Exhibit 4.1
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National RMBS Trusts
Master Trust Deed
Date: [ ]
Parties: PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001 007)
having its registered office at Xxxxx 0, 00 Xxxxxx Xxxxxx,
Xxxxxx XXX 0000 ("Issuer Trustee") NATIONAL GLOBAL MBS
MANAGER PTY LTD (ABN 36 102 668 226) having an office at
Xxxxx 00, 000 Xxxxxx Xxxxxx, Xxxxxxxxx XXX 0000, Xxxxxxxxx
("Global Trust Manager")
Recitals:
A. It is intended by this deed to provide for the future
establishment of Trusts, in each case, upon the terms and
conditions of a Supplemental Deed.
B. Each Trust will be established for the purpose of
securitising pools of Assets that may be from time to time
acquired by the Issuer Trustee.
C. The Issuer Trustee and the Global Trust Manager have
agreed to act as trustee and manager respectively of each
of the Trusts on the terms and conditions set out in this
deed.
Operative provisions:
Part A - Definitions
1 Definitions and interpretation
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Definitions Schedule
1.1 In this deed, Definitions Schedule means the deed called
"National RMBS Trusts Definitions Schedule" dated on or
about the date of this deed and made between the companies
described in schedule 1 to that deed (as amended from time
to time.
1.2 Except to the extent to which words and phrases are
otherwise defined in this deed, words and phrases defined
in the Definitions Schedule shall bear the same meaning in
this deed. For the avoidance of doubt, in the event of any
inconsistency between a definition in this deed and a
definition in the Definitions Schedule, the definitions in
this deed will prevail. Any amendment to the Definitions
Schedule will only apply to this deed if made in
accordance with this deed.
1.3 Clauses 1.2 to 1.5 (inclusive) of the Definitions Schedule
are incorporated into this deed as if those clauses were
set out in full.
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Interpretation
1.4 This deed binds the Issuer Trustee, the Global Trust
Manager, the Secured Creditors of each Trust and the
Unitholders of each Trust.
1.5 By executing this deed, the Issuer Trustee and the Global
Trust Manager agree that, unless the contrary intention
appears, terms used in any Transaction Document have the
meaning given to them in the Definitions Schedule.
Part B - Trusts
2 The Trusts
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Issuer Trustee
2.1 Provided that its appointment has not been terminated in
accordance with this deed and the Supplemental Deed for
the relevant Trust, the Issuer Trustee is appointed and
agrees to act as the trustee of each Trust constituted
pursuant to this deed and the Notice of Creation of Trust
for the relevant Trust, with effect from the date of
constitution of the relevant Trust, on the terms and
conditions contained in this deed and the Supplemental
Deed for the relevant Trust.
Global Trust Manager
2.2 Provided that its appointment has not been terminated in
accordance with this deed and the Supplemental Deed for
the relevant Trust, the Global Trust Manager is appointed
and agrees to act as the manager of each Trust constituted
pursuant to this deed and the Notice of Creation of Trust
for the relevant Trust, with effect from the date of
constitution of the relevant Trust, in accordance with the
terms and conditions of this deed and the Supplemental
Deed for the relevant Trust.
Declarations of trust
2.3 The Issuer Trustee declares that it will act as trustee in
respect of the Assets of each Trust and will hold the
Assets of each Trust upon the trusts and with, and subject
to, the powers and conditions contained in this deed and
the Supplemental Deed for the relevant Trust.
Assets vest in Issuer Trustee
2.4 The Assets of each Trust vest in the Issuer Trustee. The
Issuer Trustee must hold the Assets of each Trust on trust
for the relevant Unitholders and, in respect of the
Secured Creditors and the Unitholders of each Trust, the
Issuer Trustee must act in what the Issuer Trustee
considers in good faith to be in the interests of the
relevant Unitholders and the Secured Creditors as a whole,
subject to this deed. The Issuer Trustee shall not be in
breach of this requirement or any other provision of this
deed if it transfers or disposes of any Assets to any
Secured Creditor or any other person in accordance with
the terms of any Transaction Document.
Assets to be kept separate
2.5 The Issuer Trustee must keep the Assets of each of the
Trusts separate. Each Trust is a separate and distinct
trust fund held by the Issuer Trustee on separate and
distinct terms and conditions.
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Supplemental Deeds
2.6 A Supplemental Deed may specify the provisions which are
to apply to that Trust in addition to the provisions of
this deed, or in place of any provision of this deed or
any provisions which are to be varied or deleted from this
deed. The provisions contained in a Supplemental Deed
which are expressed to apply to a particular Trust apply
in relation to that Trust only. Any such Supplemental Deed
may vary or amend the terms of this deed or provide terms
in addition to those contained in this deed only in
respect of the Trust which is named in that Supplemental
Deed. Where a Supplemental Deed does vary or amend the
terms of this deed or provide terms in addition to those
contained in this deed in respect of a Trust then
references in this deed to this deed shall be deemed to be
references to this deed incorporating such variations,
amendments and additions in relation to the relevant
Trust.
In the event of any conflict between the provisions of a
Supplemental Deed and any provisions in this deed, the
relevant provisions in the Supplemental Deed prevail in
respect of the Trust to which they are expressed to apply.
Name of Trusts
2.7 Each Trust will be identified by a name specified in the
relevant Supplemental Deed. The name of each Trust may be
varied from time to time by agreement between the Issuer
Trustee and the Global Trust Manager, subject to any
approval required by law.
Designation and discharge of Liabilities
2.8 The Issuer Trustee must allocate to each Trust those
Liabilities which in the opinion of the Global Trust
Manager are properly referable to that Trust. Subject to
the provisions of this deed, the Issuer Trustee must pay
out of the relevant Trust (and/or make such provision the
Global Trust Manager considers adequate for) all
Liabilities in connection with that Trust.
Mixture of Assets
2.9 The Issuer Trustee must account for the Assets of each
Trust separately from the Assets of all other Trusts and
must account for the Liabilities of a Trust separate and
apart from the Liabilities and amounts outstanding in
respect of all other Trusts.
No limit to number of Trusts
2.10 There is no limit to the number of Trusts that may be
created.
3 Duration of the Trusts
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Commencement
3.1 Subject to clause 2.1 and 2.2, the Global Trust Manager
and the Issuer Trustee may at any time constitute a Trust
by lodging with the Issuer Trustee:
(a) a Notice of Creation of Trust, substantially in the
form set out in Schedule 1, or such other form as may
be agreed from time to
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time by the Issuer Trustee and the Global Trust Manager
which relates to that Trust; and
(b) the sum of $10 to constitute the initial Assets of
the Trust.
Termination
3.2 A Trust terminates on the earliest of:
(a) the date which is 80 years after that Trust's date of
constitution;
(b) the date on which that Trust is terminated under this
deed or the Supplemental Deed for that Trust or by
law; and
(c) following the occurrence of an Event of Default in
respect of that Trust, the date on which the Security
Trustee has notified the Issuer Trustee in writing
that it has enforced the Deed of Charge in respect of
that Trust and has distributed all of the amounts
which it is required to distribute under the Master
Security Trust Deed for that Trust.
3.3 At any time after the date that all the Notes issued in
respect of a Trust have been redeemed in accordance with
this deed and any other Secured Creditors paid in full,
the Global Trust Manager may notify the Issuer Trustee and
the Unitholders of that Trust in writing that the Trust is
to be terminated. The Trust terminates upon receipt of
that notice by the Issuer Trustee.
Procedure
3.4 On termination, and subject to the terms of the
Supplemental Deed for the Trust, the Issuer Trustee must
realise the Assets of the Trust. This must be completed in
180 days if practical and in any event as soon as possible
after that.
Final Distribution
3.5 The net proceeds of realisation, after discharging or
providing for all Liabilities of a Trust (including any
contingent or potential liabilities) in accordance with
this deed and meeting the expenses (including anticipated
expenses) of termination, must be distributed by the
Issuer Trustee to the Unitholders of the Trust in
accordance with the Supplemental Deed for that Trust.
4 Interest of Unitholders
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Entitlement to a Trust
4.1 The beneficial interest in each Trust will be constituted
by the issue of:
(a) one or more Residual Capital Units; and
(b) one or more Residual Income Units,
of that Trust in accordance with the relevant Supplemental
Deed. The beneficial interest of each Trust is vested in
the Residual Capital
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Unitholders and the Residual Income Unitholders of that
Trust in accordance with this deed and that relevant
Supplemental Deed.
4.2 The rights and interests of the Residual Income
Unitholders and the Residual Capital Unitholders in
respect of a Trust will be determined in accordance with
the relevant Supplemental Deed.
Restrictions
4.3 No Unitholder in respect of a Trust is entitled (other
than as permitted by this deed or any other Transaction
Document in respect of that Trust) to:
(a) interfere with any Trust or any rights or powers of
the Global Trust Manager or the Issuer Trustee under
this deed or any other Transaction Document in
respect of that Trust;
(b) exercise a right in respect of an Asset of any Trust
or lodge a caveat or other notice affecting an Asset
of any Trust or otherwise claim any interest in an
Asset of any Trust;
(c) subject to the Transaction Documents for that Trust,
require the transfer to it of any Asset of any Trust;
(d) seek to terminate or wind up any Trust;
(e) have any recourse whatsoever to the Issuer Trustee or
the Global Trust Manager in its personal capacity
except in the case of fraud, negligence or breach of
trust on the part of the Issuer Trustee or fraud,
negligence or material breach of obligation on the
part of the Global Trust Manager; or
(f) seek to remove the Issuer Trustee or the Global Trust
Manager.
However, nothing in this clause prevents a Unitholder
from:
(i) exercising its rights in connection with any
Transaction Document;
(ii) taking proceedings to obtain an injunction or
other order to restrain any breach of any
Transaction Document; or
(iii) taking proceedings to obtain declaratory relief
in relation to any Transaction Document.
Ranking
4.4 The rights, claim and interest of the Unitholders of a
Trust at all times rank after, and are subject to, the
interests of the Secured Creditors of that Trust
including, without limitation, in relation to any payment
obligations in respect of the Notes of the Trust.
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Part C - Assets
5 Transfers between Trusts
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Power
5.1 The Issuer Trustee, as trustee of a Trust, has power to
acquire or dispose of Mortgage Loans in accordance with
this deed and the Supplemental Deed relating to that
Trust.
Direction by Global Trust Manager
5.2 The Global Trust Manager may, from time to time, direct
the Issuer Trustee (in such form as may be agreed between
the Issuer Trustee and the Global Trust Manager) to:
(a) acquire Mortgage Loans from another Trust (in this
clause 5, the "Transferor Trust") in its capacity as
trustee of a Trust (in this clause 5, the "Transferee
Trust") in accordance with the Supplemental Deeds for
the Transferor Trust and for the Transferee Trust
using the proceeds of Borrowings of the Transferee
Trust and/or other funds available to that Transferee
Trust; or
(b) dispose of Mortgage Loans to the purchaser of the
Mortgage Loans (in this clause 5, the "Relevant
Acquirer"),
by delivering a Receivables Transfer Direction to the
Issuer Trustee.
Required information
5.3 Any Receivables Transfer Direction given to the Issuer
Trustee in accordance with clause 5.2 must comply with the
requirements of this deed and the relevant Supplemental
Deeds and include all relevant details relating to:
(a) the Relevant Acquirer;
(b) the Transferor Trust and the Transferee Trust;
(c) the Mortgage Loans subject to the direction;
(d) the Cut-Off Date and the Closing Date for the Housing
Loans referable to the relevant Mortgage Loans;
(e) the amount and source of the Borrowings to be raised
to enable the Issuer Trustee to acquire the Mortgage
Loans (where applicable) or, if not a Borrowing, the
source of funds; and
(f) the purchase price (or its method of calculation).
Conditions to acceptance
5.4 The Issuer Trustee will not act on a Receivables Transfer
Direction unless the direction complies with the
requirements of clause 5.3 of this deed and any other
requirements specified in the relevant Supplemental Deeds.
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5.5 If the Issuer Trustee accepts a Receivables Transfer
Direction under clause 5.2, the Global Trust Manager shall
do everything reasonably necessary to enable the Issuer
Trustee to implement the direction.
Effect of acceptance
5.6 If the Issuer Trustee complies with a Receivables Transfer
Direction under clause 5.2 to acquire Mortgage Loans, it
shall (acting on the direction of the Global Trust
Manager):
(a) in its capacity as trustee of the Transferee Trust:
(i) pay the purchase price specified in the
Receivables Transfer Direction to acquire the
relevant Mortgage Loans; and
(ii) acquire the relevant Mortgage Loans; and
(b) in its capacity as trustee of the Transferor Trust, do all
such things as may be required to dispose of its right,
title and interest in, to and under the relevant Mortgage
Loans to the Transferee Trust in the manner contemplated
by the Receivables Transfer Directions,
and otherwise comply with the Receivables Transfer Direction.
Transfers
5.7 A transfer shall take place under a Receivables Transfer
Direction, or by such other method as the Issuer Trustee
and the Global Trust Manager may determine or as required
in a Transaction Document.
5.8 Upon payment of the purchase price (specified in the
Receivables Transfer Direction and as adjusted in
accordance with the terms of the sale):
(a) by the Issuer Trustee as trustee of the Transferee
Trust, the Issuer Trustee as trustee of the
Transferee Trust will hold automatically, by virtue
of this deed and without any further act or
instrument or other thing being done or brought into
existence, the benefit of all Mortgage Loans of that
Trust transferred to it by the Issuer Trustee as
trustee of the Transferor Trust (together with the
benefit of all Support Facilities and Derivative
Contracts which the Issuer Trustee and the Global
Trust Manager agree are to be transferred, and all
other rights and entitlements relating to the
relevant Mortgage Loans); or
(b) by the Relevant Acquirer, the Issuer Trustee as
trustee of the Transferor Trust will treat the
Mortgage Loans as having been repaid in full by that
payment.
5.9 The Receivables Transfer Direction or other method of
transfer (as the case may be) may, if so agreed between
the Issuer Trustee and the Global Trust Manager, provide:
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(a) that the Issuer Trustee shall give for the benefit of
the Transferee Trust specified representations,
warranties and undertakings in relation to the
Mortgage Loans; and
(b) for the effect of any breach of a representation,
warranty or undertaking referred to in paragraph (a).
Transfer of rights
5.10 When Mortgage Loans are transferred from a Trust, the
rights and benefits of the Issuer Trustee in its capacity
as trustee of the Transferor Trust, and the rights of
indemnity or reimbursement of the Issuer Trustee in its
capacity as trustee of the Transferor Trust in respect of
the Mortgage Loans (including, without limitation, any
representation, warranty, covenant or undertaking in
favour of that party) are also transferred, with effect
from the date of transfer, for the benefit of the
Transferee Trust.
Adjustments
5.11 Following a transfer of Mortgage Loans from a Trust to any
person (including, without limitation, another Trust), the
Global Trust Manager shall calculate, and notify the
Issuer Trustee of, and the Issuer Trustee shall pay, the
amount of any Accrued Interest Adjustment relating to
those Housing Loans that may be due from one Trust to
another Trust or other person at any time in accordance
with the provisions (if any) of the relevant Supplemental
Deeds or the relevant Receivables Transfer Direction (as
the case may be).
6 Title Perfection Event in respect of a Trust
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Event
6.1 If the Issuer Trustee has notice that a Title Perfection
Event has occurred and is subsisting in respect of a
Trust, the Issuer Trustee must notify the Seller, the
Servicer, the Global Trust Manager and each Current Rating
Agency that a Title Perfection Event has occurred and,
unless each Current Rating Agency confirms in writing
within 10 Business Days of receipt of that notice to the
Issuer Trustee, the Global Trust Manager and the Servicer
that the failure to protect the Issuer Trustee's title to
the Mortgage Loans in accordance with clause 6.2 will not
have an Adverse Rating Effect, the Issuer Trustee must
declare that a Title Perfection Event has occurred in
respect of that Trust. The Global Trust Manager must
notify the Issuer Trustee immediately after becoming aware
that a Title Perfection Event has occurred.
Perfection of title
6.2 If, and only if, a declaration is made by the Issuer
Trustee in accordance with clause 6.1 in respect of a
relevant Trust, the Issuer Trustee and the Global Trust
Manager must as soon as practicable take all necessary
steps to protect the Issuer Trustee's interest in, and
title to, the Mortgage Loans forming part of the Assets of
that Trust, including:
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(a) the execution (where necessary, executed under a
Power of Attorney) and lodgement of Transfers or
caveats with the land titles office of the
appropriate jurisdiction;
(b) give notice to the relevant Debtors and Security
Providers of the sale of the relevant Mortgage Loans;
(c) give notice of its interest in, and title to, the
relevant Mortgage Loans to any other interested
person; and
(d) require each relevant Debtor to make all payments in
respect of the relevant Housing Loans to the
Collections Account or as otherwise directed by the
Issuer Trustee.
Power of Attorney
6.3 The Issuer Trustee must only use a Power of Attorney
granted to it in respect of a Trust in the manner
contemplated by clause 6.2, if it has declared that a
Title Perfection Event has occurred in accordance with
clause 6.1
Issuer Trustee to hold Legal Title or lodge Caveats
6.4 If the Issuer Trustee does not hold the Mortgage Title
Documents necessary to vest fully and effectively in the
Issuer Trustee the Seller's legal right, title and
interest in and to any Mortgage in relation to a Housing
Loan that is part of the Assets of the Trust, the Issuer
Trustee must, as soon as is practicable in the
circumstances after the Issuer Trustee is aware of the
occurrence of the Title Perfection Event in respect of a
Trust, either have commenced to take all necessary steps
to protect the Issuer Trustee's interest in, and title to,
each Mortgage which comprises an Asset of that Trust or
have lodged or entered a caveat or similar instrument in
respect of the Issuer Trustee's interest in the Land
subject to each Mortgage which comprises an Asset of that
Trust.
