Master Trust Deed
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ST XXXXXX BANK LIMITED
(St Xxxxxx)
CRUSADE MANAGEMENT LIMITED
(Crusade)
and
NATIONAL MUTUAL TRUSTEES LIMITED
(NMT)
Master Trust Deed
Crusade Euro Trusts
Xxxxx Xxxxx & Xxxxxxx
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
(Copyright) Copyright Xxxxx Xxxxx & Xxxxxxx 1999
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
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Table of Contents
1. Definitions and interpretation 1
1.1 Definitions 1
1.2 Interpretation 19
1.3 Binding on Noteholders and Beneficiaries 19
2. Trustee of Crusade Euro Trusts 20
2.1 Appointment of Trustee 20
2.2 Trustee to act in interests of Beneficiary and
Noteholders of a Trust 20
2.3 Separate and distinct Trusts 20
2.4 Termination of Deed 20
3. The Trusts 20
3.1 Beneficial Interest in the Trusts 20
3.2 Creation of Trusts 20
3.3 Name of the Trusts 21
3.4 Duration of a Trust 21
3.5 Termination; winding up 21
3.6 Costs of winding up of a Trust 22
4. Notes 23
4.1 Acknowledgement of indebtedness 23
4.2 Legal nature of Notes 23
4.3 Terms of Notes 23
4.4 Interest and Principal Entitlement of Noteholders
and Couponholders 23
4.5 Notes not invalid if issued in breach 24
4.6 No discrimination between Noteholders 24
5. Limits on rights of noteholders and beneficiary 24
5.1 General limits 24
5.2 Interests of Beneficiary Assignable 25
5.3 Ranking of interest of Beneficiary 25
5.4 Further limit on interest of Noteholders, Couponholders
and Warehouse Facility Providers 25
5.5 No liability of Noteholders or Beneficiary 25
6. Procedure for issue of notes 25
6.1 Note Issue Direction for a Trust 25
6.2 Requirements for a Note Issue Direction 26
6.3 Supplementary terms notice 27
6.4 Amendment 28
6.5 Comply with Note Issue Direction 29
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6.6 Proviso on compliance with Note Issue Direction 29
6.7 Issue of Notes and transfer of benefit of Receivables 29
6.8 Action following Note Issue 30
6.9 No liability for insufficient moneys 30
6.10 Further assurance 30
6.11 Further issues subject to Rating Agency approval 31
6.12 Issue of unrated Notes 31
6.13 No limit on Notes 31
6.14 No issue in an Australian Jurisdiction 31
7. Transfers of notes 31
7.1 No restrictions on transfer of Notes 31
7.2 Transfer 31
8. Investment of the trusts generally 31
8.1 Authorised Investments only 31
8.2 Manager selects investments 31
8.3 Investment proposals 32
8.4 Disposal or realisation of Authorised Investments 32
8.5 Temporary investment of cash and limitation on
maturity of Authorised Investments 33
8.6 Support facilities 33
8.7 Authorised trustee investments 34
8.8 Limitation of Trustee's personal liability 35
8.9 Moneys payable to Trustee 35
8.10 Segregation of Assets of a Trust 35
8.11 Assets of Trusts 35
8.12 Liabilities of a Trust 36
9. General 36
9.1 Power to acquire Assets 36
9.2 Borrowings - general 36
9.3 Borrowings - Support Facilities etc. 37
10. Origination 37
11. Acquisition or funding by warehouse trust from another trust 37
11.1 Direction by Manager 37
11.2 Required information 38
11.3 Conditions to acceptance 38
11.4 Effect of acceptance 38
11.5 Implementation 38
11.6 General direction 38
11.7 Transfers between Trusts 38
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11.8 Acknowledgement by Approved Seller 40
12. Acquisition from approved seller 40
12.1 Note issue direction 40
12.2 Accession of Approved Sellers 40
12.3 Sale notices 40
12.4 Constitution and Entitlement of the Trust Back 41
12.5 Conditions Precedent to Purchase 44
12.6 Representations and warranties of Approved Seller 44
12.7 Undertakings 47
12.8 Priority 47
12.9 Title perfection event; termination; repurchase 49
12.10 Subsequent adjustment 51
12.11 Substitution of security 52
12.12 Indemnification 52
12.13 Power of Attorney 53
13. Acquisition from warehouse trust by another trust 53
13.1 Direction 53
13.2 Implementation of acquisition 54
13.3 Survival of rights and remedies 54
13.4 Acknowledgement by Approved Seller 54
14. The manager 54
14.1 Appointment of Manager 54
14.2 Complete powers of management 55
14.3 Note issuance 55
14.4 Manager to act in interests of Beneficiary and Noteholders 55
14.5 Manager to assist Trustee 55
14.6 Manager's power to delegate 55
14.7 Manager's power to appoint advisers 56
14.8 Manager's books available to Trustee 56
14.9 Manager will account to Trustee for moneys received 56
14.10 Manager to report Pool Data on Reuters 56
14.11 Manager to prepare notices etc. 56
14.12 Prior approval of circulars 56
14.13 Taxes 57
14.14 Acquisition or disposal of Assets 57
14.15 Monitor support facilities 57
14.16 Make calculations, co-ordinate and provide reports 57
14.17 Manager cannot bind Trustee unless authorised 57
14.18 Manager must perform obligations under other
Transaction Documents 57
14.19 Manager to provide personnel and systems 57
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14.20 Additional covenants by Manager 58
14.21 Benefit of Managers' Covenants 58
15. Manager's fee 58
16. Retirement, removal and replacement of manager 59
16.1 Retirement on Manager's Default 59
16.2 Trustee may remove recalcitrant Manager 59
16.3 Trustee appoints replacement Manager 59
16.4 Voluntary retirement 60
16.5 No resignation by Manager unless successor appointed 60
16.6 Trustee to act as Manager if no successor appointed 60
16.7 Release of outgoing Manager 60
16.8 New Manager to execute deed 60
16.9 Settlement and discharge 61
16.10 Delivery of books, documents, etc 61
16.11 Notice to Noteholders of new Manager 61
16.12 Waiver of Manager's Defaults 61
17. Trustee's powers 61
17.1 General power 61
17.2 Specific powers 62
17.3 Powers to be exercised with others 64
17.4 Delegation to Related Bodies Corporate 64
17.5 Trustee's power to appoint attorneys and agents 64
17.6 65
17.7 Generally unlimited discretion 65
18. Trustee's covenants 65
18.1 General 65
18.2 To act continuously as Trustee 65
18.3 To act honestly, diligently and prudently 65
18.4 No dispositions of Assets except in accordance
with Transaction Documents 66
18.5 Indemnity re acts of Trustee's delegates 66
18.6 Forward notices etc to Manager 66
18.7 Trustee will implement Manager's directions 67
18.8 Custodian 67
18.9 Bank accounts 67
18.10 Perform transaction documents 67
19. Trustee's fees and expenses 67
19.1 Trustee's fee 67
19.2 Reimbursement of expenses 67
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19.3 Segregation of Trust Expenses 67
20. Removal, retirement and replacement of trustee 67
20.1 Retirement for Xxxxxxx's Default 67
20.2 Manager may remove recalcitrant Trustee 68
20.3 Manager appoints replacement 68
20.4 Voluntary retirement 68
20.5 No resignation by Xxxxxxx unless successor appointed 68
20.6 Manager to act as Trustee if no successor appointed 69
20.7 Trusts to be vested in new Trustee 69
20.8 Release of outgoing Trustee 69
20.9 New Trustee to execute deed 69
20.10 Manager and outgoing Trustee to settle amounts payable 69
20.11 Outgoing Trustee to retain lien 70
20.12 Delivery of books, documents, etc 70
20.13 Notice to Noteholders of New Trustee 70
21. Bank accounts 70
21.1 Opening of bank accounts 70
21.2 Location of bank accounts 71
21.3 Name of bank accounts 71
21.4 Purpose of bank accounts 71
21.5 Authorised signatories 71
21.6 Manager not entitled to have access 71
21.7 Bank statements and account information 71
21.8 Deposits 71
21.9 Withdrawals 72
21.10 All transactions through central accounts 72
22. Auditor 72
22.1 Auditor must be registered 72
22.2 Appointment of Auditor 72
22.3 Removal and retirement of Auditor 72
22.4 Appointment of replacement Auditor 73
22.5 Auditor may have other offices 73
22.6 Access to working papers 73
22.7 Auditor's remuneration and costs 73
22.8 Access to information 73
23. Accounts and audit 73
23.1 Keeping accounts 73
23.2 Location and inspection of books 73
23.3 Accounts to be kept in accordance with
Approved Accounting Standards 74
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23.4 Preparation of annual Accounts 74
23.5 Annual audited Accounts 74
23.6 Inspection and copies of audited Accounts 74
23.7 Tax returns 74
23.8 Audit 74
23.9 No Responsibility for Servicer 74
24. Payments 75
24.1 Cashflow allocation methodology 75
24.2 Payments to Beneficiary 75
24.3 Subordination of Beneficiary's Entitlements 75
24.4 Insufficient moneys 75
24.5 Income or capital 76
24.6 Income of Trust 76
25. Appointment of servicer 76
26. Lead manager and note managers 77
26.1 Appointment of Lead Manager and Note Managers 77
26.2 Fees 77
27. Representations and warranties 77
27.1 General representations and warranties 77
27.2 Trustee entitled to assume accuracy of
representations and warranties 78
28. Asset register 78
29. Meetings of noteholders 78
30. Xxxxxxx's and manager's powers, liability and
indemnity generally 79
30.1 Reliance on certificates 79
30.2 Trustee's reliance on Manager, Approved Seller or Servicer 79
30.3 Manager's reliance on Trustee, Approved Seller or Servicer 79
30.4 Compliance with laws 80
30.5 Reliance on experts 80
30.6 Oversights of others 80
30.7 Powers, authorities and discretions 81
30.8 Impossibility or impracticability 81
30.9 Duties and charges 81
30.10 Legal and other proceedings 81
30.11 No liability except for negligence etc. 82
30.12 Further limitations on Trustee's liability 82
30.13 Liability of Trustee limited to its right of indemnity 83
30.14 Trustee's right of indemnity - general 84
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30.15 Trustee's right of indemnity - Consumer Credit Legislation 85
30.16 Right of indemnity 86
30.17 Conflicts 86
30.18 Trustee not obliged to investigate the Manager etc 86
30.19 Independent investigation of credit 87
30.20 Information 87
30.21 Entering into Transaction Documents 87
30.22 Reliance by Trustee 87
30.23 Investigation by Trustee 87
31. Notices 88
31.1 Notices generally 88
31.2 Notices to Noteholders 88
31.3 Notices to Designated Rating Agencies 88
32. Payments generally 89
32.1 Payments to Noteholders 89
32.2 Trustee to arrange payments 89
32.3 Payment to be made on Business Day 89
32.4 Payment good discharge 89
32.5 Valid receipts 89
32.6 Taxation 89
33. Amendment 90
33.1 Amendment without consent 90
33.2 Amendment with consent 90
33.3 Copy of amendments to Noteholders 90
33.4 Copy of amendments in advance to Designated
Rating Agencies 90
34. Confidentiality 91
34.1 Confidential information 91
34.2 Exceptions 91
34.3 No merger 91
35. Miscellaneous 91
35.1 Data Base to be retained as confidential 91
35.2 Certificates by Manager 92
35.3 Waivers, remedies cumulative 92
35.4 Retention of documents 92
35.5 Governing law 92
35.6 Severability of provisions 92
35.7 Counterparts 92
35.8 Inspection of this Deed 92
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SCHEDULE 1 1
NOTE ISSUE DIRECTION 1
Annexure "A" 1
Receivables 1
SCHEDULE 2 1
NOTICE OF CREATION OF TRUST 1
SCHEDULE 3 1
VERTIFICATION CERTIFICATE 1
SCHEDULE 4 1
WAREHOUSE TRUST DIRECTION 1
Annexure "A" 1
Receivables 1
Annexure "B" 1
SUPPLEMENTARY TERMS NOTICE 1
Annexure A 1
SALE NOTICE 1
Annexure B 1
SELLER ACCESSION CERTIFICATE 1
Annexure C 1
SUPPLEMENTARY TERMS NOTICE 1
SCHEDULE 1
ANNEXURE D 1
SUPPLEMENTARY TERMS NOTICE CHECKLIST 1
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Date
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Parties
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1. XX.XXXXXX BANK LIMITED (ACN 055 513 070) of 0-00 Xxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxxx Xxxxx 0000 (Xx.Xxxxxx);
2. CRUSADE MANAGEMENT LIMITED (ACN 072 715 916) of 0-0 Xxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxx Xxxxx Xxxxx 0000 (Crusade); and
3. NATIONALMUTUAL TRUSTEES LIMITED (ACN 004 029 841) incorporated in
Victoria of Level 2, 00 Xxxxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx,
Xxxxxxxx 0000 (XXX).
Recitals
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A It is intended by this Deed to establish a series of separate
trusts, being Trusts (collectively the Crusade Euro Trusts) (or such
other name as the Trustee and the Manager may from time to time
agree).
B The Trustee has agreed to act as the trustee, the Manager as the
manager, and the Servicer as the servicer, of the Trusts.
C The Trustee may enter into Support Facilities and a Security Trust
Deed in connection with the issue of Notes by the Trustee as the
trustee of a Trust
D Notes issued by the Trustee will not be deposit or other liabilities
of Xx.Xxxxxx, its Associates, the Trustee or any Note Trustee, nor
do Xx.Xxxxxx, its Associates, or the Trustee or any Note Trustee
stand by the capital value and/or performance of the Notes, or any
Assets of any Trust, except as expressly provided in the Transaction
Documents for that Trust.
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IT IS AGREED as follows.
PART A. DEFINITIONS AND INTERPRETATION
1. Definitions and interpretation
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1.1 Definitions
The following definitions apply unless the context requires otherwise.
Accounts means accounts as defined in section 9 of the Corporations Law.
Agency Agreement in relation to a Trust means any agreement specified as
an agency agreement in the Supplementary Terms Notice for that Trust.
Approved Accounting Standards means:
(a) the accounting standards from time to time approved under the
Corporations Law;
(b) the requirements of the Corporations Law in relation to the
preparation and content of accounts; and
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(c) generally accepted accounting principles and practices in
Australia consistently applied, except where inconsistent with
the standards or requirements referred to in paragraphs (a) or
(b).
Approved Bank means:
(a) a Bank (other than Xx.Xxxxxx) which has a short-term rating of at
least A-1+, (S&P), P-1 (Xxxxx'x) and F1+ (Fitch IBCA);
(b) a Bank (including Xx.Xxxxxx) which has a short-term rating of at
least A-1 and P-1 (Xxxxx'x) and F1+ (Fitch IBCA) provided that
the total value of deposits held by the Bank in relation to a
Trust does not exceed twenty per centum (20%) of the sum of the
aggregate of the Stated Amounts; or
(c) Xx.Xxxxxx, provided that:
(i) Xx.Xxxxxx has a short-term rating at least A-1+ (S&P), P-1
(Xxxxx'x) and F1+ (Fitch IBCA); or
(ii) if Xx.Xxxxxx does not have a short-term rating of at least
A-1+ (S&P), P-1 (Xxxxx'x) and F1+ (Fitch IBCA), the Rating
Agencies have confirmed that the holding of a bank account
by the Trustee with Xx.Xxxxxx for the purpose of clause 21
of this Deed will not result in a downgrading of the
credit rating assigned or to be assigned to any Note.
Approved Seller means:
(a) other than in clauses 12.1, 12.2, 12.3, 12.5(b), 12.6, 12.7,
12.11, 12.12, 30 and 34, the Trustee in its capacity as trustee
of any Warehouse Trust; or
(b) other than in clauses 12.2, 12.5(b), 12.6, 12.7, 12.11, 12.12, 30
and 34, the Trustee in its capacity as trustee of any other Trust
that is not a Warehouse Trust; or
(c) any person which the Manager notifies the Trustee is an Approved
Seller for the purposes of this Deed and who has executed a
Seller Accession Certificate or who is expressed to be an
Approved Seller under a Supplementary Terms Notice, and who is
acceptable to the Trustee (that acceptance not to be unreasonably
withheld),
and where used in the context of a Trust means the Approved Seller in
relation to that Trust.
Assets in relation to a Trust means the assets forming that Trust from
time to time, including the following to the extent to which they relate
to the Trust:
(a) Authorised Investments;
(b) amounts owing to the Trustee by debtors (excluding any bad or
doubtful debts);
(c) income accrued from Loans, Receivables and Authorised
Investments;
(d) any prepayment of expenditure;
(e) any Loans, Mortgages, other Receivables, Receivable Securities
and other Related Securities and other rights assigned to the
Trustee in its capacity as the Trustee of that Trust on and
subject to the Transaction Documents;
(f) the interests of the Trustee in any Support Facility;
(g) the benefit of all representations, warranties and undertakings
made by any party in favour of the Trustee under the Transaction
Documents; and
(h) the amount of any compensation found to be payable by the Trustee
(or admitted by the Trustee to be payable) to restore the assets
of that Trust because of the fraud, negligence or Default of the
Trustee.
(i) other property or asset as agreed in writing between the Manager
and the Trustee.
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Associate in relation to a person means a person that is taken to be an
associate of the first mentioned person by virtue of Division 2 of Part
1.2 of the Corporations Law.
Auditor in relation to a Trust means the auditor of that Trust appointed
from time to time under clause 23.
Australian Jurisdiction means a State or Territory of the Commonwealth
of Australia and the Commonwealth of Australia.
Authorisation includes:
(a) any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence,
approval, authority or exemption from, by or with a Government
Agency; or
(b) in relation to anything which will be fully or partly prohibited
or restricted by law if a Government Agency intervenes or acts in
any way within a specified period after lodgement, filing,
registration or notification, the expiry of that period without
intervention or action.
Authorised Investments in respect of a Trust means any investments which
at their date of acquisition are of the following types:
(a) Loans secured by Mortgages, those Mortgages, other Related
Securities and Receivable Rights;
(b) cash on hand or at an Approved Bank;
(c) other Receivables, Receivable Securities and Receivable Rights
approved by the Manager and acceptable to the Trustee (that
acceptance not to be unreasonably withheld);
(d) bonds, debentures, stock or treasury bills of any government of
an Australian Jurisdiction;
(e) debentures or stock of any public statutory body constituted
under the law of any Australian Jurisdiction where the repayment
of the principal secured and the interest payable thereon is
guaranteed by the Australian Jurisdiction;
(f) notes or other securities of any government of an Australian
Jurisdiction;
(g) deposits with, or the acquisition of certificates of deposit
(whether negotiable, convertible or otherwise), issued by, an
Approved Bank;
(h) bills of exchange accepted or endorsed by an Approved Bank which
at the time of acquisition have a remaining term to maturity of
not more than 200 days;
(i) securities which are "mortgage-backed securities", within the
meaning of both section 84FA(l) of the Stamp Duties Act, 1920 of
New South Wales and the Trustee Act, 1958 of Victoria; and
(j) any other assets of a class of assets that are both:
(1) prescribed for the purposes of sub-paragraph (iv) of the
definition of a "pool of mortgages" in section 84FA(1) of
the Stamp Duties Act, 1920 of New South Wales, or are
otherwise included within that definition of "pool of
mortgages"; and
(2) declared by order of the Governor in Council of Victoria
and published in the Victorian Government Gazette to be
assets for purposes of Subdivision (17A) of the Stamps
Act, 1958 of Victoria or are otherwise included within
sub-paragraph (b)(ii) of the definition of "pool of
mortgages" in section 137NA of that Act.
(In paragraphs (b)-(i) inclusive of this definition, expressions shall
be construed and, if necessary read down, so that the Notes in relation
to any Trust constitute "mortgage-backed securities" for the purposes of
both the Stamp Duties Act, 1920 of New South Wales and the Stamps Act,
1958 of Victoria.)
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Authorised Signatory in relation to any corporation means any person
from time to time certified in writing by two directors of the
corporation (or, in the case of the Trustee, by any divisional manager)
to be an authorised signatory of the corporation, whose signature
appears on such certificate and which signature is certified thereon by
such directors (or such divisional manager) to be that person's
signature.
Authorised Trustee Investment means an investment in which a trustee is
for the time being authorised to invest trust funds under the laws of an
Australian Jurisdiction.
Bank means:
(a) a corporation authorised under the Banking Act, 1959 to carry on
general banking business in Australia or a corporation formed or
incorporated under an Act of the Parliament of an Australian
Jurisdiction to carry on the general business of banking; or
(b) where any Transaction Document requires money to be deposited by
the Trustee outside Australia, a corporation authorised by the
banking legislation of the relevant jurisdiction to carry on the
general business of banking in that jurisdiction.
Beneficiary means, in relation to a Trust, the person nominated in the
Notice of Creation of Trust for that Trust as the beneficiary of that
Trust (including, where relevant, the holder of any unit representing an
interest as beneficiary of the Trust).
Borrowing means, in relation to a Trust, any Financial Indebtedness of
the Trustee in its capacity as trustee of the Trust but does not include
any Financial Indebtedness of the Trustee in any other capacity or in
respect of any other Trust. Borrow has an equivalent meaning.
Business Day means any day, other than a Saturday, Sunday or public
holiday in New South Wales, on which Banks are open for business in
Sydney (and, where so specified in this Deed, London).
Calculation Agent means the person appointed as calculation agent under
the Agency Agreement from time to time.
Cedel Bank means Cedel Bank, societe anonyme.
Certificate of Title means, in relation to a Mortgaged Property, the
certificate of title (or, if one is not issued, the original
registration confirmation statement or similar document) (if any) to
that Mortgaged Property issued under any relevant legislation (and, in
the case of Land, issued under any Real Property Legislation).
Class in relation to Notes issued, or to be issued, in respect of a
Trust means Notes having as amongst themselves the same rights or
restrictions with regard to the payment of interest, the repayment of
principal, voting or otherwise.
Closing Date means, in respect of a Trust, the date specified as the
Closing Date in the Supplementary Terms Notice or Sale Notice for that
Trust.
Collection Account means the account established and maintained under
clause 21 or, in relation to a Trust, any other account specified as the
Collection Account in the Supplementary Terms Notice for that Trust.
Collections in respect of a Trust has the meaning given in the
Supplementary Terms Notice for that Trust.
Competitor means, at any time, any Bank or financial institution that
carries on any business in any of the following areas:
(a) deposit-taking services;
(b) the provision of housing loans;
(c) treasury services; and
(d) securitisation services,
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which area is the same as, or substantially similar to or in competition
with, any business conducted by Xx.Xxxxxx or any of its Related Bodies
Corporate at that time but does not include a company or any of its
Related Bodies Corporate with which the Trustee or any of its Related
Bodies Corporate is at the date of this Deed negotiating a merger.
Conditions in relation to any Notes issued in respect of a Trust has the
same meaning given in the Supplementary Terms Notice applicable to those
Notes for that Trust.
Consumer Credit Legislation means any legislation relating to consumer
credit including:
(a) the Credit Act of any Australian Jurisdiction;
(b) the Consumer Credit Code (NSW) 1996; and
(c) any other equivalent legislation of any Australian Jurisdiction.
Coupon in relation to a Note issued in respect of a Trust has the
meaning specified in the Supplementary Terms Notice applicable to that
Note for that Trust.
Couponholder in relation to a Coupon issued in respect of a Trust at any
time means the person who is the bearer of that Coupon at that time for
that Trust.
Creditor in relation to a Trust means a creditor of the Trustee
(including the Noteholders, Couponholders, Security Trustee, the
Approved Seller, the Trustee in its capacity as trustee of another
Trust, the Servicer, the Support Facility Providers, the Note Managers
and the Manager in relation to the Trust) in its capacity as trustee of
the Trust.
Custodian means Xx.Xxxxxx Custodial Pty Limited in its capacity as the
custodian of the Trusts or any substitute person appointed in its place
under the terms of the Custodian Agreement.
Custodian Agreement means an agreement in respect of a Trust so entitled
between the Trustee, the Manager and the Custodian.
Cut-Off Date means, in relation to a Portfolio of Receivables, the date
specified as the Cut-off Date for the Receivables relating to that
Portfolio of Receivables in the relevant Note Issue Direction or
Supplementary Terms Notice.
Data Base in relation to the Trustee, the Manager, the Servicer and the
Custodian means all information, data and records collected, held or
stored in any way or in any medium (including computer retention and
storage) by or for the Trustee, the Manager, the Servicer and the
Custodian respectively relating to and including any Loan, Mortgage,
Receivable, Receivable Security or Related Securities which are given or
transferred to the Trustee under or as contemplated by this Deed.
Default means a failure by the Trustee to comply with:
(i) an obligation which is expressly imposed on it by the terms of a
Transaction Document; or
(ii) a written direction given by the Manager in accordance with a
Transaction Document (and in terms which are consistent with the
requirements of the Transaction Documents) in circumstances where
the Transaction Documents require or contemplate that the Trustee
will comply with that direction,
in each case within any period of time specified in, or contemplated by
the relevant Transaction Document for such compliance. However, it will
not be the Default of the Trustee if the Trustee does not comply with an
obligation or direction where the Note Trustee or the Security Trustee
directs the Trustee not to comply with that obligation or direction.
Designated Rating in relation to a Support Facility provided to, or the
benefit of which is held by, the Trustee in its capacity as trustee of a
Rated Trust, means a credit rating of the party providing the Support
Facility as specified or approved by each Designated Rating Agency for
that Rated Trust.
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Designated Rating Agency in relation to a Trust, or Notes issued or to
be issued by the Trustee of a Trust, means each Rating Agency which has
been requested by the Manager to rate such Notes in relation to that
Trust.
Determination Date in respect of each Trust has the meaning given in the
Supplementary Terms Notice for that Trust.
Distributable Income has the meaning given in clause 24.6.
Eligible Receivable means a Receivable or Receivable Security (as the
case may be) which meets the Eligibility Criteria for that Receivable.
Eligibility Criteria in respect of a Receivable or a Receivable Security
and a Trust has the meaning given in the Supplementary Terms Notice for
that Trust.
Enhancement means a Mortgage Insurance Policy, a Stand-by Arrangement, a
Guaranteed Investment Contract and any other policy of insurance,
security, support, rights or benefits in support of or substitution for
a Receivable or Receivable Security or an Authorised Investment or the
income or benefit arising thereon.
Euroclear means Xxxxxx Guaranty Trust Company of New York (Brussels
office) as operator of the Euroclear System.
Expenses in relation to a Trust means all costs, charges and expenses
incurred by the Trustee or the Manager in the administration and
operation of the Trust under the Transaction Documents for that Trust
including the following to the extent to which they relate to the Trust:
(a) any amounts payable or incurred by the Trustee or the Manager in
the acquisition, maintenance, review, administration or disposal
of an Asset;
(b) any amounts payable or incurred by the Trustee or the Manager
under any Support Facility or in reviewing documentation for any
proposed Support Facility;
(c) any amounts payable under or incurred by the Trustee or the
Manager under any Security Trust Deed or Custodian Agreement;
(d) any fees and other amounts payable to the Manager under this
Deed;
(e) any fees and other amounts payable to the Trustee under this
Deed;
(f) any fees and other amounts payable to a Servicer under this Deed
or a Servicing Agreement;
(g) any fees and other amounts payable to a Custodian under this Deed
or a Custodian Agreement;
(h) any fees and expenses payable to the Auditor;
(i) any fees and expenses payable by the Trustee (including in its
personal capacity for which it has the right of indemnity under
this Deed) to the Designated Rating Agency as agreed between the
Trustee and the Manager from time to time;
(j) any costs of postage and printing of all cheques, accounts,
statements, notices, and other documents required to be posted to
the Beneficiaries or Noteholders of the Trust under this Deed,
and any costs of convening and holding meetings of Noteholders
and of implementing any resolutions;
(k) the cost and expenses of registering caveats or Transfers of any
Receivable Security or assignment of Receivables;
(l) any costs of any valuation of the Trust or of any Asset of the
Trust;
(m) any expenses incurred in connection with Trust Accounts of the
Trustee in relation to the Trust and bank fees (including but not
limited to account keeping fees) and other bank or government
charges (including but not limited to bank account debits, tax
and charges in respect of financial institutions duty) incurred
in connection with the keeping of, or
Page (6)
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the transaction of business through, the internal accounts and
bank accounts of the Trustee and their management;
(n) any fees, charges and amounts which are paid or payable to any
person appointed or engaged by the Trustee or the Manager
pursuant to this Deed to the extent that the fees, charges and
amounts would be payable or reimbursable to the Trustee or the
Manager under any other provision of this definition or under any
other provision of this Deed if the services performed by the
person so appointed or engaged had been carried out directly by
the Trustee or the Manager and to the extent that those fees,
charges and amounts are reasonable in amount and properly
incurred;
(o) the amount of any indemnity from the Trust claimed by the Trustee
or the Manager under clause 30.10;
(p) all legal costs and disbursements (calculated in the same manner
under clause 30.10) incurred by the Manager and the Trustee in
relation to settling and executing any Transaction Document and
any subsequent consent, agreement, approval, waiver or amendment
thereto or in relation to any matter of concern to the Manager or
the Trustee in relation to a Transaction Document or the relevant
Trust;
(q) any legal costs and disbursements (on a full indemnity basis)
incurred by the Trustee in connection with court proceedings
brought against it under this Deed (except where the Trustee is
found to have acted negligently, fraudulently, or in Default);
(r) any costs incurred by the Trustee in, or in connection with, the
retirement or removal of the Servicer or the Custodian and the
appointment of any substitute to the extent those costs are
properly incurred;
(s) any amount specified as an Expense for the purposes of this Deed
in the Supplementary Terms Notice for a Trust;
(t) subject to clauses 16 and 20, any costs incurred by the Manager
or the Trustee in, or in connection with, the retirement or
removal of the Trustee or the Manager respectively under this
Deed and the appointment of any person in substitution to the
extent that those costs are properly and reasonably incurred;
(u) any fees and expenses payable to any Stock Exchange, Euroclear or
Cedel Bank from time to time by the Trustee;
(v) any fees, charges and expenses incurred by the Trustee under
clause 14.7, 17.2(d) or 26.2 of this Deed; and
(w) any other costs, charges, expenses, fees, liabilities, Taxes
(including stamp duty payable on cheques), imposts and other
outgoings properly incurred by the Trustee or the Manager in
exercising their respective powers, duties and obligations under
this Deed or any other Transaction Document (other than the
Notes),
provided that:
(v) general overhead costs and expenses of the Trustee and the
Manager (including rents and any amounts payable by the Trustee
or the Manager (as applicable) to its employees in connection
with their employment) incurred directly or indirectly in
connection with the business of the Trustee or the Manager (as
applicable) or in the exercise of its rights, powers and
discretions or the performance of its duties and obligations in
relation to the Trust; and
(w) any fees payable by the Manager not described above,
shall not constitute Expenses.
Expiry Time means, in relation to a Sale Notice, the time specified as
the expiry time in that Sale Notice.
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Extraordinary Resolution in relation to the Noteholders of a Trust or
any Class, subject to the provisions of any Security Trust Deed in
respect of the relevant Trust has the meaning given in the Note Trust
Deed.
Fair Market Value means:
(i) in relation to a Purchased Receivable and the related
Receivable Rights, the fair market value of that Purchased
Receivable and those Receivable Rights agreed between the
Trustee (acting on appropriate expert advice) and the
Approved Seller, or in the absence of such agreement as
determined by the Auditor; or
(ii) in relation to any other Receivable and the related
Receivable Rights, the fair market value of that
Receivable and those Receivable Rights determined by the
Manager (acting on appropriate expert advice, including
where relevant the Auditor),
in all cases as reflecting the status of the Receivable as a performing
or non-performing Receivable (as determined by the relevant Servicer)
and any benefit in respect of that Receivable which the intended
purchaser will have under any relevant Support Facility. The Trustee
shall be entitled to assume that a purchase price offered to it for a
Purchased Receivable and the related Receivable Rights which is equal to
or exceeds the relevant Unpaid Balance is equal to or exceeds the Fair
Market Value of that Purchased Receivable and the related Receivable
Rights.
Final Maturity Date in relation to a Note means the date specified in
the corresponding Supplementary Terms to be the last, or where there is
only one specified, the Principal Amortisation Date of the Note.
Financial Indebtedness means any indebtedness, present or future, actual
or contingent in respect of moneys borrowed or raised or any financial
accommodation whatever. It includes indebtedness under or in respect of
a negotiable or other financial instrument (including any Note),
guarantee, interest, gold or currency exchange, hedge or arrangement of
any kind, redeemable share, share the subject of a guarantee,
discounting arrangement, finance or capital lease, hire purchase,
deferred purchase price (for more than 90 days) of an asset or service
or an obligation to deliver goods or other property or provide services
paid for in advance by a financier or in relation to another financing
transaction.
Financial Year in relation to each Trust means:
(a) each consecutive period of 12 months from 1 July in each year
until 30 June in the following year; or
(b) any other consecutive period of 12 months as may at any time be
substituted for the consecutive period referred to in paragraph
(a) of this definition by determination of the Manager with the
approval of the Trustee,
and includes,
(c) any consecutive period greater or less than 12 months that may
arise as a result of the adoption of any substituted period under
paragraph (b) of this definition;
(d) the period commencing on the date of its creation under this Deed
to the next succeeding 30 June, or, if a substituted period is in
force under this definition in respect of the Trust at its
commencement, then to the immediately succeeding date of
termination of that substituted period; and
(e) the period to the Termination Date of the Trust from the
immediately preceding 1 July or, if a substituted period is in
force under this definition at the Termination Date then from the
immediately preceding date of commencement of that substituted
period.
Fitch IBCA means Fitch IBCA (Australia) Pty Limited (ACN 081 339 184).
Page (8)
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Future Agreement means the agreement formed between an Approved Seller
and the Trustee if the Trustee accepts a Sale Notice given under clause
12.
Government Agency means:
(a) any body politic or government in any jurisdiction, whether
federal, state, territorial or local;
(b) any minister, department, office, commission, instrumentality,
agency, board, authority or organisation of any government or in
which any government is interested;
(c) any corporation owned or controlled by any government.
Guaranteed Investment Contract means a guaranteed investment contract
(expressed in dollars) of a type approved by the Chief Commissioner of
Stamp Duties in New South Wales under paragraph (d) of Regulation 4 of
the Stamp Duties (Mortgage-Backed Securities) Regulation, 1986 of New
South Wales.
Hedge Agreement means, in relation to a Trust, any futures contract,
option agreement, hedge, swap, cap, forward rate agreement or other
arrangement in relation to interest rates and/or currency exchanges made
by the Trustee (whether alone or with the Manager or any other person)
with respect to the Receivables in, or Notes issued in relation to, that
Trust in accordance with this deed, as specified in the relevant
Supplementary Terms Notice.
Income Distribution Date in relation to an Income Distribution Period
for a Trust means the date specified in the Supplementary Terms, falling
on the last day of the first calendar month after the end of that Income
Distribution Period (or such other date specified by the Manager in
writing to the Trustee prior to the first issue of Notes by the Trustee
in its capacity as trustee of the Trust).
Income Distribution Period in relation to a Trust means each Financial
Year of the Trust or any series of periods during the Financial Year of
a Trust specified in the Supplementary Terms, provided that the first of
such periods in a Financial Year commences on (and includes) the first
day of the Financial Year and the last of such periods in a Financial
Year ends on (and includes) the last day of the Financial Year.
Information Memorandum means, in relation to the issue of any Notes, any
publicity documents publicly circulated to prospective investors in
relation to that issue entitled "Information Memorandum", "Offering
Circular" or a similar name, but does not include any term sheet or
general correspondence in relation to the placement of any Notes.
Initial Invested Amount in relation to a Note has the meaning given in
the relevant Supplementary Terms Notice for that Note.
