Exhibit 4.2
VERY FINAL DRAFT : MARKED TO SHOW CHANGES
FROM FINAL DRAFT SERIES SUPPLEMENT
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Commonwealth Bank of Australia
(ABN 48 123 123 124)
The Servicer, and a Seller
State Bank of New South Wales Limited
(ABN 32 003 963 228)
A Seller
Securitisation Advisory Services Pty. Limited
(ABN 88 064 133 946)
Manager
Perpetual Trustee Company Limited
(ABN 42 000 001 007)
Trustee
Series [ ] Medallion Trust
Series Supplement
Lawyers
Levels 00-00 Xx.0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
PO Box H3 Australia Square Sydney NSW 1215 DX 370 Sydney
Tel + 00 0 0000 0000 Fax + 00 0 0000 0000
Our ref - 174/784/1697903 Contact - Xxx Xxxxxxxx
Sydney o Melbourne o Brisbane o Perth o Canberra o Darwin
Liability is limited by the Solicitors Scheme under the Professional
Standards Act 1994 NSW
Table of Contents
1. Definitions and interpretation.............................................1
1.1 Definitions......................................................1
1.2 Interpretation..................................................34
1.3 Master Trust Deed Definitions...................................36
1.4 Business Day Convention.........................................36
1.5 Master Trust Deed Inconsistency.................................36
1.6 Exclusion of Master Trust Deed Definitions and Provisions.......36
1.7 Support Facilities..............................................38
1.8 Security Trust Deed.............................................38
1.9 Nominated Seller and Nominated Servicer.........................39
1.10 Binding on Securityholders and the Residual Unitholder..........39
1.11 Relationship between Trustee and Securityholders................39
1.12 Incorporated Definitions and other Transaction Documents and
provisions......................................................39
1.13 Indemnity from Colonial State Bank..............................39
2. The CBA Trust.............................................................39
2.1 Constitution of CBA Trust.......................................39
2.2 Declaration of Trust for the CBA Trust..........................40
2.3 Name of the CBA Trust...........................................40
2.4 Entitlement of Sellers to the CBA Trust.........................40
2.5 Bare Trust......................................................40
2.6 Duration of the CBA Trust.......................................40
2.7 Early Termination of the CBA Trust..............................40
2.8 Dealing with CBA Trust Assets of the Series Trust...............40
2.9 Proceeds........................................................40
2.10 CBA Trust Not Part of Assets of the Series Trust................41
2.11 Shared Securities...............................................41
2.12 Trustee's Duties................................................41
2.13 Substitute Trustee..............................................41
2.14 Transfer of the CBA Trust Assets to Seller on termination of
CBA Trust.......................................................42
2.15 Seller Indemnity................................................42
2.16 Limitation of Liability.........................................42
3. Unit in the Series Trust..................................................43
3.1 Beneficial Interest Represented by a Single Unit................43
3.2 Initial Holder of the Residual Unit.............................43
3.3 Registration of CBA as Initial Residual Unitholder..............43
3.4 Form of Unit Certificate........................................43
3.5 Form of Unit Transfer...........................................43
3.6 Additional Capital Subscription.................................43
3.7 No Other Relationship...........................................43
4. Assignment of Mortgage Loan Rights........................................43
4.1 Approved Financial Assets of the Series Trust...................43
4.2 Sale Notice.....................................................43
4.3 Requirements of Sale Notice.....................................44
4.4 Mortgage Loan Schedule..........................................44
4.5 Sale Notice Constitutes an Offer................................44
4.6 Sale Notice Revocable...........................................45
4.7 Acceptance of Offer.............................................45
4.8 Timing of Acceptance............................................45
4.9 Seller Not Obliged to Make, and Trustee Not Obliged to
Accept, Offer...................................................45
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4.10 Can Only Accept all Mortgage Loan Rights in Loan Pool...........45
4.11 Effect of Acceptance............................................46
4.12 Sale in Equity Only.............................................46
4.13 Sale Not to Amount to Assumption of Obligations.................46
4.14 Future Advances.................................................46
4.15 Future Receivables..............................................46
4.16 Power to Acquire Mortgage Loans in Arrears......................46
4.17 Trustee Bound by Priority Agreements............................47
5. The Securities............................................................47
5.1 Securities divided into Classes.................................47
5.2 Form, constituent documents and denomination of the Securities..47
5.3 Trustee must Issue the Notes....................................47
5.4 Issue of Redraw Bonds...........................................48
5.5 Initial Invested Amount of the Securities.......................48
5.6 Interest on the Securities......................................48
5.7 Redemption of the Securities....................................48
5.8 Interest on Overdue Interest on the Securities..................49
5.9 Rounding of Payments on the Securities..........................49
5.10 Ranking of Securities...........................................49
5.11 Transfer of Securities..........................................50
5.12 Accruals for Income and Principal Xxxxxxxxx Amounts.............50
6. Conditions precedent to acceptance of Sale Notice and issue of Notes......50
6.1 General Conditions Precedent....................................50
6.2 Other Conditions Precedent......................................53
6.3 No Liability for Insufficient Moneys............................53
6.4 Manager's Certificate...........................................53
7. Division of Mortgage Loan Rights between the CBA Trust and the Series
Trust.....................................................................54
7.1 CBA Trust Assets................................................54
7.2 Mortgages and First Layer of Collateral Securities..............54
7.3 Treatment of Shared Securities..................................54
7.4 Trustee's duties................................................55
7.5 Upon Repayment of Mortgage Loan Trustee Holds for CBA Trust.....55
7.6 Application Where 2 Mortgage Loans..............................56
7.7 Costs...........................................................56
7.8 Alternative Structure...........................................56
8. Determinations by the Manager.............................................56
8.1 Applications and payments on Monthly Distribution Dates and
Quarterly Distribution Dates....................................56
8.2 Insufficient principal to meet Seller Advances..................56
8.3 Income Shortfall................................................57
8.4 Insufficient principal to meet Seller Advances and Standby
Redraw Facility Principal.......................................57
8.5 Netting of Seller Advances and Standby Redraw Facility
Advances........................................................58
8.6 Cash Advance Deposit............................................58
8.7 Break Costs and Break Benefits..................................58
8.8 Interest Rate Swap Provider Deposit.............................59
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9. Chargeoffs................................................................59
9.1 Allocation of Principal Chargeoffs..............................59
9.2 Allocation of Principal Chargeoff Reimbursements................60
9.3 Loss Recoveries.................................................60
10. Payments on Monthly Distribution Dates and Quarterly Distribution Dates
by Trustee................................................................60
10.1 Payment of Accrued Interest Adjustment on first Monthly
Distribution Date...............................................60
10.2A Application of the Available Income Amount on each Monthly
Distribution Date which is not also a Quarterly Distribution
Date............................................................61
10.2B Application of the Available Income Amount on each Quarterly
Distribution Date (also being a Monthly Distribution Date)......62
10.3 Application of the Available Principal Amount on each Monthly
Distribution Date...............................................64
10.4 Payment of Interest on the Class A-1 Notes......................64
10.5 Repayment of Principal on the Securities........................64
10.6 Repayment of Principal on the Class A Notes.....................65
10.7 Inability to Comply with Order of Priority......................65
10.8 No Payment in respect of Obligations ranking Equally or after
Class A-1 Notes if no payment made to Currency Swap Provider....65
10.9 Payments in respect of A$ Securities............................66
11. Net Tax Income of the Series Trust........................................66
11.1 Net Tax Income of the Series Trust absolutely vested in the
Residual Unitholder.............................................66
11.2 Excess Distribution.............................................66
12. Early termination of Swaps................................................67
12.1 Early Termination of a Swap.....................................67
12.2 Servicer to Adjust Mortgage Interest Saver Accounts and
Mortgage Rates if Basis Swap Terminated.........................67
12.3 Determination of Threshold Rate.................................68
12.4 Trustee to set Mortgage Rate....................................68
13. Representations and warranties regarding Mortgage Loans...................68
13.1 Seller's Representations and Warranties.........................68
13.2 Trustee need not Test Warranties................................70
14. Breach of representations and warranties..................................71
14.1 Manager or Seller Becomes Aware of Incorrect Representations
or Warranties...................................................71
14.2 If Trustee Becomes Aware of Incorrect Representations or
Warranties......................................................71
14.3 Remedy of Defaults during Prescribed Period.....................71
14.4 Holding for CBA Trust during Prescribed Period..................71
14.5 Costs...........................................................72
14.6 Payment.........................................................72
14.7 Limitation on Rights of Trustee During Prescribed Period........72
14.8 Limit of Seller's Liability for Mortgage Loans..................72
14.9 CBA's Liability for Damages After Prescribed Period.............72
14.10 Discharge of obligations........................................73
14.11 Fraud...........................................................73
14.12 Trustee's Reliance..............................................73
15. Seller's general undertakings.............................................73
15.1 General Undertakings............................................73
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15.2 Seller not bound by Undertaking.................................74
15.3 Relevant Seller Downgrade.......................................75
15.4 Reduction or Increase of Seller Deposit.........................76
15.5 Interest on Seller Deposit......................................76
15.6 Seller Upgrade..................................................76
15.7 Termination of Series Trust or Amendments to Mortgage Loans.....76
15.8 Withdrawals from the Collections Account........................77
15.9 Termination of Mortgage Interest Saver Accounts.................77
15.10 Gross Up for Mortgage Interest Saver Accounts...................77
16. Servicing of Mortgage Loan Rights.........................................77
16.1 Appointment of Servicer.........................................77
16.2 Obligation to Act as Servicer until Termination of Appointment..77
16.3 General Servicing Obligation....................................77
16.4 Power to Service................................................78
16.5 Exercise of Discretions.........................................78
16.6 Servicer's Undertaking Regarding Mortgage Loan Rights...........78
16.7 Interest Rates on Mortgage Loans................................80
16.8 Release or Substitution of Security.............................80
16.9 Variation or Relaxation of Terms of Mortgage Loans..............80
16.10 Release of Debt.................................................81
16.11 Xxxxxxx, Releases and Compromises...............................81
16.12 Consent to subsequent Security Interests........................81
16.13 Consent to Leases etc...........................................81
16.14 Relief under Binding Provision or on Order of Competent
Authority.......................................................81
16.15 Litigation......................................................82
16.16 Enforcement Action..............................................82
16.17 Incurring Additional Expenses...................................83
16.18 Mortgage Insurance and Insurance Policy Claims..................83
16.19 Insurance Policy Proceeds.......................................83
16.20 Seller Advances.................................................83
16.21 Restrictions on Seller Advances.................................84
16.22 Servicer's Actions Binding on Trustee...........................85
16.23 Servicer to Pay its Own Expenses................................85
16.24 Servicer to transmit information to Manager.....................85
16.25 Proposed amendments to Servicing Guidelines.....................85
16.26 Further Servicer Undertakings...................................85
16.27 Servicer holding Assets of the Series Trust.....................88
16.28 Servicer's Power to Delegate....................................88
16.29 Servicer May Replace or Suspend Attorneys.......................88
16.30 Delegation of Servicer's Powers to Related Bodies Corporate.....88
16.31 Servicer Remains Liable.........................................89
17. Servicer's responsibilities and indemnities...............................89
17.1 Not Liable Where Action Unlawful................................89
17.2 Limitation on Servicer's Responsibility.........................89
17.3 Servicer's Liability............................................89
18. Servicer Default and retirement of Servicer...............................90
18.1 Servicer Default................................................90
18.2 Retirement of Servicer..........................................91
18.3 Notice to Securityholders.......................................91
18.4 Removal of Servicer.............................................91
18.5 Retirement of Servicer..........................................91
18.6 When appointment of Substitute Servicer effective...............92
18.7 Trustee to Act as Servicer......................................92
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18.8 Trustee May Give Discharges.....................................92
18.9 Servicer May Accept Payment.....................................92
18.10 Servicer and Manager to Provide Full Co-operation...............92
18.11 Indemnity.......................................................92
18.12 No Liability for Servicer Default...............................93
19. Remuneration of Manager, Trustee, Servicer and Security Trustee...........93
19.1 Management Fee..................................................93
19.2 Arranging Fee...................................................93
19.3 Trustee's Fee...................................................93
19.4 Servicer's Fee..................................................93
19.5 Security Trustee's Fees and Expenses............................93
19.6 Goods and Services Tax..........................................94
19.7 Adjustments to fees.............................................94
20. Manager Default...........................................................96
21. Representations and warranties............................................97
21.1 General Representations and Warranties by the Seller and the
Servicer........................................................97
21.2 Repetition of Representations and Warranties....................98
22. Collections Account and investment........................................98
22.1 Collections Account.............................................98
22.2 Initial Collections Account.....................................98
22.3 Replacement of Collections Account..............................98
22.4 Deposits into Collections Account within 5 Business Days........98
22.5 While Collections Account with Commonwealth Bank................98
22.6 Withdrawals from Collections Accounts...........................99
22.7 All Transactions through Collections Account...................100
22.8 Title to and Control of Collections Account....................100
22.9 No Deductions by Servicer......................................100
22.10 Prepayments under Liquidity Facility...........................100
22.11 Servicer May Retain Income from Collections....................100
22.12 Bank Account Taxes.............................................100
22.13 Opening of additional accounts where Collections Account is
with an Eligible Depository....................................100
23. Clean-up and extinguishment..............................................101
23.1 Notification of Trigger Event by Manager to Seller.............101
23.2 Response by CBA................................................101
23.3 Determination of Clean-Up Settlement Date......................102
23.4 Clean-Up Settlement Price......................................102
23.5 Payment of Clean-Up Settlement Price...........................102
23.6 Effect of Payment of Clean-Up Settlement Price.................103
23.7 Costs..........................................................103
23.8 Alternative Structure..........................................103
23.9 Alternative Funding Arrangements to Permit Redemption..........103
24. Perfection of Title......................................................103
24.1 Perfection of Title Event......................................103
24.2 Declaration of Perfection of Title Event.......................104
24.3 Perfection of Title............................................104
24.4 Trustee to lodge Caveats.......................................105
24.5 Trustee to hold Legal Title or lodge Caveats...................105
24.6 Powers of Attorney.............................................105
24.7 Other Loans....................................................105
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24.8 Indemnity......................................................105
25. Servicer as Custodian of the Mortgage Loan documents.....................105
25.1 Servicer as Custodian..........................................105
25.2 Application of the Balance of this Clause......................105
25.3 Servicer Covenants as Custodian................................106
25.4 Servicer's Update of Computer Diskette........................106
25.5 Servicers' Indemnity in respect of Incorrect Information on
Computer Diskette..............................................106
25.6 Document Custody Audit Report..................................106
25.7 Details of Document Custody Audit Report.......................107
25.8 Document Custody Audit Report..................................108
25.9 Timing of Document Custody Audit Reports.......................108
25.10 Adverse Document Custody Audit Report..........................108
25.11 Document Transfer Event........................................108
25.12 Failure to comply with clause 25.11............................109
25.13 Emergency Document transfer....................................109
25.14 Exceptions to Transfer.........................................110
25.15 Indemnity by the Servicer......................................110
25.16 Trustee to co-operate with Servicer............................110
25.17 Specific performance...........................................110
25.18 Trustee's Duty While Holding Mortgage Documents................110
25.19 Reappointment of Servicer as Custodian.........................111
26. Termination of the Series Trust..........................................111
26.1 Potential Termination Events...................................111
26.2 Determination of Termination Payment Date......................111
26.3 Realisation of Assets..........................................112
26.4 Conditions of Sale During 180 days.............................112
26.5 Right of Refusal to Seller.....................................112
26.6 Sale at Lower Price............................................113
26.7 Conditions of Sale After 180 days..............................113
26.8 Further Conditions of Sale After 180 days......................113
26.9 Procedures Pending Winding-Up..................................114
26.10 Costs on Winding-up of the Series Trust........................114
26.11 Calculation of Final Distributions.............................114
26.12 Final Distributions............................................114
26.13 Insufficient Funds.............................................115
26.14 Excess Funds...................................................115
26.15 Distribution to Residual Unitholder in Specie..................115
26.16 Terms of In Specie Distributions...............................115
27. General..................................................................115
27.1 Required Credit Rating.........................................115
27.2 Distribution of information....................................115
27.3 Electronic Reporting of Pool Performance Data..................116
27.4 Claim for Damages..............................................116
27.5 Allocation of Damages..........................................116
27.6 Additional Expenses............................................116
27.7 Form of Transfers and Certificates.............................116
27.8 Incur Costs Without Approval...................................117
27.9 Adverse Effect.................................................117
27.10 Notification to Rating Agencies of Redemption of Securities....117
27.11 Further Support Facilities.....................................117
27.12 Supplementary Trustee Powers...................................117
27.13 Trustee's power to delegate....................................118
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28. Limitation of Trustee's duties...........................................118
28.1 Trustee May Rely...............................................118
28.2 No Duty to Investigate.........................................119
28.3 Trustee not Liable.............................................119
29. Trustee's limitation of liability........................................119
29.1 Limitation on Trustee's liability..............................119
29.2 Claims against Trustee.........................................119
29.3 Breach of trust................................................119
29.4 Acts or Omissions..............................................119
29.5 No obligation..................................................120
29.6 CBA Trust......................................................120
30. Consumer Credit Code.....................................................120
30.1 Breach of Consumer Credit Code.................................120
30.2 Right of Indemnity - Consumer Credit Code......................120
31. Notices..................................................................121
31.1 Method of Delivery.............................................121
31.2 Deemed Receipt.................................................122
31.3 Notice to Investors............................................122
32. Confidentiality..........................................................122
32.1 General Restriction............................................122
32.2 Exceptions.....................................................122
33. Miscellaneous............................................................123
33.1 Amendments.....................................................123
33.2 Governing Law..................................................123
33.3 Jurisdiction...................................................123
33.4 Notify Rating Agencies.........................................123
33.5 Severability of Provisions.....................................124
33.6 Counterparts...................................................124
33.7 No Revocation of Power of Attorney.............................124
33.8 Certifications.................................................124
33.9 Payments.......................................................124
33.10 Waiver.........................................................124
33.11 Entire Understanding...........................................124
33.12 Survival of Indemnities........................................124
33.13 Successors and Assigns.........................................124
33.14 Moratorium Legislation.........................................124
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Schedule 1 Form of Sale Notice...............................................126
Schedule 2 Forms of Power of Attorney (other than for Queensland and
Western Australia).................................................128
Schedule 3 Form of Power of Attorney (For Queensland)........................133
Schedule 4 Form of Power of Attorney (for Western Australia).................137
Schedule 5 Eligibility Criteria..............................................141
Schedule 6 Form of Security Certificate A$ Securities.......................142
Schedule 7 Form of Security Transfer.........................................144
Schedule 8A Monthly Certificate [CBA TO PROVIDE MONTHLY CERTIFICATE].........148
Schedule 8B Quarterly Certificate [|CBA TO PROVIDE QUARTERLY CERTIFICATE]....149
Schedule 9 Form of Residual Unit Certificate.................................150
Schedule 10 Stepdown Percentage..............................................152
Schedule 11 Form of Colonial State Bank Power of Attorney....................155
viii
This Series Supplement made at Sydney on [ ] 2001
Parties Commonwealth Bank of Australia, (ABN 48 123 123 124), of Level 8, 48
Xxxxxx Place, Sydney (hereinafter included in the expressions the
"Sellers" and the "Servicer")
State Bank of New South Wales Limited, (ABN 32 003 963 228) of Level
6, 48 Xxxxxx Place, Sydney Australia (hereinafter included in the
expression the "Sellers")
Securitisation Advisory Services Pty. Limited, (ABN 88 064 133 946),
of Level 8, 00 Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx (hereinafter included
in the expression the "Manager")
Perpetual Trustee Company Limited, (ABN 42 000 001 007), of Level 0,
00 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx (hereinafter included in the
expression the "Trustee")
Recitals
A. This Deed relates to the Series [ ] Medallion Trust.
B. In accordance with the Master Trust Deed, this Deed includes, amongst
other things, the terms upon which:
(i) the Trustee may purchase Mortgage Loans from each of the Sellers,
namely CBA and Colonial State Bank;
(ii) the Trustee may issue Securities to fund such purchase; and
(iii) the Trustee appoints the Servicer to service such Mortgage Loans (if
purchased by the Trustee).
C. This Deed also provides for the establishment of the CBA Trust.
D. The Trustee has agreed to act as trustee of the CBA Trust on the terms and
conditions of this Deed and the Master Trust Deed.
The parties agree
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1. Definitions and interpretation
1.1 Definitions
In this Deed, unless the contrary intention appears:
"A$" and "Australian dollars" means the lawful currency for the time being
of the Commonwealth of Australia.
"A$ Class A-1 Interest Amount" in relation to a Quarterly Distribution
Date and the quarterly Accrual Period ending on that Quarterly
Distribution Date means an amount calculated as follows:
N
CA1IA = ACA1IA <-> CA1IR <-> ---
365
where:
CA1IA = the A$ Class A-1 Interest Amount for the quarterly Accrual
Period;
ACA1IA = the A$ Equivalent of the aggregate Invested Amounts of the
Class A-1
1
Notes at the close of business on the first day of the
quarterly Accrual Period;
CA1IR = the A$ Class A-1 Interest Rate for the quarterly Accrual
Period; and
N = the number of days in the quarterly Accrual Period.
"A$ Class A-1 Interest Payment" in relation to a Quarterly Distribution
Date and the quarterly Accrual Period ending on that Quarterly
Distribution Date means the amount paid or available to be paid (as the
case may be) on that Quarterly Distribution Date pursuant to clause
10.2B(k)(i) from the Available Income Amount in respect of that Quarterly
Distribution Date.
"A$ Class A-1 Interest Rate" in relation to a quarterly Accrual Period
means the aggregate of:
(a) the 3 month Bank Bill Rate for that quarterly Accrual Period; and
(b) the A$ Class A-1 Margin.
"A$ Class A-1 Margin" has the same meaning as the "Spread" specified in
paragraph 5.2 of the confirmation for each Class A-1 Currency Swap.
"A$ Class A-1 Unpaid Interest Amount" in relation to a Quarterly
Distribution Date means the aggregate of:
(a) any A$ Class A-1 Interest Amounts remaining unpaid pursuant to
clause 10.2B(k)(i) from prior Quarterly Distribution Dates; and
(b) interest on the A$ Class A-1 Interest Amounts referred to in
paragraph (a) at the A$ Class A-1 Interest Rate applicable from time
to time from the date that that A$ Class A-1 Interest Amount first
became payable under clause 10.2B(k)(i) until (but not including)
the date actually paid under clause 10.2B(k)(i).
"A$ Equivalent" in relation to an amount which is calculated, determined
or expressed in US$ or which includes a component determined or expressed
in US$ means that US$ amount or US$ component (as the case may be)
multiplied by the A$ Exchange Rate.
"A$ Exchange Rate" means the "A$ Exchange Rate" specified in paragraph 7
of the confirmation for each Class A-1 Currency Swap.
"A$ Security" means, as the context requires, a Class A-2 Note, a Class B
Note, a Redraw Bond or all of the foregoing.
"Accrual Period" means:
(a) in relation to a Class A-1 Note and Class B Note (but subject to
paragraph (c) below), initially the period commencing on (and
including) its Issue Date and ending on (but excluding) the first
Quarterly Distribution Date and, thereafter, is each successive
period starting on (and including) a Quarterly Distribution Date and
ending on (but excluding) the next Quarterly Distribution Date; and
(b) in relation to any other Note or Redraw Bond (but subject to
paragraph (c) below), initially the period commencing on (and
including) its Issue Date and ending on (but excluding) the first
Monthly Distribution Date and, thereafter, is each successive period
starting on (and including) a Monthly Distribution Date and ending
on (but excluding) the next Monthly Distribution Date; and
(c) when used in the definitions of "Class A-1 Principal Xxxxxxxxx
Amount" or "Class B Principal Xxxxxxxxx Amount", or when used in
clauses 5.12(a), 10.2A, 10.2B(h), (k)(i) and (ii), 23.4(a), 19.1,
19.3 or 19.4 the period referred to in (b) above; and
2
(d) when used in clause 10.2B(k)(i),(l), or 19.2, the period referred to
in (a) above.
The final Accrual Period ends on (but excludes) the Termination Payment
Date and commences on (and includes) the relevant Monthly Distribution
Date or Quarterly Distribution Date immediately preceding the Termination
Payment Date.
"Accrued Interest Adjustment" in relation to a Mortgage Loan means the
amount of interest accrued on that Mortgage Loan for, and any fees in
relation to the Mortgage Loan falling due for payment during, the period
commencing on (and including) the Monthly Anniversary Date for that
Mortgage Loan immediately prior to the Cut-Off Date and ending on (but
excluding) the Closing Date and any accrued interest and fees due but
unpaid in relation to the Mortgage Loan prior to that Monthly Anniversary
Date.
"Adjusted Stated Amount" means at any time in relation to a Class A-1
Note, the A$ Equivalent of the Stated Amount of such Class A-1 Note less
any Class A-1 Principal Xxxxxxxxx Amount attributable to that Class A-1
Note; and in relation to a Class B Note, the Stated Amount of such Class B
Note less any Class B Principal Carryover Amount attributable to that
Class B Note. The Class A-1 Principal Xxxxxxxxx Amount and the Class B
Principal Xxxxxxxxx Amount shall, for the purposes of this definition, be
attributed rateably to the Class A-1 Notes and Class B Notes
(respectively).
"Adverse Document Custody Audit Report" means a Document Custody Audit
Report in which the overall custodial performance of the Servicer is
graded D in accordance with the grading system referred to in clause 25.8.
"Adverse Effect" means any event which (determined by the Manager unless
otherwise expressly specified in this Deed or any other Transaction
Document) materially and adversely affects the amount of any payment due
to be made to any Securityholder or materially and adversely affects the
timing of such a payment.
"Agency Agreement" means the Agency Agreement to be dated on or about the
Closing Date and made between the Trustee, the Manager, The Bank of New
York, New York Branch (as the initial Class A-1 Note Trustee, Principal
Paying Agent, Agent Bank and Class A-1 Note Registrar) and The Bank of New
York, London Branch (as the initial additional Paying Agent).
"Agent Bank" has the same meaning as in the Agency Agreement.
"Arranging Fee" means the fee payable to the Manager on each Quarterly
Distribution Date calculated in accordance with clause 19.2.
"Authorised Short-Term Investments" has the same meaning as set out in the
Master Trust Deed.
"Available Income Amount" in relation to a Determination Date and the
immediately following Monthly Distribution Date or Quarterly Distribution
Date means the aggregate of:
(a) the Preliminary Income Amount as at that Determination Date;
(b) any Liquidity Facility Advance due to be made on that Monthly
Distribution Date; and
(c) any other amounts received by the Trustee from a Support Facility
Provider under a Support Facility on or prior to that Monthly
Distribution Date which the Manager determines should be included in
the Available Income Amount (other than any amounts already included
in paragraphs (a) and (b)).
"Available Principal Amount" in relation to a Determination Date and the
immediately following Monthly Distribution Date means an amount calculated
as follows:
3
APA = PC + PCOR + OPA + RBA + SRFA
where:
APA = the Available Principal Amount as at that Determination Date;
PC = the Principal Collections for the Collection Period ending on
that Determination Date;
PCOR = the Principal Chargeoff Reimbursement as at that Determination
Date;
OPA = the Other Principal Amounts as at that Determination Date;
RBA = the Redraw Bond Amount as at that Determination Date; and
SRFA = the Standby Redraw Facility Advance on the immediately
following Monthly Distribution Date.
"Average Delinquent Percentage" in relation to a Determination Date means
the amount (expressed as a percentage) calculated as follows:
SDP
ADP = ---
12
where:
ADP = the Average Delinquent Percentage; and
SDP = the sum of the Delinquent Percentages for the 12 Collection
Periods immediately preceding or ending (as the case may be)
on the Determination Date,
provided that if on that Determination Date there has not yet been 12
Collection Periods the Average Delinquent Percentage in relation to
that Determination Date means the amount (expressed as a percentage)
calculated as follows:
SDP
ADP = ---
N
where:
ADP = the Average Delinquent Percentage;
SDP = the sum of the Delinquent Percentages for all of the
Collection Periods preceding or ending (as the case may be) on
the Determination Date; and
N = the number of Collection Periods preceding the Determination
Date.
"Bank Bill Rate" in relation to an Accrual Period means the rate appearing
at approximately 10.00 am Sydney time on the Rate Set Date for that
Accrual Period on the Reuters Screen page "BBSW" as being the average of
the mean buying and selling rates appearing on that page for a bill of
exchange having a tenor of one month (in the case of a monthly Accrual
Period) or three months (in the case of a quarterly Accrual Period). If:
(d) on the first day of an Accrual Period fewer than 4 banks are quoted
on the Reuters Screen page "BBSW"; or
(e) for any other reason the rate for that day cannot be determined in
accordance with the foregoing procedures,
4
then the "Bank Bill Rate" means such rate as is specified by the Manager
having regard to comparable indices then available. Notwithstanding the
foregoing, the Bank Xxxx Xxxx for the initial Accrual Period will be
determined by straight line interpolation between the Bank Xxxx Xxxx
determined as above for a bill of exchange having, in the case of a
quarterly Accrual Period, a tenor of 3 and 4 months and, in the case of a
monthly Accrual Period, the Bank Xxxx Xxxx determined as above for a bill
of exchange having a tenor of 1 and 2 months.
"Basis Swap" has the same meaning as in the Interest Rate Swap Agreement.
"Binding Provision" means any provision of the Code of Banking Practice
released by the Australian Bankers' Association on 3 November 1993, any
other code or arrangement binding on a Seller or the Servicer and any laws
applicable to banks or other lenders in the business of making retail home
loans.
"Borrower" in relation to a Mortgage Loan means the person or persons to
whom a loan or other financial accommodation has been provided under the
corresponding Mortgage Loan and includes, where the context requires, the
mortgagor under the corresponding Mortgage.
"Break Benefits" in relation to a Determination Date means the total break
benefits paid by or on behalf of the Trustee during the Collection Period
ending on that Determination Date to a Borrower in relation to a Mortgage
Loan which is then part of the Assets of the Series Trust arising from the
early termination of that Mortgage Loan or the early termination of a
fixed interest rate period under that Mortgage Loan.
"Break Costs" in relation to a Determination Date means the total break
costs, or amounts in respect of break costs, received by or on behalf of
the Trustee during the Collection Period ending on that Determination Date
from a Borrower, GEMI, HLIC and PMI or any other person in relation to a
Mortgage Loan which is then part of the Assets of the Series Trust (or was
immediately prior to its Liquidation Date or the date that it was assigned
under a Mortgage Insurance Policy, an Asset of the Series Trust) arising
from the early termination of that Mortgage Loan or the early termination
of a fixed interest rate period under that Mortgage Loan.
"Business Day" means any day on which banks are open for business in
Sydney, New York City and London, other than a Saturday, a Sunday or a
public holiday in Sydney, New York City or London.
"Call Date", in respect of any Note or Redraw Bond, has the same meaning
as in the Class A-1 Note Conditions.
"Cash Advance Deposit" has the same meaning as in the Liquidity Facility
Agreement.
"Caveat" in relation to a Mortgage forming part of the Assets of the
Series Trust or in relation to a Shared Security means a land titles
office caveat in registrable form which, upon registration, is effective
to protect the Trustee's interest as equitable assignee of the Relevant
Seller's interest in the Mortgage or, in the case of a Shared Security, is
effective to protect the Relevant Seller's interest as beneficiary of the
CBA Trust in the Shared Security.
"Caveat and Transfer Details" in relation to each Mortgage forming part of
the Assets of the Series Trust means such details as may be required by
the relevant land titles office in order to lodge and obtain registration
of Caveat and/or Mortgage Transfers.
"CBA" means Commonwealth Bank of Australia.
"CBA Trust" means each of the trusts constituted in favour of the Sellers
pursuant to clause 2.1 and all references to "CBA Trust" shall mean each
or both of such trusts (as the context may require).
"CBA Trust Assets" means all assets and property, real and personal
(including choses in
5
action and other rights), tangible and intangible, present or future, held
by the Trustee as trustee of the CBA Trust from time to time.
"Certificate of Title" in relation to a Mortgaged Property means the
certificate of title or other documents evidencing title to that Mortgaged
Property (including, if applicable, the documents forming any abstract of
that title) or where the certificate of title or other documents have been
cancelled due to the computerisation of the register, any original
registration confirmation, notification or statement which the Relevant
Seller has in its files.
"Charge" has the same meaning as in the Security Trust Deed.
"Class A-1 Chargeoff Percentage" in relation to a Determination Date means
the amount (expressed as a percentage) calculated as follows:
CA1SA
CA1CP = ---------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
CA1CP = the Class A-1 Chargeoff Percentage in relation to that
Determination Date;
CA1SA = the aggregate Adjusted Stated Amounts of the Class A-1 Notes
on that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that
Determination Date;
RBSA = the aggregate Stated Amount of the Redraw Bonds on that
Determination Date; and
SRFP = the Standby Redraw Facility Principal on that Determination
Date.
"Class A-1 Currency Swap" means the transactions defined as such in each
Currency Swap Agreement.
"Class A-1 Interest Amount" has the same meaning as in the Class A-1 Note
Conditions.
"Class A-1 Interest Payment" in relation to a Quarterly Distribution Date
means each US$ Class A-1 Interest Payment (as that term is defined in the
relevant Currency Swap Agreement) paid or payable (as the case may be) by
the relevant Currency Swap Provider to or at the direction of the Trustee
on that Quarterly Distribution Date in accordance with the relevant Class
A-1 Currency Swap.
"Class A-1 Note Conditions" means the terms and conditions of the Class
A-1 Notes as annexed to the Class A-1 Notes.
"Class A-1 Noteholder" has the same meaning as in the Class A-1 Note
Conditions.
"Class A-1 Note Registrar" has the same meaning as in the Agency
Agreement.
"Class A-1 Notes" has the same meaning as in the Class A-1 Note
Conditions.
"Class A-1 Note Trust Deed" means the Class A-1 Note Trust Deed to be
dated on or about the Closing Date and made between the Trustee, the
Manager and the Class A-1 Note Trustee.
"Class A-1 Note Trustee" means The Bank of New York, New York Branch or,
if The Bank of New York is removed or retires as the trustee for the Class
A-1 Noteholders, any person appointed from time to time in its place in
accordance with the Class A-1 Note Trust Deed.
6
"Class A-1 Percentage" in relation to a Determination Date means the
amount (expressed as a percentage) calculated as follows:
CA1IA
CA1P = -------------
CA1IA + CA2IA
where:
CA1P = the Class A-1 Percentage;
CA1IA = the aggregate Adjusted Stated Amount of the Class A-1 Notes on
the Determination Date; and
CA2IA = the aggregate Stated Amount of the Class A-2 Notes on the
Determination Date.
"Class A-1 Principal Xxxxxxxxx Amount" means the aggregate of amounts
determined by the Manager and certified to the Trustee, as being the Class
A-1 Percentage of the Class A Available Principal Distribution on each
Monthly Distribution Date which is not also a Quarterly Distribution Date
less any such amounts paid to the currency swap provider in accordance
with 10.5(b)(i)A.
"Class A-1 Unpaid Interest Amount" has the same meaning as in the Class
A-1 Note Conditions.
"Class A-2 Chargeoff Percentage" in relation to a Determination Date means
the amount (expressed as a percentage) calculated as follows:
CA2SA
CA2CP = ---------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
CA2CP = the Class A-2 Chargeoff Percentage in relation to that
Determination Date;
CA1SA = the aggregate Adjusted Stated Amounts of the Class A-1 Notes
on that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that
Determination Date;
RBSA = the aggregate Stated Amount of the Redraw Bonds on that
Determination Date; and
SRFP = the Standby Redraw Facility Principal on that Determination
Date.
"Class A-2 Note" means a debt security issued by the Trustee, in its
capacity as trustee of the Series Trust, pursuant to the provisions of
this Deed and the Dealer Agreement and forming part of the Class of
Securities described in clause 5.1(b) as Class A-2 Notes and includes any
Class A-2 Tranche of a Class A-2 Note.
"Class A-2 Noteholder" means at any time the person recorded at that time
in the Register as the holder of a Class A-2 Note.
"Class A-2 Percentage" in relation to a Monthly Distribution Date means
100% less the Class A-1 Percentage for the Determination Date immediately
preceding that Monthly Distribution Date.
7
"Class A-2 Tranche" means any sub-class of Class A-2 Notes issued by the
Trustee pursuant to clause 5.10(b).
"Class A Available Principal Distribution" has the meaning given in clause
10.5(b).
"Class A Note" means, as the context requires, a Class A-1 Note, a Class
A-2 Note or both.
"Class A Noteholder" means, as the context requires, a Class A-1
Noteholder, a Class A-2 Noteholder or both.
"Class A Percentage" in relation to a Determination Date means the amount
(expressed as a percentage) calculated as follows:
SAA
CAP = ---
NSA
where:
CAP = the Class A Percentage;
SAA = the aggregate of the Adjusted Stated Amounts for the Class A-1
Notes, and the Stated Amounts for the Class A-2 Notes, on that
Determination Date; and
NSA = the aggregate of the Adjusted Stated Amounts for the Class A-1
Notes, and the Stated Amounts for the Class A-2 Notes and the
Adjusted Stated Amounts for the Class B Notes, on that
Determination Date.
"Class A Principal Distribution" in relation to either a Monthly
Distribution Date or a Quarterly Distribution Date means the amount
calculated as follows:
CAPD = CASPA + CAUPA + (SDP_CBUPA)
where:
CAPD = the Class A Principal Distribution;
CASPA = the Class A Scheduled Principal Amount on the preceding
Determination Date;
CAUPA = the Class A Unscheduled Principal Amount on the preceding
Determination Date;
SDP = the Stepdown Percentage on the preceding Determination Date;
and
CBUPA = the Class B Unscheduled Principal Amount on the preceding
Determination Date.
"Class A Scheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
CASPA = CAP_NSPA
where:
CASPA = the Class A Scheduled Principal Amount;
CAP = the Class A Percentage on that Determination Date; and
NSPA = the Net Scheduled Principal Amount on that Determination Date.
8
"Class A Unscheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
CAUPA = CAP_NUPA
where:
CAUPA = the Class A Unscheduled Principal Amount;
CAP = the Class A Percentage on that Determination Date; and
NUPA = the Net Unscheduled Principal Amount on that Determination
Date.
"Class B Available Support" in relation to a Determination Date means an
amount (expressed as a percentage) calculated as follows:
SAB
CBAS = ----------
ASA + SRFL
where:
CBAS = the Class B Available Support;
SAB = the aggregate Adjusted Stated Amount for the Class B Notes on
that Determination Date;
ASA = the aggregate of the Adjusted Stated Amounts of the Class A-1
Notes, and the Stated Amounts for Class A-2 Notes and the
Adjusted Stated Amounts for the Class B Notes on that
Determination Date; and
SRFL = the Standby Redraw Facility Limit on that Determination Date.
"Class B Note" means a debt security issued by the Trustee, in its
capacity as trustee of the Series Trust, pursuant to the provisions of
this Deed and the Dealer Agreement and forming part of the Class of
Securities described in clause 5.1(c) as Class B Notes.
"Class B Noteholder" means at any time the person recorded at that time in
the Register as the holder of a Class B Note.
"Class B Percentage" in relation to a Determination Date means 100% less
the Class A Percentage for that Determination Date.
"Class B Principal Xxxxxxxxx Amount" means the aggregate of any Available
Principal Amounts allocated by the Manager to Class B Notes and certified
to the Trustee on each Monthly Distribution Date which is not also a
Quarterly Distribution Date less any such amounts paid to the Class B
Noteholders in accordance with 10.5(c)(i).
"Class B Required Support" in relation to a Determination Date means the
amount (expressed as a percentage) calculated as follows:
IIA
CBRS = ----
AIIA
where:
CBRS = the Class B Required Support;
IIA = the aggregate Initial Invested Amount for the Class B Notes;
and
AIIA = the aggregate of the A$ Equivalent of Initial Invested Amounts
of the
9
Class A-1 Notes, and the Initial Invested Amounts for all
other Securities, on that Determination Date.
"Class B Unscheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
CBUPA = CBP_NUPA
where:
CBUPA = the Class B Unscheduled Principal Amount;
CBP = the Class B Percentage on that Determination Date; and
NUPA = the Net Unscheduled Principal Amount on that Determination
Date.
"Clean-up Settlement Date" means the Quarterly Distribution Date
determined in accordance with clause 23.3.
"Clean-up Settlement Price" means the amount calculated in accordance with
clause 23.4.
"Closing Date" means the date specified by a Seller to the Trustee and the
Manager in a Sale Notice (if any) to be the Closing Date (or such other
date as the Manager may notify to the Trustee and the Relevant Seller in
accordance with the Sale Notice) PROVIDED THAT if more than one Sale
Notice is given each Sale Notice must specify the same date as the Closing
Date.
"Collateral Security" means in respect of a Mortgage Loan:
(a) any:
(i) Security Interest; or
(ii) guarantee, indemnity or other assurance,
which secures or otherwise provides for the repayment or payment of
the Mortgage Loan or an Other Loan but does not include the Mortgage
relating to the Mortgage Loan; or
(b) any Mortgage Insurance Policy or Insurance Policy in respect of the
Mortgage relating to the Mortgage Loan or the Land secured by the
Mortgage relating to the Mortgage Loan.
A Collateral Security referred to in paragraph (a) may be given under the
same document that evidences the Mortgage Loan or the Other Loan to which
that Collateral Security relates.
"Collection Period" means:
(a) with respect to the first Determination Date, the period commencing
on (and including) the Cut-Off Date and ending on (but excluding)
that Determination Date; and
(b) with respect to each subsequent Determination Date, the period
commencing on and including the previous Determination Date and
ending on (but excluding) that Determination Date.
"Collections" means Finance Charge Collections, Other Income Amounts,
Mortgage Insurance Income Proceeds, Principal Collections and Other
Principal Amounts.
"Collections Account" means the account established and maintained
pursuant to clause 22.1
10
or any new account established as the Collections Account under clause
22.3.
"Colonial State Bank" means State Bank of New South Wales Limited, being
its registered business name in all states and territories of Australia.
"Competent Authority" means a court, tribunal, authority, ombudsman or
other entity whose decisions, findings, orders, judgment or determinations
(howsoever reached) are binding on a Seller or the Servicer.
"Consideration" means the aggregate Mortgage Loan Principal of the
Mortgage Loans assigned to the Trustee as at the Cut-Off Date.
"Consumer Credit Code" means, as applicable, the Consumer Credit Code set
out in the Appendix to the Consumer Credit (Queensland) Act 1995 as in
force or applied as a law of any jurisdiction in Australia, the provisions
of the Code set out in the Appendix to the Consumer Credit (Western
Australia) Act 1996 or the provisions of the Code set out in the Appendix
to the Consumer Credit (Tasmania) Act 1996 provided that in relation to
Colonial State Bank all references to the Consumer Credit Code shall
include any predecessor legislation applicable at the time of acquisition
by Colonial State Bank of the relevant Housing Loan.
"Currency Swap Agreement" means each of two ISDA Master Agreements between
the initial Currency Swap Providers, the Trustee and the Manager, together
with a schedule and a credit support annex and a confirmation relating
respectively thereto and includes any substitute agreement in place of an
existing Currency Swap Agreement.
"Currency Swap Provider" means initially each of [ ]
and CBA and includes any other person that subsequently enters into a
Currency Swap Agreement with the Trustee and the Manager.
"Custodian" means CBA.
"Cut-Off Date" means the date specified as such in the Sale Notice (or
such other date as the Manager may notify the Trustee and the Relevant
Seller in accordance with the Sale Notice).
"Dealer Agreement" means the Dealer Agreement dated on or about the date
of this Deed between the Trustee, the Manager, CBA (as lead manager) and
the other institutions named therein (as managers) and pursuant to which
the lead manager and such other managers agree to subscribe for or procure
subscriptions for the A$ Securities.
"Delinquent Percentage" in relation to a Collection Period means the
amount (expressed as a percentage) calculated as follows:
DMLP
DP = ----
AMLP
where:
DP = the Delinquent Percentage;
DMLP = the aggregate Mortgage Loan Principal on the last day of the
Collection Period in relation to Mortgage Loans which are then
part of the Assets of the Series Trust and in relation to
which a payment due from the Borrower has been in arrears (on
that day) by more than 60 days; and
AMLP = the aggregate Mortgage Loan Principal on the last day of the
Collection Period in relation to Mortgage Loans which are then
part of the Assets of the Series Trust.
"Depository" means each organisation registered as a clearing agency
pursuant to
11
section 17A of the United States Securities Exchange Act of 1934 that
agrees with the Manager and the Trustee to hold Class A-1 Notes (directly
or through a nominee) and initially means The Depository Trust Company.
"Determination Date" means the first day of the calendar month in which
each Monthly Distribution Date occurs. The first Determination Date is
[ ].
"Document Custody Audit Report" means a report by the Auditor of the
Series Trust in accordance with clause 25.
"Document Transfer Event" means each of the events referred to in clause
25.11.
"Eligible Depository" means a financial institution which has assigned to
it short term credit ratings equal to or higher than (as the case may be)
A-1 by S&P, P-1 by Xxxxx'x and F1 by Fitch and includes the Servicer to
the extent that:
(a) it is rated in this manner; or
(b) the Rating Agencies confirm that the rating of the Servicer at a
lower level will not result in a reduction, qualification or
withdrawal of the ratings given by the Rating Agencies to the
Securities.
"Eligible Deposit Account" means an account with an Eligible Depository.
"Eligibility Criteria" has the meaning set out in Schedule 5.
"Excess Distribution" in relation to a Quarterly Distribution Date means
the amount (if any) payable to the Residual Unitholder on that Quarterly
Distribution Date pursuant to clause 10.2B(o).
"Expenses" means all amounts relating to the Series Trust referred to in
clause 16.11 of the Master Trust Deed and includes (without limiting the
generality of the foregoing and without double counting) the aggregate of:
(a) any reasonable Property Protection Expenses or Mortgage Enforcement
Expenses incurred by the Servicer in connection with the management,
maintenance or sale of any Mortgaged Property or in the enforcement
of any Mortgage Documents;
(b) the cost of registering any Caveats or Mortgage Transfers in
relation to Mortgages forming part of the Assets of the Series
Trust, to the extent not reimbursed by the Relevant Seller in
accordance with this Deed;
(c) any reasonable fees, charges and moneys payable to any consultant
appointed by the Trustee, the Manager or the Servicer and all
disbursements, expenses, duties and outgoings properly chargeable in
respect of such consultant;
(d) subject to clause 8.7, any Break Benefits;
(e) the Security Trustee's Expenses; and
(f) any amount received by the Trustee or the Servicer on or after the
Cut-Off Date in respect of a Mortgage Loan forming part of the
Assets of the Series Trust, related Mortgage or related First Layer
of Collateral Security which the Servicer, pursuant to a decision,
finding, order, judgment or determination of a Competent Authority
or pursuant to a Binding Provision or based on advice from its legal
advisers (either internal or external), has repaid to the liquidator
or the trustee-in-bankruptcy (as the case may be) of a Borrower or
the grantor of a First Layer of Collateral Security as a result of
the insolvency or bankruptcy (as the case may be) of the Borrower or
the grantor of the First Layer of Collateral Security,
12
but does not include any amount referred to in clauses 10.2A(a)-(g)
(inclusive) and (i)-(l) (inclusive), 10.2B(a)-(g) (inclusive) and
(i)-(o) inclusive.
"Fair Market Value" in relation to a Mortgage Loan means the fair market
value for that Mortgage Loan determined by the Relevant Seller's external
auditors and which value reflects the performing or non-performing status
(as determined by the Servicer) of that Mortgage Loan and any benefit
which the intended purchaser will have in respect of such Mortgage Loan
under any relevant Support Facility.
"Finance Charge Collections" in relation to a Collection Period means the
aggregate of the following amounts (without double counting) received by
or on behalf of the Trustee during that Collection Period in respect of
the Mortgage Loans then forming part of the Assets of the Series Trust:
(a) all amounts received under or in respect of the Mortgage Loans
(including Liquidation Proceeds) in respect of interest, fees,
Government Charges or other amounts due under the Mortgage Loans
(less reversals made during the period in respect of interest or
other charges in relation to any of the accounts where the original
debit entry (or part thereof) was in error) but excluding principal
and any insurance premiums and related charges payable to the
Relevant Seller;
(b) all amounts of interest received under or in respect of the Mortgage
Loans and the Mortgage Loan Rights to the extent that the
obligations to pay such amounts are discharged by the exercise
during that Collection Period of a right of set-off or right to
combine accounts; and
(c) subject to clause 8.7, any Break Costs,
but does not include any Mortgage Insurance Income Proceeds or Other
Income Amounts.
"First Layer of Collateral Securities" in relation to a Mortgage Loan
means:
(a) the Collateral Securities (other than any Mortgage Insurance Policy
relating to the Mortgage Loan or any related Insurance Policies)
from time to time appearing in the records of the Relevant Seller to
be intended as security for the Mortgage Loan;
(b) any Mortgage Insurance Policy relating to the Mortgage Loan; and
(c) any related Insurance Policies,
notwithstanding that by their terms the Collateral Securities (other than
the Mortgage Insurance Policies or any Insurance Policies) may also secure
other liabilities to the Relevant Seller.
"Fitch" means Fitch, Inc.
"Fixed Rate Swap" has the same meaning as in the Interest Rate Swap
Agreement.
"GEMI" means GE Mortgage Insurance Pty. Ltd, ABN 61 071 466 334.
"Government Charges" means any amount debited to the accounts established
in the Servicer's records for the Mortgage Loans representing financial
institutions duty, bank accounts debits tax or similar tax or duty imposed
by any Governmental Agency.
"Gross Unscheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
GUPA = OPA + PCOR + RBA + SRFA
13
where:
GUPA = the Gross Unscheduled Principal Amount;
OPA = the Other Principal Amounts on that Determination Date;
PCOR = the Principal Chargeoff Reimbursement on that Determination
Date;
RBA = the Redraw Bond Amount on that Determination Date; and
SRFA = the Standby Redraw Facility Advance to be made on the
following Monthly Distribution Date.
"GST" means the goods and services tax imposed pursuant to the GST Act.
"GST Act" means A New Tax System (Goods and Services Tax) Act, 1999.
"Hedge Provider" means an Interest Rate Swap Provider or a Currency Swap
Provider.
"Income Carryover Amount" means in respect of a Monthly Distribution Date
(which is not also a Quarterly Distribution Date) an amount calculated in
accordance with clause 10.2A(l) and certified by the Manager to the
Trustee for that Monthly Distribution Date.
"Income Loss" in relation to a Mortgage Loan, means on the Liquidation
Date for the Mortgage Loan, the aggregate of:
(a) all interest payable in respect of such Mortgage Loan up to and
including the Liquidation Date calculated at the Mortgage Rate and
otherwise in accordance with the Mortgage Documents, whether or not
such interest has been capitalised;
(b) all fees and other charges of any type whatsoever payable in respect
of such Mortgage Loan up to and including the Liquidation Date in
accordance with the Mortgage Documents, whether or not such fees and
other charges have been capitalised; and
(c) any Property Protection Expenses and Mortgage Enforcement Expenses
incurred in connection with such Mortgage Loan up to and including
the Liquidation Date,
less:
(d) any Liquidation Proceeds received in respect of such Mortgage Loan
up to and including the Liquidation Date in respect of such Mortgage
Loan provided that Liquidation Proceeds will only be included in
this paragraph (d) to the extent that the resulting Income Loss is
zero or a positive number.