Other Secured Liabilities
6.5 Following a declaration in accordance with clause 6.1 in
respect of a Trust, the Issuer Trustee must continue to
hold its interest in the Seller Trust Assets (if any)
which relate to that Trust in accordance with the relevant
Supplemental Deed.
7 Investment
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Global Trust Manager's role
7.1 The moneys comprised in a Trust must be invested only in
Assets of that Trust. The Global Trust Manager must ensure
that sufficient Assets of each Trust are in Cash to enable
the Issuer Trustee to give effect to the Global Trust
Manager's decisions. The Issuer Trustee must not acquire
or dispose of any Asset of a Trust except as directed by
the Global Trust Manager until the Trust terminates,
provided that the Issuer Trustee is entitled to deal with
Assets as it considers appropriate to satisfy any
liability for which it is entitled to be indemnified and
for which it may be personally liable.
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Directions
7.2 (a) The Global Trust Manager must give the Issuer
Trustee directions in writing for the investment of
any of the Assets of a Trust in Mortgage Loans or
Authorised Investments and as to the purchase, sale,
transfer, exchange or alteration of any Mortgage
Loans or Authorised Investments. A direction of this
type must identify the Mortgage Loans or Authorised
Investments and the steps that the Global Trust
Manager directs that the Issuer Trustee take in
relation to it. The Issuer Trustee must exercise any
voting rights in respect of Mortgage Loans or
Authorised Investments in such manner as the Global
Trust Manager directs from time to time.
(b) It shall be the role of the Issuer Trustee to give
effect to all directions and proposals of the Global
Trust Manager as are communicated by the Global Trust
Manager to the Issuer Trustee in accordance with this
clause 7, but the Global Trust Manager may not give
any direction or proposal to the Issuer Trustee which
conflicts with the terms of the Trust, including the
Supplemental Deed for that Trust.
Contingencies
7.3 If an investment proposed by the Global Trust Manager
involves the Issuer Trustee incurring:
(a) any material liability as trustee of the Trust (in
the reasonable opinion of the Issuer Trustee); or
(b) any additional liability that may exceed the Net
Assets of the Trust,
then the Global Trust Manager must not give a direction to
the Issuer Trustee to invest any of the Assets unless the
Global Trust Manager reasonably believes that there will
be no Adverse Rating Effect in respect of the Trust and
the Issuer Trustee need not give effect to the Global
Trust Manager's direction unless the Issuer Trustee's
liability (other than its liability as trustee of the
Trust) is limited in a manner which the Issuer Trustee
considers satisfactory provided the Issuer Trustee must
notify the Global Trust Manager if it is not so satisfied
as soon as practicable but in any event within 5 Business
Days (or such other period as is agreed between the Issuer
Trustee and the Global Trust Manager) of receiving a copy
of such details as the Issuer Trustee may reasonably
require (as compiled by the Global Trust Manager) of the
proposed investment.
7.4 Subject to clause 7.6, the Global Trust Manager shall from
time to time give to the Issuer Trustee of a Trust a
proposal for an investment in property which is to
constitute Assets of that Trust and for the sale, transfer
or other realisation of or dealing with the Assets of that
Trust. Each proposal must:
(a) be in writing in a form agreed between the Issuer
Trustee and the Global Trust Manager;
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(b) specify the Assets to be purchased, sold, transferred
or originated;
(c) specify the action (if any) to be taken by the Issuer
Trustee to give effect to it;
(d) contain a certification by the Global Trust Manager
that the giving effect to the proposal by the Issuer
Trustee will be in accordance with this deed;
(e) specify the price to be paid for the Asset or, in the
case of a loan to be made by or financial
accommodation to be provided to the Issuer Trustee,
the amount of the loan or the accommodation;
(f) specify to whom any amount is payable under paragraph
(e), or if an Asset is to be acquired from a Trust,
the name of that Trust; and
(g) contain all other information which the Issuer
Trustee may reasonably require to satisfy itself that
the certification is correct and to give effect to
the proposal.
Discretion of Global Trust Manager
7.5 The Global Trust Manager shall have the fullest discretion
to recommend in the proposal the time and mode of and the
broker, contractor or agent (if any) to be engaged in the
implementation of the proposal including the right to
recommend a postponement for so long as the Global Trust
Manager in its discretion shall think fit.
Issuer Trustee to act
7.6 Subject to this deed, on receipt of any written proposal
by the Global Trust Manager under clause 7.4, the Issuer
Trustee:
(a) must comply with that proposal in accordance with
this deed unless the Issuer Trustee considers that it
would be illegal for the Issuer Trustee to do so,
would constitute a breach of any fiduciary duty in
respect of the Trust or of any document, agreement or
law or would result in the Issuer Trustee's exposure
to a risk of personal liability where the Issuer
Trustee is not satisfied (acting reasonably) that it
will be adequately indemnified or reimbursed for any
cost, expense, loss or liability which it will or may
incur as a result of complying with such proposal;
and
(b) may rely upon the recommendations and advice of the
Global Trust Manager with respect to any such
proposal, without being under a duty to make any
inquiries or to make any assessments or judgment in
relation to:
(i) the merits of the proposal; or
(ii) whether the proposed investment is an Authorised
Investment or is otherwise permitted under or
complies with this deed. Subject to this deed,
the Issuer Trustee
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must not make or acquire an investment if it
knows that it is not an Authorised Investment or
that it does not comply with this deed.
Part D - Borrowings
8 Borrowings
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Borrowings
8.1 Subject to the provisions of this deed and the relevant
Supplemental Deed, the Issuer Trustee, at the written
request of the Global Trust Manager (in the form agreed
between the Issuer Trustee and the Global Trust Manager
from time to time), and in respect of a Trust, must Borrow
in accordance with this deed and the relevant Supplemental
Deed for the purpose of, or ancillary to, the investment
in Assets or to enable the Issuer Trustee to continue to
fund its holding in that investment. The Global Trust
Manager will not instruct the Issuer Trustee to make a
Borrowing in respect of a Trust if the Borrowing would, in
the Global Trust Manager's reasonable opinion, have an
Adverse Rating Effect in respect of that Trust.
Types of Borrowings
8.2 A Borrowing (other than under a Derivative Contract) in
respect of a Trust may only take the form of:
(a) an issue of Notes in accordance with this deed, the
relevant Supplemental Deed, the Master Security Trust
Deed, the relevant Deed of Charge and the relevant
Note Trust Deed, if applicable;
(b) a drawdown under a relevant Support Facility; or
(c) any other Borrowing which is at all times
subordinated to, and subject to, the interests of the
Secured Creditors in respect of the Trust (and
entered into with the recourse of the creditor being
limited to the funds available to the Issuer Trustee
at any time after satisfaction of all other
Liabilities).
Global Trust Manager to select method
8.3 The Global Trust Manager must, by notice in writing to the
Issuer Trustee, select the method of Borrowing in
accordance with clause 8.2 to be undertaken by the Issuer
Trustee. If the Borrowing takes the form referred to in
clause 8.2(c) the Global Trust Manager must notify the
Issuer Trustee in writing of the form of that Borrowing,
the total amount of that Borrowing and the terms and
conditions relating to it (which must be in accordance
with the terms of the Transaction Documents and acceptable
to the Issuer Trustee, acting reasonably).
Security
8.4 The Issuer Trustee may (but is not obliged to) secure the
repayment or payment of any Borrowings referred to in
clause 8.2(c) and interest, costs and other charges and
expenses in connection with such Borrowings, upon terms
and conditions determined by the Global Trust
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Manager in writing including, without limitation, giving a
negative pledge or by giving any form of security over all
or any of the Assets of the relevant Trust provided that
the Borrowing and interest, costs and other charges and
expenses in connection with such Borrowing remains
subordinated in the manner described in paragraph 8.2(c).
Supplemental Deed
8.5 Where the Borrowing takes the form of an issue of Notes,
the Supplemental Deed for the relevant Trust must (where
relevant) provide for, amongst other things, the
following:
(a) the designation of the Notes for that Trust;
(b) the initial principal amount, Interest Rate,
authorised denominations and maturity of each Class
of Notes for that Trust;
(c) the method for calculating the amount of interest and
principal to be paid to each Class of Notes;
(d) the timing and order of priority of interest and
principal payments;
(e) any applicable redemption features; and
(f) distribution dates and interest accrual periods.
Debt of the Issuer Trustee
8.6 Subject to this deed, each Note will represent a debt of
the Issuer Trustee as trustee of the relevant Trust and
will be repaid or redeemed in accordance with its terms of
issue. The Issuer Trustee acknowledges its indebtedness in
relation to each such Note.
Location of Notes
8.7 For Registered Notes, the property in the Notes is
regarded as situated at the place where the Register on
which those Registered Notes are recorded is located.
Purpose of Borrowings
8.8 In respect of a Trust, the Issuer Trustee must only apply
the proceeds of a Borrowing:
(a) to purchase, refinance or otherwise invest in, Assets
referable to that Trust;
(b) to make payments of amounts due and payable in
respect of Notes previously issued by the Issuer
Trustee in respect of that Trust;
(c) to make payments of amounts due and payable in
respect of any Support Facility, Derivative Contract
or any other Borrowings referable to that Trust; or
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(d) otherwise in accordance with this deed or any other
Transaction Document including, without limitation,
discharging Liabilities in respect of that Trust for
which the Issuer Trustee has or will have a right of
reimbursement out of the Assets of that Trust.
Global Trust Manager's power
8.9 Where a Borrowing takes the form of an issue of Notes, the
Global Trust Manager has the power to:
(a) negotiate the terms and conditions of the issue of
the Notes;
(b) accept the terms and conditions of the issue of the
Notes with any person managing or arranging the issue
of the Notes and bind the Issuer Trustee to the issue
of the Notes on those terms and conditions; and
(c) direct the Issuer Trustee to issue the Notes on those
terms and conditions.
However, the Global Trust Manager's power to act and bind
the Issuer Trustee in accordance with this clause is
conditional on the Issuer Trustee being satisfied (in its
reasonable discretion) with the terms and conditions of
the issue of the Notes, including the terms and conditions
dealing with the personal liability of the Issuer Trustee.
The Issuer Trustee must notify the Global Trust Manager if
it is not satisfied with the terms and conditions dealing
with the personal liability of the Issuer Trustee within 5
Business Days (or such other period as is agreed between
the Issuer Trustee and the Global Trust Manager) of
receiving a copy of the terms and conditions of the issue
(other than commercial information to be completed on or
about the date of issue) and any other relevant
Transaction Documents in connection with the issue.
No liability attaches to the Global Trust Manager
8.10 The Global Trust Manager shall not be liable in any way to
meet any moneys payable by the Issuer Trustee in its
capacity as trustee of any Trust to a Noteholder, or to
any other person, with respect to the preparation and
service of an Issue Notice on the Issuer Trustee, the
certifications in such an Issue Notice or the issue of any
Notes.
9 Conditions precedent to issue of Notes
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Issue Notice
9.1 The Global Trust Manager must prepare an Issue Notice
(substantially in the form of Schedule 3) and deliver it
to the Issuer Trustee no later than 2 Business Days (or
such other period as the Global Trust Manager and the
Issuer Trustee may agree) before the proposed Issue Date
for the issue of any Notes.
Conditions precedent to issue
9.2 The Issuer Trustee must not issue any Notes in relation to
a Trust on an Issue Date unless:
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(a) the Global Trust Manager has directed the Issuer
Trustee to issue the Notes. The Issuer Trustee may
rely on the direction of the Global Trust Manager to
issue Notes without enquiry;
(b) the Issuer Trustee has granted a charge to the
Security Trustee over the Assets of that Trust by
executing a Deed of Charge for the benefit of the
Secured Creditors of that Trust;
(c) on or before the second Business Day before the Issue
Date (or such other period as the Issuer Trustee and
Global Trust Manager may agree), the Global Trust
Manager has provided an Issue Notice for that Trust
to the Issuer Trustee;
(d) the relevant Trust has been constituted according to
this deed and the relevant Supplemental Deed; and
(e) any other conditions precedent to the issuing of the
Notes on that Issue Date referred to in the relevant
Supplemental Deed have been satisfied.
Conditions precedent to direction to issue
9.3 The Global Trust Manager will not direct the Issuer
Trustee to issue Notes unless:
(a) clause 9.2 has been complied with;
(b) such documentation as the Global Trust Manager
regards as being reasonably necessary for the issue,
sale and distribution of the Notes has been entered
into;
(c) it is not actually aware that an Insolvency Event has
occurred in respect of the Issuer Trustee in its
personal capacity or in its capacity as trustee of
the Trust to which the Notes relate; and
(d) any other conditions precedent to the Global Trust
Manager directing the Issuer Trustee to issue Notes
referred to in the relevant Supplemental Deed are
satisfied.
10 Terms of issue of Notes
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Characteristics
10.1 The Notes will have the characteristics specified in the
relevant Supplemental Deed and, in the case of Bearer
Notes, the relevant Note Trust Deed (including the
Conditions).
Excluded offer or issue
10.2 The Global Trust Manager must not issue a direction to the
Issuer Trustee pursuant to clause 9.2(a) unless the Global
Trust Manager:
(a) is satisfied that any offer for the issue, or any
invitation to apply for the issue, of:
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(i) the 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 Exchange Act; or
(ii) at the time the direction is issued, the Notes
comply with:
(A) the Financial Services Act, 1986 (United
Kingdom), all regulations made under or in
relation to that Act and the Public Offers
of Securities Regulations 1995;
(B) the Exchange 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 Notes; and
(C) any other relevant laws.
Subscriptions by other persons
10.3 Subscriptions for Notes must be made in the manner agreed
between the Global Trust Manager and the Issuer Trustee.
Upon receipt of a duly completed subscription form (if
required), completion of any other procedures determined
by the Global Trust Manager and receipt of the Issue Price
for the Notes, the Issuer Trustee must as soon as
practicable after an Issue Date for a Trust and subject to
this deed:
(a) issue the Notes in accordance with the relevant Issue
Notice;
(b) where the Notes are Registered Notes, issue an
Acknowledgment to the subscriber in respect of the
Notes;
(c) where the Notes are Registered Notes, enter the
relevant information in respect of the Notes into the
Register; and
(d) where the Notes are Bearer Notes, issue those Bearer
Notes in accordance with the Note Trust Deed and the
Supplemental Deed for the relevant Trust.
No liability
10.4 Notwithstanding any other provision of this deed or any
Transaction Document, in no circumstances will the Issuer
Trustee or the Global Trust Manager be obliged to issue or
procure the issue of a Note if the Issuer Trustee has not
received payment in full of the Issue Price in cleared
funds (or as otherwise agreed between the Global Trust
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Manager and the Issuer Trustee) for the Note. If
insufficient moneys are raised on a proposed Issue Date
for their intended purpose in accordance with this deed,
neither the Issuer Trustee nor the Global Trust Manager
shall have any obligation or liability to any person
(including, without limitation, to each other or any
intending Noteholder) to issue the Notes or incur any
other liability for any costs, loss or liabilities
incurred in connection with the failure to issue the Notes
other than the obligation to return any subscription
moneys received on the Issue Date unless the failure to
raise the necessary moneys was caused by its own
negligence, fraud or breach of trust (in the case of the
Issuer Trustee) or material breach of obligation (in the
case of the Global Trust Manager).
Terms of Notes
10.5 All Notes issued by the Issuer Trustee as trustee of a
Trust shall be issued with the benefit of, and subject to,
this deed, the relevant Supplemental Deed, the Master
Security Trust Deed, the relevant Deed of Charge and, in
the case of Bearer Notes, the relevant Note Trust Deed.
Each such document in relation to a Trust is binding on
the Global Trust Manager, the Issuer Trustee and each
Secured Creditor in respect of that Trust.
Acknowledgment of indebtedness
10.6 Subject to the terms of this deed and the Supplemental
Deed for the relevant Trust:
(a) each entry in the Register for the Trust in respect
of a Registered Note relating to the Trust; and
(b) in relation to each Bearer Note relating to the
Trust, that Bearer Note,
constitutes an independent and separate acknowledgment to
the relevant Noteholders or Note Owners, as the case may
be, by the Issuer Trustee of its indebtedness as trustee
of the Trust for the Invested Amount of that Note together
with the other rights given to Noteholders and the Note
Owners under this deed, the Supplemental Deed for the
relevant Trust, the Master Security Trust Deed, the Deed
of Charge in respect of the relevant Trust and (in
relation to a Bearer Note) the Note Trust Deed and the
Conditions for the relevant Trust.
11 Support and other Facilities
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Facilities
11.1 The Issuer Trustee shall, in relation to any Trust, on the
prior direction of the Global Trust Manager, enter into
any Support Facility or Derivative Contract on such terms
and conditions as are reasonably required by the Global
Trust Manager provided the Issuer Trustee is satisfied (in
its reasonable discretion) with the terms and conditions
dealing with the personal liability of the Issuer Trustee
(the Issuer Trustee must notify the Global Trust Manager
if not so satisfied as soon as practicable but in any
event within 5 Business Days (or such other
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period as is agreed between the Issuer Trustee and the
Global Trust Manager) of receiving a copy of the terms and
conditions of the relevant facility and any other
Transaction Documents in connection with the relevant
facility).
Rated issues
11.2 Clauses 11.3 to 11.5 shall only apply with respect to a
Trust if Notes in respect of that Trust have been, or are
to be rated by a Current Rating Agency.
Manager's Direction
11.3 The Global Trust Manager shall (subject to this deed):
(a) direct the Issuer Trustee that each Support Facility
or Derivative Contract for the benefit of the Trust
must be taken out or executed with a person having at
that time the Required Credit Rating (if required by
a Current Rating Agency); and
(b) take, or direct the Issuer Trustee to take, such
other action as may be necessary to satisfy the
requirements of the Current Rating Agency with
respect to the relevant Support Facility or
Derivative Contract in relation to that Trust.
