CONFORMED COPY
WESTPAC SECURITIES ADMINISTRATION LIMITED
(the Trustee)
and
THE MORTGAGE COMPANY PTY LIMITED
(the Trust Manager)
MASTER TRUST DEED
WST TRUSTS
T A B L E O F C O N T E N T S
1. DEFINITIONS AND INTERPRETATION ................................................................................... 1
1.1 Definitions ............................................................................................. 1
1.2 Interpretation ......................................................................................... 21
1.3 Binding on Noteholders ................................................................................. 22
2. TRUSTEE OF WST TRUSTS ........................................................................................... 22
2.1 Appointment of Trustee ................................................................................. 22
2.2 Trustee to act in interests of Beneficiary and Noteholders
of a Trust ............................................................................................. 22
2.3 Separate and distinct Trusts ........................................................................... 22
2.4 Termination of deed .................................................................................... 22
3. THE TRUSTS ...................................................................................................... 22
3.1 Beneficial Interest in the Trusts ...................................................................... 22
3.2 Creation of Trusts ..................................................................................... 23
3.3 Name of the Trusts ..................................................................................... 23
3.4 Duration of a Trust .................................................................................... 23
3.5 Termination; winding up ................................................................................ 23
3.6 Costs of winding up of a Trust ......................................................................... 25
4. INVESTMENT OF THE TRUSTS GENERALLY .............................................................................. 25
4.1 Authorised Investments only ............................................................................ 25
4.2 Trust Manager selects investments ...................................................................... 25
4.3 Investment proposals ................................................................................... 26
4.4 Disposal or realisation of Authorised Investments ...................................................... 26
4.5 Temporary investment of cash and limitation on maturity of
Authorised Investments ................................................................................. 27
4.6 Support Facilities ..................................................................................... 27
4.7 Authorised Trustee Investments ......................................................................... 28
4.8 Limitation of Trustee's personal liability ............................................................. 28
4.9 Moneys payable to Trustee .............................................................................. 29
4.10 Segregation of Assets of a Trust ....................................................................... 29
4.11 Assets of Trusts ....................................................................................... 29
4.12 Liabilities of a Trust ................................................................................. 29
5. GENERAL ......................................................................................................... 30
5.1 Power to acquire Assets ................................................................................ 30
5.2 Borrowings - general ................................................................................... 30
5.3 Borrowings - Support Facilities etc. ................................................................... 30
6. ORIGINATION ..................................................................................................... 31
2
7. ACQUISITION OR FUNDING BY WAREHOUSE TRUST FROM ANOTHER TRUST .................................................... 31
7.1 Direction by Trust Manager ............................................................................. 31
7.2 Required information ................................................................................... 31
7.3 Conditions to acceptance ............................................................................... 32
7.4 Effect of acceptance ................................................................................... 32
7.5 Implementation ......................................................................................... 32
7.6 General direction ...................................................................................... 32
7.7 Transfers between Trusts ............................................................................... 32
7.8 Acknowledgement by Approved Seller ..................................................................... 34
8. ACQUISITION FROM APPROVED SELLER ................................................................................ 34
8.1 Note Issue Direction ................................................................................... 34
8.2 Accession of Approved Sellers .......................................................................... 34
8.3 Sale Notices ........................................................................................... 34
8.4 Constitution and Entitlement of the Trust Back ......................................................... 35
8.5 Conditions Precedent to Purchase ....................................................................... 38
8.6 Representations and warranties of Approved Seller ...................................................... 39
8.7 Undertakings ........................................................................................... 42
8.8 Priority ............................................................................................... 42
8.9 Title Perfection Event; Termination; Repurchase ...................................................... 44
8.10 Subsequent adjustment .................................................................................. 46
8.11 Substitution ........................................................................................... 47
8.12 Indemnification ........................................................................................ 48
8.13 Power of Attorney ...................................................................................... 48
9. ACQUISITION FROM WAREHOUSE TRUST BY ANOTHER TRUST ............................................................... 49
9.1 Direction .............................................................................................. 49
9.2 Implementation of acquisition .......................................................................... 49
9.3 Survival of rights and remedies ........................................................................ 49
9.4 Acknowledgement by Approved Seller ..................................................................... 49
10. NOTES ........................................................................................................... 50
10.1 Acknowledgement of indebtedness ........................................................................ 50
10.2 Legal nature of Notes .................................................................................. 50
10.3 Terms of Notes ......................................................................................... 50
10.4 Interest and Principal Entitlement of Noteholders ...................................................... 50
10.5 Minimum denomination of Notes .......................................................................... 50
10.6 Notes not invalid if issued in breach .................................................................. 50
10.7 Location of Notes ...................................................................................... 50
10.8 No discrimination between Noteholders .................................................................. 51
11. SELLER NOTE ..................................................................................................... 51
11.1 Seller Note ............................................................................................ 51
11.2 Form ................................................................................................... 51
(ii)
12. LIMITS ON RIGHTS OF NOTEHOLDERS AND BENEFICIARY ................................................................. 51
12.1 General Limits ......................................................................................... 51
12.2 Interests of Beneficiary assignable .................................................................... 52
12.3 Ranking of interest of Beneficiary ..................................................................... 52
12.4 Further limit on interest of Noteholders ............................................................... 52
12.5 No liability of Noteholders or Beneficiary ............................................................. 52
13. PROCEDURE FOR ISSUE OF NOTES .................................................................................... 53
13.1 Note Issue Direction for a Trust ....................................................................... 53
13.2 Requirements for a Note Issue Direction ................................................................ 53
13.3 Series Notice .......................................................................................... 55
13.4 Amendment .............................................................................................. 56
13.5 Comply with Note Issue Direction ....................................................................... 56
13.6 Proviso on compliance with Note Issue Direction ........................................................ 56
13.7 Dealer Agreement ....................................................................................... 56
13.8 Issue of Notes and transfer of benefit of Mortgages .................................................... 56
13.9 Action following Note Issue ............................................................................ 57
13.10 No liability for insufficient moneys.................................................................... 58
13.11 Further assurance....................................................................................... 58
13.12 Further issues subject to Rating Agency approval........................................................ 58
13.13 Issue of unrated Notes.................................................................................. 58
13.14 No limit on Notes....................................................................................... 58
13.15 Excluded issue, offer or invitation only................................................................ 58
14. TRANSFERS OF NOTES .............................................................................................. 58
14.1 No restrictions on transfer of Notes ................................................................... 58
14.2 Minimum transfer ....................................................................................... 59
14.3 Form of transfer ....................................................................................... 59
14.4 Execution of Note Transfer ............................................................................. 59
14.5 Stamping of Note Transfer .............................................................................. 59
14.6 Delivery of Note Transfer to Trustee ................................................................... 59
14.7 Registration of Transferee as Noteholder ............................................................... 59
14.8 Trustee entitled to refuse to register Transfer ........................................................ 59
14.9 Refusal to register absolute ........................................................................... 59
14.10 No fee for registration of a Note Transfer.............................................................. 60
14.11 Taking effect of Note Transfers......................................................................... 60
14.12 Rights and obligations of transferee.................................................................... 60
14.13 Payments to transferee ................................................................................. 60
14.14 Transmission of entitlements............................................................................ 60
14.15 Marked Note Transfer.................................................................................... 61
14.16 Reliance on documents................................................................................... 61
14.17 Specimen signatures..................................................................................... 61
14.18 Notes lodged with Austraclear........................................................................... 61
(iii)
15. NOTE ACKNOWLEDGEMENT ............................................................................................ 62
15.1 Issue of Note Acknowledgement .......................................................................... 62
15.2 Note Acknowledgement not certificate of title .......................................................... 62
15.3 Execution of Note Acknowledgement ...................................................................... 62
15.4 More than one Note Acknowledgement ..................................................................... 62
15.5 Worn out, defaced or lost Note Acknowledgement ......................................................... 62
15.6 Joint holdings ......................................................................................... 62
15.7 Delivery of Note Acknowledgement ....................................................................... 63
16. THE REGISTER .................................................................................................... 63
16.1 Details to be kept on Register ......................................................................... 63
16.2 Asset register ......................................................................................... 64
16.3 Place of keeping Register, copies and access ........................................................... 64
16.4 Details on Register conclusive ......................................................................... 64
16.5 Closing of Register .................................................................................... 64
16.6 Alteration of details on Register ...................................................................... 64
16.7 Rectification of Register .............................................................................. 65
16.8 Correctness of Register ................................................................................ 65
16.9 Trust Manager must provide information ................................................................. 65
16.10 Third party registrar................................................................................... 65
17. MEETINGS OF NOTEHOLDERS ......................................................................................... 65
17.1 Application of this clause ............................................................................. 65
17.2 Convening of meetings by Xxxxxxx and Trust Manager ..................................................... 66
17.3 Notice of meetings ..................................................................................... 66
17.4 Chairman ............................................................................................... 67
17.5 Quorum ................................................................................................. 67
17.6 Adjournment ............................................................................................ 67
17.7 Voting procedure ....................................................................................... 67
17.8 Right to attend and speak .............................................................................. 68
17.9 Appointment of proxies ................................................................................. 68
17.10 Corporate representatives............................................................................... 69
17.11 Rights of Representatives............................................................................... 69
17.12 Powers of a meeting of Noteholders...................................................................... 69
17.13 Extraordinary Resolution binding on Noteholders......................................................... 70
17.14 Minutes and records..................................................................................... 70
17.15 Written resolutions..................................................................................... 70
17.16 Further procedures for meetings......................................................................... 71
(iv)
18. THE TRUST MANAGER ............................................................................................... 71
18.1 Appointment of Trust Manager ........................................................................... 71
18.2 Complete powers of management .......................................................................... 71
18.3 Note issuance .......................................................................................... 72
18.4 Trust Manager to act in interests of Beneficiary and
Noteholders ............................................................................................ 72
18.5 Trust Manager to assist Trustee ........................................................................ 72
18.6 Trust Manager's power to delegate ...................................................................... 72
18.7 Trust Manager's power to appoint advisers .............................................................. 73
18.8 Trust Manager's books available to Trustee ............................................................. 73
18.9 Trust Manager will account to Trustee for moneys received .............................................. 73
18.10 Trust Manager to report Pool Data on Reuters............................................................ 73
18.11 Trust Manager to prepare notices etc.................................................................... 74
18.12 Prior approval of circulars............................................................................. 74
18.13 Taxes................................................................................................... 74
18.14 Acquisition or disposal of Assets....................................................................... 74
18.15 Monitor Support Facilities.............................................................................. 74
18.16. Make calculations, co-ordinate and provide reports...................................................... 74
18.17 Trust Manager cannot bind Trustee unless authorised..................................................... 75
18.18 Trust Manager must perform obligations under other
Transaction Documents .................................................................................. 75
18.19 Trust Manager to provide personnel and systems ......................................................... 75
18.20 Additional covenants by Trust Manager................................................................... 75
19. TRUST MANAGER'S FEE ............................................................................................. 76
20. RETIREMENT, REMOVAL AND REPLACEMENT OF TRUST MANAGER ............................................................ 76
20.1 Retirement on Trust Manager's Default .................................................................. 76
20.2 Trustee may remove recalcitrant Trust Manager .......................................................... 77
20.3 Trustee appoints replacement Trust Manager ............................................................. 77
20.4 Voluntary Retirement ................................................................................... 77
20.5 No resignation by Trust Manager unless successor
appointed .............................................................................................. 77
20.6 Trustee to act as Trust Manager if no successor appointed .............................................. 78
20.7 Release of outgoing Trust Manager ...................................................................... 78
20.8 New Trust Manager to execute deed ...................................................................... 78
20.9 Settlement and discharge ............................................................................... 78
20.10 Delivery of books, documents, etc....................................................................... 78
20.11 Notice to Noteholders of new Trust Manager ............................................................. 79
20.12 Waiver of Trust Manager's Defaults...................................................................... 79
(v)
21. TRUSTEE'S POWERS ................................................................................................ 79
21.1 General power .......................................................................................... 79
21.2 Specific powers ........................................................................................ 79
21.3 Powers to be exercised with others ..................................................................... 81
21.4 Delegation to Related Bodies Corporate ................................................................. 81
21.5 Trustee's power to appoint attorneys and agents ........................................................ 82
21.6 Generally unlimited discretion ......................................................................... 82
22. TRUSTEE'S COVENANTS ............................................................................................. 82
22.1 General ................................................................................................ 82
22.2 To act continuously as Trustee ......................................................................... 82
22.3 To act honestly, diligently and prudently .............................................................. 82
22.4 No dispositions of Assets except in accordance with Trust
Deed ................................................................................................... 83
22.5 Indemnity re acts of Trustee's delegates ............................................................... 83
22.6 Forward notices etc to Trust Manager ................................................................... 83
22.7 Trustee will implement Trust Manager's directions ...................................................... 83
22.8 Custodian .............................................................................................. 83
22.9 Bank accounts .......................................................................................... 84
22.10 Perform Transaction Documents........................................................................... 84
23. TRUSTEE'S FEES AND EXPENSES ..................................................................................... 84
23.1 Trustee's Fee .......................................................................................... 84
23.2 Reimbursement of expenses .............................................................................. 84
23.3 Segregation of Trust Expenses .......................................................................... 84
24. REMOVAL, RETIREMENT AND REPLACEMENT OF TRUSTEE .................................................................. 84
24.1 Retirement for Trustee's Default ....................................................................... 84
24.2 Trust Manager may remove recalcitrant Trustee .......................................................... 85
24.3 Trust Manager appoints replacement ..................................................................... 85
24.4 Voluntary Retirement ................................................................................... 85
24.5 No resignation by Xxxxxxx unless successor appointed ................................................... 85
24.6 Trust Manager to act as Trustee if no successor appointed .............................................. 86
24.7 Trusts to be vested in new Trustee ..................................................................... 86
24.8 Release of outgoing Trustee ............................................................................ 86
24.9 New Trustee to execute deed ............................................................................ 86
24.10 Trust Manager and outgoing Trustee to settle amounts
payable ................................................................................................ 87
24.11 Outgoing Trustee to retain lien......................................................................... 87
24.12 Delivery of books, documents, etc....................................................................... 87
24.13 Notice to Noteholders of New Trustee.................................................................... 87
25. APPOINTMENT OF SERVICER.......................................................................................... 87
(vi)
26. LEAD MANAGER..................................................................................................... 87
26.1 Appointment of Lead Manager............................................................................. 87
26.2 Fees ................................................................................................... 88
27. BANK ACCOUNTS.................................................................................................... 88
27.1 Opening of bank accounts................................................................................ 88
27.2 Location of bank accounts............................................................................... 88
27.3 Name of bank accounts................................................................................... 89
27.4 Purpose of bank accounts................................................................................ 89
27.5 Authorised signatories.................................................................................. 89
27.6 Trust Manager not entitled to have access............................................................... 89
27.7 Bank statements and account information................................................................. 89
27.8 Deposits................................................................................................ 89
27.9 Withdrawals............................................................................................. 89
27.10 All transactions through central accounts............................................................... 90
28. AUDITOR.......................................................................................................... 90
28.1 Auditor must be registered.............................................................................. 90
28.2 Appointment of Auditor.................................................................................. 90
28.3 Removal and retirement of Auditor....................................................................... 90
28.4 Appointment of replacement Auditor...................................................................... 90
28.5 Auditor may have other offices.......................................................................... 91
28.6 Access to working papers................................................................................ 91
28.7 Auditor's remuneration and costs........................................................................ 91
28.8 Access to information................................................................................... 91
29. ACCOUNTS AND AUDIT............................................................................................... 91
29.1 Keeping Accounts........................................................................................ 91
29.2 Location and inspection of books........................................................................ 91
29.3 Accounts to be kept in accordance with Approved
Accounting Standards.................................................................................... 91
29.4 Preparation of annual Accounts.......................................................................... 91
29.5 Annual audited Accounts................................................................................. 92
29.6 Inspection and copies of audited Accounts............................................................... 92
29.7 Tax returns............................................................................................. 92
29.8 Audit................................................................................................... 92
29.9 No Responsibility for Servicer.......................................................................... 92
(vii)
30. PAYMENTS......................................................................................................... 92
30.1 Cashflow Allocation Methodology......................................................................... 92
30.2 Payments to Beneficiary................................................................................. 93
30.3 Subordination of Beneficiary's Entitlements............................................................. 93
30.4 Insufficient moneys..................................................................................... 93
30.5 Income or capital....................................................................................... 93
30.6 Income of Trust......................................................................................... 94
31. INDEMNITY........................................................................................................ 94
32. REPRESENTATIONS AND WARRANTIES................................................................................... 95
32.1 General representations and warranties.................................................................. 95
32.2 Trustee entitled to assume accuracy of representations
and warranties.......................................................................................... 95
33. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY
GENERALLY........................................................................................................ 96
33.1 Reliance on certificates................................................................................ 96
33.2 Trustee and Trust Manager may assume signed documents to
be genuine.............................................................................................. 96
33.3 Trustee's reliance on Trust Manager, Approved Seller or
Servicer................................................................................................ 97
33.4 Trust Manager's reliance on Trustee, Approved Seller or
Servicer................................................................................................ 97
33.5 Compliance with laws.................................................................................... 98
33.6 Taxes................................................................................................... 98
33.7 Reliance on experts..................................................................................... 98
33.8 Oversights of others.................................................................................... 98
33.9 Powers, authorities and discretions..................................................................... 98
33.10 Impossibility or impracticability....................................................................... 98
33.11 Duties and charges...................................................................................... 99
33.12 Legal and other proceedings............................................................................. 99
33.13 No liability except for negligence etc.................................................................. 100
33.14 Further limitations on Trustee's liability.............................................................. 100
33.15 Further limitations on Trust Manager's liability........................................................ 100
33.16 Liability of Trustee limited to its right of indemnity.................................................. 101
33.17 Trustee's right of indemnity - general.................................................................. 102
33.18 Trustee's right of indemnity - Consumer Credit
Legislation ............................................................................................ 103
33.19 Extent of liability of Trust Manager.................................................................... 104
33.20 Right of indemnity...................................................................................... 104
33.21 Conflicts............................................................................................... 104
(viii)
33.22 Trustee not obliged to investigate the Trust Manager
etc..................................................................................................... 105
33.23 Independent investigation of credit..................................................................... 105
33.24 Information............................................................................................. 105
33.25 Entering into Transaction Documents..................................................................... 105
33.26 Reliance by Trustee..................................................................................... 106
33.27 Investigation by Trustee................................................................................ 106
34. NOTICES.......................................................................................................... 106
34.1 Notices Generally....................................................................................... 106
34.2 Notices to Noteholders.................................................................................. 107
34.3 Notices to Designated Rating Agencies .................................................................. 107
35. PAYMENTS GENERALLY............................................................................................... 107
35.1 Payments to Noteholders................................................................................. 107
35.2 Payment Methods......................................................................................... 107
35.3 Payment to be made on Business Day ..................................................................... 108
35.4 Payment good discharge.................................................................................. 108
35.5 Trust Manager to arrange payments....................................................................... 108
35.6 Valid receipts.......................................................................................... 108
35.7 Taxation................................................................................................ 108
36. AMENDMENT ...................................................................................................... 109
36.1 Amendment without consent............................................................................... 109
36.2 Amendment with consent.................................................................................. 109
36.3 Copy of amendments to Noteholders....................................................................... 109
36.4 Copy of amendments in advance to Designated Rating
Agencies................................................................................................ 110
37. CONFIDENTIALITY.................................................................................................. 110
38. MISCELLANEOUS.................................................................................................... 112
38.1 Data Base to be retained as confidential................................................................ 112
38.2 Certificates by Trust Manager........................................................................... 112
38.3 Xxxxxxx, remedies cumulative............................................................................ 112
38.4 Retention of documents.................................................................................. 112
38.5 Governing law........................................................................................... 113
38.6 Severability of provisions.............................................................................. 113
38.7 Counterparts............................................................................................ 113
38.8 Inspection of this deed................................................................................. 113
(ix)
^[owner]:^[docname]:^[dated]
MASTER TRUST DEED
MASTER TRUST DEED dated 14 February 1997 between:
1. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472) of Level
9, 00 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 2000 (the Trustee); and
2. THE MORTGAGE COMPANY PTY LIMITED (ACN 070 968 302) of Level 6, 000
Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx (the Trust Manager).
RECITALS
A. It is intended by this deed to provide for the establishment of
separate trusts, all being Trusts (collectively the WST Trusts) (or
such other name as the Trustee and the Trust Manager may from time to
time agree).
B. The Trustee has agreed to act as the trustee and the Trust Manager as
the manager of the Trusts. The Mortgage Company Pty Limited has
agreed to act as the servicer of certain Trusts.
C. The Trustee may enter into Support Facilities and a Security Trust
Deed in connection with the issue of Notes by the Trustee as the
trustee of a Trust.
D. Notes issued by the Trustee will not be deposit or other liabilities
of Westpac or its Associates, nor do Westpac or its Associates stand
by the capital value and/or performance of the Notes, or any Assets
of any Trust, except as expressly provided in the Transaction
Documents for that Trust.
IT IS AGREED as follows.
PART A - DEFINITIONS AND INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply unless the context requires
otherwise.
Accounts means accounts as defined in section 9 of the Corporations
Law.
Adverse Effect means an event which will materially and adversely
affect the amount of any payment to be made to any Noteholder, or
will materially and adversely affect the timing of such payment.
Application for Notes means an application for Notes in the form of
schedule 1 or in such other form as may from time to time be agreed
between the Trustee and the Trust Manager.
Approved Accounting Standards means:
(a) the accounting standards from time to time approved under
the Corporations Law;
(b) the requirements of the Corporations Law in relation to
the preparation and content of accounts; and
Page 2
(c) generally accepted accounting principles and practices in
Australia consistently applied, except where inconsistent
with the standards or requirements referred to in
paragraphs (a) or (b).
Approved Bank means:
(a) a Bank which has a short term rating of at least A-1+
from S&P and P-1 from Xxxxx'x; or
(b) in relation to a Trust, any bank or financial institution
which is specified to be an Approved Bank in the relevant
Series Notice,
but (in relation to a Rated Trust for which S&P is a Designated
Rating Agency) means Westpac Banking Corporation for so long as it
has a short term rating of A-1 or better from S&P.
Approved Seller means:
(a) other than in clauses 8.1, 8.2, 8.3, 8.5(b), 8.6, 8.7,
8.11, 8.12, 11, 33 and 37, the Trustee as trustee of any
Warehouse Trust; or
(b) other than in clauses 8.2, 8.5(b), 8.6, 8.7, 8.11, 8.12,
11, 33 and 37, the Trustee as trustee of any other Trust
that is not a Warehouse Trust; or
(c) any person which the Trust Manager notifies the Trustee
is an Approved Seller for the purposes of this deed and
who has executed a Seller Accession Certificate,
and where used in the context of a Trust means the Approved Seller in
relation to that Trust.
Assets in relation to a Trust means the assets being property of that
Trust from time to time including the following to the extent to
which they relate to the Trust:
(a) any Loans, Mortgages or other Receivables and any other
Receivable Securities and Related Securities and other
rights held by the Trustee in its capacity as the Trustee
of that Trust on and subject to the terms of the
Transaction Documents;
(b) cash, debts or other Authorised Investments;
(c) the interests of the Trustee in any Support Facility; and
(d) income accrued from Receivables and Authorised Investments.
Associate in relation to an entity means:
(a) a Related Corporation of that entity;
(b) an entity, or the trustee or manager of a trust, which
has a Controlling Interest in that entity, or a Related
Corporation of that entity;
(c) a Related Corporation of an entity included in paragraph
(b) or (e);
(d) a director of that entity or an entity included in
paragraph (a), (b) or (c) or of the manager or of the
trustee of any trust included in paragraph (a), (b) or
(c) or a spouse, child, parent or sibling of that
director;
Page 3
(e) a corporation, or the trustee or manager of a trust, in
which one or more entity or person mentioned in paragraph
(a), (b), (c), (d), (e), (f) or (g) alone or together has
a Controlling Interest;
(f) the trustee of a discretionary trust of which an entity
or person included in paragraph (a), (b), (c), (d), (e)
or (g) is a beneficiary (whether or not through one or
more other discretionary trusts); or
(g) an entity of which a director of that entity or a Related
Corporation of that entity is also a director.
For the purposes of this definition:
(i) where a person is a beneficiary of a discretionary trust,
that person shall be taken to own, and control, all the
assets of that trust;
(ii) director has the meaning given in the Corporations Law;
and
(iii) a person has a Controlling Interest in a corporation or
trust if:
(A) the corporation or its directors, or the
trustee or manager of the trust or its
directors, are accustomed, or under an
obligation, whether formal or informal, to
act in accordance with the directions,
instructions or wishes of that person or of
that person in concert with others; or
(B) the person has a relevant interest (as
defined in the Corporations
Law) in aggregate in more than 20% of the
issued or voting shares, units or other
interests in the corporation or trust (in
number, voting power or value), or would
have that relevant interest if any rights
were exercised to subscribe for, or acquire
or convert into, shares, units or other
interests which are issued or unissued.
The definition of relevant interest applies
as if units or other interests were shares.
Auditor in relation to a Trust means the auditor of that Trust
appointed from time to time under clause 28.
Austraclear means Austraclear Limited.
Austraclear Regulations means the regulations published by
Austraclear.
Austraclear System means the System as defined in the Austraclear
Regulations.
Australian Jurisdiction means a State or Territory of the
Commonwealth and the Commonwealth of Australia.
Authorisation includes:
(a) any consent, authorisation, registration, filing,
lodgement, agreement, notarisation, certificate,
permission, licence, approval, authority or exemption
from, by or with a Governmental Agency; or
(b) in relation to anything which will be fully or partly
prohibited or restricted by law if a Governmental Agency
intervenes or acts in any way within a specified period
after lodgement, filing, registration or notification,
the expiry of that period without intervention or action.
Page 4
Authorised Investments in respect of a Trust means, unless otherwise
specified in the relevant Series Notice, any investments which at
their date of acquisition are:
(a) Loans secured by Mortgages, those Mortgages and any other
Related Securities and Receivable Rights;
(b) other Receivables, Receivable Securities and Receivable
Rights approved by the Trust Manager;
(c) cash;
(d) bonds, debentures, stock or treasury bills of the
Commonwealth of Australia or the Government of any State
or Territory of the Commonwealth;
(e) debentures or stock of any public statutory body
constituted under the law of the Commonwealth of
Australia or of any State of the Commonwealth where the
repayment of the principal secured and the interest
payable thereon is guaranteed by the Commonwealth or any
State or Territory of the Commonwealth;
(f) notes of other securities of the Commonwealth of
Australia or the Government of any State or Territory of
the Commonwealth;
(g) (i) deposits with, or the acquisition of
certificates of deposit (whether negotiable,
convertible or otherwise), issued by, a Bank
which carries on business in Victoria and New
South Wales;
(ii) bills of exchange which at the time of
acquisition have a remaining term to
maturity of not more than 200 days, accepted
or endorsed by a Bank which carries on
business in Victoria and New South Wales,
which, in each case, has either:
(A) the highest short-term rating available to be
given by the Rating Agencies; or
(B) if such investment has a maturity of 30 days
or less and does not exceed 20% of the total
Invested Amount of all relevant Notes on the
date of the investment a short-term rating
of A-1/P-1 by the Rating Agencies;
(h) any other assets of a class of assets that are both:
(i) prescribed for the purposes of sub-paragraph
(iv) of the definition of a pool of
mortgages in section 84FA(1) of the Stamp
Duties Act, 1920 of New South Wales, or are
otherwise included within that definition of
pool of mortgages; and
(ii) declared by order of the Governor in Council
of Victoria and published in the Victorian
Government Gazette to be assets for purposes
of Subdivision 17A of the Stamps Act, 1958
of Victoria or are otherwise included within
sub-paragraph (b)(ii) of the definition of
pool of mortgages in section 137NA of that
Act.
(In paragraphs (b) - (g) inclusive of this definition, expressions
shall be construed and, if necessary read down, so that the Notes in
relation to any Trust constitute mortgage-backed securities for the
purposes of both the Stamp Duties Act, 1920 of New South Wales and
the Stamps Act, 1958 of Victoria.)
Page 5
Authorised Signatory means:
(a) in relation to The Mortgage Company Pty Limited (in
whatever capacity) or Westpac Banking Corporation (in
whatever capacity), any person from time to time
nominated as an Authorised Officer by an authorised
attorney of the Mortgage Company Pty Limited or Westpac
Banking Corporation (as the case may be) by notice to the
Trustee accompanied by:
(i) a certified copy of the power of attorney (if
not previously provided); and
(ii) a certified copy of the signatures of each
person so appointed;
(b) in relation to the Trustee, any duly appointed attorney
of the Trustee;
(c) except as provided in the relevant Series Notice or
Security Trust Deed, in relation to the Security Trustee
any officer or employee of the Security Trustee whose
title includes the word "Manager"; and
(d) in relation to any other person, any person from time to
time whose name, title or position and specimen signature
are set out in a certificate signed by two directors or
one director and one secretary of that person confirming
that person's appointment as an Authorised Signatory for
the purposes of this deed and/or any Transaction Document
to which that corporation is a party.
Authorised Trustee Investment means an investment in which a trustee
is for the time being authorised to invest trust funds under the laws
of an Australian Jurisdiction.
Bank means a corporation authorised under the Banking Act 1959 to
carry on general banking business in Australia or a corporation
formed or incorporated under an Act of the Parliament of an
Australian Jurisdiction to carry on the general business of banking.
Beneficiary means, in relation to a Trust, the person nominated in
the Notice of Creation of Trust for that Trust as the beneficiary of
that Trust (including, where relevant, the holder of any unit
representing an interest as beneficiary of the Trust).
Borrowing means, in relation to a Trust, any Financial Indebtedness
of the Trustee in its capacity as trustee of the Trust but does not
include any Financial Indebtedness of the Trustee in any other
capacity or in respect of any other Trust. Borrow has an equivalent
meaning.
Business Day means any day, other than a Saturday, Sunday or public
holiday, on which Banks are open for business in Sydney.
Xxxxxxxxx Charge Off in relation to Notes relating to a Trust has the
meaning, if any, given to that term in the relevant Series Notice for
that Trust.
Certificate of Title means, in relation to a Mortgaged Property, the
certificate of title (or, if one is not issued, the original
registration confirmation statement or similar document) (if any) to
that Mortgaged Property issued under any relevant legislation (and,
in the case of Land, issued under any Real Property Legislation).
Class in relation to Notes issued, or to be issued, in respect of a
Trust means Notes having as amongst themselves in all respects the
same rights or restrictions (and for this purpose a Seller Note is a
Class of Notes).
Closing Date means, in respect of a Trust, the date specified as the
Closing Date in the Series Notice or Sale Notice for that Trust.
Page 6
Collection Account means the account established and maintained under
clause 27 or, in relation to a Trust, any other account specified as
the Collection Account in the Series Notice for that Trust.
Collections in respect of a Trust means such amounts as may be
specified as Collections for the Trust in the relevant Series Notice.
Consumer Credit Legislation means any legislation relating to
consumer credit including:
(a) the Credit Act of any Australian Jurisdiction;
(b) the Consumer Credit Code (NSW) 1996; and
(c) any other equivalent legislation of any Australian Jurisdiction.
Coupon in relation to a Note and a Coupon Payment Date means the
amount of interest (if any) accrued in respect of that Note and due
for payment on that Coupon Payment Date, determined in accordance
with the corresponding Series Notice.
Coupon Payment Date in relation to a Note means each date for the
payment of interest under the Note as specified in the corresponding
Series Notice.
Creditor in relation to a Trust means a creditor of the Trustee
(including the Security Trustee, the Noteholders, the Approved
Seller, the Trustee as trustee of another Trust, the Servicer, the
Trust Manager, the Support Facility Providers and the Lead Manager
(if any) in relation to the Trust) in its capacity as trustee of the
Trust.
Cut-Off Date means, in relation to a Portfolio of Receivables, the
date specified as the Cut-off Date for the Receivables relating to
that Portfolio of Receivables in the relevant Note Issue Direction or
Series Notice.
Data Base in relation to the Trustee, the Trust Manager and any
Servicer means all information, data and records collected, held or
stored in any way or in any medium (including, without limitation,
computer retention and storage) by or for the Trustee, the Trust
Manager and the Servicer respectively relating to and including any
Receivable, Receivable Security or Related Security which is given or
transferred to the Trustee under or as contemplated by this deed.
Dealer Agreement means, in relation to any Notes, any dealer
agreement, subscription agreement, underwriting agreement or other
distribution agreement (however called) under which dealers, managers
or other persons agree to subscribe for, underwrite or otherwise
arrange the distribution of those Notes.
Designated Rating in relation to a Support Facility provided to, or
the benefit of which is held by, the Trustee as trustee of a Rated
Trust, means a credit rating of the party providing the Support
Facility as specified or approved by each Designated Rating Agency
for that Trust.
Designated Rating Agency in relation to Notes issued or to be issued
by the Trustee of a Trust, means each Rating Agency which has been
requested by the Trust Manager to rate such Notes in relation to that
Trust.
Distributable Income has the meaning given in clause 30.6.
Eligible Receivable means a Receivable or Receivable Security (as the
case may be) which meets the Eligibility Criteria for that
Receivable.
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Eligibility Criteria in respect of a Receivable or a Receivable
Security and a Trust has the meaning given in the corresponding
Series Notice for that Trust.
Enforcement Expenses in relation to a Purchased Receivable or a
Purchased Receivable Security has the meaning given in the relevant
Series Notice.
Expenses in relation to a Trust means any costs, charges or expenses
incurred by the Trustee or the Trust Manager in the administration or
operation of the Trust under the Transaction Documents for that
Trust, including the following to the extent to which they relate to
that Trust:
(a) any such amounts payable or incurred by the Trustee or
the Trust Manager in the acquisition, maintenance,
review, administration or disposal of an Authorised
Investment or Asset;
(b) any such amounts payable under or incurred by the Trustee
or the Trust Manager under any Security Trust Deed;
(c) any fees and other amounts payable to the Trust Manager
under this deed (including Enforcement Expenses incurred
in connection with the enforcement of any Receivable
Security);
(d) any fees and expenses payable to the Auditor or any other
auditor;
(e) any fees and expenses payable by the Trustee (including
in its personal capacity) to the Designated Rating Agency
as agreed between the Trustee and the Trust Manager from
time to time;
(f) the cost and expenses of registering caveats or
transfers of any Receivable or Receivable Security;
(g) any fees and expenses charged from time to time by
Austraclear to the Trustee's account in the exercise of
the Trustee's power under clause 21.2(k);
(h) any costs of postage and printing of all cheques,
accounts, statements, notices, Note Acknowledgements and
other documents required to be posted to a Beneficiary or
Noteholders of the Trust under this deed;
(i) any costs of any valuation of the Trust or of any Asset
of the Trust;
(j) any expenses incurred in connection with Trust Accounts
of the Trustee in relation to the Trust and bank fees
(including account keeping fees) and other bank or
government charges (including bank account debits, tax
and charges in respect of financial institutions duty)
incurred in connection with the keeping of, or the
transaction of business through, the internal accounts
and bank accounts of the Trustee and their management;
(k) any fees, charges and amounts which are paid or payable
to any person appointed or engaged by the Trustee or the
Trust Manager pursuant to this deed to the extent that
the fees, charges and amounts would be payable or
reimbursable to the Trustee or the Trust Manager under
any other provision of this definition or under any
other provision of this deed if the services performed
by the person so appointed or engaged had been carried
out directly by the Trustee or the Trust Manager and to
the extent that those fees, charges and amounts are
reasonable in amount and properly incurred;
Page 8
(l) the amount of any indemnity from the Trust claimed by the
Trustee or the Trust Manager under clause 33.12;
(m) all legal costs and disbursements (calculated in the same
manner as under clause 33.12) incurred by the Trust
Manager and the Trustee in relation to:
(i) any subsequent consent, agreement, approval,
waiver or amendment under, of or to any
Transaction Document; or
(ii) any matter of concern to the Trust Manager
or the Trustee in relation to a Transaction
Document or the Trust (provided that those
costs and disbursements cannot be incurred
unless the expenditure has first been
notified to the Trust Manager);
(n) any costs incurred by the Trust Manager or the Trustee
in, or in connection with, the retirement or removal
(other than removal on the grounds of their own default)
of the Trustee or the Trust Manager respectively under
this deed and the appointment of any person in
substitution to the extent that those costs are
reasonable in amount and properly incurred;
(o) any other costs, charges, expenses, fees, liabilities,
Taxes (including stamp duty payable on cheques), imposts
and other outgoings properly incurred by the Trustee or
the Trust Manager in exercising their respective powers,
duties and obligations under this deed or any other
Transaction Document (other than the Notes);
(p) any legal costs and disbursements incurred by the Trustee
in connection with court proceedings brought against it
under this deed (except where the Trustee is found to
have been in breach of this deed or to have acted in
breach of its duties);
(q) any costs incurred by the Trustee in, or in connection
with, the retirement or removal of the Servicer and the
appointment of any substitute to the extent those costs
are reasonable in amount and properly incurred;
(r) any costs and expenses which the Trustee is obliged to
reimburse under clause 7.1 or 7.2 of the Servicing
Agreement; and
(s) any amount specified as an Expense in the Series Notice
for a Trust,
provided that general overhead costs and expenses of the Trustee and
the Trust Manager (including, without limitation, rents and any
amounts payable by the Trustee or the Trust Manager (as applicable)
to its employees in connection with their employment) incurred
directly or indirectly in connection with the business of the Trustee
or the Trust Manager (as applicable) or in the exercise of its
rights, powers and discretions or the performance of its duties and
obligations in relation to the Trust shall not constitute Expenses.
Expiry Time means, in relation to a Sale Notice, the time specified
as the expiry time in that Sale Notice.
Extraordinary Resolution in relation to the Noteholders of a Trust or
any Class means, subject to the provisions of any Security Trust Deed
in respect of the relevant Trust:
(a) a resolution passed at a meeting of the Noteholders of
that Trust or Class (as the case may be) duly convened
and held in accordance with the provisions contained in
clause 17 by a majority consisting of not less than 75%
of the votes able to be cast by Noteholders cast (by show
of hands or poll, as the case may be); or
Page 9
(b) a resolution in writing under clause 17.15 signed by all
the Noteholders of that Trust or Class.
Fair Market Value means:
(i) in relation to a Purchased Receivable and the related
Receivable Rights, the fair market value of that
Purchased Receivable and those Receivable Rights agreed
between the Trustee (acting on appropriate expert advice)
and the Approved Seller, or in the absence of such
agreement as determined by the Auditor; or
(ii in relation to any other Receivable and the related
Receivable Rights, the fair market value of that
Receivable and those Receivable Rights determined by the
Trust Manager (acting on appropriate expert advice,
including where relevant the Auditor),
in all cases as reflecting the status of the Receivable as a
performing or non-performing Receivable (as determined by the
relevant Servicer) and any benefit in respect of that Receivable
which the intended purchaser will have under any relevant Support
Facility. The Trustee shall be entitled to assume that a purchase
price offered to it for a Purchased Receivable and the related
Receivable Rights which is equal to or exceeds the relevant Unpaid
Balance is equal to or exceeds the Fair Market Value of that Purchase
Receivable and the related Receivable Rights.
Financial Indebtedness means any indebtedness, present or future,
actual or contingent in respect of moneys borrowed or raised or any
financial accommodation whatever. It includes indebtedness under or
in respect of a negotiable or other financial instrument, guarantee,
interest, gold or currency exchange, hedge or arrangement of any
kind, redeemable share, share the subject of a guarantee, discounting
arrangement, finance or capital lease, hire purchase, deferred
purchase price (for more than 90 days) of an asset or service or an
obligation to deliver goods or other property or provide services
paid for in advance by a financier or in relation to another
financing transaction.
Financial Year in relation to each Trust means:
(a) each consecutive period of 12 months from 1 July in each
year until 30 June in the following year; or
(b) any other consecutive period of 12 months as may at any
time be substituted for the consecutive period referred
to in paragraph (a) of this definition by determination
of the Trust Manager with the approval of the Trustee,
and includes,
(c) any consecutive period greater or less than 12 months
that may arise as a result of the adoption of any
substituted period under paragraph (b) of this
definition;
(d) the period commencing on the date of its creation under
this deed to the next succeeding 30 June, or, if a
substituted period is in force under this definition in
respect of the Trust at its commencement, then to the
immediately succeeding date of termination of that
substituted period; and
(e) the period to the Termination Date of the Trust from the
immediately preceding 1 July or, if a substituted period
is in force under this definition at the Termination Date
then from the immediately preceding date of commencement
of that substituted period.
