND COMPROMISES
Subject to clauses 16.9 and 16.10, the Servicer may:
(a) (WAIVE BREACHES): waive any breach under, or compromise, compound
or settle any claim in respect of; or
(b) (GRANT RELEASES): release any party from an obligation or claim
under,
a Mortgage Loan which is then an Asset of the Series Trust or any
related Mortgage or First Layer of Collateral Securities.
16.12 CONSENT TO SUBSEQUENT SECURITY INTERESTS
The Servicer may consent to the creation or existence of any Security
Interest in relation to any Land the subject of a Mortgage which is
then an Asset of the Series Trust:
(a) (THIRD PARTIES): in favour of a party, other than the Trustee or
a Seller, only if by way of a priority agreement or otherwise the
Servicer ensures that the relevant Mortgage will rank ahead in
priority to the third party's Security Interest on enforcement
for an amount not less than the principal amount (plus accrued
but unpaid interest) outstanding on the Mortgage Loan (as
recorded on the Mortgage Loan System) plus such extra amount (if
any) as is determined in accordance with the Servicing
Guidelines; or
(b) (TRUSTEE OR SELLER): in favour of the Trustee or a Seller in
which case the Trustee and that Seller agree that the relevant
Mortgage will rank ahead in priority to the Trustee's Security
Interest or that Seller's Security Interest (as the case may be)
on enforcement for an amount equal to the principal amount (plus
accrued but unpaid interest) outstanding on the Mortgage Loan (as
recorded on the Mortgage Loan System) plus such extra amount (if
any) as is determined in accordance with the Servicing
Guidelines. This clause will continue to bind the Trustee
following its retirement or removal pursuant to clause 19 of the
Master Trust Deed.
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16.13 CONSENT TO LEASES ETC
The Servicer may, in accordance with the Servicing Guidelines, consent
to the creation of any leases, licences or restrictive covenants in
respect of Land subject to a Mortgage which is then an Asset of the
Series Trust.
16.14 RELIEF UNDER BINDING PROVISION OR ON ORDER OF COMPETENT AUTHORITY
(a) (GRANT RELEASES ETC.): The Servicer may:
(i) release a Mortgage or a First Layer of Collateral
Security which is then an Asset of the Series Trust;
(ii) reduce the amount outstanding under, or vary the terms
(including, without limitation, in relation to
repayment) of, any Mortgage Loan, related Mortgage or
First Layer of Collateral Security which is then an
Asset of the Series Trust; or
(iii) grant other relief to a Borrower or the provider of a
First Layer of Collateral Security which are then
Assets of the Series Trust,
when to do so is pursuant to a Binding Provision or an order,
decision, finding, judgment or determination of a Competent
Authority or, in the Servicer's opinion, such action would be
taken or required by a Competent Authority.
(b) (IF ORDER OR DETERMINATION RESULTS FROM FAILURE OF SERVICER): If
it is determined that the order, decision, finding, judgment or
determination referred to in clause 16.14(a) was made by the
Competent Authority as a result of a Seller or the Servicer:
(i) breaching any Binding Provision, applicable regulation,
statute or official directive at the time the Mortgage,
the First Layer of Collateral Security or the Mortgage
Loan was granted or a Seller Advance was made in
respect of such Mortgage Loan (other than a Binding
Provision, regulation, statute or official directive
which provides for relief on equitable or like grounds
when paragraph (ii) is also not satisfied); or
(ii) not acting in accordance with the standards and
practices suitable for a prudent lender in the business
of making retail home loans,
then the Servicer must notify the Trustee of the making of such
an order, decision, finding, judgment or determination and CBA
(on behalf of itself and Homepath, where applicable) or the
Servicer (as the case may be) must pay damages to the Trustee by
10.00 am on the Distribution Date next occurring after such
notification is given by the Servicer. The amount of such damages
will be the amount agreed between the Trustee (acting on expert
advice taken pursuant to clause 16.6 of the Master Trust Deed, if
necessary) and CBA or the Servicer, as the case may be (or,
failing agreement, by CBA's or the Servicer's external auditors)
as being sufficient to compensate the Trustee for any losses
suffered by the Series Trust as a result of the release,
reduction, variation or relief (as the case may be). The amount
cannot exceed the principal amount outstanding in respect of the
relevant Mortgage Loan (as recorded on the Mortgage Loan System)
and any accrued but unpaid interest and any outstanding fees in
respect of the Mortgage Loan (calculated in both cases at the
time of Agreement between the Trustee and CBA or the Servicer or
by CBA's or the Servicer's external auditors, as the case may
be).
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16.15 LITIGATION
The Servicer may institute litigation in respect of the collection of
any amount owing under a Mortgage Loan which is then an Asset of the
Series Trust but is not required to do so or to continue any litigation
if the Servicer has reasonable grounds for believing, based on advice
from its legal advisers (either internal or external), that:
(a) (MORTGAGE LOAN UNENFORCEABLE): the Servicer is, or will be,
unable to enforce the provisions of the Mortgage Loan under which
such amount is owing; or
(b) (PROCEEDINGS UNECONOMICAL): the likely proceeds from such
litigation, in light of the expenses in relation to the
litigation, do not warrant such litigation.
16.16 ENFORCEMENT ACTION
(a) (SERVICER MAY TAKE ENFORCEMENT ACTION): Subject to clause
16.26(u), the Servicer may take such action to enforce a Mortgage
Loan and any related Mortgage or First Layer of Collateral
Securities which are then Assets of the Series Trust which it
determines should be taken.
(b) (SERVICER MUST NOT TAKE OR FAIL TO TAKE ACTION IN CERTAIN
CIRCUMSTANCES): The Servicer must not knowingly take any action,
or knowingly fail to take any action, if that action or failure
to take action will interfere with the enforcement by the
Servicer or Trustee of any Mortgage Loan Rights which are then
Assets of the Series Trust (unless such action or failure is in
accordance with the Servicing Standards).
16.17 INCURRING ADDITIONAL EXPENSES
The Servicer may incur any Expenses referred to in paragraph (a) of
that definition in connection with the management, maintenance or sale
of any property secured by a Mortgage or a First Layer of Collateral
Security which are then Assets of the Series Trust and the Trustee must
reimburse the Servicer for such Expenses, to the extent funds are
available for this purpose pursuant to clause 10.2(h), on each
Distribution Date and, if such Expenses are not reimbursed in full on
any Distribution Date, must reimburse the balance unpaid on each
subsequent Distribution Date from the funds available for this purpose
pursuant to clause 10.2(h) on that Distribution Date.
16.18 MORTGAGE INSURANCE AND INSURANCE POLICY CLAIMS
The Servicer may, in accordance with the Servicing Standards,
compromise, compound or settle any claim in respect of any Mortgage
Insurance Policy or any Insurance Policy which is then an Asset of the
Series Trust.
16.19 INSURANCE POLICY PROCEEDS
(a) (RELEASE OF INSURANCE PROCEEDS): Proceeds received in respect of
an Insurance Policy in respect of Land which is then an Asset of
the Series Trust may be released, on the Trustee's behalf, if:
(i) such release of proceeds is conducted in accordance
with the Servicing Standards; and
(ii) the proceeds are paid on an invoice-by-invoice basis
directly to those who are carrying out work to rebuild,
reinstate or repair the property to which the proceeds
relate.
(b) (APPLICATION OF INSURANCE PROCEEDS): Any proceeds referred to in
clause 16.19(a) which are not released in accordance with that
clause must be applied in compliance
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with the Servicing Guidelines to the account established in the
Servicer's records for the relevant Mortgage Loan up to the
principal amount outstanding in respect of that Mortgage Loan
plus accrued but unpaid interest.
(c) (SERVICING TRANSFER): If a Servicing Transfer occurs the Servicer
must immediately pay to the Trustee all proceeds previously
retained by it under paragraph (a) and not yet released under
paragraph (a).
16.20 SELLER ADVANCES
If a Seller makes a further advance to a Borrower and:
(a) (SEPARATE ACCOUNT AND TRUSTS): that Seller opens a separate
account in its records in relation to the advance, the advance is
considered for the purposes of this Deed to be an Other Loan and
upon creation, the Trustee will automatically by virtue of this
Deed, and without the necessity for any further act or thing to
be done or brought into existence, hold the benefit of its right,
title and interest in such Other Loan for that Seller as trustee
of the CBA Trust and the Trustee will hold any Mortgage and any
First Layer of Collateral Securities in respect of such Other
Loan in accordance with clause 7.2 and any Second Layer of
Collateral Securities in respect of such Other Loan in accordance
with clause 7.1;
(b) (ADVANCE LEADS TO SCHEDULED BALANCE BEING EXCEEDED): that Seller
records the advance as a debit to the account in its records for
an existing Mortgage Loan which is then part of the Assets of the
Series Trust and the advance leads to the Scheduled Balance in
respect of that Mortgage Loan (prior to the approval of the
advance) being exceeded by more than one scheduled monthly
instalment, the Mortgage Loan is, for the purposes of this Deed
only, treated as having been repaid in full by the payment by
that Seller to the Trustee of the sum necessary to repay that
Mortgage Loan. Such payment from that Seller must equal the
principal balance plus accrued but unpaid interest and fees owing
in respect of the Mortgage Loan before the advance was made and
must be paid by that Seller to the Trustee and, following such
payment, allocated by the Trustee to the Collections Account of
the Series Trust; or
(c) (ADVANCE DOES NOT LEAD TO SCHEDULED BALANCE BEING EXCEEDED): that
Seller records the advance as a debit to the account in its
records for an existing Mortgage Loan which is then part of the
Assets of the Series Trust and this does not lead to the
Scheduled Balance in respect of that Mortgage Loan being exceeded
by more than one scheduled monthly instalment, the advance is
treated as an advance made pursuant to the terms of the relevant
Mortgage Loan and the rights to repayment of such will be a
Mortgage Loan Right forming part of the Assets of the Series
Trust.
16.21 RESTRICTIONS ON SELLER ADVANCES
CBA shall not, and shall ensure that the other Seller does not:
(a) (ADVANCE OVER SCHEDULED BALANCE IF NON-PERFORMING): make an
advance pursuant to clause 16.20(b) in relation to a Mortgage
Loan which the Servicer has determined, in accordance with the
Servicing Standards, is a non-performing loan; or
(b) (ADVANCE UNDER SCHEDULED BALANCE IF NON-PERFORMING): make an
advance pursuant to clause 16.20(c) if the then aggregate of:
(i) all Seller Advances not repaid by the relevant Borrower
(calculated on the basis that, for this purpose only,
any payments on account of principal in respect of a
Mortgage Loan first reduce the amount of the
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Seller Advances made in relation to that Mortgage
Loan) in relation to Mortgage Loans then part of the
Assets of the Series Trust; and
(ii) the then Standby Redraw Facility Principal,
exceed, or will as a result of the advance exceed, the then Standby
Redraw Facility Limit.
If a Seller makes an advance to a Borrower which results in a breach of
CBA's obligations under this clause, then:
(c) (TREATED AS AN ADVANCE): that advance will, for all purposes, be
treated as a Seller Advance (and as if properly made in
accordance with clause 16.20(c)); and
(d) (CBA INDEMNITY): CBA indemnifies the Trustee (whether on its own
account or for the account of the Securityholders of the Series
Trust) against any costs, damages or loss it suffers as a result
of such a breach (except to the extent to which such costs,
damages or loss is recoverable by the Trustee pursuant to a
Mortgage Insurance Policy).
16.22 SERVICER'S ACTIONS BINDING ON TRUSTEE
Without limiting in any way the Servicer's liability to the Trustee for
breaching the provisions of this Deed, any act by the Servicer in
servicing Mortgage Loan Rights which are Assets of the Series Trust is
binding on the Trustee whether or not such act or omission is in
compliance with this clause 16.
16.23 SERVICER TO PAY ITS OWN EXPENSES
Subject to clause 16.17, the Servicer must pay from the amount received
under clause 19.4 all expenses incurred by it in connection with
servicing the Mortgage Loans, including expenses related to the
collection of the Mortgage Loans, the fees and disbursements of
independent accountants and all other fees and expenses which are not
expressly stated in this Deed or the Master Trust Deed to be payable by
the Trustee. The Servicer must, at least 5 Business Days before each
Distribution Date, forward to the Manager a list of expenses for the
Collection Period just ended for which it is seeking reimbursement
pursuant to this clause.
16.24 SERVICER TO TRANSMIT INFORMATION TO MANAGER
The Servicer must prepare and transmit to the Manager on or before the
day which is 2 Business Days before each Distribution Date the
information necessary to enable the Manager to prepare the Quarterly
Certificate and the Pool Performance Data in respect of the Collection
Period just ended. The Servicer will not be in breach of this clause
16.24 if it fails to provide the Pool Performance Data to the Manager
provided that it has used reasonable endeavours to produce the Pool
Performance Data for that Collection Period but has been unable to do
so with sufficient accuracy (as determined by the Servicer and taking
into account the likely distribution of the Pool Performance Data and
uses to be made of the Pool Performance Data).
16.25 PROPOSED AMENDMENTS TO SERVICING GUIDELINES
The Servicer must deliver copies of all proposed material amendments to
the Servicing Guidelines which relate to the Servicer's servicing
functions in respect of the Mortgage Loan Rights then comprising Assets
of the Series Trust to each Support Facility Provider where the consent
of such Support Facility Provider to such material amendment is
required under the terms of the corresponding Support Facility. The
adoption of those amendments by the Servicer takes effect upon the
consent of the Support Facility Provider to the proposed amendment (or,
where provided under the Support Facility, upon the date that the
Support Facility Provider is deemed to have consented to the proposed
amendment). The Servicer
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must deliver a copy of any proposed material amendment to the Servicing
Guidelines to the Trustee, the Manager and the Rating Agencies. The
Servicer must not amend the Servicing Guidelines unless each Rating
Agency has either:
(a) (CONFIRMED NO DOWNGRADE): confirmed (either orally or in writing)
that the proposed amendment will not result in a reduction,
qualification or withdrawal of its then current rating of the
Securities; or
(b) (10 BUSINESS DAYS AFTER DELIVERY): not notified the Servicer of
its intention not to reaffirm the then current rating of a
Security, within 10 Business Days after the delivery to it of the
proposed amendments.
16.26 FURTHER SERVICER UNDERTAKINGS
The Servicer further undertakes for the benefit of the Trustee, the
Manager, the Security holders and the Unitholders that it will:
(a) (AUDITED ACCOUNTS): give the Trustee the audited Accounts of the
Servicer for each financial year of the Servicer within 120 days
of the end of that year;
(b) (KEEP PROPER BOOKS): keep proper and adequate books of account
(which may be kept electronically) for the Mortgage Loan Rights
of the Series Trust;
(c) (INFORMATION): subject to the provisions of the Privacy Act and
the Servicer's duty of confidentiality to its clients under
general law or otherwise, promptly make available to the Manager,
the Auditor and the Trustee any books, reports or other oral or
written information and supporting evidence of which the Servicer
is aware that they reasonably request with respect to the Series
Trust or the Assets of the Series Trust from time to time or with
respect to all matters in the possession of the Servicer in
respect of the activities of the Servicer to which this Deed
relates;
(d) (NOTIFY MATERIAL MISREPRESENTATIONS): notify the Manager and the
Trustee promptly if it becomes actually aware that any material
representation or warranty made or taken to be made by or on
behalf of a Seller or the Servicer in connection with a
Transaction Document in relation to the Series Trust is incorrect
when made or taken to be made;
(e) (CERTIFICATE): within 5 Business Days of a request from the
Manager or the Trustee, provide the Manager or the Trustee (as
the case may be) with a certificate from the Servicer signed by 2
Authorised Officers of the Servicer on its behalf which states
whether to the best of the Servicer's knowledge and belief a
Servicer Default or a Perfection of Title Event has occurred (a
request under this clause will be made by the Trustee only once
in each 6 calendar month period, unless the Trustee when making
the request sets out reasonable grounds for believing that a
Servicer Default or a Perfection of Title Event is subsisting);
(f) (NOTIFY SERVICER DEFAULT OR PERFECTION OF TITLE EVENT): notify
the Trustee promptly after the Servicer becomes actually aware of
any Servicer Default or the occurrence of any Perfection of Title
Event and at the same time or as soon as possible thereafter
provide full details thereof;
(g) (COMPLY WITH LAWS): comply with the requirements of any relevant
laws in carrying out its obligations under the Transaction
Documents for the Series Trust including the Consumer Credit
Code;
(h) (AUTHORISATIONS): obtain and maintain all authorisations, filings
and registrations necessary to properly service the Mortgage
Loans;
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(i) (NOT MERGE WITHOUT ASSUMPTION): not merge or consolidate into
another entity, unless the surviving entity assumes its rights
and obligations as a Seller and the Servicer under the
Transaction Documents for the Series Trust and the Rating
Agencies are notified;
(j) (NOT ENTER INTO LIQUIDATION ETC.): subject to the provisions of
the Banking Act 1959 (Commonwealth), not present any application
or pass any resolution for the liquidation of the Servicer, or,
subject to clause 16.26(i), enter into any scheme of arrangement,
merger or consolidation with any other person or enter into any
other scheme under which the Servicer ceases to exist, the assets
or liabilities of the Servicer are vested in or assumed by any
other person or either of those events occur;
(k) (PAY TAX): duly and punctually file all returns in respect of Tax
which are required to be filed and pay, or procure payment when
due, all Taxes and other outgoings payable by it as and when the
same respectively become due and payable other than outgoings
which are being contested in good faith and promptly pay or cause
to be paid those contested outgoings after the final
determination or settlement of such contest;
(l) (NOT SET-OFF): not, without the prior consent of the Trustee,
apply, transfer or set off the whole or any part of any amount
payable or owed to the Servicer or to which the Servicer is
entitled under this Deed or any other Transaction Document for
the Series Trust towards satisfaction of any obligation which is
owed by the Servicer to the Trustee or the Manager under this
Deed or any other Transaction Document for the Series Trust,
other than as contemplated under this Deed or any other
Transaction Document for the Series Trust;
(m) (NOT CLAIM ASSETS OF SERIES TRUST): other than as a Secured
Creditor, not claim any Security Interest, lien or other
possessory right in any of the Assets of the Series Trust;
(n) (NOTIFY CLAIMS): following receipt of actual notice of a claim by
a third party with respect to a challenge to the sale and/or
assignment to the Trustee of any Mortgage Loan Rights forming
part of the Assets of the Series Trust, promptly give notice in
writing of such action or claim to the Trustee and the Manager;
(o) (NOT ENCUMBER MORTGAGE LOAN RIGHTS): not transfer, assign,
exchange or otherwise grant a Security Interest over the whole or
any part of its right, title and interest in and to any Mortgage
Loan Rights forming part of the Assets of the Series Trust;
(p) (GIVE ACCURATE INFORMATION TO RATING AGENCIES): use reasonable
efforts to cause all information provided by it to any Rating
Agency in relation to the Series Trust to be complete and
accurate in all material respects;
(q) (FOLLOW DIRECTIONS OF TRUSTEE AFTER PERFECTION OF TITLE EVENT):
upon being directed to do so by the Trustee following the
occurrence of a Perfection of Title Event, promptly take all
action required or permitted by law to assist the Trustee and the
Manager to perfect the Trustee's legal title to the Mortgage Loan
Rights forming part of the Assets of the Series Trust in
accordance with the requirements of this Deed;
(r) (COMPLY WITH OTHER UNDERTAKINGS): comply with all other
undertakings given by the Servicer in this Deed or the other
Transaction Document relating to the Series Trust;
(s) (DIRECT RECEIPTS): subject to clause 22, take all steps to ensure
that:
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(i) while the Collections Account is maintained with the
Servicer, the amounts referred to in clause 22.5 are
paid into the Collections Account in accordance with
that clause; or
(ii) if the Servicer is not an Eligible Depository, all
payments received during the corresponding Collection
Period under or in respect of the Mortgage Loans (other
than insurance premiums and related charges) are
deposited into the Collections Account no later than 5
Business Days following receipt;
(t) (COLLECT ALL MONEYS DUE): make reasonable efforts to collect all
moneys due under the terms and provisions of the Mortgage Loan
Rights of the Series Trust and, to the extent such efforts will
be consistent with this Deed, follow such normal collection
procedures as it deems necessary and advisable;
(u) (ENFORCEMENT OF MORTGAGE LOANS): if a Material Default has
occurred and is continuing with respect to a Mortgage Loan Right
forming part of the Assets of the Series Trust, take such action
on such basis as the Trustee and the Servicer may agree (in
accordance and in conjunction with the Servicer's normal
enforcement procedures) to enforce such Mortgage Loan Rights (but
only to the extent that the Servicer determines that enforcement
proceedings should be taken) so as to maximise the return to the
Securityholders, taking into account, inter alia, the timing of
any enforcement proceedings and any relevant terms of any Support
Facility provided that the Servicer will not be required to
institute litigation with respect to collection of any payment if
there are reasonable grounds for believing the provisions of
those Mortgage Loan Rights under which such payment is required
are unenforceable or the payment is uncollectible; and
(v) (MAINTAIN TITLE): take such steps as are necessary to maintain
the Trustee's title to the Mortgage Loan Rights of the Series
Trust.
16.27 SERVICER HOLDING ASSETS OF THE SERIES TRUST
The obligation of the Servicer set out in clauses 22.4 and 22.5 in
relation to the payment of amounts into the Collections Account is the
full extent of the Servicer's obligation in respect of such moneys and
the Servicer has no obligation or liability whatsoever to account to
the Trustee for any interest, income or other benefit derived in
connection with any payments received by it under or in respect of the
Mortgage Loans.
16.28 SERVICER'S POWER TO DELEGATE
The Servicer, for the purposes of carrying out and performing its
duties and obligations in relation to the Series Trust, may:
(a) (APPOINT ATTORNEYS): by power of attorney appoint any person to
be attorney or agent of the Servicer for those purposes and with
those powers, authorities and discretions (not exceeding those
vested in the Servicer) as the Servicer thinks fit including,
without limitation, a power to sub-delegate and a power to
authorise the issue in the name of the Servicer of documents
bearing facsimile signatures of the Servicer or of the attorney
or agent either with or without proper manuscript signatures of
its officers on them; and
(b) (APPOINT AGENTS): appoint by writing any person to be agent of
the Servicer as the Servicer thinks necessary or proper and with
those powers, authorities and discretions (not exceeding those
vested in the Servicer) as the Servicer thinks fit,
provided that, in each such case, except as provided in any Transaction
Documents, the Servicer must not delegate to such third parties a
material part of its powers, duties and
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obligations as Servicer in relation to Mortgage Loans forming part of
the Assets of the Series Trust.
16.29 SERVICER MAY REPLACE OR SUSPEND ATTORNEYS
The Servicer may replace or suspend any attorney, agent or sub-agent
appointed under clause 16.28 for any cause or reason as the Servicer
may in its sole discretion think sufficient with or without assigning
any cause or reason.
16.30 SERVICER REMAINS LIABLE
The Servicer at all times remains liable for:
(a) (ACTS, OMISSIONS): the acts or omissions of any person appointed
under clause 16.28, insofar as the acts or omissions constitute a
breach by the Servicer of its obligations under this Deed; and
(b) (PAYMENT): the payment of fees to any person appointed under
clause 16.28.
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17. SERVICER'S RESPONSIBILITIES AND INDEMNITIES
17.1 NOT LIABLE WHERE ACTION UNLAWFUL
The Servicer will not incur any liability to any person in respect of
any failure to act where such act will be hindered, prevented or
forbidden by any present or future law.
17.2 LIMITATION ON SERVICER'S RESPONSIBILITY
The Servicer will not be responsible to any person for any loss,
damage, claim or demand incurred as a result of:
(a) (TRUSTEE DEFAULT): a Trustee Default (except where the Trustee is
the Servicer);
(b) (FAILURE TO CHECK): the failure by the Servicer to check any
document, certificate, schedule, form, list or other document
prepared or delivered to the Servicer by the Trustee or any agent
or consultant of the Trustee and reasonably believed by the
Servicer to be genuine; or
(c) (TRUSTEE'S DIRECTION): any action taken by the Servicer in
accordance with any written direction or instruction from the
Trustee or any Authorised Officer of the Trustee,
except to the extent to which such loss, damage, claim or demand is
caused by any fraud, negligence or wilful default by the Servicer.