Replacement or additional facilities
11.4 Any Support Facility or Derivative Contract for the
benefit of a Trust shall, subject to this deed, be entered
into by the Issuer Trustee on or prior to the Issue Date
in relation to any Notes in respect of that Trust provided
that, the Issuer Trustee may, at the direction of the
Global Trust Manager:
(a) enter into a new Support Facility or Derivative
Contract as trustee of a Trust after the Issue Date
if, and only if, the Global Trust Manager has
received written confirmation from the Current Rating
Agency that entering into the Support Facility or
Derivative Contract will not result in a downgrading
of any rating assigned to any Notes issued in respect
of that Trust; or
(b) substitute a new Support Facility or Derivative
Contract for any existing Support Facility or
Derivative Contract (respectively) entered into in
accordance with this clause 11.4 if, and only if, the
Global Trust Manager considers it to be in the
interests of that Trust and the Global Trust Manager
has received confirmation from the Current Rating
Agency that the new Support Facility or Derivative
Contract will not result in a downgrading of any
rating assigned to any Notes issued in respect of
that Trust.
Reduction in rating
11.5 If a person providing a Support Facility or Derivative
Contract to the Issuer Trustee as trustee of a Trust
ceases to have the Required Credit Rating (if a Current
Rating Agency requires it to have a Required Credit
Rating) and a Current Rating Agency has downgraded, or has
indicated that it proposes to downgrade, its rating of the
Notes, the Issuer Trustee
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must, if directed by the Global Trust Manager (in its
absolute discretion) and subject to this deed:
(a) enter into any substitute or additional Support
Facility or Derivative Contract identified by the
Global Trust Manager, on such terms as are reasonably
required by the Global Trust Manager; or
(b) take such other action as may be required by the
Current Rating Agency,
to maintain the rating of those Notes as it stood prior to
such downgrading or proposed downgrading of the rating of
the Notes.
Part E - Issuer Trustee
12 Issuer Trustee
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Powers
12.1 Subject to the relevant Supplemental Deed in respect of a
Trust, the Issuer Trustee has all the powers in respect of
a Trust that it is legally possible for a natural person
or corporation to have and as though it were the absolute
owner of the Assets of the relevant Trust and acting in
its personal capacity. For example, the Issuer Trustee has
power to borrow (whether or not on security) and to incur
all types of obligations and liabilities (including,
without limitation, Borrowings under clause 8.2).
Without affecting the generality of the above, the Issuer
Trustee has the following powers (to be construed as
separate and independent powers of the Issuer Trustee):
(a) to invest in, acquire or dispose, or otherwise deal
with Mortgage Loans;
(b) to invest in or deal with any other Asset for cash or
upon terms;
(c) to pay all fees payable under the Transaction
Documents and all expenses which are properly
incurred in respect of a Trust;
(d) to borrow and raise moneys as provided in the
Transaction Documents;
(e) subject to this deed, to borrow, raise money or
procure financial accommodation where the Issuer
Trustee considers the same to be in the interests of
a Trust upon such terms as the Global Trust Manager
thinks fit and that are acceptable to the Issuer
Trustee (acting reasonably);
(f) to exercise any power of sale arising on default
under any Housing Loan or any other right or remedy
accruing in respect of a Trust in relation to any
asset or under the Transaction Documents;
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(g) to grant any form of discharge, release or partial
discharge or release of any Housing Loan and provide
any type of financial accommodation in connection
with any Housing Loan where to do so is in the
opinion of the Issuer Trustee not prejudicial to the
Secured Creditors of a Trust;
(h) to enter into and perform its obligations under the
Transaction Documents containing such terms and
conditions as the Global Trust Manager thinks fit and
that are acceptable to the Issuer Trustee (acting
reasonably);
(i) to enter into Support Facilities and Derivative
Contracts;
(j) to enter into any agreement or do anything in
connection with a Trust, such as dealing with the
assets over which security is held, engaging advisers
and to execute proxies and other instruments;
(k) to enter into any document giving effect to a
priority arrangement between the Issuer Trustee (in
relation to a Housing Loan) and another provider of
financial accommodation which will take or has taken
security over the asset which is subject to a
Mortgage or a Collateral Security;
(l) to pay amounts required to remove any lien or charge
over any Assets to permit the Issuer Trustee to deal
with that Asset in accordance with the relevant
Supplemental Deed and any Transaction Document of the
relevant Trust;
(m) to xxxxxx its future discretions in accordance with
the Transaction Documents;
(n) to lodge Bearer Notes, or arrange for Bearer Notes to
be lodged, with a Depository;
(o) to convert currencies on such terms and conditions as
the Global Trust Manager thinks fit and that are
acceptable to the Issuer Trustee (acting reasonably);
(p) to list and maintain the listing of the Bearer Notes
on any stock exchange;
(q) to appoint a Note Trustee, Note Registrar and Agent
Bank in respect of a relevant Trust;
(r) to appoint Paying Agents in respect of a relevant
Trust; and
(s) to appoint the Servicer in respect of a Trust to
retain custody of the Mortgage Title Documents of
that Trust in accordance with the Servicing Agreement
and to lodge such Mortgage Title Documents with such
Servicer.
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Interests of Secured Creditors paramount
12.2 The Issuer Trustee agrees to, and each Unitholder
acknowledges that the Issuer Trustee will, subject to the
provisions of this deed, exercise its powers in what the
Issuer Trustee considers in good faith to be in the
interests of the Unitholders and the Secured Creditors in
respect of each Trust as a whole. In the event of any
conflict between those interests, the Issuer Trustee must,
subject to the provisions of this deed, exercise its
powers in what the Issuer Trustee considers in good faith
to be in the interests of the Secured Creditors in respect
of the Trust as a whole. Nothing in this clause limits the
rights of the Issuer Trustee against any Secured Creditor.
Delegation
12.3 The Issuer Trustee may, with the consent of the Global
Trust Manager (such consent not to be unreasonably
withheld), authorise any person or persons to act as its
delegate (in the case of a joint appointment, either
severally or jointly and severally) to perform its
functions under any Transaction Document including to hold
title to any Asset, perform any act or obligation or
exercise any discretion within the Issuer Trustee's power
(including the power to sub-delegate). The authorisation
must be written. The Issuer Trustee remains liable for the
acts or omissions of a delegate except where the Issuer
Trustee has acted in good faith and without negligence or
breach of trust in relation to the appointment of the
delegate. However, the Issuer Trustee may include
provisions to protect and assist those dealing with the
delegate in the authorisation as the Issuer Trustee thinks
fit. The delegate may be a Related Entity of the Global
Trust Manager or the Issuer Trustee.
Indemnity
12.4 The Issuer Trustee is entitled to be indemnified out of
the Assets of a Trust to the extent of those Assets for
any liability incurred by the Issuer Trustee in performing
or exercising any of its powers or duties in relation to
the Trust. This indemnity is in addition to any indemnity
allowed by law, but does not extend to liabilities to the
extent arising from the Issuer Trustee's fraud, negligence
or breach of trust.
Act on expert advice
12.5 The Issuer Trustee may obtain and act on the written
opinion, advice or information obtained from Valuers,
solicitors, barristers, legal practitioners, surveyors,
contractors, brokers, qualified advisers (whether
financial or otherwise), accountants and other experts or
consultants whether instructed by the Global Trust Manager
or the Issuer Trustee which the Issuer Trustee considers
are necessary, usual or desirable for the purpose of
enabling the Issuer Trustee to be fully and properly
advised and informed in order that it may properly
exercise its powers and obligations under this deed.
Issuer Trustee's covenants
12.6 The Issuer Trustee covenants with the Global Trust
Manager, with the intent that the benefit of these
covenants enures not only to the Global Trust Manager but
also to the Unitholder and the relevant Secured Creditors
jointly and each of them severally that it will, in
respect of each Trust:
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(a) act continuously as trustee of the Trust until the
Trust is terminated in accordance with this deed or
until it has retired or been removed in accordance
with this deed;
(b) exercise all due diligence and vigilance in carrying
out its functions and duties under this deed;
(c) take all such corporate actions which are necessary
to ensure that it is able to exercise all its powers
and remedies and perform all its obligations under
this deed and all other deeds, agreements and other
arrangements entered into by the Issuer Trustee under
this deed;
(d) except where required by statute or by law, not sell,
mortgage, charge or deal with the Assets of the Trust
(or permit any of its officers to do so) except as
permitted by the Transaction Documents relating to
that Trust;
(e) forward promptly to the Global Trust Manager all
notices, reports, circulars and other documents
received by it as holder of the Assets;
(f) act honestly and in good faith in the performance of
its duties and the exercise of its discretions under
this deed;
(g) exercise such diligence and prudence as a prudent man
of business would exercise in performing its express
functions and in exercising its discretions under
this deed, subject to the provisions of this deed,
having regard to the interests of the Unitholders,
and the Secured Creditors of the Trust as a whole;
(h) use its best endeavours to carry on and conduct its
business insofar as it relates to this deed in a
proper and efficient manner;
(i) except as permitted by the Transaction Documents, and
without prejudice to the Issuer Trustee's right of
indemnity or reimbursement under this deed, it will
not give any guarantees or incur or raise any
financial indebtedness (other than in respect of
trade creditors in the ordinary course of business of
the relevant Trust) in respect of the Trust other
than the Notes issued in respect of that Trust or the
Borrowings entered into in respect of that Trust;
(j) not terminate the obligations of any person under the
Transaction Documents in respect of the Trust to
which the Issuer Trustee is a party except in the
manner contemplated by the relevant Transaction
Document;
(k) not, in its capacity as trustee of the Trust, conduct
any business other than the business permitted under
the Transaction Documents for that Trust;
(l) subject to this deed and the other Transaction
Documents of the Trust, keep each Trust separate from
the others and not mix or
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commingle the Assets of the Trust with the assets or
property of any other Trust or any other person;
(m) maintain an arms' length relationship with its
Related Entities in relation to dealings affecting
the Trust;
(n) not create any Security Interest over the Assets of
the Trust for the benefit of any person except as
permitted by the Transaction Documents for that
Trust;
(o) except in the manner contemplated by the Transaction
Documents, not terminate the Trust, transfer or deal
with the Assets of the Trust or agree to the merger
of the Trust with any other person or entity until
all of the Borrowings raised in respect of the Trust
have been repaid in full;
(p) maintain a register of Authorised Investments and
other Assets of that Trust; and
(q) keep (or ensure that the Global Trust Manager keeps,
in which case the Issuer Trustee will provide the
Global Trust Manager with copies of all relevant
documents in its possession or control for such
purpose) accounting records which correctly record
and explain all amounts paid and received by the
Issuer Trustee on behalf of each Trust.
Issuer Trustee's indemnity from Assets
12.7 In respect of each Trust, and without limitation to the
terms of any Transaction Document, the right of the Issuer
Trustee to be exonerated or indemnified for its liability
in respect of all amounts owing by the Issuer Trustee in
its capacity as trustee of a Trust shall be limited to the
Assets comprising that Trust from time to time available
to meet such liability in accordance with this deed. This
limitation will not apply to any obligation or liability
of the Issuer Trustee to the extent that it is not
satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of the
Issuer Trustee's indemnification out of the Assets of the
applicable Trust as a result of the Issuer Trustee's
fraud, negligence or breach of trust.
Limitation of liability of Issuer Trustee
12.8 The Issuer Trustee is not liable:
(a) in connection with anything done by it in good faith
in reliance upon any document, form or list except
when it has reasonable grounds to believe that the
document, form or list is not genuine;
(b) if it fails to do anything because it is prevented or
hindered from doing it by law or order;
(c) to anyone for payments (except when made negligently)
made by it in good faith to a Governmental Authority
in connection with Taxes (including Taxes assessed on
the income of a Trust)
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or other charges in respect of a Trust even if the
payment need not have been made;
(d) if a person fails to carry out an agreement with the
Issuer Trustee in connection with any Trust, except
to the extent the failure is due to the Issuer
Trustee's fraud, negligence or breach of trust; or
(e) to anyone because of any error of law or any matter
done or omitted to be done by it in good faith in the
event of the liquidation or dissolution of a
corporation (other than a corporation under its
Control).
12.9 If the Issuer Trustee relies in good faith on a written
opinion, advice, information or statement given to it by a
person referred to in clause 12.5, it is not liable for
any misconduct, mistake, oversight, error of judgment,
forgetfulness or want of prudence on the part of that
person except when the person is not independent from the
Global Trust Manager (where the Issuer Trustee has actual
notice of that relationship) or the Issuer Trustee. A
person is regarded as independent notwithstanding that the
person acts or has acted as an adviser to the Global Trust
Manager or the Issuer Trustee or both of them.
12.10 The Issuer Trustee is not liable:
(a) for any loss, costs, liabilities or expenses arising
out of the exercise or non-exercise of its
discretions under this deed or otherwise in respect
of a Trust;
(b) for any loss, costs, liabilities or expenses arising
out of the exercise or non-exercise of a discretion
on the part of the Global Trust Manager;
(c) for any loss, costs, liabilities or expenses caused
by the Issuer Trustee's failure to check any
calculation, information, document, form or list
supplied or purported to be supplied to it by the
Global Trust Manager under this deed, under any
Transaction Document or a Borrowing, or any other
person;
(d) for any loss, costs, liabilities or expenses caused
by its acting on any instruction or direction given
to it by the Global Trust Manager or by any person in
accordance with the terms of any Transaction Document
or a Borrowing or failure by the Global Trust Manager
or other person to give such an instruction or
direction when required to do so by a Transaction
Document or Borrowing;
(e) for any other act or omission on its part except
where the act or omission is fraudulent, negligent or
in breach of trust;
(f) to the Unitholder or the Secured Creditors of a Trust
other than to the extent of the Issuer Trustee's
right of indemnity in respect of that Trust;
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(g) to make any payment to the Unitholder or the Secured
Creditors of a Trust except out of funds held by it
for that purpose under this deed in respect of that
Trust;
(h) for any Global Trust Manager's Default or any other
failure by the Global Trust Manager or other person
providing services or selling assets to or in respect
of a Trust to perform their obligations under or in
connection with a Trust or a Transaction Document; or
(i) for having acted upon:
(i) any resolution purporting to have been passed at
any meeting of Noteholders in respect of which
minutes have been made and signed; or
(ii) any purposed direction, consent or approval of
Noteholders,
even though it may subsequently be found that there
was some defect in the constitution of that meeting,
the passing of that resolution or the giving of the
direction, consent or approval (as the case may be) or
that for any reason that resolution, direction,
consent or approval is not valid or binding upon
Noteholders,
except, in all cases, to the extent such loss, cost,
liability or expense is caused by the Issuer Trustee's own
negligence, fraud or breach of trust.
Dealing with instruments
12.11 The Issuer Trustee and the Global Trust Manager are not
required to take any action relating to a transfer or
other dealing with any Unit or any Note unless the
relevant Unitholder or Noteholder has first paid in cash
all Taxes, brokerage, transfer fees, registration fees and
other charges which may be payable in respect of the
transaction or dealing.
Proceedings in respect of a Trust
12.12 (a) The Issuer Trustee may institute, prosecute, defend or
otherwise appear in any action, suit or other
proceeding in any court or tribunal in respect of any
matters touching or concerning a Trust, any Asset or
any Transaction Document including an enforcement,
contemplated enforcement of, preservation of rights
under, initiation, carriage and settlement of any
court proceedings in respect of the Trust, any Asset
or a Transaction Document. All costs, disbursements
and expenses incurred by the Issuer Trustee or the
Global Trust Manager in anticipation of or in
connection with any such action, suit or proceeding
and all costs and disbursements incurred by the
Issuer Trustee or the Global Trust Manager in
obtaining any legal advice or opinions concerning
such action, suit or proceeding or relating to the
interpretation or construction of this deed are to be
deducted from and paid out of the relevant Trust,
provided that:
(i) the basis of incurring any of those costs,
disbursements and expenses by the Issuer
Trustee:
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(A) is approved by the Global Trust Manager or
an Extraordinary Resolution at a meeting of
the Voting Secured Creditors of the
relevant Trust; or
(B) is regarded by the Issuer Trustee as
necessary to protect the interests of the
Voting Secured Creditors in relation to the
Trust following a breach by the Global
Trust Manager of its obligations under this
deed and the Issuer Trustee reasonably
believes that any delay in seeking an
approval under paragraph (A) may be
prejudicial to the interests of the Voting
Secured Creditors in relation to the Trust
or the Issuer Trustee; or
(ii) the Issuer Trustee considers the incurring of
those costs, disbursements and expenses to be
desirable to protect the Issuer Trustee against
potential personal liability.
(b) Each of the Issuer Trustee and the Global Trust
Manager shall be entitled to claim in respect of the
indemnities, stipulated in clauses 12.4 and 14.10
respectively, from the relevant Trust for its
expenses and liabilities incurred in defending any
action, suit, proceeding or dispute in which fraud,
negligence or material breach of obligations (in the
case of the Global Trust Manager only) or fraud,
negligence or breach of trust (in the case of the
Issuer Trustee only) is alleged or claimed against
it. However, on the same being proved, accepted or
admitted by it, it shall from its personal assets
immediately repay to that Trust the amount previously
paid by that Trust to it in respect of that indemnity
to the extent that it relates to the fraud,
negligence or a material breach of obligations (in
the case of the Global Trust Manager only) or fraud,
negligence or breach of trust (in the case of the
Issuer Trustee only).
Limitation of Issuer Trustee's liability
12.13 Notwithstanding any other provision of this deed, the
Issuer Trustee is not obliged to execute or do or omit to
do anything (including any instrument), enter into any
agreement or incur any obligation in connection with a
Trust (including, without limitation, in connection with
Borrowings of any kind) unless the Issuer Trustee has
received independent legal advice (if required by the
Issuer Trustee) in relation to the act, omission,
instrument, agreement, obligation or liability and unless
the Issuer Trustee's liability in connection with the act,
omission, instrument, agreement, obligation or liability
is limited in a manner satisfactory to the Issuer Trustee.
