Exhibit 4.2
Series Supplement
EXHIBIT 4.2
[LETTERHEAD OF XXXXXXX XXX]
--------------------------------------------------------------------------------
Commonwealth Bank of Australia
ABN 48 123 123 124
The Servicer and a Seller
Homepath Pty Limited
ABN 35 081 986 530
A Seller
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
Manager
Perpetual Trustee Company Limited
ABN 42 000 001 007
Trustee
Series 2002-1G Medallion Trust
Series Supplement
[LETTERHEAD OF XXXXXXX XXX]
Lawyers
Levels 00-00 Xx.0 X'Xxxxxxx Xxxxxx Xxxxxx XXX 0000 Xxxxxxxxx
PO Box H3 Australia Square Sydney NSW 1215 DX 370 Sydney
Tel + 00 0 0000 0000 Fax + 00 0 0000 0000
Our ref - 801/784/21697903 Contact - Xxx Xxxxxxxx
Sydney o Melbourne o Brisbane o Perth o Canberra o Darwin
Liability is limited by the Solicitors Scheme under the Professional Standards
Act 1994 NSW
Table of Contents
1. Definitions and interpretation....................................................................... 1
1.1 Definitions.............................................................................. 1
1.2 Interpretation........................................................................... 34
1.3 Master Trust Deed Definitions............................................................ 36
1.4 Business Day Convention.................................................................. 36
1.5 Master Trust Deed Inconsistency.......................................................... 36
1.6 Exclusion of Master Trust Deed Definitions and Provisions................................ 36
1.7 Support Facilities....................................................................... 38
1.8 Security Trust Deed...................................................................... 39
1.9 Nominated Seller and Nominated Servicer.................................................. 39
1.10 Binding on Securityholders and the Residual Unitholder................................... 39
1.11 Relationship between Trustee and Securityholders......................................... 39
1.12 Incorporated Definitions and other Transaction Documents and provisions.................. 39
1.13 Indemnity from Homepath.................................................................. 39
2. The CBA Trust........................................................................................ 40
2.1 Constitution of CBA Trust................................................................ 40
2.2 Declaration of Trust for the CBA Trust................................................... 40
2.3 Name of the CBA Trust.................................................................... 40
2.4 Entitlement of Sellers to the CBA Trust.................................................. 40
2.5 Bare Trust............................................................................... 40
2.6 Duration of the CBA Trust................................................................ 40
2.7 Early Termination of the CBA Trust....................................................... 40
2.8 Dealing with CBA Trust Assets............................................................ 40
2.9 Proceeds................................................................................. 41
2.10 CBA Trust Assets Not Part of Assets of the Series Trust.................................. 41
2.11 Shared Securities........................................................................ 41
2.12 Trustee's Duties......................................................................... 41
2.13 Substitute Trustee....................................................................... 42
2.14 Transfer of the CBA Trust Assets to Sellers on termination of CBA Trust.................. 42
2.15 Seller Indemnity......................................................................... 42
2.16 Limitation of Liability.................................................................. 43
3. Unit in the Series Trust............................................................................. 43
3.1 Beneficial Interest Represented by a Single Unit......................................... 43
3.2 Initial Holder of the Residual Unit...................................................... 43
3.3 Registration of CBA as Initial Residual Unitholder....................................... 43
3.4 Form of Unit Certificate................................................................. 43
3.5 Form of Unit Transfer.................................................................... 43
3.6 Additional Capital Subscription.......................................................... 43
3.7 No Other Relationship.................................................................... 43
4. Assignment of Mortgage Loan Rights................................................................... 44
4.1 Approved Financial Assets of the Series Trust............................................ 44
4.2 Sale Notice.............................................................................. 44
4.3 Requirements of Sale Notice.............................................................. 44
4.4 Mortgage Loan Schedule................................................................... 44
4.5 Sale Notice Constitutes an Offer......................................................... 45
4.6 Sale Notice Revocable.................................................................... 45
4.7 Acceptance of Offer...................................................................... 45
4.8 Timing of Acceptance..................................................................... 45
4.9 Seller Not Obliged to Make, and Trustee Not Obliged to Accept,
i
Offer.................................................................................... 46
4.10 Can Only Accept all Mortgage Loan Rights in Loan Pool.................................... 46
4.11 Effect of Acceptance..................................................................... 46
4.12 Sale in Equity Only...................................................................... 46
4.13 Sale Not to Amount to Assumption of Obligations.......................................... 46
4.14 Future Advances.......................................................................... 47
4.15 Future Receivables....................................................................... 47
4.16 Power to Acquire Mortgage Loans in Arrears............................................... 47
4.17 Trustee Bound by Priority Agreements..................................................... 47
5. The Securities....................................................................................... 47
5.1 Securities divided into Classes.......................................................... 47
5.2 Form, constituent documents and denomination of the Securities........................... 47
5.3 Trustee must Issue the Notes............................................................. 48
5.4 Issue of Redraw Bonds.................................................................... 48
5.5 Initial Invested Amount of the Securities................................................ 48
5.6 Interest on the Securities............................................................... 48
5.7 Redemption of the Securities............................................................. 49
5.8 Interest on Overdue Interest on the Securities........................................... 49
5.9 Rounding of Payments on the Securities................................................... 50
5.10 Securities Rank Equally Except for Special Rights........................................ 50
5.11 Transfer of Securities................................................................... 50
6. Conditions precedent to acceptance of Sale Notice and issue of Notes................................. 50
6.1 General Conditions Precedent............................................................. 50
6.2 Other Conditions Precedent............................................................... 53
6.3 No Liability for Insufficient Moneys..................................................... 53
6.4 Manager's Certificate.................................................................... 53
7. Division of Mortgage Loan Rights between the CBA Trust and the Series Trust.......................... 54
7.1 CBA Trust Assets......................................................................... 54
7.2 Mortgages and First Layer of Collateral Securities....................................... 54
7.3 Treatment of Shared Securities........................................................... 55
7.4 Trustee's duties......................................................................... 55
7.5 Upon Repayment of Mortgage Loan Trustee Holds for CBA Trust.............................. 55
7.6 Application Where 2 Mortgage Loans....................................................... 56
7.7 Costs.................................................................................... 56
7.8 Alternative Structure.................................................................... 56
8. Determinations by the Manager........................................................................ 56
8.1 Applications and payments on Distribution Dates.......................................... 56
8.2 Insufficient principal to meet Seller Advances........................................... 57
8.3 Gross Income Shortfall................................................................... 57
8.4 Insufficient principal to meet Seller Advances and Xxxxxxx Xxxxxx Facility
Principal................................................................................ 57
8.5 Netting of Seller Advances and Standby Redraw Facility Advances.......................... 58
8.6 Cash Advance Deposit..................................................................... 58
8.7 Break Costs and Break Benefits........................................................... 58
8.8 Interest Rate Swap Provider Deposit...................................................... 59
9. Chargeoffs........................................................................................... 59
9.1 Allocation of Principal Chargeoffs....................................................... 59
9.2 Allocation of Principal Chargeoff Reimbursements......................................... 60
ii
9.3 Loss Recoveries.......................................................................... 60
10. Payments on Distribution Dates by Trustee............................................................ 61
10.1 Payment of Accrued Interest Adjustment on first Distribution Date........................ 61
10.2 Application of the Available Income Amount on each Distribution Date..................... 61
10.3 Application of the Available Principal Amount on each Distribution Date.................. 62
10.4 Payment of Interest on the Class A-1 Notes............................................... 63
10.5 Repayment of Principal on the Securities................................................. 63
10.6 Repayment of Principal on the Class A-1 Notes............................................ 64
10.7 Inability to Comply with Order of Priority............................................... 64
10.8 No Payment in respect of Obligations ranking Equally or after Class A-1
Notes if no payment made to Currency Swap Provider....................................... 64
10.9 Payments in respect of A$ Securities..................................................... 64
11. Net Tax Income of the Series Trust................................................................... 64
11.1 Net Tax Income of the Series Trust absolutely vested in the Residual
Unitholder............................................................................... 64
11.2 Excess Distribution...................................................................... 65
12. Early Termination of Swaps........................................................................... 65
12.1 Early Termination of a Swap.............................................................. 65
12.2 Servicer to Adjust Mortgage Interest Saver Accounts and Mortgage Rates if
Basis Swap Terminated.................................................................... 66
12.3 Determination of Threshold Rate.......................................................... 66
12.4 Trustee to set Mortgage Rate............................................................. 67
13. Representations and warranties regarding Mortgage Loans.............................................. 67
13.1 Seller's Representations and Warranties.................................................. 67
13.2 Trustee need not Test Warranties......................................................... 69
14. Breach of representations and warranties............................................................. 69
14.1 Manager or Seller Becomes Aware of Incorrect Representations or Warranties............... 69
14.2 If Trustee Becomes Aware of Incorrect Representations or Warranties...................... 69
14.3 Remedy of Defaults during Prescribed Period.............................................. 70
14.4 Holding for CBA Trust during Prescribed Period........................................... 70
14.5 Costs.................................................................................... 71
14.6 Payment.................................................................................. 71
14.7 Limitation on Rights of Trustee During Prescribed Period................................. 71
14.8 Limit of Seller's Liability for Mortgage Loans........................................... 71
14.9 CBA's Liability for Damages After Prescribed Period...................................... 71
14.10 Discharge of obligations................................................................. 72
14.11 Fraud.................................................................................... 72
14.12 Trustee's Reliance....................................................................... 72
15. Seller's general undertakings........................................................................ 72
15.1 General Undertakings..................................................................... 72
15.2 Seller not bound by Undertaking.......................................................... 73
15.3 Termination of Mortgage Interest Saver Accounts.......................................... 74
15.4 Gross Up for Mortgage Interest Saver Accounts............................................ 74
16. Servicing of Mortgage Loan Rights.................................................................... 74
16.1 Appointment of Servicer.................................................................. 74
iii
16.2 Obligation to Act as Servicer until Termination of Appointment........................... 74
16.3 General Servicing Obligation............................................................. 74
16.4 Power to Service......................................................................... 74
16.5 Exercise of Discretions.................................................................. 75
16.6 Servicer's Undertaking Regarding Mortgage Loan Rights.................................... 75
16.7 Interest Rates on Mortgage Loans......................................................... 77
16.8 Release or Substitution of Security...................................................... 77
16.9 Variation or Relaxation of Terms of Mortgage Loans....................................... 77
16.10 Release of Debt.......................................................................... 77
16.11 Xxxxxxx, Releases and Compromises........................................................ 78
16.12 Consent to subsequent Security Interests................................................. 78
16.13 Consent to Leases etc.................................................................... 78
16.14 Relief under Binding Provision or on Order of Competent Authority........................ 78
16.15 Litigation............................................................................... 79
16.16 Enforcement Action....................................................................... 79
16.17 Incurring Additional Expenses............................................................ 80
16.18 Mortgage Insurance and Insurance Policy Claims........................................... 80
16.19 Insurance Policy Proceeds................................................................ 80
16.20 Seller Advances.......................................................................... 80
16.21 Restrictions on Seller Advances.......................................................... 81
16.22 Servicer's Actions Binding on Trustee.................................................... 81
16.23 Servicer to Pay its Own Expenses......................................................... 82
16.24 Servicer to transmit information to Manager.............................................. 82
16.25 Proposed amendments to Servicing Guidelines.............................................. 82
16.26 Further Servicer Undertakings............................................................ 82
16.27 Servicer holding Assets of the Series Trust.............................................. 85
16.28 Servicer's Power to Delegate............................................................. 85
16.29 Servicer May Replace or Suspend Attorneys................................................ 85
16.30 Servicer Remains Liable.................................................................. 85
17. Servicer's responsibilities and indemnities.......................................................... 85
17.1 Not Liable Where Action Unlawful......................................................... 85
17.2 Limitation on Servicer's Responsibility.................................................. 86
17.3 Servicer's Liability..................................................................... 86
18. Servicer Default and retirement of Servicer.......................................................... 87
18.1 Servicer Default......................................................................... 87
18.2 Retirement of Servicer................................................................... 88
18.3 Notice to Securityholders................................................................ 88
18.4 Removal of Servicer...................................................................... 88
18.5 Retirement of Servicer................................................................... 88
18.6 When appointment of Substitute Servicer effective........................................ 88
18.7 Trustee to Act as Servicer............................................................... 88
18.8 Trustee May Give Discharges.............................................................. 89
18.9 Servicer May Accept Payment.............................................................. 89
18.10 Servicer and Manager to Provide Full Co-operation........................................ 89
18.11 Indemnity................................................................................ 89
18.12 No Liability for Servicer Default........................................................ 89
19. Remuneration of Manager, Trustee, Servicer and Security Trustee...................................... 89
19.1 Management Fee........................................................................... 89
19.2 Arranging Fee............................................................................ 89
19.3 Trustee's Fee............................................................................ 90
19.4 Servicer's Fee........................................................................... 90
19.5 Security Trustee's Fees and Expenses..................................................... 90
19.6 Goods and Services Tax.................................................................. 90
iv
19.7 Adjustments to fees..................................................................... 90
20. Manager Default..................................................................................... 92
21. Representations and warranties...................................................................... 93
21.1 General Representations and Warranties by the Seller and the Servicer................... 93
21.2 Repetition of Representations and Warranties............................................ 94
22. Collections Account and investment.................................................................. 94
22.1 Collections Account..................................................................... 94
22.2 Initial Collections Account............................................................. 94
22.3 Replacement of Collections Account...................................................... 95
22.4 Deposits into Collections Account within 5 Business Days................................ 95
22.5 While Collections Account with Commonwealth Bank........................................ 95
22.6 Withdrawals from Collections Accounts................................................... 96
22.7 All Transactions through Collections Account............................................ 96
22.8 Title to and Control of Collections Account............................................. 96
22.9 No Deductions by Servicer............................................................... 96
22.10 Prepayments under Liquidity Facility.................................................... 96
22.11 Servicer May Retain Income from Collections............................................. 97
22.12 Bank Account Taxes...................................................................... 97
22.13 Opening of additional accounts where Collections Account is with an
Eligible Depository..................................................................... 97
23. Clean-up and extinguishment......................................................................... 98
23.1 Notification of Trigger Event by Manager to CBA......................................... 98
23.2 Response by CBA......................................................................... 98
23.3 Determination of Clean-Up Settlement Date............................................... 98
23.4 Clean-Up Settlement Price............................................................... 98
23.5 Payment of Clean-Up Settlement Price.................................................... 99
23.6 Effect of Payment of Clean-Up Settlement Price.......................................... 99
23.7 Costs................................................................................... 99
23.8 Alternative Structure................................................................... 100
23.9 Alternative Funding Arrangements to Permit Redemption................................... 100
24. Perfection of Title................................................................................. 100
24.1 Perfection of Title Event............................................................... 100
24.2 Declaration of Perfection of Title Event................................................ 101
24.3 Perfection of Title..................................................................... 101
24.4 Trustee to lodge Caveats................................................................ 101
24.5 Trustee to hold Legal Title or lodge Caveats............................................ 101
24.6 Powers of Attorney...................................................................... 102
24.7 Other Loans............................................................................. 102
24.8 Indemnity............................................................................... 102
25. Servicer as Custodian of the Mortgage Loan documents................................................ 102
25.1 Servicer as Custodian................................................................... 102
25.2 Application of the Balance of this Clause............................................... 102
25.3 Servicer's Covenants as Custodian....................................................... 102
25.4 Servicer's Update of Computer Diskette.................................................. 103
25.5 Servicer's Indemnity in respect of Incorrect Information on Computer
Diskette................................................................................ 103
25.6 Document Custody Audit Report........................................................... 103
25.7 Details of Document Custody Audit Report................................................ 103
25.8 Document Custody Audit Report........................................................... 104
25.9 Timing of Document Custody Audit Reports................................................ 105
v
25.10 Adverse Document Custody Audit Report................................................... 105
25.11 Document Transfer Event................................................................. 105
25.12 Failure to comply with clause 25.11..................................................... 105
25.13 Emergency Document transfer............................................................. 106
25.14 Exceptions to Transfer.................................................................. 106
25.15 Indemnity by the Servicer............................................................... 107
25.16 Trustee to co-operate with Servicer..................................................... 107
25.17 Specific performance.................................................................... 107
25.18 Trustee's Duty While Holding Mortgage Documents......................................... 107
25.19 Reappointment of Servicer as Custodian.................................................. 107
26. Termination of the Series Trust..................................................................... 107
26.1 Potential Termination Events............................................................ 107
26.2 Determination of Termination Payment Date............................................... 108
26.3 Realisation of Assets................................................................... 108
26.4 Conditions of Sale During 180 days...................................................... 109
26.5 Right of Refusal to Seller.............................................................. 109
26.6 Sale at Lower Price..................................................................... 109
26.7 Conditions of Sale After 180 days....................................................... 110
26.8 Further Conditions of Sale After 180 days............................................... 110
26.9 Procedures Pending Winding-Up........................................................... 110
26.10 Costs on Winding-up of the Series Trust................................................. 111
26.11 Calculation of Final Distributions...................................................... 111
26.12 Final Distributions..................................................................... 111
26.13 Insufficient Funds...................................................................... 111
26.14 Excess Funds............................................................................ 111
26.15 Distribution to Residual Unitholder in Specie........................................... 111
26.16 Terms of In Specie Distributions........................................................ 112
27. General............................................................................................. 112
27.1 Required Credit Rating.................................................................. 112
27.2 Distribution of information............................................................. 112
27.3 Electronic Reporting of Pool Performance Data........................................... 112
27.4 Claim for Damages....................................................................... 112
27.5 Allocation of Damages................................................................... 113
27.6 Additional Expenses..................................................................... 113
27.7 Form of Transfers and Certificates...................................................... 113
27.8 Incur Costs Without Approval............................................................ 113
27.9 Adverse Effect.......................................................................... 113
27.10 Notification to Rating Agencies of Redemption of Securities............................. 114
27.11 Further Support Facilities.............................................................. 114
27.12 Supplementary Trustee Powers............................................................ 114
27.13 Trustee's power to delegate............................................................. 115
28. Limitation of Trustee's duties...................................................................... 115
28.1 Trustee May Rely........................................................................ 115
28.2 No Duty to Investigate.................................................................. 115
28.3 Trustee not Liable...................................................................... 115
29. Trustee's limitation of liability................................................................... 116
29.1 Limitation on Trustee's liability....................................................... 116
29.2 Claims against Trustee.................................................................. 116
29.3 Breach of trust......................................................................... 116
29.4 Acts or Omissions....................................................................... 116
29.5 No obligation........................................................................... 116
29.6 CBA Trust............................................................................... 116
vi
30. Consumer Credit Code................................................................................ 117
30.1 Breach of Consumer Credit Code.......................................................... 117
30.2 Right of Indemnity - Consumer Credit Code............................................... 117
31. Notices............................................................................................. 118
31.1 Method of Delivery...................................................................... 118
31.2 Deemed Receipt.......................................................................... 118
31.3 Notice to Investors..................................................................... 118
32. Confidentiality..................................................................................... 119
32.1 General Restriction..................................................................... 119
32.2 Exceptions.............................................................................. 119
33. Miscellaneous....................................................................................... 119
33.1 Amendments.............................................................................. 119
33.2 Governing Law........................................................................... 120
33.3 Jurisdiction............................................................................ 120
33.4 Notify Rating Agencies.................................................................. 120
33.5 Severability of Provisions.............................................................. 120
33.6 Counterparts............................................................................ 120
33.7 No Revocation of Power of Attorney...................................................... 120
33.8 Certifications.......................................................................... 120
33.9 Payments................................................................................ 121
33.10 Waiver.................................................................................. 121
33.11 Entire Understanding.................................................................... 121
33.12 Survival of Indemnities................................................................. 121
33.13 Successors and Assigns.................................................................. 121
33.14 Moratorium Legislation.................................................................. 121
33.15 Privacy................................................................................. 121
vii
Schedule 1 Form of Sale Notice..................................................................................123
Schedule 2 Forms of Power of Attorney (other than for Queensland and Western Australia).........................124
Schedule 3 Form of Power of Attorney (For Queensland)...........................................................129
Schedule 4 Form of Power of Attorney (for Western Australia)....................................................133
Schedule 5 Eligibility Criteria.................................................................................137
Schedule 6 Form of Security Certificate A$ Securities..........................................................138
Schedule 7 Form of Security Transfer............................................................................140
Schedule 8 Quarterly Certificate................................................................................144
Schedule 9 Form of Residual Unit Certificate....................................................................154
Schedule 10 Stepdown Percentage.................................................................................156
Schedule 11 - Part A Form of Custodian Power of Attorney (for States other than Queensland and
Western Australia)..................................................................................159
Schedule 11 - Part B Form of Custodian Power of Attorney (for Queensland).......................................163
Schedule 11 - Part C Form of Custodian Power of Attorney (for Western Australia)................................167
viii
This Series Supplement made at Sydney on 7 February 2002
Parties Commonwealth Bank of Australia, ABN 48 123 123 124, of Level 1,
48 Xxxxxx Place, Sydney (hereinafter included in the expressions
the "Sellers" and the "Servicer")
Homepath Pty Limited, ABN 35 081 986 530, of Level 6, 00 Xxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxx (hereinafter included in the expression
the "Sellers")
Securitisation Advisory Services Pty. Limited, ABN 88 064 133
946, of Level 6, 00 Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx (hereinafter
included in the expression the "Manager")
Perpetual Trustee Company Limited, ABN 42 000 001 007, of Level
0, 00 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx (hereinafter included in
the expression the "Trustee")
Recitals
A. This Deed relates to the Series 2002-1G Medallion Trust.
B. In accordance with the Master Trust Deed, this Deed includes, amongst other
things, the terms upon which:
(i) the Trustee may purchase Mortgage Loans from each of the Sellers;
(ii) the Trustee may issue Securities to fund such purchase; and
(iii) the Trustee appoints the Servicer to service such Mortgage Loans (if
purchased by the Trustee).
C. This Deed also provides for the establishment of the CBA Trust.
D. The Trustee has agreed to act as trustee of the CBA Trust on the terms and
conditions of this Deed and the Master Trust Deed.
The parties agree
--------------------------------------------------------------------------------
1. Definitions and interpretation
1.1 Definitions
In this Deed, unless the contrary intention appears:
"A$" and "Australian dollars" means the lawful currency for the time being
of the Commonwealth of Australia.
"A$ Class A-1 Interest Amount" in relation to a Distribution Date and the
Accrual Period ending on that Distribution Date means an amount calculated
as follows:
CA1IA = ACS1IA x CA1IR x N
----
365
where:
CA1IA = the A$ Class A-1 Interest Amount for the Accrual Period;
1
ACA1IA = the A$ Equivalent of the aggregate Invested Amounts of the Class A-1
Notes at the close of business on the first day of the Accrual
Period;
CA1IR = the A$ Class A-1 Interest Rate for the Accrual Period; and
N = the number of days in the Accrual Period.
"A$ Class A-1 Interest Payment" in relation to a Distribution Date and the
Accrual Period ending on that Distribution Date means the amount paid or
available to be paid (as the case may be) on that Distribution Date
pursuant to clause 10.2(k)(i) from the Available Income Amount in respect
of that Distribution Date.
"A$ Class A-1 Interest Rate" in relation to an Accrual Period means the
aggregate of:
(a) the Bank Bill Rate for that Accrual Period; and
(b) the A$ Class A-1 Margin.
"A$ Class A-1 Margin" has the same meaning as the "Spread" specified in
paragraph 5.2 of the confirmation for each Class A-1 Currency Swap.
"A$ Class A-1 Principal Amount" in relation to a Distribution Date means
the amount referred to in clause 10.5(b)(i) in relation to that
Distribution Date.
"A$ Class A-1 Unpaid Interest Amount" in relation to a Distribution Date
means the aggregate of:
(a) any A$ Class A-1 Interest Amounts remaining unpaid pursuant to clause
10.2(k) from prior Distribution Dates; and
(b) interest on the A$ Class A-1 Interest Amounts referred to in paragraph
(a) at the A$ Class A-1 Interest Rate applicable from time to time
from the date that that A$ Class A-1 Interest Amount first became
payable under clause 10.2(k) until (but not including) the date
actually paid under clause 10.2(k).
"A$ Equivalent" in relation to an amount which is calculated, determined or
expressed in US$ or which includes a component determined or expressed in
US$ means that US$ amount or US$ component (as the case may be) multiplied
by the A$ Exchange Rate.
"A$ Exchange Rate" means the "A$ Exchange Rate" specified in paragraph 7 of
the confirmation for each Class A-1 Currency Swap.
"A$ Security" means, as the context requires, a Class A-2 Note, a Class B
Note, a Redraw Bond or all of the foregoing.
"Accrual Period" means initially the period commencing on (and including)
the Closing Date and ending on (but excluding) the first Distribution Date
and, thereafter, is each successive period starting on (and including) a
Distribution Date and ending on (but excluding) the next Distribution Date.
The final Accrual Period ends on (but excludes) the Termination Payment
Date and commences on (and includes) the Distribution Date immediately
preceding the Termination Payment Date.
"Accrued Interest Adjustment" in relation to a Mortgage Loan means the
amount of interest accrued on that Mortgage Loan for, and any fees in
relation to the Mortgage Loan falling due for payment during, the period
commencing on (and including) the Monthly Anniversary Date for that
Mortgage Loan immediately prior to the Cut-Off Date and ending on (but
excluding)
2
the Closing Date and any accrued interest and fees due but unpaid in
relation to the Mortgage Loan prior to that Monthly Anniversary Date.
"Adverse Document Custody Audit Report" means a Document Custody Audit
Report in which the overall custodial performance of the Servicer is graded
D in accordance with the grading system referred to in clause 25.8.
"Adverse Effect" means any event which (determined by the Manager unless
otherwise expressly specified in this Deed or any other Transaction
Document) materially and adversely affects the amount of any payment due to
be made to any Securityholder or materially and adversely affects the
timing of such a payment.
"Agency Agreement" means the Agency Agreement to be dated on or about the
Closing Date and made between the Trustee, the Manager, The Bank of New
York, New York Branch (as the initial US Dollar Note Trustee, Principal
Paying Agent, Agent Bank and US Dollar Note Registrar) and The Bank of New
York, London Branch (as the initial additional Paying Agent).
"Agent Bank" has the same meaning as in the Agency Agreement.
"Arranging Fee" means the fee payable to the Manager on each Distribution
Date calculated in accordance with clause 19.2.
"Available Income Amount" in relation to a Determination Date and the
immediately following Distribution Date means the aggregate of:
(a) the Preliminary Income Amount as at that Determination Date;
(b) any Liquidity Facility Advance due to be made to meet a Gross Income
Shortfall on that Distribution Date;
(c) any Principal Draw due to be made on that Distribution Date; and
(d) any other amounts received by the Trustee from a Support Facility
Provider under a Support Facility on or prior to that Distribution
Date which the Manager determines should be included in the Available
Income Amount (other than any amounts already included in paragraphs
(a), (b) or (c)).
"Available Principal Amount" in relation to a Determination Date and the
immediately following Distribution Date means an amount calculated as
follows:
APA = PPA + PDR
where:
APA = the Available Principal Amount as at that Determination Date;
PPA = the Preliminary Principal Amount as at that Determination Date; and
PDR = the Principal Draw Reimbursement as at that Determination Date.
"Average Delinquent Percentage" in relation to a Determination Date means
the amount (expressed as a percentage) calculated as follows:
ADP= SDP
---
12
where:
3
ADP = the Average Delinquent Percentage; and
SDP = the sum of the Delinquent Percentages for the 12 Collection Periods
immediately preceding or ending (as the case may be) on that
Determination Date,
provided that if on that Determination Date there has not yet been 12
Collection Periods the Average Delinquent Percentage in relation to that
Determination Date means the amount (expressed as a percentage) calculated
as follows:
ADP= SDP
---
N
where:
ADP = the Average Delinquent Percentage;
SDP = the sum of the Delinquent Percentages for all of the Collection
Periods preceding or ending (as the case may be) on that
Determination Date; and
N = the number of Collection Periods preceding that Determination Date.
"Bank Bill Rate" in relation to an Accrual Period means the rate appearing
at approximately 10.00 am Sydney time on the Rate Set Date for that Accrual
Period on the Reuters Screen page "BBSW" as being the average of the mean
buying and selling rates appearing on that page for a bill of exchange
having a tenor of three months. If:
(a) on the first day of an Accrual Period fewer than 4 banks are quoted on
the Reuters Screen page "BBSW"; or
(b) for any other reason the rate for that day cannot be determined in
accordance with the foregoing procedures, then the "Bank Bill Rate"
means such rate as is specified by the Manager having regard to
comparable indices then available. Notwithstanding the foregoing, the
Bank Xxxx Xxxx for the initial Accrual Period will be determined by
straight line interpolation between the Bank Xxxx Xxxx determined as
above for a bill of exchange having a tenor of 2 months and the Bank
Xxxx Xxxx determined as above for a bill of exchange having a tenor of
3 months.
"Basis Swap" has the same meaning as in the Interest Rate Swap Agreement.
"Binding Provision" means any provision of the Code of Banking Practice
released by the Australian Bankers' Association on 3 November 1993, any
other code or arrangement binding on a Seller or the Servicer and any laws
applicable to banks or other lenders in the business of making retail home
loans.
"Borrower" in relation to a Mortgage Loan means the person or persons to
whom a loan or other financial accommodation has been provided under the
corresponding Mortgage Loan and includes, where the context requires, the
mortgagor under the corresponding Mortgage.
"Break Benefits" in relation to a Determination Date means the total break
benefits paid by or on behalf of the Trustee during the Collection Period
ending on that Determination Date to a Borrower in relation to a Mortgage
Loan which is then part of the Assets of the Series Trust arising from the
early termination of that Mortgage Loan or the early termination of a fixed
interest rate period under that Mortgage Loan.
"Break Costs" in relation to a Determination Date means the total break
costs, or amounts in respect of break costs, received by or on behalf of
the Trustee during the Collection Period
4
ending on that Determination Date from a Borrower, GEMI, GEMICO, PMI or any
other person in relation to a Mortgage Loan which is then part of the
Assets of the Series Trust (or was immediately prior to its Liquidation
Date or the date that it was assigned under a Mortgage Insurance Policy, an
Asset of the Series Trust) arising from the early termination of that
Mortgage Loan or the early termination of a fixed interest rate period
under that Mortgage Loan.
"Business Day" means any day on which banks are open for business in
Sydney, New York City and London, other than a Saturday, a Sunday or a
public holiday in Sydney, New York City or London.
"Call Date" has the same meaning as in the US Dollar Note Conditions.
"Cash Advance Deposit" has the same meaning as in the Liquidity Facility
Agreement.
"Caveat" in relation to a Mortgage forming part of the Assets of the Series
Trust or in relation to a Shared Security means a land titles office caveat
in registrable form which, upon registration, is effective to protect the
Trustee's interest as equitable assignee of the relevant Seller's interest
in that Mortgage or, in the case of a Shared Security, is effective to
protect that Seller's interest as beneficiary of the CBA Trust in that
Shared Security.
"Caveat and Transfer Details" in relation to each Mortgage forming part of
the Assets of the Series Trust means such details as may be required by the
relevant land titles office in order to lodge and obtain registration of
Caveat and/or Mortgage Transfers.
"CBA" means Commonwealth Bank of Australia, ABN 48 123 123 124.
"CBA Trust" means each of the trusts constituted in favour of the Sellers
pursuant to clause 2.1 and all references to "CBA Trust" shall mean each or
both such trusts (as the context may require).
"CBA Trust Assets" means all assets and property, real and personal
(including choses in action and other rights), tangible and intangible,
present or future, held by the Trustee as trustee of the CBA Trust from
time to time and, in relation to a Seller, means:
(a) the $100 paid to the Trustee on behalf of that Seller pursuant to
clause 2.1;
(b) each CBA Trust Asset assigned by that Seller to the Trustee;
(c) any proceeds of the foregoing which are CBA Trust Assets; and
(d) any other CBA Trust Asset determined by the Manager, and notified to
the Trustee, to be a CBA Trust Asset in relation to that Seller.
"Certificate of Title" in relation to a Mortgaged Property means the
certificate of title or other documents evidencing title to that Mortgaged
Property (including, if applicable, the documents forming any abstract of
that title) or where the certificate of title or other documents have been
cancelled due to the computerisation of the register, any original
registration confirmation, notification or statement which the relevant
Seller has in its files.
"Charge" has the same meaning as in the Security Trust Deed.
"Class A-1 Chargeoff Percentage" in relation to a Determination Date means
the amount (expressed as a percentage) calculated as follows:
CA1CP = CA1SA
---------------------------
CA1SA + CA2SA + RBSA + SRFP
where:
5
CA1CP = the Class A-1 Chargeoff Percentage in relation to that Determination Date;
CA1SA = the A$ Equivalent of the aggregate Stated Amounts of the Class A-1 Notes on
that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that Determination
Date;
RBSA = the aggregate Stated Amount of the Redraw Bonds on that Determination Date;
and
SRFP = the Standby Redraw Facility Principal on that Determination Date.
"Class A-1 Currency Swap" means the transactions defined as such in each
Currency Swap Agreement.
"Class A-1 Interest Amount" has the same meaning as in the US Dollar Note
Conditions.
"Class A-1 Interest Payment" in relation to a Distribution Date means each
US$ Class A-1 Interest Payment (as that term is defined in the relevant
Currency Swap Agreement) paid or payable (as the case may be) by the
relevant Currency Swap Provider to or at the direction of the Trustee on
that Distribution Date in accordance with the relevant Class A-1 Currency
Swap.
"Class A-1 Noteholder" has the same meaning as in the US Dollar Note
Conditions.
"Class A-1 Notes" has the same meaning as in the US Dollar Note Conditions.
"Class A-1 Percentage" in relation to a Determination Date means the amount
(expressed as a percentage) calculated as follows:
CA1CP = CA1SA
-------------
CA1SA + CA2SA
where:
CA1P = the Class A-1 Percentage;
CA1SA = the A$ Equivalent of the aggregate Stated Amount of the Class A-1 Notes on
that Determination Date; and
CA2SA = the aggregate Stated Amount of the Class A-2 Notes on that Determination Date.
"Class A-1 Unpaid Interest Amount" has the same meaning as in the US Dollar
Note Conditions.
"Class A-2 Chargeoff Percentage" in relation to a Determination Date means
the amount (expressed as a percentage) calculated as follows:
CA2CP = CA2SA
---------------------------
CA1SA + CA2SA + RBSA + SRFP
6
where:
CA2CP = the Class A-2 Chargeoff Percentage in relation to that Determination Date;
CA1SA = the A$ Equivalent of the aggregate Stated Amounts of the Class A-1 Notes on
that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that Determination
Date;
RBSA = the aggregate Stated Amount of the Redraw Bonds on that Determination Date;
and
SRFP = the Standby Redraw Facility Principal on that Determination Date.
"Class A-2 Note" means a Class A-2 Tranche 1 Note or a Class A-2 Tranche 2
Note.
"Class A-2 Noteholder" means a Class A-2 Tranche 1 Noteholder or a Class
A-2 Tranche 2 Noteholder.
"Class A-2 Percentage" in relation to a Distribution Date means 100% less
the Class A-1 Percentage for the Determination Date immediately preceding
that Distribution Date.
"Class A-2 Tranche 1 Note" means a debt security issued by the Trustee, in
its capacity as trustee of the Series Trust, pursuant to the provisions of
this Deed and the Dealer Agreement and forming part of the Class of
Securities described in clause 5.1(e) as Class A-2 Tranche 1 Notes.
"Class A-2 Tranche 1 Noteholder" means at any time the person recorded at
that time in the Register as the holder of a Class A-2 Tranche 1 Note.
"Class A-2 Tranche 2 Note" means a debt security issued by the Trustee, in
its capacity as trustee of the Series Trust, pursuant to the provisions of
this Deed and the Dealer Agreement and forming part of the Class of
Securities described in clause 5.1(f) as Class A-2 Tranche 2 Notes.
"Class A-2 Tranche 2 Noteholder" means at any time the person recorded at
that time in the Register as the holder of a Class A-2 Tranche 2 Note.
"Class A Note" means, as the context requires, a Class A-1 Note, a Class
A-2 Note or both.
"Class A Noteholder" means, as the context requires, a Class A-1
Noteholder, a Class A-2 Noteholder or both.
"Class A Percentage" in relation to a Determination Date means the amount
(expressed as a percentage) calculated as follows:
CAP = SAA
---
NSA
where:
CAP = the Class A Percentage;
SAA = the aggregate of the A$ Equivalent of the Stated Amounts for the Class
A-1 Notes and the Stated Amounts for the Class A-2 Notes on that
Determination Date; and
7
NSA = the aggregate of the A$ Equivalent of the Stated Amounts for the Class
A-1 Notes and the Stated Amounts for the Class A-2 Notes and the Class
B Notes, on that Determination Date.
"Class A Principal Distribution" in relation to a Distribution Date means
the amount calculated as follows:
CAPD = CASPA + CAUPA + (SDP x CBUPA)
where:
CAPD = the Class A Principal Distribution;
CASPA = the Class A Scheduled Principal Amount on the immediately preceding
Determination Date;
CAUPA = the Class A Unscheduled Principal Amount on the immediately preceding
Determination Date;
SDP = the Stepdown Percentage on the immediately preceding Determination Date; and
CBUPA = the Class B Unscheduled Principal Amount
on the immediately preceding Determination
Date.
"Class A Scheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
CASPA = CAP x NSPA
where:
CASPA = the Class A Scheduled Principal Amount;
CAP = the Class A Percentage on that Determination Date; and
NSPA = the Net Scheduled Principal Amount on that Determination Date.
"Class A Unscheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
CAUPA = CAP x NUPA
where:
CAUPA = the Class A Unscheduled Principal Amount;
CAP = the Class A Percentage on that Determination Date; and
NUPA = the Net Unscheduled Principal Amount on that Determination Date.
"Class B Available Support" in relation to a Determination Date means an
amount (expressed as a percentage) calculated as follows:
CBAS = SAB
--------
ASA+SRFL
where:
CBAS = the Class B Available Support;
8
SAB = the aggregate Stated Amount for the Class B Notes on that Determination Date;
ASA = the aggregate of the A$ Equivalent of the Stated Amounts of the Class A-1
Notes, and the Stated Amounts for the A$ Securities, on that Determination
Date; and
SRFL = the Standby Redraw Facility Limit on that Determination Date.
"Class B Note" means a debt security issued by the Trustee, in its capacity
as trustee of the Series Trust, pursuant to the provisions of this Deed and
the Dealer Agreement and forming part of the Class of Securities described
in clause 5.1(c) as Class B Notes.
"Class B Noteholder" means at any time the person recorded at that time in
the Register as the holder of a Class B Note.
"Class B Percentage" in relation to a Determination Date means 100% less
the Class A Percentage for that Determination Date.
"Class B Required Support" in relation to a Determination Date means the
amount (expressed as a percentage) calculated as follows:
CBRS = IIA
----
AIIA
where:
CBRS = the Class B Required Support;
IIA = the aggregate Initial Invested Amount for the Class B Notes; and
AIIA = the aggregate of the A$ Equivalent of the
Initial Invested Amounts of the Class A-1
Notes, and the Initial Invested Amounts for
the A$ Securities, on that Determination
Date.
"Class B Unscheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
CBUPA = CBP x NUPA
where:
CBUPA = the Class B Unscheduled Principal Amount;
CBP = the Class B Percentage on that Determination Date; and
NUPA = the Net Unscheduled Principal Amount on that Determination Date.
"Clean-up Settlement Date" means the Distribution Date determined in
accordance with clause 23.3.
"Clean-up Settlement Price" means the amount calculated in accordance with
clause 23.4.
"Closing Date" means the date specified by a Seller to the Trustee and the
Manager in a Sale Notice (if any) to be the Closing Date (or such other
date as the Manager may notify the Trustee and that Seller in accordance
with that Sale Notice).
"Collateral Security" means in respect of a Mortgage Loan:
9
(a) any:
(i) Security Interest; or
(ii) guarantee, indemnity or other assurance,
which secures or otherwise provides for the repayment or payment of
the Mortgage Loan or an Other Loan but does not include the Mortgage
relating to the Mortgage Loan; or
(b) any Mortgage Insurance Policy or Insurance Policy in respect of the
Mortgage relating to the Mortgage Loan or the Land secured by the
Mortgage relating to the Mortgage Loan.
A Collateral Security referred to in paragraph (a) may be given under the
same document that evidences the Mortgage Loan or the Other Loan to which
that Collateral Security relates.
"Collection Period" means:
(a) with respect to the first Determination Date, the period commencing on
(and including) the Cut-Off Date and ending on (but excluding) that
Determination Date; and
(b) with respect to each subsequent Determination Date, the period
commencing on and including the previous Determination Date and ending
on (but excluding) that Determination Date.
"Collections" means Finance Charge Collections, Other Income Amounts,
Mortgage Insurance Income Proceeds, Principal Collections and Other
Principal Amounts.
"Collections Account" means the account established and maintained pursuant
to clause 22.1 or any new account established as the Collections Account
under clause 22.3.
"Competent Authority" means a court, tribunal, authority, ombudsman or
other entity whose decisions, findings, orders, judgment or determinations
(howsoever reached) are binding on a Seller or the Servicer.
"Consideration" means the aggregate Mortgage Loan Principal of the Mortgage
Loans assigned to the Trustee as at the Cut-Off Date.
"Consumer Credit Code" means, as applicable, the Consumer Credit Code set
out in the Appendix to the Consumer Credit (Queensland) Act 1995 as in
force or applied as a law of any jurisdiction in Australia as amended by
the Consumer Credit (Queensland) Amendment Act 1998, the provisions of the
Code set out in the Appendix to the Consumer Credit (Western Australia) Act
1996 or the provisions of the Code set out in the Appendix to the Consumer
Credit (Tasmania) Act 1996.
"Corporations Act" means the Corporations Act 2001 (Cth).
"Currency Swap Agreement" means each of two ISDA Master Agreements between
the initial Currency Swap Providers, the Trustee and the Manager, together
with a schedule and a credit support annex and a confirmation relating
respectively thereto and includes any substitute agreement in place of an
existing Currency Swap Agreement.
"Currency Swap Provider" means initially each of Deutsche Bank AG, New York
Branch and CBA and includes any other person that subsequently enters into
a Currency Swap Agreement with the Trustee and the Manager.
"Custodian" means CBA.
10
"Cut-Off Date" means the date specified by a Seller as such in a Sale
Notice (or such other date as the Manager may notify the Trustee and that
Seller in accordance with that Sale Notice).
"Dealer Agreement" means the Dealer Agreement dated on or about the date of
this Deed between the Trustee, the Manager, CBA (as lead manager) and the
other institutions named therein (as managers) and pursuant to which the
lead manager and such other managers agree to subscribe for or procure
subscriptions for the Class A-2 Notes and Class B Notes.
"Deed of Appointment and Indemnity" means the Deed of Appointment and
Indemnity dated on or about the date of this Deed between the Trustee and
CBA pursuant to which CBA, for itself and Homepath, agrees to indemnify the
Trustee on the terms and subject to the conditions set out in that deed.
"Delinquent Percentage" in relation to a Collection Period means the amount
(expressed as a percentage) calculated as follows:
DP = DMLP
----
AMLP
where:
DP = the Delinquent Percentage;
DMLP = the aggregate Mortgage Loan Principal on the last day of that Collection
Period in relation to Mortgage Loans which are then part of the Assets of
the Series Trust and in relation to which a payment due from the
Borrower has been in arrears (on that day)by more than 60 days; and
AMLP = the aggregate Mortgage Loan Principal on the last day of that Collection
Period in relation to Mortgage Loans which are then part of the Assets of
the Series Trust.
"Depository" means each organisation registered as a clearing agency
pursuant to section 17A of the United States Securities Exchange Act of
1934 that agrees with the Manager and the Trustee to hold Class A-1 Notes
(directly or through a nominee) and initially means The Depository Trust
Company.
"Determination Date" means the first day of the calendar month in which
each Distribution Date occurs. The first Determination Date is 1 April
2002.
"Distribution Date" means the 17th day of each April, July, October and
January (or if such a day is not a Business Day, the next Business Day).
The first Distribution Date is 17 April 2002 (or if that day is not a
Business Day, the next Business Day).
"Document Custody Audit Report" means a report by the Auditor of the Series
Trust in accordance with clause 25. "Document Transfer Event" means each of
the events referred to in clause 25.11.
"Eligible Depository" means a financial institution which has assigned to
it short term credit ratings equal to or higher than (as the case may be)
A-1 by S&P, P-1 by Xxxxx'x and F1 by Fitch and includes the Servicer to the
extent that:
(a) it is rated in this manner; or
(b) the Rating Agencies confirm that the rating of the Servicer at a lower
level will not result in a reduction, qualification or withdrawal of
the ratings given by the Rating Agencies to the Securities.
11
"Eligible Deposit Account" means an account with an Eligible Depository.
"Eligibility Criteria" has the meaning set out in Schedule 5.
"Excess Distribution" in relation to a Distribution Date means the amount
(if any) payable to the Residual Unitholder on that Distribution Date
pursuant to clause 10.2(p).
"Expenses" means all amounts relating to the Series Trust referred to in
clause 16.11 of the Master Trust Deed and includes (without limiting the
generality of the foregoing and without double counting) the aggregate of:
(a) any reasonable Property Protection Expenses or Mortgage Enforcement
Expenses incurred by the Servicer in connection with the management,
maintenance or sale of any Mortgaged Property or in the enforcement of
any Mortgage Documents;
(b) the cost of registering any Caveats or Mortgage Transfers in relation
to Mortgages forming part of the Assets of the Series Trust, to the
extent not reimbursed by a Seller in accordance with this Deed;
(c) any reasonable fees, charges and moneys payable to any consultant
appointed by the Trustee, the Manager or the Servicer and all
disbursements, expenses, duties and outgoings properly chargeable in
respect of such consultant;
(d) subject to clause 8.7, any Break Benefits;
(e) the Security Trustee's Expenses; and
(f) any amount received by the Trustee or the Servicer on or after the
Cut-Off Date in respect of a Mortgage Loan forming part of the Assets
of the Series Trust, related Mortgage or related First Layer of
Collateral Security which the Servicer, pursuant to a decision,
finding, order, judgment or determination of a Competent Authority or
pursuant to a Binding Provision or based on advice from its legal
advisers (either internal or external), has repaid to the liquidator
or the trustee-in-bankruptcy (as the case may be) of a Borrower or the
grantor of a First Layer of Collateral Security as a result of the
insolvency or bankruptcy (as the case may be) of the Borrower or the
grantor of the First Layer of Collateral Security,
but does not include any amount referred to in clauses 10.2(a)-(g)
(inclusive) and (i)-(p) (inclusive), 10.3, 10.4, 10.5 or 10.6.
"Fair Market Value" in relation to a Mortgage Loan means the fair market
value for that Mortgage Loan determined by CBA's external auditors and
which value reflects the performing or non-performing status (as determined
by the Servicer) of that Mortgage Loan and any benefit which the intended
purchaser will have in respect of that Mortgage Loan under any relevant
Support Facility.
"Finance Charge Collections" in relation to a Collection Period means the
aggregate of the following amounts (without double counting) received by or
on behalf of the Trustee during that Collection Period in respect of the
Mortgage Loans then forming part of the Assets of the Series Trust:
(a) all amounts received under or in respect of the Mortgage Loans
(including Liquidation Proceeds) in respect of interest, fees,
Government Charges or other amounts due under the Mortgage Loans (less
reversals made during the period in respect of interest or other
charges in relation to any of the accounts where the original debit
entry (or part thereof) was in error) but excluding principal and any
insurance premiums and related charges payable to the relevant Seller;
12
(b) all amounts of interest received under or in respect of the Mortgage
Loans and the Mortgage Loan Rights to the extent that the obligations
to pay such amounts are discharged by the exercise during that
Collection Period of a right of set-off or right to combine accounts;
and
(c) subject to clause 8.7, any Break Costs,
but does not include any Mortgage Insurance Income Proceeds or Other Income
Amounts.
"First Layer of Collateral Securities" in relation to a Mortgage Loan
means:
(a) the Collateral Securities (other than any Mortgage Insurance Policy
relating to that Mortgage Loan or any related Insurance Policies) from
time to time appearing in the records of the relevant Seller in
relation to that Mortgage Loan to be intended as security for that
Mortgage Loan;
(b) any Mortgage Insurance Policy relating to that Mortgage Loan; and
(c) any related Insurance Policies,
notwithstanding that by their terms the Collateral Securities (other than
the Mortgage Insurance Policies or any Insurance Policies) may also secure
other liabilities to that Seller.
"Fitch" means Fitch Australia Pty Limited, ABN 93 081 339 184, and its
successors and assigns.
"Fixed Rate Swap" has the same meaning as in the Interest Rate Swap
Agreement.
"GEMI" means GE Mortgage Insurance Pty Ltd, ABN 61 071 466 334.
"GEMICO" means GE Capital Mortgage Insurance Corporation (Australia) Pty
Ltd, ABN 52 081 488 440.
"Government Charges" means any amount debited to the accounts established
in the Servicer's records for the Mortgage Loans representing financial
institutions duty, bank accounts debits tax or similar tax or duty imposed
by any Governmental Agency.
"Gross Income Shortfall" in relation to a Determination Date means the
amount (if any) by which the Required Income Amount for that Determination
Date exceeds the Preliminary Income Amount for that Determination Date.
"Gross Unscheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
GUPA = OPA + PCOR + RBA + SRFA + PDR
where:
GUPA = the Gross Unscheduled Principal Amount;
OPA = the Other Principal Amounts on that Determination Date;
PCOR = the Principal Chargeoff Reimbursement on that Determination Date;
RBA = the Redraw Bond Amount on that Determination Date;
SRFA = the Standby Redraw Facility Advance to be made on the immediately following
Distribution Date; and
PDR = the Principal Draw Reimbursement as at that Determination Date.
13
"GST" means the goods and services tax imposed pursuant to the GST Act.
"GST Act" means A New Tax System (Goods and Services Tax) Act, 1999.
"Hedge Provider" means an Interest Rate Swap Provider or a Currency Swap
Provider.
"Homepath" means Homepath Pty Limited, ABN 35 081 986 530.
"Income Loss" in relation to a Mortgage Loan, means on the Liquidation
Date for that Mortgage Loan, the aggregate of:
(a) all interest payable in respect of that Mortgage Loan up to and
including the Liquidation Date calculated at the Mortgage Rate and
otherwise in accordance with the Mortgage Documents, whether or not
such interest has been capitalised;
(b) all fees and other charges of any type whatsoever payable in respect
of that Mortgage Loan up to and including the Liquidation Date in
accordance with the Mortgage Documents, whether or not such fees and
other charges have been capitalised; and
(c) any Property Protection Expenses and Mortgage Enforcement Expenses
incurred in connection with that Mortgage Loan up to and including the
Liquidation Date,
less:
(d) any Liquidation Proceeds received in respect of that Mortgage Loan up
to and including the Liquidation Date in respect of that Mortgage Loan
provided that Liquidation Proceeds will only be included in this
paragraph (d) to the extent that the resulting Income Loss is zero or
a positive number.