Page 10
Future Agreement means the agreement formed between an Approved
Seller and the Trustee if the Trustee accepts a Sale Notice given
under clause 8.
Government Agency means:
(a) any body politic or government in any jurisdiction,
whether federal, state, territorial or local;
(b) any minister, department, office, commission,
instrumentality, agency, board, authority or organisation
of any government or in which any government is
interested;
(c) any corporation owned or controlled by any government.
Hedge Agreement means, in relation to a Trust, any futures contract,
option agreement, hedge, swap, cap, forward rate agreement or other
arrangement in relation to interest rates made by the Trustee
(whether alone or with the Trust Manager or any other person) with
respect to the Receivables in, or Notes issued in relation to, that
Trust in accordance with this deed, as specified in the relevant
Series Notice.
Information Memorandum means, in relation to the issue of any Notes,
any publicity documents publicly circulated to prospective investors
in relation to that issue entitled "Information Memorandum",
"Offering Circular" or a similar name, but does not include any term
sheet or general correspondence in relation to the placement of any
Notes.
Initial Invested Amount in relation to a Note has the meaning given
in the relevant Series Notice for that Note.
Insolvency Event in relation to the Trustee (in its personal capacity
and as trustee of a Trust), the Trust Manager, a Servicer, or a
Mortgage Insurer (each a relevant corporation) means the happening of
any of the following events:
(a) an administrator of the relevant corporation is
appointed;
(b) except for the purpose of a solvent reconstruction or
amalgamation:
(i) an application or an order is made,
proceedings are commenced, a resolution is
passed or proposed in a notice of meeting or
an application to a court or other steps
(other than frivolous or vexatious
applications, proceedings, notices and
steps) are taken for:
(A) the winding up, dissolution or
administration of the relevant
corporation; or
(B) the relevant corporation
entering into an arrangement,
compromise or composition with
or assignment for the benefit of
its creditors or a class of
them; or
(ii) the relevant corporation ceases, suspends or
threatens to cease or suspend the conduct of
all or substantially all of its business or
disposes of or threatens to dispose of
substantially all of its assets; or
(c) the relevant corporation is, or under applicable
legislation is taken to be, unable to pay its debts
(other than as the result of a failure to pay a debt or
claim the subject of a good faith dispute) or stops or
suspends or threatens to stop or suspend payment of all
or a class of its debts (except, in the case of the
Trustee where this occurs in relation to another trust of
which it is the trustee);
Page 11
(d) a receiver, receiver and manager or administrator is
appointed (by the relevant corporation or by any other
person) to all or substantially all of the assets and
undertaking of the relevant corporation or any part
thereof (except, in the case of the Trustee where this
occurs in relation to another trust of which it is the
trustee); or
(e) anything analogous to an event referred to in paragraphs
(a) to (d) (inclusive) or having substantially similar
effect, occurs with respect to the relevant corporation.
Insurance Policy means:
(a) in relation to a Loan, any fire and/or risks insurance
policy or other general insurance policy in force in
respect of that Loan or the related Mortgaged Property;
or
(b) in relation to any other Receivable, any insurance policy
taken out with respect to the assets from which that
Receivable is derived.
Insurance Proceeds means any payments received by the designated
beneficiary of an Insurance Policy.
Invested Amount in relation to a Note has the meaning given in the
relevant Series Notice for that Note.
Investment Direction means:
(a) a Note Issue Direction; or
(b) a Warehouse Trust Direction.
Land means:
(a) any estate or interest whether at law or in equity in
freehold or leasehold land situated in an Australian
Jurisdiction, including all improvements on that land;
and
(b) any parcel and any lot, common property and land
comprising a parcel within the meaning of the Strata
Titles Act, 1973 (New South Wales) or the Community Land
Development Act, 1989 (New South Wales) or any equivalent
legislation in any other Australian Jurisdiction.
Lead Manager means, in relation to any issue of Notes, any person who
is appointed as lead manager, co-lead manager, arranger, co-arranger
or any similar participant in relation to that issue.
Liquidity Facility Agreement in relation to a Trust means any
agreement specified as a Liquidity Facility Agreement in the Series
Notice for that Trust.
Liquidity Facility Provider means in relation to a Liquidity Facility
Agreement the bank or financial institution which provides that
facility or if it is a syndicated facility the bank or financial
institution which is the agent under that facility.
Loan means a loan originated or acquired by the Trustee in accordance
with this deed.
Marked Note Transfer means a Note Transfer marked by the Trustee in
accordance with clause 14.15.
Page 12
Maturity Date in relation to a Note means the date specified in the
corresponding Series Notice to be the last or, where there is only
one specified, the Payment Date for the Note.
Moody's means Xxxxx'x Investor Services Inc or Xxxxx'x Investor
Services Pty Limited, and their respective successors and assigns.
Mortgage means a registered (or pending registration, registrable)
mortgage over Land, situated in any Australian Jurisdiction, which is
either:
(a) originated by the Trustee under this deed; or
(b) originally granted to the relevant Approved Seller,
and securing the repayment of the principal amount of a Loan and all
other moneys payable under the Loan.
Mortgaged Property means:
(a) in relation to a Mortgage, the Land the subject of that
Mortgage; and
(b) in relation to any other Receivable Security, the
property subject to that Receivable Security.
Mortgage Insurance Policy means a policy of insurance under which a
Mortgage Insurer insures the Trustee as trustee of a Trust against
loss under a Receivable which is an Asset of that Trust.
Mortgage Insurance Proceeds means any amounts received by the Trustee
(or a Servicer on its behalf) under any Mortgage Insurance Policy.
Mortgage Insurer means any mortgage insurer specified, in relation to
a Trust, as a Mortgage Insurer in the Series Notice for that Trust.
Mortgagor means the security provider under a Receivable Security.
Note means:
(a) a debt security issued by the Trustee as trustee of a
Trust in accordance with clause 10;
(b) a Seller Note; or
(c) any other security or instrument issued by the Trustee
and agreed by the Trustee and the Trust Manager to be a
Note.
Note Acknowledgement means an acknowledgment of the registration of a
person as the holder of a Note in the form set out in schedule 2 or
in such other form as may from time to time be agreed between the
Trustee and the Trust Manager.
Noteholder means, in relation to a Trust at any given time:
(a) a person then appearing in the Register as the holder of
a Note with respect to that Trust;
(b) the holder of a Seller Note with respect to that Trust
(if not covered in paragraph (a)); or
Page 13
(c) in relation to a Warehouse Trust, each Warehouse Facility
Provider in relation to that Warehouse Trust except where
the relevant reference to Noteholder relates to the
application or subscription for, or the issue or holding
of, Notes.
Note Issue Date in relation to a Trust and Notes means the date on
which the Notes are issued by the Trustee as trustee of that Trust
and, in the case of a proposed issue of Notes, means the date for
this referred to in the corresponding Note Issue Direction.
Note Issue Direction means a direction by the Trust Manager to the
Trustee substantially in the form of schedule 3 or in such other form
as may from time to time be agreed between the Trustee and the Trust
Manager.
Note Transfer means a transfer and acceptance of Notes materially in
the form of schedule 4 or in such other form as may from time to time
be agreed between the Trustee and the Trust Manager.
Notice of Creation of Trust means a notice substantially in the form
of schedule 5 or in such other form as may from time to time be
agreed between the Trustee and the Trust Manager.
Obligor means, in relation to a Receivable, the person who is obliged
to make payments with respect to that Receivable, whether as a
principal or secondary obligation (and in the case of a Loan means
the person who is the account debtor under that Loan), and includes
where the context requires, any other person obligated to make
payments with respect to that Receivable (including any guarantor).
Other Secured Liability means a loan, financial obligation or other
liability that is at any time secured by a Purchased Receivable
Security, other than a Purchased Receivable and any amounts payable
under any relevant Receivable Agreement or otherwise payable in
connection with a Purchased Receivable.
Payment Date means a Coupon Payment Date or a Principal Repayment
Date.
Portfolio of Receivables means the Receivables specified by the Trust
Manager in an Investment Direction as a class or type of Receivable
that has substantially the same terms and conditions.
Principal Entitlement in relation to a Note and a Principal Repayment
Date means the amount of principal in respect of the Note due to be
repaid on that Principal Repayment Date, determined in accordance
with the corresponding Series Notice.
Principal Repayment Date in relation to a Note means each date for
the repayment of part or all of the outstanding principal in relation
to the Note as specified in the corresponding Series Notice.
Privacy Act means the Privacy Act 1988 (Cth) or any equivalent law of
any Australian Jurisdiction.
Purchase Price means, in relation to Receivables and related
Receivable Rights offered for sale under a Sale Notice, the Purchase
Price specified in the relevant Sale Notice as adjusted (where
relevant) in accordance with that Sale Notice.
Purchased Receivable means a Receivable referred to in a Sale Notice
which is accepted by the Trustee unless the Trustee has ceased to
have an interest in that Receivable.
Purchased Receivable Security means a Receivable Security referred to
in a Sale Notice which is accepted by the Trustee, unless the Trustee
has ceased to have any interest in that Receivable Security.
Page 14
Rated Trust means a Trust in respect of which there is a Designated
Rating Agency.
Rating Agency means Moody's, S&P or any other recognised rating
agency designated from time to time in writing by the Trust Manager
to the Trustee.
Real Property Legislation means any law relating to the registration,
priority or effectiveness of any mortgage over land in any State or
Territory of Australia.
Receivable means a right or interest under or in relation to any
asset which generates revenue over time, including:
(a) a residential or commercial loan (including a Loan);
(b) an operating or finance lease (including a lease of real
property, plant and equipment and a hire purchase
agreement);
(c) a trade receivable;
(d) an automobile receivable;
(e) a credit or charge card receivable; and
(f) any other receivable or other form of monetary
obligation.
Receivable Agreement means in relation to a Receivable, any agreement
or arrangement entered into between:
(a) if the Receivable is originated by the Trustee under this
deed, the Trustee; or
(b) if the Receivable is acquired by the Trustee from an
Approved Seller under this deed, the Approved Seller,
and the Obligor under which the Obligor incurs obligations to the
Trustee or Approved Seller (as the case may be) with respect to the
Receivable, and in the case of an agreement entered into by an
Approved Seller in a form provided to the Trustee by the Approved
Seller before the Sale Notice with respect to that Receivable is
given.
Receivable Rights means, in relation to Receivables to be acquired by
the Trustee from an Approved Seller, all of the Approved Seller's or
the Trustee's (as the context requires) right, title, benefit and
interest (present and future) in, to, under or derived from:
(a) the Receivables and Receivable Securities specified in
the relevant Sale Notice; and
(b) such of the following as relate to those Receivables and
Receivable Securities:
(i) the Related Securities;
(ii) the Relevant Documents;
(iii) the Collections; and
(iv) all moneys, present, future, actual or
contingent, owing at any time by an Obligor
(whether alone or with another person) or
any other person (other than the Approved
Seller) under or in connection with a
Related Security, including all principal,
interest, reimbursable costs and expenses
and any other amounts incurred by or payable
to the Approved Seller, irrespective
Page 15
of whether such amounts relate to advances
made or other financial accommodation
provided by the Approved Seller to any
Obligor before or after the Closing Date,
but does not include:
(c) any Other Secured Liability; and
(d) in relation to the Receivables and Receivable Securities
specified in a Sale Notice:
(i) any interest or finance charges accrued up
to but excluding the Closing Date (or any
other date specified for that purpose in the
Sale Notice) which are unpaid as at close of
business on that date; and
(ii) any interest in Collections received or
applied by the Approved Seller before the
Cut-Off Date (or any other date specified
for that purpose in the Sale Notice),
if so specified in the Sale Notice.
Receivable Security means:
(a) in relation to a Loan, a Mortgage or any guarantee
relating to that Loan; or
(b) in relation to any other Receivable, any guarantee,
indemnity or Security Interest granted in respect of, or
in connection with, that Receivable.
Record Date means, with respect to a Payment Date for any Note, the
date specified in the Series Notice for the Trust to which that Note
relates.
Redraw Facility Agreement means in relation to a Trust any facility
specified as a Redraw Facility Agreement in the Series Notice for
that Trust.
Redraw Facility Provider means, in relation to a Trust, a person who
has entered into or agreed to make available a Redraw Facility
Agreement to the Trustee in relation to that Trust.
Register means, in relation to a Trust, the register of Noteholders
for that Trust maintained by or on behalf of the Trustee under clause
16.
Registered Company Auditor has the same meaning as in the
Corporations Law.
Related Corporation has the meaning given to related body corporate
in the Corporations Law.
Related Receivable means, in relation to a Receivable Security, the
Receivable secured by that Receivable Security.
Related Security in relation to a Receivable means:
(a) any Relevant Document for that Receivable;
(b) any Insurance Policy or Insurance Proceeds with respect
to the Receivable; and
(c) any Mortgage Insurance Policy or Mortgage Insurance
Proceeds with respect to the Receivable; or
(d) any other agreement specified as a Related Security for
the Receivable in the relevant Series Notice.
Page 16
Relevant Document means, with respect to a Receivable:
(a) the Receivable Agreement relating to that Receivable;
(b) the mortgage document in relation to each Receivable
Security for that Receivable;
(c) the Certificate of Title for the Mortgaged Property
secured by each Receivable Security;
(d) any amendment or replacement of such documents and any
other document which is entered into by or executed in
favour of the Approved Seller or Trustee (as the case may
be) in connection with that Receivable after the Cut-Off
Date; or
(e) any other document specified as a Relevant Document in
the relevant Series Notice,
but does not include any document or agreement which relates only to
an Other Secured Liability.
Representative means:
(a) in the case of any Noteholder, a person appointed as a
proxy for that Noteholder under clause 17.9; and
(b) without limiting the generality of paragraph (a), in the
case of a Noteholder which is a body corporate, a person
appointed under clause 17.10 by the Noteholder.
Repurchase Date has the meaning, in relation to a Purchased
Receivable and the related Receivable Rights, given in clause
8.6(d)(ii)(D) with respect to the Purchased Receivable and related
Receivable Rights.
Repurchase Price means, in relation to a Purchased Receivable and the
related Receivable Rights, the price determined under clause
8.9(d)(iv).
S&P means Standard & Poor's (Australia) Pty Limited and its
successors and assigns.
Sale Notice means:
(a) in relation to purchase of Receivables by a Trust other
than from another Trust, a notice in the form of annexure
A given under clause 8; or
(b) in relation to a purchase of Receivables by a Trust from
another Trust, a notice in the form agreed by the Trustee
and the Trustee Manager in relation to that purchase.
Sale Termination Date means in relation to the obligations of a party
relating to a Sale Notice, the earlier of:
(a) the date 3 months after the date on which the last
relevant Purchased Receivable is discharged; and
(b) the date the Trustee (whether in its capacity as trustee
of the Trust to which the Purchased Receivables related
or as trustee of another Trust, including a Warehouse
Trust) ceases to have any interest in the relevant
Purchased Receivable and related Receivable Rights.
Security Interest includes any mortgage, pledge, lien, charge,
encumbrance, hypothecation, title retention, preferential right or
trust arrangement.
Page 17
Security Trust Deed in relation to a Trust means a deed between the
Trustee as trustee of that Trust, the Trust Manager and the Security
Trustee for that Trust under which, amongst other things, the Trustee
as trustee of the Trust charges all or some of the Assets of the
Trust to secure the payment of moneys owing to the Noteholders and
other Creditors of the Trust in favour of that Security Trustee as
trustee for such Noteholders and other Creditors.
Security Trustee means, in relation to a Trust, any person who is
appointed as security trustee in relation to the Assets of that
Trust.
Seller Accession Certificate means a certificate in the form of
annexure B.
Seller Note means, in relation to a Trust, a debt security issued by
the Trustee to the relevant Approved Seller under clause 11.
Series Notice means:
(a) in relation to a Warehouse Trust:
(i) to the extent that no notice referred to in
paragraph (b) has been given, a Warehouse
Trust Direction which satisfies the
requirements of Clause 7.2; and
(ii) to the extent so provided in the relevant
Warehouse Facility Agreement, that Warehouse
Facility Agreement; or
(b) in each other case, a written notice from the Trust
Manager to the Trustee materially in the form of annexure
D satisfying the requirements of clause 13.3.
Servicer means, in relation to a Trust, the person appointed to
service the Assets of that Trust.
Servicer Transfer Event in relation to a Trust has the meaning (if
any) given to that term in the Servicing Agreement for that Trust.
Servicer's Report means, in relation to a Trust, the report to be
provided by the relevant Servicer to the Trustee and the Trust
Manager under clause 25.3 which is in the format and includes the
information agreed between the Servicer, the Trust Manager and the
Trustee or set out in any Series Notice.
Servicing Agreement means, in relation to a Trust, any agreement
under which a Servicer is appointed to service any of the Assets of
that Trust.
Stated Amount in relation to a Note has the meaning given in the
relevant Series Notice for that Note.
Subscription Amount in relation to any proposed Notes means the total
amount payable by the proposed Noteholders as specified in the
corresponding Note Issue Direction.
Support Facility in relation to a Trust means:
(a) any Mortgage Insurance Policy;
(b) any Liquidity Facility Agreement;
(c) any Hedge Agreement;
(d) any Redraw Facility Agreement;
Page 18
(e) any Warehouse Facility Agreement;
(f) any other security, support, rights or benefits in
support of or substitution for an Authorised Investment
or the income or benefit arising thereon on an Authorised
Investment, for the financial management, credit
enhancement or liquidity support of the assets and
liabilities of the Trust; or
(g) any other facility specified as a Support Facility in
the relevant Series Notice,
entered into by the Trustee for that Trust.
Support Facility Provider means, in relation to a Trust, any person
who has entered into or agreed to make available a Support Facility
(other than a Mortgage Insurance Policy) to the Trustee in relation
to that Trust.
Taxation Act means the Income Tax Assessment Act 1936 (Commonwealth).
Tax and Taxes means any tax, levy, impost, deduction, charge, rate,
stamp duty, financial institutions duty, bank accounts debit tax or
any other tax, withholding or remittance of any nature which is now
or later payable or required to be remitted to, or imposed or levied,
collected or assessed by a Government Agency, together with any
interest, penalty, charge, fee or other amount imposed or made in
respect thereof.
Termination Date in relation to a Trust means the earliest of the
following dates in relation to that Trust:
(a) the eightieth anniversary of the date of creation of
that Trust under this deed;
(b) the date on which the Trust terminates by operation of
statute or by the application of general principles of
law;
(c) if Notes have been issued by the Trustee as trustee of
the Trust the earliest of:
(i) the Business Day immediately following the
date on which the Trustee pays in full all
moneys due or which may become due, whether
contingently or otherwise, to the Creditors
of the Trust (as determined by the Auditor,
that determination to be conclusive); or
(ii) following the occurrence of an Event of
Default under any Security Trust Deed, the
Security Trustee has enforced to the fullest
extent that it is able to do so all of its
powers under the Security Trust Deed which
arise on the occurrence of that Event of
Default or on the Security Trust Deed
becoming enforceable, and has distributed
all of the amounts which it is required to
distribute under the Security Trust Deed (as
determined by the Auditor, that
determination to be conclusive),
and the Trustee has received a confirmation from the
Australian Taxation Office that the Trustee has lodged
its final tax return in relation to that Trust; or
(d) if Notes have not been issued by the Trustee as trustee
of the Trust, the date appointed by the Trust Manager as
the Termination Date by notice in writing to the Trustee
(which, if the Trust is a Warehouse Trust, must be after
the date on which all amounts have been fully and finally
repaid under the relevant Warehouse Facility Agreement)
after the Trustee has received a confirmation from the
Australian Taxation Office that the Trustee has lodged
its final tax return in relation to that matter,
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but a Trust shall not terminate under paragraphs (c) or (d) until the
Trustee, in relation to that Trust, ceases to hold any Trust Back
Assets.
Threshold Rate means, in relation to the Receivables, the interest
rate (expressed as a per centum per annum) determined by the Trust
Manager in accordance with the relevant Series Notice.
Title Documents means any document of title or other document in
relation to any Authorised Investment.
Title Perfection Event means, in relation to a Trust, each of the
events referred to in clause 8.9 for that Trust and the events (if
any) specified as Title Perfection Events in the relevant Series
Notice.
Transaction Documents means:
(a) this deed;
(b) any Series Notice;
(c) any Seller Accession Certificate;
(d) any Security Trust Deed;
(e) any Servicing Agreement;
(f) any Support Facility;
(g) any Note or document evidencing a Note from time to time;
(h) any other document which is expressed (in a Series Notice
or otherwise) to be, or which is agreed by the Trust
Manager and Trustee to be, a Transaction Document for the
purposes of this deed; and
(h) any other document that is executed under or which is or
is expressed to be incidental or collateral to, any
other Transaction Document,
but in relation to a Trust means only those of the above documents
which relate to that Trust.
Transfer of Receivable Security means:
(a) in relation to a Mortgage or other Related Security that
is a registered mortgage of Land, a transfer of mortgage
relating to that Mortgage or Related Security under the
Real Property Legislation which, on registration, would
result in the Trustee being the registered mortgagee of
that Mortgage or Related Security; and
(b) in relation to any other Receivable Security and if
required by relevant legislation or practices a transfer
of Security Interest relating to that Receivable Security
which, on registration, would result in the Trustee being
the registered holder of that Receivable Security.
Trust Back means, in relation to a Trust, the trust (if any) referred
to in Clause 8.4 for that Trust.
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Trust Back Assets means, in relation to a Trust, such right under or
interest in the Receivables and Receivable Securities specified in
the Sale Notice relating to that Trust and the related Collections to
the extent that such right or interest relates to (but only to the
extent that it relates to) any Other Secured Liabilities.
Trust means each Trust constituted from time to time under clause 3.
Trust Manager's Default means:
(a) in relation to a Warehouse Trust, the happening of any
events specified in clauses 20.1(a) and 20.1(b) (but in
the case of an event under clause 20.1(a), only to the
extent that the relevant Warehouse Facility Provider has
not waived or excused that failure to pay); and
(b) in relation to a in relation to any other Trust, means
the happening of any of the events specified in clause
20.1.
Trust Manager's Fee in relation to a Trust means the Trust Manager's
fee in relation to that Trust referred to in clause 19.
Trust Manager's Report means, in relation to a Trust, the report to
be provided by the Trust Manager to the Trustee and the Rating Agency
under clause 18.15 which is in the format and includes the
information agreed by the Trust Manager and the Trustee or set out in
the relevant Series Notice.
Trustee's Default in relation to a Trust means the occurrence of any
of the events specified in clause 24.1.
Trustee's Fee in relation to a Trust means the Trustee's fee for that
Trust under clause 23.1.
Unpaid Balance means:
(a) in relation to any Loan at any time, the sum of:
(i) the unpaid principal amount of that Loan;
and
(ii) the unpaid amount of all finance charges,
interest payments and other amounts accrued
on or payable under or in connection with
that Loan or the related Receivable Rights
at that time,
or the amount otherwise stated to be the Unpaid Balance
for that Loan, in the relevant Series Notice; or
(b) in relation to any other Receivable, the amount stated to
be the Unpaid Balance for the Receivable in the relevant
Series Notice.
Warehouse Facility Agreement means, in relation to a Trust, any
facility specified as a Warehouse Facility Agreement in the Series
Notice for that Trust, under which one or more financial institutions
or other persons agree to make available financial accommodation to
the Trustee to enable it to acquire Receivables.
Warehouse Facility Provider means, in relation to a Trust, a person
who has entered into or agreed to make available a Warehouse Facility
Agreement to the Trustee in relation to that Trust.
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Warehouse Trust means a Trust under which the Trustee originates or
acquires Receivables using the proceeds of financial accommodation
provided under a Warehouse Facility Agreement, some or all of which
Receivables may subsequently be acquired by one or more other Trusts.
Warehouse Trust Direction means a direction by the Trust Manager to
the Trustee materially in the form of Schedule 7 or in such other
form as may from time to time be agreed between the Trustee and the
Trust Manager.
Westpac means Westpac Banking Corporation (ARBN 007 457 141).
1.2 Interpretation
Headings are for convenience only and do not affect interpretation.
The following rules of interpretation apply unless the context
requires otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical
forms have a corresponding meaning.
(d) A reference to a person includes a body corporate, an
unincorporated body or other entity and conversely.
(e) A reference to a clause, schedule or annexure is to a
clause of, or schedule or annexure to, this deed.
(f) A reference to any party to this deed or any other
agreement or document includes the party's successors and
permitted assigns.
(g) A reference to any agreement or document is to that
agreement or document as amended, novated, supplemented,
varied or replaced from time to time, except to the
extent prohibited by this deed.
(h) A reference to any legislation or to any provision of any
legislation includes any modification or re-enactment of
it, any legislative provision substituted for it and all
regulations and statutory instruments issued under it.
(i) Mentioning anything after include, includes or including
does not limit what else might be included
(j) A reference to dollars or $ is to Australian currency.
(k) Where any word or phrase is given a defined meaning any
other part of speech or other grammatical form in respect
of such word or phrase has a corresponding meaning.
(l) Where the day on or by which any sum is payable under
this deed or any act, matter or thing is to be done is a
day other than a Business Day such sum shall be paid and
such act, matter or thing shall be done on the next
succeeding Business Day.
(m) A word or phrase defined in the Corporations Law has the
same meaning in this deed.
(n) All accounting terms shall be interpreted in accordance
with the Approved Accounting Standards.
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(o) A reference to a month is to a calendar month.
(p) A reference to any document is to such document as
amended, varied, supplemented or novated from time to
time.
1.3 Binding on Noteholders
This deed shall be binding on all Noteholders as if each was
originally a party to this deed.
PART B - TRUSTS
2. TRUSTEE OF WST TRUSTS
2.1 Appointment of Trustee
The Trustee is appointed, and agrees to act, as trustee of each Trust
on, and subject to, the terms and conditions of this deed.
2.2 Trustee to act in interests of Beneficiary and Noteholders of a Trust
The Trustee shall, in respect of each Trust, act in the interests of
the Beneficiary and Noteholders in relation to that Trust on, and
subject to, the terms and conditions of this deed. In the event of
any conflict of interests, the interests of the Noteholders will
prevail.
2.3 Separate and distinct Trusts
Each Trust shall be a separate and distinct trust fund held by the
Trustee on separate and distinct terms and conditions.
2.4 Termination of deed
This deed shall terminate on the date agreed by the Trustee and the
Trust Manager if at that date:
(a) there are no Trusts in existence;
(b) the Trustee and the Trust Manager are satisfied that all
Notes have been fully redeemed and all Creditors paid in
full;
(c) there is no Sale Notice which has been given to the
Trustee but which has not at that date been accepted or
rejected by the Trustee; and
(d) there is no Investment Direction which has been given to
the Trustee but which has not been acted on or rejected
by the Trustee.
3. THE TRUSTS
3.1 Beneficial Interest in the Trusts
(a) The Trustee shall hold each part of each Trust, and each
Asset of each Trust from time to time, on trust for the
relevant Beneficiary on and subject to the terms and
conditions of this deed.
Page 23
(b) The interest of a Beneficiary under a Trust may be
evidenced by the issue of one or more units by the
Trustee, if the relevant Series Notice so specifies. A
unit may give the holder a right only to capital or only
to income, or may give such other rights as the relevant
Series Notice may provide. If a Beneficiary has paid all
subscription and other moneys payable by it for the
issue of a unit, the interests of that Beneficiary under
paragraph (a) are not affected by the failure of the
Trustee to issue any such unit.
3.2 Creation of Trusts
(a) (Trust Manager may create) The Trust Manager may at any
time create a Trust by lodging with the Trustee:
(i) (notice of creation) a duly completed and
executed Notice of Creation of Trust; and
(ii (initial Assets) the sum of $10.00 to
constitute the initial Assets of the
additional Trust (which sum may be
evidenced, at the time of creation of that
Trust or a later date, by the issue of a
unit under clause 3.1).
(b) (Constitution of a Trust) On satisfaction of clause
3.2(a), the additional Trust referred to in the
corresponding Notice of Creation of Trust under clause
3.2(a)(i) shall be created.
(c) (No limit on Trusts) There shall be no limit on the
number of Trusts that may be created under this deed.
3.3 Name of the Trusts
(a) Each Trust which is not a Warehouse Trust shall be known
as:
(i) (initial name) the Series X-Y Trust, where X
represents the year in which the Trust was
created and Y represents the consecutive
order of creation of the Trust; for example,
in the case of the first Trust the Series
1997-1 WST Trust; or
(ii (alternative name) such other name as the
Trustee, the Trust Manager and the relevant
Approved Seller (if any) may from time to
time agree.
(b) Each Warehouse Trust shall be known as:
(i) the WST Warehouse Trust #Z where Z is the
number of order of creation of Warehouse
Trusts; for example, in the case of the
first Warehouse Trust the WST Warehouse
Trust #1; or
(ii (alternative name) such other name as the
Trustee and the Trust Manager and the
relevant Approved Seller may from time to
time agree.
3.4 Duration of a Trust
Each Trust shall continue until, and shall terminate on, its
respective Termination Date.
3.5 Termination; winding up
(a) (Realisation of Assets) Subject to this clause 3 and to
the Transaction Documents, immediately following the
Termination Date of a Trust the Trustee in consultation
with the Trust Manager must:
Page 24
(i) sell and realise the Assets of that Trust
(having obtained appropriate expert advice
prior to the sale of any Receivable or
Receivable Security); and
(ii) so far as reasonably practicable and
reasonably commercially viable, and subject
to this clause, complete the sale within 180
days after the Termination Date for that
Trust.
(b) (First right of refusal) Where an Approved Seller has a
first right of refusal in relation to those Receivables
or Receivable Securities under clause 8.9(c), the Trustee
must comply with that clause 8.9(c).
(c) (Sale within 180 days) During the 180 day period after
the Termination Date of a Trust, the Trustee must not
(subject to paragraph (d)) sell any Receivables and the
related Receivable Rights for an amount less than:
(i) in the case of performing Receivables, their
Unpaid Balance; or
(ii) in the case of non-performing Receivables,
their Fair Market Value.
(d) (Performing Receivables) Notwithstanding paragraph
(c)(i), the Trustee may not sell any performing
Receivable for less than its Fair Market Value without
the consent of an Extraordinary Resolution of the
relevant Noteholders. Any purported sale without that
approval will be ineffective.
(e) (Sale at less than Unpaid Balance) The Trustee must not
sell any Receivable and the related Receivable Rights for
less than the Unpaid Balance of the Receivable unless:
(i) if the Invested Amount of each Note is
greater than zero, the Noteholders
(including the holder of the Seller Note)
have consented to such sale by Extraordinary
Resolution; or
(ii) if the Invested Amount of each Note is zero,
the relevant Beneficiary consents.
(f) (Procedures before winding up) The provisions of this
deed will continue to apply to a Trust for the period
between the Termination Date of that Trust and the date
on which the Assets of that Trust have been realised and
distributed, notwithstanding the occurrence of the
Termination Date.
(g) (Expenses) The Trust Manager must direct the Trustee to,
and the Trustee must, pay or provide for all Taxes,
Expenses, claims and demands due or incurred, or which
the Trustee believes should be provided for, in
connection with or arising out of the administration or
winding up of any Trust, including the fees of any
consultants or advisers employed in connection with the
administration or winding up of the Trust.
(h) (Distribution) The Trust Manager shall direct the Trustee
to distribute the proceeds of realisation of the Assets
of a Trust (after deducting the amounts paid or provided
for under paragraph (g)) in accordance with the cashflow
allocation methodology set out in the relevant Series
Notice and in accordance with any directions given to it
by the Trust Manager. The Trustee shall comply with that
direction.
Page 25
(i) (Beneficiary) If all Notes relating to a Trust have been
fully redeemed and the Creditors paid in full, the
Trustee may distribute all or part of the Assets to the
relevant Beneficiary in specie (without recourse to the
Trustee and without any representation or warranty by the
Trustee).
(j) (Performing/non-peforming) The Servicer is to determine
whether a Receivable is performing or non-performing for
the purposes of this clause 3.5.
3.6 Costs of winding up of a Trust
During the winding up of a Trust under clause 3.5:
(a) (Trustee's Fee) the Trustee shall be entitled to the
continued payment of the Trustee' s Fee under clause
23.1;
(b) (Trust Manager's Fee) the Trust Manager shall be entitled
to continued payment of the Trust Manager's Fee under
clause 19; and
(c) (Expenses) the Trustee and the Trust Manager shall be
entitled to reimbursement for, and the Trust Manager and
the Trustee shall make provision for, all Expenses
incurred, made or apprehended in relation to the Trust
(which shall for this purpose include, without
limitation, all Taxes, costs, charges, expenses, claims
and demands incurred, made or apprehended in connection
with the winding up of the Trust, including the fees of
any agents, solicitors, bankers, accountants or other
persons who the Trustee or the Trust Manager may employ
in connection with the winding up of the Trust).
4. INVESTMENT OF THE TRUSTS GENERALLY
4.1 Authorised Investments only
Subject to this deed, each Trust shall comprise only assets and
property which are Authorised Investments as at the date of their
acquisition.
4.2 Trust Manager selects investments
Subject to the terms of this deed:
(a) the Trust Manager alone shall have absolute and
uncontrolled discretion to determine, and it shall be the
duty of the Trust Manager to:
(i) recommend or to propose in writing to the
Trustee (which may be under a Series
Notice), the manner in which any moneys
forming part of a Trust shall be invested
and what purchases, sales, transfers,
exchanges, collections, realisations or
alterations of Assets shall be effected and
when and how the same should be effected;
and
(ii) give to the Trustee all directions which the
Trustee may desire in relation to the above
matters; and
(b) it shall be the role of the Trustee to give effect to all
such recommendations or proposals of the Trust Manager as
are communicated by the Trust Manager to the Trustee in
accordance with this clause.
Page 26
4.3 Investment proposals
(a) (Trust Manager's investment proposals) The Trust Manager
shall from time to time give to the Trustee a proposal
for the acquisition or origination of property which is
to constitute Assets of a Trust and for the sale,
transfer or other realisation of or dealing with the
Assets of a Trust.
(b) (Sufficient details) Except where the Trust Manager's
proposal is an Investment Direction, each proposal shall
contain all necessary details relating to the proposal
together with all information and evidence as the Trustee
may reasonably require to satisfy itself that the
implementation of the proposal is permitted under this
deed. Where the Trust Manager's proposal is an Investment
Direction, it will comply with this deed.
(c) (Discretion) The Trust Manager shall have the fullest
discretion to recommend in the proposal the time and mode
of and the broker, contractor or agent (if any) to be
engaged for the implementation of the proposal including
the right to recommend a postponement for so long as the
Trust Manager in its discretion shall think fit.
(d) (Trustee must implement investment proposals) Subject to
clause 4.7 and this deed generally, on receipt of any
written proposal by the Trust Manager under this clause
4, the Trustee shall implement that proposal and the
Trustee shall not be required, nor be under a duty, to
inquire or to make any assessment or judgment in
relation to that proposal or whether the proposed
investment is an Authorised Investment or is otherwise
permitted under this deed. Subject to this deed, the
Trustee must not make an investment if it is knows that
it is not an Authorised Investment.
4.4 Disposal or realisation of Authorised Investments
(a) (Authorised Investments to be held to maturity in Rated
Trusts) Subject to this deed, any applicable Security
Trust Deed or Support Facility, Authorised Investments
in respect of a Rated Trust shall be held until their
maturity (and the Trustee shall accordingly not have
power to dispose of or realise any Authorised Investment
in a Rated Trust) but nothing in this deed shall affect
the rights, powers, duties and obligations of the
Trustee in relation to enforcing any Receivable,
Receivable Security or Related Securities or otherwise
in relation to any other Authorised Invest- ment or
Support Facility.
(b) (Circumstances for disposal in Rated Trusts) Subject to
this clause 4.4(b) and to clause 4.4(c), the Trustee
shall have power to dispose of or realise any Authorised
Investment in a Rated Trust if the Trust Manager confirms
to the Trustee that the disposal or realisation of the
Authorised Investment will not lead to a loss or where to
continue to hold such Authorised Investment would:
(i) (breach) result in a breach of this deed;
(ii) (affect Authorised Trustee Investment
status) affect the status of Notes as an
Authorised Trustee Investment (if
applicable);
(iii) (adversely affect rating) adversely affect
the then rating (if any) of the Notes issued
in relation to the Rated Trust; or
(iv) (prejudicial to Noteholders) in the opinion
of the Trust Manager, be prejudicial to the
interests of Noteholders in the Rated Trust.
Page 27
The Trustee may only exercise its power of disposal or
realisation under paragraphs (ii)-(iv) (inclusive) on the
written direction of the Trust Manager.
(c) (No restriction on disposal in unrated Trusts) Subject to
each Transaction Document there shall be no restriction
on the disposal or realisation of or temporary investment
or reinvestment in Authorised Investments:
(i) in a Trust which is not a Rated Trust; or
(ii) where the disposal is to another Trust under
clauses 7, 8.9(d) or 9.
(d) (Proceeds on realisation) On the settlement of the
discharge, realisation or disposal of an Asset, the
Trustee may accept the proceeds in the form of:
(i) a Bank cheque payable to the Trustee; or
(ii) in other immediately available funds.
4.5 Temporary investment of cash and limitation on maturity of Authorised
Investments
The Trust Manager shall in respect of a Trust be entitled to direct
the Trustee to cause cash on hand which represents the income or
capital of the Trust and which is not required for:
(a) (Expenses) the immediate payment of the Expenses of the
Trust;
(b) (Trustee's Fee) the immediate payment of the Trustee's
Fee in relation to the Trust; or
(c) (Noteholders or Beneficiaries) the immediate payment to
the Noteholders or a Beneficiary of the Trust,
to be invested in Authorised Investments provided that such
Authorised Investments shall mature on a date on or before the due
date for such payment.
4.6 Support Facilities
(a) (Enter into Support Facilities) The Trustee shall in
relation to any Trust, on the prior direction of the
Trust Manager (and following a review by the Trustee of
the documentation for the proposed Support Facility),
enter into or acquire and perform any Support Facilities
on such terms and conditions as are reasonably required
by the Trust Manager (subject to this deed).
(b) (Rating of parties to Support Facility) If Notes have
been, or are proposed to be, issued by the Trustee as
trustee of a Rated Trust, the Trust Manager shall
(subject to this deed):
(i) direct the Trustee that each Support
Facility for the benefit of the Rated Trust
must be taken out or executed with a person
having at that time a Designated Rating (if
required by the corresponding Designated
Rating Agency); and
(ii) take, or direct the Trustee to take, such
other action as may be necessary to satisfy
the requirements of the relevant Designated
Rating Agency in relation to that Rated
Trust.
Page 28
(c) (Support Facilities for Rated Trusts) If Notes have been,
or are proposed to be, issued by the Trustee as trustee
of a Rated Trust, any Support Facility for the benefit of
the Rated Trust shall be entered into by the Trustee
prior to or on the Note Issue Date in relation to those
Notes provided that the Trustee may, on the prior
direction of the Trust Manager:
(i) enter into a new Support Facility as trustee
of a Rated Trust after a Note Issue Date, if
and only if, the Trust Manager has received
written confirmation from any Designated
Rating Agency that entering into the Support
Facility will not result in a downgrading of
the Notes; or
(ii) substitute a new Support Facility for any
existing Support Facility entered into in
accordance with this clause 4.6 where it has
previously issued Notes as trustee of a
Rated Trust, if and only if, the Trust
Manager considers the same to be in the
interests of that Rated Trust and the Trust
Manager has received written confirmation
from any Designated Rating Agency that the
new Support Facility will not result in a
downgrading of the Notes.
(d) (Downgrading of parties) If a person providing a Support
Facility to the Trustee as trustee of a Rated Trust
ceases to have a Designated Rating (if the corresponding
Designated Rating Agency requires it to have a Designated
Rating) and the Designated Rating Agency has downgraded,
or has indicated that it proposes to downgrade, its
rating of the Notes, the Trustee shall, if directed by
the Trust Manager and subject to this deed:
(i) enter into any substitute or additional
Support Facility identified by the Trust
Manager, and on such terms required by the
Trust Manager; or
(ii) take such other action as may be required by
the relevant Designated Rating Agency,
to maintain the rating of the Notes as it stood prior to
such downgrading or proposed downgrading of the rating of
the Notes.