Issuer Trustee's reliance
12.14 The Issuer Trustee is entitled to conclusively rely on
(unless actually aware to the contrary), and is not
required to investigate the accuracy of:
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(a) the contents of any notice, report, certificate,
statements, representations or warranties made or
given by any party other than itself pursuant to this
deed, any Issue Notice or direction from the Global
Trust Manager provided in accordance with the
Transaction Documents;
(b) any calculations made by the Global Trust Manager
under any Transaction Document including, without
limitation, the calculation of amounts to be paid to,
or charged against, the Secured Creditors of the
relevant Trust and the Unitholders; or
(c) the amount of, or allocation of, collections or other
receipts received by a Trust,
and the Issuer Trustee is not liable to any person in any
manner whatsoever in respect of all such matters.
No liability for non-payment
12.15 Except in the case of and to the extent of fraud,
negligence or breach of trust on the part of the Issuer
Trustee, the Issuer Trustee is not liable for any losses,
costs, liabilities or claims in the event of a failure to
pay moneys on the due date for payment for any loss
howsoever arising in respect of a Trust to the Secured
Creditors of the relevant Trust or the Unitholder or any
other person.
Issuer Trustee no other duties
12.16 The Issuer Trustee in respect of a Trust only has the
obligations which are expressly set out in this deed, the
relevant Supplemental Deed and the other Transaction
Documents for the relevant Trust.
Global Trust Manager's actions
12.17 The Global Trust Manager shall take such action as is
consistent with its powers under this deed and shall give
all necessary instructions and directions to assist the
Issuer Trustee to perform its obligations under this deed
and the other Transaction Documents.
Use of clearing system
12.18 The Issuer Trustee is entitled to exercise any of its
powers and perform any of its obligations under this deed
(including the holding of Assets and the payment and
receipt of money) through or in conjunction with any
recognised clearing system.
No supervision or investigation
12.19 Except as expressly set out in this deed and the other
Transaction Documents, the Issuer Trustee has no
obligation to supervise the Global Trust Manager or any
other party or take any action to investigate the
accounts, management, control or activities of the Global
Trust Manager or any other person. The Issuer Trustee has
no duty, and is under no obligation, to investigate
whether any of the following has occurred in relation to a
Trust (except where the Issuer Trustee has actual notice):
(a) Global Trust Manager's Default;
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(b) Servicer Termination Event; or
(c) Title Perfection Event.
Information
12.20 Except as expressly required by this deed and the other
Transaction Documents, the Issuer Trustee has no duty to
provide any person (including any Secured Creditor) with
any credit or any other information concerning the
affairs, financial condition or business of a Trust.
Information Memorandum
12.21 (a) The Issuer Trustee has no responsibility for (and
will have no liability to any person, including the
Unitholders and the Secured Creditors), in respect of
any statement or information in or omission from any
information memorandum, advertisement, circular or
other document prepared by the Global Trust Manager,
the Seller or any other person, including in
connection with the issue of Notes. Without prejudice
to the foregoing, the Global Trust Manager must not
publish or permit to be published any such document
in connection with the offer of Notes or an
invitation for subscriptions for Notes without the
prior consent of the Issuer Trustee, which consent
must not be unreasonably withheld. In considering
whether to give its consent, the Issuer Trustee is
not required to review any such document or take into
account the interests of the Unitholders or the
Secured Creditors or any other person except that the
Issuer Trustee must not withhold its consent if it
has not reviewed the relevant document (provided the
Issuer Trustee has been granted 5 Business Days (or
such other period as is agreed between the Issuer
Trustee and the Global Trust Manager) to review the
relevant document and seek any appropriate advice
under clause 12.5).
(b) The Issuer Trustee must not, except with the prior
consent of the Global Trust Manager, prepare or
circulate any statement, information or other
document in connection with the issue of Notes.
Issuer Trustee decisions
12.22 In the event of any dispute, ambiguity or doubt as to the
construction or enforceability of this deed or of any
other Transaction Document, or of the Issuer Trustee's
powers or obligations under or in connection with this
deed or any other Transaction Document, or the
determination or calculation of any amount or thing under
or for the purpose of this deed or any other Transaction
Document, the Issuer Trustee may (but will have no
obligation to):
(a) obtain and rely on advice from any person referred to
in clause 12.5; and/or
(b) apply to a court or similar body for any direction or
order the Issuer Trustee considers appropriate,
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and provided the Issuer Trustee is using reasonable
endeavours to resolve such ambiguity, dispute or doubt,
the Issuer Trustee (in its absolute discretion) may (but
will have no obligation to) refuse to act or refrain from
acting in relation to matters affected by such dispute,
ambiguity or doubt.
Liability for Transaction Documents
12.23 The Issuer Trustee has no responsibility for the form or
contents of this deed or any other Transaction Document
and will have no personal liability (including in respect
of negligence) arising as a result of, or in connection
with, any inadequacy, invalidity or unenforceability of
any provision of this deed or the other Transaction
Documents. Nothing in this clause limits the Issuer
Trustee's representations and warranties as to the
enforceability of its obligations against it under the
Transaction Documents.
Representations and warranties
12.24 The Issuer Trustee represents and warrants to the Global
Trust Manager that:
(a) it has been duly incorporated as a company limited by
shares in accordance with the laws of the place of
its incorporation, is validly existing under those
respective laws and has power and authority to carry
on its business as it is now being conducted;
(b) it has power to enter into and observe its
obligations under this deed and the Transaction
Documents to which it is a party;
(c) it has in full force and effect the authorisations
necessary to authorise its execution, delivery and
performance of this deed and the Transaction
Documents to which it is a party, observe obligations
under them and allow them to be enforced, and has
filed all necessary returns with the Australian
Securities and Investments Commission;
(d) its obligations under this deed and the Transaction
Documents to which it is a party are valid, binding
and enforceable against it in accordance with their
terms subject to registration (where required), the
payment of any necessary stamp duty and laws and
defences generally affecting creditor's rights and
the availability of equitable remedies; and
(e) no Issuer Trustee Default continues unremedied.
12.25 The representations and warranties in clause 12.24 are
made on the date of this deed and on each date Notes are
issued in respect of a Trust after the date of this deed.
Breach of Consumer Credit Legislation
12.26 Where the Issuer Trustee is held liable for breaches
under the Consumer Credit Code, the Issuer Trustee must
seek relief initially under any indemnities provided to it
by the Global Trust Manager, the Seller or the Servicer
before exercising its right to recover against any Assets
of a Trust. Only after any claim being made under all such
indemnities is not
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satisfied within 3 Business Days of it being made, the
Issuer Trustee is entitled to exercise its right of
indemnity out of the Assets of the relevant Trust.
13 Issuer Trustee's Retirement
-------------------------------------------------------------------------------
Notice from Global Trust Manager
13.1 The Global Trust Manager may, by written notice, require
the Issuer Trustee to retire if it reasonably believes
that an Issuer Trustee Default has occurred.
Issuer Trustee's mandatory retirement
13.2 The Issuer Trustee must retire as trustee of a Trust when
required to do so by the Global Trust Manager under clause
13.1.
Removal
13.3 If the Issuer Trustee refuses to retire within 30 days of
being required to do so under clause 13.1 or 13.2, the
Global Trust Manager is entitled to remove the Issuer
Trustee from office immediately by notice in writing.
New Issuer Trustee
13.4 Upon the retirement or removal of the Issuer Trustee under
clauses 13.1, 13.2 or 13.3, the Global Trust Manager may
appoint a replacement trustee by deed if that appointment
will not, in the reasonable opinion of the Global Trust
Manager, materially prejudice the interests of
Noteholders. The appointment is not complete until the new
trustee executes a deed by which it covenants to be bound
by this deed. Until the appointment of any replacement
trustee is complete, the Global Trust Manager must act as
trustee (subject to the law) in accordance with this deed.
The Global Trust Manager will be entitled to the Issuer
Trustee's fee for the period it so acts as Issuer Trustee.
Issuer Trustee's voluntary retirement
13.5 The Issuer Trustee may retire by giving 3 months' notice
in writing to the Global Trust Manager or such period as
the Global Trust Manager and the Issuer Trustee may agree.
13.6 The purported retirement of the Issuer Trustee under
clause 13.5 and the purported appointment of a new trustee
has no effect until the new trustee executes a deed under
which it covenants to act as trustee in accordance with
this deed. Such a new trustee may be appointed by the
Global Trust Manager at any time after receipt of the
notice referred to in clause 13.5. If the Global Trust
Manager fails to appoint a new trustee within 60 days of
the receipt of the notice referred to in clause 13.5 then
the Issuer Trustee may appoint a new trustee provided that
each Current Rating Agency has confirmed that the
appointment of such person as the new trustee will not
have an Adverse Rating Effect in relation to any Trust.
Release
13.7 When it retires or is removed, the Issuer Trustee is
released from all obligations in relation to the Trust
arising after the date it retires or is removed except
that the Issuer Trustee is still obliged, at the cost of
the
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Trust, to vest the Assets in the new trustee (or the
Global Trust Manager if the Global Trust Manager is acting
as trustee) and to promptly deliver all books and records
(including computer records to the extent and in the form
the Issuer Trustee is able to deliver them) relating to
the Trust to the new trustee (or to the Global Trust
Manager if the Global Trust Manager is acting as trustee).
The Issuer Trustee agrees to co-operate with the new
Trustee (or the Global Trust Manager if it is acting as
Issuer Trustee) in the transfer of the books and records.
The retiring Issuer Trustee may make it a condition of
vesting Assets in the new trustee (or the Global Trust
Manager, if the Global Trust Manager is acting as trustee)
that all liabilities of the retiring Issuer Trustee for
which it is entitled to be indemnified and for which it
may be personally liable are first satisfied or provided
for to the satisfaction of the retiring Issuer Trustee.
Removal, retirement or discharge of the Issuer Trustee
will not affect the rights or indemnities available to it
under this deed or at law in relation to the performance
by the Issuer Trustee of its obligations and powers as
trustee.
Settlement of amounts
13.8 The Global Trust Manager may settle with the Issuer
Trustee the amount of any sums payable by the Issuer
Trustee to the Global Trust Manager or by the Global Trust
Manager to the Issuer Trustee and may give to or accept
from the Issuer Trustee a discharge in respect of those
sums which is then conclusive and binding as between the
Issuer Trustee and the Global Trust Manager.
Costs
13.9 The Issuer Trustee will bear the reasonable costs of its
removal if it is removed because of an Issuer Trustee
Default. The Issuer Trustee will indemnify the Global
Trust Manager and each Trust for these costs. These costs
are not payable out of the Assets of a Trust.
13.10 Any delegation made by the Issuer Trustee under clause
12.3 in respect of a Trust will automatically terminate if
the Issuer Trustee retires, or is removed, in accordance
with this clause 13 in respect of that Trust.
Part F - Global Trust Manager
14 Global Trust Manager
-------------------------------------------------------------------------------
Powers
14.1 The Global Trust Manager must (subject to the Transaction
Documents for a Trust) manage each Trust until it retires
or is removed. This power extends to the management of the
Assets (other than the Mortgage Loans) and Liabilities of
each Trust, and excludes the Issuer Trustee from
management except as set out in this deed.
Manager to have discretion
14.2 Subject to this deed, the Global Trust Manager has
absolute discretion with respect to all the powers,
authorities and discretions vested in it whether or not in
relation to the manner or time of exercise.
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Services
14.3 Without limiting any other provision of this deed, the
Global Trust Manager agrees to perform and provide the
following services to the Issuer Trustee in respect of
each Trust:
(a) to prepare and maintain all accounts, ledgers and
financial records and reports in respect of the Trust
and the tax returns of the Trust;
(b) to prepare and deliver (by facsimile or such other
method as the Global Trust Manager may consider
appropriate) such statements and reports as may be
required to be prepared and delivered by the Global
Trust Manager under the Transaction Documents for
that Trust;
(c) to calculate the amount of each payment to each
Secured Creditor in accordance with the provisions of
the Transaction Documents and advise the Issuer
Trustee of such amount of each payment;
(d) to notify the Issuer Trustee immediately if:
(i) it becomes actually aware of a material breach
of a Transaction Document;
(ii) it becomes actually aware that a representation
or warranty in a Transaction Document was
incorrect when made; or
(iii) it becomes actually aware of the occurrence of
a Global Trust Manager's Default,
provided that the Global Trust Manager is not
responsible or liable to investigate (except in the
case of manifest error);
(e) subject to the terms of the Transaction Documents and
any confidentiality undertakings to which the Global
Trust Manager is subject, to provide the Issuer
Trustee, in a timely manner (having regard to the
information requested) the information reasonably
requested by the Issuer Trustee in connection with
the Trust. The costs and expenses of the Global Trust
Manager in connection with providing such information
will fall within the indemnity referred to in clause
14.10;
(f) the co-ordination of Borrowings of the Trust;
(g) subject to the appointment of any Servicer, the
management of Mortgage Loans, Authorised Investments
and any Support Facilities and Derivative Contracts
required to be established and maintained pursuant to
the Supplemental Deed of that Trust; and
(h) the calculation of all determinations to be made on
each Determination Date and of all payments to be
made on each
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Payment Date in accordance with the Supplemental Deed
of that Trust.
Delegation
14.4 The Global Trust Manager may, pursuant to a Deed of
Delegation or otherwise, authorise any person or persons
to act as its delegate (in the case of a joint
appointment, either severally or jointly and severally) to
perform any or all of its functions in respect of a Trust
or under any Transaction Document in respect of a Trust,
to perform any act or exercise any discretion within the
Global Trust Manager's power (including the power to
sub-delegate). The Global Trust Manager remains liable for
the performance of all of its obligations under this deed
notwithstanding any such appointment.
The delegate may be a Related Entity of the Global Trust
Manager or the Issuer Trustee.
Act on expert advice
14.5 The Global Trust Manager may obtain and act upon the
written opinion, advice or information obtained from
Valuers, barristers, solicitors, legal practitioners,
contractors, brokers, qualified advisers (both financial
and otherwise) and other experts whether instructed by the
Global Trust Manager or by the Issuer Trustee.
No power to bind Issuer Trustee
14.6 The Global Trust Manager acknowledges that in exercising
its powers, authorities and discretions vested in it and
carrying out and performing its duties and obligations in
relation to any Trust or any Asset, whether under this
deed or under any Transaction Document, neither it nor its
delegate has any power to bind the Issuer Trustee,
otherwise than as expressly provided in this deed or such
other Transaction Document, or with the express authority
of the Issuer Trustee.
Global Trust Manager's covenants
14.7 The Global Trust Manager covenants with the Issuer Trustee
in respect of each Trust that it will, until the Trust is
terminated in accordance with this deed and winding up of
the Trust is completed or until it has retired or been
removed in accordance with this deed:
(a) use its best endeavours to carry on and conduct its
business to which its obligations and functions under
this deed relate, in a proper and efficient manner;
(b) manage the Trust;
(c) act honestly and in good faith in the performance of
its duties and in the exercise of its discretions
under this deed;
(d) make available for inspection by the Issuer Trustee
and the Auditor during normal business hours and
after the receipt of reasonable notice, the books of
the Global Trust Manager relating to the Trust;
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(e) give to the Issuer Trustee and the Auditor written or
oral information which either may reasonably require
with respect to all matters in possession of the
Global Trust Manager relating to the Assets or the
Trust;
(f) pay to the Issuer Trustee within two Business Days of
becoming actually aware of receipt of money that is
payable by the Global Trust Manager to the Issuer
Trustee under this deed;
(g) within two Business Days of each 30 June and 31
December and within two Business Days of a request
(there being no more than two such requests in each
calendar year) from the Issuer Trustee, provide to
the Issuer Trustee a certificate signed by two
Authorised Persons of the Global Trust Manager
stating that, as at that date, to the best of the
Global Trust Manager's knowledge, information and
belief no Global Trust Manager's Default is
subsisting;
(h) not release any Assets of any Trust to any party
except in accordance with the provisions of this deed
and with the prior written permission of the Issuer
Trustee;
(i) not merge or consolidate into another entity, unless
the surviving entity assumes the obligations of the
Global Trust Manager under the Transaction Documents;
(j) make any filings required in connection with the
Trust or the Assets with any Governmental Agency
except any filings that the Issuer Trustee is
required to make in relation to its capacity as
trustee of the Trust;
(k) keep all accounting records which correctly record
all amounts paid and received in connection with the
relevant Trust by the Issuer Trustee (to the extent
that the Issuer Trustee has notified the Global Trust
Manager of them) and by the Global Trust Manager;
(l) take all such corporate actions which are necessary
to ensure that it is able to exercise all its powers
and remedies and perform all its obligations under
this deed and all other deeds, agreements and other
arrangements entered into by the Global Trust Manager
under this deed;
(m) not direct the Issuer Trustee to act if the Global
Trust Manager is aware that that direction could
reasonably be expected to have an Adverse Rating
Effect;
(n) prepare and submit to the Issuer Trustee for signing
and filing on a timely basis all income Tax returns
or elections required to be filed with respect to the
Trust and ensure that the Issuer Trustee is directed
to pay any Taxes (including Taxes assessed on the
income of the Trust, it being acknowledged however
that the Issuer Trustee and the Global Trust Manager
will cooperate
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to use their best endeavours to ensure that no such
Tax falls due) required to be paid by the Trust;
(o) notify the Issuer Trustee and the Current Rating
Agency as soon as practicable after becoming aware
that a Title Perfection Event or a Global Trust
Manager's Default has occurred;
(p) deliver to the Note Trustee (with a copy to the
Issuer Trustee) at least annually a written statement
certifying to the best of its knowledge the Issuer
Trustee's fulfilment of its obligations under the
Transaction Documents for each Trust; and
(q) obtain and maintain any licences that it is required
to obtain and maintain in order to perform its
material obligations as Global Trust Manager under
the Transaction Documents for each Trust.