"Income Shortfall" in relation to a Determination Date means the amount
(if any) by which the Required Income Amount for that Determination Date
exceeds the Preliminary Income Amount for that Determination Date.
"Initial Invested Amount" in relation to a Class A-1 Note has the meaning
given to it in clause 5.5(a) and in relation to an A$ Security has the
meaning given to it in clause 5.5(b).
"Insurance Policy" means any insurance policy (whether present or future)
under which the improvements on the Land the subject of a Mortgage or a
Collateral Security are insured against destruction or damage by events
which include fire.
"Insurance Proceeds" means the proceeds paid by an insurer pursuant to any
Insurance Policy.
"Interest Amount" in relation to an A$ Security and the relevant Accrual
Period means the
14
aggregate interest accrued on that A$ Security during that Accrual Period
pursuant to clause 5.6(b).
"Interest Rate" in relation to an A$ Security and the relevant Accrual
Period means the aggregate of:
(a) the Bank Bill Rate for that Accrual Period; and
(b) the Issue Margin for that A$ Security.
"Interest Rate Basis Cap" has the same meaning as in the Interest Rate
Swap Agreement.
"Interest Rate Swap Agreement" means an agreement in the form of an
amended ISDA Master Agreement dated on or about the date of this Deed
between the Trustee, the Manager and the initial Interest Rate Swap
Provider which provides for each of:
(a) the Fixed Rate Swaps;
(b) the Basis Swaps; and
(c) the Interest Rate Basis Cap,
and includes any substitute agreement in place of an existing Interest
Rate Swap Agreement.
"Interest Rate Swap Provider" means initially CBA and includes any other
person that subsequently enters into an Interest Rate Swap Agreement with
the Trustee and the Manager.
"Interest Rate Swap Provider Deposit" means any amount deposited by the
Interest Rate Swap Provider in the Collections Account or any other
account held by the Trustee as trustee of the Series Trust by way of
prepayment of the Interest Rate Swap Provider's payment obligations under
the Interest Rate Swap Agreement.
"Invested Amount" in relation to:
(a) a Class A-1 Note at any time has the same meaning as in the Class
A-1 Note Conditions; and
(b) an A$ Security at any time means the Initial Invested Amount of that
A$ Security less the aggregate of all amounts previously paid in
relation to that A$ Security on account of principal pursuant to
clause 10.3(c).
"Issue Date" in relation to a Security means the day on which the Security
is issued by the Trustee being the Closing Date of [ ].
"Issue Margin" in relation to:
(a) a Class A-2 Note and a Class B Note means, subject to the following:
(i) in the case of a Class A-2 Note, for the period from, and
including, the Closing Date to (but excluding) the Call Date
and, in the case of a Class B Note, to (but excluding) the
date on which the Class B Note ceases to accrue interest in
accordance with clause 5.6(b), the margin expressed as a
percentage per annum applying in relation, respectively, to
each Class A-2 Note and Class B Note determined in accordance
with the Dealer Agreement and advised by the Manager to the
Trustee; and
(ii) in respect of a Class A-2 Note only, for the period from, and
including, the Call Date to (but excluding) the date on which
the Class A-2 Note ceases to accrue interest in accordance
with clause 5.6(b), double the margin referred to in paragraph
(i) in relation to that Class A-2 Note,
15
provided that:
(1) if more than one Tranche of Class A-2 Notes is
issued, the Issue Margin for each Class A-2
Tranche will be as provided for in the Dealer
Agreement; and
(2) if on or after the Call Date the Trustee, at the
direction of the Manager, proposes to exercise its
option to redeem the Securities at their Stated
Amount in accordance with Condition 7.3 of the
Class A-1 Note Conditions on an applicable
Quarterly Distribution Date but is unable to do so
because, following a meeting of Securityholders
convened under the provisions of the Security
Trust Deed by the Manager for this purpose, the
Securityholders have not approved by an
Extraordinary Resolution the redemption of the
Securities at their Stated Amount, then the Issue
Margin in relation to each Class A-2 Note (and any
Class A-2 Tranche) from, and including that
Quarterly Distribution Date to, but excluding, the
date on which the Class A-2 Note ceases to accrue
interest in accordance with clause 5.6(b) will be
the margin in relation to the Class A-2 Notes
referred to in paragraph (i) or in sub-paragraphs
(1)(aa)(i), (1)(bb)(i) or (1)(cc)(i) of the
proviso set out above (as the case may be); and
(b) a Redraw Bond means the margin expressed as a percentage per annum
applying to the Redraw Bond determined in accordance with the Dealer
Agreement and advised by the Manager to the Trustee.
"Land" means:
(a) land (including tenements and hereditaments corporeal and
incorporeal and every estate and interest in it whether vested or
contingent, freehold or Crown leasehold, the term of which lease is
expressed to expire not earlier than 5 years after the maturity of
the relevant Mortgage, and whether at law or in equity) wherever
situated and including any fixtures to land; and
(b) any parcel and any lot, common property and land comprising a parcel
within the meaning of the Strata 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.
"Liquidated Mortgage Loan" means a Mortgage Loan with respect to which a
Material Default has occurred and with respect to which the Servicer has
determined that all Liquidation Proceeds likely to be recoverable have
been recovered, having regard to:
(a) any enforcement of the relevant Mortgage Documents;
(b) any sale of the relevant Mortgaged Property;
(c) any proceeds paid on the compulsory acquisition of the relevant
Mortgaged Property by any Governmental Agency;
(d) any Insurance Proceeds paid or payable under any relevant Insurance
Policy;
(e) any payments received from any relevant Borrower; and
16
(f) such other matters as the Servicer reasonably determines to be
relevant.
"Liquidation Date" in relation to a Mortgage Loan means the date on which
such Mortgage Loan becomes a Liquidated Mortgage Loan.
"Liquidation Proceeds" in relation to a Mortgage Loan means the amount
received by or on behalf of the Trustee in connection with the liquidation
of such Mortgage Loan including, without limitation:
(a) proceeds arising from the enforcement of the relevant Mortgage and
sale of the relevant Mortgaged Property;
(b) proceeds arising from the enforcement of the relevant Mortgage
Documents;
(c) Insurance Proceeds under any relevant Insurance Policy; and
(d) proceeds arising from any resumption or compulsory acquisition of
the relevant Mortgaged Property by any Governmental Agency,
but does not include:
(e) any amount required pursuant to the terms of any relevant Mortgage
Document or any law to be paid to the Borrower, including any person
having an interest in the Mortgaged Property as a mortgagee;
(f) if the Trustee is a party to a Fixed Rate Swap, any Break Costs;
(g) any Mortgage Insurance Income Proceeds; and
(h) any Mortgage Insurance Principal Proceeds.
"Liquidity Facility" means a liquidity facility made available by a
Liquidity Facility Provider to the Trustee pursuant to the Liquidity
Facility Agreement.
"Liquidity Facility Advance" in relation to a Monthly Distribution Date
means the amount to be advanced to the Trustee on that Monthly
Distribution Date under the Liquidity Facility.
"Liquidity Facility Agreement" means the Liquidity Facility Agreement
dated on or about the date of this Deed between the Trustee, the Manager
and the initial Liquidity Facility Provider and includes any substitute
liquidity facility agreement entered into by the Trustee as trustee of the
Series Trust in place of an existing Liquidity Facility Agreement.
"Liquidity Facility Commitment Fee" means in relation to a Determination
Date and the immediately following Monthly Distribution Date, the
commitment fee payable to the Liquidity Facility Provider on that Monthly
Distribution Date pursuant to the Liquidity Facility Agreement.
"Liquidity Facility Interest" in relation to a Monthly Distribution Date
means the interest due on that Monthly Distribution Date pursuant to the
terms of a Liquidity Facility Agreement.
"Liquidity Facility Limit" means the aggregate principal amount available
at any time and as defined in the Liquidity Facility Agreement.
"Liquidity Facility Principal" in relation to a Determination Date and the
immediately following Monthly Distribution Date means the aggregate of all
Liquidity Facility Advances outstanding under the Liquidity Facility
Agreement at that Determination Date.
"Liquidity Facility Provider" means initially CBA and each other person
who may from time to time provide a Liquidity Facility.
17
"Loan Agreement" means, with respect to a Mortgage Loan, any agreement,
schedule, terms and conditions, letter, application, approval or other
document (other than the relevant Mortgage) relating to the provision of
financial accommodation by the Relevant Seller to the Borrower in
connection with such Mortgage Loan.
"Loan Files" in relation to a Mortgage Loan means such books, records,
paper and electronic files (whether originals or copies) relating to that
Mortgage Loan (other than the Mortgage Documents) which the Servicer has
in its custody.
"Loan to Value Ratio" in relation to a Mortgage Loan means the amount
(expressed as a percentage) calculated as follows:
L
-
V
where:
L = the amount of the Mortgage Loan outstanding as at the date of
determination or if at the date of determination the Mortgage
Loan has not been made, the amount of the then proposed
Mortgage Loan; and
V = the aggregate value of the Land subject to any Mortgage
recorded as securing the Mortgage Loan, as determined in
accordance with the then Servicing Standards.
"Loss Recovery" in relation to a Liquidated Mortgage Loan means all
amounts received by or on behalf of the Trustee in respect of that
Liquidated Mortgage Loan after the relevant Liquidation Date.
"Management Fee" means the fee payable to the Manager on each Monthly
Distribution Date in accordance with clause 19.1.
"Manager" means Securitisation Advisory Services Pty. Limited or if
Securitisation Advisory Services Pty. Limited retires or is removed as
Manager of the Series Trusts (as defined in the Master Trust Deed), any
then Substitute Manager and includes the Trustee when acting as the
Manager of the Series Trusts in accordance with the terms of the Master
Trust Deed.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Manager and the Trustee.
"Material Default" in relation to a Mortgage Loan means:
(a) a failure by the Borrower (as recognised by the Servicer's system)
to pay on the due date any amount due pursuant to the corresponding
Loan Agreement (including any amount not previously paid which
remains outstanding) where the failure continues, without remedy,
for a period of 60 days from the due date for the payment of such
amount under the relevant Loan Agreement; or
(b) an event of default, howsoever described, (other than an event of
default referred to in paragraph (a)) occurs under any relevant
Mortgage Document where the event of default continues unremedied
for 60 days (or such shorter period as the Servicer may determine is
appropriate in relation to a specific event of default) unless the
Servicer reasonably determines that such event of default is of a
minor or technical nature and will not result in an Adverse Effect.
"Monthly Anniversary Date" in relation to a Mortgage Loan means the date
on which interest is debited to the Borrower's Mortgage Loan account by
the Servicer pursuant to the relevant Loan Agreement.
18
"Monthly Certificate" means the certificate prepared for each Monthly
Distribution Date by the Manager pursuant to clause 27.2(b) substantially
in the form set out in Schedule 8A (or in such other form as is from time
to time agreed between the Manager and the Trustee).
"Monthly Distribution Date" means the [ ]th day of each calendar month,
commencing on [ ] (or if any such day is not a Business Day,
the next Business Day).
"Moody's" means Xxxxx'x Investors Service Inc. and its successors and
assigns.
"Mortgage" in relation to a Mortgage Loan means each registered mortgage
over Land situated in any State or Territory of Australia and appearing on
the Relevant Seller's records as securing, amongst other things, the
repayment of the Mortgage Loan and the payment of interest and all other
moneys in respect of the Mortgage Loan notwithstanding that by its terms
the mortgage may secure other liabilities to the Relevant Seller. If, at
any time after the date of the Sale Notice, a mortgage is substituted, or
added as security, for an existing Mortgage, then with effect from the
date of such addition or substitution the definition of "Mortgage" will
mean the substituted mortgage or include the additional mortgage, as the
case may be.
"Mortgage Documents" in relation to a Mortgage Loan means:
(a) the Loan Agreement (if other than the Mortgage) relating to the
Mortgage Loan;
(b) the original or duplicate Mortgage documents in relation to the
Mortgage Loan (including any document evidencing any substituted or
additional Mortgage);
(c) the Certificate of Title or other indicia of title (if any) in
respect of the Land the subject of the Mortgage in relation to the
Mortgage Loan;
(d) the original or duplicate of the First Layer of Collateral
Securities documents (other than the Insurance Policies) in relation
to the Mortgage Loan;
(e) any Insurance Policy (or certificate of currency for the Insurance
Policy) held by the Relevant Seller in respect of the Mortgage or
the First Layer of Collateral Securities in relation to the Mortgage
Loan;
(f) any deed of priority or its equivalent in writing entered into in
connection with the Mortgage or the First Layer of Collateral
Securities in relation to the Mortgage Loan;
(g) all other documents required to evidence the Relevant Seller's or
the Trustee's interest in the above Land, the above Mortgage and the
above First Layer of Collateral Securities; and
(h) any amendment or replacement of or to any of the foregoing such
documents which is entered into, and under which rights arise,
whether before or after the Cut-Off Date.
"Mortgage Enforcement Expenses" means all costs and expenses properly
incurred by the Servicer, a Seller or the Trustee (other than their
respective internal administrative costs) in connection with the
enforcement of any Mortgage Loan forming part of the Assets of the Series
Trust, the related Mortgage or the related First Layer of Collateral
Securities or the recovery of any amounts owing under the Mortgage Loan
including, without limitation:
(a) legal costs and disbursements (including those of in-house counsel)
charged at the usual commercial rates of the relevant legal services
provider;
(b) costs in connection with the entering into of possession or the sale
of any property secured by any related Mortgage or First Layer of
Collateral Securities and any real estate or auctioneer's fees and
expenses; and
19
(c) any Tax in connection with the sale of the relevant Mortgaged
Property,
provided that Mortgage Enforcement Expenses will not include Property
Protection Expenses or Restoration Expenses.
"Mortgage Insurance Income Proceeds" in relation to a Determination Date
means all amounts received by the Trustee pursuant to any Mortgage
Insurance Policy in relation to any Mortgage Loan then forming part of the
Assets of the Series Trust which the Manager determines should be
accounted for on that Determination Date in respect of an Income Loss.
"Mortgage Insurance Policy" means:
(a) the PMI Mortgage Insurance Policy; and
(b) any primary mortgage insurance policy granted by GEMI in force in
respect of a Mortgage Loan, an Other Loan, a Mortgage or a
Collateral Security which forms part of the Assets of the Series
Trust.
"Mortgage Insurance Principal Proceeds" in relation to a Determination
Date means all amounts received by the Trustee pursuant to any Mortgage
Insurance Policy in relation to any Mortgage Loan then forming part of the
Assets of the Series Trust which the Manager determines should be
accounted for on that Determination Date in respect of a Principal Loss.
"Mortgage Interest Saver Account" means a deposit account maintained by a
Borrower with a Seller under which interest that would otherwise be earned
in respect of the account is off-set (to the extent thereof) against
interest that would otherwise be payable on a Mortgage Loan provided by
that Seller to the Borrower.
"Mortgage Loan" means (subject to paragraph (d) of the definition of
"Relevant Seller") each mortgage loan assigned or to be assigned (as the
case may be) to the Trustee and referred to in a Sale Notice (if issued).
"Mortgage Loan Principal" at any time in relation to a Mortgage Loan means
the principal outstanding at that time in respect of that Mortgage Loan.
"Mortgage Loan Rights" means each of the items (together with all rights,
title and interest in each of those items) referred to in clause 4.5
assigned, or which may be assigned, as the case may be, in accordance with
this Deed to the Trustee as trustee of the Series Trust or the CBA Trust.
"Mortgage Loan System" means the electronic and manual reporting database
and record keeping system used by the Servicer to monitor Mortgage Loans,
as updated and amended from time to time.
"Mortgage Rate" in relation to a Mortgage Loan means the rate of interest
payable on the corresponding Mortgage Loan Principal, as such rate may be
varied from time to time in accordance with the relevant Mortgage
Documents or any laws.
"Mortgage Receivables" in relation to a Mortgage Loan means all moneys,
present and future, actual or contingent, owing at any time in respect of
or in connection with the Mortgage Loan under the corresponding Mortgage
Documents, including all principal, interest, reimbursable costs and
expenses and any other amounts incurred by or payable to the Relevant
Seller (including any payments made by the Relevant Seller on behalf of
the Borrower in relation to the Mortgage Loan) irrespective of whether:
(a) such amounts become due and payable before or after the Cut-Off
Date; and
(b) such amounts relate to advances made or other financial
accommodation provided by the Relevant Seller to the Borrower before
or after the Cut-Off Date.
20
"Mortgage Transfer" in relation to a Mortgage means a duly executed land
titles office transfer which, upon registration, is effective to transfer
the legal title to the Mortgage to the Trustee.
"Mortgaged Property" in relation to a Mortgage means the Land and all
other property mortgaged under that Mortgage.
"Net Break Payment" in relation to a Determination Date means the amount
calculated as follows:
NBP = BC - BB
where:
NBP = the Net Break Payment;
BC = the Break Costs in relation to that Determination Date; and
BB = the Break Benefits in relation to that Determination Date,
provided that there will only be a Net Break Payment if the result of the
above calculation is greater than zero.
"Net Break Receipt" in relation to a Determination Date means the amount
calculated as follows:
NBR = BB - BC
where:
NBR = the Net Break Receipt;
BB = the Break Benefits in relation to that Determination Date; and
BC = the Break Costs in relation to that Determination Date,
provided that there will only be a Net Break Receipt if the result of the
above calculation is greater than zero.
"Net Scheduled Principal Amount" in relation to a Determination Date means
the amount calculated as follows:
NSPA = PC - NUPD
where:
NSPA = the Net Scheduled Principal Amount;
PC = the Principal Collections for the Collection Period ending on
that Determination Date; and
NUPD = the Net Unscheduled Principal Deduction for that Determination
Date,
provided that there will only be a Net Scheduled Principal Amount if the
result of the above calculation is greater than zero.
"Net Unscheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
NUPA = GUPA - SA - SRFP - RBD
21
where:
NUPA = the Net Unscheduled Principal Amount;
GUPA = the Gross Unscheduled Principal Amount on that Determination
Date;
SA = the Seller Advances outstanding on that Determination Date;
SRFP = the Standby Redraw Facility Principal on that Determination
Date; and
RBD = the amount (if any) to be paid with respect to the Redraw
Bonds pursuant to clause 10.5(a) on the following Monthly
Distribution Date,
provided that there will only be a Net Unscheduled Principal Amount if the
result of the above calculation is greater than zero.
"Net Unscheduled Principal Deduction" in relation to a Determination Date
means the amount calculated as follows:
NUPD = SA + SRFP + RBD - GUPA
where:
NUPD = the Net Unscheduled Principal Deduction;
GUPA = the Gross Unscheduled Principal Amount on that Determination
Date;
SA = the Seller Advances outstanding on that Determination Date;
SRFP = the Standby Redraw Facility Principal on that Determination
Date; and
RBD = the amount (if any) to be paid with respect to the Redraw
Bonds pursuant to clause 10.5(a) on the following Monthly
Distribution Date,
provided that there will only be a Net Unscheduled Principal Deduction if
the result of the above calculation is greater than zero.
"Note" means, as the context requires, a Class A Note, a Class B Note or
both.
"Noteholder" means, as the context requires, a Class A-1 Noteholder, a
Class A-2 Noteholder, a Class B Noteholder or any combination of the
foregoing.
"Other Income Amounts" in respect of a Determination Date and a Collection
Period ending on that Determination Date means the aggregate of:
(a) any amounts received by the Trustee during the Collection Period
pursuant to clauses 14 and 16 which represent amounts in respect of
accrued but unpaid interest and fees on the Mortgage Loans;
(b) any amounts received by the Trustee during the Collection Period
pursuant to clause 26.3 which represent amounts in respect of
interest and fees on the Mortgage Loans;
(c) any damages received by the Trustee in the Collection Period (other
than pursuant to clauses 14 and 16) and allocated by the Manager as
Other Income Amounts in accordance with clause 27.5;
(d) subject to clause 22.12, interest and other investment income earned
and received on moneys standing to the credit of the Collections
Account during the Collection Period (other than interest earned on
the Collections Account during the Collection
22
Period in respect of the Cash Advance Deposit as calculated in
accordance with clause 8.6, the Seller Deposit as calculated in
accordance with clause 15.5 or the Interest Rate Swap Provider
Deposit as calculated in accordance with clause 8.8) and any amounts
representing interest paid by the Servicer pursuant to clause 22.5
in respect of that Collection Period;
(e) interest and other investment income earned and received on
Authorised Short-Term Investments during the Collection Period
(including any amount retained in the Collections Account or
invested on the previous Determination Date in accordance with
clause 5.12 but excluding interest attributable to the Seller
Deposit calculated in accordance with clause 15.5 and the Interest
Rate Swap Provider Deposit calculated in accordance with clause
8.8);
(f) subject to clause 9.3, any other receipts in the nature of income
(as determined by the Manager) which have been received by the
Determination Date in respect of the Collection Period; and
(g) any amount of input tax credits (as defined in the GST Act) received
by the Trustee in the Collection Period in respect of the Series
Trust,
in each case which have not previously been applied in accordance with
this Deed.
"Other Loans" in relation to a Mortgage Loan means all loans, credit and
financial accommodation of whatever nature (other than the Mortgage Loan)
the payment or repayment of which is secured by a Mortgage, or by a
Collateral Security, which also secures that Mortgage Loan or another
Other Loan in relation to that Mortgage Loan.
"Other Principal Amounts" in relation to a Determination Date and the
Collection Period ending on that Determination Date means the aggregate
of:
(a) any Mortgage Insurance Principal Proceeds in respect of that
Determination Date;
(b) the aggregate Liquidation Proceeds in respect of the Mortgage Loans
received during the Collection Period other than Liquidation
Proceeds included in Finance Charge Collections for that Collection
Period;
(c) the Principal Prepayments with respect to the Collection Period;
(d) any amounts received by the Trustee during the Collection Period
pursuant to clauses 14 and 16 which represent amounts in respect of
principal on the Mortgage Loans;
(e) any amounts received by the Trustee during the Collection Period
pursuant to clause 26.3 which represent amounts in respect of
principal on the Mortgage Loans;
(f) any damages received by the Trustee during the Collection Period
(other than pursuant to clauses 14 and 16) and allocated by the
Manager as Other Principal Amounts in accordance with clause 27.5;
(g) in the case of the first Determination Date, the amount (if any) by
which the Subscription Proceeds exceed the Consideration;
(h) any amount remaining unpaid on the previous Monthly or Quarterly
Distribution Date as a result of the application of clause 5.9 in
respect of principal; and
(i) any other receipts in the nature of principal (as determined by the
Manager) which have been received by the Determination Date in
respect of the Collection Period,
in each case which have not previously been applied in accordance with
this Deed.
23
"Paying Agent" has the same meaning as in the Agency Agreement.
"Penalty Payment" means:
(a) the amount of any liability (including, without limitation, any
civil or criminal penalty) which the Trustee is liable for under the
Consumer Credit Code;
(b) any other liability payable by the Trustee, or legal costs or other
expenses payable or incurred by the Trustee, in relation to such
liability;
(c) any amount which the Trustee agrees to pay (with the consent of the
Servicer) to a debtor or other person in settlement of any
application for an order under Part 6 of the Consumer Credit Code;
and
(d) any legal costs or other costs and expenses payable or incurred by
the Trustee in relation to that application,
to the extent to which a person can be indemnified for that liability,
money or amount under the Consumer Credit Code.
"Perfection of Title Event" means each event referred to in clause 24.1.
"PMI" means PMI Mortgage Insurance Limited.
"PMI Mortgage Insurance Policy" means the policy issued by PMI in relation
to some of the Mortgage Loans from time to time forming part of the Assets
of the Series Trust pursuant to the Lenders' Mortgage Insurance Provisions
dated on or about the date of this Deed between [ ], the Trustee and
the Seller.
"Pool Factor" in relation to a Security at any given time means the amount
(expressed as a percentage to 7 decimal places) calculated as follows:
A
PF = -
B
where:
PF = the Pool Factor in relation to that Security;
A = the Stated Amount for that Security as at that time; and
B = the Initial Invested Amount for that Security.
"Pool Performance Data" means performance data in respect of the
Securities on a Determination Date consisting of prepayment rates, arrears
data and default data in respect of Mortgage Loans then forming part of
the Assets of the Series Trust, the Pool Factor at the last Determination
Date and the Pool Factor on the present Determination Date, the principal
outstanding on the Securities, the Interest Rates in respect of the A$
Securities, the Class A-1 Interest Rate (as defined in the Class A-1 Note
Conditions) for the Class A-1 Notes and such other information as the
Manager may consider necessary from time to time.
"Potential Termination Event" means:
(a) as a result of the introduction, imposition or variation of any law
it is unlawful for the Trustee, and would also be unlawful for any
new Trustee, to carry out any of its obligations under this Deed,
the Master Trust Deed (in so far as it relates to the Series Trust),
the Class A-1 Note Trust Deed, the Class A-1 Notes or the Security
Trust Deed; or
24
(b) this Deed, the Master Trust Deed (in so far as it relates to the
Series Trust) the Class A-1 Note Trust Deed, the Class A-1 Notes or
the Security Trust Deed is or has become void, illegal,
unenforceable or of limited force and effect.
"Powers of Attorney" means the powers of attorney referred to in clause
6.1(n).
"Preliminary Income Amount" in relation to a Determination Date means the
amount calculated as follows:
PIA = FCC + MIIP + OI + ICOA
where:
PIA = the Preliminary Income Amount for that Determination Date;
FCC = the Finance Charge Collections for the Collection Period
ending on that Determination Date;
MIIP = the aggregate Mortgage Insurance Income Proceeds on that
Determination Date; and
OI = any Other Income Amounts in respect of the Collection Period
ending on that Determination Date and which has not previously
been applied in accordance with this Deed.
ICOA = the Income Carryover Amount from the preceding Monthly
Distribution Date.
"Prescribed Period" in relation to a Mortgage Loan means the period of 120
days (including the last day of that period) commencing on the Closing
Date or such longer period as may be agreed between the Australian
Prudential Regulation Authority, the Trustee, the Relevant Seller and the
Manager.
"Principal Chargeoff" in relation to a Determination Date falling in a
month in which a Quarterly Distribution Date also falls, means an amount
calculated as follows:
PCO = PL - MIPP - PD
where:
PCO = the Principal Xxxxxxxxx as at that Determination Date;
PL = the total of the Principal Loss on each Mortgage Loan for
which the Manager determines a Principal Loss should be
accounted for over the preceding quarterly Accrual Period (as
set out in paragraph (a) of the definition of "Accrual
Period") on that Determination Date (provided that the Manager
must not account for a Principal Loss on a Mortgage Loan until
the Servicer reasonably believes that no further amounts in
respect of the Mortgage Loan constituting Mortgage Insurance
Principal Proceeds or damages under clauses 14 and 16 which
are to be treated as Other Principal Amounts will be
received);
MIPP = the total Mortgage Insurance Principal Proceeds with respect
to such Mortgage Loans determined over the preceding quarterly
Accrual Period ending on but excluding the following Quarterly
Distribution Date; and
PD = any damages received by the Trustee from CBA under clause 14
or from CBA or the Servicer under clause 16 in respect of such
Mortgage Loans which are determined to be Other Principal
Amounts in accordance with
25
clause 27.5.
"Principal Chargeoff Reimbursement" in relation to a Determination Date,
falling in a month in which a Quarterly Distribution Date also falls,
means an amount calculated as follows:
PCOR = PIA - RIA
where:
PCOR = the Principal Chargeoff Reimbursement as at that Determination
Date;
PIA = the Preliminary Income Amount as at such Determination Date;
and
RIA = the Required Income Amount as at that Determination Date,
provided that there will only be a Principal Chargeoff Reimbursement if
the result of the above calculation is greater than zero and provided
further that where the result of the above calculation exceeds the
Unreimbursed Principal Chargeoffs as at the previous Determination Date
plus the Principal Chargeoffs calculated as at the current Determination
Date, the Principal Chargeoff Reimbursement will equal such amount.
"Principal Collections" in relation to a Collection Period means the
aggregate of the following amounts (without double counting) received by
or on behalf of the Trustee during that Collection Period in respect of
the Mortgage Loans then forming part of the Assets of the Series Trust:
(a) all amounts received under or in respect of the Mortgage Loans in
respect of principal (less reversals made during the period in
respect of interest or other charges in relation to any of the
accounts where the original debit entry (or part thereof) was in
error); and
(b) all amounts of principal payable under or in respect of the Mortgage
Loans and the Mortgage Loan Rights to the extent that the
obligations to pay such amounts are discharged by the exercise
during that Collection Period of a right of set-off or right to
combine accounts,
but does not include the Preliminary Income Amount or Other Principal
Amounts in relation to that Determination Date.
"Principal Loss" in relation to a Mortgage Loan and a Liquidation Date
means an amount calculated as follows:
PL = MLP + RE - BC - LP
where:
PL = the Principal Loss as at the Liquidation Date;
MLP = the Mortgage Loan Principal as at the Liquidation Date;
RE = the Restoration Expenses reasonably and necessarily incurred
up to and including the Liquidation Date;
BC = the Break Costs as at the Liquidation Date provided that Break
Costs will only be included in the calculation of Principal
Loss if the Trustee is then a party to a Fixed Rate Swap; and
LP = any Liquidation Proceeds received up to and including the
Liquidation Date provided that for the purposes of this
paragraph Liquidation
26
Proceeds will not include any Liquidation Proceeds which have
been applied against an Income Loss or are to be applied
against an Income Loss on the Liquidation Date,
provided that there will only be such a Principal Loss if the result of
the above calculation is greater than zero.
"Principal Paying Agent" has the same meaning as in the Agency Agreement.
"Principal Prepayments" in relation to a Collection Period means all
amounts received by or on behalf of the Trustee during that Collection
Period under or in respect of the Mortgage Loans then forming part of the
Assets of the Series Trust in respect of principal prepayments made by or
on behalf of the Borrower in relation to that Mortgage Loan (less
reversals made during the period in respect of interest or other charges
in relation to any of the accounts where the original debit entry (or part
thereof) was in error) to the extent that the amount exceeds the then
scheduled monthly instalment of principal that would be payable under that
Mortgage Loan (including previous unpaid instalments of principal) during
that Collection Period.
"Privacy Act" means the Privacy Act 1988 (Commonwealth).
"Property Protection Expenses" in relation to a Mortgage Loan means the
aggregate amount of any costs or expenses actually paid or incurred by the
Servicer, the Relevant Seller or the Trustee in connection with the
maintenance, preservation and protection of the corresponding Mortgaged
Property in its existing state of repair at its existing value, including,
without limitation:
(a) any real estate property Taxes, statutory charges or other outgoings
payable in connection with the corresponding Mortgaged Property; and
(b) any insurance premiums payable under any Insurance Policy with
respect to the corresponding Mortgaged Property,
provided that Property Protection Expenses will not include any Mortgage
Enforcement Expenses or any Restoration Expenses.
"Quarterly Certificate" means the certificate prepared for each Quarterly
Distribution Date by the Manager pursuant to clause 27.2(a) substantially
in the form set out in Schedule 8B (or in such other form as is from time
to time agreed between the Manager and the Trustee).
"Quarterly Distribution Date" means the [ ]th day of each February, May,
August and November, commencing on [ ](or if any such a day is not
a Business Day, the next Business Day).
"Rate Set Date" in relation to an Accrual Period means the first day of
the relevant Accrual Period.
"Rating Agencies" means S&P, Xxxxx'x and Fitch.
"Redraw Bond" means a debt security issued by the Trustee, in its capacity
as trustee of the Series Trust, in accordance with clause 5.4 and forming
part of the Class of Securities described in clause 5.1(d) as Redraw
Bonds.
"Redraw Bond Amount" in relation to a Determination Date means the
proceeds (if any) received by the Trustee from any issue of Redraw Bonds
on the Determination Date or during the Collection Period ending on that
Determination Date (but excluding the immediately preceding Determination
Date).
"Redraw Bond Chargeoff Percentage" in relation to a Determination Date
means the amount (expressed as a percentage) calculated as follows:
27
RBSA
RBCP = ---------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
RBCP = the Redraw Bond Chargeoff Percentage in relation to that
Determination Date;
CA1SA = the aggregate Adjusted Stated Amounts of the Class A-1 Notes
on that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that
Determination Date;
RBSA = the aggregate Stated Amount of the Redraw Bonds on that
Determination Date; and
SRFP = the Standby Redraw Facility Principal on that Determination
Date.
"Redraw Bond Principal Limit" means A$[ ] million or such other amount
from time to time agreed between the Rating Agencies and the Manager and
notified by the Manager to the Trustee.
"Redraw Bondholder" means at any time the person recorded at that time in
the Register as the holder of a Redraw Bond.
"Relevant CBA Trust Assets" means in respect of a Relevant Seller the CBA
Trust Assets representing and attributable to the Mortgage Loans assigned
by that Relevant Seller to the Trustee from time to time.
"Required Credit Rating" has the meaning specified in clause 27.1.
"Required Income Amount" in relation to a Determination Date means the
aggregate of the amounts referred to in clauses 10.2A(a)-(k) inclusive
(where such Determination Date falls in a month in which a Quarterly
Distribution Date does not fall) or clause 10.2B(a)-(n) inclusive (where
such Determination Date falls in any other month)for the following Monthly
Distribution Date or Quarterly Distribution Date provided that, in respect
only of the first Determination Date, the total amount payable by the
Trustee to the Relevant Sellers under clause 10.1 will be included in the
Required Income Amount.
"Relevant Party" means each party to a Transaction Document other than the
Trustee.
"Relevant Seller" means:
(a) in relation to any CBA Trust Asset other than money referred to in
clause 2.1(b):
(i) CBA, where that CBA Trust Asset has been assigned to the
Trustee by CBA; and
(ii) Colonial State Bank, where that CBA Trust Asset has been
assigned to the Trustee by Colonial State Bank; and
(b) in relation to the money referred to in clause 2.1(b) - the Seller
that paid the money to the Trustee;
(c) in relation to a Sale Notice - the Seller giving the Sale Notice;
and
(d) in relation to any (existing or proposed) Asset of the Series Trust
(including a Mortgage Loan):
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(i) CBA, where that Asset has been assigned (or is proposed to be
assigned) to the Trustee by CBA; and
(ii) Colonial State Bank, where that Asset has been assigned (or is
proposed to be assigned) to the Trustee by Colonial State
Bank.
"Residual Unit" means the single unit in the Series Trust referred to in
clause 3.1.
"Residual Unitholder" means initially CBA and, thereafter, the person from
time to time appearing in the Register for the Series Trust as the holder
of the Residual Unit.
"Restoration Expenses" in relation to a Mortgage Loan means the aggregate
amount of any costs or expenses actually paid or incurred by the Servicer,
the Relevant Seller or the Trustee in connection with the restoration of
the corresponding Mortgaged Property including, without limitation, any
costs or expenses:
(a) in restoring the corresponding relevant Mortgaged Property to its
condition as at the date on which the Mortgage Loan was made to the
Borrower; and
(b) in connection with the reduction, elimination or clean-up of any
environmental hazard relating to the corresponding Mortgaged
Property,
provided that Restoration Expenses will be calculated without reference to
the fact that the amount expended was paid from the Servicer's, the
Relevant Seller's or the Trustee's own funds or from Insurance Proceeds or
from any other source whatsoever and provided further that Restoration
Expenses will not include any Property Protection Expenses or Mortgage
Enforcement Expenses.
"S&P" means Standard & Poor's (Australia) Pty. Limited and its successors
and assigns.
"Sale Notice" means a notice from a Seller to the Trustee in or
substantially in the form of Schedule 1 (or in such other form as may be
agreed between the Relevant Seller, the Manager and the Trustee).
"Scheduled Balance" in relation to a Mortgage Loan means the amount that
would be owing on the Mortgage Loan at the date of determination if the
Borrower had made, prior to that date, the minimum payments required under
the Mortgage Loan.
"Scheduled Maturity Date" means the relevant Monthly Distribution Date and
Quarterly Distribution Date occurring on [ ] (or if this is not a
Business Day, on the next succeeding Business Day).
"Second Layer of Collateral Securities" in relation to a Mortgage Loan
means all Collateral Securities in respect of the Mortgage Loan which do
not constitute the First Layer of Collateral Securities for the Mortgage
Loan.
"Secured Creditor" has the same meaning as in the Security Trust Deed.
"Securities Act" means the United States Securities Act of 1933 as
amended.
"Security" means as the context requires a Class A-1 Note, an A$ Security
or both.
"Securityholder" means a Noteholder or a Redraw Bondholder or both, as the
context may require.
"Security Register" means the system which is used by a Seller to record
Security Interests granted to the Seller to secure the repayment of a
Mortgage Loan originated by the Seller.
"Security Trust Deed" means the Security Trust Deed dated on or about the
date of this Deed
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between the Trustee, the Manager, the Note Trustee and the Security
Trustee.
"Security Trustee" means the person who is for the time being the trustee
under the Security Trust Deed.
"Security Trustee's Expenses" means the costs and fees to be reimbursed to
the Security Trustee on each Monthly Distribution Date in accordance with
clause 19.5(b).
"Security Trustee's Fee" means the fee payable to the Security Trustee on
each Monthly Distribution Date in accordance with clause 19.5(a).
"Seller Advance" means an advance made by a Seller to a Borrower pursuant
to clause 16.20(c) or clause 16.21(c) on or after the Cut-Off Date which
appears in the records of the Servicer or on the Security Register as
secured by a Mortgage which also secures a Mortgage Loan, and a reference
to "Seller Advances" is a reference to all Seller Advances made by either
Seller.
"Seller Deposit" means at any time that amount of the Set-Off Account that
comprises deposits made by CBA in accordance with clauses 15.3(a) and
15.4(b) which have not been utilised pursuant to clause 15.8(b) or repaid
pursuant to clauses 15.4(a), 15.6 and 15.7.
"Series Trust" means the trust known as the Series [ ] Medallion Trust
established pursuant to this Deed and the Master Trust Deed.
"Servicer" means CBA or if CBA is removed or retires as Servicer, any then
Substitute Servicer, and includes:
(a) the Trustee when acting as Servicer in accordance with clause 18.7;
and
(b) a Related Body Corporate of CBA when acting as a delegate of the
Servicer pursuant to clause 16.30, or (if the context requires) to
the extent to which a Related Body Corporate of CBA serviced
Mortgage Loans prior to their assignment to the Trustee, and
references to "the Servicer's System" or "the Mortgage Loan System"
shall be construed as including such a Related Body Corporate's
system(s) whilst acting under this paragraph (b).
"Servicer Default" means the occurrence of any event specified in clause
18.1.
"Servicer's Fee" means the remuneration payable to the Servicer pursuant
to clause 19.4.
"Servicing Guidelines" means the relevant written guidelines, policies and
procedures established by the Servicer for servicing mortgage loans
recorded on the Mortgage Loan System, including the Mortgage Loans, as
amended or updated in writing from time to time.
"Servicing Standards" at any given time means the relevant standards and
practices set out in the then Servicing Guidelines and, to the extent that
a servicing function is not covered by the Servicing Guidelines, the
standards and practices of a prudent lender in the business of making
retail home loans.
"Servicing Transfer" means the appointment of a new Servicer in accordance
with clause 18.
"Set-Off Account" has the meaning given to this term in clause 15.3.
"Settlement Date" in relation to a Mortgage Loan means the date on which
an agreement between a Seller and a Borrower for the making of the
Mortgage Loan was made.
"Shared Security" means any Security Interest, guarantee, indemnity or
other form of assurance that by its terms secures both (on the one hand)
the payment or repayment of any Mortgage Loan forming or to form part of
the Assets of the Series Trust and (on the other
30
hand) any Other Loan forming or to form part of the CBA Trust Assets.
"Specified Rating" means a long term debt rating by S&P of BBB, by Xxxxx'x
of Baa2 and by Fitch of BBB.
"Standby Redraw Chargeoff Percentage" in relation to a Determination Date
means the amount (expressed as a percentage) calculated as follows:
SRFP
SRCP = --------------------------
CA1SA + RBSA + SRFP +CA2SA
where:
SRCP = the Standby Redraw Chargeoff Percentage in relation to that
Determination Date;
CA1SA = the aggregate Adjusted Stated Amounts of the Class A-1 Notes
on that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that
Determination Date;
RBSA = the aggregate Stated Amounts of the Redraw Bonds on that
Determination Date; and
SRFP = the Standby Redraw Facility Principal on that Determination
Date.
"Standby Redraw Facility" means a standby redraw facility made available
by a Standby Redraw Facility Provider to the Trustee pursuant to the
Standby Redraw Facility Agreement.
"Standby Redraw Facility Advance" in relation to a Monthly Distribution
Date means the amount to be drawn down by the Trustee under a Standby
Redraw Facility on that Monthly Distribution Date.
"Standby Redraw Facility Agreement" means the Standby Redraw Facility
Agreement dated on or about the date of this Deed between the Trustee, the
Manager and the Standby Redraw Facility Provider and includes any
substitute standby redraw facility agreement entered into by the Trustee
as trustee of the Series Trust in place of an existing Standby Redraw
Facility Agreement.
"Standby Redraw Facility Commitment Fee" means in relation to a
Determination Date and the immediately following Monthly Distribution
Date, the commitment fee payable to the Standby Redraw Facility Provider
on that Monthly Distribution Date pursuant to the Standby Redraw Facility
Agreement.
"Standby Redraw Facility Interest" in relation to a Monthly Distribution
Date means the interest due on that Monthly Distribution Date pursuant to
the terms of a Standby Redraw Facility Agreement.
"Standby Redraw Facility Limit" means the Facility Limit from time to time
as defined in the Standby Redraw Facility Agreement.
"Standby Redraw Facility Principal" has the same meaning as in the Standby
Redraw Facility Agreement.
"Standby Redraw Facility Provider" means initially CBA and each other
person who may from time to time provide a Standby Redraw Facility.
"Stated Amount" in relation to:
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(a) a Class A-1 Note at any given time has the same meaning as in the
Class A-1 Note Conditions; and
(b) an A$ Security at any given time means the Initial Invested Amount
of that A$ Security at that time less the sum of the following at
that time:
(i) the aggregate of all amounts previously paid in relation to
that A$ Security on account of principal pursuant to clause
10.3(c); and
(ii) the aggregate of all then Unreimbursed Principal Chargeoffs in
relation to that A$ Security.
"Stepdown Percentage" in relation to a Determination Date means the
percentage calculated in accordance with Schedule 10 for that
Determination Date.
"Subscription Amount" in relation to the Residual Unit at any time means
the aggregate of:
(a) the amount of $100 paid by the Manager to the Trustee upon the
constitution of the Series Trust pursuant to clause 3.3 of the
Master Trust Deed; and
(b) the additional amounts, if any, previously paid by the Residual
Unitholder to, or at the direction of, the Trustee pursuant to
clause 3.6,
less the aggregate of all amounts previously applied towards the reduction
of the Subscription Amount pursuant to clauses 10.3(d) or 11.2(b)(ii).
"Subscription Proceeds" means the amounts paid or to be paid by the
underwriters for the Class A-1 Notes under the Underwriting Agreement
(converted into A$ pursuant to the Class A-1 Currency Swaps) and the
amounts paid by the subscribers for the Class A-2 Notes and the Class B
Notes under the Dealer Agreement, without taking into account in reduction
of such amounts any fees or other amounts paid to such underwriters by or
on behalf of the Trustee.
"Substitute Servicer" means at any given time the entity then appointed as
Servicer under clause 18.6.
"Support Facilities" means the agreements or arrangements referred to in
clause 1.7 or such other agreement or arrangement which the Trustee and
the Manager agree is a Support Facility for the purposes of this Deed.
"Support Facility Provider" means the person or persons providing any
applicable Support Facility to the Trustee as trustee of the Series Trust.
"Swap" means, as the context requires, the respective Transactions as
defined in and entered into under the Basis Swap, the Fixed Rate Swap, the
Class A-1 Currency Swap or all or any of the foregoing.
"Termination Date" means the earliest of the following dates:
(a) the date which is 80 years after the date of the constitution of the
Series Trust in accordance with this Deed and the Master Trust Deed;
(b) the date that the Trustee becomes obliged pursuant to clause 26.1(d)
to liquidate the Assets of the Series Trust following the occurrence
of a Potential Termination Event;
(c) if Securities have been issued by the Trustee, the date appointed by
the Manager as the Termination Date by notice in writing to the
Trustee, which must not be a date prior to the earlier of the
following:
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(i) the date that all Securities have been redeemed in full; or
(ii) if an Event of Default (as defined in the Security Trust Deed)
occurs and the Charge is enforced, the date of the final
distribution by the Security Trustee under the Security Trust
Deed; and
(d) if no Securities have been issued by the Trustee, the date appointed
by the Manager as the Termination Date by notice in writing to the
Trustee.
"Termination Payment Date" means the date declared by the Trustee to be
the Termination Payment Date of the Series Trust pursuant to clause 26.2
(subject to any substitution of another date as the Termination Payment
Date in accordance with that clause).
"Threshold Rate" means, at any time, the minimum rate of interest that
must be set on all Mortgage Loans (where permitted by the terms of the
Mortgage Loan and corresponding Loan Agreement) which will be sufficient
(assuming that all relevant parties comply with their obligations at all
times under the Transaction Documents and the Mortgage Documents), when
aggregated with the income produced by the rate of interest on all other
Mortgage Loans and the income from Short-Term Authorised Investments, to
ensure that the Trustee will have available to it sufficient Finance
Charge Collections and Other Income Amounts to enable it to comply with
its obligations under the Transaction Documents as they fall due.
"Tranche" means a Class A-2 Tranche.
"Trustee" means Perpetual Trustee Company Limited or if Perpetual Trustee
Company Limited retires or is removed as trustee of the Series Trusts (as
defined in the Master Trust Deed) and the CBA Trust, any then Substitute
Trustee and includes the Manager when acting as the Trustee in accordance
with the terms of the Master Trust Deed.
"Trustee's Fee" means the fee payable to the Trustee on each Monthly
Distribution Date calculated in accordance with clause 19.3.
"Underwriting Agreement" means the Underwriting Agreement dated after the
date of this Deed between the Trustee, the Manager, CBA and [ ], as
representative for the Underwriters named therein pursuant to which,
subject to the terms and conditions contained therein, the Trustee will
agree to issue, and each of the Underwriters named therein will severally
agree to subscribe for, the Class A-1 Notes.
"Unpaid Interest Amount" in relation to an A$ Security and the relevant
Monthly Distribution Date or Quarterly Distribution Date means the
aggregate of any Interest Amounts in relation to that A$ Security
remaining unpaid from previous applicable Monthly Distribution Dates or
Quarterly Distribution Dates and any interest accrued but remaining unpaid
on that A$ Security as at that Monthly Distribution Date or Quarterly
Distribution Date pursuant to clause 5.8(b).
"Unreimbursed Principal Chargeoffs" in relation to:
(a) a Class A-1 Note at any time has the same meaning as in the Class
A-1 Note Conditions; and
(b) an A$ Security and the Standby Redraw Facility Principal at any time
means the aggregate of the Principal Chargeoffs up to and including
that time allocated to the A$ Security or the Standby Redraw
Facility Principal (as the case may be) in accordance with clause
9.1 less the aggregate of the Principal Chargeoff Reimbursements
prior to that time allocated to the A$ Security or the Standby
Redraw Facility Principal (as the case may be) in accordance with
clause 9.2.
"US$" and "US dollars" means the lawful currency for the time being of the
United States of America.
33
"US$ Equivalent" in relation to an amount which is calculated, determined
or expressed in A$ or which includes a component determined or expressed
in A$ means the A$ amount or A$ component (as the case may be) multiplied
by the US$ Exchange Rate.
"US$ Exchange Rate" means "US$ Exchange Rate" specified in paragraph 7 of
the confirmation for each Class A-1 Currency Swap.
"Waiver of Set-Off" in relation to a Mortgage Loan means a provision, in
the related Mortgage or Loan Agreement or otherwise, by which, inter alia,
the Borrower agrees to make all payments in respect of the Mortgage Loan
without set-off or counterclaim unless prohibited by law.
1.2 Interpretation
In this Deed, unless the contrary intention appears:
(a) a reference to this Deed includes the Recitals and the Schedules;
(b) except in relation to "Consumer Credit Code", a reference to a
statute, ordinance, code or other law includes regulations and other
instruments under it and consolidations, amendments, re-enactments
or replacements of any of them;
(c) a reference to a section of a statute, ordinance, code or other law
includes any consolidation, amendment, re-enactment or replacement
of that section;
(d) the singular includes the plural and vice versa and words denoting a
gender include all other genders;
(e) the word "person" includes an individual, a body politic, a
corporation and a statutory or other authority or association
(incorporated or unincorporated);
(f) a reference to a person includes a reference to the person's
executors, administrators, successors, substitutes (including,
without limitation, persons taking by novation) and assigns;
(g) the word "corporation" means any body corporate wherever formed or
incorporated including, without limiting the generality of the
foregoing, any public authority or any instrumentality of the Crown;
(h) where a word or phrase has a defined meaning any other part of
speech or grammatical form in respect of such word or phrase has a
corresponding meaning;
(i) a reference to any thing (including, without limitation, any amount)
is a reference to the whole or any part of it and a reference to a
group of persons is a reference to any one or more of them;
(j) if an act prescribed under this Deed to be done by a party on or by
a given day is done after 5.30 p.m. on that day, it is to be taken
to be done on the following day;
(k) references to time are to Sydney time;
(l) the expression "certified" by a corporation or person means
certified in writing by 2 Authorised Officers of the Corporation or
by that person respectively and "certify" and like expressions will
be construed accordingly;
(m) a reference to extinguish includes a reference to rights and
interests being surrendered and released;
(n) a reference to a "month" is to a calendar month and unless otherwise
specified in
34
this Agreement, all references to "Quarterly Distribution Date" shall
include the relevant Monthly Distribution Date that falls on that
Quarterly Distribution Date;
(o) the expression "owing" includes amounts that are owing whether such
amounts are liquidated or not or are contingent or presently accrued
or due and includes all rights sounding in damages only;
(p) a reference to "wilful default" in relation to the Trustee, the
Manager or the Servicer means, subject to clause 1.2(q), any wilful
failure to comply, or wilful breach, by the Trustee, the Manager or
the Servicer (as the case may be) of any of its obligations under
any Transaction Document, other than a failure or breach which:
(i) A. arises as a result of a breach of a Transaction Document
by a person other than the Trustee, the Manager or the
Servicer (as the case may be) or other than any person
referred to in clause 1.2(q) in relation to the Trustee,
the Manager or the Servicer (as the case may be); and
B. the performance of the action (the non-performance of
which gave rise to such breach) is a pre-condition to
the Trustee, the Manager or the Servicer (as the case
may be) performing the said obligation; or
(ii) is in accordance with a lawful court order or direction or is
required by law; or
(iii) is in accordance with a proper instruction or direction of:
A. the Secured Creditors given at a meeting (or deemed
meeting) of Secured Creditors convened under the
Security Trust Deed; or
B. the Investors given at a meeting (or deemed meeting)
convened under the Master Trust Deed;
(q) a reference to the "fraud", "negligence" or "wilful default" of the
Trustee, the Manager or the Servicer means the fraud, negligence or
wilful default of the Trustee, the Manager or the Servicer (as the
case may be) and of its officers, employees, agents or any other
person where the Trustee, the Manager or the Servicer (as the case
may be) is liable for the acts or omissions of such other person
under the terms of any Transaction Document;
(r) subject to clause 31.2, each party will only be considered to have
knowledge or awareness of, or notice of, a thing or grounds to
believe anything by virtue of the officers of that party (or any
Related Body Corporate of that party) having day to day
responsibility for the administration or management of that party's
(or a Related Body Corporate of that party's) obligations in
relation to the Series Trust or the CBA Trust, having actual
knowledge, actual awareness or actual notice of that thing, or
grounds or reason to believe that thing (and similar references will
be interpreted in this way). In addition, notice, knowledge or
awareness of a Servicer Default, Manager Default, Trustee Default or
Perfection of Title Event means notice, knowledge or awareness of
the occurrence of the events or circumstances constituting the
Servicer Default, Manager Default, Trustee Default or Perfection of
Title Event (as the case may be);
(s) subject to clause 1.12 a reference to this Deed, the Master Trust
Deed or any other deed, Agreement, document or instrument includes
respectively this Deed, the Master Trust Deed or such other deed,
Agreement, document or instrument as
35
amended, novated, supplemented or replaced from time to time;
(t) a reference to the enforcement of the Charge means that the Security
Trustee appoints (or the Voting Secured Creditors as contemplated by
clause 8.4 of the Security Trust Deed appoint) a Receiver over any
Charged Property, or takes possession of any Charged Property,
pursuant to the Security Trust Deed (expressions used in this clause
which are not defined in this Deed have the same meanings as in the
Security Trust Deed);
(u) a reference to a clause or a Schedule is a reference to a clause or
a Schedule of this Deed; and
(v) headings are inserted for convenience and do not affect the
interpretation of this Deed.