(e) (No obligation to have Support Facilities) Nothing in
this clause or this deed shall be construed as requiring
that any given Trust has the benefit of any Support
Facility. The Trustee is not required to enter into any
Support Facility except as provided in this clause.
4.7 Authorised Trustee Investments
The Trust Manager shall not direct the Trustee to, and the Trustee
shall not invest, any moneys of a Trust in any Authorised Investment
which prejudices the qualification of Notes in that Trust as an
Authorised Trustee Investment in a given Australian Jurisdiction if
the Trust Manager has indicated to the Trustee that the Notes are, or
are proposed to be, an Authorised Trustee Investment of that
Australian Jurisdiction or any Information Memorandum or prospectus
in relation to such Notes indicates that the Notes are, or are
proposed to be, an Authorised Trustee Investment of that Australian
Jurisdiction.
4.8 Limitation of Trustee's personal liability
Notwithstanding any other provision of this deed, the Trustee is not
obliged to execute any instrument, enter into any agreement, take any
action, or incur any obligation in connection with a Trust
(including, without limitation, in connection with Support Facilities
or Assets) unless:
Page 29
(a) in the case of agreements, actions or obligations that
are expressly contemplated by the Transaction Documents
and are between parties to the Transaction Documents, its
personal liability in connection with the instrument,
agreement, action or obligation is limited in a manner
consistent with clause 33.16; or
(b) in any other case, the Trustee's liability is limited in
a manner satisfactory to the Trustee in its absolute
discretion.
4.9 Moneys payable to Trustee
Subject to this deed, the Trust Manager and the Trustee shall ensure
that any agreements entered into in relation to the Trusts contain a
provision to the effect that any moneys belonging to the Trusts under
the agreements shall be paid to the Trustee or to an account, or
Authorised Investment, in the name of the Trustee as trustee of the
relevant Trust.
4.10 Segregation of Assets of a Trust
(a) Subject to this deed (and in particular to clause 27.10)
and any Series Notice the Trustee shall:
(i) ensure that no money or other Assets of a
Trust are commingled with the money or other
Assets of another Trust;
(ii) account for the Assets included in each
Trust separately from the Assets included in
all other Trusts; and
(iii) keep the liabilities of, and principal
amounts outstanding to Noteholders and
providers of Support Facilities or other
Creditors in relation to each Trust separate
and apart from the liabilities of, and
principal amounts outstanding to Noteholders
and providers of Support Facilities or other
Creditors in relation to all other Trusts.
(b) Notwithstanding this clause 4.10:
(i) any Expenses of a Warehouse Trust may be
borne by one or more Warehouse Trusts in the
respective amounts agreed by the Trustee and
the Trust Manager from time to time; and
(ii) the Trustee at the direction of the Trust
Manager may enter any Hedge Agreement which
relates to Assets of any two or more Trusts.
4.11 Assets of Trusts
Assets of a Trust shall not be available to meet any liability of, or
principal amounts outstanding to Noteholders and providers of Support
Facilities or other Creditors in relation to, any Trust other than
the Trust of which those Assets form a part.
4.12 Liabilities of a Trust
Any liabilities to the extent that they relate to a Trust and
principal amounts outstanding to Noteholders and providers of Support
Facilities or other Creditors to the extent that they relate to a
Trust, shall not be aggregated with any liabilities, and principal
amounts outstanding to Noteholders and providers of Support
Facilities or other Creditors, to the extent that they relate to any
other Trust or offset against the Assets of any Trust other than the
Trust of which those liabilities and principal amounts form a part or
to which they relate.
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PART C - ACQUISITION AND ORIGINATION OF ASSETS
5. GENERAL
5.1 Power to acquire Assets
Subject to this deed and any Series Notice, the Trustee may Borrow
for the purpose of or in connection with:
(a) the making of, investment in, or funding of assets
underlying, Loans or other Receivables;
(b) in relation to paragraph (a), investment in other
Authorised Investments; or
(c) the continued funding of any investment in Receivables,
Receivable Securities or other Authorised Investments.
5.2 Borrowings - general
Subject to clause 5.3, the Trustee may only Borrow in relation to a
Trust following receipt of a Warehouse Trust Direction under clause
7.1 or a Note Issue Direction under clause 13 and only by way of:
(a) the issue of Notes (including a Seller Note, and any
Borrowing relating to that Seller Note) at any time and
from time to time under this deed and the relevant Trust;
(b) a Support Facility (and any Notes issued with respect to
that Support Facility);
(c) in the case of a Rated Trust, a Borrowing which is at all
times subordinated and subject to the Notes, the
interests of the Noteholders under the Notes, and the
interests of the providers of any Support Facilities, in
relation to the relevant Trust; or
(d) in the case of a Trust which is not a Rated Trust, any
other Borrowing agreed by the Trustee and the Trust
Manager.
5.3 Borrowings - Support Facilities etc.
(a) Where there are, or may be, ongoing obligations of the
Trustee or Approved Seller (as the case may be) to
provide Obligors with the ability to redraw amounts
prepaid under a Receivable, or to increase the principal
amount of or owing in relation to any Receivable, the
Trustee shall subject to any applicable restriction in
the Transaction Documents at the direction (whether under
a Series Notice or otherwise) of the Trust Manager
(without limiting its rights or powers under this deed):
(i) issue a Seller Note to the Approved Seller
with respect to those obligations of the
Approved Seller;
(ii) enter into a Redraw Facility Agreement or
Warehouse Facility Agreement with respect to
those obligations;
(iii) sell or otherwise transfer that Receivable
to a Warehouse Trust;
(iv) issue Notes to reimburse the relevant
Approved Seller for any redrawn amounts
funded by the Approved Seller; or
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(v) enter any other arrangements as may be
agreed between the Trustee, the Trust
Manager and the Approved Seller.
(b) The Trustee may, at the direction of the Trust Manager in
accordance with clause 13, issue Notes in relation to its
obligations under a Warehouse Facility Agreement or a
Warehouse Trust.
(c) The parties to a Series Notice for a Warehouse Trust may
amend the Series Notice from time to time in writing.
6. ORIGINATION
(a) Where an Investment Direction directs the Trustee to
fund the making of Loans, or the making or creation of
other Receivables, other than by acquisition from an
Approved Seller (an Origination), and the Trustee
implements the direction, the Trustee shall use the
proceeds of the relevant issue of Notes or drawing under
the relevant Support Facility (as the case may be) for
the purpose of the Origination in accordance with the
detailed procedure for Origination set out in the
relevant Series Notice and as agreed by the Trustee, the
Trust Manager and the relevant originator.
(b) The Trustee is not required to Originate Receivables
unless it is satisfied (in its absolute direction) with
the procedures for the Origination (including as to any
indemnity for liability under Consumer Credit
Legislation).
7. ACQUISITION OR FUNDING BY WAREHOUSE TRUST FROM ANOTHER TRUST
7.1 Direction by Trust Manager
(a) Subject to Clause 7.3, the Trust Manager may from time to
time direct the Trustee under a Warehouse Trust Direction
to acquire from another Trust Receivables and/or
Receivable Securities using the proceeds of financial
accommodation under a Warehouse Facility Agreement or in
consideration of the transfer of any Authorised
Investments held by the Warehouse Trust.
(b) The Trustee has power, as trustee of a Trust, to dispose
of Receivables and/or Receivable Securities to a
Warehouse Trust in accordance with a Series Notice
relating to that Trust and that Warehouse Trust.
7.2 Required information
A Warehouse Trust Direction must include:
(a) all relevant details relating to:
(i) the other Trust;
(ii) the Receivables and relevant Receivable
Securities;
(iii) the Warehouse Facility Agreement (including
the amount of financial accommodation to be
raised); and
(iv) all necessary information required in a
Series Notice under this deed; and
(b) all other information reasonably required by the Trustee
in order to make a determination under clause 7.3.
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7.3 Conditions to acceptance
The Trustee will not accept a direction under clause 7.1 unless the
direction (including the Receivables and Receivable Securities
specified in the direction) complies with the requirements of the
relevant Warehouse Trust Direction and any relevant Warehouse
Facility Agreement or as the Trust Manager and the Trustee otherwise
agree.
7.4 Effect of acceptance
(a) A Warehouse Trust Direction must be executed in
accordance with clause 13.3(e).
(b) If the Trustee accepts a Warehouse Trust Direction under
clause 7.1, it shall:
(i) enter into, or ensure that there is in
place, a relevant Warehouse Facility
Agreement;
(ii) acquire or originate the Receivables (as the
case may be),
and otherwise comply with the Warehouse Trust Direction.
7.5 Implementation
If the Trustee accepts a Warehouse Trust Direction under clause 7.1,
the Trust Manager shall do everything reasonably necessary to enable
the Trustee to implement the direction.
7.6 General direction
(a) A Warehouse Trust Direction under clause 7.1 may take the
form of a general direction that specifies one or more
Trusts from which Receivables and Receivable Securities
may be acquired by the Trustee from time to time without
the need for a further Warehouse Trust Direction under
clause 7.1.
(b) Without limiting paragraph (a), a general direction
referred to in that paragraph can provide that the Trust
Manager may draw an amount under the relevant Warehouse
Facility Agreement on behalf of and without prior notice
to the Trustee, on satisfaction of any relevant
procedures specified in the Warehouse Trust Direction.
Those procedures may include:
(i) notice to be given to the Trustee within a
specified period after that drawing; and
(ii) requirements as to whom the proceeds of that
drawing will be paid.
7.7 Transfers between Trusts
(a) Where a transfer of Assets is to occur between Trusts
(whether between two Warehouse Trusts, between a
Warehouse Trust and a Trust which is not a Warehouse
Trusts, or between two Trusts neither of which is a
Warehouse Trust), the provisions of this clause 7.7
apply.
(b) The transfer may take place under a Sale Notice, under a
relevant Series Notice, or by such other method as the
Trustee and the Trust Manager may determine. The
information and timing of that transfer and the delivery
of that Sale Notice or any other document will be as
agreed between the Trustee and the Trust Manager.
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(c) Subject to payment of the agreed Purchase Price (as
adjusted in accordance with the terms of the sale), the
Trustee as trustee of a Trust will hold automatically by
virtue of this deed and without any further act or
instrument or other thing being done or brought into
existence, the benefit of all Receivable Rights
transferred to it by the Trustee as trustee of another
Trust (together with the benefit of all Support
Facilities which the Trustee and the Trust Manager agree
are to be transferred, and all other rights and
entitlements relating to the relevant Receivables). The
Trustee will hold the Receivables so acquired as trustee
of the Trust which acquires those Receivable Rights and
no longer as the trustee of Trust which disposed of the
Receivable Rights.
(d) The Sale Notice, Series Notice or other method of
transfer (as the case may be) may, if so agreed between
the Trustee and the Trust Manager, provide:
(i) that the Trust Manager, the Servicer or the
Approved Seller of the Assets which are the
subject of the transfer shall give for the
benefit of the acquiring Trust specified
representations, warranties and undertakings
in relation to the Assets; and
(ii) for the effect of any breach of a
representation, warranty or undertaking
referred to in sub-paragraph (i).
(e) Following a transfer between Trusts, each of:
(i) the Trustee as trustee of the Trust which
transfers the relevant Receivable Rights
(the Old Trust);
(ii) the Trustee as trustee of the Trust which
acquires the relevant Receivable Rights (the
New Trust); and
(iii) the relevant Approved Seller,
agrees that with effect from the date of transfer of the
relevant Receivable Rights the rights and obligations as
between the Approved Seller and the Trustee as trustee of
the Old Trust will be novated, and enjoyed by, the
Approved Seller and the Trustee as trustee of the New
Trust as between themselves (without the need for further
action on the part of any person). The Approved Seller
and the Trustee as trustee of the Old Trust shall, as
between themselves, cease from that date to owe any
obligations or hold any rights as between themselves.
(f) Where Assets of a Trust which are transferred to another
Trust are subject to a Trust Back, that Trust Back is
dealt with in accordance with clause 8.4(j).
(g) Following a transfer of Assets between Trusts, the Trust
Manager shall calculate, and notify the Trustee of, the
amount of:
(i) any accrued interest under the relevant
Receivables that may be due from the
transferee Trust to the transferor Trust at
any time; and
(ii any repaid or prepaid principal under the
relevant Receivables that may be due from
the transferor Trust to the transferee
Trust,
in accordance with the provisions (if any) of the
relevant Series Notice or Sale Notice.
Page 34
The Trust Manager directs the Trustee (as Trustee of the
Trust with any obligation under this paragraph (f)) to
pay any amount so calculated to the other relevant Trust
as an adjustment to the corresponding purchase price, in
accordance with the relevant Series Notice.
7.8 Acknowledgement by Approved Seller
Each Approved Seller acknowledges and agrees that any interest in
Receivables acquired from it by the Trustee as trustee of any Trust
may be disposed of by the Trustee to another Trust.
8. ACQUISITION FROM APPROVED SELLER
8.1 Note Issue Direction
Where:
(a) a Note Issue Direction directs that the Trustee issues
Notes; or
(b) a Warehouse Trust Direction directs that the Trustee
draws any amount under the relevant Warehouse Facility
Agreement,
to fund the acquisition of Authorised Investments from an Approved
Seller under a Sale Notice under clause 8.3, and the Trustee
implements the direction, the Trustee shall use the proceeds of the
relevant issue of Notes or drawing under the Warehouse Facility
Agreement (as the case may be) for the purpose of the acquisition in
accordance with this clause.
8.2 Accession of Approved Sellers
(a) (Approved Seller) A person approved by the Trust Manager
may at any time become an Approved Seller for the
purposes of this deed by entering into a Seller Accession
Certificate. The Trust Manager shall not direct the
Trustee to acquire Receivables and/or Receivable
Securities from an Approved Seller for a Rated Trust
(other than the Approved Seller who first disposed of
Receivables and/or Receivable Securities to that Trust)
without first confirming the rating for that Trust.
(b) (Accession) On execution of a Seller Accession
Certificate by that person and the Trustee, that person
shall be taken to be an Approved Seller for the purposes
of this deed with all the rights and obligations as if it
were an original party to this deed.
(c) (Trustee as Approved Seller) If the Trustee as trustee of
a Trust is to be an Approved Seller, it need not execute
a Seller Accession Certificate but will be bound by this
deed as an Approved Seller as trustee of that Trust.
8.3 Sale Notices
(a) An Approved Seller may (but is not obliged to) offer to
sell its equitable interest in any Authorised Investments
to the Trustee by delivering a Sale Notice to the
Trustee.
(b) Unless the Trustee otherwise agrees, a Sale Notice given
under this deed shall be delivered to the Trustee not
later than 4.00 pm on the Business Day before the day on
which the Expiry Time falls (which must also be a
Business Day).
(c) An offer in a Sale Notice is irrevocable during the
period up to and including the Expiry Time of that Sale
Notice.
Page 35
(d) If so directed by the Trust Manager, the Trustee shall
accept the offer contained in a Sale Notice at any time
prior to the Expiry Time by, and only by, the payment by
the Trustee to the Approved Seller (or as it directs) of
the Purchase Price in same day funds to the bank account
specified by the Approved Seller for that purpose in that
Sale Notice.
(e) Notwithstanding:
(i) satisfaction of all relevant conditions
precedent; or
(ii any negotiations undertaken between the
Approved Seller and the Trustee prior to the
Trustee accepting the offer contained in a
Sale Notice,
the Trustee is not obliged to accept the offer contained
in a Sale Notice and no contract for the sale or purchase
of any Receivables or related Receivable Rights referred
to in a Sale Notice will arise unless and until the
Trustee accepts the offer contained in the Sale Notice in
accordance with this clause.
(f) The offer contained in a Sale Notice may only be accepted
in relation to all the Receivables and related Receivable
Rights referred to in the Sale Notice.
8.4 Constitution and Entitlement of the Trust Back
(a) Constitution of Trust Back
On the acceptance of a Sale Notice which relates to
Receivable Securities that secure Other Secured
Liabilities:
(i) a trust shall be constituted; and
(ii the relevant Trust Back Assets shall vest in
the Trustee and be held by the Trustee on
and subject to the trusts, terms and
conditions of this clause.
(b) Declaration of trust
The Trustee declares that it will hold all its right,
title and interest in the Trust Back Assets on bare trust
for the relevant Approved Seller in accordance with this
clause.
(c) Entitlement of the Approved Seller to the Trust Back
Assets
The beneficial interest in the Trust Back Assets relating
to a Trust vests absolutely in the relevant Approved
Seller.
(d) Dealing with Trust Back Assets
Subject to the terms of this deed:
(i) an Approved Seller is entitled to deal with
its Trust Back Assets in its absolute
discretion;
(ii the Trustee must not deal with any Trust
Back Assets other than:
(A) in accordance with directions
given by the relevant Approved
Seller as beneficiary of the
Trust Back, from time to time;
(B) in accordance with all the
Transaction Documents; or
Page 36
(C) to the extent necessary to
exercise and enforce any
Receivable Rights; and
(iii) the Trustee must act in accordance with any
direction given to it by the relevant
Approved Seller in respect of its Trust Back
Assets, except that the Trustee is not
obliged to act in accordance with the
direction of that Approved Seller where to
do so would:
(A) be illegal; or
(B) materially prejudice the
exercise of the Trustee's rights
in relation to the Receivables
or Receivable Securities.
(e) Proceeds
Subject to clause 8.8:
(i) an Approved Seller may retain any proceeds
received by it from its Trust Back Assets;
and
(ii) the Trustee must immediately on the
direction of the Trust Manager pay to an
Approved Seller (or otherwise pay as the
Approved Seller directs) any proceeds the
Trustee receives in respect of that Approved
Seller's Trust Back Assets.
That payment constitutes a good discharge of the Trustee.
(f) Trustee's duties
(i) The Trustee owes no fiduciary or other
duties to any Approved Seller in respect of
that Approved Seller's Trust Back Assets
other than pursuant to paragraph (d) or
(e)(ii) and, in any event, is not liable in
any manner whatsoever to any Approved Seller
for any liability, loss, cost or expense to
that Approved Seller's Trust Back Assets
(whether consequential or otherwise)
resulting from doing or omitting to do any
act or thing in relation to those Trust Back
Assets, except where such loss is caused by
the fraud, negligence or wilful default of
the Trustee.
(ii) Subject to sub-paragraphs (d)(iii) and
(e)(ii), the Trustee is not required to take
any action in respect of any Trust Back
Assets.
(g) Indemnity in respect of Trust Back Assets
(i) Without limiting any indemnity to which the
Trustee is otherwise entitled and subject to
paragraph (ii), each Approved Seller
unconditionally and irrevocably indemnifies
the Trustee against any liability, loss,
cost or expense incurred by the Trustee as a
result of the Trustee complying with any
directions by that Approved Seller in
accordance with this deed in connection with
any Trust Back for that Approved Seller
(including the transfer of the Trust Back
Assets to the Approved Seller under
paragraph (j)). That Approved Seller must
pay or reimburse the Trustee on demand for
all reasonable expenses, including but not
limited to stamp duties and taxes, payable
in connection with such indemnity.
Page 37
(ii) An Approved Seller's obligations under
sub-paragraph (i) to indemnify and reimburse
the Trustee do not apply to the extent that
such liabilities or expenses arise as a
result of the fraud, negligence or wilful
default of the Trustee.
(h) Conflicts or Inconsistencies
If there is at any time a conflict or inconsistency
between:
(i) any:
(A) directions given by an Approved
Seller, as referred to in
paragraph (d); or
(B) duty owed by the Trustee to an
Approved Seller by virtue of the
Trustee being the trustee of the
Trust Back (whether arising by
operation of law, equity or
otherwise); and
(ii) the obligations and duties of the Trustee
arising under or in connection with the
Transaction Documents (apart from this
clause) or the interests of Mortgagees (as
defined in the Security Trust Deed),
the Trustee:
(iii) must give priority to the obligations,
duties and interests referred to in
paragraph (ii) over any direction or duty
referred to in paragraph (i); and
(iv) shall not, provided it acts in good faith
and without fraud, negligence or wilful
default, incur any liability to the relevant
Approved Seller for so doing.
(i) Termination of Trust Back
A Trust Back shall terminate when the Trustee ceases to
have any right to, or interest in, the Trust Back Assets
of that Trust Back.
(j) Transfer of Trust Back
(i) Where the Trustee holds Trust Back Assets as
trustee of a Trust (the First Trust), and
any of those Trust Back Assets are
transferred to another Trust (the Second
Trust), then automatically and without any
further act or instrument being done or
brought into existence:
(A) the Trustee, as trustee of the
Second Trust, will hold all its
right, title and interest in the
Trust Back Assets so transferred
on bare trust for the relevant
Approval Seller in accordance
with this clause 8.4; and
(B) the Trustee, as trustee of the
First Trust, will cease to hold
any interest in the Trust Back
Assets so transferred on the
Trust Back in relation to the
First Trust.
(ii) The Trust Manager will notify each Approved
Seller of any transfer by that Trust of any
Receivable for which that Approved Seller is
the registered mortgagee, except where the
relevant transferee is the Trustee as
trustee of another Trust.
Page 38
(k) Additional financial accommodation
Notwithstanding any other provision of this deed, an
Approved Seller may provide further financial
accommodation to an Obligor on the security of a
Purchased Receivable Security after that Purchased
Receivable Security has been assigned in equity to a
Trust. The Definition of Other Secured Liability includes
such further financial accommodation (except to the
extent that the financial accommodation relates to a
Receivable which is an Asset of the relevant Trust at the
time the financial accommodation was provided).
(l) Caveat
(i) If the Trustee perfects title to any
Receivable Security under this clause 8.4:
(A) the Trustee shall notify the
Security Trustee of the
Receivable Securities which are
affected by a Trust Back; and
(B) neither the Trustee nor the
Security Trustee shall dispose
of or create any interest in
that Receivable Security unless
the person receiving that
Receivable Security or that
interest is first notified of
the relevant Trust Back.
(ii) If an Approved Seller reasonably believes
that the Trustee or the Security Trustee
intends to dispose of or create an interest
in a Receivable Security which secures an
Other Secured Liability of that Approved
Seller without notifying the relevant third
party acquirer of the relevant Trust Back
under paragraph (i), that Approved Seller
may lodge a caveat to protect its interest
in the relevant Trust Back Assets.
8.5 Conditions Precedent to Purchase
(a) General
The right of an Approved Seller (other than the Trustee
as trustee of a Trust) to give a Sale Notice under clause
8.3 shall be subject to the Trustee having received in
form and substance satisfactory to the Trustee on or
before the date such offer is given:
(i) (verification certificate) except where the
Approved Seller is a Trust, a certificate in
relation to the Approved Seller given by an
Authorised Signatory of the Approved Seller
substantially in the form of schedule 6 with
the attachments referred to and dated as at
the date of the Sale Notice;
(ii) (Investment Direction) the Trust Manager
having delivered to the Trustee as the case
may be:
(a) a Note Issue Direction and
executed Series Notice under
clause 13 in relation to the
issue of the relevant Notes; or
(b) a Warehouse Trust Direction and
Series Notice under clause 7 in
relation to a drawing under the
relevant Warehouse Facility
Agreement; and
(iii) (other conditions) any other condition
precedent specified in the relevant Series
Notice.
Page 39
(b) Further conditions precedent
The rights of an Approved Seller (other than the Trustee
as trustee of a Trust) to give a Sale Notice shall be
subject to the further conditions precedent that on the
date of giving a Sale Notice the following statements
shall be true (and the Approved Seller, other than the
Trustee, shall, by virtue of giving that Sale Notice be
deemed to have certified that):
(i) (representations true) the representations
and warranties in clause 8.6 are true as of
such day as though they had been made at
that date in respect of the facts and
circumstances then subsisting;
(ii) (no default) no Title Perfection Event has
occurred and is subsisting or would result
from the acceptance of a Sale Notice.
8.6 Representations and warranties of Approved Seller
Each Approved Seller (other than the Trustee as trustee of a Trust)
makes the following representations and warranties.
(a) (i) (Status) It is a corporation validly
existing under the laws of the place of its
incorporation specified in this Deed or the
relevant Seller Accession Certificate.
(ii) (Power) It has the power to enter into and
perform its obligations under the
Transaction Documents to which it is
expressed to be a party and to carry out the
transactions contemplated by those
documents.
(iii) (Corporate authorisations) It has taken on a
timely basis all necessary corporate action
to authorise the entry into and performance
of the Transaction Documents to which it is
expressed to be a party and to carry out the
transactions contemplated by those
documents.
(iv) (Documents binding) Each Transaction
Document to which it is expressed to be a
party is its valid and binding obligation
enforceable in accordance with its terms,
except to the extent it is affected by laws
relating to liquidation or doctrines of
equity.
(v) (Transactions permitted) The execution and
performance by it of the Transaction
Documents to which it is expressed to be a
party and each transaction contemplated
under those documents did not and will not
(as applicable) violate in any respect a
provision of:
(A) a law or treaty or a judgment,
ruling, order or decree of a
Governmental Agency binding on
it; or
(B) its constituent documents.
(vi) (Authorisations) Each Authorisation which
is required in relation
to:
(A) the execution, delivery and
performance by it of Transaction
Documents to which it is
expressed to be a party and the
transactions contemplated by
those documents;
(B) the validity and enforceability
of Transaction Documents to
which it is expressed to be a
party; and
Page 40
(C) the perfection of the interest
of the Trustee in the Purchased
Receivables and related
Receivable Rights (not including
such Authorisations, (if any)
pertaining solely
to acts of the Trustee),
has been obtained or effected. Each is in
full force and effect. It has complied with
each of them. It has paid all applicable
fees for each of them.
(vi) (Series Notice) Any representations and
warranties required to be made by the
Approved Seller as set out in the relevant
Series Notice.
(b) Time at which representations and warranties made
The representations and warranties in clause 8.6(a) are
deemed to be made by an Approved Seller, by reference to
the facts and circumstances then existing in relation to
the relevant Trust, on each of the dates on which a Sale
Notice is given and on the Closing Date specified in that
Sale Notice (unless otherwise specified in the
representation or warranty).
(c) Reliance on representations and Warranties
Each Approved Seller acknowledges that the Trustee may
accept an offer in accordance with clause 8.3 and, if an
offer is accepted, will pay the Purchase Price in
reliance on the representations and warranties in clause
8.6(a).
(d) Breach of representations and warranties
(i) (Duty to give notice) For the purposes of
sub-paragraph (ii) (and without affecting
the Trustee's right to damages), if an
Approved Seller, the Trust Manager or the
Trustee becomes aware that a representation
or warranty in relation to any Purchased
Receivable or other Receivable Rights is
incorrect (including, without limitation,
relating to whether a Purchased Receivable
is an Eligible Receivable) otherwise than as
a result of receiving notice from the other,
it must notify the other parties and the
Designated Rating Agency, within 5 Business
Days of it becoming so aware.
(ii) (Offer and acceptance)
If:
(A) such a representation and
warranty is incorrect;
(B) the Approved Seller gives or
receives a notice under
paragraph (d)(i) not later than
5 Business Days before 120 days
after the relevant Closing Date;
and
(C) the Trustee does not waive that
breach, or the Approved Seller
does not remedy the breach to
the satisfaction of the Trustee,
within the period of 5 Business
Days referred to above, or such
longer time as the Trustee in
its absolute discretion permits,
then, without any action being required by
either party:
Page 41
(D) the Approved Seller shall be
taken to have offered to
repurchase the relevant
Purchased Receivables and
related Receivable Rights:
(1) where it gives a
notice under
subparagraph (B) on
the date which is
the earlier of the
date specified in
that notice and 10
Business Days after
that notice is
given; or
(2) otherwise, on the
date which is 10
Business Days after
the notice it
receives or should
have given (as the
case may be) under
paragraph (d)(i),
(in either case, the Repurchase
Date) for an amount equal to its
Unpaid Balance;
(E) the Trustee, by not waiving the
breach or agreeing to a longer
time as referred to in paragraph
(C) above, shall be taken to
have accepted that offer;
(F) the Trustee shall be entitled
to:
(1) all Collections
received in relation
to the relevant
Purchased Receivable
and the related
Receivable Rights on
and from the Closing
Date to (but
excluding) the
Repurchase Date; and
(2) the Unpaid Balance
of the relevant
Purchased Receivable
as at the Repurchase
Date; and
(G) the Approved Seller shall pay to
the Trustee the Unpaid Balance
as at the Repurchase Date of
that Receivable within 5
Business Days of the Repurchase
Date, together with any relevant
break costs for which the
Approved Seller is liable in
relation to the prepayment of
any Hedge Agreement for the
relevant Trust.
(iii) (Effect of repurchase) On payment of the
amount under paragraph (d)(ii)(G):
(A) the Trustee shall cease to have
any interest in the relevant
Purchased Receivables and
related Receivable Rights; and
(B) the Approved Seller shall hold
both the legal and beneficial
interest in those Receivables
and Receivable Rights and be
entitled to all interest and
fees that accrue in respect of
them from (and including) the
Repurchase Date; and
(C) no rights or interest under or
in respect of those Receivables
or Receivable Rights shall form
part of the relevant Trust Back
Assets.
(iv) (Other breach) Except where paragraph (ii)
applies, the Trustee's rights in relation to
a breach of a representation or warranty
shall give rise only to a claim for damages.
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(v) (Limit on damages) Subject to clause 8.12,
the maximum amount that an Approved Seller
may become obliged to pay to the Trustee in
relation to the breach of any representation
or warranty relating to a Purchased
Receivable, a Purchased Receivable Security
or other Receivable Rights is an amount
equal to the Unpaid Balance of that
Receivable at the time the Approved Seller
pays the damages.
(vi) (Conditions precedent to damages) No
Approved Seller shall be obliged to pay any
damages for a breach of representation or
warranty under any Transaction Document, or
any indemnity in relation to such breach,
unless:
(A) the Trustee first establishes
that there has been a breach
that has caused loss;
(B) the damages or indemnity claimed
represent no more than the loss
incurred as a result of the
breach;
(C) the Trustee first gives the
Approved Seller a written notice
specifying:
(1) the quantum of the
claim; and
(2) the basis of the
claim.
(vii) (Payment) Where an Approved Seller is liable
to pay damages under this clause, it shall
make such payment within 14 Business Days of
receipt by the Approved Seller of a notice
that complies with paragraph (vi).
8.7 Undertakings
(a) Approved Seller Undertakings
Each Approved Seller undertakes to the Trustee as follows
in relation to the relevant Trust and Portfolio of
Receivables:
(i) (comply with Series Notice) it will comply
with its obligations under the relevant
Series Notice; and
(ii (comply with Servicing Agreement) it will
comply with its obligations under the
Servicing Agreement.
(b) Term of Undertaking
Each undertaking in this clause continues from the date
of this deed until the date following the Sale
Termination Date when the Trustee ceases to have any
interest in the Purchased Receivables or related
Receivable Rights or until the Trustee's interest in the
Purchased Receivables or related Receivable Rights is
perfected.
8.8 Priority
(a) Priority
Notwithstanding:
(i) anything contained in any Purchased
Receivables or the related Receivable Rights
(including any Related Securities);
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(ii) the terms of a Receivable or any Other
Secured Liability;
(iii) the respective dates on which anything is
done or omitted to be done under or in
relation to a Receivable Security or the
moneys secured by that Receivable Security;
or
(iv) any rule of law or equity to the contrary,
all moneys received by an Approved Seller, a Servicer,
the Trust Manager or the Trustee or any receiver,
receiver and manager or attorney under or in relation to
a Purchased Receivable, a Purchased Receivable Security
or any Other Secured Liability as the result of the
enforcement of a Purchased Receivable or a Purchased
Receivable Security shall be applied in the following
order of priority
(A) First, subject to paragraph (b):
(1) all costs, charges
and expenses of the
relevant mortgagee
or any receiver,
receiver and manager
or attorney incurred
in or incidental to
the exercise or
performance or
attempted exercise
or performance of
any right, power or
remedy in relation
to the Receivable
Security;
(2) all outgoings in
relation to the
Receivable Security
which the mortgagee
or any receiver,
receiver and manager
or attorney thinks
fit to pay; and
(3) the remuneration of
any receiver or
receiver and
manager.
(B) Second, in satisfaction of
amounts owing under the
Receivable or any other
Receivable Rights secured by
that Purchased Receivable
Security.
(C) Third, the Other Secured
Liability for all moneys now or
in the future secured by the
Purchased Receivable Security
that relate to that Other
Secured Liability.
(b) Enforcement Expenses
(i) Where, and to the extent that, the costs,
charges, expenses, outgoings and
remuneration referred to in sub-paragraphs
(A)(1)-(3) of paragraph (a) (Enforcement
Expenses) are covered by a Mortgage
Insurance Policy, they shall be treated as a
first priority payment under sub-paragraph
(a)(A).
(ii) Where, and to the extent that, the
Enforcement Expenses are not covered by a
Mortgage Insurance Policy, then subject to
the terms of the relevant Purchased
Receivable, Purchased Receivable
Security or Related Security:
(A) if they arise because the
enforcement arose from default
under an Other Secured
Liability, they shall be treated
as a third priority payment
under sub-paragraph (a)(C); and
(B) otherwise, they shall be treated
as a first priority payment
under sub-paragraph (a)(A).
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(c) Continuing balance
This clause 8.8 applies to a continuing balance and any
present or future moneys secured by a Receivable Security
notwithstanding any subsequent repayment, advance or
provision of accommodation or other increase or decrease
in the amount secured.
8.9 Title Perfection Event; Termination; Repurchase
(a) Title Perfection Event
Unless otherwise provided in the relevant Series Notice,
each of the following is a Title Perfection Event in
relation to a Portfolio of Receivables and the relevant
Approved Seller:
(i) (downgrade) where the Portfolio of
Receivables is held subject to a Rated Trust
the Approved Seller ceases to have a long
term credit rating of at least:
(A) BBB from S&P (if S&P has rated
that Trust or Notes issued by
the Trustee as trustee of that
Trust);
(B) Baa2 from Xxxxx'x (if Xxxxx'x
has rated that Trust or Notes
issued by the Trustee as trustee
of that Trust);
(C) its equivalent from any other
Designated Rating Agency which
has rates that Trust or Notes
issued by the Trustee as trustee
of that Trust; and
(ii) (Insolvency Event) an Insolvency Event
occurs with respect to the Approved Seller.
(b) Remedies
(i) On the occurrence of a Title Perfection
Event, the Trustee and the Trust Manager
must take all reasonable steps to perfect
the Trustee's title in and to the relevant
Purchased Receivables and related Receivable
Rights, and may:
(A) by notice to the Approved Seller
terminate the rights and
obligations as between the
Trustee and the Approved Seller
in relation to the relevant
Purchase Receivable;
(B) complete, execute and register
on behalf of the Approved Seller
any relevant Transfer of
Receivable Security;
(C) give notice of any sale of the
relevant Receivable Rights under
any relevant Future Agreement to
the relevant Obligors;
(D) give notice of the perfection of
its title in the Purchased
Receivables and related
Receivable Rights to any other
interested person, including the
insurers under the relevant
Mortgage Insurance Policies;
and/or
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(E) do anything else reasonably
necessary to perfect its
interest in the relevant
Purchased Receivables and
related Receivable Rights,
including without limitation,
registering Transfers of
Receivable Securities or
caveats.
Except as otherwise provided in the relevant
Servicing Agreement, the Trustee shall not
take any such action until the occurrence of
a Title Perfection Event.
(ii) The relevant Approved Seller agrees that on
being directed to do so by the Trustee
following a Title Perfection Event, it will
promptly (and in any event within 10
Business Days or such longer period as the
Trustee permits) take all action to perfect
the Trustee's legal title to the Purchased
Receivables and the related Receivable
Rights by:
(A) giving written notice of the
Trustee's interest to any
Obligor;
(B) registering any relevant
Transfer of Receivable Security;
(C) taking any other action required
or permitted by law to perfect
such legal title; and
(D) delivering all Relevant
Documents relating to the
relevant Portfolio of
Receivables to the Trustee.
(c) First Right of Refusal
(i) As soon as practical after the Termination
Date of the Trust, the Trust Manager directs
the Trustee to offer (by written notice to
the Approved Seller) irrevocably to
extinguish in favour of the Approved Seller,
or if the Trustee has perfected its title,
to assign to the Approved Seller, its entire
right, title and interest in and to the
Purchased Receivables, and related
Receivable Rights (if any) in consideration
of the payment to the Trustee by the
Approved Seller in relation to the Trust of:
(A) in the case of performing
Purchased Receivables, the
Unpaid Balance of the relevant
Purchased Receivables; and
(B) in the case of non-performing
Purchased Receivables, their
Fair Market Value.
In each case, the Servicer is to determine
whether a Receivable is performing or
non-performing.
(ii) The Approved Seller cannot accept the offer
if the Fair Market Value of relevant
Purchased Receivables is less than the
Unpaid Balance without the approval of an
Extraordinary Resolution. Any purported
acceptance without that approval will be
ineffective.
(iii) During the 180 day period after the
Termination Date of a Trust, the Trustee
must not sell any Receivables and the
related Receivable Rights for an amount less
than:
(A) in the case of performing
Receivables, their Unpaid
Balance; or
(B) in the case of non-performing
Receivables, their Fair Market
Value.
Page 46
(iv) The Approved Seller may accept or reject
that offer in its discretion.
(v) The Trustee will not sell or deal with the
relevant Purchased Receivables and related
Receivable Rights except in accordance with
paragraph (c)(i) unless the Approved Seller
has failed to accept the offer referred to
in paragraph (c)(i) within 180 days after
the occurrence of the Sale Termination Date
by paying to the Trustee, within 180 days,
the purchase price referred to in paragraph
(c)(i) for all of those Purchased
Receivables and related Receivable Rights.
(d) Clean Up Offer
(i) A Series Notice for a Trust may provide that
the Trust Manager may, in certain
circumstances, direct a Warehouse Trust to
purchase Receivables or Receivable
Securities held by another Trust at a
particular time. The parties will comply
with that Series Notice.
(ii) Unless otherwise provided in that Series
Notice, the consideration for the purchase
in sub-paragraph will be:
(A) in the case of performing
Purchased Receivables, the
Unpaid Balance of the relevant
Purchased Receivables; and
(B) in the case of non-performing
Receivables, their Fair Market
Value.
In each case, the Servicer is to determine
whether a Receivable is performing or
non-performing.
(e) Costs of Repurchase; Indemnity
(i) The Approved Seller shall pay all costs and
expenses (including stamp duty) relating to
the repurchase or extinguishment of its
relevant Purchased Receivables and related
Receivable Rights under clauses 8.6(d) and
8.9(c).
(ii) Without limiting any indemnity to which the
Trustee is otherwise entitled, each Approved
Seller unconditionally and irrevocably
indemnifies the Trustee against any
liability, loss, cost or expense incurred by
the Trustee as a result of a Title
Perfection Event relating to that Approved
Seller. That Approved Seller must pay or
reimburse the Trustee on demand for all
reasonable expenses, including but not
limited to stamp duties and taxes, payable
in connection with such indemnity.
8.10 Subsequent adjustment
(a) Where Receivables in a Portfolio of Receivables have been
acquired from an Approved Seller:
(i) (interest) where so specified in the
relevant Series Notice or Sale Notice, the
Trust Manager shall direct the Trustee after
a Note Issue Date for a Trust to debit any
interest or fees received by the Trustee in
respect of a Receivable referred to in the
corresponding Note Issue Direction, with an
amount that represents accrued but unpaid
interest on the Receivable up to the date
specified for that purpose in the Series
Notice, and to credit that amount to the
relevant Approved Seller;
Page 47
(ii) (repaid principal) where so specified in the
relevant Series Notice or Sale Notice, after
the Note Issue Date the relevant Approved
Seller will as soon as possible (but by
close of business on the first Determination
Date) pay to the Trustee, as an adjustment
to the amount paid by the Trustee under
clause 13.8(e), an amount equal to the
amount of any principal received by the
Approved Seller on or after the date
specified for that purpose in the Sales
Notice in respect of any Receivables
referred to in the corresponding Note Issue
Direction;
(b) (other costs) subject to clause 8.10(a), the Trust
Manager may in its absolute discretion direct the
Trustee on or at any time after a Note Issue Date for a
Trust to debit or credit the corresponding Trust with
such other amounts that the Trust Manager believes are
appropriate so that the Approved Seller has the benefit
of any receipts, and bears the cost of any outgoings, in
respect of each Receivable referred to in the
corresponding Note Issue Direction (and any
corresponding Receivables, Receivable Security, Related
Securities and Support Facilities) up to (but not
including) the Note Issue Date and so that the relevant
Trust has the benefit of such receipts, and bears such
costs, from (and including) the Note Issue Date; and
(c) (Trustee to act in accordance with direction) the Trustee
or the Approved Seller (as the case may be) shall act in
accordance with, and may rely on, a direction of the
Trust Manager in accordance with this clause 8.10.