Further limitation of liability of Global Trust Manager
14.8 If the Global Trust Manager relies in good faith on a
written opinion, advice, information or statement given to
it by a person referred to in clause 14.5, it is not
liable for any misconduct, mistake, oversight, error of
judgment, forgetfulness or want of prudence on the part of
that person except when the person is not independent from
the Global Trust Manager. A person will be regarded as
independent notwithstanding that:
(a) the person acts or has acted as adviser to the Global
Trust Manager or the Issuer Trustee or both of them
so long as separate instructions are given by the
Global Trust Manager to that person; or
(b) the person is a Related Entity of the Global Trust
Manager or the Issuer Trustee.
Global Trust Manager liable
14.9 The Global Trust Manager is not liable:
(a) for any loss, costs, liabilities or expenses arising
out of the exercise or non-exercise of its
discretions under this deed or otherwise in respect
of a Trust;
(b) for any loss, costs, liabilities or expenses arising
out of the exercise or non-exercise of a discretion
on the part of the Issuer Trustee or any act,
omission, misconduct, mistake, oversight, error of
judgment, forgetfulness or want of prudence on the
part of the Issuer Trustee or other person providing
services or selling assets to or in respect of a
Trust;
(c) for any loss, costs, liabilities or expenses caused
by its failure to check any calculation, information,
document, form or list supplied or purported to be
supplied to it by the Issuer Trustee or any other
person;
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(d) for any other act or omission, misconduct, mistake,
oversight, error of judgment, forgetfulness or want
of prudence on its part;
(e) for any default by the Issuer Trustee or any other
failure by the Issuer Trustee or other person
providing services or selling assets to or in respect
of a Trust to perform their obligations under or in
connection with a Trust or a Transaction Document; or
(f) for any failure to pay any moneys on the due date for
payment of such moneys to the Secured Creditors of
the relevant Trust or any other person,
except, in all cases, to the extent that such loss, cost,
liability or expense is caused by the Global Trust
Manager's fraud, negligence, or material breach of
obligation under this deed.
Indemnity
14.10 The Global Trust Manager is indemnified out of the Assets
of a Trust in respect of any liability, cost or expense
(other than general overhead costs and expenses) properly
incurred by it in its capacity as Global Trust Manager of
the Trust.
Representations and warranties
14.11 The Global Trust Manager represents and warrants to the
Issuer Trustee that:
(a) it has been duly incorporated as a company limited by
shares in accordance with the laws of the place of
its incorporation, is validly existing under those
respective laws and has power and authority to carry
on its business as it is now being conducted;
(b) it has power to enter into and observe its
obligations under this deed and the Transaction
Documents to which it is a party;
(c) it has in full force and effect the authorisations
necessary to authorise its execution, delivery and
performance of this deed and the Transaction
Documents to which it is a party, observe obligations
under them and allow them to be enforced, and has
filed all necessary returns with the Australian
Securities & Investments Commission;
(d) its obligations under this deed and the Transaction
Documents to which it is a party are valid, binding
and enforceable against it in accordance with their
terms subject to the payment of any necessary stamp
duty and laws and defences generally affecting
creditor's rights;
(e) no Global Trust Manager's Default continues
unremedied; and
(f) it does not enter into this deed or any Transaction
Document in the capacity of a trustee of any trust or
settlement other than where the Global Trust Manager
acts as Issuer Trustee under clause 13.4 or as
Security Trustee under the Deed of Charge.
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14.12 The representations and warranties in clause 14.11 are
made on the date of this deed and on each date Notes are
issued in respect of a Trust after the date of this deed.
Limitation of liability of Global Trust Manager
14.13 The Global Trust Manager is not liable:
(a) in connection with anything done by it in good faith
in reliance upon any document, form or list except
when it has reasonable grounds to believe that the
document, form or list is not genuine;
(b) if it fails to do anything because it is prevented or
hindered from doing it by law or order;
(c) to anyone for payments (except when made negligently)
made by it in good faith to a Governmental Agency in
connection with Taxes (including Taxes assessed on
the income of a Trust) or other charges in respect of
a Trust even if the payment need not have been made;
(d) if a person fails to carry out an agreement with the
Global Trust Manager in connection with any Trust,
except when the failure is due to the Global Trust
Manager's fraud, negligence or material breach of
obligation;
(e) to anyone because of any error of law or any matter
done or omitted to be done by it in good faith in the
event of the liquidation or dissolution of a
corporation (other than a corporation under its
Control); or
(f) except to the extent expressly provided for in a
Transaction Document, to indemnify the Issuer Trustee
or make any payments to any other person in relation
to the Trusts except that there will be no limit on
the Global Trust Manager's liability for any fraud,
negligence or material breach of obligation by it in
its capacity as Global Trust Manager of the Trusts.
No liability for non-payment
14.14 Except in the case of and to the extent of fraud,
negligence or material breach of obligation on the part of
the Global Trust Manager, the Global Trust Manager is not
liable in the event of a failure to pay moneys on the due
date for payment for any loss howsoever arising in respect
of a Trust to the Secured Creditors of the relevant Trust
or the Unitholders or any other person.
Reporting
14.15 In respect of a Trust, the Global Trust Manager will on
or about each Determination Date send:
(a) to the Issuer Trustee, the Paying Agents and the Note
Trustee, the Reporting Statement; and
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(b) to the Current Rating Agencies, such information as
they reasonably require,
unless otherwise specified in the relevant Supplemental
Deed.
15 Global Trust Manager's Retirement
-------------------------------------------------------------------------------
Global Trust Manager's Default
15.1 The Issuer Trustee may, by written notice, require the
Global Trust Manager to retire if it reasonably believes
that a Global Trust Manager's Default has occurred.
Global Trust Manager's Mandatory Retirement
15.2 The Global Trust Manager must retire as Global Trust
Manager of a Trust when required to do so by the Issuer
Trustee under clause 15.1.
Removal
15.3 Upon the occurrence of, or at any time after, a Global
Trust Manager's Default (of which the Issuer Trustee has
actual notice and which has not been waived by the Issuer
Trustee), the Issuer Trustee must, upon giving written
notice to the Global Trust Manager and each Current Rating
Agency for that Trust, immediately terminate the rights
and obligations of the Global Trust Manager in respect of
each relevant Trust and appoint another entity acceptable
to the Current Rating Agency to act in its place.
Retirement
15.4 The Global Trust Manager may retire from the management of
all of the Trusts upon giving 3 months written notice to
the Issuer Trustee (or such other period as the Global
Trust Manager and the Issuer Trustee may agree).
New Global Trust Manager
15.5 Upon the retirement or removal of the Global Trust Manager
under clauses 15.1, 15.2, 15.3 and 15.4, the Global Trust
Manager must (as soon as practicable) appoint in writing
another corporation to be the manager of the Trust,
subject to the approval of the Issuer Trustee and any
approval required by law provided that the appointment
will not, in the reasonable opinion of the Issuer Trustee,
materially prejudice the interests of the Noteholders. If
the Global Trust Manager does not propose a replacement at
least 30 days before the Global Trust Manager proposes to
retire or the Issuer Trustee does not approve of the
replacement proposed by the Global Trust Manager, the
Issuer Trustee may appoint a new manager as of the date of
the proposed retirement. An appointment is not complete
until the new manager executes a deed by which it
covenants to be bound by this deed. The appointment of the
replacement manager must not cause an Adverse Rating
Effect.
Issuer Trustee act as Global Trust Manager
15.6 Until the appointment of any replacement manager is
complete, the Issuer Trustee must (subject to any approval
required by law) act as Global Trust Manager in accordance
with this deed. For so long as it so
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acts, the Issuer Trustee is entitled to the fee which, but
for its removal, the Global Trust Manager would have been
entitled to receive.
Release
15.7 When it retires or is removed, the Global Trust Manager is
released from all obligations in relation to each Trust
arising after the date of its retirement or removal except
that the Global Trust Manager is still obliged to promptly
deliver all books and records (including computer records
to the extent and in the form the Global Trust Manager is
able to deliver them) relating to the Trust in the Global
Trust Manager's possession or control as at the date of
retirement to the new Global Trust Manager (or the Issuer
Trustee if it is acting as Global Trust Manager). The
Global Trust Manager agrees to co-operate with the new
Global Trust Manager (or the Issuer Trustee if it is
acting as Global Trust Manager) in the transfer of the
books and records. The Issuer Trustee may settle with the
Global Trust Manager the amount of any sums payable by the
Global Trust Manager to the Issuer Trustee or the Issuer
Trustee to the Global Trust Manager and may give to or
accept from the Global Trust Manager a discharge in
respect of those sums which will be conclusive and binding
as between the Issuer Trustee and the Global Trust
Manager.
Change in terms of appointment
15.8 No change in the terms and conditions of appointment of
the Global Trust Manager may be made without the approval
of the Issuer Trustee which approval may not be
unreasonably withheld.
Costs
15.9 The Global Trust Manager will bear the reasonable costs of
its removal if it is removed because of a Global Trust
Manager's Default. The Global Trust Manager will indemnify
the Issuer Trustee and each Trust for these costs.
15.10 Any delegation made by the Global Trust Manager under
clause 14.4 in respect of a Trust will automatically
terminate if the Global Trust Manager retires, or is
removed, in accordance with this clause in respect of that
Trust.
Part G - Other
16 Transfer and Transmission of Notes
-------------------------------------------------------------------------------
No restriction on transfer
Subject to the relevant Supplemental Deed, there is no
restriction on the transfer of Notes for a Trust. The
relevant Supplemental Deed regulates the transfer and
transmission of Notes for a Trust.
17 Register of Noteholders
--------------------------------------------------------------------------------
Register of Noteholders
The Issuer Trustee shall keep an up to date Register in
respect of the Registered Notes only, and in accordance
with Schedule 6 to this deed
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and the relevant Supplemental Deed. The Register may be
maintained in electronic form. The Issuer Trustee will
procure that a register be maintained with respect to any
Bearer Notes in accordance with the Note Trust Deed for
the relevant Trust, if any.
18 Meetings of Noteholders
--------------------------------------------------------------------------------
18.1 Any proposal requiring the consent of holders of Bearer
Notes of a Trust will be determined in accordance with the
Note Trust Deed for that Trust. Any proposal requiring the
consent of the holders of Registered Notes of a Trust will
be determined in accordance with this deed and the
Supplemental Deed for that Trust.
18.2 In respect of Registered Notes, the Issuer Trustee, the
Global Trust Manager and each Noteholder must comply with
the contents of Schedule 4 in relation to the meetings of
Noteholders. Subject to clause 18.3, Schedule 4 does not
apply to Bearer Notes.
18.3 The procedure for convening a meeting at which all
Noteholders are entitled to participate is set out in
Schedule 4, amended as follows:
(a) any notice of a meeting given or required to be given
to the holders of Bearer Notes must also be given to
the Note Trustee;
(b) a meeting at which the Note Trustee is the only
Noteholder pursuant to clause 18.3(c) must not,
unless otherwise agreed by the Note Trustee, be held
until the Note Trustee has had the opportunity of
seeking and obtaining directions from the holders of
Bearer Notes regarding how the Note Trustee is to
vote at the meeting;
(c) the Noteholders in relation to the Bearer Notes means
the Note Trustee alone, acting on behalf of the
holders of Bearer Notes under the Note Trust Deed or,
if the Note Trustee has become bound to take steps
and/or to proceed under the Note Trust Deed and fails
to do so within a reasonable time and such failure is
continuing, the holders of Bearer Notes;
(d) if the Note Trustee is the only Noteholder in
relation to the Bearer Notes pursuant to clause
18.3(c), it will be regarded as a representative
holding or representing all of the Bearer Notes for
the purposes of determining whether a quorum is
present at such meeting, for determining the votes to
which the Note Trustee is entitled to cast at such
meeting and any other relevant matter relating to
such meeting;
(e) if the holders of Bearer Notes become entitled to
attend a meeting of Noteholders pursuant to clause
18.3(c), the evidence of the entitlement of such
Noteholders to attend such meeting and to vote
thereat, and any other relevant matters, will be
determined in accordance with the provisions of the
Note Trust Deed and the Agency Agreement, with such
amendments as determined by the Issuer Trustee to be
necessary; and
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(f) if at a particular time the Note Trustee is or would
be the only Noteholder in respect of a meeting of
Noteholders, notwithstanding any other provision of
this deed, the requirement to convene such a meeting
and put such issue to such meeting will be satisfied
if directions are sought from the Note Trustee on the
particular issue that would otherwise be put to such
meeting. Upon such a direction being given by the
Note Trustee, a meeting of the Noteholders 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.
19 Recourse of Creditors
-------------------------------------------------------------------------------
Recourse limited
Without limiting clause 33 , the recourse of the Issuer
Trustee, the Global Trust Manager and any creditor
(including, without limitation, any Secured Creditor) in
respect of a Trust is limited to the Assets of that
particular Trust.
Part H - Miscellaneous
20 Payments
-------------------------------------------------------------------------------
Satisfaction and discharge
20.1 Payment of any amount in accordance with clause 20.4 will
be in satisfaction of the money payable and is a good
discharge to the Issuer Trustee.
Cheques and notices
20.2 The Issuer Trustee must prepare or cause to be prepared
all Cheques and notices which are to be issued to
Noteholders in relation to a Trust under this deed and
stamp the same as required by law at the expense of the
relevant Trust, and the Issuer Trustee must sign (by
autographical, mechanical or other means) such Cheques for
dispatch by the day on which they ought to be despatched.
Payments to Noteholders
20.3 Any payment made by or on behalf of the Issuer Trustee in
respect of any Registered Note shall be made to the person
whose name is entered in the Register as the registered
owner of the relevant Registered Note (or in the case of
joint registered owners, to the person whose name first
appears in the Register). Any payment by or on behalf of
the Issuer Trustee in respect of any Bearer Note shall be
made in accordance with the Note Trust Deed and the Agency
Agreement for the relevant Trust.
Payment Methods
20.4 Any moneys payable by the Issuer Trustee, the Global Trust
Manager or the Servicer under any Transaction Document
shall be paid by the Issuer Trustee, the Global Trust
Manager or the Servicer (as the case may be) in the manner
required by the Transaction Documents and may be paid to
such person by:
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(a) (Cheque) crossed "not negotiable" Cheque in favour of
the relevant person and despatched by post to the
address of the relevant person being in the case of a
Registered Noteholder, the address of that Registered
Noteholder shown in the Register on the Record Date
or, in the case of any other relevant person, to the
address of that other relevant person for the
purposes of clause 20;
(b) (electronic transfer) electronic transfer through a
Clearing System;
(c) (direct payment) by direct transfer to a designated
account of the relevant person and agreed to by the
Global Trust Manager and the Issuer Trustee; or
(d) (other agreed manner) any other manner specified by
the relevant person and agreed to by the Global Trust
Manager, the Servicer (but only in the case of a
payment to be made by the Servicer) and the Issuer
Trustee.
The agreement referred to in paragraphs (c) and (d) above
may be constituted by the Global Trust Manager directing
the Issuer Trustee to make a payment by direct transfer
and the Issuer Trustee effecting such transfer.
Valid receipts
20.5 A receipt issued by the Issuer Trustee, the Global Trust
Manager or the Servicer (as the case may be) for any
moneys shall exonerate the person paying the same from all
liability to make any further enquiry. Every such receipt
shall as to the moneys paid or expressed to be received in
such receipt, effectually discharge the person paying such
moneys from such liability or enquiry and from being
concerned to see to the application or being answerable or
accountable for any loss or misapplication of such moneys.
21 Payments, Income and distributions
-------------------------------------------------------------------------------
Payments
21.1 The principal and income in relation to a Trust, and other
amounts credited to the Collections Account for that
Trust, will be allocated by the Global Trust Manager, and
paid by the Issuer Trustee at the direction of the Global
Trust Manager, in accordance with the Supplemental Deed
for that Trust.
21.2 The Global Trust Manager must, to the extent it is
possible to do so, determine that there is an amount of
Net Trust Income of each Trust in respect of each
Financial Year (being an amount not less than $1) and for
the purpose of those calculations:
(a) the Global Trust Manager may determine whether any
deemed or actual receipt, profit, gain, payment,
loss, outgoing, provision or reserve or any sum of
money or investment in a Financial Year is or is not
to be treated as being on income or capital
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account of the Trust (including treating the transfer
of amounts from the corpus of the Trust as income of
the Trust for any purpose) and whether and the extent
to which any provisions and reserves need to be made
for the Financial Year;
(b) unless determined otherwise in accordance with clause
21.2(a), an item is to be taken into account in
calculating the Net Trust Income if it would be taken
into account in determining the Net Annual Income;
and
(c) the Global Trust Manager will make such
determinations as are necessary to ensure, as far as
possible, that any tax liability in respect of the
Trust in respect of a year of income under Division 6
of the Tax Act (or any similar provision of any
replacement act) is borne by the Unitholders and not
by the Issuer Trustee.
21.3 The Global Trust Manager must determine the Net Annual
Income of each Trust for each Financial Year and in doing
so, it may have regard to the determinations made by it
under clause 21.2. The Residual Income Unitholders of a
Trust shall be entitled to the whole of the Net Annual
Income of that Trust for each Financial Year in accordance
with the relevant Supplemental Deed.
21.4 The Residual Income Unitholders of a Trust shall be
presently entitled for the purposes of the Tax Act to the
whole of the Net Trust Income of that Trust in respect of
each Financial Year.
21.5 On the last day of each Financial Year of a Trust, the
Residual Income Unitholders of that Trust will be entitled
to be paid an amount equal to whichever is the greater of
the following:
(a) its proportion of the Net Trust Income to which it is
presently entitled under clause 21.4; and
(b) its proportion of the Net Annual Income to which it
is entitled under clause 21.3.
21.6 The Global Trust Manager may in its absolute discretion
require the Residual Income Unitholders of a Trust to
invest an amount in the Trust if:
(a) that amount represents an amount to which the
Residual Income Unitholders are presently entitled to
under clause 21.4 hereof and which amount was not
actually paid to the Residual Income Unitholders in
the relevant Financial Year; and
(b) the Residual Income Unitholders request the Global
Trust Manager (or Issuer Trustee) to pay, or
otherwise deal with such amount on behalf of the
Residual Income Unitholders,
as a payment, or additional payment, in respect of its
interest in the Trust.