1.3 Master Trust Deed Definitions
Subject to clause 1.12 unless defined in this Deed, words and phrases
defined in the Master Trust Deed have the same meaning in this Deed. Where
there is any inconsistency in a definition between this Deed and the
Master Trust Deed, this Deed prevails. Where words or phrases used in this
Deed are defined in the Master Trust Deed in relation to a Series Trust
(as defined as the Master Trust Deed) and/or an Other Trust such words or
phrases are to be construed, where necessary, as being used only in
relation to the Series Trust (as defined in this Deed) and/or the CBA
Trust, as the context requires.
1.4 Business Day Convention
(a) (Next Business Day): When the date on or by which any act, matter or
thing is to be done is not a Business Day, the act, matter or thing
must (unless expressly provided otherwise) be done on the next
Business Day.
(b) (Determination Dates): Clause 1.4(a) does not apply to any act,
matter or thing to be done on a Determination Date.
1.5 Master Trust Deed Inconsistency
In accordance with clause 1.3 of the Master Trust Deed the provisions
contained in this Deed apply only in relation to the Series Trust. If
there is any conflict between the provisions of this Deed and the
provisions of the Master Trust Deed, the provisions contained in this Deed
prevail over the provisions of the Master Trust Deed in respect of the
Series Trust. Without limiting the generality of the foregoing, the
provisions of the Transaction Documents (other than the Master Trust Deed)
insofar as they apply to the Securities (as defined herein) prevail over
any inconsistent provision in the Master Trust Deed that would otherwise
apply to such Securities.
1.6 Exclusion of Master Trust Deed Definitions and Provisions
(a) (Variation of Terms): For the purposes of the Master Trust Deed (in
so far as it applies to the Series Trust):
(i) "Transaction Document" means each of the following documents:
A. the Master Trust Deed (in so far as it applies to the
Series Trust);
B. this Deed;
C. each document specified in clause 1.7 as a Support
Facility;
36
D. the Security Trust Deed;
E. the Dealer Agreement;
F. the Underwriting Agreement;
G. the Class A-1 Note Trust Deed;
H. the Class A-1 Notes;
I. the Agency Agreement; and
X. any other document which is agreed by the Manager and
the Trustee to be a Transaction Document in relation to
the Series Trust;
(ii) a "Security" has the same meaning as in this Deed; and
(iii) a "Securityholder" has the same meaning as in this Deed.
(b) (Meeting procedures): The procedures for convening a meeting of the
Securityholders or the Class A-1 Noteholders for the purposes of
clause 26 of the Master Trust Deed, in so far as those procedures
apply to the Securityholders or the Class A-1 Noteholders (as the
context requires), are varied as follows:
(i) if the Class A-1 Noteholders are included within the, or are
the only, Relevant Investors for the purposes of a meeting
under clause 26 of the Master Trust Deed:
A. any notice of a meeting given or required to be given to
the Class A-1 Noteholders must also be given to the
Class A-1 Note Trustee;
B. any notice given to Class A-1 Noteholders of a meeting
under clause 26 of the Master Trust Deed must be given
in accordance with Condition 11.1 of the Class A-1 Note
Conditions (in lieu of notice pursuant to clause 26.2(e)
of the Master Trust Deed); and
C. a meeting under clause 26 of the Master Trust Deed at
which the Class A-1 Note Trustee is the only Relevant
Investor pursuant to clause 1.6(b)(ii) must not, unless
otherwise agreed by the Class A-1 Note Trustee, be held
until the Class A-1 Note Trustee has had the opportunity
of seeking and obtaining directions from the Class A-1
Noteholders regarding how the Class A-1 Note Trustee is
to vote at the meeting;
(ii) the Relevant Investors in relation to the Class A-1 Notes, for
the purposes of clause 26 of the Master Trust Deed, means the
Class A-1 Note Trustee alone, acting on behalf of the Class
A-1 Noteholders under the Class A-1 Note Trust Deed or, if the
Class A-1 Note Trustee has become bound to take steps and/or
to proceed under the Class A-1 Note Trust Deed and fails to do
so within a reasonable time and such failure is continuing,
the Class A-1 Noteholders;
(iii) if the Class A-1 Note Trustee is the only Relevant Investor in
relation to the Class A-1 Notes pursuant to clause 1.6(b)(ii),
it will be regarded as a Representative holding or
representing all of the Class A-1 Notes for the purposes of
determining whether a quorum is present at such meeting,
37
for determining the votes to which the Class A-1 Note Trustee
is entitled to cast at such meeting and any other relevant
matter relating to such meeting;
(iv) if the Class A-1 Noteholders become entitled to attend a
meeting of Relevant Investors pursuant to clause 1.6(b)(ii),
the evidence of the entitlement of such Class A-1 Noteholders
to attend such meeting and to vote thereat, and any other
relevant matters, will be determined in accordance with the
provisions of the Class A-1 Note Trust Deed and the Agency
Agreement, with such amendments as determined by the Trustee
to be necessary; and
(v) if at a particular time the Class A-1 Note Trustee is or would
be the only Relevant Investor in respect of a meeting under
clause 26 of the Master Trust Deed, notwithstanding any other
provision of the Master Trust Deed the requirement to convene
such a meeting and put such issue to such meeting will be
satisfied if directions are sought from the Class A-1 Note
Trustee on the particular issue that would otherwise be put to
such meeting. Upon such a direction being given by the Class
A-1 Note Trustee, a meeting of the Relevant Investors will be
regarded as having been duly called, convened and held and the
direction will be regarded as properly passed as an
Extraordinary Resolution of such meeting.
(c) (Master Trust Deed Provisions): The following provisions of the
Master Trust Deed will not apply to the Class A-1 Notes or the Class
A-1 Noteholders: clauses 5.1(d), 6, 8.1, 9, 10, 23.1 and 24.4.
(d) (Rights of Investors): Nothing in clause 7.1(i) of the Master Trust
Deed limits any right of Class A-1 Noteholders under the Class A-1
Note Trust Deed to compel the Trustee, the Manager or the Class A-1
Note Trustee to comply with their respective obligations under the
Class A-1 Note Trust Deed.
(e) (Clause 16.10(a)): Clause 16.10(a) of the Master Trust Deed will not
apply in relation to the Series Trust.
1.7 Support Facilities
The Series Trust has the following Support Facilities:
(a) (Currency Swap Agreements): each Currency Swap Agreement (which is
also a Hedge Agreement of the Series Trust for the purposes of the
Master Trust Deed);
(b) (Interest Rate Swap Agreement): each Interest Rate Swap Agreement
(which is also a Hedge Agreement of the Series Trust for the
purposes of the Master Trust Deed);
(c) (Liquidity and Standby Redraw Facilities): each Liquidity Facility
and the Standby Redraw Facility (which are each also Liquidity
Facilities of the Series Trust for the purposes of the Master Trust
Deed); and
(d) (Mortgage Insurance Policies): the Mortgage Insurance Policies
(which are also Credit Enhancements of the Series Trust for the
purposes of the Master Trust Deed).
1.8 Security Trust Deed
The obligations of the Trustee under the Securities (amongst other things)
will be secured to the Securityholders (among others) by the Security
Trust Deed which is a Security Trust Deed relating to the Series Trust for
the purposes of the Master Trust Deed.
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1.9 Nominated Seller and Nominated Servicer
For the purposes of the Master Trust Deed the Nominated Seller in relation
to the Series Trust is each of the Sellers (namely, CBA and Colonial State
Bank), and the Nominated Servicer in relation to the Series Trust for the
purposes of the Master Trust Deed is the Servicer.
1.10 Binding on Securityholders and the Residual Unitholder
This Deed is binding on each Securityholder and the Residual Unitholder as
if each was originally a party to this Deed.
1.11 Relationship between Trustee and Securityholders
The obligations of the Trustee to the Securityholders expressed in this
Deed or the Master Trust Deed, in so far as the Master Trust Deed relates
to the Series Trust, are contractual obligations only and do not create
any relationship of trustee or fiduciary between the Trustee and the
Securityholders.
1.12 Incorporated Definitions and other Transaction Documents and provisions
Where in this Deed a word or expression is defined by reference to its
meaning in another Transaction Document or there is a reference to another
Transaction Document or to a provision of another Transaction Document,
any amendment to the meaning of that word or expression or to that other
Transaction Document or provision (as the case may be) will be of no
effect for the purposes of this Deed unless and until the amendment is
consented to by the parties to this Deed (construed in the absence of
clause 1.10).
1.13 Indemnity from Colonial State Bank
Colonial State Bank acknowledges that certain representations, warranties,
undertakings and indemnities are given by CBA under the Transaction
Documents in relation to:
(a) Assets of the Series Trust (including Mortgage Loans) that were
assigned to the Trustee by Colonial State Bank; and
(b) Mortgage Loans (and related Mortgage Loan Rights, including without
limitation, security granted by the Borrower) which are or may be
legally owned by Colonial State Bank; and
(c) actions or potential activities of Colonial State Bank (including
breaches by Colonial State Bank of the Transaction Documents),
and Colonial State Bank indemnifies CBA against all loss, costs, damages,
charges and expenses incurred by CBA in relation to the matters referred
to in (a)-(c) above.
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2. The CBA Trust
2.1 Constitution of CBA Trust
The CBA Trust is constituted upon:
(a) (Execution of this Deed): the execution of this Deed by the Trustee,
the Manager, the Servicer and each Seller; and
(b) (Payment of $100): the payment of the sum of $100 by or on behalf of
each Seller to the Trustee (the receipt of which the Trustee
acknowledges by executing this Deed).
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2.2 Declaration of Trust for the CBA Trust
The Trustee declares that it will hold all the right, title and interest
in, to and under the $200 referred to in clause 2.1(b) and any further CBA
Trust Asset on trust for the Relevant Seller in accordance with this
clause 2 and subject to the trusts and other terms and conditions of this
Deed.
2.3 Name of the CBA Trust
The CBA Trust will be known as the "CBA Series [ ] Trust" or such other
name from time to time agreed between the Trustee and the Sellers (subject
to any approvals required by law).
2.4 Entitlement of Sellers to the CBA Trust
The beneficial interest in the CBA Trust is vested absolutely in the
Sellers, in accordance with clause 2.2.
2.5 Bare Trust
The Trustee holds each CBA Trust Asset attributable to a Relevant Seller
on bare trust for that Relevant Seller, in accordance with clause 2.2.
2.6 Duration of the CBA Trust
The CBA Trust commences on the date of its constitution as referred to in
this Deed and ends on its Termination Date (as if every reference in the
definition of this term in clause 1.1 of the Master Trust Deed to a Series
Trust was to the CBA Trust).
2.7 Early Termination of the CBA Trust
Immediately upon the termination of the Series Trust, the Sellers must
notify the Trustee that the CBA Trust is to be terminated. Upon receipt of
that notice, the Trustee must promptly terminate the CBA Trust.
2.8 Dealing with CBA Trust Assets of the Series Trust
Subject to the terms of this Deed:
(a) (Sellers may deal with CBA Trust Assets): each Relevant Seller is
entitled to deal with the Relevant CBA Trust Assets in its absolute
discretion; and
(b) (Trustee may only deal with CBA Trust Assets as directed by Xxxxxx):
(i) the Trustee must not deal with the Relevant CBA Trust Assets
other than in accordance with directions given by the Relevant
Seller from time to time; and
(ii) the Trustee must act in accordance with any direction given to
it by a Relevant Seller in respect of the Relevant CBA Trust
Assets,
save that, in either case, the Trustee is not obliged to act in accordance
with the directions of a Relevant Seller where to do so would be illegal
or result in the Trustee's exposure to a risk of personal liability where
the Trustee is not satisfied, in its absolute discretion, that the
Relevant Seller will be able to reimburse the Trustee in accordance with
clause 2.15.
2.9 Proceeds
(a) (Seller may retain proceeds): A Relevant Seller may retain any
proceeds received by it from the Relevant CBA Trust Assets.
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(b) (Trustee must pay proceeds to Relevant Seller): Subject to clause
7.3(d)(i), the Trustee must immediately pay to the Relevant Seller
(or otherwise pay as the Relevant Seller directs) any proceeds the
Trustee receives in respect of the Relevant CBA Trust Assets.
(c) (Relevant Seller's receipt good discharge): The receipt of amounts
by a Relevant Seller pursuant to clauses 2.9(a) and (b) constitutes
a good discharge to the Trustee.
2.10 CBA Trust Not Part of Assets of the Series Trust
(a) (CBA Trust Assets not part of the Series Trust): The Trustee's
right, title and interest in the CBA Trust Assets do not form part
of the Assets of the Series Trust.
(b) (Trustee must account for CBA Trust Assets): The Trustee must
account for the CBA Trust Assets and each of the trusts established
pursuant to clause 2.5 separately from one another and each such
trust separately from the Assets of the Series Trust.
(c) (Liabilities): The Trustee must not apply the Assets of the Series
Trust to meet any liabilities of the CBA Trust (or either of the two
trusts comprised therein) and the Trustee must not apply the CBA
Trust Assets to meet any Liabilities of the Series Trust.
(d) (No co-mingling): The Trustee must not co-mingle any money held by
the Trustee in respect of the Series Trust with any money held by
the Trustee in respect of the CBA Trust (or either of the two trusts
comprised therein) (and vice versa).
2.11 Shared Securities
(a) (Not sell etc. Shared Securities): The Trustee must not, and the
Manager must not direct the Trustee to, sell, transfer or grant any
Security Interest over any Shared Security which is held by it
partly as trustee for the Series Trust and partly by it as trustee
for the CBA Trust without notifying the relevant transferee or
holder of the Security Interest of the existence of the interest of
the Relevant Seller as beneficiary of the CBA Trust in that Shared
Security.
(b) (Power to lodge Caveats): Each Relevant Seller has the power to
lodge a Caveat over any Shared Security in which it has an interest
where the Trustee has sold, transferred or granted any Security
Interest or the Relevant Seller reasonably believes that the Trustee
will sell, transfer or grant any Security Interest over any such
Shared Security in breach of clause 2.11(a).
2.12 Trustee's Duties
The Trustee owes no fiduciary or other duties to the Sellers in respect of
the CBA Trust Assets other than pursuant to clauses 2.8, 2.9(b), 2.10 and
7.3 and, in any event, is not liable in any manner whatsoever to a Seller
for any loss to the Relevant CBA Trust Assets as a result of acting on the
direction of the Relevant Seller or for not acting as a result of the
Relevant Seller failing to give any direction to the Trustee or for
otherwise acting in accordance with this Deed.
2.13 Substitute Trustee
(a) (Substitute Trustee): Any Substitute Trustee (other than the Manager
when acting as Trustee) must be approved by each Seller which
approval is not to be unreasonably withheld or delayed.
(b) (Retirement or removal of the Trustee from the CBA Trust): The
provisions of clause 19 of the Master Trust Deed apply with
necessary modifications to the CBA
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Trust as if every reference in such clause to:
(i) a Series Trust or the Series Trusts included a reference to
the CBA Trust; and
(ii) as if every reference to the "Manager" was a reference to both
Sellers.
(c) (CBA Trust Assets to Vest in Substitute Trustee): Upon the
retirement or removal of the Trustee as trustee of the Series Trust
in accordance with the Master Trust Deed, the Trustee must vest the
CBA Trust Assets, or cause them to be vested, in the Substitute
Trustee and must deliver to the Substitute Trustee (or to the
Manager if it is acting as Trustee) all books, documents, records
and other property whatsoever in its possession (if any) relating to
the CBA Trust. The costs and expenses of this are to be paid by the
Sellers.
2.14 Transfer of the CBA Trust Assets to Seller on termination of CBA Trust
On the termination of the CBA Trust, the Trustee is deemed to offer to
immediately transfer the CBA Trust Assets to the Relevant Sellers (so that
each Relevant Seller is deemed to receive an offer to accept an assignment
or other transfer of the Relevant CBA Trust Assets). A Relevant Seller can
accept such offer only by an Authorised Officer of the Relevant Seller
accepting such offer orally (including by way of telephone) communicated
to an Authorised Officer of the Trustee. The Trustee must execute and
deliver to the Relevant Seller such instruments as the Relevant Seller
reasonably requests to vest in the Relevant Seller all right, title and
interest of the Trustee in the Relevant CBA Trust Assets of the Series
Trust.
2.15 Seller Indemnity
(a) (CBA Trust): Subject to clause 2.15(b), but without limiting any
indemnity to which the Trustee is otherwise entitled at general law,
each Relevant Seller unconditionally and irrevocably indemnifies the
Trustee in respect of, and agrees to pay within 5 Business Days of
receipt of a written demand from the Trustee:
(i) any liability incurred by the Trustee as a result of the
Trustee complying with any directions by the Relevant Seller
in accordance with clause 2.8 or not acting as a result of the
Relevant Seller failing to give any direction to the Trustee;
(ii) any liability incurred by the Trustee in connection with the
transfer of any CBA Trust Asset to the Relevant Seller
(including, but not limited to, stamp duties and Taxes payable
in connection with such transfer); and
(iii) all other costs, charges, Taxes, expenses and liabilities
incurred by the Trustee in respect of the CBA Trust in
accordance with this clause 2, clause 7.7 or clause 7.8.
(b) (Limitation of Seller indemnity): A Relevant Seller's obligations
under clause 2.15(a) to indemnify and reimburse the Trustee do not
apply to the extent that such liabilities, costs, charges, Taxes,
stamp duties or expenses arise as a result of the Trustee's
negligence, fraud or wilful default.
2.16 Limitation of Liability
The Trustee enters into this Deed in its capacity as trustee of the CBA
Trust (in addition to entering into this Deed in its capacity as trustee
of the Series Trust). A liability arising under or in connection with this
Deed and the CBA Trust can be enforced against the Trustee only to the
extent to which it can be satisfied out of the CBA Trust Assets out of
which the Trustee is actually indemnified for the liability. This clause
will not apply to any obligation or liability of
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the Trustee in respect of the CBA Trust to the extent that it is not
satisfied because, under this Deed or by operation of law, there is a
reduction in the extent of the Trustee's indemnification out of the CBA
Trust Assets as a result of the Trustee's fraud, negligence or wilful
default.
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3. Unit in the Series Trust
3.1 Beneficial Interest Represented by a Single Unit
The beneficial interest in the Series Trust is represented by a single
unit to be known as the Residual Unit.
3.2 Initial Holder of the Residual Unit
The initial holder of the Residual Unit in the Series Trust is CBA.
3.3 Registration of CBA as Initial Residual Unitholder
Immediately upon the execution of this Deed, the Trustee must enter CBA
into the Register of the Series Trust as the initial Residual Unitholder
in the Series Trust and must issue to CBA a Unit Certificate in respect of
such Residual Unit.
3.4 Form of Unit Certificate
The initial form of the Unit Certificate for the Residual Unit is as set
out in Schedule 9.
3.5 Form of Unit Transfer
The form of the Unit Transfer for the Residual Unit may be agreed from
time to time between the then Residual Unitholder, the Manager and the
Trustee (acting reasonably).
3.6 Additional Capital Subscription
The Residual Unitholder may, on or prior to the Closing Date, invest
amounts by way of an increase in the capital of the Series Trust
represented by the Residual Unit by paying such amounts to the Trustee or
as the Trustee, upon the written instruction of the Manager, directs.
3.7 No Other Relationship
Nothing in this Deed constitutes either the Trustee, the Manager or the
Servicer as the agent of the Residual Unitholder nor creates any
relationship between the Residual Unitholder on the one hand and the
Manager (other than as Manager), the Servicer (other than as Servicer) or
the Trustee (other than as Trustee) on the other.
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4. Assignment of Mortgage Loan Rights
4.1 Approved Financial Assets of the Series Trust
The nature of the Approved Financial Assets that may be acquired by the
Trustee for the purposes of the Master Trust Deed are Mortgage Loan
Rights.
4.2 Sale Notice
If a Seller wishes to offer to assign to the Trustee, on the terms of this
Deed, its right, title and interest in any Mortgage Loan Rights, the
Relevant Seller is only entitled to do so by giving to the Trustee (with a
copy to the Manager) a Sale Notice in relation to those Mortgage Loan
Rights 5 Business Days (or such other period as the Relevant Seller has
agreed with the Trustee and the Manager) before the date specified in the
Sale Notice as the Closing Date.
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4.3 Requirements of Sale Notice
A Sale Notice must:
(a) (State that it is a Sale Notice): state that it is a Sale Notice
pursuant to clause 4.2 and that it relates to the Series Trust;
(b) (Timing): not be issued:
(i) until at least 1 Business Day after the Series Trust has been
constituted; or
(ii) after the Termination Date in respect of the Series Trust;
(c) (Be delivered): be delivered to the Trustee and copied to the
Manager;
(d) (Schedule of Mortgage Loans): be accompanied by a schedule of the
Mortgage Loans offered to be assigned to the Trustee that contains
the information required by clause 4.4;
(e) (Closing Date): state the proposed Closing Date (which, unless
otherwise agreed by the Trustee in writing, must be at least 5
Business Days after the date of the receipt by the Trustee of the
Sale Notice);
(f) (Cut-Off Date): state the Cut-Off Date (which, unless otherwise
agreed by the Trustee in writing, must be at least 10 Business Days
before the Closing Date); and
(g) (Authorised Officer): be signed by an Authorised Officer of the
Relevant Seller.
4.4 Mortgage Loan Schedule
The schedule required by clause 4.3(d) to accompany the Sale Notice must
contain the following details in respect of each Mortgage Loan as at the
commencement of business on the Cut-Off Date:
(a) (Name and address): the name and address of the Borrower under the
Mortgage Loan (as recorded in the Seller's records in accordance
with the Servicing Standards) and the address of the property
secured by each Mortgage;
(b) (Account number): the account number of the Mortgage Loan;
(c) (Amount outstanding): the principal amount outstanding, and accrued
interest, under the Mortgage Loan; and
(d) (LVR): the Loan to Value Ratio of the Mortgage Loan.
4.5 Sale Notice Constitutes an Offer
A Sale Notice constitutes an offer by the Relevant Seller to assign to the
Trustee with effect from the commencement of business on the Cut-Off Date
and subject to the terms of this Deed and the Master Trust Deed the
Relevant Seller's entire right, title and interest in, to and under the
following:
(a) (Mortgage Loans): each Mortgage Loan identified in the schedule
accompanying the Sale Notice;
(b) (Other Loans): all Other Loans in existence from time to time in
relation to the above Mortgage Loans;
(c) (Mortgages): all Mortgages in existence from time to time in
relation to the above
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Mortgage Loans;
(d) (Collateral Securities): all Collateral Securities in existence from
time to time in relation to the above Mortgage Loans;
(e) (Mortgage Insurance Policy): all Mortgage Insurance Policies as at
the commencement of business on the Cut-Off Date (other than the
[ ] Mortgage Insurance Policy);
(f) (Mortgage Receivables): all Mortgage Receivables in existence from
time to time in relation to the above Mortgage Loans; and
(g) (Mortgage Documents): all Mortgage Documents in existence from time
to time in relation to the above Mortgage Loans.
4.6 Sale Notice Revocable
A Sale Notice is revocable by the Relevant Seller, by notice received by
the Trustee (and copied to the Manager) prior to the close of business
(Sydney time) 4 Business Days before the proposed Closing Date. If no such
notice is received by the Trustee and the Manager by that time, the Sale
Notice is then irrevocable.
4.7 Acceptance of Offer
The offer contained in the Sale Notice may be accepted by the Trustee only
in accordance with this clause 4.
4.8 Timing of Acceptance
(a) (Means of acceptance): The Trustee will, if so directed by the
Manager in writing, accept the offer contained in a Sale Notice at
any time after 10.00 a.m. and before 3.30 p.m. (or between such
other times as may be agreed by the Trustee and the Relevant Seller)
on the Closing Date by, and only by, the Trustee paying, or causing
payment of, the Consideration to the Relevant Seller in cleared and
immediately available funds.
(b) (No further acts required): The Trustee is not required to do any
further act, matter or thing to accept the offer contained in the
Sale Notice.
4.9 Seller Not Obliged to Make, and Trustee Not Obliged to Accept, Offer
Notwithstanding satisfaction of all relevant conditions precedent or any
negotiations undertaken between the Relevant Seller and the Trustee prior
to any acceptance by the Trustee of the offer contained in a Sale Notice:
(a) (Seller not obliged to make offer): the Relevant Seller is not
obliged to issue the Sale Notice and the Trustee is not obliged to
accept the offer contained in the Sale Notice and no contract for
the sale or purchase of any Mortgage Loan Rights will arise unless
and until the Trustee accepts the offer contained in the Sale Notice
in accordance with this clause 4; and
(b) (Trustee acquires no rights until offer irrevocable): the Trustee
acquires no rights against the Relevant Seller or the Servicer in
respect of the Mortgage Loan Rights specified in the Sale Notice
until such time as the Sale Notice (if issued) becomes irrevocable.
4.10 Can Only Accept all Mortgage Loan Rights in Loan Pool
The offer contained in a Sale Notice may only be accepted in relation to
all the Mortgage Loan
45
Rights specified in that Sale Notice.
4.11 Effect of Acceptance
Acceptance, in accordance with this Deed, of the offer contained in the
Sale Notice constitutes an immediate assignment with effect from the
commencement of business on the Cut-Off Date of the Relevant Seller's
entire right, title and interest in the Mortgage Loan Rights. The
Trustee's right, title and interest in such Mortgage Loan Rights is at all
times subject to the terms of this Deed and the Master Trust Deed.
4.12 Sale in Equity Only
(a) (Assignment in equity): An assignment of Mortgage Loan Rights in
accordance with this Deed takes effect initially in equity only.
(b) (Trustee must not communicate, disclose or perfect title): The
Trustee must not:
(i) take any steps to perfect its legal title to the Mortgage Loan
Rights;
(ii) give any notice to, or communicate in any other way with, a
Borrower or the provider of any Collateral Security; or
(iii) disseminate or disclose any information in respect of the
assignment of the Mortgage Loan Rights,
except in accordance with the terms of this Deed.
4.13 Sale Not to Amount to Assumption of Obligations
An assignment of Mortgage Loan Rights in accordance with this Deed, and
the acceptance of the Sale Notice, does not constitute an assumption by
the Trustee, the Servicer, the Manager or any Securityholder of any
obligation of the Relevant Seller or any other person pursuant to, or in
connection with, the Mortgage Loan Rights or any other obligation of the
Relevant Seller to the Borrower or any other party pursuant to, or in
connection with, the Mortgage Documents.
4.14 Future Advances
Without limiting the generality of clause 4.13, the Relevant Seller
retains the obligation to make such further advances or provide such other
financial accommodation as the Relevant Seller was required to make under
the terms of the relevant Mortgage Loan prior to the Cut-Off Date for that
Mortgage Loan.
4.15 Future Receivables
Without limiting the effect of any assignment of any Mortgage Loan
occurring on the Trustee accepting the Sale Notice but subject to clauses
4.13 and 4.14, the Relevant Seller's right, title and interest in respect
of any Mortgage Loan Rights arising, and any Mortgage Documents entered
into, on or after the Cut-Off Date, form part of the rights assigned to
the Trustee (to be held subject to the terms of the Master Trust Deed and
this Deed) and, immediately following creation (including, without
limitation, Mortgage Loan Rights created by the making of any further
advance or the provision of any financial accommodation under the terms of
a Mortgage Loan), vest in the Trustee in accordance with the assignment of
that Mortgage Loan pursuant to this Deed.
4.16 Power to Acquire Mortgage Loans in Arrears
In accordance with clause 16.4(v) of the Master Trust Deed, the parties
expressly agree that the Trustee has the power to acquire Mortgage Loans
as Assets of the Series Trust notwithstanding that payments due from
Borrowers under such Mortgage Loans are in arrears as at the date of
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their acquisition by the Trustee.
4.17 Trustee Bound by Priority Agreements
Where a Relevant Seller has entered into a priority agreement with a
subsequent mortgagee of Land the subject of a Mortgage or Collateral
Security assigned to the Trustee under clause 4.11 the Trustee agrees for
the benefit of any such subsequent mortgagee to be bound by the provisions
of any such priority agreement.
In this clause 4.17 "priority agreement" means any agreement between a
Relevant Seller and a subsequent mortgagee of Land the subject of a
Mortgage or Collateral Security:
(a) under which the Relevant Xxxxxx and the subsequent mortgagee agree
to a ranking of their respective securities over the said Land which
provides for the Relevant Seller's security to be a first ranking
security to an agreed amount and the subsequent mortgagee's security
to be a second ranking security; and
(b) whose sole subject matter is the agreement as to ranking referred to
in (a) above and matters ordinarily incidental thereto.
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5. The Securities
5.1 Securities divided into Classes
The Securities are divided into four Classes as follows:
(a) the Class A-1 Notes;
(b) the Class A-2 Notes (including any Class A-2 Tranches);
(c) the Class B Notes; and
(d) the Redraw Bonds.
5.2 Form, constituent documents and denomination of the Securities
(a) (Class A-1 Note): The Class A-1 Notes will be in registered form,
without coupons; upon issue, will be represented by 3 or more Class
A-1 Book Entry Notes (as defined in the Class A-1 Note Trust Deed)
(and interests in such Class A-1 Book Entry Notes may be exchanged
for Class A-1 Definitive Notes (as defined in the Class A-1 Note
Trust Deed) in the circumstances set out in clause 3.4(a) of the
Class A-1 Note Trust Deed); will be constituted, issued and
authenticated pursuant to the Class A-1 Note Trust Deed and will be
denominated in US dollars.
(b) (A$ Securities): The A$ Securities will, upon issue, be in the form
of registered debt securities, will be constituted pursuant to the
Master Trust Deed and this Deed and will be denominated in
Australian dollars.
5.3 Trustee must Issue the Notes
Subject to the satisfaction of all conditions precedent in respect thereof
in the Transaction Documents, the Trustee on the Closing Date must issue:
(a) (Class A-1 Notes): the Class A-1 Notes in accordance with the Class
A-1 Note Trust Deed and the Underwriting Agreement; and
(b) (Class A-2 and B Notes): the Class A-2 Notes and the Class B Notes
in accordance with this Deed and the Dealer Agreement.
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5.4 Issue of Redraw Bonds
If the Trustee receives:
(a) (Notice under Clause 8.4): a notice from the Manager pursuant to
clause 8.4(a); and
(b) (No downgrade): written confirmation from each of the Rating
Agencies that the proposed issue of Redraw Bonds will not result in
a reduction, qualification or withdrawal of any then current credit
rating assigned by it to a Security,
the Trustee must issue Redraw Bonds up to the amount specified in the
notice on the date for issue of the Redraw Bonds referred to in the
notice.
5.5 Initial Invested Amount of the Securities
(a) (Class A-1 Notes): Each Class A-1 Note on its issue will have an
Initial Invested Amount as set out on the face of that Class A-1
Note and will be issued at par value.
(b) (A$ Securities): Each A$ Security on its issue will have an Initial
Invested Amount of A$100,000 and will be issued at par value.
5.6 Interest on the Securities
(a) (Class A-1 Notes): Each Class A-1 Note will accrue interest and such
interest will be payable on each Quarterly Distribution Date in
accordance with the Class A-1 Note Conditions.
(b) (A$ Securities):
(i) Each A$ Security will accrue interest from (and including) its
Issue Date and will cease to accrue interest from (and
including) the earlier of:
A. the date on which the Stated Amount of the A$ Security
is reduced to zero and all accrued interest in respect
of the A$ Security is paid in full; and
B. the date on which the A$ Security is deemed to be repaid
in accordance with clause 5.7(b)(iv).
(ii) Interest on each A$ Security for its respective Accrual
Periods will accrue on a daily basis at the product of the
Interest Rate applicable to that A$ Security and the Invested
Amount of the A$ Security at the close of business on the
first day of the relevant Accrual Period and will be
calculated on a daily basis and based on a 365 day year.
(iii) Interest so calculated on an A$ Security will, subject to this
Deed, be payable in arrears on each Quarterly Distribution
Date (in the case of Class B Notes) or Monthly Distribution
Date (in the case of Class A-2 Notes or Redraw Bonds).
5.7 Redemption of the Securities
(a) (Class A-1 Notes): The Class A-1 Notes will be redeemed (or deemed
to be redeemed) in accordance with the Class A-1 Note Conditions.
(b) (A$ Securities):
(i) Unless previously redeemed in full, the Trustee will, subject
to this
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Deed, redeem each A$ Security at its then Stated Amount,
together with all accrued but unpaid interest, on the
Scheduled Maturity Date.
(ii) Subject to clauses 5.7(b)(iii) and (iv), on each Monthly
Distribution Date referred to in clause 10.5, an A$ Security
will be redeemed (either in whole or in part as the context
requires) to the extent that any moneys are applied by the
Trustee pursuant to clause 10.5 to that A$ Security.
(iii) Unless previously redeemed in full, the Trustee must redeem
all, but not some only, of the A$ Securities, when required to
do so in accordance with, and for the amount required under,
Conditions 7.3 and 7.4 of the Class A-1 Note Conditions.
(iv) Upon a final distribution being made in respect of an A$
Security under clause 26.12 of this Deed or clause 13.1 of the
Security Trust Deed, each A$ Security will thereupon be deemed
to be redeemed and discharged in full and any obligation to
pay any accrued but unpaid interest and any then unpaid,
Stated Amount, Invested Amount or any other amounts in
relation to the A$ Security will be extinguished in full.
(v) Subject to clause 5.7(b)(iii), no amount of principal will be
repaid in respect of an A$ Security in excess of the Stated
Amount of that A$ Security.
5.8 Interest on Overdue Interest on the Securities
(a) (Class A-1 Notes): If interest is not paid in respect of a Class A-1
Note on the date when due and payable in accordance with the Class
A-1 Note Conditions, the unpaid interest will in turn bear interest
in accordance with the Class A-1 Note Conditions.
(b) (A$ Securities): If interest is not paid in respect of an A$
Security on the date when due and payable in accordance with this
Deed (but without regard to any limitation herein contained) that
unpaid interest will in turn bear interest at the Interest Rate from
time to time applicable on that A$ Security until (but excluding)
the date on which the unpaid interest, and interest on it, is paid
in accordance with clauses 10.2A and 10.2B.
5.9 Rounding of Payments on the Securities
(a) (Class A-1 Notes): All payments in respect of the Class A-1 Notes
will be rounded in accordance with the Class A-1 Note Conditions.
(b) (A$ Securities): All payments in respect of the A$ Securities will
be rounded down to the nearest cent.
5.10 Ranking of Securities
(a) (Ranking): The Securities enjoy the same rights, entitlements,
benefits and restrictions, except as expressly provided in this
Deed, the Master Trust Deed, the Class A-1 Note Trust Deed, the
Class A-1 Notes and the Security Trust Deed.
(b) (Class A-2 Tranche Rankings): Repayments of principal in relation to
any Class A-2 Note shall be made on the relevant Monthly
Distribution Date in the following order:
(i) first, to Class A-2 Tranche 1 Noteholders; and
(ii) second, to the Class A-2 Tranche 2 Noteholders;
49
until the Stated Amount of each Tranche of the Class A-2 Notes
is reduced to zero provided that the Stated Amount of any
prior-ranking Class A-2 Tranche is paid prior to the Stated
Amount of any subsequent-ranking Class A-2 Tranche.
5.11 Transfer of Securities
(a) (Master Trust Deed): Clause 10.4(a) of the Master Trust Deed does
not apply to the Securities.
(b) (Transfer of A$ Securities in accordance with Corporations Law): A
Securityholder is only entitled to transfer an A$ Security if the
offer of the A$ Security for sale, or the invitation to purchase the
A$ Security, to the proposed transferee by the Securityholder is an
offer or invitation that does not need disclosure to investors under
Part 6D.2 of Chapter 6 of the Corporations Law and otherwise
complies with the Corporations Law.
(c) (Regulation S): An A$ Security may not be offered or sold within the
United States of America or to, or for the account or benefit of, US
persons except in accordance with Regulation S under the Securities
Act or pursuant to an exemption from the registration requirements
of the Securities Act. Terms used in this clause 5.11(c) have the
meaning given to them by Regulation S under the Securities Act.
5.12 Accruals for Income and Principal Xxxxxxxxx Amounts
On each Monthly Distribution Date that is not also a Quarterly
Distribution Date the Manager must direct the Trustee to retain in the
Collections Account or invest in Authorised Short-Term Investments until
the next Monthly Distribution Date, and the Trustee must so retain or
invest, to the extent of the funds available for this purpose in
accordance with clauses 10.2A, 10.2B and 10.3, an amount equal to the
aggregate of:
(a) the Income Carryover Amount for that Accrual Period;
(b) the Class A-1 Principal Xxxxxxxxx Amount (if any); and
(c) the Class B Principal Xxxxxxxxx Amount (if any).
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6. Conditions precedent to acceptance of Sale Notice and issue of Notes
6.1 General Conditions Precedent
The Trustee must receive each of the following documents before it can
accept an offer contained in a Sale Notice (if issued by a Seller) or
issue the Notes:
(a) (Standby Redraw Facility): an executed original counterpart of the
Standby Redraw Facility Agreement together with a letter from the
Standby Provider confirming that all conditions precedent to the
Standby Redraw Facility have been received in a form and substance
satisfactory to it;
(b) (Liquidity Facility): an executed original counterpart of the
Liquidity Facility Agreement, together with a letter from the
Liquidity Provider confirming that all conditions precedent to the
Liquidity Facility have been received by it in form and substance
satisfactory to it;
(c) (Interest Rate Swap Agreement): an executed original counterpart of
the Interest Rate Swap Agreement together with a letter from the
Interest Rate Swap Provider confirming that all conditions precedent
to the Interest Rate Swap Agreement have
50
been received in form and substance satisfactory to it;
(d) (Currency Swap Agreements): an executed original counterpart of each
initial Currency Swap Agreement, together with a letter from each
initial Currency Swap Provider confirming that all conditions
precedent to its Currency Swap Agreement have been received by it in
form and substance satisfactory to it.
(e) (Security Trust Deed): an executed original counterpart of the
Security Trust Deed;
(f) (Class A-1 Note Trust Deed): an executed original counterpart of the
Class A-1 Note Trust Deed;
(g) (Agency Agreement): an executed original counterpart of the Agency
Agreement;
(h) (Dealer Agreement and Underwriting Agreement): an executed original
counterpart of the Dealer Agreement and the Underwriting Agreement;
(i) (PMI Mortgage Insurance Policy): an executed original counterpart of
the PMI Mortgage Insurance Policy together with a letter from PMI
confirming that it has accepted for insurance under the PMI Mortgage
Insurance Policy the Mortgage Loans referred to in the certificate
attached to the letter and that the Trustee has paid the premium in
respect of the PMI Mortgage Insurance Policy;
(j) (Computer diskette): a computer diskette from the Relevant Seller in
a form agreed between the Relevant Seller and the Trustee
containing:
(i) a list of all of the offices at which the Mortgage Documents
relating to the Mortgage Loans are retained, showing the
street address and telephone number of the relevant office;
(ii) the surname and address of the Borrower under each Mortgage
Loan;
(iii) the account number of each Mortgage Loan;
(iv) the street address of the Land which is the subject of the
Mortgage relating to each Mortgage Loan; and
(v) such other information in respect of the Mortgage Loans as is
agreed between the Relevant Seller and the Trustee;
(k) (Letter explaining identification methodology): a letter from the
Relevant Seller which explains (in a manner satisfactory to the
Trustee) how the security packages containing the Mortgage Documents
are marked or segregated so as to enable the Trustee to identify
those security packages when at the premises of the Servicer where
the security packages are stored;
(l) (Seller letter): a letter (copied to the Rating Agencies) from the
Relevant Seller which, in a manner satisfactory to the Trustee,
explains how the Mortgage Loans are marked on the Mortgage Loan
System so that those Mortgage Loans, if necessary, can be separately
identified by the Trustee;
(m) (Confirmation from Rating Agencies): confirmation from each of the
Rating Agencies that the Class A Notes have been assigned a
provisional rating of AAA (in the case of S&P), Aaa (in the case of
Xxxxx'x) and AAA in the case of Fitch and the Class B Notes have
been assigned a provisional rating of AA- (in the case of S&P) and
AA (in the case of Fitch);
51
(n) (Powers of attorney):
(i) 10 originals of a power of attorney from the Relevant Seller
in favour of the Trustee substantially in the form contained
in Schedule 2 or in such other form or such other number of
copies as is required to enable registration of such power of
attorney in each State and Territory of Australia in which
registration is necessary or desirable (other than Queensland
or Western Australia);
(ii) 2 originals of a power of attorney from the Relevant Seller in
favour of the Trustee substantially in the form contained in
Schedule 3 or in such other form as is required to enable
registration of such power of attorney in Queensland;
(iii) 2 originals of a power of attorney from the Relevant Seller in
favour of the Trustee substantially in the form contained in
Schedule 4 or in such other form as is required to enable
registration of such power of attorney in Western Australia;
and
(iv) 2 originals of a power of attorney from Colonial State Bank in
favour of the Servicer in its role as Custodian only and
substantially in the form contained in Schedule 11 (or such
other form as the Servicer may reasonably require in relation
to its custodial duties hereunder);
(o) (Authorised Officers): a certificate setting out in full the name
and specimen signature of each Authorised Officer of the Manager and
the Servicer (also in its capacity as a Seller);
(p) (Legal opinions): legal opinions from:
(i) Xxxxxxx Xxx:
A. as to, amongst other things, the validity and
enforceability of the obligations of the Relevant
Seller, the initial Servicer and the initial Manager
under the Transaction Documents, or those parts of the
Transaction Documents, expressed to be governed by
Australian law;
B. as to the tax and stamp duty implications of the Series
Trust and the transactions contemplated by the
Transaction Documents; and
(ii) Mallesons Xxxxxxx Xxxxxx as to the validity and enforceability
of the obligations of the Trustee and the Security Trustee
under the Transaction Documents;
(iii) [Xxxxxxx Wisewoulds] as to the validity and enforceability of
the obligations of PMI under the PMI Mortgage Insurance
Policy;
(iv) Xxxxx Xxxxx & Xxxxx as to, amongst other things, the validity
and enforceability of the obligations of the Relevant Seller
and the Manager under the Transaction Documents, or those
parts of the Transaction Documents, expressed to be governed
by the laws of the State of New York;
(v) [Xxxxx, Xxxxxx & Xxxxxx, LLP] as to due execution by The Bank
of New York of the Transaction Documents to which The Bank of
New York is a party; and
52
(vi) internal counsel of [ ], as to the due execution by
[ ] of the Currency Swap Agreements to which it is a
party; and
(q) (Direction from the Manager): a written direction from the Manager
for the Trustee to accept the Sale Notice and to issue the Notes.
6.2 Other Conditions Precedent
Without limiting the generality of clauses 4.9 and 6.1, the Trustee must
not accept the offer contained in a Sale Notice (if issued by a Seller)
and must not issue the Notes unless it is satisfied that the form and
content of the Sale Notice complies with this Deed.
6.3 No Liability for Insufficient Moneys
If on the Closing Date the Trustee has not received each of the documents
specified in clause 6.1 or the condition specified in clause 6.2 is not
fulfilled:
(a) (No acceptance): the Trustee must not accept the offer contained in
the Sale Notice (if issued);
(b) (No issue): the Trustee must not issue any Notes and must refund the
Subscription Proceeds (if any) received by it to the relevant
subscribers entitled to such Subscription Proceeds; and
(c) (No liability): none of the Trustee, the Manager, the Servicer or
the Relevant Seller will have any obligation or liability to any
person as a result of not issuing the Notes.
6.4 Manager's Certificate
The Manager must not issue a direction to the Trustee pursuant to clause
6.1(q) unless the Manager:
(a) (Compliance with Securities Laws): is satisfied that any offer for
the issue, or any invitation to apply for the issue, of:
(i) the Class A-2 Notes and the Class B Notes:
A. is an offer of securities for issue, or is an invitation
to apply for the issue of securities, which does not
need disclosure to investors under Part 6D.2 of Chapter
6 of the Corporations Law; and
B. is made pursuant to an exemption from, or is not subject
to, the registration requirements of the Securities Act;
and
(ii) the Class A-1 Notes complies with:
A. the Financial Services Act, 1986 (United Kingdom), all
regulations made under or in relation to that Act and
the Public Offers of Securities Regulations 1995; and
B. the Securities Act, all regulations made thereunder and
all other laws or regulations of any jurisdiction of the
United States of America regulating the offer or the
issue of, or the subscription for, the Class A-1 Notes.
The Manager on becoming satisfied as to the above matters is
entitled to rely conclusively, unless it has actual knowledge to the
contrary, on, amongst other
53
things, legal opinions or other advice issued to this effect to it
or any representation or undertaking made to this effect in the
applicable Dealer Agreement or Underwriting Agreement;
(b) (No breach by Relevant Seller of representations): is not actually
aware that any representation or warranty made or taken to be made
by the Relevant Seller in any Transaction Document in respect of the
Series Trust is incorrect in any material respect on the Cut-Off
Date as if repeated on that Cut-Off Date with reference to facts and
circumstances then subsisting;
(c) (Breach of obligations by the Relevant Seller): is not actually
aware that the Relevant Seller is in breach in any material respect
of any of its obligations under this Deed (unless that breach has
been remedied to the satisfaction of the Manager);
(d) (Insolvency Event for Relevant Seller): is not actually aware that
an Insolvency Event has occurred in relation to the Relevant Seller
(unless that event has been remedied to the satisfaction of the
Manager); and
(e) (Other conditions precedent): is satisfied that such other
conditions precedent to the issue of the Notes and the acceptance by
the Trustee of the offer contained in the Sale Notice as are
specified in the Transaction Documents have been met.
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7. Division of Mortgage Loan Rights between the CBA Trust and the Series
Trust
7.1 CBA Trust Assets
The Trustee will hold as trustee of the CBA Trust all its right, title and
interest in:
(a) (Other Loans): the Other Loans;
(b) (Balance of Mortgages etc.): the balance of the Mortgages, the
Mortgage Documents, the First Layer of Collateral Securities and the
Mortgage Receivables referred to in clause 7.2(b); and
(c) (Second Layer of Collateral Securities): the Second Layer of
Collateral Securities,
which are assigned to the Trustee by a Seller.
7.2 Mortgages and First Layer of Collateral Securities
(a) (The Series Trust): The Trustee will hold as trustee of the Series
Trust all its right, title and interest in so much of any Mortgage
Loan, Mortgage, the First Layer of Collateral Securities, the
Mortgage Receivables and the Mortgage Documents for each Mortgage
Loan assigned to the Trustee (including, without limitation, the
proceeds of enforcement of such in relation to the Mortgage Loan )
as is necessary to enable the full and final repayment of all
amounts owing with respect to the Mortgage Loan.
(b) (The CBA Trust): The Trustee will hold as trustee for the CBA Trust
the balance (if any) of its right, title and interest in any
Mortgage Loan, Mortgage, First Layer of the Collateral Securities,
Mortgage Receivables and Mortgage Documents referred to in clause
7.2(a).
7.3 Treatment of Shared Securities
If:
54
(a) (Mortgage Loans in Series Trust): a Mortgage Loan forms part of the
Assets of the Series Trust;
(b) (Other Loans in CBA Trust): an Other Loan forms part of the CBA
Trust Assets; and
(c) (Collateral Security secures both): a Collateral Security which is
part of the First Layer of Collateral Securities or a Mortgage which
secures the Mortgage Loan also secures the Other Loan,
then:
(d) (If Seller is Servicer): where a Seller is the Servicer, the
Servicer is entitled to enforce that Collateral Security or Mortgage
(as the case may be) upon a default occurring in respect of the
Other Loan provided that the enforcement proceeds are paid to the
Trustee. Upon receipt of such proceeds the Trustee must:
(i) treat as Collections the amount of such proceeds as is equal
to all amounts outstanding under the relevant Mortgage Loan;
and
(ii) pay the excess (if any) of such proceeds to the Relevant
Seller (as beneficiary of the CBA Trust) in respect of amounts
outstanding under the Other Loan; or
(e) (If Seller is not Servicer): where a Seller is not the Servicer, the
Servicer must enforce that Collateral Security or Mortgage (as the
case may be) upon receipt of a direction to do so from the Relevant
Seller (as beneficiary of the CBA Trust) which states that the
relevant Other Loan is in default. Upon receipt of the enforcement
proceeds in respect of that Collateral Security or Mortgage (as the
case may be) the Servicer must pay to the Trustee all such proceeds
and the Trustee must:
(i) treat as Collections the amount of such proceeds as is equal
to all amounts outstanding under the relevant Mortgage Loan;
and
(ii) pay the excess (if any) of such proceeds to the Relevant
Seller (as beneficiary of the CBA Trust) in respect of amounts
outstanding under the Other Loan.
7.4 Trustee's duties
Subject to clauses 2.8(b), 2.9(b), 2.10 and 7.3, the Trustee is not
required to take any action in respect of an Other Loan or the Second
Layer of Collateral Securities or the balance of the Trustee's right,
title and interest in any Mortgage, First Layer of Collateral Securities
and Mortgage Receivables referred to in clause 7.2(b).