"Initial Invested Amount" in relation to a Class A-1 Note has the meaning
given to it in clause 5.5(a) and in relation to an A$ Security has the
meaning given to it in clause 5.5(b).
"Insurance Policy" means any insurance policy (whether present or future)
under which the improvements on the Land the subject of a Mortgage or a
Collateral Security are insured against destruction or damage by events
which include fire.
"Insurance Proceeds" means the proceeds paid by an insurer pursuant to any
Insurance Policy.
"Interest Amount" in relation to an A$ Security and an Accrual Period means
the aggregate interest accrued on that A$ Security during that Accrual
Period pursuant to clause 5.6(b).
"Interest Rate" in relation to an A$ Security and an Accrual Period means
the aggregate of:
(a) the Bank Bill Rate for that Accrual Period; and
(b) the Issue Margin for that A$ Security.
"Interest Rate Basis Cap" has the same meaning as in the Interest Rate Swap
Agreement.
"Interest Rate Swap Agreement" means an agreement in the form of an amended
ISDA Master Agreement dated on or about the date of this Deed between the
Trustee, the Manager and the initial Interest Rate Swap Provider which
provides for each of:
(a) the Fixed Rate Swap;
(b) the Basis Swap; and
(c) the Interest Rate Basis Cap,
14
and includes any substitute agreement in place of an existing Interest Rate
Swap Agreement.
"Interest Rate Swap Provider" means initially CBA and includes any other
person that subsequently enters into an Interest Rate Swap Agreement with
the Trustee and the Manager.
"Interest Rate Swap Provider Deposit" means any amount deposited by the
Interest Rate Swap Provider in the Collections Account or any other account
held by the Trustee as trustee of the Series Trust by way of prepayment of
the Interest Rate Swap Provider's payment obligations under the Interest
Rate Swap Agreement.
"Invested Amount" in relation to:
(a) a Class A-1 Note at any time has the same meaning as in the US Dollar
Note Conditions; and
(b) an A$ Security at any time means the Initial Invested Amount of that
A$ Security less the aggregate of all amounts previously paid in
relation to that A$ Security on account of principal pursuant to
clause 10.5.
"Issue Date" in relation to a Security means the day on which the Security
is issued by the Trustee.
"Issue Margin" in relation to:
(a) a Class A-2 Tranche 1 Note, a Class A-2 Tranche 2 Note and a Class B
Note means, subject to the following:
(i) in the case of a Class A-2 Tranche 1 Note or Class A-2 Tranche 2
Note, for the period from, and including, the Closing Date to
(but excluding) the Call Date and, in the case of a Class B Note,
to (but excluding) the date on which the Class B Note ceases to
accrue interest in accordance with clause 5.6(b), the margins
expressed as a percentage per annum applying in relation,
respectively, to each Class A-2 Tranche 1 Note, each Class A-2
Tranche 2 Note and each Class B Note determined in accordance
with the Dealer Agreement and advised by the Manager to the
Trustee; and
(ii) in respect of a Class A-2 Note only, for the period from, and
including, the Call Date to (but excluding) the date on which the
Class A-2 Note ceases to accrue interest in accordance with
clause 5.6(b), double the margin referred to in paragraph (i) in
relation to that Class A-2 Note,
provided that if on or after the Call Date the Trustee, at the
direction of the Manager, proposes to exercise its option to redeem
the Securities at their Stated Amount in accordance with Condition 7.3
of the US Dollar Note Conditions on a Distribution Date but is unable
to do so because, following a meeting of Securityholders convened
under the provisions of the Security Trust Deed by the Manager for
this purpose, the Securityholders have not approved by an
Extraordinary Resolution the redemption of the Securities at their
Stated Amount, then the Issue Margin in relation to each Class A-2
Note from, and including that Distribution Date to, but excluding, the
date on which the Class A-2 Note ceases to accrue interest in
accordance with clause 5.6(b) will be the margin in relation to the
Class A-2 Notes referred to in sub-paragraph (a)(i) above; and
(b) a Redraw Bond means the margin expressed as a percentage per annum
applying to the Redraw Bond determined in accordance with a Dealer
Agreement (as defined in the Master Trust Deed) in relation to those
Redraw Bonds and advised by the Manager to the Trustee.
15
"Land" means:
(a) land (including tenements and hereditaments corporeal and incorporeal
and every estate and interest in it whether vested or contingent,
freehold or Crown leasehold, the term of which lease is expressed to
expire not earlier than 5 years after the maturity of the relevant
Mortgage, and whether at law or in equity) wherever situated and
including any fixtures to land; and
(b) any parcel and any lot, common property and land comprising a parcel
within the meaning of the Strata Titles Act 1973 (New South Wales) or
the Community Land Development Act, 1989 (New South Wales) or any
equivalent legislation in any other Australian jurisdiction.
"Liquidated Mortgage Loan" means a Mortgage Loan with respect to which a
Material Default has occurred and with respect to which the Servicer has
determined that all Liquidation Proceeds likely to be recoverable have been
recovered, having regard to:
(a) any enforcement of the relevant Mortgage Documents;
(b) any sale of the relevant Mortgaged Property;
(c) any proceeds paid on the compulsory acquisition of the relevant
Mortgaged Property by any Governmental Agency;
(d) any Insurance Proceeds paid or payable under any relevant Insurance
Policy;
(e) any payments received from any relevant Borrower; and
(f) such other matters as the Servicer reasonably determines to be
relevant.
"Liquidation Date" in relation to a Mortgage Loan means the date on which
such Mortgage Loan becomes a Liquidated Mortgage Loan.
"Liquidation Proceeds" in relation to a Mortgage Loan means the amount
received by or on behalf of the Trustee in connection with the liquidation
of such Mortgage Loan including, without limitation:
(a) proceeds arising from the enforcement of the relevant Mortgage and
sale of the relevant Mortgaged Property;
(b) proceeds arising from the enforcement of the relevant Mortgage
Documents;
(c) Insurance Proceeds under any relevant Insurance Policy; and
(d) proceeds arising from any resumption or compulsory acquisition of the
relevant Mortgaged Property by any Governmental Agency,
but does not include:
(e) any amount required pursuant to the terms of any relevant Mortgage
Document or any law to be paid to the Borrower, including any person
having an interest in the Mortgaged Property as a mortgagee;
(f) if the Trustee is a party to a Fixed Rate Swap, any Break Costs;
(g) any Mortgage Insurance Income Proceeds; and
(h) any Mortgage Insurance Principal Proceeds.
16
"Liquidity Facility" means a liquidity facility made available by a
Liquidity Facility Provider to the Trustee pursuant to the Liquidity
Facility Agreement.
"Liquidity Facility Advance" in relation to a Distribution Date means the
amount to be advanced to the Trustee on that Distribution Date under the
Liquidity Facility.
"Liquidity Facility Agreement" means the Liquidity Facility Agreement dated
on or about the date of this Deed between the Trustee, the Manager and the
initial Liquidity Facility Provider and includes any substitute liquidity
facility agreement entered into by the Trustee as trustee of the Series
Trust in place of an existing Liquidity Facility Agreement.
"Liquidity Facility Commitment Fee" means in relation to a Determination
Date and the immediately following Distribution Date, the commitment fee
payable to the Liquidity Facility Provider on that Distribution Date
pursuant to the Liquidity Facility Agreement.
"Liquidity Facility Interest" in relation to a Distribution Date means the
interest due on that Distribution Date pursuant to the terms of a Liquidity
Facility Agreement.
"Liquidity Facility Principal" in relation to a Determination Date and the
immediately following Distribution Date means the aggregate of all
Liquidity Facility Advances outstanding under the Liquidity Facility
Agreement at that Determination Date.
"Liquidity Facility Provider" means initially CBA and each other person who
may from time to time provide a Liquidity Facility.
"Loan Agreement" means, with respect to a Mortgage Loan, any agreement,
schedule, terms and conditions, letter, application, approval or other
document (other than the relevant Mortgage) relating to the provision of
financial accommodation by the relevant Seller to the Borrower in
connection with that Mortgage Loan.
"Loan Files" in relation to a Mortgage Loan means such books, records,
paper and electronic files (whether originals or copies) relating to that
Mortgage Loan (other than the Mortgage Documents) which the Servicer has in
its custody.
"Loan to Value Ratio" in relation to a Mortgage Loan means the amount
(expressed as a percentage) calculated as follows:
L
-
V
where:
L = the amount of that Mortgage Loan outstanding as at the date of
determination or if at the date of determination that Mortgage Loan has
not been made, the amount of the then proposed Mortgage Loan; and
V = the aggregate value of the Land subject to any Mortgage recorded as securing
that Mortgage Loan, as determined in accordance with the then
Servicing Standards.
"Loss Recovery" in relation to a Liquidated Mortgage Loan means all amounts
received by or on behalf of the Trustee in respect of that Liquidated
Mortgage Loan after the relevant Liquidation Date.
"Management Fee" means the fee payable to the Manager on each Distribution
Date in accordance with clause 19.1.
"Manager" means Securitisation Advisory Services Pty. Limited, ABN 88 064
133 946 or if Securitisation Advisory Services Pty. Limited retires or is
removed as Manager of the Series
17
Trusts (as defined in the Master Trust Deed), any then Substitute Manager
and includes the Trustee when acting as the Manager of the Series Trusts
(as defined in the Master Trust Deed) in accordance with the terms of the
Master Trust Deed.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Manager and the Trustee, as amended.
"Material Default" in relation to a Mortgage Loan means:
(a) a failure by the Borrower (as recognised by the Servicer's system) to
pay on the due date any amount due pursuant to the corresponding Loan
Agreement (including any amount not previously paid which remains
outstanding) where the failure continues, without remedy, for a period
of 60 days from the due date for the payment of such amount under the
relevant Loan Agreement; or
(b) an event of default, howsoever described, (other than an event of
default referred to in paragraph (a)) occurs under any relevant
Mortgage Document where the event of default continues unremedied for
60 days (or such shorter period as the Servicer may determine is
appropriate in relation to a specific event of default) unless the
Servicer reasonably determines that such event of default is of a
minor or technical nature and will not result in an Adverse Effect.
"Monthly Anniversary Date" in relation to a Mortgage Loan means the date on
which interest is debited to the Borrower's Mortgage Loan account by the
Servicer pursuant to the relevant Loan Agreement.
"Moody's" means Xxxxx'x Investors Service Inc. and its successors and
assigns.
"Mortgage" in relation to a Mortgage Loan means each registered mortgage
over Land situated in any State or Territory of Australia and appearing on
the relevant Seller's records as securing, amongst other things, the
repayment of that Mortgage Loan and the payment of interest and all other
moneys in respect of that Mortgage Loan notwithstanding that by its terms
the mortgage may secure other liabilities to that Seller. If, at any time
after the date of the corresponding Sale Notice, a mortgage is substituted,
or added as security, for an existing Mortgage, then with effect from the
date of such addition or substitution the definition of "Mortgage" will
mean the substituted mortgage or include the additional mortgage, as the
case may be.
"Mortgage Documents" in relation to a Mortgage Loan means:
(a) the Loan Agreement (if other than the Mortgage) relating to that
Mortgage Loan;
(b) the original or duplicate Mortgage documents in relation to that
Mortgage Loan (including any document evidencing any substituted or
additional Mortgage);
(c) the Certificate of Title or other indicia of title (if any) in respect
of the Land the subject of the Mortgage in relation to that Mortgage
Loan;
(d) the original or duplicate of the First Layer of Collateral Securities
documents (other than the Insurance Policies) in relation to that
Mortgage Loan;
(e) any Insurance Policy (or certificate of currency for the Insurance
Policy) held by the relevant Seller in respect of the Mortgage or the
First Layer of Collateral Securities in relation to that Mortgage
Loan;
(f) any deed of priority or its equivalent in writing entered into in
connection with the Mortgage or the First Layer of Collateral
Securities in relation to that Mortgage Loan;
18
(g) all other documents required to evidence the relevant Seller's or the
Trustee's interest in the above Land, the above Mortgage and the above
First Layer of Collateral Securities; and
(h) any amendment or replacement of or to any of the foregoing such
documents which is entered into, and under which rights arise, whether
before or after the Cut-Off Date.
"Mortgage Enforcement Expenses" means all costs and expenses properly
incurred by the Servicer, a Seller or the Trustee (other than their
respective internal administrative costs) in connection with the
enforcement of any Mortgage Loan forming part of the Assets of the Series
Trust, the related Mortgage or the related First Layer of Collateral
Securities or the recovery of any amounts owing under the Mortgage Loan
including, without limitation:
(a) legal costs and disbursements (including those of in-house counsel)
charged at the usual commercial rates of the relevant legal services
provider;
(b) costs in connection with the entering into of possession or the sale
of any property secured by any related Mortgage or First Layer of
Collateral Securities and any real estate or auctioneer's fees and
expenses; and
(c) any Tax in connection with the sale of the relevant Mortgaged
Property,
provided that Mortgage Enforcement Expenses will not include Property
Protection Expenses or Restoration Expenses.
"Mortgage Insurance Income Proceeds" in relation to a Determination Date
means all amounts received by the Trustee pursuant to any Mortgage
Insurance Policy in relation to any Mortgage Loan then forming part of the
Assets of the Series Trust which the Manager determines should be accounted
for on that Determination Date in respect of an Income Loss.
"Mortgage Insurance Policy" means:
(a) the PMI Mortgage Insurance Policy; and
(b) any primary mortgage insurance policy granted by GEMI and/or GEMICO in
force in respect of a Mortgage Loan, an Other Loan, a Mortgage or a
Collateral Security which forms part of the Assets of the Series
Trust.
"Mortgage Insurance Principal Proceeds" in relation to a Determination Date
means all amounts received by the Trustee pursuant to any Mortgage
Insurance Policy in relation to any Mortgage Loan then forming part of the
Assets of the Series Trust which the Manager determines should be accounted
for on that Determination Date in respect of a Principal Loss.
"Mortgage Interest Saver Account" means a deposit account maintained by a
Borrower with CBA under which interest that would otherwise be earned in
respect of the account is off-set (to the extent thereof) against interest
that would otherwise be payable on a Mortgage Loan provided by CBA to the
Borrower.
"Mortgage Loan" means each mortgage loan assigned or to be assigned (as the
case may be) to the Trustee and referred to in a Sale Notice (if issued),
and in relation to a Seller, means a Mortgage Loan assigned to the Trustee
by that Seller.
"Mortgage Loan Principal" at any time in relation to a Mortgage Loan means
the principal outstanding at that time in respect of that Mortgage Loan.
"Mortgage Loan Rights" means each of the items (together with all rights,
title and interest in each of those items) referred to in clause 4.5
assigned, or which may be assigned, as the case
19
may be, in accordance with this Deed to the Trustee as trustee of the
Series Trust or the CBA Trust.
"Mortgage Loan System" means the electronic and manual reporting database
and record keeping system used by the Servicer to monitor Mortgage Loans,
as updated and amended from time to time.
"Mortgage Rate" in relation to a Mortgage Loan means the rate of interest
payable on the corresponding Mortgage Loan Principal, as such rate may be
varied from time to time in accordance with the relevant Mortgage Documents
or any laws.
"Mortgage Receivables" in relation to a Mortgage Loan means all moneys,
present and future, actual or contingent, owing at any time in respect of
or in connection with that Mortgage Loan under the corresponding Mortgage
Documents, including all principal, interest, reimbursable costs and
expenses and any other amounts incurred by or payable to the relevant
Seller (including any payments made by that Seller on behalf of the
Borrower in relation to that Mortgage Loan) irrespective of whether:
(a) such amounts become due and payable before or after the Cut-Off Date;
and
(b) such amounts relate to advances made or other financial accommodation
provided by that Seller to the Borrower before or after the Cut-Off
Date.
"Mortgage Transfer" in relation to a Mortgage means a duly executed land
titles office transfer which, upon registration, is effective to transfer
the legal title to the Mortgage to the Trustee.
"Mortgaged Property" in relation to a Mortgage means the Land and all other
property mortgaged under that Mortgage.
"Net Break Payment" in relation to a Determination Date means the amount
calculated as follows:
NBP = BC - BB
where:
NBP = the Net Break Payment;
BC = the Break Costs in relation to that Determination Date; and
BB = the Break Benefits in relation to that Determination Date,
provided that there will only be a Net Break Payment if the result of the
above calculation is greater than zero.
"Net Break Receipt" in relation to a Determination Date means the amount
calculated as follows:
NBR = BB - BC
where:
NBR = the Net Break Receipt;
BB = the Break Benefits in relation to that Determination Date; and
BC = the Break Costs in relation to that Determination Date,
20
provided that there will only be a Net Break Receipt if the result of the
above calculation is greater than zero.
"Net Income Shortfall" in relation to a Determination Date means the Gross
Income Shortfall on that Determination Date less any Liquidity Facility
Advance to be made on the immediately following Distribution Date.
"Net Scheduled Principal Amount" in relation to a Determination Date means
the amount calculated as follows:
NSPA = PC - NUPD
where:
NSPA = the Net Scheduled Principal Amount;
PC = the Principal Collections for the Collection Period ending on that
Determination Date; and
NUPD = the Net Unscheduled Principal Deduction for that Determination Date,
provided that there will only be a Net Scheduled Principal Amount if the
result of the above calculation is greater than zero.
"Net Unscheduled Principal Amount" in relation to a Determination Date
means the amount calculated as follows:
NUPA = GUPA - SA - SRFP - RBD - PD
where:
NUPA = the Net Unscheduled Principal Amount;
GUPA = the Gross Unscheduled Principal Amount on that Determination Date;
SA = the Seller Advances outstanding on that Determination Date;
SRFP = the Standby Redraw Facility Principal on that Determination Date;
RBD = the amount (if any) to be paid with respect to the Redraw Bonds pursuant to
clause 10.5(a) on the immediately following Distribution Date; and
PD = the Principal Draw (if any) on that Determination Date,
provided that there will only be a Net Unscheduled Principal Amount if the
result of the above calculation is greater than zero.
"Net Unscheduled Principal Deduction" in relation to a Determination Date
means the amount calculated as follows:
NUPD = SA + SRFP + RBD + PD - GUPA
where:
NUPD = the Net Unscheduled Principal Deduction;
GUPA = the Gross Unscheduled Principal Amount on that Determination Date;
SA = the Seller Advances outstanding on that Determination Date;
21
SRFP = the Standby Redraw Facility Principal on that Determination Date;
RBD = the amount (if any) to be paid with respect to the Redraw Bonds pursuant to
clause 10.5(a) on the following immediately Distribution Date; and
PD = the Principal Draw (if any) on that Determination Date,
provided that there will only be a Net Unscheduled Principal Deduction if
the result of the above calculation is greater than zero.
"Note" means, as the context requires, a Class A Note, a Class B Note or
both.
"Noteholder" means, as the context requires, a Class A-1 Noteholder, a
Class A-2 Noteholder, a Class B Noteholder or any combination of the
foregoing.
"Other Income Amounts" in respect of a Determination Date and a Collection
Period ending on that Determination Date means the aggregate of:
(a) any amounts received by the Trustee during the Collection Period
pursuant to clauses 14 and 16 which represent amounts in respect of
accrued but unpaid interest and fees on the Mortgage Loans;
(b) any amounts received by the Trustee during the Collection Period
pursuant to clause 26.3 which represent amounts in respect of interest
and fees on the Mortgage Loans;
(c) any damages received by the Trustee in the Collection Period (other
than pursuant to clauses 14 and 16) and allocated by the Manager as
Other Income Amounts in accordance with clause 27.5;
(d) subject to clause 22.12, interest and other investment income earned
and received on moneys standing to the credit of the Collections
Account during the Collection Period (other than interest earned on
the Collections Account during the Collection Period in respect of the
Cash Advance Deposit as calculated in accordance with clause 8.6 or
the Interest Rate Swap Provider Deposit as calculated in accordance
with clause 8.8) and any amounts representing interest paid by the
Servicer pursuant to clause 22.5 in respect of that Collection Period;
(e) interest and other investment income earned and received on Authorised
Short-Term Investments during the Collection Period (other than
interest attributable to the Interest Rate Swap Provider Deposit
calculated in accordance with clause 8.8);
(f) subject to clause 9.3, any other receipts in the nature of income (as
determined by the Manager) which have been received by the
Determination Date in respect of the Collection Period; and
(g) any amount of input tax credits (as defined in the GST Act) received
by the Trustee in the Collection Period in respect of the Series
Trust,
in each case which have not previously been applied in accordance with this
Deed.
"Other Loans" in relation to a Mortgage Loan means all loans, credit and
financial accommodation of whatever nature (other than that Mortgage Loan)
the payment or repayment of which is secured by a Mortgage, or by a
Collateral Security, which also secures that Mortgage Loan or another Other
Loan in relation to that Mortgage Loan.
"Other Principal Amounts" in relation to a Determination Date and the
Collection Period ending on that Determination Date means the aggregate of:
22
(a) any Mortgage Insurance Principal Proceeds in respect of that
Determination Date;
(b) the aggregate Liquidation Proceeds in respect of the Mortgage Loans
received during that Collection Period other than Liquidation Proceeds
included in Finance Charge Collections for that Collection Period;
(c) the Principal Prepayments with respect to that Collection Period;
(d) any amounts received by the Trustee during that Collection Period
pursuant to clauses 14 and 16 which represent amounts in respect of
principal on the Mortgage Loans;
(e) any amounts received by the Trustee during that Collection Period
pursuant to clause 26.3 which represent amounts in respect of
principal on the Mortgage Loans;
(f) any damages received by the Trustee during that Collection Period
(other than pursuant to clauses 14 and 16) and allocated by the
Manager as Other Principal Amounts in accordance with clause 27.5;
(g) in the case of the first Determination Date, the amount (if any) by
which the Subscription Proceeds exceed the Consideration;
(h) any amount remaining unpaid on the immediately previous Distribution
Date as a result of the application of clause 5.9 in respect of
principal; and
(i) any other receipts in the nature of principal (as determined by the
Manager) which have been received by that Determination Date in
respect of that Collection Period,
in each case which have not previously been applied in accordance with this
Deed.
"Paying Agent" has the same meaning as in the Agency Agreement.
"Penalty Payment" means:
(a) the amount of any liability (including, without limitation, any civil
or criminal penalty) which the Trustee is liable for under the
Consumer Credit Code;
(b) any other liability payable by the Trustee, or legal costs or other
expenses payable or incurred by the Trustee, in relation to such
liability;
(c) any amount which the Trustee agrees to pay (with the consent of the
Servicer) to a debtor or other person in settlement of any application
for an order under Part 6 of the Consumer Credit Code; and
(d) any legal costs or other costs and expenses payable or incurred by the
Trustee in relation to that application,
to the extent to which a person can be indemnified for that liability,
money or amount under the Consumer Credit Code.
"Perfection of Title Event" means each event referred to in clause 24.1.
"Personal Information" has the same meaning as in the Privacy Act.
"PMI" means PMI Mortgage Insurance Ltd, ABN 70 000 000 000.
"PMI Mortgage Insurance Policy" means the policy issued by PMI in relation
to some of the Mortgage Loans from time to time forming part of the Assets
of the Series Trust pursuant to the Lenders' Mortgage Insurance Provisions
dated on or about the date of this Deed between PMI, the Trustee and the
Sellers.
23
"Pool Factor" in relation to a Security at any given time means the amount
(expressed as a percentage to 7 decimal places) calculated as follows:
PF = A
-
B
where:
PF = the Pool Factor in relation to that Security;
A = the Stated Amount for that Security as at that time; and
B = the Initial Invested Amount for that Security.
"Pool Performance Data" means performance data in respect of the Securities
on a Determination Date consisting of prepayment rates, arrears data and
default data in respect of Mortgage Loans then forming part of the Assets
of the Series Trust, the Pool Factor at the last Determination Date and the
Pool Factor on the present Determination Date, the principal outstanding on
the Securities, the Interest Rates in respect of the A$ Securities, the
Class A-1 Interest Rate (as defined in the US Dollar Note Conditions) for
the Class A-1 Notes and such other information as the Manager may consider
necessary from time to time.
"Potential Termination Event" means:
(a) as a result of the introduction, imposition or variation of any law it
is unlawful for the Trustee, and would also be unlawful for any new
Trustee, to carry out any of its obligations under this Deed, the
Master Trust Deed (in so far as it relates to the Series Trust), the
US Dollar Note Trust Deed, the Class A-1 Notes or the Security Trust
Deed; or
(b) this Deed, the Master Trust Deed (in so far as it relates to the
Series Trust) the US Dollar Note Trust Deed, the Class A-1 Notes or
the Security Trust Deed is or has become void, illegal, unenforceable
or of limited force and effect.
"Powers of Attorney" means the powers of attorney referred to in clause
6.1(n).
"Preliminary Income Amount" in relation to a Determination Date means the
amount calculated as follows:
PIA = FCC + MIIP + OI
where:
PIA = the Preliminary Income Amount for that Determination Date;
FCC = the Finance Charge Collections for the Collection Period ending on that
Determination Date;
MIIP = the aggregate Mortgage Insurance Income Proceeds for that Determination Date;
and
OI = any Other Income Amounts in respect of the
Collection Period ending on that
Determination Date and which has not
previously been applied in accordance with
this Deed.
"Preliminary Principal Amount" in relation to a Determination Date and the
immediately following Distribution Date means an amount calculated as
follows:
PPA = PC + PCOR + OPA + RBA + SRFA
24
where:
PPA = the Preliminary Principal Amount as at that Determination Date;
PC = the Principal Collections for the Collection Period ending on that
Determination Date;
PCOR = the Principal Chargeoff Reimbursement as at that Determination Date;
OPA = the Other Principal Amounts as at that Determination Date;
RBA = the Redraw Bond Amount as at that Determination Date; and
SRFA = the Standby Redraw Facility Advance on the
immediately following Distribution Date.
"Prescribed Period" in relation to a Mortgage Loan means the period of 120
days (including the last day of that period) commencing on the Closing Date
or such longer period as may be agreed between the Australian Prudential
Regulation Authority, the Trustee, the relevant Seller and the Manager.
"Principal Chargeoff" in relation to a Determination Date means an amount
calculated as follows:
PCO = PL - MIPP - PD
where:
PCO = the Principal Xxxxxxxxx as at that Determination Date;
PL = the total of the Principal Loss on each Mortgage Loan for which the Manager
determines a Principal Loss should be accounted for on that Determination
Date (provided that the Manager must not account for a Principal Loss on a
Mortgage Loan until the Servicer reasonably believes that no further amounts
in respect of the Mortgage Loan constituting Mortgage Insurance Principal
Proceeds or damages under clauses 14 and 16 which are to be treated as Other
Principal Amounts will be received);
MIPP = the total Mortgage Insurance Principal Proceeds with respect to such Mortgage
Loans as at that Determination Date; and
PD = any damages received by the Trustee from CBA under clause 14 or from CBA
or the Servicer under clause 16 in respect of such Mortgage Loans
which are determined to be Other Principal Amounts in accordance with
clause 27.5.
"Principal Chargeoff Reimbursement" in relation to a Determination Date and
the Collection Period ending on that Determination Date means an amount
calculated as follows:
PCOR = PIA - RIA - PDR
where:
PCOR = the Principal Chargeoff Reimbursement as at that Determination Date;
PIA = the Preliminary Income Amount as at that Determination Date;
RIA = the Required Income Amount as at that Determination Date; and
PDR = the Principal Draw Reimbursement as at that Determination Date,
25
provided that there will only be a Principal Chargeoff Reimbursement if the
result of the above calculation is greater than zero and provided further
that where the result of the above calculation exceeds the Unreimbursed
Principal Chargeoffs as at the immediately previous Determination Date plus
the Principal Chargeoffs calculated as at the current Determination Date,
the Principal Chargeoff Reimbursement will equal such amount.
"Principal Collections" in relation to a Collection Period means the
aggregate of the following amounts (without double counting) received by or
on behalf of the Trustee during that Collection Period in respect of the
Mortgage Loans then forming part of the Assets of the Series Trust:
(a) all amounts received under or in respect of the Mortgage Loans in
respect of principal (less reversals made during the period in respect
of interest or other charges in relation to any of the accounts where
the original debit entry (or part thereof) was in error); and
(b) all amounts of principal payable under or in respect of the Mortgage
Loans and the Mortgage Loan Rights to the extent that the obligations
to pay such amounts are discharged by the exercise during that
Collection Period of a right of set-off or right to combine accounts,
but does not include the Preliminary Income Amount or Other Principal
Amounts in relation to that Determination Date.
"Principal Draw" in relation to a Determination Date means the amount equal
to the lesser of the Net Income Shortfall as at that Determination Date and
the Principal Draw Available as at that Determination Date.
"Principal Draw Available" in relation to a Determination Date means the
amount calculated as follows:
PDA - PPA - SAP
where:
PDA = the Principal Draw Available as at that Determination Date;
PPA = the Preliminary Principal Amount as at that Determination Date; and
SAP = the principal allocated to repay Seller Advances on the immediately following
Distribution Date in accordance with clause 10.3(a),
provided that if the Available Principal Amount for that Determination Date
is insufficient to repay the Seller Advances in full in accordance with
clause 10.3(a), the Principal Draw Available will be zero.
"Principal Draw Reimbursement" in relation to a Determination Date and the
Collection Period ending on that Determination Date means an amount
calculated as follows:
PDR = PIA - RIA
where:
PDR = the Principal Draw Reimbursement as at that Determination Date;
PIA = the Preliminary Income Amount as at such that Determination Date; and
RIA = the Required Income Amount as at that Determination Date,
26
provided that there will only be a Principal Draw Reimbursement if the
result of the above calculation is greater than zero and provided further
that where the result of the above calculation exceeds the Unreimbursed
Principal Draws as at the immediately previous Determination Date, the
Principal Draw Reimbursement will equal the Unreimbursed Principal Draws as
at the immediately previous Determination Date.
"Principal Loss" in relation to a Mortgage Loan and a Liquidation Date
means an amount calculated as follows:
PL = MLP + RE - BC - LP
where:
PL = the Principal Loss as at that Liquidation Date;
MLP = the Mortgage Loan Principal as at that Liquidation Date;
RE = the Restoration Expenses reasonably and necessarily incurred up to and
including that Liquidation Date;
BC = the Break Costs as at that Liquidation Date provided that Break Costs
will only be included in the calculation of Principal Loss if the Trustee is
then a party to a Fixed Rate Swap; and
LP = any Liquidation Proceeds received up to and including that Liquidation Date
provided that for the purposes of this paragraph Liquidation Proceeds will
not include any Liquidation Proceeds which have been applied against an
Income Loss or are to be applied against an Income Loss on that Liquidation
Date,
provided that there will only be such a Principal Loss if the result of the
above calculation is greater than zero.
"Principal Paying Agent" has the same meaning as in the Agency Agreement.
"Principal Prepayments" in relation to a Collection Period means all
amounts received by or on behalf of the Trustee during that Collection
Period under or in respect of the Mortgage Loans then forming part of the
Assets of the Series Trust in respect of principal prepayments made by or
on behalf of the Borrower in relation to that Mortgage Loan (less reversals
made during the period in respect of interest or other charges in relation
to any of the accounts where the original debit entry (or part thereof) was
in error) to the extent that the amount exceeds the then scheduled monthly
instalment of principal that would be payable under that Mortgage Loan
(including previous unpaid instalments of principal) during that Collection
Period.
"Priority Agreement" means any agreement between a Seller and a subsequent
mortgagee of Land the subject of a Mortgage or Collateral Security:
(a) under which that Xxxxxx and the subsequent mortgagee agree to a
ranking of their respective securities over the said Land which
provides for that Xxxxxx's security to be a first ranking security to
an agreed amount and the subsequent mortgagee's security to be a
second ranking security; and
(b) whose sole subject matter is the agreement as to ranking referred to
in (a) above and matters ordinarily incidental thereto.
"Privacy Act" means the Privacy Act 1988 (Commonwealth).
"Property Protection Expenses" in relation to a Mortgage Loan means the
aggregate amount of any costs or expenses actually paid or incurred by the
Servicer, the relevant Seller or the
27
Trustee in connection with the maintenance, preservation and protection of
the corresponding Mortgaged Property in its existing state of repair at its
existing value, including, without limitation:
(a) any real estate property Taxes, statutory charges or other outgoings
payable in connection with the corresponding Mortgaged Property; and
(b) any insurance premiums payable under any Insurance Policy with respect
to the corresponding Mortgaged Property,
provided that Property Protection Expenses will not include any Mortgage
Enforcement Expenses or any Restoration Expenses.
"Quarterly Certificate" means the certificate prepared on each
Determination Date by the Manager pursuant to clause 27.2(a) substantially
in the form set out in Schedule 8 (or in such other form as is from time to
time agreed between the Manager and the Trustee).
"Rate Set Date" in relation to an Accrual Period means the first day of
that Accrual Period.
"Rating Affirmation Notice" in relation to an event or circumstances means
a notice in writing from each Rating Agency confirming that the event or
circumstances, as applicable, will not result in a reduction, qualification
or withdrawal of the ratings then assigned by that Rating Agency to the
Securities.
"Rating Agencies" means S&P, Xxxxx'x and Fitch.
"Redraw Bond" means a debt security issued by the Trustee, in its capacity
as trustee of the Series Trust, in accordance with clause 5.4 and forming
part of the Class of Securities described in clause 5.1(d) as Redraw Bonds.
"Redraw Bond Amount" in relation to a Determination Date means the proceeds
(if any) received by the Trustee from any issue of Redraw Bonds on that
Determination Date or during the Collection Period ending on that
Determination Date (but excluding the immediately preceding Determination
Date).
"Redraw Bond Chargeoff Percentage" in relation to a Determination Date
means the amount (expressed as a percentage) calculated as follows:
RBCP = RBSA
---------------------------
CA1SA + CA2SA + RBSA + SRPF
where:
RBCP = the Redraw Bond Chargeoff Percentage in relation to that Determination Date;
CA1SA = the A$ Equivalent of the aggregate Stated Amounts of the Class A-1 Notes on
that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that Determination
Date;
RBSA = the aggregate Stated Amount of the Redraw Bonds on that Determination Date;
and
SRFP = the Standby Redraw Facility Principal on that Determination Date.
28
"Redraw Bond Principal Limit" means A$50 million or such other amount from
time to time agreed between the Rating Agencies and the Manager and
notified by the Manager to the Trustee.
"Redraw Bondholder" means at any time the person recorded at that time in
the Register as the holder of a Redraw Bond.
"Relevant Party" means each party to a Transaction Document other than the
Trustee.
"Relevant Mortgage Documents" has the meaning given to it in clause 25.1.
"Required Credit Rating" has the meaning specified in clause 27.1.
"Required Income Amount" in relation to a Determination Date means the
aggregate of the amounts referred to in clauses 10.2(a)-(l) inclusive for
the immediately following Distribution Date provided that, in respect only
of the first Determination Date, the total amount payable by the Trustee to
the Sellers under clause 10.1 will be included in the Required Income
Amount.
"Residual Unit" means the single unit in the Series Trust referred to in
clause 3.1.
"Residual Unitholder" means initially CBA and, thereafter, the person from
time to time appearing in the Register as the holder of the Residual Unit.
"Restoration Expenses" in relation to a Mortgage Loan means the aggregate
amount of any costs or expenses actually paid or incurred by the Servicer,
a Seller or the Trustee in connection with the restoration of the
corresponding Mortgaged Property including, without limitation, any costs
or expenses:
(a) in restoring the corresponding relevant Mortgaged Property to its
condition as at the date on which that Mortgage Loan was made to the
Borrower; and
(b) in connection with the reduction, elimination or clean-up of any
environmental hazard relating to the corresponding Mortgaged Property,
provided that Restoration Expenses will be calculated without reference to
the fact that the amount expended was paid from the Servicer's, that
Seller's or the Trustee's own funds or from Insurance Proceeds or from any
other source whatsoever and provided further that Restoration Expenses will
not include any Property Protection Expenses or Mortgage Enforcement
Expenses.
"S&P" means Standard & Poor's (Australia) Pty. Ltd., ABN 62 007 324 852 and
its successors and assigns.
"Sale Notice" means a notice from a Seller to the Trustee in or
substantially in the form of Schedule 1 (or in such other form as may be
agreed between the relevant Seller, the Manager and the Trustee).
"Scheduled Balance" in relation to a Mortgage Loan means the amount that
would be owing on that Mortgage Loan at the date of determination if the
Borrower had made, prior to that date, the minimum payments required under
that Mortgage Loan.
"Scheduled Maturity Date" means the Distribution Date occurring on 17 April
2033 (or if this is not a Business Day, on the next succeeding Business
Day).
"Second Layer of Collateral Securities" in relation to a Mortgage Loan
means all Collateral Securities in respect of that Mortgage Loan which do
not constitute the First Layer of Collateral Securities for that Mortgage
Loan.
"Secured Creditor" has the same meaning as in the Security Trust Deed.
29
"Securities Act" means the United States Securities Act of 1933 as amended.
"Security" means as the context requires a Class A-1 Note, an A$ Security
or both.
"Securityholder" means a Noteholder or a Redraw Bondholder or both, as the
context may require.
"Security Register" means the system which is used by a Seller to record
Security Interests granted to that Seller to secure the repayment of a
Mortgage Loan originated by that Seller.
"Security Trust Deed" means the Security Trust Deed dated on or about the
date of this Deed between the Trustee, the Manager, the US Dollar Note
Trustee and the Security Trustee.
"Security Trustee" means the person who is for the time being the security
trustee under the Security Trust Deed.
"Security Trustee's Expenses" means the costs and fees to be reimbursed to
the Security Trustee on each Distribution Date in accordance with clause
19.5(b).
"Security Trustee's Fee" means the fee payable to the Security Trustee on
each Distribution Date in accordance with clause 19.5(a).
"Seller Advance" means an advance made by a Seller to a Borrower pursuant
to clause 16.20(c) or clause 16.21(c) on or after the Cut-Off Date which
appears in the records of the Servicer or on the Security Register as
secured by a Mortgage which also secures a Mortgage Loan, and a reference
to "Seller Advances" is a reference to all Seller Advances made by either
Seller.
"Series Trust" means the trust known as the Series 2002-1G Medallion Trust
established pursuant to this Deed and the Master Trust Deed.
"Servicer" means CBA or if CBA is removed or retires as Servicer, any then
Substitute Servicer, and includes the Trustee when acting as Servicer in
accordance with clause 18.7.
"Servicer Default" means the occurrence of any event specified in clause
18.1.
"Servicer's Fee" means the remuneration payable to the Servicer pursuant to
clause 19.4.
"Servicing Guidelines" means the relevant written guidelines, policies and
procedures established by the Servicer for servicing mortgage loans
recorded on the Mortgage Loan System, including the Mortgage Loans, as
amended or updated in writing from time to time.
"Servicing Standards" at any given time means the relevant standards and
practices set out in the then Servicing Guidelines and, to the extent that
a servicing function is not covered by the Servicing Guidelines, the
standards and practices of a prudent lender in the business of making
retail home loans.
"Servicing Transfer" means the appointment of a new Servicer in accordance
with clause 18.
"Settlement Date" in relation to a Mortgage Loan means the date on which an
agreement between the relevant Seller and a Borrower for the making of that
Mortgage Loan was made.
"Shared Security" means any Security Interest, guarantee, indemnity or
other form of assurance that by its terms secures both (on the one hand)
the payment or repayment of any Mortgage Loan forming or to form part of
the Assets of the Series Trust and (on the other hand) any Other Loan
forming or to form part of the CBA Trust Assets.
"Specified Rating" means a long term debt rating by S&P of BBB, by Xxxxx'x
of Baa2 and by Fitch of BBB.
30
"Standby Redraw Chargeoff Percentage" in relation to a Determination Date
means the amount (expressed as a percentage) calculated as follows:
SCRF = SRFP
---------------------------
CA1SA + CA2SA + RBSA + SRPF
where:
SRCP = the Standby Redraw Chargeoff Percentage in relation to that Determination
Date;
CA1SA = the A$ Equivalent of the aggregate Stated Amounts of the Class A-1 Notes on
that Determination Date;
CA2SA = the aggregate Stated Amounts of the Class A-2 Notes on that Determination
Date;
RBSA = the aggregate Stated Amounts of the Redraw Bonds on that Determination Date;
and
SRFP = the Standby Redraw Facility Principal on that Determination Date.
"Standby Redraw Facility" means a standby redraw facility made available by
the Standby Redraw Facility Provider to the Trustee pursuant to the Standby
Redraw Facility Agreement.
"Standby Redraw Facility Advance" in relation to a Distribution Date means
the amount to be drawn down by the Trustee under a Standby Redraw Facility
on that Distribution Date.
"Standby Redraw Facility Agreement" means the Standby Redraw Facility
Agreement dated on or about the date of this Deed between the Trustee, the
Manager and the Standby Redraw Facility Provider and includes any
substitute standby redraw facility agreement entered into by the Trustee as
trustee of the Series Trust in place of an existing Standby Redraw Facility
Agreement.
"Standby Redraw Facility Commitment Fee" means in relation to a
Determination Date and the immediately following Distribution Date, the
commitment fee payable to the Standby Redraw Facility Provider on that
Distribution Date pursuant to the Standby Redraw Facility Agreement.
"Standby Redraw Facility Interest" in relation to a Distribution Date means
the interest due on that Distribution Date pursuant to the terms of a
Standby Redraw Facility Agreement.
"Standby Redraw Facility Limit" means the Facility Limit from time to time
as defined in the Standby Redraw Facility Agreement.
"Standby Redraw Facility Principal" has the same meaning as in the Standby
Redraw Facility Agreement.
"Standby Redraw Facility Provider" means initially CBA and each other
person who may from time to time provide a Standby Redraw Facility.
"Stated Amount" in relation to:
(a) a Class A-1 Note at any given time has the same meaning as in the US
Dollar Note Conditions; and
(b) an A$ Security at any given time means the Initial Invested Amount of
that A$ Security at that time less the sum of the following at that
time:
31
(i) the aggregate of all amounts previously paid in relation to that
A$ Security on account of principal pursuant to clause 10.3(d);
and
(ii) the aggregate of all then Unreimbursed Principal Chargeoffs in
relation to that A$ Security.
"Stepdown Percentage" in relation to a Determination Date means the
percentage calculated in accordance with Schedule 10 for that Determination
Date.
"Subscription Amount" in relation to the Residual Unit at any time means
the aggregate of:
(a) the amount of $100 paid by the Manager to the Trustee upon the
constitution of the Series Trust pursuant to clause 3.3 of the Master
Trust Deed; and
(b) the additional amounts, if any, previously paid by the Residual
Unitholder to, or at the direction of, the Trustee pursuant to clause
3.6,
less the aggregate of all amounts previously applied towards the reduction
of the Subscription Amount pursuant to clauses 10.3(e) or 11.2(b)(ii).
"Subscription Proceeds" means the amounts paid or to be paid by the
underwriters for the Class A-1 Notes under the Underwriting Agreement
(converted into A$ pursuant to the Class A-1 Currency Swaps) and the
amounts paid by the subscribers for the Class A-2 Notes and the Class B
Notes under the Dealer Agreement, without taking into account in reduction
of such amounts any fees or other amounts paid to such underwriters by or
on behalf of the Trustee.
"Substitute Servicer" means at any given time the entity then appointed as
Servicer under clause 18.6.
"Support Facilities" means the agreements or arrangements referred to in
clause 1.7 or such other agreement or arrangement which the Trustee and the
Manager agree is a Support Facility for the purposes of this Deed.
"Support Facility Provider" means the person or persons providing any
applicable Support Facility to the Trustee as trustee of the Series Trust.
"Swap" means, as the context requires, the Basis Swap, the Fixed Rate Swap,
the Class A-1 Currency Swap or all or any of the foregoing.
"Termination Date" means the earliest of the following dates:
(a) the date which is 80 years after the date of the constitution of the
Series Trust in accordance with this Deed and the Master Trust Deed;
(b) the date that the Trustee becomes obliged pursuant to clause 26.1(d)
to liquidate the Assets of the Series Trust following the occurrence
of a Potential Termination Event;
(c) if Securities have been issued by the Trustee, the date appointed by
the Manager as the Termination Date by notice in writing to the
Trustee, which must not be a date prior to the earlier of the
following:
(i) the date that all Securities have been redeemed in full; or
(ii) if an Event of Default (as defined in the Security Trust Deed)
occurs and the Charge is enforced, the date of the final
distribution by the Security Trustee under the Security Trust
Deed; and
32
(d) if no Securities have been issued by the Trustee, the date appointed
by the Manager as the Termination Date by notice in writing to the
Trustee.
"Termination Payment Date" means the date declared by the Trustee to be the
Termination Payment Date of the Series Trust pursuant to clause 26.2
(subject to any substitution of another date as the Termination Payment
Date in accordance with that clause).
"Threshold Rate" means, at any time, the minimum rate of interest that must
be set on all Mortgage Loans (where permitted by the terms of the Mortgage
Loan and corresponding Loan Agreement) which will be sufficient (assuming
that all relevant parties comply with their obligations at all times under
the Transaction Documents and the Mortgage Documents), when aggregated with
the income produced by the rate of interest on all other Mortgage Loans and
the income from Short-Term Authorised Investments, to ensure that the
Trustee will have available to it sufficient Finance Charge Collections and
Other Income Amounts to enable it to comply with its obligations under the
Transaction Documents as they fall due.
"Trustee" means Perpetual Trustee Company Limited, ABN 42 000 001 007 or if
Perpetual Trustee Company Limited retires or is removed as trustee of the
Series Trusts (as defined in the Master Trust Deed) and the CBA Trust, any
then Substitute Trustee and includes the Manager when acting as the Trustee
in accordance with the terms of the Master Trust Deed.
"Trustee's Fee" means the fee payable to the Trustee on each Distribution
Date calculated in accordance with clause 19.3.
"Underwriting Agreement" means the Underwriting Agreement dated after the
date of this Deed between the Trustee, the Manager, CBA and Deutsche Banc
Xxxx. Xxxxx Inc. as representative for the Underwriters named therein
pursuant to which, subject to the terms and conditions contained therein,
the Trustee will agree to issue, and each of the Underwriters named therein
will severally agree to subscribe for, the Class A-1 Notes.
"Unpaid Interest Amount" in relation to an A$ Security and a Distribution
Date means the aggregate of any Interest Amounts in relation to that A$
Security remaining unpaid from previous Distribution Dates and any interest
accrued but remaining unpaid on that A$ Security as at that Distribution
Date pursuant to clause 5.8(b).
"Unreimbursed Principal Chargeoffs" in relation to:
(a) a Class A-1 Note at any time has the same meaning as in the US Dollar
Note Conditions; and
(b) an A$ Security and the Standby Redraw Facility Principal at any time
means the aggregate of the Principal Chargeoffs up to and including
that time allocated to the A$ Security or the Standby Redraw Facility
Principal (as the case may be) in accordance with clause 9.1 less the
aggregate of the Principal Chargeoff Reimbursements prior to that time
allocated to the A$ Security or the Standby Redraw Facility Principal
(as the case may be) in accordance with clause 9.2.
"Unreimbursed Principal Draws" in relation to a Determination Date means
the aggregate of the Principal Draws allocated in accordance with clause
10.3(b) less the aggregate of the Principal Draw Reimbursement allocated in
accordance with clause 10.2(n) up to and including that Determination Date.
"US$" and "US dollars" means the lawful currency for the time being of the
United States of America.
"US Dollar Note Conditions" means the terms and conditions of the Class A-1
Notes as annexed to the Class A-1 Notes.
"US Dollar Note Registrar" has the same meaning as in the Agency Agreement.
33
"US Dollar Note Trust Deed" means the US Dollar Note Trust Deed to be dated
on or about the Closing Date and made between the Trustee, the Manager and
the US Dollar Note Trustee.
"US Dollar Note Trustee" means The Bank of New York, New York Branch or, if
The Bank of New York is removed or retires as the trustee for the Class A-1
Noteholders, any person appointed from time to time in its place in
accordance with the US Dollar Note Trust Deed.
"US$ Equivalent" in relation to an amount which is calculated, determined
or expressed in A$ or which includes a component determined or expressed in
A$ means the A$ amount or A$ component (as the case may be) multiplied by
the US$ Exchange Rate.
"US$ Exchange Rate" means "US$ Exchange Rate" specified in paragraph 7 of
the confirmation for each Class A-1 Currency Swap.
"Waiver of Set-Off" in relation to a Mortgage Loan means a provision, in
the related Mortgage or Loan Agreement or otherwise, by which, inter alia,
the Borrower agrees to make all payments in respect of that Mortgage Loan
without set-off or counterclaim unless prohibited by law.
1.2 Interpretation
In this Deed, unless the contrary intention appears:
(a) a reference to this Deed includes the Recitals and the Schedules;
(b) a reference to a statute, ordinance, code or other law includes
regulations and other instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;
(c) a reference to a section of a statute, ordinance, code or other law
includes any consolidation, amendment, re-enactment or replacement of
that section;
(d) the singular includes the plural and vice versa and words denoting a
gender include all other genders;
(e) the word "person" includes an individual, a body politic, a
corporation and a statutory or other authority or association
(incorporated or unincorporated);
(f) a reference to a person includes a reference to the person's
executors, administrators, successors, substitutes (including, without
limitation, persons taking by novation) and assigns;
(g) the word "corporation" means any body corporate wherever formed or
incorporated including, without limiting the generality of the
foregoing, any public authority or any instrumentality of the Crown;
(h) where a word or phrase has a defined meaning any other part of speech
or grammatical form in respect of such word or phrase has a
corresponding meaning;
(i) a reference to any thing (including, without limitation, any amount)
is a reference to the whole or any part of it and a reference to a
group of persons is a reference to any one or more of them;
(j) if an act prescribed under this Deed to be done by a party on or by a
given day is done after 5.30 p.m. on that day, it is to be taken to be
done on the following day;
(k) references to time are to Sydney time;
34
(l) the expression "certified" by a corporation or person means certified
in writing by 2 Authorised Officers of the Corporation or by that
person respectively and "certify" and like expressions will be
construed accordingly;
(m) a reference to extinguish includes a reference to rights and interests
being surrendered and released;
(n) a reference to a "month" is to a calendar month;
(o) the expression "owing" includes amounts that are owing whether such
amounts are liquidated or not or are contingent or presently accrued
or due and includes all rights sounding in damages only;
(p) a reference to "wilful default" in relation to the Trustee, the
Manager or the Servicer means, subject to clause 1.2(q), any wilful
failure to comply, or wilful breach, by the Trustee, the Manager or
the Servicer (as the case may be) of any of its obligations under any
Transaction Document, other than a failure or breach which:
(i) A. arises as a result of a breach of a Transaction Document by
a person other than the Trustee, the Manager or the
Servicer (as the case may be) or other than any person
referred to in clause 1.2(q) in relation to the Trustee,
the Manager or the Servicer (as the case may be); and
B. the performance of the action (the non-performance of which
gave rise to such breach) is a pre-condition to the
Trustee, the Manager or the Servicer (as the case may be)
performing the said obligation;
(ii) is in accordance with a lawful court order or direction or is
required by law; or
(iii) is in accordance with a proper instruction or direction of:
A. the Secured Creditors given at a meeting (or deemed
meeting) of Secured Creditors convened under the Security
Trust Deed; or
B. the Investors given at a meeting (or deemed meeting)
convened under the Master Trust Deed;
(q) a reference to the "fraud", "negligence" or "wilful default" of the
Trustee, the Manager or the Servicer means the fraud, negligence or
wilful default of the Trustee, the Manager or the Servicer (as the
case may be) and of its officers, employees, agents or any other
person where the Trustee, the Manager or the Servicer (as the case may
be) is liable for the acts or omissions of such other person under the
terms of any Transaction Document;
(r) subject to clause 31.2, each party will only be considered to have
knowledge or awareness of, or notice of, a thing or grounds to believe
anything by virtue of the officers of that party (or any Related Body
Corporate of that party) having day to day responsibility for the
administration or management of that party's (or a Related Body
Corporate of that party's) obligations in relation to the Series Trust
or the CBA Trust, having actual knowledge, actual awareness or actual
notice of that thing, or grounds or reason to believe that thing (and
similar references will be interpreted in this way). In addition,
notice, knowledge or awareness of a Servicer Default, Manager Default,
Trustee Default or Perfection of Title Event means notice, knowledge
or awareness of the occurrence of the events or circumstances
35
constituting the Servicer Default, Manager Default, Trustee Default or
Perfection of Title Event (as the case may be);
(s) subject to clause 1.12 a reference to this Deed, the Master Trust Deed
or any other deed, Agreement, document or instrument includes
respectively this Deed, the Master Trust Deed or such other deed,
Agreement, document or instrument as amended, novated, supplemented or
replaced from time to time;
(t) a reference to the enforcement of the Charge means that the Security
Trustee appoints (or the Voting Secured Creditors as contemplated by
clause 8.4 of the Security Trust Deed appoint) a Receiver over any
Charged Property, or takes possession of any Charged Property,
pursuant to the Security Trust Deed (expressions used in this clause
which are not defined in this Deed have the same meanings as in the
Security Trust Deed);
(u) a reference to a clause or a Schedule is a reference to a clause or a
Schedule of this Deed; and
(v) headings are inserted for convenience and do not affect the
interpretation of this Deed.