Insolvency Event in relation to the Trustee (in its personal capacity or
as trustee of a Trust), the Manager, the Custodian, an Approved Seller
or the Servicer (each a relevant corporation) means the happening of any
of the following events:
(a) (winding up or ceases to carry on business) except for the
purpose of a solvent reconstruction or amalgamation:
(i) an application or an order is made, proceedings are
commenced, a resolution is passed or proposed in a notice
of meeting or an application to a court or other steps
(other than frivolous or vexatious applications,
proceedings, notices and steps) are taken for:
(A) the winding up, dissolution or administration of
the relevant corporation; or
(B) the relevant corporation entering into an
arrangement, compromise or composition with or
assignment for the benefit of its creditors or a
class of them,
and is not dismissed, ceased or withdrawn within 15
Business Days; or
Page (9)
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(ii) the relevant corporation ceases, suspends or threatens to
cease or suspend the conduct of all or substantially all
of its business or disposes of or threatens to dispose of
substantially all of its assets; or
(b) (unable to pay debts) the relevant corporation is, or under
applicable legislation is taken to be, unable to pay its debts
(other than as the result of a failure to pay a debt or claim the
subject of a good faith dispute) or stops or suspends or
threatens to stop or suspend payment of all or a class of its
debts (except, in the case of the Trustee, where this occurs only
in relation to another trust of which it is the trustee);
(c) (receivership): a receiver, receiver and manager or administrator
is appointed (by the relevant corporation or by any other person)
to all or substantially all of the assets and undertaking of the
relevant corporation or any part thereof (except, in the case of
the Trustee where this occurs in relation to another trust of
which it is the trustee);
(d) (analogous events) anything analogous to an event referred to in
paragraphs (a) to (c) (inclusive) or having substantially similar
effect occurs with respect to the relevant corporation.
Insurance Policy means:
(a) in relation to a Loan, any fire and/or risks insurance policy or
other general insurance policy in force in respect of that Loan
or the related Mortgaged Property; or
(b) in relation to any other Receivable, any insurance policy taken
out with respect to the assets from which that Receivable is
derived.
Insurance Proceeds means any payments received by the designated
beneficiary of an Insurance Policy.
Interest Entitlement in relation to a Note and an Interest Payment Date
means the amount of interest accrued in respect of that Note and due for
payment on that Interest Payment Date, determined in accordance with the
corresponding Supplementary Terms.
Interest Payment Date in relation to a Note means each date for the
payment of interest under the Note as specified in the corresponding
Supplementary Terms Notice.
Invested Amount in relation to a Note has the meaning given in the
relevant Supplementary Terms Notice for that Note.
Investment Direction means:
(a) a Note Issue Direction; or
(b) a Warehouse Trust Direction.
Land means:
(a) any estate or interest whether at law or in equity in freehold or
leasehold land, including all improvements on such land; and
(b) any parcel and any lot, common property and land comprising a
parcel within the meaning of the Strata Titles Act, 1973 (New
South Wales) or the Community Land Development Act, 1989 (New
South Wales) or any equivalent legislation in any other
Australian Jurisdiction.
Lead Manager means, in relation to any issue of Notes, any person who is
appointed as lead manager, co-lead manager, arranger, co-arranger or any
similar participant in relation to that issue.
Liquidity Facility Agreement in relation to a Trust means any agreement
specified as a Liquidity Facility Agreement in the Supplementary Terms
Notice for that Trust.
Liquidity Facility Provider means in relation to a Liquidity Facility
Agreement the bank or financial institution which provides that facility
or if it is a syndicated facility the bank or financial institution
which is the agent under that facility.
Page (10)
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Loan means a loan or other form of financial accommodation purchased or
made by the Trustee but does not include a Note.
Manager means Xxxxxxx, or, in the event of the retirement or removal of
Xxxxxxx as Manager, the substitute person appointed in its place under
this Deed, and includes the Trustee when acting as the Manager in
accordance with this Deed.
Manager's Default means:
(a) in relation to a Warehouse Trust, the happening of any events
specified in clauses 16.1(a) and 16.1(b) (but in the case of an
event under clause 16.1(a), only to the extent that the relevant
Warehouse Facility Provider has not waived or excused that
failure to pay); and
(b) in relation to any other Trust, means the happening of any of the
events specified in clause 16.1.
Manager's Fee in relation to a Trust means the Manager's fee in relation
to that Trust specified in clause 15.
Manager's Report means, in relation to a Trust, the report to be
provided by the Manager to the Trustee and each Rating Agency under
clause 14.16 which is in the format and includes the information agreed
by the Manager and the Trustee or set out in the relevant Supplementary
Terms Notice.
Material Adverse Effect means an event which will materially and
adversely affect the amount of any payment to be made to any Noteholder
or will materially and adversely affect the timing of such payment.
Moody's means Xxxxx'x Investor Service Inc or Xxxxx'x Investor Service
Pty. Limited and their respective successors and assigns.
Mortgage means a registered (or pending registration, registrable)
mortgage over Land, situated in any Australian Jurisdiction, granted to
or originated by the Trustee under this Deed or transferred from an
Approved Seller to the Trustee and securing the repayment of the
principal amount of a Loan and all other moneys payable under the Loan.
Mortgaged Property means:
(a) in relation to a Mortgage, the Land the subject of that Mortgage;
and
(b) in relation to any other Receivable Security, the property
subject to that Receivable Security.
Mortgage Insurance Policy means a policy of insurance under which a
Mortgage Insurer insures the Trustee in its capacity as trustee of a
Trust against loss under a Receivable which is an Asset of that Trust.
Mortgage Insurance Proceeds means any amounts received by the Trustee
(or a Servicer on its behalf) under any Mortgage Insurance Policy.
Mortgage Insurer means any mortgage insurer specified, in relation to a
Trust, as a Mortgage Insurer in the Supplementary Terms Notice for that
Trust.
Mortgagor means the security provider under a Receivable Security.
Note means a debt security of the nature referred to in clause 4.2
issued by the Trustee in its capacity as trustee of a Trust.
Note Cut-Off Date means the date specified in the Note Issue Direction
for a proposed issue of Notes.
Noteholders means, in relation to a Trust, the several persons who are
for the time being holders of the Notes with respect to that Trust
(being, if and to the extent that those Notes are represented by
definitive Notes, the bearers of those Notes and, if and to the extent
those Notes are represented by a global Note or Notes, the persons for
the time being shown in the records of Euroclear and Cedel Bank (other
than Cedel Bank if Cedel Bank is an account holder of Euroclear and
other than Euroclear if Euroclear is an account holder of Cedel Bank) as
being holders of those Notes) in which regard any certificate or other
document issued by Cedel Bank or Euroclear as to the Invested Amount of
Page (11)
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those Notes standing to the account of any person shall be conclusive
and binding on those persons for all purposes (but not for the purposes
of payments in respect of those Notes, the right to which shall be
vested, as against the Trustee and the Note Trustee in respect of the
relevant Trust, solely in the bearer of those global Notes in accordance
with and subject to their respective terms and the provisions of this
Deed)). The words holder and holders shall (where appropriate) be
construed accordingly.
Note Issue Date in relation to a Trust and Notes means the date on which
the Notes are issued by the Trustee in its capacity as trustee of that
Trust and, in the case of a proposed issue of Notes, means the date for
that proposed issue referred to in the corresponding Note Issue
Direction.
Note Issue Direction means the direction given by the Manager to the
Trustee substantially in the form of Schedule 1 or in such other form as
may from time to time be agreed between the Trustee and the Manager in
respect of a proposed issue of Notes in accordance with clause 6.1.
Note Manager means, in relation to a Trust, any person for the time
being appointed as note manager under the Subscription Agreement for
that Trust including the Lead Manager.
Note Trust Deed in relation to a Trust means any deed specified as such
in the Supplementary Terms Notice for that Trust.
Note Trustee in relation to a Trust means any person specified as such
in the Supplementary Terms Notice for that Trust.
Notice of Creation of a Trust means a notice in the form of Schedule 2
or in such other form as may from time to time be agreed between the
Trustee and the Manager.
Obligor means, in relation to a Receivable, the person who is obliged to
make payments with respect to that Receivable, whether as a principal or
secondary obligation (and in the case of a Loan means the person who is
the account debtor under that Loan), and includes where the context
requires, any other person obligated to make payments with respect to
that Receivable (including any guarantor).
Other Secured Liability means a loan, financial obligation or other
liability that is at any time secured by a Purchased Receivable
Security, other than a Purchased Receivable and any amounts payable
under any relevant Receivable Agreement or otherwise payable in
connection with a Purchased Receivable.
Paying Agent means, in relation to a Trust, any person for the time
being appointed as paying agent under the Agency Agreement for that
Trust and includes the Principal Paying Agent.
Payment Date means an Interest Payment Date or a Principal Amortisation
Date.
Portfolio of Receivables means the Receivables specified by the Manager
in the relevant Investment Direction as a class or type of Receivable
that has substantially the same terms and conditions.
Principal Amortisation Date in relation to a Note means each date for
the repayment of part or all of the outstanding principal in relation to
the Note as specified in the corresponding Supplementary Terms.
Principal Entitlement in relation to a Note and a Principal Amortisation
Date means the amount of principal in respect of the Note due to be
repaid on that Principal Amortisation Date, determined in accordance
with the corresponding Supplementary Terms.
Principal Paying Agent means, in relation to a Trust, any person
appointed as such under the Agency Agreement for that Trust.
Privacy Act means the Privacy Act 1988 (Commonwealth) or any equivalent
law of any Australian Jurisdiction.
Page (12)
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Purchase Price means, in relation to Receivables and related Receivable
Rights offered for sale under a Sale Notice, the Purchase Price
specified in the relevant Sale Notice as adjusted (where relevant) in
accordance with that Sale Notice.
Purchased Receivable means a Receivable referred to in a Sale Notice
which is accepted by the Trustee unless the Trustee has ceased to have
an interest in that Receivable.
Purchased Receivable Security means a Receivable Security referred to in
a Sale Notice which is accepted by the Trustee, unless the Trustee has
ceased to have an interest in that Receivable Security.
Rated Trust means a Trust in respect of which a Designated Rating Agency
has rated Notes issued by it.
Rating Agency means Xxxxx'x, S&P and Fitch IBCA or any other recognised
rating agency designated from time to time in writing by the Manager to
the Trustee.
Real Property Legislation means any law relating to the registration,
priority or effectiveness of any mortgage over land in any Australian
Jurisdiction.
Receivable means a right or interest under or in relation to any asset
which generates revenue over time, including:
(a) a residential or commercial loan (including a Loan);
(b) an operating or finance lease (including a lease of real
property, plant and equipment and a hire purchase agreement);
(c) a trade receivable;
(d) an automobile receivable;
(e) a credit or charge card receivable; and
(f) any other receivable or other form of monetary obligation.
Receivable Agreement means in relation to a Receivable, any agreement or
arrangement entered into between:
(a) if the Receivable is originated by the Trustee under this Deed,
the Trustee; or
(b) if the Receivable is acquired by the Trustee from an Approved
Seller under this Deed, the Approved Seller,
and the Obligor under which the Obligor incurs obligations to the
Trustee or Approved Seller (as the case may be) with respect to the
Receivable, and in the case of an agreement entered into by an Approved
Seller in a form provided to the Trustee by the Approved Seller before
the Sale Notice with respect to that Receivable is given.
Receivable Rights means, in relation to Receivables to be acquired by
the Trustee from an Approved Seller, all of the Approved Seller's or the
Trustee's (as the context requires) right, title, benefit and interest
(present and future) in, to, under or derived from:
(a) the Receivables and Receivable Securities specified in the
relevant Sale Notice; and
(b) such of the following as relate to those Receivables and
Receivable Securities:
(i) the Related Securities;
(ii) the Relevant Documents;
(iii) the Collections; and
(iv) all moneys, present, future, actual or contingent, owing
at any time by an Obligor (whether alone or with another
person) or any other person (other than the Approved
Seller) under or in connection with a Related Security,
including all principal, interest, reimbursable costs and
expenses and any other amounts
Page (13)
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incurred by or payable to the Approved Seller,
irrespective of whether such amounts relate to advances
made or other financial accommodation provided by the
Approved Seller to any Obligor before or after the Closing
Date,
but does not include:
(c) any Other Secured Liability; and
(d) in relation to the Receivables and Receivable Securities specified
in a Sale Notice:
(i) any interest or finance charges accrued up to but
excluding the Closing Date (or any other date specified
for that purpose in the Sale Notice) which are unpaid as
at close of business on that date; and
(ii) any interest in Collections received or applied by the
Approved Seller before the Cut-Off Date (or any other date
specified for that purpose in the Sale Notice),
if so specified in the Sale Notice.
Receivable Security means:
(a) in relation to a Loan, a Mortgage or any guarantee relating to
that Loan; or
(b) in relation to any other Receivable, any guarantee, indemnity or
Security Interest granted in respect of, or in connection with,
that Receivable.
Redraw Facility Agreement means in relation to a Trust any facility
specified as a Redraw Facility Agreement in the Supplementary Terms
Notice for that Trust.
Redraw Facility Provider means, in relation to a Trust, a person who has
entered into or agreed to make available a Redraw Facility Agreement to
the Trustee in relation to that Trust.
Registered Company Auditor has the same meaning as in the Corporations
Law.
Related Body Corporate has the same meaning as in section 9 of the
Corporations Law.
Related Receivable means, in relation to a Receivable Security, the
Receivable secured by that Receivable Security.
Related Security in relation to a Receivable means:
(a) any Relevant Document for that Receivable;
(b) any Insurance Policy or Insurance Proceeds with respect to the
Receivable; and
(c) any Mortgage Insurance Policy or Mortgage Insurance Proceeds with
respect to the Receivable; or
(d) any other agreement specified as a Related Security for the
Receivable in the relevant Supplementary Terms Notice.
Relevant Document means, with respect to a Receivable:
(a) the Receivable Agreement relating to that Receivable;
(b) the mortgage document in relation to each Receivable Security for
that Receivable;
(c) the Certificate of Title for the Mortgaged Property secured by
each Receivable Security;
(d) any amendment or replacement of such documents and any other
document which is entered into by or executed in favour of the
Approved Seller or Trustee (as the case may be) in connection
with that Receivable after the Cut-Off Date; or
(e) any other document specified as a Relevant Document in the
relevant Supplementary Terms Notice,
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but does not include any document or agreement which relates only to an
Other Secured Liability.
Repurchase Date has the meaning, in relation to a Purchased Receivable
and the related Receivable Rights, given in clause 12.6(d)(ii)(D) with
respect to the Purchased Receivable and related Receivable Rights.
Repurchase Price means, in relation to a Purchased Receivable and the
related Receivable Rights, the price determined under clause 12.9(c)(i).
S&P means Standard & Poor's (Australia) Pty. Limited, trading as
"Standard & Poor's Ratings Group" and its successors and assigns.
Sale Notice means:
(a) in relation to a purchase of Receivables by a Trust other than
from another Trust, a notice in the form of annexure A given
under clause 12; or
(b) in relation to a purchase of Receivables by a Trust from another
Trust, a notice in the form agreed by the Trustee and the Manager
in relation to that purchase.
Sale Termination Date means in relation to the obligations of a party
relating to a Sale Notice, the earlier of:
(a) the date 3 months after the date on which the last relevant
Purchased Receivable is discharged; and
(b) the date the Trustee (whether in its capacity as trustee of the
Trust to which the Purchased Receivables related or as trustee of
another Trust, including a Warehouse Trust) ceases to have any
interest in the relevant Purchased Receivables and related
Receivable Rights.
Security Interest includes any mortgage, pledge, lien, charge,
encumbrance, hypothecation, title retention, preferential right or trust
arrangement.
Security Trust Deed in relation to a Trust means a deed between the
Trustee in its capacity as trustee of that Trust, the Manager, the Note
Trustee and a person acting as security trustee under which, amongst
other things, the Trustee in its capacity as trustee of the Trust
charges all or some of the Assets of the Trust to secure the payment of
moneys owing to the Noteholders and other Creditors of the Trust in
favour of such security trustee as trustee for such Noteholders and
other Creditors.
Security Trustee means a security trustee under a Security Trust Deed
and any successor trustee appointed under that Security Trust Deed.
Seller Accession Certificate means a certificate in the form of annexure
B.
Servicer means Xx.Xxxxxx in its capacity as the servicer of the Trusts,
or in the event of the retirement or removal of Xx.Xxxxxx in its
capacity as Servicer, a substitute person appointed in its place to
service the Assets of a Trust and includes the Trustee when acting in
that capacity.
Servicer Transfer Event in relation to a Trust has the meaning (if any)
given to that term in the Servicing Agreement for that Trust.
Servicing Agreement means, in relation to a Trust, any agreement under
which a Servicer is appointed to service any of the Assets of that
Trust.
Stand-by Arrangement means in respect of each Trust an agreement made by
the Manager on behalf of the Trust with a person where the person agrees
to fund the payment to Noteholders by the Trustee in its capacity as
trustee of the Trust of amounts due to the Noteholders to an agreed
limit or extent to cover a shortfall of funds available in the Trust due
to, amongst other things, default by an Obligor or Obligors under one or
more Receivables.
Stated Amount in relation to a Note has the meaning given in the
relevant Supplementary Terms Notice for that Note.
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Stock Exchange means, in relation to a Note, any stock exchange on which
the Note is listed from time to time, including the London Stock
Exchange Limited or the Luxemburg Stock Exchange.
Subscription Agreement means, in relation to any Notes, any subscription
agreement, dealer agreement, underwriting agreement or other
distribution agreement (however called) under which dealers, managers or
other persons agree to subscribe for, underwrite or otherwise arrange
the distribution of those Notes.
Subscription Amount in relation to any proposed Notes means the total
amount payable by the proposed Noteholders as specified in the
corresponding Note Issue Direction.
Supplementary Terms in relation to a Note means the supplementary terms
relating to the Note specified in the Supplementary Terms Notice for the
Trust to which the Note relates.
Supplementary Terms Notice means:
(a) in relation to a Warehouse Trust:
(i) to the extent that no notice referred to in paragraph (b)
has been given, a Warehouse Trust Direction which
satisfies the requirements of Clause 11.2; and
(ii) to the extent so provided in the relevant Warehouse
Facility Agreement, that Warehouse Facility Agreement; or
(b) in each other case, a written notice from the Manager to the
Trustee materially in the form of annexure C satisfying the
requirements of clause 6.3.
Support Facility in relation to a Trust means:
(a) any Enhancement;
(b) any Liquidity Facility Agreement;
(c) any Hedge Agreement;
(d) any Redraw Facility Agreement;
(e) any Warehouse Facility Agreement;
(f) any other security, support, rights or benefits in support of or
substitution for an Authorised Investment or the income or
benefit arising thereon on an Authorised Investment, for the
financial management, credit enhancement or liquidity support of
the assets and liabilities of the Trust; or
(g) any other facility specified as a Support Facility in the
relevant Supplementary Terms Notice,
entered into by the Trustee for that Trust.
Support Facility Provider means, in relation to a Trust, any person who
has entered into or agreed to make available a Support Facility (other
than a Mortgage Insurance Policy) to the Trustee in relation to that
Trust.
Taxation Act means the Income Tax Assessment Act, 1936 (Commonwealth)
and the Income Tax Assessment Act 1997 (Commonwealth).
Tax and Taxes means any tax, levy, impost, deduction, charge, rate,
stamp duty, financial institutions duty, bank accounts debit tax or any
other tax, withholding or remittance of any nature which is now or later
payable or required to be remitted to, or imposed or levied, collected
or assessed by a Government Agency, together with any interest, penalty,
charge, fee or other amount imposed or made in respect thereof.
Termination Date in relation to a Trust means the earliest of the
following dates in relation to that Trust:
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(a) the eightieth anniversary of the date of creation of that Trust
under this Deed;
(b) the date upon which the Trust terminates by operation of statute
or by the application of general principles of law;
(c) if Notes have been issued by the Trustee in its capacity as
trustee of the Trust the earliest of:
(i) the Business Day (in both Sydney and London) immediately
following the date upon which the Trustee pays in full all
moneys due or which may become due, whether contingently
or otherwise, to Creditors of the Trust (as determined by
the Auditor, that determination to be conclusive); or
(ii) following the occurrence of an Event of Default under any
Security Trust Deed, the Security Trustee has enforced to
the fullest extent that it is able to do so all of its
powers under the Security Trust Deed which arise on the
occurrence of that Event of Default or on the Security
Trust Deed becoming enforceable, and has distributed all
of the amounts which it is required to distribute under
the Security Trust Deed (as determined by the Auditor,
that determination to be conclusive),
and the Trustee has received a confirmation from the Australian
Taxation Office that the Trustee has lodged its final tax return
in relation to that Trust; or
(d) if Notes have not been issued by the Trustee in its capacity as
trustee of the Trust, the date appointed by the Manager as the
Termination Date by notice in writing to the Trustee (which, if
the Trust is a Warehouse Trust, must be after the date on which
all amounts have been fully and finally repaid under the relevant
Warehouse Facility Agreement) after the Trustee has received a
confirmation from the Australian Taxation Office that the Trustee
has lodged its final tax return in relation to that Trust.
Title Documents means, in relation to the Authorised Investments of a
Trust, the documents of title and other documents contemplated under the
Custodian Agreement in relation to that Trust.
Title Perfection Event means, in relation to a Trust, each of the events
referred to in clause 12.9(a) for that Trust and the events (if any)
specified as Title Perfection Events in the relevant Supplementary Terms
Notice.
Transaction Documents means:
(a) this Deed;
(b) each Security Trust Deed;
(c) each Note Trust Deed;
(d) each Agency Agreement;
(e) any Seller Accession Certificate;
(f) any Support Facility;
(g) any Servicing Agreement;
(h) all Notes from time to time (and the related Supplementary Terms
Notice and Conditions);
(i) any Custodian Agreement;
(j) each other document which is expressed to be, or which is agreed
by the Manager and Trustee to be, a Transaction Document; and
(k) each other document that is executed under or which is or is
expressed to be incidental or collateral to, any other
Transaction Document, and in relation to a given Trust means all
of the above to the extent that they relate to that Trust.
Transfer of Receivable Security means:
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(a) in relation to a Mortgage or other Related Security that is a
registered mortgage of Land, a transfer of mortgage relating to
that Mortgage or Related Security under the Real Property
Legislation which, on registration, would result in the Trustee
being the registered mortgagee of that Mortgage or Related
Security; and
(b) in relation to any other Receivable Security and if required by
relevant legislation or practices a transfer of Security Interest
relating to that Receivable Security which, on registration,
would result in the Trustee being the registered holder of that
Receivable Security.
Trust means each Trust constituted from time to time under clause 3 and
Trusts means every Trust.
Trust Account means the account opened and operated for each Trust in
accordance with clause 21.
Trust Back means, in relation to a Trust, the trust (if any) referred to
in Clause 12.4 for that Trust.
Trust Back Assets means, in relation to a Trust, such right under or
interest in the Receivables and Receivable Securities specified in the
Sale Notice relating to that Trust and the related Collections to the
extent that such right or interest relates to (but only to the extent
that it relates to) any Other Secured Liabilities of which the Trustee
is actually aware.
Trustee means NMT in its capacity as the trustee of the Trusts, or in
the event of the retirement or removal of NMT as Trustee, a substitute
person appointed in its place under this Deed and includes the Manager
when acting as the Trustee in accordance with this Deed.
Trustee's Default in relation to a Trust means the occurrence of any of
the events specified in clause 20.1.
Trustee's Fee in relation to a Trust means the Trustee's fee for that
Trust under clause 19.1.
Unpaid Balance means:
(a) in relation to any Loan at any time, the sum of:
(i) the unpaid principal amount of that Loan; and
(ii) the unpaid amount of all finance charges, interest
payments and other amounts accrued on or payable under or
in connection with that Loan or the related Receivable
Rights at that time,
or the amount otherwise stated to be the Unpaid Balance for that
Loan, in the relevant Supplementary Terms Notice; or
(b) in relation to any other Receivable, the amount stated to be the
Unpaid Balance for the Receivable in the relevant Supplementary
Terms Notice.
Warehouse Facility Agreement means, in relation to a Trust, any facility
specified as a Warehouse Facility Agreement in the Supplementary Terms
Notice for that Trust, under which one or more financial institutions or
other persons agree to make available financial accommodation to the
Trustee to enable it to acquire Receivables.
Warehouse Facility Provider means, in relation to a Trust, a person who
has entered into or agreed to make available a Warehouse Facility
Agreement to the Trustee in relation to that Trust.
Warehouse Trust means a Trust under which the Trustee originates or
acquires Receivables using the proceeds of financial accommodation
provided under a Warehouse Facility Agreement, some or all of which
Receivables may subsequently be acquired by one or more other Trusts.
Warehouse Trust Direction means a direction by the Manager to the
Trustee materially in the form of Schedule 4 or in such other form as
may from time to time be agreed between the Trustee and the Manager.
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1.2 Interpretation
Headings are for convenience only and do not affect interpretation. The
following rules of interpretation apply unless the context requires
otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms
have a corresponding meaning.
(d) A reference to a person includes a body corporate, an
unincorporated body or other entity and conversely.
(e) A reference to a clause or schedule is to a clause of or schedule
to this Deed.
(f) A reference to any party to this Deed or any other agreement or
document includes the party's successors and permitted assigns.
(g) A reference to any agreement or document is to that agreement or
document as amended, novated, supplemented, varied or replaced
from time to time, except to the extent prohibited by this Deed.
(h) A reference to any legislation or to any provision of any
legislation includes any modification or re-enactment of it, any
legislative provision substituted for it and all regulations and
statutory instruments issued under it.
(i) A reference to dollars or $ is to Australian currency.
(j) Where the day on or by which any sum is payable under this Deed
or any act, matter or thing is to be done is a day other than a
Business Day such sum shall be paid and such act, matter or thing
shall be done on the next succeeding Business Day except to the
extent otherwise provided in the Supplementary Terms Notice.
(k) A word or phrase defined in the Corporations Law has the same
meaning in this Deed, unless separately defined in this Deed.
(l) All accounting terms shall be interpreted in accordance with the
Approved Accounting Standards.
(m) A reference to a month is to a calendar month.
(n) A reference to include, includes, included or including shall be
without limitation to the matter referred to.
(o) Except as otherwise provided, a reference to any time is a
reference to Sydney time.
(p) In relation to any Trust, the Trustee will be considered to have
knowledge or notice of or be aware of any matter or thing if the
Trustee has knowledge, notice or awareness of that matter or
thing by virtue of the actual notice or awareness of the officers
or employees of the Trustee who have day to day responsibility
for the administration of that Trust.
(q) A reference to writing includes a facsimile transmission and any
means of reproducing words in a tangible and permanently visible
form.
1.3 Binding on Noteholders and Beneficiaries
This Deed shall be binding on all Noteholders and Couponholders and the
Beneficiaries as if each was originally a party to this Deed.
PART B. CREATION OF TRUSTS
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2. Trustee of Crusade Euro Trusts
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2.1 Appointment of Trustee
The Trustee is appointed, and agrees to act, as trustee of each Trust
upon, and subject to, the terms and conditions of this Deed and the
relevant Supplementary Terms Notice.
2.2 Trustee to act in interests of Beneficiary and Noteholders of a Trust
(a) The Trustee shall, in respect of each Trust, act in the interests
of the Beneficiary and (subject to paragraph (b) below)
Noteholders in relation to that Trust on, and subject to, the
terms and conditions of this Deed. In the event of any conflict
of interests, the interests of the Noteholders will prevail.
(b) For the avoidance of doubt:
(i) the obligation of the Trustee to act in the interests of
the Noteholders is a contractual, not a fiduciary,
obligation and arises out of the contractual relationship
existing between the Trustee and the Noteholders under the
Notes; and
(ii) the Noteholders in respect of a Trust are not
beneficiaries of that Trust.
2.3 Separate and distinct Trusts
Each Trust shall be a separate and distinct trust fund held by the
Trustee on separate and distinct terms and conditions.
2.4 Termination of Deed
This Deed shall terminate on the date agreed by the Trustee and the
Manager if at that date:
(a) there are no Trusts in existence;
(b) the Trustee and the Manager are satisfied that all Notes have
been fully redeemed and all Creditors paid in full;
(c) there is no Sale Notice which has been given to the Trustee but
which has not at that date been accepted or rejected by the
Trustee; and
(d) there is no Investment Direction which has been given to the
Trustee but which has not been acted on or rejected by the
Trustee.
3. The Trusts
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3.1 Beneficial Interest in the Trusts
(a) The Trustee shall hold each part of each Trust, and each Asset of
each Trust from time to time, on trust for the relevant
Beneficiary on and subject to the terms and conditions of this
Deed.
(b) The interest of a Beneficiary under a Trust may be evidenced by
the issue of one or more units by the Trustee, if the relevant
Supplementary Terms Notice so specifies. A unit may give the
holder a right only to capital or only to income, or may give
such other rights as the relevant Supplementary Terms Notice may
provide. If a Beneficiary has paid all subscription and other
moneys payable by it for the issue of a unit, the interests of
that Beneficiary under paragraph (a) are not affected by the
failure of the Trustee to issue any such unit.
3.2 Creation of Trusts
(a) (Manager may create) The Manager may at any time create a Trust
by lodging with the Trustee:
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(i) (notice of creation) a duly completed and executed Notice
of Creation of a Trust; and
(ii) (initial Assets) the sum of $10.00 to constitute the
initial Assets of the Trust (which sum may be evidenced,
at the time of creation of that Trust or a later date, by
the issue of a unit under clause 3.1).
(b) (Constitution of a Trust) On satisfaction of clause 3.2(a), the
Trust referred to in the corresponding Notice of Creation of
Trust under clause 3.2(a)(i) shall be created.
(c) (No limit on Trusts) There shall be no limit on the number of
Trusts that may be created under this Deed.
3.3 Name of the Trusts
(a) Each Trust which is not a Warehouse Trust shall be known as:
(i) (initial name) the Crusade Euro Trust No. X of Y, where X
represents the consecutive order of creation of the Trust
in the relevant year the Trust was created and Y
represents the year in which the Trust was created; for
example, in the case of the first Trust the Crusade Euro
Trust No. 1 of 1998; or
(ii) (alternative name) such other name as the Trustee, the
Manager and the relevant Approved Seller (if any) may from
time to time agree.
(b) Each Warehouse Trust shall be known as:
(i) the Crusade Euro Warehouse Trust No. Z where Z is the
number of order of creation of Warehouse Trusts; for
example, in the case of the first Warehouse Trust the
Crusade Euro Warehouse Trust No. 1; or
(ii) (alternative name) such other name as the Trustee and the
Manager and the relevant Approved Seller may from time to
time agree.
3.4 Duration of a Trust
Each Trust shall continue until, and shall terminate on the later of:
(i) its respective Termination Date;
(ii) the date on which the provision of Clause 3.5 have been
satisfied; and
(iii) the date on which the Trustee ceases to hold any Trust Back
Assets in relation to that Trust.
3.5 Termination; winding up
(a) (Realisation of Assets) Subject to this clause 3 and to the
Transaction Documents, immediately following the Termination Date
of a Trust the Trustee in consultation with the Manager or the
Beneficiary, to the extent either has title to the Assets of the
relevant Trust following that Termination Date, must:
(i) sell and realise the Assets of that Trust (having obtained
appropriate expert advice prior to the sale of any
Receivable or Receivable Security); and
(ii) so far as reasonably practicable and reasonably
commercially viable, and subject to this clause, complete
the sale within 180 days after the Termination Date for
that Trust.
(b) (First right of refusal) Where an Approved Seller has a first
right of refusal in relation to those Receivables or Receivable
Securities under clause 12.9(c), the Trustee or the Beneficiary
(as the case may be) must comply with that clause 12.9(c).
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(c) (Sale within 180 days) During the 180 day period after the
Termination Date of a Trust, the Trustee or the Beneficiary (as
the case may be) must not (subject to paragraph (d)) and the
Manager must not direct it to, sell any Receivables and the
related Receivable Rights for an amount less than:
(i) in the case of performing Receivables, their Unpaid
Balance; or (ii) in the case of non-performing
Receivables, their Fair Market Value.
(d) (Performing Receivables) Notwithstanding paragraph (c)(i), the
Trustee or the Beneficiary (as the case may be) may not, and the
Manager must not direct it to, at any time sell any performing
Receivable for less than its Fair Market Value without the
consent of an Extraordinary Resolution of the relevant
Noteholders. Any purported sale without that approval will be
ineffective.
(e) (Sale at less than Unpaid Balance) The Trustee or the Beneficiary
(as the case may be) must not, and the Manager must not direct it
to, sell any performing Receivable and the related Receivable
Rights for less than the Unpaid Balance of the performing
Receivable unless:
(i) if the Invested Amount of each Note is greater than zero,
the Noteholders have consented to such sale by
Extraordinary Resolution; or
(ii) if the Invested Amount of each Note is zero, the relevant
Beneficiary consents.
(f) (Procedures before winding up) The provisions of this Deed will
continue to apply to a Trust for the period between the
Termination Date of that Trust and the date on which the Assets
of that Trust have been realised and distributed, notwithstanding
the occurrence of the Termination Date.
(g) (Expenses) Subject to the Security Trust Deed, the Manager must
direct the Trustee or the Beneficiary (as the case may be) to,
and the Trustee or the Beneficiary (as the case may be) must, pay
or provide for all Taxes, Expenses, claims and demands due or
incurred, or which the Trustee or the Beneficiary (as the case
may be) believes should be provided for, in connection with or
arising out of the administration or winding up of any Trust,
including the fees of any consultants or advisers employed in
connection with the administration or winding up of the Trust.
(h) (Distribution) The Manager shall direct the Trustee or the
Beneficiary (as the case may be) to distribute the proceeds of
realisation of the Assets of a Trust (after deducting the amounts
paid or provided for under paragraph (g)) in accordance with the
cashflow allocation methodology set out in the relevant
Supplementary Terms Notice and in accordance with any directions
given to it by the Manager. The Trustee or the Beneficiary (as
the case may be) shall comply with that direction.
(i) (Beneficiary) If all Notes relating to a Trust have been fully
and finally redeemed and the Creditors paid in full, the Trustee
must at the direction of the Manager distribute all or part of
the Assets to the relevant Beneficiary in specie (without
recourse to the Trustee or the Beneficiary (as the case may be)
and without any representation or warranty by the Trustee or the
Beneficiary (as the case may be)).
(j) (Performing/non-performing) The Servicer is to determine, in
consultation with the Trustee or the Beneficiary (as the case may
be) (acting on appropriate expert advice), whether a Receivable
is performing or non-performing for the purposes of this clause
3.5.
3.6 Costs of winding up of a Trust
During the winding up of a Trust under clause 3.5:
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(a) (Trustee's Fee) the Trustee shall be entitled to the continued
payment of the Trustee' s Fee under clause 19.1;
(b) (Manager's Fee) the Manager shall be entitled to continued
payment of the Manager's Fee under clause 15; and
(c) (Expenses) the Trustee or the Beneficiary (as the case may be)
and the Manager shall be entitled to reimbursement for, and the
Manager and the Trustee shall make provision for, all Expenses
incurred, made or apprehended in relation to the Trust (which
shall for this purpose include all Taxes, costs, charges,
expenses, claims and demands incurred, made or apprehended in
connection with the winding up of the Trust, including the fees
of any agents, solicitors, bankers, accountants or other persons
who the Trustee or the Beneficiary (as the case may be) or the
Manager may employ in connection with the winding up of the
Trust).
PART C. NOTES
4. Notes
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4.1 Acknowledgement of indebtedness
Subject to the terms of this Deed and the relevant Supplementary Terms
Notice, each Note constitutes an independent and separate
acknowledgement to the relevant Noteholder by the Trustee of its
indebtedness as trustee of that Trust for the Invested Amount of that
Note together with the other rights given to Noteholders under this
Deed, the Supplementary Terms Notice, the Security Trust Deed and the
Note Trust Deed relating to that Trust and the Conditions relating to
each Note.
4.2 Legal nature of Notes
Notes will be in bearer form, and may be definitive notes (with coupons
and talons attached), temporary global notes or permanent global notes.