17.3 SERVICER'S LIABILITY
(a) (LIABILITY): The Servicer shall not be liable for any loss
incurred by any Securityholder, any Creditor of the Series Trust
or any other person except, subject to clauses 17.3(b), (c), (d)
and (e), to the extent that such loss may be caused by a breach
by the Servicer of any term of this Deed, any fraud, negligence
or wilful default by the Servicer or any breach or default by any
person appointed by the Servicer to perform its obligations under
this Deed.
(b) (DAMAGES FOR DIRECT LOSS): The Servicer shall not be liable for
any damages in respect of any breach by the Servicer of any term
of this Deed, any fraud, negligence or wilful default by the
Servicer or any breach or default by any person appointed by the
Servicer to perform its obligations under this Deed except and to
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the extent that the Trustee on account of the Securityholders has
suffered direct loss as a result of such breach or default. The
maximum amount which the Servicer will be liable to pay in
respect of such a breach or default is the amount outstanding at
the time of payment under the Mortgage Loan in respect of which
such default or breach occurred after taking into account any
payment received by the Trustee or the Trustee is entitled to
receive or claim under the Mortgage Insurance Policy relating to
that Mortgage Loan.
(c) (NO CONSEQUENTIAL LOSS): The Servicer's liability under this
clause 17.3 with respect to a Mortgage Loan will not include any
damages in respect of consequential loss. This liability
represents the sole damages recoverable against the Servicer in
such circumstances.
(d) (NOTICE): The Trustee may only claim damages from the Servicer
pursuant to this clause 17.3 by written notice setting out the
grounds for claiming that a breach or default referred to in
paragraph (b) has occurred together with details of the
calculation of the loss referred to in paragraph (b).
(e) (PAYMENT): If a breach or default referred to in paragraph (b)
has occurred, the Servicer must pay any damages due to the
Trustee under this clause 17.3 within 7 Business Days of receipt
by it of the written notice referred to in paragraph (d), such
written notice to represent prima facie evidence of the amount of
such damages.
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18. SERVICER DEFAULT AND RETIREMENT OF SERVICER
18.1 SERVICER DEFAULT
A Servicer Default occurs if:
(a) (FAILURE TO REMIT COLLECTIONS): the Servicer fails to remit any
Collections or any other amounts received in respect of the
Mortgage Loan Rights then forming part of the Assets of the
Series Trust to the Trustee within the time periods specified in
this Deed and such failure is not remedied within 5 Business Days
(or such longer period as the Trustee may agree to) of notice of
such failure being given to the Servicer by the Manager or the
Trustee;
(b) (FAILURE TO PREPARE INFORMATION FOR MANAGER): the Servicer fails
to prepare and transmit to the Manager the information necessary
to enable the Manager to prepare the Quarterly Certificates by
the date set out in this Deed and such failure is not remedied
within 20 Business Days (or such longer period as the Trustee may
agree to) of notice being given to the Servicer by the Manager or
the Trustee and has or will have an Adverse Effect as reasonably
determined by the Trustee;
(c) (BREACH OF REPRESENTATION OR WARRANTY): any representation,
warranty or certification made by the Servicer (in its capacity
as Servicer) in a Transaction Document to which it is expressed
to be a party or in any certificate delivered by the Servicer (in
its capacity as Servicer) pursuant to such a Transaction Document
proves to have been incorrect when made in a manner which as
reasonably determined by the Trustee has or will have an Adverse
Effect and the Servicer does not remedy the same to the Trustee's
reasonable satisfaction within 60 Business Days after receipt by
the Servicer of notice in writing from the Trustee requiring it
to do so;
(d) (INSOLVENCY EVENT): an Insolvency Event occurs in relation to the
Servicer;
(e) (SERVICER IS CUSTODIAN): while the Servicer is acting as
custodian of the Mortgage Documents pursuant to clause 25, it
fails to deliver all the Mortgage Documents in accordance with
clause 25 to the Trustee following the occurrence of a Document
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Transfer Event and does not deliver to the Trustee the
outstanding Mortgage Documents within 20 Business Days of receipt
of a notice from the Trustee specifying the Mortgage Documents
that remain outstanding;
(f) (FAILS TO MAINTAIN THRESHOLD RATE): the Servicer fails to comply
with clause 12.2, and such failure is not remedied within 20
Business Days of its occurrence; or
(g) (BREACH OF OTHER OBLIGATIONS): the Servicer has breached its
obligations (other than those referred to in clauses 18.1(a),
(b), (c), (e) and (f)) as Servicer under a Transaction Document
to which it is expressed to be a party and such breach has or
will have an Adverse Effect as reasonably determined by the
Trustee and:
(i) that breach is not satisfactorily remedied so that it
no longer has or will have, having regard to all
relevant circumstances, such an Adverse Effect within
20 Business Days after receipt by the Servicer of a
notice in writing (which must specify the reasons why
the giver of the notice believes that an Adverse Effect
has occurred or will occur) from the Manager or Trustee
requiring it to do so; and
(ii) the Servicer has not paid compensation to the Trustee
for its loss from such breach in an amount satisfactory
to the Trustee (acting reasonably).
18.2 RETIREMENT OF SERVICER
The Servicer may retire from its obligations and duties assumed by it
pursuant to this Deed by 3 months' notice in writing to the Trustee and
the Manager (or such lesser time as the Servicer and the Trustee
agree).
18.3 NOTICE TO SECURITYHOLDERS
The Servicer will, within 2 Business Days after the Servicer becomes
aware of any Servicer Default, give notice of such Servicer Default to
the Trustee, the Manager, the US Dollar Note Trustee and the Rating
Agencies, whereupon the Manager will give notice or cause such notice
to be given of such Servicer Default to the Securityholders. Upon any
retirement, termination or appointment of a Substitute Servicer
pursuant to this clause 18, the Trustee will give or cause to be given
prompt notice of that retirement, termination or appointment to the
Manager, the US Dollar Note Trustee, the Securityholders and the Rating
Agencies.
18.4 REMOVAL OF SERVICER
If the Trustee has determined that:
(a) (UNLAWFUL): the performance by the Servicer of its duties under
this Deed is no longer permissible under any applicable law and
the Trustee is satisfied that there is no reasonable action which
the Servicer could take to make the performance of its duties
under this Deed permissible under that applicable law; or
(b) (SERVICER DEFAULT): a Servicer Default has occurred and is
continuing,
the Trustee must by written notice to the Servicer, immediately
terminate the rights and obligations of the Servicer and appoint
another Bank or appropriately qualified organisation to act in its
place.
18.5 RETIREMENT OF SERVICER
Upon its retirement, the Servicer may, subject to any approval required
by law, appoint in writing any other corporation approved by the
Trustee (acting reasonably) as Servicer in its place. If the Servicer
does not propose a replacement by the date which is 1 month prior to
the
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date of its proposed retirement, the Trustee is entitled to appoint a
new Servicer as of the date of the proposed retirement.
18.6 WHEN APPOINTMENT OF SUBSTITUTE SERVICER EFFECTIVE
The purported appointment of a Substitute Servicer has no effect until:
(a) (SUBSTITUTE SERVICER EXECUTES DEED OF ACCESSION): the Substitute
Servicer executes a deed under which it covenants to act as
Servicer in accordance with this Deed and all other Transaction
Documents relating to the Series Trust to which the Servicer is a
party; and
(b) (RATING AGENCY CONFIRMATION): each Rating Agency issues a Rating
Affirmation Notice in respect of the proposed appointment of the
Substitute Servicer.
18.7 TRUSTEE TO ACT AS SERVICER
Until the appointment of the Substitute Servicer is complete, the
Trustee must act as Servicer. The Trustee is entitled to receive the
fee payable in accordance with clause 19.4 for the period during which
the Trustee so acts.
18.8 TRUSTEE MAY GIVE DISCHARGES
The Trustee may settle with the Servicer the amount of any sums payable
by the Servicer to the Trustee or by the Trustee to the Servicer and
may give to or accept from the Servicer a discharge in respect of those
sums which will be conclusive and binding as between the Trustee and
the Servicer, as between the Servicer and each Unitholder and as
between the Servicer and the Securityholders.
18.9 SERVICER MAY ACCEPT PAYMENT
The Servicer may accept a payment or benefit, in connection with its
retirement or removal, from the Substitute Servicer. The Servicer is
also entitled to receive payments or benefits which have accrued to the
Servicer under this Deed prior to the date of the Servicer's retirement
or removal from office.
18.10 SERVICER AND MANAGER TO PROVIDE FULL CO-OPERATION
The Servicer and the Manager agree to provide their full co-operation
in the event of a Servicing Transfer. The Servicer and the Manager must
(subject to the Privacy Act and the Servicer's duty of confidentiality
to its customers under general law or otherwise) provide the Substitute
Servicer with copies of all paper and electronic files, information and
other materials as the Trustee or the Substitute Servicer may
reasonably request within 90 days of the removal or retirement of the
Servicer in accordance with this clause 18.
18.11 INDEMNITY
The Servicer indemnifies the Trustee in respect of all costs, damages,
losses and expenses incurred by the Trustee as a result of any Servicer
Default (including, without limitation, legal costs charged at the
usual commercial rates of the relevant legal services provider and the
costs of any Servicing Transfer) but excluding any costs, damages,
losses and expenses which the Servicer is not liable or responsible for
in accordance with clause 17.
18.12 NO LIABILITY FOR SERVICER DEFAULT
Neither the Trustee nor the Manager or their respective delegates (as
the case may be) is liable for any Servicer Default except to the
extent that the Servicer Default is caused by the Trustee's or the
Manager's or their respective delegate's (as the case may be) fraud,
negligence or wilful default.
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19. REMUNERATION OF MANAGER, TRUSTEE, SERVICER AND SECURITY TRUSTEE
19.1 MANAGEMENT FEE
Pursuant to clause 18.1 of the Master Trust Deed, the Manager is
entitled to receive in respect of each Accrual Period on the following
Distribution Date in accordance with the terms of this Deed a fee as
agreed by the Trustee and the Manager prior to the date of this Deed or
as may otherwise be agreed by the Manager and the Trustee provided that
each Rating Agency will be given 3 Business Days' prior notice by the
Manager of any variation of such fee and such fee will not be varied if
such variation would result in a reduction, qualification or withdrawal
in any then current credit rating by a Rating Agency of any Security.
19.2 ARRANGING FEE
The Manager is entitled to receive in respect of each Accrual Period on
the following Distribution Date in accordance with the terms of this
Deed a fee for arranging the issue of the Securities as agreed by the
Trustee and the Manager prior to the date of this Deed or as may
otherwise be agreed by the Manager and the Trustee.
19.3 TRUSTEE'S FEE
Pursuant to clause 18.2 of the Master Trust Deed, the Trustee is
entitled to receive in respect of each Accrual Period on the following
Distribution Date in accordance with the terms of this Deed the fee
agreed by the Trustee and CBA prior to the date of this Deed or as may
otherwise be agreed by the Manager and the Trustee, provided that each
Rating Agency will be given 3 Business Days' prior notice by the
Manager of any variation of the Trustee's Fee and the Trustee's Fee
will not be varied if such variation would result in a reduction,
qualification or withdrawal of any then current credit rating of any
Security.
19.4 SERVICER'S FEE
The Servicer will be entitled to receive in respect of each Accrual
Period on the following Distribution Date in accordance with the terms
of this Deed the fee agreed by the Trustee and the Servicer prior to
the date of this Deed or as may otherwise be agreed by the Trustee, the
Manager and the Servicer provided that each Rating Agency will be given
3 Business Days' prior notice by the Manager of any variation of the
Servicer's Fee and the Servicer's Fee will not be varied if such
variation would result in a reduction, qualification or withdrawal of
any then current credit rating of any Security.
19.5 SECURITY TRUSTEE'S FEES AND EXPENSES
The Trustee will:
(a) (PAY A FEE): pay to the Security Trustee the fee agreed by the
Trustee, the Manager and the Security Trustee from time to time
provided that each Rating Agency will be given 3 Business Days'
prior notice by the Manager of any variation of the Security
Trustee's Fee and the Security Trustee's Fee will not be varied
if such variation would result in a reduction, qualification or
withdrawal of any then current credit rating of any Security; and
(b) (REIMBURSE): reimburse the Security Trustee its costs and
expenses incurred in performing its duties under the Security
Trust Deed calculated in accordance with the Security Trust Deed.
The fees, costs and expenses referred to in paragraphs (a) and (b) of
this clause will be paid or reimbursed, as the case may be, in
accordance with this Deed on the Distribution Date
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following the Accrual Period to which such fees, costs and expenses
were earned or incurred, as the case may be.
19.6 GOODS AND SERVICES TAX
Notwithstanding any other provision of this Deed or the Master Trust
Deed, where any of the Trustee, the Manager, the Servicer or a Seller
is or becomes liable to remit to a Governmental Agency an amount of GST
in connection with its supplies in connection with the Series Trust
under any Transaction Document, that GST must be borne by the Trustee,
the Manager, the Servicer or that Seller, as the case may be, on its
own account and neither the Trustee, the Manager, the Servicer nor that
Xxxxxx is entitled to any reimbursement of that GST from the Assets of
the Series Trust and the definition of "Taxes" in clause 1.1 of the
Master Trust Deed shall not include any such GST where that definition
applies in relation to the Series Trust. Nothing in the clause prevents
an adjustment, in accordance with this Deed, of the fees payable to the
Trustee, the Manager, the Servicer or a Seller as a result of a GST Tax
Change (as defined in clause 19.7).
19.7 ADJUSTMENTS TO FEES
(a) (GST TAX CHANGE): For the purposes of this clause, "GST TAX
CHANGE" means:
(i) the abolition of GST;
(ii) an increase or decrease in the rate of GST; or
(iii) any amendment to the GST Act.
(b) (EFFECT OF GST TAX CHANGE): In ascertaining the effect of a GST
Tax Change on the Trustee, any associated abolition, reduction or
other change in Taxes reducing, directly or indirectly, the costs
(including general overhead costs) of the Trustee will be taken
into account.
(c) (ADJUSTMENTS): Following any GST Tax Change, the fees payable to
the Trustee under this clause 19 will, subject to clause 19.7(o),
be adjusted according to the procedure in this clause 19.7 so
that, from the commencement date or dates of the GST Tax Change,
the Trustee is neither economically advantaged nor disadvantaged
in relation to the supplies provided by it under this Deed by the
effect of the GST Tax Change.
(d) (NOTICE): At any time within 12 months after a GST Tax Change has
come into effect, the Trustee may, by written notice to the
Manager and the Manager may, by written notice to the Trustee,
require the commencement of negotiations by the Manager and the
Trustee in accordance with the succeeding provisions of this
clause 19.7.
(e) (TIME BAR): If neither the Trustee nor the Manager issues a
notice under clause 19.7(d) within 12 months after a GST Tax
Change has come into effect, then each of the Trustee and the
Manager will be taken to have unconditionally and irrevocably
waived its rights under clause 19.7(c) in relation to that GST
Tax Change, and no adjustment will be made.
(f) (NEGOTIATIONS): Within 28 days after receipt of a notice under
clause 19.7(d), the Manager and the Trustee will confer at least
once to negotiate in good faith with a view to agreeing on any
adjustments to the fees payable to the Trustee under this clause
19 which will satisfy the Trustee's and the Manager's rights
under clause 19.7(c).
(g) (MANAGER AND TRUSTEE TO GIVE EFFECT TO OUTCOME OF NEGOTIATIONS):
Subject to clause 19.7(o), if the negotiations result in the
parties agreeing on any adjustments
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to the fees payable to the Trustee under this clause 19, the
Trustee and the Manager will, as soon as possible, do all things
necessary to give effect to the agreement reached, including
adjusting any payments of such fees which have previously been
made under this Deed after the commencement date or dates of the
relevant GST Tax Change.
(h) (NEGOTIATIONS UNSUCCESSFUL): If, within 28 days after the first
conference under clause 19.7(f), the Manager and the Trustee are
unable to agree fully, the Trustee or the Manager may, by written
notice to the other, require any matter relating to the Trustee's
and the Manager's rights under clause 19.7(c) to be referred to
expert determination.
(i) (APPOINTMENT OF EXPERT): The Trustee and the Manager may appoint
any independent consultant who is experienced in indirect
taxation to be the expert. If, within 28 days after receipt of a
notice under clause 19.7(h), the Trustee and the Manager are
unable to agree on an expert, then the Trustee or the Manager may
request the president for the time being of the Institute of
Chartered Accountants to appoint the expert.
(j) (EXPERT DETERMINATION): The expert will decide on adjustments
which will satisfy the Trustee's and the Manager's rights under
clause 19.7(c). The expert will act as an expert and not as an
arbitrator and his or her decision will, in the absence of fraud
or bias but notwithstanding error, be final and binding on the
Trustee and the Manager.
(k) (PROCEDURE): The Trustee and the Manager may agree on any
procedure for the expert determination, including the adoption in
whole or part of any expert determination rules published by a
dispute resolution agency, professional body, law firm or any
other person. If the Trustee and the Manager cannot agree, the
expert will determine the procedure to be followed in the expert
determination. However, unless the Trustee and the Manager
otherwise agree:
(i) the expert may inform himself or herself in any way he
or she sees fit, including by engaging other
consultants, without being bound by the rules of
evidence;
(ii) each of the Trustee and the Manager will have the right
to present its case and to answer the case against it;
and
(iii) the expert will give reasons for his or her decision.
(l) (COSTS OF EXPERT): The Trustee and the Manager will pay the costs
of the expert in equal shares.
(m) (XXXXX X XXXXX XXXXXX): The Trustee will not be entitled to
commence any action or proceeding relating to any GST Tax Change
until the procedures outlined in this clause relating to that GST
Tax Change have been completed.
(n) (CONTINUE TO PERFORM): Notwithstanding that the procedures
outlined in this clause are operating, the parties will continue
to perform their obligations under this Deed.
(o) (RATING AGENCIES CONSENT): Any adjustment to fees pursuant to
this clause 19.7 will be subject to confirmation in writing from
the Rating Agencies that the adjustment will not result in a
reduction, qualification or withdrawal of the credit ratings then
assigned by them to the Securities.
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20. MANAGER DEFAULT
The occurrence of any of the following events constitutes a Manager
Default for the purposes of clause 20.1(b) of the Master Trust Deed:
(a) (MANAGER DOES NOT INSTRUCT): the Manager does not instruct the
Trustee to pay the required amounts to the Securityholders of the
Series Trust within the time periods specified in this Deed and
such failure is not remedied within 10 Business Days (or such
longer period as the Trustee may agree) of notice of such failure
being delivered to the Manager by the Trustee;
(b) (MANAGER DOES NOT PREPARE QUARTERLY CERTIFICATES): the Manager
does not prepare and transmit to the Trustee the Quarterly
Certificates or any other reports required to be prepared by the
Manager and such failure is not remedied within 10 Business Days
(or such longer period as the Trustee may agree) of notice being
delivered to the Manager by the Trustee. Such a failure by the
Manager does not constitute a Manager Default if it is as a
result of a Servicer Default pursuant to clause 18.1(b) provided
that, if the Servicer subsequently provides the information to
the Manager, the Manager prepares and submits to the Trustee the
outstanding Quarterly Certificates or other reports within 10
Business Days (or such longer period as the Trustee may agree to)
of receipt of the required information from the Servicer;
(c) (BREACH OF A REPRESENTATION OR WARRANTY): any representation,
warranty, certification or statement made by the Manager (in its
capacity as Manager) in a Transaction Document to which it is
expressed to be a party, or in any document provided by it under
or in connection with a Transaction Document, proves to have been
incorrect when made, or is incorrect when repeated, in a manner
which as reasonably determined by the Trustee has an Adverse
Effect and the Manager does not remedy the same to the Trustee's
reasonable satisfaction within 60 Business Days after receipt by
the Manager of notice in writing from the Trustee requiring it to
do so; or
(d) (BREACH OF OTHER OBLIGATIONS): the Manager has breached its other
obligations as Manager under a Transaction Document to which it
is expressed to be a party or any other deed, agreement or
arrangement entered into by the Manager in relation to the Series
Trust or the Securities, (other than an obligation which depends
upon information provided by, or action taken by, the Servicer
and the Manager has not received the information, or the action
has not been taken, which is necessary for the Manager to perform
the obligation) and such breach has had or, if continued, will
have an Adverse Effect as reasonably determined by the Trustee,
and either such breach is not remedied so that it no longer has
or will have such an Adverse Effect within 20 Business Days of
notice thereof delivered to the Manager by the Trustee or the
Manager has not within 20 Business Days of receipt of such notice
paid compensation to the Trustee for its loss from such breach in
an amount satisfactory to the Trustee (acting reasonably). The
Trustee must, in such notice, specify the reasons why it believes
an Adverse Effect has occurred, or will occur, as the case may
be.
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21. REPRESENTATIONS AND WARRANTIES
21.1 GENERAL REPRESENTATIONS AND WARRANTIES BY THE SELLER AND THE SERVICER
Each Seller and the Servicer represents and warrants in respect of
itself to the Trustee that:
(a) (DUE INCORPORATION): it has been duly incorporated as a company
limited by shares in accordance with the laws of its place of
incorporation and is validly existing
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under those respective laws and has power and authority to carry
on its business as it is now being conducted;
(b) (POWER TO ENTER AND OBSERVE THIS DEED): it has full power to
enter into and perform its obligations under this Deed and the
other Transaction Documents to which it is a party;
(c) (SEPARATE AUTHORITY): it has in full force and effect the
authorisations necessary to authorise its execution, delivery and
performance of this Deed and the other Transaction Documents to
which it is a party;
(d) (AUTHORISATIONS): it has in full force and effect all
authorisations from Governmental Agencies that are required for
the execution, delivery and performance by it of this Deed and
the Transaction Documents to which it is a party as at the date
of this Deed and has filed all necessary returns with the
Australian Securities and Investments Commission;
(e) (OBLIGATIONS ENFORCEABLE): its obligations under this Deed are
legal, valid, binding and enforceable against it in accordance
with their terms subject to stamping and any necessary
registration, except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganisation, moratorium or
trust law or general principles of equity or other similar laws
affecting creditors' rights generally;
(f) (THIS DEED DOES NOT CONTRAVENE CONSTITUENT DOCUMENTS): this Deed
does not contravene its constituent documents or any law,
regulation or official directive or any of its obligations or
undertakings by which it or any of its assets are bound or cause
a limitation on its powers or the powers of its directors to be
exceeded;
(g) (NO SERVICER DEFAULT): (represented and warranted by the Servicer
only) no Servicer Default continues unremedied that has not been
notified to the Trustee;
(h) (SERVICING GUIDELINES): (represented and warranted by the
Servicer only) the Servicing Guidelines are in existence as at
the date of this Deed;
(i) (NO MATERIAL DEFAULT): to the best of its knowledge, it is not in
default of the material requirements of any relevant laws which
would materially adversely affect its ability to carry out its
obligations under this Deed;
(j) (NO IMMUNITY FROM PROCESS): it has no immunity from the
jurisdiction of a court or from legal process (whether through
service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise);
(k) (NOT TRUSTEE): it does not enter into this Deed in the capacity
of a trustee of any trust or settlement;
(l) (NO MATERIAL ADVERSE EFFECT): it is not actually aware of any
facts which would have a material adverse effect on its ability
to perform its obligations under this Deed;
(m) (NO RELATED PARTY TRANSACTION): no person has contravened or will
contravene section 208 or section 209 of the Corporations Act by
entering into or participating in the Transaction Documents or
any transaction contemplated by the Transaction Documents;
(n) (NO INSOLVENCY EVENT): no Insolvency Event has occurred and is
subsisting in respect of it; and
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(o) (PAID TAXES): it has filed all Tax returns which are required to
be filed and has promptly paid all Taxes as shown in all
assessments received by it to the extent that such Taxes have
become due other than those Taxes the subject of a bona fide
dispute with the Australian Taxation Office or other Governmental
Agency.
21.2 REPETITION OF REPRESENTATIONS AND WARRANTIES
The representations and warranties in clause 21.1 are taken to be also
made on the Closing Date.
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22. COLLECTIONS ACCOUNT AND INVESTMENT
22.1 COLLECTIONS ACCOUNT
The Trustee will establish and maintain in the State of New South Wales
(or in such other place as the Manager selects from time to time), in
accordance with this clause 22, an account in the name of the Trustee
which must be an Eligible Deposit Account.
22.2 INITIAL COLLECTIONS ACCOUNT
Immediately following the Closing Date, the Trustee will establish the
initial Collections Account with the Servicer if the Servicer is an
Eligible Depository.