7.5 Upon Repayment of Mortgage Loan Trustee Holds for CBA Trust
Subject to clause 7.6, if a Mortgage Loan has been repaid in full or is
treated as having been repaid in full pursuant to clause 16.20(b), and the
Mortgage Loan is not discharged, then the Trustee will, from the date of
repayment or treated repayment in full of the Mortgage Loan, automatically
by virtue of this Deed, and without the necessity for any further act or
instrument or other thing to be done or brought into existence, hold the
benefit of its right, title and interest in and to:
(a) (The Mortgage Loan): the Mortgage Loan;
(b) (Mortgages, etc.): any Mortgages, and the First Layer of Collateral
Securities, held in respect of that Mortgage Loan;
55
(c) (Mortgage Documents): any Mortgage Documents held in relation to
that Mortgage Loan; and
(d) (Mortgage Receivables): the Mortgage Receivables held in relation to
that Mortgage Loan,
as trustee of the CBA Trust.
7.6 Application Where 2 Mortgage Loans
If the Mortgages, First Layer of Collateral Securities, Mortgage
Documents, and Mortgage Receivables referred to in clause 7.5 apply to
more than one Mortgage Loan forming part of the Assets of the Series
Trust, the holding of the Trustee's interest in such as trustee of the CBA
Trust occurs only upon repayment in full of all such Mortgage Loans
secured by such Mortgages, First Layer of Collateral Securities, Mortgage
Documents and Mortgage Receivables.
7.7 Costs
The Relevant Seller must pay to, or reimburse, the Trustee immediately on
demand for all costs and expenses including, without limitation, all legal
costs charged at the usual commercial rates of the relevant legal services
provider and any stamp duty and registration fees arising out of, or
necessarily incurred in connection with, the Trustee coming to hold its
right, title and interest in any Mortgage Loan Rights as part of the
Relevant CBA Trust Assets for the CBA Trust in accordance with clause 7.5.
7.8 Alternative Structure
The Trustee must co-operate with a Seller in transferring or holding the
relevant assets set out in clause 7.5 in any reasonable way other than as
set out in this clause 7 if to do so would materially reduce the liability
of that Seller to reimburse the Trustee for any of the costs and expenses
set out in clause 7.7 and provided that any proposal pursuant to this
clause is permitted in law and does not result in the Trustee being
exposed to the risk of personal liability unless the Trustee is satisfied,
in its absolute discretion, that the Seller will be able to indemnify the
Trustee in respect of such risk in accordance with clause 2.15(a).
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8. Determinations by the Manager
8.1 Applications and payments on Monthly Distribution Dates and Quarterly
Distribution Dates
Prior to each Monthly Distribution Date, based on information provided by
the Servicer, the Manager must make all necessary determinations to enable
the Trustee to make the payments or allocations to be made by the Trustee
on the relevant Monthly Distribution Date or Quarterly Distribution Date
pursuant to this Deed (including, for the first Monthly Distribution Date,
the aggregate of the Accrued Interest Adjustment) and must give to the
Trustee a written direction by 11 am (Sydney time) on the Business Day
prior to each relevant Monthly Distribution Date or Quarterly Distribution
Date in relation to the payments and allocations to be made on that
relevant Monthly Distribution Date or Quarterly Distribution Date in
accordance with this Deed.
8.2 Insufficient principal to meet Xxxxxx Advances
(a) (Manager must prepare standby redraw notice): If on a Determination
Date the Manager determines that the aggregate of the Principal
Collections, the Principal Chargeoff Reimbursement and the Other
Principal Amounts for the Collection Period then ended is
insufficient to meet in full the Seller Advances referred to in
clause 10.3(a), the Manager must prepare and forward to the Trustee
no later than
56
the close of business 3 Business Days prior to the following Monthly
Distribution Date a drawdown notice under and in accordance with the
Standby Redraw Facility Agreement requesting a drawing under the
Standby Redraw Facility for an amount equal to the lesser of the
shortfall and the amount which is available for drawing under the
Standby Redraw Facility (which notice must also specify the
calculations used in determining the drawing so requested).
(b) (Trustee must execute and serve standby redraw notice): If the
Trustee receives a drawdown notice from the Manager pursuant to
clause 8.2(a), the Trustee must promptly sign and serve the drawdown
notice on the Standby Redraw Facility Provider pursuant to the
Standby Redraw Facility Agreement requesting a drawing on the
following Monthly Distribution Date.
8.3 Income Shortfall
(a) (Manager must prepare liquidity notice): If on a Determination Date
there is an Income Shortfall, the Manager must prepare and forward
to the Trustee no later than the close of business 3 Business Days
prior to the following Monthly Distribution Date a notice under and
in accordance with the Liquidity Facility Agreement requesting a
drawing under the Liquidity Facility for an amount equal to the
lesser of the Income Shortfall and the amount which is available for
drawing under the Liquidity Facility (which notice must also specify
the calculations used in determining the drawing so requested).
(b) (Trustee must execute and deliver liquidity notice): If the Trustee
receives a notice from the Manager pursuant to clause 8.3(a) then
the Trustee must immediately sign and serve the drawdown notice on
the Liquidity Facility Provider pursuant to the Liquidity Facility
Agreement requesting a drawing on the following Monthly Distribution
Date.
8.4 Insufficient principal to meet Xxxxxx Advances and Xxxxxxx Xxxxxx Facility
Principal
If, in respect of a Determination Date, the Manager considers that the
aggregate of:
(a) (Principal Collections): the Principal Collections, the Principal
Xxxxxxxxx Xxxxxxxxxxxxx and the Other Principal Amounts for the
Collection Period ending on the Determination Date; and
(b) (Standby Redraw Facility Advance): the Standby Redraw Facility
Advance (if any) to be made on the following Monthly Distribution
Date,
as estimated by the Manager are likely to be insufficient to meet in full
under clause 10.3 the aggregate of:
(c) (Seller Advances): the Seller Advances; and
(d) (Standby Redraw Facility Principal): the Standby Redraw Facility
Principal,
that the Manager estimates will be outstanding on the Determination Date,
the Manager may prepare and forward to the Trustee a notice directing the
Trustee to issue Redraw Bonds for a principal amount and on an issue date
(which must be no earlier than 5 Business Days from the date of receipt of
the notice by the Trustee) specified in the notice. The Manager must not
issue such a notice to the Trustee if the Manager considers that the
Stated Amount of the Redraw Bonds at the next Monthly Distribution Date
(after including the proposed issue of Redraw Bonds and taking into
account any expected repayments of principal on the Redraw Bonds pursuant
to clause 10.5) will exceed the Redraw Bond Principal Limit.
57
8.5 Netting of Seller Advances and Xxxxxxx Xxxxxx Facility Advances
If whilst the Standby Redraw Facility Provider is CBA, the Standby Redraw
Facility Provider makes a Standby Redraw Facility Advance on a Monthly
Distribution Date by way of a book entry in its records pursuant to clause
4.6 of the Standby Redraw Facility Agreement:
(a) (Standby Redraw Facility Advance to be taken into account): the
amount of the Standby Redraw Facility Advance will be taken into
account for the purpose of the calculations to be made hereunder on
the Monthly Distribution Date and the previous Determination Date;
and
(b) (Seller Advance Reduced): the amount of the then outstanding Seller
Advances will be reduced by the amount of such book entry on the
Monthly Distribution Date, without the Trustee needing to make the
corresponding payment under clause 10.3(a).
8.6 Cash Advance Deposit
On each Determination Date the Manager will determine the amount (if any)
that has been received in the Collection Period just ended in respect of
interest that has been earned on the Collections Account and which is
attributable to the Cash Advance Deposit (if any) deposited in the
Collections Account and will instruct the Trustee to pay such interest to
the Liquidity Facility Provider on the next Monthly Distribution Date.
8.7 Break Costs and Break Benefits
(a) (Application of Clause): If the Trustee is party to a Fixed Rate
Swap:
(i) this clause 8.7 will apply (but otherwise shall be of no
effect); and
(ii) Break Costs will not be included in the definition of Finance
Charge Collections (except as set out in clauses 8.7(c) and
(d)) and Break Benefits will not be included in the definition
of Expenses.
(b) (Payment of Break Benefits): The Servicer must pay any Break
Benefits payable to Borrowers during a Collection Period from the
Finance Charge Collections received during that Collection Period
and not yet deposited by the Servicer in the Collections Account in
accordance with clause 22. If the Finance Charge Collections held by
the Servicer and not deposited in the Collections Account are
insufficient to pay any Break Benefits due to be paid to a Borrower,
the Servicer must direct the Trustee, and upon such direction the
Trustee must pay to the Borrower, such Break Benefits from the
Finance Charge Collections in the Collections Account received
during that Collection Period to the extent of the shortfall.
(c) (Net Break Payment): If there is a Net Break Payment on a
Determination Date, the Trustee must:
(i) pay the Break Costs in relation to the immediately preceding
Collection Period to the extent of the Net Break Payment to
the Interest Rate Swap Provider on the following Monthly
Distribution Date or Quarterly Distribution Date in accordance
with the applicable Interest Rate Swap Agreement; and
(ii) treat the balance of the Break Costs in relation to the
immediately preceding Collection Period as Finance Charge
Collections in relation to that Collection Period.
(d) (Net Break Receipt): If there is a Net Break Receipt on a
Determination Date, the
58
Trustee must:
(i) treat the Break Costs in relation to the immediately preceding
Collection Period as Finance Charge Collections in relation to
that Collection Period; and
(ii) treat any amount received from the Interest Rate Swap Provider
on the following Monthly Distribution Date or Quarterly
Distribution Date, as applicable, in respect of the Net Break
Receipt in accordance with the Interest Rate Swap Agreement as
an Available Income Amount with respect to that Monthly
Distribution Date or Quarterly Distribution Date (as
applicable).
(e) (Manager to Determine): The Manager must determine on each
Determination Date the Net Break Payment or Net Break Receipt, as
the case may be, and must direct the Trustee as to the payments to
be made by the Trustee, if any, in accordance with this clause 8.7.
8.8 Interest Rate Swap Provider Deposit
On each Determination Date the Manager will determine the amount (if any)
that has been received in the Collection Period just ended in respect of
interest that has been earned on the Collections Account or any other
account held by the Trustee as trustee of the Series Trust and which is
attributable to the Interest Rate Swap Provider Deposit (if any) deposited
in the Collections Account or that other account and will instruct the
Trustee to pay such interest to the Interest Rate Swap Provider on the
next Monthly Distribution Date or Quarterly Distribution Date, as
applicable.
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9. Chargeoffs
9.1 Allocation of Principal Chargeoffs
If there is a Principal Xxxxxxxxx on a Determination Date falling in a
month in which a Quarterly Distribution Date also falls, and prior to the
enforcement of the Charge, it will be allocated in the following order:
(a) (Class B Notes): first, amongst the Class B Notes equally in
reduction of the Stated Amount of the Class B Notes until the Stated
Amount of the Class B Notes is reduced to zero; and
(b) (Other Securities and Standby Redraw Facility Provider): secondly,
any balance of the Principal Chargeoff remaining after the
application of clause 9.1(a) will be allocated as follows:
(i) the Class A-1 Chargeoff Percentage of such balance rateably
amongst the Class A-1 Notes according to the Adjusted Stated
Amount of each Class A-1 Note;
(ii) the Class A-2 Chargeoff Percentage of such balance rateably
amongst the Class A-2 Notes;
(iii) the Redraw Bond Chargeoff Percentage of such balance rateably
amongst the Redraw Bonds according to the Stated Amount of
each Redraw Bond; and
(iv) the Standby Redraw Chargeoff Percentage of such balance to the
Standby Redraw Facility Principal,
59
in reduction, respectively, of the Stated Amount of the Class
A-1 Notes (in accordance with the Class A-1 Note Conditions),
the Stated Amount of the Class A-2 Notes and the Redraw Bonds
and the Standby Redraw Facility Principal, until such Stated
Amounts and the Standby Redraw Facility Principal are reduced
to zero.
A reduction in the Stated Amount of a Security and the Standby Redraw
Facility Principal in accordance with the foregoing will take effect on
the next Monthly Distribution Date by the amount so allocated.
9.2 Allocation of Principal Chargeoff Reimbursements
If there is a Principal Chargeoff Reimbursement on a Determination Date,
then it will be allocated in the following order:
(a) (Class A Notes, Redraw Bonds and Standby Redraw Facility Provider):
first, pro-rata (according to, in the case of the Class A-1 Notes,
the A$ Equivalent of the aggregate Unreimbursed Principal Chargeoffs
on that Determination Date, in the case of the Class A-2 Notes and
the Redraw Bonds, their respective aggregate Unreimbursed Principal
Chargeoffs on that Determination Date and, in the case of the
Standby Redraw Facility Principal, its Unreimbursed Principal
Chargeoffs on that Determination Date) as follows:
(i) rateably amongst the Class A-1 Notes according to the
Unreimbursed Principal Chargeoff of each Class A-1 Note;
(ii) equally amongst the Class A-2 Notes;
(iii) rateably amongst the Redraw Bonds according to the
Unreimbursed Principal Chargeoff of each Redraw Bond; and
(iv) the Standby Redraw Facility Principal,
in reduction of, respectively, the amount of the Unreimbursed
Principal Chargeoffs on the Class A-1 Notes (in accordance with the
Class A-1 Note Conditions) and the Unreimbursed Principal Chargeoffs
on the Class A-2 Notes, the Redraw Bonds and the Standby Redraw
Facility Principal, until such Unreimbursed Principal Chargeoffs are
reduced to zero; and
(b) secondly, equally amongst the Class B Notes until the amount of
Unreimbursed Chargeoffs on the Class B Notes are reduced to zero.
A reduction of an Unreimbursed Principal Chargeoff in accordance with the
foregoing will take effect on the next Monthly Distribution Date by the
amount so allocated.
9.3 Loss Recoveries
If the Servicer receives or collects any Loss Recoveries in respect of a
Mortgage Loan for which payment has already been received by or on behalf
of the Trustee from a Support Facility Provider, then the Servicer must
pay such amount to the relevant Support Facility Provider pursuant to the
relevant Support Facility. Where the Trustee is entitled to retain any
such Loss Recoveries pursuant to such Support Facility, or receives any
Loss Recoveries from the Support Facility Provider, then such amounts will
be included in Other Income Amounts.
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10. Payments on Monthly Distribution Dates and Quarterly Distribution Dates by
Trustee
10.1 Payment of Accrued Interest Adjustment on first Monthly Distribution Date
60
On the first Monthly Distribution Date, the Trustee must, in accordance
with the directions given to it by the Manager pursuant to clause 8.1, pay
from the Collections Account to each Relevant Seller the aggregate of the
Accrued Interest Adjustment for all Mortgage Loans then forming part of
the Assets of the Series Trust and which were assigned to the Trustee by
that Relevant Seller. Such aggregate sum will, for the purposes of making
the determinations pursuant to clause 8.1 on the first Determination Date,
be deducted by the Manager from the Available Income Amount in respect of
the first Monthly Distribution Date.
10.2A Application of the Available Income Amount on each Monthly Distribution
Date which is not also a Quarterly Distribution Date
On each Monthly Distribution Date which is not also a Quarterly
Distribution Date, prior to the enforcement of the Charge, the Trustee
must, in accordance with the directions given by the Manager pursuant to
clause 8.1, apply the Available Income Amount in respect of that Monthly
Distribution Date in making the following allocations, and the following
payments from the Collections Account, in the following order of priority:
(a) (Taxes): first, in or towards payment of or provision for Taxes in
relation to the Series Trust (including Government Charges paid by
the Servicer on behalf of the Trustee);
(b) (Trustee's Fee): secondly, in or towards payment to the Trustee of
the Trustee's Fee due on that Monthly Distribution Date;
(c) (Security Trustee's Fee): thirdly, in or towards payment to the
Security Trustee of the Security Trustee's Fee due on that Monthly
Distribution Date;
(d) (Management Fee): fourthly, in or towards payment to the Manager of
the Management Fee due on that Monthly Distribution Date;
(e) (Servicer's Fee): fifthly, in or towards payment to the Servicer of
the Servicer's Fee due on that Monthly Distribution Date;
(f) (Liquidity Facility Commitment Fee): sixthly, in or towards payment
to the Liquidity Facility Provider of the Liquidity Facility
Commitment Fee due on that Monthly Distribution Date;
(g) (Support Facilities): seventhly, in or towards payment rateably of
any net amounts due to a Support Facility Provider under a Support
Facility on that Monthly Distribution Date, but excluding any
amounts specified in paragraph (f) above, paragraphs (i), (j) and
(k)(iii) below and clauses 9.3 and 10.3(b);
(h) (Expenses): eighthly, in or towards payment of or provision for all
Expenses in respect of the Accrual Period ending on that Monthly
Distribution Date;
(i) (Standby Redraw Facility Commitment Fee): ninthly, in or towards
payment to the Standby Redraw Facility Provider of the Standby
Redraw Facility Commitment Fee due on that Monthly Distribution
Date;
(j) (Liquidity Facility Advance): tenthly, in or towards repayment to
the Liquidity Facility Provider of any outstanding Liquidity
Facility Advance made on or prior to the previous Monthly
Distribution Date;
(k) (Class A Note, Redraw Bond and Standby Redraw Facility Interest):
eleventhly, subject to clause 10.8, in payment rateably as follows:
(i) equally amongst the Class A-2 Notes of the aggregate of the
Interest
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Amounts in relation to the Class A-2 Notes for the Accrual
Period ending on that Monthly Distribution Date and any then
Unpaid Interest Amounts in relation to the Class A-2 Notes;
(ii) rateably, according to the sum of the Interest Amounts for the
Accrual Period ending on that Monthly Distribution Date, and
the Unpaid Interest Amounts (if any), for each Redraw Bond,
amongst the Redraw Bonds of the aggregate of the Interest
Amounts in relation to the Redraw Bonds for the Accrual Period
ending on that Monthly Distribution Date and any then Unpaid
Interest Amounts in relation to the Redraw Bonds; and
(iii) to the Standby Redraw Facility Provider of the aggregate of
the Standby Redraw Facility Interest (if any) due on that
Monthly Distribution Date and any Standby Redraw Facility
Interest remaining unpaid from prior Monthly Distribution
Dates; and
(l) (Income Carryover Amounts): twelfthly, all remaining Available
Income to be retained or invested in accordance with clause 5.12 as
the Income Carryover Amount.
The obligations of the Trustee to make any payment or allocation under
each of the above paragraphs is limited in each case to the balance of the
Available Income Amount (if any) available after application in accordance
with the preceding paragraph or paragraphs and provided that on any
Determination Date immediately preceding a Monthly Distribution Date which
is not also a Quarterly Distribution Date, the aggregate of any Available
Income Amount and the then unutilised portion of the Liquidity Facility
Limit (or if the Determination Date is during the Liquidity Cash Advance
Deposit Period, the then unutilised portion of the Liquidity Cash Advance
Deposit) is less than the A$ Equivalent of the interest accrued but unpaid
in relation to the Class A-1 Notes.
10.2B Application of the Available Income Amount on each Quarterly Distribution
Date (also being a Monthly Distribution Date)
On each Quarterly Distribution Date (which is also a Monthly Distribution
Date) prior to the enforcement of the Charge, the Trustee must, in
accordance with the directions given by the Manager pursuant to clause
8.1, apply the Available Income Amount in respect of that Quarterly
Distribution Date in making the following allocations, and the following
payment from the Collections Account, in the following order of priority:
(a) (Taxes): first, in or towards payment of or provisions for Taxes in
relation to the Series Trust (including Government Charges paid by
the Servicer on behalf of the Trustee);
(b) (Trustee's Fee): secondly, in or towards payment to the Trustee of
the Trustee's Fee due on that Quarterly Distribution Date);
(c) (Security Trustee's Fee): thirdly, in or towards payment to the
Security Trustee of the Security Trustee's Fee due on that Quarterly
Distribution Date);
(d) (Management Fee): fourthly, in or towards payment to the Manager of
the Management Fee due on that Quarterly Distribution Date);
(e) (Servicer's Fee): fifthly, in or towards payment to the Servicer of
the Servicer's Fee due on that Quarterly Distribution Date);
(f) (Liquidity Facility Commitment Fee): sixthly, in or towards payment
to the Liquidity Facility Provider of the Liquidity Facility
Commitment Fee due on that Quarterly Distribution Date;
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(g) (Support Facilities): seventhly, in or towards payment rateably of
any net amounts due to a Support Facility Provider under a Support
Facility on that Quarterly Distribution Date, but excluding any
amounts specified in paragraph (f) above, paragraphs (i), (j) and
(k) (iv) below and clauses 9.3 and 10.3(b);
(h) (Expenses): eighthly, in or towards payment of all Expenses in
respect of the Accrual Period ending on that Quarterly Distribution
Date;
(i) (Standby Redraw Facility Commitment Fee): ninthly, in or towards
payment to the Standby Redraw Facility Provider of the Standby
Redraw Facility Commitment Fee due on that Quarterly Distribution
Date);
(j) (Liquidity Facility Advance): tenthly, in or towards repayment to
the Liquidity Facility Provider of any outstanding Liquidity
Facility Advance made on or prior to the previous Monthly
Distribution Date;
(k) (Class A Note, Redraw Bond and Standby Redraw Facility Interest):
eleventhly, subject to clause 10.8, in payment rateably as follows:
(i) to the Currency Swap Providers in accordance with clause 10.4,
of the A$ Class A-1 Interest Amounts and any A$ Class A-1
Unpaid Interest Amounts, in relation to that Quarterly
Distribution Date;
(ii) equally amongst the Class A-2 Notes of the aggregate of the
Interest Amounts in relation to the Class A-2 Notes for the
Accrual Period ending on that Quarterly Distribution Date) and
any then Unpaid Interest Amounts in relation to the Class A-2
Notes;
(iii) rateably, according to the sum of the Interest Amounts for the
quarterly Accrual Period ending on that Quarterly Distribution
Date), and the Unpaid Interest Amounts (if any), for each
Redraw Bond, amongst the Redraw Bonds of the aggregate of the
Interest Amounts in relation to the Redraw Bonds for the
monthly Accrual Period ending on that Quarterly Distribution
Date and any then Unpaid Interest Amounts in relation to the
Redraw Bonds; and
(iv) to the Standby Redraw Facility Provider of the aggregate of
the Standby Redraw Facility Interest (if any) due on that
Quarterly Distribution Date and any Standby Redraw Facility
Interest remaining unpaid from prior Monthly Distribution
Dates; and
(l) (Class B Interest): twelfthly, subject to clause 10.8, in payment
equally amongst the Class B Notes of the aggregate of the Interest
Amounts in relation to the Class B Notes for the quarterly Accrual
Period ending on that Quarterly Distribution Date and any then
Unpaid Interest Amounts in relation to the Class B Notes;
(m) (Principal Chargeoff Reimbursement): thirteenthly, subject to clause
10.8, the amount of the Principal Chargeoff Reimbursement for the
Determination Date falling in the same month as the Quarterly
Distribution Date as an allocation to the Available Principal Amount
to be paid in accordance with clause 10.3;
(n) (Arranging Fee): fourteenthly, subject to clause 10.8, in payment to
the Manager of the Arranging Fee due on that Quarterly Distribution
Date and any Arranging Fee outstanding from a prior Quarterly
Distribution Date; and
(o) (Residual Unitholder): fifteenthly, subject to clause 10.8, the
balance in payment to the Residual Unitholder, to be dealt with, and
held by, the Residual Unitholder pursuant to clause 11.1.
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The obligations of the Trustee to make any payment or allocation under
each of the above paragraphs is limited in each case to the balance of the
Available Income Amount (if any) available after application in accordance
with the preceding paragraph or paragraphs.
10.3 Application of the Available Principal Amount on each Monthly Distribution
Date
On each Monthly Distribution Date prior to the enforcement of the Charge,
the Trustee must in accordance with the directions given by the Manager
pursuant to clause 8.1, apply the Available Principal Amount in respect of
that Monthly Distribution Date in making the following payments from the
Collections Account in the following order of priority:
(a) (Seller Advances): first, subject to clause 8.3, in or towards
repayment to each Seller on the next Monthly Distribution Date of
any Seller Advances made by that Seller during or prior to the
Collection Period just ended and which have not previously been
repaid in accordance with this clause 10.3(a);
(b) (Standby Redraw Facility Principal): secondly, in or towards
repayment to the Standby Redraw Facility Provider of any Standby
Redraw Facility Principal;
(c) (Securityholders): thirdly, subject to clause 10.8, in accordance
with clause 10.5; and
(d) (Residual Unitholder): fourthly, subject to clause 10.8, the balance
(if any) to the Residual Unitholder.
The obligations of the Trustee to make any payment under each of the above
paragraphs is limited in each case to the balance of the Available
Principal Amount (if any) available after application in accordance with
the previous paragraph or paragraphs.
10.4 Payment of Interest on the Class A-1 Notes
On each Quarterly Distribution Date that any amount is payable to a
Currency Swap Provider pursuant to clause 10.2(B)(k)(i),(1), the Trustee
must comply with Condition 6.9 of the Class A-1 Note Conditions in
relation to that Currency Swap Provider.
10.5 Repayment of Principal on the Securities
Subject to clauses 10.5(b)(i)B and 10.5(c)(ii), on each Monthly
Distribution Date as specified in this clause 10.5, prior to the
enforcement of the Charge, the Trustee must pay the amount available for
distribution on that Monthly Distribution Date in accordance with clause
10.3(c) in the following order:
(a) (Redraw Bonds): first, on each Monthly Distribution Date amongst the
Redraw Bonds (if any) as a repayment of principal on the Redraw
Bonds in the following order:
(i) first, equally amongst those Redraw Bonds with the earliest
Issue Date until the Stated Amount of those Redraw Bonds is
reduced to zero;
(ii) secondly, equally amongst those Redraw Bonds with the next
earliest Issue Date (if any) until the Stated Amount of those
Redraw Bonds is reduced to zero; and
(iii) subsequently, equally amongst each subsequent group of Redraw
Bonds (if any) with the same Issue Date until the Stated
Amount of those Redraw Bonds is reduced to zero on the basis
that a Redraw Bond will not be entitled to any payment in
respect of principal under this clause 10.5 until the Stated
Amount of all Redraw Bonds with an earlier Issue
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Date than that Redraw Bond has been reduced to zero;
(b) (Class A Notes): secondly, subject to clause 10.8, the lesser of the
balance (if any) of the amount available for distribution and the
Class A Principal Distribution for that Monthly Distribution Date
(such lesser amount being the "Class A Available Principal
Distribution") rateably as follows:
(i) A. on each Monthly Distribution Date which is also a
Quarterly Distribution Date - the Class A-1 Percentage
of the Class A Available Principal Distribution together
with the Class A-1 Principal Carryover Amount shall be
paid to the Currency Swap Providers in accordance with
clause 10.6; and
B. on each Monthly Distribution Date which is not also a
Quarterly Distribution Date - the Class A-1 Percentage
of the Class A Available Principal Distribution shall be
retained or invested in accordance with clause 5.12 to
form part of the Class A-1 Principal Carryover Amount;
and
(ii) on each Monthly Distribution Date - the Class A-2 Percentage
of the Class A Available Principal Distribution equally
amongst the Class A-2 Notes as a repayment of principal on the
Class A-2 Notes,
until the Stated Amount of the Class A Notes is reduced to zero
provided that the Stated Amount of any prior-ranking Class A-2
Tranche is paid prior to the Stated Amount of any subsequent ranking
Class A-2 Tranche; and
(c) (Class B Notes): thirdly, subject to clause 10.8, the balance (if
any) of the amount available for distribution under this clause 10.5
shall be applied as follows:
(i) on each Monthly Distribution Date which is also a Quarterly
Distribution Date - together with the Class B Principal
Xxxxxxxxx Amount, equally amongst the Class B Notes until the
Stated Amount of the Class B Notes is reduced to zero; and
(ii) on each Monthly Distribution Date which is not also a
Quarterly Distribution Date - retained or invested in
accordance with clause 5.12 to form part of the Class B
Principal Carryover Amount.
10.6 Repayment of Principal on the Class A Notes
On each Quarterly Distribution Date that any amount is payable to a
Currency Swap Provider pursuant to clause 10.5(b)(i), the Trustee must
comply with Condition 7.2 of the Class A-1 Note Conditions in relation to
that Currency Swap Provider.
10.7 Inability to Comply with Order of Priority
The inability of the Trustee or the Manager to comply with any order of
priority of payment specified in this Deed due to any law relating to the
rights of creditors generally or specifically does not constitute a
Trustee Default or a Manager Default and does not entitle any
Securityholder or the Residual Unitholder to take any action against the
Trustee or the Manager. Nothing in clause 8 or this clause 10 requires the
Trustee or the Manager to breach any Transaction Document or to fail to
comply with any applicable law.
10.8 No Payment in respect of Obligations ranking Equally or after Class A-1
Notes if no payment made to Currency Swap Provider
If on a given Quarterly Distribution Date for whatever reason payment is
not made in full to a Currency Swap Provider in accordance with clauses
10.2B(k)(i) and 10.5(b)(i), the Trustee
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must not make any payment or allocation (as the case may be) pursuant to
clauses 10.2B(k)-(o) (inclusive), 10.3(c) & (d) or 10.5(b) & (c) on that
Quarterly Distribution Date or thereafter until and unless all amounts
outstanding under clauses 10.2B (k)(i) and 10.5(b)(i) are paid to the
Currency Swap Provider (or other arrangements are entered into) that
enables all amounts of interest and principal due in respect of the Class
A-1 Notes to be paid or repaid to the Class A-1 Noteholders in full in US
dollars in accordance with the Class A-1 Notes Conditions.
10.9 Payments in respect of A$ Securities
All payments in respect of an A$ Security on a Monthly Distribution Date
or Quarterly Distribution Date referred to in this Deed must be made to
the person recorded in the Register as the holder of that A$ Security as
at close of business on the Business Day immediately preceding that
Monthly Distribution Date or Quarterly Distribution Date (as the case may
be).
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11. Net Tax Income of the Series Trust
11.1 Net Tax Income of the Series Trust absolutely vested in the Residual
Unitholder
The Net Tax Income of the Series Trust for each Financial Year will be
absolutely vested in the Residual Unitholder and the Residual Unitholder
will have an absolute vested interest in the Net Tax Income of the Series
Trust for that Financial Year. To the extent that such balance has not
actually been paid to the Residual Unitholder pursuant to clause 10.2B(o)
during that Financial Year, it will constitute an amount payable by the
Trustee to the Residual Unitholder to be satisfied only from Excess
Distributions otherwise payable to the Residual Unitholder in accordance
with clause 10.2B(o) on the Quarterly Distribution Dates following the
close of the Financial Year. If in the last Financial Year of the Series
Trust, such amount (if any) in respect of the previous Financial Year has
not been satisfied from the Excess Distributions otherwise payable to the
Residual Unitholder in accordance with clause 10.2B(o) on the Quarterly
Distribution Dates in the last Financial Year, the shortfall, plus any
such amount for the last Financial Year, will be satisfied in full from,
and only by, the payment of the excess funds (if any) by the Trustee to
the Residual Unitholder pursuant to clause 26.15.
11.2 Excess Distribution
(a) (Deposit with the Residual Unitholder): A payment to the Residual
Unitholder of the Excess Distribution pursuant to clause 10.2B(o)
will be held by the Residual Unitholder as a deposit by the Trustee
with the Residual Unitholder and will be dealt with in accordance
with this clause 11.2.
(b) (Application towards Net Tax Income): At the end of each Financial
Year, the Residual Unitholder will, and will be entitled to, deduct
from so much of the deposit standing to the credit of the Trustee
pursuant to clause 11.2(a):
(i) -first, the Net Tax Income of the Series Trust for that
Financial Year absolutely vested in the Residual Unitholder
for that Financial Year pursuant to clause 11.1
(ii) secondly, an amount not exceeding the then Subscription Amount
notified by the Manager to the Trustee and the Residual
Unitholder that the Residual Unitholder is entitled to deduct
as a return of capital in the Series Trust represented by the
Residual Unit.
To the extent that there is any surplus in the amount so deposited
over the aggregated Net Tax Income vested pursuant to clause
11.2(b)(i) or paid as a return of capital pursuant to clause
11.2(b)(ii), in a Financial Year, after the capital in the Series
Trust has been reduced, the surplus will be dealt with in accordance
with this clause 11.2(b) in the succeeding Financial Year.
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12. Early termination of Swaps
12.1 Early Termination of a Swap
If at any time a Fixed Rate Swap terminates prior to its scheduled
termination date, or a Basis Swap terminates, in each case whilst there
are Securities which have not then been redeemed (or deemed to be
redeemed) in full or a Class A-1 Currency Swap terminates whilst there are
Class A-1 Notes which have not then been redeemed (or deemed to be
redeemed) in full, the Manager and the Trustee must:
(a) (Enter into Replacement Swap): (in the case of the Trustee, to the
extent that the Manager has made appropriate arrangements to ensure
that it is practicable) enter into one or more swaps which replace
the terminated Swap on terms and with a counterparty which the
Rating Agencies confirm in writing will not result in a reduction,
qualification or withdrawal of the credit ratings then assigned by
them to the Securities or the Class A-1 Notes (as the case may be)
and, in the case of the Manager, use all reasonable endeavours to
make appropriate arrangements to ensure that it is practicable for
the Trustee to enter into one or more such swaps not later than 5
Business Days after it becomes aware of the termination of such
terminated Swap;
(b) (Termination of Basis Swap): in the case of a termination of a Basis
Swap (but without limiting the operation of paragraphs (a) and (c)
in relation to the termination of a Basis Swap), as soon as the
Trustee becomes actually aware of the termination, direct the
Servicer to ensure compliance with clause 12.2; or
(c) (Other Arrangements): enter into such other arrangements which the
Rating Agencies confirm in writing will not result in a reduction,
qualification or withdrawal of the credit ratings then assigned by
them to the Securities or the Class A-1 Notes (as the case may be).
12.2 Servicer to Adjust Mortgage Interest Saver Accounts and Mortgage Rates if
Basis Swap Terminated
If at any time a Basis Swap terminates whilst there are any Securities
which have not been redeemed (or deemed to be redeemed) in full and it is
directed by the Manager and the Trustee pursuant to clause 12.1(b) to
comply with this clause 12.2, the Servicer must, in respect of each
Accrual Period commencing thereafter until the date on which clause
12.1(a) or (c) may be implemented:
(a) (Reduce Mortgage Interest Saver Accounts): reduce, except as may be
provided by applicable laws (including the Consumer Credit Code),
any Binding Provision and any Competent Authority, the rates at
which the interest off-set benefits under the Mortgage Interest
Saver Accounts are calculated to rates which produce an amount of
income at least equal to the lesser of:
(i) the aggregate amount of income that would be produced if the
rates at which the interest off-set benefits under the
Mortgage Interest Saver Accounts are calculated were reduced
to zero; and
(ii) the amount of income which is sufficient, when aggregated with
the amount of income produced by the rate of interest on the
Mortgage Loans, and the income from Short-Term Authorised
Investments, then forming part of the Assets of the Series
Trust to ensure that the Trustee will have available to it
sufficient Finance Charge Collections and Other Income Amounts
to enable it to comply with its obligations under the
Transaction Documents as they fall due; and
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(b) (Set Threshold Rate): if the amount of income produced pursuant to
clause 12.2(a) is not sufficient, when aggregated with the amount of
income produced by the rate of interest payable on the Mortgage
Loans, and the income from Short-Term Authorised Investments, then
forming part of the Assets of the Series Trust to ensure that the
Trustee will have sufficient Finance Charge Collections and Other
Income Amounts to enable it to meet its obligations under the
Transaction Documents as they fall due, ensure, except as may be
provided by applicable law (including the Consumer Credit Code), any
Binding Provision and any Competent Authority, that the weighted
average Mortgage Rate applicable to the Mortgage Loans forming part
of the Assets of the Series Trust on each Rate Set Date is not lower
than the Threshold Rate determined by the Manager on that Rate Set
Date pursuant to clause 12.3 and will promptly notify the Borrower
in relation to each Mortgage Loan of any change where required in
accordance with the relevant Mortgage or Loan Agreement.
12.3 Determination of Threshold Rate
While clause 12.2(b) applies, the Manager will, on each Rate Set Date,
determine the Threshold Rate for the Accrual Period commencing on that
Rate Set Date and:
(a) (Notify Servicer): in the case of Mortgage Loans the assignment of
which to the Trustee has not been perfected by the giving of notice
to the relevant Borrower, promptly notify on that date the Servicer
of such rate; and
(b) (Notify Trustee and Servicer): in the case of Mortgage Loans the
assignment of which has been so perfected, promptly notify on that
date the Trustee and the Servicer of such rate.
12.4 Trustee to set Mortgage Rate
If:
(a) (Servicer Default): a failure by the Servicer to comply with clause
12.2 results in the occurrence of the Servicer Default referred to
in clause 18.1(f); and
(b) (No Substitute Servicer Appointed): a Substitute Servicer is not
appointed immediately pursuant to clause 18 of this Deed,
the Manager must immediately direct the Trustee (in its capacity as
Substitute Servicer pursuant to clause 18 of this Deed), and the Trustee
must as soon as practicable thereafter comply with such direction, to
adjust or maintain the Mortgage Rate (as the case may be) in accordance
with clause 12.2 until such time as a Substitute Servicer is appointed in
accordance with the Trust Deed.
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13. Representations and warranties regarding Mortgage Loans
13.1 Seller's Representations and Warranties
As at the Cut-Off Date, CBA represents and warrants, for itself and the
other Relevant Seller, to the Trustee in respect of each Mortgage Loan
that:
(a) (Mortgage complied with laws): at the time that the Relevant Seller
entered into the Mortgage relating to the Mortgage Loan, the
Mortgage complied in all material respects with applicable laws
(including applicable Consumer Credit Code laws);
(b) (Good faith): at the time that the Relevant Seller entered into the
Mortgage Loan, it did so in good faith;
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(c) (Ordinary course of business): at the time that the Relevant Seller
entered into the Mortgage Loan, the Mortgage Loan was originated in
the ordinary course of the Relevant Seller's business and since that
time the Relevant Seller has dealt with that Mortgage Loan in
accordance with the Servicing Procedures and the Servicing
Standards;
(d) (First ranking security): at the time that the Relevant Seller
entered into the Mortgage Loan, all necessary steps were taken in
respect of a Mortgage created in connection with the Mortgage Loan
so that the Mortgage complied with the legal requirements applicable
at that time to ensure that the Mortgage was a first-ranking
mortgage (subject to any statutory charges, any prior charges of a
body corporate, service company or equivalent, whether registered or
otherwise, and any other prior Security Interests which do not
prevent the Mortgage from being considered to be a first-ranking
mortgage in accordance with the Servicing Standards) secured over
Land in the jurisdiction in which the relevant Land is located
subject to stamping and registration of the relevant Mortgage in due
course;
(e) (Priority arrangements): where there is a second or other mortgage
in existence over Land the subject of a Mortgage in relation to the
Mortgage Loan and the Relevant Seller is not the mortgagee of that
second or other mortgage, the Relevant Seller has ensured (by way of
a priority agreement with the subsequent mortgagee or otherwise)
that the Mortgage will rank ahead in priority to the second or other
mortgage on enforcement for an amount not less than the principal
amount (plus accrued but unpaid interest) outstanding on the
Mortgage Loan plus such extra amount determined in accordance with
the Servicing Guidelines;
(f) (Borrower not insolvent): at the time that the Mortgage Loan was
approved, the Relevant Seller had not received any notice of the
insolvency or the bankruptcy of the corresponding Borrowers or that
the corresponding Borrowers did not have the legal capacity to enter
into the corresponding Mortgage;
(g) (Seller sole legal and beneficial owner): the Relevant Seller is the
sole legal and beneficial owner of the Mortgage Loan and the related
Mortgages and First Layer of Collateral Securities (other than the
Insurance Policies) and to its knowledge, subject to clause 13.1(d),
no prior ranking Security Interest exists in relation to its right,
title and interest in that Mortgage Loan and the related Mortgages
and First Layer of Collateral Securities;
(h) (Due stamping): each of the Mortgage Documents (other than the
Insurance Policies in respect of Land) relating to the Mortgage Loan
which is required to be stamped with stamp duty has been duly
stamped;
(i) (Mortgage Loan not discharged): the Mortgage Loan has not been
satisfied, cancelled, discharged or rescinded and the property
relating to each relevant Mortgage has not been released from the
security of that Mortgage;
(j) (Holds all documents necessary to enforce): the Relevant Seller
holds, in accordance with the Servicing Standards, all documents
which, pursuant to the Servicing Standards, it should hold to
enforce the provisions of, and the security created by, the
corresponding Mortgage and the First Layer of Collateral Securities;
(k) (Terms unqualified): other than the relevant Mortgage Documents,
there are no documents entered into between the Relevant Seller and
the Borrower or any other relevant party in relation to the Mortgage
Loan which would qualify or vary the terms of the Mortgage Loan
except as permitted by the Servicing Standards (including any
variations of a Mortgage Loan which may be made by notice to the
Borrower from the Relevant Seller) and except any documentation
relating to any corresponding Mortgage Interest Saver Account;
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(l) (No notice of Security Interests): other than in respect of
priorities granted by statute, the Relevant Seller has not received
notice from any person that it claims to have a Security Interest
ranking in priority to or equal with the Security Interest held by
the Relevant Seller and constituted by any corresponding Mortgage;
(m) (LVR not exceeded): the Relevant Seller is not aware of any
restrictive covenants, licences or leases existing in respect of
freehold Land the subject of any corresponding Mortgage which would
reduce the value of the Mortgage over such Land such that the Loan
to Value Ratio determined as at the Cut-Off Date in respect of the
Mortgage Loan would exceed 95% (but retaining for this purpose the
original "V" for the Mortgage Loan under the definition of "Loan to
Value Ratio" in clause 1.1);
(n) (Mortgage Insurance Policies): the Mortgage Loan is, or will be on
and from the Closing Date, insured under a Mortgage Insurance
Policy;
(o) (Support Facility requirements): the Relevant Seller has complied
with all material requirements of each Support Facility relating to
the Mortgage Loan, except as otherwise permitted by the
corresponding Support Facility Provider;
(p) (All licences and consents): the Relevant Seller holds all consents,
licences, approvals, authorisations and exemptions from any
Governmental Agency required as at the Cut-Off Date for, or in
connection with, performance and enforceability in respect of the
Mortgage Loan which, in accordance with the Servicing Standards, it
should hold in relation to the Mortgage Loan as at the Cut-Off Date;
(q) (Eligibility criteria): the Mortgage Loan complies with the
Eligibility Criteria as at the Cut-Off Date;
(r) (Interest rate may be varied): except in respect of a Mortgage Loan
subject to a fixed rate of interest (or a rate of interest which can
be converted into a fixed rate of interest or a fixed margin
relative to a benchmark) and except as may be provided by applicable
laws (including the Consumer Credit Code), any Binding Provision or
any Competent Authority or as may be provided in the corresponding
Mortgage Documents, the interest rate payable on the Mortgage Loan
is not subject to any limitation and no consent, additional
memoranda or other writing is required from the relevant Borrower to
give effect to a change in the interest rate payable on the Mortgage
Loan and, subject to the foregoing, any change in the interest rate
may be set at the sole discretion of the Servicer and is effective
no later than when notice is given to the Borrower in accordance
with the terms of the relevant Mortgage Loan;
(s) (Relevant Seller entitled to Sell): the Relevant Seller is lawfully
entitled to sell and assign its interests in the corresponding
Mortgage Loan Rights and to transfer valid and beneficial title to
the Trustee free from all Security Interests (other than as
described in clause 13.1(d));
(t) (No preference): it is not aware of anything in relation to the sale
of the Mortgage Loan Rights to the Trustee which might cause a court
to hold that the sale constitutes an under-value transfer, a
fraudulent conveyance or a voidable preference under any law
relating to insolvency; and
(u) (No breach): the sale, transfer and assignment of a Seller's
interest in the Mortgage Loan Rights will not constitute a breach of
its obligations or a default under any Security Interest binding on
the Relevant Seller or its property.
13.2 Trustee need not Test Warranties
The Trustee is under no obligation to test the truth of any warranty or
representation in clause
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13.1 and is entitled to accept them conclusively at all times (unless it
is actually aware of any breach).
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14. Breach of representations and warranties
14.1 Manager or Seller Becomes Aware of Incorrect Representations or Warranties
If the Manager or a Seller becomes actually aware that a material
representation or warranty made pursuant to clause 13.1 was incorrect when
given in respect of a Mortgage Loan assigned to the Trustee in accordance
with this Deed it must give notice to the other parties to this Deed
accompanied by sufficient details to identify the relevant Mortgage Loan,
and the reason the representation or warranty is incorrect, within 5
Business Days of the Manager or the Relevant Seller (as the case may be)
becoming so aware. Neither the Manager nor the Sellers are under any
ongoing obligation whatsoever to conduct any investigation in any manner
whatsoever to determine if a representation or warranty made pursuant to
clause 13.1 is incorrect when given in respect of a Mortgage Loan.
14.2 If Trustee Becomes Aware of Incorrect Representations or Warranties
If the Trustee becomes actually aware that a material representation or
warranty made pursuant to clause 13.1 was incorrect when given in respect
of a Mortgage Loan assigned to the Trustee in accordance with this Deed,
it must give notice to the Manager and the Sellers, accompanied by
sufficient details to identify the relevant Mortgage Loan and the
Trustee's reasons for believing that the representation or warranty is
incorrect, within 5 Business Days of becoming so aware. The Trustee is
under no obligation whatsoever to conduct any investigation in any manner
whatsoever to determine if a representation or warranty made pursuant to
clause 13.1 is incorrect when given in respect of a Mortgage Loan.
14.3 Remedy of Defaults during Prescribed Period
If with respect to any Mortgage Loan:
(a) (Representation or warranty incorrect): any representation or
warranty made by CBA pursuant to clause 13.1 is incorrect when
given; and
(b) (Notice given under clause 14.1 or 14.2):
(i) the Manager or a Seller gives a notice to the Trustee pursuant
to clause 14.1; or
(ii) the Sellers receive a notice from the Trustee (pursuant to
clause 14.2),
in either case, not later than 5 Business Days prior to the
last day of the Prescribed Period in relation to the Mortgage
Loan, then, if that breach is not remedied to the satisfaction
of the Trustee within 5 Business Days of the Seller or the
Manager giving or receiving the notice (as the case may be),
the Mortgage Loan Rights to which such Mortgage Loan relates
will be held by the Trustee in accordance with the terms of
clause 14.4.
14.4 Holding for CBA Trust during Prescribed Period
If, in relation to a Mortgage Loan during its Prescribed Period, any
breach referred to in a notice pursuant to clause 14.3 is not remedied
within the period specified in clause 14.3, then, on the expiry of the
time period for remedying the breach specified in clause 14.3 and without
the necessity for any further act or instrument or other thing being done
or brought into existence, the Trustee automatically by virtue of this
Deed holds its entire interest in the Mortgage Loan Rights, of which that
Mortgage Loan forms part, for the CBA Trust. However,
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the Trustee is entitled to retain for the Series Trust all Finance Charge
Collections and Principal Collections received by the Trustee pursuant to
the relevant Mortgage Loan from the Cut-Off Date to the date of delivery
of the relevant notice in accordance with clause 14.3.
14.5 Costs
Each Seller must pay to, or reimburse, the Trustee for all costs and
expenses (including, without limitation, any legal costs charged at the
usual commercial rates of the relevant legal services provider and any
stamp duty and registration fees) arising out of or necessarily incurred
in connection with the holding by the Trustee of the Relevant Seller's
interest in any Mortgage Loan Rights in accordance with clause 14.4. Such
payment (if any) must be made on the same date as payments in respect of
the relevant Mortgage Loan must be made pursuant to clause 14.6.
14.6 Payment
Subject to clause 14.8, CBA must pay (or procure payment) to the Trustee,
in respect of any Mortgage Loan Rights held for the CBA Trust pursuant to
clause 14.4, within 2 Business Days of the Mortgage Loan Rights becoming
so held for the CBA Trust, an amount equal to the sum of:
(a) (Principal Amount): the principal amount outstanding in respect of
the relevant Mortgage Loan (as recorded on the Mortgage Loan System)
as at the date of delivery of the relevant notice in accordance with
clause 14.3; and
(b) (Accrued interest): the accrued but unpaid interest (as at the date
of delivery of the relevant notice pursuant to clause 14.3) in
respect of that Mortgage Loan.
14.7 Limitation on Rights of Trustee During Prescribed Period
The performance by CBA of its obligations under clause 14.6 is the sole
remedy available to the Trustee during the relevant Prescribed Period in
respect of a representation or warranty being incorrect when given
pursuant to clause 13.1 in respect of a Mortgage Loan. The Trustee
expressly acknowledges and agrees that during the Prescribed Period, other
than pursuant to clause 14.6, it has no remedy against either Seller in
respect of any representation or warranty being incorrect when given by
CBA pursuant to clause 13.1 and which the Trustee becomes actually aware
of prior to the last day on which the notices referred to in clause
14.3(b) can be given.
14.8 Limit of Seller's Liability for Mortgage Loans
Other than the rights of the Trustee pursuant to clause 14.6, neither
Seller has any liability for any loss or damage caused to the Trustee, any
Securityholder, any Creditor or any other person in respect of any
representation or warranty being incorrect when given by CBA pursuant to
clause 13.1 in respect of a Mortgage Loan in relation to which a notice
has been received or given pursuant to clause 14.3(b).
14.9 CBA's Liability for Damages After Prescribed Period
(a) (Seller to indemnify the Trustee): CBA indemnifies the Trustee
(whether for its own account or for the account of Securityholders)
against any costs, damages or loss arising from any representation
or warranty being incorrect when made by CBA pursuant to clause 13.1
in relation to a Mortgage Loan and which is discovered by the
Trustee after the last day on which a notice under clause 14.3(b)
can be given. The amount of such costs, damages or loss is to be
agreed between the Trustee and CBA. Failing such agreement the
amount is to be the amount determined by CBA's external auditors.
The amount cannot exceed the principal amount outstanding in respect
of the Mortgage Loan (as recorded on the Mortgage
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Loan System) and any accrued but unpaid interest and any outstanding
fees in respect of the Mortgage Loan (calculated at the time of
agreement between the Trustee and CBA or determination by CBA's
external auditors, as the case may be).
(b) (Seller to pay damages within 7 Business Days): CBA must, within 7
Business Days of agreement or determination (as the case may be)
pursuant to clause 14.9(a), pay the relevant sum to the Trustee.
(c) (Limitation): The Trustee agrees and acknowledges that the Trustee's
sole remedy against CBA for breach of any representation or warranty
in clause 13.1 of which the Trustee has actual notice on or after
the last day on which the notice referred to in clause 14.3(b) can
be given is pursuant to clause 14.9(a); and
14.10 Discharge of obligations
The compliance by CBA with its obligations under clause 14.6 or clause
14.9 (as the case may be) will discharge all obligations of the Sellers
with respect to any breach of any representation or warranty made in
clause 13.1, regardless, in the case of clause 14.6, of whether such
breach is specified in the relevant notice referred to in clause 14.3(b)
or not.