4.3 Terms of Notes
(a) All Notes issued by the Trustee in its capacity as trustee of a
Trust shall be issued with the benefit of, and subject to, this
Deed, the Supplementary Terms Notice relating to such Notes, the
Security Trust Deed and the Note Trust Deed relating to that
Trust and the Conditions relating to those Notes.
(b) The Supplementary Terms Notice relating to that Trust is binding
on the Manager, the Trustee, the Note Trustee, the Noteholders,
the Couponholders, the Security Trustee, the Custodian, the
Servicer and the Approved Seller.
4.4 Interest and Principal Entitlement of Noteholders and Couponholders
Subject to this Deed, the relevant Supplementary Terms Notice and the
relevant Security Trust Deed, the relevant Note Trust Deed and the
relevant Conditions (and, in particular, subject to any such provisions
which provide for principal losses to be charged off against any Notes),
the Trustee in its capacity as trustee of that Trust shall in respect of
the Notes issued by it in that capacity, and acting on the directions of
the Manager, pay or cause to be paid to the Noteholders and
Couponholders (as relevant) of those Notes (to the extent that the
Trustee has available to it such amounts under the relevant
Supplementary Terms Notice and the relevant Conditions):
(a) (interest) their Interest Entitlement on each Interest Payment
Date; and
(b) (principal) their Principal Entitlement on each Principal
Amortisation Date.
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4.5 Notes not invalid if issued in breach
No Note shall be invalid or unenforceable on the ground that it was
issued in breach of this Deed, the Supplementary Terms Notice or any
other Transaction Document relating to that Trust.
4.6 No discrimination between Noteholders
There shall not be any discrimination or preference between Notes within
the same Class, or the corresponding Noteholders, in relation to a Trust
by reason of the time of issue of Notes or for any other reason, subject
only to the Supplementary Terms Notice relating to the Notes and the
terms of the Security Trust Deed (if any) relating to that Trust.
5. Limits on rights of noteholders and beneficiary
--------------------------------------------------------------------------------
5.1 General limits
Except as otherwise provided in the Note Trust Deed, this Deed or the
Security Trust Deed, no Noteholder or Beneficiary shall be entitled to:
(a) (fiduciary obligation) in the case of any Noteholder, require the
Trustee to owe to it, or act in a manner consistent with, any
fiduciary obligation in any capacity;
(b) (particular interest) an interest in any particular part of any
Trust or Asset comprised in any Trust;
(c) (require transfer) subject (in the case of the Beneficiary) to
this Deed, require the transfer to it of any Asset comprised in
any Trust;
(d) (interfere in management) interfere with or question the exercise
or non-exercise of the rights or powers of a Servicer, the
Manager or the Trustee in their dealings with any Trust or any
Asset;
(e) (exercise rights in respect of Assets) exercise any rights,
powers or privileges in respect of any Asset in any Trust;
(f) (act in Trustee's place) attend meetings or take part in or
consent to any action concerning any property or corporation in
which the Trustee in its capacity as trustee of a Trust holds an
interest;
(g) (terminate Trusts) seek to wind up or terminate any Trust (except
as provided in clause 30);
(h) (remove) seek to remove a Servicer, Manager, Trustee, Custodian,
Note Trustee, Paying Agent, Calculation Agent or any Support
Facility Provider;
(i) (interfere) interfere in any way with any Trust;
(j) (lodge caveats etc) lodge or enter a caveat or similar instrument
in relation to an asset register maintained under clause 28 or
claim any estate or interest in any Land over which a Mortgage or
any Related Securities are held or to which any other Asset
relates in respect of any Trust;
(k) (communicate with Mortgagors etc) except where the Noteholder or
Beneficiary is Xx.Xxxxxx and is communicating in some other
capacity under the Transaction Documents, or the Trustee has
otherwise consented, and subject to any provision of a
Transaction Document which allows any such communication,
negotiate or communicate in any way with any Mortgagor, or
Obligor or other security provider in respect of any Mortgage,
Loan, other Receivable, Receivable Security or Related Security
or with any person providing a Support Facility to the Trustee or
any other person who is party to any Transaction Document (other
than a Note Manager and a Note Trustee);
(l) (take proceedings) take any proceedings of any nature whatsoever
in any court or otherwise to obtain any remedy of any nature
(including
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against the Trustee, the Manager, a Note Trustee, the Security
Trustee or a Servicer or any former Trustee, Manager, Note
Trustee, Security Trustee or Servicer or in respect of any Trust
or any Asset of any Trust) (unless, in the case of a Warehouse
Trust, the Noteholder or Beneficiary is Xx.Xxxxxx and the Trustee
consents to Xx.Xxxxxx taking the proceedings) provided that it
shall be entitled to compel the Trustee, the Manager and any
Servicer to comply with their respective duties and obligations
under the Transaction Documents and, if the Noteholders are
entitled to the benefit of any applicable Security Trust Deed,
the Noteholders may compel the Security Trustee to comply with
its duties and obligations under the Security Trust Deed; and
(m) (recourse to personal assets of Trustee) any recourse whatsoever
to the Trustee in its personal capacity, except to the extent of
any fraud, negligence or Default on the part of the Trustee.
5.2 Interests of Beneficiary Assignable
Subject to the relevant Supplementary Terms Notice, a Beneficiary may
assign, or create or allow to exist a Security Interest over, its rights
and interests in respect of a Trust without the prior written consent of
any person.
5.3 Ranking of interest of Beneficiary
The rights, claims and interest of a Beneficiary in relation to any
Trust, the Assets of any Trust and in relation to any payment or
distribution out of any Trust (including on the winding up of a Trust)
shall at all times rank after, and be subject to, the interests of
Noteholders under the Notes issued in relation to that Trust (including
in relation to any payment obligations on the Notes).
5.4 Further limit on interest of Noteholders, Couponholders and Warehouse
Facility Providers
A Noteholder, a Couponholder or a Warehouse Facility Provider in
relation to a Trust shall only be a creditor of the Trustee in its
capacity as trustee of that Trust to the extent of the Notes held by
that Noteholder or the Coupons held by that Couponholder or, in the case
of a Warehouse Facility Provider, their rights under the relevant
Warehouse Facility Agreement (as the case may be) and shall not be
entitled to any beneficial or, subject to the Security Trust Deed
relating to that Trust, other interest in that Trust.
5.5 No liability of Noteholders or Beneficiary
No Noteholder by reason of being a Noteholder, or Beneficiary by reason
of being a Beneficiary, shall in respect of a Trust:
(a) (liability) have any liability to make any contribution to the
Assets of the Trust or any payment to the Trustee, the Manager or
any other person in relation to the Trust; and
(b) (indemnity) be under any obligation to indemnify the Trustee, the
Manager or any Creditor of the Trustee in its capacity as trustee
of the Trust in respect of any of the liabilities (actual,
contingent or otherwise and whether due to any deficiency or not)
of the Trustee or the Manager in relation to, arising from or in
connection with the Assets of the Trust or the Trust generally.
6. Procedure for issue of notes
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6.1 Note Issue Direction for a Trust
(a) (Delivery of direction) If the Manager proposes that the Trustee
will issue Notes as trustee of a Trust, it shall, at least 5
Business Days (or such other period agreed by the Trustee or as
specified in a relevant Supplementary Terms Notice) prior to the
proposed Note Issue Date, deliver to the Trustee a Note Issue
Direction directing amongst other
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things that the Trustee (subject to this Deed and the relevant
Supplementary Terms Notice):
(i) (transfer benefit of Receivables) hold as trustee of the
Trust the benefit of the Portfolio of Receivables
specified by the Manager in the Note Issue Direction; and
(ii) (issue Notes) issue as trustee of the Trust the Notes
specified by the Manager in the Note Issue Direction.
(b) (Conditions precedent to first direction) The right of the
Manager to give a Note Issue Direction for any Trust is subject
to the Trustee receiving in form and substance satisfactory to
it:
(i) in relation to the first Note Issue Direction for that
Trust, a certificate in relation to the relevant Servicer,
the Manager and (if any) the relevant Approved Seller
(except where the Approved Seller is a Trust) given by a
director or secretary of that company substantially in the
form of Schedule 3 with the attachments referred to in
that certificate;
(ii) in relation to the first Note Issue Direction for that
Trust, unless the Trustee already holds a copy as trustee
of another Trust, a duly executed counterpart of this
Deed;
(iii) in relation to the first Note Issue Direction for that
Trust, a legal opinion on this Deed; and
(iv) any other document or condition specified in the relevant
Supplementary Terms Notice.
6.2 Requirements for a Note Issue Direction
A Note Issue Direction given by the Manager to the Trustee in respect of
a Trust under this Deed shall (whether in that Note Issue Direction, or
in the accompanying Supplementary Terms Notice):
(a) (contain the following information) specify the following in
respect of the Notes:
(i) (classes) whether any of the Notes will constitute a Class
separate from any other Notes previously issued by the
Trustee in its capacity as trustee of the Trust or from
any other Notes referred to in the Note Issue Direction;
(ii) (name) the name of the Notes or, if the Notes are divided
into more than one Class, the name of each Class of Notes;
(iii) (amount) the total number of Notes and, if the Notes are
divided into more than one Class, the number of Notes in
each Class;
(iv) (principal amount) the total principal amount of the Notes
and, if the Notes are divided into more than one Class,
the principal amount of each Class;
(v) (minimum subscription) the minimum subscription amounts
for Notes (if any);
(vi) (issue price) where the Notes are to be issued at a
discount or a premium to the face value, the issue price
of the Notes;
(vii) (Note Issue Date) the proposed Note Issue Date;
(viii) (Security Trust Deed and Support Facilities) whether a
Security Trust Deed or any Support Facility needs to be
effected in relation to the proposed Note Issue Date and,
if so, reasonable details of these;
(ix) (Receivables) all relevant details (including where
relevant the nature, principal amount and rate of return)
of Receivables held
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or to be held under the Trust to which the Note Issue
Direction relates;
(x) (Seller) where relevant, the identity and details of the
relevant Approved Seller or Warehouse Trust from which the
Receivables are to be acquired;
(xi) (such other required information) such other information
required by the Note Issue Direction or the relevant
Supplementary Terms Notice;
(xii) (Lead Manager) if there is to be a Lead Manager in
relation to the issue of the Notes, the identity and
address of that Lead Manager; and
(xiii) (Subscription Agreement) if a Subscription Agreement is to
be effected in relation to the proposed Note Issue Date,
reasonable details of that agreement (including the
parties to that agreement and the amount of their proposed
subscriptions but excluding any information relating to
the fees payable to the Note Manager);
(b) (duly completed) without limiting paragraph (a), be otherwise
duly completed;
(c) (accompanied by a Supplementary Terms Notice) be accompanied by a
duly completed and executed Supplementary Terms Notice for the
Notes, or if the Notes are divided into more than one Class and
the Manager elects to have a separate Supplementary Terms Notice
for each Class, a duly completed Supplementary Terms Notice for
each Class. However, if the terms of a Supplementary Terms Notice
for the Notes, or a particular Class of the Notes, are the same
as for a previous issue of Notes or a Class of Notes in respect
of the Trust, or if the Notes are contemplated by or issued under
a previous Supplementary Terms Notice, this requirement may be
satisfied if the Note Issue Direction specifies that this is the
case and is accompanied by the relevant previous Supplementary
Terms Notice; and
(d) (accompanied by a certification) be accompanied by a
certification by the Manager:
(i) in accordance with clause 6.6(a); and
(ii) that it expects the revenue which the Obligors have
contracted to pay under the Receivables the subject of the
Trust and the other Transaction Documents that the Trustee
will enter into in respect of the Trust will be sufficient
to enable the Trustee to meet the expenses of the Trust
and the amounts due to Noteholders.
6.3 Supplementary terms notice
(a) (Mandatory Information) A Supplementary Terms Notice shall
specify the following in respect of the Notes to which it refers
or if it relates to more than one Class of Notes for each Class
to which it refers:
(i) (Interest Payment Dates) each date (if any) for the
payment of interest under the Notes;
(ii) (Principal Amortisation Dates) each date for the repayment
of part or all of the outstanding principal under the
Notes;
(iii) (rate of interest) the rate of interest (if any) on the
Notes (which may be fixed, variable, calculated by way of
discount on the issue price or determined by a stated
method) and the method for calculating the interest;
(iv) (repayment of principal) where principal on the Notes is
to amortise, the amount (or the method of calculating the
amount) of principal to be repaid on the Notes on each
Principal Amortisation Date;
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(v) (Class rights) if the corresponding Note Issue Direction
specifies that the Notes are to constitute a Class
separate from any other Notes previously issued by the
Trustee in its capacity as trustee of the relevant Trust
or from any other Notes referred to in the Note Issue
Direction, the rights or restrictions that constitute the
first mentioned Notes as a separate Class and the
relationship of those rights and restrictions to any other
then or proposed Class of Notes;
(vi) (cashflow allocation methodology) the manner in which
cashflow from the Receivables (and any relevant Support
Facilities) will be applied by the Trustee, and in which
any shortfalls in income will be allocated among Notes
and/or Classes of Notes;
(vii) (conversion rights) where the Notes may be converted into
a different Class of Notes, details of that conversion
(including when and in what manner it can occur); and
(viii) (fees) any relevant fee (for example, fees to the
Servicer) for the relevant Trust.
(b) (Optional information) A Supplementary Terms Notice may specify
the following in respect of the Notes or Classes of Notes to
which it refers:
(i) (special rights) any preferred, deferred or special rights
or restrictions applying to the Notes whether with regard
to the payment of interest, the repayment of principal,
voting, the division into classes or otherwise, which may
include that the Notes are to be initially issued on a
partly paid basis or shall have an additional entitlement
to the principal or capital of the corresponding Trust
beyond the repayment in full of their Initial Invested
Amount; and
(ii) (other information) any other terms or restrictions
applying to the Notes that may be included in the
Supplementary Terms Notice.
(c) (Inconsistency) If a term of a Supplementary Terms Notice is
inconsistent with any provision of this Deed, the Supplementary
Terms Notice shall prevail to the extent of the inconsistency,
with respect only to the Trust and Notes to which that
Supplementary Terms Notice relates.
(d) (Amendment) A Supplementary Terms Notice in relation to a Trust
may expressly amend any provision of this Deed with respect to
that Trust and the relevant Notes. This Deed and those Notes
shall be construed accordingly.
(e) (Execution) Once the Trustee, the Manager, the relevant Servicer,
the provider of any relevant Support Facility and any relevant
Approved Seller have agreed to the terms of a Supplementary Terms
Notice they shall execute that Supplementary Terms Notice in the
Australian Capital Territory (or another place or jurisdiction
agreed between the Manager and the Trustee), on or before the
date on which the Manager proposes to issue the relevant
Investment Direction.
6.4 Amendment
The Manager may (and where the Trustee has acknowledged the Note Issue
Direction in accordance with clause 6.6(b), with the consent of the
Trustee), prior to a proposed Note Issue Date amend a previously issued
Note Issue Direction or Supplementary Terms Notice (including any Note
Issue Direction or Supplementary Terms Notice previously amended under
this clause). For the purposes of clause 6.11 only an amendment shall be
treated as creating a further issue of Notes. Such an amendment for a
Rated Trust shall only be made if prior notice of the amendment has been
given to the Designated Rating Agency and
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where the relevant Rated Trust has previously issued rated Notes which
amendment shall have no adverse effect on the ratings of those Notes.
6.5 Comply with Note Issue Direction
Subject to this clause 6, the Trustee must comply with a Note Issue
Direction.
6.6 Proviso on compliance with Note Issue Direction
(a) (Trustee shall not accept direction) The Trustee shall not comply
with a Note Issue Direction unless at least 5 Business Days (or
such other period agreed by the Trustee) prior to the proposed
Note Issue Date the Manager has certified to the Trustee that the
Note Issue Direction and any corresponding Supplementary Terms
Notice comply with this Deed.
(b) (Acknowledgement of direction) If the Trustee receives the
certificate provided for under paragraph (a) above, then it shall
no later than the close of business 2 Business Days (or such
other period agreed by the Manager) prior to the proposed Note
Issue Date sign the acknowledgement of receipt on the Note Issue
Direction and return it to the Manager. This acknowledgement will
not of itself constitute a declaration of trust and a trust will
only arise in accordance with clause 6.7(h).
6.7 Issue of Notes and transfer of benefit of Receivables
If the Trustee has:
(a) (acknowledged the Note Issue Direction) acknowledged receipt of a
Note Issue Direction;
(b) (sufficient applications for Notes) received confirmation from
the Manager that the Subscription Amount for such Notes is not
less than the amount specified in the corresponding Note Issue
Direction;
(c) (received or granted certain documents) on or prior to the
proposed Note Issue Date:
(i) (Security Trust Deed) entered into a Security Trust Deed
as trustee of the relevant Trust (unless not required for
the issue of the Notes by the Manager in the corresponding
Note Issue Direction);
(ii) (Support Facilities) obtained, or entered into
arrangements to obtain with effect from the corresponding
Note Issue Date, as trustee of the relevant Trust the
benefit of the Support Facilities referred to in the
corresponding Note Issue Direction;
(iii) (Subscription Agreement) if the Supplementary Terms Notice
provides for a Subscription Agreement, entered into a
Subscription Agreement in relation to the relevant Notes
at the direction of the Manager, but on such terms and
conditions as are reasonably agreed by the Manager and the
Trustee (subject to this Deed); and
(iv) (Power of Attorney) received an irrevocable power of
attorney or irrevocable powers of attorney from each
Approved Seller (in a form reasonably acceptable to the
Manager and the Trustee and in any event in registrable
form in each Australian Jurisdiction) appointing certain
specified officers of the Trustee as its attorneys for the
purposes of enabling the Trustee to perfect its title to
those purchased Receivables,
and, to the extent required, received any legal opinions on those
documents reasonably requested by the Trustee;
(d) (rating) if the Notes are to be rated, the Manager has advised
the Trustee that it has received a provisional indication from
the Rating
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Agency that the Notes will have a rating equal to or higher than
the rating specified in the relevant Supplementary Terms Notice;
or
(e) (listing) if the Notes are to be listed on a Stock Exchange, an
indication from the relevant Stock Exchange that the Notes have
been approved for listing on that Stock Exchange,
then, subject to the other requirements of this Deed being satisfied in
relation to matters which must be done on or prior to the Note Issue
Date, the Trustee agrees with the Manager (for the benefit solely of the
Manager) that if, on the direction of the Manager on the Note Issue Date
it issues Notes, as trustee of the relevant Trust, to the intending
Noteholders for the amount referred to in the corresponding Note Issue
Direction:
(f) (acquisition) where the relevant Receivables are to be acquired
from an Approved Seller:
(i) the Trustee will accept the relevant Sale Notice (but only
if the Trustee has issued the relevant Notes) and without
any obligation to the Approved Seller to do so; and
(ii) the Trustee agrees with the Manager (for the benefit
solely of the Manager) to pay to the Approved Seller from
the proceeds of the issue of the Notes the principal
amounts of such Receivables or such other consideration
specified in relation to the Note Issue Direction, as at
the date specified in the corresponding Note Issue
Direction; or
(iii) ( (origination) where the Trustee is to originate
the relevant Receivables, originate those Receivables (and
any relevant Receivable Securities) in accordance with the
procedures agreed under clause 10; and
(iv) ( (transfer of benefit of Receivables) subject to
payment of the amount referred to in paragraph (f), hold
automatically by virtue of this deed and without any
further act or instrument or other thing being done or
brought into existence, the benefit of the Portfolio of
Receivables referred to in the corresponding Note Issue
Direction with effect from the Note Issue Date as trustee
of the relevant Trust (together with the benefit with
effect from the Note Issue Date of all such Receivables,
Related Securities, Support Facilities and other rights
and entitlements relating thereto).
6.8 Action following Note Issue
The Trustee shall issue Notes in accordance with the applicable Note
Trust Deed and Supplementary Terms Notice.
6.9 No liability for insufficient moneys
If insufficient moneys are raised on a proposed Note Issue Date to
satisfy clause 6.7(b), neither the Trustee nor the Manager shall have
any obligation or liability to any person (including each other, any
intending Noteholder or any Beneficiary) to issue the Notes or, in the
case of a proposed issue in relation to a Trust, to hold the benefit of
the Portfolio of Receivables referred to in the corresponding Note Issue
Direction for the Trust, or otherwise.
6.10 Further assurance
Subject to the Transaction Documents, the Trustee shall following a Note
Issue Date for a Trust execute such documentation and do all such other
acts, matters or things as the Manager reasonably requires to transfer
the benefit of the Portfolio of Receivables referred to in the
corresponding Note Issue Direction (and the benefit of all corresponding
Loans, Related Securities, Receivable Rights and Support Facilities) to
the Trust.
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6.11 Further issues subject to Rating Agency approval
Where the Trustee in its capacity as trustee of a Rated Trust has issued
Notes, no further Notes in respect of that Trust shall be created, and
the Manager shall not direct the Trustee to issue any further Notes,
unless the Trustee receives a certificate from each Designated Rating
Agency in respect of the Notes then on issue in respect of the Trust
confirming the rating of those Notes.
6.12 Issue of unrated Notes
Nothing in this Deed shall be construed as requiring the Trustee or the
Manager to obtain a rating for Notes to be issued by the Trustee (except
subject to the Supplementary Terms Notice where those Notes are to be
issued by a Rated Trust).
6.13 No limit on Notes
Subject to the provisions of this Deed, there shall be no limit on the
amount or value of Notes which may be issued in respect of a Trust.
6.14 No issue in an Australian Jurisdiction
Notwithstanding anything in this Deed, no Notes may be offered for
subscription or purchase, or issued or allotted, nor may any offer or
invitation or Information Memorandum in respect of any Notes be
distributed, (except in the case of the Information Memorandum, for
information purposes only) in any Australian Jurisdiction.
7. Transfers of notes
--------------------------------------------------------------------------------
7.1 No restrictions on transfer of Notes
Subject to this Deed and the applicable Supplementary Terms Notice,
there shall be no restriction on the transfer of Notes.
7.2 Transfer
(i) ( A Noteholder must not transfer any Notes except
in accordance with all applicable laws in any jurisdiction
in which it may offer, sell or deliver Notes and will not
directly or indirectly offer, sell or deliver Notes or
distribute any prospectus, circular, advertisement,
Information Memorandum or other offering material relating
to the Notes in any country or jurisdiction except under
circumstances that will result in compliance with any
applicable laws and regulations.
(ii) ( None of the Trustee, the Manager, the Servicer,
any Note Manager or an Approved Seller is liable to any
Noteholder in relation to a breach by that Noteholder of
paragraph (a).
PART D. TRUST INVESTMENTS
8. Investment of the trusts generally
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8.1 Authorised Investments only
Subject to this Deed and the relevant Supplementary Terms Notice, each
Trust shall comprise only assets and property which are Authorised
Investments as at the date of their acquisition.
8.2 Manager selects investments
Subject to the terms of this Deed:
(a) the Manager alone shall have absolute and uncontrolled discretion
to determine, and it shall be the duty of the Manager to:
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(i) recommend or propose in writing to the Trustee (which may
be under a Supplementary Terms Notice), the manner in
which any moneys forming part of a Trust shall be invested
and what purchases, sales, transfers, exchanges,
collections, realisations or alterations of Assets shall
be effected and when and how the same should be effected;
and
(ii) give to the Trustee all directions necessary to give
effect to the recommendations or proposals referred to in
paragraph (i) above and such other directions which the
Trustee may desire in relation to the above matters; and
(b) it shall be the role of the Trustee to give effect to all such
directions of the Manager as are communicated by the Manager to
the Trustee in accordance with this clause, but the Manager may
not give any direction to the Trustee which conflicts with any
applicable law, the terms of the Trust, including the
Supplementary Terms Notice for that Trust or which could
adversely affect the current ratings (if any) of the Notes. For
the avoidance of doubt, except where the Transaction Documents
provide otherwise, the Trustee is not required to take any action
unless it has been directed to do so by the Manager.
8.3 Investment proposals
(a) (Manager's investment proposals) The Manager shall from time to
time give to the Trustee a proposal for the acquisition or
origination of property which is to constitute Assets of a Trust
and for the sale, transfer or other realisation of or dealing
with the Assets of a Trust, provided that the Manager may not
make any such proposal which could adversely affect the current
rating (if any) of the Notes.
(b) (Sufficient details) Except where the Manager's proposal is an
Investment Direction, each proposal shall contain all necessary
details relating to the proposal together with all information
and evidence as the Trustee may reasonably require to satisfy
itself that the implementation of the proposal is permitted under
this Deed. Where the Manager's proposal is an Investment
Direction, the proposal will comply with this Deed.
(c) (Discretion) The Manager shall have the fullest discretion to
recommend in the proposal the time and mode of and the broker,
contractor or agent (if any) to be engaged for the implementation
of the proposal including the right to recommend a postponement
for so long as the Manager in its discretion shall think fit.
(d) (Trustee must implement investment proposals) Subject to clause
8.7, on receipt of any written proposal by the Manager under this
clause 8, the Trustee shall implement that proposal and the
Trustee shall not be required, nor be under a duty, to inquire or
to make any assessment or judgment in relation to that proposal
or whether the proposed investment is an Authorised Investment or
is otherwise permitted under this Deed. The Trustee must not make
an investment if it is knows that it is not an Authorised
Investment.
8.4 Disposal or realisation of Authorised Investments
(a) (Authorised Investments to be held to maturity in Rated Trusts)
Subject to this Deed, any applicable Security Trust Deed or
Support Facility, Authorised Investments in respect of a Rated
Trust shall be held until their maturity (and the Trustee shall,
subject to this Deed and any applicable Security Trust Deed and
Support Facility, accordingly not have power to dispose of or
realise any Authorised Investment in a Rated Trust) but nothing
in this Deed shall affect the rights, powers, duties and
obligations of the Trustee in relation to enforcing any
Receivable, Receivable Security or Related Securities or
otherwise in relation to any other Authorised Investment or
Support Facility.
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(b) (Circumstances for disposal in Rated Trusts) Subject to this
clause 8.4(b) and to clause 8.4(c), the Trustee shall have power
to dispose of or realise any Authorised Investment in a Rated
Trust if the Manager confirms to the Trustee that the disposal or
realisation of the Authorised Investment will not lead to a loss
or where to continue to hold such Authorised Investment would:
(i) (breach) result in a breach of this Deed;
(ii) (affect Authorised Trustee Investment status) affect the
status of Notes as an Authorised Trustee Investment (if
applicable);
(iii) (adversely affect rating) adversely affect the then rating
(if any) of the Notes issued in relation to the Rated
Trust; or
(iv) (prejudicial to Noteholders) in the opinion of the
Manager, be prejudicial to the interests of Noteholders in
the Rated Trust.
The Trustee may only exercise its power of disposal or
realisation under paragraphs (ii)-(iv) (inclusive) on the written
direction of the Manager.
(c) (No restriction on disposal in unrated Trusts) Subject to each
Transaction Document there shall be no restriction on the
disposal or realisation of or temporary investment or
reinvestment in Authorised Investments:
(i) in a Trust which is not a Rated Trust; or
(ii) where the disposal is to another Trust under clauses 11,
12.9(d) or 13.
(d) (Proceeds on realisation) On the settlement of the discharge,
realisation or disposal of an Asset, the Trustee may accept the
proceeds in the form of:
(i) a Bank cheque payable to the Trustee; or
(ii) in other immediately available funds.
8.5 Temporary investment of cash and limitation on maturity of Authorised
Investments
The Manager shall in respect of a Trust direct the Trustee to cause cash
on hand which represents the income or capital of the Trust and which is
not required for:
(a) (Expenses) the immediate payment of the Expenses of the Trust
(including the Trustee's Fee in relation to the Trust); or
(b) (Noteholders or Beneficiaries) the immediate payment to the
Noteholders or a Beneficiary of the Trust,
to be invested in Authorised Investments provided that such Authorised
Investments shall mature on a date on or before the due date for such
payment.
8.6 Support facilities
(a) (Enter into Support Facilities) The Trustee shall in relation to
any Trust, on the prior direction of the Manager (and following a
review by the Trustee of the documentation for the proposed
Support Facility), enter into or acquire and perform any Support
Facilities on such terms and conditions as are reasonably
required by the Manager and which are acceptable to the Trustee
(acting reasonably) (subject to this Deed).
(b) (Rating of parties to Support Facility) If Notes have been, or
are proposed to be, issued by the Trustee in its capacity as
trustee of a Rated Trust, the Manager shall (subject to this
Deed):
(i) direct the Trustee that each Support Facility for the
benefit of the Rated Trust must be taken out or executed
with a person having
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at that time a Designated Rating (if necessary to maintain
the rating(s) of the Notes); and
(ii) take, or direct the Trustee to take, such other action as
may be necessary to maintain the rating(s) of the Notes in
relation to that Rated Trust unless such action is
materially adverse to the Trustee (and which the Trustee
has the power to take under this deed and where the terms
of any such Support Facility that affect or relate to the
Trustee in its personal capacity are acceptable to the
Trustee, acting reasonably).
(c) (Support Facilities for Rated Trusts) If Notes have been, or are
proposed to be, issued by the Trustee in its capacity as trustee
of a Rated Trust, any Support Facility for the benefit of the
Rated Trust shall be entered into by the Trustee prior to or on
the Note Issue Date in relation to those Notes provided that the
Trustee may, on the prior direction of the Manager:
(i) enter into a new Support Facility as trustee of a Rated
Trust after a Note Issue Date, if and only if, the Manager
has received written confirmation from any Designated
Rating Agency that entering into the Support Facility will
not result in a downgrading or withdrawal of the rating of
the Notes; or
(ii) substitute a new Support Facility for any existing Support
Facility entered into in accordance with this clause 8.6
where it has previously issued Notes as trustee of a Rated
Trust, if and only if, the Manager considers the same to
be in the interests of that Rated Trust and the Manager
has received written confirmation from any Designated
Rating Agency that the new Support Facility will not
result in a downgrading or withdrawal of the rating of the
Notes.
(d) (Downgrading of parties) If a person providing a Support Facility
to the Trustee in its capacity as trustee of a Rated Trust ceases
to have a Designated Rating (if the corresponding Designated
Rating Agency confirms that that cessation is necessary to
maintain the rating(s) of the Notes) and the Designated Rating
Agency has downgraded or withdrawn, or has indicated that it
proposes to downgrade or withdraw, its rating of the Notes, the
Trustee shall, if directed by the Manager and subject to this
Deed:
(i) enter into any substitute or additional Support Facility
identified by the Manager, and on such terms required by
the Manager (and which the Trustee has the power to enter
into under this Deed and where the terms of any such
Support Facility that affect or relate to the Trustee in
its personal capacity are acceptable to the Trustee,
acting reasonably); or
(ii) take such other action which the relevant Designated
Rating Agency confirms is necessary to maintain the
rating(s) of the Notes,
to maintain the rating of the Notes as it stood prior to such
downgrading or withdrawal or proposed downgrading or withdrawal
of the rating of the Notes.
(e) (No obligation to have Support Facilities) Nothing in this clause
or this Deed shall be construed as requiring that any given Trust
has the benefit of any Support Facility. The Trustee is not
required to enter into any Support Facility except as provided in
this clause.
8.7 Authorised trustee investments
The Manager shall not direct the Trustee to, and the Trustee shall not
knowingly invest, any moneys of a Trust in any Authorised Investment
which prejudices the qualification of Notes in that Trust as an
Authorised Trustee Investment in a given Australian Jurisdiction if the
Manager has indicated to the Trustee that the
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Notes are, or are proposed to be, an Authorised Trustee Investment of
that Australian Jurisdiction or any Information Memorandum or prospectus
in relation to such Notes indicates that the Notes are, or are proposed
to be, an Authorised Trustee Investment of that Australian Jurisdiction.
8.8 Limitation of Trustee's personal liability
Notwithstanding any other provision of this Deed, the Trustee is not
obliged to execute any instrument, enter into any agreement, take any
action, or incur any obligation in connection with a Trust (including in
connection with Support Facilities or Assets) unless:
(a) in the case of agreements, actions or obligations that are
expressly contemplated by the Transaction Documents and are
between parties to the Transaction Documents, its personal
liability in connection with the instrument, agreement, action or
obligation is limited in a manner consistent with clause 30.13;
or
(b) in any other case, the Trustee's liability is limited in a manner
satisfactory to the Trustee in its absolute discretion.
8.9 Moneys payable to Trustee
Subject to this Deed, the Manager and the Trustee shall ensure that any
agreements entered into in relation to the Trusts contain a provision to
the effect that any moneys belonging to the Trusts under the agreements
shall be paid to the Trustee or to an account, or Authorised Investment,
in the name of the Trustee in its capacity as trustee of the relevant
Trust.
8.10 Segregation of Assets of a Trust
(a) Subject to this Deed (and in particular to clause 21.10) and any
Supplementary Terms Notice the Trustee shall:
(i) ensure that no money or other Assets of a Trust are
commingled with the money or other Assets of another Trust
or any assets of the Trustee in any capacity other than as
Trustee of the Trust;
(ii) account for the Assets included in each Trust separately
from the Assets included in all other Trusts and any
assets of the Trustee in any capacity other than as
Trustee of the Trust; and
(iii) keep the liabilities of, and principal amounts outstanding
to Noteholders and providers of Support Facilities or
other Creditors in relation to each Trust separate and
apart from the liabilities of, and principal amounts
outstanding to Noteholders and providers of Support
Facilities or other Creditors in relation to all other
Trusts and any liabilities of the Trustee in any capacity
other than as Trustee of the Trust.
(b) Notwithstanding this clause 8.10:
(i) any Expenses of a Warehouse Trust may be borne by one or
more Warehouse Trusts in the respective amounts directed
by the Manager from time to time; and
(ii) the Trustee at the direction of the Manager, and with the
approval of any relevant Designated Rating Agency (if
relevant), may enter any Hedge Agreement which relates to
Assets of any two or more Trusts.
8.11 Assets of Trusts
Assets of a Trust shall not be available to meet any liability of, or
principal amounts outstanding to Noteholders and providers of Support
Facilities or other Creditors in relation to:
(i) any Trust other than the Trust of which those Assets form a part;
or
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(ii) any liability of the Trustee in any capacity other than as
Trustee of the Trust.
8.12 Liabilities of a Trust
Any liabilities to the extent that they relate to a Trust and principal
amounts outstanding to Noteholders and providers of Support Facilities
or other Creditors to the extent that they relate to a Trust, shall not
be aggregated with any liabilities, and principal amounts outstanding to
Noteholders and providers of Support Facilities or other Creditors, to
the extent that they relate to any other Trust or any liabilities of the
Trustee in any capacity other than as Trustee of the Trust or offset
against the Assets of any Trust other than the Trust of which those
liabilities and principal amounts form a part or to which they relate or
any liability of the Trustee in any capacity other than as trustee of
the Trust.
PART E. ACQUISITION AND ORIGINATION OF ASSETS
9. General
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9.1 Power to acquire Assets
Subject to this Deed and any Supplementary Terms Notice, the Trustee may
Borrow for the purpose of or in connection with:
(a) the making of, investment in, acquisition of, or funding of
assets underlying, Loans or other Receivables and Receivable
Securities;
(b) in relation to paragraph (a), investment in other Authorised
Investments; or
(c) the continued funding of any investment in Receivables,
Receivable Securities or other Authorised Investments.
9.2 Borrowings - general
Subject to clause 9.3, the Trustee may only Borrow in relation to a
Trust following receipt of a Warehouse Trust Direction under clause 11.1
or a Note Issue Direction under clause 6 and only by way of:
(a) the issue of Notes at any time and from time to time under this
Deed and the relevant Trust;
(b) a Support Facility contemplated by the Warehouse Trust Direction
or Note Issue Direction (as the case may be) (and any Notes
issued with respect to that Support Facility);
(c) in the case of a Rated Trust, a Borrowing which is:
(i) at all times subordinated and subject to the Notes, the
interests of the Noteholders under the Notes, and the
interests of the providers of any Support Facilities, in
relation to the relevant Trust; or
(ii) rated by all Designated Ratings Agencies at least as high
as the rating given by them to the Notes; or
(iii) without recourse to the Trustee or any assets of the
Trustee, other than the excess funds of the Trust after
meeting the principal and interest requirements of the
Noteholders and any Expenses of the Trust, provided that
the Borrowing does not constitute a claim against the
Trustee to the extent that there are insufficient funds to
meet repayments on the Borrowing,
and in any event does not adversely affect the current ratings of
the relevant Notes.