22.3 REPLACEMENT OF COLLECTIONS ACCOUNT
If, at any time, the Collections Account ceases to be an Eligible
Deposit Account, the Trustee (or the Manager on its behalf) will within
5 Business Days (or such longer period, as the Rating Agencies may
agree) establish a new account which is an Eligible Deposit Account and
the Trustee will transfer any cash comprising the old Collections
Account to such new account and from the date such new account is
established, it will be the Collections Account.
22.4 DEPOSITS INTO COLLECTIONS ACCOUNT WITHIN 5 BUSINESS DAYS
Subject to clauses 22.5 and 22.11, the Servicer and each Seller, as
applicable, must deposit in the Collections Account each amount
comprising a Collection received by the Servicer or otherwise payable
by that Seller or the Servicer or debited by the Servicer as
contemplated by clause 22.4(a)) within 5 Business Days of:
(a) (RECEIPT OR SET-OFF): receipt of the Collection by the Servicer
or the debiting of the Collection by the Servicer against an
account pursuant to a right of set-off or right to combine
accounts; or
(b) (WHERE OTHERWISE PAYABLE): where Collections are not received by
the Servicer but are otherwise payable by the Servicer or a
Seller in accordance with clauses 14, 15.1(j), 16, 18, 24, 25, 26
or 30 of this Deed, when they fall due for payment to the Trustee
from the Servicer or that Seller.
22.5 WHILE COLLECTIONS ACCOUNT WITH COMMONWEALTH BANK
If the Collections Account is permitted to be maintained with the
Servicer and:
(a) (A-1+/P-1 RATING): the Servicer is assigned short term credit
ratings by the Rating Agencies of no lower than A-1+ (in the case
of S&P) and no lower than P-1 (in the case of Xxxxx'x), then the
Servicer will be entitled to retain any Collections in respect of
a Collection Period until 10.00 am on the Business Day which is
two Business Days preceding the Distribution Date for the
Collection Period;
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(b) (A-1/P-1 RATING): the Servicer does not have all the applicable
credit ratings specified in clause 22.5(a), but is assigned short
term credit ratings of no lower than A-1 (in the case of S&P) and
no lower than P-1 (in the case of Xxxxx'x), then the Servicer
will be entitled to retain any Collections in respect of a
Collection Period until 10.00 am on the Business Day which is the
earlier of two Business Days preceding the Distribution Date for
the Collection Period and 30 days from receipt of such
Collections, provided that while the sum of:
(i) all Collections then held by the Servicer; and
(ii) the aggregate value of the Authorised Short-Term
Investments in relation to the Series Trust which are
with, or issued by, a bank or financial institution
which then has assigned to it by S&P a short term
credit rating of A-1,
exceeds 20% of the then aggregate of the Stated Amounts of the
Securities, the Servicer will only be entitled to retain any
additional Collections received in respect of a Collections
Period until 10.00 am on the Business Day which is 2 Business
Days from the receipt of such Collections; or
(c) (LOWER THAN A-1/P-1 RATING): the Servicer has no credit ratings
or is assigned a short term credit rating by the Rating Agencies
lower than A-1 (in the case of S&P) and lower than P-1 (in the
case of Xxxxx'x), then the Servicer will be entitled to retain
any Collections, in respect of a Collection Period until 10.00 am
on the Business Day which is two Business Days from receipt of
such Collections,
and must at that time pay such Collections into the Collections Account
together with an amount of interest (in the case of paragraphs (a) and
(b)) equal to the amount that would have been earned had such
Collections been paid into the Collections Account within 5 Business
Days of their receipt by the Servicer.
22.6 WITHDRAWALS FROM COLLECTIONS ACCOUNTS
Subject to this Deed, the Trustee will withdraw funds from the
Collections Account and apply the same when necessary for the following
outgoings:
(a) (PAYMENTS TO SECURITYHOLDERS AND UNITHOLDERS): making payments to
the Securityholders or the Unitholders;
(b) (ELIGIBLE INVESTMENTS): purchasing Authorised Short-Term
Investments in compliance with this Deed and making payments
required in connection with Authorised Short-Term Investments;
(c) (EXPENSES AND TAXES): paying Expenses and Taxes in accordance
with this Deed or the Master Trust Deed; and
(d) (OTHER PAYMENTS): making payments, in accordance with the
Transaction Documents to (or at the direction of) the Trustee,
the Manager, the Servicer, the Security Trustee, any Support
Facility Provider or any other Creditor of the Series Trust.
22.7 ALL TRANSACTIONS THROUGH COLLECTIONS ACCOUNT
Unless otherwise directed by the Manager, all moneys and proceeds
referred to in clauses 22.4 and 22.5 will be credited to the
Collections Account and all outgoings referred to in clause 22.6 will
be paid from the Collections Account.
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22.8 TITLE TO AND CONTROL OF COLLECTIONS ACCOUNT
The Collections Account and all rights to it and the funds standing to
its credit from time to time is an Asset of the Series Trust. At all
times the Collections Account will be under the sole control of the
Trustee.
22.9 NO DEDUCTIONS BY SERVICER
If the Collections Account is maintained with the Servicer, the
Servicer agrees that it will have no right of set-off, banker's lien,
right of combination of accounts, right to deduct moneys or any other
analogous right or Security in or against any funds held in the
Collections Account for any amount owed to the Servicer.
22.10 PREPAYMENTS UNDER LIQUIDITY FACILITY
All prepayments made to the Trustee in respect of the Liquidity
Facility Agreement must be deposited in the Collections Account.
Amounts so deposited must not be withdrawn by the Trustee other than at
the direction of the Manager in accordance with the Liquidity Facility
Agreement or to be paid into a new Collections Account opened in
accordance with clause 22.3.
22.11 SERVICER MAY RETAIN INCOME FROM COLLECTIONS
Subject to clause 22.5, where the Servicer has received Collections but
it is not required pursuant to this Deed to deposit those Collections
into the Collections Account until a later date, the Servicer may
retain any interest and other income derived by the Servicer from those
Collections for the period up to when the Servicer is required to
deposit them under this Deed into the Collections Account.
22.12 BANK ACCOUNT TAXES
Interest earned on amounts standing to the credit of the Collections
Account shall be determined net of all Taxes levied specifically in
respect of debits or credits to or on deposit accounts.
22.13 OPENING OF ADDITIONAL ACCOUNTS WHERE COLLECTIONS ACCOUNT IS WITH AN
ELIGIBLE DEPOSITORY
If at any time:
(a) (COLLECTIONS ACCOUNT WITH ELIGIBLE DEPOSITORY): there are
Collections deposited in a Collections Account with an Eligible
Depository;
(b) (REQUIRED RATING): the then short term credit rating assigned by
S&P to the Eligible Depository is no higher than A-1 and the
obligations of that Eligible Depository in respect of the
Collections Account are rated, or considered by S&P to be
equivalent to obligations rated, less than A-1+; and
(c) (CREDIT BALANCE OF COLLECTIONS ACCOUNT): the sum of:
(i) all amounts then credited to the Collections Account;
and
(ii) the aggregate value of the Authorised Short-Term
Investments in relation to the Series Trust which are
with, or are issued, endorsed (with recourse) or
accepted by, a bank or financial institution which has
then assigned to it by the Rating Agency a short term
credit rating of A-1,
exceeds 20% of the Total Invested Amount of the Notes,
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then:
(d) (NEW COLLECTIONS ACCOUNT): the Trustee must, upon becoming
actually aware of the occurrence of that event, immediately open
a new Collections Account with another Eligible Depository which
has assigned to it a short term credit rating by S&P of A-1+;
(e) (AMOUNTS IN EXCESS TRANSFERRED): an amount equal to the excess
referred to in clause 22.13(c) must be transferred by the Trustee
from the Collections Account referred to in clause 22.13(a) to
the new Collections Account;
(f) (SUBSEQUENT DEPOSITS): all subsequent amounts received by, or
payable to, the Trustee in respect of the Series Trust must be
deposited in the Collections Account referred to in clause
22.13(a) to the extent that such amounts can be deposited in that
Collections Account in accordance with, and without breaching the
restrictions on such deposit set out in, clause 22.13(c); and
(g) (BALANCE TRANSFERRED): the balance of the amounts received by, or
payable to, the Trustee in respect of the Series Trust must be
deposited in the new Collections Account established pursuant to
clause 22.13(d) and in accordance with clauses 22.4 and 22.5.
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23. CLEAN-UP AND EXTINGUISHMENT
23.1 NOTIFICATION OF TRIGGER EVENT BY MANAGER TO CBA
If (unless otherwise required by CBA):
(a) (10% THRESHOLD): the event referred to in Condition 7.3 of the US
Dollar Note Conditions has occurred or is expected to occur on
the next Distribution Date; or
(b) (OTHER REDEMPTION EVENT): both of the following events occur:
(i) an event referred to in Condition 7.4(a) or (b) has
occurred; and
(ii) CBA has prior thereto notified the Manager that the
Australian Prudential Regulation Authority will permit
CBA to exercise its rights under this clause 23 on
behalf of both Sellers (notwithstanding that the event
referred to in clause 23.1(a) has not occurred),
the Manager must promptly request CBA by telephone or orally whether
CBA wishes to exercise its rights on behalf of the Sellers pursuant to
this clause 23.
23.2 RESPONSE BY CBA
CBA may at any time after receiving (or after it ought to receive) a
request from the Manager pursuant to clause 23.1, and prior to the
Termination Date, advise the Manager by telephone or orally, that it
requires to exercise the rights of the Sellers pursuant to this clause
23 and nominating a Distribution Date as the Clean-up Settlement Date.
The Manager must then promptly advise the Trustee of such advice and
(if applicable) such nomination by CBA. Any such nomination by CBA
shall be binding on both Sellers.
23.3 DETERMINATION OF CLEAN-UP SETTLEMENT DATE
If CBA advises the Manager pursuant to clause 23.2 that it requires to
exercise the rights of the Sellers pursuant to this clause 23:
(a) (CLEAN-UP SETTLEMENT DATE TO COINCIDE WITH REDEMPTION OF
SECURITIES): if any Securities have been issued and have not then
been redeemed, the Manager must,
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subject to clause 23.4(b), in accordance with Conditions 7.3 or
7.4 (as applicable) of the US Dollar Note Conditions direct the
Trustee to give a notice in accordance with such Condition (which
the Trustee must give) that on the Distribution Date nominated by
CBA pursuant to clause 23.2 (which must be a complying
Distribution Date in accordance with such Condition) a redemption
of the Securities will occur pursuant to such Condition (in which
case, such nominated and complying Distribution Date will be the
Clean-Up Settlement Date); or
(b) (OTHERWISE, DATE NOMINATED BY CBA): otherwise, the Clean-Up
Settlement Date will be the Distribution Date nominated by CBA as
the Clean-Up Settlement Date pursuant to clause 23.2.
23.4 CLEAN-UP SETTLEMENT PRICE
(a) (CALCULATION): The Clean-Up Settlement Price will be the amount
determined by the Manager to be the aggregate of the Fair Market
Value (as at the last day of the Accrual Period ending
immediately before the proposed Clean-Up Settlement Date) of each
Mortgage Loan then forming part of the Assets of the Series
Trust.
(b) (MINIMUM CLEAN-UP SETTLEMENT PRICE): If any Securities have been
issued and have not then been redeemed (or deemed to be redeemed)
and if the amount of the Clean-Up Settlement Price determined by
the Manager (when combined with the other Assets that will be
available to the Trustee) is not sufficient to ensure, upon
payment by the Sellers to the Trustee pursuant to clause 23.5,
that the Trustee would be in a position on the proposed Clean-Up
Settlement Date to redeem the Securities in full in accordance
with Condition 7.3 or 7.4 (as applicable) of the US Dollar Note
Conditions, the Manager must not give a direction to the Trustee
pursuant to clause 23.3(a). If such amount would be so
sufficient, the Manager's direction pursuant to clause 23.3(a)
must be accompanied by a notification to the Trustee of such
amount and the certificate referred to in Condition 7.5 of the US
Dollar Note Conditions.
(c) (MINIMUM NOT SUFFICIENT): If the Manager cannot issue the
direction referred to in clause 23.4(b) as a result of such
clause, nothing herein prevents CBA issuing a further advice to
the Manager pursuant to clause 23.2 at a later date, in which
case the procedures and provisions of this clause 23 will
thereupon take effect again (including this clause 23.4(c)),
subject to the requirements herein contained.
23.5 PAYMENT OF CLEAN-UP SETTLEMENT PRICE
(a) (PAYMENT): Subject to clause 23.5(b), the Sellers must pay to the
Trustee, in immediately available funds, the Clean-Up Settlement
Price on the Clean-Up Settlement Date. Each Seller's liability
under this clause 23.5(a) will be determined according to the
proportion which the Fair Market Value of the Mortgage Loans
referable to that Seller and described in clause 23.4(a) bears to
the total Fair Market Value of all Mortgage Loans described in
clause 23.4(a).
(b) (WAIVER OF REDEMPTION BY CLASS A-1 NOTEHOLDERS): If a proposed
payment pursuant to clause 23.5(a) is as a result of the
occurrence of the event referred to in Condition 7.4(a) of the US
Dollar Note Conditions in respect of only the Class A-1 Notes and
the Trustee is not required to redeem the Class A-1 Notes as a
result of an election to this effect by the Class A-1 Noteholders
in accordance with Condition 7.4, the Sellers must not make the
proposed payment referred to in clause 23.5(a) on the proposed
Clean-Up Settlement Date (but without limiting the operation of
clause 23.4(c) in respect of any other event that has occurred or
may occur under clause 23.1).
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23.6 EFFECT OF PAYMENT OF CLEAN-UP SETTLEMENT PRICE
Upon receipt of the Clean-Up Settlement Price by the Trustee in
immediately available funds, the Trustee's entire right, title and
interest in the Mortgage Loan Rights then forming part of the Assets of
the Series Trust will be extinguished in favour of the relevant Seller
with immediate effect from the last day of the Collection Period which
ended prior to the Clean-Up Settlement Date. The Trustee must execute
whatever documents the Sellers reasonably require to complete the
extinguishment of the Trustee's right, title and interest in the
Mortgage Loan Rights.
23.7 COSTS
Each Seller must pay to, or reimburse, the Trustee immediately on
demand for all costs and expenses, including, without limitation, any
stamp duty and registration fees, arising out of or necessarily
incurred in connection with the exercise of such Seller's rights
pursuant to this clause 23.
23.8 ALTERNATIVE STRUCTURE
The Trustee must co-operate with the Sellers in implementing
alternative means to permit the Sellers to have the benefit of the
Mortgage Loan Rights referred to in clause 23.6 other than as set out
in this clause 23 if to do so would materially reduce the liability of
the Sellers to reimburse the Trustee for any of the costs and expenses
set out in clause 23.7 and provided that any proposed alternative means
pursuant to this clause is permitted in law and does not result in the
Trustee being exposed to the risk of personal liability unless the
Trustee is satisfied, in its absolute discretion, that the Sellers will
be able to indemnify the Trustee in respect of such risk in accordance
with clause 2.15(a).
23.9 ALTERNATIVE FUNDING ARRANGEMENTS TO PERMIT REDEMPTION
Nothing in this clause 23 prevents the Manager and the Trustee
exercising any other rights and powers conferred upon them by this Deed
or the Master Trust Deed (in so far as it applies to the Series Trust)
to enable the redemption of the Securities as contemplated by
Conditions 7.3 and 7.4 of the US Dollar Note Conditions.
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24. PERFECTION OF TITLE
24.1 PERFECTION OF TITLE EVENT
A Perfection of Title Event occurs if:
(a) (BREACH OF SELLER REPRESENTATIONS): a Seller makes any
representation or warranty under a Transaction Document to which
it is expressed to be a party that proves to be incorrect when
made (other than a representation or warranty in respect of which
payment has been made, or is not yet due to be made, in
accordance with clauses 14.6 and 14.9(a)), or breaches any
covenant or undertaking given by it in such a Transaction
Document, and that has or, if continued will have, an Adverse
Effect and:
(i) the same is not satisfactorily remedied so that it no
longer has or will have, an Adverse Effect, within 20
Business Days of notice thereof being delivered to that
Seller by the Manager or the Trustee; or
(ii) if paragraph (i) is not satisfied, that Seller has not
within 20 Business Days of such notice paid
compensation to the Trustee for its loss from such
breach in an amount satisfactory to the Trustee acting
reasonably (such compensation cannot exceed the
aggregate of the principal amount outstanding in
respect of the corresponding Mortgage Loan (as recorded
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on the Mortgage Loan System) and any accrued or unpaid
interest in respect of the Mortgage Loan (calculated in
both cases at the time of payment of the
compensation)).
The Trustee must, in such notice, specify the reasons why it
believes an Adverse Effect has occurred, or will occur (as the
case may be);
(b) (SERVICER DEFAULT): if CBA is the then Servicer, a Servicer
Default occurs;
(c) (SELLER INSOLVENCY EVENT): an Insolvency Event occurs in relation
to a Seller;
(d) (CBA BREACH OF INTEREST RATE SWAP AGREEMENT): if CBA is a then
Interest Rate Swap Provider under a Fixed Rate Swap or an
Interest Rate Basis Cap, CBA fails to make any payment due under
the corresponding Interest Rate Swap Agreement and such failure:
(i) has or will have, as reasonably determined by the
Trustee, an Adverse Effect; and
(ii) is not remedied by CBA within 20 Business Days (or such
longer period as the Trustee may agree to) of notice
thereof being delivered to CBA by the Manager or the
Trustee; or
(e) (DOWNGRADING OF CBA): a downgrading in the long term debt rating
of CBA below the Specified Rating (or such other rating in
respect of CBA as is agreed between the Manager, CBA and the
Rating Agency which had assigned the relevant Specified Rating).
24.2 DECLARATION OF PERFECTION OF TITLE EVENT
If a Perfection of Title Event (of which the Trustee is actually aware)
is subsisting, the Trustee must, as soon as is practicable, by notice
in writing to the Sellers, the Servicer, the Manager and the Rating
Agencies declare that a Perfection of Title Event has occurred unless
each Rating Agency issues a Rating Affirmation Notice to the Trustee
(with a copy to the Manager) prior to the declaration in respect of
such Perfection of Title Event.
24.3 PERFECTION OF TITLE
If, and only if, a declaration is made by the Trustee in accordance
with clause 24.2, the Trustee and the Manager must as soon as
practicable:
(a) (PERFECT TITLE): take all necessary steps to perfect in the name
of the Trustee the Trustee's legal title to the Mortgages then
forming part of the Assets of the Series Trust, including
lodgement of Mortgage Transfers (where necessary, executed under
a Power of Attorney) with the land titles office of the
appropriate jurisdiction to achieve registration of the Mortgages
then forming part of the Assets of the Series Trust;
(b) (NOTIFY BORROWERS): notify the relevant Borrowers of the sale of
the Mortgage Loans and Mortgages then forming part of the Assets
of the Series Trust including informing them (where appropriate)
that they should make payment to the Series Trust Account
specified to them by the Trustee; and
(c) (POSSESSION OF LOAN FILES): take possession of all Loan Files
(subject to the Privacy Act and each Seller's duty of
confidentiality to its customers under general law or otherwise).
The Trustee and the Manager may, if necessary to obtain
possession, enter into the premises of the Servicer at which the
Loan Files are stored.
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24.4 TRUSTEE TO LODGE CAVEATS
If the Trustee does not hold the Mortgage Documents necessary to vest
fully and effectively in the Trustee each Seller's legal right, title
and interest in and to any Mortgage Loan, the Trustee must, within 5
Business Days after the declaration by the Trustee of a Perfection of
Title Event in accordance with clause 24.2, lodge or enter, to the
extent of the information available to it, a caveat or similar
instrument in respect of the Trustee's interest in the Mortgage Loan.
24.5 TRUSTEE TO HOLD LEGAL TITLE OR LODGE CAVEATS
The Trustee must, in respect of each Mortgage Loan then forming part of
the Assets of the Series Trust, within 30 Business Days after the
declaration by the Trustee of a Perfection of Title Event in accordance
with clause 24.2, either have commenced to take all necessary steps to
perfect the legal title to that Mortgage Loan or have lodged or entered
a caveat or similar instrument in respect of the Trustee's interest in
that Mortgage Loan.
24.6 POWERS OF ATTORNEY
The Trustee must only use the Powers of Attorney to execute Mortgage
Transfers in respect of Mortgages then forming part of the Assets of
the Series Trust and only then if it has declared a Perfection of Title
Event in accordance with clause 24.2.
24.7 OTHER LOANS
Following a declaration in accordance with clause 24.2, the Trustee
must continue to hold its interest in the CBA Trust Assets in
accordance with this Deed.
24.8 INDEMNITY
CBA indemnifies the Trustee against all loss, costs, damages, charges
and expenses incurred by the Trustee in perfecting the Trustee's title
to the Mortgages then forming part of the Assets of the Series Trust in
accordance with clause 24.3, including legal costs charged at the usual
commercial rates of the relevant legal services provider, all
registration fees, stamp duty and the cost of preparing and
transmitting all necessary documentation.
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25. SERVICER AS CUSTODIAN OF THE MORTGAGE LOAN DOCUMENTS
25.1 SERVICER AS CUSTODIAN
The Servicer shall hold the Mortgage Documents in relation to the
Sellers' Mortgage Loans and which from time to time form part of the
Assets of the Series Trust (the "RELEVANT MORTGAGE DOCUMENTS") as
custodian on behalf of the Trustee from and including the Closing Date
until a Document Transfer Event occurs.
25.2 APPLICATION OF THE BALANCE OF THIS CLAUSE
The remaining provisions of this clause 25 only apply if and while the
Servicer remains as custodian of the Relevant Mortgage Documents.
25.3 SERVICER'S COVENANTS AS CUSTODIAN
The Servicer covenants with the Trustee that it will:
(a) (HOLD DOCUMENTS IN ACCORDANCE WITH ITS NORMAL PRACTICE): hold the
Relevant Mortgage Documents in accordance with its standard
safekeeping practices and in the same manner and to the same
extent as it holds its own documents;
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(b) (SEGREGATE DOCUMENTS): mark and segregate the security packages
containing the Relevant Mortgage Documents in a manner to enable
the easy identification of them by the Trustee (when the Trustee
is at the premises at which the Relevant Mortgage Documents are
located and in possession of the letter delivered to it pursuant
to clause 6.1(k));
(c) (REPORTING): maintain reports on movements of the Relevant
Mortgage Documents; and
(d) (DEFICIENCIES IN DOCUMENT CUSTODY AUDIT REPORT): cure any
exceptions or deficiencies noted by the Auditor of the Series
Trust in a Document Custody Audit Report; and
(e) (POWER OF ATTORNEY): exercise any power of attorney granted by
Homepath solely in relation to its duties as Custodian or in
relation to any non-compliance by Homepath with clause 25.12 and
upon the instruction of the Trustee.
25.4 SERVICER'S UPDATE OF COMPUTER DISKETTE
(a) (QUARTERLY UPDATES): The Servicer must deliver to the Trustee on
each Distribution Date a computer diskette in a format acceptable
to the Trustee updating the information referred to in clause
6.1(j).
(b) (ADVERSE DOCUMENT CUSTODY AUDIT REPORT): In addition to its
obligations under clause 25.4(a), if there is an Adverse Document
Custody Audit Report the Servicer must deliver to the Trustee
within 20 Business Days thereafter (or such longer period as may
be agreed between the Servicer and the Trustee) a computer
diskette updating the information referred to in clause 6.1(j)
and containing the Caveat and Transfer Details in respect of each
Mortgage Loan then forming part of the Assets of the Series
Trust.
25.5 SERVICER'S INDEMNITY IN RESPECT OF INCORRECT INFORMATION ON COMPUTER
DISKETTE
If the Servicer:
(a) (FAILS TO SUPPLY INFORMATION): fails to supply adequate
information; or
(b) (SUPPLIES INCORRECT INFORMATION): supplies inaccurate or
incomplete information,
on the computer diskettes delivered pursuant to clause 6.1(j) or 25.4
and as a result the Trustee is unable (when entitled to do so under
this Deed) to lodge and register Caveats and Mortgage Transfers upon
the occurrence of a Document Transfer Event or a Perfection of Title
Event, then the Servicer (as custodian) indemnifies the Trustee
(whether for its own account or for the account of the Securityholders)
for all actions, loss, damage, costs (including legal costs charged at
the usual commercial rates of the relevant legal services provider),
charges and expenses suffered as a result.