8.11 Substitution
If:
(a) an Obligor under a Purchased Receivable is, in accordance
with the relevant Approved Seller's ordinary course of
business, entitled to replace the related Receivable
Security, or a Security Interest which is a Related
Security, with another security securing the same
Receivable;
(b) the representations and warranties of the Approved Seller
in clause 8.6(a) and in the relevant Series Notice would
be true and correct in relation to the Receivable and the
new Security Interest at the time of substitution as if
it was specified as a Purchased Receivable in the Sale
Notice; and
(c) without limitation, in relation to Land, the new security
would be subject to a Mortgage Insurance Policy under
which the Trustee would be the insured;
then:
(i) the Approved Seller may discharge the related Receivable
Security, or the relevant Related Security, on the
giving of the new security;
(ii) the new security shall be taken to be a Purchased
Receivable Security or a Related Security in relation to
the relevant Trust, as the case may be, for the purposes
of each Transaction Document and it and the related
Receivable Rights shall be Assets of the relevant Trust;
and
(iii) the Approved Seller shall do anything else reasonably
necessary to assure to the Trustee its interest in that
new security.
Page 48
8.12 Indemnification
(i) Without limiting any other rights which the Trustee may
have under any Transaction Document or under applicable
law, each Approved Seller agrees to indemnify the Trustee
from and against any and all damages, losses, claims,
liabilities and related costs and expenses including
legal costs and expenses on a full indemnity basis the
Trustee may sustain or incur as a direct or indirect
consequence of:
(A) the breach of any representation or warranty
or undertaking made by that Approved Seller
under or in connection with any Transaction
Document, or any other information or report
delivered by that Approved Seller under any
Transaction Document, being false or
incorrect in any respect when made or deemed
made or delivered;
(B) the failure by that Approved Seller (whether
before or after the relevant Closing Date)
to comply with any applicable law, rule or
regulation with respect to any Receivable
Security, including without limitation the
nonconformity of any Receivable Security or
the Related Receivable with any such
applicable law, rule or regulation; and
(C) any dispute, claim, offset or defence of the
Obligor to the payment of any Purchased
Receivable Security which results from a
breach by the Approved Seller under any
Transaction Document.
To the extent that the matters referred to in paragraph
(i) are covered by clause 8.6(d), clause 8.6(d) shall
apply.
(ii) An Approved Seller shall not be obliged to pay any
indemnity for a breach of representation or warranty
under any Transaction Document, unless:
(A) the Trustee first establishes that there has
been a breach that has caused loss;
(B) the indemnity claimed represents no more
than the loss incurred as a result of the
breach; and
(C) the Trustee first gives the Approved Seller
a written notice specifying:
(1) the quantum of the claim; and
(2) the basis of the claim.
(iii) (Payment) Where an Approved Seller is liable to pay
damages under this clause, it shall make such payment
within 5 Business Days of receipt by the Approved Seller
of a notice that complies with paragraph (ii).
8.13 Power of Attorney
(a) The Trustee shall ensure that each power of attorney
given by an Approved Seller to the Trustee under or in
relation to this deed shall be exercised only strictly in
accordance with its terms.
(b) The Trustee shall:
(i) register each such power of attorney with
the land titles office of each relevant
jurisdiction; and
Page 49
(ii) keep each such power of attorney in a secure
place.
9. ACQUISITION FROM WAREHOUSE TRUST BY ANOTHER TRUST
9.1 Direction
(a) Where:
(i) a Note Issue Direction directs that the
Trustee issues Notes; or
(ii) a Warehouse Trust Direction directs that the
Trustee draws any amount under the relevant
Warehouse Facility Agreement,
to fund the acquisition of Receivables by a Trust from a
Warehouse Trust, and the Trustee implements that
direction, the Trustee shall use the proceeds of the
relevant issue of Notes or drawing under the Warehouse
Facility Agreement (as the case may be) for the purpose
of that acquisition.
(b) The Trustee has power, as the trustee of a Warehouse
Trust, to dispose of Receivables to another Trust in
accordance with Series Notices relating to that Warehouse
Trust and that other Trust, and subject to other relevant
Transaction Documents.
9.2 Implementation of acquisition
An acquisition of Receivables contemplated by clause 9.1 shall take
effect in accordance with clause 7.7.
9.3 Survival of rights and remedies
Where there exists any right or obligation of the Trustee in relation
to Receivables to be acquired from a Warehouse Trust, including any:
(a) Trust Back in relation to the Receivables;
(b) Approved Seller repurchase obligation under 8.6(d);
(c) Approved Seller representations or undertakings under
8.6(a); or
(d) limitation as to priority of payments on enforcement of
the Receivables,
the Trustee (in its capacity as Trustee of the Trust acquiring the
Receivables (the New Trust)), will acquire those Receivables with the
benefit of those rights and subject to those obligations.
Where any rights or obligations of the Trustee in relation to the
Receivables cannot be transferred to the Trustee in its capacity as
trustee of the New Trust, clauses 7.7(d), 7.7(e) and 7.7(g) will
apply.
9.4 Acknowledgement by Approved Seller
Each Approved Seller which disposes of Receivables to a Warehouse
Trust acknowledges and agrees that those Receivables acquired from it
by the Trustee as trustee of a Warehouse Trust may be disposed of by
the Trustee to another Trust.
Page 50
PART D - NOTES
10. NOTES
10.1 Acknowledgement of indebtedness
Subject to the terms of this deed and the relevant Series Notice,
each entry in the Register for a Trust in respect of a Note relating
to that Trust constitutes an independent and separate acknowledgement
to the relevant Noteholder by the Trustee of its indebtedness as
trustee of that Trust for the Invested Amount of that Note.
10.2 Legal nature of Notes
The Trustee may issue Notes of such legal nature as the Trust Manager
and the Trustee may agree. Unless otherwise agreed, the Notes will be
in the form of inscribed stock, and the Trustee's obligations in
relation to the Notes and under this deed in respect of those Notes
(including any obligation to pay interest or principal) will become
effective on inscription in the Register for that Trust under this
deed of the details for those Notes.
10.3 Terms of Notes
All Notes issued by the Trustee as trustee of a Trust shall be issued
with the benefit of, and subject to, this deed, the Series Notice
relating to those Notes and the Security Trust Deed (if any) relating
to that Trust. The Series Notice in relation to Notes shall be
binding on the Trust Manager, the Trustee and the corresponding
Noteholders.
10.4 Interest and Principal Entitlement of Noteholders
Subject to this deed, the corresponding Series Notice and the
Security Trust Deed (if any) relating to a Trust (and, in particular,
subject to any such provisions which provide for principal losses to
be charged off against any Notes), the Trustee as trustee of each
Trust shall in respect of the Notes issued by it in such capacity pay
or cause to be paid to the Noteholders of those Notes:
(a) (interest) their Coupon on each Coupon Payment Date; and
(b) (principal) their Principal Entitlement on each Principal
Repayment Date.
10.5 Minimum denomination of Notes
The minimum denomination of each Note shall be $10,000 (or, in the
case of Notes held by joint holders, $10,000 multiplied by the number
of holders of that Note) or such other amount specified in the
corresponding Series Notice.
10.6 Notes not invalid if issued in breach
No Note shall be invalid or unenforceable on the ground that it was
issued in breach of this deed or any other Transaction Document.
10.7 Location of Notes
The property in Notes shall for all purposes be regarded as situated
at the place where the relevant Register is located on which such
Notes are recorded.
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10.8 No discrimination between Noteholders
There shall not be any discrimination or preference between Notes
within the same Class, or the corresponding Noteholders, in relation
to a Trust by reason of the time of issue of Notes or for any other
reason, subject only to the Series Notice relating to the Notes and
the terms of the Security Trust Deed (if any) relating to the Trust.
11.1 SELLER NOTE
11.2 Seller Note
Where a Series Notice so provides, the Trustee may issue a debt
instrument (the Seller Note) to the relevant Approved Seller with
respect to any ongoing obligations of the Approved Seller with
respect to Purchased Receivables acquired from the Approved Seller by
the Trustee.
11.3 Form
The Seller Note:
(a) may be issued in any form and on any terms agreed by the
Trustee, the Approved Seller and the Trust Manager; and
(b) may relate to any current or future obligations of the
Approved Seller, actual or contingent, and whether or not
quantifiable at the date of issue of the Seller Note.
12.1 LIMITS ON RIGHTS OF NOTEHOLDERS AND BENEFICIARY
12.2 General Limits
No Noteholder or Beneficiary shall be entitled to:
(a) (particular interest) an interest in any particular part
of any Trust or Asset comprised in any Trust;
(b) (require transfer) subject (in the case of the
Beneficiary) to this deed, require the transfer to it of
any Asset comprised in any Trust;
(c) (interfere in management) interfere with or question the
exercise or non-exercise of the rights or powers of a
Servicer, the Trust Manager or the Trustee in their
dealings with any Trust or any Asset;
(d) (exercise rights in respect of Assets) exercise any
rights, powers or privileges in respect of any Asset in
any Trust;
(e) (act in Trustee's place) attend meetings or take part in
or consent to any action concerning any property or
corporation which the Trustee as trustee of a Trust holds
an interest;
(f) (terminate Trusts) seek to wind up or terminate any Trust
(except as provided in clause 17);
(g) (remove) seek to remove the relevant then Servicer, Trust
Manager or Trustee;
(h) (interfere) interfere in any way with any Trust;
Page 52
(i) (lodge caveats etc) lodge or enter a caveat or similar
instrument in relation to a Register or claim any estate
or interest in any Land over which a Mortgage or any
Related Securities are held or to which any other Asset
relates in respect of any Trust;
(j) (communicate with Mortgagors etc) except where the
Noteholder or Beneficiary is Westpac, or the Trustee has
otherwise consented, and subject to any provision of a
Transaction Document which allows any such
communication, negotiate or communicate in any way with
any Mortgagor, or Obligor or other security provider in
respect of any Mortgage, Loan, other Receivable,
Receivable Security or Related Security or with any
person providing a Support Facility to the Trustee or
any other person who is party to any Transaction
Document;
(k) (take proceedings) take any proceedings of any nature
whatsoever in any court or otherwise or to obtain any
remedy of any nature (including against the Trustee, the
Trust Manager or a Servicer or any former Trustee, Trust
Manager or Servicer or in respect of any Trust or any
Asset of any Trust) (unless, in the case of a Warehouse
Trust, the Noteholder or Beneficiary is Westpac and the
Trustee consents to Westpac taking the proceedings)
provided that it shall be entitled to compel the
Trustee, the Trust Manager and any Servicer to comply
with their respective duties and obligations under the
Transaction Documents and, if the Noteholders are
entitled to the benefit of any applicable Security Trust
Deed, the Noteholders may compel the Security Trustee to
comply with its duties and obligations under the
Security Trust Deed; and
(l) (recourse to personal assets of Trustee or Trust Manager)
any recourse whatsoever to the Trustee or the Trust
Manager in their personal capacity, except to the extent
of any fraud, negligence, wilful default, breach of trust
(in the case of the Trustee only) or breach of duty on
the part of the Trustee or the Trust Manager
respectively.
12.2 Interests of Beneficiary assignable
Subject to the relevant Series Notice a Beneficiary may assign, or
create or allow to exist a Security Interest over, its rights and
interests in respect of a Trust without the prior written consent of
any person.
12.3 Ranking of interest of Beneficiary
The rights, claims and interest of a Beneficiary in relation to any
Trust, the Assets of any Trust and in relation to any payment or
distribution out of any Trust (including, without limitation, on the
winding up of a Trust) shall at all times rank after, and be subject
to, the interests of Noteholders under the Notes issued in relation
to that Trust (including, without limitation, in relation to any
payment obligations on the Notes).
12.4 Further limit on interest of Noteholders
A Noteholder in relation to a Trust shall only be a creditor of the
Trustee in its capacity as trustee of that Trust to the extent of the
Notes held by that Noteholder (or, in the case of a Warehouse
Facility Provider, their rights under the relevant Warehouse Facility
Agreement) and shall not be entitled to any beneficial or, subject to
any applicable Security Trust Deed, other interest in any Trust.
12.5 No liability of Noteholders or Beneficiary
No Noteholder by reason of being a Noteholder, or Beneficiary by
reason of being a Beneficiary, shall in respect of a Trust:
Page 53
(a) (liability) have any liability to make any contribution
to the Assets of the Trust or any payment to the Trustee,
the Trust Manager or any other person in relation to the
Trust; and
(b) (indemnity) be under any obligation to indemnify the
Trustee, the Trust Manager or any Creditor of the Trustee
as trustee of the Trust in respect of any of the
liabilities (actual, contingent or otherwise and whether
due to any deficiency or not) of the Trustee or the Trust
Manager in relation to, arising from or in connection
with the Assets of the Trust or the Trust generally.
13. PROCEDURE FOR ISSUE OF NOTES
13.1 Note Issue Direction for a Trust
(a) (Delivery of direction) If the Trust Manager proposes
that the Trustee will issue Notes as trustee of a Trust,
it shall, at least 3 Business Days (or such other period
agreed by the Trustee or as specified in a relevant
Series Notice) prior to the proposed Note Issue Date,
deliver to the Trustee a Note Issue Direction directing
amongst other things that the Trustee (subject to this
deed and the relevant Series Notice):
(i) (transfer benefit of Mortgages) hold as
trustee of the Trust the benefit of the
Portfolio of Receivables specified by the
Trust Manager in the Note Issue Direction;
and
(ii) (issue Notes) issue as trustee of the Trust
the Notes specified by the Trust Manager in
the Note Issue Direction.
(b) (Conditions precedent to first direction) The right of
the Trust Manager to give a Note Issue Direction for any
Trust is subject to the Trustee receiving in form and
substance satisfactory to it:
(i) in relation to the first Note Issue
Direction for that Trust, a certificate in
relation to the relevant Servicer, the Trust
Manager and (if any) the relevant Approved
Seller (except where the Approved Seller is
a Trust) given by a director or secretary of
that company substantially in the form of
Schedule 6 with the attachments referred to
in that certificate;
(ii) in relation to the first Note Issue
Direction for that Trust, unless the Trustee
already holds a copy as trustee of another
Trust a duly executed and stamped
counterpart of this deed;
(iii) in relation to the first Note Issue
Direction for that Trust, a legal opinion on
this deed, or the Trustee being satisfied
that it will receive that legal opinion on
or before the first proposed Note Issue
Date; and
(iv) any other document or condition specified in
the relevant Series Notice.
13.2 Requirements for a Note Issue Direction
A Note Issue Direction given by the Trust Manager to the Trustee in
respect of a Trust under this deed shall (whether in that Note Issue
Direction, or in the accompanying Series Notice):
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(a) (contain the following information) specify the
following in respect of the Notes:
(i) (classes) whether any of the Notes will
constitute a Class separate from any other
Notes previously issued by the Trustee as
trustee of the Trust or from any other Notes
referred to in the Note Issue Direction;
(ii) (name) the name of the Notes or, if the
Notes are divided into more than one Class,
the name of each Class of Notes;
(iii) (amount) the total number of Notes and, if
the Notes are divided into more than one
Class, the number of Notes in each Class;
(iv) (principal amount) the total principal
amount of the Notes and, if the Notes are
divided into more than one Class, the
principal amount of each Class;
(v) (minimum subscription) the minimum
subscription amounts for Notes (if any);
(vi) (issue price) where the Notes are to be
issued at a discount or a premium to the
face value, the issue price of the Notes;
(vii) (Note Issue Date) the proposed Note Issue
Date;
(viii) (Security Trust Deed and Support Facilities)
whether a Security Trust Deed or any Support
Facilities need to be effected in relation
to the proposed Note Issue Date and, if so,
reasonable details of these;
(ix) (Receivables) all relevant details
(including where relevant the nature,
principal amount and rate of return) of
Receivables held or to be held under the
Trust to which the Trust to which the Note
Issue Direction relates;
(x) (Seller) where relevant, the identity and
details of the relevant Approved Seller or
Warehouse Trust from which the Receivables
are to be acquired;
(xi) (Lead Manager) if there is to be a Lead
Manager in relation to the issue of the
Notes, the identity and address of that Lead
Manager and any fees to which the Lead
Manager is entitled in relation to the
issue;
(xii) (Dealer Agreement if a Dealer Agreement is
to be effected in relation to the proposed
Note Issue Date, reasonable details of that
agreement (including the parties to that
agreement and the amount of their proposed
subscriptions);
(xiii) (such other required information) such other
information required by the Note Issue
Direction or the relevant Series Notice; and
(b) (duly completed) without limiting paragraph (a), be
otherwise duly completed; and
(c) (accompanied by a Series Notice) be accompanied by a duly
completed and executed Series Notice for the Notes, or if
the Notes are divided into more than one Class and the
Trust Manager elects to have a separate Series Notice for
each Class, a duly completed Series Notice for each
Class. However, if the terms of a Series Notice for the
Notes, or a particular Class of the Notes, are the same
as for a previous issue of Notes or a Class of Notes in
respect of the Trust, or if the Notes
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are contemplated by or issued under a previous Series
Notice, this requirement may be satisfied if the Note
Issue Direction specifies that this is the case and is
accompanied by the relevant previous Series Notice.
13.3 Series Notice
(a) (Mandatory Information) A Series Notice shall specify the
following in respect of the Notes to which it refers or
if it relates to more than one Class of Notes for each
Class to which it refers:
(i) (Coupon Payment Dates) each date (if any)
for the payment of interest under the Notes;
(ii) (Principal Repayment Dates) each date for
the repayment of part or all of the
outstanding principal under the Notes;
(iii) (rate of interest) the rate of interest (if
any) on the Notes (which may be fixed,
variable, calculated by way of discount on
the issue price or determined by a stated
method) and the method for calculating the
interest;
(iv0 (repayment of principal) where principal on
the Notes is to amortise, the amount (or the
method of calculating the amount) of
principal to be repaid on the Notes on each
Principal Repayment Date;
(v) (Class rights) if the corresponding Note
Issue Direction specifies that the Notes are
to constitute a Class separate from any
other Notes previously issued by the Trustee
as trustee of the relevant Trust or from any
other Notes referred to in the Note Issue
Direction, the rights or restrictions that
constitute the first mentioned Notes as a
separate Class and the relationship of those
rights and restrictions to any other then or
proposed Class of Notes;
(vi) (cashflow allocation methodology) the manner
in which cashflow from the Receivables (and
any relevant Support Facilities) will be
applied by the Trustee, and in which any
shortfalls in income will be allocated among
Notes and/or Classes of Notes;
(vii) (conversion rights) where the Notes may be
converted into a different Class of Notes,
details of that conversion (including when
and in what manner it can occur); and
(viii) (fees) any relevant fee (for example, fees
to the Servicer) for the relevant Trust.
(b) (Optional information) A Series Notice may specify the
following in respect of the Notes or Classes of Notes to
which it refers:
(i) (special rights) any preferred, deferred or
special rights or restrictions applying to
the Notes whether with regard to the payment
of interest, the repayment of principal,
voting, the division into classes or
otherwise, which may include, without
limitation, that the Notes are to be
initially issued on a partly paid basis or
shall have an additional entitlement to the
principal or capital of the corresponding
Trust beyond the repayment in full of their
Initial Invested Amount; and
(ii) (other information) any other terms or
restrictions applying to the Notes that may
be included in the Series Notice.
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(c) (Inconsistency) If a term of a Series Notice is
inconsistent with any provision of this deed, the Series
Notice shall prevail to the extent of the inconsistency,
with respect only to the Trust and Notes to which that
Series Notice relates.
(d) (Amendment) A Series Notice in relation to a Trust may
expressly amend any provision of this deed with respect
to that Trust and the relevant Notes. This deed and those
Notes shall be construed accordingly.
(e) (Execution) Once the Trustee, the Trust Manager, the
relevant Servicer, the provider of any relevant Support
Facility and any relevant Approved Seller have agreed to
the terms of a Series Notice they shall execute that
Series Notice in the Australian Capital Territory, on or
before the date on which the Trust Manager proposes to
issue the relevant Investment Direction.
13.4 Amendment
The Trust Manager may (and where either the Trustee or the relevant
Beneficiary have acknowledged the Note Issue Direction in accordance
with clause 13.6(b), the Trustee and the Beneficiary), prior to a
proposed Note Issue Date amend a previously issued Note Issue
Direction or Series Notice (including any Note Issue Direction or
Series Notice previously amended under this clause). For the purposes
of clause 13.13 only an amendment shall be treated as creating a
further issue of Notes. Such an amendment for a Rated Trust shall
only be made if prior notice of the amendment has been given to the
Designated Rating Agency.
13.5 Comply with Note Issue Direction
Subject to this clause 13, the Trustee may comply with a Note Issue
Direction.
13.6 Proviso on compliance with Note Issue Direction
(a) (Trustee shall not accept direction) The Trustee shall
not comply with a Note Issue Direction unless at least 3
Business Days (or such other period agreed by the
Trustee) prior to the proposed Note Issue Date the Trust
Manager has certified to the Trustee that the Note Issue
Direction and any corresponding Series Notice comply with
this deed.
(b) (Acknowledgement of direction) If the Trustee is
satisfied that the Note Issue Direction has been given
in accordance with this deed and has elected to accept
the Note Issue Direction then it shall immediately (and
in no event later than the close of business 2 Business
Days (or such other period agreed by the Trust Manager)
prior to the proposed Note Issue Date) sign the
acknowledgement of receipt on the Note Issue Direction
and return it to the Trust Manager. This acknowledgement
will not of itself constitute a declaration of trust and
a trust will only arise in accordance with clause
13.8(g).
13.7 Dealer Agreement
If a Series Notice so provides, the Trustee shall enter into a Dealer
Agreement in relation to the relevant Notes on such terms and
conditions as are reasonably required by the Trust Manager and the
Trustee (subject to this deed).
13.8 Issue of Notes and transfer of benefit of Mortgages
If the Trustee has:
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(a) (acknowledged the Note Issue Direction) acknowledged
receipt of a Note Issue Direction;
(b) (sufficient applications for Notes) received from the
Lead Manager (if any) or other intending Noteholders duly
executed Applications for Notes and the Trust Manager has
confirmed that the Subscription Amount for such Notes is
not less than the amount specified in the corresponding
Note Issue Direction;
(c) (received or granted Support Facilities etc) on or prior
to the proposed Note Issue Date:
(i) (Security Trust Deed) entered into a
Security Trust Deed as trustee of the
relevant Trust (unless not required for the
issue of the Notes by the Trust Manager in
the corresponding Note Issue Direction); and
(ii (Support Facilities) obtained, or entered
into arrangements to obtain with effect from
the corresponding Note Issue Date, as
trustee of the relevant Trust the benefit of
the Support Facilities referred to in the
corresponding Note Issue Direction,
and, to the extent required, received any legal opinions
on those documents reasonably requested by the Trustee;
and
(d) (rating) if the Notes are to be rated, the Trust Manager
has advised the Trustee that it has received a
provisional indication from the Rating Agency that the
Notes will have a rating equal to or higher than the
rating specified in the relevant Series Notice,
then, subject to the other requirements of this deed being satisfied
in relation to matters which must be done on or prior to the Note
Issue Date, the Trustee agrees with the Trust Manager (for the
benefit solely of the Trust Manager) that if, on the direction of the
Trust Manager on the Note Issue Date it issues Notes, as trustee of
the relevant Trust, to the intending Noteholders for the amount
referred to in the corresponding Note Issue Direction:
(e) (acquisition) where the relevant Receivables are to be
acquired from an Approved Seller:
(i) the Trustee will accept the relevant Sale
Notice (but only if the Trustee has issued
the relevant Notes) and without any
obligation to the Approved Seller to do so;
and
(ii) the Trustee agrees with the Trust Manager
(for the benefit solely of the Trust
Manager) to pay to the Approved Seller from
the proceeds of the issue of the Notes the
principal amounts of the Receivables
relating to the Portfolio of Receivables, or
such other consideration specified in
relation to the Note Issue Direction, as at
the date specified in the corresponding Note
Issue Direction; or
(f) (origination) where the Trustee is to originate the
relevant Receivables, originate those Receivables (and
any relevant Receivable Securities) in accordance with
the procedures agreed under clause 6.
13.9 Action following Note Issue
As soon as practicable after a Note Issue Date for a Trust:
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(a) (enter details in the Register) the Trustee shall enter
into the Register for that Trust in accordance with
clause 16 the information required under clause 16.1;
(b) (issue Note Acknowledgement) the Trustee shall issue a
Note Acknowledgement to each Noteholder in respect of its
holding of Notes; and
(c) (issue Marked Note Transfers) if requested by a
Noteholder in its Application for Notes, the Trustee
shall issue a Marked Note Transfer to the Noteholder.
13.10 No liability for insufficient moneys
If insufficient moneys are raised on a proposed Note Issue Date to
satisfy clause 13.8(b), neither the Trustee nor the Trust Manager
shall have any obligation or liability to any person (including,
without limitation, each other, any intending Noteholder or any
Beneficiary) to issue the Notes or, in the case of a proposed issue
in relation to a Trust, to hold the benefit of the Portfolio of
Receivables referred to in the corresponding Note Issue Direction for
the Trust, or otherwise.
13.11 Further assurance
Subject to the Transaction Documents, the Trustee shall following a
Note Issue Date for a Trust execute such documentation and do all
such other acts, matters or things as the Trust Manager reasonably
requires to transfer the benefit of the Portfolio of Receivables
referred to in the corresponding Note Issue Direction (and the
benefit of all corresponding Loans, Related Securities and Support
Facilities) to the Trust.
13.12 Further issues subject to Rating Agency approval
Where the Trustee as trustee of a Rated Trust has issued Notes, no
further Notes in respect of that Trust shall be created unless the
Trustee receives a certificate from each Designated Rating Agency in
respect of the Notes then on issue in respect of the Trust confirming
the rating of those Notes.
13.13 Issue of unrated Notes
Nothing in this deed shall be construed as requiring the Trustee or
the Trust Manager to obtain a rating for Notes to be issued by the
Trustee (except where those Notes are to be issued by a Rated Trust).
13.14 No limit on Notes
Subject to the provisions of this deed, there shall be no limit on
the amount or value of Notes which may be issued in respect of a
Trust.
13.15 Excluded issue, offer or invitation only
Notwithstanding anything contained in this deed, no issue or
allotment of Notes, offer of Notes for subscription or purchase or
invitation to subscribe for or buy Notes shall be made unless the
issue, allotment, offer or invitation is an excluded issue, excluded
offer or excluded invitation for the purposes of the Corporations
Law.
14. TRANSFERS OF NOTES
14.1 No restrictions on transfer of Notes
Subject to this deed and the corresponding Series Notice, there shall
be no restriction on the transfer of Notes.
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14.2 Minimum transfer
(a) (Corporations Law) A Noteholder shall not be entitled to
transfer any of its Notes unless the offer or invitation
to the transferee by the Noteholder in relation to such
Notes is an excluded offer or an excluded invitation for
the purposes of the Corporations Law.
(b) (Series Notice) Without limiting the generality of clause
14.1, or the operation of clause 14.2(a), a Noteholder
shall not be entitled to transfer any of its Notes unless
the amount payable by the transferee is greater than the
minimum amount (if any) provided in the Series Notice for
the Notes.
14.3 Form of transfer
Every transfer of Notes shall be effected by a Note Transfer.
14.4 Execution of Note Transfer
Every Note Transfer shall be duly completed and executed by the
transferor and transferee.
14.5 Stamping of Note Transfer
Every Note Transfer lodged with the Trustee shall be duly stamped
(if applicable).
14.6 Delivery of Note Transfer to Trustee
Every Note Transfer shall be delivered to the Trustee together with
the Note Acknowledgement to which it relates for registration.
14.7 Registration of Transferee as Noteholder
Subject to this clause 14 the Trustee shall on receipt of a Note
Transfer enter the transferee in the relevant Register as the holder
of the Notes which are the subject of the Note Transfer.
14.8 Trustee entitled to refuse to register Transfer
The Trustee may refuse to register any Note Transfer which would
result in:
(a) (breach) a contravention of or failure to observe:
(i) (this deed) the terms of this deed;
(ii) (Series Notice) the Series Notice for the
Notes;
(iii) (Security Trust Deed) the Security Trust
Deed (if any) relating
to the Notes; or
(iv) (the Law) a law of an Australian
Jurisdiction; or
(b) (requires registration) an obligation to procure
registration of any of the above with, or the approval of
any of the above by, any Government Agency.
14.9 Refusal to register absolute
The Trustee shall not be bound to give any reason for refusing to
register any Note Transfer and its decision shall be final,
conclusive and binding. If the Trustee refuses to register a Note
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Transfer it shall as soon as practicable (and in no event later than
7 days after the date the Note Transfer was lodged with it) send to
the transferor and the transferee notice of such refusal.
14.10 No fee for registration of a Note Transfer
No fee shall be charged for the registration of any Note Transfer.
14.11 Taking effect of Note Transfers
(a) (Not until registration) A Note Transfer shall not take
effect until registered by the Trustee and until the
transferee is entered in the relevant Register as the
holder of the Notes which are the subject of the Note
Transfer, the transferor shall remain the holder of those
Notes.
(b) (Transfer received when Register closed) When a Note
Transfer is received by the Trustee during any period
when the relevant Register is closed for any purpose, the
Trustee shall not register the Note Transfer until the
next Business Day on which that Register is reopened.
14.12 Rights and obligations of transferee
Subject to this deed, a transferee of Notes on being noted in the
relevant Register as the holder of the Notes shall have the following
rights and obligations:
(a) (those of the transferor) all the rights and the
obligations which the transferor previously had; and
(b) (those under this deed) all the rights and obligations of
a Noteholder as provided by this deed as if the
transferee was originally a party to this deed.
14.13 Payments to transferee
Subject to this deed (including clause 35.1), on the entry of a
transferee of Notes in the relevant Register the transferee shall
become entitled to receive any payments then due or which may become
due to the holder of the relevant Notes (including whether or not the
entitlement to payment wholly or partly arose or accrued prior to the
transfer and the Trustee shall be discharged for any such payment
made to the transferee).
14.14 Transmission of entitlements
(a) (Election) Any person becoming entitled to Notes as a
result of the death, mental incapacity or bankruptcy of a
Noteholder may, on producing such evidence as the Trustee
requires of their entitlement, elect to be either
registered as the Noteholder or to transfer the Notes in
the manner specified in this clause 14.
(b) (Method of election) If an entitled person elects to be
registered as the Noteholder, the person shall deliver
to the Trustee a notice in writing to this effect signed
by the person. If the person elects to have another
person registered he or she shall execute a Note
Transfer in relation to the Notes in favour of that
person. All the provisions of this deed relating to the
transfer of Notes and the registration of Note Transfers
shall be applicable to any such notice or Note Transfer
as if the death, mental incapacity or bankruptcy of the
Noteholder had not occurred and the notice or Note
Transfer was a Note Transfer executed by the Noteholder.
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(c) (Discharge) A person entitled to Notes under this clause
shall be entitled to receive and may give a good
discharge for all moneys payable in respect of such Notes
but, except as otherwise provided by this deed, shall not
be entitled to any of the rights or privileges of a
Noteholder unless and until the person is entered in the
relevant Register as the holder of such Notes.
14.15 Marked Note Transfer
(a) (Entitlement to marking) A Noteholder may from time to
time request the Trustee to provide the Noteholder with a
Marked Note Transfer.
(b) (Marking) The Noteholder shall deliver a Note Transfer to
the Trustee and the Trustee shall mark the Note Transfer
in such manner as agreed from time to time by the Trustee
and the Trust Manager and issue the same to the
Noteholder.
(c) (Trustee will not register transfer) Until the expiry of
90 days (or any substitute period as the Trustee and
Trust Manager agree from time to time and as advised to
Noteholders of the relevant Trust) from the date on which
the Note Transfer was marked, the Trustee shall not
register any transfer of Notes relating to the Marked
Note Transfer otherwise than on that Marked Note
Transfer.
(d) (No extension by closing of Register) The period
referred to in sub-paragraph (c) shall not be extended
by the closing of the relevant Register for any purpose.
(e) (Delivery) A Marked Note Transfer shall be issued to a
Noteholder by personal delivery at the time the
Noteholder attends the offices of the Trustee (or such
other place nominated by the Trustee) for the marking of
the Note Transfer by the Trustee.
14.16 Reliance on documents
The Trustee shall be entitled to accept and assume the authenticity
and genuineness of any Note Transfer or other document produced to it
to be duly executed. The Trustee shall not be bound to enquire into
the authenticity or genuineness of any Note Transfer or other
document, nor shall it incur any liability for registering any Note
Transfer which is subsequently discovered to be a forgery or
otherwise defective, unless the Trustee had actual notice of such
forgery or defect at the time of registration of such Note Transfer.
14.17 Specimen signatures
The Trustee may (but need not) require each Noteholder to submit
specimen signatures (and in the case of a corporation may require
those signatures to be authenticated by the secretary or director of
such Noteholder) of persons authorised to execute Note Transfers on
behalf of such Noteholder and shall be entitled to assume (until
notified to the contrary) that such authority has not been revoked.
14.18 Notes lodged with Austraclear
If Notes are lodged into the Austraclear System, the Trustee shall
enter Austraclear in the relevant Register as the holder of those
Notes. While those Notes remain in the Austraclear System:
(a) all payments and notices required of the Trustee and the
Trust Manager in relation to those Notes will be
directed to Austraclear; and
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(b) all dealings (including transfers) and payments in
relation to those Notes within the Austraclear System
will be governed by the Austraclear Regulations and need
not comply with this clause 14 to the extent of any
inconsistency.
15. NOTE ACKNOWLEDGEMENT
15.1 Issue of Note Acknowledgement
When a person has been entered in the relevant Register as the holder
of Notes, as soon as practicable (and in any event no later than 5
Business Days or such shorter period specified in the relevant Series
Notice or as otherwise agreed by the Trustee with the person or the
Trust Manager) thereafter, the Trustee shall issue a Note
Acknowledgement to that person in respect of those Notes. If the
person has been entered into the relevant Register under a Note
Transfer and the transferor continues to retain a holding of Notes,
the Trustee shall within the same period stated above issue to the
transferor a Note Acknowledgement in respect of that retained holding
of Notes. No certificates will be issued in respect of Notes.
15.2 Note Acknowledgement not certificate of title
A Note Acknowledgement shall not be a certificate of title as to
Notes and the relevant Register shall be the only conclusive evidence
of the ownership of Notes and the entitlements under them. A Note
Acknowledgement cannot be pledged or deposited as security nor can a
Note be transferred by delivery of only a Note Acknowledgement.
15.3 Execution of Note Acknowledgement
Each Note Acknowledgement shall be signed on behalf of the Trustee
manually, or in facsimile by mechanical or electronic means, by any
Authorised Signatory of the Trustee. If any Authorised Signatory of
the Trustee whose signature appears on a Note Acknowledgement dies or
otherwise ceases to be an Authorised Signatory before the Note
Acknowledgement has been issued, the Trustee may nevertheless issue
the Note Acknowledgement.
15.4 More than one Note Acknowledgement
If a Noteholder wishes more than one Note Acknowledgement it shall
return its Note Acknowledgement to the Trustee and at the same time
request in writing the issue of a specified number of separate Note
Acknowledgements. Subject to clause 10.5, the Trustee shall then
cancel the original Note Acknowledgement and issue in lieu separate
Note Acknowledgements. A fee prescribed by the Trustee (not exceeding
$10 for each Note Acknowledgement) shall be paid by the Noteholder to
the Trustee.
15.5 Worn out, defaced or lost Note Acknowledgement
If any Note Acknowledgement is worn out or defaced then on production
to the Trustee it may cancel the same and may issue a new Note
Acknowledgement. If any Note Acknowledgement is lost or destroyed
then on proof to the satisfaction of the Trustee, and on such
indemnity as the Trustee may consider adequate having been given, a
new Note Acknowledgement shall be given to the person entitled to
such lost or destroyed Note Acknowledgement. An entry as to the issue
of the new Note Acknowledgement and of the indemnity (if any) shall
be made in the relevant Register. A fee prescribed by the Trustee
(not exceeding $10) shall be paid by the person requesting the new
Note Acknowledgement to the Trustee.
15.6 Joint holdings
If a single parcel of Notes is held by more than one person, only the
person whose name stands first in the relevant Register in relation
to that parcel of Notes shall be entitled to:
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(a) be issued the relevant Note Acknowledgement and, if
applicable, a Marked Note Transfer;
(b) be given any notices; and
(c) be paid any moneys due in respect of such Notes.
15.7 Delivery of Note Acknowledgement
A Note Acknowledgement may be sent to the relevant Noteholder by mail
or by personal delivery to the Noteholder's address appearing in the
relevant Register and the Note Acknowledgement so sent shall be at
the risk of that Noteholder.
16. THE REGISTER
16.1 Details to be kept on Register
The Trustee shall keep or cause to be kept a register with respect to
each Trust, on which shall be entered the following information
relating to that Trust:
(a) (name) the name of the Trust;
(b) (creation) the date of the creation of the Trust;
(c) (Note Issue Dates) the Note Issue Dates for Notes issued
in relation to the Trust;
(d) (Initial Invested Amount) the total Initial Invested
Amount of Notes issued on each such Note Issue Date;
(e) (Invested Amount) the Invested Amount of each Note or
Class of Notes from time to time;
(f) (Stated Amount) the Stated Amount of each Note or Class
of Notes from time to time;
(g) (Series) details of relevant Classes of Notes;
(h) (details of Noteholders) the name and address of each
Noteholder;
(i) (number of Notes) the number of Notes held by each
Noteholder;
(j) (Note Acknowledgement) the serial number of each Note
Acknowledgement issued to each Noteholder;
(k) (date of entry) the date on which a person was entered
as the holder of Notes;
(l) (date of cessation) the date on which a person ceased to
be a Noteholder;
(m) (account) the account to which any payments due to a
Noteholder are to be made (if applicable);
(n) (payments) a record of each payment in respect of the
Notes in relation to the Trust; and
(o) (tax file number) a record that the Trustee has (or has
not) received the tax file number for each Noteholder;
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(p) (additional information) such other information as:
(i) is required by the relevant Series Notice;
(ii) the Trustee considers necessary or
desirable; or
(iii) the Trust Manager reasonably requires.
16.2 Asset register
The Trustee shall keep or cause to be kept an asset register with
respect to each Trust, in which shall be entered the Authorised
Investments and other Assets of the Trust (other than Purchased
Receivables and the related Receivable Rights) entered into the
relevant asset register on an individual basis.
16.3 Place of keeping Register, copies and access
Each Register shall be:
(a) (place kept) kept at the Trustee's principal office in
Sydney or at such place as the Trustee and the Trust
Manager may agree;
(b) (access to Trust Manager and Auditor) open to the Trust
Manager and the Auditor of the Trust to which it relates
to inspect during normal business hours;
(c) (inspection by Noteholders) open for inspection by a
Noteholder during normal business hours but only in
respect of information relating to that Noteholder; and
(d) (not for copying) not available to be copied by any
person (other than the Trust Manager) except in
compliance with such terms and conditions (if any) as the
Trust Manager and Trustee in their absolute discretion
nominate from time to time.
16.4 Details on Register conclusive
(a) (Reliance on Register) The Trustee shall be entitled to
rely on a Register as being a correct, complete and
conclusive record of the matters set out in it at any
time and whether or not the information shown in that
Register is inconsistent with any other document, matter
or thing.
(b) (no trusts etc) The Trustee shall not be obliged to enter
on a Register notice of any trust, Security Interest or
other interest whatsoever in respect of any Notes and the
Trustee shall be entitled to recognise a Noteholder as
the absolute owner of Notes and the Trustee shall not be
bound or affected by any trust affecting the ownership of
any Notes unless ordered by a court or required by
statute.