(d) in the case of a Trust which is not a Rated Trust, any other
Borrowing agreed by the Trustee and the Manager.
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9.3 Borrowings - Support Facilities etc.
(a) Where there are, or may be, ongoing obligations of the Trustee or
Approved Seller (as the case may be) to provide Obligors with the
ability to redraw amounts prepaid under a Receivable, or to
increase the principal amount of or owing in relation to any
Receivable, the Trustee shall subject to any applicable
restriction in the Transaction Documents at the direction
(whether under a Supplementary Terms Notice or otherwise) of the
Manager (without limiting its rights or powers under this Deed):
(i) enter into a Redraw Facility Agreement or Warehouse
Facility Agreement with respect to those obligations;
(ii) sell or otherwise transfer that Receivable to a Warehouse
Trust;
(iii) subject to clauses 6.11 and 6.12, issue Notes to reimburse
the relevant Approved Seller for any redrawn amounts
funded by the Approved Seller; or
(iv) enter any other arrangements as may be agreed between the
Trustee, the Manager and the Approved Seller.
(b) The Trustee may, at the direction of the Manager in accordance
with clause 6, issue Notes in relation to its obligations under a
Warehouse Facility Agreement or a Warehouse Trust.
(c) The parties to a Supplementary Terms Notice for a Warehouse Trust
may amend the Supplementary Terms Notice from time to time in
writing.
10. Origination
--------------------------------------------------------------------------------
(a) Where an Investment Direction directs the Trustee to fund the
making of Loans, or the making or creation of other Receivables,
other than by acquisition from an Approved Seller (an
Origination), and the Trustee implements the direction, the
Trustee shall use the proceeds of the relevant issue of Notes or
drawing under the relevant Support Facility (as the case may be)
for the purpose of the Origination in accordance with the
detailed procedure for Origination set out in the relevant
Supplementary Terms Notice and as agreed by the Trustee, the
Manager and the relevant originator.
(b) The Manager shall not direct the Trustee to, and the Trustee may
not Originate Receivables unless the Trustee is satisfied (in its
absolute discretion) with the procedures for the Origination
(including as to any indemnity for liability under Consumer
Credit Legislation).
11. Acquisition or funding by warehouse trust from another trust
--------------------------------------------------------------------------------
11.1 Direction by Manager
(a) Subject to Clause 11.3, the Manager may from time to time direct
the Trustee under a Warehouse Trust Direction to acquire from
another Trust Receivables and/or Receivable Securities using the
proceeds of financial accommodation under a Warehouse Facility
Agreement or in consideration of the transfer of any Authorised
Investments held by the Warehouse Trust.
(b) The Trustee has power, as trustee of a Trust, to dispose of
Receivables and/or Receivable Securities to a Warehouse Trust in
accordance with a Supplementary Terms Notice relating to that
Trust and that Warehouse Trust.
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11.2 Required information
A Warehouse Trust Direction must include:
(a) all relevant details relating to:
(i) the other Trust;
(ii) the Receivables and relevant Receivable Securities;
(iii) the Warehouse Facility Agreement (including the amount of
financial accommodation to be raised); and
(iv) all necessary information required in a Supplementary
Terms Notice under this Deed; and
(b) all other information reasonably required by the Trustee in order
to make a determination under clause 11.3.
11.3 Conditions to acceptance
The Trustee will not accept a direction under clause 11.1 unless the
direction (including the Receivables and Receivable Securities specified
in the direction) complies with the requirements of the relevant
Warehouse Trust Direction and any relevant Warehouse Facility Agreement
or as the Manager and the Trustee otherwise agree.
11.4 Effect of acceptance
(a) A Warehouse Trust Direction must be executed in the same manner
that a Supplementary Terms Notice is to be executed under clause
6.3(e).
(b) If the Trustee accepts a Warehouse Trust Direction under clause
11.1, it shall:
(i) enter into, or ensure that there is in place, a relevant
Warehouse Facility Agreement;
(ii) acquire or originate the Receivables (as the case may be),
and otherwise comply with the Warehouse Trust Direction.
11.5 Implementation
If the Trustee accepts a Warehouse Trust Direction under clause 11.1,
the Manager shall do everything reasonably necessary to enable the
Trustee to implement the direction.
11.6 General direction
(a) A Warehouse Trust Direction under clause 11.1 may take the form
of a general direction that specifies one or more Trusts from
which Receivables and Receivable Securities may be acquired by
the Trustee in its capacity as trustee of the relevant Warehouse
Trust from time to time without the need for a further Warehouse
Trust Direction under clause 11.1.
(b) Without limiting paragraph (a), a general direction referred to
in that paragraph can provide that the Manager may draw an amount
under the relevant Warehouse Facility Agreement on behalf of and
without prior notice to the Trustee, on satisfaction of any
relevant procedures specified in the Warehouse Trust Direction.
Those procedures shall include:
(i) notice to be given to the Trustee within a specified
period after that drawing; and
(ii) requirements as to whom the proceeds of that drawing will
be paid.
11.7 Transfers between Trusts
(a) Where a transfer of Assets is to occur between Trusts (whether
between two Warehouse Trusts, between a Warehouse Trust and a
Trust which is
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not a Warehouse Trust, or between two Trusts neither of which is
a Warehouse Trust), the provisions of this clause 11.7 apply.
(b) The transfer may take place under a Sale Notice, under a relevant
Supplementary Terms Notice, or by such other method as the
Trustee and the Manager may determine. The information and timing
of that transfer and the delivery of that Sale Notice or any
other document will be as agreed between the Trustee and the
Manager.
(c) Subject to payment of the agreed Purchase Price (as adjusted in
accordance with the terms of the sale), the Trustee in its
capacity as trustee of a Trust will hold automatically by virtue
of this Deed and without any further act or instrument or other
thing being done or brought into existence, the benefit of all
Receivable Rights transferred to it by the Trustee in its
capacity as trustee of another Trust (together with the benefit
of all Support Facilities which the Trustee and the Manager agree
are to be transferred, and all other rights and entitlements
relating to the relevant Receivables). The Trustee will hold the
Receivables so acquired as trustee of the Trust which acquires
those Receivable Rights and no longer as the trustee of the Trust
which disposed of the Receivable Rights.
(d) The Sale Notice, Supplementary Terms Notice or other method of
transfer (as the case may be) may, if so agreed between the
Trustee and the Manager, provide:
(i) that the Manager, the Servicer or the Approved Seller of
the Assets which are the subject of the transfer shall
give for the benefit of the acquiring Trust specified
representations, warranties and undertakings in relation
to the Assets; and
(ii) for the effect of any breach of a representation, warranty
or undertaking referred to in sub-paragraph (i),
provided that neither the giving of such representations,
warranties or undertakings nor the effect of breaching any of
them adversely affects the rating of a Rated Trust.
(e) Following a transfer between Trusts, each of:
(i) the Trustee in its capacity as trustee of the Trust which
transfers the relevant Receivable Rights (the Old Trust);
(ii) the Trustee in its capacity as trustee of the Trust which
acquires the relevant Receivable Rights (the New Trust);
and
(iii) the relevant Approved Seller,
agrees that with effect from the date of transfer of the relevant
Receivable Rights the rights and obligations as between the
Approved Seller and the Trustee in its capacity as trustee of the
Old Trust will be novated, and enjoyed by, the Approved Seller
and the Trustee in its capacity as trustee of the New Trust as
between themselves (without the need for further action on the
part of any person). The Approved Seller and the Trustee in its
capacity as trustee of the Old Trust shall, as between
themselves, cease from that date to owe any obligations or hold
any rights as between themselves unless accrued before the
transfer.
(f) Where Assets of a Trust which are transferred to another Trust
are subject to a Trust Back, that Trust Back is dealt with in
accordance with clause 12.4(j).
(g) Following a transfer of Assets between Trusts, the Manager shall
calculate, and notify the Trustee of, the amount of:
(i) any accrued interest under the relevant Receivables that
may be due from the New Trust to the Old Trust at any
time; and
(ii) any repaid or prepaid principal under the relevant
Receivables that may be due from the Old Trust to the New
Trust,
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in accordance with the provisions (if any) of the relevant
Supplementary Terms Notice or Sale Notice.
The Manager directs the Trustee (as Trustee of the Trust with any
obligation under this paragraph (g)) to pay any amount so
calculated to the other relevant Trust as an adjustment to the
corresponding purchase price, in accordance with the relevant
Supplementary Terms Notice.
11.8 Acknowledgement by Approved Seller
Each Approved Seller acknowledges and agrees that any interest in
Receivables acquired from it by the Trustee in its capacity as trustee
of any Trust may be disposed of by the Trustee to another Trust.
12. Acquisition from approved seller
--------------------------------------------------------------------------------
12.1 Note issue direction
Where:
(a) a Note Issue Direction directs that the Trustee issues Notes; or
(b) a Warehouse Trust Direction directs that the Trustee draws any
amount under the relevant Warehouse Facility Agreement,
to fund the acquisition of Authorised Investments from an Approved
Seller under a Sale Notice under clause 12.3, the Trustee shall use the
proceeds of the relevant issue of Notes or drawing under the Warehouse
Facility Agreement (as the case may be) for the purpose of the
acquisition and other related purposes in accordance with this clause.
12.2 Accession of Approved Sellers
(a) (Approved Seller) A person approved by the Manager and which is
acceptable to the Trustee (acting reasonably) may at any time
become an Approved Seller for the purposes of this Deed by
entering into a Seller Accession Certificate. The Manager shall
not direct the Trustee to acquire Receivables and/or Receivable
Securities from an Approved Seller for a Rated Trust (other than
the Approved Seller who first disposed of Receivables and/or
Receivable Securities to that Trust) without first confirming
that the rating for that Trust will not be downgraded or
withdrawn as a result of that acquisition.
(b) (Accession) On execution of a Seller Accession Certificate by
that person and the Trustee, that person shall be taken to be an
Approved Seller for the purposes of this Deed with all the rights
and obligations as if it were an original party to this Deed.
(c) (Trustee as Approved Seller) If the Trustee in its capacity as
trustee of a Trust is to be an Approved Seller, it need not
execute a Seller Accession Certificate but will be bound by this
Deed as an Approved Seller as trustee of that Trust.
12.3 Sale notices
(a) An Approved Seller may (but is not obliged to) offer to sell its
equitable interest in any Authorised Investments, Receivables or
Receivable Securities to the Trustee by delivering a Sale Notice
to the Trustee.
(b) Unless the Trustee otherwise agrees, a Sale Notice given under
this Deed shall be delivered to the Trustee not later than 4.00
pm on the Business Day which is 5 Business Days before the day on
which the Expiry Time falls (which must also be a Business Day).
(c) An offer in a Sale Notice is irrevocable during the period up to
and including the Expiry Time of that Sale Notice.
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(d) If so directed by the Manager, the Trustee shall accept the offer
contained in a Sale Notice at any time prior to the Expiry Time
by, and only by, the payment by the Trustee to the Approved
Seller (or as it directs) of the Purchase Price in same day funds
to the bank account specified by the Approved Seller for that
purpose in that Sale Notice.
(e) Notwithstanding:
(i) satisfaction of all relevant conditions precedent; or
(ii) any negotiations undertaken between the Approved Seller
and the Trustee prior to the Trustee accepting the offer
contained in a Sale Notice,
the Trustee is not obliged to accept the offer contained in a
Sale Notice and no contract for the sale or purchase of any
Receivables or related Receivable Rights referred to in a Sale
Notice will arise unless and until the Trustee accepts the offer
contained in the Sale Notice in accordance with this clause.
(f) The offer contained in a Sale Notice may only be accepted in
relation to all the Receivables and related Receivable Rights
referred to in the Sale Notice.
12.4 Constitution and Entitlement of the Trust Back
(a) Constitution of Trust Back
On the acceptance of a Sale Notice which relates to Receivable
Securities or Related Securities that secure Other Secured
Liabilities:
(i) a trust shall be constituted; and
(ii) the relevant Trust Back Assets shall vest in the Trustee
and be held by the Trustee on and subject to the trusts,
terms and conditions of this clause.
(b) Declaration of trust
The Trustee declares that it will hold all its right, title and
interest in the Trust Back Assets on bare trust for the relevant
Approved Seller in accordance with this clause.
(c) Entitlement of the Approved Seller to the Trust Back Assets
The beneficial interest in the Trust Back Assets relating to a
Trust vests absolutely in the relevant Approved Seller.
(d) Dealing with Trust Back Assets
Subject to the terms of this Deed:
(i) an Approved Seller is entitled to deal with its Trust Back
Assets in its absolute discretion;
(ii) the Trustee must not deal with any Trust Back Assets other
than:
(A) in accordance with directions given by the relevant
Approved Seller as beneficiary of the Trust Back,
from time to time;
(B) in accordance with all the Transaction Documents;
or
(C) to the extent necessary to exercise and enforce any
Receivable Rights; and
(iii) the Trustee must act in accordance with any direction
given to it by the relevant Approved Seller in respect of
its Trust Back Assets, except that the Trustee is not
obliged to act in accordance with the direction of that
Approved Seller where to do so would:
(A) be illegal; or
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(B) in the Trustee's reasonable opinion materially
prejudice the exercise of the Trustee's rights in
relation to the Receivables or related Receivable
Rights.
(e) Proceeds
Subject to clause 12.8:
(i) an Approved Seller may retain any proceeds received by it
from its Trust Back Assets; and
(ii the Trustee must immediately on the direction of the
Manager pay to an Approved Seller (or otherwise pay as the
Approved Seller directs) any proceeds the Trustee receives
in respect of that Approved Seller's Trust Back Assets.
That payment constitutes a good discharge of the Trustee.
(f) Trustee's duties
(i) The Trustee owes no fiduciary or other duties to any
Approved Seller in respect of that Approved Seller's Trust
Back Assets other than pursuant to paragraph (d) or
(e)(ii) and, in any event, is not liable in any manner
whatsoever to any Approved Seller for any liability, loss,
cost or expense to that Approved Seller's Trust Back
Assets (whether consequential or otherwise) resulting from
doing or omitting to do any act or thing in relation to
those Trust Back Assets, except where such loss is caused
by the fraud, negligence or Default of the Trustee.
(ii) Subject to sub-paragraphs (d)(iii) and (e)(ii), the
Trustee is not required to take any action in respect of
any Trust Back Assets.
(g) Indemnity in respect of Trust Back Assets
(i) Without limiting any indemnity to which the Trustee is
otherwise entitled and subject to paragraph (ii), each
Approved Seller unconditionally and irrevocably
indemnifies the Trustee against any liability, loss, cost
or expense incurred by the Trustee as a result of the
Trustee complying with any directions by that Approved
Seller in accordance with this Deed in connection with any
Trust Back for that Approved Seller (including the
transfer of the Trust Back Assets to the Approved Seller
under paragraph (j)). That Approved Seller must pay or
reimburse the Trustee on demand for all reasonable
expenses, including but not limited to stamp duties and
taxes, payable in connection with such indemnity.
(ii) An Approved Seller's obligations under sub-paragraph (i)
to indemnify and reimburse the Trustee do not apply to the
extent that such liabilities or expenses arise as a result
of the fraud, negligence or Default of the Trustee.
(h) Conflicts or Inconsistencies
If there is at any time a conflict or inconsistency between:
(i) any:
(A) directions given by an Approved Seller, as referred
to in paragraph (d); or
(B) duty owed by the Trustee to an Approved Seller by
virtue of the Trustee being the trustee of the
Trust Back (whether arising by operation of law,
equity or otherwise); and
(ii) the obligations and duties of the Trustee arising under or
in connection with the Transaction Documents (apart from
this clause) or the interests of Mortgagees (as defined in
the Security Trust Deed),
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the Trustee:
(iii) must give priority to the obligations, duties and
interests referred to in paragraph (ii) over any direction
or duty referred to in paragraph (i); and
(iv) shall not, provided it acts in good faith and without
fraud, negligence or Default, incur any liability to the
relevant Approved Seller for so doing.
(i) Termination of Trust Back
A Trust Back shall terminate when the Trustee ceases to have any
right to, or interest in, the Trust Back Assets of that Trust
Back.
(j) Transfer of Trust Back
(i) Where the Trustee holds Trust Back Assets as trustee of a
Trust (the First Trust), and any of those Trust Back
Assets are transferred to another Trust (the Second
Trust), then automatically and without any further act or
instrument being done or brought into existence:
(A) the Trustee, as trustee of the Second Trust, will
hold all its right, title and interest in the Trust
Back Assets so transferred on bare trust for the
relevant Approved Seller in accordance with this
clause 12.4; and
(B) the Trustee, as trustee of the First Trust, will
cease to hold any interest in the Trust Back Assets
so transferred on the Trust Back in relation to the
First Trust.
(ii) The Manager will notify each Approved Seller of any
transfer by that Trust of any Receivable for which that
Approved Seller is the registered mortgagee, except where
the relevant transferee is the Trustee in its capacity as
trustee of another Trust.
(k) Additional financial accommodation
Notwithstanding any other provision of this Deed but subject to
clause 12.8, an Approved Seller may provide further financial
accommodation to an Obligor on the security of a Purchased
Receivable Security after that Purchased Receivable Security has
been assigned in equity to a Trust provided such action does not
adversely affect the current ratings (if any) of the relevant
Notes. The Definition of Other Secured Liability includes such
further financial accommodation (except to the extent that the
financial accommodation relates to a Receivable which is an Asset
of the relevant Trust at the time the financial accommodation was
provided).
(l) Caveat
(i) If the Trustee perfects title to any Receivable Security
or a Related Security under this clause 12:
(A) the Trustee shall notify the Security Trustee of
the Receivable Securities and/or Related Securities
which it is actually aware are affected by a Trust
Back; and
(B) neither the Trustee nor the Security Trustee shall
dispose of or create any interest in that
Receivable Security or Related Security unless the
person receiving that Receivable Security or
Related Security or that interest is first notified
of the relevant Trust Back.
(ii) If an Approved Seller reasonably believes that the Trustee
or the Security Trustee intends to dispose of or create an
interest in a Receivable Security or Related Security
which secures an Other Secured Liability of that Approved
Seller without notifying the relevant third party acquirer
of the relevant Trust Back under
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paragraph (i), that Approved Seller may lodge a caveat to
protect its interest in the relevant Trust Back Assets.
12.5 Conditions Precedent to Purchase
(a) General
The right of an Approved Seller (other than the Trustee in its
capacity as trustee of a Trust) to give a Sale Notice under
clause 12.3 shall be subject to the Trustee having received in
form and substance satisfactory to the Trustee on or before the
date such offer is given:
(i) (verification certificate) except where the Approved
Seller is the Trustee in its capacity as trustee of a
Trust, a certificate in relation to the Approved Seller
given by an Authorised Signatory of the Approved Seller
substantially in the form of Schedule 3 with the
attachments referred to and dated as at the date of the
Sale Notice;
ii) (Investment Direction) the Manager having delivered to the
Trustee as the case may be:
(A) a Note Issue Direction and executed Supplementary
Terms Notice under clause 6 in relation to the
issue of the relevant Notes; or
(B) a Warehouse Trust Direction and Supplementary Terms
Notice under clause 11 in relation to a drawing
under the relevant Warehouse Facility Agreement;
and
(iii) (other conditions) any other condition precedent specified
in the relevant Supplementary Terms Notice.
(b) Further conditions precedent
The rights of an Approved Seller (other than the Trustee in its
capacity as trustee of a Trust) to give a Sale Notice shall be
subject to the further conditions precedent that on the date of
giving a Sale Notice the following statements shall be true (and
the Approved Seller, other than the Trustee, shall, by virtue of
giving that Sale Notice be deemed to have certified that):
(i) (representations true) the representations and warranties
in clause 12.6 are true as of such day as though they had
been made at that date in respect of the facts and
circumstances then subsisting;
(ii) (no default) no Title Perfection Event has occurred and is
subsisting or would result from the acceptance of a Sale
Notice.
12.6 Representations and warranties of Approved Seller
Each Approved Seller (other than the Trustee in its capacity as trustee
of a Trust) makes the following representations and warranties.
(a) (i) (Status) It is a corporation validly existing under the
laws of the place of its incorporation specified in this
Deed or the relevant Seller Accession Certificate.
(ii) (Power) It has the power to enter into and perform its
obligations under the Transaction Documents to which it is
expressed to be a party and to carry out the transactions
contemplated by those documents.
(iii) (Corporate authorisations) It has taken on a timely basis
all necessary corporate action to authorise the entry
into, delivery and performance of the Transaction
Documents to which it is expressed to be a party and to
carry out the transactions contemplated by those
documents.
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(iv) (Documents binding) Each Transaction Document to which it
is expressed to be a party is its legal, valid and binding
obligation enforceable in accordance with its terms,
except to the extent it is affected by laws relating to
liquidation or doctrines of equity.
(v) (Transactions permitted) The execution and performance by
it of the Transaction Documents to which it is expressed
to be a party and each transaction contemplated under
those documents did not and will not (as applicable)
violate in any respect a provision of:
(A) a law or treaty or a judgment, ruling, order or
decree of a Government Agency binding on it
(including, without limitation, the Consumer Credit
Legislation);
(B) its constituent documents; or
(C) any other document or agreement which is binding on
it or its assets,
which is material in the context of performing its duties
under each Transaction Document to which it is a party;
(vi) (Authorisations) Each Authorisation which is required in
relation to:
(A) the execution, delivery and performance by it of
Transaction Documents to which it is expressed to
be a party and the transactions contemplated by
those documents;
(B) the legal validity and enforceability of
Transaction Documents to which it is expressed to
be a party; and
(C) the perfection of the interest of the Trustee in
the Purchased Receivables and related Receivable
Rights (not including such Authorisations, (if any)
pertaining solely to acts of the Trustee),
has been obtained or effected. Each is in full force and
effect. It has complied with each of them. It has paid all
applicable fees for each of them.
(vii) (Supplementary Terms Notice) Any representations and
warranties required to be made by the Approved Seller as
set out in the relevant Supplementary Terms Notice.
(b) Time at which representations and warranties made
The representations and warranties in clause 12.6(a) are deemed
to be made by an Approved Seller, by reference to the facts and
circumstances then existing in relation to the relevant Trust, on
each of the dates on which a Sale Notice is given and on the
Closing Date specified in that Sale Notice (unless otherwise
specified in the representation or warranty).
(c) Reliance on representations and Warranties
Each Approved Seller acknowledges that the Trustee may accept an
offer in accordance with clause 12.3 and, if an offer is
accepted, will pay the Purchase Price in reliance on the
representations and warranties in clause 12.6(a).
(d) Breach of representations and warranties
(i) (Duty to give notice) For the purposes of sub-paragraph
(ii) (and without affecting the Trustee's right to
damages), if an Approved Seller, the Manager or the
Trustee becomes actually aware that a representation or
warranty in relation to any Purchased Receivable or other
Receivable Rights (other than with respect to any
information with respect to the Receivables and related
Receivable Rights set forth in the relevant Information
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Memorandum or in any written information provided to the
potential investors with the consent of the Approved
Seller) is incorrect (including relating to whether a
Purchased Receivable is an Eligible Receivable) otherwise
than as a result of receiving notice from the other, it
must notify the other parties and the Designated Rating
Agency (if any), within 5 Business Days of it becoming so
aware.
(ii) (Offer and acceptance)
If:
(A) such a representation and warranty is incorrect;
(B) the Approved Seller gives or receives a notice
under paragraph (d)(i) not later than 10 Business
Days before 120 days after the relevant Closing
Date; and
(C) the Manager does not direct that the Trustee waive
that breach, or the Approved Seller does not remedy
the breach to the satisfaction of the Manager and
the Trustee, within the period of 10 Business Days
referred to above, or such longer time as the
Manager and the Trustee in their absolute
discretion permit,
then, without any action being required by either party:
(D) the Approved Seller shall be taken to have offered
to repurchase the relevant Purchased Receivables
and related Receivable Rights:
(1) where it gives a notice under subparagraph
(B) on the date which is the earlier of the
date specified in that notice and 10
Business Days after that notice is given; or
(2) otherwise, on the date which is 10 Business
Days after the notice it receives or should
have given (as the case may be) under
paragraph (d)(i),
(in either case, the Repurchase Date) for an amount
equal to its Unpaid Balance;
(E) the Trustee, by not waiving the breach or agreeing
to a longer time as referred to in paragraph (C)
above, shall be taken to have accepted that offer;
(F) the Trustee shall be entitled to:
(1) all Collections received in relation to the
relevant Purchased Receivable and the
related Receivable Rights on and from the
Closing Date to (but excluding) the
Repurchase Date; and
(2) the Unpaid Balance of the relevant Purchased
Receivable as at the Repurchase Date; and
(G) the Approved Seller shall pay to the Trustee the
Unpaid Balance as at the Repurchase Date of that
Receivable on or before the Repurchase Date,
together with any relevant break costs for which
the Approved Seller is liable in relation to the
prepayment of any Hedge Agreement for the relevant
Trust.
(iii) (Effect of repurchase) On payment of the amount under
paragraph (d)(ii)(G):
(A) the Trustee shall cease to have any interest in the
relevant Purchased Receivables and related
Receivable Rights; and
(B) the Approved Seller shall hold both the legal and
beneficial interest in those Receivables and
Receivable
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Rights and be entitled to all interest and fees
that accrue in respect of them from (and including)
the Repurchase Date; and
(C) no rights or interest under or in respect of those
Receivables or Receivable Rights shall form part of
the relevant Trust Back Assets.
(iv) (Other breach) Except where paragraph (ii) applies, the
Trustee's rights in relation to a breach of a
representation or warranty shall give rise only to a claim
for damages.
(v) (Limit on damages) Subject to clause 12.12, the maximum
amount that an Approved Seller may become obliged to pay
to the Trustee in relation to the breach of any
representation or warranty relating to a Purchased
Receivable, a Purchased Receivable Security or other
Receivable Rights is an amount equal to the Unpaid Balance
of that Receivable at the time the Approved Seller pays
the damages.
(vi) (Conditions precedent to damages) No Approved Seller shall
be obliged to pay any damages for a breach of
representation or warranty under any Transaction Document,
or any indemnity in relation to such breach, unless:
(A) the Trustee first establishes that there has been a
breach that has caused loss;
(B) the damages or indemnity claimed represent no more
than the loss incurred as a result of the breach;
(C) the Trustee first gives the Approved Seller a
written notice specifying:
(1) the quantum of the claim; and
(2) the basis of the claim.
(vii) (Payment) Where an Approved Seller is liable to pay
damages under this clause, it shall make such
payment within 14 Business Days of receipt by the Approved
Seller of a notice that complies with paragraph (vi).
12.7 Undertakings
(a) Approved Seller Undertakings
Each Approved Seller undertakes to the Trustee as follows in
relation to the relevant Trust and Receivables and related
Receivable Rights:
(i) (comply with Supplementary Terms Notice) it will comply
with its obligations under the relevant Supplementary
Terms Notice; and
(ii) (comply with other Transaction Documents) it will comply
with its obligations under any other Transaction Document
to which it is a party.
(b) Term of Undertaking
Each undertaking in this clause continues from the date of this
Deed until the date following the Sale Termination Date when the
Trustee ceases to have any interest in the Purchased Receivables
or related Receivable Rights or until the Trustee's interest in
the Purchased Receivables or related Receivable Rights is
perfected.
12.8 Priority
(a) Priority
Notwithstanding:
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(i) anything contained in any Purchased Receivables or the
related Receivable Rights (including any Related
Securities);
(ii) the terms of a Receivable or any Other Secured Liability;
(iii) the respective dates on which anything is done or omitted
to be done under or in relation to a Receivable Security
or a Related Security or the moneys secured by that
Receivable Security or that Related Security; or
(iv) any rule of law or equity to the contrary,
all moneys received by an Approved Seller, a Servicer, the
Manager or the Trustee or any receiver, receiver and manager or
attorney under or in relation to a Purchased Receivable, a
Purchased Receivable Security, any relevant Related Security or
any Other Secured Liability as the result of the enforcement of a
Purchased Receivable or a Purchased Receivable Security or such
Related Security shall be applied in the following order of
priority:
(A) First, subject to paragraph (b):
(1) all costs, charges and expenses of the
relevant mortgagee or any receiver, receiver
and manager or attorney incurred in or
incidental to the exercise or performance or
attempted exercise or performance of any
right, power or remedy in relation to the
Receivable Security or Related Security;
(2) all outgoings in relation to the Receivable
Security which the mortgagee or any
receiver, receiver and manager or attorney
thinks fit to pay; and
(3) the remuneration of any receiver or receiver
and manager.
(B) Second, in satisfaction of all amounts (actual and
contingent) owing under the Receivable or any other
Receivable Rights secured by that Purchased
Receivable Security or Related Security.
(C) Third, the Other Secured Liability for all moneys
now or in the future secured by the Purchased
Receivable Security or Related Security that relate
to that Other Secured Liability.
(b) Enforcement Expenses
(i) Where, and to the extent that, the costs, charges,
expenses, outgoings and remuneration referred to in
sub-paragraphs (A)(1)-(3) of paragraph (a) (Enforcement
Expenses) are covered by a Mortgage Insurance Policy, they
shall be treated as a first priority payment under
sub-paragraph (a)(A).
(ii) Where, and to the extent that, the Enforcement Expenses
are not covered by a Mortgage Insurance Policy, then
subject to the terms of the relevant Purchased Receivable,
Purchased Receivable Security or Related Security:
(A) if they arise because the enforcement arose from
default under an Other Secured Liability, they
shall be treated as a third priority payment under
sub-paragraph (a)(C); and
(B) otherwise, they shall be treated as a first
priority payment under sub-paragraph (a)(A).
(c) Continuing balance
This clause 12.8 applies to a continuing balance and any present
or future moneys secured by a Receivable Security or Related
Security
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notwithstanding any subsequent repayment, advance or provision of
accommodation or other increase or decrease in the amount
secured.
12.9 Title perfection event; termination; repurchase
(a) Title Perfection Event
Unless otherwise provided in the relevant Supplementary Terms
Notice, each of the following is a Title Perfection Event in
relation to a Portfolio of Receivables, the related Receivable
Rights and the relevant Approved Seller:
(i) (downgrade) where the Portfolio of Receivables is held
subject to a Rated Trust the Approved Seller ceases to
have a long term credit rating of at least:
(A) BBB from S&P (if S&P has rated that Trust or Notes
issued by the Trustee in its capacity as trustee of
that Trust);
(B) Baa2 from Moody's (if Moody's has rated that Trust
or Notes issued by the Trustee in its capacity as
trustee of that Trust);
(C) BBB from Fitch IBCA (if Fitch IBCA has rated that
Trust or Notes issued by the Trustee in its
capacity as trustee of that Trust);
(D) its equivalent from any other Designated Rating
Agency which has rated that Trust or Notes issued
by the Trustee in its capacity as trustee of that
Trust; or
(ii) (Insolvency Event) an Insolvency Event occurs with respect
to the Approved Seller.
(b) Remedies
(i) Following the occurrence of a Title Perfection Event, the
Trustee (at the direction of the Manager) and the Manager
must (with the assistance of the Servicer) take all
reasonable steps to perfect the Trustee's title in and to
the relevant Purchased Receivables and related Receivable
Rights, including:
(A) complete, execute and register on behalf of the
Approved Seller any relevant Transfer of Receivable
Security;
(B) give notice of any sale of the relevant Receivable
Rights under any relevant Future Agreement to the
relevant Obligors;
(C) give notice of the perfection of its title in the
Purchased Receivables and related Receivable Rights
to any other interested person, including the
insurers under the relevant Mortgage Insurance
Policies;
(D) do anything else reasonably necessary to perfect
its interest in the relevant Purchased Receivables
and related Receivable Rights, including
registering Transfers of Receivable Securities or
caveats; and/or
(E) require the then existing payment instructions of
each Obligor to be amended as so specified by the
Trustee and the Manager.
Except as otherwise provided in the relevant Servicing
Agreement, the Trustee shall not take any such action
until the occurrence of a Title Perfection Event and until
directed to do so by the Manager.
(ii) The relevant Approved Seller agrees that on being directed
to do so by the Trustee following a Title Perfection
Event, it will promptly (and in any event within 10
Business Days or such
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longer period as the Trustee permits) take all action to
perfect the Trustee's legal title to the Purchased
Receivables and the related Receivable Rights by:
(A) giving written notice of the Trustee's interest to
any Obligor;
(B) registering any relevant Transfer of Receivable
Security;
(C) taking any other action required or permitted by
law or required by the Trustee and permitted by law
to perfect such legal title; and
(D) delivering all Relevant Documents relating to the
relevant Portfolio of Receivables and Receivable
Rights to the Trustee.
(c) First Right of Refusal
(i) As soon as practical after the Termination Date of the
Trust, the Manager directs the Trustee to offer (by
written notice to the Approved Seller) irrevocably to
extinguish in favour of the Approved Seller, or if the
Trustee has perfected its title, to assign to the Approved
Seller, its entire right, title and interest in and to the
Purchased Receivables, and related Receivable Rights (if
any) in consideration of the payment to the Trustee by the
Approved Seller in relation to the Trust of:
(A) in the case of performing Purchased Receivables,
the Unpaid Balance of the relevant Purchased
Receivables; and
(B) in the case of non-performing Purchased
Receivables, their Fair Market Value.
In each case, the Servicer, in consultation with the
Trustee, is to determine whether a Receivable is
performing or non-performing.
(ii) The Approved Seller cannot accept the offer if the Fair
Market Value of relevant Purchased Receivables is less
than the Unpaid Balance without the approval of an
Extraordinary Resolution. Any purported acceptance without
that approval will be ineffective.
(iii) During the 180 day period after the Termination Date of a
Trust, the Trustee must not, and the Manager must not
direct the Trustee, sell any Receivables and the related
Receivable Rights for an amount less than:
(A) in the case of performing Receivables, their Unpaid
Balance; or
(B) in the case of non-performing Receivables, their
Fair Market Value.
(iv) The Approved Seller may accept or reject that offer in its
discretion.
(v) The Trustee will not sell or deal with the relevant
Purchased Receivables and related Receivable Rights except
in accordance with paragraph (c)(i) unless the Approved
Seller has failed to accept the offer referred to in
paragraph (c)(i) within 180 days after the occurrence of
the Termination Date of the Trust by paying to the
Trustee, within 180 days after the occurrence of the
Termination Date of the Trust, the purchase price referred
to in paragraph (c)(i) for all of those Purchased
Receivables and related Receivable Rights.
(d) Clean Up Offer
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(i) A Supplementary Terms Notice for a Trust may provide that
the Manager may, in certain circumstances, direct a
Warehouse Trust to purchase Receivables or Receivable
Securities held by another Trust at a particular time. The
parties will comply with that Supplementary Terms Notice.
(ii) Unless otherwise provided in that Supplementary Terms
Notice, the consideration for the purchase in
sub-paragraph (i) will be:
(A) in the case of performing Purchased Receivables,
the Unpaid Balance of the relevant Purchased
Receivables; and
(B) in the case of non-performing Receivables, their
Fair Market Value.
In each case, the Servicer is to determine whether a
Receivable is performing or non-performing.
(e) Costs of Repurchase; Indemnity
(i) The Approved Seller shall pay all costs and expenses
(including stamp duty) relating to the repurchase or
extinguishment of its relevant Purchased Receivables and
related Receivable Rights under clauses 12.6(d) and
12.9(c).
(ii) Without limiting any indemnity to which the Trustee is
otherwise entitled, each Approved Seller unconditionally
and irrevocably indemnifies the Trustee against any claim,
liability, loss, cost, damage or expense suffered or
incurred by the Trustee as a result of a Title Perfection
Event relating to that Approved Seller. That Approved
Seller must pay or reimburse the Trustee on demand for all
amounts (including all reasonable expenses, including but
not limited to stamp duties and taxes), payable in
connection with such indemnity.