14.11 Fraud
If the Trustee is unable to give a notice under clause 14.2 due to the
fraud, negligence or wilful default on the part of a Seller or any of its
officers, employees or agents, the Trustee may take such action against
the Seller as the Trustee will think fit.
14.12 Trustee's Reliance
CBA acknowledges that the Trustee has relied, and will if it accepts the
offer contained in the Sale Notice rely, on the representations and
warranties made or to be made by it pursuant to clause 13.1.
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15. Seller's general undertakings
15.1 General Undertakings
Each Seller undertakes to the Trustee and the Manager that, on or after
the Closing Date it will, in addition to any of its other undertakings
under this Deed and in respect of those Mortgage Loan Rights which then
form part of the Assets of the Series Trust, at its own expense:
(a) (Execute further instruments): following the occurrence of a
Perfection of Title Event and the request in writing of the Trustee,
promptly execute, acknowledge and deliver or cause to be executed,
acknowledged and delivered such amendments to this Deed and such
further instruments and take such further action as may be
reasonably necessary to preserve and protect the interest of the
Trustee in and the value of the Mortgage Loan Rights and assist and
co-operate with the Trustee, the Servicer and the Manager in the
Trustee obtaining legal title to the Mortgage Loan Rights following
a Perfection of Title Event;
(b) (Give notice of adverse claim): following receipt of actual notice
of a claim by a third party with respect to or a challenge to the
sale and/or assignment of any Mortgage Loan Right, promptly:
(i) give notice in writing of such action or claim to the Trustee
and, if CBA is not the Servicer, the Servicer;
(ii) give notice in writing to the third party claimant of the
Trustee's beneficial ownership of the Mortgage Loan Right,
with a copy to the
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Trustee;
(iii) give notice in writing to the court (if any) in which such
claim was filed of the Trustee's interest in the Mortgage
Loan, with a copy to the Trustee; and
(iv) pay to, or reimburse, the Trustee immediately upon demand all
reasonable costs and expenses, including, without limitation,
any stamp duty and registration fees, necessarily incurred by
the Trustee in maintaining its interest in the Mortgage Loan
Rights or with respect to giving any related notices to any
Borrower or other party to any Transaction Document;
(c) (Assist Servicer:) take such action as the Servicer may from time to
time reasonably request in connection with the management,
maintenance and enforcement of the Mortgage Loan Rights;
(d) (Give notice of Security Interests): promptly notify the Trustee
after it becomes aware of the creation or existence of any Security
Interest in relation to any Mortgage Loan Rights competing with its
interest or the interest of the Trustee in any Mortgage Loan Rights;
(e) (Retain legal title to Mortgage Loan Rights): subject to this Deed,
at all times ensure that it retains the legal ownership of its
Mortgage Loan Rights;
(f) (Execute documents of extinguishment): execute such documents and
instruments as will reasonably be requested by the Trustee to effect
the extinguishment of the Trustee's right, title and interest in a
Mortgage Loan Right pursuant to this Deed;
(g) (Pay costs of extinguishment): pay to, or reimburse, the Trustee
immediately on demand for all reasonable costs and expenses
including, without limitation, any stamp duty and registration fees,
arising out of or necessarily incurred in connection with the
extinguishment of the Trustee's right, title and interest in a
Mortgage Loan Right pursuant to this Deed;
(h) (Perform obligations): duly and punctually perform each of its
obligations under each of the Mortgage Documents to which it is a
party, including any obligation to notify a Borrower of any change
in interest rates;
(i) (Notify breaches): give notice to the Manager and to the Trustee
promptly upon becoming aware that any representation or warranty
made by CBA in clause 13.1 was incorrect when made;
(j) (Set-off): if a Seller exercises a right of set-off or combination
in respect of any Mortgage Loan, or if any right of set-off is
exercised against a Seller in respect of any Mortgage Loan, pay to
the Trustee, subject to any laws relating to preferences (or the
equivalent), the amount of, respectively, any benefit accruing to
that Seller as a result of the exercise of its right of set-off or
combination or the amount of any right of set-off exercised against
the Seller; and
(k) (Security Interest): not grant any Security Interest over its
remaining right, title and interest in any Mortgage Loan Right.
15.2 Seller not bound by Undertaking
If the Trustee has legal title to a Mortgage Loan Right which has been
assigned to it, the undertakings of the Relevant Seller set out in
paragraphs (d), (e), (h), (i), (j),and (k) of clause 15.1 cease to apply
in respect of the relevant Mortgage Loan Rights.
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15.3 Relevant Seller Downgrade
If at any time a Relevant Seller has a short term deposit credit rating
assigned by Xxxxx'x which is lower than P1 (or such other rating as is
agreed between the Manager, the Trustee, the Relevant Seller and Xxxxx'x)
or has a long term deposit credit rating assigned by S&P which is lower
than BBB (or such other rating as is agreed between the Manager, the
Trustee, the Relevant Seller and S&P) or has a long term rating assigned
by Fitch of lower than BBB (or such other rating as is agreed between the
Manager, the Trustee, the Relevant Seller and Fitch) then (whether or not
clause 15.6 has previously applied) CBA must (for itself, if it is the
Relevant Seller and for Colonial State Bank, if Colonial State Bank is the
Relevant Seller):
(a) (Make a Seller Deposit): as a prepayment of its obligations pursuant
to clause 15.1(k) to pay to the Trustee the amount of any set-off
that may thereafter be exercised against the Relevant Seller,
deposit or maintain in an account (the "Set-Off Account") with an
Eligible Depository which has a short term credit rating of A-1 +
from S&P (which may be the Collections Account while the holder of
the Collections Account is rated in this manner) on each Monthly
Distribution Date thereafter (after giving effect to the payments to
be made on that Monthly Distribution Date) an amount which is the
greater of the following:
(i) in the case of a lower rating by S&P, the amount from time to
time agreed with S&P or, failing agreement, the amount from
time to time specified by S&P, which is sufficient in either
case (as applicable) so as to not result in a reduction,
qualification or withdrawal of the then credit rating assigned
by S&P to the Securities; or
(ii) in the case of a lower rating by Xxxxx'x or Fitch (as
applicable), unless otherwise agreed by Xxxxx'x or Fitch (as
the case may be), an amount equal to whichever of paragraphs
(A) or (B) below applies:
A. if the Relevant Seller is the legal owner of its
Mortgage Loans, 125% of the aggregate of the credit
balances of the Mortgage Interest Saver Accounts then
existing in respect of those Mortgage Loans which do not
have a Waiver of Set-Off and which are then part of the
Assets of the Series Trust as at the preceding
Determination Date; or
B. if the Relevant Seller is no longer the legal owner of
its Mortgage Loans, 125% of the aggregate of the credit
balances of the Mortgage Interest Saver Accounts then
existing in respect of each such Mortgage Loan which
does not have a Waiver of Set-Off and which is then part
of the Assets of the Series Trust as at the date that
the Relevant Seller ceased to be the legal owner of that
Mortgage Loans; or
(b) (Other Arrangements): implement such other arrangements as are from
time to time agreed between CBA and S&P (in the case of a lower
rating by S&P), Xxxxx'x (in the case of a lower rating by Xxxxx'x)
or Fitch (in the case of a lower rating by Fitch) (and notified by
CBA to the Trustee and the Manager) so as to ensure that S&P,
Xxxxx'x or Fitch (as the case may be) does not reduce, qualify or
withdraw the then credit rating assigned by it to the Securities (if
such other arrangements cannot be so agreed with S&P, Xxxxx'x or
Fitch (as the case may be), CBA must comply with clause 15.3(a) in
relation to S&P, Xxxxx'x or Fitch, as the case may be),
provided that CBA will not have any obligation pursuant to this clause
15.3 if all Mortgage Loans which are Assets of the Series Trust have a
Waiver of Set-Off.
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15.4 Reduction or Increase of Seller Deposit
If on a Monthly Distribution Date to which clause 15.3(a) applies:
(a) (Reduction): the required amount of the Seller Deposit pursuant to
clause 15.3(a) is less than the existing amount of the Seller
Deposit, the Manager will direct the Trustee to repay (and upon
receipt of such direction the Trustee will repay on that Monthly
Distribution Date) to CBA from the Set-Off Account the difference
between the required amount of the Seller Deposit on that Monthly
Distribution Date and the existing amount of the Seller Deposit; and
(b) (Increase): the required amount of the Seller Deposit pursuant to
clause 15.3(a) is greater than the existing amount of the Seller
Deposit, CBA will deposit in the Set-Off Account on that Monthly
Distribution Date the difference between the required amount of the
Seller Deposit on that Monthly Distribution Date and the existing
amount of the Seller Deposit.
15.5 Interest on Seller Deposit
On each Determination Date, the Manager will determine the amount (if any)
that has been received in the Collection Period just ended in respect of
interest that has been earned on the Set-Off Account and which is
attributable to the Seller Deposit (if any) deposited in the Set-Off
Account and will instruct the Trustee to pay such interest to CBA on the
next Monthly Distribution Date.
15.6 Seller Upgrade
If, following the application of clause 15.3(a), the Relevant Seller which
was affected by the application of that clause is assigned (by the
relevant Rating Agency or Rating Agencies responsible for triggering the
application of that clause) a short term deposit credit rating by Xxxxx'x
of at least P1 (or such other rating as is agreed between the Manager, the
Trustee, the Relevant Seller and Xxxxx'x), a long term deposit credit
rating by S&P of at least BBB (or such other rating as is agreed between
the Manager, the Trustee, the Relevant Seller and S&P) or a long term
rating by Fitch of BBB (or such other rating as is agreed between the
Manager, the Trustee, the Relevant Seller and Fitch), or if alternative
arrangements referred to in clause 15.3(b) are agreed (with the relevant
Rating Agency or Rating Agencies referred to therein) which do not require
the maintenance of a Seller Deposit, the Manager will direct the Trustee
to repay (and within 2 Business Days of receipt of such direction the
Trustee will repay) to CBA from the Set-Off Account the then Seller
Deposit (which has not previously been utilised in accordance with clause
15.8(b)) together with all accrued, but unpaid, interest on that amount
determined in accordance with clause 15.5.
15.7 Termination of Series Trust or Amendments to Mortgage Loans
On the earlier of:
(a) the date upon which all Mortgage Loans which are Assets of the
Series Trust have a Waiver of Set-Off, and
(b) the Termination Payment Date,
the Manager will direct the Trustee to repay (and upon receipt of such
direction the Trustee will repay) to CBA from the Set-Off Account the then
Seller Deposit (which has not previously been utilised in accordance with
clause 15.8(b)) together with all accrued, but unpaid, interest on that
amount determined in accordance with clause 15.5.
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15.8 Withdrawals from the Collections Account
The Manager may only direct the Trustee to, and the Trustee may only, make
withdrawals from the Seller Deposit in the Set-Off Account as follows:
(a) (Repay Seller Deposit): to repay to CBA the Seller Deposit pursuant
to clauses 15.4(a), 15.6 and 15.7; or
(b) (Meet Seller obligations) to meet any obligation of CBA (in that
capacity) to make any payment to the Trustee pursuant to clause
15.1(k) in relation to the amount of any right of set-off exercised
against a Seller referred to therein, provided that a Seller has
failed to make such payment within 20 Business Days of receipt by a
Seller of notice from the Trustee or the Manager that such payment
is due and unpaid.
15.9 Termination of Mortgage Interest Saver Accounts
Each Seller will, following notice by the Trustee to the relevant
Borrowers pursuant to clause 24.3(b) after the occurrence of a Perfection
of Title Event, subject to any contractual notice requirements by which
such Seller is bound, promptly withdraw all interest off-set benefits (if
any) that would otherwise be available to Borrowers under the terms of
their Mortgage Interest Saver Accounts with such Seller.
15.10 Gross Up for Mortgage Interest Saver Accounts
Each Seller must pay the Servicer (as part of the Collections to be
deposited by the Servicer into the Collections Account in accordance with
clause 22) any amount which would otherwise be received by the Servicer as
a Collection to the extent that the obligation to pay such amounts is
discharged or reduced by virtue of the terms of a Mortgage Interest Saver
Account with such Seller. Such payment must be made on the day that the
relevant amount would otherwise have been received.
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16. Servicing of Mortgage Loan Rights
16.1 Appointment of Servicer
The Servicer is hereby appointed and agrees to act as the Servicer of the
Mortgage Loan Rights (with effect on and from the Cut-Off Date) which,
from time to time, form part of the Assets of the Series Trust, on the
terms and conditions of this Deed.
16.2 Obligation to Act as Servicer until Termination of Appointment
The Servicer's duties and obligations contained in this Deed continue
until the date of the Servicer's retirement or removal as Servicer in
accordance with this Deed.
16.3 General Servicing Obligation
The Servicer must ensure that the servicing of the Mortgage Loan Rights
which from time to time form part of the Assets of the Series Trust
(including the exercise of the express powers set out in this clause 16)
is:
(a) (In compliance with this clause 16): in compliance with the express
limitations in this clause 16 (unless the prior written consent of
the Manager and the Trustee is obtained); and
(b) (In accordance with Servicing Standards): to the extent that this
clause 16 does not provide otherwise, in accordance with the
Servicing Standards.
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16.4 Power to Service
(a) (Servicing functions vested in Servicer): The function of servicing
the Mortgage Loan Rights which at any given time form part of the
Assets of the Series Trust is vested in the Servicer and it is
entitled to undertake the servicing of those Mortgage Loan Rights to
the exclusion of the Trustee (other than when acting as Servicer in
accordance with clause 18) and the Manager.
(b) (Express powers): Without limiting its general powers, the Servicer
has the express powers set out in this clause 16 in relation to the
servicing of the Mortgage Loan Rights which at any given time form
part of the Assets of the Series Trust.
16.5 Exercise of Discretions
The Servicer must, in servicing the Mortgage Loan Rights which then form
part of the Assets of the Series Trust, exercise its power and discretions
under this Deed, the Servicing Guidelines, and the relevant Mortgage
Documents to which it is a party in accordance with standards and
practices suitable for a prudent lender in the business of making retail
home loans.
16.6 Servicer's Undertaking Regarding Mortgage Loan Rights
The Servicer undertakes for the benefit of the Trustee, that it will
either directly (including by the exercise of its delegated powers under
this Deed and the Master Trust Deed from the Trustee and the Sellers) or
indirectly:
(a) (Duly stamp): promptly ensure that any Mortgage Loan Document in
relation to a Mortgage Loan following any amendment, consolidation,
supplementation, novation or substitution of a Mortgage, is duly
stamped (if liable to stamp duty) and duly registered (where
registration is required) with the relevant land titles office to
constitute, in the case of a Mortgage, a subsisting first-ranking
registered mortgage over the relevant property;
(b) (Notify breaches of Servicing Guidelines): promptly notify the
Trustee and the Manager of any material breach of the Servicing
Guidelines by the Servicer in relation to the servicing of the
Mortgage Loan Rights then forming part of the Assets of the Series
Trust;
(c) (Comply with Mortgage Insurance Policies): notwithstanding any other
provision in this Deed, comply with its material obligations under
any Mortgage Insurance Policy in respect of Mortgage Loans then
forming part of the Assets of the Series Trust;
(d) (Execute documents): at the Trustee's request (acting on the
direction of the Manager), execute such further documents and do
anything else (including, without limitation, executing further
powers of attorney substantially in the form of Schedules 2, 3 and
4) that the Trustee reasonably requires to ensure its ability to
register Mortgage Transfers and the registration of the Power of
Attorney in each jurisdiction of Australia;
(e) (Upstamp): if a Seller makes any further advance or otherwise
provides further financial accommodation to a Borrower, ensure that
any further stamp duty which becomes payable on the relevant
Mortgage Documents as a result of such further advance or provision
of financial accommodation is duly paid promptly in accordance with
any applicable laws;
(f) (Make calculations): upon receipt of notice that a Borrower desires
to repay a Mortgage Loan in full, prepare and make available
documentation and make such
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calculations as are necessary to enable the repayment of the
Mortgage Loan and discharge of the corresponding Mortgage and any
Collateral Securities (provided that the Servicer is not required to
discharge a Mortgage or Collateral Securities if they also secure
another Mortgage Loan or an Other Loan);
(g) (Deliver Mortgage Documents and Perform obligations):
(1) if a Perfection of Title Event occurs, promptly deliver to the
Trustee (or procure delivery to the Trustee of) all Mortgage
Documents not otherwise provided to the Trustee in accordance
with clause 25 and (subject to any restrictions imposed by any
law) promptly provide such evidence in its possession or
control as may be required by the Trustee to support any claim
in respect of any Mortgage Loan Rights; and
(2) duly and punctually perform each of its material obligations
under this Deed and under each of the Mortgage Documents and
the Transaction Documents to which it is a party;
(h) (Perfection of Title Event): assist and co-operate with the Trustee
and the Manager in the Trustee obtaining legal title to the Mortgage
Loan Rights following a Perfection of Title Event;
(i) (Write-offs): where any material amount of a Mortgage Loan has been
written off as uncollectible in accordance with the Servicing
Guidelines and this Deed and GEMI orPMI, as the case may be, has
rejected a claim made by the Servicer under the applicable Mortgage
Insurance Policy, ensure that the documentation relevant to that
Mortgage Loan is examined to determine whether the representations
and warranties made pursuant to clause 13.1 in respect of that
Mortgage Loan were correct at the Cut-Off Date. After such
examination, the Servicer must notify the Trustee if the
representations and warranties made pursuant to clause 13.1 were
incorrect when given in respect of that Mortgage Loan as at the
Cut-Off Date (and if the Servicer and the Seller are the same person
such notice will be deemed to be a notice given by the Seller under
clause 14.1, and must comply with that clause) and if this is the
case CBA must, if the determination made by the Servicer in this
paragraph is made after the expiry of the Prescribed Period, pay
damages to the Trustee in accordance with clause 14.9;
(j) (Fixed Rate Swaps): ensure that before the Servicer agrees with a
Borrower, or allows a Borrower to elect, to vary the rate of
interest payable under a Mortgage Loan to become a fixed rate for a
given period, the Trustee and the Manager have entered into (or have
confirmed that they will enter into) a Fixed Rate Swap for that
given period in accordance with section 16 of the Interest Rate Swap
Agreement. Upon the request of the Servicer, the Manager must enter
into and must direct the Trustee to enter into (and upon such
direction the Trustee must enter into) a Fixed Rate Swap in
accordance with section 16 of the Interest Rate Swap Agreement. The
maximum term of a Fixed Rate Swap entered into pursuant to this
clause must not exceed 10 years unless the Rating Agencies confirm
that entering into a Fixed Rate Swap for a longer period will not
result in a reduction, qualification or withdrawal in the then
current credit rating of any Security. The Servicer is not in breach
of this clause 16.6(j) if the Trustee and the Manager fail to enter
into a Fixed Rate Swap in accordance with a request of the Servicer
pursuant to this clause 16.6(j); and
(k) (Basis Cap): ensure that before the Servicer agrees with a Borrower,
or allows a Borrower to elect, to cap the variable rate of interest
payable under a Mortgage Loan for a given period, the Trustee and
the Manager have entered into (or have confirmed that they will
enter into ) an Interest Rate Basis Cap for that given period in
accordance with Part 5(18) of the Schedule to the Interest Rate Swap
Agreement.
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Upon the request of the Servicer, the Manager must enter into and
must direct the Trustee to enter into (and upon such direction the
Trustee must enter into) an Interest Rate Basis Cap in accordance
with such Part. The maximum term of an Interest Rate Basis Cap
entered into pursuant to this clause must not exceed 10 years unless
the Rating Agencies confirm that entering into an Interest Rate
Basis Cap for a longer period will not result in a reduction,
qualification or withdrawal in the then current credit rating of any
Security. The Servicer is not in breach of this clause 16.6(k) if
the Trustee and the Manager fail to enter into an Interest Rate
Basis Cap in accordance with a request of the Servicer pursuant to
this clause 16.6(k).
16.7 Interest Rates on Mortgage Loans
The Servicer must, as part of its function of servicing the Mortgage
Loans, set the interest rate charged and the monthly instalment to be paid
by the Borrower on each Mortgage Loan forming part of the Assets of the
Series Trust. The Servicer must ensure that the monthly instalment to be
paid in relation to each Mortgage Loan is equal to or greater than the
monthly interest payable on that Mortgage Loan (but without limiting any
right of the Borrower to pay less than the monthly instalment, or no
monthly instalment, where the amount outstanding under the Mortgage Loan
is less than the Scheduled Balance of the Mortgage Loan). For so long as
CBA is the Servicer, such interest rate must be the interest rate which
the Relevant Seller charges on the same type of mortgage loan (having
regard, among other things, to the nature of the Mortgage Loan product and
the type of borrower) which is recorded on its Mortgage Loan System but
which has not been assigned to the Trustee, unless this Deed requires the
Servicer to charge a different interest rate in respect of that Mortgage
Loan.
16.8 Release or Substitution of Security
(a) (Substitution and release): The Servicer may in relation to a
Mortgage Loan which is then an Asset of the Series Trust, release or
substitute any corresponding Mortgage or First Layer of Collateral
Security provided that this is in accordance with the corresponding
any Mortgage Insurance Policy and the Servicing Guidelines.
(b) (Indemnity): The Servicer indemnifies the Trustee (whether on its
own account or for the account of the Securityholders of the Series
Trust) against any costs (including legal costs charged at the usual
commercial rates of the relevant legal services provider), damages
or loss it suffers as a result of any release or substitution of any
Mortgage or First Layer of Collateral Securities which then are
Assets of the Series Trust not being in accordance with clause
16.8(a). The amount of the costs, damages and loss is to be
determined by agreement between the Trustee and the Servicer or,
failing agreement, by the Servicer's external auditors. The amount
cannot exceed the principal amount outstanding in respect of the
Mortgage Loan (as recorded on the Mortgage Loan System) and any
accrued but unpaid interest and any outstanding fees in respect of
the Mortgage Loan (calculated at the time of Agreement between the
Trustee and the Servicer or by the Servicer's external auditors, as
the case may be).
16.9 Variation or Relaxation of Terms of Mortgage Loans
(a) (Variations): Subject to clauses 16.9(b) and 16.25, the Servicer may
vary, extend or relax the time to maturity, the terms of repayment
or any other term of a Mortgage Loan and its related Mortgage and
First Layer of Collateral Securities which are then Assets of the
Series Trust.
(b) (Limitations on variations): Except as contemplated by clause 16.14
or where a Mortgage Loan is regarded as having been repaid in full
as provided in clause 16.20(b), the Servicer must not grant any
extension of the time to maturity of a
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Mortgage Loan which is then an Asset of the Series Trust beyond 30 years
from the Settlement Date for the Mortgage Loan or allow any reduced
monthly payment that would result in such an extension.
16.10 Release of Debt
Subject to clause 16.14, the Servicer may not voluntarily release a
Borrower from any amount owing in respect of a Mortgage Loan, related
Mortgage or First Layer of Collateral Security unless that amount has been
written off by the Servicer, or the Servicer has determined to write-off
such amount, in either case in accordance with the Servicing Standards.
16.11 Waivers, Releases and Compromises
Subject to clauses 16.9 and 16.10, the Servicer may:
(a) (Waive breaches): waive any breach under, or compromise, compound or
settle any claim in respect of; or
(b) (Grant releases): release any party from an obligation or claim
under,
a Mortgage Loan which is then an Asset of the Series Trust or any related
Mortgage or First Layer of Collateral Securities.
16.12 Consent to subsequent Security Interests
The Servicer may consent to the creation or existence of any Security
Interest in relation to any Land the subject of a Mortgage which is then
an Asset of the Series Trust:
(a) (Third Parties): in favour of a party, other than the Trustee or a
Seller, only if by way of a priority agreement or otherwise the
Servicer ensures that the relevant Mortgage will rank ahead in
priority to the third party's Security Interest on enforcement for
an amount not less than the principal amount (plus accrued but
unpaid interest) outstanding on the Mortgage Loan (as recorded on
the Mortgage Loan System) plus such extra amount (if any) as is
determined in accordance with the Servicing Guidelines;
(b) (Trustee or Seller): in favour of the Trustee or a Seller in which
case the Trustee and the Seller agree that the relevant Mortgage
will rank ahead in priority to the Trustee's Security Interest or
the Seller's Security Interest (as the case may be) on enforcement
for an amount equal to the principal amount (plus accrued but unpaid
interest) outstanding on the Mortgage Loan (as recorded on the
Mortgage Loan System) plus such extra amount (if any) as is
determined in accordance with the Servicing Guidelines. This clause
will continue to bind the Trustee following its retirement or
removal pursuant to clause 19 of the Master Trust Deed.
16.13 Consent to Leases etc
The Servicer may, in accordance with the Servicing Guidelines, consent to
the creation of any leases, licences or restrictive covenants in respect
of Land subject to a Mortgage which is then an Asset of the Series Trust.
16.14 Relief under Binding Provision or on Order of Competent Authority
(a) (Grant releases etc.): The Servicer may:
(i) release a Mortgage or a First Layer of Collateral Security
which is then an Asset of the Series Trust;
(ii) reduce the amount outstanding under, or vary the terms
(including,
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without limitation, in relation to repayment) of, any Mortgage
Loan, related Mortgage or First Layer of Collateral Security
which is then an Asset of the Series Trust; or
(iii) grant other relief to a Borrower or the provider of a First
Layer of Collateral Security which are then Assets of the
Series Trust,
when to do so is pursuant to a Binding Provision or an order,
decision, finding, judgment or determination of a Competent
Authority.
(b) (If order or determination results from failure of Servicer): If it
is determined that the order, decision, finding, judgment or
determination referred to in clause 16.14(a) was made by the
Competent Authority as a result of a Seller or the Servicer:
(i) breaching any Binding Provision, applicable regulation,
statute or official directive at the time the Mortgage, the
First Layer of Collateral Security or the Mortgage Loan was
granted or a Seller Advance was made in respect of such
Mortgage Loan (other than a Binding Provision, regulation,
statute or official directive which provides for relief on
equitable or like grounds when paragraph (ii) is also not
satisfied); or
(ii) not acting in accordance with the standards and practices
suitable for a prudent lender in the business of making retail
home loans,
then the Servicer must notify the Trustee of the making of such an
order, decision, finding, judgment or determination and CBA (on
behalf of the Relevant Seller) or the Servicer (as the case may be)
must pay damages to the Trustee by 10.00 am on the Monthly
Distribution Date next occurring after such notification is given by
the Servicer. The amount of such damages will be the amount agreed
between the Trustee (acting on expert advice taken pursuant to
clause 16.6 of the Master Trust Deed, if necessary) and CBA or the
Servicer, as the case may be (or, failing agreement, by CBA's or the
Servicer's external auditors) as being sufficient to compensate the
Trustee for any losses suffered by the Series Trust as a result of
the release, reduction, variation or relief (as the case may be).
The amount cannot exceed the principal amount outstanding in respect
of the relevant Mortgage Loan (as recorded on the Mortgage Loan
System) and any accrued but unpaid interest and any outstanding fees
in respect of the Mortgage Loan (calculated in both cases at the
time of Agreement between the Trustee and CBA or the Servicer or by
CBA's or the Servicer's external auditors, as the case may be).
16.15 Litigation
The Servicer may institute litigation in respect of the collection of any
amount owing under a Mortgage Loan which is then an Asset of the Series
Trust but is not required to do so or to continue any litigation if the
Servicer has reasonable grounds for believing, based on advice from its
legal advisers (either internal or external), that:
(a) (Mortgage Loan unenforceable): the Servicer is, or will be, unable
to enforce the provisions of the Mortgage Loan under which such
amount is owing; or
(b) (Proceedings uneconomical): the likely proceeds from such
litigation, in light of the expenses in relation to the litigation,
do not warrant such litigation.
16.16 Enforcement Action
(a) (Servicer may take enforcement action): Subject to clause 16.26(u),
the Servicer may take such action to enforce a Mortgage Loan and any
related Mortgage or First
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Layer of Collateral Securities which are then Assets of the Series
Trust which it determines should be taken.
(b) (Servicer must not take or fail to take action in certain
circumstances): The Servicer must not knowingly take any action, or
knowingly fail to take any action, if that action or failure to take
action will interfere with the enforcement by the Servicer or
Trustee of any Mortgage Loan Rights which are then Assets of the
Series Trust (unless such action or failure is in accordance with
the Servicing Standards).
16.17 Incurring Additional Expenses
The Servicer may incur any Expenses referred to in paragraph (a) of that
definition in connection with the management, maintenance or sale of any
property secured by a Mortgage or a First Layer of Collateral Security
which are then Assets of the Series Trust and the Trustee must reimburse
the Servicer for such Expenses, to the extent funds are available for this
purpose pursuant to clauses 10.2A(h) and 10.2B(h), on each relevant
Monthly Distribution Date and, if such Expenses are not reimbursed in full
on any Monthly Distribution Date, must reimburse the balance unpaid on
each subsequent Monthly Distribution Date from the funds available for
this purpose pursuant to clauses 10.2A(h) and 10.2B(h) on that Monthly
Distribution Date.
16.18 Mortgage Insurance and Insurance Policy Claims
The Servicer may, in accordance with the Servicing Standards, compromise,
compound or settle any claim in respect of any Mortgage Insurance Policy
or any Insurance Policy which is then an Asset of the Series Trust.
16.19 Insurance Policy Proceeds
(a) (Release of insurance proceeds): Proceeds received in respect of an
Insurance Policy in respect of Land which is then an Asset of the
Series Trust may be released, on the Trustee's behalf, if:
(i) such release of proceeds is conducted in accordance with the
Servicing Standards; and
(ii) the proceeds are paid on an invoice-by-invoice basis directly
to those who are carrying out work to rebuild, reinstate or
repair the property to which the proceeds relate.
(b) (Application of insurance proceeds): Any proceeds referred to in
clause 16.19(a) which are not released in accordance with that
clause must be applied in compliance with the Servicing Guidelines
to the account established in the Servicer's records for the
relevant Mortgage Loan up to the principal amount outstanding in
respect of that Mortgage Loan plus accrued but unpaid interest.
(c) (Servicing Transfer): If a Servicing Transfer occurs the Servicer
must immediately pay to the Trustee all proceeds previously retained
by it under paragraph (a) and not yet released under paragraph (a).
16.20 Seller Advances
If a Seller makes a further advance to a Borrower and:
(a) (Separate account and trusts): the Relevant Seller opens a separate
account in its records in relation to the advance, the advance is
considered for the purposes of this Deed to be an Other Loan and
upon creation, the Trustee will automatically by virtue of this
Deed, and without the necessity for any further act or thing to be
done
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or brought into existence, hold the benefit of its right, title and
interest in such Other Loan for the Relevant Seller as trustee of
the CBA Trust and the Trustee will hold any Mortgage and any First
Layer of Collateral Securities in respect of such Other Loan in
accordance with clause 7.2 and any Second Layer of Collateral
Securities in respect of such Other Loan in accordance with clause
7.1;
(b) (Advance leads to Scheduled Balance being exceeded): the Relevant
Seller records the advance as a debit to the account in its records
for an existing Mortgage Loan which is then part of the Assets of
the Series Trust and the advance leads to the Scheduled Balance in
respect of that Mortgage Loan (prior to the approval of the advance)
being exceeded by more than one scheduled monthly instalment, the
Mortgage Loan is, for the purposes of this Deed only, treated as
having been repaid in full by the payment by the Seller to the
Trustee of the sum necessary to repay that Mortgage Loan. Such
payment from the Relevant Seller must equal the principal balance
plus accrued but unpaid interest and fees owing in respect of the
Mortgage Loan before the advance was made and must be paid by the
Relevant Seller to the Trustee and, following such payment,
allocated by the Trustee to the Collections Account of the Series
Trust; or
(c) (Advance does not lead to Scheduled Balance being exceeded): the
Relevant Seller records the advance as a debit to the account in its
records for an existing Mortgage Loan which is then part of the
Assets of the Series Trust and this does not lead to the Scheduled
Balance in respect of that Mortgage Loan being exceeded by more than
one scheduled monthly instalment, the advance is treated as an
advance made pursuant to the terms of the relevant Mortgage Loan and
the rights to repayment of such will be a Mortgage Loan Right
forming part of the Assets of the Series Trust.
16.21 Restrictions on Seller Advances
CBA shall not, and shall ensure that the other the Seller does not:
(a) make an advance pursuant to clause 16.20(b) in relation to a
Mortgage Loan which the Servicer has determined, in accordance with
the Servicing Standards, is a non-performing loan; or
(b) make an advance pursuant to clause 16.20(c) if the then aggregate
of:
(i) (Seller Advances): all Seller Advances not repaid by the
relevant Borrower (calculated on the basis that, for this
purpose only, any payments on account of principal in respect
of a Mortgage Loan first reduce the amount of the Seller
Advances made in relation to that Mortgage Loan) in relation
to Mortgage Loans then part of the Assets of the Series Trust;
and
(ii) (Standby Redraw Facility Principal): the then Standby Redraw
Facility Principal,
exceed, or will as a result of the advance exceed, the then Standby
Redraw Facility Limit.
If a Seller makes an advance to a Borrower which results in a breach of
CBA's obligations under this clause, then:
(c) that advance will, for all purposes, be treated as a Seller Advance
(and as if properly made in accordance with clause 16.20(c)); and
(d) CBA indemnifies the Trustee (whether on its own account or for the
account of the Securityholders of the Series Trust) against any
costs, damages or loss it suffers as a
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result of such a breach (except to the extent to which such costs,
damages or loss is recoverable by the Trustee pursuant to a Mortgage
Insurance Policy).
16.22 Servicer's Actions Binding on Trustee
Without limiting in any way the Servicer's liability to the Trustee for
breaching the provisions of this Deed, any act by the Servicer in
servicing Mortgage Loan Rights which are Assets of the Series Trust is
binding on the Trustee whether or not such act or omission is in
compliance with this clause 16.
16.23 Servicer to Pay its Own Expenses
Subject to clause 16.17, the Servicer must pay from the amount received
under clause 19.4 all expenses incurred by it in connection with servicing
the Mortgage Loans, including expenses related to the collection of the
Mortgage Loans, the fees and disbursements of independent accountants and
all other fees and expenses which are not expressly stated in this Deed or
the Master Trust Deed to be payable by the Trustee. The Servicer must, at
least 5 Business Days before each Monthly Distribution Date, forward to
the Manager a list of expenses for the Collection Period just ended for
which it is seeking reimbursement pursuant to this clause.
16.24 Servicer to transmit information to Manager
The Servicer must prepare and transmit to the Manager on or before the day
which is 2 Business Days before each Quarterly Distribution Date the
information necessary to enable the Manager to prepare the Quarterly
Certificate and the Pool Performance Data in respect of the Collection
Period just ended. The Servicer will not be in breach of this clause 16.24
if it fails to provide the Pool Performance Data to the Manager provided
that it has used reasonable endeavours to produce the Pool Performance
Data for that Collection Period but has been unable to do so with
sufficient accuracy (as determined by the Servicer and taking into account
the likely distribution of the Pool Performance Data and uses to be made
of the Pool Performance Data).
16.25 Proposed amendments to Servicing Guidelines
The Servicer must deliver copies of all proposed material amendments to
the Servicing Guidelines which relate to the Servicer's servicing
functions in respect of the Mortgage Loan Rights then comprising Assets of
the Series Trust to each Support Facility Provider where the consent of
such Support Facility Provider to such material amendment is required
under the terms of the corresponding Support Facility. The adoption of
those amendments by the Servicer takes effect upon the consent of the
Support Facility Provider to the proposed amendment (or, where provided
under the Support Facility, upon the date that the Support Facility
Provider is deemed to have consented to the proposed amendment). The
Servicer must deliver a copy of any proposed material amendment to the
Servicing Guidelines to the Trustee, the Manager and the Rating Agencies.
The Servicer must not amend the Servicing Guidelines unless each Rating
Agency has either:
(a) (Confirmed No Downgrade): confirmed (either orally or in writing)
that the proposed amendment will not result in a reduction,
qualification or withdrawal of its then current rating of the
Securities; or
(b) (10 Business days after delivery): not notified the Relevant Seller
of its intention not to reaffirm the then current rating of a
Security, within 10 Business Days after the delivery to it of the
proposed amendments.
16.26 Further Servicer Undertakings
The Servicer further undertakes for the benefit of the Trustee, the
Manager, the Security holders and the Residual Unitholder that it will:
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(a) (Audited accounts): give the Trustee the audited Accounts of the
Servicer for each financial year of the Servicer within 120 days of
the end of that year;
(b) (Keep proper books): keep proper and adequate books of account
(which may be kept electronically) for the Mortgage Loan Rights of
the Series Trust;
(c) (Information): subject to the provisions of the Privacy Act and the
Servicer's duty of confidentiality to its clients under general law
or otherwise, promptly make available to the Manager, the Auditor
and the Trustee any books, reports or other oral or written
information and supporting evidence of which the Servicer is aware
that they reasonably request with respect to the Series Trust or the
Assets of the Series Trust from time to time or with respect to all
matters in the possession of the Servicer in respect of the
activities of the Servicer to which this Deed relates;
(d) (Notify material misrepresentations): notify the Manager and the
Trustee promptly if it becomes actually aware that any material
representation or warranty made or taken to be made by or on behalf
of a Seller or the Servicer in connection with a Transaction
Document in relation to the Series Trust is incorrect when made or
taken to be made;
(e) (Certificate): within 5 Business Days of a request from the Manager
or the Trustee, provide the Manager or the Trustee (as the case may
be) with a certificate from the Servicer signed by 2 Authorised
Officers of the Servicer on its behalf which states whether to the
best of the Servicer's knowledge and belief a Servicer Default or a
Perfection of Title Event has occurred (a request under this clause
will be made by the Trustee only once in each 6 calendar month
period, unless the Trustee when making the request sets out
reasonable grounds for believing that a Servicer Default or a
Perfection of Title Event is subsisting);
(f) (Notify Servicer Default or Perfection of Title Event): notify the
Trustee promptly after the Servicer becomes actually aware of any
Servicer Default or the occurrence of any Perfection of Title Event
and at the same time or as soon as possible thereafter provide full
details thereof;
(g) (Comply with laws): comply with the requirements of any relevant
laws in carrying out its obligations under the Transaction Documents
for the Series Trust including the Consumer Credit Code ;
(h) (Authorisations): obtain and maintain all authorisations, filings
and registrations necessary to properly service the Mortgage Loans;
(i) (Not merge without assumption): not merge or consolidate into
another entity, unless the surviving entity assumes its rights and
obligations as a Seller and Servicer under the Transaction Documents
for the Series Trust and the Rating Agencies are notified;
(j) (Not enter into liquidation etc.): subject to the provisions of the
Banking Act 1959 (Commonwealth), not present any application or pass
any resolution for the liquidation of the Servicer, or, subject to
clause 16.26(i), enter into any scheme of arrangement, merger or
consolidation with any other person or enter into any other scheme
under which the Servicer ceases to exist, the assets or liabilities
of the Servicer are vested in or assumed by any other person or
either of those events occur;
(k) (Pay Tax): duly and punctually file all returns in respect of Tax
which are required to be filed and pay, or procure payment when due,
all Taxes and other outgoings payable by it as and when the same
respectively become due and payable other than outgoings which are
being contested in good faith and promptly pay or cause to be
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paid those contested outgoings after the final determination or
settlement of such contest;
(l) (Not set-off): not, without the prior consent of the Trustee, apply,
transfer or set off the whole or any part of any amount payable or
owed to the Servicer or to which the Servicer is entitled under this
Deed or any other Transaction Document for the Series Trust towards
satisfaction of any obligation which is owed by the Servicer to the
Trustee or the Manager under this Deed or any other Transaction
Document for the Series Trust, other than as contemplated under this
Deed or any other Transaction Document for the Series Trust;
(m) (Not claim Assets of Series Trust): other than as a Secured
Creditor, not claim any Security Interest, lien or other possessory
right in any of the Assets of the Series Trust;
(n) (Notify claims): following receipt of actual notice of a claim by a
third party with respect to a challenge to the sale and/or
assignment to the Trustee of any Mortgage Loan Rights forming part
of the Assets of the Series Trust, promptly give notice in writing
of such action or claim to the Trustee and the Manager;
(o) (Not Encumber Mortgage Loan Rights): not transfer, assign, exchange
or otherwise grant a Security Interest over the whole or any part of
its right, title and interest in and to any Mortgage Loan Rights
forming part of the Assets of the Series Trust;
(p) (Give accurate information to Rating Agencies): use reasonable
efforts to cause all information provided by it to any Rating Agency
in relation to the Series Trust to be complete and accurate in all
material respects;
(q) (Follow directions of Trustee after Perfection of Title Event): upon
being directed to do so by the Trustee following the occurrence of a
Perfection of Title Event, promptly take all action required or
permitted by law to assist the Trustee and the Manager to perfect
the Trustee's legal title to the Mortgage Loan Rights forming part
of the Assets of the Series Trust in accordance with the
requirements of this Deed;
(r) (Comply with other undertakings): comply with all other undertakings
given by the Servicer in this Deed or the other Transaction Document
relating to the Series Trust;
(s) (Direct receipts): subject to clause 22, take all steps to ensure
that:
(i) while the Collections Account is maintained with the Servicer,
the amounts referred to in clause 22.5 are paid into the
Collections Account in accordance with that clause; or
(ii) if the Servicer is not an Eligible Depository, all payments
received during the corresponding Collection Period under or
in respect of the Mortgage Loans (other than insurance
premiums and related charges) are deposited into the
Collections Account no later than 5 Business Days following
receipt;
(t) (Collect all moneys due): make reasonable efforts to collect all
moneys due under the terms and provisions of the Mortgage Loan
Rights of the Series Trust and, to the extent such efforts will be
consistent with this Deed, follow such normal collection procedures
as it deems necessary and advisable;
(u) (Enforcement of Mortgage Loans): if a Material Default has occurred
and is continuing with respect to a Mortgage Loan Right forming part
of the Assets of the
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Series Trust, take such action on such basis as the Trustee and the
Servicer may agree (in accordance and in conjunction with the
Servicer's normal enforcement procedures) to enforce such Mortgage
Loan Rights (but only to the extent that the Servicer determines
that enforcement proceedings should be taken) so as to maximise the
return to the Securityholders, taking into account, inter alia, the
timing of any enforcement proceedings and any relevant terms of any
Support Facility provided that the Servicer will not be required to
institute litigation with respect to collection of any payment if
there are reasonable grounds for believing the provisions of those
Mortgage Loan Rights under which such payment is required are
unenforceable or the payment is uncollectible; and
(v) (Maintain title): take such steps as are necessary to maintain the
Trustee's title to the Mortgage Loan Rights of the Series Trust.
16.27 Servicer holding Assets of the Series Trust
The obligation of the Servicer set out in clauses 22.4 and 22.5 in
relation to the payment of amounts into the Collections Account is the
full extent of the Servicer's obligation in respect of such moneys and the
Servicer has no obligation or liability whatsoever to account to the
Trustee for any interest, income or other benefit derived in connection
with any payments received by it under or in respect of the Mortgage
Loans.
16.28 Servicer's Power to Delegate
The Servicer, for the purposes of carrying out and performing its duties
and obligations in relation to the Series Trust, may:
(a) (Appoint attorneys): by power of attorney appoint any person to be
attorney or agent of the Servicer for those purposes and with those
powers, authorities and discretions (not exceeding those vested in
the Servicer) as the Servicer thinks fit including, without
limitation, a power to sub-delegate and a power to authorise the
issue in the name of the Servicer of documents bearing facsimile
signatures of the Servicer or of the attorney or agent either with
or without proper manuscript signatures of its officers on them; and
(b) (Appoint agents): appoint by writing any person to be agent of the
Servicer as the Servicer thinks necessary or proper and with those
powers, authorities and discretions (not exceeding those vested in
the Servicer) as the Servicer thinks fit,
provided that, in each such case, except as provided in any Transaction
Documents, the Servicer must not delegate to such third parties a material
part of its powers, duties and obligations as Servicer in relation to
Mortgage Loans forming part of the Assets of the Series Trust.
Nothing in this clause 16.28 in any way limits or otherwise affects clause
16.30.
16.29 Servicer May Replace or Suspend Attorneys
The Servicer may replace or suspend any attorney, agent or sub-agent
appointed under clause 16.28 for any cause or reason as the Servicer may
in its sole discretion think sufficient with or without assigning any
cause or reason.
16.30 Delegation of Servicer's Powers to Related Bodies Corporate
(a) (Power to delegate): Subject to clause 16.30(c) below, the Servicer
may delegate to a Related Body Corporate for such period and on such
other terms as it may see fit its powers, duties and obligations as
Servicer in relation to all or any part of the Mortgage Loan Rights
forming part of the Assets of the Series Trust.
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(b) (Limits on power to delegate): If the Servicer exercises its right
to delegate under paragraph (a), the powers, authorities, and
discretions of the Related Body Corporate to whom the delegation is
made shall:
(i) not exceed those vested in the Servicer; and
(ii) include a power to sub-delegate (subject to the prior approval
of CBA).
(c) (Rating agencies): No delegation shall be made under paragraph (a)
above if such delegation results in a change in the legal entity of
the servicer unless the Rating Agencies have confirmed that such
delegation will not adversely affect the then ratings of the
Securities or the Redraw Bonds.
16.31 Servicer Remains Liable
The Servicer at all times remains liable for:
(a) (Acts, omissions): the acts or omissions of any person appointed
under clause 16.28 or clause 16.30, insofar as the acts or omissions
constitute a breach by the Servicer of its obligations under this
Deed; and
(b) (Payment): the payment of fees to any person appointed under clause
16.28.
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17. Servicer's responsibilities and indemnities
17.1 Not Liable Where Action Unlawful
The Servicer will not incur any liability to any person in respect of any
failure to act where such act will be hindered, prevented or forbidden by
any present or future law.
17.2 Limitation on Servicer's Responsibility
The Servicer will not be responsible to any person for any loss, damage,
claim or demand incurred as a result of:
(a) (Trustee Default): a Trustee Default (except where the Trustee is
the Servicer);
(b) (Failure to check): the failure by the Servicer to check any
document, certificate, schedule, form, list or other document
prepared or delivered to the Servicer by the Trustee or any agent or
consultant of the Trustee and reasonably believed by the Servicer to
be genuine; or
(c) (Trustee's direction): any action taken by the Servicer in
accordance with any written direction or instruction from the
Trustee or any Authorised Officer of the Trustee,
except to the extent to which such loss, damage, claim or demand is caused
by any fraud, negligence or wilful default by the Servicer.
17.3 Servicer's Liability
(a) (Liability): The Servicer shall not be liable for any loss incurred
by any Securityholder, any Creditor of the Series Trust or any other
person except, subject to clauses 17.3(b), (c), (d) and (e), to the
extent that such loss may be caused by a breach by the Servicer of
any term of this Deed, any fraud, negligence or wilful default by
the Servicer or any breach or default by any person appointed by the
Servicer to perform its obligations under this Deed.
(b) (Damages for direct loss): The Servicer shall not be liable for any
damages in
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respect of any breach by the Servicer of any term of this Deed, any
fraud, negligence or wilful default by the Servicer or any breach or
default by any person appointed by the Servicer to perform its
obligations under this Deed except and to the extent that the
Trustee on account of the Securityholders has suffered direct loss
as a result of such breach or default. The maximum amount which the
Servicer will be liable to pay in respect of such a breach or
default is the amount outstanding at the time of payment under the
Mortgage Loan in respect of which such default or breach occurred
after taking into account any payment received by the Trustee or the
Trustee is entitled to receive or claim under the Mortgage Insurance
Policy relating to that Mortgage Loan.
(c) (No consequential loss): The Servicer's liability under this clause
17.3 with respect to a Mortgage Loan will not include any damages in
respect of consequential loss. This liability represents the sole
damages recoverable against the Servicer in such circumstances.
(d) (Notice): The Trustee may only claim damages from the Servicer
pursuant to this clause 17.3 by written notice setting out the
grounds for claiming that a breach or default referred to in
paragraph (b) has occurred together with details of the calculation
of the loss referred to in paragraph (b).
(e) (Payment): If a breach or default referred to in paragraph (b) has
occurred, the Servicer must pay any damages due to the Trustee under
this clause 17.3 within 7 Business Days of receipt by it of the
written notice referred to in paragraph (d), such written notice to
represent prima facie evidence of the amount of such damages.
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18. Servicer Default and retirement of Servicer
18.1 Servicer Default
A Servicer Default occurs if:
(a) (Failure to remit Collections): the Servicer fails to remit any
Collections or any other amounts received in respect of the Mortgage
Loan Rights then forming part of the Assets of the Series Trust to
the Trustee within the time periods specified in this Deed and such
failure is not remedied within 5 Business Days (or such longer
period as the Trustee may agree to) of notice of such failure being
given to the Servicer by the Manager or the Trustee;
(b) (Failure to prepare information for Manager): the Servicer fails to
prepare and transmit to the Manager the information necessary to
enable the Manager to prepare the Quarterly Certificates by the date
set out in this Deed and such failure is not remedied within 20
Business Days (or such longer period as the Trustee may agree to) of
notice being given to the Servicer by the Manager or the Trustee and
has or will have an Adverse Effect as reasonably determined by the
Trustee;
(c) (Breach of representation or warranty): any representation, warranty
or certification made by the Servicer (in its capacity as Servicer)
in a Transaction Document to which it is expressed to be a party or
in any certificate delivered by the Servicer (in its capacity as
Servicer) pursuant to such a Transaction Document proves to have
been incorrect when made in a manner which as reasonably determined
by the Trustee has or will have an Adverse Effect and the Servicer
does not remedy the same to the Trustee's reasonable satisfaction
within 60 Business Days after receipt by the Servicer of notice in
writing from the Trustee requiring it to do so;
(d) (Insolvency Event): an Insolvency Event occurs in relation to the
Servicer;
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(e) (Servicer is custodian): while the Servicer is acting as custodian
of the Mortgage Documents pursuant to clause 25, it fails to deliver
all the Mortgage Documents in accordance with clause 25 to the
Trustee following the occurrence of a Document Transfer Event and
does not deliver to the Trustee the outstanding Mortgage Documents
within 20 Business Days of receipt of a notice from the Trustee
specifying the Mortgage Documents that remain outstanding;
(f) (Fails to maintain Threshold Rate): the Servicer fails to comply
with clause 12.2, and such failure is not remedied within 20
Business Days of its occurrence; or
(g) (Breach of other obligations): the Servicer has breached its
obligations (other than those referred to in clauses 18.1(a), (b),
(c), (e) and (f)) as Servicer under a Transaction Document to which
it is expressed to be a party and such breach has or will have an
Adverse Effect as reasonably determined by the Trustee and:
(i) that breach is not satisfactorily remedied so that it no
longer has or will have, having regard to all relevant
circumstances, such an Adverse Effect within 20 Business Days
after receipt by the Servicer of a notice in writing (which
must specify the reasons why the giver of the notice believes
that an Adverse Effect has occurred or will occur) from the
Manager or Trustee requiring it to do so; and
(ii) the Servicer has not paid compensation to the Trustee for its
loss from such breach in an amount satisfactory to the Trustee
(acting reasonably).