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Payment
21.7 The Global Trust Manager must calculate the distributions
to be paid and direct the Issuer Trustee to pay such
distributions.
Issuer Trustee to act
21.8 Subject to this deed, the Issuer Trustee must act in
accordance with any direction to pay given to it by the
Global Trust Manager in accordance with this clause 21.
22 Accounts and audit
-------------------------------------------------------------------------------
Accounts
22.1 The accounts of each Trust must be prepared by the Global
Trust Manager in accordance with the accounting standards
under the Corporations Act, and, if not inconsistent with
those accounting standards, generally accepted principles
and practices in Australia consistently applied by a body
corporate or as between bodies corporate and over time.
The accounts must be maintained at the office of the
Global Trust Manager. The Global Trust Manager covenants
with the Issuer Trustee to keep the accounts of each
Trust.
Audit
22.2 At the recommendation of the Global Trust Manager, the
Issuer Trustee must appoint a person qualified to act as
required by the Corporations Act as the Auditor to audit
the accounts of each Trust. The Issuer Trustee may replace
any Auditor. The Auditor may retire on one month's written
notice to the Issuer Trustee. The Auditor's remuneration
will be as determined by the Global Trust Manager from
time to time.
Establishment of bank accounts
22.3 Immediately upon lodgment of any Supplemental Deed in
accordance with clause 2.6, the Issuer Trustee must open a
Collections Account for the Trust established under the
Supplemental Deed with an Eligible Bank in its name which
is referable to that Trust. The Issuer Trustee must open
such other Collections Accounts as it is directed to do so
by the Global Trust Manager. A Collections Account of a
Trust:
(a) may be a money market account;
(b) must have Authorised Persons of the Issuer Trustee as
the only authorised signatories;
(c) must be such that any moneys deposited in it are
Authorised Investments of the Trust; and
(d) must be operated by the Issuer Trustee in accordance
with the Transaction Documents.
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22.4 The Issuer Trustee must pay into the Collections Account
of a Trust (or procure the payment into the Collections
Account of a Trust of):
(a) all moneys raised from the issue of Units and the
Notes in respect of that Trust (except to the extent
that such moneys are paid directly to the seller of
an Asset by the Issuer Trustee); and
(b) any other money received by the Issuer Trustee in
respect of the Trust.
Withdrawals
22.5 The Issuer Trustee must withdraw or procure the withdrawal
of funds from the Collections Account for a Trust in
accordance with the directions of the Global Trust Manager
and apply the same when necessary for:
(a) providing consideration for the acquisition of Assets
or the redemption of the Face Value of the Notes for
that particular Trust;
(b) making payments for itself, the Global Trust Manager,
the Security Trustee or other persons in accordance
with this deed for that particular Trust;
(c) making payments to the Secured Creditors for that
particular Trust;
(d) any other payments permitted or contemplated by the
Transaction Documents for that particular Trust; and
(e) investing any surplus funds in Assets for that
particular Trust.
23 Administration and reporting
-------------------------------------------------------------------------------
Register of Unitholders
23.1 The Global Trust Manager must establish a register of
Unitholders, which may be in electronic form, and keep it
up to date in accordance with the Supplemental Deed for
the relevant Trust. Subject to the terms of the relevant
Supplemental Deed, the Global Trust Manager must decide
what information is to be recorded in the register, in
consultation with the Issuer Trustee. A complete copy of
the register (or part of it) must be provided to the
Issuer Trustee within three Business Days after request.
The Issuer Trustee is entitled to rely on and assume the
accuracy of the register.
Transfers
23.2 The Unitholders may transfer Units in accordance with the
Supplemental Deed for the relevant Trust. Transfers must
be in a form approved by the Global Trust Manager and be
presented for registration duly stamped, together with the
relevant Unit certificate (if any). A transfer is not
effective until registered. The Global Trust Manager may
refuse to register any transfer of a Unit in its absolute
discretion.
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Death, legal disability
23.3 If a Unitholder of a Trust dies or becomes subject to a
legal disability such as bankruptcy or insanity, only the
survivor (in the case of joint holders) or the legal
personal representative (in any other case) will be
recognised as having any claim to Units registered in the
Unitholder's name.
Deductions
23.4 The Issuer Trustee and Global Trust Manager may deduct
from any amount to be paid to a Unitholder any amount of
Tax (or an estimate of it) which they are required or
authorised to deduct in respect of that payment by law or
by this deed or which the Global Trust Manager considers
should be deducted.
24 Rights and liabilities of Global Trust Manager and Issuer Trustee
-------------------------------------------------------------------------------
Holding Units
24.1 The Issuer Trustee and its Related Entities may hold any
Unit issued in respect of a Trust.
Other capacities
24.2 None of the:
(a) Issuer Trustee;
(b) Global Trust Manager;
(c) Related Entities of the Issuer Trustee;
(d) Related Entities of the Global Trust Manager;
(e) directors or officers of the Issuer Trustee or its
Related Entities;
(f) directors or officers of the Global Trust Manager or
its Related Entities;
(g) shareholders of the Issuer Trustee or its Related
Entities; or
(h) shareholders of the Global Trust Manager or its
Related Entities,
is prohibited from:
(A) subscribing for, purchasing, holding, dealing in
or disposing of Notes;
(B) at any time:
(i) contracting with;
(ii) acting in any capacity as representative or
agent for; or
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(iii) entering into any financial, banking,
agency or other transaction with,
any other of them in any capacity (including,
without limitation, themselves in another
capacity), the Security Trustee, any other party
to a Transaction Document, or any Unitholder,
Secured Creditor or Noteholder;
(C) being interested in any contract or transaction
referred to in paragraph (B); or
(D) doing anything which it could do if the Issuer
Trustee or the Global Trust Manager was not party to
this deed or the other Transaction Documents
(provided the Transaction Documents are complied
with).
None of the persons mentioned is liable to account to the
Secured Creditors, the Unitholders or the Noteholders for
any profits or benefits (including, without limitation,
bank charges, commission, exchange brokerage and fees)
derived in connection with any contract or transaction
referred to above.
The preceding provisions of this clause 24.2 only apply if
the Issuer Trustee or the Global Trust Manager (as the
case may be), in connection with the action, contract or
transaction, acts in good faith to the Secured Creditors
and the Unitholders as a whole.
Exercise of discretion
24.3 Without limiting clause 24.2, the Issuer Trustee and any
Related Entity of the Issuer Trustee may perform different
roles in connection with the Transaction Documents, including
roles as trustee, security trustee, registrar, paying agent,
shareholder, beneficiary, and notwithstanding that interests of
or duties to the Issuer Trustee in respect of those roles may
conflict with interests or duties of any Unitholder or Secured
Creditor of a Trust. The Issuer Trustee and each Related Entity
of the Issuer Trustee will have no liability to any person for
assuming different roles or for any use, non-use or
communication of any information as contemplated by this
clause. This clause 24.3 is subject to the requirement that the
Issuer Trustee acts in good faith regarding the Unitholders and
Secured Creditors of each Trust in exercising any powers or
rights or taking any action of the kind permitted under this
clause.
24.4 Subject to the terms of the Transaction Documents, the Issuer
Trustee and the Global Trust Manager may each decide how and
when to exercise their powers in their absolute discretion.
25 Liability of the Unitholders and Noteholders
-------------------------------------------------------------------------------
Liability limited
25.1 Subject to clause 21.6, the liability of the Unitholders
and the Noteholders in respect of a Trust is limited to
the application price or Issue Price (as the case may be)
paid or agreed to be paid for a Unit or
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Note. No Unitholder or Noteholder is under any obligation
to indemnify the Issuer Trustee or the Global Trust
Manager if there is a deficiency in the Net Assets of a
Trust or meet the claim of any creditor of the Issuer
Trustee or the Global Trust Manager in respect of that
Trust.
26 Remuneration and expenses
-------------------------------------------------------------------------------
Global Trust Manager
26.1 The Global Trust Manager is entitled to a fee, in respect
of a Trust, in an amount agreed from time to time between
the Issuer Trustee and the Global Trust Manager in respect
of that Trust. Such fee accrues on a daily basis and is to
be calculated in relation to, and paid from, the Assets of
the relevant Trust in accordance with the Supplemental
Deed for that Trust.
Issuer Trustee
26.2 The Issuer Trustee is entitled to a fee, in respect of a
Trust, in an amount agreed between the Issuer Trustee and
the Global Trust Manager in respect of that Trust from
time to time. Such fee accrues on a daily basis and is to
be calculated in relation to, and paid from, the Assets of
the relevant Trust in accordance with the Supplemental
Deed for that Trust.
Expenses
26.3 All liabilities and expenses (except general overhead
costs and expenses) incurred reasonably and in good faith
by the Issuer Trustee or the Global Trust Manager in
connection with any Trust or in performing their
obligations or exercising their powers under this deed are
payable or reimburseable out of the Assets of that Trust
in accordance with this clause. This includes (without
limitation) liabilities and expenses connected with:
(a) this deed and the formation of the Trust and any
Transaction Documents for that Trust;
(b) the sale, purchase, insurance, custody and any other
dealing with Assets;
(c) any proposed investment;
(d) the administration, management or promotion of the
Trust or its Assets and Liabilities (including the
issuance of Notes);
(e) convening and holding meetings of Noteholders, the
implementation of any resolutions and communications
with Noteholders;
(f) Tax (including Taxes assessed on the income of the
Trust, provided it is not on the personal account of
the Issuer Trustee or the Global Trust Manager) and
bank fees;
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(g) the engagement of agents, Valuers, barristers,
solicitors, legal practitioners, contractors,
brokers, qualified advisers and any other person
engaged in accordance with this deed;
(h) preparation and audit of the taxation returns and
accounts of the Trust;
(i) subject to clauses 13.9 and 15.9, termination of the
Trust and the retirement or removal of the Issuer
Trustee or Global Trust Manager and the appointment
of a new trustee or manager;
(j) any court proceedings, arbitration or other dispute
concerning the Trust including proceedings against
the Issuer Trustee or the Global Trust Manager by the
other of them (except to the extent that the person
incurring the expenses is found by a court to be
fraudulent, in breach of trust (in the case of the
Issuer Trustee only) or to have been negligent or in
material breach of its obligations in which case any
expenses reimbursed under this clause 26.3(j) must be
repaid to the extent the expenses are referable to
the fraud, breach of trust, material breach of
obligations or negligence);
(k) any other costs, liabilities or expenses incurred in
respect of, or in connection with, any Transaction
Document; and
(l) any expenses payable to each Current Rating Agency.
All such costs, liabilities and expenses are payable on a
full indemnity basis (or, in the case of legal costs and
disbursements, charged at the usual commercial rates of
the relevant legal services provider).
Deferral
26.4 The Issuer Trustee and the Global Trust Manager may with
the other's approval defer reimbursement of any or all
expenses under clause 26.3 for an agreed period.
GST
26.5 The fees set out in clauses 26.1 and 26.2 are inclusive of
GST. The supplier of the fee will provide the Global Trust
Manager and the Issuer Trustee with any reasonable
documentation required for GST purposes so as to enable
the Global Trust Manager and the Issuer Trustee to receive
an input tax credit or tax return for GST purposes.
Application
26.6 To the extent permitted by law, money received in
connection with this deed or the Supplemental Deed in
respect of a Trust is to be applied in the order set out
in the Supplemental Deed for that Trust.
27 Notices
-------------------------------------------------------------------------------
Notices
27.1 Subject to clauses 27.4 and 27.5, any notice, approval,
consent or other communication in connection with this
deed:
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(a) must be given by an Authorised Person of the relevant
party;
(b) must be in writing; and
(c) must be left at the address of the addressee or sent
by prepaid ordinary post to the address of the
addressee or sent by facsimile to the facsimile
number of the addressee, or sent by e-mail to the
e-mail address of the addressee specified in clause
27.2 or any other address, facsimile number or e-mail
address any party may from time to time notify to the
other parties as its address for service of
communications pursuant to this deed.
Initial addresses
27.2 The initial address and facsimile numbers of the Issuer
Trustee and the Global Trust Manager are:
Issuer Trustee:
Address: Xxxxx 0
00 Xxxxxx Xxxxxx
Xxxxxx XXX 0000
Facsimile: (00) 0000 0000
Attention: Manager, Securitisation
E-mail: as notified from time to time
Global Trust Manager:
Address: Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Facsimile: (00) 0000 0000
Attention: Manager, Group Funding
E-mail: as notified from time to time
Time effective
27.3 Unless a later time is specified in it, a notice,
approval, consent or other communication takes effect from
the time it is received.
Receipt
27.4 A letter, facsimile or e-mail is taken to be received:
(a) in the case of a posted letter, on the third
(seventh, if posted to or from a place outside
Australia) day after posting;
(b) in the case of a facsimile, on production of a
transmission report by the machine from which the
facsimile was sent which indicates that the facsimile
was sent in its entirety to the facsimile number of
the recipient notified for the purpose of this
clause; and
(c) in the case of an e-mail, on receipt by the sender of
an e-mail from the recipient stating that the e-mail
was delivered in its entirety and the contents and
attachments of the e-mail have been received.
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However, if the time of deemed receipt of any notice is
not before 4.00 p.m. (local time at the address of the
recipient) on a Business Day it is deemed to have been
received at the commencement of business on the next
following Business Day.
27.5 All notices with respect to the Unitholders or the
Noteholders are valid if despatched by prepaid ordinary
post (airmail if posted to a place outside Australia) to
the Unitholders or the Noteholders at their registered
office (or, in the case of Registered Noteholders, to the
address specified in the Register and, in the case of
joint holders, to the person whose name first appears in
the Register ). Such notice is taken to be received on the
third (seventh, if posted to a place outside Australia)
day after posting.
27.6 Where a notice or other communication is to be provided
under this deed to a Noteholder of a Note in bearer form,
the notice may be given in accordance with the relevant
Note Trust Deed.
28 Amendments to this deed and Supplemental Deed
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Amending power
28.1 Subject to this clause 28.1 and to any approval required
by law and by clause 28.2, and provided that 10 Business
Days prior notice of the proposed amendment has been given
to the Current Rating Agency, the Issuer Trustee and the
Global Trust Manager by deed may amend, add to or revoke
any provision of this deed (including this clause 28.1) as
it applies to any Trust or any provision of any
Supplemental Deed for the Trust if the amendment, addition
or revocation:
(a) in the reasonable opinion of the Issuer Trustee or of
legal counsel appointed by the Issuer Trustee is
necessary or expedient to comply with or be
consistent with the provisions of any statute,
ordinance, regulation or by-law or with the
requirement of any statutory authority;
(b) in the opinion of the Issuer Trustee is made to
correct a manifest error or is of a formal, technical
or administrative nature only;
(c) in the opinion of the Issuer Trustee or the Global
Trust Manager will enable the provisions of this deed
or the Supplemental Deed to be more conveniently,
advantageously, profitably or economically
administered;
(d) in the opinion of the Issuer Trustee is otherwise
desirable for any reason; or
(e) is considered by the Issuer Trustee not to be
materially prejudicial to the interests of the
Noteholders as a whole or the interests of any
individual Noteholder or group of Noteholders; or
(f) in the reasonable opinion of the Issuer Trustee or of
legal counsel appointed by the Issuer Trustee is
required by, is a consequence of, is consistent with
or is appropriate or expedient
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as a consequence of, any amendment to any statute,
regulation or requirements of any Governmental Agency
(including, without limitation, any amendment,
addition or revocation which is in the opinion of the
Issuer Trustee appropriate or expedient as a result
of any amendment to any legislation dealing with, or
associated with, taxation or any ruling by the
Commissioner or Deputy Commissioner of Taxation or
any government announcement or statement that has or
may have the effect of altering the manner or basis
of taxation of trusts generally or of trusts similar
to any of the Trusts).
Consent required
28.2 If in the reasonable opinion of the Issuer Trustee any
amendment, addition or revocation referred to in clause
28.1(c) or clause 28.1(d) will be or is likely to become
prejudicial to the interests of Noteholders of a
particular class in respect of the Trust or to the
interests of all Noteholders in respect of the Trust, the
amendment, addition or revocation may be effected only if
in accordance with clause 28.3 or 28.4 (as the case may
be).
Amendments prejudicial to Noteholders of a Class
28.3 Subject to clause 28.4, if in the reasonable opinion of
the Issuer Trustee any amendment, addition or revocation
referred to in clause 28.1(c) or clause 28.1(d) will be or
is likely to become prejudicial to the interests of
Noteholders of a particular class, the amendment, addition
or revocation may only be effected if the relevant
Noteholders pass an Extraordinary Resolution approving
such amendment, addition or revocation in accordance with
this deed.
Amendments prejudicial to all Noteholders
28.4 If in the reasonable opinion of the Issuer Trustee, any
amendment, addition or revocation referred to in clause
28.1(c) or clause 28.1(d) will be or is likely to become
prejudicial to the interests of all Noteholders in respect
of the Trust:
(a) the amendment, addition or revocation may only be
effected if the relevant Noteholders pass an
Extraordinary Resolution approving such amendment,
addition or revocation in accordance with this deed;
and
(b) there will not be a separate Extraordinary Resolution
required for each class of Noteholders pursuant to
clause 28.3.
28.5 The Issuer Trustee will be entitled to assume that any
proposed alteration, addition or revocation referred to in
clause 28 will not be materially prejudicial to the
interests of a Class of Noteholders or all Noteholders if
each of the Current Rating Agencies confirms in writing
that if the alteration, addition or revocation is effected
this will not lead to a reduction, qualification or
withdrawal of the then rating given, respectively, to the
Class of Notes, or to each Class of Notes, by the Current
Rating Agency.