(c) (Register not to be signed) The Trustee shall ensure that
it does not sign or otherwise execute any entry in a
Register.
16.5 Closing of Register
The Trustee may close a Register for the periods specified in the
relevant Series Notice.
16.6 Alteration of details on Register
On the Trustee being notified of any change of name or address or
payment or other details of a Noteholder by the Noteholder, the
Trustee shall alter the relevant Register accordingly.
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16.7 Rectification of Register
If:
(a) an entry is omitted from a Register;
(b) an entry is made in a Register otherwise than in
accordance with this deed;
(c) an entry wrongly exists in a Register;
(d) there is an error or defect in any entry in a Register;
or
(e) default is made or unnecessary delay takes place in
entering in a Register that any person has ceased to be
the holder of Notes,
the Trustee may rectify the same.
16.8 Correctness of Register
Neither the Trust Manager nor the Trustee shall be liable for any
mistake in a Register or in any purported copy except to the extent
that the mistake is attributable to its fraud, negligence or wilful
default.
16.9 Trust Manager must provide information
The Trust Manager must provide the Trustee and any person appointed
in accordance with clause 21.4 with such information as the Trustee
may reasonably require to maintain each Register.
16.10 Third party registrar
The Trustee may cause a Register to be maintained by a third party on
its behalf and require that person to discharge the Trustee's
obligations under this deed in relation to that Register.
17. MEETINGS OF NOTEHOLDERS
17.1 Application of this clause
(a) The application of this clause 17 to a given Trust, and
to meetings of Noteholders of a given Trust or a Class
of Noteholders of a given Trust, is subject in its
entirety to the provisions of any Security Trust Deed
and any Series Notice in relation to that Trust and,
without limitation, a Security Trust Deed and a Series
Notice in relation to a Trust may override, suspend,
amend, modify, supplement or delete to any extent all or
any of the provisions of this clause 17 in relation to
that Trust and to meetings of Noteholders of that Trust
or any meeting of a Class of Noteholders of that Trust.
(b) In relation to a Warehouse Trust for which the only
Noteholder is the relevant Warehouse Facility Provider:
(i) the Warehouse Facility Provider can agree to
short notice under clause 17.3(b);
(ii) clauses 17.3(c), 17.4, 17.6, 17.7, 17.9 and
17.11 will not apply;
(iii) the Warehouse Facility Provider constitutes
a quorum for the purposes of clause 17.5;
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(iv) an Extraordinary Resolution under this deed
is constituted by a resolution of the
Warehouse Facility Provider.
17.2 Convening of meetings by Xxxxxxx and Trust Manager
(a) The Trustee or the Trust Manager may at any time convene
a meeting of the Noteholders of that Trust or Class of
Noteholders of a Trust.
(b) Noteholders of a Trust or a Class of Noteholders holding
in aggregate not less than 20% of the Invested Amounts of
all Notes issued by that Trust or in that Class, may at
any time convene a meeting of the Noteholders of that
Trust or Class, as the case may be.
17.3 Notice of meetings
(a) (Period of notice) Subject to clause 17.3(b) at least 7
days' notice (inclusive of the day on which the notice is
given and of the day on which the meeting is held) of a
meeting of all Noteholders or any Class of Noteholders of
a Trust shall be given to the relevant Noteholders of the
Trust.
(b) (Short notice) Notwithstanding clause 17.3(a), if it is
so agreed by a majority in number of the Noteholders of a
Trust or the Class (as the case may be) having the right
to attend and vote at the meeting, being a majority that
together hold at least 95% of the then outstanding Notes
in relation to the Trust or the Class, a resolution may
be proposed and passed at a meeting of which less than 7
days' notice has been given.
(c) (Failure to give notice) The accidental omission to give
notice to or the non-receipt of notice by any Noteholder
shall not invalidate the proceedings at any meeting.
(d) (Copies) A copy of a notice convening a meeting shall be
given by the Trustee or the Trust Manager convening the
meeting to the other, and also to the relevant
Beneficiary and the Designated Rating Agencies. Failure
to give such a notice in accordance with this clause
shall invalidate the meeting unless the party who has not
received the notice waives the invalidation.
(e) (Method of giving notice) Notice of a meeting shall be
given in the manner provided in this deed.
(f) (Contents of a notice) Notice of a meeting of
Noteholders shall specify:
(i) (time etc) the day, time and place of the
proposed meeting;
(ii) (agenda) the agenda of the business to be
transacted at the meeting;
(iii) (proposed resolution) the terms of any
proposed resolution;
(iv) (closing of Register) that the persons
appointed to maintain the relevant Register
for the purpose of determining those
entitled to attend may not register any Note
Transfer in the period of 2 Business Days
prior to the meeting;
(v) (appointment of proxies) that appointments
of proxies must be lodged no later than 24
hours prior to the time fixed for the
meeting; and
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(vi) (additional information) such additional
information as the person giving the notice
thinks fit.
17.4 Chairman
The Trustee may nominate a person to be chairman of a meeting which
has been convened by the Trustee or the Trust Manager. The chairman
need not be a Noteholder of the Trust and may be a representative of
the Trustee. If such a person is not present or is present but
unwilling to act, then the Noteholders present may choose a
Noteholder to be the chairman.
17.5 Quorum
At any meeting any two or more persons present in person being
Noteholders holding, or Representatives holding or representing, in
the aggregate not less than 75% of the Invested Amounts of all Notes
issued in relation to the Trust or constituting the Class (as the
case may be) and then outstanding shall form a quorum for the
transaction of business and no business (other than the choosing of a
chairman) shall be transacted at any meeting unless the requisite
quorum is present at the commencement of business.
17.6 Adjournment
(a) (Quorum not present) If within 15 minutes from the time
appointed for any meeting a quorum is not present, the
meeting shall stand adjourned (unless the Trustee agrees
that it be dissolved) for such period, not being less
than 7 days nor more than 42 days, as may be appointed
by the chairman. At such adjourned meeting two or more
persons present in person being Noteholders holding, or
being Representatives holding or representing, in the
aggregate not less than 50% of the Invested Amounts of
all Notes issued by the Trust or constituting the Class
(as the case may be) and then outstanding (whatever the
Notes so held or represented) shall form a quorum and
shall have the power to pass any resolution and to
decide on all matters which could properly have been
dealt with at the meetings from which the adjournment
took place had a quorum been present at such meeting.
(b) (Adjournment of meeting) The chairman may with the
consent of (and shall if directed by) any meeting adjourn
the same from time to time and from place to place but no
business shall be transacted at any adjourned meeting
except business which might lawfully have been transacted
at the meeting from which the adjournment took place.
(c) (Notice of adjourned meeting) At least 5 days' notice of
any meeting adjourned through want of a quorum shall be
given in the same manner as for the original meeting and
such notice shall state the quorum required at such
adjourned meeting. It shall not, however, otherwise be
necessary to give any notice of an adjourned meeting.
17.7 Voting procedure
(a) (Show of hands) Every resolution submitted to a meeting
shall be decided in the first instance by a show of hands
and, in case of equality of votes, the chairman shall
both on a show of hands and on a poll have a casting vote
in addition to the vote or votes (if any) to which he or
she may be entitled as a Noteholder or as a
Representative.
(b) (Declaration) At any meeting, unless a poll is (before or
on the declaration of the result of the show of hands)
demanded, a declaration by the chairman that a resolution
has been carried by a particular majority
or lost or not carried by any
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particular majority is conclusive evidence of the fact
without proof of the number or proportion of the votes
recorded in favour of or against such resolution.
(c) (Poll) If at any meeting a poll is demanded by the
chairman, the Trustee or the Trust Manager or by one or
more persons being Noteholders holding, or being
Representatives holding or representing, in aggregate
not less than 2% of the Notes issued by the Trust or
constituting the Class (as the case may be) and then
outstanding, it shall be taken in such manner and
(subject to this clause) either at once or after such an
adjournment as the chairman directs and the result of
such poll shall be deemed to be the resolution of the
meeting at which the poll was demanded as at the date of
the taking of the poll. The demand for a poll shall not
prevent the continuance of the meeting for the
transaction of any business other than the question on
which the poll has been demanded. The demand for a poll
may be withdrawn.
(d) (No adjournment) Any poll demanded at any meeting on the
election of a chairman or on any question of adjournment
shall be taken at the meeting without adjournment.
(e) (Votes) Subject to clause 17.7(a), at any meeting:
(i) on a show of hands, every person present
being a Noteholder holding, or being a
Representative holding or representing, then
outstanding Notes issued by the Trust shall
have one vote; and
(ii) on a poll, every person present shall have
one vote for each Note issued by the Trust
and then outstanding that he or she holds or
in respect of which he or she is a
Representative as stated in the relevant
Register at the date the notices are
dispatched to Noteholders for the meeting.
Any person entitled to more than one vote need not use
all his or her votes or cast all his or her votes to
which he or she is entitled in the same way.
17.8 Right to attend and speak
The Trustee, the Trust Manager and the relevant Beneficiary (through
their respective representatives) and their respective financial and
legal advisers shall be entitled to attend and speak at any meeting
of the Noteholders of a Trust or any Class (as the case may be). No
person shall otherwise be entitled to attend or vote at any meeting
of the Noteholders of a Trust or any Class (as the case may be)
unless he or she holds outstanding Notes in relation to the Trust or
is a Representative holding or representing such Notes.
17.9 Appointment of proxies
(a) (Requirements) Each instrument appointing a proxy shall
be in writing and, together (if so required by the
Trustee) with proof satisfactory to the Trustee of its
due execution, shall be deposited at the registered
office of the Trustee or at such other place as the
Trustee shall designate or approve not less than 24
hours before the time appointed for holding the meeting
or adjourned meeting at which the named proxy proposes
to vote and in default, the instrument or proxy shall be
treated as invalid unless the chairman of the meeting
decides otherwise before such meeting or adjourned
meeting proceeds to business. A notarially certified
copy proof (if applicable) of due execution shall if
required by the Trustee be produced by the proxy at the
meeting or adjourned meeting but the Trustee shall not
be obliged to investigate or be concerned with the
validity of, or the authority of, the proxy named in any
such instrument. Any person may act as a proxy whether
or not that person is a Noteholder.
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(b) (Proxy remains valid) Any vote given in accordance with
the terms of an instrument of proxy conforming with
clause 17.9(a) shall be valid notwithstanding the
previous death or insanity of the principal, revocation
or amendment of the proxy or of any of the Noteholder's
instructions under which it was executed, so long as no
intimation in writing of such death, insanity,
revocation or amendment is received by the Trustee at
its registered office or by the chairman of the meeting
in each case not less than 24 hours before the
commencement of the meeting or adjourned meeting at
which the proxy is used.
17.10 Corporate representatives
A person authorised under sections 249(3)-(6) of the Corporations Law
by a Noteholder being a body corporate to act for it at any meeting
shall, in accordance with his or her authority until his or her
authority is revoked by the body corporate concerned, be entitled to
exercise the same powers on behalf of that body corporate as that
body corporate could exercise if it were an individual Noteholder and
shall be entitled to produce evidence of his or her authority to act
at any time before the time appointed for the holding of or at the
meeting or adjourned meeting or for the taking of a poll at which he
proposes to vote.
17.11 Rights of Representatives
A Representative of a Noteholder shall have the right to demand or
join in demanding a poll and shall (except and to the extent to which
the Representative is specially directed to vote for or against any
proposal) have power generally to act at a meeting for the
Noteholder. The Trustee, the Trust Manager and any officer of the
Trustee and the Trust Manager may be appointed a Representative.
17.12 Powers of a meeting of Noteholders
(a) (Xxxxxx) A meeting of the Noteholders of a Trust shall,
without prejudice to any rights or powers conferred on
other persons by the Transaction Documents, only have
power exercisable by Extraordinary Resolution:
(i) to sanction any action that the Trustee, the
Trust Manager or the relevant Servicer
proposes to take to enforce the provisions
of any Transaction Document relating to the
Trust;
(ii) to sanction any proposal by the Trust
Manager, the Trustee or the relevant
Servicer for any modification, abrogation,
variation or compromise of, or arrangement
in respect of, the rights of the Noteholders
against the Trustee, the Trust Manager, the
relevant Approved Seller or the relevant
Servicer whether such rights arise under any
Transaction Document or otherwise;
(iii) to sanction the exchange or substitution of
Notes for or the conversion of Notes into,
other obligations or securities of the
Trustee or any other body corporate formed
or to be formed;
(iv) under clause 36.2, to consent to any
alteration, addition or modification of any
Transaction Document which shall be proposed
by the Trustee or the Trust Manager;
(v) to discharge or exonerate the Trustee, the
Trust Manager, the relevant Approved Seller
or the relevant Servicer from any liability
in respect of any act or omission for which
it may become responsible under any
Transaction Document relating to the Trust;
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(vi) to authorise the Trustee, the Trust Manager,
the relevant Servicer or any other person to
concur in and execute and do all such
documents, acts and things as may be
necessary to carry out and give effect to
any Extraordinary Resolution; and
(vii) to exercise any other power expressly
granted under a Series Notice.
(b) (No power) A meeting of the Noteholders of a Trust shall
not have power to, nor shall any resolution submitted to
the meeting propose or have the effect of:
(i) removing the relevant Servicer or the Trust
Manager from office;
(ii) interfering with the management of the
Trust;
(iii) winding up or terminating the Trust (except
as contemplated by clause 17.12(a)(vii));
(iv) altering the Authorised Investments of the
Trust;
(v) amending any Transaction Document (except as
contemplated by clause 17.12(a)); or
(vi) altering the Coupon Payment Dates, Principal
Payment Dates, Coupons, Principal
Entitlements or the other terms of the
Series Notice in relation to any Notes
(subject to clause 17.12(a)(iii)).
17.13 Extraordinary Resolution binding on Noteholders
An Extraordinary Resolution passed at a meeting of the Noteholders of
a Trust or of any Class duly convened and held in accordance with
this deed shall be binding on all the Noteholders of the Trust or of
the Class whether or not present at such meeting. Each of the
Noteholders of the Trust or of the Class (as the case may be), the
Trustee and the Trust Manager shall be bound to give effect to that
resolution accordingly.
17.14 Minutes and records
Minutes of all resolutions and proceedings at every meeting of the
Noteholders of a Trust or any Class (as the case may be) shall be
made and duly entered in the books to be from time to time provided
for that purpose by the Trustee and any such minutes purporting to be
signed by the chairman of the meeting at which such resolutions were
passed or proceedings transacted or by the chairman of the next
succeeding meeting of the Noteholders of the Trust or of the Class
(as the case may be) shall be conclusive evidence of those matters
and until the contrary is proved every such meeting in respect of the
proceedings of which minutes have been made and signed shall be
deemed to have been duly convened and held and all resolutions passed
or proceedings transacted at such meeting to have been duly passed
and transacted.
17.15 Written resolutions
Notwithstanding the preceding provisions of this clause 17, a
resolution of the Noteholders of a Trust or any Class (including an
Extraordinary Resolution) may be passed, without any meeting or
previous notice being required, by an instrument or instruments in
writing which has or have:
(a) in the case of a resolution (including an Extraordinary
Resolution) of the Noteholders of a Trust or any Class,
been signed by all Noteholders of the Trust or the Class
(as the case may be); and
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(b) any such instrument shall be effective on presentation to
the Trustee for entry in the records referred to in
clause 17.14.
17.16 Further procedures for meetings
Subject to all other provisions contained in this deed, the Trustee
may without the consent of the Noteholders of a Trust or any Class
prescribe such further regulations regarding the holding of meetings
of the Noteholders of a Trust or any Class of Noteholders and
attendance and voting at such meetings as the Trustee may with the
agreement of the Trust Manager determine including particularly (but
without prejudice to the generality of the above) such regulations
and requirements as the Trustee thinks reasonable:
(a) (entitlement to vote) so as to satisfy itself that
persons who purport to attend or vote at any meeting of
the Noteholders of a Trust or any Class of Noteholders
are entitled to do so in accordance with this deed; and
(b) (forms of Representative) as to the form of appointment
of a Representative,
but the Trustee may not decrease the percentage of Noteholders
required to pass an Extraordinary Resolution or an ordinary
resolution.
PART E - TRUST MANAGER
18. THE TRUST MANAGER
18.1 Appointment of Trust Manager
(a) The Trust Manager is appointed, and agrees to act, as the
manager of the Trusts on and subject to the terms of this
deed and any relevant Series Notice.
(b) Except as provided in clause 18.16 and clause 20.3:
(i) the Trust Manager will be an independent
contractor and not an agent of the Trustee;
(ii) the Trust Manager will not represent or hold
itself out to any person to be an agent of
the Trustee; or
(iii) the Trustee will not be responsible for the
acts, omissions or defaults of the Trust
Manager.
18.2 Complete powers of management
Subject to the Transaction Documents, the Trust Manager shall carry
out and perform the duties and obligations on its part contained in
this deed and shall have full and complete powers of management of
the Trusts, including without limitation:
(a) (Assets and liabilities) the administration and servicing
of the Assets (which are not serviced by a Servicer),
borrowings and other liabilities of the Trusts (including
concluding the commercial terms of the Hedge Agreements
to be entered into by the Trustee); and
(b) (day to day operation) the conduct of the day to day
operation of the Trusts.
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18.3 Note issuance
The Trust Manager has the power, where the Borrowing takes the form
of an issue of Notes, to:
(a) negotiate the terms and conditions of the issue of Notes
and any relevant Dealer Agreement;
(b) accept the terms and conditions of the issue of Notes and
any relevant Dealer Agreement with the Lead Manager,
managers or dealers for the issue of Notes and bind the
Trustee to an issue of Notes on those terms and
conditions; and
(c) direct the Trustee to enter that Dealer Agreement and
issue Notes on those terms and conditions.
However, the Trust Manager's power to act and bind the Trustee in
accordance with this clause is conditional on the Trustee being
satisfied, in its absolute discretion, with the terms and conditions
of the Dealer Agreement and the issue of Notes including the terms
and conditions dealing with the personal liability of the Trustee.
18.14 Trust Manager to act in interests of Beneficiary and Noteholders
The Trust Manager shall, in respect of each Trust, act in the
interests of the Beneficiary and the Noteholders in relation to that
Trust on, and subject to, the terms and conditions of this deed. In
the event of any conflict of interests, the interests of the
Noteholders will prevail.
18.15 Trust Manager to assist Trustee
The Trust Manager shall take such action as is consistent with its
powers under this deed to assist the Trustee to perform its
obligations under this deed.
18.16 Trust Manager's power to delegate
The Trust Manager may in carrying out and performing its duties and
obligations contained in this deed:
(a) (delegate to employees) delegate to Westpac, or any of
the Trust Manager's or Westpac's officers and employees
all acts, matters and things (whether or not requiring or
involving the Trust Manager's judgment or discretion);
(b) (appoint attorneys and agents) appoint any person to be
its attorney, agent, delegate or sub-contractor for such
purposes and with such powers, authorities and
discretions (not exceeding those vested in the Trust
Manager) as the Trust Manager thinks fit including,
without limitation:
(i) power for the attorney, agent, delegate or
sub-contractor to sub-delegate any such
powers, authorities or discretions;
(ii) power to authorise the issue in the name of
the Trust Manager of documents bearing
facsimile signatures of the Trust Manager or
of the attorney, agent, delegate or
sub-contractor (either with or without
proper manuscript signatures of its
officers); and
(iii) such provisions for the protection and
convenience of those dealing with any such
attorney, agent, delegate, sub-contractor or
sub-delegate as they may think fit; and
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(c) (remove agents and delegates) supersede or suspend any
such agent, delegate, sub-contractor or sub-delegate for
such cause or reason as the Trust Manager may in its sole
discretion think sufficient with or without assigning any
cause or reason and either absolutely or for such time as
it may think proper,
but despite any delegation or appointment under the above paragraphs
of this clause, the Trust Manager shall remain liable for the acts or
omissions of Westpac or of any such officer, employee, attorney,
delegate, agent, sub-delegate, sub-contractor or sub-agent and shall
be solely responsible for the fees and expenses of such officer,
employee, attorney, agent, delegate, sub-delegate, sub-contractor or
sub-agent.
18.7 Trust Manager's power to appoint advisers
The Trust Manager may appoint and engage any valuers, solicitors,
barristers, accountants, surveyors, property managers, real estate
agents, contractors, qualified advisers and such other persons as may
be necessary, usual or desirable for the purpose of enabling the
Trust Manager to properly exercise its powers and perform its
obligations under this deed and all proper fees, charges and moneys
payable to any such persons and all disbursements, expenses, duties
and outgoings properly chargeable to them shall constitute Expenses
of the Trust to which they relate.
18.8 Trust Manager's books available to Trustee
The Trust Manager will, in relation to each Trust:
(a) (keep proper records) keep proper books and records for
the Trust separate from any other books or records;
(b) (i) (produce books) during normal business
hours on reasonable notice make available to
the Trustee or the Auditor for inspection
all of the books and records of the Trust
maintained by the Trust Manager; and
(ii) (provide information) give to the Trustee or
the Auditor such written or oral information
as the Trustee or the Auditor reasonably
requires with respect to all matters in
possession of the Trust Manager relating to
the Trust,
subject, in each case, to the provisions of the Privacy
Act.
18.9 Trust Manager will account to Trustee for moneys received
(a) The Trust Manager will pay to the Trustee, within one
Business Day of receipt, all moneys coming into its hands
belonging to the Trusts or payable to the Trusts.
(b) The Trust Manager will keep any Assets which it may come
to hold from time to time separate from any other
property belonging to or entrusted to or held by the
Trust Manager.
18.10 Trust Manager to report Pool Data on Reuters
The Trust Manager may, if so specified in a Series Notice for a
Trust, prepare and arrange for the publication by Reuters (or another
customary electronic medium) of summary pool performance data for
that Trust in a format similar to that used by other mortgage-backed
securities or asset-backed securities (as the case may be) in the
Australian market.
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18.11 Trust Manager to prepare notices etc.
The Trust Manager shall prepare or cause to be prepared all notices
and statements which the Trustee is required to serve under any of
the provisions of this deed or any other Transaction Document and
shall produce such notices and statements (as the case may be) to the
Trustee at least one Business day (or any other period as the Trustee
and the Trust Manager agree) before the day on which the notice or
statement is required to be served.
18.12 Prior approval of circulars
(a) Where the Trust Manager has prepared any:
(i) Information Memorandum; or
(ii) circular, offer letter, notice, report or
the like to Noteholders, or prospective
Noteholders (a Publication), on behalf of
the Trustee,
the Trust Manager shall submit the Information Memorandum
or Publication to the Trustee for the Trustee's consent
(not to be unreasonably withheld) prior to the issue of
the document (unless otherwise waived by the Trustee).
(b) Where the Trustee or the Trust Manager has prepared any
Information Memorandum or Publication which names, or
purports to be issued by or on behalf of, a Servicer or
an Approved Seller, the Trustee or the Trust Manager (as
the case may be) shall submit the Information Memorandum
or Publication to the Servicer or Approved Seller (as the
case may be) for its consent (not to be unreasonably
withheld) prior to the issue of the document (unless the
Servicer or Approved Seller otherwise agrees).
18.13 Taxes
The Trust Manager directs the Trustee to make all payments (as and
when they fall due) out of a Trust to any duly empowered Government
Agency for Taxes levied on any Trust or on the Trustee in its
capacity as trustee of any Trust.
18.14 Acquisition or disposal of Assets
Subject to this deed, the Trust Manager shall ensure that all steps
which it thinks are desirable are taken in connection with the
investigation or negotiation for the acquisition or disposal of
Assets.
18.15 Monitor Support Facilities
The Trust Manager shall monitor all Support Facilities in respect of
a Trust and shall properly perform the functions which are necessary
for it to perform under those Support Facilities.
18.16 Make calculations, co-ordinate and provide reports
The Trust Manager shall:
(a) calculate all payments due on any relevant Payment Date;
(b) co-ordinate the issue of relevant Notes and the raising
of funds from those issues, or from any Support Facility;
and
(c) as and when required by any Series Notice or other
Transaction Document prepare and distribute for each
Trust the Trust Manager's Report,
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and where relevant (and when the Trust Manager is actually aware that
the directions need to be given, including any directions expressly
required of it under the Transaction Documents) provide all
directions to the Trustee as may be required for the Trustee to
comply with its obligations under the Transaction Documents.
18.17 Trust Manager cannot bind Trustee unless authorised
The Trust Manager acknowledges that in exercising its powers,
authorities and discretions vested in it and carrying out and
performing its duties and obligations in relation to any Trust or any
Asset, whether under any Transaction Document or any other deed,
agreement or other arrangement, neither it nor its delegate has any
power to bind the Trustee, otherwise than as expressly provided in
any Transaction Document or such other deed, agreement or other
arrangement.
18.18 Trust Manager must perform obligations under other Transaction
Documents
The Trust Manager shall properly perform the functions which are
necessary for it to perform under the other Transaction Documents to
which it is a party.
18.19 Trust Manager to provide personnel and systems
The Trust Manager shall at its own expense, procure sufficient
trained and experienced personnel, equipment and systems to enable it
to carry out its obligations under this deed and shall at all times
maintain complete and accurate records, books of account and an
adequate system of audit and internal controls so as to perform its
obligations under this deed.
18.20 Additional covenants by Trust Manager
The Trust Manager shall:
(a) (act honestly) act honestly and in good faith and comply
with all laws in the performance of its duties and in the
exercise of its discretions under this deed;
(b) (prudently) manage the Trust exercising the degree of
diligence and care reasonably expected of an
appropriately qualified manager, having regard to the
interests of the Beneficiaries, the Noteholders and the
other Creditors;
(c) (conduct its business properly) use reasonable endeavours
to carry on and conduct its business in so far as it
relates to this deed in a proper and efficient manner;
(d) (do all things necessary to perform obligations) do
everything and take all such actions which are necessary
(including, without limitation, obtaining all such
Authorisations as are appropriate) to ensure that it is
able to exercise all its powers and remedies and perform
all its obligations under this deed, the Transaction
Documents and all other deeds, agreements and other
arrangements entered into by the Trust Manager under this
deed;
(e) (notify defaults) promptly, on an officer of the Trust
Manager who has responsibility for the transactions
contemplated by the Transaction Documents for a Trust,
becoming actually aware, notify the Trustee and the
Designated Rating Agency of any Trust Manager's Default,
Servicer Transfer Event or any Adverse Effect relating to
that Trust and at the same time or as soon as possible
afterwards provide details of that default or effect;
(f) (not merge) not merge or consolidate into another entity
unless the surviving entity assumes the obligations of
the Trust Manager under the Transaction Documents;
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(g) (Threshold Rate) where so required under a Series Notice,
calculate Threshold Rates; and
(h) (Support Facilities) perform all obligations within its
power to ensure that all Support Facilities for each
Trust are maintained and available to the Trustee.
19. TRUST MANAGER'S FEE
In consideration of the Trust Manager performing its function and
duties under this deed, it shall be entitled to be paid from each
Trust a fee in the amount and at the times set out in the
corresponding Series Notice.
20. RETIREMENT, REMOVAL AND REPLACEMENT OF TRUST MANAGER
20.1 Retirement on Trust Manager's Default
The Trust Manager shall retire from the management of the Trusts if
and when directed to do so by the Trustee in writing (which direction
must be copied to each Servicer and, if any of the Trusts are Rated
Trusts, the Designated Rating Agency). A direction may only be given
on the occurrence of any or more of the following events (each a
Trust Manager's Default).
(a) (Collections and distributions) The Trust Manager fails
to make any payment required from it within the time
period specified in a Transaction Document, and that
failure is not remedied within 10 Business Days of
receipt from the Trustee of notice of that failure.
(b) (Insolvency Event) An Insolvency Event has occurred and
is continuing in relation to the Trust Manager.
(c) (Breach by the Trust Manager)
(i) The Trust Manager breaches any obligation or
duty imposed on the Trust Manager under this
deed, any other Transaction Document or any
other deed, agreement or arrangement entered
into by the Trust Manager under this deed in
relation to the Trust;
(ii) the Trustee reasonably believes that breach
has a Adverse Effect; and
(iii) the Trust Manager fails after 30 days'
notice from the Trustee (which notice
specifies the breach with reasonable
particularity and requires rectification) to
remedy that breach or paid compensation to
the Trustee for its loss from such breach,
except, in each case, where the Trust Manager has relied
on information provided, or other action taken, by a
Servicer or has not received information from the
Servicer which the Trust Manager requires to comply with
the obligation or duty.
(d) (Misrepresentation) A representation, warranty or
statement by or on behalf of the Trust Manager in a
Transaction Document or a document provided under or in
connection with a Transaction Document, is not true in a
material respect or is misleading when repeated and is
not remedied to the Trustee's reasonable satisfaction
within 90 days after notice from the Trustee where (as
determined by the Trustee) it has an Adverse Effect.
The costs of removal of a Trust Manager in default shall be borne by
the Trust Manager. The Trust Manager indemnifies the Trustee and the
Trust for those costs.
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20.2 Trustee may remove recalcitrant Trust Manager
In default of the Trust Manager retiring in accordance with clause
20.1 within 30 days of being directed by the Trustee in writing so to
do, the Trustee must by deed poll executed by the Trustee remove the
Trust Manager from the management of the Trusts except that:
(a) until a replacement Trust Manager is appointed under
clause 20.3, the Trust Manager must continue as Trust
Manager; and
(b) if a replacement Trust Manager is not appointed under
clause 20.3 within 120 days of the Trustee electing to
appoint a new Trust Manager, the Trustee will be the new
Trust Manager.
20.3 Trustee appoints replacement Trust Manager
On the retirement or removal of the Trust Manager, the Trustee shall
be entitled to appoint some other corporation to be the Trust Manager
of the Trusts provided that appointment will not materially prejudice
the interests of Noteholders. Until that appointment is complete the
Trustee may and, if required under clause 20.2(b) shall, subject to
this deed and to any approval required by law, act as Trust Manager
and will be entitled to the Trust Manager's Fee for the period it
acts as Trust Manager. A new Trust Manager shall not be appointed in
relation to a Rated Trust without prior notice being given by the
Trustee to the Designated Rating Agency.
20.4 Voluntary Retirement
The Trust Manager may, subject to clause 20.5, resign on giving to
the Trustee (with a copy to the Designated Rating Agency) not less
than 3 months' notice in writing (or such other period as the Trust
Manager and the Trustee may agree) of its intention to do so.
20.5 No resignation by Trust Manager unless successor appointed
The Trust Manager must not, subject to clause 20.6, resign under
clause 20.4 unless:
(a) either:
(i) it procures that, before the date on which
that termination becomes effective, another
person assumes all of the obligations of the
Trust Manager under this deed and the
relevant Series Notices as its successor,
and executes such documents as the Trustee
requires to become bound by this deed and
the relevant Series Notices, with effect
from that date, as if it had originally been
a party to this deed and the relevant Series
Notice as the Trust Manager; or
(ii the Trustee elects not to appoint a
successor Trust Manager, and to perform
itself the obligations and functions which
this deed and the relevant Series Notices
contemplate being performed by the Trust
Manager;
(b) the appointment of the successor Trust Manager, or (as
the case may be) the election of the Trustee, will not
materially prejudice the interests of Noteholders; and
(c) in the case of the appointment of a successor Trust
Manager pursuant to paragraph (a), the appointment is
approved by the Trustee.
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20.6 Trustee to act as Trust Manager if no successor appointed
If at the end of the period of notice specified in a notice given
under clause 20.4, no successor Trust Manager has been appointed, as
contemplated by clause 20.5(a)(i):
(a) the Trustee must itself perform the obligations and
functions which this deed contemplates being performed by
the Trust Manager, until a successor Trust Manager is
appointed in accordance with this deed; and
(b) the resignation of the Trust Manager will become
effective.
20.7 Release of outgoing Trust Manager
On retirement or removal and provided there has been payment to the
Trustee of all sums due to it by the outgoing Trust Manager under
this deed at that date, the outgoing Trust Manager shall be released
from all further obligations under this deed but no release under
this clause 20.7 shall extend to any existing or antecedent fraud,
negligence or wilful default on the part of the outgoing Trust
Manager or its officers, employees, agents or delegates.
20.8 New Trust Manager to execute deed
(a) A new Trust Manager shall execute a deed in such form as
the Trustee may require under which the new Trust Manager
undertakes to the Trustee, the Beneficiaries and the
Noteholders jointly and severally to be bound by all the
covenants on the part of the Trust Manager under the
Transaction Documents from the date of execution of the
new deed on the same terms contained in the Transaction
Documents.
(b) On and from the date of execution of the new deed, the
new Trust Manager shall and may afterwards exercise all
the powers, enjoy all the rights and shall be subject to
all the duties and obligations of the Trust Manager under
the Transaction Documents as fully as though the new
Trust Manager had been originally named as a party to the
Transaction Documents.
20.9 Settlement and discharge
The Trustee shall settle with the outgoing Trust Manager the amount
of any sums payable by the outgoing Trust Manager to the Trustee or
by the Trustee to the outgoing Trust Manager and shall give to or
accept from the outgoing Trust Manager a discharge in respect of
those sums which shall be conclusive and binding as between the
Trustee, the outgoing Trust Manager, the new Trust Manager, the
Beneficiaries and the Noteholders.
20.10 Delivery of books, documents, etc
(a) On the retirement or removal of the Trust Manager in
accordance with the provisions of this clause 20 the
outgoing Trust Manager shall immediately deliver to the
new Trust Manager appointed in respect of any Trust (or
the Trustee if it is acting as Trust Manager) the Data
Base and all other books, documents, records and
property relating to the Trusts and any other
information relating to a Trust or the outgoing Trust
Manager as the Trustee or new Trust Manager may
reasonably request. The reasonable costs and expenses of
this incurred by the new Trust Manager (but not the
outgoing Trust Manager) are to be paid out of the
relevant Trust.
(b) The outgoing Trust Manager shall be entitled to take, and
retain as its own property, copies of such books,
documents and records. Each of the Trustee and the new
Trust Manager shall produce the originals of such books,
documents and records in
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its possession on the giving of reasonable written
notice by the outgoing Trust Manager.
20.11 Notice to Noteholders of new Trust Manager
As soon as practicable after the appointment of a new Trust Manager
under this clause 20, the new Trust Manager shall notify the
Noteholders of its appointment.
20.12 Waiver of Trust Manager's Defaults
Subject to first giving notice to the Designated Rating Agency, the
Trustee may waive any Trust Manager's Default or any other by the
Trust Manager under a Transaction Document. On any such waiver, the
default shall cease to exist, and that Trust Manager's Default shall
be deemed to have been remedied for every purpose of this deed. No
such waiver shall extend to any subsequent or other default or impair
any right consequent on a Trust Manager's Default except to the
extent expressly waived.
PART F - TRUSTEE
21. TRUSTEE'S POWERS
21.1 General power
Subject to this deed, the Trustee shall have all the rights, powers
and discretions over and in respect of the Assets of the Trusts which
it could exercise if it were the absolute and beneficial owner of
such Assets.
21.2 Specific powers
Without in any way affecting the generality of the above or the other
provisions of this deed, but subject to the Trustee's obligations
under this deed, the Trustee shall have the following powers (which
shall be construed as separate and independent powers of the
Trustee):
(a) (enter into Receivable Securities) to enter into,
provide, purchase and acquire:
(i) Loans on the security of Mortgages and
Related Securities; and
(ii) other Receivables (where relevant, on the
security of Receivable Securities and
Related Securities);
(b) (deal in other Authorised Investments) to make, purchase,
acquire or dispose of any other Authorised Investment for
cash or on terms;
(c) (fees and Expenses) to pay all fees payable under this
deed and all Expenses which were properly incurred in
respect of a Trust;
(d) (advisers) to engage, and to incur reasonable expenses in
relation to, any valuers, solicitors, barristers,
accountants, surveyors, property advisers, real estate
agents, contractors, qualified advisers, and such other
persons as may be necessary, usual or desirable for the
purpose of enabling the Trustee to be fully and properly
advised and informed in order that it may properly
exercise its powers and perform its obligations under
this deed;
(e) (execute proxies, etc) to execute all such proxies and
other instruments as may be necessary or desirable to
enable the Trustee, or any officer, delegate or agent of
the Trustee to exercise any power, discretion or right of
the Trustee as the Trustee shall in its absolute
discretion see fit;
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(f) (dealings over mortgaged Land) to consent to any
mortgage, lease and/or sub-lease of or dealing with the
property (including Land) over which a Receivable
Security is held provided that, in the case of any such
mortgage, the Receivable Security held by the relevant
Trust is not prejudiced by or ranks or will rank in
priority to any dealing for which consent is sought;
(g) (discharge Receivables) subject to this deed and the
other relevant Transaction Documents, to grant any form
of discharge or release or partial discharge or release
of any Receivable, Receivable Security or Related
Security where to do so is in the opinion of the Trustee
not prejudicial to the relevant Trust (and, without
limitation, will not have the effect of removing a
Receivable from the coverage of any Support Facility
prior to the receipt of all moneys owing or which may
become owing under the Receivable) and to execute all
deeds or other documents as shall be necessary or
incidental to such a discharge or release and to deal
with certificates of title or other indicia of title as
the Trustee sees fit;
(h) (powers of Mortgagee) subject to this deed and the other
relevant Transaction Documents, to exercise any power of
sale arising on default under any Receivable, Receivable
Security or Related Securities or any other right or
remedy accruing in respect of any Trust in relation to
any Asset, Support Facility or other Transaction
Document and to exercise all customary powers,
authorities and discretions following on the exercise of
that power, right or remedy where the Trustee considers
it is in the interests of the relevant Trust;
(i) (proceedings) to institute, prosecute, defend, settle and
compromise legal or administrative proceedings of any
nature and generally to enforce and pursue its rights
under and in respect of Assets;
(j) (waivers) wherever it thinks it expedient or desirable in
the interests of any Trust, to give any waiver, time or
indulgence to any person on such terms as it may in its
discretion determine;
(k) (Austraclear) register Austraclear as the holder of
Notes, and to lodge Note Acknowledgements and Marked Note
Transfers with Austraclear, to facilitate transactions
through the Austraclear System;
(l) (Notes) subject to this deed and the other relevant
Transaction Documents, to borrow and raise moneys by the
issue of Notes as provided in this deed;
(m) (other borrowings) to borrow, raise moneys or procure
financial accommodation where the Trustee considers the
same to be in the interests of the relevant Trust on such
terms and conditions as the Trust Manager thinks fit and
that are acceptable to the Trustee (acting reasonably);
(n) (Transaction Documents) to enter into and perform its
obligations under any Transaction Document containing
such terms and conditions as the Trust Manager thinks fit
and that are acceptable to the Trustee (acting
reasonably);
(o) (insurance) insure any Asset for amounts, on conditions
and for types of insurance determined to be necessary by
the Trust Manager;
(p) (attend meetings) attend and vote at meetings in
accordance with the written directions of the Trust
Manager;
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(q) (indemnity) give an indemnity out of a Trust in any terms
whatsoever to such persons and against such expenses and
damages as the Trust Manager reasonably considers
necessary or desirable and that are acceptable to the
Trustee;
(r) (undertakings in Transaction Documents) without limiting
the above provisions of this clause 21.2, give any
representation, warranty, indemnity or other undertaking
required in respect of a Support Facility, or other
Transaction Documents, the sale or issue of Notes or
other trans- action in any way relating to a Trust as
the Trust Manager thinks fit and that are acceptable to
the Trustee (acting reasonably, subject to the
following) even if the subject matter of such
representation, warranty, indemnity or other undertaking
may refer to the Trustee in its personal capacity or
otherwise to the Trustee's personal affairs provided
that any such representation, warranty, indemnity or
undertaking referring to the Trustee in its personal
capacity or to its personal affairs must be acceptable
to the Trustee in its absolute discretion;
(s) (custody) appoint the Servicer in respect of a Trust to
undertake custodial duties in accordance with the
relevant Servicing Agreement;
(t) (transfer Assets) transfer any of the Assets of a Trust
to another Trust in accordance with the relevant
Transaction Documents;
(u) (payment direction) where a person owes an amount to the
Trustee as trustee of any Trust, direct that debtor to
make that payment to another person on behalf of the
Trustee; and
(v) (incidental powers) with the written agreement of the
Trust Manager (that agreement not to be unreasonably
withheld), to do all such things incidental to any of the
above powers or necessary or convenient to be done for or
in connection with any Trust or the Trustee's functions
under this deed.