18.2 Retirement of Servicer
The Servicer may retire from its obligations and duties assumed by it
pursuant to this Deed by 3 months' notice in writing to the Trustee and
the Manager (or such lesser time as the Servicer and the Trustee agree).
18.3 Notice to Securityholders
The Servicer will, within 2 Business Days after the Servicer becomes aware
of any Servicer Default, give notice of such Servicer Default to the
Trustee, the Manager, the Class A-1 Note Trustee and the Rating Agencies,
whereupon the Manager will give notice or cause such notice to be given of
such Servicer Default to the Securityholders. Upon any retirement,
termination or appointment of a Substitute Servicer pursuant to this
clause 18, the Trustee will give or cause to be given prompt notice of
that retirement, termination or appointment to the Manager, the Class A-1
Note Trustee, the Securityholders and the Rating Agencies.
18.4 Removal of Servicer
If the Trustee has determined that:
(a) (Unlawful): the performance by the Servicer of its duties under this
Deed is no longer permissible under any applicable law and the
Trustee is satisfied that there is no reasonable action which the
Servicer could take to make the performance of its duties under this
Deed permissible under that applicable law; or
(b) (Servicer Default): a Servicer Default has occurred and is
continuing,
the Trustee must by written notice to the Servicer, immediately terminate
the rights and obligations of the Servicer and appoint another Bank or
appropriately qualified organisation to act in its place.
18.5 Retirement of Servicer
Upon its retirement, the Servicer may, subject to any approval required by
law, appoint in
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writing any other corporation approved by the Trustee (acting reasonably)
as Servicer in its place. If the Servicer does not propose a replacement
by the date which is 1 month prior to the date of its proposed retirement,
the Trustee is entitled to appoint a new Servicer as of the date of the
proposed retirement.
18.6 When appointment of Substitute Servicer effective
The purported appointment of a Substitute Servicer has no effect until:
(a) (Substitute Servicer executes deed of accession): the Substitute
Servicer executes a deed under which it covenants to act as Servicer
in accordance with this Deed and all other Transaction Documents
relating to the Series Trust to which the Servicer is a party; and
(b) (Rating Agency confirmation): each Rating Agency confirms in writing
that the appointment of the proposed Substitute Servicer will not
cause a reduction, qualification or withdrawal of any current credit
rating assigned by it to the Securities.
18.7 Trustee to Act as Servicer
Until the appointment of the Substitute Servicer is complete, the Trustee
must act as Servicer. The Trustee is entitled to receive the fee payable
in accordance with clause 19.4 for the period during which the Trustee so
acts.
18.8 Trustee May Give Discharges
The Trustee may settle with the Servicer the amount of any sums payable by
the Servicer to the Trustee or by the Trustee to the Servicer and may give
to or accept from the Servicer a discharge in respect of those sums which
will be conclusive and binding as between the Trustee and the Servicer, as
between the Servicer and the Residual Unitholder and as between the
Servicer and the Securityholders.
18.9 Servicer May Accept Payment
The Servicer may accept a payment or benefit, in connection with its
retirement or removal, from the Substitute Servicer. The Servicer is also
entitled to receive payments or benefits which have accrued to the
Servicer under this Deed prior to the date of the Servicer's retirement or
removal from office.
18.10 Servicer and Manager to Provide Full Co-operation
The Servicer and the Manager agree to provide their full co-operation in
the event of a Servicing Transfer. The Servicer and the Manager must
(subject to the Privacy Act and the Servicer's duty of confidentiality to
its customers under general law or otherwise) provide the Substitute
Servicer with copies of all paper and electronic files, information and
other materials as the Trustee or the Substitute Servicer may reasonably
request within 90 days of the removal or retirement of the Servicer in
accordance with this clause 18.
18.11 Indemnity
The Servicer indemnifies the Trustee in respect of all costs, damages,
losses and expenses incurred by the Trustee as a result of any Servicer
Default (including, without limitation, legal costs charged at the usual
commercial rates of the relevant legal services provider and the costs of
any Servicing Transfer) but excluding any costs, damages, losses and
expenses which the Servicer is not liable or responsible for in accordance
with clause 17.
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18.12 No Liability for Servicer Default
Neither the Trustee nor the Manager or their respective delegates (as the
case may be) is liable for any Servicer Default except to the extent that
the Servicer Default is caused by the Trustee's or the Manager's or their
respective delegate's (as the case may be) fraud, negligence or wilful
default.
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19. Remuneration of Manager, Trustee, Servicer and Security Trustee
19.1 Management Fee
Pursuant to clause 18.1 of the Master Trust Deed, the Manager is entitled
to receive in respect of each monthly Accrual Period on the following
Monthly Distribution Date in accordance with the terms of this Deed a fee
as agreed by the Trustee and the Manager prior to the date of this Deed or
as may otherwise be agreed by the Manager and the Trustee provided that
each Rating Agency will be given 3 Business Days' prior notice by the
Manager of any variation of such fee and such fee will not be varied if
such variation would result in a reduction, qualification or withdrawal in
any then current credit rating by a Rating Agency of any Security.
19.2 Arranging Fee
The Manager is entitled to receive in respect of each quarterly Accrual
Period on the following Quarterly Distribution Date in accordance with the
terms of this Deed a fee for arranging the issue of the Securities as
agreed by the Trustee and the Manager prior to the date of this Deed or as
may otherwise be agreed by the Manager and the Trustee.
19.3 Trustee's Fee
Pursuant to clause 18.2 of the Master Trust Deed, the Trustee is entitled
to receive in respect of each monthly Accrual Period on the following
Monthly Distribution Date in accordance with the terms of this Deed the
fee agreed by the Trustee and CBA prior to the date of this Deed or as may
otherwise be agreed by the Manager and the Trustee, provided that each
Rating Agency will be given 3 Business Days' prior notice by the Manager
of any variation of the Trustee's Fee and the Trustee's Fee will not be
varied if such variation would result in a reduction, qualification or
withdrawal of any then current credit rating of any Security.
19.4 Servicer's Fee
The Servicer will be entitled to receive in respect of each monthly
Accrual Period on the following Monthly Distribution Date in accordance
with the terms of this Deed the fee agreed by the Trustee and the Servicer
prior to the date of this Deed or as may otherwise be agreed by the
Trustee, the Manager and the Servicer provided that each Rating Agency
will be given 3 Business Days' prior notice by the Manager of any
variation of the Servicer's Fee and the Servicer's Fee will not be varied
if such variation would result in a reduction, qualification or withdrawal
of any then current credit rating of any Security.
19.5 Security Trustee's Fees and Expenses
The Trustee will:
(a) (Pay a fee): pay to the Security Trustee the fee agreed by the
Trustee, the Manager and the Security Trustee from time to time
provided that each Rating Agency will be given 3 Business Days'
prior notice by the Manager of any variation of the Security
Trustee's Fee and the Security Trustee's Fee will not be varied if
such variation would result in a reduction, qualification or
withdrawal of any then current
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credit rating of any Security; and
(b) (Reimburse): reimburse the Security Trustee its costs and expenses
incurred in performing its duties under the Security Trust Deed
calculated in accordance with the Security Trust Deed.
The fees, costs and expenses referred to in paragraphs (a) and (b) of this
clause will be paid or reimbursed, as the case may be, in accordance with
this Deed on the Monthly Distribution Date following the monthly Accrual
Period to which such fees, costs and expenses were earned or incurred, as
the case may be.
19.6 Goods and Services Tax
Notwithstanding any other provision of this Deed or the Master Trust Deed,
where any of the Trustee, the Manager, the Servicer or a Seller is or
becomes liable to remit to a Governmental Agency an amount of GST in
connection with its supplies in connection with the Series Trust under any
Transaction Document, that GST must be borne by the Trustee, the Manager,
the Servicer or the Seller, as the case may be, on its own account and
neither the Trustee, the Manager, the Servicer nor the Seller is entitled
to any reimbursement of that GST from the Assets of the Series Trust and
the definition of "Taxes" in clause 1.1 of the Master Trust Deed shall not
include any such GST where that definition applies in relation to the
Series Trust. Nothing in the clause prevents an adjustment, in accordance
with this Deed, of the fees payable to the Trustee, the Manager, the
Servicer or the Seller as a result of a GST Tax Change (as defined in
clause 19.7).
19.7 Adjustments to fees
(a) (GST Tax Change): For the purposes of this clause, "GST Tax Change"
means:
(i) the abolition of GST;
(ii) an increase or decrease in the rate of GST; or
(iii) any amendment to the GST Act.
(b) (Effect of GST Tax Change): In ascertaining the effect of a GST Tax
Change on the Trustee, any associated abolition, reduction or other
change in Taxes reducing, directly or indirectly, the costs
(including general overhead costs) of the Trustee will be taken into
account.
(c) (Adjustments): Following any GST Tax Change, the fees payable to the
Trustee under this clause 19 will, subject to clause 19.7(o), be
adjusted according to the procedure in this clause 19.7 so that,
from the commencement date or dates of the GST Tax Change, the
Trustee is neither economically advantaged nor disadvantaged in
relation to the supplies provided by it under this Deed by the
effect of the GST Tax Change.
(d) (Notice): At any time within 12 months after a GST Tax Change has
come into effect, the Trustee may, by written notice to the Manager
and the Manager may, by written notice to the Trustee, require the
commencement of negotiations by the Manager and the Trustee in
accordance with the succeeding provisions of this clause 19.7.
(e) (Time Bar): If neither the Trustee nor the Manager issues a notice
under clause 19.7(d) within 12 months after a GST Tax Change has
come into effect, then each of the Trustee and the Manager will be
taken to have unconditionally and irrevocably waived its rights
under clause 19.7(c) in relation to that GST Tax Change, and no
adjustment will be made.
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(f) (Negotiations): Within 28 days after receipt of a notice under
clause 19.7(d), the Manager and the Trustee will confer at least
once to negotiate in good faith with a view to agreeing on any
adjustments to the fees payable to the Trustee under this clause 19
which will satisfy the Trustee's and the Manager's rights under
clause 19.7(c).
(g) (Manager and Trustee to give effect to outcome of negotiations):
Subject to clause 19.7(o), if the negotiations result in the parties
agreeing on any adjustments to the fees payable to the Trustee under
this clause 19, the Trustee and the Manager will, as soon as
possible, do all things necessary to give effect to the agreement
reached, including adjusting any payments of such fees which have
previously been made under this Deed after the commencement date or
dates of the relevant GST Tax Change.
(h) (Negotiations Unsuccessful): If, within 28 days after the first
conference under clause 19.7(f), the Manager and the Trustee are
unable to agree fully, the Trustee or the Manager may, by written
notice to the other, require any matter relating to the Trustee's
and the Manager's rights under clause 19.7(c) to be referred to
expert determination.
(i) (Appointment of Expert): The Trustee and the Manager may appoint any
independent consultant who is experienced in indirect taxation to be
the expert. If, within 28 days after receipt of a notice under
clause 19.7(h), the Trustee and the Manager are unable to agree on
an expert, then the Trustee or the Manager may request the president
for the time being of the Institute of Chartered Accountants to
appoint the expert.
(j) (Expert Determination): The expert will decide on adjustments which
will satisfy the Trustee's and the Manager's rights under clause
19.7(c). The expert will act as an expert and not as an arbitrator
and his or her decision will, in the absence of fraud or bias but
notwithstanding error, be final and binding on the Trustee and the
Manager.
(k) (Procedure): The Trustee and the Manager may agree on any procedure
for the expert determination, including the adoption in whole or
part of any expert determination rules published by a dispute
resolution agency, professional body, law firm or any other person.
If the Trustee and the Manager cannot agree, the expert will
determine the procedure to be followed in the expert determination.
However, unless the Trustee and the Manager otherwise agree:
(i) the expert may inform himself or herself in any way he or she
sees fit, including by engaging other consultants, without
being bound by the rules of evidence;
(ii) each of the Trustee and the Manager will have the right to
present its case and to answer the case against it; and
(iii) the expert will give reasons for his or her decision.
(l) (Costs of Expert): The Trustee and the Manager will pay the costs of
the expert in equal shares.
(m) (Xxxxx x Xxxxx clause): The Trustee will not be entitled to commence
any action or proceeding relating to any GST Tax Change until the
procedures outlined in this clause relating to that GST Tax Change
have been completed.
(n) (Continue to Perform): Notwithstanding that the procedures outlined
in this clause are operating, the parties will continue to perform
their obligations under this Deed.
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(o) (Rating Agencies Consent): Any adjustment to fees pursuant to this
clause 19.7 will be subject to confirmation in writing from the
Rating Agencies that the adjustment will not result in a reduction,
qualification or withdrawal of the credit ratings then assigned by
them to the Securities.
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20. Manager Default
The occurrence of any of the following events constitutes a Manager
Default for the purposes of clause 20.1(b) of the Master Trust Deed:
(a) (Manager does not instruct): the Manager does not instruct the
Trustee to pay the required amounts to the Securityholders of the
Series Trust within the time periods specified in this Deed and such
failure is not remedied within 10 Business Days (or such longer
period as the Trustee may agree) of notice of such failure being
delivered to the Manager by the Trustee;
(b) (Manager does not prepare Quarterly Certificates): the Manager does
not prepare and transmit to the Trustee the Monthly or Quarterly
Certificates or any other reports required to be prepared by the
Manager and such failure is not remedied within 10 Business Days (or
such longer period as the Trustee may agree) of notice being
delivered to the Manager by the Trustee. Such a failure by the
Manager does not constitute a Manager Default if it is as a result
of a Servicer Default pursuant to clause 18.1(b) provided that, if
the Servicer subsequently provides the information to the Manager,
the Manager prepares and submits to the Trustee the outstanding
Monthly or Quarterly Certificates or other reports within 10
Business Days (or such longer period as the Trustee may agree to) of
receipt of the required information from the Servicer;
(c) (Breach of a Representation or Warranty): any representation,
warranty, certification or statement made by the Manager (in its
capacity as Manager) in a Transaction Document to which it is
expressed to be a party, or in any document provided by it under or
in connection with a Transaction Document, proves to have been
incorrect when made, or is incorrect when repeated, in a manner
which as reasonably determined by the Trustee has an Adverse Effect
and the Manager does not remedy the same to the Trustee's reasonable
satisfaction within 60 Business Days after receipt by the Manager of
notice in writing from the Trustee requiring it to do so; or
(d) (Breach of other obligations): the Manager has breached its other
obligations as Manager under a Transaction Document to which it is
expressed to be a party or any other deed, agreement or arrangement
entered into by the Manager in relation to the Series Trust or the
Securities, (other than an obligation which depends upon information
provided by, or action taken by, the Servicer and the Manager has
not received the information, or the action has not been taken,
which is necessary for the Manager to perform the obligation) and
such breach has had or, if continued, will have an Adverse Effect as
reasonably determined by the Trustee, and either such breach is not
remedied so that it no longer has or will have such an Adverse
Effect within 20 Business Days of notice thereof delivered to the
Manager by the Trustee or the Manager has not within 20 Business
Days of receipt of such notice paid compensation to the Trustee for
its loss from such breach in an amount satisfactory to the Trustee
(acting reasonably). The Trustee must, in such notice, specify the
reasons why it believes an Adverse Effect has occurred, or will
occur, as the case may be.
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21. Representations and warranties
21.1 General Representations and Warranties by the Seller and the Servicer
Each Seller and the Servicer represents and warrants in respect of itself
to the Trustee that:
(a) (Due incorporation): it has been duly incorporated as a company
limited by shares in accordance with the laws of its place of
incorporation and is validly existing under those respective laws
and has power and authority to carry on its business as it is now
being conducted;
(b) (Power to enter and observe this Deed): it has full power to enter
into and perform its obligations under this Deed and the other
Transaction Documents to which it is a party;
(c) (Separate Authority): it has in full force and effect the
authorisations necessary to authorise its execution, delivery and
performance of this Deed and the other Transaction Documents to
which it is a party;
(d) (Authorisations): it has in full force and effect all authorisations
from Governmental Agencies that are required for the execution,
delivery and performance by it of this Deed and the Transaction
Documents to which it is a party as at the date of this Deed and has
filed all necessary returns with the Australian Securities and
Investments Commission;
(e) (Obligations enforceable): its obligations under this Deed are
legal, valid, binding and enforceable against it in accordance with
their terms subject to stamping and any necessary registration,
except as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganisation, moratorium or trust law or
general principles of equity or other similar laws affecting
creditors' rights generally;
(f) (This Deed does not contravene constituent documents): this Deed
does not contravene its constituent documents or any law, regulation
or official directive or any of its obligations or undertakings by
which it or any of its assets are bound or cause a limitation on its
powers or the powers of its directors to be exceeded;
(g) (No Servicer Default): (represented and warranted by the Servicer
only) no Servicer Default continues unremedied that has not been
notified to the Trustee;
(h) (Servicing Guidelines): (represented and warranted by the Servicer
only) the Servicing Guidelines are in existence as at the date of
this Deed;
(i) (No material default): to the best of its knowledge, it is not in
default of the material requirements of any relevant laws which
would materially adversely affect its ability to carry out its
obligations under this Deed;
(j) (No immunity from process): it has no immunity from the jurisdiction
of a court or from legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution,
execution or otherwise);
(k) (Not Trustee): it does not enter into this Deed in the capacity of a
trustee of any trust or settlement;
(l) (No material adverse effect): it is not actually aware of any facts
which would have a material adverse effect on its ability to perform
its obligations under this Deed;
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(m) (No related party transaction): no person has contravened or will
contravene section 243H or section 243ZE of the Corporations Law by
entering into or participating in the Transaction Documents or any
transaction contemplated by the Transaction Documents;
(n) (No Insolvency Event): no Insolvency Event has occurred and is
subsisting in respect of it; and
(o) (Paid Taxes): it has filed all Tax returns which are required to be
filed and has promptly paid all Taxes as shown in all assessments
received by it to the extent that such Taxes have become due other
than those Taxes the subject of a bona fide dispute with the
Australian Taxation Office or other Governmental Agency.
21.2 Repetition of Representations and Warranties
The representations and warranties in clause 21.1 are taken to be also
made on the Closing Date.
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22. Collections Account and investment
22.1 Collections Account
The Trustee will establish and maintain in New South Wales (or in such
other place as the Manager selects from time to time), in accordance with
this clause 22, an account in the name of the Trustee which must be an
Eligible Deposit Account.
22.2 Initial Collections Account
Immediately following the Closing Date, the Trustee will establish the
initial Collections Account with the Servicer if the Servicer is an
Eligible Depository.
22.3 Replacement of Collections Account
If, at any time, the Collections Account ceases to be an Eligible Deposit
Account, the Trustee (or the Manager on its behalf) will within 5 Business
Days (or such longer period, as the Rating Agencies may agree) establish a
new account which is an Eligible Deposit Account and the Trustee will
transfer any cash comprising the old Collections Account to such new
account and from the date such new account is established, it will be the
Collections Account.
22.4 Deposits into Collections Account within 5 Business Days
Subject to clauses 22.5 and 22.11, the Servicer must deposit in the
Collections Account each amount comprising a Collection received by the
Servicer (or otherwise payable by the Relevant Seller or the Servicer or
debited by the Servicer as contemplated by clause 22.4(a)) within 5
Business Days of:
(a) (Receipt or Set-off): receipt of the Collection by the Servicer or
the debiting of the Collection by the Servicer against an account
pursuant to a right of set-off or right to combine accounts; or
(b) (Where otherwise payable): where Collections are not received by the
Servicer but are otherwise payable by the Servicer or a Seller in
accordance with clauses 14, 15.1(k), 16, 18, 24, 25, 26 or 30 of
this Deed, when they fall due for payment to the Trustee from the
Servicer or the Seller.
22.5 While Collections Account with Commonwealth Bank
If the Collections Account is permitted to be maintained with the Servicer
and:
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(a) (A-1+/P1/F1 Rating): the Servicer is assigned short term credit
ratings by the Rating Agencies of no lower than A-1+ (in the case of
S&P), no lower than P-1 (in the case of Xxxxx'x) and no lower than
F1, then the Servicer will be entitled to retain any Collections in
respect of a Collection Period until 10.00 am on the Business Day
which is two Business Days preceding the Monthly Distribution Date
for the Collection Period;
(b) (A-1/P1/F1 Rating): the Servicer does not have all the applicable
credit ratings specified in clause 22.5(a), but is assigned short
term credit ratings of no lower than A-1 (in the case of S&P), no
lower than P-1 (in the case of Xxxxx'x) and no lower than F1 (in the
case of Fitch), then the Servicer will be entitled to retain any
Collections in respect of a Collection Period until 10.00 am on the
Business Day which is the earlier of two Business Days preceding the
Monthly Distribution Date for the Collection Period and 30 days from
receipt of such Collections, provided that while the sum of:
(i) all Collections then held by the Servicer; and
(ii) the aggregate value of the Authorised Short-Term Investments
in relation to the Series Trust which are with, or issued by,
a bank or financial institution which then has assigned to it
by S&P a short term credit rating of A-1,
exceeds 20% of the then aggregate of the Stated Amounts of the
Securities, the Servicer will only be entitled to retain any
additional Collections received in respect of a Collections Period
until 10.00 am on the Business Day which is 2 Business Days from the
receipt of such Collections; or
(c) (Lower than A-1/P1/F1 Rating): the Servicer has no credit ratings or
is assigned a short term credit rating by the Rating Agencies lower
than A-1 (in the case of S&P), lower than P1 (in the case of
Xxxxx'x) or lower than F1 (in the case of Fitch), then the Servicer
will be entitled to retain any Collections, in respect of a
Collection Period until 10.00 am on the Business Day which is two
Business Days from receipt of such Collections,
and must at that time pay such Collections into the Collections Account
together with an amount of interest (in the case of paragraphs (a) and
(b)) equal to the amount that would have been earned had such Collections
been paid into the Collections Account within 5 Business Days of their
receipt by the Servicer.
22.6 Withdrawals from Collections Accounts
Subject to this Deed, the Trustee will withdraw funds from the Collections
Account and apply the same when necessary for the following outgoings:
(a) (Payments to Securityholders and Residual Unitholder): making
payments to the Securityholders or the Residual Unitholder;
(b) (Eligible Investments): purchasing Authorised Short-Term Investments
in compliance with this Deed and making payments required in
connection with Authorised Short-Term Investments;
(c) (Expenses and Taxes): paying Expenses and Taxes in accordance with
this Deed or the Master Trust Deed; and
(d) (Other payments): making payments, in accordance with the
Transaction Documents to (or at the direction of) the Trustee, the
Manager, the Servicer, the Security Trustee, any Support Facility
Provider or any other Creditor of the Series Trust.
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22.7 All Transactions through Collections Account
Unless otherwise directed by the Manager, all moneys and proceeds referred
to in clauses 22.4 and 22.5 will be credited to the Collections Account
and all outgoings referred to in clause 22.6 will be paid from the
Collections Account.
22.8 Title to and Control of Collections Account
The Collections Account and all rights to it and the funds standing to its
credit from time to time is an Asset of the Series Trust. At all times the
Collections Account will be under the sole control of the Trustee.
22.9 No Deductions by Servicer
If the Collections Account is maintained with the Servicer, the Servicer
agrees that it will have no right of set-off, banker's lien, right of
combination of accounts, right to deduct moneys or any other analogous
right or Security in or against any funds held in the Collections Account
for any amount owed to the Servicer.
22.10 Prepayments under Liquidity Facility
All prepayments made to the Trustee in respect of the Liquidity Facility
Agreement must be deposited in the Collections Account. Amounts so
deposited must not be withdrawn by the Trustee other than at the direction
of the Manager in accordance with the Liquidity Facility Agreement or to
be paid into a new Collections Account opened in accordance with clause
22.3.
22.11 Servicer May Retain Income from Collections
Subject to clause 22.5, where the Servicer has received Collections but it
is not required pursuant to this Deed to deposit those Collections into
the Collections Account until a later date, the Servicer may retain any
interest and other income derived by the Servicer from those Collections
for the period up to when the Servicer is required to deposit them under
this Deed into the Collections Account.
22.12 Bank Account Taxes
Interest earned on amounts standing to the credit of the Collections
Account shall be determined net of all Taxes levied specifically in
respect of debits or credits to or on deposit accounts.
22.13 Opening of additional accounts where Collections Account is with an
Eligible Depository
If at any time:
(a) (Collections Account with Eligible Depository): there are
Collections deposited in a Collections Account with an Eligible
Depository;
(b) (Required Rating): the then short term credit rating assigned by the
Rating Agency to the Eligible Depository is no higher than A-1 and
the obligations of that Eligible Depository in respect of the
Collections Account are rated, or considered by S&P to be equivalent
to obligations rated, less than A-1+; and
(c) (Credit balance of Collections Account): the sum of:
(i) all amounts then credited to the Collections Account; and
(ii) the aggregate value of the Authorised Short-Term Investments
in relation
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to the Series Trust which are with, or are issued, endorsed
(with recourse) or accepted by, a bank or financial
institution which has then assigned to it by the Rating Agency
a short term credit rating of A-1,
exceeds 20% of the Total Invested Amount of the Notes,
then:
(d) (New Collections Account): the Trustee must, upon becoming actually
aware of the occurrence of that event, immediately open a new
Collections Account with another Eligible Depository which has
assigned to it a short term credit rating by S&P of A-1+;
(e) (Amounts in excess transferred): an amount equal to the excess
referred to in clause 22.13(c) must be transferred by the Trustee
from the Collections Account referred to in clause 22.13(a) to the
new Collections Account;
(f) (Subsequent deposits): all subsequent amounts received by, or
payable to, the Trustee in respect of the Series Trust must be
deposited in the Collections Account referred to in clause 22.13(a)
to the extent that such amounts can be deposited in that Collections
Account in accordance with, and without breaching the restrictions
on such deposit set out in, clause 22.13(c); and
(g) (Balance transferred): the balance of the amounts received by, or
payable to, the Trustee in respect of the Series Trust must be
deposited in the new Collections Account established pursuant to
clause 22.13(d) and in accordance with clauses 22.4 and 22.5.
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23. Clean-up and extinguishment
23.1 Notification of Trigger Event by Manager to Seller
If (unless otherwise required by CBA):
(a) (10% Threshold): the event referred to in Condition 7.3(a) of the
Class A-1 Note Conditions has occurred or is expected to occur on
the next Quarterly Distribution Date; or
(b) (Other Redemption Event): both of the following events occur:
(i) the next Quarterly Distribution Date is the Call Date or an
event referred to in Condition 7.4(a) or (b) has occurred; and
(ii) CBA has prior thereto notified the Manager that the Australian
Prudential Regulation Authority will permit CBA to exercise
its rights under this clause 23 on behalf of both Sellers
(notwithstanding that the event referred to in clause 23.1(a)
has not occurred),
the Manager must promptly request CBA by telephone or orally whether CBA
wishes to exercise rights pursuant to this clause 23.
23.2 Response by CBA
CBA may at any time after receiving (or the relevant deadline for receipt)
a request from the Manager pursuant to clause 23.1, and prior to the
Termination Date, advise the Manager by telephone or orally, that it
requires to exercise the rights of the Sellers pursuant to this clause 23
and nominating a Quarterly Distribution Date as the Clean-up Settlement
Date. The Manager must then promptly advise the Trustee of such advice and
(if applicable) such nomination by CBA. Any such nomination by CBA shall
be binding on both Sellers.
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23.3 Determination of Clean-Up Settlement Date
If CBA advises the Manager pursuant to clause 23.2 that it requires to
exercise the rights of the Sellers pursuant to this clause 23:
(a) (Clean-Up Settlement Date to Coincide with redemption of
Securities): if any Securities have been issued and have not then
been redeemed, the Manager must, subject to clause 23.4(b), in
accordance with Conditions 7.3 or 7.4 (as applicable) of the Class
A-1 Note Conditions direct the Trustee to give a notice in
accordance with such Condition (which the Trustee must give) that on
the Quarterly Distribution Date nominated by CBA pursuant to clause
23.2 (which must be a complying Quarterly Distribution Date in
accordance with such Condition) a redemption of the Securities will
occur pursuant to such Condition (in which case, such nominated and
complying Quarterly Distribution Date will be the Clean-Up
Settlement Date); or
(b) (Otherwise, date nominated by Seller): otherwise, the Clean-Up
Settlement Date will be the Quarterly Distribution Date nominated by
CBA as the Clean-Up Settlement Date pursuant to clause 23.2.
23.4 Clean-Up Settlement Price
(a) (Calculation): The Clean-Up Settlement Price will be the amount
determined by the Manager to be the aggregate of the Fair Market
Value (as at the last day of the Accrual Period ending immediately
before the proposed Clean-Up Settlement Date) of each Mortgage Loan
then forming part of the Assets of the Series Trust.
(b) (Minimum Clean-Up Settlement Price): If any Securities have been
issued and have not then been redeemed (or deemed to be redeemed)
and if the amount of the Clean-Up Settlement Price determined by the
Manager (when combined with the other Assets that will be available
to the Trustee) is not sufficient to ensure, upon payment by the
Sellers to the Trustee pursuant to clause 23.5, that the Trustee
would be in a position on the proposed Clean-Up Settlement Date to
redeem the Securities in full in accordance with Condition 7.3 or
7.4 (as applicable) of the Class A-1 Note Conditions, the Manager
must not give a direction to the Trustee pursuant to clause 23.3(a).
If such amount would be so sufficient, the Manager's direction
pursuant to clause 23.3(a) must be accompanied by a notification to
the Trustee of such amount and the certificate referred to in
Condition 7.5 of the Class A-1 Note Conditions.
(c) (Minimum not Sufficient): If the Manager cannot issue the direction
referred to in clause 23.4(b) as a result of such clause, nothing
herein prevents CBA issuing a further advice to the Manager pursuant
to clause 23.2 at a later date, in which case the procedures and
provisions of this clause 23 will thereupon take effect again
(including this clause 23.4(c)), subject to the requirements herein
contained.
23.5 Payment of Clean-Up Settlement Price
(a) (Payment): Subject to clause 23.5(b), the Sellers must pay to the
Trustee, in immediately available funds, the Clean-Up Settlement
Price on the Clean-Up Settlement Date. Each Seller's liability under
this clause 23.5(a) will be determined according to the proportion
which the Fair Market Value of the Mortgage Loans referable to that
Seller and described in clause 23.4(a) bears to the total Fair
Market Value of all Mortgage Loans described in clause 23.4(a).
(b) (Waiver of Redemption by Class A-1 Noteholders): If a proposed
payment pursuant to clause 23.5(a) is as a result of the occurrence
of the event referred to in Condition 7.4(a) of the Class A-1 Note
Conditions in respect of only the Class A-1
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Notes and the Trustee is not required to redeem the Class A-1 Notes
as a result of an election to this effect by the Class A-1
Noteholders in accordance with Condition 7.4, the Sellers must not
make the proposed payment referred to in clause 23.5(a) on the
proposed Clean-Up Settlement Date (but without limiting the
operation of clause 23.4(c) in respect of any other event that has
occurred or may occur under clause 23.1).
23.6 Effect of Payment of Clean-Up Settlement Price
Upon receipt of the Clean-Up Settlement Price by the Trustee in
immediately available funds, the Trustee's entire right, title and
interest in the Mortgage Loan Rights then forming part of the Assets of
the Series Trust will be extinguished in favour of the Relevant Seller
with immediate effect from the last day of the Collection Period which
ended prior to the Clean-Up Settlement Date. The Trustee must execute
whatever documents the Sellers reasonably require to complete the
extinguishment of the Trustee's right, title and interest in the Mortgage
Loan Rights.
23.7 Costs
Each Seller must pay to, or reimburse, the Trustee immediately on demand
for all costs and expenses, including, without limitation, any stamp duty
and registration fees, arising out of or necessarily incurred in
connection with the exercise of such Seller's rights pursuant to this
clause 23.
23.8 Alternative Structure
The Trustee must co-operate with the Sellers in implementing alternative
means to permit the Sellers to have the benefit of the Mortgage Loan
Rights referred to in clause 23.6 other than as set out in this clause 23
if to do so would materially reduce the liability of the Sellers to
reimburse the Trustee for any of the costs and expenses set out in clause
23.7 and provided that any proposed alternative means pursuant to this
clause is permitted in law and does not result in the Trustee being
exposed to the risk of personal liability unless the Trustee is satisfied,
in its absolute discretion, that the Sellers will be able to indemnify the
Trustee in respect of such risk in accordance with clause 2.15(a).
23.9 Alternative Funding Arrangements to Permit Redemption
Nothing in this clause 23 prevents the Manager and the Trustee exercising
any other rights and powers conferred upon them by this Deed or the Master
Trust Deed (in so far as it applies to the Series Trust) to enable the
redemption of the Securities as contemplated by Conditions 7.3 and 7.4 of
the Class A-1 Note Conditions.
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24. Perfection of Title
24.1 Perfection of Title Event
A Perfection of Title Event occurs if:
(a) (Breach of Seller Representations): a Seller (in its capacity as
Seller only and not as Custodian) makes any representation or
warranty under a Transaction Document to which it is expressed to be
a party that proves to be incorrect when made (other than a
representation or warranty in respect of which payment has been
made, or is not yet due to be made, in accordance with clauses 14.6
and 14.9(a)), or breaches any covenant or undertaking given by it in
such a Transaction Document, and that has or, if continued will
have, an Adverse Effect and:
(i) the same is not satisfactorily remedied so that it no longer
has or will have, an Adverse Effect, within 20 Business Days
of notice thereof being
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delivered to the Seller by the Manager or the Trustee; or
(ii) if paragraph (i) is not satisfied, a Seller has not within 20
Business Days of such notice paid compensation to the Trustee
for its loss from such breach in an amount satisfactory to the
Trustee acting reasonably (such compensation cannot exceed the
aggregate of the principal amount outstanding in respect of
the corresponding Mortgage Loan (as recorded on the Mortgage
Loan System) and any accrued or unpaid interest in respect of
the Mortgage Loan (calculated in both cases at the time of
payment of the compensation)).
The Trustee must, in such notice, specify the reasons why it
believes an Adverse Effect has occurred, or will occur (as the case
may be);
(b) (Servicer Default): if the Seller is the then Servicer, a Servicer
Default occurs;
(c) (Seller Insolvency Event): an Insolvency Event occurs in relation to
a Seller;
(d) (Seller breach of Interest Rate Swap Agreement): if a Seller is a
then Interest Rate Swap Provider under a Fixed Rate Swap or an
Interest Rate Basis Cap, the Seller fails to make any payment due
under the corresponding Interest Rate Swap Agreement and such
failure: or
(i) has or will have, as reasonably determined by the Trustee, an
Adverse Effect; and
(ii) is not remedied by the Relevant Seller within 20 Business Days
(or such longer period as the Trustee may agree to) of notice
thereof being delivered to the Relevant Seller by the Manager
or the Trustee;
(e) (Downgrading of Seller): a downgrading in the long term debt rating
of a Seller below the Specified Rating (or such other rating in
respect of the Seller as is agreed between the Manager, the Seller
and the Rating Agency which had assigned the relevant Specified
Rating).
24.2 Declaration of Perfection of Title Event
If a Perfection of Title Event (of which the Trustee is actually aware) is
subsisting, the Trustee must, as soon as is practicable, by notice in
writing to the Sellers, the Servicer, the Manager and the Rating Agencies
declare that a Perfection of Title Event has occurred unless the Rating
Agencies confirm by notice in writing to the Trustee (with a copy to the
Manager) prior to the declaration that a failure to perfect the Trustee's
title to the Mortgages in accordance with clause 24.3 will not result in a
reduction, qualification or withdrawal of the credit ratings then assigned
by them to the Securities.
24.3 Perfection of Title
If, and only if, a declaration is made by the Trustee in accordance with
clause 24.2, the Trustee and the Manager must as soon as practicable:
(a) (Perfect title): take all necessary steps to perfect in the name of
the Trustee the Trustee's legal title to the Mortgages then forming
part of the Assets of the Series Trust, including lodgement of
Mortgage Transfers (where necessary, executed under a Power of
Attorney) with the land titles office of the appropriate
jurisdiction to achieve registration of the Mortgages then forming
part of the Assets of the Series Trust;
(b) (Notify Borrowers): notify the relevant Borrowers of the sale of the
Mortgage Loans and Mortgages then forming part of the Assets of the
Series Trust including
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informing them (where appropriate) that they should make payment to
the Series Trust Account specified to them by the Trustee; and
(c) (Possession of Loan Files): take possession of all Loan Files
(subject to the Privacy Act and each Seller's duty of
confidentiality to its customers under general law or otherwise).
The Trustee and the Manager may, if necessary to obtain possession,
enter into the premises of the Servicer at which the Loan Files are
stored.
24.4 Trustee to lodge Caveats
If the Trustee does not hold the Mortgage Documents necessary to vest
fully and effectively in the Trustee each Seller's legal right, title and
interest in and to any Mortgage Loan, the Trustee must, within 5 Business
Days after the declaration by the Trustee of a Perfection of Title Event
in accordance with clause 24.2, lodge or enter, to the extent of the
information available to it, a caveat or similar instrument in respect of
the Trustee's interest in the Mortgage Loan.
24.5 Trustee to hold Legal Title or lodge Caveats
The Trustee must, in respect of each Mortgage Loan then forming part of
the Assets of the Series Trust, within 30 Business Days after the
declaration by the Trustee of a Perfection of Title Event in accordance
with clause 24.2, either have commenced to take all necessary steps to
perfect the legal title to that Mortgage Loan or have lodged or entered a
caveat or similar instrument in respect of the Trustee's interest in that
Mortgage Loan.
24.6 Powers of Attorney
The Trustee must only use the Powers of Attorney to execute Mortgage
Transfers in respect of Mortgages then forming part of the Assets of the
Series Trust and only then if it has declared a Perfection of Title Event
in accordance with clause 24.2.
24.7 Other Loans
Following a declaration in accordance with clause 24.2, the Trustee must
continue to hold its interest in the CBA Trust Assets in accordance with
this Deed.
24.8 Indemnity
CBA indemnifies the Trustee against all loss, costs, damages, charges and
expenses incurred by the Trustee in perfecting the Trustee's title to the
Mortgages then forming part of the Assets of the Series Trust in
accordance with clause 24.3, including legal costs charged at the usual
commercial rates of the relevant legal services provider, all registration
fees, stamp duty and the cost of preparing and transmitting all necessary
documentation.
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25. Servicer as Custodian of the Mortgage Loan documents
25.1 Servicer as Custodian
The Servicer shall hold the Mortgage Documents in relation to the Sellers'
Mortgage Loans and which from time to time form part of the Assets of the
Series Trust (the "Relevant Mortgage Documents") as custodian on behalf of
the Trustee from and including the Closing Date until a Document Transfer
Event occurs.
25.2 Application of the Balance of this Clause
The remaining provisions of this clause 25 only apply if and while the
Servicer remains as Custodian of the Relevant Mortgage Documents.
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25.3 Servicer Covenants as Custodian
The Servicer covenants with the Trustee that it will:
(a) (Hold documents in accordance with its normal practice): hold the
Relevant Mortgage Documents in accordance with its standard
safekeeping practices and in the same manner and to the same extent
as it holds its own documents;
(b) (Segregate documents): mark and segregate the security packages
containing the Relevant Mortgage Documents in a manner to enable the
easy identification of them by the Trustee (when the Trustee is at
the premises at which the Mortgage Documents are located and in
possession of the letter delivered to it pursuant to clause 6.1(k));
(c) (Reporting): maintain reports on movements of the Relevant Mortgage
Documents;
(d) (Deficiencies in Document Custody Audit Report): cure any exceptions
or deficiencies noted by the Auditor of the Series Trust in a
Document Custody Audit Report; and
(e) (Power of Attorney): exercise any power of attorney granted by
Colonial State Bank solely in relation to its duties as Custodian or
in relation to any non-compliance by Colonial State Bank with Clause
25.12 and upon the instruction of the Trustee.
25.4 Servicer's Update of Computer Diskette
(a) (Quarterly Updates): The Servicer must deliver to the Trustee on
each Quarterly Distribution Date a computer diskette in a format
acceptable to the Trustee updating the information referred to in
clause 6.1(j).
(b) (Adverse Document Custody Audit Report): In addition to its
obligations under clause 25.4(a), if there is an Adverse Document
Custody Audit Report the Servicer must deliver to the Trustee within
20 Business Days thereafter (or such longer period as may be agreed
between the Servicer and the Trustee) a computer diskette updating
the information referred to in clause 6.1(j) and containing the
Caveat and Transfer Details in respect of each Mortgage Loan then
forming part of the Assets of the Series Trust.
25.5 Servicers' Indemnity in respect of Incorrect Information on Computer
Diskette
If the Servicer:
(a) (Fails to supply information): fails to supply adequate information;
or
(b) (Supplies incorrect information): supplies inaccurate or incomplete
information,
on the computer diskettes delivered pursuant to clause 6.1(j) or 25.4 and
as a result the Trustee is unable (when entitled to do so under this Deed)
to lodge and register Caveats and Mortgage Transfers upon the occurrence
of a Document Transfer Event or a Perfection of Title Event, then the
Servicer (as custodian) indemnifies the Trustee (whether for its own
account or for the account of the Securityholders) for all actions, loss,
damage, costs (including legal costs charged at the usual commercial rates
of the relevant legal services provider), charges and expenses suffered as
a result.
25.6 Document Custody Audit Report
The Manager or the Trustee (due to default by the Manager) must retain the
Auditor of the
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Series Trust to conduct periodic reviews (determined in accordance with
clause 25.9) in respect of each Servicer's role as custodian of the
Relevant Mortgage Documents forming part of the Assets of the Series
Trust. The Auditor must review:
(a) (Custodial procedures): the custodial procedures adopted by the
Servicer; and
(b) (Accuracy of information): the accuracy of information in respect of
the Mortgage Loans contained on:
(i) the Security Register; and
(ii) the most recent of the computer diskettes provided to the
Trustee pursuant to clauses 6.1(j) and 25.4.
25.7 Details of Document Custody Audit Report
(a) (Custody procedures): In respect of the review referred to in clause
25.6(a), the Manager must instruct the Auditor of the Series Trust
that its review should consist of reporting on whether:
(i) Mortgage Documents forming part of the Assets of the Series
Trust are capable of identification and are distinguishable
from the other assets of the Servicer;
(ii) controls exist such that the Mortgage Documents may not be
removed or tampered with except with appropriate
authorisation; and
(iii) an appropriate tracking system is in place such that the
location of the security packages containing the Mortgage
Documents in respect of the Mortgage Loans comprising Assets
of the Series Trust can be detected at any time and the
location of the Mortgage Documents (other than the Mortgage
Documents in relation to the First Layer of Collateral
Securities but including any Insurance Policy or certificate
of currency for an Insurance Policy in relation to a Mortgage
Loan) can be detected at any time.
(b) (Accuracy of information): In respect of the review referred to in
clause 25.6(b)(i), the Manager must instruct the Auditor of the
Series Trust to review a sample of security packets in respect of
the Mortgage Loans then forming part of the Assets of the Series
Trust to determine whether they contain the following (which accord,
where applicable, with the information contained in the computer
diskette referred to in clause 25.6(b)(ii)):
(i) an original counterpart of the corresponding Mortgage;
(ii) the Certificate of Title (if any) in respect of the Land the
subject of the Mortgage; and
(iii) (where applicable) any Mortgage Insurance Policy in respect of
the corresponding Mortgage other than the [ ] Mortgage
Insurance Policy.
If such security packets do not contain any of the foregoing, the
Auditor must determine if there is an adequate explanation regarding
the documents not in the security packets or whether the security
packets or the Servicer's records indicate the location of the
missing documents.
The Manager must instruct the Auditor to confirm (after having
conducted the above reviews) the accuracy of the information in
respect of the above contained in both the Security Register and the
computer diskette referred to in
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clause 25.6(b)(ii).
25.8 Document Custody Audit Report
The Manager must instruct the Auditor of the Series Trust to provide a
Document Custody Audit Report in respect of the Servicer in which the
Auditor, based on its reviews referred to in clause 25.7, specifies a
grade of the overall custodial performance by the Servicer, based on the
following grading system:
"A" Good - All control procedures and accuracy of
information in respect of Mortgage Loans
testing completed without exception.
"B" Satisfactory - Minor exceptions noted.
"C" Improvement required - Base internal controls are in place but a
number of issues were identified that need
to be resolved for controls to be considered
adequate; and/or
Testing of the information in respect of
Mortgage Loans identified a number of minor
exceptions which are the result of
non-compliance with the control system.
"D" Adverse - Major deficiencies in internal controls were
identified. Cannot rely on the integrity of
the information in respect of Mortgage Loans
on the Security Register and the diskettes
delivered pursuant to clauses 6.1(j) and
25.4.
25.9 Timing of Document Custody Audit Reports
The Manager (or the Trustee if the Manager fails to do so) must instruct
the Auditor of the Series Trust to prepare a Document Custody Audit Report
immediately after delivery of the computer diskette referred to in clause
6.1(j) and annually on 30 September of each year thereafter (not including
the year in which the first Document Custody Audit Report is prepared) (or
such other period as may be agreed by the Manager, the Trustee and the
Ratings Agencies). The Manager (or the Trustee if the Manager fails to do
so) must require the Auditor to deliver a copy of each Document Custody
Audit Report to the Trustee, with a copy to the Manager and the Servicer.
25.10 Adverse Document Custody Audit Report
If the Auditor issues an Adverse Document Custody Audit Report to the
Trustee, the Trustee must instruct the Auditor to conduct a further
Document Custody Audit Report no sooner than 1 month but no later than 2
months after the date of receipt by the Trustee of the Adverse Document
Custody Audit Report. The Manager must instruct the Auditor to deliver the
further Document Custody Audit Report to the Trustee, with a copy to the
Manager and the Servicer.
25.11 Document Transfer Event
Upon the occurrence of any of the following:
(a) (Further Adverse Document Custody Audit Report): a further Document
Custody Audit Report pursuant to clause 25.10 is an Adverse Document
Custody Audit Report;
(b) (Trustee as Servicer): the Trustee replaces CBA as the Servicer; or
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(c) (Downgrade of Seller Rating): a downgrading in the long term debt
rating of CBA to below the Specified Rating (or such other rating as
is agreed between the Manager, the Servicer and the relevant Rating
Agencies),
a Document Transfer Event occurs. The Trustee must immediately upon
becoming actually aware of a Document Transfer Event deliver a notice to
the Servicer notifying it of the occurrence of a Document Transfer Event.
Upon receipt of such notice the Servicer must transfer custody of the
Mortgage Documents then forming part of the Assets of the Series Trust
held by it to the Trustee. Subject to clause 25.14, this requirement will
be treated as being satisfied if:
(d) (Delivery of 90% of Mortgage Documents): within 5 Business Days of
the above notice being received, all Mortgage Documents in relation
to at least 90% (by number) of the Mortgage Loans then part of the
Assets of the Series Trust are delivered to the Trustee; and
(e) (Remaining Mortgage Documents): any remaining Mortgage Documents in
relation to Mortgage Loans then part of the Assets of the Series
Trust are delivered to the Trustee within 10 Business Days of the
above notice being received.
25.12 Failure to comply with clause 25.11
If the Servicer does not comply with the requirements of clause 25.11
(subject to clause 25.14) within either of the specified time limits
specified in clause 25.11(d) & (e), the Trustee must (unless the Trustee
is satisfied, in its absolute discretion, that the Servicer has used its
best endeavours to deliver the Mortgage Documents and has made appropriate
arrangements for the remaining Mortgage Documents to be delivered in
accordance with clause 25.11 (subject to clause 25.14) within a reasonable
period as determined by the Trustee (but in any event no longer than 10
Business Days from the date that they were due to be delivered in
accordance with clause 25.11 (subject to clause 25.14) except where the
Trustee is satisfied, in its absolute discretion, that the failure to
deliver the remaining Mortgage Documents arises from circumstances beyond
the control of the Servicer)) to the extent to which it has information
available to it at the time:
(a) (Lodge Caveats): execute and lodge Caveats in respect of all Land or
Mortgages (as the case may be) for which all Mortgage Documents in
respect of the Series Trust have not been delivered; and
(b) (Bring Proceeds for Possession): initiate legal proceedings to take
possession of the Mortgage Documents in respect of the Series Trust
that have not been delivered,
and to the extent that the Trustee cannot do so, as a result of not having
information available to it to do so, the indemnity in clause 25.5
applies.
The Trustee must discontinue any legal proceedings initiated in accordance
with this clause 25.12 if the Mortgage Documents in question are delivered
to the Trustee.
25.13 Emergency Document transfer
If:
(a) (A Perfection of Title Event occurs): a Perfection of Title Event
(other than a Servicer Default referred to in clause 18.1(g)) is
declared by the Trustee in accordance with clause 24.2 and the
Trustee notifies the Sellers and the Servicer of that fact (which
the Trustee must do immediately upon declaring any such Perfection
of Title Event); or
(b) (Nominated Servicer Default): for the purposes of this clause only
and not for any other purpose under this Deed:
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(i) the Trustee considers in good faith that the conditions of
clause 18.1(g) have been satisfied; and
(ii) the Trustee serves a notice on the Servicer identifying the
reasons why the Trustee considers that those conditions have
been satisfied and why, in the Trustee's opinion, an Adverse
Effect has or may occur as a result,
then, subject to clause 25.14, the Servicer must immediately upon receipt
of a notice under paragraph (a) or (b) transfer custody of its Mortgage
Documents to the Trustee. The Trustee may, in such circumstances, commence
legal proceedings to obtain possession of the Mortgage Documents and may
enter into the premises of the Servicer at which the Mortgage Documents
are stored and take away from such premises the Mortgage Documents then
forming part of the Assets of the Series Trust.
25.14 Exceptions to Transfer
The obligations of the Servicer to transfer custody of the Mortgage
Documents to the Trustee pursuant to clause 25.11 or 25.13 do not extend
to such documents which the Servicer can prove, to the reasonable
satisfaction of the Trustee, are deposited with a solicitor (acting on
behalf of the Servicer), a land titles office, a stamp duties office or
any other Governmental Agency. The Servicer must provide a list of such
documents to the Trustee together with any which have been lost (and a
statutory declaration duly completed that the contents of the list are, to
the best of the knowledge and belief of the maker, true and correct)
within 14 days of the above notice having been received by it. In respect
of Mortgage Documents that are so deposited, the Servicer must deliver
these to the Trustee immediately upon receipt from the solicitor or
relevant office and, in respect of Mortgage Documents that are lost, the
Servicer must take all reasonable steps satisfactory to the Trustee to
promptly replace such Mortgage Documents.
25.15 Indemnity by the Servicer
The Servicer indemnifies the Trustee against all loss, costs, damages,
charges and expenses incurred by the Trustee:
(a) (Servicer breach): as a result of a breach by the Servicer of clause
25.11; or
(b) (Legal proceedings): in connection with the Trustee taking the
action referred to in clause 25.12 or the legal proceedings referred
to in clause 25.13,
including all registration fees, stamp duty, legal costs charged at the
usual commercial rates of the relevant legal services provider and the
cost of preparing and transmitting all necessary documentation.
