Exhibit 4.5
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National RMBS Trusts
Master Security 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") P.T. LIMITED
(ABN 67 004 454 666 having its registered office at
Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx XXX 0000 ("Security
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") THE BANK OF NEW YORK, NEW
YORK BRANCH, a New York banking corporation acting
through its New York branch at 000 Xxxxxxx Xxxxxx,
00X, Xxx Xxxx Xxx Xxxx 00000 ("Note Trustee")
Recitals:
A. The Issuer Trustee is the trustee, and the Global
Trust Manager is the manager, of each Trust which
is or will be established pursuant to the Master Trust
Deed and a Notice of Creation of Trust, and which will
be regulated by a Supplemental Deed which provides for
this deed to apply to that Trust.
B. Pursuant to the Master Trust Deed, the Issuer Trustee
has the power to raise money by issuing Notes and will
be doing so in accordance with the terms of the Master
Trust Deed.
C. As security for its obligations to the Secured
Creditors of a Trust, the Issuer Trustee, as trustee
of that Trust, will grant to the Security Trustee a
charge over all of the Assets of that Trust for the
benefit of those Secured Creditors.
D. The Issuer Trustee of a Trust has the power under the
Master Trust Deed to grant the Charge evidenced in the
relevant Deed of Charge.
E. The Security Trustee of each Security Trust will act
as trustee for the Secured Creditors and hold the
benefit of the Charge on trust for the Secured
Creditors and otherwise act in accordance with this
deed and the relevant Deed of Charge.
F. The Note Trustee may have certain rights and
obligations under this deed in respect of a Trust in
its capacity as a Voting Secured Creditor, of that
Trust.
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Operative provisions:
1 Interpretation
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1.1 The following words have these meanings in this deed
unless the contrary intention appears.
Definitions Schedule means the deed called "National
RMBS Trusts Definitions Schedule" dated on or about
the date of this deed and made between the parties
described in schedule 1 to that deed (as amended from
time to time).
Definitions Schedule
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 or in the
Supplemental Deed for a Trust shall bear the same
meaning in this deed when used in respect of that
Trust. In the event of any inconsistency between a
definition in the Definitions Schedule and the
Supplemental Deed for a Trust, the definitions in the
Supplemental Deed will prevail. No change to the
Definitions Schedule or to the Supplemental Deed for
a Trust will affect the interpretation of this deed
unless the change has been agreed to by the Security
Trustee.
Miscellaneous
1.3 Clauses 1.2 to 1.5 (inclusive) of the Definitions
Schedule are deemed to be incorporated in this deed
as if they were set out in full.
1.4 The Issuer Trustee, the Global Trust Manager, the
Security Trustee and the Note Trustee will only have
rights and obligations under this deed in respect of a
Trust where the Supplemental Deed for that Trust
specifies that this deed (and the Deed of Charge
relating to that Trust) is to apply to that Trust.
2 Declaration of Security Trust
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Declaration of Security Trust
2.1 The Security Trustee declares that it holds the sum
of $10 (contributed by the Global Trust Manager) and
will hold the Security Trust Fund in respect of each
Security Trust on trust for persons who are the
Secured Creditors of the Trust referable to that
Security Trust from time to time.
Commencement and Termination
2.2 A Security Trust will commence on the date on which
the Deed of Charge in respect of that Security Trust
is executed and terminates on the earlier of:
(a) the Vesting Date in respect of that Security
Trust; and
(b) the date on which the related Trust is
terminated in accordance with the Master
Trust Deed.
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Name of Security Trust
2.3 The name of each Security Trust will be the "National
RMBS X-Y Security Trust", where X is the year in which
the relevant Security Trust is created and Y is the
consecutive number of the Security Trust created in
that year (or such other name agreed between the
Issuer Trustee, the Security Trustee and the Global
Trust Manager).
Rights of Secured Creditors
2.4 The Secured Creditors of a Security Trust are bound
by, and are deemed to have notice of, the provisions
of the Transaction Documents of the Trust to which
the Security Trust relates. The rights of the Secured
Creditors of a Security Trust are limited by the terms
of such Transaction Documents.
2.5 Without limiting clause 2.4, no Secured Creditor 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 the Master Trust 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 the 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 Secured
Creditor from:
(i) exercising its rights in connection
with any Transaction Document in
respect of that Trust;
(ii) taking proceedings to obtain an
injunction or other order to
restrain any breach of any
Transaction Document in respect
of that Trust; or
(iii) taking proceedings to obtain
declaratory relief in relation to
any Transaction Document in respect
of that Trust.
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3 Payments
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Payment to Security Trustee
3.1 Subject to clause 3.2, the Issuer Trustee agrees to
pay the Secured Money referable to a Trust to the
Security Trustee in accordance with the terms of the
Transaction Documents for that Trust.
Discharge by Payment to Secured Creditors
3.2
(a) The payment of the Secured Money of a Trust
by the Issuer Trustee to a Secured Creditor
of that Trust in accordance with the terms of
the Transaction Documents for that Trust will
discharge the Issuer Trustee from any
obligation to pay that amount to the Security
Trustee in accordance with clause 3.1.
(b) Clause 3.2(a) does not affect or limit the
obligation of the Issuer Trustee to pay to the
Security Trustee any Secured Money of a
Trust payable to the Security Trustee on its
own account pursuant to the terms of any
Transaction Document for that Trust.