21.3 Powers to be exercised with others
The Trustee's rights, powers and discretions under this deed shall be
exercised by such persons, or exercised in conjunction with, with the
approval of, or at the discretion of such persons, as contemplated by
this deed or any other Transaction Document.
21.4 Delegation to Related Bodies Corporate
In exercising its powers and performing its obligations and duties
under this deed, the Trustee may, with the approval of the Trust
Manager (not to be unreasonably withheld) and subject always to the
covenants on the part of the Trustee contained in this deed, from
time to time by instrument in writing appoint one or more
corporations each being:
(a) a corporation which is a Related Corporation of the
Trustee; and
(b) which is a trustee company or trustee corporation for the
purposes of any State or Territory legislation governing
the operation of trustee companies,
as its delegate (or, where two or more such corporations are
appointed as its delegate, jointly and severally) to undertake,
perform or discharge any or all of the duties, powers, discretions or
other functions of the Trustee under this deed or otherwise in
relation to a Trust.
The Trustee and/or the corporation (as the case may be) may by the
terms of any such appointment insert such provisions for the
protection and convenience of those dealing with any such
corporation as the Trustee and/or the corporation thinks fit but the
Trustee shall
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despite any such appointment remain liable for any act or omission
of any such corporation as if any such act or omission were an act
or omission of the Trustee.
The Trustee shall be responsible for payment of the fees and expenses
of any corporation appointed under this clause.
21.5 Trustee's power to appoint attorneys and agents
The Trustee may in carrying out and performing its duties and
obligations contained in this deed appoint any person to be its
attorney, agent or delegate for such purposes and with such powers,
authorities and discretions (not exceeding those vested in the
Trustee) as the Trustee thinks fit including, without limitation:
(a) power for the attorney or agent to delegate or
sub-delegate any such powers, authorities or
discretions;
(b) power to authorise the issue in the name of the Trustee
documents bearing facsimile signatures of the Trustee or
of the attorney or agent (either with or without proper
manuscript signatures of their officers); and
(c) such provisions for the protection and convenience of
those dealing with any such attorney, agent, delegate or
sub-delegate as they may think fit,
but excluding the obligation to receive or make payments. Any
appointment or delegation by the Trustee shall be made with due
care.
21.6 Generally unlimited discretion
Subject to the Trustee duly observing its duties, covenants and
obligations under this deed and any other Transaction Document, the
Trustee has absolute discretion as to the exercise or non-exercise of
the trusts, powers, authorities and discretions vested in it by this
deed.
22. TRUSTEE'S COVENANTS
22.1 General
The provisions contained in this clause 22 shall be for the benefit
of the Trust Manager, each Servicer, the Beneficiaries, the
Noteholders and other Creditors jointly and severally.
22.2 To act continuously as Trustee
The Trustee shall act continuously as trustee of each Trust until the
Trust is terminated as provided by this deed or the Trustee has
retired or been removed from office in the manner provided under this
deed.
22.3 To act honestly, diligently and prudently
The Trustee shall:
(a) (act honestly) act honestly and in good faith in the
performance of its duties and in the exercise of its
discretions under this deed;
(b) (prudently) subject to this deed, exercise such diligence
and prudence as a prudent person of business would
exercise in performing its express functions and in
exercising its discretions under this deed, having regard
to the interests of the Beneficiaries, the Noteholders
and other Creditors;
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(c) (conduct its business properly) use its best endeavours
to carry on and conduct its business in so far as it
relates to this deed in a proper and efficient manner;
(d) (records) keep, or ensure that the Trust Manager keeps,
accounting records which correctly record and explain all
amounts paid and received by the Trustee;
(e) (separate Trusts and Assets) keep the Trusts separate
from each other Trust which is constituted under this
deed and account for Assets and liabilities of the Trust
separately from those of other Trusts; and
(f) (do all things necessary to perform obligations) do
everything and take all such actions which are necessary
(including obtaining all appropriate Authorisations) to
ensure that it is able to exercise all its powers and
remedies and perform all its obligations under this deed,
the Transaction Documents and all other deeds, agreements
and other arrangements entered into by the Trustee under
this deed.
22.4 No dispositions of Assets except in accordance with Trust Deed
Except as provided in this deed, the Trustee shall not, nor shall it
permit any of its officers to, sell, mortgage, charge or otherwise
encumber or part with possession of any Asset.
22.5 Indemnity re acts of Trustee's delegates
The Trustee covenants that its officers, employees, agents,
attorneys, delegates and sub-delegates shall duly observe and perform
the covenants and obligations of this deed in the same manner as is
required of the Trustee, and agrees to indemnify the Trust Manager
for its own benefit or for the benefit of the Trusts (as the occasion
may require) against any loss or damage that the Trusts, the Trust
Manager, the Servicers, the Beneficiaries, the Noteholders or other
Creditors incur or sustain in connection with, or arising out of, any
breach or default by such officers, employees, agents, delegates and
persons in the observance or performance of any such covenant or
obligation, to the extent that the Trustee would have been liable if
that breach or default had been the Trustee's own act or omission.
22.6 Forward notices etc to Trust Manager
The Trustee shall without delay forward to the Trust Manager all
notices, reports, circulars and other documents received by it or on
its behalf as trustee of a Trust except to the extent they are
received from the Trust Manager.
22.7 Trustee will implement Trust Manager's directions
Subject to this deed and any other Transaction Document to which it
is a party, the Trustee will act on all directions given to it by the
Trust Manager in accordance with the terms of this deed.
22.8 Custodian
(a) Subject to any relevant Series Notice, the Servicer for a
Trust will act as custodian of the Relevant Documents for
that Trust and any other documents of title to or
evidencing any Assets of that Trust in accordance with
the relevant Servicing Agreement. In the absence of any
agreed procedures the Trustee shall hold those documents
on and in accordance with procedures which a reputable
and prudent person in its position would adopt.
(b) The Trustee may lodge any Relevant Document or any
documents of title to or evidencing any Asset in its
vault or, with the prior consent of the relevant Approved
Seller, the relevant Servicer and the Trust Manager, in
the vault of a subcustodian,
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on behalf of the Trustee or with Austraclear or another
recognised clearing system to the order of the Trustee
or subcustodian on behalf of the Trustee.
(c) Where the Trustee acts as custodian of any Relevant
Document or any documents of title to or evidencing any
Asset, it shall allow the Trust Manager, any relevant
Servicer and any relevant Approved Seller to have access
to them during normal business hours on reasonable
notice.
22.9 Bank accounts
The Trustee will open and operate the bank accounts in accordance
with clause 27.
22.10 Perform Transaction Documents
The Trustee shall properly perform the functions which are necessary
for it to perform under all Transaction Documents in respect of a
Trust.
23. TRUSTEE'S FEES AND EXPENSES
23.1 Trustee's Fee
In consideration of the Trustee performing its functions and duties
under this deed, the Trustee shall be entitled to deduct from each
Trust a fee in the amount and at the times set out in the
corresponding Series Notice.
23.2 Reimbursement of expenses
In addition to the Trustee's remuneration under clause 23.1, the
Trustee shall pay, or be reimbursed, from a Trust all Expenses that
relate to the Trust. These will be paid or reimbursed in accordance
with the corresponding Series Notice.
23.3 Segregation of Trust Expenses
The Trust Manager directs the Trustee to segregate, and apply, all
Expenses to the Trust to which they relate.
24. REMOVAL, RETIREMENT AND REPLACEMENT OF TRUSTEE
24.1 Retirement for Trustee's Default
The Trustee shall retire as trustee of the Trusts if and when
directed to do so by the Trust Manager in writing (which direction
must be copied to each Servicer and, if any of the Trusts are Rated
Trusts, the Designated Rating Agency). A direction may only be given
on the occurrence of one or more of the following events (each a
Trustee's Default):
(a) (Insolvency Event) an Insolvency Event has occurred and
is continuing in relation to the Trustee;
(b) (rating downgrade) any action is taken by or in relation
to the Trustee which causes the rating of any Notes to be
downgraded;
(c) (breach by the Trustee) the Trustee, or any employee,
delegate, agent or officer of the Trustee, breaches any
obligation or duty imposed on the Trustee under this
deed or any other Transaction Document in relation to a
Trust (including any gross negligence, wilful default or
failure to act honestly and in good faith and to
exercise diligence and prudence having regard to the
interests of the relevant Mortgagees (as defined in the
relevant Security Trust Deed)) where the Trust Manager
reasonably
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believes it may have an Adverse Effect and the Trustee
fails or neglects after 30 days' notice from the Trust
Manager to remedy that breach;
(d) (merger or consolidation) the Trustee merges or
consolidates with another entity without obtaining the
consent of the Trust Manager (which consent will not be
unreasonably withheld in the case of a bona fide
corporate reorganisation of the Trustee where no
Insolvency Event has occurred) and ensuring that the
resulting merged or consolidated entity assumes the
Trustee's obligations under the Transaction Documents; or
(e) (change in control) there is a change in effective
control of the Trustee from that subsisting as at the
date of this deed unless approved by the Trust Manager.
24.2 Trust Manager may remove recalcitrant Trustee
(a) In default of the Trustee retiring in accordance with
clause 24.1 within 30 days of being directed by the Trust
Manager in writing to do so the Trust Manager shall have
the right to and shall by deed poll executed by the Trust
Manager remove the Trustee from its office as trustee of
the Trusts.
(b) Where the Trustee is removed because of its default, it
shall (as trustee of the relevant Trust) bear the costs
of its removal. The Trustee indemnifies the Trust Manager
and the Trust for those costs.
24.3 Trust Manager appoints replacement
On the retirement or removal of the Trustee under clause 24.1 or 24.2
the Trust Manager, subject to giving prior notice to the Designated
Rating Agency in relation to a Rated Trust, shall be entitled to
appoint in writing some other statutory trustee to be the Trustee
under this deed provided that appointment will not in the reasonable
opinion of the Trust Manager materially prejudice the interests of
Noteholders. Until the appointment is completed the Trust Manager
shall act as Trustee and will be entitled to the Trustee's Fee for
the period it so acts as Trustee.
24.4 Voluntary Retirement
The Trustee may, subject to clause 24.5, resign on giving to the
Trust Manager (with a copy to the Designated Rating Agency) not less
than 3 months' notice in writing (or such other period as the Trust
Manager and the Trustee may agree) of its intention to do so.
24.5 No resignation by Xxxxxxx unless successor appointed
The Trustee must not, subject to clause 24(e), resign under clause
24.4 unless:
(a) either:
(i) it procures that, before the date on which
that termination becomes effective, another
person assumes all of the obligations of the
Trustee under this deed and the relevant
Series Notices as its successor, and
executes such documents as the Trust Manager
requires to become bound by this deed and
the relevant Series Notices, with effect
from that date, as if it had originally been
a party to this deed and the relevant Series
Notice as the Trustee; or
(ii) the Trust Manager elects to perform itself
the obligations and functions which this
deed and the relevant Series Notices
contemplate being performed by the Trustee;
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(b) the appointment of the successor Trustee, or (as the case
may be) the election of the Trust Manager, will not
materially prejudice the interests of Noteholders; and
(c) in the case of the appointment of a successor Trustee
pursuant to paragraph (a), the appointment is approved by
the Trust Manager.
24.6 Trust Manager to act as Trustee if no successor appointed
If at the end of the period of notice specified in a notice given
under clause 24.4, no successor Trustee has been appointed, as
contemplated by clause 24.5(a)(i):
(a) the Trust Manager must itself perform the obligations and
functions which this deed contemplates being performed by
the Trustee, until a successor Trustee is appointed in
accordance with this deed; and
(b) the resignation of the Trustee will become effective.
24.7 Trusts to be vested in new Trustee
The Trustee shall, on retirement or removal, vest the Trusts or cause
these to be vested, in the new Trustee.
24.8 Release of outgoing Trustee
On retirement or removal and provided there has been payment to the
Trust Manager or the new Trustee (as the case may be) of all sums due
to it by the outgoing Trustee at that date, the outgoing Trustee
shall be released from all further obligations under the Transaction
Documents. No release under this clause shall extend to any existing
or antecedent fraud, negligence or wilful default on the part of the
outgoing Trustee or its officers, employees, agents or delegates.
24.9 New Trustee to execute deed
On appointment of the new Trustee of the Trusts the new Trustee
shall:
(a) execute a deed in such form as the Trust Manager may
require under which it undertakes to the Trust Manager
(for the benefit of the Trust Manager, Westpac, the
Servicers, the Beneficiaries and the Noteholders jointly
and severally) to be bound by all the obligations of the
outgoing Trustee under the Transaction Documents from the
date of the deed;
(b) on and from the date of execution of the new deed,
exercise all the powers, enjoy all the rights and be
subject to all duties and obligations of the Trustee
under the Transaction Documents as if the new Trustee had
been originally named as a party to the Transaction
Documents; and
(c) indemnify the outgoing Trustee for the amount of all
Notes issued in the name of the outgoing Trustee and
maturing on or after the date of the retirement or
removal of the outgoing Trustee and for all other
liabilities and expenses incurred by the outgoing
Trustee for which it is entitled to be indemnified out
of the Trusts and which have not been recouped by it,
but the liability of the new Trustee under such
indemnity shall be limited to the same extent provided
for in clause 33.16 and any payment shall rank in the
same priority under clause 30 as the corresponding
liability for which the outgoing Trustee claims such
indemnification.
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24.10 Trust Manager and outgoing Trustee to settle amounts payable
(a) The Trust Manager shall be entitled to settle with the outgoing
Trustee the amount of any sums payable by the outgoing Trustee to
the Trust Manager or the new Trustee or by the Trust Manager to the
outgoing Trustee and to give or accept from the outgoing Trustee a
discharge and any such agreement or discharge shall (except in the
case of any existing or antecedent fraud, negligence or wilful
default on the part of the outgoing Trustee or its officers,
employees, agents and delegates) be conclusive and binding on all
persons (including the Trust Manager, the new Trustee, Westpac, the
Beneficiary and the Noteholders).
(b) Even though no new Trustee is appointed in its place, the Trust
Manager may make such arrangements as it thinks fit for the discharge
of the outgoing Trustee from any existing liability and any liability
which might arise under this deed and any discharge of the outgoing
Trustee in accordance with such arrangements shall (except as stated
above) be conclusive and binding on all persons claiming under the
Transaction Documents.
24.11 Outgoing Trustee to retain lien
Notwithstanding the retirement or removal of the outgoing Trustee and
the indemnity in favour of the Trustee by the new Trustee as
contemplated by clause 24.8(c), the outgoing Trustee will retain a
lien over a Trust to meet claims of any Creditors of the Trustee as
trustee of the Trust to the extent that the claims of those Creditors
are not properly and duly satisfied by the incoming Trustee.
24.12 Delivery of books, documents, etc
(a) On the retirement or removal of the Trustee in accordance with the
provisions of this clause 24 the outgoing Trustee shall immediately
deliver to the new Trustee appointed in respect of any Trust (or the
Trust Manager if it is acting as Trustee) the Data Base and all other
books, documents, records and property relating to the Trusts. Any
related costs and expenses incurred by the incoming Trustee (but not
the outgoing Trustee) are to be paid out of the relevant Trust.
(b) The outgoing Trustee shall be entitled to take, and retain as its own
property, copies of such books, documents and records. Each of the
Trust Manager and the new Trustee shall produce the originals of such
books, documents and records in its possession on the giving of
reasonable written notice by the outgoing Trustee.
24.13 Notice to Noteholders of New Trustee
As soon as practicable after the appointment of a new Trustee under
this clause 24, the new Trustee shall notify the Noteholders of its
appointment.
PART G - SERVICERS AND LEAD MANAGERS
25. APPOINTMENT OF SERVICER
Each Servicer shall be appointed, and shall act, as servicing agent
for the Trustee in respect of any Receivables, Receivable Securities
and Related Securities on and subject to the terms of the relevant
Servicing Agreement.
26. LEAD MANAGER
26.1 Appointment of Lead Manager
(a) The Trust Manager may appoint any one or more persons to
be Lead Manager in relation to any issue of Notes, with
remuneration determined by the Trust Manager.
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An issue of Notes may have more than one Lead Manager.
An issue of Notes under a Trust may have a different
Lead Manager, or different Lead Managers, from other
issues of Notes under that Trust.
(b) The Trust Manager may terminate the appointment of a Lead
Manager at any time.
26.2 Fees
The Trustee shall be entitled to pay from each Trust for which any
person is a Lead Manager fees (if any) to that person in the amount
and at the times set out in the corresponding Note Issue Direction.
PART H - ADMINISTRATION OF TRUSTS
27. BANK ACCOUNTS
27.1 Opening of bank accounts
(a) (Collection Account) The Trustee must open at least one
account with an Approved Bank into which Collections can
be paid.
(b) (Separate bank accounts for each Trust) The Trustee must
open and maintain a separate account with an Approved
Bank in respect of each Trust.
(c) (Additional bank accounts) The Trustee may open such
additional accounts with an Approved Bank in respect of a
Trust as it sees fit or as required by the Transaction
Documents. In relation to a Rated Trust, only the
accounts specified in the Transaction Documents for that
Trust may be opened.
(d) (Change bank accounts) If an account in respect of a
Trust is held with a bank which ceases to be an Approved
Bank then the Trustee shall as soon as practicable on
becoming aware of that fact (and in any event within 30
days):
(i) close that account: and
(ii transfer all funds standing to the credit of
that account to another existing account in
respect of that Trust with an Approved Bank
or, if none, the Trustee shall immediately
open an account with an Approved Bank.
27.2 Location of bank accounts
(a) (Central bank account) Unless otherwise directed in
writing by the Trust Manager, the central bank account of
each Trust shall for so long as Westpac is an Approved
Bank be opened and maintained at a branch in New South
Wales of Westpac.
(b) (Interstate branch bank accounts) The Trustee may, if
necessary or desirable for the operation of a Trust,
open bank accounts with a branch outside New South Wales
of an Approved Bank (which shall unless the Trust
Manager otherwise determines be Westpac for so long as
it is an Approved Bank) provided that if such accounts
are opened it shall enter into arrangements so that as
soon as practicable after the receipt of moneys to the
credit of such accounts, such moneys are to be
transferred to the credit of the central bank accounts
of the Trust in New South Wales (subject to a direction
to the contrary by the Trust Manager under clause
27.2(a)).
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27.3 Name of bank accounts
Each bank account for a Trust shall be opened by the Trustee in its
name as trustee of the Trust.
27.4 Purpose of bank accounts
No bank account shall be used for any purpose other than for the
relevant Trust in respect of which the account is maintained and
other than in accordance with this deed.
27.5 Authorised signatories
The only authorised signatories for any bank account are to be
officers or employees of the Trustee or a Related Corporation of the
Trustee.
27.6 Trust Manager not entitled to have access
Except as expressly provided in this deed the Trust Manager may not
deal with any bank account or the moneys in any bank account in any
way.
27.7 Bank statements and account information
(a) (Copies of bank statements) The Trustee shall promptly on
receipt of a statement in respect of each bank account
for a Trust provide a copy to the Trust Manager (and any
other person from time to time specified by the Trust
Manager).
(b) (Direct access) Subject to the Privacy Act, the Trustee
authorises the Trust Manager (and any other person from
time to time specified by the Trust Manager) to obtain
direct from an Approved Bank, statements and information
in relation to each bank account of a Trust.
27.8 Deposits
Subject to this deed, the Servicing Agreement and any relevant Series
Notice and except in respect of business transacted through the
Austraclear System, the Trustee shall pay (or cause the relevant
Servicer to pay) into a bank account of a Trust within one Business
Day of receipt the following moneys and proceeds:
(a) (subscription moneys) all subscription moneys raised in
respect of Notes issued by the Trustee as trustee of the
Trust;
(b) (proceeds) all proceeds of the Authorised Investments
and Support Facilities in respect of the Trust; and
(c) (other moneys) all other moneys received by the Trustee
in respect of the Trust.
27.9 Withdrawals
Subject to this deed, the Trustee shall withdraw funds from a bank
account of a Trust and apply the same when necessary for the
following outgoings:
(a) (Authorised Investments) purchasing Authorised
Investments and making payments required in connection
with Authorised Investments;
(b) (payments to Creditors etc) making payments to the
Creditors or the Beneficiary in relation to the Trust;
and
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(c) (other payments) making payments to Austraclear or any
other person of Expenses or other amounts entitled to be
paid to or retained for their respective benefit under
this deed or any other Transaction Document.
27.10 All transactions through central accounts
(a) (Receipts and outgoings) Unless otherwise directed by
the Trust Manager, all moneys and proceeds in relation
to a Trust referred to in clause 27.8 shall, subject to
Clause 27.10(b), be credited to the central bank account
of the Trust (whether credited direct to the central
account or transferred from an interstate bank account
of the Trust) and all outgoings of a Trust referred to
in clause 27.9 shall, subject to clause 27.10(b), be
paid from the central bank account of the Trust (either
by direct payment or by transfer to an interstate bank
account of the Trust).
(b) (Bank charges, etc) Any amounts referred to in paragraph
(i) of the definition of Expenses in clause 1.1 to the
extent they relate to an interstate bank account of a
Trust may be deducted or withdrawn direct from the
interstate bank account.
28. AUDITOR
28.1 Auditor must be registered
The Auditor of each Trust shall be a firm of chartered accountants
some of whose members are Registered Company Auditors.
28.2 Appointment of Auditor
The Auditor of each Trust shall be a person nominated by the Trust
Manager and shall be appointed by the Trustee within three months of
the creation of that Trust under this deed on such terms and
conditions as the Trustee and the Trust Manager agree.
The Auditor holds office subject to this clause.
28.3 Removal and retirement of Auditor
(a) (Removal by Trustee) Subject to paragraph (b) the Trustee
may, on giving one month's notice to the Auditor and the
Designated Rating Agency, remove the Auditor as Auditor
of a Trust on reasonable grounds (to be notified to the
Trust Manager before notice of removal is given to the
Auditors).
(b) (Removal at request of Trust Manager or Noteholders) The
Trustee may, on the recommendation of the Trust Manager
and shall, if so requested by an Extraordinary Resolution
of Noteholders of a Trust, remove the Auditor as Auditor
of a Trust.
(c) (Retirement) An Auditor may retire at any time on giving
six months' written notice (or such shorter period
approved by the Trust Manager and the Trustee) to the
Trustee of its intention to retire as Auditor of a Trust.
28.4 Appointment of replacement Auditor
The Trustee shall fill any vacancy in the office of Auditor by
appointing:
(a) where the Auditor was removed by Extraordinary Resolution
of Noteholders, and a person was nominated to be
appointed as Auditor in that resolution, that person; or
(b) in any other case, a person qualified to be appointed
Auditor under this clause.
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28.5 Auditor may have other offices
An Auditor may also be the auditor of the Trustee, the Trust Manager,
a Servicer, a Lead Manager or any of their Related Bodies Corporate
or of any other trust (whether of a similar nature to the Trusts or
otherwise) but a member of the firm appointed as an Auditor may not
be an officer or employee, or the partner of an officer or an
employee, of the Trustee, the Trust Manager, a Servicer, the Lead
Manager (if any) or any of their Related Bodies.
28.6 Access to working papers
Each Auditor shall be appointed on the basis that it will make its
working papers and reports available for inspection by the Trustee
and the Trust Manager.
28.7 Auditor's remuneration and costs
The Trustee may pay out of a Trust, or reimburse itself from a Trust,
the reasonable remuneration of the Auditor of the Trust as agreed
between the Trust Manager and the Auditor and notified to the Trustee
and any reasonable expenses of the Auditor of the Trust sustained in
the course of the performance of the duties of the Auditor.
28.8 Access to information
The Auditor of a Trust shall be entitled to require from the Trust
Manager and the Trustee, and they shall furnish to the Auditor, such
information, accounts and explanations as may be necessary for the
performance by the Auditor of its duties under this deed.
29. ACCOUNTS AND AUDIT
29.1 Keeping Accounts
The Trust Manager and the Trustee shall, having regard to their
separate functions, keep or cause to be kept accounting records which
provide a true and fair view of all sums of money received and
expended by or on behalf of each Trust, the matters in respect of
which such receipt and expenditure takes place, of all sales and
purchases of Authorised Investments and of the assets and liabilities
of each Trust. The Trust Manager and the Trustee shall furnish each
to the other from time to time any information necessary for this
purpose.
29.2 Location and inspection of books
The accounting records of each Trust shall be kept at the office of
the Trustee or the Trust Manager (as the case may be) or at such
other place as the Trustee and the Trust Manager may from time to
time agree and shall be open to the inspection of the Trust Manager,
the Trustee, the Auditor of the Trust and the relevant Beneficiary on
reasonable notice and during usual business hours.
29.3 Accounts to be kept in accordance with Approved Accounting Standards
The accounting records of each Trust shall be maintained in
accordance with the Approved Accounting Standards and in a manner
which will enable true and fair Accounts of the Trust to be prepared
and audited in accordance with this deed.
29.4 Preparation of annual Accounts
The Trust Manager shall cause the preparation of the Accounts for
each Financial Year of each Trust.
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29.5 Annual audited Accounts
The Trust Manager shall require the Auditor to audit the Accounts
prepared by the Trust Manager in respect of each Trust within 3
months of the end of each financial year of the Trust.
29.6 Inspection and copies of audited Accounts
A copy of the audited Accounts of a Trust and any Auditor's report
shall be available for inspection, but not copying, by the
Noteholders in relation to the Trust at the offices of the Trust
Manager.
29.7 Tax returns
The Trust Manager shall, or shall require the Auditor to:
(a) prepare and lodge all necessary income tax returns and
other statutory returns for each Trust; and
(b) confirm that all the income of each Trust has either been
distributed or offset by deductible losses or expenses or
that no Trust has any liability to pay income tax.
29.8 Audit
The Trust Manager must require the Auditor, as part of each annual
audit carried out by the Auditor in relation to each Trust, to
provide a written report to the Trustee, the Security Trustee and the
Designated Rating Agency as to:
(a) the nature and extent of the audit performed (as
specified by the Trust Manager);
(b) any breaches of the obligations of any of the parties to
the Transaction Documents for that Trust identified by
the Auditor within the parameters of the audit specified
under paragraph (a); and
(c) any errors in or omissions from any reports or
information provided by any party to a Transaction
Document for that Trust to another party under that
Transaction Document identified by the Auditor within the
parameters of the audit specified under paragraph (a),
that report to be in the form agreed by the Trustee and the Trust
Manager and previously notified to the Designated Rating Agency.
29.9 No Responsibility for Servicer
Provided that it complies with its obligations under clause 18, the
Trust Manager shall have no liability to any person under this clause
29 if it fails to keep records relating to the Assets of a Trust and
that failure is caused by the failure of the relevant Servicer to
keep any records and provide any reports which it is obliged to keep
and provide under the relevant Servicing Agreement.
30. PAYMENTS
30.1 CASHFLOW ALLOCATION METHODOLOGY
Collections in relation to a Trust and other amounts credited to the
Collection Account for a Trust will be allocated by the Trust Manager
on behalf of the Trustee, and paid by the Trustee as directed by the
Trust Manager, in accordance with the Series Notice for that Trust.
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30.2 Payments to Beneficiary
(a) (Distributable Income absolutely vested) The Beneficiary
of a Trust shall as at the end of each Financial Year of
that Trust have an absolute vested interest in the
Distributable Income of that Trust for that Financial
Year.
(b) (Distributable Income due as at close of Financial Year)
The Distributable Income of a Trust for a Financial Year
(to the extent not previously distributed) shall, subject
to clause 30.3, constitute a debt due as at the end of
the Financial Year by the Trustee as trustee of the Trust
to the Beneficiary entitled to the Distributable Income
under clause 30.2(a) and shall, subject to clause 30.3,
be payable under clause 30.2(c).
(c) (Payment of Distributable Income) Subject to clause 30.3,
the Trustee may make interim distribution of the
Distributable Income of a Trust to the relevant
Beneficiary in accordance with the terms of the Series
Notice for that Trust and shall as soon as practicable
after the end of a Financial Year transfer an amount
representing the Distributable Income of the Trust (to
the extent not previously distributed) from the central
bank account of the Trust to the bank accounts of the
Beneficiary of the Trust.
(d) (Residual capital) On the termination of a Trust, the
surplus capital of the Trust remaining after satisfaction
by the Trustee of all its obligations in respect of the
Trust shall be paid to the Beneficiary of the Trust.
30.3 Subordination of Beneficiary's Entitlements
(a) No moneys may be paid out of a Trust during a Financial
Year to a Beneficiary under clause 30.2, whilst there is
any amount due, but unpaid, which is in accordance with
clause 30.1 to be paid in priority to those amounts and
before the Trustee is satisfied, after consulting with
the Trust Manager, that sufficient allowance has been
made for those priority amounts in relation to the
Trust, accruing during the Financial Year. To the extent
that there is an amount payable under clause 30.1 which
is to be paid in priority to the amounts payable to the
Beneficiary, the Beneficiary directs the Trustee to meet
the amount payable under clause 30.1 as an application
of the Beneficiary's entitlement to the Distributable
Income of the Trust.
(b) Notwithstanding paragraph (a), once an amount is paid out
of a Trust to a Beneficiary during a Financial Year, that
amount may not be recovered from that Beneficiary for any
reason or by any person except to the extent that amount
was paid in error.
30.4 Insufficient moneys
If after the application of the provisions of clauses 30.1 and 30.2
there is insufficient money available to the Trustee in respect of a
Trust to pay the full amount due to Noteholders in the Trust, the
deficiency shall, subject to the Series Notice for the Notes or any
Class of the Notes issued in relation to the Trust, be borne by the
Noteholders in the manner set out in the relevant Series Notice.
30.5 Income or capital
The Trust Manager shall determine whether any amount is of an income
or capital nature in accordance with clause 30.6 and, subject only
to a contrary determination by the Auditor of
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the relevant Trust in accordance with clause 30.6, the determination
by the Trust Manager shall be final and binding.
30.6 Income of Trust
(a) The income of each Trust for each Financial Year will include:
(i) any amount (including without limitation a
profit made by the Trustee) which is
included in the assessable income of the
Trust for the purposes of the Taxation Act
(other than Part IIIA);
(ii any realised capital gains derived by the
Trustee to the extent to which the same are
reflected in the net capital gain (if any)
calculated under Part IIIA of the Taxation
Act which is included in the assessable
income of the Trust for the purposes of the
Taxation Act,
and otherwise will be determined in accordance with
Approved Accounting Standards. All periodic income of the
Trust will be deemed to accrue from day to day and will
be brought to account as arising on a daily basis where
that is required for tax purposes (using a daily accruals
method of accounting where that is the method required
for tax purposes).
(b) The expenses of each Trust for each Financial Year will
include losses or outgoings which are allowable
deductions in calculating the net income of the Trust
under Section 95(1) of the Taxation Act and otherwise
will be determined in accordance with Approved
Accounting Standards. All periodic expenses of the Trust
will be deemed to accrue from day to day and will be
brought to account on a daily basis where that is
required for tax purposes (using a daily accruals method
of accounting where that is the method required for tax
purposes).
(c) The Trust Manager will determine the Net Accounting
Income for each Trust for each Financial Year by applying
against the income of the Trust for that Financial Year:
(i) so much of the expenses specified in
paragraph (b) as are referable to that
Financial Year; and
(ii) any Net Accounting Loss carried forward from
a preceding Financial Year.
The balance of the income of the Trust for the Financial
Year remaining after those applications will constitute
the Net Accounting Income for that Financial Year except
where the amount is negative, in which case, it will be
the Net Accounting Loss for that Financial Year.
(d) The Net Accounting Income in respect of a Financial Year
for each Trust will constitute the distributable income
(Distributable Income) of the Trust for that Financial
Year.
31. INDEMNITY
The Trust Manager fully indemnifies the Trustee from and against any
expense, loss, damage, liability, fines, forfeiture, legal fees and
related costs which the Trustee may incur (whether directly or
indirectly) as a consequence of:
(a) any Trust Manager's Default; and
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(b) a failure by the Trust Manager to perform its duties or
comply with its obligations under any Transaction
Document.
PART I - REPRESENTATIONS, POWERS AND INDEMNITIES
32. REPRESENTATIONS AND WARRANTIES
32.1 General representations and warranties
Each party makes the following representations and warranties for the
benefit of the others:
(a) (status) it is a corporation duly incorporated and
existing under the laws of its place of incorporation and
the Commonwealth of Australia or, in the case of Westpac
(in whatever capacity), the Bank of New South Wales Act
1850;
(b) (power) it has the power to enter into and perform its
obligations under each Transaction Document to which it
is a party, to carry out the transactions contemplated by
this deed and to carry on its business as now conducted
or contemplated;
(c) (corporate authorisations) it has taken all necessary
action to authorise the entry into and performance of
each Transaction Document to which it is a party and to
carry out the transactions contemplated by such
Transaction Documents;
(d) (obligations binding) its obligations under each
Transaction Document to which it is a party are legal,
valid, binding and enforceable in accordance with their
respective terms;
(e) (transactions permitted) the execution and performance by
it of each Transaction Document to which it is a party
and each transaction contemplated under those documents
will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default
under, any provision of:
(i) its memorandum or articles of association
or, in the case of Westpac (in whatever
capacity), the Bank of New South Wales Act
1850; or
(ii) any other document or agreement which is
binding on it or its assets,
which is material in the context of performing its
duties under each Transaction Document to which it is a
party; and
(f) (Authorisations) it holds all Authorisations necessary to
carry on its business and to act as required by each
Transaction Document to which it is a party and by law to
comply with the requirements of any legislation and
subordinate legislation (including, without limitation
and to the extent relevant, any Consumer Credit
Legislation).
32.2 Trustee entitled to assume accuracy of representations and warranties
Each Noteholder acknowledges that the Trustee is not under any
obligation to:
(a) make any enquiries which a prudent purchaser of such
assets would be expected to make;
(b) conduct any investigation to determine if the
representations and warranties given by the Approved
Seller in relation to the Receivable, Receivable
Securities and Related Securities are incorrect; or
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(c) to test the truth of those representations and warranties,
and is entitled to conclusively accept and rely entirely on the
Receivables satisfying the Eligibility Criteria and on the accuracy
of the representations and warranties made by a Servicer or an
Approved Seller, unless the Trustee has actual notice of any event to
the contrary.
33. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY
GENERALLY
Without prejudice to any indemnity allowed by law or elsewhere in
this deed given to the Trustee or the Trust Manager, it is expressly
declared as follows.
33.1 Reliance on certificates
The Trustee and the Trust Manager shall not incur any liability in
respect of any action taken or thing suffered by it in reliance on
any notice, resolution, direction, consent, certificate, receipt,
affidavit, statement, valuation report or other document (including
without limitation, any of the above submitted or provided by the
Trust Manager (in the case of the Trustee only), by the Trustee (in
the case only of the Trust Manager) or by an Approved Seller or a
Servicer) which it has no reason to believe is not genuine, signed by
the proper parties and with appropriate authority.
Without limiting the generality of the above the Trustee may
conclusively rely on:
(a) (statements by the Trust Manager) a statement by the
Trust Manager that an investment of the Trust is an
Authorised Investment;
(b) (Note Issue Directions) a Note Issue Direction issued by
the Trust Manager; and
(c) (certificates) a certificate by the Trust Manager under
this deed.
In preparing any notice, certificate, advice or proposal the Trustee
and the Trust Manager shall be entitled to assume that each person
under any Authorised Investment, Support Facility, Receivable,
Receivable Security, Related Securities, other Transaction Document
or any other deed, agreement or arrangement incidental to any of the
above or to any Trust, will perform their obligations under those
documents in full by the due date and otherwise in accordance with
their terms.
33.2 Trustee and Trust Manager may assume signed documents to be genuine
(a) (Reliance on documents) Subject to sub-clause (b):
(i) (Trustee may assume authenticity) the
Trustee shall be entitled to assume the
authenticity and validity of any signature
on any application, request or other
instrument or document delivered to the
Trustee (other than a document executed or
purporting to be executed by or on behalf of
a Servicer, an Approved Seller or the Trust
Manager, as to which clause 33.3 shall
apply);
(ii) (Trustee not liable for loss on forgeries)
the Trustee shall not be in any way liable
to make good out of its own resources any
loss incurred by any person in the event of
any signature on any document being forged
or otherwise failing to bind the person
whose signature it purports to be or the
person on whose behalf it purports to be
executed;
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(iii) (Trust Manager may assume authenticity) the
Trust Manager shall be entitled to rely on
the authenticity and validity of any
signature on any application, request or
other instrument or document delivered to
the Trust Manager (other than a document
executed or purporting to be executed by or
on behalf of the Trustee, an Approved Seller
or a Servicer, as to which clause 33.4 shall
apply); and
(iv (Trust Manager not liable for loss on
forgeries) the Trust Manager shall not be in
any way liable to make good out of its own
resources any loss incurred by any person in
the event of any signature on any document
being forged or otherwise failing to bind
the person whose signature it purports to be
or the person on whose behalf it purports to
be executed.
(b) (Limitations on assumptions where actual knowledge) The
Trustee or the Trust Manager shall not be entitled to the
benefit of paragraph (a) in relation to an application,
request or other instrument or document if it was
actually aware that the signature was not genuine.
33.3 Trustee's reliance on Trust Manager, Approved Seller or Servicer
(a) (Trust Manager's Authorised Signatories are sufficient
evidence) Whenever any certificate, notice, proposal,
direction, instruction or other communication is to be
given by the Trust Manager, an Approved Seller or a
Servicer to the Trustee, the Trustee may accept as
sufficient evidence as to the form and content of a
document unless it has reason to believe that the
relevant document was not signed on behalf of the Trust
Manager, the Approved Seller or the Servicer (as the
case may be) or by any Authorised Signatory of the Trust
Manager, the Approved Seller or the Servicer (as the
case may be).
(b) (Trustee not liable for loss) The Trustee shall not be
responsible for any loss arising from any act, neglect,
mistake or discrepancy of the Trust Manager, an Approved
Seller or a Servicer or any officer, employee, agent or
delegate of the Trust Manager, the Approved Seller or
the Servicer in preparing any such document or in
compiling, verifying or calculating any matter or
information contained in any such document, if the
officers of the Trustee responsible for the
administration of the Trust are not actually aware, or
should not reasonably have been aware, that such
document is not genuine and correct, whether or not an
error in any such information, document, form or list is
reproduced by the Trustee in any step taken by it.
33.4 Trust Manager's reliance on Trustee, Approved Seller or Servicer
(a) (Trustee's Authorised Signatories are sufficient
evidence) Whenever any certificate, notice, proposal,
direction, instruction or other communication is to be
given by the Trustee, an Approved Seller or a Servicer
to the Trust Manager, the Trust Manager may (unless, in
the case of such communication from the Servicer, the
Trust Manager and the Servicer are the same entity)
accept as sufficient evidence as to the form and content
of a document unless it has reason to believe that the
relevant document was not signed on behalf of the
Trustee, the Approved Seller or the Servicer (as the
case may be) or by any Authorised Signatory of the
Trustee, the Approved Seller or the Servicer (as the
case may be).
(b) (Trust Manager not liable for loss) The Trust Manager
shall not be responsible for any loss arising from any
act, neglect, mistake or discrepancy of the Trustee, an
Approved Seller or a Servicer or any officer, employee,
agent or delegate of the Trustee, the Approved Seller or
the Servicer in preparing any such document or in
compiling, verifying or calculating any matter or
information contained in any such
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document, if the officers of the Trust Manager
responsible for the administration of the Trust are not
actually aware, or should not reasonably have been
aware, that such document is not genuine and correct,
whether or not an error in any such information,
document, form or list is reproduced by the Trust
Manager in any step taken by it.
33.5 Compliance with laws
The Trustee and the Trust Manager shall not incur any liability to
anyone in respect of any failure to perform or to do any act or thing
which by reason of any provision of any relevant present or future
law of any place or any ordinance, rule, regulation or by law or of
any decree, order or judgment of any competent court or other
tribunal, the Trustee and/or the Trust Manager shall be hindered,
prevented or forbidden from doing or performing.