25.16 Trustee to co-operate with Servicer
If the Trustee holds any Mortgage Loan Document and if the Trustee
receives from the Servicer a satisfactory undertaking, the Trustee must
release to the Servicer from time to time such Mortgage Documents as are
reasonably required by the Servicer to perform its obligations as Servicer
under this Deed.
25.17 Specific performance
If the Servicer breaches its obligations under clauses 25.11 to 25.14, it
is agreed that damages alone will not be an adequate remedy for such a
breach and that the Trustee is entitled to sue the Servicer for specific
performance of its obligations under clauses 25.11 to 25.14.
25.18 Trustee's Duty While Holding Mortgage Documents
While the Trustee holds any Mortgage Documents, it must hold them in
accordance with its
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standard safekeeping practices and in the same manner and to the same
extent as it holds equivalent mortgage documents as trustee.
25.19 Reappointment of Servicer as Custodian
If following a Document Transfer Event:
(a) the Trustee is satisfied, notwithstanding the occurrence of the
Document Transfer Event, that the Servicer is an appropriate person
to act as custodian of all or part of the Mortgage Documents; and
(b) the Rating Agencies confirm that the appointment of the Servicer to
act as custodian of those Mortgage Documents will not result in a
reduction, qualification or withdrawal of the credit ratings then
assigned by them to the Securities,
then the Trustee may by agreement with the Servicer appoint the Servicer
to act as custodian of the Mortgage Documents upon such terms as are
agreed between the Trustee and the Servicer and approved by the Manager.
This clause 25 will apply following the appointment of the Servicer as
custodian of the Mortgage Documents under this clause 25.19.
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26. Termination of the Series Trust
26.1 Potential Termination Events
(a) (Notify Potential Termination Event): If the Trustee, the Manager or
the Servicer becomes aware of the occurrence of a Potential
Termination Event it must promptly notify in writing the others and
the Security Trustee and the Class A-1 Note Trustee.
(b) (Trustee must determine whether Potential Termination Event has
Adverse Effect): Upon becoming aware of a Potential Termination
Event, the Trustee must promptly determine whether in its reasonable
opinion the Potential Termination Event has or will have an Adverse
Effect and must promptly thereafter notify in writing the Manager,
the Servicer, the Security Trustee and the Class A-1 Note Trustee of
its determination.
(c) (Restructuring): If the Trustee determines pursuant to clause
26.1(b) that a Potential Termination Event has or will have an
Adverse Effect , the Servicer, the Trustee and the Manager must
consult and use their reasonable endeavours (in consultation with
the Security Trustee, the Class A-1 Note Trustee and, if necessary
the Residual Unitholder) to amend or vary the terms of this Deed,
any other relevant Transaction Document and the Securities in
respect of the Series Trust, in such a way so as to cure the
Potential Termination Event or its Adverse Effect.
(d) (Wind up the Security Trust): If such consultations do not result in
the cure of the Potential Termination Event or its Adverse Effect
(with the consent of the Servicer, the Trustee, the Manager, the
Security Trustee and the Class A-1 Note Trustee) within 60 days of
notice being given by the Trustee pursuant to clause 26.1(b), then
the Trustee must proceed to liquidate the Assets of the Series Trust
in accordance with the remainder of this clause 26.
26.2 Determination of Termination Payment Date
The Trustee must as soon as practicable following the Termination Date of
the Series Trust, declare on the direction of the Servicer and the
Manager, a date as the Termination Payment Date (which, if Securities have
been issued and have not then been redeemed (or deemed to be redeemed) in
full, must be a Monthly Distribution Date and must not be the next Monthly
Distribution Date or Quarterly Distribution Date immediately after the
declaration if the
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Determination Date in relation to that Monthly Distribution Date has then
passed), being a date by which the Trustee reasonably believes that the
sale and distribution of the Assets of the Series Trust will be completed
in accordance with this clause 26. Based on the direction of the Servicer
and the Manager, the Trustee may substitute another date as the
Termination Payment Date (which, if the Securities have not then been
redeemed in full, must be a Monthly Distribution Date or a Quarterly
Distribution Date) if it reasonably believes that the Assets will not in
fact be sold and distributed by the then declared Termination Payment
Date.
26.3 Realisation of Assets
Upon the occurrence of the Termination Date of the Series Trust, the
Trustee, in consultation with the Manager, must sell and realise the
Assets of the Series Trust (and, in relation to the sale (other than
pursuant to clause 26.5) of any Mortgage Loan Rights forming part of the
Assets of the Series Trust, the Trustee must obtain appropriate expert
advice prior to the sale) and such sale (so far as reasonably practicable
and reasonably commercially viable) must be completed within 180 days of
the Termination Date provided that during the period of 180 days from the
Termination Date:
(a) (Fair Market Value): the Trustee must not offer to sell the Mortgage
Loan Rights for less than their Fair Market Value;
(b) (Sale in accordance with clause 26.4): the Trustee must not sell any
Mortgage Loan Rights unless the sale is on terms in accordance with
clause 26.4; and
(c) (Right of first refusal): the Trustee must not sell any Mortgage
Loan Rights unless it has offered the Mortgage Loan Rights for sale
to CBA in accordance with clause 26.5 and CBA has either not
accepted that offer or has accepted that offer within 90 days of
that Termination Date but not paid the consideration due by the time
required pursuant to clause 26.5.
26.4 Conditions of Sale During 180 days
The Trustee must not conclude a sale pursuant to clause 26.3 (other than
pursuant to clause 26.5) unless:
(a) (Equitable assignment only): all Mortgage Loan Rights sold pursuant
to that sale are assigned in equity only (unless the Trustee already
holds legal title to such Mortgage Loan Rights);
(b) (Servicer's rights retained): the sale is expressly subject to the
Servicer's right to be retained as Servicer of the Mortgage Loan
Rights in accordance with the terms of this Deed; and
(c) (Sale subject to CBA Trust): the sale is expressly subject to the
rights of the CBA Trust in respect of those Mortgage Loan Rights
pursuant to this Deed and to the rights of the beneficiary, or
beneficiaries, of the CBA Trust in respect of those Mortgage Loan
Rights pursuant to this Deed.
26.5 Right of Refusal to Seller
(a) (Deemed offer to Seller): On the Termination Date of the Series
Trust the Trustee is deemed to irrevocably offer to extinguish in
favour of the Sellers, its entire right, title and interest in the
Mortgage Loan Rights forming part of the Assets of the Series Trust
in return for the payment to the Trustee of an amount determined in
accordance with clause 26.3(a) as at the Termination Date.
(b) (Acceptance by Seller of Offer): The Sellers may verbally accept the
offer referred to in clause 26.5(a) within 90 days after the
Termination Date of the Series Trust
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and, having accepted the offer, must pay to the Trustee, in
immediately available funds, the amount referred to in clause
26.5(a) by the expiration of 180 days after the Termination Date of
the Series Trust. If the Sellers make such payment, the Trustee must
execute whatever documents the Sellers reasonably require to
complete the extinguishment of the Trustee's right, title and
interest in the Mortgage Loan Rights then forming part of the Assets
of the Series Trust.
(c) (Trustee must not sell): The Trustee must not sell any Mortgage Loan
Rights referred to in clause 26.5(a) unless the Sellers have failed
to accept the offer referred to in clause 26.5(a) within 90 days
after the Termination Date or, having accepted the offer, has failed
to pay the amount referred to in clause 26.3(a) by the expiration of
180 days after the Termination Date.
26.6 Sale at Lower Price
If after the expiration of the period of 180 days from the Termination
Date of the Series Trust the Trustee has not sold any Mortgage Loan Rights
which form part of the Assets of the Series Trust for the amount
determined in accordance with clause 26.3(a), the Trustee may proceed to
sell such Mortgage Loan Rights free from the prohibitions contained in
clause 26.3 and may, if necessary, sell such Mortgage Loan Rights on the
terms set out in clause 26.7 if the terms of that clause are satisfied. If
any Mortgage Loan Rights are sold for less than the price for those
Mortgage Loan Rights determined in accordance with clause 26.3(a), then
any such shortfall must be allocated as provided for clause 26.11.
26.7 Conditions of Sale After 180 days
Upon the expiration of the period of 180 days from the Termination Date in
respect of the Series Trust, the Trustee may, if necessary (in its
reasonable opinion) to sell the Mortgage Loan Rights forming part of the
Assets of the Series Trust for at least the amount determined in
accordance with clause 26.3(a) in respect of those Mortgage Loan Rights:
(a) (Perfect title): take all necessary steps to perfect the Trustee's
legal title to the Mortgage Loan Rights as if a Perfection of Title
Event had occurred;
(b) (Terminate Servicer): terminate the rights and obligations of the
Servicer in respect of those Mortgage Loan Rights; and
(c) (Sell Mortgage Loan Rights): sell the legal and beneficial ownership
in such Mortgage Loan Rights to the prospective purchaser free of
all rights of the Relevant Seller to repurchase such Mortgage Loan
Rights in accordance with this Deed which rights the Seller is
deemed to have waived by its not accepting the offer made to it in
accordance with clause 26.3(a).
26.8 Further Conditions of Sale After 180 days
If the Trustee sells the Mortgage Loan Rights pursuant to clause 26.7, the
Trustee must use reasonable endeavours to include as a condition of the
sale that the purchaser will:
(a) (Consent): consent to the granting in favour of the Relevant Seller
of mortgages and other Security Interests subsequent to the
Mortgages and Collateral Security assigned to the purchaser;
(b) (Enter Priority Agreements): enter into priority agreements with the
Relevant Seller, in the form then specified in the Servicing
Standards, limiting the priority of the Mortgages and Collateral
Security assigned to the purchaser over any subsequent mortgages and
other Security Interests held by the Relevant Seller to the then
principal outstanding of the relevant Mortgage Loan and any
interest, fees and expenses on this amount; and
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(c) (Endeavour to obtain Borrower's consent): use reasonable endeavours
to obtain the consent of the providers of Mortgages and Collateral
Securities assigned to the purchaser, and any other relevant person,
to the grant of subsequent mortgages and other Security Interests to
the Relevant Seller.
26.9 Procedures Pending Winding-Up
During the period commencing on the Termination Date and ending on the
Termination Payment Date:
(a) (Trustee, Manager and Servicer must continue to perform duties): the
Trustee, the Servicer and the Manager must continue to perform their
respective roles in accordance with the Master Trust Deed and this
Deed in respect of the Assets of the Series Trust;
(b) (Collections to continue to be paid into Collections Account): all
Collections must continue to be deposited into the Collections
Account in accordance with this Deed;
(c) (Proceeds of sale): all proceeds arising from the sale of Assets of
the Series Trust must be deposited into the Collections Account and
must be treated for all purposes as if such proceeds were
Collections and the Manager must determine (and advise the Trustee)
which of such proceeds are to be treated as received on account of
principal amounts and which of such proceeds are to be treated as
received on account of Available Funds; and
(d) (Trustee must make payments): the Trustee must continue to make all
distributions, transfers and payments determined by the Manager as
required to be made in accordance with this Deed.
26.10 Costs on Winding-up of the Series Trust
On the Determination Date prior to the Termination Payment Date, the
Manager (in consultation with the Trustee) must in respect of the Series
Trust make provision for all Taxes, costs, charges, expenses, claims and
demands anticipated to become payable after the Termination Payment Date
in connection with or arising out of the administration or winding up of
the Series Trust, including the fees of any consultants whom the Trustee,
a Seller, the Servicer, the Security Trustee or the Manager have employed
in connection with the administration or winding up of the Series Trust.
Such costs (if any) will be treated as Expenses by the Manager in making
its determinations as to payments to be made on the Termination Payment
Date in accordance with clause 26.11.
26.11 Calculation of Final Distributions
On the Determination Date prior to the Termination Payment Date, the
Manager must determine how the amounts standing to the credit of the
Collections Account (other than amounts, if any, in respect of Cash
Advance Deposit or Seller Deposit) are to be distributed and must make
such determination in accordance with the provisions of this Deed for
payments and allocations of principal amounts and Available Income
Amounts. As soon as practicable after making such determinations, the
Manager must notify the Trustee of the allocations and payments to be made
on the Termination Payment Date in accordance with this Deed.
26.12 Final Distributions
On the Termination Payment Date, the Trustee must make the payments that
the Manager directs it to make pursuant to clause 26.11.
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26.13 Insufficient Funds
If the Trustee has insufficient funds to make the payments required to be
made under clause 26.12 to the Securityholders in full, the Trustee will
distribute the amount available to the Trustee in accordance with
(including the order of priority specified in) clause 10.3 in the case of
the capital of the Series Trust and clauses 10.2 in the case of the income
of the Series Trust.
26.14 Excess Funds
If following the distribution of the amounts required to be distributed by
the Trustee to Securityholders pursuant to clause 26.12 the Trustee holds
any excess funds or other Assets of the Series Trust, the Trustee must
immediately distribute such funds or Assets to the Residual Unitholder.
26.15 Distribution to Residual Unitholder in Specie
On the occurrence of an event referred to in paragraph (c)(i) of the
definition of Termination Date, the Trustee must immediately after
deducting any amount paid or provided for pursuant to clause 26.12,
distribute the Assets of the Series Trust in full in specie to the
Residual Unitholder. The Residual Unitholder must take all steps necessary
on its part in order to enable the Trustee to comply with this clause
26.15 and will reimburse the Trustee on demand for all expenses payable in
connection with such transfer.
26.16 Terms of In Specie Distributions
Any in specie distribution pursuant to clause 26.15 will be without
recourse to the Trustee and without representation or warranty by the
Trustee.
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27. General
27.1 Required Credit Rating
For the purposes of the Master Trust Deed in so far as it relates to the
Series Trust:
(a) (Xxxxx'x): the Required Credit Rating required by Xxxxx'x in respect
of Authorised Short-Term Investments of the Series Trust is a
short-term rating of P1 or such other rating as is agreed between
the Manager, the Trustee and Xxxxx'x;
(b) (S&P): the Required Credit Rating required by S&P in respect of
Authorised Short-Term Investments of the Series Trust is a
short-term rating of A-1+ or such other rating as is agreed between
the Manager, the Trustee and S&P; and
(c) (Fitch): the Required Credit Rating required by Fitch in respect of
Authorised Short-Term Investments of the Series Trust is a
short-term rating of F1 or such other rating as is agreed between
the Manager, the Trustee and Fitch.
27.2 Distribution of information
(a) (Quarterly Certificate):The Manager will on or before the date which
is 1 Business Day before each Quarterly Distribution Date send to
the Trustee, the Principal Paying Agent and the Class A-1 Note
Trustee, the Quarterly Certificate.
(b) (Monthly Certificate): The Manager will on or before the date which
is 1 Business Day before each Monthly Distribution Date send to the
Rating Agencies and the Trustee the Monthly Certificate.
(c) (Other Information): The Manager will on or before the date which is
1 Business Day before each Quarterly Distribution Date send to the
Rating Agencies, such
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information as they require:
(i) from the Quarterly Certificate; and
(ii) the Pool Performance Data (if available) (and the Manager will
send the same information to the Trustee).
27.3 Electronic Reporting of Pool Performance Data
Prior to each Quarterly Distribution Date, the Manager (or a person
nominated by the Manager) must prepare and arrange for the publication by
Reuters and/or Bloomberg, L.P. (or another similar electronic medium) of
the Pool Performance Data (if available) in respect of the Collection
Period just ended in a format similar to that used by other
mortgage-backed securities issuers in the Australian market. The Manager
is not liable to any person in any manner for the acts or omissions of the
person nominated by the Manager for the purposes set out in this clause
27.3.
27.4 Claim for Damages
Where this Deed provides for damages to be payable by a Seller, the
Servicer or the Manager:
(a) (Claim must be in writing): a written notice of a claim for damages
must be provided to the relevant party by the Trustee;
(b) (Claim must specify the amount of damages): such notice must specify
the amount of damages claimed and how such amount has been
determined by reference to the loss incurred as a result of the
breach leading to the claim for damages; and
(c) (Trustee must act on instructions): the Trustee in preparing a
notice in accordance with clauses 27.4(a) and (b) will act on the
instructions of the Manager (in the case of a claim against a Seller
or the Servicer) or take expert advice, if necessary (in the case of
a claim against the Manager).
27.5 Allocation of Damages
If an amount is payable to the Trustee by the Servicer, a Seller or the
Manager for a breach of a representation, warranty or obligation under the
Master Trust Deed or this Deed or for other damages, the Manager will
determine what portion of such amount is to be treated as Other Principal
Amounts and what portion of such amount is to be treated as Other Income
Amounts. On each Determination Date the Manager must notify the Trustee of
its allocation, in accordance with the foregoing, of such payment received
(if any) in the Collection Period just ended.
27.6 Additional Expenses
Pursuant to clause 16.11 of the Master Trust Deed, the Expenses are
incorporated into and form part of the expenses of the Series Trust for
which the Trustee is entitled to be indemnified out of the Assets of the
Series Trust.
27.7 Form of Transfers and Certificates
For the purposes of the Master Trust Deed insofar as it relates to the
Series Trust:
(a) (Security Certificate): the form of the Security Certificate for A$
Securities is as specified in Schedule 6; and
(b) (Security Transfer): the form of the Security Transfer for A$
Securities is as specified in Schedule 7.
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27.8 Incur Costs Without Approval
Pursuant to clause 16.26 of the Master Trust Deed, the Trustee may do such
things, take such actions and incur such expenses without the consent of
the Manager (including the appointment of advisers) as it believes
necessary (acting reasonably) in determining whether a particular event
under the Transaction Documents in relation to the Series Trust is having,
or will have, an Adverse Effect where such determination is a necessary
pre-condition for the Trustee to exercise its rights under any Transaction
Documents.
27.9 Adverse Effect
The Manager and the Servicer acknowledge that:
(a) (Determination without consent): an Adverse Effect may be determined
by the Trustee without the consent of the Manager provided such
determination is a necessary pre-condition of the Trustee exercising
its rights under a Transaction Document;
(b) (Notice): the Trustee is required to determine an Adverse Effect or
to provide the notices referred to in this Deed in respect of a
determination of Adverse Effect only if it is actually aware of the
facts giving rise to the Adverse Effect; and
(c) (Trustee may rely): in making those determinations, the Trustee will
seek and rely conclusively on advice given to it by its advisers in
the manner contemplated in clause 16.6 of the Master Trust Deed.
27.10 Notification to Rating Agencies of Redemption of Securities
The Manager will promptly notify each of the Rating Agencies of the
redemption (or deemed redemption) or discharge in full of a Class of
Securities.
27.11 Further Support Facilities
Upon the termination of a Liquidity Facility Agreement, a Standby Redraw
Facility Agreement or a Hedge Agreement, and subject to clause 29.5 of
this Deed and clause 16.5 of the Master Trust Deed, and without limiting
the Trustee's powers under clause 16 of the Master Trust Deed, the Trustee
as trustee of the Series Trust must if requested by the Manager, with
prior written confirmation from the Rating Agencies that the following
will not result in a reduction, qualification or withdrawal of the credit
ratings then assigned by them to the Securities, enter into a substitute
Liquidity Facility Agreement, Redraw Facility Agreement or Hedge Agreement
(as the case may be) with such parties and upon such terms as are
specified by the Manager.
27.12 Supplementary Trustee Powers
Without limiting the generality of clause 16.1 of the Master Trust Deed or
any other provision of the Master Trust Deed, but subject to the
limitations imposed on the Trustee pursuant to the Master Trust Deed, the
Trustee has full power to do the following (which powers are to be
construed as separate and independent powers):
(a) (Depository): to deliver or lodge the Class A-1 Notes, or arrange
for the Class A-1 Notes to be delivered or lodged, with the
Depository or its nominee;
(b) (Payment direction): where a person owes an amount to the Trustee,
to direct that debtor to make that payment to another person on
behalf of the Trustee, including directing payments due in respect
of the Securities to be made to the Securityholders;
(c) (Currency conversion): to convert currencies on such terms and
conditions as the
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Manager thinks fit and that are acceptable to the Trustee acting
reasonably;
(d) (Stock exchange): to list and maintain the listing of the Class A-1
Notes with any applicable regulatory authority to enable trading of
the Class A-1 Notes on any stock exchange;
(e) (Class A-1 Note Trustee): to appoint the Class A-1 Note Trustee;
(f) (Agent Bank): to appoint the Agent Bank;
(g) (Paying Agent): to appoint the Principal Paying Agent and each other
Paying Agent;
(h) (Class A-1 Note Registrar): to appoint the Class A-1 Note Registrar;
(i) (Hold Assets Other Trusts): if provided for in any Transaction
Document, to hold any property or any interest in any property both
as trustee of the Series Trust and as trustee on behalf of one or
more persons in accordance with the provisions of the relevant
Transaction Document;
(j) (Additional Fees and Expenses): in accordance with the Transaction
Documents, to pay or reimburse to any person any fees, liabilities,
losses, costs, claims, actions, damages, expenses, demands, charges,
stamp duties and other Taxes in relation to the exercise by the
Trustee of the above powers; and
(k) (Incidental Powers): with the written agreement of the Manager
(which agreement is not to be unreasonably withheld), to do all such
things incidental to or necessary or convenient to be done for, or
in connection with, any of the above powers.
27.13 Xxxxxxx's power to delegate
For the purposes of clause 16.4(p) of the Master Trust Deed, and
notwithstanding any limitation contained in the Master Trust Deed the
Trustee may delegate any obligation it has to receive or make payments
denominated in US$ to a Paying Agent notwithstanding that such obligation
may be a material obligation and, in respect of such delegation, but
subject to clause 28.3, the Trustee is not liable for the acts or
omissions of that Paying Agent.
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28. Limitation of Trustee's duties
28.1 Trustee May Rely
(a) (Entitled to rely): The Trustee is entitled to conclusively rely on
(unless actually aware to the contrary) and is not required to
investigate the accuracy of:
(i) (Contents of Sale Notice): the contents of a Sale Notice given
to it by a Seller and any representation as to whether a
Mortgage Loan meets the Eligibility Criteria;
(ii) (Quarterly Certificate): the contents of a Quarterly
Certificate;
(iii) (Calculations): any calculations made by a Seller, the
Servicer or the Manager under this Deed including without
limitation, the calculation of amounts to be paid to, or
charged against, any Securityholder or the Seller on specified
dates;
(iv) (Collections): the amount of, or allocation of, Collections;
(v) (Certificates): the contents of certificates provided to the
Trustee under this Deed and any certificates given by the
Manager or the Servicer
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pursuant to the Quarterly Certificate or otherwise pursuant to
subsequent amendments to this Deed or the Master Trust Deed;
and
(vi) (Class A-1 Note Trustee Directions): all directions or
instructions given to it by the Class A-1 Note Trustee in
accordance with the Class A-1 Note Trust Deed.
(b) (Manager Default): The Trustee is not liable for any Manager Default
or Servicer Default or Perfection of Title Event.
28.2 No Duty to Investigate
The Trustee has no duty, and is under no obligation, to investigate
whether a Servicer Default or a Perfection of Title Event has occurred
other than where it has actual notice that such event has occurred.
28.3 Trustee not Liable
Subject to clause 16.9 of the Master Trust Deed, but notwithstanding any
other provision of the Master Trust Deed or any other Transaction
Document, the Trustee has no liability (other than in its capacity as
trustee of the Series Trust) for any act or omission by a Depository (or
any nominee of a Depository), the Class A-1 Note Trustee, the [London
Stock Exchange Limited], the Class A-1 Note Registrar, the Agent Bank or
any Paying Agent except to the extent that act or omission was caused or
contributed to by the Trustee's fraud, negligence or wilful default.
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29. Trustee's limitation of liability
29.1 Limitation on Trustee's liability
The Trustee enters into this Deed only in its capacity as trustee of the
Series Trust and in no other capacity. A liability incurred by the Trustee
acting in its capacity as trustee of the Series Trust arising under or in
connection with this Deed is limited to and can be enforced against the
Trustee only to the extent to which it can be satisfied out of Assets of
the Series Trust out of which the Trustee is actually indemnified for the
liability. This limitation of the Trustee's liability applies despite any
other provision of this Deed (other than clause 29.3) and extends to all
liabilities and obligations of the Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or transaction
related to this Deed.
29.2 Claims against Trustee
The parties other than the Trustee may not sue the Trustee in respect of
liabilities incurred by the Trustee, acting in its capacity as trustee of
the Series Trust, in any capacity other than as trustee of the Series
Trust including seeking the appointment of a receiver (except in relation
to the Assets of the Series Trust), or a liquidator, an administrator or
any similar person to the Trustee or prove in any liquidation,
administration or similar arrangements of or affecting the Trustee (except
in relation to the Assets of the Series Trust).
29.3 Breach of trust
The provisions of this clause 29 will not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the Master Trust Deed, this Deed or any other Transaction Document
in relation to the Series Trust or by operation of law there is a
reduction in the extent of the Trustee's indemnification out of the Assets
of the Series Trust, as a result of the Trustee's fraud, negligence or
wilful default.
29.4 Acts or Omissions
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents
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for performing a variety of obligations relating to the Series Trust. No
act or omission of the Trustee (including any related failure to satisfy
its obligations and any breach of representations and warranties under
this Deed) will be considered fraudulent, negligent or a wilful default
for the purpose of clause 29.3 to the extent to which the act or omission
was caused or contributed to by any failure by any Relevant Party or any
other person appointed by the Trustee under a Transaction Document (other
than a person whose acts or omissions the Trustee is liable for in
accordance with any Transaction Document) to fulfil its obligations
relating to the Series Trust or by any other act or omission of a Relevant
Party or any other such person.
29.5 No obligation
The Trustee (both in its capacity as trustee of the Series Trust and
trustee of the CBA Trust) is not obliged to enter into any commitment or
obligation under this Deed or any Transaction Document (including incur
any further liability) unless the Trustee's liability is limited in a
manner which is consistent with this clause 29 or otherwise in a manner
satisfactory to the Trustee (both in its capacity as trustee of the Series
Trust and trustee of the CBA Trust) in its absolute discretion.
29.6 CBA Trust
Notwithstanding clause 29.1, the Trustee also enters into this Deed in its
capacity as trustee of the CBA Trust. Clauses 29.1 to 29.5 (inclusive) do
not apply to the extent, and only to the extent, that the Trustee enters
into this Deed in its capacity as Trustee of the CBA Trust and has
liabilities in relation to the CBA Trust. The Trustee's liability in
relation to the CBA Trust is limited as set out in clause 2.16. Nothing in
this clause 29.6 shall be construed as imposing on the Trustee any greater
liability under this Deed than as is set out in clauses 29.1 to 29.5
(inclusive) and clause 2.16.
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30. Consumer Credit Code
30.1 Breach of Consumer Credit Code
Where the Trustee is held liable for breaches under the Consumer Credit
Code, the Trustee must seek relief initially under any indemnities
provided to it by the Manager, the Servicer or a Seller before exercising
its rights to recover against any Assets of the Series Trust. If any claim
under such an indemnity is not satisfied within 3 Business Days of it
being made, the Trustee is entitled to exercise its right of indemnity out
of the Assets of the Series Trust.
30.2 Right of Indemnity - Consumer Credit Code
(a) (Trustee to be indemnified against Penalty Payments): Without
prejudice to the right of indemnity given by law to trustees, and
without limiting any other provision of this Deed, the Trustee will
be indemnified out of the Series Trust, free of any set-off or
counterclaim, against all Penalty Payments which the Trustee is
required to pay personally or in its capacity as trustee of the
Series Trust and arising in connection with the performance of its
duties or exercise of its powers under this Deed in relation to the
Series Trust.
(b) (Indemnity not affected): The Trustee's right to be indemnified in
accordance with clause 30.2(a) applies notwithstanding any
allegation that the Trustee incurred such Penalty Payment as a
result of its negligence, fraud or wilful default or any other act
or omission which may otherwise disentitle the Trustee to be so
indemnified. However, the Trustee is not entitled to that right of
indemnity to the extent that there is a determination by a relevant
court of negligence, fraud or wilful default by the Trustee
(provided that, until such determination, the Trustee is entitled to
that right of indemnity but must, upon such determination, repay to
the Series Trust any amount paid to it under this clause 30.2). The
Trustee may rely on others in relation
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to compliance with the Consumer Credit Code.
(c) (Overrides other provisions): This clause 30.2 overrides any other
provision of this Deed.
(d) (Servicer to be credit provider): The Trustee nominates the Servicer
as the credit provider for the purposes of the regulation 75 of the
Consumer Credit Code (Western Australia) with respect to Approved
Financial Assets acquired by the Series Trust from the Sellers. The
Servicer agrees to be a credit provider for the purposes of
regulation 75 of the Consumer Credit Code (Western Australia) in
relation to those Approved Financial Assets.
(e) (Servicer to indemnify prior to a Perfection of Title Event): The
Servicer indemnifies the Trustee in relation to the Series Trust,
free of any set-off or counterclaim, against all Penalty Payments
which the Trustee is required to pay personally or in its capacity
as trustee of the Series Trust and arising in connection with the
performance of its duties or exercise of its powers under this Deed
in relation to the Series Trust where the events giving rise to the
Penalty Payment occurs prior to a Perfection of Title Event.
(f) (Servicer to indemnify after a Perfection of Title Event): The
Servicer indemnifies the Trustee in relation to the Series Trust,
free of any set-off or counterclaim, against all Penalty Payments
which the Trustee is required to pay personally or in its capacity
as trustee of the Series Trust and arising in connection with the
performance of its duties or exercise of its powers under this Deed
in relation to the Series Trust to the extent that they arise as the
result of a Servicer Default (whether or not waived by the Trustee)
or any other failure of the Servicer to comply with its obligations
under this Deed or a Transaction Document where the events giving
rise to the Penalty Payment occur after a Perfection of Title Event.
(g) (Servicer indemnifies first): The Trustee will call upon the
indemnity under paragraph (d) or (e), as the case may be, before it
calls upon the indemnity in paragraph (a). If any such claim is not
satisfied within 3 Business Days of the claim being made, the
Trustee may (without prejudice to its rights under any indemnity
under paragraph (d) or (e)) exercise its right of indemnity referred
to in paragraph (a).
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31. Notices
31.1 Method of Delivery
Subject to clause 31.3, any notice, request, certificate, approval,
demand, consent or other communication to be given under this Deed:
(a) (Execution): must be signed by an Authorised Officer of the party
giving the same;
(b) (In writing): must be in writing; and
(c) (Delivery): must be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the addressee;
or
(iii) sent by facsimile to the facsimile number of the addressee,
notified by that addressee from time to time to the other parties to
this Deed as its address for service pursuant to this Deed.
121
31.2 Deemed Receipt
A notice, request, certificate, demand, consent or other communication
under this Deed is deemed to have been received:
(a) (Delivery): where delivered in person, upon receipt;
(b) (Post): where sent by post, on the 3rd (7th if outside Australia)
day after posting; and
(c) (Fax): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that the
facsimile was sent in its entirety to the facsimile number of the
recipient.
However, if the time of deemed receipt of any notice is not before 5.30 pm
local time on a Business Day at the address of the recipient it is deemed
to have been received at the commencement of business on the next Business
Day.
31.3 Notice to Investors
Any notice required or permitted to be given to an Investor pursuant to
this Deed must be given, and will be deemed to be received:
(a) (Residual Unitholder and A$ Securityholder): in the case of notices
to a Residual Unitholder or to a Securityholder in respect of an A$
Security, in accordance with clause 24.4 of the Master Trust Deed;
and
(b) (Class A-1 Noteholder): in the case of notices to a Class A-1
Noteholder, in accordance with condition 11.1 of the Class A-1 Note
Conditions.
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32. Confidentiality
32.1 General Restriction
Subject to clause 32.2, the Trustee and the Servicer (if not a Seller) and
the Manager (if not a Related Body Corporate of a Seller) must at all
times keep and ensure that its officers, employees, consultants, advisers
and agents keep confidential and not divulge to any person (other than to
any of its officers, employees, consultants, advisers and agents who
require such information to enable them to properly carry out their
duties) or make or cause any public announcement or other disclosure of or
in relation to:
(a) the terms of this Deed or any other Transaction Document (including
any written or oral agreements, negotiations or information in
relation to this Deed); and
(b) any document or information provided to such party under or in
connection with this Deed which is confidential, including without
limitation any information in connection with any Mortgage Loan or
any Borrower,
without the prior written consent of the other parties, which consent may
be given or withheld or given with conditions in their discretion.
32.2 Exceptions
The limitation in clause 32.1 does not apply to the issue by the Manager
of any information memorandum, prospectus or registration statement in
respect of any Securities or to any disclosure or announcement of
information which:
(a) (Law): is required by law;
122
(b) (Stock Exchange or Regulatory Authority): is required by any stock
exchange or regulatory authority (including, without limitation, the
United States Securities & Exchange Commission and the United
Kingdom Financial Services Authority);
(c) (Legal Proceedings): is in connection with legal proceedings
relating to this Deed, any Transaction Document or any Mortgage
Document;
(d) (Information Available): is in respect of information generally and
publicly available (including the electronic reporting of Pool
Performance Data under clause 27.3);
(e) (Obligations): is required in order for the Trustee, the Servicer or
the Manager, as applicable, to perform its obligations and exercise
its powers under any Transaction Documents or any transactions
entered into as contemplated by the Transaction Documents;
(f) (APRA): is required by the Australian Prudential Regulation
Authority or any replacement prudential authority in connection with
its prudential supervision of banks; or
(g) (Rating Agencies): is reasonably required by a Rating Agency in
connection with its rating of the Securities.
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33. Miscellaneous
33.1 Amendments
The parties to this Deed may amend, add to or revoke any provision of this
Deed only in accordance with the provisions of clause 25 of the Master
Trust Deed provided that any amendment, addition or revocation that
effects a Payment Modification (as defined in the Class A-1 Note Trust
Deed) may not be made unless the consent has first been obtained of each
Class A-1 Noteholder to such Payment Modification.
33.2 Governing Law
This Deed is governed by the laws of the State of New South Wales.
33.3 Jurisdiction
(a) (Submission to jurisdiction): Each of the Trustee, the Manager, the
Servicer, the Sellers, the Residual Unitholder and each
Securityholder, irrevocably submits to and accepts, generally and
unconditionally, the non-exclusive jurisdiction of the courts and
appellate courts of the State of New South Wales with respect to any
legal action or proceedings which may be brought at any time
relating in any way to this Deed.
(b) (Waiver of inconvenient forum): Each of the Trustee, the Manager,
the Servicer, the Sellers, the Residual Unitholder and each
Noteholder, irrevocably waives any objection it may now or in the
future have to the venue of any such action or proceedings and any
claim it may now or in the future have that any such action or
proceeding has been brought in an inconvenient forum.
33.4 Notify Rating Agencies
The Trustee and the Manager must promptly notify the Rating Agencies of
the occurrence of any Trustee Default, Manager Default, Servicer Default,
Perfection of Title Event or Document Transfer Event of which they are
aware.
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33.5 Severability of Provisions
In the event that any provision of this Deed is prohibited or
unenforceable in any jurisdiction such provision will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Deed or affecting the validity or enforceability of such provision in any
other jurisdiction.
33.6 Counterparts
This Deed may be executed in any number of counterparts and all of such
counterparts taken together will be deemed to constitute one and the same
instrument.
33.7 No Revocation of Power of Attorney
Each attorney, by signing this Xxxx, declares that he or she has not
received any notice of the revocation of the power of attorney under which
he or she signs this Deed.
33.8 Certifications
Any document or thing required to be certified by a party to the Deed will
be certified by an Authorised Officer of that party.
33.9 Payments
All payments hereunder to any party to this Deed will be made to such
account as the party to which such payment is to be made may specify in
writing to the party making such payment.
33.10 Waiver
No waiver by any party of any provision of or right of such party under
this Deed will be effective unless it is in writing signed by an
Authorised Officer of such party and such waiver will be effective only in
the specific instance and for the specific purpose for which it was given.
No failure or delay by any party to exercise any right under this Deed or
to insist on strict compliance by any other party to this Deed with any
obligation under this Deed, and no custom or practice of the parties at
variance with the terms of this Deed, will constitute a waiver of such
party's right to demand exact compliance with this Deed.
33.11 Entire Understanding
Except as specifically stated otherwise in this Deed, this Deed sets forth
the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by
this Deed. This Deed may not be modified, amended, waived or supplemented
or assigned except as expressly provided in this Deed.
33.12 Survival of Indemnities
The indemnities contained in this Deed are continuing obligations of the
party giving such indemnity, separate and independent from the other
obligations of such party and will survive the termination of this Deed.
33.13 Successors and Assigns
This Deed will be binding upon and inure to the benefit of the parties to
this Deed and their respective successors and assigns.
33.14 Moratorium Legislation
To the fullest extent permitted by law, the provisions of all existing or
future laws which operate or may operate directly or indirectly to lessen
or otherwise vary the obligations of any
124
party under this Deed or to delay, curtail or otherwise prevent or
prejudicially affect the exercise by any party of any of its rights,
remedies or powers under this Deed are expressly negatived and excluded.
125
Schedule 1
Form of Sale Notice
To: Perpetual Trustee Company Limited, ABN 42 000 001 007 (the "Trustee")
Address: Level 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX, 0000
Attention: Manager, Securitisation Services
Copy to:
Securitisation Advisory Services Pty. Limited, ABN 88 064 133 946
(the "Manager")
Level 8
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Series [ ] Medallion Trust
Sale Notice
We refer to the Master Trust Deed (the "Master Trust Deed") dated 8 October 1997
between the Trustee and the Manager, as amended from time to time, and to the
Series Supplement (the "Series Supplement") dated [ ] between Commonwealth
Bank of Australia, ABN 48 123 123 124, Colonial State Bank, the Manager and the
Trustee. Terms defined in the Series Supplement have the same meaning in this
Sale Notice.
This is a Sale Notice pursuant to clause 4.2 of the Series Supplement. [Name of
Seller] ("Seller") hereby offers to assign to the Trustee with effect from [
] (the "Cut-Off Date"):
(a) each Mortgage Loan identified in the schedule accompanying this Sale
Notice;
(b) the Other Loans entered into from time to time in relation to the above
Mortgage Loans;
(c) the Mortgages in relation to the above Mortgage Loans;
(d) other Mortgages granted from time to time in relation to the above
Mortgage Loans;
(e) all Collateral Securities from time to time in relation to the above
Mortgage Loans;
(f) the Mortgage Receivables from time to time in relation to the above
Mortgage Loans;
(g) the Mortgage Insurance Policies in relation to the above Mortgage Loans
(other than the [ ] Mortgage Insurance Policy); and
(h) the Mortgage Documents from time to time in relation to the above Mortgage
Loans.
This offer may be accepted by the Trustee only by paying the Consideration to
the Seller on [ ] (the "Closing Date").
Both the Cut-Off Date and the Closing Date may be altered by the Manager giving
notice to the Trustee and the Seller, no later than 4 Business Days before the
then Closing Date, of the new date that is to be the Cut-Off Date or the Closing
Date (as the case may be). From the close of business on the Business Day which
is 4 Business Days before the then Closing Date neither the Cut-Off Date or the
Closing Date may be amended.
126
For and on behalf of
[Name of Seller]
--------------------------------
Authorised Officer
Date:
127
Schedule 2
Forms of Power of Attorney
(other than for Queensland and Western Australia)
THIS POWER OF ATTORNEY is made on [ ]
BY [Details of Relevant Seller] (the "Seller")
IN FAVOUR OF PERPETUAL TRUSTEE COMPANY LIMITED, ABN 42 000 001 007, a company
incorporated in the State of New South Wales and having an office at
Level 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX 2000 (the "Trustee").
RECITALS
A. The Trustee is the trustee, and the Manager is the manager, of the Series
Trust constituted pursuant to the Master Trust Deed and the Series
Supplement (as those terms are defined below).
B. Under the Series Supplement, the delivery to the Trustee of this Deed is a
condition of the Seller issuing an offer to assign Mortgage Loans to the
Trustee.
THIS DEED PROVIDES as follows:
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1. Interpretation
1.1 Definitions
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2 and any
person who derives a right directly or indirectly from an Attorney.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Trustee as trustee of the Series Trust and the Manager, as
amended from time to time.
"Series Supplement" means the Series Supplement dated [ ] between
Commonwealth Bank of Australia, ABN 48 123 123 124 Colonial State Bank,
the Manager and the Trustee.
"Mortgage Transfer" in relation to a Mortgage means a duly executed land
titles office transfer which, upon registration, is effective to transfer
the legal title to the Mortgage to the Trustee.
1.2 Interpretation
(a) In this Deed unless the contrary intention appears, the provisions
of clause 1.2 of the Series Supplement apply mutatis mutandis to
this Deed as if set out in this Deed in full.
(b) In this Deed all references to "Assets of the Series Trust",
"Mortgage Loans" and "Mortgage Transfers" shall be construed as
references to those things to the extent that the Seller has an
interest in them.
1.3 Series Supplement
Unless expressly defined in this Deed or a contrary intention appears,
words and expressions used in this Deed have the same meaning as in the
Series Supplement.
128
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2. Appointment and Powers
2.1 Appointment
With effect from the assignment to the Trustee of the Mortgage Loans in
accordance with the terms of the Series Supplement, the Seller appoints
the Trustee and any Authorised Officer from time to time of the Trustee
jointly and severally as its attorney with the right, subject to clause
2.2, to do in the name of the Seller and on its behalf everything
necessary or expedient to:
(a) (Mortgage Transfers): in relation to all Mortgage Transfers:
(i) execute, deliver, lodge and register any Mortgage Transfer
with any land titles office of any relevant Australian
jurisdiction;
(ii) execute, deliver, lodge and register with any land titles
office of any relevant Australian jurisdiction any other
documents which are referred to in any Mortgage Transfer or
which are ancillary or related to them or contemplated by
them;
(iii) execute, deliver, lodge and register with any land titles
office of any relevant Australian jurisdiction any document or
perform any act, matter or thing at its absolute discretion in
any way relating to the Seller's involvement in the
transactions contemplated by any Mortgage Transfer; and
(iv) give effect to the transactions contemplated by any Mortgage
Transfer, including, but not limited to, completing blanks and
making amendments, alterations or additions it considers
necessary or desirable;
(b) (Mortgage Loans): in relation to any Mortgage Loan which is part of
the Assets of the Series Trust, to exercise any rights of the Seller
to vary by notice to the Borrower the rate or amount of any interest
or fees payable by the Borrower under the Mortgage Loan;
(c) (Delegate): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any terms or
conditions that it thinks fit;
(d) (Sign Documents): sign, seal, deliver and execute and do (either
unconditionally or subject to any conditions that it thinks fit) all
deeds, arrangements, documents and things in respect of any of its
rights described in this Deed; and
(e) (Do Incidental Things): do anything incidental to or conducive to
the effective and expeditious exercise of its rights described in
this Deed.
2.2 Limitation on Exercise of Powers
The power of attorney conferred by clause 2.1 will be exercisable only on
the occurrence of a Perfection of Title Event.
--------------------------------------------------------------------------------
3. Consideration and Revocation
3.1 Consideration
This Deed is executed by the Seller for good and valuable consideration,
receipt of which the Seller hereby acknowledges.
129
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of each of
the Trustee and the Manager, the power of attorney granted under clause
2.1 of this Deed is irrevocable by the Seller and its successors and
assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed will
remain in full force and effect notwithstanding:
(a) (Insolvency): the occurrence of an Insolvency Event with respect to
the Seller;
(b) (Amendment): any waiver, replacement, amendment or variation of the
Master Trust Deed or the Series Supplement;
(c) (Delay): any delay, laches, acquiescence, mistake, act or omission
by any Attorney (including, without limitation, any Trustee Default
or Manager Default); or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause 3.3 could or might operate to
prejudice, release or otherwise affect the rights of an Attorney
under this Xxxx.
--------------------------------------------------------------------------------
4. Delegates
4.1 Obligation
Where a delegation is made by an Attorney under clause 2, the following
will apply:
(a) (Vary, suspend etc.): the Attorney may at any time by notice in
writing vary, suspend or revoke a delegation made under clause 2;
(b) (Attorney retains any rights delegated): a right delegated by the
Attorney may continue to be exercised or performed by the Attorney
notwithstanding the delegation of that right;
(c) (Effect of acts delegated): any act or thing done within the scope
of a delegation while the delegation is in force:
(i) has the same effect as if it had been done by the Attorney;
and
(ii) will not be invalidated by reason of a later revocation or
variation of the delegation; and
(d) (Opinion of delegate): if the exercise or performance of a right by
the Attorney is dependant upon the opinion, belief or state of mind
of the Attorney in relation to a matter and that right is delegated
by the Attorney, the delegate may, unless the contrary intention
appears, exercise or perform the right based upon his or her own
opinion, belief or state of mind (as the case may require) in
relation to the matter.
4.2 Revocation of nomination
The Trustee may at any time revoke or suspend any appointment of a nominee
or an Attorney pursuant to clause 2.
130
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5. Miscellaneous
5.1 Suspension of Seller's rights
The Seller must not, after being notified in writing by any Attorney that
an Attorney intends to exercise any right conferred on it by this Deed
(and provided that such right is then and remains exercisable), exercise
that right without the written consent of the Trustee.
5.2 Ratification
The Seller will at all times ratify and confirm whatever any Attorney
lawfully does, or causes to be done, in exercising its rights described in
this Deed.
5.3 Conflict of Interest
Any Attorney may exercise any right notwithstanding that it constitutes a
conflict of interest or duty.
5.4 Seller Bound
The Seller and any person (including, but not limited to, a substitute or
assign) claiming under the Seller are bound by anything an Attorney does
in the lawful exercise of its rights described in this Deed.
5.5 Third party dealings
In respect of dealings by any person in good faith with an Attorney:
(a) (Evidence that power not revoked): that person may accept a written
statement signed by any Attorney to the effect that the power of
attorney granted under this Xxxx has not been revoked as conclusive
evidence of that fact; and
(b) (No duty to enquire): if the Attorney executes any right granted to
it by this Deed, that person is not bound to enquire as to whether
the right is properly exercised or whether any circumstance has
arisen to authorise the exercise of that right.
5.6 Indemnity
The Seller will indemnify any Attorney from and against all actions,
suits, claims, demands, damages, liabilities, losses, costs and expenses
that may be made or bought against or suffered or incurred by any such
Attorney arising out of or in connection with the lawful exercise of any
of its rights described in this Deed.
5.7 Stamping and Registration
The Seller will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable law
and the Seller authorises any Attorney to stamp and register this Deed on
behalf of the Seller.
5.8 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 5.7 will
be paid by the Seller within a reasonable time after demand for payment is
made.
--------------------------------------------------------------------------------
6. Governing Law
This Deed is governed by and construed in accordance with the laws of the
State of New South
131
Wales and the Seller irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of the State of New South Wales
and any courts of appeal from any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of [Name of Relevant )
Seller] is affixed in accordance )
with its constitution in the )
presence of: )
------------------------- -----------------
Secretary Director
132
Schedule 3
Form of Power of Attorney
(For Queensland)
THIS POWER OF ATTORNEY is made on [ ]
BY [Details of Relevant Seller] (the "Seller")
IN FAVOUR OF PERPETUAL TRUSTEE COMPANY LIMITED, ABN 42 000 001 007, a
company incorporated in the State of New South Wales and
having an office at Level 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX
2000 (the "Trustee").
THIS DEED PROVIDES as follows:
--------------------------------------------------------------------------------
1. Interpretation
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2 and any
person who derives a right directly or indirectly from an Attorney.
"Authorised Officer" means in relation to the Trustee, a director,
secretary or any person whose title contains the word or words "manager"
or "chief executive officer" or a person performing the functions of any
of them.
"Mortgage Transfer" in relation to a mortgage in which the Seller has an
interest, means a duly executed land titles office transfer which, upon
registration, is effective to transfer the legal title to the mortgage to
the Trustee.
--------------------------------------------------------------------------------
2. Appointment and Powers
2.1 Appointment
The Seller appoints the Trustee and any Authorised Officer from time to
time of the Trustee jointly and severally as its attorney with the right,
to do in the name of the Seller and on its behalf everything necessary or
expedient to:
(a) (Mortgage Transfers): In relation to all Mortgage Transfers:
(i) execute, deliver, lodge and register any Mortgage Transfer
with any land titles office of any relevant Australian
jurisdiction;
(ii) execute, deliver, lodge and register with any land titles
office of any relevant Australian jurisdiction any other
documents which are referred to in any Mortgage Transfer or
which are ancillary or related to them or contemplated by
them;
(iii) execute, deliver, lodge and register with any land titles
office of any relevant Australian jurisdiction any document or
perform any act, matter or thing at its absolute discretion in
any way relating to the Seller's involvement in the
transactions contemplated by any Mortgage Transfer; and
(iv) give effect to the transactions contemplated by any Mortgage
Transfer, including, but not limited to, completing blanks and
making amendments, alterations or additions it considers
necessary or desirable;
133
(b) (Mortgage Loans): in relation to any mortgage loan which is an asset
of the Seller, to exercise any rights of the Seller to vary by
notice to the borrower with respect to the mortgage loan the rate or
amount of any interest or fees payable by that borrower under the
mortgage loan;
(c) (Delegate): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any terms or
conditions that it thinks fit;
(d) (Sign Documents): sign, seal, deliver and execute and do (either
unconditionally or subject to any conditions that it thinks fit) all
deeds, arrangements, documents and things in respect of any of its
rights described in this Deed; and
(e) (Do Incidental Things): do anything incidental to or conducive to
the effective and expeditious exercise of its rights described in
this Deed.
--------------------------------------------------------------------------------
3. Consideration and Revocation
3.1 Consideration
The Seller acknowledges that it has received good and valuable
consideration for the grant of this Deed.
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of the
Trustee, the power of attorney granted under clause 2.1 of this Deed is
irrevocable by the Seller and its successors and assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed will
remain in full force and effect notwithstanding:
(a) (Insolvency): the insolvency of, or the occurrence of any other
analogous event with respect to, the Seller;
(b) (Amendment): any waiver, replacement, amendment or variation of any
document (with or without the consent of the Seller);
(c) (Delay): any delay, laches, acquiescence, mistake, act or omission
(including, without limitation, any default by the Trustee of any
obligation that it owes to any person) by any Attorney; or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate to
prejudice, release or otherwise affect the rights of an Attorney
under this Deed.
--------------------------------------------------------------------------------
4. Delegates
4.1 Obligation
Where a delegation is made by an Attorney under clause 2, the following
will apply:
(a) (Vary, suspend etc.): the Attorney may at any time by notice in
writing vary, suspend or revoke a delegation made under clause 2;
(b) (Attorney retains any rights delegated): a right delegated by the
Attorney may continue to be exercised or performed by the Attorney
notwithstanding the
134
delegation of that right;
(c) (Effect of acts delegated): any act or thing done within the scope
of a delegation while the delegation is in force:
(i) has the same effect as if it had been done by the Attorney;
and
(ii) will not be invalidated by reason of a later revocation or
variation of the delegation; and
(d) (Opinion of delegate): if the exercise or performance of a right by
the Attorney is dependant upon the opinion, belief or state of mind
of the Attorney in relation to a matter and that right is delegated
by the Attorney, the delegate may, unless the contrary intention
appears, exercise or perform the right based upon his or her own
opinion, belief or state of mind (as the case may require) in
relation to the matter.