1.3 Master Trust Deed Definitions
Subject to clause 1.12 unless defined in this Deed, words and phrases
defined in the Master Trust Deed have the same meaning in this Deed. Where
there is any inconsistency in a definition between this Deed and the Master
Trust Deed, this Deed prevails. Where words or phrases used in this Deed
are defined in the Master Trust Deed in relation to a Series Trust (as
defined as the Master Trust Deed) and/or an Other Trust such words or
phrases are to be construed, where necessary, as being used only in
relation to the Series Trust (as defined in this Deed) and/or the CBA
Trust, as the context requires.
1.4 Business Day Convention
(a) (Next Business Day): When the date on or by which any act, matter or
thing is to be done is not a Business Day, the act, matter or thing
must (unless expressly provided otherwise) be done on the next
Business Day.
(b) (Determination Dates): Clause 1.4(a) does not apply to any act, matter
or thing to be done on a Determination Date.
1.5 Master Trust Deed Inconsistency
In accordance with clause 1.3 of the Master Trust Deed the provisions
contained in this Deed apply only in relation to the Series Trust. If there
is any conflict between the provisions of this Deed and the provisions of
the Master Trust Deed, the provisions contained in this Deed prevail over
the provisions of the Master Trust Deed in respect of the Series Trust.
Without limiting the generality of the foregoing, the provisions of the
Transaction Documents (other than the Master Trust Deed) insofar as they
apply to the Securities (as defined herein) prevail over any inconsistent
provision in the Master Trust Deed that would otherwise apply to such
Securities.
1.6 Exclusion of Master Trust Deed Definitions and Provisions
(a) (Variation of Terms): For the purposes of the Master Trust Deed (in so
far as it applies to the Series Trust):
(i) "Transaction Document" means each of the following documents:
36
A. the Master Trust Deed (in so far as it applies to the Series
Trust);
B. this Deed;
C. each document specified in clause 1.7 as a Support Facility;
D. the Security Trust Deed;
E. the Dealer Agreement;
F. the Underwriting Agreement;
G. the US Dollar Note Trust Deed;
H. the Class A-1 Notes;
I. the Agency Agreement; and
X. any other document which is agreed by the Manager and the
Trustee to be a Transaction Document in relation to the
Series Trust;
(ii) a "Security" has the same meaning as in this Deed; and
(iii) a "Securityholder" has the same meaning in this Deed.
(b) (Meeting procedures): The procedures for convening a meeting of the
Securityholders or the Class A-1 Noteholders for the purposes of
clause 26 of the Master Trust Deed, in so far as those procedures
apply to the Securityholders or the Class A-1 Noteholders (as the
context requires), are varied as follows:
(i) if the Class A-1 Noteholders are included within the, or are the
only, Relevant Investors for the purposes of a meeting under
clause 26 of the Master Trust Deed:
A. any notice of a meeting given or required to be given to
the Class A-1 Noteholders must also be given to the US
Dollar Note Trustee;
B. any notice given to Class A-1 Noteholders of a meeting
under clause 26 of the Master Trust Deed must be given in
accordance with Condition 11.1 of the US Dollar Note
Conditions (in lieu of notice pursuant to clause 26.2(e) of
the Master Trust Deed); and
C. a meeting under clause 26 of the Master Trust Deed at which
the US Dollar Note Trustee is the only Relevant Investor
pursuant to clause 1.6(b)(ii) must not, unless otherwise
agreed by the US Dollar Note Trustee, be held until the US
Dollar Note Trustee has had the opportunity of seeking and
obtaining directions from the Class A-1 Noteholders
regarding how the US Dollar Note Trustee is to vote at the
meeting;
(ii) the Relevant Investors in relation to the Class A-1 Notes, for
the purposes of clause 26 of the Master Trust Deed, means the US
Dollar Note Trustee alone, acting on behalf of the Class A-1
Noteholders under the US Dollar Note Trust Deed or, if the US
Dollar Note Trustee has become bound to take steps and/or to
proceed under the US Dollar Note
37
Trust Deed and fails to do so within a reasonable time and such
failure is continuing, the Class A-1 Noteholders;
(iii) if the US Dollar Note Trustee is the only Relevant Investor in
relation to the Class A-1 Notes pursuant to clause 1.6(b)(ii),
it will be regarded as a Representative holding or representing
all of the Class A-1 Notes for the purposes of determining
whether a quorum is present at such meeting, for determining the
votes to which the US Dollar Note Trustee is entitled to cast at
such meeting and any other relevant matter relating to such
meeting;
(iv) if the Class A-1 Noteholders become entitled to attend a meeting
of Relevant Investors pursuant to clause 1.6(b)(ii), the
evidence of the entitlement of such Class A-1 Noteholders to
attend such meeting and to vote thereat, and any other relevant
matters, will be determined in accordance with the provisions of
the US Dollar Note Trust Deed and the Agency Agreement, with
such amendments as determined by the Trustee to be necessary;
and
(v) if at a particular time the US Dollar Note Trustee is or would
be the only Relevant Investor in respect of a meeting under
clause 26 of the Master Trust Deed, notwithstanding any other
provision of the Master Trust Deed the requirement to convene
such a meeting and put such issue to such meeting will be
satisfied if directions are sought from the US Dollar Note
Trustee on the particular issue that would otherwise be put to
such meeting. Upon such a direction being given by the US Dollar
Note Trustee, a meeting of the Relevant Investors will be
regarded as having been duly called, convened and held and the
direction will be regarded as properly passed as an
Extraordinary Resolution of such meeting.
(c) (Master Trust Deed Provisions): The following provisions of the Master
Trust Deed will not apply to the Class A-1 Notes or the Class A-1
Noteholders: clauses 5.1(d), 6, 8.1, 9, 10, 23.1 and 24.4.
(d) (Rights of Investors): Nothing in clause 7.1(i) of the Master Trust
Deed limits any right of Class A-1 Noteholders under the US Dollar
Note Trust Deed to compel the Trustee, the Manager or the US Dollar
Note Trustee to comply with their respective obligations under the US
Dollar Note Trust Deed.
(e) (Clause 16.10(a)): Clause 16.10(a) of the Master Trust Deed will not
apply in relation to the Series Trust.
1.7 Support Facilities
The Series Trust has the following Support Facilities:
(a) (Currency Swap Agreements): each Currency Swap Agreement (which is
also a Hedge Agreement of the Series Trust for the purposes of the
Master Trust Deed);
(b) (Interest Rate Swap Agreement): each Interest Rate Swap Agreement
(which is also a Hedge Agreement of the Series Trust for the purposes
of the Master Trust Deed);
(c) (Liquidity and Standby Redraw Facilities): each Liquidity Facility and
the Standby Redraw Facility (which are each also Liquidity Facilities
of the Series Trust for the purposes of the Master Trust Deed); and
(d) (Mortgage Insurance Policies): the Mortgage Insurance Policies (which
are also Credit Enhancements of the Series Trust for the purposes of
the Master Trust Deed).
38
1.8 Security Trust Deed
The obligations of the Trustee under the Securities (amongst other things)
will be secured to the Securityholders (among others) by the Security Trust
Deed which is a Security Trust Deed relating to the Series Trust for the
purposes of the Master Trust Deed.
1.9 Nominated Seller and Nominated Servicer
For the purposes of the Master Trust Deed, the Nominated Seller in relation
to the Series Trust is each of the Sellers (namely CBA and Homepath) and
the Nominated Servicer in relation to the Series Trust for the purposes of
the Master Trust Deed is the Servicer.
1.10 Binding on Securityholders and the Residual Unitholder
This Deed is binding on each Securityholder and the Residual Unitholder as
if each was originally a party to this Deed.
1.11 Relationship between Trustee and Securityholders
The obligations of the Trustee to the Securityholders expressed in this
Deed or the Master Trust Deed, in so far as the Master Trust Deed relates
to the Series Trust, are contractual obligations only and do not create any
relationship of trustee or fiduciary between the Trustee and the
Securityholders.
1.12 Incorporated Definitions and other Transaction Documents and provisions
Where in this Deed a word or expression is defined by reference to its
meaning in another Transaction Document or there is a reference to another
Transaction Document or to a provision of another Transaction Document, any
amendment to the meaning of that word or expression or to that other
Transaction Document or provision (as the case may be) will be of no effect
for the purposes of this Deed unless and until the amendment is consented
to by the parties to this Deed (construed in the absence of clause 1.10).
1.13 Indemnity from Homepath
(a) (Transaction Documents): Homepath acknowledges that certain
representations, warranties, undertakings and indemnities are given by
CBA under the Transaction Documents in relation to:
(i) Assets of the Series Trust (including Mortgage Loans) that were
assigned to the Trustee by Homepath; and
(ii) Mortgage Loans (and related Mortgage Loan Rights, including
without limitation, security granted by the Borrower) which are
or may be legally owned by Homepath; and
(iii) actions or potential activities of Homepath (including breaches
by Homepath of the Transaction Documents),
and Homepath indemnifies CBA against all loss, costs, damages, charges
and expenses incurred by CBA in relation to the matters referred to in
(i)-(iii) above;
(b) (Deed of Appointment): Homepath acknowledges that certain
representations, warranties, undertakings and indemnities are given by
CBA under the Deed of Appointment and Indemnity in relation to and on
behalf of Homepath and Homepath indemnifies CBA against all loss,
costs, damages, charges and expenses incurred by CBA in relation to
the matters referred to in that Deed of Appointment and Indemnity.
39
--------------------------------------------------------------------------------
2. The CBA Trust
2.1 Constitution of CBA Trust
The CBA Trust is constituted upon:
(a) (Execution of this Deed): the execution of this Deed by the Trustee,
the Manager, the Servicer and each Seller; and
(b) (Payment of $100): the payment of the sum of $100 by or on behalf of
each Seller to the Trustee (the receipt of which the Trustee
acknowledges by executing this Deed).
2.2 Declaration of Trust for the CBA Trust
The Trustee declares that it will hold all the right, title and interest
in, to and under the $200 referred to in clause 2.1(b) and any further CBA
Trust Asset on trust for the relevant Seller in relation to those CBA Trust
Assets in accordance with this clause 2 and subject to the trusts and other
terms and conditions of this Deed.
2.3 Name of the CBA Trust
The CBA Trust will be known as the "CBA Series 2002-1 Trust" or such other
name from time to time agreed between the Trustee and the Sellers (subject
to any approvals required by law).
2.4 Entitlement of Sellers to the CBA Trust
The beneficial interest in the CBA Trust is vested absolutely in the
Sellers, in accordance with clause 2.2.
2.5 Bare Trust
The Trustee holds each CBA Trust Asset in relation to a Seller on bare
trust for that Seller in accordance with clause 2.2.
2.6 Duration of the CBA Trust
The CBA Trust commences on the date of its constitution as referred to in
this Deed and ends on its Termination Date (as if every reference in the
definition of this term in clause 1.1 of the Master Trust Deed to a Series
Trust was to the CBA Trust).
2.7 Early Termination of the CBA Trust
Immediately upon the termination of the Series Trust, the Sellers must
notify the Trustee that the CBA Trust is to be terminated. Upon receipt of
that notice, the Trustee must promptly terminate the CBA Trust.
2.8 Dealing with CBA Trust Assets
Subject to the terms of this Deed:
(a) (Sellers may deal with CBA Trust Assets): each Seller is entitled to
deal with the CBA Trust Assets in relation to that Seller in its
absolute discretion; and
(b) (Trustee may only deal with CBA Trust Assets as directed by relevant
Seller):
(i) the Trustee must not deal with the CBA Trust Assets in relation
to a Seller other than in accordance with directions given by
that Seller from time to time; and
40
(ii) the Trustee must act in accordance with any direction given to it
by the Seller in respect of the CBA Trust Assets in relation to
that Seller,
save that, in either case, the Trustee is not obliged to act in accordance
with the directions of a Seller where to do so would be illegal or result
in the Trustee's exposure to a risk of personal liability where the Trustee
is not satisfied, in its absolute discretion, that the Seller will be able
to reimburse the Trustee in accordance with clause 2.15.
2.9 Proceeds
(a) (Seller may retain proceeds): A Seller may retain any proceeds
received by it from the CBA Trust Assets in relation to it.
(b) (Trustee must pay proceeds to Seller): Subject to clause 7.3(d)(i),
the Trustee must immediately pay to the relevant Seller (or otherwise
pay as that Seller directs) any proceeds the Trustee receives in
respect of the CBA Trust Assets in relation to that Seller.
(c) (Seller's receipt good discharge): The receipt of amounts by a Seller
pursuant to clauses 2.9(a) and (b) constitutes a good discharge to the
Trustee.
2.10 CBA Trust Assets Not Part of Assets of the Series Trust
(a) (CBA Trust Assets not part of the Series Trust): The Trustee's right,
title and interest in the CBA Trust Assets do not form part of the
Assets of the Series Trust.
(b) (Trustee must account for CBA Trust Assets): The Trustee must account
for the CBA Trust Assets and each of the trusts established pursuant
to clause 2.5 separately from one another and each such trust
separately from the Assets of the Series Trust.
(c) (Liabilities): The Trustee must not apply the Assets of the Series
Trust to meet any liabilities of the CBA Trust (or either of the two
trusts comprised therein) and the Trustee must not apply the CBA Trust
Assets to meet any Liabilities of the Series Trust.
(d) (No co-mingling): The Trustee must not co-mingle any money held by the
Trustee in respect of the Series Trust with any money held by the
Trustee in respect of the CBA Trust (or either of the two trusts
comprised therein) (and vice versa).
2.11 Shared Securities
(a) (Not sell etc. Shared Securities): The Trustee must not, and the
Manager must not direct the Trustee to, sell, transfer or grant any
Security Interest over any Shared Security which is held by it partly
as trustee for the Series Trust and partly by it as trustee for the
CBA Trust without notifying the relevant transferee or holder of the
Security Interest of the existence of the interest of the relevant
Seller as beneficiary of the CBA Trust in that Shared Security.
(b) (Power to lodge Caveats): Each Seller has the power to lodge a Caveat
over any Shared Security in which it has an interest where the Trustee
has sold, transferred or granted any Security Interest or that Seller
reasonably believes that the Trustee will sell, transfer or grant any
Security Interest over any such Shared Security in breach of clause
2.11(a).
2.12 Trustee's Duties
The Trustee owes no fiduciary or other duties to the Sellers in respect of
the CBA Trust Assets other than pursuant to clauses 2.8, 2.9(b), 2.10 and
7.3 and, in any event, is not liable in any
41
manner whatsoever to a Seller for any loss to the CBA Trust Assets in
relation to that Seller as a result of acting on the direction of that
Seller or for not acting as a result of that Seller failing to give any
direction to the Trustee or for otherwise acting in accordance with this
Deed.
2.13 Substitute Trustee
(a) (Substitute Trustee): Any Substitute Trustee (other than the Manager
when acting as Trustee) must be approved by each Seller which approval
is not to be unreasonably withheld or delayed.
(b) (Retirement or removal of the Trustee from the CBA Trust): The
provisions of clause 19 of the Master Trust Deed apply with necessary
modifications to the CBA Trust as if every reference in such clause
to:
(i) a Series Trust or the Series Trusts included a reference to the
CBA Trust; and
(ii) as if every reference to the "Manager" was a reference to both
Sellers.
(c) (CBA Trust Assets to Vest in Substitute Trustee): Upon the retirement
or removal of the Trustee as trustee of the Series Trust in accordance
with the Master Trust Deed, the Trustee must vest the CBA Trust
Assets, or cause them to be vested, in the Substitute Trustee and must
deliver to the Substitute Trustee (or to the Manager if it is acting
as Trustee) all books, documents, records and other property
whatsoever in its possession (if any) relating to the CBA Trust. The
costs and expenses of this are to be paid by the Sellers.
2.14 Transfer of the CBA Trust Assets to Sellers on termination of CBA Trust
On the termination of the CBA Trust, the Trustee is deemed to offer to
immediately transfer the CBA Trust Assets in relation to a Seller to
that Seller (so that each Seller is deemed to receive an offer to
accept an assignment or other transfer of the CBA Trust Assets in
relation to that Seller). A Seller can accept such offer only by an
Authorised Officer of that Seller accepting such offer orally
(including by way of telephone) communicated to an Authorised Officer
of the Trustee. The Trustee must execute and deliver to a Seller such
instruments as that Seller reasonably requests to vest in that Seller
all right, title and interest of the Trustee in the CBA Trust Assets
in relation to that Seller.
2.15 Seller Indemnity
(a) (CBA Trust): Subject to clause 2.15(b), but without limiting any
indemnity to which the Trustee is otherwise entitled at general law,
the Sellers (jointly and severally) unconditionally and irrevocably
indemnify the Trustee in respect of, and agree to pay within 5
Business Days of receipt of a written demand from the Trustee:
(i) any liability incurred by the Trustee as a result of the Trustee
complying with any directions by either Seller in accordance
with clause 2.8 or not acting as a result of a Seller failing to
give any direction to the Trustee;
(ii) any liability incurred by the Trustee in connection with the
transfer of any CBA Trust Asset to either Seller (including, but
not limited to, stamp duties and Taxes payable in connection
with such transfer); and
(iii) all other costs, charges, Taxes, expenses and liabilities
incurred by the Trustee in respect of the CBA Trust in
accordance with this clause 2, clause 7.5, clause 7.7, clause
7.8 or clause 14.4.
42
(b) (Limitation of Seller indemnity): A Seller's obligations under clause
2.15(a) to indemnify and reimburse the Trustee do not apply to the
extent that such liabilities, costs, charges, Taxes, stamp duties or
expenses arise as a result of the Trustee's negligence, fraud or
wilful default.
2.16 Limitation of Liability
The Trustee enters into this Deed in its capacity as trustee of the CBA
Trust (in addition to entering into this Deed in its capacity as trustee of
the Series Trust). A liability arising under or in connection with this
Deed and the CBA Trust is limited to and can be enforced against the
Trustee only to the extent to which it can be satisfied out of the CBA
Trust Assets out of which the Trustee is actually indemnified for the
liability. This clause will not apply to any obligation or liability of the
Trustee in respect of the CBA Trust to the extent that it is not satisfied
because, under this Deed or by operation of law, there is a reduction in
the extent of the Trustee's indemnification out of the CBA Trust Assets as
a result of the Trustee's fraud, negligence or wilful default.
--------------------------------------------------------------------------------
3. Unit in the Series Trust
3.1 Beneficial Interest Represented by a Single Unit
The beneficial interest in the Series Trust is represented by a single unit
to be known as the Residual Unit.
3.2 Initial Holder of the Residual Unit
The initial holder of the Residual Unit in the Series Trust is CBA.
3.3 Registration of CBA as Initial Residual Unitholder
Immediately upon the execution of this Deed, the Trustee must enter CBA
into the Register as the initial Residual Unitholder in the Series Trust
and must issue to CBA a Unit Certificate in respect of such Residual Unit.
3.4 Form of Unit Certificate
The initial form of the Unit Certificate for the Residual Unit is as set
out in Schedule 9.
3.5 Form of Unit Transfer
The form of the Unit Transfer for the Residual Unit may be agreed from time
to time between the then Residual Unitholder, the Manager and the Trustee
(acting reasonably).
3.6 Additional Capital Subscription
The Residual Unitholder may, on or prior to the Closing Date, invest
amounts by way of an increase in the capital of the Series Trust
represented by the Residual Unit by paying such amounts to the Trustee or
as the Trustee, upon the written instruction of the Manager, directs.
3.7 No Other Relationship
Nothing in this Deed constitutes either the Trustee, the Manager or the
Servicer as the agent of the Residual Unitholder nor creates any
relationship between the Residual Unitholder on the one hand and the
Manager (other than as Manager), the Servicer (other than as Servicer) or
the Trustee (other than as Trustee) on the other.
43
--------------------------------------------------------------------------------
4. Assignment of Mortgage Loan Rights
4.1 Approved Financial Assets of the Series Trust
The nature of the Approved Financial Assets that may be acquired by the
Trustee for the purposes of the Master Trust Deed are Mortgage Loan Rights.
4.2 Sale Notice
If a Seller wishes to offer to assign to the Trustee, on the terms of this
Deed, its right, title and interest in any Mortgage Loan Rights, that
Seller is only entitled to do so by giving to the Trustee (with a copy to
the Manager) a Sale Notice in relation to those Mortgage Loan Rights 5
Business Days (or such other period as that Seller has agreed with the
Trustee and the Manager) before the date specified in the Sale Notice as
the Closing Date.
4.3 Requirements of Sale Notice
A Sale Notice must:
(a) (State that it is a Sale Notice): state that it is a Sale Notice
pursuant to clause 4.2 and that it relates to the Series Trust;
(b) (Timing): not be issued:
(i) until at least 1 Business Day after the Series Trust has been
constituted; or
(ii) after the Termination Date in respect of the Series Trust;
(c) (Be delivered): be delivered to the Trustee and copied to the Manager;
(d) (Schedule of Mortgage Loans): be accompanied by a schedule of the
Mortgage Loans offered to be assigned to the Trustee that contains the
information required by clause 4.4;
(e) (Closing Date): state the proposed Closing Date (which, unless
otherwise agreed by the Trustee in writing, must be at least 5
Business Days after the date of the receipt by the Trustee of the Sale
Notice);
(f) (Cut-Off Date): state the Cut-Off Date (which, unless otherwise agreed
by the Trustee in writing, must be at least 10 Business Days before
the Closing Date); and
(g) (Authorised Officer): be signed by an Authorised Officer of the
relevant Seller.
4.4 Mortgage Loan Schedule
The schedule required by clause 4.3(d) to accompany the Sale Notice must
contain the following details in respect of each Mortgage Loan as at the
commencement of business on the Cut-Off Date:
(a) (Name and address): the name and address of the Borrower under the
Mortgage Loan (as recorded in the relevant Seller's records in
accordance with the Servicing Standards) and the address of the
property secured by each Mortgage;
(b) (Account number): the account number of the Mortgage Loan;
(c) (Amount outstanding): the principal amount outstanding, and accrued
interest, under the Mortgage Loan; and
44
(d) (LVR): the Loan to Value Ratio of the Mortgage Loan.
4.5 Sale Notice Constitutes an Offer
A Sale Notice constitutes an offer by the relevant Seller to assign to the
Trustee with effect from the commencement of business on the Cut-Off Date
and subject to the terms of this Deed and the Master Trust Deed that
Seller's entire right, title and interest in, to and under the following:
(a) (Mortgage Loans): each Mortgage Loan identified in the schedule
accompanying the Sale Notice;
(b) (Other Loans): all Other Loans in existence from time to time in
relation to the above Mortgage Loans;
(c) (Mortgages): all Mortgages in existence from time to time in relation
to the above Mortgage Loans;
(d) (Collateral Securities): all Collateral Securities in existence from
time to time in relation to the above Mortgage Loans;
(e) (Mortgage Insurance Policy): all Mortgage Insurance Policies as at the
commencement of business on the Cut-Off Date (other than the PMI
Mortgage Insurance Policy);
(f) (Mortgage Receivables): all Mortgage Receivables in existence from
time to time in relation to the above Mortgage Loans; and
(g) (Mortgage Documents): all Mortgage Documents in existence from time to
time in relation to the above Mortgage Loans.
4.6 Sale Notice Revocable
A Sale Notice is revocable by the Seller that issued that Sale Notice by
notice received by the Trustee (and copied to the Manager) prior to the
close of business (Sydney time) 4 Business Days before the proposed Closing
Date. If no such notice is received by the Trustee and the Manager by that
time, that Sale Notice is then irrevocable.
4.7 Acceptance of Offer
The offer contained in a Sale Notice may be accepted by the Trustee only in
accordance with this clause 4.
4.8 Timing of Acceptance
(a) (Means of acceptance): The Trustee will, if so directed by the Manager
in writing, accept the offer contained in a Sale Notice at any time
after 10.00 a.m. and before 3.30 p.m. (or between such other times as
may be agreed by the Trustee and the relevant Seller) on the Closing
Date by, and only by, the Trustee paying, or causing payment of, the
Consideration to the relevant Seller in cleared and immediately
available funds.
(b) (No further acts required): The Trustee is not required to do any
further act, matter or thing to accept the offer contained in that
Sale Notice.
45
4.9 Seller Not Obliged to Make, and Trustee Not Obliged to Accept, Offer
Notwithstanding satisfaction of all relevant conditions precedent or any
negotiations undertaken between a Seller and the Trustee prior to any
acceptance by the Trustee of the offer contained in a Sale Notice:
(a) (Seller not obliged to make offer): that Seller is not obliged to
issue that Sale Notice and the Trustee is not obliged to accept the
offer contained in that Sale Notice and no contract for the sale or
purchase of any Mortgage Loan Rights will arise unless and until the
Trustee accepts the offer contained in that Sale Notice in accordance
with this clause 4; and
(b) (Trustee acquires no rights until offer irrevocable): the Trustee
acquires no rights against that Seller or the Servicer in respect of
the Mortgage Loan Rights specified in that Sale Notice until such time
as that Sale Notice (if issued) becomes irrevocable.
4.10 Can Only Accept all Mortgage Loan Rights in Loan Pool
The offer contained in a Sale Notice may only be accepted in relation to
all the Mortgage Loan Rights specified in that Sale Notice.
4.11 Effect of Acceptance
Acceptance, in accordance with this Deed, of the offer contained in a Sale
Notice constitutes an immediate assignment with effect from the
commencement of business on the Cut-Off Date of the relevant Seller's
entire right, title and interest in the Mortgage Loan Rights specified in
that Sale Notice. The Trustee's right, title and interest in such Mortgage
Loan Rights is at all times subject to the terms of this Deed and the
Master Trust Deed.
4.12 Sale in Equity Only
(a) (Assignment in equity): An assignment of Mortgage Loan Rights in
accordance with this Deed takes effect initially in equity only.
(b) (Trustee must not communicate, disclose or perfect title): The Trustee
must not:
(i) take any steps to perfect its legal title to the Mortgage Loan
Rights;
(ii) give any notice to, or communicate in any other way with, a
Borrower or the provider of any Collateral Security; or
(iii) disseminate or disclose any information in respect of the
assignment of the Mortgage Loan Rights,
except in accordance with the terms of this Deed.
4.13 Sale Not to Amount to Assumption of Obligations
An assignment of Mortgage Loan Rights in accordance with this Deed, and the
acceptance of a Sale Notice, does not constitute an assumption by the
Trustee, the Servicer, the Manager or any Securityholder of any obligation
of the relevant Seller or any other person pursuant to, or in connection
with, the Mortgage Loan Rights or any other obligation of that Seller to
the Borrower or any other party pursuant to, or in connection with, the
corresponding Mortgage Documents.
46
4.14 Future Advances
Without limiting the generality of clause 4.13, a Seller retains the
obligation to make such further advances or provide such other financial
accommodation as that Seller was required to make under the terms of the
relevant Mortgage Loan prior to the Cut-Off Date for that Mortgage Loan.
4.15 Future Receivables
Without limiting the effect of any assignment of any Mortgage Loan
occurring on the Trustee accepting a Sale Notice but subject to clauses
4.13 and 4.14, a Seller's right, title and interest in respect of any
Mortgage Loan Rights arising, and any Mortgage Documents entered into, on
or after the Cut-Off Date, form part of the rights assigned to the Trustee
(to be held subject to the terms of the Master Trust Deed and this Deed)
and, immediately following creation (including, without limitation,
Mortgage Loan Rights created by the making of any further advance or the
provision of any financial accommodation under the terms of a Mortgage
Loan), vest in the Trustee in accordance with the assignment of that
Mortgage Loan pursuant to this Deed.
4.16 Power to Acquire Mortgage Loans in Arrears
In accordance with clause 16.4(v) of the Master Trust Deed, the parties
expressly agree that the Trustee has the power to acquire Mortgage Loans as
Assets of the Series Trust notwithstanding that payments due from Borrowers
under such Mortgage Loans are in arrears as at the date of their
acquisition by the Trustee.
4.17 Trustee Bound by Priority Agreements
Where a Seller has entered into a Priority Agreement with a subsequent
mortgagee of Land the subject of a Mortgage or Collateral Security assigned
to the Trustee under clause 4.11 the Trustee agrees for the benefit of any
such subsequent mortgagee to be bound by the provisions of any such
Priority Agreement.
--------------------------------------------------------------------------------
5. The Securities
5.1 Securities divided into Classes
The Securities are divided into four Classes as follows:
(a) the Class A-1 Notes;
(b) the Class A-2 Notes;
(c) the Class B Notes; and
(d) the Redraw Bonds,
with the Class A-2 Notes being further divided into two sub-classes as
follows:
(e) the Class A-2 Tranche 1 Notes; and
(f) the Class A-2 Tranche 2 Notes.
5.2 Form, constituent documents and denomination of the Securities
(a) (Class A-1 Note): The Class A-1 Notes will be in registered form,
without coupons; upon issue, will be represented by 1 or more Class
A-1 Book Entry Notes (as defined in the US Dollar Note Trust Deed)
(and interests in such Class A-1 Book Entry Notes may be exchanged for
Class A-1 Definitive Notes (as defined in the US Dollar Note Trust
Deed) in the circumstances set out in clause 3.4(a) of the
47
US Dollar Note Trust Deed); will be constituted, issued and
authenticated pursuant to the US Dollar Note Trust Deed and will be
denominated in US dollars.
(b) (A$ Securities): The A$ Securities will, upon issue, be in the form of
registered debt securities, will be constituted pursuant to the Master
Trust Deed and this Deed and will be denominated in Australian
dollars.
5.3 Trustee must Issue the Notes
Subject to the satisfaction of all conditions precedent in respect thereof
in the Transaction Documents, the Trustee on the Closing Date must issue:
(a) (Class A-1 Notes): the Class A-1 Notes in accordance with the US
Dollar Note Trust Deed and the Underwriting Agreement; and
(b) (Class A-2 and B Notes): the Class A-2 Notes and the Class B Notes in
accordance with this Deed and the Dealer Agreement.
5.4 Issue of Redraw Bonds
If the Trustee receives:
(a) (Notice under Clause 8.4): a notice from the Manager pursuant to
clause 8.4; and
(b) (No downgrade): a Rating Affirmation Notice from each Rating Agency in
relation to the proposed issue of Redraw Bonds,
the Trustee must issue Redraw Bonds up to the amount specified in the
notice on the date for issue of the Redraw Bonds referred to in the notice.
5.5 Initial Invested Amount of the Securities
(a) (Class A-1 Notes): Each Class A-1 Note on its issue will have an
Initial Invested Amount as set out on the face of that Class A-1 Note
and will be issued at par value.
(b) (A$ Securities): Each A$ Security on its issue will have an Initial
Invested Amount of A$100,000 and will be issued at par value.
5.6 Interest on the Securities
(a) (Class A-1 Notes): Each Class A-1 Note will accrue interest, and such
interest will be payable, in accordance with the US Dollar Note
Conditions.
(b) (A$ Securities):
(i) Each A$ Security will accrue interest from (and including) its
Issue Date and will cease to accrue interest from (and including)
the earlier of:
A. the date on which the Stated Amount of the A$ Security is
reduced to zero and all accrued interest in respect of the
A$ Security is paid in full; and
B. the date on which the A$ Security is deemed to be repaid in
accordance with clause 5.7(b)(iv).
(ii) The period that an A$ Security accrues interest in accordance
with clause 5.6(b)(i) will be divided into periods (each
included within the definition of an "Accrual Period"). The
first such period for an A$ Security will commence on (and
include) the Issue Date for that A$ Security and will
48
end on (but will not include) the next Distribution Date. Each
succeeding such period will be equal to each corresponding
Accrual Period. The final such period for an A$ Security will
end on (but will not include) the date on which interest ceases
to accrue on the A$ Security pursuant to clause 5.6(b)(i).
(iii) Interest on each A$ Security for each of its Accrual Periods
will accrue on a daily basis at the product of the Interest Rate
applicable to that A$ Security and the Invested Amount of the A$
Security at the close of business on the first day of that
Accrual Period and will be calculated on a daily basis and based
on a 365 day year.
(iv) Interest so calculated on an A$ Security will, subject to this
Deed, be payable in arrears on each Distribution Date.
5.7 Redemption of the Securities
(a) (Class A-1 Notes): The Class A-1 Notes will be redeemed or deemed to
be redeemed) in accordance with the US Dollar Note Conditions.
(b) (A$ Securities):
(i) Unless previously redeemed in full, the Trustee will, subject to
this Deed, redeem each A$ Security at its then Stated Amount,
together with all accrued but unpaid interest, on the Scheduled
Maturity Date.
(ii) Subject to clauses 5.7(b)(iii) and (iv), on each Distribution
Date referred to in clause 10.5, an A$ Security will be redeemed
(either in whole or in part as the context requires) to the
extent that any moneys are applied by the Trustee pursuant to
clause 10.5 to that A$ Security.
(iii) Unless previously redeemed in full, the Trustee must redeem all,
but not some only, of the A$ Securities, when required to do so
in accordance with, and for the amount required under,
Conditions 7.3 and 7.4 of the US Dollar Note Conditions.
(iv) Upon a final distribution being made in respect of an A$
Security under clause 26.12 of this Deed or clause 13.1 of the
Security Trust Deed, each A$ Security will thereupon be deemed
to be redeemed and discharged in full and any obligation to pay
any accrued but unpaid interest and any then unpaid, Stated
Amount, Invested Amount or any other amounts in relation to the
A$ Security will be extinguished in full.
(v) Subject to clause 5.7(b)(iii), no amount of principal will be
repaid in respect of an A$ Security in excess of the Stated
A mount of that A$ Security.
5.8 Interest on Overdue Interest on the Securities
(a) (Class A-1 Notes): If interest is not paid in respect of a Class A-1
Note on the date when due and payable in accordance with the US Dollar
Note Conditions, the unpaid interest will in turn bear interest in
accordance with the US Dollar Note Conditions.
(b) (A$ Securities): If interest is not paid in respect of an A$ Security
on the date when due and payable in accordance with this Deed (but
without regard to any limitation herein contained) that unpaid
interest will in turn bear interest at the Interest Rate from time to
time applicable on that A$ Security until (but excluding)
49
the date on which the unpaid interest, and interest on it, is paid in
accordance with clause 10.2.
5.9 Rounding of Payments on the Securities
(a) (Class A-1 Notes): All payments in respect of the Class A-1 Notes will
be rounded in accordance with the US Dollar Note Conditions.
(b) (A$ Securities): All payments in respect of the A$ Securities will be
rounded down to the nearest cent.
5.10 Securities Rank Equally Except for Special Rights
The Securities enjoy the same rights, entitlements, benefits and
restrictions, except as expressly provided in this Deed, the Master Trust
Deed, the US Dollar Note Trust Deed, the Class A-1 Notes and the Security
Trust Deed.
5.11 Transfer of Securities
(a) (Master Trust Deed): Clause 10.4(a) of the Master Trust Deed does not
apply to the Securities.
(b) (Transfer of A$ Securities in accordance with Corporations Act): A
Securityholder is only entitled to transfer an A$ Security if the
offer of the A$ Security for sale, or the invitation to purchase the
A$ Security, to the proposed transferee by the Securityholder is an
offer or invitation that does not need disclosure to investors under
Part 6D.2 of Chapter 6 of the Corporations Act and otherwise complies
with the Corporations Act.
(c) (Regulation S): An A$ Security may not be offered or sold within the
United States of America or to, or for the account or benefit of, US
persons except in accordance with Regulation S under the Securities
Act or pursuant to an exemption from the registration requirements of
the Securities Act. Terms used in this clause 5.11(c) have the meaning
given to them by Regulation S under the Securities Act.
--------------------------------------------------------------------------------
6. Conditions precedent to acceptance of Sale Notice and issue of Notes
6.1 General Conditions Precedent
The Trustee must receive each of the following documents before it can
accept the offer contained in any Sale Notice (if issued) or issue the
Notes:
(a) (Standby Redraw Facility): an executed original counterpart of the
Standby Redraw Facility Agreement together with a letter from the
Standby Redraw Facility Provider confirming that all conditions
precedent to the Standby Redraw Facility have been received in a form
and substance satisfactory to it;
(b) (Liquidity Facility): an executed original counterpart of the
Liquidity Facility Agreement, together with a letter from the
Liquidity Facility Provider confirming that all conditions precedent
to the Liquidity Facility have been received by it in form and
substance satisfactory to it;
(c) (Interest Rate Swap Agreement): an executed original counterpart of
the Interest Rate Swap Agreement together with a letter from the
Interest Rate Swap Provider confirming that all conditions precedent
to the Interest Rate Swap Agreement have been received in form and
substance satisfactory to it;
50
(d) (Currency Swap Agreements): an executed original counterpart of each
initial Currency Swap Agreement, together with a letter from each
initial Currency Swap Provider confirming that all conditions
precedent to its Currency Swap Agreement have been received by it in
form and substance satisfactory to it.
(e) (Security Trust Deed): an executed original counterpart of the
Security Trust Deed;
(f) (US Dollar Note Trust Deed): an executed original counterpart of the
US Dollar Note Trust Deed;
(g) (Agency Agreement): an executed original counterpart of the Agency
Agreement;
(h) (Dealer Agreement and Underwriting Agreement): an executed original
counterpart of the Dealer Agreement and the Underwriting Agreement;
(i) (PMI Mortgage Insurance Policy): an executed original counterpart of
the PMI Mortgage Insurance Policy together with a letter from PMI
confirming that it has accepted for insurance under the PMI Mortgage
Insurance Policy the Mortgage Loans referred to in the certificate
attached to the letter and that the Trustee has paid the premium in
respect of the PMI Mortgage Insurance Policy;
(j) (Computer diskette): a computer diskette from each Seller in a form
agreed between that Seller and the Trustee containing in relation to
the Mortgage Loans the subject of that Seller's Sale Notice:
(i) a list of all of the offices at which the Mortgage Documents
relating to the Mortgage Loans are retained, showing the street
address and telephone number of the relevant office;
(ii) the surname and address of the Borrower under each Mortgage
Loan;
(iii) the account number of each Mortgage Loan;
(iv) the street address of the Land which is the subject of the
Mortgage relating to each Mortgage Loan; and
(v) such other information in respect of the Mortgage Loans as is
agreed between that Seller and the Trustee;
(k) (Letter explaining identification methodology): a letter from each
Seller which explains (in a manner satisfactory to the Trustee) how
the security packages containing the Mortgage Documents are marked or
segregated so as to enable the Trustee to identify those security
packages when at the premises of the Servicer where the security
packages are stored;
(l) (Seller letter): a letter (copied to the Rating Agencies) from each
Seller which, in a manner satisfactory to the Trustee, explains how
the Mortgage Loans are marked on the Mortgage Loan System so that
those Mortgage Loans, if necessary, can be separately identified by
the Trustee;
(m) (Confirmation from Rating Agencies): confirmation from each of the
Rating Agencies that the Class A Notes have been assigned a
provisional rating of AAA (in the case of S&P), Aaa (in the case of
Xxxxx'x) and AAA in the case of Fitch and the Class B Notes have been
assigned a provisional rating of AA (in the case of S&P) and AA (in
the case of Fitch);
51
(n) (Powers of attorney):
(i) 10 originals of a power of attorney from each Seller in favour
of the Trustee substantially in the form contained in Schedule 2
or in such other form or such other number of copies as is
required to enable registration of such power of attorney in
each State and Territory of Australia in which registration is
necessary or desirable (other than Queensland or Western
Australia);
(ii) 2 originals of a power of attorney from each Seller in favour of
the Trustee substantially in the form contained in Schedule 3 or
in such other form as is required to enable registration of such
power of attorney in Queensland;
(iii) 2 originals of a power of attorney from each Seller in favour of
the Trustee substantially in the form contained in Schedule 4 or
in such other form as is required to enable registration of such
power of attorney in Western Australia; and
(iv) 2 originals of each power of attorney referred to in Schedule 11
from Homepath in favour of the Servicer in its role as Custodian
substantially in the form contained in Parts A, B and C of
Schedule 11 respectively (or such other form as the Servicer may
reasonably require in relation to its custodial duties under
this Deed);
(o) (Authorised Officers): a certificate setting out in full the name and
specimen signature of each Authorised Officer of the Manager, the
Servicer and each Seller;
(p) (Legal opinions): legal opinions from:
(i) Xxxxxxx Xxx:
A. as to, amongst other things, the validity and
enforceability of the obligations of each Seller, the
initial Servicer and the initial Manager under the
Transaction Documents, or those parts of the Transaction
Documents, expressed to be governed by Australian law;
B. as to the tax and stamp duty implications of the Series
Trust and the transactions contemplated by the Transaction
Documents; and
(ii) Mallesons Xxxxxxx Xxxxxx as to the validity and enforceability
of the obligations of the Trustee and the Security Trustee under
the Transaction Documents;
(iii) Xxxxxxx Wisewoulds as to the validity and enforceability of the
obligations of PMI under the PMI Mortgage Insurance Policy;
(iv) Xxxxx, Xxxxx, Xxxx & Xxx as to, amongst other things, the
validity and enforceability of the obligations of each Seller
and the Manager under the Transaction Documents, or those parts
of the Transaction Documents, expressed to be governed by the
laws of the State of New York;
(v) Xxxxx, Xxxxxx & Xxxxxx, LLP as to due execution by The Bank of
New York of the Transaction Documents to which The Bank of New
York is a party; and
52
(vi) internal counsel of Deutsche Bank AG, New York Branch as to the
due execution by Deutsche Bank AG, New York Branch of the
Currency Swap Agreements.
(q) (Direction from the Manager): a written direction from the Manager for
the Trustee to accept the Sale Notice and to issue the Notes.
6.2 Other Conditions Precedent
Without limiting the generality of clauses 4.9 and 6.1, the Trustee must
not accept the offer contained in any Sale Notice (if issued) and must not
issue any Notes unless it is satisfied that the form and content of that
Sale Notice complies with this Deed.
6.3 No Liability for Insufficient Moneys
If on the Closing Date the Trustee has not received each of the documents
specified in clause 6.1 or the condition specified in clause 6.2 is not
fulfilled:
(a) (No acceptance): the Trustee must not accept the offer contained in
any Sale Notice (if issued);
(b) (No issue): the Trustee must not issue any Notes and must refund the
Subscription Proceeds (if any) received by it to the relevant
subscribers entitled to such Subscription Proceeds; and
(c) (No liability): none of the Trustee, the Manager, the Servicer or the
Sellers will have any obligation or liability to any person as a
result of not issuing the Notes.
6.4 Manager's Certificate
The Manager must not issue a direction to the Trustee pursuant to clause
6.1(q) unless the Manager:
(a) (Compliance with Securities Laws): is satisfied that any offer for the
issue, or any invitation to apply for the issue, of:
(i) the Class A-2 Notes and the Class B Notes:
A. is an offer of securities for issue, or is an invitation to
apply for the issue of securities, which does not need
disclosure to investors under Part 6D.2 of Chapter 6 of the
Corporations Act; and
B. is made pursuant to an exemption from, or is not subject
to, the registration requirements of the Securities Act;
and
(ii) the Class A-1 Notes complies with:
A. the Financial Services and Markets Act, 2000 (United
Kingdom), all regulations made under or in relation to that
Act and the Public Offers of Securities Regulations 1995 as
amended; and
B. the Securities Act, all regulations made thereunder and all
other laws or regulations of any jurisdiction of the United
States of America regulating the offer or the issue of, or
the subscription for, the Class A-1 Notes.
53
The Manager on becoming satisfied as to the above matters is entitled
to rely conclusively, unless it has actual knowledge to the contrary,
on, amongst other things, legal opinions or other advice issued to
this effect to it or any representation or undertaking made to this
effect in the applicable Dealer Agreement or Underwriting Agreement;
(b) (No breach by Seller of representations): is not actually aware that
any representation or warranty made or taken to be made by a Seller in
any Transaction Document in respect of the Series Trust is incorrect
in any material respect on the Cut-Off Date as if repeated on that
Cut-Off Date with reference to facts and circumstances then
subsisting;
(c) (Breach of obligations by Seller): is not actually aware that a Seller
is in breach in any material respect of any of its obligations under
this Deed (unless that breach has been remedied to the satisfaction of
the Manager);
(d) (Insolvency Event for Seller): is not actually aware that an
Insolvency Event has occurred in relation to a Seller (unless that
event has been remedied to the satisfaction of the Manager); and
(e) (Other conditions precedent): is satisfied that such other conditions
precedent to the issue of the Notes and the acceptance by the Trustee
of the offer contained in any Sale Notice as are specified in the
Transaction Documents have been met.
--------------------------------------------------------------------------------
7. Division of Mortgage Loan Rights between the CBA Trust and the Series Trust
7.1 CBA Trust Assets
The Trustee will hold as trustee of the CBA Trust all its right, title and
interest in:
(a) (Other Loans): the Other Loans;
(b) (Balance of Mortgages etc.): the balance of the Mortgages, the
Mortgage Documents, the First Layer of Collateral Securities and the
Mortgage Receivables referred to in clause 7.2(b); and
(c) (Second Layer of Collateral Securities): the Second Layer of
Collateral Securities,
which are assigned to the Trustee by a Seller.
7.2 Mortgages and First Layer of Collateral Securities
(a) (The Series Trust): The Trustee will hold as trustee of the Series
Trust all its right, title and interest in so much of any Mortgage
Loan, Mortgage, the First Layer of Collateral Securities, the Mortgage
Receivables and the Mortgage Documents for each Mortgage Loan assigned
to the Trustee (including, without limitation, the proceeds of
enforcement of such in relation to the Mortgage Loan ) as is necessary
to enable the full and final repayment of all amounts owing with
respect to the Mortgage Loan.
(b) (The CBA Trust): The Trustee will hold as trustee for the CBA Trust
the balance (if any) of its right, title and interest in any Mortgage
Loan, Mortgage, First Layer of the Collateral Securities, Mortgage
Receivables and Mortgage Documents referred to in clause 7.2(a).
54
7.3 Treatment of Shared Securities
If:
(a) (Mortgage Loans in Series Trust): a Mortgage Loan forms part of the
Assets of the Series Trust;
(b) (Other Loans in CBA Trust): an Other Loan forms part of the CBA Trust
Assets; and
(c) (Collateral Security secures both): a Collateral Security which is
part of the First Layer of Collateral Securities or a Mortgage which
secures the Mortgage Loan also secures the Other Loan,
then:
(d) (If Seller is Servicer): where the relevant Seller in relation to the
Mortgage Loan is the Servicer, the Servicer is entitled to enforce
that Collateral Security or Mortgage (as the case may be) upon a
default occurring in respect of the Other Loan provided that the
enforcement proceeds are paid to the Trustee. Upon receipt of such
proceeds the Trustee must:
(i) treat as Collections the amount of such proceeds as is equal to
all amounts outstanding under the relevant Mortgage Loan; and
(ii) pay the excess (if any) of such proceeds to that Seller (as
beneficiary of the CBA Trust) in respect of amounts outstanding
under the Other Loan; or
(e) (If Seller is not Servicer): where the relevant Seller in relation to
a Mortgage Loan is not the Servicer, the Servicer must enforce that
Collateral Security or Mortgage (as the case may be) upon receipt of a
direction to do so from that Seller (as beneficiary of the CBA Trust)
which states that the relevant Other Loan is in default. Upon receipt
of the enforcement proceeds in respect of that Collateral Security or
Mortgage (as the case may be) the Servicer must pay to the Trustee all
such proceeds and the Trustee must:
(i) treat as Collections the amount of such proceeds as is equal to
all amounts outstanding under the relevant Mortgage Loan; and
(ii) pay the excess (if any) of such proceeds to that Seller (as
beneficiary of the CBA Trust) in respect of amounts outstanding
under the Other Loan.
7.4 Trustee's duties
Subject to clauses 2.8(b), 2.9(b), 2.10 and 7.3, the Trustee is not
required to take any action in respect of an Other Loan or the Second Layer
of Collateral Securities or the balance of the Trustee's right, title and
interest in any Mortgage, First Layer of Collateral Securities and Mortgage
Receivables referred to in clause 7.2(b).
7.5 Upon Repayment of Mortgage Loan Trustee Holds for CBA Trust
Subject to clause 7.6, if a Mortgage Loan has been repaid in full or is
treated as having been repaid in full pursuant to clause 16.20(b), and the
Mortgage Loan is not discharged, then, from the date of repayment or
treated repayment in full of the Mortgage Loan, automatically by virtue of
this Deed, and without the necessity for any further act or instrument or
other thing to be done or brought into existence:
(a) (Title Not Perfected): if the Trustee has not perfected its legal
title to the Mortgage
55
Loan, the Trustee's entire right, title and interest in the Mortgage
Loan and in the Mortgage Loan Rights in relation to the Mortgage Loan
then forming part of the Assets of the Series Trust will be
extinguished in favour of the relevant Seller with respect to the
Mortgage Loan with immediate effect; or
(b) (Title Perfected): if the Trustee has perfected its legal title to the
Mortgage Loan, the Trustee will hold the benefit of its right, title
and interest in and to:
(i) the Mortgage Loan;
(ii) any Mortgages, and the First Layer of Collateral Securities,
held in respect of that Mortgage Loan;
(iii) any Mortgage Documents held in relation to that Mortgage Loan;
and
(iv) the Mortgage Receivables held in relation to that Mortgage Loan,
as trustee of the CBA Trust.