25.6 DOCUMENT CUSTODY AUDIT REPORT
The Manager or the Trustee (due to default by the Manager) must retain
the Auditor of the Series Trust to conduct periodic reviews (determined
in accordance with clause 25.9) in respect of the Servicer's role as
custodian of the Relevant Mortgage Documents. The Auditor must review:
(a) (CUSTODIAL PROCEDURES): the custodial procedures adopted by the
Servicer; and
(b) (ACCURACY OF INFORMATION): the accuracy of information in respect
of the Mortgage Loans contained on:
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(i) the Security Register; and
(ii) the most recent of the computer diskettes provided to
the Trustee pursuant to clauses 6.1(j) and 25.4.
25.7 DETAILS OF DOCUMENT CUSTODY AUDIT REPORT
(a) (CUSTODY PROCEDURES): In respect of the review referred to in
clause 25.6(a), the Manager must instruct the Auditor of the
Series Trust that its review should consist of reporting on
whether:
(i) the Relevant Mortgage Documents are capable of
identification and are distinguishable from the other
assets of the Servicer;
(ii) controls exist such that the Relevant Mortgage
Documents may not be removed or tampered with except
with appropriate authorisation; and
(iii) an appropriate tracking system is in place such that
the location of the security packages containing the
Relevant Mortgage Documents can be detected at any time
and the location of the Relevant Mortgage Documents
(other than the Relevant Mortgage Documents in relation
to the First Layer of Collateral Securities but
including any Insurance Policy or certificate of
currency for an Insurance Policy in relation to a
Mortgage Loan) can be detected at any time.
(b) (ACCURACY OF INFORMATION): In respect of the review referred to
in clause 25.6(b)(i), the Manager must instruct the Auditor of
the Series Trust to review a sample of security packets in
respect of the Mortgage Loans then forming part of the Assets of
the Series Trust to determine whether they contain the following
(which accord, where applicable, with the information contained
in the computer diskette referred to in clause 25.6(b)(ii)):
(i) an original counterpart of the corresponding Mortgage;
(ii) the Certificate of Title (if any) in respect of the
Land the subject of the Mortgage; and
(iii) (where applicable) any Mortgage Insurance Policy in
respect of the corresponding Mortgage other than the
PMI Mortgage Insurance Policy.
If such security packets do not contain any of the foregoing, the
Auditor must determine if there is an adequate explanation
regarding the documents not in the security packets or whether
the security packets or the Servicer's records indicate the
location of the missing documents.
The Manager must instruct the Auditor to confirm (after having
conducted the above reviews) the accuracy of the information in
respect of the above contained in both the Security Register and
the computer diskette referred to in clause 25.6(b)(ii).
25.8 DOCUMENT CUSTODY AUDIT REPORT
The Manager must instruct the Auditor of the Series Trust to provide a
Document Custody Audit Report in respect of the Servicer in which the
Auditor, based on its reviews referred to in clause 25.7, specifies a
grade of the overall custodial performance by the Servicer, based on
the following grading system:
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"A" Good - All control procedures and accuracy of
information in respect of Mortgage Loans
testing completed without exception.
"B" Satisfactory - Minor exceptions noted.
"C" Improvement required - Base internal controls are in place but a
number of issues were identified that
need to be resolved for controls to be
considered adequate; and/or
Testing of the information in respect of
Mortgage Loans identified a number of
minor exceptions which are the result of
non-compliance with the control system.
"D" Adverse - Major deficiencies in internal controls
were identified. Cannot rely on the
integrity of the information in respect
of Mortgage Loans on the Security
Register and the diskettes delivered
pursuant to clauses 6.1(j) and 25.4.
25.9 TIMING OF DOCUMENT CUSTODY AUDIT REPORTS
The Manager (or the Trustee if the Manager fails to do so) must
instruct the Auditor of the Series Trust to prepare a Document Custody
Audit Report immediately after delivery of the computer diskette
referred to in clause 6.1(j) and annually on 30 September of each year
thereafter (not including the year in which the first Document Custody
Audit Report is prepared) (or such other period as may be agreed by the
Manager, the Trustee and the Ratings Agencies). The Manager (or the
Trustee if the Manager fails to do so) must require the Auditor to
deliver a copy of each Document Custody Audit Report to the Trustee,
with a copy to the Manager and the Servicer.
25.10 ADVERSE DOCUMENT CUSTODY AUDIT REPORT
If the Auditor issues an Adverse Document Custody Audit Report to the
Trustee, the Trustee must instruct the Auditor to conduct a further
Document Custody Audit Report no sooner than 1 month but no later than
2 months after the date of receipt by the Trustee of the Adverse
Document Custody Audit Report. The Manager must instruct the Auditor to
deliver the further Document Custody Audit Report to the Trustee, with
a copy to the Manager and the Servicer.
25.11 DOCUMENT TRANSFER EVENT
Upon the occurrence of any of the following:
(a) (FURTHER ADVERSE DOCUMENT CUSTODY AUDIT REPORT): a further
Document Custody Audit Report pursuant to clause 25.10 is an
Adverse Document Custody Audit Report; or
(b) (TRUSTEE AS SERVICER): the Trustee replaces CBA as the Servicer,
a Document Transfer Event occurs. The Trustee must immediately upon
becoming actually aware of a Document Transfer Event deliver a notice
to the Servicer notifying it of the occurrence of a Document Transfer
Event. Upon receipt of such notice the Servicer must transfer custody
of the Relevant Mortgage Documents held by it to the Trustee. Subject
to clause 25.14, this requirement will be treated as being satisfied
if:
(c) (DELIVERY OF 90% OF MORTGAGE DOCUMENTS): within 5 Business Days
of the above notice being received, all Mortgage Documents in
relation to at least 90% (by
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number) of the Mortgage Loans then part of the Assets of the
Series Trust are delivered to the Trustee; and
(d) (REMAINING MORTGAGE DOCUMENTS): any remaining Relevant Mortgage
Documents are delivered to the Trustee within 10 Business Days of
the above notice being received.
25.12 FAILURE TO COMPLY WITH CLAUSE 25.11
If the Servicer does not comply with the requirements of clause 25.11
(subject to clause 25.14) within either of the specified time limits
specified in clause 25.11(c) & (d), the Trustee must (unless the
Trustee is satisfied, in its absolute discretion, that the Servicer has
used its best endeavours to deliver the Mortgage Documents and has made
appropriate arrangements for the remaining Mortgage Documents to be
delivered in accordance with clause 25.11 (subject to clause 25.14)
within a reasonable period as determined by the Trustee (but in any
event no longer than 10 Business Days from the date that they were due
to be delivered in accordance with clause 25.11 (subject to clause
25.14) except where the Trustee is satisfied, in its absolute
discretion, that the failure to deliver the remaining Mortgage
Documents arises from circumstances beyond the control of the
Servicer)) to the extent to which it has information available to it at
the time:
(a) (LODGE CAVEATS): execute and lodge Caveats in respect of all Land
or Mortgages (as the case may be) for which all Mortgage
Documents in respect of the Series Trust have not been delivered;
and
(b) (BRING PROCEEDS FOR POSSESSION): initiate legal proceedings to
take possession of the Mortgage Documents in respect of the
Series Trust that have not been delivered,
and to the extent that the Trustee cannot do so, as a result of not
having information available to it to do so, the indemnity in clause
25.5 applies.
The Trustee must discontinue any legal proceedings initiated in
accordance with this clause 25.12 if the Mortgage Documents in question
are delivered to the Trustee.
25.13 EMERGENCY DOCUMENT TRANSFER
If:
(a) (A PERFECTION OF TITLE EVENT OCCURS): a Perfection of Title Event
(other than a Servicer Default referred to in clause 18.1(g)) is
declared by the Trustee in accordance with clause 24.2 and the
Trustee notifies the Sellers and the Servicer of that fact (which
the Trustee must do immediately upon declaring any such
Perfection of Title Event); or
(b) (NOMINATED SERVICER DEFAULT): for the purposes of this clause
only and not for any other purpose under this Deed:
(i) the Trustee considers in good faith that the conditions
of clause 18.1(g) have been satisfied; and
(ii) the Trustee serves a notice on the Servicer identifying
the reasons why the Trustee considers that those
conditions have been satisfied and why, in the
Trustee's opinion, an Adverse Effect has or may occur
as a result,
then, subject to clause 25.14, the Servicer must immediately upon
receipt of a notice under paragraph (a) or (b) transfer custody of the
Relevant Mortgage Documents to the Trustee. The Trustee may, in such
circumstances, commence legal proceedings to obtain possession of the
Relevant Mortgage Documents and may enter into the premises of the
Servicer at which the
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Relevant Mortgage Documents are stored and take away from such premises
the Relevant Mortgage Documents.
25.14 EXCEPTIONS TO TRANSFER
The obligations of the Servicer to transfer custody of the Relevant
Mortgage Documents to the Trustee pursuant to clause 25.11 or 25.13 do
not extend to such documents which the Servicer can prove, to the
reasonable satisfaction of the Trustee, are deposited with a solicitor
(acting on behalf of the Servicer), a land titles office, a stamp
duties office or any other Governmental Agency. The Servicer must
provide a list of such documents to the Trustee together with any which
have been lost (and a statutory declaration duly completed that the
contents of the list are, to the best of the knowledge and belief of
the maker, true and correct) within 14 days of the above notice having
been received by it. In respect of Relevant Mortgage Documents that are
so deposited, the Servicer must deliver these to the Trustee
immediately upon receipt from the solicitor or relevant office and, in
respect of Mortgage Documents that are lost, the Servicer must take all
reasonable steps satisfactory to the Trustee to promptly replace such
Relevant Mortgage Documents.
25.15 INDEMNITY BY THE SERVICER
The Servicer indemnifies the Trustee against all loss, costs, damages,
charges and expenses incurred by the Trustee:
(a) (SERVICER BREACH): as a result of a breach by the Servicer of
clause 25.11; or
(b) (LEGAL PROCEEDINGS): in connection with the Trustee taking the
action referred to in clause 25.12 or the legal proceedings
referred to in clause 25.13,
including all registration fees, stamp duty, legal costs charged at the
usual commercial rates of the relevant legal services provider and the
cost of preparing and transmitting all necessary documentation.
25.16 TRUSTEE TO CO-OPERATE WITH SERVICER
If the Trustee holds any Relevant Mortgage Document and if the Trustee
receives from the Servicer a satisfactory undertaking, the Trustee must
release to the Servicer from time to time such Relevant Mortgage
Documents as are reasonably required by the Servicer to perform its
obligations as Servicer under this Deed.
25.17 SPECIFIC PERFORMANCE
If the Servicer breaches it obligations under clauses 25.11 to 25.14,
it is agreed that damages alone will not be an adequate remedy for such
a breach and that the Trustee is entitled to sue the Servicer for
specific performance of its obligations under clauses 25.11 to 25.14.
25.18 TRUSTEE'S DUTY WHILE HOLDING MORTGAGE DOCUMENTS
While the Trustee holds any Mortgage Documents, it must hold them in
accordance with its standard safekeeping practices and in the same
manner and to the same extent as it holds equivalent mortgage documents
as trustee.
25.19 REAPPOINTMENT OF SERVICER AS CUSTODIAN
If following a Document Transfer Event:
(a) (TRUSTEE DETERMINES SERVICER IS APPROPRIATE): the Trustee is
satisfied, notwithstanding the occurrence of the Document
Transfer Event, that the Servicer is an appropriate person to act
as custodian of all or part of the Relevant Mortgage Documents;
and
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(b) (RATING AFFIRMATION): each Rating Agency issues a Rating
Affirmation Notice in respect of the re-appointment of the
Servicer,
then the Trustee may by agreement with the Servicer re-appoint the
Servicer to act as custodian of those Mortgage Documents upon such
terms as are agreed between the Trustee and the Servicer and approved
by the Manager. This clause 25 will apply following the re-appointment
of the Servicer as custodian of the Relevant Mortgage Documents under
this clause 25.19.
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26. TERMINATION OF THE SERIES TRUST
26.1 POTENTIAL TERMINATION EVENTS
(a) (NOTIFY POTENTIAL TERMINATION EVENT): If the Trustee, the Manager
or the Servicer becomes aware of the occurrence of a Potential
Termination Event it must promptly notify in writing the others
and the Security Trustee and the US Dollar Note Trustee.
(b) (TRUSTEE MUST DETERMINE WHETHER POTENTIAL TERMINATION EVENT HAS
ADVERSE EFFECT): Upon becoming aware of a Potential Termination
Event, the Trustee must promptly determine whether in its
reasonable opinion the Potential Termination Event has or will
have an Adverse Effect and must promptly thereafter notify in
writing the Manager, the Servicer, the Security Trustee and the
US Dollar Note Trustee of its determination.
(c) (RESTRUCTURING): If the Trustee determines pursuant to clause
26.1(b) that a Potential Termination Event has or will have an
Adverse Effect , the Servicer, the Trustee and the Manager must
consult and use their reasonable endeavours (in consultation with
the Security Trustee, the US Dollar Note Trustee and, if
necessary the Unitholders) to amend or vary the terms of this
Deed, any other relevant Transaction Document and the Securities
in respect of the Series Trust, in such a way so as to cure the
Potential Termination Event or its Adverse Effect.
(d) (WIND UP THE SECURITY TRUST): If such consultations do not result
in the cure of the Potential Termination Event or its Adverse
Effect (with the consent of the Servicer, the Trustee, the
Manager, the Security Trustee and the US Dollar Note Trustee)
within 60 days of notice being given by the Trustee pursuant to
clause 26.1(b), then the Trustee must proceed to liquidate the
Assets of the Series Trust in accordance with the remainder of
this clause 26.
26.2 DETERMINATION OF TERMINATION PAYMENT DATE
The Trustee must as soon as practicable following the Termination Date
of the Series Trust, declare on the direction of the Servicer and the
Manager, a date as the Termination Payment Date (which, if Securities
have been issued and have not then been redeemed (or deemed to be
redeemed) in full, must be a Distribution Date and must not be the next
Distribution Date immediately after the declaration if the
Determination Date in relation to that Distribution Date has then
passed), being a date by which the Trustee reasonably believes that the
sale and distribution of the Assets of the Series Trust will be
completed in accordance with this clause 26. Based on the direction of
the Servicer and the Manager, the Trustee may substitute another date
as the Termination Payment Date (which, if the Securities have not then
been redeemed in full, must be a Distribution Date) if it reasonably
believes that the Assets will not in fact be sold and distributed by
the then declared Termination Payment Date.
26.3 REALISATION OF ASSETS
Upon the occurrence of the Termination Date of the Series Trust, the
Trustee, in consultation with the Manager, must sell and realise the
Assets of the Series Trust (and, in relation to the
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sale (other than pursuant to clause 26.5) of any Mortgage Loan Rights
forming part of the Assets of the Series Trust, the Trustee must obtain
appropriate expert advice prior to the sale) and such sale (so far as
reasonably practicable and reasonably commercially viable) must be
completed within 180 days of the Termination Date provided that during
the period of 180 days from the Termination Date:
(a) (FAIR MARKET VALUE): the Trustee must not offer to sell the
Mortgage Loan Rights for less than their Fair Market Value;
(b) (SALE IN ACCORDANCE WITH CLAUSE 26.4): the Trustee must not sell
any Mortgage Loan Rights unless the sale is on terms in
accordance with clause 26.4; and
(c) (RIGHT OF FIRST REFUSAL): the Trustee must not sell any Mortgage
Loan Rights unless it has offered the Mortgage Loan Rights for
sale to the Sellers in accordance with clause 26.5 and CBA has
either not accepted that offer or has accepted that offer within
90 days of that Termination Date but not paid the consideration
due by the time required pursuant to clause 26.5.
26.4 CONDITIONS OF SALE DURING 180 DAYS
The Trustee must not conclude a sale pursuant to clause 26.3 (other
than pursuant to clause 26.5) unless:
(a) (EQUITABLE ASSIGNMENT ONLY): all Mortgage Loan Rights sold
pursuant to that sale are assigned in equity only (unless the
Trustee already holds legal title to such Mortgage Loan Rights);
(b) (SERVICER'S RIGHTS RETAINED): the sale is expressly subject to
the Servicer's right to be retained as Servicer of the Mortgage
Loan Rights in accordance with the terms of this Deed; and
(c) (SALE SUBJECT TO CBA TRUST): the sale is expressly subject to the
rights of the CBA Trust in respect of those Mortgage Loan Rights
pursuant to this Deed and to the rights of the beneficiary, or
beneficiaries of the CBA Trust, in respect of those Mortgage Loan
Rights pursuant to this Deed.
26.5 RIGHT OF REFUSAL TO SELLER
(a) (DEEMED OFFER TO SELLER): On the Termination Date of the Series
Trust the Trustee is deemed to irrevocably offer to extinguish in
favour of the Sellers, its entire right, title and interest in
the Mortgage Loan Rights forming part of the Assets of the Series
Trust in return for the payment to the Trustee of an amount
determined in accordance with clause 26.3(a) as at the
Termination Date.
(b) (ACCEPTANCE BY SELLER OF OFFER): CBA (on behalf of itself and
Homepath) may verbally accept the offer referred to in clause
26.5(a) within 90 days after the Termination Date of the Series
Trust and, having accepted the offer, must pay to the Trustee, in
immediately available funds, the amount referred to in clause
26.5(a) by the expiration of 180 days after the Termination Date
of the Series Trust. If CBA (on behalf of itself and Homepath)
makes such payment, the Trustee must execute whatever documents
CBA (on behalf of itself and Homepath) reasonably requires to
complete the extinguishment of the Trustee's right, title and
interest in the Mortgage Loan Rights then forming part of the
Assets of the Series Trust.
(c) (TRUSTEE MUST NOT SELL): The Trustee must not sell any Mortgage
Loan Rights referred to in clause 26.5(a) unless CBA (on behalf
of itself and Homepath) has failed to accept the offer referred
to in clause 26.5(a) within 90 days after the Termination Date
or, having accepted the offer, has failed to pay the amount
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referred to in clause 26.3(a) by the expiration of 180 days after
the Termination Date.
26.6 SALE AT LOWER PRICE
If after the expiration of the period of 180 days from the Termination
Date of the Series Trust the Trustee has not sold any Mortgage Loan
Rights which form part of the Assets of the Series Trust for the amount
determined in accordance with clause 26.3(a), the Trustee may proceed
to sell such Mortgage Loan Rights free from the prohibitions contained
in clause 26.3 and may, if necessary, sell such Mortgage Loan Rights on
the terms set out in clause 26.7 if the terms of that clause are
satisfied. If any Mortgage Loan Rights are sold for less than the price
for those Mortgage Loan Rights determined in accordance with clause
26.3(a), then any such shortfall must be allocated as provided for
clause 26.11.
26.7 CONDITIONS OF SALE AFTER 180 DAYS
Upon the expiration of the period of 180 days from the Termination Date
in respect of the Series Trust, the Trustee may, if necessary (in its
reasonable opinion) to sell the Mortgage Loan Rights forming part of
the Assets of the Series Trust for at least the amount determined in
accordance with clause 26.3(a) in respect of those Mortgage Loan
Rights:
(a) (PERFECT TITLE): take all necessary steps to perfect the
Trustee's legal title to the Mortgage Loan Rights as if a
Perfection of Title Event had occurred;
(b) (TERMINATE SERVICER): terminate the rights and obligations of the
Servicer in respect of those Mortgage Loan Rights; and
(c) (SELL MORTGAGE LOAN RIGHTS): sell the legal and beneficial
ownership in such Mortgage Loan Rights to the prospective
purchaser free of all rights of the relevant Seller to repurchase
such Mortgage Loan Rights in accordance with this Deed which
rights that Seller is deemed to have waived by its not accepting
the offer made to it in accordance with clause 26.3(a).
26.8 FURTHER CONDITIONS OF SALE AFTER 180 DAYS
If the Trustee sells the Mortgage Loan Rights pursuant to clause 26.7,
the Trustee must use reasonable endeavours to include as a condition of
the sale that the purchaser will:
(a) (CONSENT): consent to the granting in favour of the relevant
Seller of mortgages and other Security Interests subsequent to
the Mortgages and Collateral Security assigned to the purchaser;
(b) (ENTER PRIORITY AGREEMENTS): enter into priority agreements with
that Seller, in the form then specified in the Servicing
Standards, limiting the priority of the Mortgages and Collateral
Security assigned to the purchaser over any subsequent mortgages
and other Security Interests held by that Seller to the then
principal outstanding of the relevant Mortgage Loan and any
interest, fees and expenses on this amount; and
(c) (ENDEAVOUR TO OBTAIN BORROWER'S CONSENT): use reasonable
endeavours to obtain the consent of the providers of Mortgages
and Collateral Securities assigned to the purchaser, and any
other relevant person, to the grant of subsequent mortgages and
other Security Interests to that Seller.
26.9 PROCEDURES PENDING WINDING-UP
During the period commencing on the Termination Date and ending on the
Termination Payment Date:
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(a) (TRUSTEE, MANAGER AND SERVICER MUST CONTINUE TO PERFORM DUTIES):
the Trustee, the Servicer and the Manager must continue to
perform their respective roles in accordance with the Master
Trust Deed and this Deed in respect of the Assets of the Series
Trust;
(b) (COLLECTIONS TO CONTINUE TO BE PAID INTO COLLECTIONS ACCOUNT):
all Collections must continue to be deposited into the
Collections Account in accordance with this Deed;
(c) (PROCEEDS OF SALE): all proceeds arising from the sale of Assets
of the Series Trust must be deposited into the Collections
Account and must be treated for all purposes as if such proceeds
were Collections and the Manager must determine (and advise the
Trustee) which of such proceeds are to be treated as received on
account of principal amounts and which of such proceeds are to be
treated as received on account of available funds; and
(d) (TRUSTEE MUST MAKE PAYMENTS): the Trustee must continue to make
all distributions, transfers and payments determined by the
Manager as required to be made in accordance with this Deed.
26.10 COSTS ON WINDING-UP OF THE SERIES TRUST
On the Determination Date prior to the Termination Payment Date, the
Manager (in consultation with the Trustee) must in respect of the
Series Trust make provision for all Taxes, costs, charges, expenses,
claims and demands anticipated to become payable after the Termination
Payment Date in connection with or arising out of the administration or
winding up of the Series Trust, including the fees of any consultants
whom the Trustee, a Seller, the Servicer, the Security Trustee or the
Manager have employed in connection with the administration or winding
up of the Series Trust. Such costs (if any) will be treated as Expenses
by the Manager in making its determinations as to payments to be made
on the Termination Payment Date in accordance with clause 26.11.
26.11 CALCULATION OF FINAL DISTRIBUTIONS
On the Determination Date prior to the Termination Payment Date, the
Manager must determine how the amounts standing to the credit of the
Collections Account (other than amounts, if any, in respect of Cash
Advance Deposit) are to be distributed and must make such determination
in accordance with the provisions of this Deed for payments and
allocations of principal amounts and Available Income Amounts. As soon
as practicable after making such determinations, the Manager must
notify the Trustee of the allocations and payments to be made on the
Termination Payment Date in accordance with this Deed.
26.12 FINAL DISTRIBUTIONS
On the Termination Payment Date, the Trustee must make the payments
that the Manager directs it to make pursuant to clause 26.11.
26.13 INSUFFICIENT FUNDS
If the Trustee has insufficient funds to make the payments required to
be made under clause 26.12 to the Securityholders in full, the Trustee
will distribute the amount available to the Trustee in accordance with
(including the order of priority specified in) clause 10.3 in the case
of the capital of the Series Trust and clause 10.2 in the case of the
income of the Series Trust.
26.14 EXCESS FUNDS
If following the distribution of the amounts required to be distributed
by the Trustee to Securityholders pursuant to clause 26.12 the Trustee
holds any excess funds or other Assets of
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the Series Trust, the Trustee must immediately distribute such funds or
Assets to the Class B Capital Unitholder.
26.15 DISTRIBUTION TO CLASS B CAPITAL UNITHOLDER IN SPECIE
On the occurrence of an event referred to in paragraph (c)(i) of the
definition of Termination Date, the Trustee must immediately after
deducting any amount paid or provided for pursuant to clause 26.12 and
any amount payable to the Class A Capital Unitholder, distribute the
Assets of the Series Trust in full in specie to the Class B Capital
Unitholder. The Class B Capital Unitholder must take all steps
necessary on its part in order to enable the Trustee to comply with
this clause 26.15 and will reimburse the Trustee on demand for all
expenses payable in connection with such transfer.
26.16 TERMS OF IN SPECIE DISTRIBUTIONS
Any in specie distribution pursuant to clause 26.15 will be without
recourse to the Trustee and without representation or warranty by the
Trustee.