4.2 Revocation of nomination
The Trustee may at any time revoke or suspend any appointment of a nominee
or an Attorney pursuant to clause 2.
--------------------------------------------------------------------------------
5. Miscellaneous
5.1 Suspension of Seller's rights
The Seller must not, after being notified in writing by any Attorney that
an Attorney intends to exercise any right conferred on it by this Deed
(and provided that such right is then and remains exercisable), exercise
that right without the written consent of the Trustee.
5.2 Ratification
The Seller will at all times ratify and confirm whatever any Attorney
lawfully does, or causes to be done, in exercising its rights described in
this Deed.
5.3 Conflict of Interest
Any Attorney may exercise any right notwithstanding that it constitutes a
conflict of interest or duty.
5.4 Seller Bound
The Seller and any person (including, but not limited to, a substitute or
assign) claiming under the Seller are bound by anything an Attorney does
in the lawful exercise of its rights described in this Deed.
5.5 Third party dealings
In respect of dealings by any person in good faith with an Attorney:
(a) (Evidence that power not revoked): that person may accept a written
statement signed by any Attorney to the effect that the power of
attorney granted under this Xxxx has not been revoked as conclusive
evidence of that fact; and
(b) (No duty to enquire): if the Attorney executes any right granted to
it by this Deed, that person is not bound to enquire as to whether
the right is properly exercised or whether any circumstance has
arisen to authorise the exercise of that right.
135
5.6 Indemnity
The Seller will indemnify any Attorney from and against all actions,
suits, claims, demands, damages, liabilities, losses, costs and expenses
that may be made or bought against or suffered or incurred by any such
Attorney arising out of or in connection with the lawful exercise of any
of its rights described in this Deed.
5.7 Stamping and Registration
The Seller will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable law
and the Seller authorises any Attorney to stamp and register this Deed on
behalf of the Seller.
5.8 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 5.7 will
be paid by the Seller within a reasonable time after demand for payment is
made.
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6. Governing Law
This Deed is governed by and construed in accordance with the laws of the
State of New South Wales and the Seller irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of the State of
New South Wales and any courts of appeal from any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of [Details of )
Relevant Seller] is affixed in )
accordance with its constitution in )
the presence of: )
-------------------------------- -----------------------
Secretary Director
136
Schedule 4
Form of Power of Attorney
(for Western Australia)
THIS POWER OF ATTORNEY is made on [ ]
BY [Details of Relevant Seller] (the "Grantor")
IN FAVOUR OF PERPETUAL TRUSTEE COMPANY LIMITED, ABN 42 000 001 007, a
company incorporated in the State of New South Wales and
having an office at Level 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX
2000 (the "Grantee").
THIS DEED PROVIDES as follows:
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1. Interpretation
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2.
"Authorised Officer" means:
(a) in relation to the Grantee, a director, secretary or any person
whose title contains the word or words "manager" or "chief executive
officer" or a person performing the functions of any of them; and
(b) in relation to the Manager, any person appointed by the Manager to
act as an Authorised Officer of the Manager for the purposes of this
Deed.
"Manager" means Securitisation Advisory Services Pty. Limited, ABN 88 064
133 946.
"Mortgage" means a mortgage over real property, located in the State of
Western Australia and registered under the Transfer of Land Act 1893,
which is granted in favour of the Grantor and in which the Grantee has
equitable title.
"Mortgage Transfer" in relation to a mortgage means a duly executed land
titles office transfer in respect of a Mortgage which, upon registration,
is effective to transfer the legal title to the Mortgage to the Grantee.
--------------------------------------------------------------------------------
2. Appointment and Powers
2.1 Appointment
The Grantor appoints the Grantee as its attorney with the right, to do in
the name of the Grantor and on its behalf everything necessary or
expedient to:
(a) (Mortgage Transfers):
(i) sell or transfer legal title in all or any Mortgages to the
Grantee;
(ii) execute, deliver, lodge and register any Mortgage Transfer
with any land titles office of any relevant Australian
jurisdiction;
(iii) execute, deliver, lodge and register with any land titles
office of any relevant Australian jurisdiction any other
documents which are referred
137
to in any Mortgage Transfer or which are ancillary or related
to them or contemplated by them;
(iv) execute, deliver, lodge and register with any land titles
office of any relevant Australian jurisdiction any document or
perform any act, matter or thing at its absolute discretion in
any way relating to the Grantor's involvement in the
transactions contemplated by any Mortgage Transfer; and
(v) give effect to the transactions contemplated by any Mortgage
Transfer, including, but not limited to, completing blanks and
making amendments, alterations or additions it considers
necessary or desirable;
(b) (Sign Documents): sign, seal, deliver and execute and do (either
unconditionally or subject to any conditions that it thinks fit) all
deeds, arrangements, documents and things in respect of any of its
rights described in this Deed;
(c) (Determine interest rates): determine the interest rate to be
charged on the mortgages which are the subject of any Mortgage
Transfer; and
(d) (Do Incidental Things): do anything incidental to or conducive to
the effective and expeditious exercise of its rights described in
this Deed.
--------------------------------------------------------------------------------
3. Consideration and Revocation
3.1 Consideration
The power of attorney granted under this Deed has been granted to secure a
proprietary interest of the Grantee in the Mortgages the subject of the
Mortgage Transfers and is given by the Grantor for good and valuable
consideration, receipt of which the Grantor hereby acknowledges.
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of each of
the Grantee and the Manager, the power of attorney granted under clause
2.1 of this Deed is irrevocable by the Grantor and its successors and
assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed will
remain in full force and effect notwithstanding:
(a) (Insolvency): the insolvency of, or the occurrence of any other
analogous event with respect to, the Grantor;
(b) (Amendment): any waiver, replacement, amendment or variation of any
document (with or without the consent of the Grantor);
(c) (Delay): any delay, laches, acquiescence, mistake, act or omission
(including, without limitation, any default by the Manager or
Grantee of any obligation that either owes to any person) by any
Attorney; or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate to
prejudice, release or otherwise affect the rights of an Attorney
under this Deed.
138
--------------------------------------------------------------------------------
4. Miscellaneous
4.1 Appointment of Sub-Attorneys
An Attorney may appoint from time to time any person or corporation as a
sub-attorney for any of the purposes of and with any of the powers and
authorities conferred by this Deed.
4.2 Ratification
The Grantor will at all times ratify and confirm whatever any Attorney or
sub-attorney lawfully does, or causes to be done, in exercising its rights
described in this Deed.
4.3 Conflict of Interest
Any Attorney or sub-attorney may exercise any right notwithstanding that
it constitutes a conflict of interest or duty.
4.4 Grantor Bound
The Grantor and any person (including, but not limited to, a substitute or
assign) claiming under the Grantor are bound by anything an Attorney or
sub-attorney does in the lawful exercise of its rights described in this
Deed.
4.5 Suspension of Xxxxxxx's rights
The Grantor must not, after being notified in writing by any Attorney or
sub-attorney that the Attorney or sub-attorney (as the case may be)
intends to exercise any right conferred on it by this Deed (and provided
that such right is then and remains exercisable), exercise that right
without the written consent of the Attorney or sub-attorney (as the case
may be).
4.6 Third party dealings
In respect of dealings by any person in good faith with an Attorney or
sub-attorney:
(a) (Evidence that power not revoked): that person may accept a written
statement signed by any Attorney or sub-attorney (as the case may
be) to the effect that the power of attorney granted under this Deed
has not been revoked as conclusive evidence of that fact; and
(b) (No duty to enquire): if the Attorney or sub-attorney (as the case
may be) executes any right granted to it by this Deed, that person
is not bound to enquire as to whether the right is properly
exercised or whether any circumstance has arisen to authorise the
exercise of that right.
4.7 Indemnity
The Grantor will indemnify any Attorney and sub-attorney from and against
all actions, suits, claims, demands, damages, liabilities, losses, costs
and expenses that may be made or bought against or suffered or incurred
by, any Attorney or sub-attorney, arising out of or in connection with the
lawful exercise of any of its rights described in this Deed.
4.8 Stamping and Registration
The Grantor will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable law
and the Grantor authorises any Attorney to stamp and register this Deed on
behalf of the Grantor.
139
4.9 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 4.8 will
be paid by the Grantor within a reasonable time after demand for payment
is made.
--------------------------------------------------------------------------------
5. Governing Law
This Deed is governed by and construed in accordance with the laws of New
South Wales and the Grantor irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of New South Wales and any courts
of appeal from any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of [Name of Relevant )
Seller] is affixed in accordance )
with its constitution in the )
presence of: )
------------------------ -------------
Secretary Director
140
Schedule 5
Eligibility Criteria
Eligibility Criteria in relation to a Mortgage Loan means the following
standards:
o that the Mortgage Loan has a Loan to Value Ratio (based on the position as
at the commencement of business on the Cut-Off Date) of less than or equal
to 95%;
o that the Mortgage Loan has a stated term to maturity as at the Cut-Off
Date not exceeding 30 years;
o that the Mortgage Loan as at the Cut-Off Date has a Scheduled Balance of
less than or equal to A$750,000;
o that the Mortgage Loan is sourced from the Relevant Seller's mortgage loan
portfolio;
o that the Borrower under the Mortgage Loan is not an employee of the
Relevant Seller who is paying a concessional rate of interest under the
Mortgage Loan as a result of such employment;
o that the Mortgage Loan was advanced in, and is repayable in, Australian
dollars;
o that as at the Cut-Off Date no payment due from the Borrower under the
Mortgage Loan is in arrears by more than 30 days;
o that the Mortgage Loan is secured by a Mortgage over Land which has
erected on or within it a residential dwelling or unit and the terms of
that Mortgage require that dwelling or unit to be insured under an
Insurance Policy;
o that the Mortgage Loan is not a loan of a type with only interest payable
during the term and with a "bullet" repayment of all principal at the end
of its term; and
o that the Mortgage Loan is or has been fully drawn,
or such other Eligibility Criteria as the Trustee, the Relevant Seller and the
Manager may agree in writing prior to the Closing Date and which the Rating
Agencies have confirmed in writing will not result in a reduction, qualification
or withdrawal of the credit ratings to be assigned by the Rating Agencies to the
Notes on the Closing Date.
141
Schedule 6
Form of Security Certificate
A$ Securities
--------------------------------------------------------------------------------
THE A$ SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, US PERSONS EXCEPT IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT
OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. TERMS USED IN THIS PARAGRAPH HAVE THE MEANING GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
--------------------------------------------------------------------------------
SERIES [ ] MEDALLION TRUST
CERTIFICATE NUMBER/S [ ]
Perpetual Trustee Company Limited
ABN 42 000 001 007
(the "Trustee")
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
(the "Manager")
THIS IS TO CERTIFY THAT:
Securityholder: [ ]
ABN [ ]
(the "Securityholder")
ADDRESS: [ ]
appears in the Register as the holder of the A$ Securities specified below (the
"A$ Securities") issued by the Trustee as trustee of the Series [ ]
Medallion Trust (the "Series Trust") as constituted by a Master Trust Deed (the
"Master Trust Deed") dated 8 October 1997 between the Manager and the Trustee,
as amended from time to time, and a Series Supplement (the "Series Supplement")
dated [ ] between Commonwealth Bank of Australia, ABN 48 123 123 124, (as a
Seller and Servicer) (the "Bank"), Colonial State Bank as a Seller, the Manager
and the Trustee.
Unless defined in this Security Certificate or a contrary intention appears,
words and expressions used in this Security Certificate have the same meaning as
in the Series Supplement.
The Securityholder was entered on the Register as holder of the A$ Securities
described below at [ ] on [ ].
Date of Issue:
Class of A$ Security: [Class A-2 Note/Class B Note/Redraw Bond]
Numbers of A$ Securities: [ ] to [ ], inclusive
Scheduled Maturity Date of each A$ Security:
142
Face Value of each A$ Security:
Interest Rate of each A$ Security:
Interest Payment Dates of each A$ Security:
[A tax file number has/has not been obtained from the person named above.]
The A$ Securities are issued and held subject to the provisions of the Master
Trust Deed, the Series Supplement and a Security Trust Deed (the "Security Trust
Deed") dated [ ] between the Manager, the Trustee, the Bank of New York,
London Branch, and P.T. Limited, ABN 67 004 454 666 (as Security Trustee). A
copy of the Security Trust Deed, the Master Trust Deed and the Series Supplement
are available for inspection by Securityholders at the offices of the Trustee at
Level 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX, 0000.
Neither the Manager nor the Trustee is under any obligation at any time to
repurchase any A$ Securities from Securityholders.
This Security Certificate is not a Certificate of Title and the Register on
which these A$ Securities are registered is the only conclusive evidence of the
title of the abovementioned person to the A$ Securities.
The Trustee issues this Security Certificate only in its role as trustee of the
Series Trust. Any obligation or liability of the Trustee arising under or in any
way connected with the Series Trust under the Master Trust Deed, the Series
Supplement or any other Transaction Document (including any A$ Security) to
which the Trustee is a party is limited to the extent to which it can be
satisfied out of the Assets of the Series Trust out of which the Trustee is
actually indemnified for the obligation or liability. This limitation will not
apply to any obligation or liability of the Trustee only to the extent that it
is not so satisfied because of any fraud, negligence or wilful default on the
part of the Trustee. The Trustee will have no liability for any act or omission
of the Manager or of any other person (other than a person whose acts or
omissions the Trustee is liable for in accordance with any Transaction
Document).
Transfers of the A$ Securities must be pursuant to a Security Transfer as set
out in Schedule 7 to the Series Supplement. Copies of Security Transfers are
available from the Trustee at the abovementioned address. Executed Security
Transfers must be lodged with the Trustee accompanied by this Security
Certificate.
None of the Manager, either Seller, the Servicer, the Bank, any other member of
the Bank group or the Trustee guarantees the payment or repayment of any
Securityholder Entitlements in respect of the A$ Securities.
The A$ Securities do not represent deposits or other liabilities of the Manager,
either Seller, the Servicer, the Bank or any other Related Body Corporate of the
Bank. The holding of the A$ Securities is subject to investment risk, including
possible delays in payment and loss of income and principal invested. None of
the Manager, the Seller, the Servicer, the Bank or any other Related Body
Corporate of the Bank stand in any way behind the capital value and/or
performance of the A$ Securities, or the Assets held by the Series Trust.
Dated:
For and on behalf of
Perpetual Trustee Company Limited
------------------- -------------------
Authorised Officer Authorised Officer
143
Schedule 7
Form of Security Transfer
----------------
TO: Perpetual Trustee Company Limited, Registry Date Lodged
ABN 42 000 001 007 Use Only / /
(the "Trustee")
----------------
TRANSFEROR (the
"Transferor")
(Full Name, ABN (if
applicable) and Address)
(Please Print)
HEREBY APPLIES TO ASSIGN TO
TRANSFEREE (the
"Transferee")
(Full Name, ABN (if
applicable) and Address)
(Please Print)
the following securities (the "A$ Securities") issued by the Trustee as trustee
of the Series [ ] Medallion Trust (the "Series Trust"):
Date of Issue:
Class of A$ Security: [Class A-2 Note/Class B Note/Redraw Bond]
Numbers of A$ Securities: [ ] to [ ], inclusive
Face Value of each A$ Security:
Interest Payment Dates of each A$ Security:
Scheduled Maturity Date of each A$ Security: / /
and all the Transferor's property and interest in the same [and to the interest
accrued thereon.]
------------------
Settlement Amount
$
------------------
TRANSFEROR
----------------------------------------------------------------------
Signature Authorised Signatory
(See notes below)
WITNESS Date / /
------------------------------------------------------------
TRANSFEREE
----------------------------------------------------------------------
144
Signature: Authorised Officer
(See notes below)
WITNESS Date / /
------------------------------------------------------------
PAYMENTS
(tick where appropriate)
|_| In accordance with existing instructions (existing holders only)
|_| By cheque posted to above address
|_| By crediting the following account in Australia and in the name of the
Trustee only
Name of Account Account No.
Name of Financial Institution Branch
|_| Bank
------------------------------
|_| Building Society
------------------
Tax File Number (if applicable):
Authorised Officer of Transferee Date: / /
---------------------------------
NOTES:
o The Transferor and the Transferee acknowledge that the transfer of the A$
Securities specified in this Security Transfer only takes effect on the
entry of the Transferee's name in the Register as the registered owner of
the A$ Securities.
o The Transferee agrees to accept the A$ Securities subject to the
provisions of a Master Trust Deed (the "Master Trust Deed") dated 8
October 1997 between Securitisation Advisory Services Pty. Limited, ACN
064 133 946 (the "Manager") and the Trustee, as amended from time to time,
a Series Supplement (the "Series Supplement") dated [ ] between
Commonwealth Bank of Australia, ABN 48 123 123 124 (as Seller and
Servicer) (the "Bank"), the Manager and the Trustee (as trustee of the
Series Trust) and a Security Trust Deed (the "Security Trust Deed") dated
[ ] between the Trustee as trustee of the Series Trust, the Manager, the
Bank of New York, London Branch, and P.T. Limited, ABN 67 004 454 666, as
Security Trustee.
o Unless expressly defined in this Security Transfer or a contrary intention
appears, words and expressions used in this Security Transfer have the
same meaning as in the Series Supplement.
o The Transferee acknowledges that it has independently and without reliance
on the Trustee, the Manager, the Sellers, the Servicer, the Bank or any
other Related Body Corporate of the Bank (including without reliance on
any materials prepared or distributed by any of the foregoing) made its
own assessment and investigations regarding its investment in the A$
Securities.
o The Transferee acknowledges that:
(a) the A$ Securities do not represent deposits or other liabilities of
the Sellers, the Servicer, the Bank, any other Related Body
Corporate of the Bank or the Manager;
(b) the holding of the A$ Securities is subject to investment risk,
including possible delays in payment and loss of income and
principal invested; and
(c) none of the Manager, the Sellers, the Servicer, the Bank or, any
other Related Body
145
Corporate of the Bank stand in any way behind the capital value
and/or performance of the A$ Securities or the assets held by the
Series Trust.
o The Trustee issues the A$ Securities only in its role as trustee of the
Series Trust. Any obligation or liability of the Trustee arising under or
in any way connected with the Series Trust under the Master Trust Deed,
the Series Supplement or any other Transaction Document (including any A$
Security) to which the Trustee is a party is limited to the extent to
which it can be satisfied out of the Assets of the Series Trust out of
which the Trustee is actually indemnified for the obligation or liability.
This limitation will not apply to any obligation or liability of the
Trustee only to the extent that it is not so satisfied because of any
fraud, negligence or wilful default on the part of the Trustee. The
Trustee will have no liability for any act or omission of the Manager or
of any other person (other than a person whose acts or omissions the
Trustee is liable for in accordance with any Transaction Document).
o Where the Transferor and/or the Transferee is a trustee, this Security
Transfer must be completed in the name of the trustee and signed by the
trustee without reference to the trust.
o Where this Transfer is executed by a corporation, it must be executed
either under common seal or under a power of attorney.
o If this Security Transfer is signed under a power of attorney, the
attorney hereby certifies that it has not received notice of revocation of
that power of attorney. A certified copy of the power of attorney must be
lodged with this Security Transfer.
o This Security Transfer must be lodged with the Trustee for registration,
accompanied by the Security Certificate to which the A$ Securities relate.
o The Register will be closed from 4.30 pm on the Business Day which is
prior to, and will be re-opened at the commencement of business on each
Monthly Distribution Date and each Quarterly Distribution Date. The
Trustee may with prior notice given in the manner specified in the Master
Trust Deed, close the Register at other times. The total period that the
Register may be closed will not exceed 35 Business Days (or such other
period agreed to by the Manager) in aggregate in any calendar year. No
Security Transfer received after 4.30pm on the day of closure of the
Register or while the Register is closed, will be registered until the
Register is re-opened.
o [If the Transferee is a non-resident for Australian taxation purposes,
withholding tax will be deducted from all interest payments unless an
exemption is provided to the Trustee.]
o A Securityholder is only entitled to transfer an A$ Security if:
(a) the offer of the A$ Security for sale, or the invitation to purchase
the A$ Security, to the proposed transferee by the Securityholder is
an offer or invitation that does not need disclosure to investors
under Part 6D.2 of Chapter 6 of the Corporations Law and otherwise
complies with the Corporations Law; and
(b) the transfer would not otherwise breach any restriction on transfer
for the A$ Security contained in the Series Supplement.
o The A$ Securities covered hereby have not been registered under the United
States Securities Act of 1933 as amended (the "Securities Act") and may
not be offered and sold within the United States or to or for the account
or benefit of United States persons:
(a) as part of their distribution at any time; or
(b) otherwise until 40 days after the completion of the distribution of
the A$ Securities, as determined and certified by the Co-Managers
(as that term is defined in the Dealer Agreement),
146
except in either case in accordance with Regulation S under the
Securities Act. Terms used above have the meanings given to them by
Regulation S.
[Marking where clause 10.16 of the Master Trust Deed applies:]
The Trustee hereby certifies that the Transferor is noted in the Register as the
holder of A$ Securities specified in this Security Transfer and that it will not
register any transfer of such A$ Securities other than pursuant to this Security
Transfer before [insert date].
Dated:
For and on behalf of
Perpetual Trustee Company Limited
------------------------ ----------------------
Authorised Officer Authorised Officer]
147
Schedule 8A
Monthly Certificate [CBA TO PROVIDE MONTHLY CERTIFICATE]
148
Schedule 8B
Quarterly Certificate [_CBA TO PROVIDE QUARTERLY CERTIFICATE]
149
Schedule 9
Form of Residual Unit Certificate
RESIDUAL UNIT CERTIFICATE
Series [ ] Medallion Trust
Perpetual Trustee Company Limited
ABN 42 000 001 007
(the "Trustee")
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
(the "Manager")
THIS IS TO CERTIFY THAT:
RESIDUAL UNITHOLDER: Commonwealth Bank of Australia
ABN 48 123 123 124
(the "Bank")
ADDRESS: Level 0,
00 Xxxxxx Xxxxx
XXXXXX XXX 0000
appears in the Register as the holder of the Residual Unit issued by the Trustee
as trustee of the Series [ ] Medallion Trust (the "Series Trust") as
constituted by a Master Trust Deed (the "Master Trust Deed") dated 8 October
1997 between the Manager and the Trustee, as amended from time to time, and a
Series Supplement (the "Series Supplement") dated [ ] between the Bank (as
Seller and Servicer), Colonial State Bank as Seller, the Manager and the
Trustee.
Unless expressly defined in this Unit Certificate or a contrary intention
appears, words and expressions used in this Unit Certificate have the same
meaning as in the Series Supplement.
The Residual Unit is issued and held by the Bank subject to the provisions of
the Master Trust Deed, the Series Supplement and a Security Trust Deed (the
"Security Trust Deed") dated [ ] between the Manager, the Trustee, the Bank of
New York, London Branch, and PT Limited, ABN 67 004 454 666 (as Security
Trustee). A copy of the Register, the Security Trust Deed, the Master Trust Deed
and the Series Supplement are available for inspection by the Bank at the
offices of the Trustee at Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx XXX 0000.
None of the Manager, the Sellers, the Servicer, the Bank, or any Related Body
Corporate of the Bank guarantees the payment of amounts (if any) payable in
respect of the Residual Unit.
Neither the Manager nor the Trustee is under any obligation at any time to
repurchase or redeem the Residual Unit.
This Unit Certificate is not a certificate of title and the Register on which
this Residual Unit is registered is the only conclusive evidence of the title of
the Bank to the Residual Unit.
The Trustee issues the Residual Unit only in its role as trustee of the Series
Trust. Any obligation or liability of the Trustee arising under or in any way
connected with the Series Trust under the Master Trust Deed, the Series
Supplement or any other Transaction Document to which the Trustee is a party is
limited to the extent to which it can be satisfied out of the Assets of the
Series Trust out of which the Trustee is actually indemnified for the obligation
or liability. This limitation will not apply to any obligation or
150
Schedule 11 - Part A
Form of Custodian Power of Attorney (for States other than Queensland and
Western Australia)
THIS POWER OF ATTORNEY is made on [ ]
BY STATE BANK OF NEW SOUTH WALES LIMITED, ABN 32 003 963 228, a
company incorporated in the State of New South Wales and having
an office at Level 0, 00 Xxxxxx Xxxxx, Xxxxxx, XXX 0000
("Colonial")
IN FAVOUR OF COMMONWEALTH BANK OF AUSTRALIA, ABN 48 123 123 124, a company
incorporated in the Australian Capital Territory and having its
registered office at Level 0, 00 Xxxxxx Xxxxx, Xxxxxx XXX 0000
(the "Custodian")
THIS DEED PROVIDES as follows:
--------------------------------------------------------------------------------
1. Interpretation
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2 and
any person who derives a right directly or indirectly from an Attorney.
"Authorised Officer" means in relation to the Custodian, a director,
secretary or any person whose title contains the word or words
"manager" or "chief executive officer" or a person performing the
functions of any of them.
"Series Supplement" means the Series Supplement dated on or about
[ ] between the Custodian, Colonial, Securitisation Advisory
Services Pty Limited ABN 88 064 133 946 and Perpetual Trustee Company
Limited ABN 42 000 001 007.
--------------------------------------------------------------------------------
2. Appointment and Powers
2.1 Appointment
Colonial appoints the Custodian and any Authorised Officer from time to
time of the Custodian jointly and severally as its attorney with the
right, to do in the name of Colonial and on its behalf everything
necessary or expedient to:
(a) (Performance of Custodian Role): perform the Custodian's duties,
and exercise the rights of the Custodian, under clause 25 of the
Series Supplement in so far as those duties and rights relate to
Mortgage Documents which in turn relate to Mortgage Loans of
Colonial;
(b) (Delegate): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any terms
or conditions that it thinks fit;
(c) (Sign Documents): sign, seal, deliver and execute and do (either
unconditionally or subject to any conditions that it thinks fit)
all deeds, arrangements, documents and things in respect of any
of its rights described in this Deed; and
(d) (Do Incidental Things): do anything incidental to or conducive to
the effective and expeditious exercise of its rights described in
this Deed.
1
--------------------------------------------------------------------------------
3. Consideration and Revocation
3.1 Consideration
Colonial acknowledges that it has received good and valuable
consideration for the grant of this Deed.
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of the
Custodian, the power of attorney granted under clause 2.1 of this Deed
is irrevocable by Colonial and its successors and assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed
will remain in full force and effect notwithstanding:
(a) (Insolvency): the insolvency of, or the occurrence of any other
analogous event with respect to, Colonial;
(b) (Amendment): any waiver, replacement, amendment or variation of
any document (with or without the consent of Colonial);
(c) (Delay): any delay, laches, acquiescence, mistake, act or
omission (including, without limitation, any default by the
Custodian of any obligation that it owes to any person) by any
Attorney; or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate to
prejudice, release or otherwise affect the rights of an Attorney
under this Deed.
--------------------------------------------------------------------------------
4. Delegates
4.1 Obligation
Where a delegation is made by an Attorney under clause 2, the following
will apply:
(a) (Vary, suspend etc.): the Attorney may at any time by notice in
writing vary, suspend or revoke a delegation made under clause 2;
(b) (Attorney retains any rights delegated): a right delegated by the
Attorney may continue to be exercised or performed by the
Attorney notwithstanding the delegation of that right;
(c) (Effect of acts delegated): any act or thing done within the
scope of a delegation while the delegation is in force:
(i) has the same effect as if it had been done by the Attorney;
and
(ii) will not be invalidated by reason of a later revocation or
variation of the delegation; and
(d) (Opinion of delegate): if the exercise or performance of a right
by the Attorney is dependant upon the opinion, belief or state of
mind of the Attorney in relation to a matter and that right is
delegated by the Attorney, the delegate may, unless the contrary
intention appears, exercise or perform the right based upon his
or her own
2
opinion, belief or state of mind (as the case may require) in
relation to the matter.
4.2 Revocation of nomination
The Custodian may at any time revoke or suspend any appointment of a
nominee or an Attorney pursuant to clause 2.
--------------------------------------------------------------------------------
5. Miscellaneous
5.1 Suspension of Colonial's rights
Colonial must not, after being notified in writing by any Attorney that
an Attorney intends to exercise any right conferred on it by this Deed
(and provided that such right is then and remains exercisable),
exercise that right without the written consent of the Custodian.
5.2 Ratification
Colonial will at all times ratify and confirm whatever any Attorney
lawfully does, or causes to be done, in exercising its rights described
in this Deed.
5.3 Conflict of Interest
Any Attorney may exercise any right notwithstanding that it constitutes
a conflict of interest or duty.
5.4 Colonial Bound
Colonial and any person (including, but not limited to, a substitute or
assign) claiming under Colonial are bound by anything an Attorney does
in the lawful exercise of its rights described in this Deed.
5.5 Third party dealings
In respect of dealings by any person in good faith with an Attorney:
(a) (Evidence that power not revoked): that person may accept a
written statement signed by any Attorney to the effect that the
power of attorney granted under this Xxxx has not been revoked
as conclusive evidence of that fact; and
(b) (No duty to enquire): if the Attorney executes any right granted
to it by this Deed, that person is not bound to enquire as to
whether the right is properly exercised or whether any
circumstance has arisen to authorise the exercise of that right.
5.6 Indemnity
Colonial will indemnify any Attorney from and against all actions,
suits, claims, demands, damages, liabilities, losses, costs and
expenses that may be made or bought against or suffered or incurred by
any such Attorney arising out of or in connection with the lawful
exercise of any of its rights described in this Deed.
5.7 Stamping and Registration
Colonial will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable law
and Colonial authorises any Attorney to stamp and register this Deed on
behalf of Colonial.
3
5.8 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 5.7
will be paid by Colonial within a reasonable time after demand for
payment is made.
--------------------------------------------------------------------------------
6. Governing Law
This Deed is governed by and construed in accordance with the laws of
the State of New South Wales and Colonial irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts
of the State of New South Wales and any courts of appeal from any of
those courts.
EXECUTED as a deed.
THE COMMON SEAL of STATE BANK )
OF NEW SOUTH WALES LIMITED, ABN )
32 003 963 228 is affixed in accordance with its )
constitution in the presence of: )
.............................. .........................
Secretary Director
4
Schedule 11 - Part B
Form of Custodian Power of Attorney (for Queensland)
THIS POWER OF ATTORNEY is made on [ ]
BY STATE BANK OF NEW SOUTH WALES LIMITED, ABN 32 003 963
228, a company incorporated in the State of New South
Wales and having an office at Level 0, 00 Xxxxxx Xxxxx,
Xxxxxx, XXX 0000 ("Colonial")
IN FAVOUR OF COMMONWEALTH BANK OF AUSTRALIA, ABN 48 123 123 124, a
company incorporated in the Australian Capital Territory
and having its registered office at Level 0, 00 Xxxxxx
Xxxxx, Xxxxxx XXX 0000 (the "Custodian")
THIS DEED PROVIDES as follows:
--------------------------------------------------------------------------------
1. Interpretation
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2 and
any person who derives a right directly or indirectly from an
Attorney.
"Authorised Officer" means in relation to the Custodian, a director,
secretary or any person whose title contains the word or words
"manager" or "chief executive officer" or a person performing the
functions of any of them.
"Series Supplement" means the Series Supplement dated on or about
[ ] between the Custodian, Colonial, Securitisation Advisory
Services Pty Limited ABN 88 064 133 946 and Perpetual Trustee Company
Limited ABN 42 000 001 007.
--------------------------------------------------------------------------------
2. Appointment and Powers
2.1 Appointment
Colonial appoints the Custodian and any Authorised Officer from time
to time of the Custodian jointly and severally as its attorney with
the right, to do in the name of Colonial and on its behalf everything
necessary or expedient to:
(a) (Performance of Custodian Role): perform the Custodian's duties,
and exercise the rights of the Custodian, under clause 25 of the
Series Supplement in so far as those duties and rights relate to
Mortgage Documents which in turn relate to Mortgage Loans of
Colonial;
(b) (Delegate): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any terms
or conditions that it thinks fit;
(c) (Sign Documents): sign, seal, deliver and execute and do (either
unconditionally or subject to any conditions that it thinks fit)
all deeds, arrangements, documents and things in respect of any
of its rights described in this Deed; and
(d) (Do Incidental Things): do anything incidental to or conducive to
the effective and expeditious exercise of its rights described in
this Deed.
--------------------------------------------------------------------------------
3. Consideration and Revocation
3.1 Consideration
Colonial acknowledges that it has received good and valuable
consideration for the grant of this Deed.
5
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of the
Custodian, the power of attorney granted under clause 2.1 of this Deed is
irrevocable by Colonial and its successors and assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed
will remain in full force and effect notwithstanding:
(a) (Insolvency): the insolvency of, or the occurrence of any other
analogous event with respect to, Colonial;
(b) (Amendment): any waiver, replacement, amendment or variation of any
document (with or without the consent of Colonial);
(c) (Delay): any delay, laches, acquiescence, mistake, act or omission
(including, without limitation, any default by the Custodian of any
obligation that it owes to any person) by any Attorney; or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate to
prejudice, release or otherwise affect the rights of an Attorney under
this Deed.
--------------------------------------------------------------------------------
4. Delegates
4.1 Obligation
Where a delegation is made by an Attorney under clause 2, the
following will apply:
(a) (Vary, suspend etc.): the Attorney may at any time by notice in
writing vary, suspend or revoke a delegation made under clause 2;
(b) (Attorney retains any rights delegated): a right delegated by the
Attorney may continue to be exercised or performed by the Attorney
notwithstanding the delegation of that right;
(c) (Effect of acts delegated): any act or thing done within the scope
of a delegation while the delegation is in force:
(i) has the same effect as if it had been done by the Attorney; and
(ii) will not be invalidated by reason of a later revocation or
variation of the delegation; and
(d) (Opinion of delegate): if the exercise or performance of a right
by the Attorney is dependant upon the opinion, belief or state of mind
of the Attorney in relation to a matter and that right is delegated by
the Attorney, the delegate may, unless the contrary intention appears,
exercise or perform the right based upon his or her own opinion,
belief or state of mind (as the case may require) in relation to the
matter.
4.2 Revocation of nomination
The Custodian may at any time revoke or suspend any appointment of a
nominee or an Attorney pursuant to clause 2.
6
--------------------------------------------------------------------------------
5. Miscellaneous
5.1 Suspension of Colonial's rights
Colonial must not, after being notified in writing by any Attorney that
an Attorney intends to exercise any right conferred on it by this Deed
(and provided that such right is then and remains exercisable),
exercise that right without the written consent of the Custodian.
5.2 Ratification
Colonial will at all times ratify and confirm whatever any Attorney
lawfully does, or causes to be done, in exercising its rights described
in this Deed.
5.3 Conflict of Interest
Any Attorney may exercise any right notwithstanding that it constitutes
a conflict of interest or duty.
5.4 Colonial Bound
Colonial and any person (including, but not limited to, a substitute or
assign) claiming under Colonial are bound by anything an Attorney does
in the lawful exercise of its rights described in this Deed.
5.5 Third party dealings
In respect of dealings by any person in good faith with an Attorney:
(a) (Evidence that power not revoked): that person may accept a
written statement signed by any Attorney to the effect that the
power of attorney granted under this Xxxx has not been revoked
as conclusive evidence of that fact; and
(b) (No duty to enquire): if the Attorney executes any right granted
to it by this Deed, that person is not bound to enquire as to
whether the right is properly exercised or whether any
circumstance has arisen to authorise the exercise of that right.
5.6 Indemnity
Colonial will indemnify any Attorney from and against all actions,
suits, claims, demands, damages, liabilities, losses, costs and
expenses that may be made or bought against or suffered or incurred by
any such Attorney arising out of or in connection with the lawful
exercise of any of its rights described in this Deed.
5.7 Stamping and Registration
Colonial will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable law
and Colonial authorises any Attorney to stamp and register this Deed on
behalf of Colonial.
5.8 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 5.7
will be paid by Colonial within a reasonable time after demand for
payment is made.
7
--------------------------------------------------------------------------------
6. Governing Law
This Deed is governed by and construed in accordance with the laws of
the State of New South Wales and Colonial irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts
of the State of New South Wales and any courts of appeal from any of
those courts.
EXECUTED as a deed.
THE COMMON SEAL of STATE BANK )
OF NEW SOUTH WALES LIMITED, ABN )
32 003 963 228 is affixed in accordance with its )
constitution in the presence of: )
________________________________ ________________________
Secretary Director
8
Schedule 11 - Part C
Form of Custodian Power of Attorney (for Western Australia)
THIS POWER OF ATTORNEY is made on [ ]
BY STATE BANK OF NEW SOUTH WALES LIMITED, ABN 32 003 963 228,
a company incorporated in the State of New South Wales and
having an office at Level 0, 00 Xxxxxx Xxxxx, Xxxxxx, XXX
0000 ("Colonial")
IN FAVOUR OF COMMONWEALTH BANK OF AUSTRALIA, ABN 48 123 123 124, a
company incorporated in the Australian Capital Territory
and having its registered office at Level 0, 00 Xxxxxx
Xxxxx, Xxxxxx XXX 0000 (the "Custodian")
THIS DEED PROVIDES as follows:
--------------------------------------------------------------------------------
1. Interpretation
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2 and
any person who derives a right directly or indirectly from an Attorney.
"Authorised Officer" means in relation to the Custodian, a director,
secretary or any person whose title contains the word or words
"manager" or "chief executive officer" or a person performing the
functions of any of them.
"Series Supplement" means the Series Supplement dated on or about
[ ] between the Custodian, Colonial, Securitisation Advisory
Services Pty Limited ABN 88 064 133 946 and Perpetual Trustee Company
Limited ABN 42 000 001 007.
--------------------------------------------------------------------------------
2. Appointment and Powers
2.1 Appointment
Colonial appoints the Custodian and any Authorised Officer from time to
time of the Custodian jointly and severally as its attorney with the
right, to do in the name of Colonial and on its behalf everything
necessary or expedient to:
(a) (Performance of Custodian Role): perform the Custodian's
duties, and exercise the rights of the Custodian, under clause
25 of the Series Supplement in so far as those duties and
rights relate to Mortgage Documents which in turn relate to
Mortgage Loans of Colonial, including but not limited to taking
custody of documents which relate to mortgages over land or
property registered pursuant to the Transfer of Land Act 1893
(WA) and the Strata Titles Act 1985 (WA);
(b) (Delegate): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any
terms or conditions that it thinks fit;
(c) (Sign Documents): sign, seal, deliver and execute and do
(either unconditionally or subject to any conditions that it
thinks fit) all deeds, arrangements, documents and things in
respect of any of its rights described in this Deed;
(d) (Do Incidental Things): do anything incidental to or conducive
to the effective and expeditious exercise of its rights
described in this Deed; and
(e) (Limitation on Custodian's Powers): the Custodians powers are
limited to:
(i) the powers provided for under clause 25 of the Series
Supplement and this Deed; and
9
(ii) mortgages and Mortgage Documents the legal or equitable
title to which is held by Perpetual Trustee Company
Limited as trustee of the Series [ ] Medallion Trust.
--------------------------------------------------------------------------------
3. Consideration and Revocation
3.1 Consideration
Colonial acknowledges that it has received good and valuable
consideration for the grant of this Deed.
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of the
Custodian, the power of attorney granted under clause 2.1 of this Deed
is irrevocable by Colonial and its successors and assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed
will remain in full force and effect notwithstanding:
(a) (Insolvency): the insolvency of, or the occurrence of any other
analogous event with respect to, Colonial;
(b) (Amendment): any waiver, replacement, amendment or variation of
any document (with or without the consent of Colonial);
(c) (Delay): any delay, laches, acquiescence, mistake, act or
omission (including, without limitation, any default by the
Custodian of any obligation that it owes to any person) by any
Attorney; or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate to
prejudice, release or otherwise affect the rights of an Attorney
under this Deed.
--------------------------------------------------------------------------------
4. Miscellaneous
4.1 Suspension of Colonial's rights
Colonial must not, after being notified in writing by any Attorney that
an Attorney intends to exercise any right conferred on it by this Deed
(and provided that such right is then and remains exercisable),
exercise that right without the written consent of the Custodian.
4.2 Ratification
Colonial will at all times ratify and confirm whatever any Attorney
lawfully does, or causes to be done, in exercising its rights described
in this Deed.
4.3 Conflict of Interest
Any Attorney may exercise any right notwithstanding that it constitutes
a conflict of interest or duty.
4.4 Colonial Bound
Colonial and any person (including, but not limited to, a substitute or
assign) claiming under
10
Colonial are bound by anything an Attorney does in the lawful exercise
of its rights described in this Deed.
4.5 Third party dealings
In respect of dealings by any person in good faith with an Attorney:
(a) (Evidence that power not revoked): that person may accept a
written statement signed by any Attorney to the effect that the
power of attorney granted under this Xxxx has not been revoked as
conclusive evidence of that fact; and
(b) (No duty to enquire): if the Attorney executes any right granted
to it by this Deed, that person is not bound to enquire as to
whether the right is properly exercised or whether any
circumstance has arisen to authorise the exercise of that right.
4.6 Indemnity
Colonial will indemnify any Attorney from and against all actions,
suits, claims, demands, damages, liabilities, losses, costs and
expenses that may be made or bought against or suffered or incurred by
any such Attorney arising out of or in connection with the lawful
exercise of any of its rights described in this Deed.
4.7 Stamping and Registration
Colonial will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable law
and Colonial authorises any Attorney to stamp and register this Deed on
behalf of Colonial.
4.8 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 4.8
will be paid by Colonial within a reasonable time after demand for
payment is made.
--------------------------------------------------------------------------------
5. Governing Law
This Deed is governed by and construed in accordance with the laws of
the State of New South Wales and Colonial irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts
of the State of New South Wales and any courts of appeal from any of
those courts.
EXECUTED as a deed.
THE COMMON SEAL of STATE BANK )
OF NEW SOUTH WALES LIMITED, ABN )
32 003 963 228 is affixed in )
accordance with its constitution )
in the presence of: )
________________________ ________________________
Secretary Director
11
Executed as a deed.
Signed sealed and delivered for and on behalf of
Commonwealth Bank of Australia,
ABN 48 123 123 124, by its Attorney
under a Power of Attorney dated ___________________________________
and registered Book No. who certifies that
he or she is General Manager of Commonwealth Bank Signature of Attorney
of Australia in the presence of:
__________________________________________________ ___________________________________
Signature of Witness Name of Attorney in full
__________________________________________________
Name of Witness in full
Signed sealed and delivered for and on behalf
of State Bank of New South Wales Limited,
ABN 32 003 963 228, by its Attorney
under a Power of Attorney dated ___________________________________
and registered Book No. who certifies that
he or she has not received any notice of the Signature of Attorney
revocation of such Power of Attorney in the
presence of:
__________________________________________________ ___________________________________
Signature of Witness Name of Attorney in full
__________________________________________________
Name of Witness in full
Signed sealed and delivered for and
on behalf of Securitisation Advisory
Services Limited, ABN 88 064 133
946 by its Attorney
under a Power of Attorney dated ___________________________________
and registered Book No. and who
declares that he or she has not received Signature of Attorney
any notice of the revocation of such Power
of Attorney in the presence of:
__________________________________________ ___________________________________
Signature of Witness Name of Attorney in full
__________________________________________
Name of Witness in full
Signed sealed and delivered for and on
behalf of Perpetual Trustee Company
Limited, ABN 42 000 001 007 by its Attorney
under a Power of Attorney dated ___________________________________
and registered Book No. and who declares
that he or she has not received any notice Signature of Attorney
of the revocation of such Power of Attorney
in the presence of:
___________________________________________ ___________________________________
Signature of Witness Name of Attorney in full
___________________________________________
Name of Witness in full
liability of the Trustee only to the extent that it is not so satisfied because
of any fraud, negligence or wilful default on the part of the Trustee. The
Trustee will have no liability for any act or omission of the Manager or of any
other person (other than a person whose acts or omissions the Trustee is liable
for in accordance with any Transaction Document).
The Residual Unit does not represent a deposit or other liability of the
Manager, the Sellers, the Servicer, the Bank or any Related Body Corporate of
the Bank. The Residual Unit is subject to investment risk, including possible
delays in payment and loss of income and principal invested. None of the
Manager, the Sellers, the Servicer, the Bank or any Related Body Corporate of
the Bank stand in any way behind the capital value and/or performance of the
Assets held by the Series Trust.
Dated:
For and on behalf of
PERPETUAL TRUSTEE COMPANY LIMITED
as trustee of the Series Trust
------------------------------ ------------------------------
Authorised Officer Authorised Officer
151
Schedule 10
Stepdown Percentage
Determination of Stepdown Percentage
The Stepdown Percentage on a Determination Date is determined as follows.
1. If the Stepdown Conditions are not satisfied on that Determination Date,
the Stepdown Percentage is 100%.
2. If the Stepdown Conditions are satisfied on that Determination Date, the
Stepdown Percentage is 100% unless the following apply:
(a) if the Determination Date falls prior to the third anniversary of
the Closing Date the Stepdown Percentage is 50%;
(b) if:
(i) the Determination Date falls on or after the third anniversary
of the Closing Date but prior to the tenth anniversary of the
Closing Date; and
(ii) the Class B Available Support on the Determination Date is
equal to or greater than two times the Class B Required
Support on the Determination Date;
the Stepdown Percentage is 0%;
(c) if:
(i) paragraph (b) above does not apply;
(ii) the Determination Date falls on or after the fifth anniversary
of the Closing Date but prior to the tenth anniversary of the
Closing Date; and
(iii) the Class B Available Support on the Determination Date is
equal to or greater than the Class B Required Support on the
Determination Date;
then:
(i) if the Determination Date falls on or after the fifth
anniversary of the Closing Date but prior to the sixth
anniversary of the Closing Date, the Stepdown Percentage is
70%;
(ii) if the Determination Date falls on or after the sixth
anniversary of the Closing Date but prior to the seventh
anniversary of the Closing Date, the Stepdown Percentage is
60%;
(iii) if the Determination Date falls on or after the seventh
anniversary of the Closing Date but prior to the eighth
anniversary of the Closing Date, the Stepdown Percentage is
40%;
(iv) if the Determination Date falls on or after the eighth
anniversary of the Closing Date but prior to the ninth
anniversary of the Closing Date, the Stepdown Percentage is
20%; or
152
(v) if the Determination Date falls on or after the ninth
anniversary of the Closing Date but prior to the tenth
anniversary of the Closing Date, the Stepdown Percentage is
0%; or
(d) if the Determination Date falls on or after the tenth anniversary of
the Closing Date, the Stepdown Percentage is 0%.
Stepdown Conditions
The Stepdown Conditions are satisfied on a Determination Date if:
1. the following applies:
(a) the Class B Available Support on the Determination Date is equal to
or greater than two times the Class B Required Support on the
Determination Date;
(b) the aggregate Adjusted Stated Amount for the Class B Notes on the
Determination Date is equal to or greater than 0.25% of the
aggregate Initial Invested Amount of all the Notes;
(c) either:
(i) the Average Delinquent Percentage on the Determination Date
does not exceed 2% and the aggregate of all Unreimbursed
Principal Chargeoffs on the Determination Date does not exceed
30% of the aggregate of the Initial Invested Amounts of the
Class B Notes; or
(ii) the Average Delinquent Percentage on the Determination Date
does not exceed 4% and the aggregate of all Unreimbursed
Principal Chargeoffs on the Determination Date does not exceed
10% of the aggregate of the Initial Invested Amounts of the
Class B Notes; and
(d) the event referred to in Condition 7.3(a) of the Class A-1 Note
Conditions has not occurred on or prior to the Determination Date
and is not expected to occur on or prior to the next Quarterly
Distribution Date thereafter; or
2. the following applies:
(a) the Determination Date falls on or after the fifth anniversary of
the Closing Date;
(b) the Average Delinquent Percentage on the Determination Date does not
exceed 2%;
(c) the aggregate Stated Amount [or Adjusted Stated Amount (as the case
may be)] of all outstanding Notes is greater than 10% of the
aggregate Initial Invested Amount of all Notes;
(d) the aggregate Adjusted Stated Amount for the Class B Notes on the
Determination Date is equal to or greater than 0.25% of the
aggregate Initial Invested Amount of all the Notes; and
(e) the aggregate of all Unreimbursed Principal Chargeoffs on the
Determination Date does not exceed:
(i) if the Determination Date falls on or after the fifth
anniversary of the Closing Date but prior to the sixth
anniversary of the Closing Date, 30% of the aggregate of the
Initial Invested Amounts of the Class B Notes;
153
(ii) if the Determination Date falls on or after the sixth
anniversary of the Closing Date but prior to the seventh
anniversary of the Closing Date, 35% of the aggregate of the
Initial Invested Amounts of the Class B Notes;
(iii) if the Determination Date falls on or after the seventh
anniversary of the Closing Date but prior to the eighth
anniversary of the Closing Date, 40% of the aggregate of the
Initial Invested Amounts of the Class B Notes;
(iv) if the Determination Date falls on or after the eighth
anniversary of the Closing Date but prior to the ninth
anniversary of the Closing Date, 45% of the aggregate of the
Initial Invested Amounts of the Class B Notes; or
(v) if the Determination Date falls on or after the ninth
anniversary of the Closing Date, 50% of the aggregate of the
Initial Invested Amounts of the Class B Notes.
154
Schedule 11
Form of Colonial State Bank Power of Attorney
[to be inserted as per standard CBA requirements]
155
Executed as a deed.
Signed sealed and delivered for and on
behalf of Commonwealth Bank of
Australia, ABN 48 123 123 124, by its
Attorney under a Power of Attorney dated
[ ] and registered Book [ ] No.
[ ] who certifies that he or she is
General Manager of Commonwealth Bank of --------------------------
Australia in the presence of: Signature of Attorney
-------------------------- --------------------------
Signature of Witness Name of Attorney in full
--------------------------
Name of Witness in full
Signed sealed and delivered for and on
behalf of State Bank of New South Wales
Limited, ABN 32 003 963 228, by its
Attorney under a Power of Attorney dated
[ ] and registered Book [ ] No. [
] who certifies that he or she has
not received any notice of the
revocation of such Power of Attorney in --------------------------
the presence of: Signature of Attorney
-------------------------- --------------------------
Signature of Witness Name of Attorney in full
--------------------------
Name of Witness in full
156
Signed sealed and delivered for and on
behalf of Securitisation Advisory
Services Limited, ABN 88 064 133 946 by
its Attorney under a Power of Attorney
dated [ ] and registered Book [ ]
No. [ ] and who declares that he or
she has not received any notice of the
revocation of such Power of Attorney in --------------------------
the presence of: Signature of Attorney
-------------------------- --------------------------
Signature of Witness Name of Attorney in full
--------------------------
Name of Witness in full
Signed sealed and delivered for and on
behalf of Perpetual Trustee Company
Limited, ABN 42 000 001 007 by its
Attorney under a Power of Attorney dated
[ ] and registered Book [ ] No.
[ ] and who declares that he or she
has not received any notice of the
revocation of such Power of Attorney in --------------------------
the presence of: Signature of Attorney
-------------------------- --------------------------
Signature of Witness Name of Attorney in full
--------------------------
Name of Witness in full
157