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29 Tax reform
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29.1 The parties acknowledge that:
(a) the Commonwealth Government of Australia has
announced its intention that trusts be taxed as
companies from [ ];
(b) it is not known whether the Trusts will be excluded
from this new regime;
(c) it is in the interest of all parties, including the
Issuer Trustee, the Noteholders and the Residual
Income Unitholders, that:
(i) the Issuer Trustee always be in a position to
pay any tax liability when due;
(ii) the payment of tax by the Issuer Trustee must
not affect the amount of principal or interest
payable on the rated Notes or the timing of such
payments; and
(iii) the rating of the Notes be maintained; and
(d) no draft legislation to implement this change has
been introduced into the Australian Federal
Parliament, and it is not conclusively known when or
whether tax will be payable (by the Trusts) or what,
if any, transition provisions will apply.
29.2 If and when draft legislation is introduced into
Australian Federal Parliament, and the result of that
draft legislation if it becomes law will be that the
Issuer Trustee will become liable to pay tax on the Net
Trust Income of the Trust, or any part of it, then the
Global Trust Manager shall promptly consult with the
Issuer Trustee and each Current Rating Agency to determine
what changes, if any, are necessary to the cashflow
methodology and/or to the Transaction Documents to achieve
the objective referred to in clause 29.1(c) (the
"Objective");
(a) within a reasonable time of the draft legislation
being introduced into Parliament (or such longer time
as the Issuer Trustee and each Current Rating Agency
permit) the Global Trust Manager shall provide a
written recommendation to the Issuer Trustee and a
draft amending deed ("Amending Deed") that if
executed will achieve the Objective; and
(b) upon the Issuer Trustee being notified that the draft
Amending Deed will achieve the Objective (and in this
regard the Issuer Trustee may rely (amongst others)
upon advice of tax lawyers) the Issuer Trustee and
the Global Trust Manager shall execute the Amending
Deed.
29.3 Provided that the Issuer Trustee and each Current Rating
Agency receives written advice from an experienced and
reputable tax lawyer or tax accountant to the effect that
if the cashflow methodology, as amended by the Amending
Deed, is followed the Objective will be met, and each
Current Rating Agency confirms the change in Tax law or
the
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Amending Deed will not have an Adverse Rating Effect in
respect of the relevant Trust:
(a) the Issuer Trustee shall not be obliged to obtain the
consent of any Noteholder, Secured Creditor or
Residual Income Unitholder to the Amending Deed;
(b) subject to its terms, the Amending Deed shall be
effective when executed, and may:
(i) permit the Issuer Trustee to accumulate a
reserve out of moneys that would otherwise be
payable to the Residual Income Unitholders; and
(ii) provide for Tax to be paid out of moneys that
would otherwise have been payable to the
Residual Income Unitholders; and
(c) without limiting this clause 29, in formulating a
proposal to meet the Objective, the Global Trust
Manager shall have regard to the impact of any change
to the cashflow methodology to the Residual Income
Unitholders, and shall consider proposals made by the
Residual Income Unitholders that will enable the
Issuer Trustee to meet the Objective.
30 Unitholders and Secured Creditors bound by deed
-------------------------------------------------------------------------------
The terms and conditions of this deed as duly altered,
modified, added to or cancelled from time to time are
binding on the Issuer Trustee, the Global Trust Manager,
each Unitholder, each Secured Creditor and all persons
claiming through any of them respectively as if that
person were a party to this deed.
31 Miscellaneous
-------------------------------------------------------------------------------
Certificate
31.1 A certificate signed by the Issuer Trustee or its
solicitors about a matter or about a sum payable to the
Issuer Trustee in connection with this deed or a
Supplemental Deed is sufficient evidence of the matter or
sum stated in the certificate unless the matter or sum is
proved to be false.
Exercise of rights
31.2 The Issuer Trustee or an attorney appointed under this
deed may exercise a right, power or remedy at its
discretion, and separately or concurrently with another
right, power or remedy. A single or partial exercise of a
right, power or remedy by the person does not prevent a
further exercise of that or an exercise of any other
right, power or remedy. Failure by the person to exercise
or delay in exercising a right, power or remedy does not
prevent its exercise. The person with the right, power or
remedy is not liable for any loss caused by its exercise,
attempted exercise, failure to exercise or delay in
exercising it except in
55
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the case of its fraud or wilful default or, in the case of
the Issuer Trustee, negligence, fraud or breach of trust.
Waiver and variation
31.3 A provision of or a right created under this deed may not
be waived or varied except in writing signed by the party
or parties to be bound.
Supervening legislation
31.4 Any present or future legislation which operates to vary
the obligations of the Issuer Trustee in connection with
this deed with the result that the Issuer Trustee's
rights, powers or remedies are adversely affected
(including, without limitation, by way of delay or
postponement) is excluded except to the extent that its
exclusion is prohibited or rendered ineffective by law.
Approvals and consent
31.5 The Issuer Trustee, the Global Trust Manager or an
attorney appointed under this deed may give conditionally
or unconditionally or withhold its approval or consent in
its absolute discretion, unless this deed expressly
provides otherwise.
Remedies cumulative
31.6 The rights, powers and remedies provided in this deed are
cumulative with and not exclusive of the rights, powers or
remedies provided by law independently of this deed.
Indemnities
31.7 Each indemnity in this deed is a continuing obligation,
separate and independent from the other obligations of the
Issuer Trustee and the Global Trust Manager and survives
termination of this deed. It is not necessary for the
Issuer Trustee or the Global Trust Manager to incur
expense or make payment before enforcing a right of
indemnity conferred by this deed.
Time of the essence
31.8 Time is of the essence in this deed in respect of an
obligation of the Issuer Trustee to pay money.
Receipts
31.9 The receipt of a Receiver, or an Authorised Person of the
Issuer Trustee, releases the person paying money to the
Receiver or the Issuer Trustee in connection with this
deed from:
(a) liability for the money paid or expressed to be
received; and
(b) being concerned to see to its application or being
answerable or accountable for its loss or
misapplication.
Acknowledgment
31.10 The parties acknowledge and agree that the Issuer Trustee
and the Global Trust Manager in exercising their powers
and discretions under this deed, and in performing their
obligations under this deed, must act in accordance with
their duties and obligations under this deed, the Deed of
Charge in respect of each Trust, the Master Trust Deed and
the
56
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Supplemental Deed in respect of each Trust and may
exercise such powers and discretions as provided in this
deed, the Deed of Charge in respect of each Trust, the
Master Trust Deed and the Supplemental Deed in respect of
each Trust and (without limitation) in forming any opinion
may obtain and act upon the advice of persons who are not
parties to this deed.
31.11 The parties acknowledge that they are bound by the terms
of this deed, the Master Trust Deed, the Deed of Charge in
respect of each Trust and the Supplemental Deed in respect
of each Trust.
Disclosure of information
31.12 Subject to this deed, the Issuer Trustee is not required
(unless ordered so to do by a court of competent
jurisdiction) to disclose to any Unitholder, Secured
Creditor or any other person confidential, financial or
other information made available to the Issuer Trustee in
connection with this deed.
Rights cumulative
31.13 The rights, powers and remedies provided in this deed are
cumulative and not exclusive of the rights, powers or
remedies provided by law independently of this deed.
Signatures
31.14 The Issuer Trustee and the Global Trust Manager may rely
on the validity of any signature on any transfer, form of
application or other instrument or document unless the
Issuer Trustee or the Global Trust Manager (as the case
may be) has reasonable grounds to believe that the
signature is not genuine. Neither the Issuer Trustee nor
the Global Trust Manager is liable to make good out of its
own funds any loss incurred by any person if a signature
is forged or otherwise fails to bind the person whose
signature it purports to be or on whose behalf it purports
to be made. Any such loss, subject to any right of
reimbursement from any other person (including the Global
Trust Manager) is to be borne by the relevant Trust in
respect of which the loss is incurred.
Meetings
31.15 A reference in this deed to a meeting of Secured
Creditors of a Trust is a reference to a meeting of
Secured Creditors of the Trust conducted in accordance
with the provisions of the relevant Deed of Charge.
32 Governing law
-------------------------------------------------------------------------------
Governing Law
32.1 This deed and each Trust are governed by the law in force
in the Australian Capital Territory and the rights,
liabilities and obligations of the Global Trust Manager,
the Issuer Trustee, the Unitholders and the Secured
Creditors are governed by the laws in force in the
Australian Capital Territory.
Submission to jurisdiction
32.2 Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of the Australian
Capital Territory and courts of
57
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appeal from them. Each party waives any right it has to
object to an action being brought in those courts
including, without limitation, by claiming that the action
has been brought in an inconvenient forum or that those
courts do not have jurisdiction.
Service
32.3 Without preventing any other mode of service, any document
in an action (including, without limitation, any writ of
summons or other originating process or any third or other
party notice) may be served on any party by being
delivered to or left for that party at its address for
service of notices under clause 27.
33 Limited recourse
-------------------------------------------------------------------------------
Clause 2 of the Definitions Schedule applies to this deed
as if set out in full in it (with any consequential
changes as are necessary to give effect to that clause in
this deed).
34 Counterparts
-------------------------------------------------------------------------------
This deed may consist of a number of counterparts and the
counterparts taken together constitute one and the same
instrument.
EXECUTED as a deed in the Australian Capital Territory.
58
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Schedule 1 Notice of Creation of Trust
--------------------------------------------------------------------------------
To: Perpetual Trustee Company Limited ("Issuer Trustee")
From: National Global MBS Manager Pty Ltd ("Global Trust
Manager")
Under clause 3.1 of the Master Trust Deed dated [ ]
between the Issuer Trustee and the Global Trust Manager
establishing the National RMBS Trusts (as amended from
time to time) ("Master Trust Deed") the Global Trust
Manager gives notice of the creation of a Trust under the
Master Trust Deed to be known as the [ ] [Trust X-Y] Trust
[or such other name as the Global Trust Manager and the
Issuer Trustee have agreed under clause 2.7 of the Master
Trust Deed].
The [ ] [Trust X-Y] Trust will be a Trust for the purposes
of the Master Trust Deed.
This Notice of Creation of Trust is accompanied by $10 in
accordance with clause 3.1(b) of the Master Trust Deed.
The Residual Capital Unitholder of the Trust is [ ] and
the Residual Income Unitholder of the Trust is [ ] each of
whom has contributed $5 of the accompanying $10 as the
initial application price of their respective units.
The above sum of $10 will vest in the Issuer Trustee and
be held by the Issuer Trustee on and subject to the
trusts, terms and conditions of the Master Trust Deed and
the Supplemental Deed dated [ ] in respect of this Trust
and will be invested by the Issuer Trustee in accordance
with the provisions of the Supplemental Deed and the
Master Trust Deed.
Terms defined for the purposes of the Master Trust Deed
have the same meaning when used in this Notice of Creation
of Trust.
Dated:
For and on behalf of the Global Trust Manager
...........................................................
Authorised Person
For and on behalf of the Issuer Trustee
...........................................................
Authorised Person
59
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Schedule 2 Receivables Transfer Direction
--------------------------------------------------------------------------------
To: Perpetual Trustee Company Limited as trustee of the [ ] Trust
[and [ ]] Trust
("Issuer Trustee")
From: National Global MBS Manager Pty Ltd ("Global Trust Manager")
0 Xxxxxxxxx to acquire Receivables
Under clause 5.2 of the Master Trust Deed dated [ ] (as
amended from time to time) establishing the National RMBS
Trusts ("Master Trust Deed"), the Global Trust Manager
proposes and directs in this direction ("Direction") that
the Issuer Trustee on [ ] will:
(a) [offer to [ ] to cease to hold as trustee of the [ ]
Trust, and dispose of to [ ], the Assets specified in
Annexure A;] or [hold as trustee of the [ ] Trust
("Trust") on the terms of the Master Trust Deed the
benefit of the portfolio of Assets specified in
Annexure A ("Portfolio of Assets");] and
(b) [receive from [ ] ("Relevant Acquirer") the principal
amount of the Housing Loans relating to the Portfolio
of Assets at [date] being $[ ].]
2 Global Trust Manager's Certifications
The Global Trust Manager certifies to the Issuer Trustee
that:
(a) this direction complies with the Master Trust Deed
and the relevant Supplemental Deed dated [ ];
(b) after due enquiry it believes the Issuer Trustee as
trustee of both the [ ] Trust and the [ ] Trust will
be able to satisfy all its present and future
obligations and liabilities having regard to any
Notes to be issued, any other Borrowings, any Assets
to be acquired and other anticipated rights,
liabilities and obligations of the Issuer Trustee.
Interpretation
Each expression used in this Direction that is not defined
has the same meaning as in the [ ] Master Definitions
Schedule dated [ ] between the Issuer Trustee, the
Security Trustee and the Global Trust Manager.
Dated:
For and on behalf of [ ]
Authorised Person
60
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Annexure A
Portfolio of Assets
[Specify Portfolio of Assets]
61
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Schedule 3 Issue Notice
--------------------------------------------------------------------------------
TO: [ ]
Dear Ladies and Gentlemen:
[ ] Trust
[ ] ("Global Trust Manager") refers to the Master Trust
Deed dated [ ] and the Supplemental Deed referable
to the [ ] Trust dated [ ] ("Master Trust Deed").
Notes
Pursuant to clause 9.1 of the Master Trust Deed, the
Global Trust Manager hereby notifies the Issuer Trustee of
the details of the issue of Notes on the following terms:
(a) Class;
(b) Name;
(c) Issue Date;
(d) Maturity Date;
(e) the number of Notes to be issued;
(f) the initial Face Value of those Notes;
(g) the Notes are [interest bearing/not interest bearing]
and the interest is [fixed/floating/at a discount]
(h) the [Margin] is [ ];
(i) the [Payment Date] is [ ];
(j) the Notes are secured by [ ];
(k) the Support Facilities are [ ];
(l) [insert Sale Notice details];
(m) the minimum subscription for the Notes is [ ];
(n) [the currency of the Note];
(o) [others].
62
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Global Trust Manager's Certifications
For the purposes of clause 9.2 of the Master Trust Deed,
the Global Trust Manager confirms that:
(a) based on the anticipated Assets of the Trust at the
date of this Issue Notice, the Issuer Trustee should
(and the Global Trust Manager reasonably believes
that the Issuer Trustee will) be able to meet its
anticipated obligations and Liabilities in respect of
the Trust as and when they fall due;
(b) the terms of the Master Trust Deed with respect to
the proposed issue or drawing have been, and will on
the Issue Date or the date of the drawing continue to
be, complied with; and
(c) the acquisition of the Assets (if any) and the
characteristics of the Assets are consistent with all
information memoranda, notices, reports, statements
and the like given to Secured Creditors.
Yours faithfully
For and on behalf of the Global Trust Manager
63
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Schedule 4 Meetings of Noteholders
--------------------------------------------------------------------------------
1 A meeting of Noteholders of a Trust must be convened
by notice in writing sent to every Noteholder of that
Trust entitled to attend and vote at the meeting at
least 7 Business Days before the date of the meeting.
The notice of meeting must include a proxy form. The
notice of meeting need not set out the terms of any
resolution to be proposed, but must state the general
nature of the business to be transacted at the
meeting. Either the Global Trust Manager or the
Issuer Trustee may convene a meeting but must first
give the other at least 10 Business Days notice of
its intention to do so.
Non-receipt
2 If a Noteholder does not receive a notice (including
if notice was accidentally omitted to be given to
them) the meeting is not invalidated.
Quorum
3 The quorum for a meeting of a Trust is Noteholders
present in person or by proxy together holding
between them at least 67% of the Invested Amount of
the Notes for that Trust.
No quorum
4 If a quorum is not present within 30 minutes after
the scheduled time for the meeting, the meeting is:
(a) if convened on the requisition of Noteholders -
dissolved; or
(b) otherwise - adjourned to such place and time as
the Global Trust Manager decides in consultation
with the Issuer Trustee.
At any adjourned meeting, those Noteholders present
in person or by proxy holding between them at least
50% of the Invested Amount of the Notes constitute a
quorum.
Chairman
5 A person may be appointed as the chairman of a
meeting of Noteholders of a Trust (the "Chairman") by
an ordinary resolution of the Noteholders of that
Trust present at the meeting or, in the absence of
such an appointment, nominated by the Issuer Trustee.
The Chairman need not be a Noteholder.
Adjournment
6 The Chairman has power to adjourn a meeting for any
reason to such place and time as the Chairman thinks
fit.
Voting
7 Voting at a meeting of Noteholders of a Trust is by a
show of hands, unless a poll is duly demanded or the
Resolution proposed is required by this deed or by
law to be decided by a
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percentage of all Notes. Each Noteholder of the Trust
present in person or by proxy has one vote on a show
of hands. On a poll, each Noteholder of the Trust
present in person or by proxy has one vote for every
$10 of the Invested Amount (rounded down to the
nearest $10) in respect of that Noteholder. In the
case of joint holders, only the person whose name
appears first in the register may vote.
Poll
8 A poll may be demanded before or on declaration of
the result of a show of hands by either:
(a) the Chairman; or
(b) at least 1 Noteholder present in person or by
proxy.
Casting vote
9 If votes are equal, whether on a show of hands or on
a poll, the Chairman has a casting vote in addition
to the vote or votes (if any) to which the Chairman
is entitled as a Noteholder.
Proxies
10 A Noteholder may be represented at a meeting by
proxy. Proxies are governed by Part 2G.4 Division 5
of the Corporations Act as if all meetings were
convened under Part 2G.4 Division 5. The Issuer
Trustee is not obligated to enquire whether a proxy
has been validly given. A proxy expires after 12
months. A proxy is still valid after it is revoked or
after the Noteholder who gave it dies or becomes
under a legal disability, unless the Issuer Trustee
has received written notice of that fact before the
meeting at which the proxy is used.
Representatives
11 A body corporate may be represented at a meeting by a
person appointed in the manner provided in section
250D of the Corporations Act. The person may exercise
on the body's behalf the same powers as the body
could if it were a natural person and the body is
taken to be present at the meeting in person.