7.6 Application Where 2 Mortgage Loans
If the Mortgages, First Layer of Collateral Securities, Mortgage Documents,
and Mortgage Receivables referred to in clause 7.5 apply to more than one
Mortgage Loan forming part of the Assets of the Series Trust, the holding
of the Trustee's interest in such as trustee of the CBA Trust occurs only
upon repayment in full of all such Mortgage Loans secured by such
Mortgages, First Layer of Collateral Securities, Mortgage Documents and
Mortgage Receivables.
7.7 Costs
Each Seller must pay to, or reimburse, the Trustee immediately on demand
for all costs and expenses including, without limitation, all legal costs
charged at the usual commercial rates of the relevant legal services
provider and any stamp duty and registration fees arising out of, or
necessarily incurred in connection with, the Trustee coming to hold its
right, title and interest in any Mortgage Loan Rights as part of the CBA
Trust Assets in relation to that Seller for the CBA Trust in accordance
with clause 7.5.
7.8 Alternative Structure
The Trustee must co-operate with a Seller in transferring or holding the
relevant assets set out in clause 7.5 in any reasonable way other than as
set out in this clause 7 if to do so would materially reduce the liability
of that Seller to reimburse the Trustee for any of the costs and expenses
set out in clause 7.7 and provided that any proposal pursuant to this
clause is permitted in law and does not result in the Trustee being exposed
to the risk of personal liability unless the Trustee is satisfied, in its
absolute discretion, that that Seller will be able to indemnify the Trustee
in respect of such risk in accordance with clause 2.15(a).
--------------------------------------------------------------------------------
8. Determinations by the Manager
8.1 Applications and payments on Distribution Dates
Prior to each Distribution Date, based on information provided by the
Servicer, the Manager must make all necessary determinations to enable the
Trustee to make the payments or allocations to be made by the Trustee on
that Distribution Date pursuant to this Deed (including, for the first
Distribution Date, the aggregate of the Accrued Interest Adjustment) and
must give to the Trustee a written direction by 11 am (Sydney time) on the
Business Day prior to each Distribution Date in relation to the payments
and allocations to be made on that Distribution Date in accordance with
this Deed.
56
8.2 Insufficient principal to meet Xxxxxx Advances
(a) (Manager must prepare standby redraw notice): If on a Determination
Date the Manager determines that the amount by which the aggregate of
the Principal Collections, the Principal Draw Reimbursement, the
Principal Chargeoff Reimbursement and the Other Principal Amounts for
the Collection Period then ended exceeds any Net Income Shortfall on
that Determination Date is insufficient to meet in full the Seller
Advances referred to in clause 10.3(a), the Manager must prepare and
forward to the Trustee no later than the close of business 3 Business
Days prior to the immediately following Distribution Date a drawdown
notice under and in accordance with the Standby Redraw Facility
Agreement requesting a drawing under the Standby Redraw Facility for
an amount equal to the lesser of the shortfall and the amount which is
available for drawing under the Standby Redraw Facility (which notice
must also specify the calculations used in determining the drawing so
requested).
(b) (Trustee must execute and serve standby redraw notice): If the Trustee
receives a drawdown notice from the Manager pursuant to clause 8.2(a),
the Trustee must promptly sign and serve the drawdown notice on the
Standby Redraw Facility Provider pursuant to the Standby Redraw
Facility Agreement requesting a drawing on the immediately following
Distribution Date.
8.3 Gross Income Shortfall
(a) (Manager must prepare liquidity notice): If on a Determination Date
there is a Gross Income Shortfall, the Manager must prepare and
forward to the Trustee no later than the close of business 3 Business
Days prior to the immediately following Distribution Date a notice
under and in accordance with the Liquidity Facility Agreement
requesting a drawing under the Liquidity Facility for an amount equal
to the lesser of the Gross Income Shortfall and the amount which is
available for drawing under the Liquidity Facility (which notice must
also specify the calculations used in determining the drawing so
requested).
(b) (Trustee must execute and deliver liquidity notice): If the Trustee
receives a notice from the Manager pursuant to clause 8.3(a) then the
Trustee must immediately sign and serve the drawdown notice on the
Liquidity Facility Provider pursuant to the Liquidity Facility
Agreement requesting a drawing on the immediately following
Distribution Date.
8.4 Insufficient principal to meet Xxxxxx Advances and Xxxxxxx Xxxxxx Facility
Principal
If, in respect of a Determination Date, the Manager considers that the
aggregate of:
(a) (Principal Collections): the amount by which the aggregate of the
Principal Collections, the Principal Draw Reimbursement, the Principal
Chargeoff Reimbursement and the Other Principal Amounts for the
Collection Period ending on that Determination Date exceeds any Net
Income Shortfall on that Determination Date; and
(b) (Standby Redraw Facility Advance): the Standby Redraw Facility Advance
(if any) to be made on the immediately following Distribution Date,
as estimated by the Manager are likely to be insufficient to meet in full
under clause 10.3 the aggregate of:
(c) (Seller Advances): the Seller Advances; and
57
(d) (Standby Redraw Facility Principal): the Standby Redraw Facility
Principal,
that the Manager estimates will be outstanding on that Determination Date,
the Manager may prepare and forward to the Trustee a notice directing the
Trustee to issue Redraw Bonds for a principal amount and on an issue date
(which must be no earlier than 5 Business Days from the date of receipt of
the notice by the Trustee) specified in the notice. The Manager must not
issue such a notice to the Trustee if the Manager considers that the Stated
Amount of the Redraw Bonds at the immediately following Distribution Date
(after including the proposed issue of Redraw Bonds and taking into account
any expected repayments of principal on the Redraw Bonds pursuant to clause
10.5) will exceed the Redraw Bond Principal Limit.
8.5 Netting of Seller Advances and Xxxxxxx Xxxxxx Facility Advances
If whilst the Standby Redraw Facility Provider is CBA, the Standby Redraw
Facility Provider makes a Standby Redraw Facility Advance on a Distribution
Date by way of a book entry in its records pursuant to clause 4.6 of the
Standby Redraw Facility Agreement:
(a) (Standby Redraw Facility Advance to be taken into account): the amount
of the Standby Redraw Facility Advance will be taken into account for
the purpose of the calculations to be made hereunder on that
Distribution Date and the immediately previous Determination Date; and
(b) (CBA's Seller Advances Reduced): the amount of the then outstanding
Seller Advances made by CBA will be reduced by the amount of such book
entry on that Distribution Date, without the Trustee needing to make
the corresponding payment under clause 10.3(a).
8.6 Cash Advance Deposit
On each Determination Date the Manager will determine the amount (if any)
that has been received in the Collection Period just ended in respect of
interest that has been earned on the Collections Account and which is
attributable to the Cash Advance Deposit (if any) deposited in the
Collections Account and will instruct the Trustee to pay such interest to
the Liquidity Facility Provider on the immediately following Distribution
Date.
8.7 Break Costs and Break Benefits
(a) (Application of Clause): If the Trustee is party to a Fixed Rate Swap:
(i) this clause 8.7 will apply (but otherwise shall be of no
effect); and
(ii) Break Costs will not be included in the definition of Finance
Charge Collections (except as set out in clauses 8.7(c) and (d))
and Break Benefits will not be included in the definition of
Expenses.
(b) (Payment of Break Benefits): The Servicer must pay any Break Benefits
payable to Borrowers during a Collection Period from the Finance
Charge Collections received during that Collection Period and not yet
deposited by the Servicer in the Collections Account in accordance
with clause 22. If the Finance Charge Collections held by the Servicer
and not deposited in the Collections Account are insufficient to pay
any Break Benefits due to be paid to a Borrower, the Servicer must
direct the Trustee, and upon such direction the Trustee must pay to
the Borrower, such Break Benefits from the Finance Charge Collections
in the Collections Account received during that Collection Period to
the extent of the shortfall.
(c) (Net Break Payment): If there is a Net Break Payment on a
Determination Date, the Trustee must:
58
(i) pay the Break Costs in relation to the immediately preceding
Collection Period to the extent of the Net Break Payment to the
Interest Rate Swap Provider on the immediately following
Distribution Date in accordance with the Interest Rate Swap
Agreement; and
(ii) treat the balance of the Break Costs in relation to the
immediately preceding Collection Period as Finance Charge
Collections in relation to that Collection Period.
(d) (Net Break Receipt): If there is a Net Break Receipt on a
Determination Date, the Trustee must:
(i) treat the Break Costs in relation to the immediately preceding
Collection Period as Finance Charge Collections in relation to
that Collection Period; and
(ii) treat any amount received from the Interest Rate Swap Provider
on the immediately following Distribution Date in respect of the
Net Break Receipt in accordance with the Interest Rate Swap
Agreement as an Available Income Amount with respect to that
Distribution Date.
(e) (Manager to Determine): The Manager must determine on each
Determination Date the Net Break Payment or Net Break Receipt, as the
case may be, and must direct the Trustee as to the payments to be made
by the Trustee, if any, in accordance with this clause 8.7.
8.8 Interest Rate Swap Provider Deposit
On each Determination Date the Manager will determine the amount (if any)
that has been received in the Collection Period just ended in respect of
interest that has been earned on the Collections Account or any other
account held by the Trustee as trustee of the Series Trust and which is
attributable to the Interest Rate Swap Provider Deposit (if any) deposited
in the Collections Account or that other account and will instruct the
Trustee to pay such interest to the Interest Rate Swap Provider on the
immediately following Distribution Date.
--------------------------------------------------------------------------------
9. Chargeoffs
9.1 Allocation of Principal Chargeoffs
If there is a Principal Xxxxxxxxx on a Determination Date prior to the
enforcement of the Charge, it will be allocated in the following order:
(a) (Class B Notes): first, amongst the Class B Notes equally in reduction
of the Stated Amount of the Class B Notes until the Stated Amount of
the Class B Notes is reduced to zero; and
(b) (Other Securities and Standby Redraw Facility Provider): secondly, any
balance of the Principal Chargeoff remaining after the application of
clause 9.1(a) will be allocated as follows:
(i) the Class A-1 Chargeoff Percentage of such balance rateably
amongst the Class A-1 Notes according to the Stated Amount of
each Class A-1 Note;
(ii) the Class A-2 Chargeoff Percentage of such balance rateably
amongst the Class A-2 Notes according to the Stated Amount of
each Class A-2 Note;
59
(iii) the Redraw Bond Chargeoff Percentage of such balance rateably
amongst the Redraw Bonds according to the Stated Amount of each
Redraw Bond; and
(iv) the Standby Redraw Chargeoff Percentage of such balance to the
Standby Redraw Facility Principal,
in reduction, respectively, of the Stated Amount of the Class A-1
Notes (in accordance with the US Dollar Note Conditions), the Stated
Amount of the Class A-2 Notes and the Redraw Bonds and the Standby
Redraw Facility Principal, until such Stated Amounts and the Standby
Redraw Facility Principal are reduced to zero.
A reduction in the Stated Amount of a Security and the Standby Redraw
Facility Principal in accordance with the foregoing will take effect on the
immediately following Distribution Date by the amount so allocated.
9.2 Allocation of Principal Chargeoff Reimbursements
If there is a Principal Chargeoff Reimbursement on a Determination Date,
then it will be allocated in the following order:
(a) (Class A Notes, Redraw Bonds and Standby Redraw Facility Provider):
first, pro-rata (according to, in the case of the Class A-1 Notes, the
A$ Equivalent of the aggregate Unreimbursed Principal Chargeoffs on
that Determination Date, in the case of the Class A-2 Notes and the
Redraw Bonds, their respective aggregate Unreimbursed Principal
Chargeoffs on that Determination Date and, in the case of the Standby
Redraw Facility Principal, its Unreimbursed Principal Chargeoffs on
that Determination Date) as follows:
(i) rateably amongst the Class A-1 Notes according to the
Unreimbursed Principal Chargeoff of each Class A-1 Note;
(ii) rateably amongst the Class A-2 Notes according to the
Unreimbursed Principal Chargeoff of each Class A-2 Note;
(iii) rateably amongst the Redraw Bonds according to the Unreimbursed
Principal Chargeoff of each Redraw Bond; and
(iv) the Standby Redraw Facility Principal,
in reduction of, respectively, the amount of the Unreimbursed
Principal Chargeoffs on the Class A-1 Notes (in accordance with the US
Dollar Note Conditions) and the Unreimbursed Principal Chargeoffs on
the Class A-2 Notes, the Redraw Bonds and the Standby Redraw Facility
Principal, until such Unreimbursed Principal Chargeoffs are reduced to
zero; and
(b) secondly, equally amongst the Class B Notes until the amount of
Unreimbursed Chargeoffs on the Class B Notes are reduced to zero.
A reduction of an Unreimbursed Principal Chargeoff in accordance with the
foregoing will take effect on the immediately following Distribution Date
by the amount so allocated.
9.3 Loss Recoveries
If the Servicer receives or collects any Loss Recoveries in respect of a
Mortgage Loan for which payment has already been received by or on behalf
of the Trustee from a Support Facility Provider, then the Servicer must pay
such amount to the relevant Support Facility Provider pursuant to the
relevant Support Facility. Where the Trustee is entitled to retain any
60
such Loss Recoveries pursuant to such Support Facility, or receives any
Loss Recoveries from the Support Facility Provider, then such amounts will
be included in Other Income Amounts.
--------------------------------------------------------------------------------
10. Payments on Distribution Dates by Trustee
10.1 Payment of Accrued Interest Adjustment on first Distribution Date
On the first Distribution Date, the Trustee must, in accordance with the
directions given to it by the Manager pursuant to clause 8.1, pay from the
Collections Account to each Seller the aggregate of the Accrued Interest
Adjustment for all Mortgage Loans then forming part of the Assets of the
Series Trust and which were assigned to the Trustee by that Seller. Such
aggregate sum will, for the purposes of making the determinations pursuant
to clause 8.1 on the first Determination Date, be deducted by the Manager
from the Available Income Amount in respect of the first Distribution Date.
10.2 Application of the Available Income Amount on each Distribution Date
On each Distribution Date prior to the enforcement of the Charge, the
Trustee must, in accordance with the directions given by the Manager
pursuant to clause 8.1, apply the Available Income Amount in respect of
that Distribution Date in making the following allocations, and the
following payments from the Collections Account, in the following order of
priority:
(a) (Taxes): first, in or towards payment of or provision for Taxes in
relation to the Series Trust (including Government Charges paid by the
Servicer on behalf of the Trustee);
(b) (Trustee's Fee): secondly, in or towards payment to the Trustee of the
Trustee's Fee due on that Distribution Date;
(c) (Security Trustee's Fee): thirdly, in or towards payment to the
Security Trustee of the Security Trustee's Fee due on that
Distribution Date;
(d) (Management Fee): fourthly, in or towards payment to the Manager of
the Management Fee due on that Distribution Date;
(e) (Servicer's Fee): fifthly, in or towards payment to the Servicer of
the Servicer's Fee due on that Distribution Date;
(f) (Liquidity Facility Commitment Fee): sixthly, in or towards payment to
the Liquidity Facility Provider of the Liquidity Facility Commitment
Fee due on that Distribution Date;
(g) (Support Facilities): seventhly, in or towards payment rateably of any
net amounts due to a Support Facility Provider under a Support
Facility on that Distribution Date, but excluding any amounts
specified in paragraph (f) above, paragraphs (i), (j) and (k)(i) &
(iv) below and clauses 9.3 and 10.3(c);
(h) (Expenses): eighthly, in or towards payment of or provision for all
Expenses in respect of the Accrual Period ending on that Distribution
Date;
(i) (Standby Redraw Facility Commitment Fee): ninthly, in or towards
payment to the Standby Redraw Facility Provider of the Standby Redraw
Facility Commitment Fee due on that Distribution Date;
(j) (Liquidity Facility Advance): tenthly, in or towards repayment to the
Liquidity Facility Provider of any outstanding Liquidity Facility
Advance made on or prior to the immediately previous Distribution
Date;
61
(k) (Class A Note, Redraw Bond and Standby Redraw Facility Interest):
eleventhly, subject to clause 10.8, in payment rateably as follows:
(i) to the Currency Swap Providers in accordance with clause 10.4 of
the A$ Class A-1 Interest Amounts, and any A$ Class A-1 Unpaid
Interest Amounts, in relation to that Distribution Date;
(ii) rateably, according to the sum of the Interest Amounts for the
Accrual Period ending on that Distribution Date, and the Unpaid
Interest Amounts (if any), for each Class A-2 Note, amongst the
Class A-2 Notes of the aggregate of the Interest Amounts in
relation to the Class A-2 Notes for the Accrual Period ending on
that Distribution Date and any then Unpaid Interest Amounts in
relation to the Class A-2 Notes;
(iii) rateably, according to the sum of the Interest Amounts for the
Accrual Period ending on that Distribution Date, and the Unpaid
Interest Amounts (if any), for each Redraw Bond, amongst the
Redraw Bonds of the aggregate of the Interest Amounts in
relation to the Redraw Bonds for the Accrual Period ending on
that Distribution Date and any then Unpaid Interest Amounts in
relation to the Redraw Bonds; and
(iv) to the Standby Redraw Facility Provider of the aggregate of the
Standby Redraw Facility Interest (if any) due on that
Distribution Date and any Standby Redraw Facility Interest
remaining unpaid from prior Distribution Dates;
(l) (Class B Interest): twelfthly, subject to clause 10.8, in payment
equally amongst the Class B Notes of the aggregate of the
Interest Amounts in relation to the Class B Notes for the Accrual
Period ending on that Distribution Date and any then Unpaid
Interest Amounts in relation to the Class B Notes;
(m) (Principal Draw Reimbursement): thirteenthly, subject to clause 10.8,
the amount of any Principal Draw Reimbursement for the immediately
preceding Determination Date is to be allocated to the Available
Principal Amount to be paid in accordance with clause 10.3;
(n) (Principal Chargeoff Reimbursement): fourteenthly, subject to clause
10.8, the amount of the Principal Chargeoff Reimbursement for the
immediately preceding Determination Date is to be allocated to the
Available Principal Amount to be paid in accordance with clause 10.3;
(o) (Arranging Fee): fifthteenthly, subject to clause 10.8, in payment to
the Manager of the Arranging Fee due on that Distribution Date and any
Arranging Fee outstanding from any prior Distribution Date; and
(p) (Distribution): sixthteenthly, subject to clause 10.8, the balance in
payment to the Residual Unitholder, to be dealt with, and held by, the
Residual Unitholder pursuant to clause 11.1.
The obligations of the Trustee to make any payment or allocation under each
of the above paragraphs is limited in each case to the balance of the
Available Income Amount (if any) available after application in accordance
with the preceding paragraph or paragraphs.
10.3 Application of the Available Principal Amount on each Distribution Date
On each Distribution Date prior to the enforcement of the Charge, the
Trustee must in accordance with the directions given by the Manager
pursuant to clause 8.1, apply the Available Principal Amount in respect of
that Distribution Date in making the following
62
allocations and the following payments from the Collections Account, in the
following order of priority:
(a) (Seller Advances): first, subject to clause 8.5, in or towards
repayment rateably to each Seller on the next Distribution Date of any
Seller Advances made by that Seller during or prior to the Collection
Period just ended and which have not previously been repaid in
accordance with this clause 10.3(a);
(b) (Principal Draws): secondly, to be applied as a Principal Draw in
relation to the immediately preceding Determination Date and allocated
to the Available Income Amount to be paid in accordance with clause
10.2;
(c) (Standby Redraw Facility Principal): thirdly, in or towards repayment
to the Standby Redraw Facility Provider of any Standby Redraw Facility
Principal;
(d) (Securityholders): fourthly, subject to clause 10.8, in accordance
with clause 10.5; and
(e) (Residual Unitholder): fifthly, subject to clause 10.8, the balance
(if any) to the Residual Unitholder.
The obligations of the Trustee to make any payment under each of the above
paragraphs is limited in each case to the balance of the Available
Principal Amount (if any) available after application in accordance with
the previous paragraph or paragraphs.
10.4 Payment of Interest on the Class A-1 Notes
On each Distribution Date that any amount is payable to a Currency Swap
Provider pursuant to clause 10.2(k)(i), the Trustee must comply with
Condition 6.9 of the US Dollar Note Conditions in relation to that Currency
Swap Provider.
10.5 Repayment of Principal on the Securities
On each Distribution Date, prior to the enforcement of the Charge, the
Trustee must pay the amount available for distribution on that Distribution
Date in accordance with clause 10.3(d) in the following order:
(a) (Redraw Bonds): first, amongst the Redraw Bonds (if any) as a
repayment of principal on the Redraw Bonds in the following order:
(i) first, equally amongst those Redraw Bonds with the earliest
Issue Date until the Stated Amount of those Redraw Bonds is
reduced to zero;
(ii) secondly, equally amongst those Redraw Bonds with the next
earliest Issue Date (if any) until the Stated Amount of those
Redraw Bonds is reduced to zero; and
(iii) subsequently, equally amongst each subsequent group of Redraw
Bonds (if any) with the same Issue Date until the Stated Amount
of those Redraw Bonds is reduced to zero on the basis that a
Redraw Bond will not be entitled to any payment in respect of
principal under this clause 10.5 until the Stated Amount of all
Redraw Bonds with an earlier Issue Date than that Redraw Bond
has been reduced to zero;
(b) (Class A Notes): secondly, subject to clause 10.8, the lesser of the
balance (if any) of the amount available for distribution and the
Class A Principal Distribution for that Distribution Date (such lesser
amount being the "Class A Available Principal Distribution") rateably
as follows:
63
(i) the Class A-1 Percentage of the Class A Available Principal
Distribution to the Currency Swap Providers in accordance with
clause 10.6; and
(ii) the Class A-2 Percentage of the Class A Available Principal
Distribution amongst the Class A-2 Notes in the following order:
A. first, equally amongst the Class A-2 Tranche 1 Notes; and
B. secondly, equally amongst the Class A-2 Tranche 2 Notes,
until the Stated Amount of the Class A Notes is reduced to zero; and
(c) (Class B Notes): thirdly, subject to clause 10.8, the balance (if any)
of the amount available for distribution under this clause 10.5
equally amongst the Class B Notes until the Stated Amount of the Class
B Notes is reduced to zero.
10.6 Repayment of Principal on the Class A-1 Notes
On each Distribution Date that any amount is payable to a Currency Swap
Provider pursuant to clause 10.5(b)(i), the Trustee must comply with
Condition 7.2 of the US Dollar Note Conditions in relation to that Currency
Swap Provider.
10.7 Inability to Comply with Order of Priority
The inability of the Trustee or the Manager to comply with any order of
priority of payment specified in this Deed due to any law relating to the
rights of creditors generally or specifically does not constitute a Trustee
Default or a Manager Default and does not entitle any Securityholder or the
Residual Unitholder to take any action against the Trustee or the Manager.
Nothing in clause 8 or this clause 10 requires the Trustee or the Manager
to breach any Transaction Document or to fail to comply with any applicable
law.
10.8 No Payment in respect of Obligations ranking Equally or after Class A-1
Notes if no payment made to Currency Swap Provider
If on a given Distribution Date for whatever reason payment is not made in
full to a Currency Swap Provider in accordance with clauses 10.2(k)(i) and
10.5(b)(i), the Trustee must not make any payment or allocation (as the
case may be) pursuant to clauses 10.2(k)-(p) (inclusive), 10.3(d) & (e) or
10.5(b) & (c) on that Distribution Date or thereafter until and unless all
amounts outstanding under clauses 10.2(k)(i) and 10.5(b)(i) are paid to the
Currency Swap Provider (or other arrangements are entered into) that
enables all amounts of interest and principal due in respect of the Class
A-1 Notes to be paid or repaid to the Class A-1 Noteholders in full in US
dollars in accordance with the US Dollar Note Conditions.
10.9 Payments in respect of A$ Securities
All payments in respect of an A$ Security on a Distribution Date referred
to in this Deed must be made to the person recorded in the Register as the
holder of that A$ Security as at close of business on the Business Day
immediately preceding that Distribution Date.
--------------------------------------------------------------------------------
11. Net Tax Income of the Series Trust
11.1 Net Tax Income of the Series Trust absolutely vested in the Residual
Unitholder
The Net Tax Income of the Series Trust for each Financial Year will be
absolutely vested in the Residual Unitholder and the Residual Unitholder
will have an absolute vested interest in the Net Tax Income of the Series
Trust for that Financial Year. To the extent that such balance has not
actually been paid to the Residual Unitholder pursuant to clause 10.2(p)
during that
64
Financial Year, it will constitute an amount payable by the Trustee to the
Residual Unitholder to be satisfied only from Excess Distributions
otherwise payable to the Residual Unitholder in accordance with clause
10.2(p) on the Distribution Dates following the close of the Financial
Year. If in the last Financial Year of the Series Trust, such amount (if
any) in respect of the previous Financial Year has not been satisfied from
the Excess Distributions otherwise payable to the Residual Unitholder in
accordance with clause 10.2(p) on the Distribution Dates in the last
Financial Year, the shortfall, plus any such amount for the last Financial
Year, will be satisfied in full from, and only by, the payment of the
excess funds (if any) by the Trustee to the Residual Unitholder pursuant to
clause 26.15.
11.2 Excess Distribution
(a) (Deposit with the Residual Unitholder): A payment to the Residual
Unitholder of the Excess Distribution pursuant to clause 10.2(p) will
be held by the Residual Unitholder as a deposit by the Trustee with
the Residual Unitholder and will be dealt with in accordance with this
clause 11.2.
(b) (Application towards Net Tax Income): At the end of each Financial
Year, the Residual Unitholder will, and will be entitled to, deduct
from so much of the deposit standing to the credit of the Trustee
pursuant to clause 11.2(a)
(i) first, the Net Tax Income of the Series Trust for that Financial
Year absolutely vested in the Residual Unitholder for that
Financial Year pursuant to clause 11.1
(ii) secondly, an amount not exceeding the then Subscription Amount
notified by the Manager to the Trustee and the Residual
Unitholder that the Residual Unitholder is entitled to deduct as
a return of capital in the Series Trust represented by the
Residual Unit.
To the extent that there is any surplus in the amount so deposited
over the aggregated Net Tax Income vested pursuant to clause
11.2(b)(i) or paid as a return of capital pursuant to clause
11.2(b)(ii), in a Financial Year, after the capital in the Series
Trust has been reduced, the surplus will be dealt with in accordance
with this clause 11.2(b) in the succeeding Financial Year.
--------------------------------------------------------------------------------
12. Early Termination of Swaps
12.1 Early Termination of a Swap
If at any time a Fixed Rate Swap terminates prior to its scheduled
termination date, or the Basis Swap terminates, in each case whilst there
are Securities which have not then been redeemed (or deemed to be redeemed)
in full or the Class A-1 Currency Swap terminates whilst there are Class
A-1 Notes which have not then been redeemed (or deemed to be redeemed) in
full, the Manager and the Trustee must:
(a) (Enter into Replacement Swap): (in the case of the Trustee, to the
extent that the Manager has made appropriate arrangements to ensure
that it is practicable) enter into one or more swaps which replace the
terminated Swap on terms and with a counterparty in respect of which
each Rating Agency issues a Rating Affirmation Notice and, in the case
of the Manager, use all reasonable endeavours to make appropriate
arrangements to ensure that it is practicable for the Trustee to enter
into one or more such swaps not later than 5 Business Days after it
becomes aware of the termination of such terminated Swap;
(b) (Termination of Basis Swap): in the case of a termination of the Basis
Swap (but without limiting the operation of paragraphs (a) and (c) in
relation to the
65
termination of the Basis Swap), as soon as the Trustee becomes
actually aware of the termination, direct the Servicer to ensure
compliance with clause 12.2; or
(c) (Other Arrangements): enter into such other arrangements in respect of
which each Rating Agency issues a Rating Affirmation Notice.
12.2 Servicer to Adjust Mortgage Interest Saver Accounts and Mortgage Rates if
Basis Swap Terminated
If at any time a Basis Swap terminates whilst there are any Securities
which have not been redeemed (or deemed to be redeemed) in full and it is
directed by the Manager and the Trustee pursuant to clause 12.1(b) to
comply with this clause 12.2, the Servicer must, in respect of each Accrual
Period commencing thereafter until the date on which clause 12.1(a) or (c)
may be implemented:
(a) (Reduce Mortgage Interest Saver Accounts): reduce, except as may be
provided by applicable laws (including the Consumer Credit Code), any
Binding Provision and any Competent Authority, the rates at which the
interest off-set benefits under the Mortgage Interest Saver Accounts
are calculated to rates which produce an amount of income at least
equal to the lesser of:
(i) the aggregate amount of income that would be produced if the
rates at which the interest off-set benefits under the Mortgage
Interest Saver Accounts are calculated were reduced to zero; and
(ii) the amount of income which is sufficient, when aggregated with
the amount of income produced by the rate of interest on the
Mortgage Loans, and the income from Authorised Short-Term
Investments, then forming part of the Assets of the Series Trust
to ensure that the Trustee will have available to it sufficient
Finance Charge Collections and Other Income Amounts to enable it
to comply with its obligations under the Transaction Documents as
they fall due; and
(b) (Set Threshold Rate): if the amount of income produced pursuant to
clause 12.2(a) is not sufficient, when aggregated with the amount of
income produced by the rate of interest payable on the Mortgage Loans,
and the income from Authorised Short-Term Investments, then forming
part of the Assets of the Series Trust to ensure that the Trustee will
have sufficient Finance Charge Collections and Other Income Amounts to
enable it to meet its obligations under the Transaction Documents as
they fall due, ensure, except as may be provided by applicable law
(including the Consumer Credit Code), any Binding Provision and any
Competent Authority, that the weighted average Mortgage Rate
applicable to the Mortgage Loans forming part of the Assets of the
Series Trust on each Rate Set Date is not lower than the Threshold
Rate determined by the Manager on that Rate Set Date pursuant to
clause 12.3 and will promptly notify the Borrower in relation to each
Mortgage Loan of any change where required in accordance with the
relevant Mortgage or Loan Agreement.
12.3 Determination of Threshold Rate
While clause 12.2(b) applies, the Manager will, on each Rate Set Date,
determine the Threshold Rate for the Accrual Period commencing on that Rate
Set Date and:
(a) (Notify Servicer): in the case of Mortgage Loans the assignment of
which to the Trustee has not been perfected by the giving of notice to
the relevant Borrower, promptly notify on that date the Servicer of
such rate; and
66
(b) (Notify Trustee and Servicer): in the case of Mortgage Loans the
assignment of which has been so perfected, promptly notify on that
date the Trustee and the Servicer of such rate.
12.4 Trustee to set Mortgage Rate
If:
(a) (Servicer Default): a failure by the Servicer to comply with clause
12.2 results in the occurrence of the Servicer Default referred to in
clause 18.1(f); and
(b) (No Substitute Servicer Appointed): a Substitute Servicer is not
appointed immediately pursuant to clause 18 of this Deed,
the Manager must immediately direct the Trustee (in its capacity as
Substitute Servicer pursuant to clause 18 of this Deed), and the
Trustee must as soon as practicable thereafter comply with such
direction, to adjust or maintain the Mortgage Rate (as the case may
be) in accordance with clause 12.2 until such time as a Substitute
Servicer is appointed in accordance with the Trust Deed.
--------------------------------------------------------------------------------
13. Representations and warranties regarding Mortgage Loans
13.1 Seller's Representations and Warranties
As at the Cut-Off Date, CBA represents and warrants, for itself and for
Homepath, to the Trustee in respect of each Mortgage Loan that:
(a) (Mortgage complied with laws): at the time that the relevant Seller
entered into the Mortgage relating to the Mortgage Loan, the Mortgage
complied in all material respects with applicable laws (including
applicable Consumer Credit Code laws);
(b) (Good faith): at the time that the relevant Seller entered into the
Mortgage Loan, it did so in good faith;
(c) (Ordinary course of business): at the time that the relevant Seller
entered into the Mortgage Loan, the Mortgage Loan was originated in
the ordinary course of that Seller's business and since that time that
Seller has dealt with that Mortgage Loan in accordance with the
Servicing Guidelines and the Servicing Standards;
(d) (First ranking security): at the time that the relevant Seller entered
into the Mortgage Loan, all necessary steps were taken in respect of a
Mortgage created in connection with the Mortgage Loan so that the
Mortgage complied with the legal requirements applicable at that time
to ensure that the Mortgage was a first-ranking mortgage (subject to
any statutory charges, any prior charges of a body corporate, service
company or equivalent, whether registered or otherwise, and any other
prior Security Interests which do not prevent the Mortgage from being
considered to be a first-ranking mortgage in accordance with the
Servicing Standards) secured over Land in the jurisdiction in which
the relevant Land is located subject to stamping and registration of
the relevant Mortgage in due course;
(e) (Priority arrangements): where there is a second or other mortgage in
existence over Land the subject of a Mortgage in relation to the
Mortgage Loan and the relevant Seller is not the mortgagee of that
second or other mortgage, that Seller has ensured (by way of a
priority agreement with the subsequent mortgagee or otherwise) that
the Mortgage will rank ahead in priority to the second or other
mortgage on enforcement for an amount not less than the principal
amount (plus accrued but unpaid interest) outstanding on the Mortgage
Loan plus such extra amount determined in accordance with the
Servicing Guidelines;
67
(f) (Borrower not insolvent): at the time that the Mortgage Loan was
approved, the relevant Seller had not received any notice of the
insolvency or the bankruptcy of the corresponding Borrowers or that
the corresponding Borrowers did not have the legal capacity to enter
into the corresponding Mortgage;
(g) (Seller sole legal and beneficial owner): the relevant Seller is the
sole legal and beneficial owner of the Mortgage Loan and the related
Mortgages and First Layer of Collateral Securities (other than the
Insurance Policies) and to its knowledge, subject to clause 13.1(d),
no prior ranking Security Interest exists in relation to its right,
title and interest in that Mortgage Loan and the related Mortgages and
First Layer of Collateral Securities;
(h) (Due stamping): each of the Mortgage Documents (other than the
Insurance Policies in respect of Land) relating to the Mortgage Loan
which is required to be stamped with stamp duty has been duly stamped;
(i) (Mortgage Loan not discharged): the Mortgage Loan has not been
satisfied, cancelled, discharged or rescinded and the property
relating to each relevant Mortgage has not been released from the
security of that Mortgage;
(j) (Holds all documents necessary to enforce): the relevant Seller holds,
in accordance with the Servicing Standards, all documents which,
pursuant to the Servicing Standards, it should hold to enforce the
provisions of, and the security created by, the corresponding Mortgage
and the First Layer of Collateral Securities;
(k) (Terms unqualified): other than the relevant Mortgage Documents, there
are no documents entered into between the relevant Seller and the
Borrower or any other relevant party in relation to the Mortgage Loan
which would qualify or vary the terms of the Mortgage Loan except as
permitted by the Servicing Standards (including any variations of a
Mortgage Loan which may be made by notice to the Borrower from that
Seller) and except in relation to CBA, any documentation relating to
any corresponding Mortgage Interest Saver Account;
(l) (No notice of Security Interests): other than in respect of priorities
granted by statute, the relevant Seller has not received notice from
any person that it claims to have a Security Interest ranking in
priority to or equal with the Security Interest held by that Seller
and constituted by any corresponding Mortgage;
(m) (LVR not exceeded): the relevant Seller is not aware of any
restrictive covenants, licences or leases existing in respect of
freehold Land the subject of any corresponding Mortgage which would
reduce the value of the Mortgage over such Land such that the Loan to
Value Ratio determined as at the Cut-Off Date in respect of the
Mortgage Loan would exceed 95% (but retaining for this purpose the
original "V" for the Mortgage Loan under the definition of "Loan to
Value Ratio" in clause 1.1);
(n) (Mortgage Insurance Policies): the Mortgage Loan is, or will be on and
from the Closing Date, insured under a Mortgage Insurance Policy;
(o) (Support Facility requirements): the relevant Seller has complied with
all material requirements of each Support Facility relating to the
Mortgage Loan, except as otherwise permitted by the corresponding
Support Facility Provider;
(p) (All licences and consents): the relevant Seller holds all consents,
licences, approvals, authorisations and exemptions from any
Governmental Agency required as at the Cut-Off Date for, or in
connection with, performance and enforceability in respect of the
Mortgage Loan which, in accordance with the Servicing Standards, it
should hold in relation to the Mortgage Loan as at the Cut-Off Date;
68
(q) (Eligibility criteria): the Mortgage Loan complies with the
Eligibility Criteria as at the Cut-Off Date;
(r) (Interest rate may be varied): except in respect of a Mortgage Loan
subject to a fixed rate of interest (or a rate of interest which can
be converted into a fixed rate of interest or a fixed margin relative
to a benchmark) and except as may be provided by applicable laws
(including the Consumer Credit Code), any Binding Provision or any
Competent Authority or as may be provided in the corresponding
Mortgage Documents, the interest rate payable on the Mortgage Loan is
not subject to any limitation and no consent, additional memoranda or
other writing is required from the relevant Borrower to give effect to
a change in the interest rate payable on the Mortgage Loan and,
subject to the foregoing, any change in the interest rate may be set
at the sole discretion of the Servicer and is effective no later than
when notice is given to the Borrower in accordance with the terms of
the relevant Mortgage Loan;
(s) (Seller entitled to Sell): the relevant Seller is lawfully entitled to
sell and assign its interests in the corresponding Mortgage Loan
Rights and to transfer valid and beneficial title to the Trustee free
from all Security Interests (other than as described in clause
13.1(d));
(t) (No preference): it is not aware of anything in relation to the sale
of the Mortgage Loan Rights to the Trustee which might cause a court
to hold that the sale constitutes an under-value transfer, a
fraudulent conveyance or a voidable preference under any law relating
to insolvency;
(u) (No breach): the sale, transfer and assignment of the relevant
Seller's interest in the Mortgage Loan Rights will not constitute a
breach of its obligations or a default under any Security Interest
binding on that Seller or its property; and
(v) (Waiver of Set-Off): the terms of the Loan Agreement relating to the
Mortgage Loan require payments in respect of the Mortgage Loan to be
made to the Seller free of set-off, unless prohibited by law.
13.2 Trustee need not Test Warranties
The Trustee is under no obligation to test the truth of any warranty or
representation in clause 13.1 and is entitled to accept them conclusively
at all times (unless it is actually aware of any breach).
--------------------------------------------------------------------------------
14. Breach of representations and warranties
14.1 Manager or Seller Becomes Aware of Incorrect Representations or Warranties
If the Manager or a Seller becomes actually aware that a material
representation or warranty made pursuant to clause 13.1 was incorrect when
given in respect of a Mortgage Loan assigned to the Trustee in accordance
with this Deed it must give notice to the other parties to this Deed
accompanied by sufficient details to identify the relevant Mortgage Loan,
and the reason the representation or warranty is incorrect, within 5
Business Days of the Manager or that Seller (as the case may be) becoming
so actually aware. Neither the Manager nor the Sellers are under any
ongoing obligation whatsoever to conduct any investigation in any manner
whatsoever to determine if a representation or warranty made pursuant to
clause 13.1 is incorrect when given in respect of a Mortgage Loan.
14.2 If Trustee Becomes Aware of Incorrect Representations or Warranties
If the Trustee becomes actually aware that a material representation or
warranty made pursuant to clause 13.1 was incorrect when given in respect
of a Mortgage Loan assigned to the Trustee
69
in accordance with this Deed, it must give notice to the Manager and the
Sellers, accompanied by sufficient details to identify the relevant
Mortgage Loan and the Trustee's reasons for believing that the
representation or warranty is incorrect, within 5 Business Days of becoming
so aware. The Trustee is under no obligation whatsoever to conduct any
investigation in any manner whatsoever to determine if a representation or
warranty made pursuant to clause 13.1 is incorrect when given in respect of
a Mortgage Loan.
14.3 Remedy of Defaults during Prescribed Period
If with respect to any Mortgage Loan:
(a) (Representation or warranty incorrect): any representation or warranty
made by CBA pursuant to clause 13.1 is incorrect when given; and
(b) (Notice given under clause 14.1 or 14.2):
(i) the Manager or a Seller gives a notice to the Trustee pursuant to
clause 14.1; or
(ii) the Sellers receive a notice from the Trustee (pursuant to clause
14.2),
in either case, not later than 5 Business Days prior to the last day
of the Prescribed Period in relation to that Mortgage Loan, then, if
that breach is not remedied to the satisfaction of the Trustee within
5 Business Days of the Seller or the Manager giving or receiving the
notice (as the case may be), the Mortgage Loan Rights to which that
Mortgage Loan relates will be held by the Trustee in accordance with
the terms of clause 14.4.
14.4 Holding for CBA Trust during Prescribed Period
If, in relation to a Mortgage Loan during its Prescribed Period, any breach
referred to in a notice pursuant to clause 14.3 is not remedied within the
period specified in clause 14.3, then, on the expiry of the time period for
remedying the breach specified in clause 14.3 automatically by virtue of
this Deed, and without the necessity for any further act or instrument or
other thing being done or brought into existence:
(a) (Title Not Perfected): if the Trustee has not perfected its legal
title to the Mortgage Loan, the Trustee's entire right, title and
interest in the Mortgage Loan and in the Mortgage Loan Rights in
relation to that Mortgage Loan then forming part of the Assets of the
Series Trust will be extinguished in favour of the relevant Seller
with respect to the Mortgage Loan with immediate effect; or
(b) (Title Perfected): if the Trustee has perfected its legal title to the
Mortgage Loan, the Trustee will hold the benefit of it right, title
and interest in and to:
(i) the Mortgage Loan;
(ii) any Mortgages, and the First Layer of Collateral Securities,
held in respect of that Mortgage Loan;
(iii) any Mortgage Documents held in relation to that Mortgage Loan;
and
(iv) the Mortgage Receivables held in relation to that Mortgage Loan,
as trustee of the CBA Trust.
However, the Trustee is entitled to retain for the Series Trust all Finance
Charge Collections and Principal Collections received by the Trustee
pursuant to the relevant Mortgage Loan from the Cut-Off Date to the date of
delivery of the relevant notice in accordance with clause 14.3.
70
14.5 Costs
The Sellers (jointly and severally) must pay to, or reimburse, the Trustee
for all costs and expenses (including, without limitation, any legal costs
charged at the usual commercial rates of the relevant legal services
provider and any stamp duty and registration fees) arising out of or
necessarily incurred in connection with the holding by the Trustee of
either Seller's interest in any Mortgage Loan Rights in accordance with
clause 14.4. Such payment (if any) must be made on the same date as
payments in respect of the relevant Mortgage Loan must be made pursuant to
clause 14.6.
14.6 Payment
Subject to clause 14.8, CBA must pay (or procure payment) to the Trustee,
in respect of any Mortgage Loan Rights held for the CBA Trust pursuant to
clause 14.4, within 2 Business Days of the Mortgage Loan Rights becoming so
held for the CBA Trust an amount equal to the sum of:
(a) (Principal Amount): the principal amount outstanding in respect of the
relevant Mortgage Loan (as recorded on the Mortgage Loan System) as at
the date of delivery of the relevant notice in accordance with clause
14.3; and
(b) (Accrued interest): the accrued but unpaid interest (as at the date of
delivery of the relevant notice pursuant to clause 14.3) in respect of
that Mortgage Loan.
14.7 Limitation on Rights of Trustee During Prescribed Period
The performance by CBA of its obligations under clause 14.6 is the sole
remedy available to the Trustee during the relevant Prescribed Period in
respect of a representation or warranty being incorrect when given by CBA
pursuant to clause 13.1 in respect of a Mortgage Loan. The Trustee
expressly acknowledges and agrees that during the Prescribed Period, other
than pursuant to clause 14.6, it has no remedy against either Seller in
respect of any representation or warranty being incorrect when given by CBA
pursuant to clause 13.1 and which the Trustee becomes actually aware of
prior to the last day on which the notices referred to in clause 14.3(b)
can be given.
14.8 Limit of Seller's Liability for Mortgage Loans
Other than the rights of the Trustee pursuant to clause 14.6, neither
Seller has any liability for any loss or damage caused to the Trustee, any
Securityholder, any Creditor or any other person in respect of any
representation or warranty being incorrect when given by CBA pursuant to
clause 13.1 in respect of a Mortgage Loan in relation to which a notice has
been received or given pursuant to clause 14.3(b).
14.9 CBA's Liability for Damages After Prescribed Period
(a) (CBA to indemnify the Trustee): CBA indemnifies the Trustee (whether
for its own account or for the account of Securityholders) against any
costs, damages or loss arising from any representation or warranty
being incorrect when made by CBA pursuant to clause 13.1 in relation
to a Mortgage Loan and which is discovered by the Trustee after the
last day on which a notice under clause 14.3(b) can be given. The
amount of such costs, damages or loss is to be agreed between the
Trustee and CBA. Failing such agreement the amount is to be the amount
determined by CBA's external auditors. The amount cannot exceed the
principal amount outstanding in respect of the Mortgage Loan (as
recorded on the Mortgage Loan System) and any accrued but unpaid
interest and any outstanding fees in respect of the Mortgage Loan
(calculated at the time of agreement between the Trustee and CBA or
determination by CBA's external auditors, as the case may be).
71
(b) (CBA to pay damages within 7 Business Days): CBA must, within 7
Business Days of agreement or determination (as the case may be)
pursuant to clause 14.9(a), pay the relevant sum to the Trustee.
(c) (Limitation): The Trustee agrees and acknowledges that the Trustee's
sole remedy against CBA for breach of any representation or warranty
in clause 13.1 of which the Trustee has actual notice on or after the
last day on which the notice referred to in clause 14.3(b) can be
given is pursuant to clause 14.9(a); and
14.10 Discharge of obligations
The compliance by CBA with its obligations under clause 14.6 or clause 14.9
(as the case may be) will discharge all obligations of the Sellers with
respect to any breach of any representation or warranty made in clause
13.1, regardless, in the case of clause 14.6, of whether such breach is
specified in the relevant notice referred to in clause 14.3(b) or not.
14.11 Fraud
If the Trustee is unable to give a notice under clause 14.2 due to the
fraud, negligence or wilful default on the part of a Seller or any of its
officers, employees or agents, the Trustee may take such action against
that Seller as the Trustee will think fit.
14.12 Trustee's Reliance
CBA acknowledges that the Trustee has relied, and will if it accepts the
offer contained in a Sale Notice rely, on the representations and
warranties made or to be made by it pursuant to clause 13.1.
--------------------------------------------------------------------------------
15. Seller's general undertakings
15.1 General Undertakings
Each Seller undertakes to the Trustee and the Manager that, on or after the
Closing Date it will, in addition to any of its other undertakings under
this Deed and in respect of those Mortgage Loan Rights which then form part
of the Assets of the Series Trust, at its own expense:
(a) (Execute further instruments): following the occurrence of a
Perfection of Title Event and the request in writing of the Trustee,
promptly execute, acknowledge and deliver or cause to be executed,
acknowledged and delivered such amendments to this Deed and such
further instruments and take such further action as may be reasonably
necessary to preserve and protect the interest of the Trustee in and
the value of the Mortgage Loan Rights and assist and co-operate with
the Trustee, the Servicer and the Manager in the Trustee obtaining
legal title to the Mortgage Loan Rights following a Perfection of
Title Event;
(b) (Give notice of adverse claim): following receipt of actual notice of
a claim by a third party with respect to or a challenge to the sale
and/or assignment of any Mortgage Loan Right, promptly:
(i) give notice in writing of such action or claim to the Trustee
and, if CBA is not the Servicer, the Servicer;
(ii) give notice in writing to the third party claimant of the
Trustee's beneficial ownership of the Mortgage Loan Right, with a
copy to the Trustee;
72
(iii) give notice in writing to the court (if any) in which such claim
was filed of the Trustee's interest in the Mortgage Loan, with a
copy to the Trustee; and
(iv) pay to, or reimburse, the Trustee immediately upon demand all
reasonable costs and expenses, including, without limitation,
any stamp duty and registration fees, necessarily incurred by
the Trustee in maintaining its interest in the Mortgage Loan
Rights or with respect to giving any related notices to any
Borrower or other party to any Transaction Document;
(c) (Assist Servicer:) take such action as the Servicer may from time to
time reasonably request in connection with the management, maintenance
and enforcement of the Mortgage Loan Rights;
(d) (Give notice of Security Interests): promptly notify the Trustee after
it becomes aware of the creation or existence of any Security Interest
in relation to any Mortgage Loan Rights competing with its interest or
the interest of the Trustee in any Mortgage Loan Rights;
(e) (Retain legal title to Mortgage Loan Rights): subject to this Deed, at
all times ensure that it retains the legal ownership of its Mortgage
Loan Rights;
(f) (Execute documents of extinguishment): execute such documents and
instruments as will reasonably be requested by the Trustee to effect
the extinguishment of the Trustee's right, title and interest in a
Mortgage Loan Right pursuant to this Deed;
(g) (Pay costs of extinguishment): pay to, or reimburse, the Trustee
immediately on demand for all reasonable costs and expenses including,
without limitation, any stamp duty and registration fees, arising out
of or necessarily incurred in connection with the extinguishment of
the Trustee's right, title and interest in a Mortgage Loan Right
pursuant to this Deed;
(h) (Perform obligations): duly and punctually perform each of its
obligations under each of the Mortgage Documents to which it is a
party, including any obligation to notify a Borrower of any change in
interest rates;
(i) (Notify breaches): give notice to the Manager and to the Trustee
promptly upon becoming aware that any representation or warranty made
by CBA in clause 13.1 was incorrect when made;
(j) (Set-off): if a Seller exercises a right of set-off or combination in
respect of any Mortgage Loan, or if any right of set-off is exercised
against a Seller in respect of any Mortgage Loan, pay to the Trustee,
subject to any laws relating to preferences (or the equivalent), the
amount of, respectively, any benefit accruing to that Seller as a
result of the exercise of its right of set-off or combination or the
amount of any right of set-off exercised against that Seller; and
(k) (Security Interest): not grant any Security Interest over its
remaining right, title and interest in any Mortgage Loan Right.
15.2 Seller not bound by Undertaking
If the Trustee has legal title to a Mortgage Loan Right which has been
assigned to it, the undertakings of the relevant Seller set out in
paragraphs (d), (e), (h), (i), (j) and (k) of clause 15.1 cease to apply in
respect of that Mortgage Loan Right.
73
15.3 Termination of Mortgage Interest Saver Accounts
CBA will, following notice by the Trustee to the relevant Borrowers
pursuant to clause 24.3(b) after the occurrence of a Perfection of Title
Event, subject to any contractual notice requirements by which CBA is
bound, promptly withdraw all interest off-set benefits (if any) that would
otherwise be available to Borrowers under the terms of their Mortgage
Interest Saver Accounts.