33.6 Taxes
The Trustee and the Trust Manager shall not be liable to account to
any person for any payments made in good faith to any duly empowered
Government Agency of any Australian Jurisdiction or any other place
for Taxes or other charges on any of the Trusts or on any Notes or
with respect to any transaction under or arising from this deed or
any other Transaction Document notwithstanding that any such payment
ought or need not have been made.
33.7 Reliance on experts
The Trustee and the Trust Manager may act on the opinion or statement
or certificate or advice of or information obtained from the Trust
Manager (in the case of the Trustee only), the Trustee (in the case
of the Trust Manager only), a Servicer, barristers or solicitors
(whether instructed by the Trust Manager or the Trustee), bankers,
accountants, brokers, valuers and other persons believed by it in
good faith to be expert or properly informed in relation to the
matters on which they are consulted and the Trustee and the Trust
Manager shall not be liable for anything done or suffered by it in
good faith in reliance on such opinion, statement, certificate,
advice or information.
33.8 Oversights of others
Subject to this deed, the Trustee and the Trust Manager shall not be
responsible for any act, omission, misconduct, mistake, oversight,
error of judgment, forgetfulness or want of prudence on the part of
the Trust Manager (in the case of the Trustee only), the Trustee (in
the case of the Trust Manager only), a Servicer or agent appointed by
the Trustee or the Trust Manager or on whom the Trustee or the Trust
Manager is entitled to rely under this deed (other than a Related
Corporation), attorney, banker, receiver, barrister, solicitor, agent
or other person acting as agent or adviser to the Trustee or the
Trust Manager.
33.9 Powers, authorities and discretions
Except as otherwise provided in this deed and in the absence of
fraud, negligence or wilful default, the Trustee and the Trust
Manager shall not be in any way responsible for any loss (whether
consequential or otherwise), costs, damages or inconvenience that may
result from the exercise or non-exercise of any powers, authorities
and discretions vested in it.
33.10 Impossibility or impracticability
If for any reason whatsoever it becomes impossible or impracticable
to carry out any or all of the provisions of this deed or any other
Transaction Document the Trustee and the Trust Manager shall not be
under any liability and, except to the extent of their own fraud,
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negligence or wilful default, nor shall either of them incur any
liability by reason of any error of law or any matter or thing done
or suffered or omitted to be done in good faith by either of them or
their respective officers, employees, agents or delegates.
33.11 Duties and charges
The Trustee and the Trust Manager shall not be required to effect any
transaction or dealing with any Notes or with all or any part of the
Authorised Investments of a Trust on behalf or at the request of any
Noteholder or other person unless such Noteholder or other person (as
the case may be) shall first have paid in cash or otherwise provided
to its satisfaction for all duties, Taxes, governmental charges,
brokerage, transfer fees, registration fees and other charges
(collectively duties and charges) which have or may become payable in
respect of such transaction or dealing but the Trustee and the Trust
Manager shall be entitled if it so thinks fit to pay and discharge
all or any of such duties and charges on behalf of the Noteholder or
other person and to retain the amount so paid of any moneys or
property to which such Noteholder or other person may be or become
entitled under this deed.
33.12 Legal and other proceedings
(a) (Indemnity for legal costs) The Trustee and the Trust
Manager shall be indemnified out of a Trust for all legal
costs and disbursements and all other cost,
disbursements, outgoings and expenses incurred by the
Trustee and the Trust Manager in connection with:
(i) the enforcement or contemplated enforcement
of, or preservation of rights under; and
(ii) without limiting the generality of paragraph
(i) above, the initiation, defence, carriage
and settlement of any action, suit,
proceeding or dispute in respect of,
this deed or any other Transaction Document or otherwise
under or in respect of the Trust provided that the
enforcement, contemplated enforcement or preservation by
the Trustee of the rights referred to in paragraph (i) or
the court proceedings referred to in paragraph (ii)
(other than in each case the defence of any action, suit,
proceeding or dispute brought against the Trustee), and
the basis of incurring any those costs, disbursements,
outgoings and expenses by the Trustee:
(iii) has been approved in advance by the Trust
Manager or by an Extraordinary Resolution of
the Noteholders of the Trust; or
(iv) is regarded by the Trustee as necessary to
protect the interests of the Noteholders in
relation to the Trust following a breach by
the Trust Manager of its obligations under
this deed and the Trustee reasonably
believes that any delay in seeking an
approval under paragraph (iii) will be
prejudicial to the interests of the
Noteholders in relation to the Trust.
(b) (Defence of proceedings alleging negligence etc.) Each
of the Trustee and the Trust Manager shall be entitled
to claim in respect of the above indemnity from the
relevant Trust for its expenses and liabilities incurred
in defending any action, suit, proceeding or dispute in
which fraud, negligence or wilful default is alleged or
claimed against it, but on the same being proved,
accepted or admitted by it, it shall from its personal
assets immediately repay to such Trust the amount
previously paid by such Trust to it in respect of that
indemnity.
Page 100
33.13 No liability except for negligence etc.
In the absence of fraud, negligence or wilful default on its part or
on the part of any of its officers, employees, agents or delegates,
none of the Trustee and the Trust Manager shall be liable personally
in the event of failure to pay moneys on the due date for payment to
any Noteholder, any Beneficiary, the Trust Manager (in the case of
the Trustee), the Trustee (in the case of the Trust Manager) or any
other person or for any loss howsoever caused in respect of any of
the Trusts or to any Noteholder, any Beneficiary, the Trust Manager
(in the case of the Trustee), the Trustee (in the case of the Trust
Manager) or other person.
33.14 Further limitations on Trustee's liability
Subject to clause 33.3, the Trustee shall not be liable:
(a) (for loss on its discretions) for any losses, costs,
liabilities or expenses arising out of the exercise or
non-exercise of its discretion or for any other act or
omission on its part under this deed, any other
Transaction Document or any other document except where
the exercise or non-exercise of any discretion, or any
act or omission, by the Trustee, or any of its officers,
employees, agents or delegates, constitutes fraud,
negligence or wilful default;
(b) (for loss on Trust Manager's discretions) for any losses,
costs liabilities or expenses arising out of the exercise
or non-exercise of a discretion by the Trust Manager or
the act or omission of the Trust Manager except to the
extent that it is caused by the Trustee's, or any of its
officer's, employee's, agent's or delegate's, fraud,
negligence or wilful default;
(c) (for loss on directions) for any losses, costs, damages
or expenses caused by its acting on any instruction or
direction given to it by:
(i) the Trust Manager, a Servicer or an Approved
Seller under this deed, any other
Transaction Document or any other document;
(ii) by any person under a Support Facility,
Receivable or Receivable Security; or
(iii) an Obligor,
except to the extent that it is caused by the Trustee's,
or any of its officer's, employee's, agent's or
delegate's, fraud, negligence or wilful default;
(d) (for certain defaults) for any Trust Manager's Default,
Servicer Transfer Event or Title Perfection Event; or
(e) (for acts of Servicer) without limiting the Trustee's
obligations under the Transaction Documents, for any act,
omission or default of a Servicer in relation to its
custodial duties or its obligations under the relevant
Servicing Agreement.
Nothing in this clause 33.14 alone (but without limiting the
operation of any other clause of this deed) shall imply a duty on the
Trustee to supervise the Trust Manager in the performance of the
Trust Manager's functions and duties, and the exercise by the Trust
Manager of its discretions.
33.15 Further limitations on Trust Manager's liability
Subject to clause 33.4, the Trust Manager shall not be liable:
Page 101
(a) (for loss on its discretions) for any losses, costs,
liabilities or expenses arising out of the exercise or
non-exercise of its discretion or for any other act or
omission on its part under this deed, any other
Transaction Document or any other document except where
the exercise or non-exercise of any discretion, or any
act or omission, by the Trust Manager, or any of its
officers, employees, agents or delegates, constitutes
fraud, negligence or wilful default;
(b) (for loss on Trustee's discretions) for any losses,
costs, liabilities or expenses arising out of the
exercise or non-exercise of a discretion by the Trustee
or the act or omission of the Trustee except to the
extent that it is caused by the Trust Manager's, or any
of its officer's, employee's, agent's or delegate's,
fraud, negligence or wilful default;
(c) (for loss on Trustee's directions) for any losses, costs,
damages or expenses caused by its acting on any
instruction or direction given to it by:
(i) the Trustee, the Servicer or an Approved
Seller under this deed, any other
Transaction Document or any other document;
(ii) by any person under a Support Facility,
Receivable or Receivable Security; or
(iii) an Obligor,
except to the extent that it is caused by the Trust
Manager's, or any of its officer's, employee's, agent's
or delegate's, fraud, negligence or wilful default;
(d) (for certain defaults) for any Trustee's Default or
Title Perfection Event; or
(e) (for acts of Servicer) for any act, omission or default
of a Servicer in relation to its custodial duties or its
obligations under the relevant Servicing Agreement.
Nothing in this clause 33.15 alone (but without limiting the
operation of any other clause of this deed) shall imply a duty on the
Trust Manager to supervise the Trustee in the performance of the
Trustee's functions and duties, and the exercise by the Trustee of
its discretions.
33.16 Liability of Trustee limited to its right of indemnity
(a) This deed applies to the Trustee only in its capacity as
trustee of each Trust and in no other capacity. A
liability arising under or in connection with this deed
or a Trust can be enforced against the Trustee only to
the extent to which it can be satisfied out of property
of the relevant Trust out of which the Trustee is
actually indemnified for the liability. This limitation
of the Trustee's liability applies despite any other
provision of this deed and extends to all liabilities
and obligations of the Trustee in any way connected with
any representation, warranty, conduct, omission,
agreement or transaction related to this deed or a
Trust.
(b) The parties (including without limitation, the
Beneficiary) other than the Trustee may not sue the
Trustee personally or seek the appointment of a
liquidator, administrator, receiver or similar person to
the Trustee or prove in any liquidation, administration
or arrangement of or affecting the Trustee.
(c) The provisions of this clause 33.16 shall not apply to
any obligation or liability of the Trustee to the extent
that it is not satisfied because under this deed or the
relevant Series Notice or by operation of law there is a
reduction in the extent of the Trustee's indemnification
out of the assets of the Trust, as a result of the
Trustee's fraud, negligence or breach of trust.
Page 102
(d) It is acknowledged that the Trust Manager is responsible
under this deed for performing a variety of obligations
relating to each Trust. No act or omission of the
Trustee (including any related failure to satisfy its
obligations under this agreement) will be considered
fraud, negligence or breach of trust of the Trustee for
the purpose of paragraph (c) of this clause 33.16 to the
extent to which the act or omission was caused or
contributed to by any failure by the Trust Manager or
any other person who provides services in respect of the
Trust (other than a person who has been delegated or
appointed by the Trustee and for whom the Trustee is
responsible under this deed or the relevant Transaction
Documents) to fulfil its obligations relating to the
Trust or by any other act or omission of the Trust
Manager or any other person who provides services in
respect of the Trust (other than a person who has been
delegated or appointed by the Trustee and for whom the
Trustee is responsible under this deed or the relevant
Transaction Documents).
(e) No attorney, agent, receiver or receiver and manager
appointed in accordance with this deed has authority to
act on behalf of the Trustee in a way which exposes the
Trustee to any personal liability and no act or omission
of any such person will be considered fraud, negligence
or breach of trust of the Trustee for the purpose of
paragraph (c) of this clause 33.16, provided (in the
case of any person selected and appointed by the
Trustee) that the Trustee has exercised reasonable care
in the selection and supervision of such persons.
33.17 Trustee's right of indemnity - general
(a) (Indemnity from each Trust) Subject to this deed and
without prejudice to the right of indemnity given by law
to trustees, the Trustee will be indemnified out of each
Trust against all losses and liabilities properly
incurred by the Trustee in performing any of its duties
or exercising any of its powers under this deed in
relation to that Trust.
(b) (Preservation of right of indemnity) Subject to clause
33.17(c), and without limiting the generality of clause
33.17(a), the Trustee's right to be indemnified in
accordance with clause 33.17(a) and to effect full
recovery out of a Trust, will apply in relation to any
liabilities to Creditors of the Trust notwithstanding
any failure by the Trustee to exercise a degree of care,
diligence and prudence required of the Trustee having
regard to the powers, authorities and discretions
conferred on the Trustee under this deed or any other
act or omission which may not entitle the Trustee to be
so indemnified and/or effect such recovery (including,
without limitation, fraud, negligence or wilful
default).
(c) (Indemnity in certain circumstances held for Trust
creditors) Subject to clause 33.17(d), if the Trustee
fails to exercise the degree of care, diligence and
prudence required of a trustee having regard to the
powers, authorities and discretions conferred on the
Trustee by this deed or if any other act or omission
occurs which may not entitle the Trustee to be in-
demnified in accordance with clause 33.17(a) or to
effect full recovery out of a Trust (including, without
limitation, fraud, negligence or wilful default):
(i) the Trustee may not receive or hold or
otherwise have the benefit of the indemnity
given in clause 33.17(a) otherwise than on
behalf of and on trust for Creditors in
relation to that Trust; and
(ii) the Trustee may only be indemnified to the
extent necessary to allow it to discharge
its liability to Creditors in relation to
that Trust.
Page 103
(d) (Not to limit rights of others) Nothing in clauses
33.17(a) to (c) shall be taken to:
(i) impose any restriction on the right of any
Noteholder, a Beneficiary, the Trust Manager
or any other person to bring an action
against the Trustee for loss or damage
suffered by reason of the Trustee's failure
to exercise the degree of care, diligence
and prudence required of a trustee having
regard to the powers, authorities and
discretions conferred on the Trustee by this
deed (including, without limitation, fraud,
negligence or wilful default); or
(ii) confer on the Trustee a right to be
indemnified out of a Trust against any loss
the Trustee suffers in consequence of an
action brought against it by reason of the
Trustee's failure to exercise the degree of
care, diligence and prudence required of a
Trustee having regard to the powers,
authorities and discretions conferred on the
Trustee by this deed (including, without
limitation, fraud, negligence or wilful
default).
(e) (Not to limit Trustee's duty) Nothing in this clause
33.17 shall limit the Trustee's duties and obligations
under this deed or prevent or restrict any determination
as to whether there has been, or limit the Trustee's
personal liability under this deed for, a breach of trust
or fraud, negligence or wilful default on the part of the
Trustee or its officers, employees, agents or delegates.
33.19 Trustee's right of indemnity - Consumer Credit Legislation
(a) (Indemnity from each Trust) Without prejudice to the
right of indemnity given by law to trustees, and without
limiting any other provision of this deed, the Trustee
will be indemnified out of each Trust, free of any set
off or counterclaim, against all Civil Penalty Payments
which the Trustee is required to pay personally or in its
capacity as trustee of that Trust in performing any of
its duties or exercising any of its powers under this
deed in relation to that Trust.
(b) (Preservation of right and indemnity) Without limiting
the generality of paragraph (a), the Trustee's right to
be indemnified in accordance with clause 33.17(a), and
to effect full recovery out of a Trust pursuant to such
a right, will apply notwithstanding any alleged failure
by the Trustee to exercise a degree of care, diligence
and prudence required of the Trustee having regard to
the powers, authorities and discretions conferred on the
Trustee under this deed or any other act or omission
which may not entitle the Trustee to be so indemnified
and/or effect such recovery (including, without
limitation, fraud, negligence or wilful default) and
that is not related to the liability.
(c) (Overriding) This clause 33.18 overrides any other
provision of this deed.
(d) (Nominated credit provider) Unless otherwise specified in
the Series Notice, the Trustee nominates each Approved
Seller, in relation to each relevant Trust, as the credit
provider for the purposes of regulation 75 of the
Consumer Credit Legislation with respect to Receivables
acquired by the Trust from that Approved Seller. Each
Approved Seller agrees to be a credit provider for the
purposes of regulation 75 of the Consumer Credit
Legislation in relation to those Receivables.
(e) (Indemnity) Each Approved Seller that is a nominated
credit provider under Clause 33.18(d) indemnifies the
Trustee in relation to each relevant Trust, free of any
set off or counterclaim, against all Civil Penalty
Payments which the Trustee is required to pay personally
or in its capacity as trustee of that Trust in performing
any of its duties or exercising any of its powers under
this deed in relation to that Trust.
Page 104
(f) The Trustee shall call upon the indemnity under paragraph
(e) before it calls upon the indemnity in paragraph (a).
In this clause 33.18, Civil Penalty Payment means:
(i) the amount of any civil penalty which the
Trustee is ordered to pay under Part 6 of
the Consumer Credit Legislation;
(ii) any other money ordered to be paid by the
Trustee, or legal costs or other expenses
payable or incurred by the Trustee related
to such an order;
(iii) any amount which the Trustee agrees to pay
to an Obligor or other person in settlement
of an application for an order under Part 6
of the Consumer Credit Legislation; and
(iv) any legal costs or other costs and expenses
payable or incurred by the Trustee in
relation to that application.
33.19 Extent of liability of Trust Manager
The Trust Manager shall not be personally liable to indemnify the
Trustee or make any payments to any other person in relation to any
Trust except that there shall be no limit on the Trust Manager's
liability for any fraud, negligence or wilful default by it in its
capacity as the Trust Manager of the relevant Trust.
33.20 Right of indemnity
The Trust Manager shall be indemnified out of the relevant Trust in
respect of any liability, cost or expense properly incurred by it in
its capacity as Trust Manager of the relevant Trust or so incurred by
any of its delegates, sub-delegates or agents.
33.21 Conflicts
(a) (No conflict) Nothing in this deed shall prevent the
Trustee, any Lead Manager, the Trust Manager or any
Related Corporation or Associate of any of them or their
directors or other officers (each a Relevant Person)
from:
(i) subscribing for purchase, holding, dealing
in or disposing of any Notes;
(ii) entering into any financial, banking,
development, insurance, agency, broking or
other transaction with, or providing any
advice or services for any of the Trusts; or
(iii) being interested in any such contract or
transaction or otherwise at any time
contracting or acting in any capacity as
representative or agent.
(b) (Not liable to account) A Relevant Person shall not be in
any way liable to account to any Noteholder, any
Beneficiary or any other person for any profits or
benefits (including but without limitation, any profit,
bank charges, commission, exchange, brokerage and fees)
made or derived under or in connection with any
transaction or contract specified in paragraph (a) above;
(c) (Fiduciary relationship) A Relevant Person shall not by
reason of any fiduciary relationship be in any way
precluded from making any contracts or entering into any
transactions with any such person in the ordinary course
of the business or from undertaking any banking,
financial, development, agency or other services
including any contract or transaction in relation to the
placing of or dealing with any
Page 105
investment and the acceptance of any office or profit or
any contract of loan or deposits or other contract or
transaction which any person or company not being a
party to this deed could or might have lawfully entered
into if not a party to this deed. A Relevant Person
shall not be accountable to Noteholders, the
Beneficiaries or any other person for any profits
arising from any such contracts, transactions or
offices.
33.22 Trustee not obliged to investigate the Trust Manager etc
The Trustee shall be responsible only for so much of the Authorised
Investments, and the income and proceeds emanating from the
Authorised Investments as may be actually transferred or paid to it
and the Trustee is expressly excused from:
(a) taking any action or actions to investigate the
accounts, management, control or activities of the Trust
Manager or any other person; or
(b) inquiring into or in any manner questioning or bringing
any action, suit or proceeding or in any other manner
seeking to interfere with the management, control or
activities (including the exercise or non-exercise of
powers and discretions) of such persons or seeking to
remove from office such persons, taking any steps or
bringing any action, suit or proceedings or in any other
manner seeking to vary, amend delete from or add to this
deed or other instrument establishing the Trusts, or
wind up any of such persons or vest the Trusts.
33.23 Independent investigation of credit
(a) (Trustee and Trust Manager may assume independent
investigation) The Trustee and the Trust Manager shall be
entitled to assume that each Noteholder has,
independently and without reliance on the Trustee, the
Trust Manager or any other Noteholder, and based on
documents and information as each has deemed appropriate,
made its own investigations in relation to the Notes, the
Trustee, the Trust Manager and the provisions of this
deed and any other Transaction Document.
(b) (Acknowledgement of independent investigation) Each
Noteholder agrees that it will, independently and without
reliance on the Trustee, the Trust Manager, a Servicer or
any other Noteholder and based on documents and
information as it shall deem appropriate at the time,
continue to make its own analysis and decisions as to all
matters relating to this deed and any other Transaction
Document.
33.24 Information
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the Trustee
under this deed or any other Transaction Document, the Trustee shall
not have any duty or responsibility to provide any person (including,
without limitation, any Noteholder or Beneficiary but not including
the Trust Manager) with any credit or other information concerning
the affairs, financial condition or business of any of the Trusts.
33.25 Entering into Transaction Documents
Notwithstanding any other provision of this deed, the Trustee is not
obliged to enter into any Transaction Document for a Trust unless the
Trustee, with the agreement of the Trust Manager, has received
independent legal advice (if required by the Trustee) in relation to
the Transaction Document.
Page 106
33.26 Reliance by Trustee
The Trustee is entitled conclusively to rely on and is not required
to investigate the accuracy of:
(a) the contents of a Sale Notice given to it by an Approved
Seller;
(b) the contents of any Trust Manager's Report or Servicer's
Report;
(c) any calculations made by an Approved Seller, a Servicer
or the Trust Manager under any Transaction Document
including, without limitation, the calculation of amounts
to be paid to, or charged against, Noteholders, the
Beneficiary or the Seller on specified dates;
(d) the amount of, or allocation of, Collections;
(e) the contents of any certificate provided to the Trustee
under this deed and any certificate given by the Trust
Manager or the Servicer pursuant to a report or otherwise
pursuant to subsequent amendments to this deed or any
Series Notice,
unless actually aware to the contrary, and the Trustee is not liable
to any person in any manner whatsoever in respect of all such
matters.
33.27 Investigation by Trustee
The Trust Manager, each Servicer, each Approved Seller, each
Noteholder and the Beneficiary of each Trust acknowledges that:
(a) the Trustee has no duty, and is under no obligation, to
investigate whether a Trust Manager's Default, Servicer
Transfer Event or Title Perfection Event has occurred in
relation to that Trust other than where it has actual
notice;
(b) the Trustee is required to provide the notices referred
to in this deed in respect of a determination of Adverse
Effect only if it is actually aware of the facts giving
rise to the Adverse Effect; and
(c) in making any such determination, the Trustee will seek
and rely on advice given to it by its advisors in a
manner contemplated by this deed.
PART J - GENERAL PROVISIONS
34. NOTICES
34.1 Notices Generally
Subject to clause 34.2, every notice, certificate, request,
direction, demand or other communications required to or by a party
to this deed:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender;
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by
post, facsimile transmission or cable) when
delivered received or left to the address of
that party shown
Page 107
in this deed (or at such other address as
may be notified in writing by that party to
the other party from time to time);
(ii) (in the case of telex) on receipt by the
sender of the answerback code of the
recipient at the end of transmission; or
(iii) (in the case of electronic mail) on receipt
by the sender of an acknowledgement of
transmission,
but if delivery or receipt is on a day on which business
is not generally carried on in the place to which the
communication is sent or is later than 4pm (local time),
it will be taken to have been duly given or made at the
commencement of business on the next day on which
business is generally carried on in that place;
34.2 Notices to Noteholders
A notice, request or other communication by the Trustee, the Trust
Manager or a Servicer to Noteholders shall be deemed to be duly given
or made by:
(a) an advertisement placed on a Business Day in The
Australian Financial Review (or other nationally
distributed newspaper); or
(b) mail, postage prepaid, to the address of the Noteholders
as shown on the Register. Any notice so mailed shall be
conclusively presumed to have been duly given whether or
not the Noteholder actually receives the notice.
34.3 Notices to Designated Rating Agencies
The Trust Manager shall provide a copy of each notice, request or
other communication by the Trustee, the Trust Manager or a Servicer
to Noteholders in a Trust to each Designated Rating Agency (if any)
for the Trust as from time to time agreed in writing with that
Designated Rating Agency, and where a Transaction Document specifies
that notice is to be given to each Designated Rating Agency, but the
person who is to give that notice is not specified. Where a
Transaction Document requires notice to be given to a Designated
Rating Agency, that requirement constitutes an "agreement in writing"
for the purposes of this clause 34.3.
35. PAYMENTS GENERALLY
35.1 Payments to Noteholders
Any payment made by or on behalf of the Trustee in respect of any
Note shall be made to the person whose name is, on the Record Date,
entered in the relevant Register as the registered owner of the
relevant Note (or in the case of joint registered owners, to the
person whose name first appears in the Register).
35.2 Payment Methods
Any moneys payable by the Trustee, the Trust Manager or a Servicer to
a Noteholder or to a Beneficiary under this deed shall be paid by the
Trustee in Sydney or if the Trustee elects may be paid by:
(a) (cheque) crossed not negotiable cheque in favour of the
Noteholder or the Beneficiary (as the case may be) and
despatched by post to the address of the Noteholder shown
in the relevant Register on the Record Date or to the
address of the Beneficiary for the purposes of clause 34;
(b) (electronic transfer) electronic transfer through
Austraclear;
Page 108
(c) (direct payment) by direct transfer to a designated
account of the Noteholder or the Beneficiary held with a
bank or other financial institution in Australia; or
(d) (other agreed manner) any other manner specified by the
Noteholder and agreed to by the Trust Manager and the
Trustee.
35.3 Payment to be made on Business Day
If any payment is due under a Transaction Document on a day which is
not a Business Day, the due date will be the next Business Day.
35.4 Payment good discharge
There is a full satisfaction of the moneys payable and a good
discharge to the Trustee, the Trust Manager or a Servicer (as the
case may be) when the cheque is despatched by post in accordance with
clause 35.2(a) or, if not posted, delivered to the Noteholder or as
directed by the Noteholder. Neither the Trustee nor the Trust Manager
shall be responsible for any moneys which are not credited to the
bank account of a Noteholder or a Beneficiary if the Trustee's bank
has been instructed to effect the direct transfer referred to in
clause 35.2(c).
35.5 Trust Manager to arrange payments
The Trustee will:
(a) prepare or cause to be prepared all cheques which are to
be issued to Noteholders and to Beneficiaries and stamp
the same as required by law; or
(b) otherwise arrange payments under clause 35.20.
The Trustee will sign (by autographical, mechanical or other means)
cheques for despatch on the day on which they ought to be despatched.
35.6 Valid receipts
The receipt of the Trustee for any moneys shall exonerate the person
paying the same from all liability to make any further enquiry. Every
such receipt shall as to the moneys paid or expressed to be received
in such receipt, effectually discharge the person paying such moneys
from such liability or enquiry and from being concerned to see to the
application or being answerable or accountable or any loss or
misapplication of such moneys.
35.7 Taxation
(a) (Net payments) All payments in respect of the Notes
shall be made free and clear of, and without deduction
for, or by reference to, any present or future Taxes of
any Australian Jurisdiction unless required by law. The
Trustee or any person making payments on behalf of the
Trustee will be obliged to deduct interest withholding
tax imposed by the Commonwealth of Australia from
payments of interest in respect of the Notes to
non-residents of the Commonwealth of Australia not
carrying on business in the Commonwealth of Australia at
or through a permanent establishment and to residents of
the Commonwealth of Australia carrying on business at or
through a permanent establishment outside the
Commonwealth of Australia unless a certificate pursuant
to Section 221YM of the Taxation Act is produced to the
Trustee not later than close of business on the tenth
Business Day immediately preceding the relevant payment
date.
Page 109
(b) (Tax file numbers) The Trustee or any person making
payments on behalf of the Trustee will be required to
deduct tax-at-source on interest payments to each
Noteholder at the highest personal marginal tax rate
unless the Trustee receives from such Noteholder the Tax
File Number of that Noteholder or evidence of any
exemption the Noteholder may have from the need to
advise the Trustee of a Tax File Number. The Tax File
Number or appropriate evidence (as the case may be) must
be received by the Trustee not less than ten Business
Days prior to the relevant payment date.
36. AMENDMENT
36.1 Amendment without consent
The Trustee, the Trust Manager and a Servicer (in relation to a
Trust) may by way of supplemental deed alter, add to or modify this
deed (including this clause 36) or (subject to clause 5.3(c)) a
Series Notice in respect of any one or more Trusts so long as such
alteration, addition or modification either complies with clause 36.2
or is:
(a) (correct manifest error) to correct a manifest error or
ambiguity or is of a formal, technical or administrative
nature only;
(b) (comply with law) necessary to comply with the provisions
of any statute or regulation or with the requirements of
any Government Agency;
(c) (change in law) appropriate or expedient as a
consequence of an amendment to any statute or regulation
or altered requirements of any Government Agency
(including, without limitation, an alteration, addition
or modification which is appropriate or expedient as a
consequence of the enactment of a statute or regulation
or an amendment to any statute or regulation or ruling
by the Commissioner or Deputy Commissioner of Taxation
or any governmental announcement or statement, in any
case which has or may have the effect of altering the
manner or basis of taxation of trusts generally or of
trusts similar to any of the Trusts);
(d) (not yet constituted Trust) to apply only in respect of a
Trust not yet constituted under this deed; or
(e) (otherwise desirable) in the opinion of the Trustee
desirable to enable the provisions of this deed to be
more conveniently, advantageously, profitably or
economically administered or is otherwise desirable for
any reason (including to give effect, in the Trust
Manager's reasonable opinion, to an allocation of
Expenses contemplated by clause 4.10(c)).
36.2 Amendment with consent
Where in the reasonable opinion of the Trustee a proposed alteration,
addition or modification to this deed (except an alteration, addition
or modification referred to in clause 36.1) is prejudicial or likely
to be prejudicial to the interests of the Noteholders or a Class of
Noteholders or the Beneficiaries in a particular then constituted
Trust such alteration, addition or modification may only be effected
by the Trustee with the prior consent of the Noteholders or a Class
of Noteholders (as the case may be) in the particular Trust under an
Extraordinary Resolution of the Noteholders or a Class of Noteholders
(as the case may be) in the Trust or with the prior written consent
of the Beneficiaries (as the case may be).
36.3 Copy of amendments to Noteholders
The Trustee shall on request by a Noteholder, provide the Noteholder
with a copy of the supplemental deed effecting any alteration,
addition or modification to this deed.
Page 110
36.4 Copy of amendments in advance to Designated Rating Agencies
The Trust Manager shall provide a copy of a proposed alteration,
addition or modification to any Transaction Document in relation to a
Rated Trust, where the Transaction Document requires notice be given
to the Designated Rating Agency to each Designated Rating Agency (if
any) for the Rated Trust at least 5 Business Days (or such other
period as may from time to time be agreed by the Trust Manager with
the Designated Rating Agency) prior to any alteration, addition or
modification taking effect.
37. CONFIDENTIALITY
(a) Each party agrees that:
(i) (A) subject to paragraph (B) and
clause 37(b), it will not
disclose without the prior
consent of the other (other than
to the directors, employees,
auditors, legal advisors, other
professional advisors which it
is entitled to consult under the
Transaction Documents,
affiliates or Related
Corporations (collectively,
representatives) of such party,
each of whom shall be informed
by such party of the
confidential nature of the
Information and of the terms of
this clause 37:
(1) any information
regarding, or copies
of, any Transaction
Document or any
transaction
contemplated by any
Transaction
Document; or
(2) any information
regarding an
Approved Seller
which information is
furnished by the
Approved Seller to
such party and which
is designated by the
Approved Seller to
such party in
writing as
confidential or not
otherwise available
to the general
public,
(the information referred to in
paragraphs (1) and (2) is
collectively referred to as the
Information); and
(B) such party may disclose any such
Information:
(1) to any other party
to this deed for the
purposes
contemplated by this
deed;
(2) as may be required
by any Governmental
Agency;
(3) in order to comply
with any law, order,
regulation,
regulatory request
or ruling applicable
to such party
(including, without
limitation, any
request or
requirement of the
Australian Stock
Exchange);
(4) subject to clause
37.8(e), in the
event such party is
legally compelled
(by interrogatories,
requests for
information or
copies, subpoena,
civil investigative
demand or similar
process) to disclose
any such
Information;
(5) in the case of the
Trustee, to a
successor or bona
fide potential
successor as trustee
of the Trust;
Page 111
(6) to the Designated
Rating Agency;
(7) to the provider, or
potential provider,
of a Support
Facility;
(8) as required or
contemplated by the
Transaction
Documents;
(9) in any legal
proceedings arising
out of or in
connection with any
Transaction
Document, as such
party reasonably
considers necessary
to protect its
interests; or
(10) with the prior
written consent of
the other party;
(ii) it will use the Information solely for the
purposes of evaluating, and administering
the transactions contemplated by Transaction
Documents, making any necessary business
judgments with respect thereto and
exercising its rights and performing its
obligations under the Transaction Documents
and in any event shall comply with the
Privacy Act and all applicable privacy laws;
(iii) it will, on demand, return (and cause each
of its representatives to return) to the
Approved Seller all documents or other
written material received from the Approved
Seller in connection with paragraph
(a)(i)(A)(II) above and all copies thereof
made by such party which contain the
Information except to the extent that such
Information forms part of the business
records of that party, or is delivered to
that party pursuant to an obligation to do
so under any Transaction Document.
(b) This clause 37 shall be inoperative as to such portions
of the Information which are or become generally
available to the public or such party on a
non-confidential basis or were known to such party on a
non-confidential basis prior to its disclosure by the
Approved Seller.
(c) In the event that any party or anyone to whom such party
or its representatives transmits the Information is
requested or becomes legally compelled (by
interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process)
to disclose any of the Information, such party will:
(i) provide the Approved Seller with prompt
written notice so that the Approved Seller
may seek a protective order or other
appropriate remedy and/or waive compliance
with the provisions of this clause 37;
(ii) take such action as required by any
protective order or other appropriate remedy.
(d) This clause 37 shall survive termination of this deed and
the Transaction Documents.
(e) Each party shall ensure that its officers, employees and
agents comply with this Clause 37 and any other
confidentiality agreement between any Approved Seller and
the Trustee relating to the transactions contemplated by
this deed.
Page 112
38. MISCELLANEOUS
38.1 Data Base to be retained as confidential
Each party shall retain as confidential to itself the Data Base in so
far as the same is held by it and shall not disclose the Data Base to
any other person (including any of its Related Bodies Corporate)
except:
(a) (Transaction Documents) as permitted or required by any
Transaction Document or necessary for any party to a
Transaction Document to perform its respective duties and
obligations;
(b) (enforcement) as required for the enforcement or
attempted enforcement of any Transaction Document, Loan,
Mortgage or Related Securities;
(c) (professional advisers) to any professional adviser,
delegate, agent or sub-agent of that party under a power
contained in a Transaction Document;
(d) (officers) to the officers, employees and directors of
that party made in the performance by that party
respectively of its duties and obligations under the
Transaction Documents or at law;
(e) (Auditors) to the Auditor of any Trust or as required by
the Auditor of any Trust; or
(f) (law) as required by law or by any Government Agency or
by the listing rules of the Australian Stock Exchange
Limited,
subject to all cases to the Privacy Act.
38.2 Certificates by Trust Manager
Any statement or certificate by the Trust Manager in relation to any
act, matter, thing or state of affairs in relation to any of the
Trusts, this deed or any other Transaction Document shall, in the
absence of manifest error be final, be binding and conclusive on the
Trustee, the Beneficiaries, the Noteholders and all other persons.
38.3 Waivers, remedies cumulative
Save as provided in this deed, no failure to exercise and no delay in
exercising on the part of any party of any right, power or privilege
under this deed shall operate as a waiver. Nor shall any single or
partial exercise of any right, power or privilege preclude any other
or further exercise of that or any other right, power or privilege.
38.4 Retention of documents
(a) All Applications for Notes, cancelled Note
Acknowledgements, Note Transfers and instruments of
transmission shall be retained by the Trust Manager for a
period of seven years. On the expiration of seven years
from the date of any such document the document may be
destroyed.
(b) All files in respect of each Loan, Mortgage or Related
Securities and related computer tape held by a Servicer
shall be retained by the Servicer for a period of seven
years after the related Loan has been paid in full or is
otherwise liquidated or for such longer period required
by law.
Page 113
38.5 Governing law
This deed shall be governed by and construed in accordance with the
laws of the Australian Capital Territory. Each of the parties and the
Noteholders submits to the non-exclusive jurisdiction of courts
exercising jurisdiction there.
38.6 Severability of provisions
Any provision of any Transaction Document which is prohibited or
unenforceable in any jurisdiction is, as to that jurisdiction,
ineffective to the extent of that prohibition or unenforceability.
This does not invalidate the remaining provisions of that Transaction
Document nor affect the validity or enforceability of that provision
in any other jurisdiction.
38.7 Counterparts
This deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
38.8 Inspection of this deed
The Noteholders may inspect a copy of this deed, each relevant Series
Notice, Servicing Agreement and Security Trust Deed at the office of
the Trust Manager during normal business hours, but shall not be
entitled to a copy of any of them.
EXECUTED as a deed in Canberra.
TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of WESTPAC SECURITIES )
ADMINISTRATION LIMITED by its )
attorney in the presence of: ) /s/ X X XXXXXXX
-------------------------
Signature
/s/ XXXXX XXXXX X X XXXXXXX
------------------------- -------------------------
Witness Print name
XXXXX XXXXX
-------------------------
Print name
Page 114
TRUST MANAGER
SIGNED SEALED and DELIVERED )
on behalf of THE MORTGAGE COMPANY )
PTY LIMITED by its attorney )
in the presence of: ) /s/ XXXXX XXXX XXXXXXX
-------------------------
Signature
/s/ XXXXX XXXXX XXXXX XXXX WINTOUR
------------------------- ------------------------
Witness Print name
XXXXX XXXXX
-------------------------
Print name
Page 115
SCHEDULE 1
APPLICATION FOR NOTES
SERIES [*] WST TRUST
To: Westpac Securities Administration Limited as trustee of the Series
[*] WST Trust (the Trustee)
From: ................................................(ACN [*])
(Name)
of......................................(the Applicant).
(Address)
Application
The Applicant applies for the following Notes (the Notes) to be issued by the
Trustee as trustee of the Series [*] WST Trust (the Trust) under the Master
Trust Deed dated [ ] 1997 (as amended from time to time) establishing the WST
Trusts (the Master Trust Deed):
1. The Notes applied for are:
2. The amount of Notes applied for is:
Applicant bound
The Applicant agrees that the Notes will be issued subject to, and agrees to be
bound by, the provisions of the Master Trust Deed, the Series Notice in relation
to the Notes [and the Security Trust Deed dated [*] in relation to the Trust].
Acknowledgement by Applicant
The Applicant acknowledges that the liability of the Trustee to make payments in
respect of the Notes is limited to its right of indemnity from the assets of the
Trust from time to time available to make such payments under the Master Trust
Deed.
The Applicant further acknowledges that:
(a) it has independently and without reliance on the Westpac Banking
Corporation (Westpac), the Trustee, the Trust Manager or any other
person (including without reliance on any materials prepared or
distributed by any of the above) made its own assessment and
investigations regarding its investment in the Notes; and
(b) it understands that the Notes do not represent deposits or other
liabilities of Westpac or Associates of Westpac;
(c) the Applicant's holding of the Notes is subject to investment risk,
including possible delays in repayment and loss of income and
principal invested; and
(d) neither Westpac nor any Associate of Westpac in any way stands behind
the capital value and/or performance of the Notes or the Assets of
the Trust except to the limited extent provided in the Transaction
Documents for the Trust.
Page 116
General
Payments due under the Notes may be made:
. by cheque posted to the above address
. to the credit of the following account:
Name of Bank:
Address of Bank:
Account Details:
Account No.:
Name of Account:
A Marked Note Transfer of the abovementioned Notes is required: Yes/No.
Applicant's Tax File Number:
Interpretation
Each expression used in this Application for Notes that is not defined has the
same meaning as in the Master Trust Deed.
Dated:
SIGNED: ...............................................
* This Application for Notes together with a cheque for the amount of
the Notes applied for should be sent to the Trustee at the address
above.
* Where the Applicant is a trustee, this Application for Notes must be
completed in the name of the trustee and signed by the trustee
without reference to the trust.
* Where this Application for Notes is executed by a corporation, it
must be executed either under common seal or under a power of
attorney.
* If this Application for Notes is signed under a power of attorney,
the attorney certifies that it has not received notice of revocation
of that power of attorney. A certified copy of the power of attorney
must be lodged with this Application for Notes.