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27. GENERAL
27.1 REQUIRED CREDIT RATING
For the purposes of the Master Trust Deed in so far as it relates to
the Series Trust:
(a) (XXXXX'X): the Required Credit Rating required by Xxxxx'x in
respect of Authorised Short-Term Investments of the Series Trust
is a short-term rating of P-1 or such other rating as is agreed
between the Manager, the Trustee and Xxxxx'x; and
(b) (S&P): the Required Credit Rating required by S&P in respect of
Authorised Short-Term Investments of the Series Trust is a
short-term rating of A-1+ or such other rating as is agreed
between the Manager, the Trustee and S&P.
27.2 DISTRIBUTION OF INFORMATION
The Manager will on or before the date which is 1 Business Day before
each Distribution Date send:
(a) (TO THE TRUSTEE): to the Trustee, the Principal Paying Agent and
the US Dollar Note Trustee, the Quarterly Certificate; and
(b) (TO THE RATING AGENCIES): to the Rating Agencies, such
information as they require:
(i) from the Quarterly Certificate; and
(ii) the Pool Performance Data (if available) (and the
Manager will send the same information to the Trustee).
27.3 ELECTRONIC REPORTING OF POOL PERFORMANCE DATA
Prior to each Distribution Date, the Manager (or a person nominated by
the Manager) must prepare and arrange for the publication by Reuters
and/or Bloomberg, L.P. (or another similar electronic medium) of the
Pool Performance Data (if available) in respect of the Collection
Period just ended in a format similar to that used by other
mortgage-backed securities issuers in the Australian market. The
Manager is not liable to any person in any manner for the acts or
omissions of the person nominated by the Manager for the purposes set
out in this clause 27.3.
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27.4 CLAIM FOR DAMAGES
Where this Deed provides for damages to be payable by a Seller, the
Servicer or the Manager:
(a) (CLAIM MUST BE IN WRITING): a written notice of a claim for
damages must be provided to the relevant party by the Trustee;
(b) (CLAIM MUST SPECIFY THE AMOUNT OF DAMAGES): such notice must
specify the amount of damages claimed and how such amount has
been determined by reference to the loss incurred as a result of
the breach leading to the claim for damages; and
(c) (TRUSTEE MUST ACT ON INSTRUCTIONS): the Trustee in preparing a
notice in accordance with clauses 27.4(a) and (b) will act on the
instructions of the Manager (in the case of a claim against that
Seller or the Servicer) or take expert advice, if necessary (in
the case of a claim against the Manager).
27.5 ALLOCATION OF DAMAGES
If an amount is payable to the Trustee by the Servicer, a Seller or the
Manager for a breach of a representation, warranty or obligation under
the Master Trust Deed or this Deed or for other damages, the Manager
will determine what portion of such amount is to be treated as Other
Principal Amounts and what portion of such amount is to be treated as
Other Income Amounts. On each Determination Date the Manager must
notify the Trustee of its allocation, in accordance with the foregoing,
of such payment received (if any) in the Collection Period just ended.
27.6 ADDITIONAL EXPENSES
Pursuant to clause 16.11 of the Master Trust Deed, the Expenses are
incorporated into and form part of the expenses of the Series Trust for
which the Trustee is entitled to be indemnified out of the Assets of
the Series Trust.
27.7 FORM OF TRANSFERS AND CERTIFICATES
For the purposes of the Master Trust Deed insofar as it relates to the
Series Trust:
(a) (SECURITY CERTIFICATE): the form of the Security Certificate for
A$ Securities is as specified in Schedule 6; and
(b) (SECURITY TRANSFER): the form of the Security Transfer for A$
Securities is as specified in Schedule 7.
27.8 INCUR COSTS WITHOUT APPROVAL
Pursuant to clause 16.26 of the Master Trust Deed, the Trustee may do
such things, take such actions and incur such expenses without the
consent of the Manager (including the appointment of advisers) as it
believes necessary (acting reasonably) in determining whether a
particular event under the Transaction Documents in relation to the
Series Trust is having, or will have, an Adverse Effect where such
determination is a necessary pre-condition for the Trustee to exercise
its rights under any Transaction Documents.
27.9 ADVERSE EFFECT
The Manager and the Servicer acknowledge that:
(a) (DETERMINATION WITHOUT CONSENT): an Adverse Effect may be
determined by the Trustee without the consent of the Manager
provided such determination is a
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necessary pre-condition of the Trustee exercising its rights
under a Transaction Document;
(b) (NOTICE): the Trustee is required to determine an Adverse Effect
or to provide the notices referred to in this Deed in respect of
a determination of Adverse Effect only if it is actually aware of
the facts giving rise to the Adverse Effect; and
(c) (TRUSTEE MAY RELY): in making those determinations, the Trustee
will seek and rely conclusively on advice given to it by its
advisers in the manner contemplated in clause 16.6 of the Master
Trust Xxxx.
27.10 NOTIFICATION TO RATING AGENCIES OF REDEMPTION OF SECURITIES
The Manager will promptly notify each of the Rating Agencies of the
redemption (or deemed redemption) or discharge in full of a Class of
Securities.
27.11 FURTHER SUPPORT FACILITIES
Upon the termination of a Liquidity Facility Agreement, a Standby
Redraw Facility Agreement or a Hedge Agreement, and subject to clause
29.5 of this Deed and clause 16.5 of the Master Trust Deed, and without
limiting the Trustee's powers under clause 16 of the Master Trust Deed,
the Trustee as trustee of the Series Trust must if requested by the
Manager, upon receipt from each Rating Agency of a Rating Affirmation
Notice in respect of the following, enter into a substitute Liquidity
Facility Agreement, Redraw Facility Agreement or Hedge Agreement (as
the case may be) with such parties and upon such terms as are specified
by the Manager.
27.12 SUPPLEMENTARY TRUSTEE POWERS
Without limiting the generality of clause 16.1 of the Master Trust Deed
or any other provision of the Master Trust Deed, but subject to the
limitations imposed on the Trustee pursuant to the Master Trust Deed,
the Trustee has full power to do the following (which powers are to be
construed as separate and independent powers):
(a) (DEPOSITORY): to deliver or lodge the Class A-1 Notes, or arrange
for the Class A-1 Notes to be delivered or lodged, with the
Depository or its nominee;
(b) (PAYMENT DIRECTION): where a person owes an amount to the
Trustee, to direct that debtor to make that payment to another
person on behalf of the Trustee, including directing payments due
in respect of the Securities to be made to the Securityholders;
(c) (CURRENCY CONVERSION): to convert currencies on such terms and
conditions as the Manager thinks fit and that are acceptable to
the Trustee acting reasonably;
(d) (STOCK EXCHANGE): to list and maintain the listing of the Class
A-1 Notes with any applicable regulatory authority to enable
trading of the Class A-1 Notes on any stock exchange;
(e) (US DOLLAR NOTE TRUSTEE): to appoint the US Dollar Note Trustee;
(f) (AGENT BANK): to appoint the Agent Bank;
(g) (PAYING AGENT): to appoint the Principal Paying Agent and each
other Paying Agent;
(h) (US DOLLAR NOTE REGISTRAR): to appoint the US Dollar Note
Registrar;
(i) (HOLD ASSETS OTHER TRUSTS): if provided for in any Transaction
Document, to hold any property or any interest in any property
both as trustee of the Series Trust and
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as trustee on behalf of one or more persons in accordance with
the provisions of the relevant Transaction Document;
(j) (ADDITIONAL FEES AND EXPENSES): in accordance with the
Transaction Documents, to pay or reimburse to any person any
fees, liabilities, losses, costs, claims, actions, damages,
expenses, demands, charges, stamp duties and other Taxes in
relation to the exercise by the Trustee of the above powers; and
(k) (INCIDENTAL POWERS): with the written agreement of the Manager
(which agreement is not to be unreasonably withheld), to do all
such things incidental to or necessary or convenient to be done
for, or in connection with, any of the above powers.
27.13 TRUSTEE'S POWER TO DELEGATE
For the purposes of clause 16.4(p) of the Master Trust Deed, and
notwithstanding any limitation contained in the Master Trust Deed the
Trustee may delegate any obligation it has to receive or make payments
denominated in US$ to a Paying Agent notwithstanding that such
obligation may be a material obligation and, in respect of such
delegation, but subject to clause 28.3, the Trustee is not liable for
the acts or omissions of that Paying Agent.
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28. LIMITATION OF TRUSTEE'S DUTIES
28.1 TRUSTEE MAY RELY
(a) (ENTITLED TO RELY): The Trustee is entitled to conclusively rely
on (unless actually aware to the contrary) and is not required to
investigate the accuracy of:
(i) (CONTENTS OF SALE NOTICE): the contents of a Sale
Notice given to it by a Seller and any representation
as to whether a Mortgage Loan meets the Eligibility
Criteria;
(ii) (QUARTERLY CERTIFICATE): the contents of a Quarterly
Certificate;
(iii) (CALCULATIONS): any calculations made by a Seller, the
Servicer or the Manager under this Deed including
without limitation, the calculation of amounts to be
paid to, or charged against, any Securityholder or a
Seller on specified dates;
(iv) (COLLECTIONS): the amount of, or allocation of,
Collections;
(v) (CERTIFICATES): the contents of certificates provided
to the Trustee under this Deed and any certificates
given by the Manager or the Servicer pursuant to the
Quarterly Certificate or otherwise pursuant to
subsequent amendments to this Deed or the Master Trust
Deed; and
(vi) (US DOLLAR NOTE TRUSTEE DIRECTIONS): all directions or
instructions given to it by the US Dollar Note Trustee
in accordance with the US Dollar Note Trust Deed.
(b) (MANAGER DEFAULT): The Trustee is not liable for any Manager
Default or Servicer Default or Perfection of Title Event.
28.2 NO DUTY TO INVESTIGATE
The Trustee has no duty, and is under no obligation, to investigate
whether a Servicer Default or a Perfection of Title Event has occurred
other than where it has actual notice that such event has occurred.
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28.3 TRUSTEE NOT LIABLE
Subject to clause 16.9 of the Master Trust Deed, but notwithstanding
any other provision of the Master Trust Deed or any other Transaction
Document, the Trustee has no liability (other than in its capacity as
trustee of the Series Trust) for any act or omission by a Depository
(or any nominee of a Depository), the US Dollar Note Trustee, the
London Stock Exchange plc, the US Dollar Note Registrar, the Agent Bank
or any Paying Agent except to the extent that act or omission was
caused or contributed to by the Trustee's fraud, negligence or wilful
default.
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29. TRUSTEE'S LIMITATION OF LIABILITY
29.1 LIMITATION ON TRUSTEE'S LIABILITY
The Trustee enters into this Deed only in its capacity as trustee of
the Series Trust and in no other capacity. A liability incurred by the
Trustee acting in its capacity as trustee of the Series Trust arising
under or in connection with this Deed is limited to and can be enforced
against the Trustee only to the extent to which it can be satisfied out
of Assets of the Series Trust out of which the Trustee is actually
indemnified for the liability. This limitation of the Trustee's
liability applies despite any other provision of this Deed (other than
clause 29.3) and extends to all liabilities and obligations of the
Trustee in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to this Deed.
29.2 CLAIMS AGAINST TRUSTEE
The parties other than the Trustee may not sue the Trustee in respect
of liabilities incurred by the Trustee, acting in its capacity as
trustee of the Series Trust, in any capacity other than as trustee of
the Series Trust including seeking the appointment of a receiver
(except in relation to the Assets of the Series Trust), or a
liquidator, an administrator or any similar person to the Trustee or
prove in any liquidation, administration or similar arrangements of or
affecting the Trustee (except in relation to the Assets of the Series
Trust).
29.3 BREACH OF TRUST
The provisions of this clause 29 will not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the Master Trust Deed, this Deed or any other Transaction
Document in relation to the Series Trust or by operation of law there
is a reduction in the extent of the Trustee's indemnification out of
the Assets of the Series Trust, as a result of the Trustee's fraud,
negligence or wilful default.
29.4 ACTS OR OMISSIONS
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating
to the Series Trust. No act or omission of the Trustee (including any
related failure to satisfy its obligations and any breach of
representations and warranties under this Deed) will be considered
fraudulent, negligent or a wilful default for the purpose of clause
29.3 to the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or any other person
appointed by the Trustee under a Transaction Document (other than a
person whose acts or omissions the Trustee is liable for in accordance
with any Transaction Document) to fulfil its obligations relating to
the Series Trust or by any other act or omission of a Relevant Party or
any other such person.
29.5 NO OBLIGATION
The Trustee (both in its capacity as trustee of the Series Trust and
trustee of the CBA Trust) is not obliged to enter into any commitment
or obligation under this Deed or any Transaction Document (including
incur any further liability) unless the Trustee's liability is limited
in a manner which is consistent with this clause 29 or otherwise in a
manner satisfactory to the
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Trustee (both in its capacity as trustee of the Series Trust and
trustee of the CBA Trust) in its absolute discretion.
29.6 CBA TRUST
Notwithstanding clause 29.1, the Trustee also enters into this Deed in
its capacity as trustee of the CBA Trust. Clauses 29.1 to 29.5
(inclusive) do not apply to the extent, and only to the extent, that
the Trustee enters into this Deed in its capacity as Trustee of the CBA
Trust and has liabilities in relation to the CBA Trust. The Trustee's
liability in relation to the CBA Trust is limited as set out in clause
2.16. Nothing in this clause 29.6 shall be construed as imposing on the
Trustee any greater liability under this Deed than as is set out in
clauses 29.1 to 29.5 (inclusive) and clause 2.16.
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30. CONSUMER CREDIT CODE
30.1 BREACH OF CONSUMER CREDIT CODE
Where the Trustee is held liable for breaches under the Consumer Credit
Code, the Trustee must seek relief initially under any indemnities
provided to it by the Manager, the Servicer or a Seller before
exercising its rights to recover against any Assets of the Series
Trust. If any claim under such an indemnity is not satisfied within 3
Business Days of it being made, the Trustee is entitled to exercise its
right of indemnity out of the Assets of the Series Trust.
30.2 RIGHT OF INDEMNITY - CONSUMER CREDIT CODE
(a) (TRUSTEE TO BE INDEMNIFIED AGAINST PENALTY PAYMENTS): Without
prejudice to the right of indemnity given by law to trustees, and
without limiting any other provision of this Deed, the Trustee
will be indemnified out of the Series 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 Series Trust and arising in connection with the performance
of its duties or exercise of its powers under this Deed in
relation to the Series Trust.
(b) (INDEMNITY NOT AFFECTED): The Trustee's right to be indemnified
in accordance with clause 30.2(a) applies notwithstanding any
allegation that the Trustee 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 but must, upon such
determination, repay to the Series Trust any amount paid to it
under this clause 30.2). The Trustee may rely on others in
relation to compliance with the Consumer Credit Code.
(c) (OVERRIDES OTHER PROVISIONS): This clause 30.2 overrides any
other provision of this Deed.
(d) (SERVICER TO INDEMNIFY PRIOR TO A PERFECTION OF TITLE EVENT): The
Servicer indemnifies the Trustee in relation to the Series 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 Series Trust and arising in connection
with the performance of its duties or exercise of its powers
under this Deed in relation to the Series Trust where the events
giving rise to the Penalty Payment occurs prior to a Perfection
of Title Event.
(e) (SERVICER TO INDEMNIFY AFTER A PERFECTION OF TITLE EVENT): The
Servicer indemnifies the Trustee in relation to the Series Trust,
free of any set-off or counterclaim, against all Penalty Payments
which the Trustee is required to pay
119
personally or in its capacity as trustee of the Series Trust and
arising in connection with the performance of its duties or
exercise of its powers under this Deed in relation to the Series
Trust to the extent that they arise as the result of a Servicer
Default (whether or not waived by the Trustee) or any other
failure of the Servicer to comply with its obligations under this
Deed or a Transaction Document where the events giving rise to
the Penalty Payment occur after a Perfection of Title Event.
(f) (SERVICER INDEMNIFIES FIRST): The Trustee will call upon the
indemnity under paragraph (d) or (e), as the case may be, before
it calls upon the indemnity in paragraph (a). If any such claim
is not satisfied within 3 Business Days of the claim being made,
the Trustee may (without prejudice to its rights under any
indemnity under paragraph (d) or (e)) exercise its right of
indemnity referred to in paragraph (a).
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31. NOTICES
31.1 METHOD OF DELIVERY
Subject to clause 31.3, any notice, request, certificate, approval,
demand, consent or other communication to be given under this Deed:
(a) (EXECUTION): must be signed by an Authorised Officer of the party
giving the same;
(b) (IN WRITING): must be in writing; and
(c) (DELIVERY): must be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the
addressee; or
(iii) sent by facsimile to the facsimile number of the
addressee,
notified by that addressee from time to time to the other parties
to this Deed as its address for service pursuant to this Deed.
31.2 DEEMED RECEIPT
A notice, request, certificate, demand, consent or other communication
under this Deed is deemed to have been received:
(a) (DELIVERY): where delivered in person, upon receipt;
(b) (POST): where sent by post, on the 3rd (7th if outside Australia)
day after posting; and
(c) (FAX): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that
the facsimile was sent in its entirety to the facsimile number of
the recipient.
However, if the time of deemed receipt of any notice is not before 5.30
pm local time on a Business Day at the address of the recipient it is
deemed to have been received at the commencement of business on the
next Business Day.
31.3 NOTICE TO INVESTORS
Any notice required or permitted to be given to an Investor pursuant to
this Deed must be given, and will be deemed to be received:
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(a) (UNITHOLDER AND A$ SECURITYHOLDER): in the case of notices to a
Unitholder or to a Securityholder in respect of an A$ Security,
in accordance with clause 24.4 of the Master Trust Deed; and
(b) (CLASS A-1 NOTEHOLDER): in the case of notices to a Class A-1
Noteholder, in accordance with condition 11.1 of the US Dollar
Note Conditions.
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32. CONFIDENTIALITY
32.1 GENERAL RESTRICTION
Subject to clause 32.2, the Trustee and the Servicer (if not a Seller)
and the Manager (if not a Related Body Corporate of a Seller) must at
all times keep and ensure that its officers, employees, consultants,
advisers and agents keep confidential and not divulge to any person
(other than to any of its officers, employees, consultants, advisers
and agents who require such information to enable them to properly
carry out their duties) or make or cause any public announcement or
other disclosure of or in relation to:
(a) the terms of this Deed or any other Transaction Document
(including any written or oral agreements, negotiations or
information in relation to this Deed); and
(b) any document or information provided to such party under or in
connection with this Deed which is confidential, including
without limitation any information in connection with any
Mortgage Loan or any Borrower,
without the prior written consent of the other parties, which consent
may be given or withheld or given with conditions in their discretion.
32.2 EXCEPTIONS
The limitation in clause 32.1 does not apply to the issue by the
Manager of any information memorandum, prospectus or registration
statement in respect of any Securities or to any disclosure or
announcement of information which:
(a) (LAW): is required by law;
(b) (STOCK EXCHANGE OR REGULATORY AUTHORITY): is required by any
stock exchange or regulatory authority (including, without
limitation, the United States Securities & Exchange Commission);
(c) (LEGAL PROCEEDINGS): is in connection with legal proceedings
relating to this Deed, any Transaction Document or any Mortgage
Document;
(d) (INFORMATION AVAILABLE): is in respect of information generally
and publicly available (including the electronic reporting of
Pool Performance Data under clause 27.3);
(e) (OBLIGATIONS): is required in order for the Trustee, the Servicer
or the Manager, as applicable, to perform its obligations and
exercise its powers under any Transaction Documents or any
transactions entered into as contemplated by the Transaction
Documents;
(f) (APRA): is required by the Australian Prudential Regulation
Authority or any replacement prudential authority in connection
with its prudential supervision of banks; or
(g) (RATING AGENCIES): is reasonably required by a Rating Agency in
connection with its rating of the Securities.
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33. MISCELLANEOUS
33.1 AMENDMENTS
(a) (TO THIS DEED): The parties to this Deed may amend, add to or
revoke any provision of this Deed only in accordance with the
provisions of clause 25 of the Master Trust Deed provided that
any amendment, addition or revocation that effects a Payment
Modification (as defined in the US Dollar Note Trust Deed) may
not be made unless the consent has first been obtained of each
Class A-1 Noteholder to such Payment Modification.
(b) (TO TRANSACTION DOCUMENTS): The Trustee and the Manager may not
amend any Transaction Document (other than the Master Trust Deed,
this Deed, the Security Trust Deed, the US Dollar Note Trust Deed
and the Class A-1 Notes) unless each Rating Agency has issued a
Rating Affirmation Notice in relation to the amendment.
33.2 GOVERNING LAW
This Deed is governed by the laws of the State of New South Wales.
33.3 JURISDICTION
(a) (SUBMISSION TO JURISDICTION): Each of the Trustee, the Manager,
the Servicer, the Sellers, each Unitholder and each
Securityholder, irrevocably submits to and accepts, generally and
unconditionally, the non-exclusive jurisdiction of the courts and
appellate courts of the State of New South Wales with respect to
any legal action or proceedings which may be brought at any time
relating in any way to this Deed.
(b) (WAIVER OF INCONVENIENT FORUM): Each of the Trustee, the Manager,
the Servicer, the Sellers, each Unitholder and each Noteholder,
irrevocably waives any objection it may now or in the future have
to the venue of any such action or proceedings and any claim it
may now or in the future have that any such action or proceeding
has been brought in an inconvenient forum.
33.4 NOTIFY RATING AGENCIES
The Trustee and the Manager must promptly notify the Rating Agencies of
the occurrence of any Trustee Default, Manager Default, Servicer
Default, Perfection of Title Event or Document Transfer Event of which
they are aware.
33.5 SEVERABILITY OF PROVISIONS
In the event that any provision of this Deed is prohibited or
unenforceable in any jurisdiction such provision will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Deed or affecting the validity or enforceability of such provision in
any other jurisdiction.
33.6 COUNTERPARTS
This Deed may be executed in any number of counterparts and all of such
counterparts taken together will be deemed to constitute one and the
same instrument.
33.7 NO REVOCATION OF POWER OF ATTORNEY
Each attorney, by signing this Xxxx, declares that he or she has not
received any notice of the revocation of the power of attorney under
which he or she signs this Deed.
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33.8 CERTIFICATIONS
Any document or thing required to be certified by a party to the Deed
will be certified by an Authorised Officer of that party.
33.9 PAYMENTS
All payments hereunder to any party to this Deed will be made to such
account as the party to which such payment is to be made may specify in
writing to the party making such payment.
33.10 WAIVER
No waiver by any party of any provision of or right of such party under
this Deed will be effective unless it is in writing signed by an
Authorised Officer of such party and such waiver will be effective only
in the specific instance and for the specific purpose for which it was
given. No failure or delay by any party to exercise any right under
this Deed or to insist on strict compliance by any other party to this
Deed with any obligation under this Deed, and no custom or practice of
the parties at variance with the terms of this Deed, will constitute a
waiver of such party's right to demand exact compliance with this Deed.
33.11 ENTIRE UNDERSTANDING
Except as specifically stated otherwise in this Deed, this Deed sets
forth the entire understanding of the parties relating to the subject
matter hereof, and all prior understandings, written or oral, are
superseded by this Deed. This Deed may not be modified, amended, waived
or supplemented or assigned except as expressly provided in this Deed.
33.12 SURVIVAL OF INDEMNITIES
The indemnities contained in this Deed are continuing obligations of
the party giving such indemnity, separate and independent from the
other obligations of such party and will survive the termination of
this Deed.
33.13 SUCCESSORS AND ASSIGNS
This Deed will be binding upon and inure to the benefit of the parties
to this Deed and their respective successors and assigns.
33.14 MORATORIUM LEGISLATION
To the fullest extent permitted by law, the provisions of all existing
or future laws which operate or may operate directly or indirectly to
lessen or otherwise vary the obligations of any party under this Deed
or to delay, curtail or otherwise prevent or prejudicially affect the
exercise by any party of any of its rights, remedies or powers under
this Deed are expressly negatived and excluded.
33.15 PRIVACY
(a) (ACKNOWLEDGEMENT): Each party acknowledges that Personal
Information may be exchanged between the parties pursuant to the
terms of this Deed.
(b) (OBTAIN CONSENTS): If Personal Information is exchanged between
the parties, the party which provides the Personal Information
must ensure that it obtains such consents, if any, as are
required by the Privacy Act to be obtained by that party in
relation to that provision of Personal Information.