15.4 Gross Up for Mortgage Interest Saver Accounts
CBA must pay the Servicer (as part of the Collections to be deposited by
the Servicer into the Collections Account in accordance with clause 22) any
amount which would otherwise be received by the Servicer as a Collection to
the extent that the obligation to pay such amounts is discharged or reduced
by virtue of the terms of a Mortgage Interest Saver Account. Such payment
must be made on the day that the relevant amount would otherwise have been
received.
--------------------------------------------------------------------------------
16. Servicing of Mortgage Loan Rights
16.1 Appointment of Servicer
The Servicer is hereby appointed and agrees to act as the Servicer of the
Mortgage Loan Rights (with effect on and from the Cut-Off Date) which, from
time to time, form part of the Assets of the Series Trust, on the terms and
conditions of this Deed.
16.2 Obligation to Act as Servicer until Termination of Appointment
The Servicer's duties and obligations contained in this Deed continue until
the date of the Servicer's retirement or removal as Servicer in accordance
with this Deed.
16.3 General Servicing Obligation
The Servicer must ensure that the servicing of the Mortgage Loan Rights
which from time to time form part of the Assets of the Series Trust
(including the exercise of the express powers set out in this clause 16)
is:
(a) (In compliance with this clause 16): in compliance with the express
limitations in this clause 16 (unless the prior written consent of the
Manager and the Trustee is obtained); and
(b) (In accordance with Servicing Standards): to the extent that this
clause 16 does not provide otherwise, in accordance with the Servicing
Standards.
16.4 Power to Service
(a) (Servicing functions vested in Servicer): The function of servicing
the Mortgage Loan Rights which at any given time form part of the
Assets of the Series Trust is vested in the Servicer and it is
entitled to undertake the servicing of those Mortgage Loan Rights to
the exclusion of the Trustee (other than when acting as Servicer in
accordance with clause 18) and the Manager.
(b) (Express powers): Without limiting its general powers, the Servicer
has the express powers set out in this clause 16 in relation to the
servicing of the Mortgage Loan Rights which at any given time form
part of the Assets of the Series Trust.
74
16.5 Exercise of Discretions
The Servicer must, in servicing the Mortgage Loan Rights which then form
part of the Assets of the Series Trust, exercise its power and discretions
under this Deed, the Servicing Guidelines, and the relevant Mortgage
Documents to which it is a party in accordance with standards and practices
suitable for a prudent lender in the business of making retail home loans.
16.6 Servicer's Undertaking Regarding Mortgage Loan Rights
The Servicer undertakes for the benefit of the Trustee, that it will either
directly (including by the exercise of its delegated powers under this Deed
and the Master Trust Deed from the Trustee and the Sellers) or indirectly:
(a) (Duly stamp): promptly ensure that any Mortgage Loan Document in
relation to a Mortgage Loan following any amendment, consolidation,
supplementation, novation or substitution of a Mortgage, is duly
stamped (if liable to stamp duty) and duly registered (where
registration is required) with the relevant land titles office to
constitute, in the case of a Mortgage, a subsisting first-ranking
registered mortgage over the relevant property;
(b) (Notify breaches of Servicing Guidelines): promptly notify the Trustee
and the Manager of any material breach of the Servicing Guidelines by
the Servicer in relation to the servicing of the Mortgage Loan Rights
then forming part of the Assets of the Series Trust;
(c) (Comply with Mortgage Insurance Policies): notwithstanding any other
provision in this Deed, comply with its material obligations under any
Mortgage Insurance Policy in respect of Mortgage Loans then forming
part of the Assets of the Series Trust;
(d) (Execute documents): at the Trustee's request (acting on the direction
of the Manager), execute such further documents and do anything else
(including, without limitation, executing further powers of attorney
substantially in the form of Schedules 2, 3 and 4) that the Trustee
reasonably requires to ensure its ability to register Mortgage
Transfers and the registration of the Power of Attorney in each
jurisdiction of Australia;
(e) (Upstamp): if a Seller makes any further advance or otherwise provides
further financial accommodation to a Borrower, ensure that any further
stamp duty which becomes payable on the relevant Mortgage Documents as
a result of such further advance or provision of financial
accommodation is duly paid promptly in accordance with any applicable
laws;
(f) (Make calculations): upon receipt of notice that a Borrower desires to
repay a Mortgage Loan in full, prepare and make available
documentation and make such calculations as are necessary to enable
the repayment of the Mortgage Loan and discharge of the corresponding
Mortgage and any Collateral Securities (provided that the Servicer is
not required to discharge a Mortgage or Collateral Securities if they
also secure another Mortgage Loan or an Other Loan);
(g) (Deliver Mortgage Documents and Perform obligations):
(i) if a Perfection of Title Event occurs, promptly deliver to the
Trustee (or procure delivery to the Trustee of) all Mortgage
Documents not otherwise provided to the Trustee in accordance
with clause 25 and (subject to any restrictions imposed by any
law) promptly provide such
75
evidence in its possession or control as may be required by the
Trustee to support any claim in respect of any Mortgage Loan
Rights; and
(ii) duly and punctually perform each of its material obligations
under this Deed and under each of the Mortgage Documents and the
Transaction Documents to which it is a party;
(h) (Perfection of Title Event): assist and co-operate with the Trustee
and the Manager in the Trustee obtaining legal title to the Mortgage
Loan Rights following a Perfection of Title Event;
(i) (Write-offs): where any material amount of a Mortgage Loan has been
written off as uncollectible in accordance with the Servicing
Guidelines and this Deed and GEMI, GEMICO or PMI, as the case may be,
has rejected a claim made by the Servicer under the applicable
Mortgage Insurance Policy, ensure that the documentation relevant to
that Mortgage Loan is examined to determine whether the
representations and warranties made pursuant to clause 13.1 in respect
of that Mortgage Loan were correct at the Cut-Off Date. After such
examination, the Servicer must notify the Trustee if the
representations and warranties made pursuant to clause 13.1 were
incorrect when given in respect of that Mortgage Loan as at the
Cut-Off Date (and if the Servicer and the relevant Seller in relation
to the Mortgage Loan are the same person such notice will be deemed to
be a notice given by that Seller under clause 14.1, and must comply
with that clause) and if this is the case CBA must, if the
determination made by the Servicer in this paragraph is made after the
expiry of the Prescribed Period, pay damages to the Trustee in
accordance with clause 14.9;
(j) (Fixed Rate Swaps): ensure that before the Servicer agrees with a
Borrower, or allows a Borrower to elect, to vary the rate of interest
payable under a Mortgage Loan to become a fixed rate for a given
period, the Trustee and the Manager have entered into (or have
confirmed that they will enter into) a Fixed Rate Swap for that given
period in accordance with section 16 of the Interest Rate Swap
Agreement. Upon the request of the Servicer, the Manager must enter
into and must direct the Trustee to enter into (and upon such
direction the Trustee must enter into) a Fixed Rate Swap in accordance
with section 16 of the Interest Rate Swap Agreement. The maximum term
of a Fixed Rate Swap entered into pursuant to this clause must not
exceed 10 years unless each Rating Agency issues a Rating Affirmation
Notice in respect of such longer period. The Servicer is not in breach
of this clause 16.6(j) if the Trustee and the Manager fail to enter
into a Fixed Rate Swap in accordance with a request of the Servicer
pursuant to this clause 16.6(j); and
(k) (Basis Cap): ensure that before the Servicer agrees with a Borrower,
or allows a Borrower to elect, to cap the variable rate of interest
payable under a Mortgage Loan for a given period, the Trustee and the
Manager have entered into (or have confirmed that they will enter into
) an Interest Rate Basis Cap for that given period in accordance with
Part 5(18) of the Schedule to the Interest Rate Swap Agreement. Upon
the request of the Servicer, the Manager must enter into and must
direct the Trustee to enter into (and upon such direction the Trustee
must enter into) an Interest Rate Basis Cap in accordance with such
Part. The maximum term of an Interest Rate Basis Cap entered into
pursuant to this clause must not exceed 10 years unless each Rating
Agency issues a Rating Affirmation Notice in respect of such longer
period. The Servicer is not in breach of this clause 16.6(k) if the
Trustee and the Manager fail to enter into an Interest Rate Basis Cap
in accordance with a request of the Servicer pursuant to this clause
16.6(k).
76
16.7 Interest Rates on Mortgage Loans
The Servicer must, as part of its function of servicing the Mortgage Loans,
set the interest rate charged and the monthly instalment to be paid by the
Borrower on each Mortgage Loan forming part of the Assets of the Series
Trust. The Servicer must ensure that the monthly instalment to be paid in
relation to each Mortgage Loan is equal to or greater than the monthly
interest payable on that Mortgage Loan (but without limiting any right of
the Borrower to pay less than the monthly instalment, or no monthly
instalment, where the amount outstanding under the Mortgage Loan is less
than the Scheduled Balance of the Mortgage Loan). For so long as CBA is the
Servicer, such interest rate must be the interest rate which the relevant
Seller charges on the same type of mortgage loan (having regard, among
other things, to the nature of the Mortgage Loan product and the type of
borrower) which is recorded on its Mortgage Loan System but which has not
been assigned to the Trustee, unless this Deed requires the Servicer to
charge a different interest rate in respect of that Mortgage Loan.
16.8 Release or Substitution of Security
(a) (Substitution and release): The Servicer may in relation to a Mortgage
Loan which is then an Asset of the Series Trust, release or substitute
any corresponding Mortgage or First Layer of Collateral Security
provided that this is in accordance with the corresponding any
Mortgage Insurance Policy and the Servicing Guidelines.
(b) (Indemnity): The Servicer indemnifies the Trustee (whether on its own
account or for the account of the Securityholders of the Series Trust)
against any costs (including legal costs charged at the usual
commercial rates of the relevant legal services provider), damages or
loss it suffers as a result of any release or substitution of any
Mortgage or First Layer of Collateral Securities which then are Assets
of the Series Trust not being in accordance with clause 16.8(a). The
amount of the costs, damages and loss is to be determined by agreement
between the Trustee and the Servicer or, failing agreement, by the
Servicer's external auditors. The amount cannot exceed the principal
amount outstanding in respect of the Mortgage Loan (as recorded on the
Mortgage Loan System) and any accrued but unpaid interest and any
outstanding fees in respect of the Mortgage Loan (calculated at the
time of Agreement between the Trustee and the Servicer or by the
Servicer's external auditors, as the case may be).
16.9 Variation or Relaxation of Terms of Mortgage Loans
(a) (Variations): Subject to clauses 16.9(b) and 16.25, the Servicer may
vary, extend or relax the time to maturity, the terms of repayment or
any other term of a Mortgage Loan and its related Mortgage and First
Layer of Collateral Securities which are then Assets of the Series
Trust.
(b) (Limitations on variations): Except as contemplated by clause 16.14 or
where a Mortgage Loan is regarded as having been repaid in full as
provided in clause 16.20(b), the Servicer must not grant any extension
of the time to maturity of a Mortgage Loan which is then an Asset of
the Series Trust beyond 30 years from the Settlement Date for the
Mortgage Loan or allow any reduced monthly payment that would result
in such an extension.
16.10 Release of Debt
Subject to clause 16.14, the Servicer may not voluntarily release a
Borrower from any amount owing in respect of a Mortgage Loan, related
Mortgage or First Layer of Collateral Security unless that amount has been
written off by the Servicer, or the Servicer has determined to write-off
such amount, in either case in accordance with the Servicing Standards.
77
16.11 Waivers, Releases and Compromises
Subject to clauses 16.9 and 16.10, the Servicer may:
(a) (Waive breaches): waive any breach under, or compromise, compound or
settle any claim in respect of; or
(b) (Grant releases): release any party from an obligation or claim under,
a Mortgage Loan which is then an Asset of the Series Trust or any related
Mortgage or First Layer of Collateral Securities.
16.12 Consent to subsequent Security Interests
The Servicer may consent to the creation or existence of any Security
Interest in relation to any Land the subject of a Mortgage which is then an
Asset of the Series Trust:
(a) (Third Parties): in favour of a party, other than the Trustee or a
Seller, only if by way of a priority agreement or otherwise the
Servicer ensures that the relevant Mortgage will rank ahead in
priority to the third party's Security Interest on enforcement for an
amount not less than the principal amount (plus accrued but unpaid
interest) outstanding on the Mortgage Loan (as recorded on the
Mortgage Loan System) plus such extra amount (if any) as is determined
in accordance with the Servicing Guidelines; or
(b) (Trustee or Seller): in favour of the Trustee or a Seller in which
case the Trustee and that Seller agree that the relevant Mortgage will
rank ahead in priority to the Trustee's Security Interest or that
Seller's Security Interest (as the case may be) on enforcement for an
amount equal to the principal amount (plus accrued but unpaid
interest) outstanding on the Mortgage Loan (as recorded on the
Mortgage Loan System) plus such extra amount (if any) as is determined
in accordance with the Servicing Guidelines. This clause will continue
to bind the Trustee following its retirement or removal pursuant to
clause 19 of the Master Trust Deed.
16.13 Consent to Leases etc
The Servicer may, in accordance with the Servicing Guidelines, consent to
the creation of any leases, licences or restrictive covenants in respect of
Land subject to a Mortgage which is then an Asset of the Series Trust.
16.14 Relief under Binding Provision or on Order of Competent Authority
(a) (Grant releases etc.): The Servicer may:
(i) release a Mortgage or a First Layer of Collateral Security which
is then an Asset of the Series Trust;
(ii) reduce the amount outstanding under, or vary the terms
(including, without limitation, in relation to repayment) of,
any Mortgage Loan, related Mortgage or First Layer of Collateral
Security which is then an Asset of the Series Trust; or
(iii) grant other relief to a Borrower or the provider of a First
Layer of Collateral Security which are then Assets of the Series
Trust,
when to do so is pursuant to a Binding Provision or an order,
decision, finding, judgment or determination of a Competent Authority
or, in the Servicer's opinion, such action would be taken or required
by a Competent Authority.
78
(b) (If order or determination results from failure of Servicer): If it is
determined that the order, decision, finding, judgment or
determination referred to in clause 16.14(a) was made by the Competent
Authority as a result of a Seller or the Servicer:
(i) breaching any Binding Provision, applicable regulation, statute
or official directive at the time the Mortgage, the First Layer
of Collateral Security or the Mortgage Loan was granted or a
Seller Advance was made in respect of such Mortgage Loan (other
than a Binding Provision, regulation, statute or official
directive which provides for relief on equitable or like grounds
when paragraph (ii) is also not satisfied); or
(ii) not acting in accordance with the standards and practices
suitable for a prudent lender in the business of making retail
home loans,
then the Servicer must notify the Trustee of the making of such an
order, decision, finding, judgment or determination and CBA (on behalf
of itself and Homepath, where applicable) or the Servicer (as the case
may be) must pay damages to the Trustee by 10.00 am on the
Distribution Date next occurring after such notification is given by
the Servicer. The amount of such damages will be the amount agreed
between the Trustee (acting on expert advice taken pursuant to clause
16.6 of the Master Trust Deed, if necessary) and CBA or the Servicer,
as the case may be (or, failing agreement, by CBA's or the Servicer's
external auditors) as being sufficient to compensate the Trustee for
any losses suffered by the Series Trust as a result of the release,
reduction, variation or relief (as the case may be). The amount cannot
exceed the principal amount outstanding in respect of the relevant
Mortgage Loan (as recorded on the Mortgage Loan System) and any
accrued but unpaid interest and any outstanding fees in respect of the
Mortgage Loan (calculated in both cases at the time of Agreement
between the Trustee and CBA or the Servicer or by CBA's or the
Servicer's external auditors, as the case may be).
16.15 Litigation
The Servicer may institute litigation in respect of the collection of any
amount owing under a Mortgage Loan which is then an Asset of the Series
Trust but is not required to do so or to continue any litigation if the
Servicer has reasonable grounds for believing, based on advice from its
legal advisers (either internal or external), that:
(a) (Mortgage Loan unenforceable): the Servicer is, or will be, unable to
enforce the provisions of the Mortgage Loan under which such amount is
owing; or
(b) (Proceedings uneconomical): the likely proceeds from such litigation,
in light of the expenses in relation to the litigation, do not warrant
such litigation.
16.16 Enforcement Action
(a) (Servicer may take enforcement action): Subject to clause 16.26(u),
the Servicer may take such action to enforce a Mortgage Loan and any
related Mortgage or First Layer of Collateral Securities which are
then Assets of the Series Trust which it determines should be taken.
(b) (Servicer must not take or fail to take action in certain
circumstances): The Servicer must not knowingly take any action, or
knowingly fail to take any action, if that action or failure to take
action will interfere with the enforcement by the Servicer or Trustee
of any Mortgage Loan Rights which are then Assets of the Series Trust
(unless such action or failure is in accordance with the Servicing
Standards).
79
16.17 Incurring Additional Expenses
The Servicer may incur any Expenses referred to in paragraph (a) of that
definition in connection with the management, maintenance or sale of any
property secured by a Mortgage or a First Layer of Collateral Security
which are then Assets of the Series Trust and the Trustee must reimburse
the Servicer for such Expenses, to the extent funds are available for this
purpose pursuant to clause 10.2(h), on each Distribution Date and, if such
Expenses are not reimbursed in full on any Distribution Date, must
reimburse the balance unpaid on each subsequent Distribution Date from the
funds available for this purpose pursuant to clause 10.2(h) on that
Distribution Date.
16.18 Mortgage Insurance and Insurance Policy Claims
The Servicer may, in accordance with the Servicing Standards, compromise,
compound or settle any claim in respect of any Mortgage Insurance Policy or
any Insurance Policy which is then an Asset of the Series Trust.
16.19 Insurance Policy Proceeds
(a) (Release of insurance proceeds): Proceeds received in respect of an
Insurance Policy in respect of Land which is then an Asset of the
Series Trust may be released, on the Trustee's behalf, if:
(i) such release of proceeds is conducted in accordance with the
Servicing Standards; and
(ii) the proceeds are paid on an invoice-by-invoice basis directly to
those who are carrying out work to rebuild, reinstate or repair
the property to which the proceeds relate.
(b) (Application of insurance proceeds): Any proceeds referred to in
clause 16.19(a) which are not released in accordance with that clause
must be applied in compliance with the Servicing Guidelines to the
account established in the Servicer's records for the relevant
Mortgage Loan up to the principal amount outstanding in respect of
that Mortgage Loan plus accrued but unpaid interest.
(c) (Servicing Transfer): If a Servicing Transfer occurs the Servicer must
immediately pay to the Trustee all proceeds previously retained by it
under paragraph (a) and not yet released under paragraph (a).
16.20 Seller Advances
If a Seller makes a further advance to a Borrower and:
(a) (Separate account and trusts): that Seller opens a separate account in
its records in relation to the advance, the advance is considered for
the purposes of this Deed to be an Other Loan and upon creation, the
Trustee will automatically by virtue of this Deed, and without the
necessity for any further act or thing to be done or brought into
existence, hold the benefit of its right, title and interest in such
Other Loan for that Seller as trustee of the CBA Trust and the Trustee
will hold any Mortgage and any First Layer of Collateral Securities in
respect of such Other Loan in accordance with clause 7.2 and any
Second Layer of Collateral Securities in respect of such Other Loan in
accordance with clause 7.1;
(b) (Advance leads to Scheduled Balance being exceeded): that Seller
records the advance as a debit to the account in its records for an
existing Mortgage Loan which is then part of the Assets of the Series
Trust and the advance leads to the Scheduled Balance in respect of
that Mortgage Loan (prior to the approval of the advance)
80
being exceeded by more than one scheduled monthly instalment, the
Mortgage Loan is, for the purposes of this Deed only, treated as
having been repaid in full by the payment by that Seller to the
Trustee of the sum necessary to repay that Mortgage Loan. Such payment
from that Seller must equal the principal balance plus accrued but
unpaid interest and fees owing in respect of the Mortgage Loan before
the advance was made and must be paid by that Seller to the Trustee
and, following such payment, allocated by the Trustee to the
Collections Account of the Series Trust; or
(c) (Advance does not lead to Scheduled Balance being exceeded): that
Seller records the advance as a debit to the account in its records
for an existing Mortgage Loan which is then part of the Assets of the
Series Trust and this does not lead to the Scheduled Balance in
respect of that Mortgage Loan being exceeded by more than one
scheduled monthly instalment, the advance is treated as an advance
made pursuant to the terms of the relevant Mortgage Loan and the
rights to repayment of such will be a Mortgage Loan Right forming part
of the Assets of the Series Trust.
16.21 Restrictions on Seller Advances
CBA shall not, and shall ensure that the other Seller does not:
(a) (Advance over Scheduled Balance if non-performing): make an advance
pursuant to clause 16.20(b) in relation to a Mortgage Loan which the
Servicer has determined, in accordance with the Servicing Standards,
is a non-performing loan; or
(b) (Advance under Scheduled Balance if non-performing): make an advance
pursuant to clause 16.20(c) if the then aggregate of:
(i) all Seller Advances not repaid by the relevant Borrower
(calculated on the basis that, for this purpose only, any
payments on account of principal in respect of a Mortgage Loan
first reduce the amount of the Seller Advances made in relation
to that Mortgage Loan) in relation to Mortgage Loans then part of
the Assets of the Series Trust; and
(ii) the then Standby Redraw Facility Principal,
exceed, or will as a result of the advance exceed, the then Standby
Redraw Facility Limit.
If a Seller makes an advance to a Borrower which results in a breach of
CBA's obligations under this clause, then:
(c) (Treated as an Advance): that advance will, for all purposes, be
treated as a Seller Advance (and as if properly made in accordance
with clause 16.20(c)); and
(d) (CBA Indemnity): CBA indemnifies the Trustee (whether on its own
account or for the account of the Securityholders of the Series Trust)
against any costs, damages or loss it suffers as a result of such a
breach (except to the extent to which such costs, damages or loss is
recoverable by the Trustee pursuant to a Mortgage Insurance Policy).
16.22 Servicer's Actions Binding on Trustee
Without limiting in any way the Servicer's liability to the Trustee for
breaching the provisions of this Deed, any act by the Servicer in servicing
Mortgage Loan Rights which are Assets of the Series Trust is binding on the
Trustee whether or not such act or omission is in compliance with this
clause 16.
81
16.23 Servicer to Pay its Own Expenses
Subject to clause 16.17, the Servicer must pay from the amount received
under clause 19.4 all expenses incurred by it in connection with servicing
the Mortgage Loans, including expenses related to the collection of the
Mortgage Loans, the fees and disbursements of independent accountants and
all other fees and expenses which are not expressly stated in this Deed or
the Master Trust Deed to be payable by the Trustee. The Servicer must, at
least 5 Business Days before each Distribution Date, forward to the Manager
a list of expenses for the Collection Period just ended for which it is
seeking reimbursement pursuant to this clause.
16.24 Servicer to transmit information to Manager
The Servicer must prepare and transmit to the Manager on or before the day
which is 2 Business Days before each Distribution Date the information
necessary to enable the Manager to prepare the Quarterly Certificate and
the Pool Performance Data in respect of the Collection Period just ended.
The Servicer will not be in breach of this clause 16.24 if it fails to
provide the Pool Performance Data to the Manager provided that it has used
reasonable endeavours to produce the Pool Performance Data for that
Collection Period but has been unable to do so with sufficient accuracy (as
determined by the Servicer and taking into account the likely distribution
of the Pool Performance Data and uses to be made of the Pool Performance
Data).
16.25 Proposed amendments to Servicing Guidelines
The Servicer must deliver copies of all proposed material amendments to the
Servicing Guidelines which relate to the Servicer's servicing functions in
respect of the Mortgage Loan Rights then comprising Assets of the Series
Trust to each Support Facility Provider where the consent of such Support
Facility Provider to such material amendment is required under the terms of
the corresponding Support Facility. The adoption of those amendments by the
Servicer takes effect upon the consent of the Support Facility Provider to
the proposed amendment (or, where provided under the Support Facility, upon
the date that the Support Facility Provider is deemed to have consented to
the proposed amendment). The Servicer must deliver a copy of any proposed
material amendment to the Servicing Guidelines to the Trustee, the Manager
and the Rating Agencies. The Servicer must not amend the Servicing
Guidelines unless each Rating Agency has either:
(a) (Confirmed No Downgrade): confirmed (either orally or in writing) that
the proposed amendment will not result in a reduction, qualification
or withdrawal of its then current rating of the Securities; or
(b) (10 Business days after delivery): not notified the Servicer of its
intention not to reaffirm the then current rating of a Security,
within 10 Business Days after the delivery to it of the proposed
amendments.
16.26 Further Servicer Undertakings
The Servicer further undertakes for the benefit of the Trustee, the
Manager, the Security holders and the Residual Unitholder that it will:
(a) (Audited accounts): give the Trustee the audited Accounts of the
Servicer for each financial year of the Servicer within 120 days of
the end of that year;
(b) (Keep proper books): keep proper and adequate books of account (which
may be kept electronically) for the Mortgage Loan Rights of the Series
Trust;
(c) (Information): subject to the provisions of the Privacy Act and the
Servicer's duty of confidentiality to its clients under general law or
otherwise, promptly make available to the Manager, the Auditor and the
Trustee any books, reports or other oral or written information and
supporting evidence of which the Servicer is aware
82
that they reasonably request with respect to the Series Trust or the
Assets of the Series Trust from time to time or with respect to all
matters in the possession of the Servicer in respect of the activities
of the Servicer to which this Deed relates;
(d) (Notify material misrepresentations): notify the Manager and the
Trustee promptly if it becomes actually aware that any material
representation or warranty made or taken to be made by or on behalf of
a Seller or the Servicer in connection with a Transaction Document in
relation to the Series Trust is incorrect when made or taken to be
made;
(e) (Certificate): within 5 Business Days of a request from the Manager or
the Trustee, provide the Manager or the Trustee (as the case may be)
with a certificate from the Servicer signed by 2 Authorised Officers
of the Servicer on its behalf which states whether to the best of the
Servicer's knowledge and belief a Servicer Default or a Perfection of
Title Event has occurred (a request under this clause will be made by
the Trustee only once in each 6 calendar month period, unless the
Trustee when making the request sets out reasonable grounds for
believing that a Servicer Default or a Perfection of Title Event is
subsisting);
(f) (Notify Servicer Default or Perfection of Title Event): notify the
Trustee promptly after the Servicer becomes actually aware of any
Servicer Default or the occurrence of any Perfection of Title Event
and at the same time or as soon as possible thereafter provide full
details thereof;
(g) (Comply with laws): comply with the requirements of any relevant laws
in carrying out its obligations under the Transaction Documents for
the Series Trust including the Consumer Credit Code ;
(h) (Authorisations): obtain and maintain all authorisations, filings and
registrations necessary to properly service the Mortgage Loans;
(i) (Not merge without assumption): not merge or consolidate into another
entity, unless the surviving entity assumes its rights and obligations
as a Seller and the Servicer under the Transaction Documents for the
Series Trust and the Rating Agencies are notified;
(j) (Not enter into liquidation etc.): subject to the provisions of the
Banking Act 1959 (Commonwealth), not present any application or pass
any resolution for the liquidation of the Servicer, or, subject to
clause 16.26(i), enter into any scheme of arrangement, merger or
consolidation with any other person or enter into any other scheme
under which the Servicer ceases to exist, the assets or liabilities of
the Servicer are vested in or assumed by any other person or either of
those events occur;
(k) (Pay Tax): duly and punctually file all returns in respect of Tax
which are required to be filed and pay, or procure payment when due,
all Taxes and other outgoings payable by it as and when the same
respectively become due and payable other than outgoings which are
being contested in good faith and promptly pay or cause to be paid
those contested outgoings after the final determination or settlement
of such contest;
(l) (Not set-off): not, without the prior consent of the Trustee, apply,
transfer or set off the whole or any part of any amount payable or
owed to the Servicer or to which the Servicer is entitled under this
Deed or any other Transaction Document for the Series Trust towards
satisfaction of any obligation which is owed by the Servicer to the
Trustee or the Manager under this Deed or any other Transaction
Document for the Series Trust, other than as contemplated under this
Deed or any other Transaction Document for the Series Trust;
83
(m) (Not claim Assets of Series Trust): other than as a Secured Creditor,
not claim any Security Interest, lien or other possessory right in any
of the Assets of the Series Trust;
(n) (Notify claims): following receipt of actual notice of a claim by a
third party with respect to a challenge to the sale and/or assignment
to the Trustee of any Mortgage Loan Rights forming part of the Assets
of the Series Trust, promptly give notice in writing of such action or
claim to the Trustee and the Manager;
(o) (Not Encumber Mortgage Loan Rights): not transfer, assign, exchange or
otherwise grant a Security Interest over the whole or any part of its
right, title and interest in and to any Mortgage Loan Rights forming
part of the Assets of the Series Trust;
(p) (Give accurate information to Rating Agencies): use reasonable efforts
to cause all information provided by it to any Rating Agency in
relation to the Series Trust to be complete and accurate in all
material respects;
(q) (Follow directions of Trustee after Perfection of Title Event): upon
being directed to do so by the Trustee following the occurrence of a
Perfection of Title Event, promptly take all action required or
permitted by law to assist the Trustee and the Manager to perfect the
Trustee's legal title to the Mortgage Loan Rights forming part of the
Assets of the Series Trust in accordance with the requirements of this
Deed;
(r) (Comply with other undertakings): comply with all other undertakings
given by the Servicer in this Deed or the other Transaction Document
relating to the Series Trust;
(s) (Direct receipts): subject to clause 22, take all steps to ensure
that:
(i) while the Collections Account is maintained with the Servicer,
the amounts referred to in clause 22.5 are paid into the
Collections Account in accordance with that clause; or
(ii) if the Servicer is not an Eligible Depository, all payments
received during the corresponding Collection Period under or in
respect of the Mortgage Loans (other than insurance premiums and
related charges) are deposited into the Collections Account no
later than 5 Business Days following receipt;
(t) (Collect all moneys due): make reasonable efforts to collect all
moneys due under the terms and provisions of the Mortgage Loan Rights
of the Series Trust and, to the extent such efforts will be consistent
with this Deed, follow such normal collection procedures as it deems
necessary and advisable;
(u) (Enforcement of Mortgage Loans): if a Material Default has occurred
and is continuing with respect to a Mortgage Loan Right forming part
of the Assets of the Series Trust, take such action on such basis as
the Trustee and the Servicer may agree (in accordance and in
conjunction with the Servicer's normal enforcement procedures) to
enforce such Mortgage Loan Rights (but only to the extent that the
Servicer determines that enforcement proceedings should be taken) so
as to maximise the return to the Securityholders, taking into account,
inter alia, the timing of any enforcement proceedings and any relevant
terms of any Support Facility provided that the Servicer will not be
required to institute litigation with respect to collection of any
payment if there are reasonable grounds for believing the provisions
of those Mortgage Loan Rights under which such payment is required are
unenforceable or the payment is uncollectible; and
84
(v) (Maintain title): take such steps as are necessary to maintain the
Trustee's title to the Mortgage Loan Rights of the Series Trust.
16.27 Servicer holding Assets of the Series Trust
The obligation of the Servicer set out in clauses 22.4 and 22.5 in relation
to the payment of amounts into the Collections Account is the full extent
of the Servicer's obligation in respect of such moneys and the Servicer has
no obligation or liability whatsoever to account to the Trustee for any
interest, income or other benefit derived in connection with any payments
received by it under or in respect of the Mortgage Loans.
16.28 Servicer's Power to Delegate
The Servicer, for the purposes of carrying out and performing its duties
and obligations in relation to the Series Trust, may:
(a) (Appoint attorneys): by power of attorney appoint any person to be
attorney or agent of the Servicer for those purposes and with those
powers, authorities and discretions (not exceeding those vested in the
Servicer) as the Servicer thinks fit including, without limitation, a
power to sub-delegate and a power to authorise the issue in the name
of the Servicer of documents bearing facsimile signatures of the
Servicer or of the attorney or agent either with or without proper
manuscript signatures of its officers on them; and
(b) (Appoint agents): appoint by writing any person to be agent of the
Servicer as the Servicer thinks necessary or proper and with those
powers, authorities and discretions (not exceeding those vested in the
Servicer) as the Servicer thinks fit,
provided that, in each such case, except as provided in any Transaction
Documents, the Servicer must not delegate to such third parties a material
part of its powers, duties and obligations as Servicer in relation to
Mortgage Loans forming part of the Assets of the Series Trust.
16.29 Servicer May Replace or Suspend Attorneys
The Servicer may replace or suspend any attorney, agent or sub-agent
appointed under clause 16.28 for any cause or reason as the Servicer may in
its sole discretion think sufficient with or without assigning any cause or
reason.
16.30 Servicer Remains Liable
The Servicer at all times remains liable for:
(a) (Acts, omissions): the acts or omissions of any person appointed under
clause 16.28, insofar as the acts or omissions constitute a breach by
the Servicer of its obligations under this Deed; and
(b) (Payment): the payment of fees to any person appointed under clause
16.28.
--------------------------------------------------------------------------------
17. Servicer's responsibilities and indemnities
17.1 Not Liable Where Action Unlawful
The Servicer will not incur any liability to any person in respect of any
failure to act where such act will be hindered, prevented or forbidden by
any present or future law.
85
17.2 Limitation on Servicer's Responsibility
The Servicer will not be responsible to any person for any loss, damage,
claim or demand incurred as a result of:
(a) (Trustee Default): a Trustee Default (except where the Trustee is the
Servicer);
(b) (Failure to check): the failure by the Servicer to check any document,
certificate, schedule, form, list or other document prepared or
delivered to the Servicer by the Trustee or any agent or consultant of
the Trustee and reasonably believed by the Servicer to be genuine; or
(c) (Trustee's direction): any action taken by the Servicer in accordance
with any written direction or instruction from the Trustee or any
Authorised Officer of the Trustee,
except to the extent to which such loss, damage, claim or demand is caused
by any fraud, negligence or wilful default by the Servicer.
17.3 Servicer's Liability
(a) (Liability): The Servicer shall not be liable for any loss incurred by
any Securityholder, any Creditor of the Series Trust or any other
person except, subject to clauses 17.3(b), (c), (d) and (e), to the
extent that such loss may be caused by a breach by the Servicer of any
term of this Deed, any fraud, negligence or wilful default by the
Servicer or any breach or default by any person appointed by the
Servicer to perform its obligations under this Deed.
(b) (Damages for direct loss): The Servicer shall not be liable for any
damages in respect of any breach by the Servicer of any term of this
Deed, any fraud, negligence or wilful default by the Servicer or any
breach or default by any person appointed by the Servicer to perform
its obligations under this Deed except and to the extent that the
Trustee on account of the Securityholders has suffered direct loss as
a result of such breach or default. The maximum amount which the
Servicer will be liable to pay in respect of such a breach or default
is the amount outstanding at the time of payment under the Mortgage
Loan in respect of which such default or breach occurred after taking
into account any payment received by the Trustee or the Trustee is
entitled to receive or claim under the Mortgage Insurance Policy
relating to that Mortgage Loan.
(c) (No consequential loss): The Servicer's liability under this clause
17.3 with respect to a Mortgage Loan will not include any damages in
respect of consequential loss. This liability represents the sole
damages recoverable against the Servicer in such circumstances.
(d) (Notice): The Trustee may only claim damages from the Servicer
pursuant to this clause 17.3 by written notice setting out the grounds
for claiming that a breach or default referred to in paragraph (b) has
occurred together with details of the calculation of the loss referred
to in paragraph (b).
(e) (Payment): If a breach or default referred to in paragraph (b) has
occurred, the Servicer must pay any damages due to the Trustee under
this clause 17.3 within 7 Business Days of receipt by it of the
written notice referred to in paragraph (d), such written notice to
represent prima facie evidence of the amount of such damages.
86
--------------------------------------------------------------------------------
18. Servicer Default and retirement of Servicer
18.1 Servicer Default
A Servicer Default occurs if:
(a) (Failure to remit Collections): the Servicer fails to remit any
Collections or any other amounts received in respect of the Mortgage
Loan Rights then forming part of the Assets of the Series Trust to the
Trustee within the time periods specified in this Deed and such
failure is not remedied within 5 Business Days (or such longer period
as the Trustee may agree to) of notice of such failure being given to
the Servicer by the Manager or the Trustee;
(b) (Failure to prepare information for Manager): the Servicer fails to
prepare and transmit to the Manager the information necessary to
enable the Manager to prepare the Quarterly Certificates by the date
set out in this Deed and such failure is not remedied within 20
Business Days (or such longer period as the Trustee may agree to) of
notice being given to the Servicer by the Manager or the Trustee and
has or will have an Adverse Effect as reasonably determined by the
Trustee;
(c) (Breach of representation or warranty): any representation, warranty
or certification made by the Servicer (in its capacity as Servicer) in
a Transaction Document to which it is expressed to be a party or in
any certificate delivered by the Servicer (in its capacity as
Servicer) pursuant to such a Transaction Document proves to have been
incorrect when made in a manner which as reasonably determined by the
Trustee has or will have an Adverse Effect and the Servicer does not
remedy the same to the Trustee's reasonable satisfaction within 60
Business Days after receipt by the Servicer of notice in writing from
the Trustee requiring it to do so;
(d) (Insolvency Event): an Insolvency Event occurs in relation to the
Servicer;
(e) (Servicer is custodian): while the Servicer is acting as custodian of
the Mortgage Documents pursuant to clause 25, it fails to deliver all
the Mortgage Documents in accordance with clause 25 to the Trustee
following the occurrence of a Document Transfer Event and does not
deliver to the Trustee the outstanding Mortgage Documents within 20
Business Days of receipt of a notice from the Trustee specifying the
Mortgage Documents that remain outstanding;
(f) (Fails to maintain Threshold Rate): the Servicer fails to comply with
clause 12.2, and such failure is not remedied within 20 Business Days
of its occurrence; or
(g) (Breach of other obligations): the Servicer has breached its
obligations (other than those referred to in clauses 18.1(a), (b),
(c), (e) and (f)) as Servicer under a Transaction Document to which it
is expressed to be a party and such breach has or will have an Adverse
Effect as reasonably determined by the Trustee and:
(i) that breach is not satisfactorily remedied so that it no longer
has or will have, having regard to all relevant circumstances,
such an Adverse Effect within 20 Business Days after receipt by
the Servicer of a notice in writing (which must specify the
reasons why the giver of the notice believes that an Adverse
Effect has occurred or will occur) from the Manager or Trustee
requiring it to do so; and
(ii) the Servicer has not paid compensation to the Trustee for its
loss from such breach in an amount satisfactory to the Trustee
(acting reasonably).
87
18.2 Retirement of Servicer
The Servicer may retire from its obligations and duties assumed by it
pursuant to this Deed by 3 months' notice in writing to the Trustee and the
Manager (or such lesser time as the Servicer and the Trustee agree).
18.3 Notice to Securityholders
The Servicer will, within 2 Business Days after the Servicer becomes aware
of any Servicer Default, give notice of such Servicer Default to the
Trustee, the Manager, the US Dollar Note Trustee and the Rating Agencies,
whereupon the Manager will give notice or cause such notice to be given of
such Servicer Default to the Securityholders. Upon any retirement,
termination or appointment of a Substitute Servicer pursuant to this clause
18, the Trustee will give or cause to be given prompt notice of that
retirement, termination or appointment to the Manager, the US Dollar Note
Trustee, the Securityholders and the Rating Agencies.
18.4 Removal of Servicer
If the Trustee has determined that:
(a) (Unlawful): the performance by the Servicer of its duties under this
Deed is no longer permissible under any applicable law and the Trustee
is satisfied that there is no reasonable action which the Servicer
could take to make the performance of its duties under this Deed
permissible under that applicable law; or
(b) (Servicer Default): a Servicer Default has occurred and is continuing,
the Trustee must by written notice to the Servicer, immediately terminate
the rights and obligations of the Servicer and appoint another Bank or
appropriately qualified organisation to act in its place.
18.5 Retirement of Servicer
Upon its retirement, the Servicer may, subject to any approval required by
law, appoint in writing any other corporation approved by the Trustee
(acting reasonably) as Servicer in its place. If the Servicer does not
propose a replacement by the date which is 1 month prior to the date of its
proposed retirement, the Trustee is entitled to appoint a new Servicer as
of the date of the proposed retirement.
18.6 When appointment of Substitute Servicer effective
The purported appointment of a Substitute Servicer has no effect until:
(a) (Substitute Servicer executes deed of accession): the Substitute
Servicer executes a deed under which it covenants to act as Servicer
in accordance with this Deed and all other Transaction Documents
relating to the Series Trust to which the Servicer is a party; and
(b) (Rating Agency confirmation): each Rating Agency issues a Rating
Affirmation Notice in respect of the proposed appointment of the
Substitute Servicer.
18.7 Trustee to Act as Servicer
Until the appointment of the Substitute Servicer is complete, the Trustee
must act as Servicer. The Trustee is entitled to receive the fee payable in
accordance with clause 19.4 for the period during which the Trustee so
acts.
88
18.8 Trustee May Give Discharges
The Trustee may settle with the Servicer the amount of any sums payable by
the Servicer to the Trustee or by the Trustee to the Servicer and may give
to or accept from the Servicer a discharge in respect of those sums which
will be conclusive and binding as between the Trustee and the Servicer, as
between the Servicer and the Residual Unitholder and as between the
Servicer and the Securityholders.
18.9 Servicer May Accept Payment
The Servicer may accept a payment or benefit, in connection with its
retirement or removal, from the Substitute Servicer. The Servicer is also
entitled to receive payments or benefits which have accrued to the Servicer
under this Deed prior to the date of the Servicer's retirement or removal
from office.
18.10 Servicer and Manager to Provide Full Co-operation
The Servicer and the Manager agree to provide their full co-operation in
the event of a Servicing Transfer. The Servicer and the Manager must
(subject to the Privacy Act and the Servicer's duty of confidentiality to
its customers under general law or otherwise) provide the Substitute
Servicer with copies of all paper and electronic files, information and
other materials as the Trustee or the Substitute Servicer may reasonably
request within 90 days of the removal or retirement of the Servicer in
accordance with this clause 18.
18.11 Indemnity
The Servicer indemnifies the Trustee in respect of all costs, damages,
losses and expenses incurred by the Trustee as a result of any Servicer
Default (including, without limitation, legal costs charged at the usual
commercial rates of the relevant legal services provider and the costs of
any Servicing Transfer) but excluding any costs, damages, losses and
expenses which the Servicer is not liable or responsible for in accordance
with clause 17.
18.12 No Liability for Servicer Default
Neither the Trustee nor the Manager or their respective delegates (as the
case may be) is liable for any Servicer Default except to the extent that
the Servicer Default is caused by the Trustee's or the Manager's or their
respective delegate's (as the case may be) fraud, negligence or wilful
default.
--------------------------------------------------------------------------------
19. Remuneration of Manager, Trustee, Servicer and Security Trustee
19.1 Management Fee
Pursuant to clause 18.1 of the Master Trust Deed, the Manager is entitled
to receive in respect of each Accrual Period on the following Distribution
Date in accordance with the terms of this Deed a fee as agreed by the
Trustee and the Manager prior to the date of this Deed or as may otherwise
be agreed by the Manager and the Trustee provided that each Rating Agency
will be given 3 Business Days' prior notice by the Manager of any variation
of such fee and such fee will not be varied if such variation would result
in a reduction, qualification or withdrawal in any then current credit
rating by a Rating Agency of any Security.
19.2 Arranging Fee
The Manager is entitled to receive in respect of each Accrual Period on the
following Distribution Date in accordance with the terms of this Deed a fee
for arranging the issue of the Securities as agreed by the Trustee and the
Manager prior to the date of this Deed or as may otherwise be agreed by the
Manager and the Trustee.
89
19.3 Trustee's Fee
Pursuant to clause 18.2 of the Master Trust Deed, the Trustee is entitled
to receive in respect of each Accrual Period on the following Distribution
Date in accordance with the terms of this Deed the fee agreed by the
Trustee and CBA prior to the date of this Deed or as may otherwise be
agreed by the Manager and the Trustee, provided that each Rating Agency
will be given 3 Business Days' prior notice by the Manager of any variation
of the Trustee's Fee and the Trustee's Fee will not be varied if such
variation would result in a reduction, qualification or withdrawal of any
then current credit rating of any Security.
19.4 Servicer's Fee
The Servicer will be entitled to receive in respect of each Accrual Period
on the following Distribution Date in accordance with the terms of this
Deed the fee agreed by the Trustee and the Servicer prior to the date of
this Deed or as may otherwise be agreed by the Trustee, the Manager and the
Servicer provided that each Rating Agency will be given 3 Business Days'
prior notice by the Manager of any variation of the Servicer's Fee and the
Servicer's Fee will not be varied if such variation would result in a
reduction, qualification or withdrawal of any then current credit rating of
any Security.
19.5 Security Trustee's Fees and Expenses
The Trustee will:
(a) (Pay a fee): pay to the Security Trustee the fee agreed by the
Trustee, the Manager and the Security Trustee from time to time
provided that each Rating Agency will be given 3 Business Days' prior
notice by the Manager of any variation of the Security Trustee's Fee
and the Security Trustee's Fee will not be varied if such variation
would result in a reduction, qualification or withdrawal of any then
current credit rating of any Security; and
(b) (Reimburse): reimburse the Security Trustee its costs and expenses
incurred in performing its duties under the Security Trust Deed
calculated in accordance with the Security Trust Deed.
The fees, costs and expenses referred to in paragraphs (a) and (b) of this
clause will be paid or reimbursed, as the case may be, in accordance with
this Deed on the Distribution Date following the Accrual Period to which
such fees, costs and expenses were earned or incurred, as the case may be.
19.6 Goods and Services Tax
Notwithstanding any other provision of this Deed or the Master Trust Deed,
where any of the Trustee, the Manager, the Servicer or a Seller is or
becomes liable to remit to a Governmental Agency an amount of GST in
connection with its supplies in connection with the Series Trust under any
Transaction Document, that GST must be borne by the Trustee, the Manager,
the Servicer or that Seller, as the case may be, on its own account and
neither the Trustee, the Manager, the Servicer nor that Xxxxxx is entitled
to any reimbursement of that GST from the Assets of the Series Trust and
the definition of "Taxes" in clause 1.1 of the Master Trust Deed shall not
include any such GST where that definition applies in relation to the
Series Trust. Nothing in the clause prevents an adjustment, in accordance
with this Deed, of the fees payable to the Trustee, the Manager, the
Servicer or a Seller as a result of a GST Tax Change (as defined in clause
19.7).
19.7 Adjustments to fees
(a) (GST Tax Change): For the purposes of this clause, "GST Tax Change"
means:
90
(i) the abolition of GST;
(ii) an increase or decrease in the rate of GST; or
(iii) any amendment to the GST Act.
(b) (Effect of GST Tax Change): In ascertaining the effect of a GST Tax
Change on the Trustee, any associated abolition, reduction or other
change in Taxes reducing, directly or indirectly, the costs (including
general overhead costs) of the Trustee will be taken into account.
(c) (Adjustments): Following any GST Tax Change, the fees payable to the
Trustee under this clause 19 will, subject to clause 19.7(o), be
adjusted according to the procedure in this clause 19.7 so that, from
the commencement date or dates of the GST Tax Change, the Trustee is
neither economically advantaged nor disadvantaged in relation to the
supplies provided by it under this Deed by the effect of the GST Tax
Change.
(d) (Notice): At any time within 12 months after a GST Tax Change has come
into effect, the Trustee may, by written notice to the Manager and the
Manager may, by written notice to the Trustee, require the
commencement of negotiations by the Manager and the Trustee in
accordance with the succeeding provisions of this clause 19.7.
(e) (Time Bar): If neither the Trustee nor the Manager issues a notice
under clause 19.7(d) within 12 months after a GST Tax Change has come
into effect, then each of the Trustee and the Manager will be taken to
have unconditionally and irrevocably waived its rights under clause
19.7(c) in relation to that GST Tax Change, and no adjustment will be
made.
(f) (Negotiations): Within 28 days after receipt of a notice under clause
19.7(d), the Manager and the Trustee will confer at least once to
negotiate in good faith with a view to agreeing on any adjustments to
the fees payable to the Trustee under this clause 19 which will
satisfy the Trustee's and the Manager's rights under clause 19.7(c).
(g) (Manager and Trustee to give effect to outcome of negotiations):
Subject to clause 19.7(o), if the negotiations result in the parties
agreeing on any adjustments to the fees payable to the Trustee under
this clause 19, the Trustee and the Manager will, as soon as possible,
do all things necessary to give effect to the agreement reached,
including adjusting any payments of such fees which have previously
been made under this Deed after the commencement date or dates of the
relevant GST Tax Change.
(h) (Negotiations Unsuccessful): If, within 28 days after the first
conference under clause 19.7(f), the Manager and the Trustee are
unable to agree fully, the Trustee or the Manager may, by written
notice to the other, require any matter relating to the Trustee's and
the Manager's rights under clause 19.7(c) to be referred to expert
determination.
(i) (Appointment of Expert): The Trustee and the Manager may appoint any
independent consultant who is experienced in indirect taxation to be
the expert. If, within 28 days after receipt of a notice under clause
19.7(h), the Trustee and the Manager are unable to agree on an expert,
then the Trustee or the Manager may request the president for the time
being of the Institute of Chartered Accountants to appoint the expert.
(j) (Expert Determination): The expert will decide on adjustments which
will satisfy the Trustee's and the Manager's rights under clause
19.7(c). The expert will act as
91
an expert and not as an arbitrator and his or her decision will, in
the absence of fraud or bias but notwithstanding error, be final and
binding on the Trustee and the Manager.
(k) (Procedure): The Trustee and the Manager may agree on any procedure
for the expert determination, including the adoption in whole or part
of any expert determination rules published by a dispute resolution
agency, professional body, law firm or any other person. If the
Trustee and the Manager cannot agree, the expert will determine the
procedure to be followed in the expert determination. However, unless
the Trustee and the Manager otherwise agree:
(i) the expert may inform himself or herself in any way he or she
sees fit, including by engaging other consultants, without being
bound by the rules of evidence;
(ii) each of the Trustee and the Manager will have the right to
present its case and to answer the case against it; and
(iii) the expert will give reasons for his or her decision.
(l) (Costs of Expert): The Trustee and the Manager will pay the costs of
the expert in equal shares.
(m) (Xxxxx x Xxxxx clause): The Trustee will not be entitled to commence
any action or proceeding relating to any GST Tax Change until the
procedures outlined in this clause relating to that GST Tax Change
have been completed.
(n) (Continue to Perform): Notwithstanding that the procedures outlined in
this clause are operating, the parties will continue to perform their
obligations under this Deed.
(o) (Rating Agencies Consent): Any adjustment to fees pursuant to this
clause 19.7 will be subject to confirmation in writing from the Rating
Agencies that the adjustment will not result in a reduction,
qualification or withdrawal of the credit ratings then assigned by
them to the Securities.