12.10 Subsequent adjustment
(a) Where Receivables in a Portfolio of Receivables have been
acquired from an Approved Seller:
(i) (interest) where so specified in the relevant
Supplementary Terms Notice or Sale Notice, the Manager
shall direct the Trustee after a Note Issue Date for a
Trust to debit any interest or fees received by the
Trustee in respect of a Receivable referred to in the
corresponding Note Issue Direction, with an amount that
represents accrued but unpaid interest on the Receivable
up to the date specified for that purpose in the
Supplementary Terms Notice, and to credit that amount to
the relevant Approved Seller;
(ii) (repaid principal) where so specified in the relevant
Supplementary Terms Notice or Sale Notice, after the Note
Issue Date the relevant Approved Seller will as soon as
possible (but by close of business on the first
Determination Date) pay to the Trustee, as an adjustment
to the amount paid by the Trustee under clause 6.7(e), an
amount equal to the amount of any principal received by
the Approved Seller on or after the date specified for
that purpose in the Sale Notice in respect of any
Receivables referred to in the corresponding Note Issue
Direction;
(b) (other costs) subject to clause 12.10(a), the Manager may in its
absolute discretion direct the Trustee on or at any time after a
Note Issue Date for a Trust to debit or credit the corresponding
Trust with such other amounts that the Manager believes are
appropriate so that the Approved Seller has the benefit of any
receipts, and bears the cost of any outgoings, in respect of each
Receivable referred to in the corresponding Note Issue
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Direction (and any corresponding Receivables, Receivable
Security, Related Securities and Support Facilities) up to (but
not including) the Note Issue Date and so that the relevant Trust
has the benefit of such receipts, and bears such costs, from (and
including) the Note Issue Date; and
(c) (Trustee to act in accordance with direction) the Trustee or the
Approved Seller (as the case may be) shall act in accordance
with, and may rely on, a direction of the Manager in accordance
with this clause 12.10.
12.11 Substitution of security
If:
(a) an Obligor under a Purchased Receivable is, in accordance with
the relevant Approved Seller's ordinary course of business,
entitled to replace the related Receivable Security, or a
Security Interest which is a Related Security, with another
security securing the same Receivable;
(b) the representations and warranties of the Approved Seller in
clause 12.6(a) and in the relevant Supplementary Terms Notice
would be true and correct in relation to the Receivable and the
new Security Interest at the time of substitution as if it was
specified as a Purchased Receivable in the Sale Notice; and
(c) without limitation, in relation to Land, the new security would
be subject to a Mortgage Insurance Policy under which the Trustee
would be the insured;
then:
(i) the Approved Seller may discharge the related Receivable
Security, or the relevant Related Security, on the giving
of the new security;
(ii) the new security shall be taken to be a Purchased
Receivable Security or a Related Security in relation to
the relevant Trust, as the case may be, for the purposes
of each Transaction Document and it and the related
Receivable Rights shall be Assets of the relevant Trust;
and
(iii) the Approved Seller shall do anything else reasonably
necessary to assure to the Trustee its interest in that
new security.
12.12 Indemnification
(i) Without limiting any other rights which the Trustee may
have under any Transaction Document or under applicable
law, each Approved Seller agrees to indemnify the Trustee
from and against any and all damages, losses, claims,
liabilities and related costs and expenses including legal
costs and expenses on a full indemnity basis the Trustee
may sustain or incur as a direct or indirect consequence
of:
(A) the breach of any representation or warranty or
undertaking made by that Approved Seller under or
in connection with any Transaction Document, or any
other information or report delivered by that
Approved Seller under any Transaction Document,
being false or incorrect in any respect when made
or deemed made or delivered or such information or
report being misleading or deceptive;
(B) the failure by that Approved Seller (whether before
or after the relevant Closing Date) to comply with
any applicable law, rule or regulation including,
without limitation, the Consumer Credit Legislation
with respect to any Receivable or Receivable
Security or Receivable Right, including the
nonconformity of any Receivable or Receivable
Security or Receivable Right with any such
applicable law, rule or regulation;
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(C) any dispute, claim or defence of the Obligor to the
payment of any Purchased Receivable or Purchased
Receivable Security or Receivable Rights which
results from a breach by the Approved Seller under
any Transaction Document;
(D) a material breach by that Approved Seller of any of
its obligations or duties under or in connection
with any Transaction Document; and
(E) any offset of the Obligor to the payment of that
Purchased Receivable or Purchased Receivable
Security or Receivable Rights, the entitlement to
which arises:
(1) Purchased Receivables or Purchased
Receivable Security or Receivable Rights to
the Trustee; or
(2) after that date, if the offset is exercised
by the Obligor against the Approved Seller
with respect to rights and obligations as
between the Obligor and the Approved Seller.
To the extent that the matters referred to in paragraph
(i) are covered by clause 12.6(d), clause 12.6(d) shall
apply. If the Trustee recovers from an Obligor any amount
for which it has been indemnified under sub-paragraphs (C)
or (E), the Trustee shall promptly pay to the Approved
Seller an amount equal to that recovery.
(ii) Except where clause 12.6(d) applies, an Approved Seller
shall not be obliged to pay any indemnity for a breach of
representation or warranty under any Transaction Document,
unless:
(A) the Trustee first establishes that there has been a
breach that has caused loss;
(B) the indemnity claimed represents no more than the
loss incurred as a result of the breach; and
(C) the Trustee first gives the Approved Seller a
written notice specifying:
(1) the quantum of the claim; and
(2) the basis ofthe claim.
(iii) (Payment) Where an Approved Seller is liable to pay an
amount under paragraph (i), it shall make such payment
within 5 Business Days of receipt by the Approved Seller
of a notice that complies with paragraph (ii). All other
amounts due from the Approved Seller under this clause
shall be paid promptly within 5 Business Days after the
Approved Seller has been notified thereof.
12.13 Power of Attorney
(a) The Trustee shall ensure that each power of attorney given by an
Approved Seller to the Trustee under or in relation to this Deed
shall be exercised only strictly in accordance with its terms.
(b) The Trustee shall:
(i) register each such power of attorney with the land titles
office of each relevant jurisdiction; and
(ii) keep each such power of attorney in a secure place.
13. Acquisition from warehouse trust by another trust
--------------------------------------------------------------------------------
13.1 Direction
(a) Where:
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(i) a Note Issue Direction directs that the Trustee issues
Notes; or
(ii) a Warehouse Trust Direction directs that the Trustee draws
any amount under the relevant Warehouse Facility
Agreement,
to fund the acquisition of Receivables by a Trust from a
Warehouse Trust, and the Trustee implements that direction, the
Trustee shall use the proceeds of the relevant issue of Notes or
drawing under the Warehouse Facility Agreement (as the case may
be) for the purpose of that acquisition.
(b) The Trustee has power, as the trustee of a Warehouse Trust, to
dispose of Receivables to another Trust in accordance with
Supplementary Terms Notices relating to that Warehouse Trust and
that other Trust, and subject to other relevant Transaction
Documents.
13.2 Implementation of acquisition
An acquisition of Receivables contemplated by clause 13.1 shall take
effect in accordance with clause 11.7.
13.3 Survival of rights and remedies
Where there exists any right or obligation of the Trustee in relation to
Receivables to be acquired from a Warehouse Trust, including any:
(a) Trust Back in relation to the Receivables;
(b) Approved Seller repurchase obligation under clause 12.6(d);
(c) Approved Seller representations or undertakings under clause
12.6(a); or
(d) limitation as to priority of payments on enforcement of the
Receivables,
the Trustee (in its capacity as Trustee of the Trust acquiring the
Receivables (the New Trust)), will acquire those Receivables with the
benefit of those rights and subject to those obligations.
Where any rights or obligations of the Trustee in relation to the
Receivables cannot be transferred to the Trustee in its capacity as
trustee of the New Trust, clauses 11.7(d), 11.7(e) and 11.7(g) will
apply.
13.4 Acknowledgement by Approved Seller
Each Approved Seller which disposes of Receivables to a Warehouse Trust
acknowledges and agrees that those Receivables acquired from it by the
Trustee in its capacity as trustee of a Warehouse Trust may be disposed
of by the Trustee to another Trust.
PART F. MANAGER
14. The manager
--------------------------------------------------------------------------------
14.1 Appointment of Manager
(a) The Manager is appointed, and agrees to act, as the manager of
the Trusts on and subject to the terms of this Deed and any
relevant Supplementary Terms Notice.
(b) Except as provided in clause 14.17 and clause 16.3:
(i) the Manager will be an independent contractor and not an
agent of the Trustee;
(ii) the Manager will not represent or hold itself out to any
person to be an agent of the Trustee; and
(iii) the Trustee will not be responsible for the acts,
omissions or defaults of the Manager.
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14.2 Complete powers of management
Subject to the Transaction Documents, the Manager shall carry out and
perform the duties and obligations on its part contained in this Deed
and shall have full and complete powers of management of the Trusts,
including:
(a) (Assets and liabilities) the administration and servicing of the
Assets (which are not serviced by a Servicer), Borrowings and
other liabilities of the Trusts (including concluding the
commercial terms of the Borrowings and the Hedge Agreements to be
entered into by the Trustee); and
(b) (day to day operation) the conduct of the day to day operation
of the Trusts.
14.3 Note issuance
The Manager has the following additional express powers which may be
exercised only in accordance with the relevant Transaction Documents:
(a) to negotiate with any Lead Manager and any Note Manager in
relation to the issue of relevant Notes;
(b) to invite bids from any Lead Manager or Note Manager for relevant
Notes on behalf of the Trustee; and
(c) to accept any such bid on behalf of the Trustee.
14.4 Manager to act in interests of Beneficiary and Noteholders
The Manager shall, in respect of each Trust, act in the interests of the
Beneficiary and the Noteholders in relation to that Trust on, and
subject to, the terms and conditions of this Deed. In the event of any
conflict of interests, the interests of the Noteholders will prevail.
14.5 Manager to assist Trustee
The Manager shall take such action as is consistent with its powers
under this Deed to assist the Trustee to perform its obligations under
this Deed.
14.6 Manager's power to delegate
The Manager may in carrying out and performing its duties and
obligations contained in this Deed:
(a) (delegate to employees) delegate to any of the Manager's officers
and employees all acts, matters and things (whether or not
requiring or involving the Manager's judgment or discretion);
(b) (appoint attorneys and agents) appoint any person to be its
attorney, agent, delegate or sub-contractor for such purposes and
with such powers, authorities and discretions (not exceeding
those vested in the Manager) as the Manager thinks fit including:
(i) power for the attorney, agent, delegate or sub-contractor
to sub-delegate any such powers, authorities or
discretions;
(ii) power to authorise the issue in the name of the Manager of
documents bearing facsimile signatures of the Manager or
of the attorney, agent, delegate or sub-contractor (either
with or without proper manuscript signatures of its
officers); and
(iii) such provisions for the protection and convenience of
those dealing with any such attorney, agent, delegate,
sub-contractor or sub-delegate as they may think fit; and
(c) (remove agents and delegates) supersede or suspend any such
agent, delegate, sub-contractor or sub-delegate for such cause or
reason as the Manager may in its sole discretion think sufficient
with or without assigning any cause or reason and either
absolutely or for such time as it may think proper,
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but despite any delegation or appointment under the above paragraphs of
this clause, the Manager shall remain liable for the acts or omissions
of any such officer, employee, attorney, delegate, agent, sub-delegate,
sub-contractor or sub-agent and shall be solely responsible for the fees
and expenses of such officer, employee, attorney, agent, delegate,
sub-delegate, sub-contractor or sub-agent.
14.7 Manager's power to appoint advisers
The Manager may appoint and engage any valuers, solicitors, barristers,
accountants, surveyors, property managers, real estate agents,
contractors, qualified advisers and such other persons as may be
necessary, usual or desirable for the purpose of enabling the Manager to
properly exercise its powers and perform its obligations under this Deed
and all proper fees, charges and moneys payable to any such persons and
all disbursements, expenses, duties and outgoings properly chargeable to
them shall constitute Expenses of the Trust to which they relate.
14.8 Manager's books available to Trustee
The Manager will, in relation to each Trust:
(a) (keep proper records) keep proper books and records for the Trust
separate from any other books or records;
(i) (produce books) during normal business hours on reasonable
notice make available to the Trustee or the Auditor for
inspection all of the books and records of the Trust
maintained by the Manager; and
(ii) (provide information) give to the Trustee or the Auditor
such written or oral information as the Trustee or the
Auditor reasonably requires with respect to all matters in
possession of the Manager relating to the Trust.
14.9 Manager will account to Trustee for moneys received
(a) The Manager will pay to the Trustee or to an account of the
Trustee, within one Business Day of receipt, all moneys coming
into its hands belonging to the Trusts or payable to the Trusts.
(b) The Manager will keep any Assets which it may come to hold from
time to time separate from any other property belonging to or
entrusted to or held by the Manager.
14.10 Manager to report Pool Data on Reuters
The Manager may, if so specified in a Supplementary Terms Notice for a
Trust, prepare and arrange for the publication by Reuters (or another
customary electronic medium) of summary pool performance data for that
Trust in a format similar to that used by other mortgage-backed
securities or asset-backed securities (as the case may be) in the
relevant market for the Notes.
14.11 Manager to prepare notices etc.
The Manager shall prepare or cause to be prepared all notices and
statements which the Trustee is required to serve or give under any of
the provisions of this Deed or any other Transaction Document and shall
produce such notices and statements (as the case may be) to the Trustee
at least one Business Day (or any other period as the Trustee and the
Manager agree) before the day on which the notice or statement is
required to be served or given.
14.12 Prior approval of circulars
(a) Except as otherwise agreed by the Trustee and the Manager, where
the Manager has prepared any:
(i) Information Memorandum; or
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(ii) circular, offer letter, notice, report or the like to
Noteholders, or prospective Noteholders (a Publication)
for a Trust,
the Manager shall submit the Information Memorandum or
Publication to the Trustee for the Trustee's approval (in the
case of any document required by law to be the responsibility of
the Trustee) or information (in any other case) prior to the
issue of the document (unless otherwise waived by the Trustee).
(b) Where the Manager has prepared any Information Memorandum or
Publication which names, or purports to be issued by or on behalf
of, a Servicer or an Approved Seller, the Manager shall submit
the Information Memorandum or Publication to the Servicer or
Approved Seller (as the case may be) for its consent (not to be
unreasonably withheld) prior to the issue of the document (unless
the Servicer or Approved Seller otherwise agrees).
14.13 Taxes
The Manager directs the Trustee to make all payments (as and when they
fall due) out of a Trust to any duly empowered Government Agency of any
Australian Jurisdiction or any other jurisdiction for Taxes levied on
that Trust or on the Trustee in its capacity as trustee of that Trust.
14.14 Acquisition or disposal of Assets
Subject to this Deed, the Manager shall ensure that all steps which it
thinks are desirable are taken in connection with the investigation or
negotiation for the acquisition or disposal of Assets.
14.15 Monitor support facilities
The Manager shall monitor all Support Facilities in respect of a Trust
and shall properly perform the functions which are necessary for it to
perform under those Support Facilities.
14.16 Make calculations, co-ordinate and provide reports
The Manager shall:
(a) calculate all payments due on any relevant Payment Date;
(b) co-ordinate the issue of relevant Notes and the raising of funds
from those issues, or from any Support Facility; and
(c) as and when required by any Supplementary Terms Notice or other
Transaction Document prepare and distribute the Manager's Report
for each Trust to the Trustee and each Rating Agency,
and provide all directions to the Trustee as may be required for the
Trustee to comply with its obligations under the Transaction Documents.
14.17 Manager cannot bind Trustee unless authorised
The Manager acknowledges that in exercising its powers, authorities and
discretions vested in it and carrying out and performing its duties and
obligations in relation to any Trust or any Asset, whether under any
Transaction Document or any other deed, agreement or other arrangement,
neither it nor its delegate has any power to bind the Trustee, otherwise
than as expressly provided in any Transaction Document or such other
deed, agreement or other arrangement.
14.18 Manager must perform obligations under other Transaction Documents
The Manager shall properly perform the functions which are necessary for
it to perform under the other Transaction Documents to which it is a
party.
14.19 Manager to provide personnel and systems
The Manager shall at its own expense, procure sufficient trained and
experienced personnel, equipment and systems to enable it to carry out
its obligations under
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this Deed and shall at all times maintain complete and accurate records,
books of account and an adequate system of audit and internal controls
so as to perform its obligations under this Deed.
14.20 Additional covenants by Manager
The Manager shall:
(a) (act honestly) act honestly and in good faith and comply with all
relevant material laws in the performance of its duties and in
the exercise of its discretions under this Deed;
(b) (prudently) manage each Trust exercising the degree of diligence
and care reasonably expected of an appropriately qualified
manager acting prudently, having regard to the interests of the
Beneficiaries, the Noteholders and the other Creditors in
accordance with its obligations under the relevant Transaction
Documents;
(c) (conduct its business properly) use reasonable endeavours to
carry on and conduct its business in so far as it relates to this
Deed in a proper and efficient manner;
(d) (do all things necessary to perform obligations) do everything
and take all such actions which are necessary (including
obtaining all such Authorisations as are appropriate for the
Trust, but not any Authorisation in relation to the Trustee in
its capacity as trustee of the Trust which the Trustee itself is
required or solely capable of obtaining) to ensure that it and
the Trustee are able to exercise all their respective powers and
remedies and perform all their respective obligations under this
Deed, the Transaction Documents and all other deeds, agreements
and other arrangements entered into by the Manager or the
Trustee, as the case may be, under this Deed or any other
Transaction Document;
(e) (details to Trustee) use all reasonable endeavours to make
available or to ensure that there is made available to the
Trustee the details the Trustee reasonably requires with respect
to all matters relating to the Trust;
(f) notify defaults) promptly, on an officer of the Manager who has
responsibility for the transactions contemplated by the
Transaction Documents for a Trust becoming actually aware, notify
the Trustee and each applicable Designated Rating Agency of any
Manager's Default, Title Perfection Event, Trustee's Default,
Servicer Transfer Event or any Material Adverse Effect relating
to that Trust and at the same time or as soon as possible
afterwards provide details of that default or effect;
(g) (not merge) not merge or consolidate into another entity unless
the surviving entity assumes the obligations of the Manager under
the Transaction Documents;
(h) (Support Facilities) perform all obligations within its power to
ensure that all Support Facilities for each Trust are maintained
and available to the Trustee; and
(i) (Ratings) not take any action or omit to take any action knowing
that it could have an adverse affect on the ratings (if any) of
the Notes.
14.21 Benefit of Managers' Covenants
The covenants, undertakings and acknowledgements of the Manager in this
clause 14 are given or made for the benefit of the Trustee, each
Servicer, the Beneficiaries, the Noteholders and other Creditors jointly
and severally.
15. Manager's fee
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In consideration of the Manager performing its function and duties under
this Deed, it shall be entitled to be paid from each Trust a fee in the
amount and at the times set out in the corresponding Supplementary Terms
Notice.
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16. Retirement, removal and replacement of manager
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16.1 Retirement on Manager's Default
The Manager shall retire from the management of the Trusts if and when
directed to do so by the Trustee in writing (which direction must be
copied to each Servicer and, if any of the Trusts are Rated Trusts, the
Designated Rating Agency). A direction may only be given following a
Manager's Default which may include any one or more of the following
events:
(a) (Collections and distributions) The Manager fails to make any
payment required from it within the time period specified in a
Transaction Document, and that failure is not remedied within 10
Business Days of receipt from the Trustee of notice of that
failure.
(b) (Insolvency Event) An Insolvency Event has occurred and is
continuing in relation to the Manager.
(c) (Breach by the Manager)
(i) The Manager breaches any obligation or duty imposed on the
Manager under this Deed, any other Transaction Document or
any other deed, agreement or arrangement entered into by
the Manager under this Deed in relation to the Trust;
(ii) the Trustee, acting on appropriate expert advice,
reasonably believes that breach has a Material Adverse
Effect; and
(iii) the Manager fails after 30 days' notice from the Trustee
(which notice specifies the breach with reasonable
particularity and requires rectification) to remedy that
breach, if capable of remedy, or pay compensation to the
Trustee for its loss from such breach,
except, in each case, where the Manager has relied on information
provided, or other action taken, by a Servicer or has not
received information from the Servicer which the Manager requires
to comply with the obligation or duty and the Servicer's action
or inaction as the case may be, is not due to the Manager's
fraud, negligence or wilful default.
(d) (Misrepresentation) A representation, warranty or statement by or
on behalf of the Manager in a Transaction Document or a document
provided under or in connection with a Transaction Document, is
not true in a material respect or is misleading or deceptive when
repeated and, if capable of remedy, is not remedied to the
Trustee's reasonable satisfaction within 90 days after notice
from the Trustee, acting on appropriate expert advice, where (as
determined by the Trustee) it has a Material Adverse Effect.
The costs of removal of a Manager in default shall be borne by the
Manager. The Manager indemnifies the Trustee and each Trust for those
costs.
16.2 Trustee may remove recalcitrant Manager
In default of the Manager retiring in accordance with clause 16.1 within
30 days of being directed by the Trustee in writing so to do, the
Trustee must by deed poll executed by the Trustee remove the Manager
from the management of the Trusts except that:
(a) until a replacement Manager is appointed under clause 16.3, the
Manager must continue as Manager; and
(b) if a replacement Manager is not appointed under clause 16.3
within 120 days of the Trustee electing to
appoint a new Manager, the Trustee will be the new Manager.
16.3 Trustee appoints replacement Manager
On the retirement or removal of the Manager, the Trustee shall be
entitled to appoint some other corporation to be the Manager of the
Trusts provided that
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appointment will not have an adverse affect on the ratings (if any) of
the Notes. Until that appointment is complete the Trustee may and, if
required under clause 16.2(b) shall, subject to this Deed and to any
approval required by law, act as Manager and will be entitled to the
Manager's Fee for the period it acts as Manager. A new Manager shall not
be appointed in relation to a Rated Trust without prior notice being
given by the Trustee to the Designated Rating Agency.
16.4 Voluntary retirement
The Manager may, subject to clause 16.5, resign on giving to the Trustee
(with a copy to the Designated Rating Agency) and the Note Trustee not
less than 120 days' notice in writing (or such other period as the
Manager and the Trustee may agree) of its intention to do so.
16.5 No resignation by Manager unless successor appointed
The Manager must not, subject to clause 16.6, resign under clause 16.4
unless:
(a) either:
(i) it procures that, before the date on which that
termination becomes effective, another person, reasonably
acceptable to the Trustee assumes all of the obligations
of the Manager under the Transaction Documents as its
successor, and executes such documents as the Trustee
requires to become bound by this Deed and the relevant
Supplementary Terms Notices, with effect from that date,
as if it had originally been a party to this Deed and the
relevant Supplementary Terms Notice as the Manager; or
(ii) the Trustee elects not to appoint a successor Manager, and
to perform itself the obligations and functions which the
Transaction Documents contemplate being performed by the
Manager;
(b) the appointment of the successor Manager, or (as the case may be)
the election of the Trustee, will not materially prejudice the
interests of Noteholders; and
(c) in the case of the appointment of a successor Manager pursuant to
paragraph (a), the appointment is approved by, and reasonably
acceptable to, the Trustee.
16.6 Trustee to act as Manager if no successor appointed
If at the end of the period of notice specified in a notice given under
clause 16.4, no successor Manager has been appointed, as contemplated by
clause 16.5(a)(i):
(a) the Trustee must itself perform the obligations and functions
which this Deed contemplates being performed by the Manager and
shall receive the Manager's fee, until a successor Manager is
appointed in accordance with this Deed; and
(b) the resignation of the Manager will become effective.
16.7 Release of outgoing Manager
On retirement or removal and provided there has been payment to the
Trustee of all sums due to it by the outgoing Manager under this Deed at
that date, the outgoing Manager shall be released from all further
obligations under this Deed but no release under this clause 16.7 shall
extend to any existing or antecedent breach of contract on the part of
the outgoing Manager or its officers, employees, attorneys, agents or
delegates, sub-delegates, or sub-agents.
16.8 New Manager to execute deed
(a) A new Manager shall execute a deed in such form as the Trustee
may require under which the new Manager undertakes to the
Trustee, the Beneficiaries, the Noteholders and the other
Creditors jointly and
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severally to be bound by all the covenants on the part of the
Manager under the Transaction Documents from the date of
execution of the new deed on the same terms contained in the
Transaction Documents.
(b) On and from the date of execution of the new deed, the new
Manager shall and may afterwards exercise all the powers, enjoy
all the rights and shall be subject to all the duties and
obligations of the Manager under the Transaction Documents as
fully as though the new Manager had been originally named as a
party to the Transaction Documents.
16.9 Settlement and discharge
Subject to clause 16.7, the Trustee shall settle with the outgoing
Manager the amount of any sums payable by the outgoing Manager to the
Trustee or by the Trustee to the outgoing Manager and shall give to or
accept from the outgoing Manager a discharge in respect of those sums
which shall be conclusive and binding as between the Trustee, the
outgoing Manager, the new Manager, the Beneficiaries, the Noteholders
and the other Creditors.
16.10 Delivery of books, documents, etc
(a) On the retirement or removal of the Manager in accordance with
the provisions of this clause 16 the outgoing Manager shall
immediately deliver to the new Manager appointed in respect of
any Trust (or the Trustee if it is acting as Manager) the Data
Base and all other books, documents, records and property
relating to the Trusts and any other information relating to a
Trust or the outgoing Manager as the Trustee or new Manager may
reasonably request. The reasonable costs and expenses of this
incurred by the new Manager (but not the outgoing Manager) are to
be paid out of the relevant Trust.
(b) The outgoing Manager shall be entitled to take, and retain as its
own property, copies of such books, documents and records. Each
of the Trustee and the new Manager shall produce the originals of
such books, documents and records in its possession on the giving
of reasonable written notice by the outgoing Manager.
16.11 Notice to Noteholders of new Manager
As soon as practicable after the appointment of a new Manager under this
clause 17, the new Manager shall notify the Noteholders of its
appointment.
16.12 Waiver of Manager's Defaults
Subject to first giving notice to the Designated Rating Agency, the
Trustee may waive any Manager's Default or any other default by the
Manager under a Transaction Document, provided such waiver does not have
an adverse effect on the ratings (if any) of the Notes. On any such
waiver, the default shall cease to exist, and that Manager's Default
shall be deemed to have been remedied for every purpose of this Deed. No
such waiver shall extend to any subsequent or other default or impair
any right consequent on a Manager's Default except to the extent
expressly waived.
PART G. TRUSTEE
17. Trustee's powers
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17.1 General power
Subject to this Deed and the other Transaction Documents but in addition
to any rights and powers of trustees arising under any law (which are
hereby expressed to apply to the Trustee), the Trustee shall have all
the rights, powers and discretions over and in respect of the Assets of
the Trusts which it could exercise if it were the absolute and
beneficial owner of such Assets, provided that it will take no action
without a direction from the Manager, or omit to take any
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action without a direction from the Manager, that could reasonably be
expected to adversely affect the ratings (if any) of the Notes.
17.2 Specific powers
Without in any way affecting the generality of the above or the other
provisions of this Deed, but subject to the Trustee's obligations under
this Deed and the other Transaction Documents, the Trustee shall have
the following powers (which shall be construed as separate and
independent powers of the Trustee):
(a) (enter into Receivable Securities) to enter into, provide,
purchase, acquire, dispose of and sell:
(i) Loans on the security of Mortgages and Related Securities;
and
(ii) other Receivables (where relevant, on the security of
Receivable Securities and Related Securities);
(b) (deal in other Authorised Investments) to make, purchase, acquire
or dispose of any other Authorised Investment for cash or on
terms;
(c) (fees and Expenses) to pay all fees payable under this Deed and
the Transaction Documents and all Expenses which were properly
incurred in respect of a Trust;
(d) (advisers) to engage, and to incur reasonable expenses in
relation to, any valuers, solicitors, barristers, accountants,
surveyors, property advisers, real estate agents, contractors,
qualified advisers, and such other persons as may be necessary,
usual or desirable for the purpose of enabling the Trustee to be
fully and properly advised and informed in order that it may
properly exercise its powers and perform its obligations under
this Deed;
(e) (execute proxies, etc) to execute all such proxies and other
instruments as may be necessary or desirable to enable the
Trustee, or any officer, delegate or agent of the Trustee
(appointed in accordance with this Deed) to exercise any power,
discretion or right of the Trustee as the Trustee shall in its
absolute discretion see fit;
(f) (dealings over mortgaged Land) to consent to any mortgage, lease
and/or sub-lease of or dealing with the property (including Land)
over which a Receivable Security is held provided that, in the
case of any such mortgage, the Receivable Security held by the
relevant Trust will rank in priority to any dealing for which
consent is sought;
(g) (discharge Receivables) subject to this Deed and the other
relevant Transaction Documents, to grant any form of discharge or
release or partial discharge or release of any Receivable,
Receivable Security or Related Security where to do so is in the
opinion of the Trustee not prejudicial to the relevant Trust
(and, without limitation, will not have the effect of removing a
Receivable from the coverage of any Support Facility prior to the
receipt of all moneys owing or which may become owing under the
Receivable) and to execute all deeds or other documents as shall
be necessary or incidental to such a discharge or release and to
deal with certificates of title or other indicia of title as the
Trustee sees fit;
(h) (powers of holder of Receivable Security) subject to this Deed
and the other relevant Transaction Documents, to exercise any
power of sale arising on default under any Receivable, Receivable
Security or Related Securities or any other right or remedy
accruing in respect of any Trust in relation to any Asset,
Support Facility or other Transaction Document and to exercise
all customary powers, authorities and discretions following on
the exercise of that power, right or remedy where the Trustee
considers it is in the interests of the relevant Trust;
(i) (proceedings) to institute, prosecute, defend, settle and
compromise legal or administrative proceedings of any nature and
generally to enforce and pursue its rights under and in respect
of Assets, a Trust or a Transaction Document;
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(j) (waivers) wherever it thinks it expedient or desirable in the
interests of any Trust, to give any waiver, time or indulgence to
any person on such terms as it may in its discretion determine;
(k) (Euroclear and Cedel) to lodge Notes, or arrange for Notes to be
lodged, with Euroclear or Cedel, or a depositary for Euroclear
and/or Cedel;
(l) (Notes) subject to this Deed and the other relevant Transaction
Documents, to borrow and raise moneys by the issue of Notes as
provided in this Deed;
(m) (other borrowings) to borrow, raise moneys or procure financial
accommodation where the Trustee considers the same to be in the
interests of the relevant Trust on such terms and conditions as
the Manager thinks fit and that are acceptable to the Trustee
(acting reasonably);
(n) (Transaction Documents) to enter into and perform its obligations
under any Transaction Document containing such terms and
conditions as the Manager thinks fit and that are acceptable to
the Trustee (acting reasonably);
(o) (insurance) insure any Asset for amounts, on conditions and for
types of insurance determined to be necessary by the Manager;
(p) (attend meetings) attend and vote at meetings in accordance with
the written directions of the Manager;
(q) (indemnity) give an indemnity out of a Trust in any terms
whatsoever to such persons and against such expenses and damages
as the Manager reasonably considers necessary or desirable and
that are acceptable to the Trustee;
(r) (undertakings in Transaction Documents) without limiting the
above provisions of this clause 17.2, give any representation,
warranty, indemnity or other undertaking required in respect of a
Support Facility, or other Transaction Documents, the sale or
issue of Notes or other transaction in any way relating to a
Trust as the Manager thinks fit and that are acceptable to the
Trustee (acting reasonably, subject to the following) even if the
subject matter of such representation, warranty, indemnity or
other undertaking may refer to the Trustee in its personal
capacity or otherwise to the Trustee's personal affairs provided
that any such representation, warranty, indemnity or undertaking
referring to the Trustee in its personal capacity or to its
personal affairs must be acceptable to the Trustee in its
absolute discretion;
(s) (custody) appoint the Custodian in respect of a Trust to
undertake custodial duties in accordance with the relevant
Custodian Agreement;
(t) (transfer Assets) transfer any of the Assets of a Trust to
another Trust in accordance with the relevant Transaction
Documents;
(u) (payment direction) where a person owes an amount to the Trustee
in its capacity as trustee of any Trust, direct that debtor to
make that payment to another person on behalf of the Trustee,
including directing payments due in respect of Receivables to be
made to the Servicer;
(v) (currency conversion) convert currencies on such terms and
conditions as the Manager thinks fit and that are acceptable to
the Trustee acting reasonably;
(w) (stock exchange) list and maintain the listing of the Notes on
any stock exchange;
(x) (Note Trustee) appoint a Note Trustee in respect of a relevant
Trust;
(y) (Paying Agents) appoint Paying Agents in respect of a relevant
Trust; and
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(z) (incidental powers) with the written agreement of the Manager
(that agreement not to be unreasonablywithheld), to do all such
things incidental to any of the above powers or necessary or
convenient to be done for or in connection with any Trust or the
Trustee's functions under this Deed.
17.3 Powers to be exercised with others
The Trustee's rights, powers and discretions under this Deed shall be
exercised by such persons, or exercised in conjunction with, with the
approval of, or at the discretion of such persons, as contemplated by
this Deed or any other Transaction Document.
17.4 Delegation to Related Bodies Corporate
In exercising its powers and performing its obligations and duties under
this Deed, the Trustee may, with the approval of the Manager (not to be
unreasonably withheld) and subject always to the covenants on the part
of the Trustee contained in this Deed, from time to time by instrument
in writing appoint one or more corporations each being:
(a) a corporation which is a Related Body Corporate of the Trustee;
and
(b) which is a trustee company or trustee corporation for the
purposes of any State or Territory legislation governing the
operation of trustee companies,
as its delegate (or, where two or more such corporations are appointed
as its delegate, jointly and severally) to undertake, perform or
discharge any or all of the duties, powers, discretions or other
functions of the Trustee under this Deed or otherwise in relation to a
Trust.
The Trustee and/or the corporation (as the case may be) may by the terms
of any such appointment insert such provisions for the protection and
convenience of those dealing with any such corporation as the Trustee
and/or the corporation thinks fit but the Trustee shall despite any such
appointment remain liable for any act or omission of any such
corporation as if any such act or omission were an act or omission of
the Trustee.
The Trustee shall be responsible for payment of the fees and expenses of
any corporation appointed under this clause.
17.5 Trustee's power to appoint attorneys and agents
The Trustee may in carrying out and performing its duties and
obligations contained in this Deed appoint any person to be its
attorney, agent or delegate for such purposes and with such powers,
authorities and discretions (not exceeding those vested in the Trustee)
as the Trustee thinks fit including:
(a) power for the attorney or agent to delegate or sub-delegate any
such powers, authorities or discretions;
(b) power to authorise the issue in the name of the Trustee of
documents bearing facsimile signatures of the Trustee or of the
attorney or agent (either with or without proper manuscript
signatures of their officers); and
(c) such provisions for the protection and convenience of those
dealing with any such attorney, agent, delegate or sub-delegate
as they may think fit,
but except as provided for in this Deed or any other Transaction
Document excluding the obligation to receive or make payments.
The Trustee is not liable or responsible for the acts or omissions of
any agent or delegate except where:
(i) the Trustee did not appoint the agent or delegate in good
faith and using reasonable care;
(ii) the Trustee expressly instructs the agent to do (or omit
to do) the relevant act; or
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(iii) the Trustee is aware of the default of the agent or
delegate and does not take the action available to it
under the relevant Transaction Document to remedy the
agent's or delegate's act or omission.
17.6
The Trustee may, in accordance with clause 17.5, appoint any of the
following persons to be its attorney, agent or delegate to do those
things which the Transaction Documents expressly provide or contemplate
will be done by them on behalf of the Trustee or to receive or make
payments on behalf of the Trustee in the manner contemplated by this
Deed:
(a) the Servicer;
(b) an attorney, agent or delegate of the Servicer (where the Trustee
is acting as Servicer);
(c) the Principal Paying Agent and all other Paying Agents;
(d) the Note Trustee;
(e) banks, solicitors and brokers approved by the Manager (such
approval not to be unreasonably withheld); or
(f) any other experts appointed by the Trustee to assist it in
performing its duties and obligations under the Transaction
Documents.