(c) (BEST ENDEAVOURS TO COMPLY): Each party undertakes to use its
best endeavours to ensure that at all times:
123
(i) Personal Information provided to it (the "RECEIVING
PARTY") by another party (the "PROVIDING PARTY"):
A. unless otherwise required by law, will be used
only for the purpose of fulfilling the Receiving
Party's obligations under the Transaction
Documents; and
B. except as expressly provided pursuant to the
Transaction Documents, will not be disclosed to
any third party unless express consent in writing
is obtained from the Providing Party; and
(ii) in addition to the obligation under paragraph (b)
above, it will comply with the Privacy Act and all
applicable regulations, principles, standards, codes of
conduct or guidelines concerning the handling of
Personal Information under that Act or with any request
or direction arising directly from or in connection
with the proper exercise of the functions of the
Privacy Commissioner, to the extent required by law.
(d) (NOTIFICATION): If a Receiving Party becomes aware that a breach
of paragraphs (b) or (c) above has occurred, or if it becomes
aware that the law may require disclosure to be made or a consent
to be obtained in relation to Personal Information provided to it
by a Providing Party, it must immediately notify that Providing
Party in writing.
124
SCHEDULE 1
FORM OF SALE NOTICE
TO: Perpetual Trustee Company Limited ABN 42 000 001 007 (the "TRUSTEE")
Address: Level 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx XXX, 0000
Attention: Manager, Securitisation Services
Copy to:
Securitisation Advisory Services Pty. Limited, ABN 88 064 133 946(the "MANAGER")
Level 6
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
MEDALLION TRUST SERIES 2003-1G
SALE NOTICE
We refer to the Master Trust Deed (the "MASTER TRUST DEED") dated 8 October 1997
between the Trustee and the Manager, as amended from time to time, and to the
Series Supplement (the "SERIES SUPPLEMENT") dated [ ] between
Commonwealth Bank of Australia ABN 48 123 123 124 (as a Seller and the
Servicer), Homepath Pty Limited ABN 35 081 986 530 (as a Seller), the Manager
and the Trustee. Terms defined in the Series Supplement have the same meaning in
this Sale Notice.
This is a Sale Notice pursuant to clause 4.2 of the Series Supplement. [Name of
Seller] ("SELLER") hereby offers to assign to the Trustee with effect from
[ ] (the "CUT-OFF DATE"):
(a) each Mortgage Loan identified in the schedule accompanying this Sale
Notice;
(b) the Other Loans entered into from time to time in relation to the above
Mortgage Loans;
(c) the Mortgages in relation to the above Mortgage Loans;
(d) other Mortgages granted from time to time in relation to the above Mortgage
Loans;
(e) all Collateral Securities from time to time in relation to the above
Mortgage Loans;
(f) the Mortgage Receivables from time to time in relation to the above
Mortgage Loans;
(g) the Mortgage Insurance Policies in relation to the above Mortgage Loans
(other than the PMI Mortgage Insurance Policy); and
(h) the Mortgage Documents from time to time in relation to the above Mortgage
Loans.
This offer may be accepted by the Trustee only by paying the Consideration to
the Seller on [ ] (the "CLOSING DATE").
Both the Cut-Off Date and the Closing Date may be altered by the Manager giving
notice to the Trustee and the Seller, no later than 4 Business Days before the
then Closing Date, of the new date that is to be the Cut-Off Date or the Closing
Date (as the case may be). From the close of business on the Business Day which
is 4 Business Days before the then Closing Date neither the Cut-Off Date or the
Closing Date may be amended.
For and on behalf of
[NAME OF SELLER]
...................................
Authorised Officer
Date:
125
SCHEDULE 2
FORMS OF POWER OF ATTORNEY
(OTHER THAN FOR QUEENSLAND AND WESTERN AUSTRALIA)
THIS POWER OF ATTORNEY is made on 2003
BY [Details of relevant Seller] (the "SELLER").
IN FAVOUR OF PERPETUAL TRUSTEE COMPANY LIMITED ABN 42 000 001 007, a company
incorporated in Australia and registered in the State of New South
Wales and having an office at Level 0, 0 Xxxxxxxxxxx Xxxxxx,
Xxxxxx, XXX 0000 (the "TRUSTEE").
RECITALS
A. The Trustee is the trustee, and the Manager is the manager, of the Series
Trust constituted pursuant to the Master Trust Deed and the Series
Supplement (as those terms are defined below).
B. Under the Series Supplement, the delivery to the Trustee of this Deed is a
condition of the Seller issuing an offer to assign Mortgage Loans to the
Trustee.
THIS DEED PROVIDES as follows:
1. INTERPRETATION
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1.1 DEFINITIONS
In this Deed, unless the contrary intention appears:
"ATTORNEY" means any attorney appointed by or pursuant to clause 2
and any person who derives a right directly or indirectly from an
Attorney.
"MASTER TRUST DEED" means the Master Trust Deed dated 8 October 1997
between the Trustee as trustee of the Series Trust and the Manager,
as amended from time to time.
"SERIES SUPPLEMENT" means the Series Supplement dated [ ] between
Commonwealth Bank of Australia ABN 48 123 123 124 (as a Seller and
the Servicer), Homepath Pty Limited ABN 35 081 986 530 (as a
Seller), the Manager and the Trustee.
"MORTGAGE TRANSFER" in relation to a Mortgage means a duly executed
land titles office transfer which, upon registration, is effective
to transfer the legal title to the Mortgage to the Trustee.
1.2 INTERPRETATION
(a) In this Deed unless the contrary intention appears, the
provisions of clause 1.2 of the Series Supplement apply mutatis
mutandis to this Deed as if set out in this Deed in full.
(b) In this Deed all references to "Assets of the Series Trust",
"Mortgage Loans" and "Mortgage Transfers" shall be construed as
references to those things to the extent that the Seller has an
interest in them.
1.3 SERIES SUPPLEMENT
Unless expressly defined in this Deed or a contrary intention
appears, words and expressions used in this Deed have the same
meaning as in the Series Supplement.
126
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2. APPOINTMENT AND POWERS
2.1 APPOINTMENT
With effect from the assignment to the Trustee of the Mortgage Loans
in accordance with the terms of the Series Supplement, the Seller
appoints the Trustee and any Authorised Officer from time to time of
the Trustee jointly and severally as its attorney with the right,
subject to clause 2.2, to do in the name of the Seller and on its
behalf everything necessary or expedient to:
(a) (MORTGAGE TRANSFERS): in relation to all Mortgage Transfers:
(i) execute, deliver, lodge and register any Mortgage Transfer
with any land titles office of any relevant Australian
jurisdiction;
(ii) execute, deliver, lodge and register with any land titles
office of any relevant Australian jurisdiction any other
documents which are referred to in any Mortgage Transfer
or which are ancillary or related to them or contemplated
by them;
(iii) execute, deliver, lodge and register with any land titles
office of any relevant Australian jurisdiction any
document or perform any act, matter or thing at its
absolute discretion in any way relating to the Seller's
involvement in the transactions contemplated by any
Mortgage Transfer; and
(iv) give effect to the transactions contemplated by any
Mortgage Transfer, including, but not limited to,
completing blanks and making amendments, alterations or
additions it considers necessary or desirable;
(b) (MORTGAGE LOANS): in relation to any Mortgage Loan which is
part of the Assets of the Series Trust, to exercise any rights
of the Seller to vary by notice to the Borrower the rate or
amount of any interest or fees payable by the Borrower under
the Mortgage Loan;
(c) (DELEGATE): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any
terms or conditions that it thinks fit;
(d) (SIGN DOCUMENTS): sign, seal, deliver and execute and do
(either unconditionally or subject to any conditions that it
thinks fit) all deeds, arrangements, documents and things in
respect of any of its rights described in this Deed; and
(e) (DO INCIDENTAL THINGS): do anything incidental to or conducive
to the effective and expeditious exercise of its rights
described in this Deed.
2.2 LIMITATION ON EXERCISE OF POWERS
The power of attorney conferred by clause 2.1 will be exercisable
only on the occurrence of a Perfection of Title Event.
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3. CONSIDERATION AND REVOCATION
3.1 CONSIDERATION
This Deed is executed by the Seller for good and valuable
consideration, receipt of which the Seller hereby acknowledges.
127
3.2 IRREVOCABLE WITHOUT CONSENT
Except with the prior written consent of an Authorised Officer of
each of the Trustee and the Manager, the power of attorney granted
under clause 2.1 of this Deed is irrevocable by the Seller and its
successors and assigns.
3.3 NO ABROGATION
Subject only to revocation in accordance with clause 3.2, this Deed
will remain in full force and effect notwithstanding:
(a) (INSOLVENCY): the occurrence of an Insolvency Event with
respect to the Seller;
(b) (AMENDMENT): any waiver, replacement, amendment or variation of
the Master Trust Deed or the Series Supplement;
(c) (DELAY): any delay, laches, acquiescence, mistake, act or
omission by any Attorney (including, without limitation, any
Trustee Default or Manager Default); or
(d) (MISCELLANEOUS): any other fact, matter, circumstance or thing
whatsoever which, but for this clause 3.3 could or might
operate to prejudice, release or otherwise affect the rights of
an Attorney under this Xxxx.
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4. DELEGATES
4.1 OBLIGATION
Where a delegation is made by an Attorney under clause 2, the
following will apply:
(a) (VARY, SUSPEND ETC.): the Attorney may at any time by notice in
writing vary, suspend or revoke a delegation made under clause
2;
(b) (ATTORNEY RETAINS ANY RIGHTS DELEGATED): a right delegated by
the Attorney may continue to be exercised or performed by the
Attorney notwithstanding the delegation of that right;
(c) (EFFECT OF ACTS DELEGATED): any act or thing done within the
scope of a delegation while the delegation is in force:
(i) has the same effect as if it had been done by the
Attorney; and
(ii) will not be invalidated by reason of a later revocation or
variation of the delegation; and
(d) (OPINION OF DELEGATE): if the exercise or performance of a
right by the Attorney is dependant upon the opinion, belief or
state of mind of the Attorney in relation to a matter and that
right is delegated by the Attorney, the delegate may, unless
the contrary intention appears, exercise or perform the right
based upon his or her own opinion, belief or state of mind (as
the case may require) in relation to the matter.
4.2 REVOCATION OF NOMINATION
The Trustee may at any time revoke or suspend any appointment of a
nominee or an Attorney pursuant to clause 2.
128
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5. MISCELLANEOUS
5.1 SUSPENSION OF SELLER'S RIGHTS
The Seller must not, after being notified in writing by any Attorney
that an Attorney intends to exercise any right conferred on it by
this Deed (and provided that such right is then and remains
exercisable), exercise that right without the written consent of the
Trustee.
5.2 RATIFICATION
The Seller will at all times ratify and confirm whatever any
Attorney lawfully does, or causes to be done, in exercising its
rights described in this Deed.
5.3 CONFLICT OF INTEREST
Any Attorney may exercise any right notwithstanding that it
constitutes a conflict of interest or duty.
5.4 SELLER BOUND
The Seller and any person (including, but not limited to, a
substitute or assign) claiming under the Seller are bound by
anything an Attorney does in the lawful exercise of its rights
described in this Deed.
5.5 THIRD PARTY DEALINGS
In respect of dealings by any person in good faith with an Attorney:
(a) (EVIDENCE THAT POWER NOT REVOKED): that person may accept a
written statement signed by any Attorney to the effect that the
power of attorney granted under this Xxxx has not been revoked
as conclusive evidence of that fact; and
(b) (NO DUTY TO ENQUIRE): if the Attorney executes any right
granted to it by this Deed, that person is not bound to enquire
as to whether the right is properly exercised or whether any
circumstance has arisen to authorise the exercise of that
right.
5.6 INDEMNITY
The Seller will indemnify any Attorney from and against all actions,
suits, claims, demands, damages, liabilities, losses, costs and
expenses that may be made or bought against or suffered or incurred
by any such Attorney arising out of or in connection with the lawful
exercise of any of its rights described in this Deed.
5.7 STAMPING AND REGISTRATION
The Seller will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable
law and the Seller authorises any Attorney to stamp and register
this Deed on behalf of the Seller.
5.8 COSTS
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 5.7
will be paid by the Seller within a reasonable time after demand for
payment is made.
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6. GOVERNING LAW
This Deed is governed by and construed in accordance with the laws
of the State of New South Wales and the Seller irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the
courts of the State of New South Wales and any courts of appeal from
any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of )
[NAME OF RELEVANT SELLER] is affixed in )
accordance with its constitution in the presence )
of: )
....................................... .......................
Secretary Director
130
SCHEDULE 3
FORM OF POWER OF ATTORNEY
(FOR QUEENSLAND)
THIS POWER OF ATTORNEY is made on 2003
BY [Details of relevant Seller] (the "SELLER").
IN FAVOUR OF PERPETUAL TRUSTEE COMPANY LIMITED ABN 42 000 001 007, a company
incorporated in Australia and registered in the State of New South
Wales and having an office at Level 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx,
XXX 0000 (the "TRUSTEE").
THIS DEED PROVIDES as follows:
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1. INTERPRETATION
In this Deed, unless the contrary intention appears:
"ATTORNEY" means any attorney appointed by or pursuant to clause 2
and any person who derives a right directly or indirectly from an
Attorney.
"AUTHORISED OFFICER" means in relation to the Trustee, a director,
secretary or any person whose title contains the word or words
"manager" or "chief executive officer" or a person performing the
functions of any of them.
"MORTGAGE TRANSFER" in relation to a mortgage in which the Seller
has an interest, means a duly executed land titles office transfer
which, upon registration, is effective to transfer the legal title
to the mortgage to the Trustee.
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2. APPOINTMENT AND POWERS
2.1 APPOINTMENT
The Seller appoints the Trustee and any Authorised Officer from time
to time of the Trustee jointly and severally as its attorney with
the right, to do in the name of the Seller and on its behalf
everything necessary or expedient to:
(a) (MORTGAGE TRANSFERS): In relation to all Mortgage Transfers:
(i) execute, deliver, lodge and register any Mortgage Transfer
with any land titles office of any relevant Australian
jurisdiction;
(ii) execute, deliver, lodge and register with any land titles
office of any relevant Australian jurisdiction any other
documents which are referred to in any Mortgage Transfer
or which are ancillary or related to them or contemplated
by them;
(iii) execute, deliver, lodge and register with any land titles
office of any relevant Australian jurisdiction any
document or perform any act, matter or thing at its
absolute discretion in any way relating to the Seller's
involvement in the transactions contemplated by any
Mortgage Transfer; and
131
(iv) give effect to the transactions contemplated by any
Mortgage Transfer, including, but not limited to,
completing blanks and making amendments, alterations or
additions it considers necessary or desirable;
(b) (MORTGAGE LOANS): in relation to any mortgage loan which is an
asset of the Seller, to exercise any rights of the Seller to
vary by notice to the borrower with respect to the mortgage
loan the rate or amount of any interest or fees payable by that
borrower under the mortgage loan;
(c) (DELEGATE): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any
terms or conditions that it thinks fit;
(d) (SIGN DOCUMENTS): sign, seal, deliver and execute and do
(either unconditionally or subject to any conditions that it
thinks fit) all deeds, arrangements, documents and things in
respect of any of its rights described in this Deed; and
(e) (DO INCIDENTAL THINGS): do anything incidental to or conducive
to the effective and expeditious exercise of its rights
described in this Deed.
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3. CONSIDERATION AND REVOCATION
3.1 CONSIDERATION
The Seller acknowledges that it has received good and valuable
consideration for the grant of this Deed.
3.2 IRREVOCABLE WITHOUT CONSENT
Except with the prior written consent of an Authorised Officer of
the Trustee, the power of attorney granted under clause 2.1 of this
Deed is irrevocable by the Seller and its successors and assigns.
3.3 NO ABROGATION
Subject only to revocation in accordance with clause 3.2, this Deed
will remain in full force and effect notwithstanding:
(a) (INSOLVENCY): the insolvency of, or the occurrence of any other
analogous event with respect to, the Seller;
(b) (AMENDMENT): any waiver, replacement, amendment or variation of
any document (with or without the consent of the Seller);
(c) (DELAY): any delay, laches, acquiescence, mistake, act or
omission (including, without limitation, any default by the
Trustee of any obligation that it owes to any person) by any
Attorney; or
(d) (MISCELLANEOUS): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate
to prejudice, release or otherwise affect the rights of an
Attorney under this Deed.
--------------------------------------------------------------------------------
4. DELEGATES
4.1 OBLIGATION
Where a delegation is made by an Attorney under clause 2, the
following will apply:
132
(a) (VARY, SUSPEND ETC.): the Attorney may at any time by notice in
writing vary, suspend or revoke a delegation made under clause
2;
(b) (ATTORNEY RETAINS ANY RIGHTS DELEGATED): a right delegated by
the Attorney may continue to be exercised or performed by the
Attorney notwithstanding the delegation of that right;
(c) (EFFECT OF ACTS DELEGATED): any act or thing done within the
scope of a delegation while the delegation is in force:
(i) has the same effect as if it had been done by the
Attorney; and
(ii) will not be invalidated by reason of a later revocation or
variation of the delegation; and
(d) (OPINION OF DELEGATE): if the exercise or performance of a
right by the Attorney is dependant upon the opinion, belief or
state of mind of the Attorney in relation to a matter and that
right is delegated by the Attorney, the delegate may, unless
the contrary intention appears, exercise or perform the right
based upon his or her own opinion, belief or state of mind (as
the case may require) in relation to the matter.
4.2 REVOCATION OF NOMINATION
The Trustee may at any time revoke or suspend any appointment of a
nominee or an Attorney pursuant to clause 2.
--------------------------------------------------------------------------------
5. MISCELLANEOUS
5.1 SUSPENSION OF SELLER'S RIGHTS
The Seller must not, after being notified in writing by any Attorney
that an Attorney intends to exercise any right conferred on it by
this Deed (and provided that such right is then and remains
exercisable), exercise that right without the written consent of the
Trustee.
5.2 RATIFICATION
The Seller will at all times ratify and confirm whatever any
Attorney lawfully does, or causes to be done, in exercising its
rights described in this Deed.
5.3 CONFLICT OF INTEREST
Any Attorney may exercise any right notwithstanding that it
constitutes a conflict of interest or duty.
5.4 SELLER BOUND
The Seller and any person (including, but not limited to, a
substitute or assign) claiming under the Seller are bound by
anything an Attorney does in the lawful exercise of its rights
described in this Deed.
5.5 THIRD PARTY DEALINGS
In respect of dealings by any person in good faith with an Attorney:
(a) (EVIDENCE THAT POWER NOT REVOKED): that person may accept a
written statement signed by any Attorney to the effect that the
power of attorney granted under this Xxxx has not been revoked
as conclusive evidence of that fact; and
133
(b) (NO DUTY TO ENQUIRE): if the Attorney executes any right
granted to it by this Deed, that person is not bound to enquire
as to whether the right is properly exercised or whether any
circumstance has arisen to authorise the exercise of that
right.
5.6 INDEMNITY
The Seller will indemnify any Attorney from and against all actions,
suits, claims, demands, damages, liabilities, losses, costs and
expenses that may be made or bought against or suffered or incurred
by any such Attorney arising out of or in connection with the lawful
exercise of any of its rights described in this Deed.
5.7 STAMPING AND REGISTRATION
The Seller will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable
law and the Seller authorises any Attorney to stamp and register
this Deed on behalf of the Seller.
5.8 COSTS
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 5.7
will be paid by the Seller within a reasonable time after demand for
payment is made.
--------------------------------------------------------------------------------
6. GOVERNING LAW
This Deed is governed by and construed in accordance with the laws
of the State of New South Wales and the Seller irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the
courts of the State of New South Wales and any courts of appeal from
any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of )
[NAME OF RELEVANT SELLER] is affixed in )
accordance with its constitution in the presence )
of: )
................................... .........................
Secretary Director
134
SCHEDULE 4
FORM OF POWER OF ATTORNEY
(FOR WESTERN AUSTRALIA)
THIS POWER OF ATTORNEY is made on 2003
BY [Details of relevant Seller] (the "GRANTOR").
IN FAVOUR OF PERPETUAL TRUSTEE COMPANY LIMITED ABN 42 000 001 007, a company
incorporated in Australia and registered in the State of New South
Wales and having an office at Level 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx,
XXX 0000 (the "GRANTEE").
THIS DEED PROVIDES as follows:
--------------------------------------------------------------------------------
1. INTERPRETATION
In this Deed, unless the contrary intention appears:
"ATTORNEY" means any attorney appointed by or pursuant to clause 2.
"AUTHORISED OFFICER" means:
(a) in relation to the Grantee, a director, secretary or any person
whose title contains the word or words "manager" or "chief
executive officer" or a person performing the functions of any
of them; and
(b) in relation to the Manager, any person appointed by the Manager
to act as an Authorised Officer of the Manager for the purposes
of this Deed.
"MANAGER" means Securitisation Advisory Services Pty. Limited ABN 88
064 133 946.
"MORTGAGE" means a mortgage over real property, located in the State
of Western Australia and registered under the Transfer of Land Act
1893, which is granted in favour of the Grantor and in which the
Grantee has equitable title.
"MORTGAGE TRANSFER" in relation to a mortgage means a duly executed
land titles office transfer in respect of a Mortgage which, upon
registration, is effective to transfer the legal title to the
Mortgage to the Grantee.
--------------------------------------------------------------------------------
2. APPOINTMENT AND POWERS
2.1 APPOINTMENT
The Grantor appoints the Grantee as its attorney with the right, to
do in the name of the Grantor and on its behalf everything necessary
or expedient to:
(a) (MORTGAGE TRANSFERS):
(i) sell or transfer legal title in all or any Mortgages to
the Grantee;
(ii) execute, deliver, lodge and register any Mortgage
Transfer with any land titles office of any relevant
Australian jurisdiction;
(iii) execute, deliver, lodge and register with any land
titles office of any relevant Australian jurisdiction
any other documents which are referred
135
to in any Mortgage Transfer or which are ancillary or
related to them or contemplated by them;
(iv) execute, deliver, lodge and register with any land
titles office of any relevant Australian jurisdiction
any document or perform any act, matter or thing at its
absolute discretion in any way relating to the Grantor's
involvement in the transactions contemplated by any
Mortgage Transfer; and
(v) give effect to the transactions contemplated by any
Mortgage Transfer, including, but not limited to,
completing blanks and making amendments, alterations or
additions it considers necessary or desirable;
(b) (SIGN DOCUMENTS): sign, seal, deliver and execute and do
(either unconditionally or subject to any conditions that it
thinks fit) all deeds, arrangements, documents and things in
respect of any of its rights described in this Deed;
(c) (DETERMINE INTEREST RATES): determine the interest rate to be
charged on the mortgages which are the subject of any Mortgage
Transfer; and
(d) (DO INCIDENTAL THINGS): do anything incidental to or conducive
to the effective and expeditious exercise of its rights
described in this Deed.
--------------------------------------------------------------------------------
3. CONSIDERATION AND REVOCATION
3.1 CONSIDERATION
The power of attorney granted under this Deed has been granted to
secure a proprietary interest of the Grantee in the Mortgages the
subject of the Mortgage Transfers and is given by the Grantor for
good and valuable consideration, receipt of which the Grantor hereby
acknowledges.
3.2 IRREVOCABLE WITHOUT CONSENT
Except with the prior written consent of an Authorised Officer of
each of the Grantee and the Manager, the power of attorney granted
under clause 2.1 of this Deed is irrevocable by the Grantor and its
successors and assigns.
3.3 NO ABROGATION
Subject only to revocation in accordance with clause 3.2, this Deed
will remain in full force and effect notwithstanding:
(a) (INSOLVENCY): the insolvency of, or the occurrence of any other
analogous event with respect to, the Grantor;
(b) (AMENDMENT): any waiver, replacement, amendment or variation of
any document (with or without the consent of the Grantor);
(c) (DELAY): any delay, laches, acquiescence, mistake, act or
omission (including, without limitation, any default by the
Manager or Grantee of any obligation that either owes to any
person) by any Attorney; or
(d) (MISCELLANEOUS): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate
to prejudice, release or otherwise affect the rights of an
Attorney under this Deed.
136
--------------------------------------------------------------------------------
4. MISCELLANEOUS
4.1 APPOINTMENT OF SUB-ATTORNEYS
An Attorney may appoint from time to time any person or corporation
as a sub-attorney for any of the purposes of and with any of the
powers and authorities conferred by this Deed.