--------------------------------------------------------------------------------
20. Manager Default
The occurrence of any of the following events constitutes a Manager Default
for the purposes of clause 20.1(b) of the Master Trust Deed:
(a) (Manager does not instruct): the Manager does not instruct the Trustee
to pay the required amounts to the Securityholders of the Series Trust
within the time periods specified in this Deed and such failure is not
remedied within 10 Business Days (or such longer period as the Trustee
may agree) of notice of such failure being delivered to the Manager by
the Trustee;
(b) (Manager does not prepare Quarterly Certificates): the Manager does
not prepare and transmit to the Trustee the Quarterly Certificates or
any other reports required to be prepared by the Manager and such
failure is not remedied within 10 Business Days (or such longer period
as the Trustee may agree) of notice being delivered to the Manager by
the Trustee. Such a failure by the Manager does not constitute a
Manager Default if it is as a result of a Servicer Default pursuant to
clause 18.1(b) provided that, if the Servicer subsequently provides
the information to the Manager, the Manager prepares and submits to
the Trustee the outstanding Quarterly Certificates or other reports
within 10 Business Days (or such longer period as the Trustee may
agree to) of receipt of the required information from the Servicer;
92
(c) (Breach of a Representation or Warranty): any representation,
warranty, certification or statement made by the Manager (in its
capacity as Manager) in a Transaction Document to which it is
expressed to be a party, or in any document provided by it under or in
connection with a Transaction Document, proves to have been incorrect
when made, or is incorrect when repeated, in a manner which as
reasonably determined by the Trustee has an Adverse Effect and the
Manager does not remedy the same to the Trustee's reasonable
satisfaction within 60 Business Days after receipt by the Manager of
notice in writing from the Trustee requiring it to do so; or
(d) (Breach of other obligations): the Manager has breached its other
obligations as Manager under a Transaction Document to which it is
expressed to be a party or any other deed, agreement or arrangement
entered into by the Manager in relation to the Series Trust or the
Securities, (other than an obligation which depends upon information
provided by, or action taken by, the Servicer and the Manager has not
received the information, or the action has not been taken, which is
necessary for the Manager to perform the obligation) and such breach
has had or, if continued, will have an Adverse Effect as reasonably
determined by the Trustee, and either such breach is not remedied so
that it no longer has or will have such an Adverse Effect within 20
Business Days of notice thereof delivered to the Manager by the
Trustee or the Manager has not within 20 Business Days of receipt of
such notice paid compensation to the Trustee for its loss from such
breach in an amount satisfactory to the Trustee (acting reasonably).
The Trustee must, in such notice, specify the reasons why it believes
an Adverse Effect has occurred, or will occur, as the case may be.
--------------------------------------------------------------------------------
21. Representations and warranties
21.1 General Representations and Warranties by the Seller and the Servicer
Each Seller and the Servicer represents and warrants in respect of itself
to the Trustee that:
(a) (Due incorporation): it has been duly incorporated as a company
limited by shares in accordance with the laws of its place of
incorporation and is validly existing under those respective laws and
has power and authority to carry on its business as it is now being
conducted;
(b) (Power to enter and observe this Deed): it has full power to enter
into and perform its obligations under this Deed and the other
Transaction Documents to which it is a party;
(c) (Separate Authority): it has in full force and effect the
authorisations necessary to authorise its execution, delivery and
performance of this Deed and the other Transaction Documents to which
it is a party;
(d) (Authorisations): it has in full force and effect all authorisations
from Governmental Agencies that are required for the execution,
delivery and performance by it of this Deed and the Transaction
Documents to which it is a party as at the date of this Deed and has
filed all necessary returns with the Australian Securities and
Investments Commission;
(e) (Obligations enforceable): its obligations under this Deed are legal,
valid, binding and enforceable against it in accordance with their
terms subject to stamping and any necessary registration, except as
such enforceability may be limited by any applicable bankruptcy,
insolvency, reorganisation, moratorium or trust law or general
principles of equity or other similar laws affecting creditors' rights
generally;
93
(f) (This Deed does not contravene constituent documents): this Deed does
not contravene its constituent documents or any law, regulation or
official directive or any of its obligations or undertakings by which
it or any of its assets are bound or cause a limitation on its powers
or the powers of its directors to be exceeded;
(g) (No Servicer Default): (represented and warranted by the Servicer
only) no Servicer Default continues unremedied that has not been
notified to the Trustee;
(h) (Servicing Guidelines): (represented and warranted by the Servicer
only) the Servicing Guidelines are in existence as at the date of this
Deed;
(i) (No material default): to the best of its knowledge, it is not in
default of the material requirements of any relevant laws which would
materially adversely affect its ability to carry out its obligations
under this Deed;
(j) (No immunity from process): it has no immunity from the jurisdiction
of a court or from legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution,
execution or otherwise);
(k) (Not Trustee): it does not enter into this Deed in the capacity of a
trustee of any trust or settlement;
(l) (No material adverse effect): it is not actually aware of any facts
which would have a material adverse effect on its ability to perform
its obligations under this Deed;
(m) (No related party transaction): no person has contravened or will
contravene section 243H or section 243ZE of the Corporations Act by
entering into or participating in the Transaction Documents or any
transaction contemplated by the Transaction Documents;
(n) (No Insolvency Event): no Insolvency Event has occurred and is
subsisting in respect of it; and
(o) (Paid Taxes): it has filed all Tax returns which are required to be
filed and has promptly paid all Taxes as shown in all assessments
received by it to the extent that such Taxes have become due other
than those Taxes the subject of a bona fide dispute with the
Australian Taxation Office or other Governmental Agency.
21.2 Repetition of Representations and Warranties
The representations and warranties in clause 21.1 are taken to be also made
on the Closing Date.
--------------------------------------------------------------------------------
22. Collections Account and investment
22.1 Collections Account
The Trustee will establish and maintain in New South Wales (or in such
other place as the Manager selects from time to time), in accordance with
this clause 22, an account in the name of the Trustee which must be an
Eligible Deposit Account.
22.2 Initial Collections Account
Immediately following the Closing Date, the Trustee will establish the
initial Collections Account with the Servicer if the Servicer is an
Eligible Depository.
94
22.3 Replacement of Collections Account
If, at any time, the Collections Account ceases to be an Eligible Deposit
Account, the Trustee (or the Manager on its behalf) will within 5 Business
Days (or such longer period, as the Rating Agencies may agree) establish a
new account which is an Eligible Deposit Account and the Trustee will
transfer any cash comprising the old Collections Account to such new
account and from the date such new account is established, it will be the
Collections Account.
22.4 Deposits into Collections Account within 5 Business Days
Subject to clauses 22.5 and 22.11, the Servicer and each Seller, as
applicable, must deposit in the Collections Account each amount comprising
a Collection received by the Servicer or otherwise payable by that Seller
or the Servicer or debited by the Servicer as contemplated by clause
22.4(a)) within 5 Business Days of:
(a) (Receipt or Set-off): receipt of the Collection by the Servicer or the
debiting of the Collection by the Servicer against an account pursuant
to a right of set-off or right to combine accounts; or
(b) (Where otherwise payable): where Collections are not received by the
Servicer but are otherwise payable by the Servicer or a Seller in
accordance with clauses 14, 15.1(j), 16, 18, 24, 25, 26 or 30 of this
Deed, when they fall due for payment to the Trustee from the Servicer
or that Seller.
22.5 While Collections Account with Commonwealth Bank
If the Collections Account is permitted to be maintained with the Servicer
and:
(a) (A-1+/P1/F1 Rating): the Servicer is assigned short term credit
ratings by the Rating Agencies of no lower than A-1+ (in the case of
S&P), no lower than P1 (in the case of Xxxxx'x) and no lower than F1
(in the case of Fitch), then the Servicer will be entitled to retain
any Collections in respect of a Collection Period until 10.00 am on
the Business Day which is two Business Days preceding the Distribution
Date for the Collection Period;
(b) (A-1/P1/F1 Rating): the Servicer does not have all the applicable
credit ratings specified in clause 22.5(a), but is assigned short term
credit ratings of no lower than A-1 (in the case of S&P), no lower
than P1 (in the case of Xxxxx'x) and no lower than F1 (in the case of
Fitch), then the Servicer will be entitled to retain any Collections
in respect of a Collection Period until 10.00 am on the Business Day
which is the earlier of two Business Days preceding the Distribution
Date for the Collection Period and 30 days from receipt of such
Collections, provided that while the sum of:
(i) all Collections then held by the Servicer; and
(ii) the aggregate value of the Authorised Short-Term Investments in
relation to the Series Trust which are with, or issued by, a bank
or financial institution which then has assigned to it by S&P a
short term credit rating of A-1,
exceeds 20% of the then aggregate of the Stated Amounts of the
Securities, the Servicer will only be entitled to retain any
additional Collections received in respect of a Collections Period
until 10.00 am on the Business Day which is 2 Business Days from the
receipt of such Collections; or
(c) (Lower than A-1/P1/F1 Rating): the Servicer has no credit ratings or
is assigned a short term credit rating by the Rating Agencies lower
than A-1 (in the case of S&P),
95
lower than P1 (in the case of Xxxxx'x) or lower than F1 (in the case
of Fitch), then the Servicer will be entitled to retain any
Collections, in respect of a Collection Period until 10.00 am on the
Business Day which is two Business Days from receipt of such
Collections,
and must at that time pay such Collections into the Collections Account
together with an amount of interest (in the case of paragraphs (a) and
(b)) equal to the amount that would have been earned had such Collections
been paid into the Collections Account within 5 Business Days of their
receipt by the Servicer.
22.6 Withdrawals from Collections Accounts
Subject to this Deed, the Trustee will withdraw funds from the Collections
Account and apply the same when necessary for the following outgoings:
(a) (Payments to Securityholders and Residual Unitholder): making
payments to the Securityholders or the Residual Unitholder;
(b) (Eligible Investments): purchasing Authorised Short-Term Investments
in compliance with this Deed and making payments required in
connection with Authorised Short-Term Investments;
(c) (Expenses and Taxes): paying Expenses and Taxes in accordance with
this Deed or the Master Trust Deed; and
(d) (Other payments): making payments, in accordance with the Transaction
Documents to (or at the direction of) the Trustee, the Manager, the
Servicer, the Security Trustee, any Support Facility Provider or any
other Creditor of the Series Trust.
22.7 All Transactions through Collections Account
Unless otherwise directed by the Manager, all moneys and proceeds referred
to in clauses 22.4 and 22.5 will be credited to the Collections Account
and all outgoings referred to in clause 22.6 will be paid from the
Collections Account.
22.8 Title to and Control of Collections Account
The Collections Account and all rights to it and the funds standing to its
credit from time to time is an Asset of the Series Trust. At all times the
Collections Account will be under the sole control of the Trustee.
22.9 No Deductions by Servicer
If the Collections Account is maintained with the Servicer, the Servicer
agrees that it will have no right of set-off, banker's lien, right of
combination of accounts, right to deduct moneys or any other analogous
right or Security in or against any funds held in the Collections Account
for any amount owed to the Servicer.
22.10 Prepayments under Liquidity Facility
All prepayments made to the Trustee in respect of the Liquidity Facility
Agreement must be deposited in the Collections Account. Amounts so
deposited must not be withdrawn by the Trustee other than at the direction
of the Manager in accordance with the Liquidity Facility Agreement or to
be paid into a new Collections Account opened in accordance with clause
22.3.
96
22.11 Servicer May Retain Income from Collections
Subject to clause 22.5, where the Servicer has received Collections but it
is not required pursuant to this Deed to deposit those Collections into
the Collections Account until a later date, the Servicer may retain any
interest and other income derived by the Servicer from those Collections
for the period up to when the Servicer is required to deposit them under
this Deed into the Collections Account.
22.12 Bank Account Taxes
Interest earned on amounts standing to the credit of the Collections
Account shall be determined net of all Taxes levied specifically in
respect of debits or credits to or on deposit accounts.
22.13 Opening of additional accounts where Collections Account is with an
Eligible Depository
If at any time:
(a) (Collections Account with Eligible Depository): there are Collections
deposited in a Collections Account with an Eligible Depository;
(b) (Required Rating): the then short term credit rating assigned by S&P
to the Eligible Depository is no higher than A-1 and the obligations
of that Eligible Depository in respect of the Collections Account are
rated, or considered by S&P to be equivalent to obligations rated,
less than A-1+; and
(c) (Credit balance of Collections Account): the sum of:
(i) all amounts then credited to the Collections Account; and
(ii) the aggregate value of the Authorised Short-Term Investments in
relation to the Series Trust which are with, or are issued,
endorsed (with recourse) or accepted by, a bank or financial
institution which has then assigned to it by the Rating Agency a
short term credit rating of A-1,
exceeds 20% of the Total Invested Amount of the Notes,
then:
(d) (New Collections Account): the Trustee must, upon becoming actually
aware of the occurrence of that event, immediately open a new
Collections Account with another Eligible Depository which has
assigned to it a short term credit rating by S&P of A-1+;
(e) (Amounts in excess transferred): an amount equal to the excess
referred to in clause 22.13(c) must be transferred by the Trustee from
the Collections Account referred to in clause 22.13(a) to the new
Collections Account;
(f) (Subsequent deposits): all subsequent amounts received by, or payable
to, the Trustee in respect of the Series Trust must be deposited in
the Collections Account referred to in clause 22.13(a) to the extent
that such amounts can be deposited in that Collections Account in
accordance with, and without breaching the restrictions on such
deposit set out in, clause 22.13(c); and
(g) (Balance transferred): the balance of the amounts received by, or
payable to, the Trustee in respect of the Series Trust must be
deposited in the new Collections Account established pursuant to
clause 22.13(d) and in accordance with clauses 22.4 and 22.5.
97
--------------------------------------------------------------------------------
23. Clean-up and extinguishment
23.1 Notification of Trigger Event by Manager to CBA
If (unless otherwise required by CBA):
(a) (10% Threshold): the event referred to in Condition 7.3(a) of the US
Dollar Note Conditions has occurred or is expected to occur on the
next Distribution Date; or
(b) (Other Redemption Event): both of the following events occur:
(i) the next Distribution Date is the Call Date or an event referred
to in Condition 7.4(a) or (b) has occurred; and
(ii) CBA has prior thereto notified the Manager that the Australian
Prudential Regulation Authority will permit CBA to exercise its
rights under this clause 23 on behalf of both Sellers
(notwithstanding that the event referred to in clause 23.1(a) has
not occurred),
the Manager must promptly request CBA by telephone or orally whether CBA
wishes to exercise its rights on behalf of the Sellers pursuant to this
clause 23.
23.2 Response by CBA
CBA may at any time after receiving (or after it ought to receive) a
request from the Manager pursuant to clause 23.1, and prior to the
Termination Date, advise the Manager by telephone or orally, that it
requires to exercise the rights of the Sellers pursuant to this clause 23
and nominating a Distribution Date as the Clean-up Settlement Date. The
Manager must then promptly advise the Trustee of such advice and (if
applicable) such nomination by CBA. Any such nomination by CBA shall be
binding on both Sellers.
23.3 Determination of Clean-Up Settlement Date
If CBA advises the Manager pursuant to clause 23.2 that it requires to
exercise the rights of the Sellers pursuant to this clause 23:
(a) (Clean-Up Settlement Date to Coincide with redemption of Securities):
if any Securities have been issued and have not then been redeemed,
the Manager must, subject to clause 23.4(b), in accordance with
Conditions 7.3 or 7.4 (as applicable) of the US Dollar Note Conditions
direct the Trustee to give a notice in accordance with such Condition
(which the Trustee must give) that on the Distribution Date nominated
by CBA pursuant to clause 23.2 (which must be a complying Distribution
Date in accordance with such Condition) a redemption of the Securities
will occur pursuant to such Condition (in which case, such nominated
and complying Distribution Date will be the Clean-Up Settlement Date);
or
(b) (Otherwise, date nominated by CBA): otherwise, the Clean-Up Settlement
Date will be the Distribution Date nominated by CBA as the Clean-Up
Settlement Date pursuant to clause 23.2.
23.4 Clean-Up Settlement Price
(a) (Calculation): The Clean-Up Settlement Price will be the amount
determined by the Manager to be the aggregate of the Fair Market Value
(as at the last day of the Accrual Period ending immediately before
the proposed Clean-Up Settlement Date) of each Mortgage Loan then
forming part of the Assets of the Series Trust.
98
(b) (Minimum Clean-Up Settlement Price): If any Securities have been
issued and have not then been redeemed (or deemed to be redeemed) and
if the amount of the Clean-Up Settlement Price determined by the
Manager (when combined with the other Assets that will be available to
the Trustee) is not sufficient to ensure, upon payment by the Sellers
to the Trustee pursuant to clause 23.5, that the Trustee would be in a
position on the proposed Clean-Up Settlement Date to redeem the
Securities in full in accordance with Condition 7.3 or 7.4 (as
applicable) of the US Dollar Note Conditions, the Manager must not
give a direction to the Trustee pursuant to clause 23.3(a). If such
amount would be so sufficient, the Manager's direction pursuant to
clause 23.3(a) must be accompanied by a notification to the Trustee of
such amount and the certificate referred to in Condition 7.5 of the US
Dollar Note Conditions.
(c) (Minimum not Sufficient): If the Manager cannot issue the direction
referred to in clause 23.4(b) as a result of such clause, nothing
herein prevents CBA issuing a further advice to the Manager pursuant
to clause 23.2 at a later date, in which case the procedures and
provisions of this clause 23 will thereupon take effect again
(including this clause 23.4(c)), subject to the requirements herein
contained.
23.5 Payment of Clean-Up Settlement Price
(a) (Payment): Subject to clause 23.5(b), the Sellers must pay to the
Trustee, in immediately available funds, the Clean-Up Settlement Price
on the Clean-Up Settlement Date. Each Seller's liability under this
clause 23.5(a) will be determined according to the proportion which
the Fair Market Value of the Mortgage Loans referable to that Seller
and described in clause 23.4(a) bears to the total Fair Market Value
of all Mortgage Loans described in clause 23.4(a).
(b) (Waiver of Redemption by Class A-1 Noteholders): If a proposed payment
pursuant to clause 23.5(a) is as a result of the occurrence of the
event referred to in Condition 7.4(a) of the US Dollar Note Conditions
in respect of only the Class A-1 Notes and the Trustee is not required
to redeem the Class A-1 Notes as a result of an election to this
effect by the Class A-1 Noteholders in accordance with Condition 7.4,
the Sellers must not make the proposed payment referred to in clause
23.5(a) on the proposed Clean-Up Settlement Date (but without limiting
the operation of clause 23.4(c) in respect of any other event that has
occurred or may occur under clause 23.1).
23.6 Effect of Payment of Clean-Up Settlement Price
Upon receipt of the Clean-Up Settlement Price by the Trustee in immediately
available funds, the Trustee's entire right, title and interest in the
Mortgage Loan Rights then forming part of the Assets of the Series Trust
will be extinguished in favour of the relevant Seller with immediate effect
from the last day of the Collection Period which ended prior to the
Clean-Up Settlement Date. The Trustee must execute whatever documents the
Sellers reasonably require to complete the extinguishment of the Trustee's
right, title and interest in the Mortgage Loan Rights.
23.7 Costs
Each Seller must pay to, or reimburse, the Trustee immediately on demand
for all costs and expenses, including, without limitation, any stamp duty
and registration fees, arising out of or necessarily incurred in connection
with the exercise of such Seller's rights pursuant to this clause 23.
99
23.8 Alternative Structure
The Trustee must co-operate with the Sellers in implementing alternative
means to permit the Sellers to have the benefit of the Mortgage Loan Rights
referred to in clause 23.6 other than as set out in this clause 23 if to do
so would materially reduce the liability of the Sellers to reimburse the
Trustee for any of the costs and expenses set out in clause 23.7 and
provided that any proposed alternative means pursuant to this clause is
permitted in law and does not result in the Trustee being exposed to the
risk of personal liability unless the Trustee is satisfied, in its absolute
discretion, that the Sellers will be able to indemnify the Trustee in
respect of such risk in accordance with clause 2.15(a).
23.9 Alternative Funding Arrangements to Permit Redemption
Nothing in this clause 23 prevents the Manager and the Trustee exercising
any other rights and powers conferred upon them by this Deed or the Master
Trust Deed (in so far as it applies to the Series Trust) to enable the
redemption of the Securities as contemplated by Conditions 7.3 and 7.4 of
the US Dollar Note Conditions.
--------------------------------------------------------------------------------
24. Perfection of Title
24.1 Perfection of Title Event
A Perfection of Title Event occurs if:
(a) (Breach of Seller Representations): a Seller makes any representation
or warranty under a Transaction Document to which it is expressed to
be a party that proves to be incorrect when made (other than a
representation or warranty in respect of which payment has been made,
or is not yet due to be made, in accordance with clauses 14.6 and
14.9(a)), or breaches any covenant or undertaking given by it in such
a Transaction Document, and that has or, if continued will have, an
Adverse Effect and:
(i) the same is not satisfactorily remedied so that it no longer has
or will have, an Adverse Effect, within 20 Business Days of
notice thereof being delivered to that Seller by the Manager or
the Trustee; or
(ii) if paragraph (i) is not satisfied, that Seller has not within 20
Business Days of such notice paid compensation to the Trustee for
its loss from such breach in an amount satisfactory to the
Trustee acting reasonably (such compensation cannot exceed the
aggregate of the principal amount outstanding in respect of the
corresponding Mortgage Loan (as recorded on the Mortgage Loan
System) and any accrued or unpaid interest in respect of the
Mortgage Loan (calculated in both cases at the time of payment of
the compensation)).
The Trustee must, in such notice, specify the reasons why it believes
an Adverse Effect has occurred, or will occur (as the case may be);
(b) (Servicer Default): if CBA is the then Servicer, a Servicer Default
occurs;
(c) (Seller Insolvency Event): an Insolvency Event occurs in relation to a
Seller;
(d) (CBA breach of Interest Rate Swap Agreement): if CBA is a then
Interest Rate Swap Provider under a Fixed Rate Swap or an Interest
Rate Basis Cap, CBA fails to make any payment due under the
corresponding Interest Rate Swap Agreement and such failure:
100
(i) has or will have, as reasonably determined by the Trustee, an
Adverse Effect; and
(ii) is not remedied by CBA within 20 Business Days (or such longer
period as the Trustee may agree to) of notice thereof being
delivered to CBA by the Manager or the Trustee; or
(e) (Downgrading of CBA): a downgrading in the long term debt rating of
CBA below the Specified Rating (or such other rating in respect of CBA
as is agreed between the Manager, CBA and the Rating Agency which had
assigned the relevant Specified Rating).
24.2 Declaration of Perfection of Title Event
If a Perfection of Title Event (of which the Trustee is actually aware) is
subsisting, the Trustee must, as soon as is practicable, by notice in
writing to the Sellers, the Servicer, the Manager and the Rating Agencies
declare that a Perfection of Title Event has occurred unless each Rating
Agency issues a Rating Affirmation Notice to the Trustee (with a copy to
the Manager) prior to the declaration in respect of such Perfection of
Title Event.
24.3 Perfection of Title
If, and only if, a declaration is made by the Trustee in accordance with
clause 24.2, the Trustee and the Manager must as soon as practicable:
(a) (Perfect title): take all necessary steps to perfect in the name of
the Trustee the Trustee's legal title to the Mortgages then forming
part of the Assets of the Series Trust, including lodgement of
Mortgage Transfers (where necessary, executed under a Power of
Attorney) with the land titles office of the appropriate jurisdiction
to achieve registration of the Mortgages then forming part of the
Assets of the Series Trust;
(b) (Notify Borrowers): notify the relevant Borrowers of the sale of the
Mortgage Loans and Mortgages then forming part of the Assets of the
Series Trust including informing them (where appropriate) that they
should make payment to the Series Trust Account specified to them by
the Trustee; and
(c) (Possession of Loan Files): take possession of all Loan Files (subject
to the Privacy Act and each Seller's duty of confidentiality to its
customers under general law or otherwise). The Trustee and the Manager
may, if necessary to obtain possession, enter into the premises of the
Servicer at which the Loan Files are stored.
24.4 Trustee to lodge Caveats
If the Trustee does not hold the Mortgage Documents necessary to vest fully
and effectively in the Trustee each Seller's legal right, title and
interest in and to any Mortgage Loan, the Trustee must, within 5 Business
Days after the declaration by the Trustee of a Perfection of Title Event in
accordance with clause 24.2, lodge or enter, to the extent of the
information available to it, a caveat or similar instrument in respect of
the Trustee's interest in the Mortgage Loan.
24.5 Trustee to hold Legal Title or lodge Caveats
The Trustee must, in respect of each Mortgage Loan then forming part of the
Assets of the Series Trust, within 30 Business Days after the declaration
by the Trustee of a Perfection of Title Event in accordance with clause
24.2, either have commenced to take all necessary steps to perfect the
legal title to that Mortgage Loan or have lodged or entered a caveat or
similar instrument in respect of the Trustee's interest in that Mortgage
Loan.
101
24.6 Powers of Attorney
The Trustee must only use the Powers of Attorney to execute Mortgage
Transfers in respect of Mortgages then forming part of the Assets of the
Series Trust and only then if it has declared a Perfection of Title Event
in accordance with clause 24.2.
24.7 Other Loans
Following a declaration in accordance with clause 24.2, the Trustee must
continue to hold its interest in the CBA Trust Assets in accordance with
this Deed.
24.8 Indemnity
CBA indemnifies the Trustee against all loss, costs, damages, charges and
expenses incurred by the Trustee in perfecting the Trustee's title to the
Mortgages then forming part of the Assets of the Series Trust in accordance
with clause 24.3, including legal costs charged at the usual commercial
rates of the relevant legal services provider, all registration fees, stamp
duty and the cost of preparing and transmitting all necessary
documentation.
--------------------------------------------------------------------------------
25. Servicer as Custodian of the Mortgage Loan documents
25.1 Servicer as Custodian
The Servicer shall hold the Mortgage Documents in relation to the Sellers'
Mortgage Loans and which from time to time form part of the Assets of the
Series Trust (the "Relevant Mortgage Documents") as custodian on behalf of
the Trustee from and including the Closing Date until a Document Transfer
Event occurs.
25.2 Application of the Balance of this Clause
The remaining provisions of this clause 25 only apply if and while the
Servicer remains as custodian of the Relevant Mortgage Documents.
25.3 Servicer's Covenants as Custodian
The Servicer covenants with the Trustee that it will:
(a) (Hold documents in accordance with its normal practice): hold the
Relevant Mortgage Documents in accordance with its standard
safekeeping practices and in the same manner and to the same extent as
it holds its own documents;
(b) (Segregate documents): mark and segregate the security packages
containing the Relevant Mortgage Documents in a manner to enable the
easy identification of them by the Trustee (when the Trustee is at the
premises at which the Relevant Mortgage Documents are located and in
possession of the letter delivered to it pursuant to clause 6.1(k));
(c) (Reporting): maintain reports on movements of the Relevant Mortgage
Documents; and
(d) (Deficiencies in Document Custody Audit Report): cure any exceptions
or deficiencies noted by the Auditor of the Series Trust in a Document
Custody Audit Report; and
(e) (Power of Attorney): exercise any power of attorney granted by
Homepath solely in relation to its duties as Custodian or in relation
to any non-compliance by Homepath with clause 25.12 and upon the
instruction of the Trustee.
102
25.4 Servicer's Update of Computer Diskette
(a) (Quarterly Updates): The Servicer must deliver to the Trustee on each
Distribution Date a computer diskette in a format acceptable to the
Trustee updating the information referred to in clause 6.1(j).
(b) (Adverse Document Custody Audit Report): In addition to its
obligations under clause 25.4(a), if there is an Adverse Document
Custody Audit Report the Servicer must deliver to the Trustee within
20 Business Days thereafter (or such longer period as may be agreed
between the Servicer and the Trustee) a computer diskette updating the
information referred to in clause 6.1(j) and containing the Caveat and
Transfer Details in respect of each Mortgage Loan then forming part of
the Assets of the Series Trust.
25.5 Servicer's Indemnity in respect of Incorrect Information on Computer
Diskette
If the Servicer:
(a) (Fails to supply information): fails to supply adequate information;
or
(b) (Supplies incorrect information): supplies inaccurate or incomplete
information,
on the computer diskettes delivered pursuant to clause 6.1(j) or 25.4 and
as a result the Trustee is unable (when entitled to do so under this Deed)
to lodge and register Caveats and Mortgage Transfers upon the occurrence of
a Document Transfer Event or a Perfection of Title Event, then the Servicer
(as custodian) indemnifies the Trustee (whether for its own account or for
the account of the Securityholders) for all actions, loss, damage, costs
(including legal costs charged at the usual commercial rates of the
relevant legal services provider), charges and expenses suffered as a
result.
25.6 Document Custody Audit Report
The Manager or the Trustee (due to default by the Manager) must retain the
Auditor of the Series Trust to conduct periodic reviews (determined in
accordance with clause 25.9) in respect of the Servicer's role as custodian
of the Relevant Mortgage Documents. The Auditor must review:
(a) (Custodial procedures): the custodial procedures adopted by the
Servicer; and
(b) (Accuracy of information): the accuracy of information in respect of
the Mortgage Loans contained on:
(i) the Security Register; and
(ii) the most recent of the computer diskettes provided to the Trustee
pursuant to clauses 6.1(j) and 25.4.
25.7 Details of Document Custody Audit Report
(a) (Custody procedures): In respect of the review referred to in clause
25.6(a), the Manager must instruct the Auditor of the Series Trust
that its review should consist of reporting on whether:
(i) the Relevant Mortgage Documents are capable of identification and
are distinguishable from the other assets of the Servicer;
(ii) controls exist such that the Relevant Mortgage Documents may not
be removed or tampered with except with appropriate
authorisation; and
103
(iii) an appropriate tracking system is in place such that the
location of the security packages containing the Relevant
Mortgage Documents can be detected at any time and the location
of the Relevant Mortgage Documents (other than the Relevant
Mortgage Documents in relation to the First Layer of Collateral
Securities but including any Insurance Policy or certificate of
currency for an Insurance Policy in relation to a Mortgage Loan)
can be detected at any time.
(b) (Accuracy of information): In respect of the review referred to in
clause 25.6(b)(i), the Manager must instruct the Auditor of the Series
Trust to review a sample of security packets in respect of the
Mortgage Loans then forming part of the Assets of the Series Trust to
determine whether they contain the following (which accord, where
applicable, with the information contained in the computer diskette
referred to in clause 25.6(b)(ii)):
(i) an original counterpart of the corresponding Mortgage;
(ii) the Certificate of Title (if any) in respect of the Land the
subject of the Mortgage; and
(iii) (where applicable) any Mortgage Insurance Policy in respect of
the corresponding Mortgage other than the PMI Mortgage Insurance
Policy.
If such security packets do not contain any of the foregoing, the
Auditor must determine if there is an adequate explanation regarding
the documents not in the security packets or whether the security
packets or the Servicer's records indicate the location of the missing
documents.
The Manager must instruct the Auditor to confirm (after having
conducted the above reviews) the accuracy of the information in
respect of the above contained in both the Security Register and the
computer diskette referred to in clause 25.6(b)(ii).
25.8 Document Custody Audit Report
The Manager must instruct the Auditor of the Series Trust to provide a
Document Custody Audit Report in respect of the Servicer in which the
Auditor, based on its reviews referred to in clause 25.7, specifies a grade
of the overall custodial performance by the Servicer, based on the
following grading system:
"A" Good - All control procedures and accuracy of information in
respect of Mortgage Loans testing completed without
exception.
"B" Satisfactory - Minor exceptions noted.
"C" Improvement required - Base internal controls are in place but a number of
issues were identified that need to be resolved for
controls to be considered adequate; and/or
Testing of the information in respect of
Mortgage Loans identified a number of minor
exceptions which are the result of
non-compliance with the control system.
"D" Adverse - Major deficiencies in internal controls were
identified. Cannot rely on the integrity of the
information in respect of Mortgage Loans on the
104
Security Register and the diskettes delivered pursuant
to clauses 6.1(j) and 25.4.
25.9 Timing of Document Custody Audit Reports
The Manager (or the Trustee if the Manager fails to do so) must instruct
the Auditor of the Series Trust to prepare a Document Custody Audit Report
immediately after delivery of the computer diskette referred to in clause
6.1(j) and annually on 30 September of each year thereafter (not including
the year in which the first Document Custody Audit Report is prepared) (or
such other period as may be agreed by the Manager, the Trustee and the
Ratings Agencies). The Manager (or the Trustee if the Manager fails to do
so) must require the Auditor to deliver a copy of each Document Custody
Audit Report to the Trustee, with a copy to the Manager and the Servicer.
25.10 Adverse Document Custody Audit Report
If the Auditor issues an Adverse Document Custody Audit Report to the
Trustee, the Trustee must instruct the Auditor to conduct a further
Document Custody Audit Report no sooner than 1 month but no later than 2
months after the date of receipt by the Trustee of the Adverse Document
Custody Audit Report. The Manager must instruct the Auditor to deliver the
further Document Custody Audit Report to the Trustee, with a copy to the
Manager and the Servicer.
25.11 Document Transfer Event
Upon the occurrence of any of the following:
(a) (Further Adverse Document Custody Audit Report): a further Document
Custody Audit Report pursuant to clause 25.10 is an Adverse Document
Custody Audit Report;
(b) (Trustee as Servicer): the Trustee replaces CBA as the Servicer; or
(c) (Downgrade of CBA Rating): a downgrading in the long term debt rating
of CBA to below the Specified Rating (or such other rating as is
agreed between the Manager, the Servicer and the relevant Rating
Agencies),
a Document Transfer Event occurs. The Trustee must immediately upon
becoming actually aware of a Document Transfer Event deliver a notice to
the Servicer notifying it of the occurrence of a Document Transfer Event.
Upon receipt of such notice the Servicer must transfer custody of the
Relevant Mortgage Documents held by it to the Trustee. Subject to clause
25.14, this requirement will be treated as being satisfied if:
(d) (Delivery of 90% of Mortgage Documents): within 5 Business Days of the
above notice being received, all Mortgage Documents in relation to at
least 90% (by number) of the Mortgage Loans then part of the Assets of
the Series Trust are delivered to the Trustee; and
(e) (Remaining Mortgage Documents): any remaining Relevant Mortgage
Documents are delivered to the Trustee within 10 Business Days of the
above notice being received.
25.12 Failure to comply with clause 25.11
If the Servicer does not comply with the requirements of clause 25.11
(subject to clause 25.14) within either of the specified time limits
specified in clause 25.11(d) & (e), the Trustee must (unless the Trustee is
satisfied, in its absolute discretion, that the Servicer has used its best
endeavours to deliver the Mortgage Documents and has made appropriate
arrangements for the remaining Mortgage Documents to be delivered in
accordance with clause 25.11 (subject to clause 25.14) within a reasonable
period as determined by the Trustee (but in any event no
105
longer than 10 Business Days from the date that they were due to be
delivered in accordance with clause 25.11 (subject to clause 25.14) except
where the Trustee is satisfied, in its absolute discretion, that the
failure to deliver the remaining Mortgage Documents arises from
circumstances beyond the control of the Servicer)) to the extent to which
it has information available to it at the time:
(a) (Lodge Caveats): execute and lodge Caveats in respect of all Land or
Mortgages (as the case may be) for which all Mortgage Documents in
respect of the Series Trust have not been delivered; and
(b) (Bring Proceeds for Possession): initiate legal proceedings to take
possession of the Mortgage Documents in respect of the Series Trust
that have not been delivered,
and to the extent that the Trustee cannot do so, as a result of not having
information available to it to do so, the indemnity in clause 25.5 applies.
The Trustee must discontinue any legal proceedings initiated in accordance
with this clause 25.12 if the Mortgage Documents in question are delivered
to the Trustee.
25.13 Emergency Document transfer
If:
(a) (A Perfection of Title Event occurs): a Perfection of Title Event
(other than a Servicer Default referred to in clause 18.1(g)) is
declared by the Trustee in accordance with clause 24.2 and the Trustee
notifies the Sellers and the Servicer of that fact (which the Trustee
must do immediately upon declaring any such Perfection of Title
Event); or
(b) (Nominated Servicer Default): for the purposes of this clause only and
not for any other purpose under this Deed:
(i) the Trustee considers in good faith that the conditions of clause
18.1(g) have been satisfied; and
(ii) the Trustee serves a notice on the Servicer identifying the
reasons why the Trustee considers that those conditions have been
satisfied and why, in the Trustee's opinion, an Adverse Effect
has or may occur as a result,
then, subject to clause 25.14, the Servicer must immediately upon receipt
of a notice under paragraph (a) or (b) transfer custody of the Relevant
Mortgage Documents to the Trustee. The Trustee may, in such circumstances,
commence legal proceedings to obtain possession of the Relevant Mortgage
Documents and may enter into the premises of the Servicer at which the
Relevant Mortgage Documents are stored and take away from such premises the
Relevant Mortgage Documents.
25.14 Exceptions to Transfer
The obligations of the Servicer to transfer custody of the Relevant
Mortgage Documents to the Trustee pursuant to clause 25.11 or 25.13 do not
extend to such documents which the Servicer can prove, to the reasonable
satisfaction of the Trustee, are deposited with a solicitor (acting on
behalf of the Servicer), a land titles office, a stamp duties office or any
other Governmental Agency. The Servicer must provide a list of such
documents to the Trustee together with any which have been lost (and a
statutory declaration duly completed that the contents of the list are, to
the best of the knowledge and belief of the maker, true and correct) within
14 days of the above notice having been received by it. In respect of
Relevant Mortgage Documents that are so deposited, the Servicer must
deliver these to the Trustee immediately upon receipt from the solicitor or
relevant office and, in respect of Mortgage Documents that are lost, the
106
Servicer must take all reasonable steps satisfactory to the Trustee to
promptly replace such Relevant Mortgage Documents.
25.15 Indemnity by the Servicer
The Servicer indemnifies the Trustee against all loss, costs, damages,
charges and expenses incurred by the Trustee:
(a) (Servicer breach): as a result of a breach by the Servicer of clause
25.11; or
(b) (Legal proceedings): in connection with the Trustee taking the action
referred to in clause 25.12 or the legal proceedings referred to in
clause 25.13,
including all registration fees, stamp duty, legal costs charged at the
usual commercial rates of the relevant legal services provider and the cost
of preparing and transmitting all necessary documentation.
25.16 Trustee to co-operate with Servicer
If the Trustee holds any Relevant Mortgage Document and if the Trustee
receives from the Servicer a satisfactory undertaking, the Trustee must
release to the Servicer from time to time such Relevant Mortgage Documents
as are reasonably required by the Servicer to perform its obligations as
Servicer under this Deed.
25.17 Specific performance
If the Servicer breaches it obligations under clauses 25.11 to 25.14, it is
agreed that damages alone will not be an adequate remedy for such a breach
and that the Trustee is entitled to sue the Servicer for specific
performance of its obligations under clauses 25.11 to 25.14.
25.18 Trustee's Duty While Holding Mortgage Documents
While the Trustee holds any Mortgage Documents, it must hold them in
accordance with its standard safekeeping practices and in the same manner
and to the same extent as it holds equivalent mortgage documents as
trustee.
25.19 Reappointment of Servicer as Custodian
If following a Document Transfer Event:
(a) the Trustee is satisfied, notwithstanding the occurrence of the
Document Transfer Event, that the Servicer is an appropriate person to
act as custodian of all or part of the Relevant Mortgage Documents;
and
(b) each Rating Agency issues a Rating Affirmation Notice in respect of
the re-appointment of the Servicer,
then the Trustee may by agreement with the Servicer re-appoint the Servicer
to act as custodian of those Mortgage Documents upon such terms as are
agreed between the Trustee and the Servicer and approved by the Manager.
This clause 25 will apply following the re-appointment of the Servicer as
custodian of the Relevant Mortgage Documents under this clause 25.19.
--------------------------------------------------------------------------------
26. Termination of the Series Trust
26.1 Potential Termination Events
(a) (Notify Potential Termination Event): If the Trustee, the Manager or
the Servicer becomes aware of the occurrence of a Potential
Termination Event it must promptly
107
notify in writing the others and the Security Trustee and the US
Dollar Note Trustee.
(b) (Trustee must determine whether Potential Termination Event has
Adverse Effect): Upon becoming aware of a Potential Termination Event,
the Trustee must promptly determine whether in its reasonable opinion
the Potential Termination Event has or will have an Adverse Effect and
must promptly thereafter notify in writing the Manager, the Servicer,
the Security Trustee and the US Dollar Note Trustee of its
determination.
(c) (Restructuring): If the Trustee determines pursuant to clause 26.1(b)
that a Potential Termination Event has or will have an Adverse Effect
, the Servicer, the Trustee and the Manager must consult and use their
reasonable endeavours (in consultation with the Security Trustee, the
US Dollar Note Trustee and, if necessary the Residual Unitholder) to
amend or vary the terms of this Deed, any other relevant Transaction
Document and the Securities in respect of the Series Trust, in such a
way so as to cure the Potential Termination Event or its Adverse
Effect.
(d) (Wind up the Security Trust): If such consultations do not result in
the cure of the Potential Termination Event or its Adverse Effect
(with the consent of the Servicer, the Trustee, the Manager, the
Security Trustee and the US Dollar Note Trustee) within 60 days of
notice being given by the Trustee pursuant to clause 26.1(b), then the
Trustee must proceed to liquidate the Assets of the Series Trust in
accordance with the remainder of this clause 26.
26.2 Determination of Termination Payment Date
The Trustee must as soon as practicable following the Termination Date of
the Series Trust, declare on the direction of the Servicer and the Manager,
a date as the Termination Payment Date (which, if Securities have been
issued and have not then been redeemed (or deemed to be redeemed) in full,
must be a Distribution Date and must not be the next Distribution Date
immediately after the declaration if the Determination Date in relation to
that Distribution Date has then passed), being a date by which the Trustee
reasonably believes that the sale and distribution of the Assets of the
Series Trust will be completed in accordance with this clause 26. Based on
the direction of the Servicer and the Manager, the Trustee may substitute
another date as the Termination Payment Date (which, if the Securities have
not then been redeemed in full, must be a Distribution Date) if it
reasonably believes that the Assets will not in fact be sold and
distributed by the then declared Termination Payment Date.
26.3 Realisation of Assets
Upon the occurrence of the Termination Date of the Series Trust, the
Trustee, in consultation with the Manager, must sell and realise the Assets
of the Series Trust (and, in relation to the sale (other than pursuant to
clause 26.5) of any Mortgage Loan Rights forming part of the Assets of the
Series Trust, the Trustee must obtain appropriate expert advice prior to
the sale) and such sale (so far as reasonably practicable and reasonably
commercially viable) must be completed within 180 days of the Termination
Date provided that during the period of 180 days from the Termination Date:
(a) (Fair Market Value): the Trustee must not offer to sell the Mortgage
Loan Rights for less than their Fair Market Value;
(b) (Sale in accordance with clause 26.4): the Trustee must not sell any
Mortgage Loan Rights unless the sale is on terms in accordance with
clause 26.4; and
(c) (Right of first refusal): the Trustee must not sell any Mortgage Loan
Rights unless it has offered the Mortgage Loan Rights for sale to the
Sellers in accordance with clause 26.5 and CBA has either not accepted
that offer or has accepted that offer
108
within 90 days of that Termination Date but not paid the consideration
due by the time required pursuant to clause 26.5.
26.4 Conditions of Sale During 180 days
The Trustee must not conclude a sale pursuant to clause 26.3 (other than
pursuant to clause 26.5) unless:
(a) (Equitable assignment only): all Mortgage Loan Rights sold pursuant to
that sale are assigned in equity only (unless the Trustee already
holds legal title to such Mortgage Loan Rights);
(b) (Servicer's rights retained): the sale is expressly subject to the
Servicer's right to be retained as Servicer of the Mortgage Loan
Rights in accordance with the terms of this Deed; and
(c) (Sale subject to CBA Trust): the sale is expressly subject to the
rights of the CBA Trust in respect of those Mortgage Loan Rights
pursuant to this Deed and to the rights of the beneficiary, or
beneficiaries of the CBA Trust, in respect of those Mortgage Loan
Rights pursuant to this Deed.
26.5 Right of Refusal to Seller
(a) (Deemed offer to Seller): On the Termination Date of the Series Trust
the Trustee is deemed to irrevocably offer to extinguish in favour of
the Sellers, its entire right, title and interest in the Mortgage Loan
Rights forming part of the Assets of the Series Trust in return for
the payment to the Trustee of an amount determined in accordance with
clause 26.3(a) as at the Termination Date.
(b) (Acceptance by Seller of Offer): CBA (on behalf of itself and
Homepath) may verbally accept the offer referred to in clause 26.5(a)
within 90 days after the Termination Date of the Series Trust and,
having accepted the offer, must pay to the Trustee, in immediately
available funds, the amount referred to in clause 26.5(a) by the
expiration of 180 days after the Termination Date of the Series Trust.
If CBA (on behalf of itself and Homepath) makes such payment, the
Trustee must execute whatever documents CBA (on behalf of itself and
Homepath) reasonably requires to complete the extinguishment of the
Trustee's right, title and interest in the Mortgage Loan Rights then
forming part of the Assets of the Series Trust.
(c) (Trustee must not sell): The Trustee must not sell any Mortgage Loan
Rights referred to in clause 26.5(a) unless CBA (on behalf of itself
and Homepath) has failed to accept the offer referred to in clause
26.5(a) within 90 days after the Termination Date or, having accepted
the offer, has failed to pay the amount referred to in clause 26.3(a)
by the expiration of 180 days after the Termination Date.
26.6 Sale at Lower Price
If after the expiration of the period of 180 days from the Termination Date
of the Series Trust the Trustee has not sold any Mortgage Loan Rights which
form part of the Assets of the Series Trust for the amount determined in
accordance with clause 26.3(a), the Trustee may proceed to sell such
Mortgage Loan Rights free from the prohibitions contained in clause 26.3
and may, if necessary, sell such Mortgage Loan Rights on the terms set out
in clause 26.7 if the terms of that clause are satisfied. If any Mortgage
Loan Rights are sold for less than the price for those Mortgage Loan Rights
determined in accordance with clause 26.3(a), then any such shortfall must
be allocated as provided for clause 26.11.
109
26.7 Conditions of Sale After 180 days
Upon the expiration of the period of 180 days from the Termination Date in
respect of the Series Trust, the Trustee may, if necessary (in its
reasonable opinion) to sell the Mortgage Loan Rights forming part of the
Assets of the Series Trust for at least the amount determined in accordance
with clause 26.3(a) in respect of those Mortgage Loan Rights:
(a) (Perfect title): take all necessary steps to perfect the Trustee's
legal title to the Mortgage Loan Rights as if a Perfection of Title
Event had occurred;
(b) (Terminate Servicer): terminate the rights and obligations of the
Servicer in respect of those Mortgage Loan Rights; and
(c) (Sell Mortgage Loan Rights): sell the legal and beneficial ownership
in such Mortgage Loan Rights to the prospective purchaser free of all
rights of the relevant Seller to repurchase such Mortgage Loan Rights
in accordance with this Deed which rights that Seller is deemed to
have waived by its not accepting the offer made to it in accordance
with clause 26.3(a).
26.8 Further Conditions of Sale After 180 days
If the Trustee sells the Mortgage Loan Rights pursuant to clause 26.7, the
Trustee must use reasonable endeavours to include as a condition of the
sale that the purchaser will:
(a) (Consent): consent to the granting in favour of the relevant Seller of
mortgages and other Security Interests subsequent to the Mortgages and
Collateral Security assigned to the purchaser;
(b) (Enter Priority Agreements): enter into priority agreements with that
Seller, in the form then specified in the Servicing Standards,
limiting the priority of the Mortgages and Collateral Security
assigned to the purchaser over any subsequent mortgages and other
Security Interests held by that Seller to the then principal
outstanding of the relevant Mortgage Loan and any interest, fees and
expenses on this amount; and
(c) (Endeavour to obtain Borrower's consent): use reasonable endeavours to
obtain the consent of the providers of Mortgages and Collateral
Securities assigned to the purchaser, and any other relevant person,
to the grant of subsequent mortgages and other Security Interests to
that Seller.
26.9 Procedures Pending Winding-Up
During the period commencing on the Termination Date and ending on the
Termination Payment Date:
(a) (Trustee, Manager and Servicer must continue to perform duties): the
Trustee, the Servicer and the Manager must continue to perform their
respective roles in accordance with the Master Trust Deed and this
Deed in respect of the Assets of the Series Trust;
(b) (Collections to continue to be paid into Collections Account): all
Collections must continue to be deposited into the Collections Account
in accordance with this Deed;
(c) (Proceeds of sale): all proceeds arising from the sale of Assets of
the Series Trust must be deposited into the Collections Account and
must be treated for all purposes as if such proceeds were Collections
and the Manager must determine (and advise the Trustee) which of such
proceeds are to be treated as received on account of
110
principal amounts and which of such proceeds are to be treated as
received on account of available funds; and
(d) (Trustee must make payments): the Trustee must continue to make all
distributions, transfers and payments determined by the Manager as
required to be made in accordance with this Deed.
26.10 Costs on Winding-up of the Series Trust
On the Determination Date prior to the Termination Payment Date, the
Manager (in consultation with the Trustee) must in respect of the Series
Trust make provision for all Taxes, costs, charges, expenses, claims and
demands anticipated to become payable after the Termination Payment Date
in connection with or arising out of the administration or winding up of
the Series Trust, including the fees of any consultants whom the Trustee,
a Seller, the Servicer, the Security Trustee or the Manager have employed
in connection with the administration or winding up of the Series Trust.
Such costs (if any) will be treated as Expenses by the Manager in making
its determinations as to payments to be made on the Termination Payment
Date in accordance with clause 26.11.
26.11 Calculation of Final Distributions
On the Determination Date prior to the Termination Payment Date, the
Manager must determine how the amounts standing to the credit of the
Collections Account (other than amounts, if any, in respect of Cash Advance
Deposit) are to be distributed and must make such determination in
accordance with the provisions of this Deed for payments and allocations of
principal amounts and Available Income Amounts. As soon as practicable
after making such determinations, the Manager must notify the Trustee of
the allocations and payments to be made on the Termination Payment Date in
accordance with this Deed.
26.12 Final Distributions
On the Termination Payment Date, the Trustee must make the payments that
the Manager directs it to make pursuant to clause 26.11.
26.13 Insufficient Funds
If the Trustee has insufficient funds to make the payments required to be
made under clause 26.12 to the Securityholders in full, the Trustee will
distribute the amount available to the Trustee in accordance with
(including the order of priority specified in) clause 10.3 in the case of
the capital of the Series Trust and clause 10.2 in the case of the income
of the Series Trust.
26.14 Excess Funds
If following the distribution of the amounts required to be distributed by
the Trustee to Securityholders pursuant to clause 26.12 the Trustee holds
any excess funds or other Assets of the Series Trust, the Trustee must
immediately distribute such funds or Assets to the Residual Unitholder.
26.15 Distribution to Residual Unitholder in Specie
On the occurrence of an event referred to in paragraph (c)(i) of the
definition of Termination Date, the Trustee must immediately after
deducting any amount paid or provided for pursuant to clause 26.12,
distribute the Assets of the Series Trust in full in specie to the Residual
Unitholder. The Residual Unitholder must take all steps necessary on its
part in order to enable the Trustee to comply with this clause 26.15 and
will reimburse the Trustee on demand for all expenses payable in connection
with such transfer.