In the case of paragraphs (a) to (f) (inclusive), the Trustee will not
be responsible for losses, claims or liabilities caused by the acts or
omissions of any person so appointed except to the extent that the
Transaction Document or other agreement under which the person is
appointed so provides, and except to the extent caused by the fraud,
negligence or Default of the Trustee.
17.7 Generally unlimited discretion
Subject to the Trustee duly observing its duties, covenants and
obligations under this Deed and any other Transaction Document, the
Trustee has absolute discretion as to the exercise or non-exercise of
the trusts, powers, authorities and discretions vested in it by this
Deed.
18. Trustee's covenants
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18.1 General
The provisions contained in this clause 18 shall be for the benefit of
the Manager, each Servicer, the Beneficiaries, the Noteholders and the
other Creditors jointly and severally.
18.2 To act continuously as Trustee
The Trustee shall act continuously as trustee of each Trust until the
Trust is terminated as provided by this Deed or the Trustee has retired
or been removed from office in the manner provided under this Deed.
18.3 To act honestly, diligently and prudently
The Trustee shall:
(a) (act honestly) act honestly and in good faith and comply with all
relevant material laws in the performance of its duties and in
the exercise of its discretions under this Deed;
(b) (prudently) subject to this Deed, exercise such diligence and
prudence as a prudent person of business would exercise in
performing its express functions and in exercising its
discretions under this Deed, having regard to the interests of
the Beneficiaries, the Noteholders and the other Creditors in
accordance with its obligations under the relevant Transaction
Documents;
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(c) (conduct its business properly) use its best endeavours to carry
on and conduct its business in so far as it relates to this Deed
in a proper and efficient manner;
(d) (records) keep, or ensure that the Manager keeps, accounting
records which correctly record and explain all amounts paid and
received by the Trustee in its capacity as trustee of a Trust;
(e) (separate Trusts and Assets) keep each Trust separate from each
other Trust which is constituted under this Deed and from all
other assets of the Trustee in any capacity other than as Trustee
of such Trust and account for Assets and liabilities of the Trust
separately from those of other Trusts and all other assets and
liabilities of the Trustee in any capacity other than as Trustee
of such Trust;
(f) (do all things necessary to perform obligations) do everything
and take all such actions which are necessary (including
obtaining all appropriate Authorisations which relate to it in
its capacity as trustee of the Trust and taking all actions
necessary to assist the Manager to obtain all other appropriate
Authorisations) to ensure that it is able to exercise all its
powers and remedies and perform all its obligations under this
Deed, the Transaction Documents and all other deeds, agreements
and other arrangements entered into by the Trustee under this
Deed;
(g) (no other activity) not, in its capacity as trustee of the Trust,
engage in any business or activity in respect of a Trust except
as contemplated or required by the Transaction Documents in
respect of that Trust;
(h) (arm's length with Related Bodies Corporate) except as
contemplated or required by the Transaction Documents, maintain
an independent and arm's length relationship with its Related
Bodies Corporate in relation to dealings affecting the Trust;
(i) (no guarantees) except as contemplated or required by the
Transaction Documents in respect of a Trust, not, in respect of
that Trust, guarantee or become obligated for the debts of any
other entity or hold out its credit as being available to settle
the obligations of others; and
(j) (stock exchange) in respect to listed Notes, comply with the
rules and regulations of the relevant Stock Exchange.
18.4 No dispositions of Assets except in accordance with Transaction
Documents
Except as provided in any Transaction Document (and other than any
charge given to the Security Trustee), the Trustee shall not, nor shall
it permit any of its officers to, sell, mortgage, charge or otherwise
encumber or part with possession of any Asset.
18.5 Indemnity re acts of Trustee's delegates
The Trustee covenants it will duly observe and perform the covenants and
obligations of this Deed, and the Trustee will be personally liable to
the Servicers, the Noteholders, the Beneficiary of any Trust, the Note
Managers or the other Creditors, as the case may be only if it is guilty
of negligence, fraud or Default. The Trustee is not responsible for the
acts or omissions of its agents or delegates (including persons referred
to in clause 17.6 of this Deed) selected by the Trustee in good faith
and using reasonable care, except where the Trustee expressly instructs
the agent or delegate to do (or omit to do) the relevant act, if the
Trustee is aware of the default of the agent or delegate and does not
take the action available to it under the Transaction Documents to
address the act or omission or where the Transaction Documents expressly
provide that the Trustee is so liable.
18.6 Forward notices etc to Manager
The Trustee shall without delay forward to the Manager all notices,
reports, circulars and other documents received by it or on its behalf
as trustee of a Trust except to the extent they are received from the
Manager.
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18.7 Trustee will implement Manager's directions
Subject to this Deed and any other Transaction Document to which it is a
party, the Trustee will act on all directions given to it by the Manager
in accordance with the terms of this Deed.
18.8 Custodian
(a) Subject to the Custodian Agreement, the Trustee may lodge any
Relevant Document or any documents of title to or evidencing any
Asset in its vault or, with the prior consent of the relevant
Approved Seller, the relevant Servicer and the Manager, in the
vault of a subcustodian, on behalf of the Trustee or with a
recognised clearing system to the order of the Trustee or
subcustodian on behalf of the Trustee.
(b) Nothing in this Deed shall prevent the Manager, a Servicer or the
Trustee from acting as Custodian of Relevant Documents or any
documents of title to or evidencing any Asset, provided that the
Trustee, if acting in that capacity, shall allow the Manager, any
relevant Servicer and any relevant Approved Seller to have access
to them during normal business hours on reasonable notice.
18.9 Bank accounts
The Trustee will open and operate the bank accounts in accordance with
clause 22.
18.10 Perform transaction documents
The Trustee shall properly perform the functions which are necessary for
it to perform under all Transaction Documents in respect of a Trust.
19. Trustee's fees and expenses
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19.1 Trustee's fee
In consideration of the Trustee performing its functions and duties
under this Deed, the Trustee shall be entitled to deduct from each Trust
a fee in the amount and at the times set out in the corresponding
Supplementary Terms Notice.
19.2 Reimbursement of expenses
In addition to the Trustee's remuneration under clause 19.1, the Trustee
shall pay, or be reimbursed, from a Trust all Expenses that relate to
that Trust properly incurred by the Trustee. These will be paid or
reimbursed in accordance with the corresponding Supplementary Terms
Notice.
19.3 Segregation of Trust Expenses
The Manager directs the Trustee to segregate, and apply, all Expenses to
the Trust to which they relate.
20. Removal, retirement and replacement of trustee
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20.1 Retirement for Trustee's Default
The Trustee shall retire as trustee of the Trusts if and when directed
to do so by the Manager in writing (which direction must be copied to
each Servicer and, if any of the Trusts are Rated Trusts, the Designated
Rating Agency). A direction may only be given on the occurrence of one
or more of the following events (each a Trustee's Default):
(a) (Insolvency Event) an Insolvency Event has occurred and is
continuing in relation to the Trustee in its personal capacity;
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(b) (rating downgrade) any action is taken in relation to the Trustee
in its personal capacity which causes the rating of any Notes to
be downgraded or withdrawn;
(c) (breach by the Trustee) the Trustee, or any employee or officer
of the Trustee breaches any obligation or duty imposed on the
Trustee under this Deed or any other Transaction Document in
relation to a Trust where the Manager reasonably believes it may
have a Material Adverse Effect and the Trustee fails or neglects
after 30 days' notice from the Manager, if capable of remedy, to
remedy that breach;
(d) (merger or consolidation) the Trustee merges or consolidates with
another entity without ensuring that the resulting merged or
consolidated entity assumes the Trustee's obligations under the
Transaction Documents; or
(e) (change in control) there is a change in effective control of the
Trustee from that subsisting as at the date of this Deed to a
Competitor unless approved by the Manager.
If a direction is given on the occurrence of an event under paragraph
(e) that direction must specify a date for the Trustee to retire which
is no less than 6 months from the date of that direction, provided that
the Manager may at its discretion direct that the Trustee be paid the
equivalent amount of the Trustee's Fee in lieu of this notice period.
20.2 Manager may remove recalcitrant Trustee
(a) In default of the Trustee retiring in accordance with clause 20.1
within 30 days of being directed by the Manager in writing to do
so the Manager shall have the right to and shall by deed poll
executed by the Manager remove the Trustee from its office as
trustee of the Trusts.
(b) Where the Trustee is removed under clause 20.1(a), (b), (c) or
(d) it shall (as trustee of the relevant Trust) bear the
reasonable costs of its removal. The Trustee indemnifies the
Manager and the Trust for those costs.
20.3 Manager appoints replacement
On the retirement or removal of the Trustee under clause 20.1 or 20.2
the Manager, subject to giving prior notice to the Designated Rating
Agency in relation to a Rated Trust, shall be entitled to appoint in
writing some other statutory trustee to be the Trustee under this Deed
provided that appointment will not in the reasonable opinion of the
Manager materially prejudice the interests of Noteholders. Until the
appointment is completed the Manager shall act as Trustee and will be
entitled to the Trustee's Fee for the period it so acts as Trustee.
20.4 Voluntary retirement
The Trustee may, subject to clause 20.5, resign on giving to the Manager
(with a copy to the Designated Rating Agency) not less than 3 months'
notice in writing (or such other period as the Manager and the Trustee
may agree) of its intention to do so.
20.5 No resignation by Xxxxxxx unless successor appointed
The Trustee must not resign under clause 20.4 unless:
(a) either:
(i) it procures that, before the date on which that
termination becomes effective, another person assumes all
of the obligations of the Trustee under the Transaction
Documents as its successor, and executes such documents as
the Manager reasonably requires to become bound by the
Transaction Documents, with effect from that date, as if
it had originally been a party to the Transaction
Documents as the Trustee; or
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(ii) the Manager elects to perform itself the obligations and
functions which the Transaction Documents contemplate
being performed by the Trustee;
(b) the appointment of the successor Trustee, or (as the case may be)
the election of the Manager, will not materially prejudice the
interests of Noteholders; and
(c) in the case of the appointment of a successor Trustee pursuant to
paragraph (a), the appointment is approved by the Manager.
20.6 Manager to act as Trustee if no successor appointed
If at the end of the period of notice specified in a notice given under
clause 20.4, no successor Trustee has been appointed, as contemplated by
clause 20.5(a)(i):
(a) the Manager must itself perform as trustee the obligations and
functions which the Transaction Documents contemplate being
performed by the Trustee, until a successor Trustee is appointed
in accordance with this Deed; and
(b) the resignation of the Trustee will become effective.
20.7 Trusts to be vested in new Trustee
The Trustee shall, on retirement or removal, vest the Trusts or cause
these to be vested, in the new Trustee.
20.8 Release of outgoing Trustee
On retirement or removal and provided there has been payment to the
Manager or the new Trustee (as the case may be) of all sums due to it by
the outgoing Trustee under the Transaction Documents at that date, the
outgoing Trustee shall be released from all further obligations under
the Transaction Documents. No release under this clause shall extend to
any liability of the Trustee under this Deed in respect of any act,
omission or event occurring prior to such release.
20.9 New Trustee to execute deed
On appointment of the new Trustee of the Trusts the new Trustee shall:
(a) execute a deed in such form as the Manager may require under
which it undertakes to the Manager (for the benefit of the
Manager, Xx.Xxxxxx, the Servicers, the Beneficiaries, the other
Creditors and the Noteholders jointly and severally) to be bound
by all the obligations of the outgoing Trustee under the
Transaction Documents from the date of the deed;
(b) on and from the date of execution of the new deed, exercise all
the powers, enjoy all the rights and be subject to all duties and
obligations of the Trustee under the Transaction Documents as if
the new Trustee had been originally named as a party to the
Transaction Documents; and
(c) indemnify the outgoing Trustee for the amount of all Notes issued
in the name of the outgoing Trustee and maturing on or after the
date of the retirement or removal of the outgoing Trustee and for
all other liabilities and expenses incurred by the outgoing
Trustee for which it is entitled to be indemnified out of the
Trusts and which have not been recouped by it, but the liability
of the new Trustee under such indemnity shall be limited to the
same extent provided for in clause 30.13 and any payment shall
rank in the same priority under clause 24 as the corresponding
liability for which the outgoing Trustee claims such
indemnification.
20.10 Manager and outgoing Trustee to settle amounts payable
(a) The Manager shall be entitled to settle with the outgoing Trustee
the amount of any sums payable by the outgoing Trustee to the
Manager or the new Trustee or by the Manager to the outgoing
Trustee and to give or accept from the outgoing Trustee a
discharge and any such agreement or discharge shall (except in
the case of any liability of the outgoing
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Trustee under this Deed in respect of any act, omission or event
occurring prior to the release of the outgoing Trustee be
conclusive and binding on all persons (including the Manager, the
new Trustee, Xx.Xxxxxx, the Beneficiary, the Noteholders and any
other Creditors).
(b) Even though no new Trustee is appointed in its place (except as
contemplated by Clause 20.6), the Manager may make such
arrangements as it thinks fit for the discharge of the outgoing
Trustee from any existing liability and any liability which might
arise under the Transaction Documents and any discharge of the
outgoing Trustee in accordance with such arrangements shall
(except as stated above) be conclusive and binding on all persons
claiming under the Transaction Documents.
20.11 Outgoing Trustee to retain lien
Notwithstanding the retirement or removal of the outgoing Trustee and
the indemnity in favour of the Trustee by the new Trustee as
contemplated by clause 20.9(c), the outgoing Trustee will retain a lien
over a Trust to meet claims of any Creditors of the Trustee in its
capacity as trustee of that Trust to the extent that the claims of those
Creditors are not properly and duly satisfied by the incoming Trustee.
20.12 Delivery of books, documents, etc
(a) On the retirement or removal of the Trustee in accordance with
the provisions of this clause 20 the outgoing Trustee shall
immediately deliver to the new Trustee appointed in respect of
any Trust (or the Manager if it is acting as Trustee) the Data
Base and all other books, documents, records and property
relating to the Trusts. Any related costs and expenses incurred
by the incoming Trustee and, in the case of retirement under
clause 20.1(c) only, the outgoing Trustee are to be paid out of
the relevant Trust.
(b) The outgoing Trustee shall be entitled to take, and retain as its
own property, copies of such books, documents and records. Each
of the Manager and the new Trustee shall produce the originals of
such books, documents and records in its possession on the giving
of reasonable written notice by the outgoing Trustee.
20.13 Notice to Noteholders of New Trustee
As soon as practicable after the appointment of a new Trustee under this
clause 20, the new Trustee shall notify the Noteholders of its
appointment and the Manager shall notify each Designated Rating Agency
(if any), each other party to the Transaction Documents and, where the
Notes are listed, the relevant Stock Exchange.
PART H. ADMINISTRATION OF TRUSTS
21. Bank accounts
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21.1 Opening of bank accounts
(a) (Collection Account) The Trustee must open at least one account
with an Approved Bank into which Collections can be paid.
(b) (Separate bank accounts for each Trust) The Trustee must open and
maintain a separate account with an Approved Bank in respect of
each Trust.
(c) (Additional bank accounts) The Trustee may open such additional
accounts with an Approved Bank in respect of a Trust as it sees
fit or as required by the Transaction Documents. In relation to a
Rated Trust, only the accounts specified in the Transaction
Documents for that Trust may be opened.
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(d) (Change bank accounts) If an account in respect of a Trust is
held with a bank which ceases to be an Approved Bank then the
Trustee shall as soon as practicable on becoming aware of that
fact (and in any event within 30 days):
(i) close that account: and
(ii) transfer all funds standing to the credit of that account
to another existing account in respect of that Trust with
an Approved Bank or, if none, the Trustee shall
immediately open an account with an Approved Bank.
21.2 Location of bank accounts
(a) (Central bank account) Unless otherwise directed in writing by
the Manager the central bank account of each Trust shall for so
long as Xx.Xxxxxx is an Approved Bank be opened and maintained at
a branch in New South Wales of Xx.Xxxxxx.
(b) (Interstate branch bank accounts) The Trustee may, if necessary
or desirable for the operation of a Trust, open bank accounts
with a branch outside New South Wales of an Approved Bank (which
shall, unless the Manager otherwise determines, be Xx.Xxxxxx for
so long as it is an Approved Bank) provided that if such accounts
are opened it shall enter into arrangements so that as soon as
practicable after the receipt of moneys to the credit of such
accounts, such moneys are to be transferred to the credit of the
central bank accounts of the Trust in New South Wales (subject to
a direction to the contrary by the Manager under clause 21.2(a)).
21.3 Name of bank accounts
Each bank account for a Trust shall be opened by the Trustee in its name
as trustee of the Trust.
21.4 Purpose of bank accounts
No bank account shall be used for any purpose other than for the
relevant Trust in respect of which the account is maintained and other
than in accordance with this Deed and the Transaction Documents.
21.5 Authorised signatories
The only authorised signatories for any bank account are to be officers
or employees of the Trustee or a Related Body Corporate of the Trustee.
21.6 Manager not entitled to have access
Except as expressly provided in this Deed the Manager may not deal with
any bank account or the moneys in any bank account in any way.
21.7 Bank statements and account information
(a) (Copies of bank statements) The Trustee shall promptly on receipt
of a statement in respect of each bank account for a Trust
provide a copy to the Manager (and any other person from time to
time specified by the Manager).
(b) (Direct access) Subject to the Privacy Act, the Trustee
authorises the Manager (and any other person from time to time
specified by the Manager) to obtain direct from an Approved Bank,
statements and information in relation to each bank account of a
Trust.
21.8 Deposits
Subject to this Deed, the Servicing Agreement and any relevant
Supplementary Terms Notice, the Trustee shall pay (or cause the relevant
Servicer to pay) into a bank account of a Trust within one Business Day
of receipt the following moneys and proceeds:
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(a) (subscription moneys) all subscription moneys raised in respect
of Notes issued by the Trustee in its capacity as trustee of the
Trust;
(b) (proceeds) all proceeds of the Authorised Investments and Support
Facilities in respect of the Trust; and
(c) (other moneys) all other moneys received by the Trustee in
respect of the Trust.
21.9 Withdrawals
Subject to this Deed and the Transaction Documents, the Trustee shall
withdraw funds from a bank account of a Trust and apply the same when
necessary for the following outgoings:
(a) (Authorised Investments) purchasing Authorised Investments and
making payments required in connection with Authorised
Investments;
(b) (payments to Creditors etc) making payments to the Creditors or
the Beneficiary in relation to the Trust, including through any
Paying Agent; and
(c) (other payments) making payments to any other person of Expenses
or other amounts entitled to be paid to or retained for their
respective benefit under this Deed or any other Transaction
Document.
21.10 All transactions through central accounts
(a) (Receipts and outgoings) Unless otherwise directed by the Manager
or as otherwise provided in the Transaction Documents, all moneys
and proceeds in relation to a Trust referred to in clause 21.8
shall, subject to Clause 21.10(b), be credited to the central
bank account of the Trust (whether credited direct to the central
account or transferred from an interstate bank account of the
Trust) and all outgoings of a Trust referred to in clause 21.9
shall, subject to clause 21.10(b), be paid from the central bank
account of the Trust (either by direct payment or by transfer to
an interstate bank account of the Trust).
(b) (Bank charges, etc) Any amounts referred to in paragraph (m) of
the definition of Expenses in clause 1.1 to the extent they
relate to an interstate bank account of a Trust may be deducted
or withdrawn direct from the interstate bank account.
22. Auditor
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22.1 Auditor must be registered
The Auditor of each Trust shall be a firm of chartered accountants some
of whose members are Registered Company Auditors.
22.2 Appointment of Auditor
The Auditor of each Trust shall be a person nominated by the Manager and
agreed to by the Trustee (that agreement not to be unreasonably
withheld) and shall be appointed by the Trustee within three months of
the creation of that Trust under this Deed on such terms and conditions
as the Trustee and the Manager agree. The Auditor holds office subject
to this clause.
22.3 Removal and retirement of Auditor
(a) (Removal by Trustee) Subject to paragraph (b) the Trustee may, on
giving one month's notice to the Auditor and the Designated
Rating Agency, remove the Auditor as Auditor of a Trust on
reasonable grounds (to be notified to the Manager before notice
of removal is given to the Auditor).
(b) (Removal at request of Manager or Noteholders) The Trustee may,
on the recommendation of the Manager and shall, if so requested
by an
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Extraordinary Resolution of Noteholders of a Trust, remove the
Auditor as Auditor of a Trust.
(c) (Retirement) An Auditor may retire at any time on giving six
months' written notice (or such shorter period approved by the
Manager and the Trustee) to the Trustee of its intention to
retire as Auditor of a Trust.
22.4 Appointment of replacement Auditor
The Trustee shall fill any vacancy in the office of Auditor by
appointing:
(a) where the Auditor was removed by Extraordinary Resolution of
Noteholders, and a person was nominated to be appointed as
Auditor in that resolution, that person; or
(b) in any other case, a person nominated by the Manager and
qualified to be appointed Auditor under this clause,
but only where that appointment would not lead to the rating from the
relevant Designated Rating Agency on any rated Notes to be withdrawn or
downgraded.
22.5 Auditor may have other offices
An Auditor may also be the auditor of the Trustee, the Lead Manager, any
Note Manager, the Manager, a Servicer or any of their Related Bodies
Corporate or of any other trust (whether of a similar nature to the
Trusts or otherwise) but a member of the firm appointed as an Auditor
may not be an officer or employee, or the partner of an officer or an
employee, of the Trustee, the Manager, a Servicer or any of their
Related Bodies Corporate.
22.6 Access to working papers
Each Auditor shall be appointed on the basis that it will make its
working papers and reports available for inspection by the Trustee and
the Manager.
22.7 Auditor's remuneration and costs
The Trustee may pay out of a Trust, or reimburse itself from a Trust,
the reasonable remuneration of the Auditor of the Trust as agreed
between the Manager and the Auditor and notified to the Trustee and any
reasonable expenses of the Auditor of the Trust sustained in the course
of the performance of the duties of the Auditor.
22.8 Access to information
The Auditor of a Trust shall be entitled to require from the Manager and
the Trustee, and they shall furnish to the Auditor, such information,
accounts and explanations as may be necessary for the performance by the
Auditor of its duties under this Deed.
23. Accounts and audit
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23.1 Keeping accounts
The Manager and the Trustee shall, having regard to their separate
functions, keep or cause to be kept accounting records which provide a
true and fair view of all sums of money received and expended by or on
behalf of each Trust, the matters in respect of which such receipt and
expenditure takes place, of all sales and purchases of Authorised
Investments and of the assets and liabilities of each Trust. The Manager
and the Trustee shall furnish each to the other from time to time any
information necessary for this purpose.
23.2 Location and inspection of books
The accounting records of each Trust shall be kept at the office of the
Trustee or the Manager (as the case may be) or at such other place as
the Trustee and the Manager may from time to time agree and shall be
open to the inspection of the
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Manager, the Trustee, the Auditor of the Trust and the relevant
Beneficiary on reasonable notice and during usual business hours.
23.3 Accounts to be kept in accordance with Approved Accounting Standards
The accounting records of each Trust shall be maintained in accordance
with the Approved Accounting Standards and in a manner which will enable
true and fair Accounts of the Trust to be prepared and audited in
accordance with this Deed.
23.4 Preparation of annual Accounts
The Manager shall cause the preparation of the Accounts for each
Financial Year of each Trust.
23.5 Annual audited Accounts
The Manager shall require the Auditor to audit the Accounts prepared by
the Manager in respect of each Trust within 3 months of the end of each
financial year of the Trust.
23.6 Inspection and copies of audited Accounts
A copy of the audited Accounts of a Trust and any Auditor's report shall
be available for inspection, but not copying, by the Noteholders in
relation to the Trust at the offices of the Manager and the Note
Trustee.
23.7 Tax returns
The Manager shall, or shall require the Auditor to:
(a) prepare and lodge all necessary income tax returns and other
statutory returns for each Trust; and
(b) confirm that all the income of each Trust has either been
distributed or offset by deductible losses or expenses or that no
Trust has any liability to pay income tax.
23.8 Audit
The Manager must require the Auditor, as part of each annual audit
carried out by the Auditor in relation to each Trust, to provide a
written report to the Trustee, the Security Trustee and the Designated
Rating Agency as to:
(a) the nature and extent of the audit performed (as specified by the
Manager and the Trustee);
(b) any breaches of the obligations of any of the parties to the
Transaction Documents for that Trust identified by the Auditor
within the parameters of the audit specified under paragraph (a);
and
(c) any errors in or omissions from any reports or information
provided by any party to a Transaction Document for that Trust to
another party under that Transaction Document identified by the
Auditor within the parameters of the audit specified under
paragraph (a),
that report to be in the form agreed by the Trustee and the Manager and
previously notified to the Designated Rating Agency.
23.9 No Responsibility for Servicer
Provided that it complies with its obligations under clause 14, the
Manager shall have no liability to any person under this clause 23 if it
fails to keep records relating to the Assets of a Trust and that failure
is caused by the failure of the relevant Servicer to keep any records
and provide any reports which it is obliged to keep and provide under
the relevant Servicing Agreement except where the Servicer's failure is
due to the fraud, negligence or wilful default of the Manager.
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24. Payments
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24.1 Cashflow allocation methodology
Collections in relation to a Trust and other amounts credited to the
Collection Account for a Trust will be allocated by the Manager on
behalf of the Trustee, and paid by the Trustee as directed by the
Manager, in accordance with the Supplementary Terms Notice for that
Trust.
24.2 Payments to Beneficiary
(a) (Distributable Income absolutely vested) The Beneficiary of a
Trust shall as at the end of each Financial Year of that Trust
have an absolute vested interest in the Distributable Income of
that Trust for that Financial Year.
(b) (Distributable Income due as at close of Financial Year) The
Distributable Income of a Trust for a Financial Year (to the
extent not previously distributed) shall, subject to clause
24.3, constitute a debt due as at the end of the Financial Year
by the Trustee in its capacity as trustee of the Trust to the
Beneficiary entitled to the Distributable Income under clause
24.2(a) and shall, subject to clause 24.3, be payable under
clause 24.2(c).
(c) (Payment of Distributable Income) Subject to clause 24.3, the
Trustee may make interim distribution of the Distributable
Income of a Trust to the relevant Beneficiary in accordance with
the terms of the Supplementary Terms Notice for that Trust and
shall as soon as practicable after the end of a Financial Year
transfer an amount representing the Distributable Income of the
Trust (to the extent not previously distributed) from the
central bank account of the Trust to the bank account of the
Beneficiary of the Trust as directed by the Beneficiary.
(d) (Residual capital) On the termination of a Trust, the surplus
capital of the Trust remaining after satisfaction by the Trustee
of all its obligations in respect of the Trust shall be paid to
the Beneficiary of the Trust.
24.3 Subordination of Beneficiary's Entitlements
(a) No moneys may be paid out of a Trust during a Financial Year to
a Beneficiary under clause 24.2, whilst there is any amount due,
but unpaid, which is in accordance with clause 24.1 to be paid
in priority to those amounts and before the Trustee is
satisfied, after consulting with the Manager, that sufficient
allowance has been made for those priority amounts in relation
to the Trust, accruing during the Financial Year. To the extent
that there is an amount payable under clause 24.1 which is to be
paid in priority to the amounts payable to the Beneficiary, the
Beneficiary directs the Trustee to meet the amount payable under
clause 24.1 as an application of the Beneficiary's entitlement
to the Distributable Income of the Trust.
(b) Notwithstanding paragraph (a), once an amount is paid out of a
Trust to a Beneficiary during a Financial Year, that amount may
not be recovered from that Beneficiary for any reason or by any
person except to the extent that amount was paid in error.
24.4 Insufficient moneys
If after the application of the provisions of clause 24.1 there is
insufficient money available to the Trustee in respect of a Trust to pay
the full amount due to Noteholders in the Trust, the deficiency shall,
subject to the Supplementary Terms Notice for the Notes or any Class of
the Notes issued in relation to the Trust, be borne by the Noteholders
in the manner set out in the relevant Supplementary Terms Notice.
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24.5 Income or capital
The Manager shall determine whether any amount is of an income or
capital nature in accordance with clause 24.6 and, subject only to a
contrary determination by the Auditor of the relevant Trust in
accordance with clause 24.6, the determination by the Manager shall be
final and binding.
24.6 Income of Trust
(a) The income of each Trust for each Financial Year will include:
(i) any amount (including a profit made by the Trustee)
which is included in the assessable income of the Trust
for the purposes of the Taxation Act (other than Part
IIIA);
(ii) any realised capital gains derived by the Trustee to the
extent to which the same are reflected in the net
capital gain (if any) calculated under Part IIIA of the
Taxation Act which is included in the assessable income
of the Trust for the purposes of the Taxation Act,
and otherwise will be determined in accordance with Approved
Accounting Standards. All periodic income of the Trust will be
deemed to accrue from day to day and will be brought to account
as arising on a daily basis where that is required for tax
purposes (using a daily accruals method of accounting where that
is the method required for tax purposes).
(b) The expenses of each Trust for each Financial Year will include
losses or outgoings which are allowable deductions in
calculating the net income of the Trust under Section 95(1) of
the Taxation Act and otherwise will be determined in accordance
with Approved Accounting Standards. All periodic expenses of the
Trust will be deemed to accrue from day to day and will be
brought to account on a daily basis where that is required for
tax purposes (using a daily accruals method of accounting where
that is the method required for tax purposes).
(c) The Manager will determine the Net Accounting Income for each
Trust for each Financial Year by applying against the income of
the Trust for that Financial Year:
(i) so much of the expenses specified in paragraph (b) as
are referable to that Financial Year; and (ii) any Net
Accounting Loss carried forward from a preceding
Financial Year.
The balance of the income of the Trust for the Financial Year
remaining after those applications will constitute the Net
Accounting Income for that Financial Year except where the
amount is negative, in which case, it will be the Net Accounting
Loss for that Financial Year.
(d) The Net Accounting Income in respect of a Financial Year for
each Trust will constitute the distributable income
(Distributable Income) of the Trust for that Financial Year.
PART I. SERVICERS & LEAD MANAGER
25. Appointment of servicer
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Each Servicer shall be appointed, and shall act, as servicer of any
Receivables, Receivable Securities and Related Securities on and subject
to the terms of the relevant Servicing Agreement.
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26. Lead manager and note managers
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26.1 Appointment of Lead Manager and Note Managers
(a) The Trustee and the Manager may appoint any one or more persons
to be Lead Manager or Note Manager or both in relation to any
issue of Notes, with remuneration determined by the Manager and
such Lead Manager or Note Manager. An issue of Notes may have
more than one Lead Manager and more than one Note Manager. An
issue of Notes under a Trust may have a different Lead Manager,
or different Lead Managers or Note Managers, from other issues
of Notes under that Trust.
(b) The Trustee and the Manager may terminate the appointment of a
Lead Manager or Note Manager at any time.
26.2 Fees
The Trustee shall be entitled to pay from each Trust from which any
person is a Lead Manager or Note Manager fees (if any) to that person in
the amount and at the times set out in the corresponding Note Issue
Direction or Subscription Agreement.
PART J. REPRESENTATIONS, XXXXXX AND INDEMNITIES
27. Representations and warranties
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27.1 General representations and warranties
Each party makes the following representations and warranties for the
benefit of the others:
(a) (status) it is a corporation duly incorporated and existing
under the laws of its place of incorporation and the
Commonwealth of Australia;
(b) (power) it has the power to enter into and perform its
obligations under each Transaction Document to which it is a
party, to carry out the transactions contemplated by this Deed
and each other Transaction Document to which it is a party and
to carry on its business as now conducted or contemplated;
(c) (corporate authorisations) it has taken all necessary corporate
action to authorise the entry into, delivery and performance of
each Transaction Document to which it is a party and to carry
out the transactions contemplated by such Transaction Documents;
(d) (obligations binding) its obligations under each Transaction
Document to which it is a party are legal, valid, binding and
enforceable in accordance with their respective terms (subject
to laws relating to insolvency and general doctrines of
insolvency, except in the case of an Approved Seller with
respect to any Sale Notice and the transactions contemplated
therein);
(e) (transactions permitted) the execution, delivery and performance
by it of each Transaction Document to which it is a party and
each transaction contemplated under those documents will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any provision of:
(i) a law or treaty or a judgment, ruling, order or decree
of a Government Agency binding on it (including, without
limitation, Consumer Credit Legislation);
(ii) its memorandum or articles of association; or
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(iii) any other document or agreement which is binding on it
or its assets, which is material in the context of
performing its duties under each Transaction Document to
which it is a party; and
(f) (Authorisations) it holds all Authorisations (in the case of the
Trustee, which relate to it in its capacity as trustee and will
take all actions necessary to assist the Manager to obtain all
other Authorisiations) necessary to carry on its business and to
act as required by each Transaction Document to which it is a
party and by law to comply with the requirements of any
legislation and subordinate legislation (including to the extent
relevant, any Consumer Credit Legislation).
27.2 Trustee entitled to assume accuracy of representations and warranties
Each Noteholder acknowledges that the Trustee is not under any
obligation to:
(a) make any enquiries in respect of Receivables and related
Receivable Rights and any other Assets which a prudent purchaser
of such assets would be expected to make;
(b) conduct any investigation to determine if the representations
and warranties given by the Approved Seller in relation to the
Receivables, Receivable Securities and Related Securities are
incorrect; or
(c) to test the truth of those representations and warranties,
and is entitled to conclusively accept and rely entirely on the
Receivables satisfying the Eligibility Criteria and on the accuracy of
the representations and warranties made by a Servicer or an Approved
Seller, unless the Trustee has actual notice of any event to the
contrary.
PART K. ASSET REGISTER AND MEETINGS OF NOTEHOLDERS
28. Asset register
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(a) The Trustee shall keep or cause to be kept an asset register
with respect to each Trust, in which shall be entered the
Authorised Investments and other Assets of the Trust (other than
Purchased Receivables and the related Receivable Rights) entered
into the relevant asset register on an individual basis.
(b) Each asset register shall be:
(i) (place kept) kept at the Trustee's principal office in
Melbourne or at such place as the Trustee and the
Manager may agree;
(ii) (access to Manager and Auditor) open to the Manager and
the Auditor of the Trust to which it relates to inspect
during normal business hours;
(iii) (inspection by Noteholder) open for inspection by a
Noteholder during normal business hours but only in
respect of information relating to that Noteholder; and
(iv) (not for copying) not available to be copied by any
person (other than the Manager) except in compliance
with such terms and conditions (if any) as the Manager
and Trustee in their absolute discretion nominate from
time to time.
29. Meetings of noteholders
--------------------------------------------------------------------------------
Meetings of Noteholders of a Trust will be held in accordance with the
Note Trust Deed applicable to that Trust and each Noteholder is subject
to and bound by the provisions of that Note Trust Deed. A meeting held,
or a resolution passed, at a meeting under the Note Trust Deed will be
taken to be a meeting
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held or resolution passed by Noteholders for the purposes of the
Transaction Documents.
30. Trustee's and manager's powers, liability and indemnity generally
--------------------------------------------------------------------------------
Without prejudice to any indemnity allowed by law or elsewhere in this
Deed given to the Trustee or the Manager, it is expressly declared as
follows. In this clause 30, Relevant Party means each of the Manager,
the Servicer, the Calculation Agent, the Custodian, each Paying Agent,
the Note Trustee, and the provider of a Support Facility.
30.1 Reliance on certificates
The Trustee and the Manager shall not incur any liability as a result of
relying upon the authority, validity, due authorisation of, or the
accuracy of any information contained in any notice, resolution,
direction, consent, certificate, receipt, affidavit, statement,
valuation report or other document or communication (including any of
the above submitted or provided by the Manager (in the case of the
Trustee only), by the Trustee (in the case only of the Manager) or by an
Approved Seller or a Relevant Party) if the Trustee or the Manager is
entitled, under clause 30.2 to assume such authenticity, validity, due
authorisation or accuracy.