Page 117
CONFORMED COPY
SCHEDULE 2
NOTE ACKNOWLEDGEMENT
WST TRUST NO. [ ]
Name:
[Class]:
Initial Invested Amount:
Interest Rate:
Coupon Payment Dates:
[Principal Payment Dates]:
Maturity Date:
This confirms that:
Noteholder:
ACN (if applicable):
Address:
appears in the Register as the holder of the abovementioned Notes (the Notes).
The Notes are issued by Westpac Securities Administration Limited (ACN 000 049
472) (the Trustee) in its capacity as trustee of the abovementioned Trust (the
Trust) under a Master Trust Deed dated [ ] 1997 (as amended from time to time)
establishing the WST Trusts (the Master Trust Deed).
The Notes are issued subject to the provisions of the Master Trust Deed, the
Series Notice in relation to the Notes [and the Security Trust Deed dated [*] in
relation to the Trust]. A copy of the Trust Deed, the Series Notice [and the
Security Trust Deed] are available for inspection by Noteholders at the offices
of The Mortgage Company Pty Limited, ACN 070 968 302 (the Trust Manager) at 000
Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx.
The Trustee's liability to make payments in respect of the Notes is limited to
its right of indemnity from the Assets of the Trust from time to time available
to make such payments under the Master Trust Deed and Series Notice. All claims
against the Trustee in relation to the Notes may only be satisfied out of the
assets of the Trust except in the case of (and to the extent of) any fraud,
negligence or wilful default on the part of the Trustee or its officers,
employees, agents or delegates.
The Noteholder is required to accept any distribution of moneys under the
Security Trust Deed in full and final satisfaction of all moneys owing to it,
and any debt represented by any shortfall that exists after any such final
distribution is extinguished.
Page 118
The Trustee shall not be liable to satisfy any obligations or liabilities from
its personal assets except (and to the extent) of any fraud, negligence or
wilful default on the part of the Trustee or its officers, employees, agents or
delegates. Neither the Trustee nor the Trust Manager guarantees the payment of
interest or the repayment of principal due on the Notes.
This Note Acknowledgement is not a certificate of title and the Register is the
only conclusive evidence of the abovementioned Noteholder's entitlement to
Notes.
Transfers of Notes must be under a Note Transfer in the form contained in
Schedule 4 to the Master Trust Deed (copies of which are available from the
Trustee at its abovementioned address). Executed Note Transfers must be
submitted to the Trustee.
Each expression used in this Note Acknowledgement that is not defined has the
same meaning as in the Master Trust Deed.
This Note Acknowledgement and the Notes to which it relates will be governed by
the laws of the Australian Capital Territory.
Dated:
Executed in [the Australian Capital Territory/New South Wales] for and on behalf
of Westpac Securities Administration Limited
---------------------------------------------------
Authorised Signatory
Page 119
SCHEDULE 3
NOTE ISSUE DIRECTION
To: Westpac Securities Administration Limited (ACN 000 049 472) as
trustee of the Series [*] WST Trust (the Trustee)
From: The Mortgage Company Pty Limited (ACN 070 968 302) (the Trust
Manager)
1. Proposal to Issue Notes
Under clause 13.1(a) of the Master Trust Deed dated [*] 1997 (as amended from
time to time) establishing the WST Trusts (the Trust Deed) the Trust Manager
proposes and directs in this Note Issue Direction (the Note Issue Direction)
that the Trustee on [*] (the Note Issue Date) will:
(a) hold as trustee of the Series [*] WST Trust (the Trust) on the terms
of the Trust Deed the benefit of the Portfolio of Receivables
specified in [the attached Sale Notice/Annexure "A"] (the Portfolio
of Receivables);
(b) issue as trustee of the Trust the Notes specified below (the
proposed Notes):
(i) the name(s), total principal amount, total number and
Subscription Amount of the proposed Notes are as follows:
Name(s):
Total principal amount:
Total number:
Subscription Amount:
(ii) the proposed Notes [will/will not] constitute a Class
separate from any other Notes previously issued by the
Trustee as trustee of the Trust or from any other
proposed Notes referred to in this Note Issue Direction.
[The details of each Class are as follows:
[specify information in (i) above for each Class]]
[(c) pay to [[*] (the Approved Seller)/[ ] (the Warehouse Trust)] the
principal amount of the Loans relating to the Portfolio of
Receivables at [date] (the Cut-Off Date) being $[*]; and]
[(d) the Lead Manager for the issue is [ ]].
2. Security Trust Deed and Support Facilities
For the purposes of clause 13.2(a)(vi) of the Trust Deed:
(a) a Security Trust Deed for the Trust [must/need not] be put in place
prior to the Note Issue Date.
(b) the following Support Facilities must be effected prior to the Note
Issue Date:
[insert details]
Page 120
3. Series Notice
The terms of the Series Notice for the proposed Notes [each Class of the
proposed Notes] are contained [in the attached duly completed Series Notice/in
the Series Notice attached to the Note Issue Direction dated [*]].
4. Trust Manager's Certifications
For the purposes of clause 13.6(a) of the Trust Deed, but subject to the Trust
Deed, the Trust Manager certifies to the Trustee that this Note Issue Direction,
and each accompanying Series Notice, complies with the Trust Deed.
Interpretation
Each expression used in this Note Issue Direction that is not defined has the
same meaning as in the Trust Deed.
Dated:
For and on behalf of The Mortgage Company Pty Limited
-----------------------------------------------
Authorised signatory
RECEIPT
We acknowledge receipt of the above Note Issue Direction.
This acknowledgement shall not constitute a declaration by the Trustee that any
property (including any Receivable Security) shall be held on trust for any
person.
For and on behalf of Westpac Securities Administration Limited
-----------------------------------------------
Authorised signatory
Page 121
CONFORMED COPY
Annexure "A"
Receivables
[Attach Sale Notice or specify Receivables]
Page 122
SCHEDULE 4
NOTE TRANSFER AND ACCEPTANCE
SERIES [*] WST TRUST
To: Westpac Securities Administration Limited Date Lodged [*]
(ACN 000 049 472) as trustee of the Registry Use Only
Series [*] WST Trust (the Trustee)
TRANSFEROR
(Full name, ACN (if applicable) and address):
(please print)
APPLIES TO ASSIGN
AND TRANSFER TO
TRANSFEREE
(Full name, ACN (if applicable) and address):
(please print)
and its/their executors, administrators or assigns
The following Notes in the Series [*] WST Trust Number of Notes:
Name:
[Class]:
Initial Invested Amount:
Coupon Payment Dates:
[Principal Payment Dates]:
Maturity Date:
Settlement Amount: $[*]
and all my/our/its property and interests in rights to those Notes and to the
interest accrued on them.
TRANSFEROR
---------------------------------------------------------------------
(Signature: see Notes)
WITNESS Date:
--------------------------------------
TRANSFEREE
---------------------------------------------------------------------
(Signature: see Notes)
WITNESS Date:
--------------------------------------
PAYMENTS (Tick where appropriate)
* In accordance with existing instructions (existing holders only)
* By cheque posted to the above address
* By credit to the following account in Australia in the name of the
Transferee only
Tax File Number (if applicable):
Page 123
Authorised signature of Transferee
------------------------
Date:
NOTES:
1. The Transferor and the Transferee acknowledge that the transfer of
the Notes specified in this Transfer and Acceptance (the Notes) shall
only take effect on the entry of the Transferee's name in the
Register as the registered owner of the Notes.
2. The Transferee agrees to accept the Notes subject to the provisions
of the Master Trust Deed dated [*] 1997 (as amended from time to
time) establishing the WST Trusts (the Trust Deed), the Series Notice
in relation to the Notes [and the related Security Trust Deed dated
[*]].
3. The Transferee acknowledges that it has independently and without
reliance on Westpac Banking Corporation (ARBN 007 457 141), the
Trustee, The Mortgage Company Pty Limited, ACN 070 968 302 (the Trust
Manager) or any other person (including without reliance on any
materials prepared or distributed by any of the above) made its own
assessment and investigations regarding its investment in the Notes.
4. The Trustee's liability to make payments in respect of the Notes is
limited to its right of indemnity from the assets of the
abovementioned Trust from time to time available to make such
payments under the Trust Deed.
5. Where the Transferor and/or the Transferee is a trustee, this Note
Transfer must be completed in the name of the trustee and signed by
the trustee without reference to the trust.
6. Where this Note Transfer is executed by a corporation, it must be
executed either under common seal or under a power of attorney.
7. If this Transfer and Acceptance is signed under a power of attorney,
the attorney certifies that it has not received notice of revocation
of that power of attorney. A certified copy of the power of attorney
must be lodged with this Note Transfer.
8. This Note Transfer must be lodged with the Trustee for registration.
9. The Trustee may, in the manner and for the periods specified in the
Trust Deed and any relevant Series Notice, close the Register. The
total period that the Register may be closed will not exceed 30 days
(or such other period agreed to by the Trust Manager) in aggregate in
any calendar year. No Note Transfer received after 4.00 pm Sydney
time on the day of closure of the Register or whilst the Register is
closed will be registered until the Register is re-opened.
10. If the Transferee is a non-resident for Australian taxation purposes,
withholding tax will be deducted from all interest payments unless an
exemption is provided to the Trustee [or withholding tax is no longer
payable as a result of any change in the relevant Australian laws.]
11. [Insert any restrictions on the transfer of Notes.]
[Marking where clause 14.15 applies]
Page 124
12. The Trustee certifies that the Transferor is inscribed in the
Register as the holder of the Notes specified in this Note Transfer
and that it will not register any transfer of such Notes other than
under this Note Transfer before [insert date].
Dated:
For and on behalf of [*] Limited
-------------------------------------------------
Authorised Signatory
Page 125
CONFORMED COPY
SCHEDULE 5
NOTICE OF CREATION OF TRUST
To: Westpac Securities Administration Limited (ACN 000 049 472) (the
Trustee)
From: The Mortgage Company Pty Limited (ACN 070 968 302) (the Trust
Manager)
Under clause 3.2(a)(i) of the Master Trust Deed dated [*] 1997 between the
Trustee as trustee and the Trust Manager as trust manager establishing the WST
Trusts (as amended from time to time) (the Master Trust Deed) the Trust Manager
gives notice of the creation of a Trust under the Master Trust Deed to be known
as the Series [*] WST Trust [or such other name as the Trust Manager and the
Trustee have agreed under clause 3.3(b) of the Master Trust Deed].
The Series [*] WST Trust will be a Trust for the purposes of the Master Trust
Deed.
This Notice of Creation of Trust is accompanied by $10.00 from [*] in accordance
with clause 3.2(a)(ii) of the Master Trust Deed. [The Trustee must issue a
residual capital unit to [*]]
The Beneficiary of the Trust is [name], of [address] [give details of units and
other Beneficiaries, if any]
Terms defined in the Master Trust Deed have the same meaning when used in this
Notice.
Dated:
For and on behalf of The Mortgage Company Pty Limited.
----------------------------------------------------
Authorised Signatory
For and on behalf of Westpac Securities Administration Limited
----------------------------------------------------
Authorised Signatory
Page 126
^[docname]:^[dated]
SCHEDULE 6
VERIFICATION CERTIFICATE
To: Westpac Securities Administration Limited (ACN 000 049 472) as trustee
of the Series [*] WST Trust (the Trustee).
WST TRUSTS
I [*] am a [director/secretary/Authorised Signatory] of [*] Limited of [*] (the
Company).
I refer to the Master Trust Deed (the Master Trust Deed) to be entered into
between the Trustee as trustee and The Mortgage Company Pty Limited as Trust
Manager and Servicer.
Definitions in the Master Trust Deed apply in this Certificate.
I CERTIFY as follows.
1. Attached to this Certificate are complete and up to date copies of:
(a) the memorandum and articles of association of the Company
(marked A); and
(b) a duly stamped and registered power of attorney granted
by the Company for the execution of each Transaction
Document to which it is expressed to be a party (marked
B). That power of attorney has not been revoked or
suspended by the Company and remains in full force and
effect.
2. The following are signatures of the Authorised Officers of the
Company and the persons who have been authorised to sign each
Transaction Document to which it is expressed to be a party and to
give notices and communications under or in connection with the
Transaction Documents.
Authorised Officers
Name Position Signature
* *
--------------------
* *
--------------------
* *
--------------------
Page 127
Signatories
Name Position Signature
* *
--------------------
* *
--------------------
* *
--------------------
Signed:
-----------------------------------------
[Director/Secretary/Authorised Signatory]
-----------------------------------------
Print name
DATED
Page 128
CONFORMED COPY
SCHEDULE 7
WAREHOUSE TRUST DIRECTION
To: Westpac Securities Administration Limited (ACN 000 049 472) as
trustee of the WST Warehouse Trust #[] (the Trustee)
From: The Mortgage Company Pty Limited (ACN 070 968 302) (the Trust
Manager)
1. Direction to acquire Receivables
Under clause [*] of the Master Trust Deed dated [*] 1997 (as amended from time
to time) establishing the WST Trusts (the Master Trust Deed) the Trust Manager
proposes and directs in this Direction (the Direction) that the Trustee on [*]
(the Note Issue Date) will:
(a) hold as trustee of the WST Warehouse Trust #[] (the Trust) on
the terms of the Master Trust Deed the benefit of the Portfolio
of Receivables specified in Annexure "A" (the Portfolio of
Receivables);
[(b) pay to [[*] (the Approved Seller)/[ ] (the Seller Trust)] the
principal amount of the Loans relating to the Portfolio of
Receivables at [date] (the Cut-Off Date) being $[*]; and]
(c) enter into the Warehouse Facility Agreement in the attached form
with [*] to have financial accommodation of up to $[*] or any
greater amount as agreed by the Trustee and the Trust Manager
from time to time.
2. Series Notice
The Series Notice for the Trust is set out in Annexure "B".
[3. Standing direction
This is a standing Warehouse Trust Direction for the purposes of clause 7.5, in
the manner set out in the attached Series Notice.]
4. Trust Manager's Certifications
Subject to the Master Trust Deed, the Trust Manager certifies to the Trustee
that this Direction, complies with the Master Trust Deed.
Interpretation
Each expression used in this Direction that is not defined has the same meaning
as in the Trust Deed.
Dated:
For and on behalf of The Mortgage Company Pty Limited
-----------------------------------------------------
Authorised signatory
Page 129
RECEIPT
We acknowledge receipt of the above Warehouse Trust Direction.
This acknowledgement shall not constitute a declaration by the Trustee that any
property (including any Receivable Security) shall be held on trust for any
person.
For and on behalf of WESTPAC SECURITIES ADMINISTRATION LIMITED
-----------------------------------------------------
Authorised signatory
Page 130
Annexure "A"
Receivables
[Attach Sale Notice or specify Receivables]
Page 131
Annexure "B"
SERIES NOTICE
SEE ANNEXURE E OF MASTER TRUST DEED FOR DETAILS TO BE INCLUDED
WST WAREHOUSE #[] TRUST
WAREHOUSE TRUST SERIES NOTICE
1. INTRODUCTION
This Series Notice is issued on [*] 1997 by The Mortgage Company Pty
Limited (ACN 070 968 302) of Level 6, 000 Xxxx Xxxxxx, Xxxxxx, Xxx
Xxxxx Xxxxx as manager (Trust Manager) pursuant and subject to the
Master Trust Deed dated [*] 1997 (the Master Trust Deed) between
(among others) the Trust Manager and Westpac Securities
Administration Limited (ACN 000 049 472) of Level 9, 00 Xxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx as trustee of the WST Warehouse #[] Trust
created under the Notice of Creation of Trust (the Trustee).
Each party to this Series Notice agrees to be bound by the
Transaction Documents as amended by this Series Notice in the
capacity set out with respect to them in this Series Notice or the
Master Trust Deed.
[The Mortgage Company Pty Limited] (the Servicer) agrees to service
the Purchased Receivables and Purchased Receivable Securities in
accordance with the Servicing Agreement.
2. SERIES NOTICE AND TRUST BACK
(a) Under clauses 5.2 and 7 of the Master Trust Deed, the
Trust Manager directs the Trustee to:
(i) enter into the Warehouse Facility Agreement;
(ii) accept any Sale Offer; and
(iii) Borrow under the Warehouse Facility
Agreement from time to time in accordance
with clause 4 and the Warehouse Facility
Agreement.
(b) A Trust Back, entitled Warehouse Trust Back #[], is
created in relation to any Other Secured Liabilities
secured by the Purchased Receivable Securities.
(c) The parties agree that:
(i) the Trust will be a Trust for the purposes
of the Master Trust Deed; and
(ii) the Trust will not be a Rated Trust under
the Master Trust Deed.
3. DEFINITIONS AND INTERPRETATION
3.1 Definitions
Unless otherwise defined in this Series Notice, words and phrases
defined in the Master Trust Deed have the same meaning where used in
this Series Notice.
Page 132
In this Series Notice, and for the purposes of the definitions in the
Master Trust Deed, the following terms have the following meanings
unless the contrary intention appears. These definitions apply only
in relation to the WST Warehouse #[] Trust, and do not apply to any
other Trust (as defined in the Master Trust Deed).
[*]
3.2 Interpretation
Clause 1.2 of the Master Trust Deed is incorporated into this Series
Notice as if set out in full, except that any reference to deed is
replaced by a reference to Series Notice.
3.3 Limitation of liability
(a) General
Clause 33 of the Master Trust Deed applies to the
obligations and liabilities of the Trustee and the Trust
Manager under this Series Notice.
(b) Liability of Trustee limited to its right of indemnity
(i) This Series Notice applies to the Trustee
only in its capacity as trustee of the
Warehouse Trust and in no other capacity. A
liability arising under or in connection
with this Series Notice or the Warehouse
Trust can be enforced against the Trustee
only to the extent to which it can be
satisfied out of property of the Warehouse
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
Series Notice and extends to all
liabilities and obligations of the Trustee
in any way connected with any
representation, warranty, conduct,
omission, agreement or transaction related
to this Series Notice or the Warehouse
Trust.
(ii) The parties other than the Trustee may not
sue the Trustee personally or seek the
appointment of a liquidator, administrator,
receiver or similar person to the Trustee or
prove in any liquidation, administration or
arrangement of or affecting the Trustee.
(iii) The provisions of this clause 3.3 shall not
apply to any obligation or liability of the
Trustee to the extent that it is not
satisfied because under the Master Trust
Deed or the Series Notice or by operation of
law there is a reduction in the extent of
the Trustee's indemnification out of the
assets of the Warehouse Trust, as a result
of the Trustee's fraud, negligence or breach
of trust.
(c) It is acknowledged that the Trust Manager is responsible
under this agreement for performing a variety of
obligations relating to the Trust. No act or omission of
the Trustee (including any related failure to satisfy its
obligations under this agreement) will be considered
fraud, negligence or breach of trust of the Trustee for
the purpose of sub-paragraph (iii) to the extent to which
the act or omission was caused or contributed to by any
failure by the Trust Manager or any other person (other
than a person who has been properly appointed by the
Trustee and for whom the Trustee is responsible under
this deed or the relevant Transaction Documents) to
fulfil its obligations relating to the Trust or by any
other act or omission of the Trust Manager or any other
person (other than a person who has been properly
appointed by the Trustee and for whom the Trustee is
responsible under this deed or the relevant Transaction
Documents).
Page 133
(d) No attorney, agent, receiver or receiver and manager
appointed in accordance with this agreement has authority
to act on behalf of the Trustee in a way which exposes
the Trustee to any personal liability and no act or
omission of any such person will be considered fraud,
negligence or breach of trust of the Trustee for the
purpose of sub-paragraph (iii), if the Trustee has
exercised reasonable care in the selection and
supervision of such persons.
4. ACQUISITION OF RECEIVABLES
[*]
5. DISPOSAL OF RECEIVABLES
[*]
6. CASHFLOW ALLOCATION METHODOLOGY
[*]
7. MASTER TRUST DEED AND SERVICING AGREEMENT
7.1 Completion of details in relation to Master Trust Deed
(a) (Trust Manager fee)
[*]
(b) (Trustee fee)
[*]
(c) (Servicing fee)
[*]
7.2 Amendments to Master Trust Deed
[*]
7.3 Amendments to Servicing Agreement
[*]
8. BENEFICIARY
[*]
9. TITLE PERFECTION EVENTS
[*]
EXECUTED as a deed in Canberra.
Each attorney executing this Series Notice states that he or she has no notice
of revocation or suspension of his or her power of attorney.
Page 134
TRUSTEE
SIGNED SEALED and DELIVERED )
by WESTPAC SECURITIES )
ADMINISTRATION LIMITED in the )
presence of: ) --------------------------------
Signature
-------------------------------------- --------------------------------
Witness Print name
--------------------------------------
Print name
TRUST MANAGER/SERVICER
SIGNED SEALED and DELIVERED )
by THE MORTGAGE COMPANY )
PTY LIMITED in the presence of: ) --------------------------------
Signature
-------------------------------------- --------------------------------
Witness Print name
--------------------------------------
Print name
Page 135
ANNEXURE A
SALE NOTICE
TO: Westpac Securities Administration Limited (ACN 000 049 472) as
trustee of the Series [*] WST Trust (the Trustee)
Attention: [*]
FROM: [*]
(the Approved Seller)
Dear Sirs
MASTER TRUST DEED
We refer to the Master Trust Deed (the Master Trust Deed) dated [*] between
Westpac Securities Administration Limited and The Mortgage Company Pty Limited
and the Series Notice issued under the Master Trust Deed in relation to the [*]
Trust (the Series Notice).
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Terms defined in the Master Trust Deed and the Series Notice shall
have the same meaning in this Sale Notice unless the context
otherwise requires except that:
Cut-Off Date means [ ].
Expiry Time means 4:00pm on [*].
[Offered Receivable Interest means that part of the Offered
Receivable Rights which consists of the Approved Seller's right,
title, benefit, interest (present and future) in, to, under or
derived from any Receivable Security and the Related Receivables.]
[For Land only].
Offered Receivable Rights means the Approved Seller's right, title
and interest in and to the Receivables and Receivable Securities
described in the attached computer disk and printout, and the related
Receivable Rights, except to the extent of the exclusion in
paragraphs (c) and (d) of the definition of Receivable Rights.
Purchase Price means [ ].
A reference to any clause is a reference to that clause in this Sale
Notice.
1.2 Interpretation
The provisions of the Master Trust Deed will apply to any contract
formed if the offer contained in this Sale Notice is accepted.
Page 136
2. OFFER
Subject to the terms and conditions of this Sale Notice, the Approved
Seller, as legal and beneficial owner, offers to sell and assign the
Offered Receivable Rights (free from any Security Interest) to the
Trustee for the Purchase Price.
3. ACCEPTANCE
(a) The offer in clause 2 is irrevocable during the period up
to and including the Expiry Time.
(b) The Trustee may accept the offer contained in this Sale
Notice at any time prior to the Expiry Time by, and only
by, the payment by the Trustee to the Approved Seller (or
as it directs) of $[*] in same day funds [by bank cheque]
[to the following bank account: [*], Account Number [*].]
(c) Notwithstanding:
(i) satisfaction of all relevant conditions
precedent; or
(ii) any negotiations undertaken between the
Approved Seller and the Trustee prior to the
Trustee accepting the offer contained in
this Sale Notice,
the Trustee is not obliged to accept the offer contained
in this Sale Notice and no contract for the sale or
purchase of any Offered Receivable Rights will arise
unless and until the Trustee accepts the offer contained
in the Sale Notice in accordance with this clause.
(d) The offer contained in this Sale Notice may only be
accepted in relation to all the Offered Receivable
Rights.
(e) On the acceptance of the offer contained in this Sale
Notice, the Trustee shall:
(i) subject to the Master Trust Deed and any
relevant Series Notice, hold the beneficial
interest in the Offered Receivable Rights on
and from the Closing Date, free of any
set-off or counterclaim; and
(ii) not assume any obligation under the Offered
Receivable Rights.
4. CONSIDERATION
[(a) If the Trustee accepts the offer in this Sale Notice, the
Purchase Price shall be divided between the property
purchased as follows:
(i) the lesser of $100 or 5% of the Purchase
Price to that part of the Offered Receivable
Rights which is not part of the Offered
Receivable Interest; and
(ii) the balance to the Offered Receivable
Interest.] [Only for Mortgages]
[(b) On the payment of the Purchase Price, the Trustee shall
ensure that any Accrued Interest Adjustment (as defined
in the Series Notice) is made in accordance with the
Master Trust Deed and any relevant Series Notice.]
[(c) After the Closing Date, the Approved Seller will on the
next Payment Date pay to the Trustee, as an adjustment to
the Purchase Price, an amount equal to any Principal
Collections received by the Approved Seller in relation
to the
Page 137
Purchased Receivables from the close of business on the
Cut-Off Date to but excluding the Closing Date. Such
payment will be discharged by the Trust Manager or the
Servicer depositing such amount in the relevant
Collection Account.]
5. ACKNOWLEDGEMENT
The Approved Seller acknowledges, agrees and confirms to the Trustee
that:
(a) (Master Trust Deed binding on it) the Master Trust Deed
is a valid and binding obligation of the Approved Seller
enforceable in accordance with its terms;
(b) (repeat representations) the Approved Seller repeats the
representations and warranties made by it in clause 8.6
of the Master Trust Deed in so far as they apply to the
Offered Receivable Rights;
(c) (description of Receivables)
(i) a description of the Receivables and
Receivable Securities is in the attached
computer disk and hard copy; and
(ii) each Receivable Security included or
referred to in the Offered Receivable Rights
constitutes an Eligible Receivable Security;
(d) (no default) no Title Perfection Event is subsisting as
at the date of this Sale Notice nor, if the offer is
accepted, will there be any Title Perfection Event
subsisting at the date the offer is accepted or the date
the purchase price is paid nor will any Title Perfection
Event result from the offer evidenced by this Sale Notice
or the transfer of the Offered Receivable Rights;
(e) (Authorisations) all necessary Authorisations for the
offer evidenced by this Sale Notice and the transfer of
the Offered Receivable Rights have been taken, or as the
case may be, obtained.
[6. MEMORANDUM OF SALE OF OFFERED RECEIVABLE INTEREST
Accompanying this Sale Notice is a Memorandum of the Agreement (in
the form of annexure C to the Master Trust Deed) in relation to
Receivable Securities relating to Mortgaged Property in Queensland,
Western Australia and Tasmania, which the Approved Seller undertakes
it will, if the Trustee accepts the offer of sale in this Sale
Notice, execute and within 30 days lodge for stamping and then return
to the Trustee duly stamped.]
7. GOVERNING LAW
This Sale Notice is governed by the laws of New South Wales.
-----------------------------------------
Authorised Signatory of
[*]
Page 138
CONFORMED COPY
ANNEXURE B
SELLER ACCESSION CERTIFICATE
DEED dated ________________________ between:
1. [NAME OF APPROVED SELLER] (A.C.N. [*]) (the Approved Seller);
2. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472) of Level
9, 00 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx, 0000 as trustee of the
Series [*] WST Trust (the Trustee); and
3. THE MORTGAGE COMPANY PTY LIMITED (ACN 070 968 302) of Level 6, 000
Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx (the Trust Manager).
RECITALS
Under a Master Trust Deed (the Master Trust Deed) dated [*] 1997 between the
Trustee and The Mortgage Company Pty Limited, Trusts may be established to
purchase Receivables from the Approved Seller.
IT IS AGREED AS FOLLOWS
1. In this deed terms defined in the Master Trust Deed have the same meaning.
2. The Approved Seller shall as and from the date of this deed be an
Approved Seller for the purposes of the Master Trust Deed as if named
as a party to the Master Trust Deed in the capacity of an Approved
Seller. The Approved Xxxxxx agrees to comply with the Master Trust
Xxxx. All the terms and conditions of it shall bind the Approved
Seller accordingly, and it shall be entitled to all rights of an
Approved Seller under the Master Trust Deed.
3. The Approved Seller agrees to be a credit provider for the purposes
of regulation 75 of the Consumer Credit Code in relation to
Receivables disposed of by the Approved Seller.
4. This deed is governed by the laws of New South Wales.
5. Each attorney executing this deed states that he has no notice of the
revocation of his power of attorney.
SIGNED SEALED and DELIVERED )
on behalf of )
[*] LIMITED )
by its attorney )
in the presence of: ) --------------------------------
Signature
-------------------------------------- --------------------------------
Witness Print name
--------------------------------------
Print name
Page 139
TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of )
WESTPAC SECURITIES )
ADMINISTRATION LIMITED )
by its attorney )
in the presence of: )
--------------------------------
Signature
-------------------------------------- --------------------------------
Witness Print name
--------------------------------------
Print name
TRUST MANAGER
SIGNED SEALED and DELIVERED )
on behalf of )
THE MORTGAGE COMPANY PTY )
LIMITED by its attorney )
in the presence of: )
--------------------------------
Signature
-------------------------------------- --------------------------------
Witness Print name
--------------------------------------
Print name
Page 140
ANNEXURE C
MEMORANDUM OF AGREEMENT
AGREEMENT dated between:
1. [*] (ARBN [*]) incorporated in [*] (the Approved Seller), and
2. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472)
incorporated in New South Wales of Level 0, 00 Xxxx Xxxxxx, Xxxxxx,
Xxx Xxxxx Xxxxx, 0000 as trustee of the Series [*] WST Trust (the
Purchaser).
IT IS AGREED as follows.
The Approved Seller and the Trustee agree that the Approved Seller has sold to
the Trustee an equitable interest in the Approved Seller's right, title, benefit
and interest (present and future) in, to, under or derived from any Receivable
Security listed in the First Schedule and certain collections under those
Receivable Securities for the consideration specified in the Second Schedule.
FIRST SCHEDULE
(Receivable Securities)
(list all mortgages)
SECOND SCHEDULE
(Consideration)
The consideration payable by the Trustee for the sale of the Receivable
Securities was $*** and any further amounts as agreed between the parties.
---------------------------------------------------
Authorised signatory of the Approved Seller
---------------------------------------------------
Authorised signatory of the Trustee
Page 141
ANNEXURE D
SERIES NOTICE
SEE ANNEXURE E OF THE TRUST DEED
FOR DETAILS TO BE INCLUDED
SERIES [] WST TRUST
SERIES NOTICE
1. INTRODUCTION
This Series Notice is issued on [*] 1997 by The Mortgage Company Pty
Limited (ACN 070 968 302) of Level 6, 000 Xxxx Xxxxxx, Xxxxxx, Xxx
Xxxxx Xxxxx as manager (Trust Manager) under the Master Trust Deed
(as defined below). It is issued pursuant and subject to the Master
Trust Deed dated [*] 1997 (the Master Trust Deed) between (among
others) the Trust Manager and Westpac Securities Administration
Limited (ACN 000 049 472) of Level 0, 00 Xxxx Xxxxxx, Xxxxxx, Xxx
Xxxxx Xxxxx as trustee of the Series [] WST Trust (the Trustee).
Each party to this Series Notice agrees to be bound by the
Transaction Documents as amended by this Series Notice in the
capacity set out with respect to them in this Series Notice or the
Master Trust Deed.
[The Mortgage Company Pty Limited] (the Servicer) agrees to service
the Purchased Receivables and Purchased Receivable Securities in
accordance with the Servicing Agreement.
2. DIRECTION AND TRUST BACK
(a) A Trust Back, entitled Westpac [] Trust Back, is created
in relation to Other Secured Liabilities secured by the
Purchased Receivable Securities.
(b) The parties agree that the Trust will be a Trust for the
purposes of the Transaction Documents.
3. DEFINITIONS AND INTERPRETATION
3.1 Definitions
Unless otherwise defined in this Series Notice, words and phrases
defined in the Master Trust Deed have the same meaning where used in
this Series Notice.
In this Series Notice, and for the purposes of the definitions in the
Master Trust Deed, the following terms have the following meanings
unless the contrary intention appears. These definitions apply only
in relation to the Series [] WST Trust, and do not apply to any other
Trust (as defined in the Master Trust Deed).
[*]
3.2 Interpretation
Clause 1.2 of the Master Trust Deed is incorporated into this Series
Notice as if set out in full, except that any reference to deed is
replaced by a reference to Series Notice.
Page 142
3.3 Limitation of liability
(a) General
Clause 33 of the Master Trust Deed applies to the
obligations and liabilities of the Trustee and the Trust
Manager under this Series Notice.
(b) Liability of Trustee limited to its right of indemnity
(i) This Series Notice applies to the Trustee
only in its capacity as trustee of the Trust
and in no other capacity. A liability
arising under or in connection with this
Series Notice or the Trust can be enforced
against the Trustee only to the extent to
which it can be satisfied out of property of
the Trust out of which the Trustee is
actually indemnified for the liability. This
limitation of the Trustee's liability
applies despite any other provision of this
Series Notice and extends to all liabilities
and obligations of the Trustee in any way
connected with any representation, warranty,
conduct, omission, agreement or transaction
related to this Series Notice or the Trust.
(ii) The parties other than the Trustee may not
sue the Trustee personally or seek the
appointment of a liquidator, administrator,
receiver or similar person to the Trustee or
prove in any liquidation, administration or
arrangement of or affecting the Trustee.
(iii) The provisions of this clause 3.3 shall not
apply to any obligation or liability of the
Trustee to the extent that it is not
satisfied because under the Master Trust
Deed or the Series Notice or by operation of
law there is a reduction in the extent of
the Trustee's indemnification out of the
assets of the Trust, as a result of the
Trustee's fraud, negligence or breach of
trust.
(iv) It is acknowledged that the Trust Manager is
responsible under this agreement for
performing a variety of obligations relating
to the Trust. No act or omission of the
Trustee (including any related failure to
satisfy its obligations under this
agreement) will be considered fraud,
negligence or breach of trust of the Trustee
for the purpose of sub-paragraph (iii) to
the extent to which the act or omission was
caused or contributed to by any failure by
the Trust Manager or any other person (other
than a person who has been properly
appointed by the Trustee and for whom the
Trustee is responsible under this deed or
the relevant Transaction Documents) to
fulfil its obligations relating to the Trust
or by any other act or omission of the Trust
Manager or any other person (other than a
person who has been properly appointed by
the Trustee and for whom the Trustee is
responsible under this deed or the relevant
Transaction Documents).
(v) No attorney, agent, receiver or receiver and
manager appointed in accordance with this
agreement has authority to act on behalf of
the Trustee in a way which exposes the
Trustee to any personal liability and no act
or omission of any such person will be
considered fraud, negligence or breach of
trust of the Trustee for the purpose of
sub-paragraph (iii), if the Trustee has
exercised reasonable care in the selection
and supervision of such persons.
Page 143
4. NOTES
[*]
5. CASHFLOW ALLOCATION METHODOLOGY
[*]
6. MASTER TRUST DEED
6.1 Completion of details in relation to Master Trust Deed
(a) (Trust Manager fee)
[*]
(b) (Trustee fee)
[*]
(c) (Servicing fee)
[*]
6.2 Amendments to Master Trust Deed
The Master Trust Deed is amended for the purpose of the Series [] WST
Trust as follows:
[*]
7. TRANSFERS TO WAREHOUSE TRUST
[The Trustee may, from time to time, direct the Trustee to transfer a
Purchased Receivable to a Warehouse Trust. That transfer:
(a) must be in accordance with clause 7 of the Master Trust
Deed; and
(b) must be for a consideration equal to the Unpaid Balance
of that Receivable.
The Trustee must comply with that direction.]
8. APPLICATION OF THRESHOLD RATE
[*]
9. BENEFICIARY
[*]
10. TITLE PERFECTION EVENTS
[*]
Page 144
EXECUTED as a deed in Canberra.
Each attorney executing this deed states that he or she has no notice of
revocation or suspension of his or her power of attorney.
TRUSTEE
SIGNED SEALED and DELIVERED )
by WESTPAC SECURITIES )
ADMINISTRATION LIMITED in the )
presence of: )
--------------------------------
Signature
-------------------------------------- --------------------------------
Witness Print name
--------------------------------------
Print name
TRUST MANAGER/SERVICER
SIGNED SEALED and DELIVERED )
by THE MORTGAGE COMPANY )
PTY LIMITED in the presence of: )
--------------------------------
Signature
-------------------------------------- --------------------------------
Witness Print name
--------------------------------------
Print name
APPROVED SELLER
SIGNED SEALED and DELIVERED )
by WESTPAC BANKING CORPORATION )
in the presence of: )
--------------------------------
Signature
-------------------------------------- --------------------------------
Witness Print name
--------------------------------------
Print name
Page 145
SCHEDULE
An Eligible Receivable means a Loan which, as at the Cut-Off Date for that Loan:
[*]
Page 146
[Form to follow once finalised]
ANNEXURE E
SERIES NOTICE CHECKLIST
Clause 1.1 definitions:
Approved Bank
Authorised Investments
Carryover Charge Off
Closing Date
Collection Account
Collections
Coupon
Coupon Payment Date
Cut-Off Date
Dealer Agreement
Eligibility Criteria
Enforcement Expenses
Expense
Hedge Agreement
Information Memorandum
Initial Invested Amount
Invested Amount
Liquidity Facility Agreement
Maturity Date
Mortgage Insurer
Principal Entitlement
Principal Repayment Date
Record Date
Redraw Facility Agreement
Related Security
Page 3
Relevant Document
Servicer's Report - information and format
Stated Amount
Support Facility
Threshold Rate
Title Perfection Event
Transaction Document
Trust Manager's Report - information and format
Unpaid Balance
Warehouse Facility Agreement
Clause 3.1(b) - Beneficiary's unit(s)
Clause 3.5(e) - restrictions relating to Seller Note on sale proceeds
Clause 3.5(h) - cashflow allocation methodology
Clause 4.2 - investment recommendation
Clause 4.10(a) - segregation of Assets contrary to Trust Deed
Clause 5.1 - Borrowing contrary to Trust Deed
Clause 5.3 - direction as to Support Facility
Clause 6 - origination procedure
Clause 7.1 - details of acquisition by Warehouse Trust
Clause 7.2(a) - information required in a Warehouse Trust Direction
Clause 7.7 - transfers between Trusts
Clause 8.5(a)(iii) - other conditions precedent to sale
Clause 8.6(vii) - Approved Seller representations
Clause 8.7(a) - Approved Seller undertakings
Clause 8.9(a) - Title Perfection Events contrary to Trust Deed
Clause 8.9(d) - Clean Up Offer
Clause 8.10(a)(i) - accrued interest to Approved Seller, together with
relevant date
Page 4
Clause 8.10(a)(ii) - principal received by Approved Seller, together with
relevant date
Clause 9.1 - details of acquisition from Warehouse Trust
Clause 10.1 - entry in Register contrary to Trust Deed.
Clause 10.4 - paying interest or principal contrary to Trust Deed
Clause 10.5 - denomination if different from $100,000 minimum and
$100,000 increments
Clause 10.8 - any discrimination between Noteholders
Clause 11.1 - Seller Note
Clause 12.2 - if Beneficiary interest is not assignable
---
Clause 13.1(a) - period for Note Issuance Direction if not 3 Business
Days
Clause 13.1(b) - other conditions precedent to issue of Notes
Clause 13.2(a)(viii) - additional information in Note Issuance Direction
Clause 13.3 - information to be included: Clause 13.3(a) is
mandatory; clause 13.3(b) is optional
Clause 13.7 - Dealer Agreement
Clause 13.8(d) - rating specified
Clause 14.1 - restrictions on Note transfer
Clause 14.2(b) - minimum transfer amount
Clause 15.1 - timing of Note Acknowledgement
Clause 16.1(p) - additional information required in the Register
Clause 16.5 - periods for closing of Register
Clause 17.1 - override meeting provisions in Trust Deed
Clause 17.12(a) - other powers of Extraordinary Resolution
Clause 18.1(a) - additional provisions relating to Trust Manager
Clause 18.10 - publication by Reuters
Clause 18.16(b) and (c) - when drawings to be made under Support Facilities
Clause 18.20 (g) - calculate Threshold Rate
Clause 19 - Trust Manager's fee
Clause 22.8(a) - if Servicer is not Custodian
---
Clause 23.1 - Trustee's fee
Page 4
Clause 23.2 - reimbursement of Trustee's expenses
Clause 27.8 - deposits if contrary to Trust Deed
Clause 30.1 - applying income and capital of Trust
Clause 30.2(c) - distribution of Distributable Income
Clause 30.4 - manner in which shortfalls are to be borne by
Noteholders
Clause 33.18 - non-approved Seller nominated credit provider