111
26.16 Terms of In Specie Distributions
Any in specie distribution pursuant to clause 26.15 will be without
recourse to the Trustee and without representation or warranty by the
Trustee.
--------------------------------------------------------------------------------
27. General
27.1 Required Credit Rating
For the purposes of the Master Trust Deed in so far as it relates to the
Series Trust:
(a) (Xxxxx'x): the Required Credit Rating required by Xxxxx'x in respect
of Authorised Short-Term Investments of the Series Trust is a
short-term rating of P1 or such other rating as is agreed between the
Manager, the Trustee and Xxxxx'x;
(b) (S&P): the Required Credit Rating required by S&P in respect of
Authorised Short-Term Investments of the Series Trust is a short-term
rating of A-1+ or such other rating as is agreed between the Manager,
the Trustee and S&P; and
(c) (Fitch): the Required Credit Rating required by Fitch in respect of
Authorised Short-Term Investments of the Series Trust is a short-term
rating of F1+ or such other rating as is agreed between the Manager,
the Trustee and Fitch.
27.2 Distribution of information
The Manager will on or before the date which is 1 Business Day before each
Distribution Date send:
(a) (To the Trustee): to the Trustee, the Principal Paying Agent and the
US Dollar Note Trustee, the Quarterly Certificate; and
(b) (To the Rating Agencies): to the Rating Agencies, such information as
they require:
(i) from the Quarterly Certificate; and
(ii) the Pool Performance Data (if available) (and the Manager will
send the same information to the Trustee).
27.3 Electronic Reporting of Pool Performance Data
Prior to each Distribution Date, the Manager (or a person nominated by the
Manager) must prepare and arrange for the publication by Reuters and/or
Bloomberg, L.P. (or another similar electronic medium) of the Pool
Performance Data (if available) in respect of the Collection Period just
ended in a format similar to that used by other mortgage-backed securities
issuers in the Australian market. The Manager is not liable to any person
in any manner for the acts or omissions of the person nominated by the
Manager for the purposes set out in this clause 27.3.
27.4 Claim for Damages
Where this Deed provides for damages to be payable by a Seller, the
Servicer or the Manager:
(a) (Claim must be in writing): a written notice of a claim for damages
must be provided to the relevant party by the Trustee;
(b) (Claim must specify the amount of damages): such notice must specify
the amount of damages claimed and how such amount has been determined
by reference to the loss incurred as a result of the breach leading to
the claim for damages; and
112
(c) (Trustee must act on instructions): the Trustee in preparing a notice
in accordance with clauses 27.4(a) and (b) will act on the
instructions of the Manager (in the case of a claim against that
Seller or the Servicer) or take expert advice, if necessary (in the
case of a claim against the Manager).
27.5 Allocation of Damages
If an amount is payable to the Trustee by the Servicer, a Seller or the
Manager for a breach of a representation, warranty or obligation under the
Master Trust Deed or this Deed or for other damages, the Manager will
determine what portion of such amount is to be treated as Other Principal
Amounts and what portion of such amount is to be treated as Other Income
Amounts. On each Determination Date the Manager must notify the Trustee of
its allocation, in accordance with the foregoing, of such payment received
(if any) in the Collection Period just ended.
27.6 Additional Expenses
Pursuant to clause 16.11 of the Master Trust Deed, the Expenses are
incorporated into and form part of the expenses of the Series Trust for
which the Trustee is entitled to be indemnified out of the Assets of the
Series Trust.
27.7 Form of Transfers and Certificates
For the purposes of the Master Trust Deed insofar as it relates to the
Series Trust:
(a) (Security Certificate): the form of the Security Certificate for A$
Securities is as specified in Schedule 6; and
(b) (Security Transfer): the form of the Security Transfer for A$
Securities is as specified in Schedule 7.
27.8 Incur Costs Without Approval
Pursuant to clause 16.26 of the Master Trust Deed, the Trustee may do such
things, take such actions and incur such expenses without the consent of
the Manager (including the appointment of advisers) as it believes
necessary (acting reasonably) in determining whether a particular event
under the Transaction Documents in relation to the Series Trust is having,
or will have, an Adverse Effect where such determination is a necessary
pre-condition for the Trustee to exercise its rights under any Transaction
Documents.
27.9 Adverse Effect
The Manager and the Servicer acknowledge that:
(a) (Determination without consent): an Adverse Effect may be determined
by the Trustee without the consent of the Manager provided such
determination is a necessary pre-condition of the Trustee exercising
its rights under a Transaction Document;
(b) (Notice): the Trustee is required to determine an Adverse Effect or to
provide the notices referred to in this Deed in respect of a
determination of Adverse Effect only if it is actually aware of the
facts giving rise to the Adverse Effect; and
(c) (Trustee may rely): in making those determinations, the Trustee will
seek and rely conclusively on advice given to it by its advisers in
the manner contemplated in clause 16.6 of the Master Trust Deed.
113
27.10 Notification to Rating Agencies of Redemption of Securities
The Manager will promptly notify each of the Rating Agencies of the
redemption (or deemed redemption) or discharge in full of a Class of
Securities.
27.11 Further Support Facilities
Upon the termination of a Liquidity Facility Agreement, a Standby Redraw
Facility Agreement or a Hedge Agreement, and subject to clause 29.5 of
this Deed and clause 16.5 of the Master Trust Deed, and without limiting
the Trustee's powers under clause 16 of the Master Trust Deed, the Trustee
as trustee of the Series Trust must if requested by the Manager, upon
receipt from each Rating Agency of a Rating Affirmation Notice in respect
of the following, enter into a substitute Liquidity Facility Agreement,
Redraw Facility Agreement or Hedge Agreement (as the case may be) with
such parties and upon such terms as are specified by the Manager.
27.12 Supplementary Trustee Powers
Without limiting the generality of clause 16.1 of the Master Trust Deed or
any other provision of the Master Trust Deed, but subject to the
limitations imposed on the Trustee pursuant to the Master Trust Deed, the
Trustee has full power to do the following (which powers are to be
construed as separate and independent powers):
(a) (Depository): to deliver or lodge the Class A-1 Notes, or arrange for
the Class A-1 Notes to be delivered or lodged, with the Depository or
its nominee;
(b) (Payment direction): where a person owes an amount to the Trustee, to
direct that debtor to make that payment to another person on behalf of
the Trustee, including directing payments due in respect of the
Securities to be made to the Securityholders;
(c) (Currency conversion): to convert currencies on such terms and
conditions as the Manager thinks fit and that are acceptable to the
Trustee acting reasonably;
(d) (Stock exchange): to list and maintain the listing of the Class A-1
Notes with any applicable regulatory authority to enable trading of
the Class A-1 Notes on any stock exchange;
(e) (US Dollar Note Trustee): to appoint the US Dollar Note Trustee;
(f) (Agent Bank): to appoint the Agent Bank;
(g) (Paying Agent): to appoint the Principal Paying Agent and each other
Paying Agent;
(h) (US Dollar Note Registrar): to appoint the US Dollar Note Registrar;
(i) (Hold Assets Other Trusts): if provided for in any Transaction
Document, to hold any property or any interest in any property both as
trustee of the Series Trust and as trustee on behalf of one or more
persons in accordance with the provisions of the relevant Transaction
Document;
(j) (Additional Fees and Expenses): in accordance with the Transaction
Documents, to pay or reimburse to any person any fees, liabilities,
losses, costs, claims, actions, damages, expenses, demands, charges,
stamp duties and other Taxes in relation to the exercise by the
Trustee of the above powers; and
(k) (Incidental Powers): with the written agreement of the Manager (which
agreement is not to be unreasonably withheld), to do all such things
incidental to or necessary or convenient to be done for, or in
connection with, any of the above powers.
114
27.13 Xxxxxxx's power to delegate
For the purposes of clause 16.4(p) of the Master Trust Deed, and
notwithstanding any limitation contained in the Master Trust Deed the
Trustee may delegate any obligation it has to receive or make payments
denominated in US$ to a Paying Agent notwithstanding that such obligation
may be a material obligation and, in respect of such delegation, but
subject to clause 28.3, the Trustee is not liable for the acts or
omissions of that Paying Agent.
--------------------------------------------------------------------------------
28. Limitation of Trustee's duties
28.1 Trustee May Rely
(a) (Entitled to rely): The Trustee is entitled to conclusively rely on
(unless actually aware to the contrary) and is not required to
investigate the accuracy of:
(i) (Contents of Sale Notice): the contents of a Sale Notice given
to it by a Seller and any representation as to whether a
Mortgage Loan meets the Eligibility Criteria;
(ii) (Quarterly Certificate): the contents of a Quarterly
Certificate;
(iii) (Calculations): any calculations made by a Seller, the Servicer
or the Manager under this Deed including without limitation, the
calculation of amounts to be paid to, or charged against, any
Securityholder or a Seller on specified dates;
(iv) (Collections): the amount of, or allocation of, Collections;
(v) (Certificates): the contents of certificates provided to the
Trustee under this Deed and any certificates given by the
Manager or the Servicer pursuant to the Quarterly Certificate or
otherwise pursuant to subsequent amendments to this Deed or the
Master Trust Deed; and
(vi) (US Dollar Note Trustee Directions): all directions or
instructions given to it by the US Dollar Note Trustee in
accordance with the US Dollar Note Trust Deed.
(b) (Manager Default): The Trustee is not liable for any Manager Default
or Servicer Default or Perfection of Title Event.
28.2 No Duty to Investigate
The Trustee has no duty, and is under no obligation, to investigate whether
a Servicer Default or a Perfection of Title Event has occurred other than
where it has actual notice that such event has occurred.
28.3 Trustee not Liable
Subject to clause 16.9 of the Master Trust Deed, but notwithstanding any
other provision of the Master Trust Deed or any other Transaction Document,
the Trustee has no liability (other than in its capacity as trustee of the
Series Trust) for any act or omission by a Depository (or any nominee of a
Depository), the US Dollar Note Trustee, the London Stock Exchange plc, the
US Dollar Note Registrar, the Agent Bank or any Paying Agent except to the
extent that act or omission was caused or contributed to by the Trustee's
fraud, negligence or wilful default.
115
--------------------------------------------------------------------------------
29. Trustee's limitation of liability
29.1 Limitation on Trustee's liability
The Trustee enters into this Deed only in its capacity as trustee of the
Series Trust and in no other capacity. A liability incurred by the Trustee
acting in its capacity as trustee of the Series Trust arising under or in
connection with this Deed is limited to and can be enforced against the
Trustee only to the extent to which it can be satisfied out of Assets of
the Series Trust out of which the Trustee is actually indemnified for the
liability. This limitation of the Trustee's liability applies despite any
other provision of this Deed (other than clause 29.3) and extends to all
liabilities and obligations of the Trustee in any way connected with any
representation, warranty, conduct, omission, agreement or transaction
related to this Deed.
29.2 Claims against Trustee
The parties other than the Trustee may not sue the Trustee in respect of
liabilities incurred by the Trustee, acting in its capacity as trustee of
the Series Trust, in any capacity other than as trustee of the Series Trust
including seeking the appointment of a receiver (except in relation to the
Assets of the Series Trust), or a liquidator, an administrator or any
similar person to the Trustee or prove in any liquidation, administration
or similar arrangements of or affecting the Trustee (except in relation to
the Assets of the Series Trust).
29.3 Breach of trust
The provisions of this clause 29 will not apply to any obligation or
liability of the Trustee to the extent that it is not satisfied because
under the Master Trust Deed, this Deed or any other Transaction Document in
relation to the Series Trust or by operation of law there is a reduction in
the extent of the Trustee's indemnification out of the Assets of the Series
Trust, as a result of the Trustee's fraud, negligence or wilful default.
29.4 Acts or Omissions
It is acknowledged that the Relevant Parties are responsible under the
Transaction Documents for performing a variety of obligations relating to
the Series Trust. No act or omission of the Trustee (including any related
failure to satisfy its obligations and any breach of representations and
warranties under this Deed) will be considered fraudulent, negligent or a
wilful default for the purpose of clause 29.3 to the extent to which the
act or omission was caused or contributed to by any failure by any Relevant
Party or any other person appointed by the Trustee under a Transaction
Document (other than a person whose acts or omissions the Trustee is liable
for in accordance with any Transaction Document) to fulfil its obligations
relating to the Series Trust or by any other act or omission of a Relevant
Party or any other such person.
29.5 No obligation
The Trustee (both in its capacity as trustee of the Series Trust and
trustee of the CBA Trust) is not obliged to enter into any commitment or
obligation under this Deed or any Transaction Document (including incur any
further liability) unless the Trustee's liability is limited in a manner
which is consistent with this clause 29 or otherwise in a manner
satisfactory to the Trustee (both in its capacity as trustee of the Series
Trust and trustee of the CBA Trust) in its absolute discretion.
29.6 CBA Trust
Notwithstanding clause 29.1, the Trustee also enters into this Deed in its
capacity as trustee of the CBA Trust. Clauses 29.1 to 29.5 (inclusive) do
not apply to the extent, and only to the extent, that the Trustee enters
into this Deed in its capacity as Trustee of the CBA Trust and has
liabilities in relation to the CBA Trust. The Trustee's liability in
relation to the CBA Trust
116
is limited as set out in clause 2.16. Nothing in this clause 29.6 shall be
construed as imposing on the Trustee any greater liability under this Deed
than as is set out in clauses 29.1 to 29.5 (inclusive) and clause 2.16.
--------------------------------------------------------------------------------
30. Consumer Credit Code
30.1 Breach of Consumer Credit Code
Where the Trustee is held liable for breaches under the Consumer Credit
Code, the Trustee must seek relief initially under any indemnities provided
to it by the Manager, the Servicer or a Seller before exercising its rights
to recover against any Assets of the Series Trust. If any claim under such
an indemnity is not satisfied within 3 Business Days of it being made, the
Trustee is entitled to exercise its right of indemnity out of the Assets of
the Series Trust.
30.2 Right of Indemnity - Consumer Credit Code
(a) (Trustee to be indemnified against Penalty Payments): Without
prejudice to the right of indemnity given by law to trustees, and
without limiting any other provision of this Deed, the Trustee will be
indemnified out of the Series Trust, free of any set-off or
counterclaim, against all Penalty Payments which the Trustee is
required to pay personally or in its capacity as trustee of the Series
Trust and arising in connection with the performance of its duties or
exercise of its powers under this Deed in relation to the Series
Trust.
(b) (Indemnity not affected): The Trustee's right to be indemnified in
accordance with clause 30.2(a) applies notwithstanding any allegation
that the Trustee incurred such Penalty Payment as a result of its
negligence, fraud or wilful default or any other act or omission which
may otherwise disentitle the Trustee to be so indemnified. However,
the Trustee is not entitled to that right of indemnity to the extent
that there is a determination by a relevant court of negligence, fraud
or wilful default by the Trustee (provided that, until such
determination, the Trustee is entitled to that right of indemnity but
must, upon such determination, repay to the Series Trust any amount
paid to it under this clause 30.2). The Trustee may rely on others in
relation to compliance with the Consumer Credit Code.
(c) (Overrides other provisions): This clause 30.2 overrides any other
provision of this Deed.
(d) (Servicer to indemnify prior to a Perfection of Title Event): The
Servicer indemnifies the Trustee in relation to the Series Trust, free
of any set-off or counterclaim, against all Penalty Payments which the
Trustee is required to pay personally or in its capacity as trustee of
the Series Trust and arising in connection with the performance of its
duties or exercise of its powers under this Deed in relation to the
Series Trust where the events giving rise to the Penalty Payment
occurs prior to a Perfection of Title Event.
(e) (Servicer to indemnify after a Perfection of Title Event): The
Servicer indemnifies the Trustee in relation to the Series Trust, free
of any set-off or counterclaim, against all Penalty Payments which the
Trustee is required to pay personally or in its capacity as trustee of
the Series Trust and arising in connection with the performance of its
duties or exercise of its powers under this Deed in relation to the
Series Trust to the extent that they arise as the result of a Servicer
Default (whether or not waived by the Trustee) or any other failure of
the Servicer to comply with its obligations under this Deed or a
Transaction Document where the events giving rise to the Penalty
Payment occur after a Perfection of Title Event.
(f) (Servicer indemnifies first): The Trustee will call upon the indemnity
under paragraph (d) or (e), as the case may be, before it calls upon
the indemnity in
117
paragraph (a). If any such claim is not satisfied within 3 Business
Days of the claim being made, the Trustee may (without prejudice to
its rights under any indemnity under paragraph (d) or (e)) exercise
its right of indemnity referred to in paragraph (a).
--------------------------------------------------------------------------------
31. Notices
31.1 Method of Delivery
Subject to clause 31.3, any notice, request, certificate, approval, demand,
consent or other communication to be given under this Deed:
(a) (Execution): must be signed by an Authorised Officer of the party
giving the same;
(b) (In writing): must be in writing; and
(c) (Delivery): must be:
(i) left at the address of the addressee;
(ii) sent by prepaid ordinary post to the address of the addressee;
or
(iii) sent by facsimile to the facsimile number of the addressee,
notified by that addressee from time to time to the other parties to
this Deed as its address for service pursuant to this Deed.
31.2 Deemed Receipt
A notice, request, certificate, demand, consent or other communication
under this Deed is deemed to have been received:
(a) (Delivery): where delivered in person, upon receipt;
(b) (Post): where sent by post, on the 3rd (7th if outside Australia) day
after posting; and
(c) (Fax): where sent by facsimile, on production by the dispatching
facsimile machine of a transmission report which indicates that the
facsimile was sent in its entirety to the facsimile number of the
recipient.
However, if the time of deemed receipt of any notice is not before 5.30 pm
local time on a Business Day at the address of the recipient it is deemed
to have been received at the commencement of business on the next Business
Day.
31.3 Notice to Investors
Any notice required or permitted to be given to an Investor pursuant to
this Deed must be given, and will be deemed to be received:
(a) (Residual Unitholder and A$ Securityholder): in the case of notices to
a Residual Unitholder or to a Securityholder in respect of an A$
Security, in accordance with clause 24.4 of the Master Trust Deed; and
(b) (Class A-1 Noteholder): in the case of notices to a Class A-1
Noteholder, in accordance with condition 11.1 of the US Dollar Note
Conditions.
118
--------------------------------------------------------------------------------
32. Confidentiality
32.1 General Restriction
Subject to clause 32.2, the Trustee and the Servicer (if not a Seller) and
the Manager (if not a Related Body Corporate of a Seller) must at all times
keep and ensure that its officers, employees, consultants, advisers and
agents keep confidential and not divulge to any person (other than to any
of its officers, employees, consultants, advisers and agents who require
such information to enable them to properly carry out their duties) or make
or cause any public announcement or other disclosure of or in relation to:
(a) the terms of this Deed or any other Transaction Document (including
any written or oral agreements, negotiations or information in
relation to this Deed); and
(b) any document or information provided to such party under or in
connection with this Deed which is confidential, including without
limitation any information in connection with any Mortgage Loan or any
Borrower,
without the prior written consent of the other parties, which consent may
be given or withheld or given with conditions in their discretion.
32.2 Exceptions
The limitation in clause 32.1 does not apply to the issue by the Manager of
any information memorandum, prospectus or registration statement in respect
of any Securities or to any disclosure or announcement of information
which:
(a) (Law): is required by law;
(b) (Stock Exchange or Regulatory Authority): is required by any stock
exchange or regulatory authority (including, without limitation, the
United States Securities & Exchange Commission);
(c) (Legal Proceedings): is in connection with legal proceedings relating
to this Deed, any Transaction Document or any Mortgage Document;
(d) (Information Available): is in respect of information generally and
publicly available (including the electronic reporting of Pool
Performance Data under clause 27.3);
(e) (Obligations): is required in order for the Trustee, the Servicer or
the Manager, as applicable, to perform its obligations and exercise
its powers under any Transaction Documents or any transactions entered
into as contemplated by the Transaction Documents;
(f) (APRA): is required by the Australian Prudential Regulation Authority
or any replacement prudential authority in connection with its
prudential supervision of banks; or
(g) (Rating Agencies): is reasonably required by a Rating Agency in
connection with its rating of the Securities.
--------------------------------------------------------------------------------
33. Miscellaneous
33.1 Amendments
(a) (To this Deed): The parties to this Deed may amend, add to or revoke
any provision of this Deed only in accordance with the provisions of
clause 25 of the
119
Master Trust Deed provided that any amendment, addition or revocation
that effects a Payment Modification (as defined in the US Dollar Note
Trust Deed) may not be made unless the consent has first been obtained
of each Class A-1 Noteholder to such Payment Modification.
(b) (To Transaction Documents): The Trustee and the Manager may not amend
any Transaction Document (other than the Master Trust Deed, this Deed,
the Security Trust Deed, the US Dollar Note Trust Deed and the Class
A-1 Notes) unless each Rating Agency has issued a Rating Affirmation
Notice in relation to the amendment.
33.2 Governing Law
This Deed is governed by the laws of the State of New South Wales.
33.3 Jurisdiction
(a) (Submission to jurisdiction): Each of the Trustee, the Manager, the
Servicer, the Sellers, the Residual Unitholder and each
Securityholder, irrevocably submits to and accepts, generally and
unconditionally, the non-exclusive jurisdiction of the courts and
appellate courts of the State of New South Wales with respect to any
legal action or proceedings which may be brought at any time relating
in any way to this Deed.
(b) (Waiver of inconvenient forum): Each of the Trustee, the Manager, the
Servicer, the Sellers, the Residual Unitholder and each Noteholder,
irrevocably waives any objection it may now or in the future have to
the venue of any such action or proceedings and any claim it may now
or in the future have that any such action or proceeding has been
brought in an inconvenient forum.
33.4 Notify Rating Agencies
The Trustee and the Manager must promptly notify the Rating Agencies of the
occurrence of any Trustee Default, Manager Default, Servicer Default,
Perfection of Title Event or Document Transfer Event of which they are
aware.
33.5 Severability of Provisions
In the event that any provision of this Deed is prohibited or unenforceable
in any jurisdiction such provision will, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Deed or affecting the
validity or enforceability of such provision in any other jurisdiction.
33.6 Counterparts
This Deed may be executed in any number of counterparts and all of such
counterparts taken together will be deemed to constitute one and the same
instrument.
33.7 No Revocation of Power of Attorney
Each attorney, by signing this Xxxx, declares that he or she has not
received any notice of the revocation of the power of attorney under which
he or she signs this Deed.
33.8 Certifications
Any document or thing required to be certified by a party to the Deed will
be certified by an Authorised Officer of that party.
120
33.9 Payments
All payments hereunder to any party to this Deed will be made to such
account as the party to which such payment is to be made may specify in
writing to the party making such payment.
33.10 Waiver
No waiver by any party of any provision of or right of such party under
this Deed will be effective unless it is in writing signed by an Authorised
Officer of such party and such waiver will be effective only in the
specific instance and for the specific purpose for which it was given. No
failure or delay by any party to exercise any right under this Deed or to
insist on strict compliance by any other party to this Deed with any
obligation under this Deed, and no custom or practice of the parties at
variance with the terms of this Deed, will constitute a waiver of such
party's right to demand exact compliance with this Deed.
33.11 Entire Understanding
Except as specifically stated otherwise in this Deed, this Deed sets forth
the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by
this Deed. This Deed may not be modified, amended, waived or supplemented
or assigned except as expressly provided in this Deed.
33.12 Survival of Indemnities
The indemnities contained in this Deed are continuing obligations of the
party giving such indemnity, separate and independent from the other
obligations of such party and will survive the termination of this Deed.
33.13 Successors and Assigns
This Deed will be binding upon and inure to the benefit of the parties to
this Deed and their respective successors and assigns.
33.14 Moratorium Legislation
To the fullest extent permitted by law, the provisions of all existing or
future laws which operate or may operate directly or indirectly to lessen
or otherwise vary the obligations of any party under this Deed or to delay,
curtail or otherwise prevent or prejudicially affect the exercise by any
party of any of its rights, remedies or powers under this Deed are
expressly negatived and excluded.
33.15 Privacy
(a) (Acknowledgement): Each party acknowledges that Personal Information
may be exchanged between the parties pursuant to the terms of this
Deed.
(b) (Obtain consents): If Personal Information is exchanged between the
parties, the party which provides the Personal Information must ensure
that it obtains such consents, if any, as are required by the Privacy
Act to be obtained by that party in relation to that provision of
Personal Information.
(c) (Best endeavours to comply): Each party undertakes to use its best
endeavours to ensure that at all times:
(i) Personal Information provided to it (the "Receiving Party") by
another party (the "Providing Party"):
A. unless otherwise required by law, will be used only for the
purpose of fulfilling the Receiving Party's obligations
under
121
the Transaction Documents; and
B. except as expressly provided pursuant to the Transaction
Documents, will not be disclosed to any third party unless
express consent in writing is obtained from the Providing
Party; and
(ii) in addition to the obligation under paragraph (b) above, it will
comply with the Privacy Act and all applicable regulations,
principles, standards, codes of conduct or guidelines concerning
the handling of Personal Information under that Act or with any
request or direction arising directly from or in connection with
the proper exercise of the functions of the Privacy Commissioner,
to the extent required by law.
(d) (Notification): If a Receiving Party becomes aware that a breach of
paragraphs (b) or (c) above has occurred, or if it becomes aware that
the law may require disclosure to be made or a consent to be obtained
in relation to Personal Information provided to it by a Providing
Party, it must immediately notify that Providing Party in writing.
122
Schedule 1
Form of Sale Notice
To: Perpetual Trustee Company Limited, ABN 42 000 001 007 (the "Trustee")
Address: Level 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX, 0000
Attention: Manager, Securitisation Services
Copy to:
Securitisation Advisory Services Pty. Limited, ABN 88 064 133 946(the "Manager")
Level 6
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Series 2002-1G Medallion Trust
Sale Notice
We refer to the Master Trust Deed (the "Master Trust Deed") dated 8 October 1997
between the Trustee and the Manager, as amended from time to time, and to the
Series Supplement (the "Series Supplement") dated [ ] between Commonwealth Bank
--
of Australia, ABN 48 123 123 124 (as a Seller and the Servicer), Homepath Pty
Limited, ABN 35 081 986 530 (as a Seller), the Manager and the Trustee. Terms
defined in the Series Supplement have the same meaning in this Sale Notice.
This is a Sale Notice pursuant to clause 4.2 of the Series Supplement. [Name of
Seller] ("Seller") hereby offers to assign to the Trustee with effect from [ ]
--
(the "Cut-Off Date"):
(a) each Mortgage Loan identified in the schedule accompanying this Sale
Notice;
(b) the Other Loans entered into from time to time in relation to the above
Mortgage Loans;
(c) the Mortgages in relation to the above Mortgage Loans;
(d) other Mortgages granted from time to time in relation to the above Mortgage
Loans;
(e) all Collateral Securities from time to time in relation to the above
Mortgage Loans;
(f) the Mortgage Receivables from time to time in relation to the above
Mortgage Loans;
(g) the Mortgage Insurance Policies in relation to the above Mortgage Loans
(other than the PMI Mortgage Insurance Policy); and
(h) the Mortgage Documents from time to time in relation to the above Mortgage
Loans.
This offer may be accepted by the Trustee only by paying the Consideration to
the Seller on [ ] (the "Closing Date").
--
Both the Cut-Off Date and the Closing Date may be altered by the Manager giving
notice to the Trustee and the Seller, no later than 4 Business Days before the
then Closing Date, of the new date that is to be the Cut-Off Date or the Closing
Date (as the case may be). From the close of business on the Business Day which
is 4 Business Days before the then Closing Date neither the Cut-Off Date or the
Closing Date may be amended.
For and on behalf of
[Name of Seller]
----------------------------------
Authorised Officer
Date:
123
Schedule 2
Forms of Power of Attorney
(other than for Queensland and Western Australia)
THIS POWER OF ATTORNEY is made on 2002
BY [Details of relevant Seller] (the "Seller").
IN FAVOUR OF PERPETUAL TRUSTEE COMPANY LIMITED, ABN 42 000 001 007, a
company incorporated in the State of New South Wales and
having an office at Level 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX
2000 (the "Trustee").
RECITALS
A. The Trustee is the trustee, and the Manager is the manager, of the Series
Trust constituted pursuant to the Master Trust Deed and the Series
Supplement (as those terms are defined below).
B. Under the Series Supplement, the delivery to the Trustee of this Deed is a
condition of the Seller issuing an offer to assign Mortgage Loans to the
Trustee.
THIS DEED PROVIDES as follows:
--------------------------------------------------------------------------------
1. Interpretation
1.1 Definitions
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2 and any
person who derives a right directly or indirectly from an Attorney.
"Master Trust Deed" means the Master Trust Deed dated 8 October 1997
between the Trustee as trustee of the Series Trust and the Manager, as
amended from time to time.
"Series Supplement" means the Series Supplement dated [ ] between
--
Commonwealth Bank of Australia, ABN 48 123 123 124 (as a Seller and the
Servicer), Homepath Pty Limited, ABN 35 081 986 530 (as a Seller), the
Manager and the Trustee.
"Mortgage Transfer" in relation to a Mortgage means a duly executed land
titles office transfer which, upon registration, is effective to transfer
the legal title to the Mortgage to the Trustee.
1.2 Interpretation
(a) In this Deed unless the contrary intention appears, the provisions of
clause 1.2 of the Series Supplement apply mutatis mutandis to this
Deed as if set out in this Deed in full.
(b) In this Deed all references to "Assets of the Series Trust", "Mortgage
Loans" and "Mortgage Transfers" shall be construed as references to
those things to the extent that the Seller has an interest in them.
1.3 Series Supplement
Unless expressly defined in this Deed or a contrary intention appears,
words and expressions used in this Deed have the same meaning as in the
Series Supplement.
124
--------------------------------------------------------------------------------
2. Appointment and Powers
2.1 Appointment
With effect from the assignment to the Trustee of the Mortgage Loans in
accordance with the terms of the Series Supplement, the Seller appoints the
Trustee and any Authorised Officer from time to time of the Trustee jointly
and severally as its attorney with the right, subject to clause 2.2, to do
in the name of the Seller and on its behalf everything necessary or
expedient to:
(a) (Mortgage Transfers): in relation to all Mortgage Transfers:
(i) execute, deliver, lodge and register any Mortgage Transfer with
any land titles office of any relevant Australian jurisdiction;
(ii) execute, deliver, lodge and register with any land titles office
of any relevant Australian jurisdiction any other documents
which are referred to in any Mortgage Transfer or which are
ancillary or related to them or contemplated by them;
(iii) execute, deliver, lodge and register with any land titles office
of any relevant Australian jurisdiction any document or perform
any act, matter or thing at its absolute discretion in any way
relating to the Seller's involvement in the transactions
contemplated by any Mortgage Transfer; and
(iv) give effect to the transactions contemplated by any Mortgage
Transfer, including, but not limited to, completing blanks and
making amendments, alterations or additions it considers
necessary or desirable;
(b) (Mortgage Loans): in relation to any Mortgage Loan which is part of
the Assets of the Series Trust, to exercise any rights of the Seller
to vary by notice to the Borrower the rate or amount of any interest
or fees payable by the Borrower under the Mortgage Loan;
(c) (Delegate): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any terms or
conditions that it thinks fit;
(d) (Sign Documents): sign, seal, deliver and execute and do (either
unconditionally or subject to any conditions that it thinks fit) all
deeds, arrangements, documents and things in respect of any of its
rights described in this Deed; and
(e) (Do Incidental Things): do anything incidental to or conducive to the
effective and expeditious exercise of its rights described in this
Deed.
2.2 Limitation on Exercise of Powers
The power of attorney conferred by clause 2.1 will be exercisable only on
the occurrence of a Perfection of Title Event.
--------------------------------------------------------------------------------
3. Consideration and Revocation
3.1 Consideration
This Deed is executed by the Seller for good and valuable consideration,
receipt of which the Seller hereby acknowledges.
125
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of each of
the Trustee and the Manager, the power of attorney granted under clause 2.1
of this Deed is irrevocable by the Seller and its successors and assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed will
remain in full force and effect notwithstanding:
(a) (Insolvency): the occurrence of an Insolvency Event with respect to
the Seller;
(b) (Amendment): any waiver, replacement, amendment or variation of the
Master Trust Deed or the Series Supplement;
(c) (Delay): any delay, laches, acquiescence, mistake, act or omission by
any Attorney (including, without limitation, any Trustee Default or
Manager Default); or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause 3.3 could or might operate to
prejudice, release or otherwise affect the rights of an Attorney under
this Xxxx.
--------------------------------------------------------------------------------
4. Delegates
4.1 Obligation
Where a delegation is made by an Attorney under clause 2, the following
will apply:
(a) (Vary, suspend etc.): the Attorney may at any time by notice in
writing vary, suspend or revoke a delegation made under clause 2;
(b) (Attorney retains any rights delegated): a right delegated by the
Attorney may continue to be exercised or performed by the Attorney
notwithstanding the delegation of that right;
(c) (Effect of acts delegated): any act or thing done within the scope of
a delegation while the delegation is in force:
(i) has the same effect as if it had been done by the Attorney; and
(ii) will not be invalidated by reason of a later revocation or
variation of the delegation; and
(d) (Opinion of delegate): if the exercise or performance of a right by
the Attorney is dependant upon the opinion, belief or state of mind of
the Attorney in relation to a matter and that right is delegated by
the Attorney, the delegate may, unless the contrary intention appears,
exercise or perform the right based upon his or her own opinion,
belief or state of mind (as the case may require) in relation to the
matter.
4.2 Revocation of nomination
The Trustee may at any time revoke or suspend any appointment of a nominee
or an Attorney pursuant to clause 2.
126
--------------------------------------------------------------------------------
5. Miscellaneous
5.1 Suspension of Seller's rights
The Seller must not, after being notified in writing by any Attorney that
an Attorney intends to exercise any right conferred on it by this Deed (and
provided that such right is then and remains exercisable), exercise that
right without the written consent of the Trustee.
5.2 Ratification
The Seller will at all times ratify and confirm whatever any Attorney
lawfully does, or causes to be done, in exercising its rights described in
this Deed.
5.3 Conflict of Interest
Any Attorney may exercise any right notwithstanding that it constitutes a
conflict of interest or duty.
5.4 Seller Bound
The Seller and any person (including, but not limited to, a substitute or
assign) claiming under the Seller are bound by anything an Attorney does in
the lawful exercise of its rights described in this Deed.
5.5 Third party dealings
In respect of dealings by any person in good faith with an Attorney:
(a) (Evidence that power not revoked): that person may accept a written
statement signed by any Attorney to the effect that the power of
attorney granted under this Xxxx has not been revoked as conclusive
evidence of that fact; and
(b) (No duty to enquire): if the Attorney executes any right granted to it
by this Deed, that person is not bound to enquire as to whether the
right is properly exercised or whether any circumstance has arisen to
authorise the exercise of that right.
5.6 Indemnity
The Seller will indemnify any Attorney from and against all actions, suits,
claims, demands, damages, liabilities, losses, costs and expenses that may
be made or bought against or suffered or incurred by any such Attorney
arising out of or in connection with the lawful exercise of any of its
rights described in this Deed.
5.7 Stamping and Registration
The Seller will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable law and
the Seller authorises any Attorney to stamp and register this Deed on
behalf of the Seller.
5.8 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 5.7 will
be paid by the Seller within a reasonable time after demand for payment is
made.
127
--------------------------------------------------------------------------------
6. Governing Law
This Deed is governed by and construed in accordance with the laws of the
State of New South Wales and the Seller irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of the State of New
South Wales and any courts of appeal from any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of )
[Name of relevant Seller] is affixed in )
accordance withits constitution in the presence )
of: )
------------------------------ ---------------------------
Secretary Director
128
Schedule 3
Form of Power of Attorney
(For Queensland)
THIS POWER OF ATTORNEY is made on 2002
BY [Details of relevant Seller] (the "Seller").
IN FAVOUR OF PERPETUAL TRUSTEE COMPANY LIMITED, ABN 42 000 001 007, a
company incorporated in the State of New South Wales and
having an office at Level 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX
2000 (the "Trustee").
THIS DEED PROVIDES as follows:
--------------------------------------------------------------------------------
1. Interpretation
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2 and any
person who derives a right directly or indirectly from an Attorney.
"Authorised Officer" means in relation to the Trustee, a director,
secretary or any person whose title contains the word or words "manager" or
"chief executive officer" or a person performing the functions of any of
them.
"Mortgage Transfer" in relation to a mortgage in which the Seller has an
interest, means a duly executed land titles office transfer which, upon
registration, is effective to transfer the legal title to the mortgage to
the Trustee.
--------------------------------------------------------------------------------
2. Appointment and Powers
2.1 Appointment
The Seller appoints the Trustee and any Authorised Officer from time to
time of the Trustee jointly and severally as its attorney with the right,
to do in the name of the Seller and on its behalf everything necessary or
expedient to:
(a) (Mortgage Transfers): In relation to all Mortgage Transfers:
(i) execute, deliver, lodge and register any Mortgage Transfer with
any land titles office of any relevant Australian jurisdiction;
(ii) execute, deliver, lodge and register with any land titles office
of any relevant Australian jurisdiction any other documents
which are referred to in any Mortgage Transfer or which are
ancillary or related to them or contemplated by them;
(iii) execute, deliver, lodge and register with any land titles office
of any relevant Australian jurisdiction any document or perform
any act, matter or thing at its absolute discretion in any way
relating to the Seller's involvement in the transactions
contemplated by any Mortgage Transfer; and
(iv) give effect to the transactions contemplated by any Mortgage
Transfer, including, but not limited to, completing blanks and
making amendments, alterations or additions it considers
necessary or desirable;
129
(b) (Mortgage Loans): in relation to any mortgage loan which is an asset
of the Seller, to exercise any rights of the Seller to vary by notice
to the borrower with respect to the mortgage loan the rate or amount
of any interest or fees payable by that borrower under the mortgage
loan;
(c) (Delegate): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any terms or
conditions that it thinks fit;
(d) (Sign Documents): sign, seal, deliver and execute and do (either
unconditionally or subject to any conditions that it thinks fit) all
deeds, arrangements, documents and things in respect of any of its
rights described in this Deed; and
(e) (Do Incidental Things): do anything incidental to or conducive to the
effective and expeditious exercise of its rights described in this
Deed.
--------------------------------------------------------------------------------
3. Consideration and Revocation
3.1 Consideration
The Seller acknowledges that it has received good and valuable
consideration for the grant of this Deed.
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of the
Trustee, the power of attorney granted under clause 2.1 of this Deed is
irrevocable by the Seller and its successors and assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed will
remain in full force and effect notwithstanding:
(a) (Insolvency): the insolvency of, or the occurrence of any other
analogous event with respect to, the Seller;
(b) (Amendment): any waiver, replacement, amendment or variation of any
document (with or without the consent of the Seller);
(c) (Delay): any delay, laches, acquiescence, mistake, act or omission
(including, without limitation, any default by the Trustee of any
obligation that it owes to any person) by any Attorney; or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate to
prejudice, release or otherwise affect the rights of an Attorney under
this Deed.
--------------------------------------------------------------------------------
4. Delegates
4.1 Obligation
Where a delegation is made by an Attorney under clause 2, the following
will apply:
(a) (Vary, suspend etc.): the Attorney may at any time by notice in
writing vary, suspend or revoke a delegation made under clause 2;
130
(b) (Attorney retains any rights delegated): a right delegated by the
Attorney may continue to be exercised or performed by the Attorney
notwithstanding the delegation of that right;
(c) (Effect of acts delegated): any act or thing done within the scope of
a delegation while the delegation is in force:
(i) has the same effect as if it had been done by the Attorney; and
(ii) will not be invalidated by reason of a later revocation or
variation of the delegation; and
(d) (Opinion of delegate): if the exercise or performance of a right by
the Attorney is dependant upon the opinion, belief or state of mind of
the Attorney in relation to a matter and that right is delegated by
the Attorney, the delegate may, unless the contrary intention appears,
exercise or perform the right based upon his or her own opinion,
belief or state of mind (as the case may require) in relation to the
matter.
4.2 Revocation of nomination
The Trustee may at any time revoke or suspend any appointment of a nominee
or an Attorney pursuant to clause 2.
--------------------------------------------------------------------------------
5. Miscellaneous
5.1 Suspension of Seller's rights
The Seller must not, after being notified in writing by any Attorney that
an Attorney intends to exercise any right conferred on it by this Deed (and
provided that such right is then and remains exercisable), exercise that
right without the written consent of the Trustee.
5.2 Ratification
The Seller will at all times ratify and confirm whatever any Attorney
lawfully does, or causes to be done, in exercising its rights described in
this Deed.
5.3 Conflict of Interest
Any Attorney may exercise any right notwithstanding that it constitutes a
conflict of interest or duty.
5.4 Seller Bound
The Seller and any person (including, but not limited to, a substitute or
assign) claiming under the Seller are bound by anything an Attorney does in
the lawful exercise of its rights described in this Deed.
5.5 Third party dealings
In respect of dealings by any person in good faith with an Attorney:
(a) (Evidence that power not revoked): that person may accept a written
statement signed by any Attorney to the effect that the power of
attorney granted under this Xxxx has not been revoked as conclusive
evidence of that fact; and
(b) (No duty to enquire): if the Attorney executes any right granted to it
by this Deed, that person is not bound to enquire as to whether the
right is properly exercised or whether any circumstance has arisen to
authorise the exercise of that right.
131
5.6 Indemnity
The Seller will indemnify any Attorney from and against all actions, suits,
claims, demands, damages, liabilities, losses, costs and expenses that may
be made or bought against or suffered or incurred by any such Attorney
arising out of or in connection with the lawful exercise of any of its
rights described in this Deed.
5.7 Stamping and Registration
The Seller will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable law and
the Seller authorises any Attorney to stamp and register this Deed on
behalf of the Seller.
5.8 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 5.7 will
be paid by the Seller within a reasonable time after demand for payment is
made.
--------------------------------------------------------------------------------
6. Governing Law
This Deed is governed by and construed in accordance with the laws of the
State of New South Wales and the Seller irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of the State of New
South Wales and any courts of appeal from any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of )
[Name of relevant Seller] is affixed in )
accordance withits constitution in the presence )
of: )
---------------------------- -------------------------
Secretary Director
132
Schedule 4
Form of Power of Attorney
(for Western Australia)
THIS POWER OF ATTORNEY is made on 2002
BY [Details of relevant Seller] (the "Grantor").
IN FAVOUR OF PERPETUAL TRUSTEE COMPANY LIMITED, ABN 42 000 001 007, a
company incorporated in the State of New South Wales and
having an office at Level 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX
2000 (the "Grantee").
THIS DEED PROVIDES as follows:
--------------------------------------------------------------------------------
1. Interpretation
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2.
"Authorised Officer" means:
(a) in relation to the Grantee, a director, secretary or any person whose
title contains the word or words "manager" or "chief executive
officer" or a person performing the functions of any of them; and
(b) in relation to the Manager, any person appointed by the Manager to act
as an Authorised Officer of the Manager for the purposes of this Deed.
"Manager" means Securitisation Advisory Services Pty. Limited, ABN 88 064
133 946.
"Mortgage" means a mortgage over real property, located in the State of
Western Australia and registered under the Transfer of Land Act 1893, which
is granted in favour of the Grantor and in which the Grantee has equitable
title.
"Mortgage Transfer" in relation to a mortgage means a duly executed land
titles office transfer in respect of a Mortgage which, upon registration,
is effective to transfer the legal title to the Mortgage to the Grantee.
--------------------------------------------------------------------------------
2. Appointment and Powers
2.1 Appointment
The Grantor appoints the Grantee as its attorney with the right, to do in
the name of the Grantor and on its behalf everything necessary or expedient
to:
(a) (Mortgage Transfers):
(i) sell or transfer legal title in all or any Mortgages to the
Grantee;
(ii) execute, deliver, lodge and register any Mortgage Transfer with
any land titles office of any relevant Australian jurisdiction;
(iii) execute, deliver, lodge and register with any land titles office
of any relevant Australian jurisdiction any other documents
which are referred to in any Mortgage Transfer or which are
ancillary or related to them or contemplated by them;
133
(iv) execute, deliver, lodge and register with any land titles office
of any relevant Australian jurisdiction any document or perform
any act, matter or thing at its absolute discretion in any way
relating to the Grantor's involvement in the transactions
contemplated by any Mortgage Transfer; and
(v) give effect to the transactions contemplated by any Mortgage
Transfer, including, but not limited to, completing blanks and
making amendments, alterations or additions it considers
necessary or desirable;
(b) (Sign Documents): sign, seal, deliver and execute and do (either
unconditionally or subject to any conditions that it thinks fit) all
deeds, arrangements, documents and things in respect of any of its
rights described in this Deed;
(c) (Determine interest rates): determine the interest rate to be charged
on the mortgages which are the subject of any Mortgage Transfer; and
(d) (Do Incidental Things): do anything incidental to or conducive to the
effective and expeditious exercise of its rights described in this
Deed.
--------------------------------------------------------------------------------
3. Consideration and Revocation
3.1 Consideration
The power of attorney granted under this Deed has been granted to secure a
proprietary interest of the Grantee in the Mortgages the subject of the
Mortgage Transfers and is given by the Grantor for good and valuable
consideration, receipt of which the Grantor hereby acknowledges.
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of each of
the Grantee and the Manager, the power of attorney granted under clause 2.1
of this Deed is irrevocable by the Grantor and its successors and assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed will
remain in full force and effect notwithstanding:
(a) (Insolvency): the insolvency of, or the occurrence of any other
analogous event with respect to, the Grantor;
(b) (Amendment): any waiver, replacement, amendment or variation of any
document (with or without the consent of the Grantor);
(c) (Delay): any delay, laches, acquiescence, mistake, act or omission
(including, without limitation, any default by the Manager or Grantee
of any obligation that either owes to any person) by any Attorney; or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate to
prejudice, release or otherwise affect the rights of an Attorney under
this Deed.
134
--------------------------------------------------------------------------------
4. Miscellaneous
4.1 Appointment of Sub-Attorneys
An Attorney may appoint from time to time any person or corporation as a
sub-attorney for any of the purposes of and with any of the powers and
authorities conferred by this Deed.
4.2 Ratification
The Grantor will at all times ratify and confirm whatever any Attorney or
sub-attorney lawfully does, or causes to be done, in exercising its rights
described in this Deed.
4.3 Conflict of Interest
Any Attorney or sub-attorney may exercise any right notwithstanding that it
constitutes a conflict of interest or duty.
4.4 Grantor Bound
The Grantor and any person (including, but not limited to, a substitute or
assign) claiming under the Grantor are bound by anything an Attorney or
sub-attorney does in the lawful exercise of its rights described in this
Deed.
4.5 Suspension of Xxxxxxx's rights
The Grantor must not, after being notified in writing by any Attorney or
sub-attorney that the Attorney or sub-attorney (as the case may be) intends
to exercise any right conferred on it by this Deed (and provided that such
right is then and remains exercisable), exercise that right without the
written consent of the Attorney or sub-attorney (as the case may be).
4.6 Third party dealings
In respect of dealings by any person in good faith with an Attorney or
sub-attorney:
(a) (Evidence that power not revoked): that person may accept a written
statement signed by any Attorney or sub-attorney (as the case may be)
to the effect that the power of attorney granted under this Deed has
not been revoked as conclusive evidence of that fact; and
(b) (No duty to enquire): if the Attorney or sub-attorney (as the case may
be) executes any right granted to it by this Deed, that person is not
bound to enquire as to whether the right is properly exercised or
whether any circumstance has arisen to authorise the exercise of that
right.
4.7 Indemnity
The Grantor will indemnify any Attorney and sub-attorney from and against
all actions, suits, claims, demands, damages, liabilities, losses, costs
and expenses that may be made or bought against or suffered or incurred by,
any Attorney or sub-attorney, arising out of or in connection with the
lawful exercise of any of its rights described in this Deed.
4.8 Stamping and Registration
The Grantor will, promptly after execution and delivery of this Deed,
properly stamp and register this Deed as required by any applicable law and
the Grantor authorises any Attorney to stamp and register this Deed on
behalf of the Grantor.
135
4.9 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 4.8 will
be paid by the Grantor within a reasonable time after demand for payment is
made.
--------------------------------------------------------------------------------
5. Governing Law
This Deed is governed by and construed in accordance with the laws of
Western Australia and the Grantor irrevocably and unconditionally submits
to the non-exclusive jurisdiction of the courts of Western Australia and
any courts of appeal from any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of )
[Name of relevant Seller] is affixed in )
accordance withits constitution in the presence )
of: )
--------------------------- -------------------------
Secretary Director
136
Schedule 5
Eligibility Criteria
Eligibility Criteria in relation to a Mortgage Loan means the following
standards:
.. that the Mortgage Loan has a Loan to Value Ratio (based on the position as
at the commencement of business on the Cut-Off Date) of less than or equal
to 95%;
.. that the Mortgage Loan has a stated term to maturity as at the Cut-Off Date
not exceeding 30 years;
.. that the Mortgage Loan as at the Cut-Off Date has a Scheduled Balance of
less than or equal to A$750,000;
.. that the Mortgage Loan is sourced from the relevant Seller's general
mortgage loan portfolio;
.. that the Borrower under the Mortgage Loan is not an employee of either
Seller who is paying a concessional rate of interest under the Mortgage
Loan as a result of such employment;
.. that the Mortgage Loan was advanced in, and is repayable in, Australian
dollars;
.. that as at the Cut-Off Date no payment due from the Borrower under the
Mortgage Loan is in arrears by more than 30 days;
.. that the Mortgage Loan is secured by a Mortgage over Land which has erected
on or within it a residential dwelling or unit and the terms of that
Mortgage require that dwelling or unit to be insured under an Insurance
Policy; and
.. that the Mortgage Loan is or has been fully drawn,
or such other Eligibility Criteria as the Trustee, each Seller and the Manager
may agree in writing prior to the Closing Date and which the Rating Agencies
have confirmed in writing will not result in a reduction, qualification or
withdrawal of the credit ratings to be assigned by the Rating Agencies to the
Notes on the Closing Date.
137
Schedule 6
Form of Security Certificate
A$ Securities
--------------------------------------------------------------------------------
THE A$ SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, US PERSONS EXCEPT IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT
OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. TERMS USED IN THIS PARAGRAPH HAVE THE MEANING GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
--------------------------------------------------------------------------------
SERIES 2002-1G MEDALLION TRUST
CERTIFICATE NUMBER/S [ ]
------
Perpetual Trustee Company Limited
ABN 42 000 001 007
(the "Trustee")
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
(the "Manager")
THIS IS TO CERTIFY THAT:
Securityholder: [ ]
------
ABN [ ]
------
(the "Securityholder")
ADDRESS: [ ]
------
appears in the Register as the holder of the A$ Securities specified below (the
"A$ Securities") issued by the Trustee as trustee of the Series 2002-1G
Medallion Trust (the "Series Trust") as constituted by a Master Trust Deed (the
"Master Trust Deed") dated 8 October 1997 between the Manager and the Trustee,
as amended from time to time, and a Series Supplement (the "Series Supplement")
dated [ ] between Commonwealth Bank of Australia, ABN 48 123 123 124, (as a
--
Seller and the Servicer) (the "Bank"), Homepath Pty Limited, ABN 35 081 986 530
(as a Seller), the Manager and the Trustee.