In preparing any notice, certificate, advice or proposal the Trustee and
the Manager shall be entitled to assume, unless (in the case of the
Trustee) it is actually aware to the contrary or (in the case of the
Manager) it is actually aware or should reasonably be aware to the
contrary, that each person under any Authorised Investment, Support
Facility, Receivable, Receivable Security, Related Securities, other
Transaction Document or any other deed, agreement or arrangement
incidental to any of the above or to any Trust, will perform their
obligations under those documents in full by the due date and otherwise
in accordance with their terms.
30.2 Trustee's reliance on Manager, Approved Seller or Servicer
(a) (Authorised Signatories are sufficient evidence) Whenever any
certificate, notice, proposal, direction, instruction, document
or other communication is to be given to the Trustee, the
Trustee may assume:
(i) the authenticity and validity of any signature in any
such document and that such document has been duly
authorised; and
(ii) the accuracy or any information contained in any such
documents,
in either case unless the officers of the Trustee responsible
for the administration of the relevant Trust are not actually
aware to the contrary.
(b) (Trustee not liable for loss) The Trustee shall not be
responsible for any loss arising from any forgery or lack of
authenticity or any act, neglect, mistake or discrepancy of the
Approved Seller or any Relevant Party or any officer, employee,
agent or delegate of the Approved Seller or the Relevant Party
in preparing any such document or in compiling, verifying or
calculating any matter or information contained in any such
document, if the officers of the Trustee responsible for the
administration of the relevant Trust are not actually aware of
such forgery, lack of authenticity or validity, act, neglect,
mistake or discrepancy.
30.3 Manager's reliance on Trustee, Approved Seller or Servicer
(a) (Trustee's Authorised Signatories are sufficient evidence)
Whenever any certificate, notice, proposal, direction,
instruction, document or other communication is to be given to
the Manager, the
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Manager may (unless, in the case of such communication from the
Servicer, the Manager and the Servicer are the same entity)
assume:
(i) the authenticity and validity of any signature in any
such document and that such document had been duly
authorised; and
(ii) the accuracy of any information contained in any such
document,
in either case, unless it is actually aware or should reasonably
have been aware to the contrary.
(b) (Manager not liable for loss) The Manager shall not be
responsible for any loss arising from any act, forgery or lack
of authenticity or validity, or any neglect, mistake or
discrepancy of the Trustee, an Approved Seller or a Servicer or
any officer, employee, agent or delegate of the Trustee, the
Approved Seller or the Servicer in preparing any such document
or in compiling, verifying or calculating any matter or
information contained in any such document, if the officers of
the Manager responsible for the administration of the relevant
Trust are not actually aware or should reasonably have been
aware to the contrary, of such forgery, lack of authenticity or
validity, act, neglect, mistake or discrepancy.
30.4 Compliance with laws The Trustee and the Manager shall not
incur any liability to anyone in respect of any failure to
perform or to do any act or thing which by reason of any
provision of any applicable present or future law of any place
or any applicable ordinance, rule, regulation or by law or of
any applicable decree, order or judgment of any competent
court or other tribunal, the Trustee and/or the Manager shall
be prohibited from doing or performing.
30.5 Reliance on experts
The Trustee and the Manager may rely on and act on the opinion or
statement or certificate or advice of or information obtained from a
Servicer, barristers or solicitors (whether instructed by the Manager or
the Trustee), bankers, accountants, brokers, valuers and other persons
believed by it in good faith to be expert or properly informed in
relation to the matters on which they are consulted and the Trustee and
the Manager shall not be liable for anything done or suffered by it in
good faith in reliance on such opinion, statement, certificate, advice
or information except:
(a) in the case of the Trustee, to the extent of losses, costs,
claims or damages caused by the Trustee's fraud, negligence or
Default; and
(b) in the case of the Manager, to the extent of losses, costs,
claims or damages caused or contributed to by its breach of its
obligations under any Transaction Document.
30.6 Oversights of others
Without limiting clause 18, but having regard to the limitations in the
Trustee's duties, powers, authorities and discretions under this Deed,
the Trustee and the Manager shall not be responsible for any act,
omission, misconduct, mistake, oversight, error of judgment,
forgetfulness or want of prudence on the part of any Relevant Party or
agent appointed by the Trustee or the Manager or on whom the Trustee or
the Manager is entitled to rely under this Deed (other than a Related
Body Corporate), attorney, banker, receiver, barrister, solicitor, agent
or other person acting as agent or adviser to the Trustee or the Manager
except:
(a) in the case of the Trustee, to the extent of losses, costs,
claims or damages caused by the Trustee's fraud, negligence or
Default; and
(b) in the case of the Manager, to the extent of losses, costs,
claims or damages caused or contributed to by its breach of its
obligations under any Transaction Document,
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provided that nothing in this Deed or any other Transaction Document
imposes any obligations on the Trustee to review or supervise the
performance by any other party of its obligations.
30.7 Powers, authorities and discretions
Except as otherwise provided in this Deed and in the absence of fraud,
negligence, or Default, the Trustee shall not be in any way responsible
for any loss (whether consequential or otherwise), costs, damages or
inconvenience that may result from the exercise or non-exercise of any
powers, authorities and discretions vested in it.
30.8 Impossibility or impracticability
If for any other reason it becomes impossible or impracticable for it to
carry out any or all of the provisions of this Deed or any other
Transaction Document, the Trustee and the Manager shall not be under any
liability and, except to the extent (in the case of the Trustee only) of
its own fraud, negligence, or Default and (in the case of the Manager
only) its own breach of contract, nor shall either of them incur any
liability by reason of any error of law or any matter or thing done or
suffered or omitted to be done in good faith by either of them or their
respective officers, employees, agents or delegates.
30.9 Duties and charges
The Trustee and the Manager shall not be required to effect any
transaction or dealing with any Notes or with all or any part of the
Authorised Investments of a Trust on behalf or at the request of any
Noteholder or other person unless such Noteholder or other person (as
the case may be) shall first have paid in cash or otherwise provided to
its satisfaction for all duties, Taxes, governmental charges, brokerage,
transfer fees, registration fees and other charges (collectively duties
and charges) which have or may become payable in respect of such
transaction or dealing but the Trustee and the Manager shall be entitled
if it so thinks fit to pay and discharge all or any of such duties and
charges on behalf of the Noteholder or other person and to retain the
amount so paid of any moneys or property to which such Noteholder or
other person may be or become entitled under this Deed.
30.10 Legal and other proceedings
(a) (Indemnity for legal costs) The Trustee and the Manager shall be
indemnified out of a Trust for all legal costs and disbursements
on a full indemnity basis and all other cost, disbursements,
outgoings and expenses incurred by the Trustee and the Manager
in connection with:
(i) the enforcement or contemplated enforcement of, or
preservation of rights under;
(ii) without limiting the generality of paragraph (i) above,
the initiation, defence, carriage and settlement of any
action, suit, proceeding or dispute in respect of; and
(iii) obtaining legal advice or opinions concerning or
relating to the interpretation or construction of,
this Deed or any other Transaction Document or otherwise under
or in respect of such Trust provided that the enforcement,
contemplated enforcement or preservation by the Trustee or the
Manager (as the case may be) of the rights referred to in
paragraph (i) or the court proceedings referred to in paragraph
(ii) (including in each case the defence of any action, suit,
proceeding or dispute brought against the Trustee or the Manager
(as the case may be)), and the basis of incurring any those
costs, disbursements, outgoings and expenses by the Trustee or
the Manager (as the case may be):
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(iv) has been approved in advance by the Manager (such
approval not to be unreasonably withheld) (in the case
of the Trustee) or by an Extraordinary Resolution of the
Noteholders of the Trust;
(v) is regarded by the Trustee or the Manager (as the case
may be) as necessary to protect the interests of the
Noteholders in relation to a Trust following a breach by
the Manager or the Trustee (as the case may be) of its
obligations under this Deed and the Trustee or the
Manager (as the case may be) reasonably believes that
any delay in seeking an approval under paragraph (iv)
will be prejudicial to the interests of the Noteholders
in relation to the Trust or the Trustee or the Manager
(as the case may be); or
(vi) the Trustee or the Manager (as the case may be)
reasonably considers the incurring of those costs,
disbursements, outgoings and expenses to be necessary to
protect the Trustee or the Manager (as the case may be)
against potential personal liability.
(b) (Defence of proceedings alleging negligence etc.) Each of the
Trustee and the Manager shall be entitled to claim in respect of
the above indemnity from the relevant Trust for its expenses and
liabilities incurred in defending any action, suit, proceeding
or dispute in which (in the case of the Trustee) fraud,
negligence or Default or (in the case of the Manager) breach of
contract is alleged or claimed against it, but on the same being
proved, accepted or admitted by it, it shall from its personal
assets immediately repay to such Trust the amount previously
paid by such Trust to it in respect of that indemnity.
30.11 No liability except for negligence etc.
Except to the extent caused by the fraud, negligence or Default on its
part or on the part of any of its officers or employees, or any agents
or delegate, sub-agent, sub-delegate employed by the Trustee in
accordance with this Deed (and where this Deed provides that the Trustee
is liable for the acts or omissions of any such person) or by the
Manager to carry out any transactions contemplated by this Deed, the
Trustee shall not be liable personally for any losses, costs,
liabilities or claims arising from the failure to pay moneys on the due
date for payment to any Noteholder, any Beneficiary, the Manager or any
other person or for any loss howsoever caused in respect of any of the
Trusts or to any Noteholder, any Beneficiary, the Manager or other
person.
30.12 Further limitations on Trustee's liability
Subject to clauses 30.2 and 30.13, the Trustee shall not be liable:
(a) (for loss on its discretions) for any losses, costs, liabilities
or expenses arising out of the exercise or non-exercise of its
discretion (or by the Manager of its discretions) or for any
other act or omission on its part under this Deed, any other
Transaction Document or any other document except where the
exercise or non-exercise of any discretion, or any act or
omission, by the Trustee, or any of its officers or employees,
or any agent, delegate, sub-agent, sub-delegate employed by the
Trustee in accordance with this Deed (and where this Deed
provides that the Trustee is liable for the acts or omissions of
any such person) to carry out any transactions contemplated by
this Deed, constitutes fraud, negligence or Default;
(b) (for loss on directions) for any losses, costs, damages or
expenses caused by its acting (in circumstances where this Deed
requires it to act or contemplates that it may so act) on any
instruction or direction given to it by:
(i) any Relevant Party under this Deed, any other
Transaction Document or any other document;
(ii) by any person under a Support Facility, Receivable or
Receivable Security; or
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(iii) an Obligor,
except to the extent that it is caused by the fraud, negligence
or Default of the Trustee, or any of its officers or employees,
or an agent or delegate employed by the Trustee in accordance
with this Deed to carry out any transactions contemplated by
this Deed (and where this Deed provides that the Trustee is
liable for the acts or omissions of such person);
(c) (for certain defaults) for any Manager's Default, Servicer
Transfer Event or Title Perfection Event;
(d) (for acts of Servicer) without limiting the Trustee's
obligations under the Transaction Documents, for any act,
omission or default of a Servicer in relation to its servicing
duties or its obligations under the relevant Servicing
Agreement;
(e) (for acts of Custodian) without limiting the Trustee's
obligations under the Transaction Documents, for any act,
omission or default of a Custodian in relation to its custodial
duties or its obligations under the relevant Custodian
Agreement;
(f) (for acts of Note Trustee) without limiting the Trustee's
obligations under the Transaction Documents, for any act,
omission or default of a Note Trustee in relation to its
obligations under the Transaction Documents;
(g) (for acts of Paying Agent) without limiting the Trustee's
obligations under the Transaction Documents, for any act,
omission or default of a Paying Agent in relation to its
obligations under the Transaction Documents;
(h) (for acts of Calculation Agent) without limiting the Trustee's
obligations under the Transaction Documents, for any act,
omission or default of a Calculation Agent in relation to its
obligations under the Transaction Documents;
(i) (failure to comply) for the failure of a person to carry out an
agreement with the Trustee in connection with the Trust; or
(j) (failure to check) for any losses, costs, liabilities or
expenses caused by the Trustee's failure to check any
calculation, information, document, form or list supplied or
purported to be supplied to it by the Manager, Approved Seller
or Servicer,
except, in the case of paragraphs (c) to (j) (inclusive), to the extent
that it is caused by fraud, negligence or Default of the Trustee.
Nothing in this clause 30.12 alone (but without limiting the operation
of any other clause of this Deed) shall imply a duty on the Trustee to
supervise the Manager in the performance of the Manager's functions and
duties, and the exercise by the Manager of its discretions.
30.13 Liability of Trustee limited to its right of indemnity
(a) This Deed applies to the Trustee only in its capacity as trustee
of each Trust and in no other capacity (except where the
Transaction Documents provide otherwise). Subject to paragraph
(c) below, a liability arising under or in connection with this
Deed or a Trust can be enforced against the Trustee only to the
extent to which it can be satisfied out of the assets and
property of the relevant Trust which are available to satisfy
the right of the Trustee to be exonerated or indemnified for the
liability. This limitation of the Trustee's liability applies
despite any other provision of this Deed and extends to all
liabilities and obligations of the Trustee in any way connected
with any representation, warranty, conduct, omission, agreement
or transaction related to this Deed or a Trust.
(b) Subject to paragraph (c) below, no person (including any
Relevant Party) may take action against the Trustee in any
capacity other than as trustee of the relevant Trust or seek the
appointment of a receiver (except under
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the Security Trust Deed), or a liquidator, an administrator or
any similar person to the Trustee or prove in any liquidation,
administration or arrangements of or affecting the Trustee.
(c) The provisions of this clause 30.13 shall not apply to any
obligation or liability of the Trustee to the extent that it is
not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of the
Trustee's indemnification or exoneration out of the Assets of
the Trust as a result of the Trustee's fraud, negligence, or
Default.
(d) It is acknowledged that the Relevant Parties are responsible
under this Deed or the other Transaction Documents for
performing a variety of obligations relating to the relevant
Trust. No act or omission of the Trustee (including any related
failure to satisfy its obligations under this Deed) will be
considered fraud, negligence or Default of the Trustee for the
purpose of paragraph (c) above to the extent to which the act or
omission was caused or contributed to by any failure by any
Relevant Party or any person who has been delegated or appointed
by the Trustee in accordance with this Deed or any other
Transaction Document to fulfil its obligations relating to a
Trust or by any other act or omission of a Relevant Party or any
such person.
(e) In exercising their powers under the Transaction Documents, the
Trustee, the Security Trustee and the Noteholders must ensure
that no attorney, agent, delegate, receiver or receiver and
manager appointed by it in accordance with this Deed has
authority to act on behalf of the Trustee in a way which exposes
the Trustee to any personal liability and no act or omission of
any such person will be considered fraud, negligence, or Default
of the Trustee for the purpose of paragraph (c) above.
(f) Nothing in this clause limits the obligations expressly imposed
on the Trustee under the Transaction Documents.
30.14 Trustee's right of indemnity - general
(a) (Indemnity from each Trust) Subject to this Deed and without
prejudice to the right of indemnity given by law to trustees,
the Trustee will be indemnified out of the Assets of each Trust
against all losses and liabilities properly incurred by the
Trustee in performing any of its duties or exercising any of its
powers under this Deed in relation to that Trust.
(b) (Preservation of right of indemnity) Subject to clause 30.14(c),
and without limiting the generality of clause 30.14(a), the
Trustee's right to be indemnified in accordance with clause
30.14(a) and to effect full recovery out of the Assets of a
Trust, will apply in relation to any liabilities to Creditors of
the Trust notwithstanding any failure by the Trustee to exercise
a degree of care, diligence and prudence required of the Trustee
having regard to the powers, authorities and discretions
conferred on the Trustee under this Deed or any other act or
omission which may not entitle the Trustee to be so indemnified
and/or effect such recovery (including fraud, negligence or
Default).
(c) (Indemnity in certain circumstances held for Trust creditors)
Subject to paragraph (d) below, if the Trustee fails to exercise
the degree of care and diligence required of a trustee having
regard to the powers, authorities and discretions conferred on
the Trustee by this Deed or if any other act or omission occurs
which would, but for paragraph (b) above, prevent the Trustee
from being indemnified in accordance with paragraph (a) above or
to effect full recovery out of a Trust (including fraud,
negligence or Default):
(i) the Trustee may not receive or hold or otherwise have
the benefit of the indemnity given in clause 30.14(a)
otherwise than on behalf of and on trust for Creditors
in relation to that Trust; and
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(ii) the Trustee may only be indemnified to the extent
necessary to allow it to discharge its liability to
Creditors in relation to that Trust.
(d) (Not to limit rights of others) Nothing in clauses 30.14(a) to
(c) or 30.13 shall be taken to:
(i) impose any restriction on the right of any Noteholder, a
Beneficiary, the Manager or any other person to bring an
action against the Trustee for loss or damage suffered
by reason of the Trustee's failure to exercise the
degree of care and diligence required of a trustee
having regard to the powers, authorities and discretions
conferred on the Trustee by this Deed, including the
Trustee's fraud, negligence or Default; or
(ii) confer on the Trustee a right to be indemnified out of
the Assets of a Trust against any loss the Trustee
suffers in consequence of an action brought against it
by reason of the Trustee's breach of trust where the
Trustee fails to show the degree of care and diligence
required of a trustee having regard to the powers,
authorities and discretions conferred on the Trustee by
this Deed, including the Trustee's fraud, negligence, or
Default.
(e) (Not to limit Trustee's duty) Nothing in this Deed shall limit
the Trustee's duties and obligations under this Deed or prevent
or restrict any determination as to whether there has been, or
limit the Trustee's personal liability under this Deed for, a
fraud, negligence or Default on the part of the Trustee or its
officers or employees.
30.15 Trustee's right of indemnity - Consumer Credit Legislation
(a) (Indemnity from each Trust) Without prejudice to the right of
indemnity given by law to trustees, and without limiting any
other provision of this Deed, the Trustee will be indemnified
out of the Assets of each Trust, free of any set off or
counterclaim, against all Civil Penalty Payments which the
Trustee is required to pay personally or in its capacity as
trustee of that Trust in performing any of its duties or
exercising any of its powers under this Deed in relation to that
Trust.
(b) (Preservation of right and indemnity) Without limiting the
generality of paragraph (a), the Trustee's right to be
indemnified in accordance with clause 30.15(a), and to effect
full recovery out of the Assets of a Trust pursuant to such a
right, will apply notwithstanding any alleged failure by the
Trustee to exercise a degree of care, diligence and prudence
required of the Trustee having regard to the powers, authorities
and discretions conferred on the Trustee under this Deed or any
other alleged act or omission which may not entitle the Trustee
to be so indemnified and/or effect such recovery (including
alleged fraud, negligence or Default) and that is not related to
the liability.
(c) (Overriding) This clause 30.15 overrides any other provision of
this Deed.
(d) (Nominated credit provider) Unless otherwise specified in the
Supplementary Terms Notice, the Trustee nominates the Servicer,
in relation to each relevant Trust, as credit provider for the
purposes of regulation 75 of the Consumer Credit Legislation
with respect to Receivables held by the Trustee under the
relevant Trust. The Servicer agrees to be a credit provider for
the purposes of regulation 75 of the Consumer Credit Legislation
in relation to those Receivables.
(e) (Indemnity) Each Servicer that is a nominated credit provider
under Clause 30.15(d) indemnifies the Trustee in relation to
each relevant Trust, free of any set off or counterclaim,
against all Civil Penalty Payments which the Trustee is required
to pay personally or in its capacity as trustee of that Trust in
performing any of its duties or exercising any of its powers
under this Deed in relation to that Trust.
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(f) The Trustee shall call upon the indemnity under paragraph (e)
before it calls upon the indemnity in paragraph (a).
In this clause 30.15, Civil Penalty Payment means:
(i) the amount of any civil penalty which the Trustee is
ordered to pay under Part 6 of the Consumer Credit
Legislation;
(ii) any other money ordered to be paid by the Trustee, or
legal costs or other expenses payable or incurred by the
Trustee related to such an order;
(iii) any amount which the Trustee agrees to pay to an Obligor
or other person in settlement of an application for an
order under Part 6 of the Consumer Credit Legislation;
and
(iv) any legal costs or other costs and expenses payable or
incurred by the Trustee in relation to that application.
30.16 Right of indemnity
The Manager shall be indemnified out of the relevant Trust in respect of
any liability, cost or expense properly incurred by it in its capacity
as Manager of the relevant Trust.
30.17 Conflicts
(a) (No conflict) Nothing in this Deed shall prevent the Trustee,
the Manager or any Related Corporation or Associate of any of
them or their directors or other officers (each a Relevant
Person) (subject to any applicable laws and regulations) from:
(i) subscribing for purchase, holding, dealing in or
disposing of any Notes;
(ii) entering into any financial, banking, development,
insurance, agency, broking or other transaction with, or
providing any advice or services for any of the Trusts;
or
(iii) being interested in any such contract or transaction or
otherwise at any time contracting or acting in any
capacity as representative or agent.
(b) (Not liable to account) A Relevant Person shall not be in any
way liable to account to any Noteholder, any Beneficiary or any
other person for any profits or benefits (including any profit,
bank charges, commission, exchange, brokerage and fees) made or
derived under or in connection with any transaction or contract
specified in paragraph (a) above;
(c) (Fiduciary relationship) A Relevant Person shall not by reason
of any fiduciary relationship be in any way precluded from
making any contracts or entering into any transactions with any
such person in the ordinary course of its business or from
undertaking any banking, financial, development, agency or other
services including any contract or transaction in relation to
the placing of or dealing with any investment and the acceptance
of any office or profit or any contract of loan or deposits or
other contract or transaction which any person or company not
being a party to this Deed could or might have lawfully entered
into if not a party to this Deed. A Relevant Person shall not be
accountable to Noteholders, the Beneficiaries or any other
person for any profits arising from any such contracts,
transactions or offices.
30.18 Trustee not obliged to investigate the Manager etc
The Trustee shall be responsible only for so much of the Authorised
Investments, and the income and proceeds emanating from the Authorised
Investments as may be actually transferred or paid to it and the Trustee
is expressly excused from:
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(a) taking any action or actions to investigate the accounts,
management, control or activities of the Manager or any other
person; or
(b) inquiring into or in any manner questioning or bringing any
action, suit or proceeding or in any other manner seeking to
interfere with the management, control or activities (including
the exercise or non-exercise of powers and discretions) of such
persons or seeking to remove from office such persons, taking
any steps or bringing any action, suit or proceedings or in any
other manner seeking to vary, amend delete from or add to this
Deed or other instrument establishing the Trusts, or wind up any
of such persons or vest the Trusts.
30.19 Independent investigation of credit
(a) (Trustee and Manager may assume independent investigation) The
Trustee and the Manager shall be entitled to assume that each
Noteholder has, independently and without reliance on the
Trustee, the Manager, the Lead Manager or other Note Managers or
any other Noteholder, and based on documents and information as
each has deemed appropriate, made its own investigations in
relation to the Notes, the Trustee, the Manager and the
provisions of this Deed and any other Transaction Document and
has not entered into any Transaction Document as a result of any
inducement from the Trustee or the Manager.
(b) (Acknowledgement of independent investigation) Each Noteholder
agrees that it will, independently and without reliance on the
Trustee, the Manager, a Servicer or any other Noteholder and
based on documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions as
to all matters relating to this Deed and any other Transaction
Document.
30.20 Information
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the Trustee
under this Deed or any other Transaction Document, the Trustee shall not
have any duty or responsibility to provide any person (including any
Noteholder or Beneficiary but not including the Manager) with any credit
or other information concerning the affairs, financial condition or
business of any of the Trusts.
30.21 Entering into Transaction Documents
Notwithstanding any other provision of this Deed, the Trustee is not
obliged to enter into any Transaction Document for a Trust unless the
Trustee, with the agreement of the Manager, has received independent
legal advice (if required by the Trustee) in relation to the Transaction
Document.
30.22 Reliance by Trustee
Notwithstanding any other provision of this Deed, in the absence of
actual knowledge to the contrary, the Trustee is entitled conclusively
to rely on and is not required to investigate the accuracy of:
(a) the contents of a Sale Notice given to it by an Approved Seller;
(b) the contents of any Manager's Report;
(c) any calculations made by an Approved Seller, a Servicer, the
Manager or a Calculation Agent under any Transaction Document
including the calculation of amounts to be paid to, or charged
against, Noteholders, the Beneficiary or the Seller on specified
dates; or
(d) the amount of, or allocation of, Collections.
30.23 Investigation by Trustee
The Manager, each Servicer, each Approved Seller, each Noteholder and
the Beneficiary of each Trust acknowledges that:
Page (87)
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(a) the Trustee has no duty, and is under no obligation, to
investigate whether a Manager's Default, Servicer Transfer Event
or Title Perfection Event has occurred in relation to that Trust
other than where it has actual notice;
(b) the Trustee is required to provide the notices referred to in
this Deed in respect of a determination of Material Adverse
Effect only if it is actually aware of the facts giving rise to
the Material Adverse Effect; and
(c) in making any such determination, the Trustee will seek and rely
on advice given to it by its advisors in a manner contemplated
by this Deed.
PART L. GENERAL PROVISIONS
31. Notices
--------------------------------------------------------------------------------
31.1 Notices generally
Subject to clause 31.2, every notice, certificate, request, direction,
demand or other communications required to or by a party to this Deed:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender;
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post, facsimile
transmission or cable) when delivered received or left
to the address of that party shown in this Deed (or at
such other address as may be notified in writing by that
party to the other party from time to time);
(ii) (in the case of telex) on receipt by the sender of the
answerback code of the recipient at the end of
transmission; or
(iii) (in the case of electronic mail) on receipt by the
sender of an acknowledgement of transmission,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is
sent or is later than 4pm (local time), it will be taken to have
been duly given or made at the commencement of business on the
next day on which business is generally carried on in that
place;
31.2 Notices to Noteholders
A notice, request or other communication by the Trustee, the Manager,
the Note Trustee or a Servicer to Noteholders shall be deemed to be duly
given or made if given or made in accordance with the relevant
Conditions.
31.3 Notices to Designated Rating Agencies
(a) The Manager shall provide a copy of each notice, request or
other communication by the Trustee, the Manager or a Servicer to
Noteholders in a Trust to each Designated Rating Agency (if any)
for the relevant Trust as from time to time agreed in writing
with that Designated Rating Agency, and where a Transaction
Document specifies that notice is to be given to each Designated
Rating Agency, but the person who is to give that notice is not
specified. Where a Transaction Document requires notice to be
given to a Designated Rating Agency, that requirement
constitutes an "agreement in writing" for the purposes of this
clause 31.3.
(b) The Manager, or failing it, the Trustee will notify each
Designated Rating Agency as soon as practicable after all of the
Notes in respect of a Trust have been repaid in full.
Page (88)
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32. Payments generally
--------------------------------------------------------------------------------
32.1 Payments to Noteholders
Any payment made by or on behalf of the Trustee in respect of any Note
shall be made in accordance with the Supplementary Terms Notice, the
Note Trust Deed and the Agency Agreement.
32.2 Trustee to arrange payments
The Trustee will:
(a) prepare or cause to be prepared all cheques which are to be
issued to Noteholders and to Beneficiaries and stamp the same as
required by law; or
(b) otherwise arrange payments under clause 32.1.
The Trustee will sign (by autographical, mechanical or other means)
cheques for despatch on the day on which they ought to be despatched.
32.3 Payment to be made on Business Day
If any payment is due under a Transaction Document on a day which is not
a Business Day (as defined for the purposes of that Transaction
Document, whether in this Deed or in that Transaction Document) the due
date will be the next Business Day (as defined for the purposes of that
Transaction Document, whether in this Deed or in that Transaction
Document) unless that day falls in the next calendar month, in which
case the due date will be the preceding Business Day (as defined for the
purposes of that Transaction Document, whether in this Deed or in that
Transaction Document).
32.4 Payment good discharge
There is a full satisfaction of the moneys payable under a Note, and a
good discharge to the Trustee, the Manager or the Servicer (as the case
may be) in relation to that Note, when so provided under the Note Trust
Deed.
32.5 Valid receipts
The receipt of the Trustee for any moneys shall exonerate the person
paying the same from all liability to make any further enquiry. Every
such receipt shall as to the moneys paid or expressed to be received in
such receipt, effectually discharge the person paying such moneys from
such liability or enquiry and from being concerned to see to the
application or being answerable or accountable for any loss or
misapplication of such moneys.
32.6 Taxation
(a) (Net payments) Subject to this clause, payments in respect of
the Notes shall be made free and clear of, and without deduction
for, or by reference to, any present or future Taxes of any
Australian Jurisdiction unless required by law.
(b) (Interest Withholding Tax) Payments on Notes by or on behalf of
the Trustee will be made subject to deduction for any interest
withholding tax imposed by the Commonwealth of Australia from
payments of interest in respect of the Notes to non-residents of
the Commonwealth of Australia who are not carrying on business
in the Commonwealth of Australia at or through a permanent
establishment and to residents of the Commonwealth of Australia
carrying on business at or through a permanent establishment
outside the Commonwealth of Australia and all other withholdings
and deductions referred to in the relevant Condition of the
Notes.
Page (89)
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33. Amendment
--------------------------------------------------------------------------------
33.1 Amendment without consent
Subject to clause 33.2, the Trustee, the Manager and a Servicer (in
relation to a Trust) may by way of supplemental deed alter, add to or
modify this Deed (including this clause 33) or (subject to clause
6.3(c)) a Supplementary Terms Notice in respect of any one or more
Trusts so long as such alteration, addition or modification either
complies with clause 33.2 or is:
(a) (correct manifest error) to correct a manifest error or
ambiguity or is of a formal, technical or administrative nature
only;
(b) (comply with law) necessary to comply with the provisions of any
statute or regulation or with the requirements of any Government
Agency;
(c) (change in law) appropriate or expedient as a consequence of an
amendment to any statute or regulation or altered requirements
of any Government Agency (including an alteration, addition or
modification which is appropriate or expedient as a consequence
of the enactment of a statute or regulation or an amendment to
any statute or regulation or ruling by the Commissioner or
Deputy Commissioner of Taxation or any governmental announcement
or statement, in any case which has or may have the effect of
altering the manner or basis of taxation of trusts generally or
of trusts similar to any of the Trusts);
(d) (not yet constituted Trust) to apply only in respect of a Trust
not yet constituted under this Deed; or
(e) (otherwise desirable) in the reasonable opinion of the Trustee,
the Manager and the Servicer desirable to enable the provisions
of this Deed to be more conveniently, advantageously, profitably
or economically administered or is otherwise desirable for any
reason.
33.2 Amendment with consent
Where in the reasonable opinion of the Trustee a proposed alteration,
addition or modification to this Deed is prejudicial or likely to be
prejudicial to the interests of the Noteholders (as to which the Trustee
may rely on a determination by the Note Trustee) or a Class of
Noteholders or the Beneficiaries in a particular then constituted Trust
such alteration, addition or modification may only be effected by the
Trustee with the prior consent of the Noteholders or a Class of
Noteholders (as the case may be) in the particular Trust under an
Extraordinary Resolution of the Noteholders or a Class of Noteholders
(as the case may be) in the Trust or with the prior written consent of
the Beneficiaries (as the case may be).
33.3 Copy of amendments to Noteholders
The Trustee shall on request by a Noteholder, provide the Noteholder
with a copy of the supplemental deed effecting any alteration, addition
or modification to this Deed.
33.4 Copy of amendments in advance to Designated Rating Agencies
The Manager shall provide a copy of a proposed alteration, addition or
modification to any Transaction Document in relation to a Rated Trust,
where the Transaction Document requires notice be given to the
Designated Rating Agency to each Designated Rating Agency (if any) for
the Rated Trust at least 5 Business Days (or such other period as may
from time to time be agreed by the Manager with the Designated Rating
Agency) prior to any alteration, addition or modification taking effect.
Notwithstanding any other provision of any Transaction Document, other
than clause 33.2 of this Deed, no alteration, addition or modification
thereof will be made if such alteration, addition or modification will
or does adversely affect the ratings (if any) of the Notes.
Page (90)
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--------------------------------------------------------------------------------
34. Confidentiality
--------------------------------------------------------------------------------
34.1 Confidential information
Each party shall keep, and shall procure that its officers and advisers
shall keep, the following matters (referred to in this clause 34 as
Confidential Information) strictly confidential to those officers and
advisers of the party whose involvement and knowledge is necessary:
(a) any information regarding, or copies of, any Transaction
Document or any transaction contemplated by any Transaction
Document; and
(b) any information disclosed by any party (including an Approved
Seller) to other parties in accordance with this Deed.
34.2 Exceptions
(a) Notwithstanding clause 34.1, a party may disclose Confidential
Information where:
(i) a Transaction Document requires or contemplates such
disclosure, including to the successors of a party, a
Designated Rating Agency, which has, pursuant to a
request by the Manager, rated such Notes in relation to
that Trust, and a provider of Support Facilities;
(ii) information is required to enter the public domain
pursuant to this Deed or which comes into the public
domain, for reasons other than a breach of this Deed;
(iii) information is required to be disclosed under any law or
by the listing rules of any relevant Stock Exchange;
(iv) any information is required to be disclosed by a
Government Agency;
(v) the other parties have given their consent to that
disclosure; or
(vi) information is legally required to be disclosed on
account of any discovery, judgement, order or decree of
any court or regulatory authority having jurisdiction.
(b) Disclosure under (a)(vi) shall only be made to the extent
legally required and the disclosing party must use its best
efforts to obtain reliable assurances that confidential
treatment conforming as nearly as practicable to the terms of
this clause 34 will be accorded to the Confidential Information
so disclosed by the entities to whom disclosure is made.
34.3 No merger
The rights and obligations of the parties under this clause 34 will not
merge on completion of any transaction under, or termination of, this
Deed and the Transaction Documents. They will survive the execution and
delivery of any assignment or other document entered into for the
purpose of implementing any transaction.
35. Miscellaneous
--------------------------------------------------------------------------------
35.1 Data Base to be retained as confidential
Each party shall retain as confidential to itself the Data Base in so
far as the same is held by it and shall not disclose the Data Base to
any other person (including any of its Related Bodies Corporate) except:
(a) (Transaction Documents) as permitted or required by any
Transaction Document or necessary for any party to a Transaction
Document to perform its respective duties and obligations;
Page (91)
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--------------------------------------------------------------------------------
(b) (enforcement) as required for the enforcement or attempted
enforcement of any Transaction Document, Loan, Mortgage or
Related Securities;
(c) (professional advisers) to any professional adviser, delegate,
agent or sub-agent of that party under a power contained in a
Transaction Document;
(d) (officers) to the officers, employees and directors of that
party made in the performance by that party respectively of its
duties and obligations under the Transaction Documents or at
law;
(e) (Auditors) to the Auditor of any Trust or as required by the
Auditor of any Trust; or (f) (law) as required by law or by any
Government Agency or by the listing rules of any relevant Stock
Exchange,
subject in all cases to the Privacy Act.
35.2 Certificates by Manager
Any statement or certificate by the Manager in relation to any act,
matter, thing or state of affairs in relation to any of the Trusts, this
Deed or any other Transaction Document shall, in the absence of manifest
error be final, binding and conclusive on the Trustee, the
Beneficiaries, the Noteholders and all other persons.
35.3 Waivers, remedies cumulative
Save as provided in this Deed, no failure to exercise and no delay in
exercising on the part of any party of any right, power or privilege
under this Deed shall operate as a waiver. Nor shall any single or
partial exercise of any right, power or privilege preclude any other or
further exercise of that or any other right, power or privilege.
35.4 Retention of documents
(a) All instruments of transmission shall be retained by the Manager
for a period of seven years. On the expiration of seven years
from the date of any such document the document may be
destroyed.
(b) All files in respect of each Loan, Mortgage or Related
Securities and related computer tape held by a Servicer shall be
retained by the Servicer for a period of seven years after the
related Loan has been paid in full or is otherwise liquidated or
for such longer period required by law.