4.2 RATIFICATION
The Grantor will at all times ratify and confirm whatever any
Attorney or sub-attorney lawfully does, or causes to be done, in
exercising its rights described in this Deed.
4.3 CONFLICT OF INTEREST
Any Attorney or sub-attorney may exercise any right notwithstanding
that it constitutes a conflict of interest or duty.
4.4 GRANTOR BOUND
The Grantor and any person (including, but not limited to, a
substitute or assign) claiming under the Grantor are bound by
anything an Attorney or sub-attorney does in the lawful exercise of
its rights described in this Deed.
4.5 SUSPENSION OF GRANTOR'S RIGHTS
The Grantor must not, after being notified in writing by any
Attorney or sub-attorney that the Attorney or sub-attorney (as the
case may be) intends to exercise any right conferred on it by this
Deed (and provided that such right is then and remains exercisable),
exercise that right without the written consent of the Attorney or
sub-attorney (as the case may be).
4.6 THIRD PARTY DEALINGS
In respect of dealings by any person in good faith with an Attorney
or sub-attorney:
(a) (EVIDENCE THAT POWER NOT REVOKED): that person may accept a
written statement signed by any Attorney or sub-attorney (as
the case may be) to the effect that the power of attorney
granted under this Deed has not been revoked as conclusive
evidence of that fact; and
(b) (NO DUTY TO ENQUIRE): if the Attorney or sub-attorney (as the
case may be) executes any right granted to it by this Deed,
that person is not bound to enquire as to whether the right is
properly exercised or whether any circumstance has arisen to
authorise the exercise of that right.
4.7 INDEMNITY
The Grantor will indemnify any Attorney and sub-attorney from and
against all actions, suits, claims, demands, damages, liabilities,
losses, costs and expenses that may be made or bought against or
suffered or incurred by, any Attorney or sub-attorney, arising out
of or in connection with the lawful exercise of any of its rights
described in this Deed.
4.8 STAMPING AND REGISTRATION
The Grantor will, promptly after execution and delivery of this
Deed, properly stamp and register this Deed as required by any
applicable law and the Grantor authorises any Attorney to stamp and
register this Deed on behalf of the Grantor.
137
4.9 COSTS
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 4.8
will be paid by the Grantor within a reasonable time after demand
for payment is made.
--------------------------------------------------------------------------------
5. GOVERNING LAW
This Deed is governed by and construed in accordance with the laws
of the State of Western Australia and the Grantor irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the
courts of the State of Western Australia and any courts of appeal
from any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of )
[NAME OF RELEVANT SELLER] is affixed in )
accordance with its constitution in the presence )
of: )
................................ .......................
Secretary Director
138
SCHEDULE 5
ELIGIBILITY CRITERIA
Eligibility Criteria in relation to a Mortgage Loan means the following
standards:
o that the Mortgage Loan has a Loan to Value Ratio (based on the position as
at the commencement of business on the Cut-Off Date) of less than or equal
to 95%;
o that the Mortgage Loan has a stated term to maturity as at the Cut-Off Date
not exceeding 30 years;
o that the Mortgage Loan as at the Cut-Off Date has a Scheduled Balance of
less than or equal to A$750,000;
o that the Mortgage Loan is sourced from the relevant Seller's general
mortgage loan portfolio;
o that the Borrower under the Mortgage Loan is not an employee of either
Seller who is paying a concessional rate of interest under the Mortgage
Loan as a result of such employment;
o that the Mortgage Loan was advanced in, and is repayable in, Australian
dollars;
o that as at the Cut-Off Date no payment due from the Borrower under the
Mortgage Loan is in arrears by more than 30 days;
o that the Mortgage Loan is secured by a Mortgage over Land which has erected
on or within it a residential dwelling or unit and the terms of that
Mortgage require that dwelling or unit to be insured under an Insurance
Policy; and
o that the Mortgage Loan is or has been fully drawn,
or such other Eligibility Criteria as the Trustee, each Seller and the Manager
may agree in writing prior to the Closing Date and which the Rating Agencies
have confirmed in writing will not result in a reduction, qualification or
withdrawal of the credit ratings to be assigned by the Rating Agencies to the
Notes on the Closing Date.
139
SCHEDULE 6
FORM OF SECURITY CERTIFICATE
A$ SECURITIES
.................................................................................
THE A$ SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 AS AMENDED (THE "SECURITIES ACT") AND MAY 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 MEANING GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
.................................................................................
MEDALLION TRUST SERIES 2003-1G
CERTIFICATE NUMBER/S [ ]
PERPETUAL TRUSTEE COMPANY LIMITED
ABN 42 000 001 007
(the "TRUSTEE")
SECURITISATION ADVISORY SERVICES PTY. LIMITED
ABN 88 064 133 946
(the "MANAGER")
THIS IS TO CERTIFY THAT:
SECURITYHOLDER: [ ]
ABN [ ]
(the "SECURITYHOLDER")
ADDRESS: [ ]
appears in the Register as the holder of the A$ Securities specified below (the
"A$ SECURITIES") issued by the Trustee as trustee of the Medallion Trust Series
2003-1G (the "SERIES TRUST") as constituted by a Master Trust Deed (the "MASTER
TRUST DEED") dated 8 October 1997 between the Manager and the Trustee, as
amended from time to time, and a Series Supplement (the "SERIES SUPPLEMENT")
dated [ ] between Commonwealth Bank of Australia ABN 48 123 123 124, (as a
Seller and the Servicer) (the "BANK"), Homepath Pty Limited ABN 35 081 986 530
(as a Seller), the Manager and the Trustee.
Unless defined in this Security Certificate or a contrary intention appears,
words and expressions used in this Security Certificate have the same meaning as
in the Series Supplement.
The Securityholder was entered on the Register as holder of the A$ Securities
described below at [ ] on [ ].
DATE OF ISSUE:
CLASS OF A$ SECURITY: [Class A-2 Tranche 1 Note/Class A-2 Tranche 2 Note/Class
B Note/Redraw Bond]
NUMBERS OF A$ SECURITIES: [ ] to [ ], inclusive
SCHEDULED MATURITY DATE OF EACH A$ SECURITY:
140
FACE VALUE OF EACH A$ SECURITY:
INTEREST RATE OF EACH A$ SECURITY:
INTEREST PAYMENT DATES OF EACH A$ SECURITY:
[A tax file number has/has not been obtained from the person named above.]
The A$ Securities are issued and held subject to the provisions of the Master
Trust Deed, the Series Supplement and a Security Trust Deed (the "SECURITY TRUST
DEED") dated [ ] between the Manager, the Trustee, The Bank of New York, New
York Branch, and P.T. Limited ABN 67 004 454 666 (as Security Trustee). A copy
of the Security Trust Deed, the Master Trust Deed and the Series Supplement are
available for inspection by Securityholders at the offices of the Trustee at
Level 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx, XXX, 0000.
Neither the Manager nor the Trustee is under any obligation at any time to
repurchase any A$ Securities from Securityholders.
This Security Certificate is not a Certificate of Title and the Register on
which these A$ Securities are registered is the only conclusive evidence of the
title of the abovementioned person to the A$ Securities.
The Trustee issues this Security Certificate only in its role as trustee of the
Series Trust. Any obligation or liability of the Trustee arising under or in any
way connected with the Series Trust under the Master Trust Deed, the Series
Supplement or any other Transaction Document (including any A$ Security) to
which the Trustee is a party is limited to the extent to which it can be
satisfied out of the Assets of the Series Trust out of which the Trustee is
actually indemnified for the obligation or liability. This limitation will not
apply to any obligation or liability of the Trustee only to the extent that it
is not so satisfied because of any fraud, negligence or wilful default on the
part of the Trustee. The Trustee will have no liability for any act or omission
of the Manager or of any other person (other than a person whose acts or
omissions the Trustee is liable for in accordance with any Transaction
Document).
Transfers of the A$ Securities must be pursuant to a Security Transfer as set
out in Schedule 7 to the Series Supplement. Copies of Security Transfers are
available from the Trustee at the abovementioned address. Executed Security
Transfers must be lodged with the Trustee accompanied by this Security
Certificate.
None of the Manager, either Seller, the Servicer, the Bank, any other member of
the Bank group or the Trustee guarantees the payment or repayment of any
Securityholder Entitlements in respect of the A$ Securities.
The A$ Securities do not represent deposits or other liabilities of the Manager,
either Seller, the Servicer, the Bank or any other Related Body Corporate of the
Bank. The holding of the A$ Securities is subject to investment risk, including
possible delays in payment and loss of income and principal invested. None of
the Manager, either Seller, the Servicer, the Bank or any other Related Body
Corporate of the Bank stand in any way behind the capital value and/or
performance of the A$ Securities, or the Assets held by the Series Trust.
Dated:
For and on behalf of
PERPETUAL TRUSTEE COMPANY LIMITED
..................................... ...........................
Authorised Officer Authorised Officer
141
SCHEDULE 7
FORM OF SECURITY TRANSFER
------------
TO: PERPETUAL TRUSTEE COMPANY LIMITED, Registry Use Only Date Lodged
ABN 42 000 001 007 / /
(the "TRUSTEE")
------------
-----------------------------------------
TRANSFEROR (the
"TRANSFEROR") -----------------------------------------
(Full Name, ABN (if applicable)
and Address) -----------------------------------------
(Please Print) -----------------------------------------
-----------------------------------------
HEREBY APPLIES TO ASSIGN TO
-----------------------------------------
TRANSFEREE (the "TRANSFEREE")
-----------------------------------------
(Full Name, ABN (if applicable)
and Address) -----------------------------------------
(Please Print) -----------------------------------------
-----------------------------------------
the following securities (the "A$ SECURITIES") issued by the Trustee as trustee
of the Medallion Trust Series 2003-1G (the "SERIES TRUST"):
DATE OF ISSUE:
CLASS OF A$ SECURITY: [Class A-2 Tranche 1 Note/Class A-2 Tranche 2 Note/Class B
Note/Redraw Bond]
NUMBERS OF A$ SECURITIES: [ ] to [ ], inclusive
FACE VALUE OF EACH A$ SECURITY:
INTEREST PAYMENT DATES OF EACH A$ SECURITY:
SCHEDULED MATURITY DATE OF EACH A$ SECURITY: / /
and all the Transferor's property and interest in the same [and to the interest
accrued thereon.]
-----------------------
Settlement Amount
$
-----------------------
TRANSFEROR ________________________________________________________
Signature Authorised Signatory
(See notes below)
WITNESS _____________________________________________________ Date / /
TRANSFEREE _____________________________________________________________________
142
Signature: Authorised Officer
(See notes below)
WITNESS_______________________________________________________ Date / /
PAYMENTS
(tick where appropriate)
-------------------------------------------------------------------------
|_| In accordance with existing instructions (existing holders only)
|_| By cheque posted to above address
|_| By crediting the following account in Australia and in the name of
the Trustee only
-------------------------------------------------------------------------
Name of Account Account No.
-------------------------------------------------------------------------
Name of Financial Institution Branch
|_| Bank ............................................
|_| Building Society ..............................
-------------------------------------------------------------------------
Tax File Number (if applicable):
-------------------------------------------------------------------------
Authorised Officer of Transferee ______________________________ Date: / /
NOTES:
o The Transferor and the Transferee acknowledge that the transfer of the A$
Securities specified in this Security Transfer only takes effect on the
entry of the Transferee's name in the Register as the registered owner of
the A$ Securities.
o The Transferee agrees to accept the A$ Securities subject to the provisions
of a Master Trust Deed (the "MASTER TRUST DEED") dated 8 October 1997
between Securitisation Advisory Services Pty. Limited ABN 88 064 133 946
(the "MANAGER") and the Trustee, as amended from time to time, a Series
Supplement (the "SERIES SUPPLEMENT") dated [ ] between Commonwealth Bank of
Australia ABN 48 123 123 124 (as a Seller and the Servicer) (the "BANK"),
Homepath Pty Limited ABN 35 081 986 530 (as a Seller), the Manager and the
Trustee and a Security Trust Deed (the "SECURITY TRUST DEED") dated [ ]
between the Trustee as trustee of the Series Trust, the Manager, The Bank
of New York, New York Branch, and P.T. Limited ABN 67 004 454 666, as
Security Trustee.
o Unless expressly defined in this Security Transfer or a contrary intention
appears, words and expressions used in this Security Transfer have the same
meaning as in the Series Supplement.
o The Transferee acknowledges that it has independently and without reliance
on the Trustee, the Manager, either Seller, the Servicer, the Bank or any
other Related Body Corporate of the Bank (including without reliance on any
materials prepared or distributed by any of the foregoing) made its own
assessment and investigations regarding its investment in the A$
Securities.
o The Transferee acknowledges that:
(a) the A$ Securities do not represent deposits or other liabilities of
either Seller, the Servicer, the Bank, any other Related Body
Corporate of the Bank or the Manager;
(b) the holding of the A$ Securities is subject to investment risk,
including possible delays in payment and loss of income and principal
invested; and
143
(c) none of the Manager, either Seller, the Servicer, the Bank or, any
other Related Body Corporate of the Bank stand in any way behind the
capital value and/or performance of the A$ Securities or the assets
held by the Series Trust.
o The Trustee issues the A$ Securities only in its role as trustee of the
Series Trust. Any obligation or liability of the Trustee arising under or
in any way connected with the Series Trust under the Master Trust Deed, the
Series Supplement or any other Transaction Document (including any A$
Security) to which the Trustee is a party is limited to the extent to which
it can be satisfied out of the Assets of the Series Trust out of which the
Trustee is actually indemnified for the obligation or liability. This
limitation will not apply to any obligation or liability of the Trustee
only to the extent that it is not so satisfied because of any fraud,
negligence or wilful default on the part of the Trustee. The Trustee will
have no liability for any act or omission of the Manager or of any other
person (other than a person whose acts or omissions the Trustee is liable
for in accordance with any Transaction Document).
o Where the Transferor and/or the Transferee is a trustee, this Security
Transfer must be completed in the name of the trustee and signed by the
trustee without reference to the trust.
o Where this Transfer is executed by a corporation, it must be executed
either under common seal or under a power of attorney.
o If this Security Transfer is signed under a power of attorney, the attorney
hereby certifies that it has not received notice of revocation of that
power of attorney. A certified copy of the power of attorney must be lodged
with this Security Transfer.
o This Security Transfer must be lodged with the Trustee for registration,
accompanied by the Security Certificate to which the A$ Securities relate.
o The Register will be closed from 4.30 pm on the Business Day which is prior
to, and will be re-opened at the commencement of business on each
Distribution Date. The Trustee may with prior notice given in the manner
specified in the Master Trust Deed, close the Register at other times. The
total period that the Register may be closed will not exceed 35 Business
Days (or such other period agreed to by the Manager) in aggregate in any
calendar year. No Security Transfer received after 4.30pm on the day of
closure of the Register or while the Register is closed, will be registered
until the Register is re-opened.
o [If the Transferee is a non-resident for Australian taxation purposes,
withholding tax will be deducted from all interest payments unless an
exemption is provided to the Trustee.]
o A Securityholder is only entitled to transfer an A$ Security if:
(a) the offer of the A$ Security for sale, or the invitation to purchase
the A$ Security, to the proposed transferee by the Securityholder is
an offer or invitation that does not need disclosure to investors
under Part 6D.2 of Chapter 6 of the Corporations Act and otherwise
complies with the Corporations Act and is not made to a person who is
a "retail client" within the meaning of section 761G of the
Corporations Act; and
(b) the transfer would not otherwise breach any restriction on transfer
for the A$ Security contained in the Series Supplement.
o The A$ Securities covered hereby have not been registered under the United
States Securities Act of 1933 as amended (the "SECURITIES ACT") and may not
be offered and sold within the United States or to or for the account or
benefit of United States persons:
(a) as part of their distribution at any time; or
144
(b) otherwise until 40 days after the completion of the
distribution of the A$ Securities, as determined and
certified by the Co-Managers (as that term is defined in
the Dealer Agreement),
except in either case in accordance with Regulation S under the
Securities Act. Terms used above have the meanings given to them by
Regulation S.
[Marking where clause 10.16 of the Master Trust Deed applies.]
The Trustee hereby certifies that the Transferor is noted in the Register as the
holder of A$ Securities specified in this Security Transfer and that it will not
register any transfer of such A$ Securities other than pursuant to this Security
Transfer before [insert date].
Dated:
For and on behalf of
PERPETUAL TRUSTEE COMPANY LIMITED
................................... ................................
Authorised Officer Authorised Officer
145
SCHEDULE 8
QUARTERLY CERTIFICATE
QUARTERLY SUMMARY DISTRIBUTION DETAILS
REPORTING DATES
---------------
Closing Date
Determination Date
Notice Date
Distribution Date
Start Accrual Period
End Accrual Period
No. of Days in Accrual Period
Start Collection Period
End Collection Period
No. of Days in Collection Period
--------------------------------------------------------------------------------------------------------------------
SECURITIES ON ISSUE NO. OF CERTIFICATES INITIAL INVESTED AMOUNT INITIAL INVESTED
------------------- ------------------- ----------------------- ----------------
AMOUNT (US$) AMOUNT (A$)
----------- -----------
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - Series 1
Redraw Bond - Series 2
US$/A$ exchange rate at issue
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
INTEREST RATE FOR ACCRUAL PERIOD BANK BILL RATE INTEREST MARGIN INTEREST RATE
-------------------------------- -------------- --------------- -------------
Class A-1 Notes (payable to Currency
Swap Provider)
Class A-2 Notes
Class B Notes
Redraw Bond - Series 1
Redraw Bond - Series 2
BBSW Interest & Unpaid Interest Rate
for Accrual Period
Facilities BBSW
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
DISTRIBUTIONS PAYABLE ON DISTRIBUTION DATE PER CERT. AGGREGATE
------------------------------------------ --------- ---------
Total Interest Amount:
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - series 1
Redraw Bond - series 2
Principal:
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - Series 1
Redraw Bond - Series 2
Total:
Class A-1 Notes
Class A-2 Notes
Class B Notes
--------------------------------------------------------------------------------------------------------------------
146
--------------------------------------------------------------------------------------------------------------------
DISTRIBUTIONS PAYABLE ON DISTRIBUTION DATE PER CERT. AGGREGATE
------------------------------------------ --------- ---------
Redraw Bond - series 1
Redraw Bond - series 2
Total
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
POOL FACTORS LAST DISTRIBUTION DATE CURRENT DISTRIBUTION DATE
------------ ---------------------- -------------------------
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - series 1
Redraw Bond - series 2
--------------------------------------------------------------------------------------------------------------------
147
QUARTERLY CASHFLOW WORKING SHEET Per Certificate $ Aggregate $
--------------------------------
Finance Charge Collections
Finance Charge Collections - Repurchases
Finance Charge Damages
Income due to Seller
Other Income
Preliminary Income Amount
Taxes
Trustee Fee
Security Trustee Fee
Management Fee
Servicer's Fee
Liquidity Commitment Fee
Redraw Commitment Fee
Support Facility Payments
Support Facility Receipts
Expenses
Previous Unpaid Facility Int Chg - Liquidity
Liquidity Interest Charge + Previous Unpaid
Previous Unpaid Facility Int Chg - Redraw Facility
Redraw Interest Charge + Previous Unpaid
Repayment of Liquidity Facility
Total Interest Amount - Class A-1 Notes
- Class A-2 Notes
- Class B Notes
- Redraw Bonds - Series 1
- Redraw Bonds - Series 2
Required Income Amount
Gross Income Shortfall
Liquidity Facility Draw
Net Income Shortfall
Unreimbursed Principal Draws
Principal Draw
Principal Draw Reimbursement
Principal Chargeoff Unreimbursement
Principal Chargeoff
Total Principal Chargeoff Reimbursement Due
Arranging Fee
PAYMENT ALLOCATION CASCADE
--------------------------
Preliminary Income Amount
Liquidity Facility Draw
Principal Draw
Available Income Amount
Due Available Paid
Taxes
Trustee Fee
Security Trustee Fee
Management Fee
Servicer's Fee
Liquidity Commitment Fee
Redraw Commitment Fee
148
Support Facility Payments
Support Facility Receipts
Expenses
Liquidity Interest Charge
Repayment of Liquidity Facility
------------------------------------------------------------
Interest Amount Payable - Redraw Facility
- Class A-1 Notes
- Class A-2 Notes
- Redraw Bonds - Series 1
- Redraw Bonds - Series 2
------------------------------------------------------------
- Class B Notes
Principal Draw Reimbursement
Total Principal Chargeoff Reimbursement
Arranging Fee
Excess Distribution
Unpaid Facility Int Chg - Liquidity
- Redraw
Unpaid Security Interest Amount - Class A-1 Notes
- Class A-2 Notes
- Class B Notes
- Redraw Bonds - Series 1
- Redraw Bonds - Series 2
FACILITIES OUTSTANDING
----------------------
Liquidity Commitment Facility Limit
Beginning Liquidity Commitment Facility
Previous Liquidity Facility Draw
Repayment of Liquidity Facility
Liquidity Facility Draw
Ending Liquidity Commitment Facility
Redraw Commitment Facility
Limit Beginning Redraw Commitment Facility
Previous Redraw Facility Draw
Previous Redraw Facility Draw - Chargeoffs
Repayment of Redraw Facility
Repayment of Unreimbursed Chargeoffs
Redraw Facility Draw - Unreimbursed Chargeoffs
Redraw Facility Available to Draw
Redraw Facility Draw
Ending Redraw Commitment Facility
INTEREST AND PRINCIPAL DISTRIBUTION WORKSHEET Per Certificate Aggregate
--------------------------------------------- $ $
INTEREST AMOUNT
CLASS A-1 NOTES
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest Amount
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
149
Interest Amount Payable
Unpaid Security Interest Amount
CLASS A-2 NOTES
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest Amount
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Interest Amount Payable
Unpaid Security Interest Amount
CLASS B NOTES
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Interest Amount Payable
Unpaid Security Interest Amount
REDRAW BONDS - SERIES 1
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest Amount
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Interest Amount Payable
Unpaid Security Interest Amount
REDRAW BONDS - SERIES 2
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest Amount
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Interest Amount Payable
Unpaid Security Interest Amount
PRINCIPAL AMOUNT
Principal Collections
Principal Collections - Repurchases
less Repayment of Redraw Facility
less Total Customer Redraw
less Principal Draw
150
plus Redraw Facility Draw
plus Redraw Bonds Issue this month
Aggregate Principal Damages from Seller & Servicer
Principal Draw Reimbursement
Principal Chargeoff Reimbursement - Class B Notes
- Class A-1 Notes
- Class A-2 Notes
- Redraw Bonds - Series 1
- Redraw Bonds - Series 2
- Redraw Facility
Principal rounding b/f
Scheduled Principal Amount
Scheduled Principal Amount less redraws
Unscheduled Principal Amount - Partial Prepayment
Unscheduled Principal Amount - Full Prepayment
Unscheduled Principal Amount - less redraws + C/X Xxxx
Total Available Principal Amount for Redraw Bonds
Principal Distribution - Redraw Bonds - Series 1
Principal Distribution - Redraw Bonds - Series 2
Principal rounding b/f
Total Unscheduled Principal Amount
Total Scheduled Principal Amount
Total Available Principal Amount for Notes
PRINCIPAL ALLOCATION
--------------------
Class A Percentage via Stepdown
Class A Available Principal Payment
Class A-1 Principal Payment
Class A-2 Principal Payment
Class B Principal Payment
Principal rounding c/f
PRINCIPAL LOSSES
Principal Losses
Principal Draw Amount - Pool Mortgage Insurance Policy
Principal Draw Amount - Individual Mortgage Insurance Policy
Net Principal Losses
Principal Chargeoff - Class B Notes
- Class A-1 Notes
- Class A-2 Notes
- Redraw Bonds Series 1
- Redraw Bonds Series 2
- Redraw Facility
151
CLASS A-1 NOTES
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
CLASS A-2 NOTES
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
CLASS B NOTES
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
REDRAW BONDS - SERIES 1
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
REDRAW BONDS - SERIES 2
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
REDRAW FACILITY
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
152
INVESTORS BALANCE OUTSTANDING WORKSHEET Aggregate Aggregate
--------------------------------------- US$ A$
CLASS A-1 NOTES
Initial Invested Amount
previous Principal Distribution
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
CLASS A-2 TRANCHE 1 NOTES
Initial Invested Amount
previous Principal Distribution
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
CLASS A-2 TRANCHE 2 NOTES
Initial Invested Amount
previous Principal Distribution
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
CLASS B NOTES
Initial Invested Amount
previous Principal Distribution
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
REDRAW BONDS - SERIES 1
Previous Initial Invested Amount
Initial Invested Amount
Principal Distribution (after last Distribution Date)
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
153
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
REDRAW BONDS - SERIES 2
Previous Initial Invested Amount
Initial Invested Amount
Principal Distribution (after last Distribution Date)
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
AVERAGE MONTHLY PERCENTAGE
--------------------------
Current Balance of Arrears greater than 60 Days
Current Outstanding Loan Balance
Average Monthly Percentage
Monthly Percentage - Current Period
Monthly Percentage - Month 2
Monthly Percentage - Month 3
Monthly Percentage - Month 4
Monthly Percentage - Month 5
Monthly Percentage - Month 6
Monthly Percentage - Month 7
Monthly Percentage - Month 8
Monthly Percentage - Month 9
Monthly Percentage - Month 10
Monthly Percentage - Month 11
Monthly Percentage - Month 12
STEPDOWN CONDITIONS
-------------------
Years since initial Determination Date
Required Subordinated Percentage
Available Subordinated Percentage
Aggregate Unreimbursed Principal Chargeoffs
Required Class B Stated Amount Outstanding
Year (less than) 5, 2% Avg Mo. Perc, Unreim C/O Maximum
Year (less than) 5, 4% Avg Mo. Perc, Unreim C/O Maximum
5 (less than or equal to) Year (less than) 6, Unreim C/O Maximum
6 (less than or equal to) Year (less than) 7, Unreim C/O Maximum
7 (less than or equal to) Year (less than) 8, Unreim C/O Maximum
8 (less than or equal to) Year (less than) 9, Unreim C/O Maximum
9 (greater than or equal to) Year, Unreim C/O Maximum
Stepdown Condition less than 5 years
Stepdown Condition greater than & equal to 5 years
Year (greater than or equal to) 5, 2% Avg Mo. Perc, Unreim C/O Maximum
Year - Stepdown Condition Test
5
6
7
8
9
154
Year - Stepdown Class A Criteria FALSE TRUE Class A Percentage
0 1 0.5 1.00
1 1 0.5 1.00
2 1 0.5 1.00
3 1 0 1.00
4 1 0 1.00
5 1 0.7 1.00
6 1 0.6 1.00
7 1 0.4 1.00
8 1 0.2 1.00
9 1 0 1.00
10 1 0 -
STEP-UP CONDITIONS
Step-Up Date
Step-Up margin Class A-1 Notes
Class A-2 Notes
155
SCHEDULE 9
FORM OF CAPITAL UNIT CERTIFICATE
CLASS [ ] CAPITAL UNIT CERTIFICATE
MEDALLION TRUST SERIES 2003-1G
PERPETUAL TRUSTEE COMPANY LIMITED
ABN 42 000 001 007
(the "TRUSTEE")
SECURITISATION ADVISORY SERVICES PTY. LIMITED
ABN 88 064 133 946
(the "MANAGER")
THIS IS TO CERTIFY THAT:
CLASS [ ] UNITHOLDER: [ ]
ABN [ ]
(the "CLASS [ ] CAPITAL UNITHOLDER")
ADDRESS: [ ]
[ ]
[ ]
appears in the Register as the holder of the Class [ ] Capital Unit issued by
the Trustee as trustee of the Medallion Trust Series 2003-1G (the "SERIES
TRUST") as constituted by a Master Trust Deed (the "MASTER TRUST DEED") dated 8
October 1997 between the Manager and the Trustee, as amended from time to time,
and a Series Supplement (the "SERIES SUPPLEMENT") dated [ ] between Commonwealth
Bank of Australia ABN 48 123 123 124 (the "BANK") (as a Seller and the
Servicer), Homepath Pty Limited ABN 35 081 986 530 (as a Seller) the Manager and
the Trustee.