Unless defined in this Security Certificate or a contrary intention appears,
words and expressions used in this Security Certificate have the same meaning as
in the Series Supplement.
The Securityholder was entered on the Register as holder of the A$ Securities
described below at [ ] on [ ].
-- --
Date of Issue:
Class of A$ Security: [/Class A-2 Tranche 1 Note/Class A-2 Tranche 2 Note/Class
B Note/Redraw Bond]
Numbers of A$ Securities: [ ] to [ ], inclusive
-- --
138
Scheduled Maturity Date of each A$ Security:
Face Value of each A$ Security:
Interest Rate of each A$ Security:
Interest Payment Dates of each A$ Security:
[A tax file number has/has not been obtained from the person named above.]
The A$ Securities are issued and held subject to the provisions of the Master
Trust Deed, the Series Supplement and a Security Trust Deed (the "Security Trust
Deed") dated [ ] between the Manager, the Trustee, the Bank of New York,London
--
Branch, and P.T. Limited, ABN 67 004 454 666 (as Security Trustee). A copy of
the Security Trust Deed, the Master Trust Deed and the Series Supplement are
available for inspection by Securityholders at the offices of the Trustee at
Level 0, 00 Xxxxxx Xxxxxx, Xxxxxx, XXX, 0000.
Neither the Manager nor the Trustee is under any obligation at any time to
repurchase any A$ Securities from Securityholders.
This Security Certificate is not a Certificate of Title and the Register on
which these A$ Securities are registered is the only conclusive evidence of the
title of the abovementioned person to the A$ Securities.
The Trustee issues this Security Certificate only in its role as trustee of the
Series Trust. Any obligation or liability of the Trustee arising under or in any
way connected with the Series Trust under the Master Trust Deed, the Series
Supplement or any other Transaction Document (including any A$ Security) to
which the Trustee is a party is limited to the extent to which it can be
satisfied out of the Assets of the Series Trust out of which the Trustee is
actually indemnified for the obligation or liability. This limitation will not
apply to any obligation or liability of the Trustee only to the extent that it
is not so satisfied because of any fraud, negligence or wilful default on the
part of the Trustee. The Trustee will have no liability for any act or omission
of the Manager or of any other person (other than a person whose acts or
omissions the Trustee is liable for in accordance with any Transaction
Document).
Transfers of the A$ Securities must be pursuant to a Security Transfer as set
out in Schedule 7 to the Series Supplement. Copies of Security Transfers are
available from the Trustee at the abovementioned address. Executed Security
Transfers must be lodged with the Trustee accompanied by this Security
Certificate.
None of the Manager, either Seller, the Servicer, the Bank, any other member of
the Bank group or the Trustee guarantees the payment or repayment of any
Securityholder Entitlements in respect of the A$ Securities.
The A$ Securities do not represent deposits or other liabilities of the Manager,
either Seller, the Servicer, the Bank or any other Related Body Corporate of the
Bank. The holding of the A$ Securities is subject to investment risk, including
possible delays in payment and loss of income and principal invested. None of
the Manager, either Seller, the Servicer, the Bank or any other Related Body
Corporate of the Bank stand in any way behind the capital value and/or
performance of the A$ Securities, or the Assets held by the Series Trust.
Dated:
For and on behalf of
Perpetual Trustee Company Limited
--------------------------- ------------------------------
Authorised Officer Authorised Officer
139
Schedule 7
Form of Security Transfer
-------------------------
TO: Perpetual Trustee Company Limited, Registry Use Date Lodged
ABN 42 000 001 007 Only / /
(the "Trustee")
-------------------------
-----------------------------------------------------------------------------
TRANSFEROR (the
"Transferor") -----------------------------------------------------------------------------
(Full Name, ABN (if applicable)
and Address) -----------------------------------------------------------------------------
(Please Print) -----------------------------------------------------------------------------
-----------------------------------------------------------------------------
HEREBY APPLIES TO ASSIGN TO
-----------------------------------------------------------------------------
TRANSFEREE (the
"Transferee") -----------------------------------------------------------------------------
(Full Name, ABN (if applicable)
and Address) -----------------------------------------------------------------------------
(Please Print) -----------------------------------------------------------------------------
-----------------------------------------------------------------------------
the following securities (the "A$ Securities") issued by the Trustee as trustee
of the Series 2002-1G Medallion Trust (the "Series Trust"):
Date of Issue:
Class of A$ Security: [/Class A-2 Tranche 1 Note/Class A-2 Tranche 2 Note/Class
B Note/Redraw Bond]
Numbers of A$ Securities: [ ] to [ ], inclusive
-- --
Face Value of each A$ Security:
Interest Payment Dates of each A$ Security:
Scheduled Maturity Date of each A$ Security: / /
and all the Transferor's property and interest in the same [and to the interest
accrued thereon.]
------------------------------
Settlement Amount
$
------------------------------
TRANSFEROR
-------------------------------------------------------------------
Signature Authorised Signatory
(See notes below)
WITNESS Date / /
-------------------------------------------------
TRANSFEREE
---------------------------------------------------------------------
140
Signature: Authorised Officer
(See notes below)
WITNESS Date / /
--------------------------------------------------
PAYMENTS
(tick where appropriate)
--------------------------------------------------------------------------------
[ ] In accordance with existing instructions (existing holders only)
[ ] By cheque posted to above address
[ ] By crediting the following account in Australia and in the name of the
Trustee only
--------------------------------------------------------------------------------
Name of Account Account No.
--------------------------------------------------------------------------------
Name of Financial Institution Branch
[ ] Bank ..........................................
[ ] Building Society ..............................
--------------------------------------------------------------------------------
Tax File Number (if applicable):
--------------------------------------------------------------------------------
Authorised Officer of Transferee Date: / /
------------------------
NOTES:
.. The Transferor and the Transferee acknowledge that the transfer of the A$
Securities specified in this Security Transfer only takes effect on the
entry of the Transferee's name in the Register as the registered owner of
the A$ Securities.
.. The Transferee agrees to accept the A$ Securities subject to the provisions
of a Master Trust Deed (the "Master Trust Deed") dated 8 October 1997
between Securitisation Advisory Services Pty. Limited, ACN 064 133 946 (the
"Manager") and the Trustee, as amended from time to time, a Series
Supplement (the "Series Supplement") dated [ ] between Commonwealth Bank
--
of Australia, ABN 48 123 123 124 (as a Seller and the Servicer)(the"Bank"),
Homepath Pty Limited, ABN 35 081 986 530 (as a Seller), the Manager and the
Trustee (as trustee of the Series Trust) and a Security Trust Deed (the
"Security Trust Deed") dated [ ] between the Trustee as trustee of the
--
Series Trust, the Manager, the Bank of New York, London Branch, and P.T.
Limited, ABN 67 004 454 666, as Security Trustee.
.. Unless expressly defined in this Security Transfer or a contrary intention
appears, words and expressions used in this Security Transfer have the same
meaning as in the Series Supplement.
.. The Transferee acknowledges that it has independently and without reliance
on the Trustee, the Manager, either Seller, the Servicer, the Bank or any
other Related Body Corporate of the Bank (including without reliance on any
materials prepared or distributed by any of the foregoing) made its own
assessment and investigations regarding its investment in the A$
Securities.
.. The Transferee acknowledges that:
(a) the A$ Securities do not represent deposits or other liabilities of
either Seller, the Servicer, the Bank, any other Related Body
Corporate of the Bank or the Manager;
(b) the holding of the A$ Securities is subject to investment risk,
including possible delays in payment and loss of income and principal
invested; and
141
(c) none of the Manager, either Seller, the Servicer, the Bank or, any
other Related Body Corporate of the Bank stand in any way behind the
capital value and/or performance of the A$ Securities or the assets
held by the Series Trust.
.. The Trustee issues the A$ Securities only in its role as trustee of the
Series Trust. Any obligation or liability of the Trustee arising under or
in any way connected with the Series Trust under the Master Trust Deed, the
Series Supplement or any other Transaction Document (including any A$
Security) to which the Trustee is a party is limited to the extent to which
it can be satisfied out of the Assets of the Series Trust out of which the
Trustee is actually indemnified for the obligation or liability. This
limitation will not apply to any obligation or liability of the Trustee
only to the extent that it is not so satisfied because of any fraud,
negligence or wilful default on the part of the Trustee. The Trustee will
have no liability for any act or omission of the Manager or of any other
person (other than a person whose acts or omissions the Trustee is liable
for in accordance with any Transaction Document).
.. Where the Transferor and/or the Transferee is a trustee, this Security
Transfer must be completed in the name of the trustee and signed by the
trustee without reference to the trust.
.. Where this Transfer is executed by a corporation, it must be executed
either under common seal or under a power of attorney.
.. If this Security Transfer is signed under a power of attorney, the attorney
hereby certifies that it has not received notice of revocation of that
power of attorney. A certified copy of the power of attorney must be lodged
with this Security Transfer.
.. This Security Transfer must be lodged with the Trustee for registration,
accompanied by the Security Certificate to which the A$ Securities relate.
.. The Register will be closed from 4.30 pm on the Business Day which is prior
to, and will be re-opened at the commencement of business on each
Distribution Date. The Trustee may with prior notice given in the manner
specified in the Master Trust Deed, close the Register at other times. The
total period that the Register may be closed will not exceed 35 Business
Days (or such other period agreed to by the Manager) in aggregate in any
calendar year. No Security Transfer received after 4.30pm on the day of
closure of the Register or while the Register is closed, will be registered
until the Register is re-opened.
.. [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.]
.. A Securityholder is only entitled to transfer an A$ Security if:
(a) the offer of the A$ Security for sale, or the invitation to purchase
the A$ Security, to the proposed transferee by the Securityholder is
an offer or invitation that does not need disclosure to investors
under Part 6D.2 of Chapter 6 of the Corporations Act and otherwise
complies with the Corporations Act; and
(b) the transfer would not otherwise breach any restriction on transfer
for the A$ Security contained in the Series Supplement.
.. The A$ Securities covered hereby have not been registered under the United
States Securities Act of 1933 as amended (the "Securities Act") and may not
be offered and sold within the United States or to or for the account or
benefit of United States persons:
(a) as part of their distribution at any time; or
(b) otherwise until 40 days after the completion of the distribution of
the A$ Securities, as determined and certified by the Co-Managers (as
that term is defined in the Dealer Agreement),
142
except in either case in accordance with Regulation S under the
Securities Act. Terms used above have the meanings given to them by
Regulation S.
[Marking where clause 10.16 of the Master Trust Deed applies.]
The Trustee hereby certifies that the Transferor is noted in the Register as the
holder of A$ Securities specified in this Security Transfer and that it will not
register any transfer of such A$ Securities other than pursuant to this Security
Transfer before [insert date].
Dated:
For and on behalf of
Perpetual Trustee Company Limited
---------------------------- ----------------------------------
Authorised Officer Authorised Officer
143
Schedule 8
Quarterly Certificate
Quarterly Summary Distribution Details
Reporting Dates
---------------
Closing Date
Determination Date
Notice Date
Distribution Date
Start Accrual Period
End Accrual Period
No. of Days in Accrual Period
Start Collection Period
End Collection Period
No. of Days in Collection Period
----------------------------------------------------------------------------------------------------
Securities on Issue No. of Certificates Initial Invested Initial Invested
------------------- ------------------- ---------------- ----------------
Amount (US$) Amount(A$)
----------- ----------
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - Series 1
Redraw Bond - Series 2
US$/A$ exchange rate at issue
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
Interest Rate for Accrual Period Bank Xxxx Xxxx Interest Margin Interest Rate
-------------------------------- -------------- --------------- -------------
Class A-1 Notes (payable to Currency
Swap Providers)
Class A-2 Notes
Class B Notes
Redraw Bond - Series 1
Redraw Bond - Series 2
BBSW Interest & Unpaid Interest Rate
for Accrual Period
Facilities BBSW
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
Distributions Payable On Distribution Date Per Cert. Aggregate
------------------------------------------ --------- ---------
Total Interest Amount:
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - series 1
Redraw Bond - series 2
Principal:
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - Series 1
Redraw Bond - Series 2
Total:
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - series 1
Redraw Bond - series 2
Total
----------------------------------------------------------------------------------------------------
144
----------------------------------------------------------------------------------------------------
Distributions Payable On Distribution Date Per Cert. Aggregate
------------------------------------------ --------- ---------
Redraw Bond-series 1
Redraw Bond-series 2
Total
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
Pool Factors Last Distribution Date Current Distribution
------------ ---------------------- --------------------
Date
----
Class A-1 Notes
Class A-2 Notes
Class B Notes
Redraw Bond - series 1
Redraw Bond - series 2
----------------------------------------------------------------------------------------------------
145
Quarterly Cashflow Working Sheet Per Certificate $ Aggregate $
--------------------------------
Finance Charge Collections
Finance Charge Collections - Repurchases
Finance Charge Damages
Income due to Seller
Other Income
Preliminary Income Amount
Taxes
Trustee Fee
Security Trustee Fee
Management Fee
Servicer's Fee
Liquidity Commitment Fee
Redraw Commitment Fee
Support Facility Payments
Support Facility Receipts
Expenses
Previous Unpaid Facility Int Chg - Liquidity
Liquidity Interest Charge + Previous Unpaid
Previous Unpaid Facility Int Chg - Redraw Facility
Redraw Interest Charge + Previous Unpaid
Repayment of Liquidity Facility
Total Interest Amount - Class A-1 Notes
- Class A-2 Notes
- Class B Notes
- Redraw Bonds - Series 1
- Redraw Bonds - Series 2
Required Income Amount
Gross Income Shortfall
Liquidity Facility Draw
Net Income Shortfall
Unreimbursed Principal Draws
Principal Draw
Principal Draw Reimbursement
Principal Chargeoff Unreimbursement
Principal Chargeoff
Total Principal Chargeoff Reimbursement Due
Arranging Fee
Payment Allocation Cascade
--------------------------
Preliminary Income Amount
Liquidity Facility Draw
Principal Draw
Available Income Amount
Due Available Paid
Taxes
Trustee Fee
Security Trustee Fee
Management Fee
Servicer's Fee
Liquidity Commitment Fee
Redraw Commitment Fee
146
Support Facility Payments
Support Facility Receipts
Expenses
Liquidity Interest Charge
Repayment of Liquidity Facility
------------------------------------------------------------
Interest Amount Payable - Redraw Facility
- Class A-1 Notes
- Class A-2 Notes
- Redraw Bonds - Series 1
- Redraw Bonds - Series 2
------------------------------------------------------------
- Class B Notes
Principal Draw Reimbursement
Total Principal Chargeoff Reimbursement
Arranging Fee
Excess Distribution
Unpaid Facility Int Chg - Liquidity
- Redraw
Unpaid Security Interest Amount- Class A-1 Notes
- Class A-2 Notes
- Class B Notes
- Redraw Bonds - Series 1
- Redraw Bonds - Series 2
Facilities Outstanding
----------------------
Liquidity Commitment Facility Limit
Beginning Liquidity Commitment Facility
Previous Liquidity Facility Draw
Repayment of Liquidity Facility
Liquidity Facility Draw
Ending Liquidity Commitment Facility
Redraw Commitment Facility Limit
Beginning Redraw Commitment Facility
Previous Redraw Facility Draw
Previous Redraw Facility Draw - Chargeoffs
Repayment of Redraw Facility
Repayment of Unreimbursed Chargeoffs
Redraw Facility Draw - Unreimbursed Chargeoffs
Redraw Facility Available to Draw
Redraw Facility Draw
Ending Redraw Commitment Facility
Interest and Principal Distribution Worksheet Per Certificate Aggregate
---------------------------------------------
$ $
Interest Amount
Class A-1 Notes
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest Amount
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
147
Interest Amount Payable
Unpaid Security Interest Amount
Class A-2 Notes
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest Amount
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Interest Amount Payable
Unpaid Security Interest Amount
Class B Notes
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Interest Amount Payable
Unpaid Security Interest Amount
Redraw Bonds - Series 1
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest Amount
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Interest Amount Payable
Unpaid Security Interest Amount
Redraw Bonds - Series 2
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Total Interest Amount
Unpaid Security Interest Amount (after last Distribution Date)
Interest on Unpaid Security Interest Amount
Security Interest Amount
Interest Amount Payable
Unpaid Security Interest Amount
Principal Amount
----------------
Principal Collections
Principal Collections - Repurchases
less Repayment of Redraw Facility
less Total Customer Redraw
less Principal Draw
148
plus Redraw Facility Draw
plus Redraw Bonds Issue this month
Aggregate Principal Damages from Seller & Servicer
Principal Draw Reimbursement
Principal Chargeoff Reimbursement - Class B Notes
- Class A-1 Notes
- Class A-2 Notes
- Redraw Bonds - Series 1
- Redraw Bonds - Series 2
- Redraw Facility
Principal rounding b/f
Scheduled Principal Amount
Scheduled Principal Amount less redraws
Unscheduled Principal Amount - Partial Prepayment
Unscheduled Principal Amount - Full Prepayment
Unscheduled Principal Amount - less redraws + C/X Xxxx
Total Available Principal Amount for Redraw Bonds
Principal Distribution - Redraw Bonds - Series 1
Principal Distribution - Redraw Bonds - Series 2
Principal rounding b/f
Total Unscheduled Principal Amount
Total Scheduled Principal Amount
Total Available Principal Amount for Notes
Principal Allocation
--------------------
Class A Percentage via Stepdown
Class A Available Principal Payment
Class A-1 Principal Payment
Class A-2 Principal Payment
Class B Principal Payment
Principal rounding c/f
Principal Losses
Principal Losses
Principal Draw Amount - Pool Mortgage Insurance Policy
Principal Draw Amount - Individual Mortgage Insurance
Policy
Net Principal Losses
Principal Chargeoff - Class B Notes
- Class A-1 Notes
- Class A-2 Notes
- Redraw Bonds Series 1
- Redraw Bonds Series 2
- Redraw Facility
149
Class A-1 Notes
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
Class A-2 Notes
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
Class B Notes
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
Redraw Bonds - Series 1
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
Redraw Bonds - Series 2
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
Redraw Facility
Beginning Unreimbursed Principal Chargeoffs
Principal Chargeoff
Principal Chargeoff Reimbursement
Ending Unreimbursed Principal Chargeoffs
150
Investors Balance Outstanding Worksheet Aggregate Aggregate
--------------------------------------- US$ A$
Class A-1 Notes
Initial Invested Amount
previous Principal Distribution
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
Class A-2 Tranche 1 Notes
Initial Invested Amount
previous Principal Distribution
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
Class A-2 Tranche 2 Notes
Initial Invested Amount
previous Principal Distribution
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
Class B Notes
Initial Invested Amount
previous Principal Distribution
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
Redraw Bonds - Series 1
Previous Initial Invested Amount
Initial Invested Amount
Principal Distribution (after last Distribution Date)
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
151
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
Redraw Bonds - Series 2
Previous Initial Invested Amount
Initial Invested Amount
Principal Distribution (after last Distribution Date)
Principal Distribution for current period
Total Principal Distribution to date
Beginning Invested Amount
Ending Invested Amount
Unreimbursed Principal Chargeoffs
Beginning Stated Amount
Ending Stated Amount
Average Monthly Percentage
--------------------------
Current Balance of Arrears greater than 60 Days
Current Outstanding Loan Balance
Average Monthly Percentage
Monthly Percentage - Current Period
Monthly Percentage - Month 2
Monthly Percentage - Month 3
Monthly Percentage - Month 4
Monthly Percentage - Month 5
Monthly Percentage - Month 6
Monthly Percentage - Month 7
Monthly Percentage - Month 8
Monthly Percentage - Month 9
Monthly Percentage - Month 10
Monthly Percentage - Month 11
Monthly Percentage - Month 12
Stepdown Conditions
-------------------
Years since initial Determination Date
Required Subordinated Percentage
Available Subordinated Percentage
Aggregate Unreimbursed Principal Chargeoffs
Required Class B Stated Amount Outstanding
Year * 5, 2% Avg Mo. Perc, Unreim C/O Maximum
Year * 5, 4% Avg Mo. Perc, Unreim C/O Maximum
5 * = Year * 6,Unreim C/O Maximum
6 * = Year * 7, Unreim C/O Maximum
7 * = Year * 8, Unreim C/O Maximum
8 * = Year * 9, Unreim C/O Maximum
9 ** = Year, Unreim C/O Maximum
Stepdown Condition less than 5 years
Stepdown Condition greater than & equal to 5 years
Year ** = 5, 2% Avg Mo. Perc, Unreim C/O Maximum
Year - Stepdown Condition Test
5
6
7
8
9
* more than
** less than
152
Year - Stepdown Class A Criteria FALSE TRUE Class A Percentage
0 1 0.5 1.00
1 1 0.5 1.00
2 1 0.5 1.00
3 1 0 1.00
4 1 0 1.00
5 1 0.7 1.00
6 1 0.6 1.00
7 1 0.4 1.00
8 1 0.2 1.00
9 1 0 1.00
10 1 0 --
Stepup Conditions
Step-up Date
Stepup margin - Class A-1 Notes
- Class A-2 Notes
153
Schedule 9
Form of Residual Unit Certificate
RESIDUAL UNIT CERTIFICATE
Series 2002-1G Medallion Trust
Perpetual Trustee Company Limited
ABN 42 000 001 007
(the "Trustee")
Securitisation Advisory Services Pty. Limited
ABN 88 064 133 946
(the "Manager")
THIS IS TO CERTIFY THAT:
RESIDUAL UNITHOLDER: Commonwealth Bank of Australia
ABN 48 123 123 124
(the "Bank")
ADDRESS: Level 0,
00 Xxxxxx Xxxxx
XXXXXX XXX 0000
appears in the Register as the holder of the Residual Unit issued by the Trustee
as trustee of the Series 2002-1G Medallion Trust (the "Series Trust") as
constituted by a Master Trust Deed (the "Master Trust Deed") dated 8 October
1997 between the Manager and the Trustee, as amended from time to time, and a
Series Supplement (the "Series Supplement") dated [ ] between the Bank (as a
--
Seller and the Servicer), Homepath Pty Limited, ABN 35 081 986 530 (as a Seller)
the Manager and the Trustee.
Unless expressly defined in this Unit Certificate or a contrary intention
appears, words and expressions used in this Unit Certificate have the same
meaning as in the Series Supplement.
The Residual Unit is issued and held by the Bank subject to the provisions of
the Master Trust Deed, the Series Supplement and a Security Trust Deed (the
"Security Trust Deed") dated [ ] between the Manager, the Trustee, the Bank of
--
New York, New York Branch, and PT Limited, ABN 67 004 454 666 (as Security
Trustee). A copy of the Register, the Security Trust Deed, the Master Trust Deed
and the Series Supplement are available for inspection by the Bank at the
offices of the Trustee at Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx XXX 0000.
None of the Manager, either Seller, the Servicer, the Bank, or any Related Body
Corporate of the Bank guarantees the payment of amounts (if any) payable in
respect of the Residual Unit.
Neither the Manager nor the Trustee is under any obligation at any time to
repurchase or redeem the Residual Unit.
This Unit Certificate is not a certificate of title and the Register on which
this Residual Unit is registered is the only conclusive evidence of the title of
the Bank to the Residual Unit.
The Trustee issues the Residual Unit only in its role as trustee of the Series
Trust. Any obligation or liability of the Trustee arising under or in any way
connected with the Series Trust under the Master Trust Deed, the Series
Supplement or any other Transaction Document to which the Trustee is a party is
limited to the extent to which it can be satisfied out of the Assets of the
Series Trust out of which the Trustee is actually indemnified for the obligation
or liability. This limitation will not apply to any obligation or liability of
the Trustee only to the extent that it is not so satisfied because of any fraud,
negligence or wilful default on the part of the Trustee. The Trustee will have
no liability for any act or omission of the
154
Manager or of any other person (other than a person whose acts or omissions the
Trustee is liable for in accordance with any Transaction Document).
The Residual Unit does not represent a deposit or other liability of the
Manager, either Seller, the Servicer, the Bank or any Related Body Corporate of
the Bank. The Residual Unit is subject to investment risk, including possible
delays in payment and loss of income and principal invested. None of the
Manager, either Seller, the Servicer, the Bank or any Related Body Corporate of
the Bank stand in any way behind the capital value and/or performance of the
Assets held by the Series Trust.
Dated:
For and on behalf of
PERPETUAL TRUSTEE COMPANY LIMITED
as trustee of the Series Trust
------------------------------ ---------------------------
Authorised Officer Authorised Officer
155
Schedule 10
Stepdown Percentage
Determination of Stepdown Percentage
The Stepdown Percentage on a Determination Date is determined as follows.
1. If the Stepdown Conditions are not satisfied on that Determination Date,
the Stepdown Percentage is 100%.
2. If the Stepdown Conditions are satisfied on that Determination Date, the
Stepdown Percentage is 100% unless the following apply:
(a) if the Determination Date falls prior to the third anniversary of the
Closing Date then the Stepdown Percentage is 50%;
(b) if:
(i) the Determination Date falls on or after the third anniversary of
the Closing Date but prior to the tenth anniversary of the
Closing Date; and
(ii) the Class B Available Support on the Determination Date is equal
to or greater than two times the Class B Required Support on the
Determination Date;
the Stepdown Percentage is 0%;
(c) if:
(i) paragraph (b) above does not apply;
(ii) the Determination Date falls on or after the fifth anniversary
of the Closing Date but prior to the tenth anniversary of the
Closing Date; and
(iii) the Class B Available Support on the Determination Date is equal
to or greater than the Class B Required Support on the
Determination Date;
then:
(i) if the Determination Date falls on or after the fifth
anniversary of the Closing Date but prior to the sixth
anniversary of the Closing Date, the Stepdown Percentage is 70%;
(ii) if the Determination Date falls on or after the sixth
anniversary of the Closing Date but prior to the seventh
anniversary of the Closing Date, the Stepdown Percentage is 60%;
(iii) if the Determination Date falls on or after the seventh
anniversary of the Closing Date but prior to the eighth
anniversary of the Closing Date, the Stepdown Percentage is 40%;
(iv) if the Determination Date falls on or after the eighth
anniversary of the Closing Date but prior to the ninth
anniversary of the Closing Date, the Stepdown Percentage is 20%;
or
(v) if the Determination Date falls on or after the ninth
anniversary of the Closing Date but prior to the tenth
anniversary of the Closing Date, the Stepdown Percentage is 0%;
or
156
(d) if the Determination Date falls on or after the tenth anniversary of
the Closing Date, the Stepdown Percentage is 0%.
Stepdown Conditions
The Stepdown Conditions are satisfied on a Determination Date if:
1. the following applies:
(a) the Class B Available Support on the Determination Date is equal to or
greater than two times the Class B Required Support on the
Determination Date;
(b) the aggregate Stated Amount for the Class B Notes on the Determination
Date is equal to or greater than 0.25% of the aggregate Initial
Invested Amount of all the Notes;
(c) either:
(i) the Average Delinquent Percentage on the Determination Date does
not exceed 2% and the aggregate of all Unreimbursed Principal
Chargeoffs on the Determination Date does not exceed 30% of the
aggregate of the Initial Invested Amounts of the Class B Notes;
or
(ii) the Average Delinquent Percentage on the Determination Date does
not exceed 4% and the aggregate of all Unreimbursed Principal
Chargeoffs on the Determination Date does not exceed 10% of the
aggregate of the Initial Invested Amounts of the Class B Notes;
and
(d) the event referred to in Condition 7.3(a) of the US Dollar Note
Conditions has not occurred on or prior to the Determination Date and
is not expected to occur on or prior to the next Distribution Date
thereafter; or
2. the following applies:
(a) the Determination Date falls on or after the fifth anniversary of the
Closing Date;
(b) the Average Delinquent Percentage on the Determination Date does not
exceed 2%;
(c) the aggregate Stated Amount of all outstanding Notes is greater than
10% of the aggregate Initial Invested Amount of all Notes;
(d) the aggregate Stated Amount for the Class B Notes on the Determination
Date is equal to or greater than 0.25% of the aggregate Initial
Invested Amount of all the Notes; and
(e) the aggregate of all Unreimbursed Principal Chargeoffs on the
Determination Date does not exceed:
(i) if the Determination Date falls on or after the fifth
anniversary of the Closing Date but prior to the sixth
anniversary of the Closing Date, 30% of the aggregate of the
Initial Invested Amounts of the Class B Notes;
(ii) if the Determination Date falls on or after the sixth
anniversary of the Closing Date but prior to the seventh
anniversary of the Closing Date, 35% of the aggregate of the
Initial Invested Amounts of the Class B Notes;
(iii) if the Determination Date falls on or after the seventh
anniversary of the Closing Date but prior to the eighth
anniversary of the Closing Date,
157
40% of the aggregate of the Initial Invested Amounts of the
Class B Notes;
(iv) if the Determination Date falls on or after the eighth
anniversary of the Closing Date but prior to the ninth
anniversary of the Closing Date, 45% of the aggregate of the
Initial Invested Amounts of the Class B Notes; or
(v) if the Determination Date falls on or after the ninth
anniversary of the Closing Date, 50% of the aggregate of the
Initial Invested Amounts of the Class B Notes.
158
Schedule 11 - Part A
Form of Custodian Power of Attorney (for States other than Queensland and
Western Australia)
THIS POWER OF ATTORNEY is made on 2002
------------- ---------------------------
BY HOMEPATH PTY LIMITED, ABN 35 081 986 530, a company
incorporated in the [ ] and having an office at Level 6,
-----
00 Xxxxxx Xxxxx, Xxxxxx, XXX 0000 ("Homepath")
IN FAVOUR OF COMMONWEALTH BANK OF AUSTRALIA, ABN 48 123 123 124, a
company incorporated in the Australian Capital Territory and
having its registered office at Level 0, 00 Xxxxxx Xxxxx,
Xxxxxx XXX 0000 (the "Custodian")
THIS DEED PROVIDES as follows:
--------------------------------------------------------------------------------
1. Interpretation
1.1 Definitions
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2 and any
person who derives a right directly or indirectly from an Attorney.
"Authorised Officer" means in relation to the Custodian, a director,
secretary or any person whose title contains the word or words "manager" or
"chief executive officer" or a person performing the functions of any of
them.
"Series Supplement" means the Series Supplement dated [ ] between
---------
the Custodian, Homepath, Securitisation Advisory Services Pty Limited, ABN
88 064 133 946 and Perpetual Trustee Company Limited, ABN 42 000 001 007.
1.2 Series Supplement
Unless expressly defined in this Deed or a contrary intention appears,
words and expressions used in this Deed have the same meaning as in the
Series Supplement.
--------------------------------------------------------------------------------
2. Appointment and Powers
2.1 Appointment
Homepath appoints the Custodian and any Authorised Officer from time to
time of the Custodian jointly and severally as its attorney with the right,
to do in the name of Homepath and on its behalf everything necessary or
expedient to:
(a) (Performance of Custodian Role): perform the Custodian's duties, and
exercise the rights of the Custodian, under clause 25 of the Series
Supplement in so far as those duties and rights relate to Mortgage
Documents with respect to Mortgage Loans in relation to Homepath;
(b) (Delegate): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any terms or
conditions that it thinks fit;
(c) (Sign Documents): sign, seal, deliver and execute and do (either
unconditionally or subject to any conditions that it thinks fit) all
deeds, arrangements, documents and things in respect of any of its
rights described in this Deed; and
159
(d) (Do Incidental Things): do anything incidental to or conducive to the
effective and expeditious exercise of its rights described in this
Deed.
--------------------------------------------------------------------------------
3. Consideration and Revocation
3.1 Consideration
Homepath acknowledges that it has received good and valuable consideration
for the grant of this Deed.
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of the
Custodian, the power of attorney granted under clause 2.1 of this Deed is
irrevocable by Homepath and its successors and assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed will
remain in full force and effect notwithstanding:
(a) (Insolvency): the insolvency of, or the occurrence of any other
analogous event with respect to, Homepath;
(b) (Amendment): any waiver, replacement, amendment or variation of any
document (with or without the consent of Homepath);
(c) (Delay): any delay, laches, acquiescence, mistake, act or omission
(including, without limitation, any default by the Custodian of any
obligation that it owes to any person) by any Attorney; or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate to
prejudice, release or otherwise affect the rights of an Attorney under
this Deed.
--------------------------------------------------------------------------------
4. Delegates
4.1 Obligation
Where a delegation is made by an Attorney under clause 2, the following
will apply:
(a) (Vary, suspend etc.): the Attorney may at any time by notice in
writing vary, suspend or revoke a delegation made under clause 2;
(b) (Attorney retains any rights delegated): a right delegated by the
Attorney may continue to be exercised or performed by the Attorney
notwithstanding the delegation of that right;
(c) (Effect of acts delegated): any act or thing done within the scope of
a delegation while the delegation is in force:
(i) has the same effect as if it had been done by the Attorney; and
(ii) will not be invalidated by reason of a later revocation or
variation of the delegation; and
(d) (Opinion of delegate): if the exercise or performance of a right by
the Attorney is dependant upon the opinion, belief or state of mind of
the Attorney in relation to a
160
xxxxxx and that right is delegated by the Attorney, the delegate may,
unless the contrary intention appears, exercise or perform the right
based upon his or her own opinion, belief or state of mind (as the
case may require) in relation to the matter.
4.2 Revocation of nomination
The Custodian may at any time revoke or suspend any appointment of a
nominee or an Attorney pursuant to clause 2.
--------------------------------------------------------------------------------
5. Miscellaneous
5.1 Suspension of Homepath's rights
Homepath must not, after being notified in writing by any Attorney that an
Attorney intends to exercise any right conferred on it by this Deed (and
provided that such right is then and remains exercisable), exercise that
right without the written consent of the Custodian.
5.2 Ratification
Homepath will at all times ratify and confirm whatever any Attorney
lawfully does, or causes to be done, in exercising its rights described in
this Deed.
5.3 Conflict of Interest
Any Attorney may exercise any right notwithstanding that it constitutes a
conflict of interest or duty.
5.4 Homepath Bound
Homepath and any person (including, but not limited to, a substitute or
assign) claiming under Homepath are bound by anything an Attorney does in
the lawful exercise of its rights described in this Deed.
5.5 Third party dealings
In respect of dealings by any person in good faith with an Attorney:
(a) (Evidence that power not revoked): that person may accept a written
statement signed by any Attorney to the effect that the power of
attorney granted under this Xxxx has not been revoked as conclusive
evidence of that fact; and
(b) (No duty to enquire): if the Attorney executes any right granted to it
by this Deed, that person is not bound to enquire as to whether the
right is properly exercised or whether any circumstance has arisen to
authorise the exercise of that right.
5.6 Indemnity
Homepath will indemnify any Attorney from and against all actions, suits,
claims, demands, damages, liabilities, losses, costs and expenses that may
be made or bought against or suffered or incurred by any such Attorney
arising out of or in connection with the lawful exercise of any of its
rights described in this Deed.
5.7 Stamping and Registration
Homepath will, promptly after execution and delivery of this Deed, properly
stamp and register this Deed as required by any applicable law and Homepath
authorises any Attorney to stamp and register this Deed on behalf of
Homepath.
161
5.8 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 5.7 will
be paid by Homepath within a reasonable time after demand for payment is
made.
--------------------------------------------------------------------------------
6. Governing Law
This Deed is governed by and construed in accordance with the laws of the
State of New South Wales and Homepath irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of the State of New
South Wales and any courts of appeal from any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of HOMEPATH )
PTY LIMITED, ABN 35 081 986 530 is )
affixed in accordance with its )
constitution in the presence of: )
------------------------- -------------------------
Secretary Director
162
Schedule 11 - Part B
Form of Custodian Power of Attorney (for Queensland)
THIS POWER OF ATTORNEY is made on 2002
------------ --------------------
BY HOMEPATH PTY limited, ABN 35 081 986 530, a company incorporated
in the [ ] and having an office at Level 0, 00 Xxxxxx Xxxxx,
-----
Xxxxxx, XXX 0000 ("Homepath")
IN FAVOUR OF COMMONWEALTH BANK OF AUSTRALIA, ABN 48 123 123 124, a company
incorporated in the Australian Capital Territory and having its
registered office at Level 0, 00 Xxxxxx Xxxxx, Xxxxxx XXX 0000
(the "Custodian")
THIS DEED PROVIDES as follows:
--------------------------------------------------------------------------------
1. Interpretation
1.1 Definitions
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2 and any
person who derives a right directly or indirectly from an Attorney.
"Authorised Officer" means in relation to the Custodian, a director,
secretary or any person whose title contains the word or words "manager" or
"chief executive officer" or a person performing the functions of any of
them.
"Series Supplement" means the Series Supplement dated [ ] between
--------
the Custodian, Homepath, Securitisation Advisory Services Pty Limited, ABN
88 064 133 946 and Perpetual Trustee Company Limited, ABN 42 000 001 007.
1.2 Series Supplement
Unless expressly defined in this Deed or a contrary intention appears,
words and expressions used in this Deed have the same meaning as in the
Series Supplement.
--------------------------------------------------------------------------------
2. Appointment and Powers
2.1 Appointment
Homepath appoints the Custodian and any Authorised Officer from time to
time of the Custodian jointly and severally as its attorney with the right,
to do in the name of Homepath and on its behalf everything necessary or
expedient to:
(a) (Performance of Custodian Role): perform the Custodian's duties, and
exercise the rights of the Custodian, under clause 25 of the Series
Supplement in so far as those duties and rights relate to Mortgage
Documents with respect to Mortgage Loans in relation to Homepath;
(b) (Delegate): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any terms or
conditions that it thinks fit;
(c) (Sign Documents): sign, seal, deliver and execute and do (either
unconditionally or subject to any conditions that it thinks fit) all
deeds, arrangements, documents and things in respect of any of its
rights described in this Deed; and
163
(d) (Do Incidental Things): do anything incidental to or conducive to the
effective and expeditious exercise of its rights described in this
Deed.
--------------------------------------------------------------------------------
3. Consideration and Revocation
3.1 Consideration
Homepath acknowledges that it has received good and valuable consideration
for the grant of this Deed.
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of the
Custodian, the power of attorney granted under clause 2.1 of this Deed is
irrevocable by Homepath and its successors and assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed will
remain in full force and effect notwithstanding:
(a) (Insolvency): the insolvency of, or the occurrence of any other
analogous event with respect to, Homepath;
(b) (Amendment): any waiver, replacement, amendment or variation of any
document (with or without the consent of Homepath);
(c) (Delay): any delay, laches, acquiescence, mistake, act or omission
(including, without limitation, any default by the Custodian of any
obligation that it owes to any person) by any Attorney; or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate to
prejudice, release or otherwise affect the rights of an Attorney under
this Deed.
--------------------------------------------------------------------------------
4. Delegates
4.1 Obligation
Where a delegation is made by an Attorney under clause 2, the following
will apply:
(a) (Vary, suspend etc.): the Attorney may at any time by notice in
writing vary, suspend or revoke a delegation made under clause 2;
(b) (Attorney retains any rights delegated): a right delegated by the
Attorney may continue to be exercised or performed by the Attorney
notwithstanding the delegation of that right;
(c) (Effect of acts delegated): any act or thing done within the scope of
a delegation while the delegation is in force:
(i) has the same effect as if it had been done by the Attorney; and
(ii) will not be invalidated by reason of a later revocation or
variation of the delegation; and
(d) (Opinion of delegate): if the exercise or performance of a right by
the Attorney is dependant upon the opinion, belief or state of mind of
the Attorney in relation to a
164
xxxxxx and that right is delegated by the Attorney, the delegate may,
unless the contrary intention appears, exercise or perform the right
based upon his or her own opinion, belief or state of mind (as the
case may require) in relation to the matter.
4.2 Revocation of nomination
The Custodian may at any time revoke or suspend any appointment of a
nominee or an Attorney pursuant to clause 2.
--------------------------------------------------------------------------------
5. Miscellaneous
5.1 Suspension of Homepath's rights
Homepath must not, after being notified in writing by any Attorney that an
Attorney intends to exercise any right conferred on it by this Deed (and
provided that such right is then and remains exercisable), exercise that
right without the written consent of the Custodian.
5.2 Ratification
Homepath will at all times ratify and confirm whatever any Attorney
lawfully does, or causes to be done, in exercising its rights described in
this Deed.
5.3 Conflict of Interest
Any Attorney may exercise any right notwithstanding that it constitutes a
conflict of interest or duty.
5.4 Homepath Bound
Homepath and any person (including, but not limited to, a substitute or
assign) claiming under Homepath are bound by anything an Attorney does in
the lawful exercise of its rights described in this Deed.
5.5 Third party dealings
In respect of dealings by any person in good faith with an Attorney:
(a) (Evidence that power not revoked): that person may accept a written
statement signed by any Attorney to the effect that the power of
attorney granted under this Xxxx has not been revoked as conclusive
evidence of that fact; and
(b) (No duty to enquire): if the Attorney executes any right granted to it
by this Deed, that person is not bound to enquire as to whether the
right is properly exercised or whether any circumstance has arisen to
authorise the exercise of that right.
5.6 Indemnity
Homepath will indemnify any Attorney from and against all actions, suits,
claims, demands, damages, liabilities, losses, costs and expenses that may
be made or bought against or suffered or incurred by any such Attorney
arising out of or in connection with the lawful exercise of any of its
rights described in this Deed.
5.7 Stamping and Registration
Homepath will, promptly after execution and delivery of this Deed, properly
stamp and register this Deed as required by any applicable law and Homepath
authorises any Attorney to stamp and register this Deed on behalf of
Homepath.
165
5.8 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 5.7 will
be paid by Homepath within a reasonable time after demand for payment is
made.
--------------------------------------------------------------------------------
6. Governing Law
This Deed is governed by and construed in accordance with the laws of the
State of New South Wales and Homepath irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of the State of New
South Wales and any courts of appeal from any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of HOMEPATH )
PTY LIMITED, ABN 35 081 986 530 is )
affixed in accordance with its )
constitution in the presence of: )
------------------------- -------------------------
Secretary Director
166
Schedule 11 - Part C
Form of Custodian Power of Attorney (for Western Australia)
THIS POWER OF ATTORNEY is made on 2002
----------- ---------------
BY HOMEPATH PTY LIMITED, ABN 35 081 986 530, a company incorporated
in the [ ] and having an office at Level 0, 00 Xxxxxx Xxxxx,
------
Xxxxxx, XXX 2000 ("Homepath")
IN FAVOUR OF COMMONWEALTH BANK OF AUSTRALIA, ABN 48 123 123 124, a company
incorporated in the Australian Capital Territory and having its
registered office at Level 0, 00 Xxxxxx Xxxxx, Xxxxxx XXX 0000
(the "Custodian")
THIS DEED PROVIDES as follows:
--------------------------------------------------------------------------------
1. Interpretation
1.1 Definitions
In this Deed, unless the contrary intention appears:
"Attorney" means any attorney appointed by or pursuant to clause 2 and any
person who derives a right directly or indirectly from an Attorney.
"Authorised Officer" means in relation to the Custodian, a director,
secretary or any person whose title contains the word or words "manager" or
"chief executive officer" or a person performing the functions of any of
them.
"Series Supplement" means the Series Supplement dated [ ] between the
------
Custodian, Homepath, Securitisation Advisory Services Pty Limited, ABN 88
064 133 946 and Perpetual Trustee Company Limited, ABN 42 000 001 007.
1.2 Series Supplement
Unless expressly defined in this Deed or a contrary intention appears,
words and expressions used in this Deed have the same meaning as in the
Series Supplement.
--------------------------------------------------------------------------------
2. Appointment and Powers
2.1 Appointment
Homepath appoints the Custodian and any Authorised Officer from time to
time of the Custodian jointly and severally as its attorney with the right,
to do in the name of Homepath and on its behalf everything necessary or
expedient to:
(a) (Performance of Custodian Role): perform the Custodian's duties, and
exercise the rights of the Custodian, under clause 25 of the Series
Supplement in so far as those duties and rights relate to Mortgage
Documents with respect to Mortgage Loans in relation to Homepath,
including but not limited to taking custody of documents which relate
to mortgages over land or property registered pursuant to the Transfer
of Land Act 1893 (WA) and the Strata Titles Act 1985 (WA);
(b) (Delegate): delegate any of its rights described in this Deed
(including this right of delegation) to any person upon any terms or
conditions that it thinks fit;
(c) (Sign Documents): sign, seal, deliver and execute and do (either
unconditionally or subject to any conditions that it thinks fit) all
deeds, arrangements, documents and things in respect of any of its
rights described in this Deed;
167
(d) (Do Incidental Things): do anything incidental to or conducive to the
effective and expeditious exercise of its rights described in this
Deed; and
(e) (Limitation on Custodian's Powers): the Custodians powers are limited
to:
(i) the powers provided for under clause 25 of the Series Supplement
and this Deed; and
(ii) mortgages and Mortgage Documents the legal or equitable title to
which is held by Perpetual Trustee Company Limited as trustee of
the Series 2002-1G Medallion Trust.
--------------------------------------------------------------------------------
3. Consideration and Revocation
3.1 Consideration
Homepath acknowledges that it has received good and valuable consideration
for the grant of this Deed.
3.2 Irrevocable without Consent
Except with the prior written consent of an Authorised Officer of the
Custodian, the power of attorney granted under clause 2.1 of this Deed is
irrevocable by Homepath and its successors and assigns.
3.3 No Abrogation
Subject only to revocation in accordance with clause 3.2, this Deed will
remain in full force and effect notwithstanding:
(a) (Insolvency): the insolvency of, or the occurrence of any other
analogous event with respect to, Homepath;
(b) (Amendment): any waiver, replacement, amendment or variation of any
document (with or without the consent of Homepath);
(c) (Delay): any delay, laches, acquiescence, mistake, act or omission
(including, without limitation, any default by the Custodian of any
obligation that it owes to any person) by any Attorney; or
(d) (Miscellaneous): any other fact, matter, circumstance or thing
whatsoever which, but for this clause, could or might operate to
prejudice, release or otherwise affect the rights of an Attorney under
this Deed.
--------------------------------------------------------------------------------
4. Miscellaneous
4.1 Suspension of Homepath's rights
Homepath must not, after being notified in writing by any Attorney that an
Attorney intends to exercise any right conferred on it by this Deed (and
provided that such right is then and remains exercisable), exercise that
right without the written consent of the Custodian.
4.2 Ratification
Homepath will at all times ratify and confirm whatever any Attorney
lawfully does, or causes to be done, in exercising its rights described in
this Deed.
168
4.3 Conflict of Interest
Any Attorney may exercise any right notwithstanding that it constitutes a
conflict of interest or duty.
4.4 Homepath Bound
Homepath and any person (including, but not limited to, a substitute or
assign) claiming under Homepath are bound by anything an Attorney does in
the lawful exercise of its rights described in this Deed.
4.5 Third party dealings
In respect of dealings by any person in good faith with an Attorney:
(a) (Evidence that power not revoked): that person may accept a written
statement signed by any Attorney to the effect that the power of
attorney granted under this Xxxx has not been revoked as conclusive
evidence of that fact; and
(b) (No duty to enquire): if the Attorney executes any right granted to it
by this Deed, that person is not bound to enquire as to whether the
right is properly exercised or whether any circumstance has arisen to
authorise the exercise of that right.
4.6 Indemnity
Homepath will indemnify any Attorney from and against all actions, suits,
claims, demands, damages, liabilities, losses, costs and expenses that may
be made or bought against or suffered or incurred by any such Attorney
arising out of or in connection with the lawful exercise of any of its
rights described in this Deed.
4.7 Stamping and Registration
Homepath will, promptly after execution and delivery of this Deed, properly
stamp and register this Deed as required by any applicable law and Homepath
authorises any Attorney to stamp and register this Deed on behalf of
Homepath.
4.8 Costs
All reasonable costs incurred by an Attorney in connection with the
stamping and registration of this Deed in accordance with clause 4.8 will
be paid by Homepath within a reasonable time after demand for payment is
made.
--------------------------------------------------------------------------------
5. Governing Law
This Deed is governed by and construed in accordance with the laws of the
State of Western Australia and Homepath irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of the State of
Western Australia and any courts of appeal from any of those courts.
EXECUTED as a deed.
THE COMMON SEAL of HOMEPATH )
PTY LIMITED, ABN 35 081 986 530 is )
affixed in accordance with its )
constitution in the presence of: )
------------------------- -------------------------
Secretary Director
169
Executed as a deed.
Signed sealed and delivered for and on behalf of Commonwealth Bank of Australia,
ABN 48 123 123 124, by its Attorney under a Power of Attorney dated 24/11/97 and
registered Book No. who certifies that he or she is General Manager of
---- -----
Commonwealth Bank of Australia in the presence of:
/s/ Xxxxxx Xxxxxxxx
----------------------------------
Signature of Attorney
/s/ Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxx
------------------------------------ ----------------------------------
Signature of Witness Name of Attorney in full
Xxxxxxxx Xxxxx
------------------------------------
Name of Witness in full
Signed sealed and delivered for and on behalf of Securitisation Advisory
Services Limited, ABN 88 064 133 946 by Xxx Xxxxxxxx its Attorney under a Power
of Attorney dated 6/2/02 and registered Book 4337 No. 465 and who declares that
he or she has not received any notice of the revocation of such Power of
Attorney in the presence of:
/s/ Xxx Xxxxxxxx
-----------------------------------------
Signature of Attorney
/s/ Xxxxxxxx Xxxxx Xxx Xxxxxxxx
------------------------------------ -----------------------------------------
Signature of Witness Name of Attorney in full
Xxxxxxxx Xxxxx
------------------------------------
Name of Witness in full
170
Signed sealed and delivered for and on behalf of Perpetual Trustee Company
Limited, ABN 42 000 001 007 by Xxxxxx Xxxx its Attorney under a Power of
Attorney dated 6/2/02 and registered Book 4337 No. 468 and who declares that he
or she has not received any notice of the revocation of such Power of Attorney
in the presence of:
/s/ Xxxxxx Xxxx
----------------------------------
Signature of Attorney
/s/ Xxxxxxxx Xxxxx Xxxxxx Xxxx
------------------------------------ ----------------------------------
Signature of Witness Name of Attorney in full
Xxxxxxxx Xxxxx
------------------------------------
Name of Witness in full
Signed sealed and delivered for and on behalf of Homepath Pty Limited, ABN 35
081 986 530 by Xxx Xxxxxxxx its Attorney under a Power of Attorney dated and
registered Book 4337 No. 466 and who declares that he or she has not received
any notice of the revocation of such Power of Attorney in the presence of:
/s/ Xxx Xxxxxxxx
-------------------------------------
Signature of Attorney
/s/ Xxxxxxxx Xxxxx Xxx Xxxxxxxx
------------------------------------ -------------------------------------
Signature of Witness Name of Attorney in full
Xxxxxxxx Xxxxx
------------------------------------
Name of Witness in full
171