35.5 Governing law
This Deed shall be governed by and construed in accordance with the laws
of New South Wales. Each of the parties and the Noteholders submits to
the non-exclusive jurisdiction of courts exercising jurisdiction there.
35.6 Severability of provisions
Any provision of any Transaction Document which is prohibited or
unenforceable in any jurisdiction is, as to that jurisdiction,
ineffective to the extent of that prohibition or unenforceability. This
does not invalidate the remaining provisions of that Transaction
Document nor affect the validity or enforceability of that provision in
any other jurisdiction.
35.7 Counterparts
This Deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
35.8 Inspection of this Deed
The Noteholders may inspect a copy of this Deed, each relevant
Supplementary Terms Notice, Servicing Agreement and Security Trust Deed
at the office of the
Page (92)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
relevant Note Trustee during normal business hours, but shall not be
entitled to a copy of any of them.
EXECUTED as a deed in Canberra.
SIGNED XXXXXX and DELIVERED )
on behalf of )
NATIONAL MUTUAL TRUSTEES )
LIMITED )
by its attorney under Power of )
Attorney dated )
Who hereby declares that no notice of )
Alteration to or revocation of the said )
Power of Attorney has been received by )
them in the presence of: )
------------------------------------
Signature
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
CRUSADE / MANAGER
SIGNED XXXXXX and DELIVERED )
on behalf of CRUSADE )
MANAGEMENT LIMITED )
by its attorney [under power of )
attorney] in the presence of: )
------------------------------------
Signature
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
XX.XXXXXX
SIGNED XXXXXX and DELIVERED )
on behalf of )
ST XXXXXX BANK LIMITED )
by its attorney [under power of )
attorney] in the presence of: )
------------------------------------
Signature
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
Page (93)
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--------------------------------------------------------------------------------
SCHEDULE 1
NOTE ISSUE DIRECTION
--------------------------------------------------------------------------------
To: National Mutual Trustees Limited as trustee of the Crusade Euro Trust
No. X of Y (the Trustee)
From: Crusade Management Limited (ACN 072 715 916) (the Manager)
1. Proposal to Issue Notes
--------------------------------------------------------------------------------
Under clause 6.1 of the Master Trust Deed dated [*] 1998 (as amended from time
to time) establishing the Crusade Euro Trusts (the Trust Deed) the Manager
proposes and directs in this Note Issue Direction (the Note Issue Direction)
that the Trustee on [*] (the Note Issue Date) will:
(a) hold as trustee of the Crusade Euro Trust No. X of Y (the Trust) on the
terms of the Trust Deed the benefit of the Portfolio of Receivables
specified in [the attached Sale Notice/Annexure "A"] (the Portfolio of
Receivables);
(b) issue as trustee of the Trust the Notes specified below (the proposed
Notes):
(i) the name(s), total principal amount, total number and
Subscription Amount of the proposed Notes are as follows:
Name(s):
Total principal amount:
Total number:
Subscription Amount:
Issue price:
Note Issue Date:
(ii) the proposed Notes [will/will not] constitute a Class separate
from any other Notes previously issued by the Trustee in its
capacity as trustee of the Trust or from any other proposed Notes
referred to in this Note Issue Direction.
[The details of each Class are as follows:
[specify information in (i) above for each Class]]
[(c) pay to [[*] (the Approved Seller)/[ ] (the Warehouse Trust)] the
principal amount of the Loans relating to the Portfolio of Receivables
at [date] (the Cut-Off Date) being $[*].]
[(d) the Lead Manager for the issue is [*]]
[(e) the Note Manager is [*] and was appointed pursuant to a Subscription
Agreement dated [*] by which:
- [*]
2. Security Trust Deed and Support Facilities
--------------------------------------------------------------------------------
For the purposes of clause 6.2(a)(viii) of the Trust Deed:
(a) a Security Trust Deed for the Trust [must/need not] be put in
place prior to the Note Issue Date.
(b) the following Support Facilities must be effected prior to the
Note Issue Date:
Page (1)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
[insert details]
3. Supplementary Terms Notice
--------------------------------------------------------------------------------
The terms of the Supplementary Terms Notice for the proposed Notes [each
Class of the proposed Notes] are contained [in the attached duly
completed Supplementary Terms Notice/in the Supplementary Terms Notice
attached to the Note Issue Direction dated [*]].
4. Manager's Certifications
--------------------------------------------------------------------------------
For the purposes of clause 6.6(a) of the Trust Deed, but subject to the
Trust Deed, the Manager certifies to the Trustee that:
(a) this Note Issue Direction, and each accompanying Supplementary
Terms Notice, complies with the Trust Deed; and
(b) it expects the revenue which the Obligors have contracted to pay
under the Receivables the subject of the Trust will be sufficient
to enable the Trustee to meet the expenses of the Trust and the
amounts due to Noteholders.
Interpretation
Each expression used in this Note Issue Direction that is not defined has the
same meaning as in the Trust Deed.
Dated:
For and on behalf of Crusade Management Limited
-------------------------------------------------
Authorised signatory
RECEIPT
We acknowledge receipt of the above Note Issue Direction.
This acknowledgement shall not constitute a declaration by the Trustee that any
property (including any Receivable Security) shall be held on trust for any
person.
For and on behalf of National Mutual Trustees Limited
-------------------------------------------------
Authorised signatory
Page (2)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
Annexure "A"
Receivables
--------------------------------------------------------------------------------
[Attach Sale Notice or specify Receivables]
Page (1)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
SCHEDULE 2
NOTICE OF CREATION OF TRUST
--------------------------------------------------------------------------------
To: National Mutual Trustees Limited (the Trustee)
From: Crusade Management Limited (ACN 072 715 916) (the Manager)
Under clause 3.2(a)(ii) of the Master Trust Deed dated [*] 1998 between the
Trustee in its capacity as trustee, the Manager as trust manager and Xx.Xxxxxx
Bank Limited establishing the Crusade Euro Trusts (as amended from time to time)
(the Master Trust Deed) the Manager gives notice of the creation of a Trust
under the Master Trust Deed to be known as the Crusade Euro Trust No. X of Y [or
such other name as the Manager and the Trustee have agreed under clause
3.3(a)(i) of the Master Trust Deed].
The Crusade Euro Trust No. X of Y will be a Trust for the purposes of the Master
Trust Deed.
This Notice of Creation of Trust is accompanied by $10.00 from [*] in accordance
with clause 3.2(a)(ii) of the Master Trust Deed. [The Trustee must issue a
residual capital unit to [*]]
The Beneficiary of the Trust is [name], of [address] [give details of units and
other Beneficiaries, if any]
Terms defined in the Master Trust Deed have the same meaning when used in this
Notice.
Dated:
For and on behalf of Crusade Management Limited
-----------------------------------------------
Authorised Signatory
For and on behalf of National Mutual Trustees Limited
-----------------------------------------------
Authorised Signatory
Page (1)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
SCHEDULE 3
VERIFICATION CERTIFICATE
--------------------------------------------------------------------------------
To: National Mutual Trustees Limited as trustee of the Crusade Euro Trust No. X
of Y (the Trustee).
CRUSADE EURO TRUSTS
I [*] am a [director/secretary/Authorised Signatory] of [*] Limited of [*] (the
Company).
I refer to the Master Trust Deed (the Master Trust Deed) dated [*] 1998 between
the Trustee in its capacity as trustee and Crusade Management Limited as Manager
and St. Xxxxxx Bank Limited as Servicer.
Definitions in the Master Trust Deed apply in this Certificate.
I CERTIFY as follows.
1. Attached to this Certificate are complete and up to date copies of:
(a) the memorandum and articles of association of the Company
(marked A); and
(b) a duly stamped and registered power of attorney granted by the
Company for the execution of each Transaction Document to which
it is expressed to be a party (marked B). That power of attorney
has not been revoked or suspended by the Company and remains in
full force and effect.
2. The following are signatures of the Authorised Officers of the Company
and the persons who have been authorised to sign each Transaction
Document to which it is expressed to be a party and to give notices and
communications under or in connection with the Transaction Documents.
Authorised Signatories
Name Position Signature
* *
------------------------
* *
------------------------
* *
------------------------
Signatories
Name Position Signature
* *
------------------------
* *
------------------------
* *
------------------------
Signed:
---------------------------------------
Page (1)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
[Director/Secretary/Authorised Signatory]
---------------------------------------
Print name
DATED
Page (2)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
SCHEDULE 4
WAREHOUSE TRUST DIRECTION
--------------------------------------------------------------------------------
To: National Mutual Trustees Limited as trustee of the [Crusade Euro
Warehouse Trust #[]] (the Trustee)
From: Crusade Management Limited (ACN 072 715 916) (the Manager)
1. Direction to acquire Receivables
--------------------------------------------------------------------------------
Under clause 11.1 of the Master Trust Deed dated [*] 1998 (as amended from time
to time) establishing the Crusade Euro Trusts (the Master Trust Deed) the
Manager proposes and directs in this Direction (the Direction) that the Trustee
on [*] (the Note Issue Date) will:
(a) hold as trustee of the [Crusade Euro Warehouse Trust #[]] (the Trust) on
the terms of the Master Trust Deed the benefit of the Portfolio of
Receivables specified in Annexure "A" (the Portfolio of Receivables);
[(b) pay to [[*] (the Approved Seller)/[ ] (the Seller Trust)] the principal
amount of the Loans relating to the Portfolio of Receivables at [date]
(the Cut-Off Date) being $[*]; and]
(c) enter into the Warehouse Facility Agreement in the attached form with
[*] to have financial accommodation of up to $[*] or any greater amount
proposed by the Manager from time to time.
2. Supplementary Terms Notice
--------------------------------------------------------------------------------
The Supplementary Terms Notice for the Trust is set out in Annexure "B".
3. [Standing direction
--------------------------------------------------------------------------------
This is a standing Warehouse Trust Direction for the purposes of clause 12.6, in
the manner set out in the attached Supplementary Terms Notice.]
4. Manager's Certifications
--------------------------------------------------------------------------------
Subject to the Master Trust Deed, the Manager certifies to the Trustee that this
Direction, complies with the Master Trust Deed.
Interpretation
Each expression used in this Direction that is not defined has the same meaning
as in the Trust Deed.
Dated:
For and on behalf of Crusade Management Limited
---------------------------------------
Authorised signatory
RECEIPT
We acknowledge receipt of the above Warehouse Trust Direction.
This acknowledgement shall not constitute a declaration by the Trustee that any
property (including any Receivable Security) shall be held on trust for any
person.
Page (1)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
For and on behalf of NATIONAL MUTUAL TRUSTEES LIMITED
---------------------------------------
Authorised signatory
Page (2)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
Annexure "A"
Receivables
--------------------------------------------------------------------------------
[Attach Sale Notice or specify Receivables]
Page (1)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
Annexure "B"
SUPPLEMENTARY TERMS NOTICE
--------------------------------------------------------------------------------
SEE ANNEXURE E OF MASTER TRUST DEED FOR DETAILS TO BE INCLUDED
[CRUSADE EURO WAREHOUSE #[] TRUST]
WAREHOUSE TRUST SUPPLEMENTARY TERMS NOTICE
1. INTRODUCTION
--------------------------------------------------------------------------------
This Supplementary Terms Notice is issued on [*] 1998 by Crusade
Management Limited (ACN 072 715 916) as manager (Manager) pursuant and
subject to the Master Trust Deed dated [*] 1998 (the Master Trust Deed)
between (among others) the Manager and National Mutual Trustees Limited
(ACN 004 029 841) as trustee of the [Crusade Euro Warehouse #[]] Trust
created under the Notice of Creation of Trust (the Trustee).
Each party to this Supplementary Terms Notice agrees to be bound by the
Transaction Documents as amended by this Supplementary Terms Notice in
the capacity set out with respect to them in this Supplementary Terms
Notice or the Master Trust Deed.
Xx.Xxxxxx Bank Limited (the Servicer) agrees to service the Purchased
Receivables and Purchased Receivable Securities in accordance with the
Servicing Agreement.
2. SUPPLEMENTARY TERMS NOTICE AND TRUST BACK
--------------------------------------------------------------------------------
(a) Under clauses 9.2 and 11 of the Master Trust Deed, the Manager
directs the Trustee to:
(i) enter into the Warehouse Facility Agreement;
(ii) accept any Sale Notice; and
(iii) Borrow under the Warehouse Facility Agreement from time to
time in accordance with clause 9 and the Warehouse
Facility Agreement.
(b) A Trust Back, entitled Warehouse Trust Back #[], is created in
relation to any Other Secured Liabilities secured by the
Purchased Receivable Securities.
(c) The parties agree that:
(i) the Trust will be a Trust for the purposes of the Master
Trust Deed; and
(ii) the Trust will not be a Rated Trust under the Master Trust
Deed.
3. DEFINITIONS AND INTERPRETATION
--------------------------------------------------------------------------------
3.1 Definitions
Unless otherwise defined in this Supplementary Terms Notice, words and
phrases defined in the Master Trust Deed have the same meaning where
used in this Supplementary Terms Notice.
In this Supplementary Terms Notice, and for the purposes of the
definitions in the Master Trust Deed, the following terms have the
following meanings unless the contrary intention appears. These
definitions apply only in relation to the
Page (1)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
Crusade Euro Warehouse #[] Trust, and do not apply to any other Trust
(as defined in the Master Trust Deed).
[*]
3.2 Interpretation
Clause 1.2 of the Master Trust Deed is incorporated into this
Supplementary Terms Notice as if set out in full, except that any
reference to deed is replaced by a reference to Supplementary Terms
Notice.
3.3 Limitation of liability
(a) General
Clause 30 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee under this Agreement.
(b) Liability of Trustee limited to its rights of indemnity
(i) The Trustee enters into this Supplementary Terms Notice
only in its capacity as trustee of the Warehouse Trust and
in no other capacity (except where this Supplementary
Terms Notice provides otherwise). Subject to paragraph
(iii) below, a liability arising under or in connection
with this Supplementary Terms Notice or the Warehouse
Trust can be enforced against the Trustee only to the
extent to which it can be satisfied out of the assets and
property of the Warehouse Trust which are available to
satisfy the right of the Trustee to be exonerated or
indemnified for the liability. This limitation of the
Trustee's liability applies despite any other provision of
this Supplementary Terms Notice 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
Supplementary Terms Notice or the Warehouse Trust.
(ii) Subject to paragraph (iii) below, no person (including any
Relevant Party) may take action against the Trustee in any
capacity other than as trustee of the Warehouse Trust or
seek the appointment of a receiver (except under the
Security Trust Deed), or a liquidator, an administrator or
any similar person to the Trustee or prove in any
liquidation, administration or arrangements of or
affecting the Trustee.
(iii) The provisions of this clause 3.3 shall not apply to any
obligation or liability of the Trustee to the extent that
it is not satisfied because under a Transaction Document
or by operation of law there is a reduction in the extent
of the Trustee's indemnification or exoneration out of the
assets of the Warehouse Trust, as a result of the
Trustee's fraud, negligence, or Default.
(iv) It is acknowledged that the Relevant Parties are
responsible under this Deed or the other Transaction
Documents for performing a variety of obligations relating
to the Warehouse Trust. No act or omission of the Trustee
(including any related failure to satisfy its obligations
under the Transaction Documents) will be considered fraud,
negligence or Default of the Trustee for the purpose of
paragraph (iii) above to the extent to which the act or
omission was caused or contributed to by any failure by
any Relevant Party or any person who has been delegated or
appointed by the Trustee in accordance with the
Transaction Documents to fulfil its obligations relating
to the Warehouse Trust or by any other act or omission of
a Relevant Party or any such person.
(v) In exercising their powers under the Transaction
Documents, the each of Trustee, the Security Trustee and
the Noteholders must ensure that no attorney, agent,
delegate, receiver or receiver and manager appointed by it
in accordance with this Deed has
Page (2)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
authority to act on behalf of the Trustee in a way which
exposes the Trustee to any personal liability and no act
or omission of any such person will be considered fraud,
negligence, or Default of the Trustee for the purpose of
paragraph (iii) above.
(vi) In this clause, Relevant Parties means each of the
Manager, the Servicer, the Calculation Agent, each Paying
Agent, the Note Trustee and any provider of a Support
Facility.
(vii) Nothing in this clause limits the obligations expressly
imposed on the Trustee under the Transaction Documents.
4. ACQUISITION OF RECEIVABLES
--------------------------------------------------------------------------------
[*]
5. DISPOSAL OF RECEIVABLES
--------------------------------------------------------------------------------
[*]
6. CASHFLOW ALLOCATION METHODOLOGY
--------------------------------------------------------------------------------
[*]
7. MASTER TRUST DEED AND SERVICING AGREEMENT
--------------------------------------------------------------------------------
7.1 Completion of details in relation to Master Trust Deed
(a) (Manager fee)
[*]
(b) (Trustee fee)
[*]
(c) (Servicing fee)
[*]
7.2 Amendments to Master Trust Deed
[*]
7.3 Amendments to Servicing Agreement
[*]
8. BENEFICIARY
--------------------------------------------------------------------------------
[*]
9. TITLE PERFECTION EVENTS
--------------------------------------------------------------------------------
[*]
EXECUTED as a deed in New South Wales.
Each attorney executing this Supplementary Terms Notice states that he
or she has no notice of revocation or suspension of his or her power of
attorney.
Page (3)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
TRUSTEE
SIGNED SEALED and DELIVERED )
by NATIONAL MUTUAL )
TRUSTEES LIMITED )
(ACN 004 029 841) )
by its attorney under Power of )
Attorney dated )
Who hereby declares that no notice of )
Alteration to or revocation of the said )
Power of Attorney has been received by )
them in the presence of: )
------------------------------------
Signature
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
MANAGER
SIGNED SEALED and DELIVERED )
by CRUSADE MANAGEMENT )
LIMITED )
in the presence of: )
------------------------------------
Signature
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
SERVICER
SIGNED SEALED and DELIVERED )
by ST XXXXXX BANK LIMITED )
in the presence of: )
------------------------------------
Signature
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
Page (4)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
ANNEXURE A
SALE NOTICE
--------------------------------------------------------------------------------
TO: National Mutual Trustees Limited as trustee of the Crusade Euro Trust
No. X of Y (the Trustee)
Attention: [*]
FROM: [*]
(the Approved Seller)
Dear Sirs
MASTER TRUST DEED
We refer to the Master Trust Deed (the Master Trust Deed) dated [*] between
National Mutual Trustees Limited, Xx.Xxxxxx Bank Limited and Crusade Management
Limited and the Supplementary Terms Notice issued under the Master Trust Deed in
relation to the [*] Trust (the Supplementary Terms Notice).
1. DEFINITIONS AND INTERPRETATION
--------------------------------------------------------------------------------
1.1 Definitions
Terms defined in the Master Trust Deed and the Supplementary Terms
Notice shall have the same meaning in this Sale Notice unless the
context otherwise requires except that:
Cut-Off Date means [ ].
Expiry Time means 4:00pm on [*].
[Offered Receivable Interest means that part of the Offered Receivable
Rights which consists of the Approved Seller's right, title, benefit,
interest (present and future) in, to, under or derived from any
Receivable Security and the Related Receivables.] [For Land only].
Offered Receivable Rights means the Approved Seller's right, title and
interest in and to the Receivables and Receivable Securities described
in the attached computer disk and printout, and the related Receivable
Rights, except to the extent of the exclusion in paragraphs (c) and (d)
of the definition of Receivable Rights.
Purchase Price means [ ].
A reference to any clause is a reference to that clause in this Sale
Notice.
1.2 Interpretation
The provisions of the Master Trust Deed will apply to any contract
formed if the offer contained in this Sale Notice is accepted.
2. OFFER
--------------------------------------------------------------------------------
Subject to the terms and conditions of this Sale Notice, the Approved
Seller, as legal and beneficial owner, offers to sell and assign the
Offered Receivable Rights (free from any Security Interest) to the
Trustee for the Purchase Price.
Page (1)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
3. ACCEPTANCE
--------------------------------------------------------------------------------
(a) The offer in clause 2 is irrevocable during the period up to and
including the Expiry Time.
(b) The Trustee may accept the offer contained in this Sale Notice at
any time prior to the Expiry Time by, and only by, the payment by
the Trustee to the Approved Seller (or as it directs) of $[*] in
same day funds [by bank cheque] [to the following bank account:
[*], Account Number [*].]
(c) Notwithstanding:
(i) satisfaction of all relevant conditions precedent; or
(ii) any negotiations undertaken between the Approved Seller
and the Trustee prior to the Trustee accepting the offer
contained in this Sale Notice,
the Trustee is not obliged to accept the offer
contained in this Sale Notice and no contract for the sale or
purchase of any Offered Receivable Rights will arise unless
and until the Trustee accepts the offer contained in the Sale
Notice in accordance with this clause.
(d) The offer contained in this Sale Notice may only be accepted in
relation to all the Offered Receivable Rights.
(e) On the acceptance of the offer contained in this Sale Notice, the
Trustee shall:
(i) subject to the Master Trust Deed and any relevant
Supplementary Terms Notice, hold the beneficial interest
in the Offered Receivable Rights on and from the Closing
Date, free of any set-off or counterclaim; and
(ii) not assume any obligation under the Offered Receivable
Rights.
4. CONSIDERATION
--------------------------------------------------------------------------------
[(a) If the Trustee accepts the offer in this Sale Notice, the
Purchase Price shall be divided between the property purchased as
follows:
(i) the lesser of $100 or 5% of the Purchase Price to that
part of the Offered Receivable Rights which is not part of
the Offered Receivable Interest; and
(ii) the balance to the Offered Receivable Interest.] [Only for
Mortgages]
[(b) On the payment of the Purchase Price, the Trustee shall ensure
that any Accrued Interest Adjustment (as defined in the
Supplementary Terms Notice) is made in accordance with the Master
Trust Deed and any relevant Supplementary Terms Notice.]
[(c) After the Closing Date, the Approved Seller will on the next
Payment Date pay to the Trustee, as an adjustment to the Purchase
Price, an amount equal to any Principal Collections received by
the Approved Seller in relation to the Purchased Receivables from
the close of business on the Cut-Off Date to but excluding the
Closing Date. Such payment will be discharged by the Manager or
the Servicer depositing such amount in the relevant Collection
Account.]
5. ACKNOWLEDGEMENT
--------------------------------------------------------------------------------
The Approved Seller acknowledges, agrees and confirms to the Trustee
that:
Page (2)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
(a) (Master Trust Deed binding on it) the Master Trust Deed is a
valid and binding obligation of the Approved Seller enforceable
in accordance with its terms;
(b) (repeat representations) the Approved Seller repeats the
representations and warranties made by it in clause 12.6 of the
Master Trust Deed in so far as they apply to the Offered
Receivable Rights;
(c) (description of Receivables)
(i) a description of the Receivables and Receivable Securities
is in the attached computer disk and hard copy; and
(ii) each Receivable and Receivable Security included or
referred to in the Offered Receivable Rights constitutes
an Eligible Receivable;
(d) (no default) no Title Perfection Event is subsisting as at the
date of this Sale Notice nor, if the offer is accepted, will
there be any Title Perfection Event subsisting at the date the
offer is accepted or the date the purchase price is paid nor will
any Title Perfection Event result from the offer evidenced by
this Sale Notice or the transfer of the Offered Receivable
Rights;
(e) (Authorisations) all necessary Authorisations for the offer
evidenced by this Sale Notice and the transfer of the Offered
Receivable Rights have been taken, or as the case may be,
obtained.
6. GOVERNING LAW
--------------------------------------------------------------------------------
This Sale Notice is governed by the laws of New South Wales.
Authorised Signatory of
[*]
Page (3)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
ANNEXURE B
SELLER ACCESSION CERTIFICATE
--------------------------------------------------------------------------------
DEED dated between:
Date
-----------
Parties
-----------
1. [NAME OF APPROVED SELLER] (A.C.N. [*]) (the Approved Seller);
2. NATIONAL MUTUAL TRUSTEES LIMITED (ACN 004 029 841) as trustee of
the Crusade Euro Trust No. X of Y (the Trustee); and
3. CRUSADE MANAGEMENT LIMITED (ACN 072 715 916) (the Manager).
Recitals
-----------
A Under a Master Trust Deed (the Master Trust Deed) dated [*] 1998
between the Trustee, Crusade Management Limited and Xx.Xxxxxx Bank
Limited Trusts may be established to purchase Receivables from the
Approved Seller.
--------------------------------------------------------------------------------
IT IS AGREED AS FOLLOWS
1. In this Deed terms defined in the Master Trust Deed have the same
meaning.
2. The Approved Seller shall as and from the date of this Deed be an
Approved Seller for the purposes of the Master Trust Deed as if named as
a party to the Master Trust Deed in the capacity of an Approved Seller.
The Approved Xxxxxx agrees to comply with the Master Trust Xxxx. All the
terms and conditions of it shall bind the Approved Seller accordingly,
and it shall be entitled to all rights of an Approved Seller under the
Master Trust Deed.
3. The Approved Seller agrees to be a credit provider for the purposes of
regulation 75 of the Consumer Credit Code in relation to Receivables
disposed of by the Approved Seller.
4. This Deed is governed by the laws of New South Wales.
5. Each attorney executing this Deed states that he has no notice of the
revocation of his power of attorney.
Page (1)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
SIGNED SEALED and DELIVERED )
on behalf of )
[*]LIMITED )
by its attorney )
in the presence of: )
------------------------------------
Attorney
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
TRUSTEE
SIGNED SEALED and DELIVERED )
by NATIONAL MUTUAL )
TRUSTEES LIMITED )
(ACN 004 029 841) )
by its attorney under Power of )
Attorney dated )
Who hereby declares that no notice of )
Alteration to or revocation of the said )
Power of Attorney has been received by )
them in the presence of: )
------------------------------------
Signature
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
MANAGER
SIGNED SEALED and DELIVERED )
on behalf of )
CRUSADE MANAGEMENT LIMITED )
)
by its attorney )
in the presence of: )
------------------------------------
Attorney
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
[OTHER PARTIES]
Page (2)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
ANNEXURE C
SUPPLEMENTARY TERMS NOTICE
--------------------------------------------------------------------------------
SEE ANNEXURE D OF THE TRUST DEED
FOR DETAILS TO BE INCLUDED
CRUSADE EURO TRUST NO. X OF Y
SUPPLEMENTARY TERMS NOTICE
1. INTRODUCTION
--------------------------------------------------------------------------------
This Supplementary Terms Notice is issued on [*] 1998 by Crusade
Management Limited (ACN 072 715 916) as manager (Manager) under the
Master Trust Deed (as defined below). It is issued pursuant and subject
to the Master Trust Deed dated [*] 1998 (the Master Trust Deed) between
(among others) the Manager and National Mutual Trustees Limited (ACN 004
029 841) as trustee of the Crusade Euro Trust No. X of Y (the Trustee).
Each party to this Supplementary Terms Notice agrees to be bound by the
Transaction Documents as amended by this Supplementary Terms Notice in
the capacity set out with respect to them in this Supplementary Terms
Notice or the Master Trust Deed.
Xx.Xxxxxx Bank Limited (the Servicer) agrees to service the Purchased
Receivables and Purchased Receivable Securities in accordance with the
Servicing Agreement.
2. DIRECTION AND TRUST BACK
--------------------------------------------------------------------------------
(a) A Trust Back, entitled Xx.Xxxxxx [] Trust Back, is created in
relation to Other Secured Liabilities secured by the Purchased
Receivable Securities.
(b) The parties agree that the Trust will be a Trust for the purposes
of the Transaction Documents.
3. DEFINITIONS AND INTERPRETATION
--------------------------------------------------------------------------------
3.1 Definitions
Unless otherwise defined in this Supplementary Terms Notice, words and
phrases defined in the Master Trust Deed have the same meaning where
used in this Supplementary Terms Notice.
In this Supplementary Terms Notice, and for the purposes of the
definitions in the Master Trust Deed, the following terms have the
following meanings unless the contrary intention appears. These
definitions apply only in relation to the Crusade Euro Trust No. X of Y
, and do not apply to any other Trust (as defined in the Master Trust
Deed).
[*]
3.2 Interpretation
Clause 1.2 of the Master Trust Deed is incorporated into this
Supplementary Terms Notice as if set out in full, except that any
reference to deed is replaced by a reference to Supplementary Terms
Notice.
3.2 Limitation of liability
Page (1)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
(a) General
Clause 30 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Manager under this
Supplementary Terms Notice.
(b) Liability of Trustee limited to its right of indemnity
(i) The Trustee enters into this Supplementary Terms Notice
only in its capacity as trustee of the Trust and in no
other capacity (except where the Transaction Documents
provide otherwise). Subject to paragraph (iii) below, a
liability arising under or in connection with this
Supplementary Terms Notice or the Trust can be enforced
against the Trustee only to the extent to which it can be
satisfied out of the assets and property of the Trust
which are available to satisfy the right of the Trustee to
be exonerated or indemnified for the liability. This
limitation of the Trustee's liability applies despite any
other provision of this Supplementary Terms Notice 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 Supplementary Terms Notice or the Trust.
(ii) Subject to paragraph (iii) below, no person (including any
Relevant Party) may take action against the Trustee in any
capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust
Deed), or a liquidator, an administrator or any similar
person to the Trustee or prove in any liquidation,
administration or arrangements of or affecting the
Trustee.
(iii) The provisions of this clause 3.3 shall not apply to any
obligation or liability of the Trustee to the extent that
it is not satisfied because under a Transaction Document
or by operation of law there is a reduction in the extent
of the Trustee's indemnification or exoneration out of the
Assets of the Trust, as a result of the Trustee's fraud,
negligence or Default.
(iv) It is acknowledged that the Relevant Parties are
responsible under this Deed or the other Transaction
Documents for performing a variety of obligations relating
to the Trust. No act or omission of the Trustee (including
any related failure to satisfy its obligations under this
Deed) will be considered fraud, negligence or Default of
the Trustee for the purpose of paragraph (iii) above to
the extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or any
person who has been delegated or appointed by the Trustee
in accordance with the Transaction Documents to fulfil its
obligations relating to the Trust or by any other act or
omission of a Relevant Party or any such person.
(v) In exercising their powers under the Transaction
Documents, each of the Trustee, the Security Trustee and
the Noteholders must ensure that no attorney, agent,
delegate, receiver or receiver and manager appointed by it
in accordance with this Deed has authority to act on
behalf of the Trustee in a way which exposes the Trustee
to any personal liability and no act or omission of any
such person will be considered fraud, negligence, or
Default of the Trustee for the purpose of paragraph (iii)
above.
(vi) In this clause, Relevant Parties means each of the
Manager, the Servicer, the Calculation Agent, each Paying
Agent, the Note Trustee and any provider of a Support
Facility.
(vii) Nothing in this clause limits the obligations expressly
imposed on the Trustee under the Transaction Documents.
Page (2)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
4. NOTES
--------------------------------------------------------------------------------
[*]
5. CASHFLOW ALLOCATION METHODOLOGY
--------------------------------------------------------------------------------
[*]
6. MASTER TRUST DEED
--------------------------------------------------------------------------------
6.1 Completion of details in relation to Master Trust Deed
(a) (Manager fee)
[*]
(b) (Trustee fee)
[*]
(c) (Servicing fee)
[*]
6.2 Amendments to Master Trust Deed
The Master Trust Deed is amended for the purpose of the Crusade Euro
Trust No. X of Y as follows:
[*]
7. TRANSFERS TO WAREHOUSE TRUST
--------------------------------------------------------------------------------
[The Trustee may, from time to time, direct the Trustee to transfer a
Purchased Receivable to a Warehouse Trust. That transfer:
(a) must be in accordance with clause 11 of the Master Trust Deed;
and
(b) must be for a consideration equal to the Unpaid Balance of that
Receivable.
The Trustee must comply with that direction.]
8. BENEFICIARY
--------------------------------------------------------------------------------
[*]
9. TITLE PERFECTION EVENTS
--------------------------------------------------------------------------------
[*]
Page (3)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
TRUSTEE
SIGNED SEALED and DELIVERED )
by NATIONAL MUTUAL )
TRUSTEES LIMITED )
(ACN 004 029 841) )
by its attorney under Power of )
Attorney dated )
Who hereby declares that no notice of )
Alteration to or revocation of the said )
Power of Attorney has been received by )
them in the presence of: )
------------------------------------
Signature
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
MANAGER
SIGNED SEALED and DELIVERED )
by CRUSADE MANAGEMENT )
LIMITED )
in the presence of: )
------------------------------------
Signature
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
SERVICER
SIGNED SEALED and DELIVERED )
by ST XXXXXX BANK LIMITED )
in the presence of: )
------------------------------------
Signature
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
Page (4)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
APPROVED SELLER
SIGNED SEALED and DELIVERED )
by ST XXXXXX BANK LIMITED )
in the presence of: )
------------------------------------
Signature
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
Page (5)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
SCHEDULE
An Eligible Receivable means a Loan which, as at the Cut-Off Date for that Loan:
[*]
Page (1)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
ANNEXURE D
SUPPLEMENTARY TERMS NOTICE CHECKLIST
--------------------------------------------------------------------------------
Clause 1.1 definitions:
Approved Bank
Authorised Investments
Closing Date
Collection Account
Collections
Conditions
Coupon
Cut-Off Date
Eligibility Criteria
Expense
Final Maturity Date
Hedge Agreement
Income Distribution Date
Information Memorandum
Initial Invested Amount
Interest Entitlement
Interest Payment Date
Invested Amount
Liquidity Facility Agreement
Manager's Report - information and format
Mortgage Insurer
Note Trust Deed
Note Trustee
Principal Entitlement
Principal Amortisation Date
Redraw Facility Agreement
Related Security
Relevant Document
Support Facility
Title Perfection Event
Transaction Document
Unpaid Balance
Warehouse Facility Agreement
Clause 3.1(b) - Beneficiary's unit(s) and rights
Clause 3.5(h) - cashflow allocation methodology
Clause 4.6 - any discrimination between Noteholders
Clause 5.2 - if Beneficiary interest is not assignable
Clause 6.1 - period for Note Issuance Direction if not 3
Business Days
Page (1)
Master Trust Xxxx Xxxxx Xxxxx & Xxxxxxx
--------------------------------------------------------------------------------
Clause 6.2(a)(xi) - additional information in Note Issuance Direction
Clause 6.3 - information to be included: Clause 6.3(a) is
mandatory; clause 6.3(b) is optional
Clause 6.7(d) - rating specified
Clause 7.1 - no restrictions on Note transfer
Clause 8.2 - investment recommendation
Clause 8.10(a) - segregation of Assets contrary to Trust Deed
Clause 9.1 - Borrowing contrary to Trust Deed
Clause 9.3 - direction as to Support Facility
Clause 10 - origination procedure
Clause 11.1 - details of acquisition by Warehouse Trust
Clause 11.2(a) - information required in a Warehouse Trust Direction
Clause 11.7 - transfers between Trusts
Clause 12.5(a)(iii) - other conditions precedent to sale
Clause 12.6(vii) - Approved Seller representations
Clause 12.7(a) - Approved Seller undertakings
Clause 12.9(a) - Title Perfection Events contrary to Trust Deed
Clause 12.9(d) - Clean Up Offer
Clause 12.10(a)(i) - accrued interest to Approved Seller, together with
relevant date
Clause 12.10(a)(ii) - principal received by Approved Seller, together
with relevant date
Clause 13.1 - details of acquisition from Warehouse Trust
Clause 14.1(a) - additional provisions relating to Manager
Clause 14.10 - publication by Reuters
Clause 14.16(c) - prepare and distribute the Manager's Report
Clause 15 - Manager's fee
Clause 16.8(a) - if Servicer is not Custodian
Clause 19.1 - Trustee's fee
Clause 19.2 - reimbursement of Trustee's expenses
Clause 21.8 - deposits if contrary to Trust Deed
Clause 24.1 - applying income and capital of Trust
Clause 24.2(c) - distribution of Distributable Income
Clause 24.4 - manner in which shortfalls are to be borne by
Noteholders
Clause 30.15(d) - non-approved Seller nominated credit provider
Page (2)