Unless expressly defined in this Unit Certificate or a contrary intention
appears, words and expressions used in this Unit Certificate have the same
meaning as in the Series Supplement.
The Class [ ] Capital Unit is issued and held by the Class [ ] Capital
Unitholder subject to the provisions of the Master Trust Deed, the Series
Supplement and a Security Trust Deed (the "SECURITY TRUST DEED") dated [ ]
between the Manager, the Trustee, The Bank of New York, New York Branch, and PT
Limited ABN 67 004 454 666 (as Security Trustee). A copy of the Register, the
Security Trust Deed, the Master Trust Deed and the Series Supplement are
available for inspection by the Class [ ] Capital Unitholder at the offices of
the Trustee at Level 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx XXX 0000.
None of the Manager, either Seller, the Servicer, the Bank, or any Related Body
Corporate of the Bank guarantees the payment of amounts (if any) payable in
respect of the Class [ ] Capital Unit.
Neither the Manager nor the Trustee is under any obligation at any time to
repurchase or redeem the Class [ ] Capital Unit.
This Unit Certificate is not a certificate of title and the Register on which
this Class [ ] Capital Unit is registered is the only conclusive evidence of the
title of the Class [ ] Capital Unitholder to the Class [ ] Capital Unit.
The Trustee issues the Class [ ] Capital Unit only in its role as trustee of the
Series Trust. Any obligation or liability of the Trustee arising under or in any
way connected with the Series Trust under the Master Trust Deed, the Series
Supplement or any other Transaction Document to which the Trustee is a party is
limited to the extent to which it can be satisfied out of the Assets of the
Series Trust out of which the Trustee is actually indemnified for the obligation
or liability. This limitation will not apply to any obligation or liability of
the Trustee only to the extent that it is not so satisfied because of any fraud,
negligence or wilful default on the part of the Trustee. The Trustee will have
no liability for any act or
156
omission of the Manager or of any other person (other than a person whose acts
or omissions the Trustee is liable for in accordance with any Transaction
Document).
The Class [ ] Capital Unit does not represent a deposit or other liability of
the Manager, either Seller, the Servicer, the Bank or any Related Body Corporate
of the Bank. The Class [ ] Capital Unit is subject to investment risk, including
possible delays in payment and loss of income and principal invested. None of
the Manager, either Seller, the Servicer, the Bank or any Related Body Corporate
of the Bank stand in any way behind the capital value and/or performance of the
Assets held by the Series Trust.
Dated:
For and on behalf of
PERPETUAL TRUSTEE COMPANY LIMITED
as trustee of the Series Trust
................................. ..................................
Authorised Officer Authorised Officer
157
SCHEDULE 10
FORM OF INCOME UNIT CERTIFICATE
INCOME UNIT CERTIFICATE
MEDALLION TRUST SERIES 2003-1G
PERPETUAL TRUSTEE COMPANY LIMITED
ABN 42 000 001 007
(the "TRUSTEE")
SECURITISATION ADVISORY SERVICES PTY. LIMITED
ABN 88 064 133 946
(the "MANAGER")
THIS IS TO CERTIFY THAT:
INCOME UNITHOLDER: COMMONWEALTH BANK OF AUSTRALIA
ABN 48 123 123 124
(the "BANK")
ADDRESS: Level 0,
00 Xxxxxx Xxxxx
XXXXXX XXX 0000
appears in the Register as the holder of the Income Unit issued by the Trustee
as trustee of the Medallion Trust Series 2003-1G (the "SERIES TRUST") as
constituted by a Master Trust Deed (the "MASTER TRUST DEED") dated 8 October
1997 between the Manager and the Trustee, as amended from time to time, and a
Series Supplement (the "SERIES SUPPLEMENT") dated [ ] between the Bank (as a
Seller and the Servicer), Homepath Pty Limited ABN 35 081 986 530 (as a Seller)
the Manager and the Trustee.
Unless expressly defined in this Unit Certificate or a contrary intention
appears, words and expressions used in this Unit Certificate have the same
meaning as in the Series Supplement.
The Income Unit is issued and held by the Bank subject to the provisions of the
Master Trust Deed, the Series Supplement and a Security Trust Deed (the
"SECURITY TRUST DEED") dated [ ] between the Manager, the Trustee, The Bank of
New York, New York Branch, and PT Limited ABN 67 004 454 666 (as Security
Trustee). A copy of the Register, the Security Trust Deed, the Master Trust Deed
and the Series Supplement are available for inspection by the Bank at the
offices of the Trustee at Level 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx XXX 0000.
None of the Manager, either Seller, the Servicer, the Bank, or any Related Body
Corporate of the Bank guarantees the payment of amounts (if any) payable in
respect of the Income Unit.
Neither the Manager nor the Trustee is under any obligation at any time to
repurchase or redeem the Income Unit.
This Unit Certificate is not a certificate of title and the Register on which
this Income Unit is registered is the only conclusive evidence of the title of
the Bank to the Income Unit.
The Trustee issues the Income Unit only in its role as trustee of the Series
Trust. Any obligation or liability of the Trustee arising under or in any way
connected with the Series Trust under the Master Trust Deed, the Series
Supplement or any other Transaction Document to which the Trustee is a party is
limited to the extent to which it can be satisfied out of the Assets of the
Series Trust out of which the Trustee is actually indemnified for the obligation
or liability. This limitation will not apply to any obligation or liability of
the Trustee only to the extent that it is not so satisfied because of any fraud,
negligence or wilful default on the part of the Trustee. The Trustee will have
no liability for any act or omission of the Manager or of any other person
(other than a person whose acts or omissions the Trustee is liable for in
accordance with any Transaction Document).
158
The Income Unit does not represent a deposit or other liability of the Manager,
either Seller, the Servicer, the Bank or any Related Body Corporate of the Bank.
The Income Unit is subject to investment risk, including possible delays in
payment and loss of income and principal invested. None of the Manager, either
Seller, the Servicer, the Bank or any Related Body Corporate of the Bank stand
in any way behind the capital value and/or performance of the Assets held by the
Series Trust.
Dated:
For and on behalf of
PERPETUAL TRUSTEE COMPANY LIMITED
as trustee of the Series Trust
............................... ....................................
Authorised Officer Authorised Officer
159
SCHEDULE 11
STEPDOWN PERCENTAGE
DETERMINATION OF STEPDOWN PERCENTAGE
The Stepdown Percentage on a Determination Date is determined as follows.
1. If the Stepdown Conditions are not satisfied on that Determination Date,
the Stepdown Percentage is 100%.
2. If the Stepdown Conditions are satisfied on that Determination Date, the
Stepdown Percentage is 100% unless the following apply:
(a) if the Determination Date falls prior to the third anniversary of the
Closing Date then the Stepdown Percentage is 50%;
(b) if:
(i) the Determination Date falls on or after the third anniversary
of the Closing Date but prior to the tenth anniversary of the
Closing Date; and
(ii) the Class B Available Support on the Determination Date is
equal to or greater than two times the Class B Required Support
on the Determination Date;
the Stepdown Percentage is 0%;
(c) if:
(i) paragraph (b) above does not apply;
(ii) the Determination Date falls on or after the fifth anniversary
of the Closing Date but prior to the tenth anniversary of the
Closing Date; and
(iii) the Class B Available Support on the Determination Date is
equal to or greater than the Class B Required Support on the
Determination Date;
then:
(i) if the Determination Date falls on or after the fifth
anniversary of the Closing Date but prior to the sixth
anniversary of the Closing Date, the Stepdown Percentage is
70%;
(ii) if the Determination Date falls on or after the sixth
anniversary of the Closing Date but prior to the seventh
anniversary of the Closing Date, the Stepdown Percentage is
60%;
(iii) if the Determination Date falls on or after the seventh
anniversary of the Closing Date but prior to the eighth
anniversary of the Closing Date, the Stepdown Percentage is
40%;
(iv) if the Determination Date falls on or after the eighth
anniversary of the Closing Date but prior to the ninth
anniversary of the Closing Date, the Stepdown Percentage is
20%; or
(v) if the Determination Date falls on or after the ninth
anniversary of the Closing Date but prior to the tenth
anniversary of the Closing Date, the Stepdown Percentage is 0%;
or
160
(d) if the Determination Date falls on or after the tenth anniversary of
the Closing Date, the Stepdown Percentage is 0%.
STEPDOWN CONDITIONS
The Stepdown Conditions are satisfied on a Determination Date if:
1. the following applies:
(a) the Class B Available Support on the Determination Date is equal to or
greater than two times the Class B Required Support on the
Determination Date;
(b) the aggregate Stated Amount for the Class B Notes on the Determination
Date is equal to or greater than 0.25% of the aggregate Initial
Invested Amount of all the Notes;
(c) either:
(i) the Average Delinquent Percentage on the Determination Date
does not exceed 2% and the aggregate of all Unreimbursed
Principal Chargeoffs on the Determination Date does not exceed
30% of the aggregate of the Initial Invested Amounts of the
Class B Notes; or
(ii) the Average Delinquent Percentage on the Determination Date
does not exceed 4% and the aggregate of all Unreimbursed
Principal Chargeoffs on the Determination Date does not exceed
10% of the aggregate of the Initial Invested Amounts of the
Class B Notes; and
(d) the event referred to in Condition 7.3(a) of the US Dollar Note
Conditions has not occurred on or prior to the Determination Date and
is not expected to occur on or prior to the next Distribution Date
thereafter; or
2. the following applies:
(a) the Determination Date falls on or after the fifth anniversary of the
Closing Date;
(b) the Average Delinquent Percentage on the Determination Date does not
exceed 2%;
(c) the aggregate Stated Amount of all outstanding Notes is greater than
10% of the aggregate Initial Invested Amount of all Notes;
(d) the aggregate Stated Amount for the Class B Notes on the Determination
Date is equal to or greater than 0.25% of the aggregate Initial
Invested Amount of all the Notes; and
(e) the aggregate of all Unreimbursed Principal Chargeoffs on the
Determination Date does not exceed:
(i) if the Determination Date falls on or after the fifth
anniversary of the Closing Date but prior to the sixth
anniversary of the Closing Date, 30% of the aggregate of the
Initial Invested Amounts of the Class B Notes;
(ii) if the Determination Date falls on or after the sixth
anniversary of the Closing Date but prior to the seventh
anniversary of the Closing Date, 35% of the aggregate of the
Initial Invested Amounts of the Class B Notes;
(iii) if the Determination Date falls on or after the seventh
anniversary of the Closing Date but prior to the eighth
anniversary of the Closing Date,
161
40% of the aggregate of the Initial Invested Amounts of the
Class B Notes;
(iv) if the Determination Date falls on or after the eighth
anniversary of the Closing Date but prior to the ninth
anniversary of the Closing Date, 45% of the aggregate of the
Initial Invested Amounts of the Class B Notes; or
(v) if the Determination Date falls on or after the ninth
anniversary of the Closing Date, 50% of the aggregate of the
Initial Invested Amounts of the Class B Notes.
162
SCHEDULE 12
FORM OF CUSTODIAN POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on 2003
BY HOMEPATH PTY LIMITED ABN 35 081 986 530, a company incorporated in
Australia and registered in the State of New South Wales and having
an office at Level 0, 00 Xxxxxx Xxxxx, Xxxxxx, XXX 0000 ("HOMEPATH")
IN FAVOUR OF COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124, a company
incorporated in Australia and registered in the Australian Capital
Territory and having its registered office at Level 0, 00 Xxxxxx
Xxxxx, Xxxxxx XXX 0000 (the "CUSTODIAN")
THIS DEED PROVIDES as follows:
--------------------------------------------------------------------------------
1. INTERPRETATION
1.1 DEFINITIONS
In this Deed, unless the contrary intention appears:
"ATTORNEY" means any attorney appointed by or pursuant to clause 2
and any person who derives a right directly or indirectly from an
Attorney.
"AUTHORISED OFFICER" means in relation to the Custodian, a director,
secretary or any person whose title contains the word or words
"manager" or "chief executive officer" or a person performing the
functions of any of them.
"SERIES SUPPLEMENT" means the Series Supplement dated [ ] between
the Custodian, Homepath, Securitisation Advisory Services Pty
Limited ABN 88 064 133 946 and Perpetual Trustee Company Limited ABN
42 000 001 007.
1.2 SERIES SUPPLEMENT
Unless expressly defined in this Deed or a contrary intention
appears, words and expressions used in this Deed have the same
meaning as in the Series Supplement.
--------------------------------------------------------------------------------
2. APPOINTMENT AND POWERS
2.1 APPOINTMENT
Homepath appoints the Custodian and any Authorised Officer from time
to time of the Custodian jointly and severally as its attorney with
the right, to do in the name of Homepath and on its behalf
everything necessary or expedient to:
(a) (PERFORMANCE OF CUSTODIAN ROLE): perform the Custodian's
duties, and exercise the rights of the Custodian, under clause
25 of the Series Supplement in so far as those duties and
rights relate to Mortgage Documents with respect to Mortgage
Loans in relation to Homepath;
(b) (DELEGATE): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any
terms or conditions that it thinks fit;
(c) (SIGN DOCUMENTS): sign, seal, deliver and execute and do
(either unconditionally or subject to any conditions that it
thinks fit) all deeds, arrangements, documents and things in
respect of any of its rights described in this Deed; and
163
(d) (DO INCIDENTAL THINGS): do anything incidental to or conducive
to the effective and expeditious exercise of its rights
described in this Deed.
--------------------------------------------------------------------------------
3. CONSIDERATION AND REVOCATION
3.1 CONSIDERATION
Homepath acknowledges that it has received good and valuable
consideration for the grant of this Deed.
3.2 IRREVOCABLE WITHOUT CONSENT
Except with the prior written consent of an Authorised Officer of
the Custodian, the power of attorney granted under clause 2.1 of
this Deed is irrevocable by Homepath and its successors and assigns.
3.3 NO ABROGATION
Subject only to revocation in accordance with clause 3.2, this Deed
will remain in full force and effect notwithstanding:
(a) (INSOLVENCY): the insolvency of, or the occurrence of any other
analogous event with respect to, Homepath;
(b) (AMENDMENT): any waiver, replacement, amendment or variation of
any document (with or without the consent of Homepath);
(c) (DELAY): any delay, laches, acquiescence, mistake, act or
omission (including, without limitation, any default by the
Custodian of any obligation that it owes to any person) by any
Attorney; or
(d) (MISCELLANEOUS): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate
to prejudice, release or otherwise affect the rights of an
Attorney under this Deed.
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4. DELEGATES
4.1 OBLIGATION
Where a delegation is made by an Attorney under clause 2, the
following will apply:
(a) (VARY, SUSPEND ETC.): the Attorney may at any time by notice in
writing vary, suspend or revoke a delegation made under
clause 2;
(b) (ATTORNEY RETAINS ANY RIGHTS DELEGATED): a right delegated by
the Attorney may continue to be exercised or performed by the
Attorney notwithstanding the delegation of that right;
(c) (EFFECT OF ACTS DELEGATED): any act or thing done within the
scope of a delegation while the delegation is in force:
(i) has the same effect as if it had been done by the
Attorney; and
(ii) will not be invalidated by reason of a later revocation or
variation of the delegation; and
(d) (OPINION OF DELEGATE): if the exercise or performance of a
right by the Attorney is dependant upon the opinion, belief or
state of mind of the Attorney in relation to a
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xxxxxx and that right is delegated by the Attorney, the
delegate may, unless the contrary intention appears, exercise
or perform the right based upon his or her own opinion, belief
or state of mind (as the case may require) in relation to the
matter.
4.2 REVOCATION OF NOMINATION
The Custodian may at any time revoke or suspend any appointment of a
nominee or an Attorney pursuant to clause 2.
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5. MISCELLANEOUS
5.1 SUSPENSION OF HOMEPATH'S RIGHTS
Homepath must not, after being notified in writing by any Attorney
that an Attorney intends to exercise any right conferred on it by
this Deed (and provided that such right is then and remains
exercisable), exercise that right without the written consent of the
Custodian.
5.2 RATIFICATION
Homepath will at all times ratify and confirm whatever any Attorney
lawfully does, or causes to be done, in exercising its rights
described in this Deed.
5.3 CONFLICT OF INTEREST
Any Attorney may exercise any right notwithstanding that it
constitutes a conflict of interest or duty.
5.4 HOMEPATH BOUND
Homepath and any person (including, but not limited to, a substitute
or assign) claiming under Homepath are bound by anything an Attorney
does in the lawful exercise of its rights described in this Deed.
5.5 THIRD PARTY DEALINGS
In respect of dealings by any person in good faith with an Attorney:
(a) (EVIDENCE THAT POWER NOT REVOKED): that person may accept a
written statement signed by any Attorney to the effect that the
power of attorney granted under this Xxxx has not been revoked
as conclusive evidence of that fact; and
(b) (NO DUTY TO ENQUIRE): if the Attorney executes any right
granted to it by this Deed, that person is not bound to enquire
as to whether the right is properly exercised or whether any
circumstance has arisen to authorise the exercise of that
right.
5.6 INDEMNITY
Homepath will indemnify any Attorney from and against all actions,
suits, claims, demands, damages, liabilities, losses, costs and
expenses that may be made or bought against or suffered or incurred
by any such Attorney arising out of or in connection with the lawful
exercise of any of its rights described in this Deed.
5.7 STAMPING AND REGISTRATION
Homepath will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable
law and Homepath authorises any Attorney to stamp and register this
Deed on behalf of Homepath.
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5.8 COSTS
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 5.7
will be paid by Homepath within a reasonable time after demand for
payment is made.
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6. GOVERNING LAW
This Deed is governed by and construed in accordance with the laws
of the State of New South Wales and Homepath irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the
courts of the State of New South Wales and any courts of appeal from
any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of HOMEPATH )
PTY LIMITED ABN 35 081 986 530 is affixed )
in accordance with its constitution in the )
presence of: )
..................................... ...........................
Secretary Director
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EXECUTED as a deed.
SIGNED SEALED AND DELIVERED for and on behalf |
of COMMONWEALTH BANK OF AUSTRALIA |
ABN 48 123 123 124 |
by Xxxxxxx Xxx | /s/ Xxxxxxx See
its Attorney under a Power of Attorney dated 27/11/1997 | ------------------------------------------------
and registered Book 4185 No. 616 |
who certifies that he or she is General Manager of | Signature of Attorney
COMMONWEALTH BANK OF AUSTRALIA in the |
presence of: |
|
|
/s/ Xxxxxxxx O'Xxxx Xxxxxxx See
----------------------------------------------------- ------------------------------------------------
Signature of Witness Name of Attorney in full
Xxxxxxxx X'Xxxx
-----------------------------------------------------
Name of Witness in full
SIGNED SEALED AND DELIVERED for and on behalf |
of SECURITISATION ADVISORY SERVICES LIMITED |
ABN 88 064 133 946 |
by Xxxxxxx Xxx | /s/ Xxxxxxx See
its Attorney under a Power of Attorney dated | ------------------------------------------------
and registered Book 4380 No. 428 |
and who declares that he or she has not received | Signature of Attorney
any notice of the revocation of such Power of |
Attorney in the presence of: |
|
/s/ Xxxxxxxx X'Xxxx | Xxxxxxx Xxx
----------------------------------------------------- ------------------------------------------------
Signature of Witness Name of Attorney in full
Xxxxxxxx X'Xxxx
------------------------------------------------------------
Name of Witness in full
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SIGNED SEALED AND DELIVERED for and on behalf |
of PERPETUAL TRUSTEE COMPANY LIMITED |
ABN 42 000 001 007 | /s/ Xxxxxxxxx Xxxxx
by Xxxxxxxxx Xxxxx | ------------------------------------------------
its Attorney under a Power of Attorney dated and |
registered Book 4380 No. 429 | Signature of Attorney
and who declares that he or she has not received |
any notice of the revocation of such Power of |
Attorney in the presence of: |
|
|
/s/ Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxx
----------------------------------------------------- ------------------------------------------------
Signature of Witness Name of Attorney in full
Xxxxxxx Xxxxxx
-----------------------------------------------------
Name of Witness in full
SIGNED SEALED AND DELIVERED for and on behalf |
of HOMEPATH PTY LIMITED ABN 35 081 986 530 |
by Xxxxxxx Xxx | /s/ Xxxxxxx Xxx
its Attorney under a Power of Attorney dated | ------------------------------------------------
and registered Book 4380 No. 427 |
and who declares that he or she has not received | Signature of Attorney
any notice of the revocation of such Power of Attorney |
in the presence of: |
|
|
|
/s/ Xxxxxxxx O'Xxxx Xxxxxxx See
----------------------------------------------------- ------------------------------------------------
Signature of Witness Name of Attorney in full
Xxxxxxxx X'Xxxx
------------------------------------------------------
Name of Witness in full
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