Other attendees
12 The Issuer Trustee, the Global Trust Manager, the
Unitholders and the Auditor may attend and speak at
any meeting, or invite any other person to attend and
speak.
Resolutions binding
13 A Resolution in respect of a Trust binds all
Noteholders of the Trust, whether or not they are
present at the meeting. No objection may be made to
any vote cast unless the objection is made at the
meeting. The decision of the Chairman on any matter
is final.
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Minutes
14 The minutes of a meeting of Noteholders signed by the
Chairman of the meeting are conclusive evidence of
the matters stated in them unless the contrary is
proved.
Written resolutions
15 Notwithstanding the provisions of this schedule, a
Resolution of the Noteholders of a Trust (including
an Extraordinary Resolution) may be passed, without
any meeting or previous notice being required, by an
instrument or instruments in writing which has or
have:
(a) in the case of a resolution (including an
Extraordinary Resolution) of the Noteholders of
a Trust, been signed by all Noteholders of the
Trust; and
(b) any such instrument shall be effective upon
presentation to the Issuer Trustee for entry in
the records referred to in paragraph 13.
Powers of a meeting
16
(a) Subject to paragraph (b) below, a meeting of the
Noteholders of a Trust shall, without prejudice
to any rights or powers conferred on other
persons by the Transaction Documents, have power
exercisable by Extraordinary Resolution:
(i) to sanction any action that the Issuer
Trustee or the Global Trust Manager
proposes to take to enforce the provisions
of any Transaction Documents relating to
the Trust;
(ii) to sanction any proposal by the Global
Trust Manager or the Issuer Trustee for any
modification, abrogation, variation or
compromise of, or arrangement in respect
of, the rights of the Noteholders against
the Issuer Trustee or the Global Trust
Manager, whether such rights arise under
any Transaction Document or otherwise;
(iii) to sanction the exchange or substitution of
Notes for or the conversion of Notes into
any other obligations or securities of the
Issuer Trustee or any other body corporate
formed or to be formed;
(iv) subject to the Master Trust Deed and the
relevant Supplemental Deed, to consent to
any alteration, addition or modification of
the Master Trust Deed or the relevant
66
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Supplemental Deed which is proposed by the
Issuer Trustee or the Global Trust Manager;
(v) to discharge or exonerate the Issuer
Trustee or the Global Trust Manager from
any liability in respect of any act or
omission for which it may become
responsible under any Transaction Document
relating to the Trust; and
(vi) to authorise the Issuer Trustee, the Global
Trust Manager or any other person to concur
in and execute and do all such documents,
acts and things as may be necessary to
carry out and give effect to any
Extraordinary Resolution.
(b) A meeting of the Noteholders of the Trust shall
not have power to, nor shall any resolution
submitted to the meeting propose or have the
effect of:
(i) removing the Issuer Trustee or Global Trust
Manager from office;
(ii) interfering with the management of any
Trust;
(iii) winding-up or terminating a Trust, except
as contemplated by the Master Trust Deed;
(iv) altering the Authorised Investments of a
Trust; or
(v) altering the terms upon which any Notes are
issued (subject to the specific provisions
of paragraph (a) above).
67
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Schedule 5 Form of Acknowledgement
--------------------------------------------------------------------------------
To: .........................................(Name)
.........................................(Address)
.........................................
.........................................
Register: .........................................
Number of Notes:...................................
Final Maturity Date:...............................
Face Value of each Note:...........................
Coupon (if applicable):............................
Payment Dates:.....................................
This is to acknowledge that the person named above has
been entered in the Register of Noteholders in respect of
the abovementioned Notes ("Notes") issued by Perpetual
Trustee Company Limited (ABN 42 000 001 007) ("Issuer
Trustee") as trustee of the [ ] Trust ("Trust") as
constituted by the Supplemental Deed dated [ ] under
the terms of the Master Trust Deed dated [ ]) (together
the "Master Trust Deed") each between the Trustee and
National Global MBS Manager Pty Ltd (ABN 36 102 668 226)
("Global Trust Manager"). The Notes described above are
registered and held by the Noteholder(s) named above
subject to the terms and conditions of the Master Trust
Deed and the Master Security Trust Deed ("Security Trust
Deed") between the Issuer Trustee, Global Trust Manager,
P. T. Limited (ABN 67 004 454 666)("Security Trustee") and
the Bank of New York, New York Branch ("Note Trustee").
A tax file number has/has not been obtained from the
person named above.
Copies of the Master Trust Deed and Master Security Trust
Deed are available for inspection by appointment at the
office of the Global Trust Manager at [ ].
None of the Global Trust Manager, Security Trustee nor the
Issuer Trustee is under any obligation at any time to
repurchase Notes from Noteholders.
The Acknowledgment is not a certificate of title and the
Register of Noteholders on which these Notes are
registered is the only conclusive evidence of the title of
the abovementioned person to the Notes.
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The Issuer Trustee's liability to make payments on the
Notes is limited under the Master Trust Deed and the
Master Security Trust Deed to its right of indemnity from
the assets of the Trust. The Issuer Trustee will (subject
to the terms of the Master Trust Deed) only be liable in
respect of the Notes for anything beyond its actual right
of indemnity from the assets of the Trust in respect of
any negligence, fraud, or breach of trust on the part of
the Issuer Trustee.
None of the Global Trust Manager, the Security Trustee or
the Issuer Trustee guarantees the repayment of the Face
Value of, or the Coupon due on, the Notes.
Transfers of the Notes must be made pursuant to a transfer
form as are available from the Global Trust Manager at
[ ]. Executed transfer forms of the Notes must be
lodged with the Issuer Trustee and be accompanied by this
Acknowledgment.
Each expression in this Acknowledgment that is not defined
herein has the same meaning as in the Master Trust Deed.
Dated
For and on behalf of
[Issuer Trustee]
.............................. .............................
Authorised Person Authorised Person
69
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Schedule 6 Register of Noteholders
-------------------------------------------------------------------------------
Register
1 The Issuer Trustee must, in respect of each Trust, keep an
up to date Register in respect of that Trust. The Issuer
Trustee must enter into the Register for a particular
Trust:
(a) the name of the Trust;
(b) the names and addresses of the Noteholders;
(c) the number of Notes held by each Noteholder;
(d) the date on which each Noteholder was first
registered in the Register;
(e) the date on which any person ceases to be a
Noteholder;
(f) the Coupon (if applicable) payable in relation to the
Note;
(g) the Final Maturity Date (if applicable) in relation
to the Note;
(h) the account into which any payments to a Noteholder
are to be paid (if applicable);
(i) the Issue Price in relation to the Notes;
(j) the Face Value of the Notes;
(k) the Invested Amount in relation to the Notes; and
(l) any other particulars the Global Trust Manager or the
Issuer Trustee agree are desirable or as required
under the relevant Supplemental Deed.
Issuer Trustee not liable for mistake
2 The Issuer Trustee is not liable for any mistake in the
Register or in any purported copy except to the extent
that the mistake is attributable to the Issuer Trustee's
own fraud, negligence or breach of trust.
Global Trust Manager accept correctness
3 The Global Trust Manager is entitled to accept the
correctness of all information contained in the Register
and is not liable to any person for any error in it.
Inspection
4 The Global Trust Manager, or Noteholders and their
authorised representatives may inspect that part of the
Register which relates to the Noteholder free of charge at
any time when the Issuer Trustee's registered office is
required to be open and accessible to the public. The
Issuer Trustee shall give a copy of the Register or part
of it to the Global Trust Manager within three Business
Days of receipt of a request from the Global Trust
Manager.
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Change in information
5 A Noteholder must advise the Issuer Trustee of any change
to the information noted in the Register in respect of
that Noteholder. Upon receipt of such advice, the Issuer
Trustee must promptly update the information contained in
the Register and copy the updated information to the
Global Trust Manager.
Closure
6 The Issuer Trustee from time to time may close the
Register but no part of the Register may be closed for
more than 30 days in aggregate in any calendar year.
Notice of other interest
7 Except as otherwise provided in this deed, no notice of
any trust, whether express, implied or constructive, shall
be entered in the Register and neither the Issuer Trustee
nor the Global Trust Manager shall be affected by or
compelled to recognise (even when having notice of it) any
right or interest in any Note other than the Noteholders'
absolute right to the entirety of them and the receipt by
a Noteholder shall be a good discharge to the Issuer
Trustee and Global Trust Manager.
Information
8 The Global Trust Manager shall furnish the Issuer Trustee
with such information as the Issuer Trustee may reasonably
require to maintain the Register.
Closure to calculate entitlement
9 In order to calculate any payments due to Noteholders and
interest entitlements, the Register may be closed by the
Issuer Trustee from 4:30 pm on such Business Day as the
Global Trust Manager determines from time to time (not
exceeding five Business Days) and recommence at the
commencement of business on the Business Day immediately
following the day that such payments or interest
entitlements are payable.
Appointment of third party registrar
10 The Issuer Trustee, with the approval of the Global Trust
Manager, may cause the Register to be maintained by a
third party on its behalf and require that person to
discharge the Issuer Trustee's obligations under this deed
in relation to the Register. The Issuer Trustee is not
liable for any act or omission of such person provided the
Issuer Trustee has acted in good faith and without
negligence or breach of trust in selecting a person
competent to perform this function and in the appointment
of the person.
Conclusiveness of Register
11 An Acknowledgment is not a certificate of title as to
Notes and subject to the terms of the relevant Note the
Register is the only conclusive evidence of title to
Notes.
Worn out or lost Acknowledgment
12 If an Acknowledgment becomes worn out or defaced, then
upon production of it to the Issuer Trustee, a replacement
will be issued. If an
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Acknowledgment is lost or destroyed, and upon proof of
this to the satisfaction of the Issuer Trustee and the
provision of such indemnity as the Issuer Trustee
considers adequate, a replacement Acknowledgment will be
issued. A fee not exceeding $10 may also be charged by the
Issuer Trustee for the new Acknowledgment if it so
requires.
Rectification of Register
13 If:
(a) an entry is omitted from the Register; or
(b) an entry is made in the Register otherwise than in
accordance with this deed; or
(c) an entry wrongly exists in the Register; or
(d) there is an error or defect in any entry in the
Register; or
(e) a default is made or an unnecessary delay takes place
in entering into the Register that any person has
ceased to be the holder of a Note or any other
information,
the Issuer Trustee may rectify the same and the Issuer
Trustee is not liable for any loss, costs or liability
incurred as a result of any of the foregoing occurring
except to the extent that the loss, costs or liability is
the result of fraud, negligence or breach of trust on
behalf of the Issuer Trustee.
72
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Execution page
-------------------------------------------------------------------------------
SIGNED, SEALED AND DELIVERED )
by )
as attorney for PERPETUAL TRUSTEE )
COMPANY LIMITED )
under power of attorney dated )
)
in the presence of: )
)
.................................. )
Signature of witness )
)
.................................. )
Name of witness (block letters) )
)
.................................. ) .........................................
Address of witness ) By executing this deed the attorney
) states that the attorney has received no
.................................. ) notice of revocation of the power of
Occupation of witness ) attorney
SIGNED by )
)
)
on behalf of and SEALED AND )
DELIVERED by NATIONAL )
GLOBAL MBS MANAGER PTY )
LTD in the presence of: )
)
)
)
.................................. )
Signature of witness )
)
.................................. )
Name of witness (block letters) )
)
.................................. ) .........................................
Address of witness ) By executing this deed the signatory
) states that the signatory has received
.................................. ) no notice of revocation of the authority
Occupation of witness ) pursuant to which they execute this deed
-----------------------------------------------------
Dated [ ]
National RMBS Trusts
Consolidated
Master Trust Deed
Perpetual Trustee Company Limited
("Issuer Trustee")
National Global MBS Manager Pty Ltd
("Global Trust Manager")
Mallesons Xxxxxxx Xxxxxx
Solicitors
Governor Xxxxxxx Xxxxx
0 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Telephone (00) 0000 0000
Facsimile (00) 0000 0000
DX 000 Xxxxxx
Ref: CD3:SRF
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Contents Master Trust Deed
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1 Definitions and interpretation 1
Definitions Schedule 1
Interpretation 2
2 The Trusts 2
Issuer Trustee 2
Global Trust Manager 2
Declarations of trust 2
Assets vest in Issuer Trustee 2
Assets to be kept separate 2
Supplemental Deeds 3
Name of Trusts 3
Designation and discharge of Liabilities 3
Mixture of Assets 3
No limit to number of Trusts 3
3 Duration of the Trusts 3
Commencement 3
Termination 4
Procedure 4
Final Distribution 4
4 Interest of Unitholders 4
Entitlement to a Trust 4
Restrictions 5
Ranking 5
5 Transfers between Trusts 6
Power 6
Direction by Global Trust Manager 6
Required information 6
Conditions to acceptance 6
Effect of acceptance 7
Transfers 7
Transfer of rights 8
Adjustments 8
6 Title Perfection Event in respect of a Trust 8
Event 8
Perfection of title 8
Power of Attorney 9
Issuer Trustee to hold Legal Title or lodge Caveats 9
Other Secured Liabilities 9
7 Investment 9
Global Trust Manager's role 9
Directions 10
Contingencies 10
Discretion of Global Trust Manager 11
Issuer Trustee to act 11
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8 Borrowings 12
Borrowings 12
Types of Borrowings 12
Global Trust Manager to select method 12
Security 13
Supplemental Deed 13
Debt of the Issuer Trustee 13
Location of Notes 13
Purpose of Borrowings 13
Global Trust Manager's power 14
No liability attaches to the Global Trust Manager 14
9 Conditions precedent to issue of Notes 14
Issue Notice 14
Conditions precedent to issue 15
Conditions precedent to direction to issue 15
10 Terms of issue of Notes 15
Characteristics 15
Excluded offer or issue 15
Subscriptions by other persons 16
No liability 16
Terms of Notes 17
Acknowledgment of indebtedness 17
11 Support and other Facilities 17
Facilities 17
Rated issues 18
Manager's Direction 18
Replacement or additional facilities 18
Reduction in rating 18
12 Issuer Trustee 19
Powers 19
Interests of Secured Creditors paramount 21
Delegation 21
Indemnity 21
Act on expert advice 21
Issuer Trustee's covenants 21
Issuer Trustee's indemnity from Assets 23
Limitation of liability of Issuer Trustee 23
Dealing with instruments 25
Proceedings in respect of a Trust 25
Limitation of Issuer Trustee's liability 26
Issuer Trustee's reliance 27
Issuer Trustee no other duties 27
Global Trust Manager's actions 27
Use of clearing system 27
No supervision or investigation 27
Information 28
Information Memorandum 28
Issuer Trustee decisions 28
Liability for Transaction Documents 29
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Representations and warranties 29
Breach of Consumer Credit Legislation 30
13 Issuer Trustee's Retirement 30
Notice from Global Trust Manager 30
Issuer Trustee's mandatory retirement 30
Removal 30
New Issuer Trustee 30
Issuer Trustee's voluntary retirement 30
Release 31
Settlement of amounts 31
Costs 31
14 Global Trust Manager 31
Powers 31
Manager to have discretion 32
Services 32
Delegation 33
Act on expert advice 33
No power to bind Issuer Trustee 33
Global Trust Manager's covenants 33
Further limitation of liability of
Global Trust Manager 35
Global Trust Manager liable 35
Indemnity 36
Representations and warranties 36
Limitation of liability of Global Trust Manager 37
No liability for non-payment 37
Reporting 38
15 Global Trust Manager's Retirement 38
Global Trust Manager's Default 38
Global Trust Manager's Mandatory Retirement 38
Removal 38
Retirement 38
New Global Trust Manager 38
Issuer Trustee act as Global Trust Manager 39
Release 39
Change in terms of appointment 39
Costs 39
16 Transfer and Transmission of Notes 39
No restriction on transfer 39
17 Register of Noteholders 40
Register of Noteholders 40
18 Meetings of Noteholders 40
19 Recourse of Creditors 41
Recourse limited 41
20 Payments 41
Satisfaction and discharge 41
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Cheques and notices 41
Payments to Noteholders 41
Payment Methods 42
Valid receipts 42
21 Payments, Income and distributions 42
Payments 42
Payment 44
Issuer Trustee to act 44
22 Accounts and audit 44
Accounts 44
Audit 44
Establishment of bank accounts 44
Withdrawals 45
23 Administration and reporting 45
Register of Unitholders 45
Transfers 45
Death, legal disability 46
Deductions 46
24 Rights and liabilities of Global Trust Manager
and Issuer Trustee 46
Holding Units 46
Other capacities 46
Exercise of discretion 47
25 Liability of the Unitholders and Noteholders 48
Liability limited 48
26 Remuneration and expenses 48
Global Trust Manager 48
Issuer Trustee 48
Expenses 48
Deferral 49
GST 49
Application 49
27 Notices 50
Notices 50
Initial addresses 50
Time effective 50
Receipt 50
28 Amendments to this deed and Supplemental Deed 51
Amending power 51
Consent required 52
Amendments prejudicial to Noteholders of a Class 52
Amendments prejudicial to all Noteholders 52
29 Tax reform 53
30 Unitholders and Secured Creditors bound by deed 54
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31 Miscellaneous 54
Certificate 54
Exercise of rights 54
Waiver and variation 55
Supervening legislation 55
Approvals and consent 55
Remedies cumulative 55
Indemnities 55
Time of the essence 55
Receipts 55
Acknowledgment 56
Disclosure of information 56
Rights cumulative 56
Signatures 56
Meetings 56
32 Governing law 56
Governing Law 56
Submission to jurisdiction 57
Service 57
33 Limited recourse 57
34 Counterparts 57
Schedule 1 Notice of Creation of Trust 58
Schedule 2 Receivables Transfer Direction 59
Schedule 3 Issue Notice 61
Schedule 4 Meetings of Noteholders 63
Schedule 5 Form of Acknowledgement 67
Schedule 6 Register of Noteholders 69