Election by Security Trustee
3.3 The Security Trustee may elect, at any time after an
Event of Default has occurred in respect of a Trust,
to require payment to it of all or part of the Secured
Money for that Trust. Clause 3.2(a) will not apply if
any such election is made by the Security Trustee.
4 Covenants by Issuer Trustee
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General Covenants
4.1 The Issuer Trustee, in respect of each Trust, agrees
to:
(a) (observe Master Trust Deed) observe the terms
of the Master Trust Deed and the Supplemental
Deed for that Trust in dealing with the Secured
Property of that Trust;
(b) (copy of Register) at the same time or as soon
as practicable after a notice referred to in
clause 4.1(e) is given to the Security Trustee,
provide to the Security Trustee:
(i) a current copy of the Register of that
Trust maintained in accordance with
the Master Trust Deed;
(ii) details (including notice details) of
each Secured Creditor of that Trust;
and
(iii) details of the Secured Money owing to
each Secured Creditor of that Trust;
(c) (provide information) upon request from the
Security Trustee (acting reasonably), provide
to the Security Trustee such information,
copies of any accounting records and other
documents, statements and reports required to
be maintained
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by, or that are otherwise in the possession of,
the Issuer Trustee, or which the Issuer Trustee
is entitled to obtain from any person
(including information and documents referred
to in clause 4.1(b));
(d) (deposit documents) if the Charge in respect
of that Trust has taken effect as a fixed
charge, deposit with the Security Trustee
immediately or as soon as the Issuer Trustee
receives them:
(i) anything evidencing a Security Interest
in respect of that Trust and any
document of title given to the Issuer
Trustee to secure the payment of a
monetary obligation to the Issuer
Trustee in respect of that Trust; and
(ii) any documents of title relating to
property over which that Charge
operates as a fixed charge;
(e) (Event of Default) notify and provide the
Security Trustee and each Current Rating
Agency with details of any Event of Default in
respect of that Trust of which it becomes
actually aware;
(f) (actions) do all such things as are necessary
or appropriate to give effect to the provisions
of this deed and the Deed of Charge for that
Trust;
(g) (other business) not engage in any business or
other activities other than those contemplated
by the Transaction Documents for the Trust;
(h) (insolvency proceedings) not take any steps
to commence or initiate any insolvency,
dissolution, consolidation, merger or other
similar proceedings in respect of the Trust
unless each Current Rating Agency confirms
that such proceedings will not result in the
downgrade, reduction or withdrawal of the
Required Credit Rating in respect of the Trust;
(i) (other indebtedness) not incur any financial
indebtedness in respect of the Trust except
as contemplated by the Transaction Documents
for the Trust;
(j) (separateness) conduct the business and
operations of the Trust in a manner which is
separate from, and on an arm's length basis
with all other business conducted by the
Issuer Trustee;
(k) (subsidiaries) not establish any subsidiaries;
and
(l) (bank accounts) not open or maintain any bank
accounts in respect of the Trust other than as
contemplated by the Transaction Documents for
that Trust.
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Covenants in respect of Secured Property
4.2 The Issuer Trustee, in respect of each Trust, will not:
(a) dispose of, deal with or part with possession
of any interest in the Secured Property of
that Trust over which the Charge in respect
of that Trust is floating in any manner except
as permitted by the Transaction Documents;
(b) without the prior written consent of the
Security Trustee, dispose of, deal with or
part with possession of any interest in, or
permit a set-off or combination of, accounts
in respect of the Secured Property of that
Trust over which the Charge in respect of that
Trust is fixed in any manner except as
permitted by the Transaction Documents; or
(c) without the prior written consent of the
Security Trustee, create or allow to come
into existence an Encumbrance (other than
pursuant to this deed or the Deed of Charge in
respect of that Trust) which affects any
Secured Property of that Trust (except an
Encumbrance which is created by the operation
of law or as permitted by the Transaction
Documents for that Trust).
4.3 If the Issuer Trustee creates or allows to exist an
Encumbrance over any Secured Property of a Trust in
breach of clause 4.2(c), without the consent of the
Security Trustee, then, despite anything contained in
this deed or any other agreement in connection with
the provision of the Secured Money in respect of that
Trust:
(a) the Issuer Trustee must immediately procure
that; and
(b) the Security Trustee and the Secured Creditors
of that Trust need not provide any further
accommodation which would form part of the
Secured Money of that Trust until the Issuer
Trustee procures that,
a priority agreement is entered into between the
Issuer Trustee, the Security Trustee and the
encumbrancer in a form acceptable to the Security
Trustee. The Security Trustee's other rights which
arise if the Issuer Trustee so creates or allows to
exist an Encumbrance are not affected by this clause
4.3. The Issuer Trustee must provide each Current
Rating Agency with written notice of the creation or
existence of the Encumbrance.
Global Trust Manager Undertakings
4.4 The Global Trust Manager undertakes to the Issuer
Trustee and the Security Trustee that it will not
knowingly give any direction to the Issuer Trustee
under the Transaction Documents which would, if
complied with, result in the Issuer Trustee breaching
the terms of this deed or any other Transaction
Document.
4.5 At the request of the Issuer Trustee or the Security
Trustee, the Global Trust Manager must provide to
the Issuer Trustee or the Security Trustee, as the
case may be, the information and other material
referred to in clauses 4.1(b)(ii) and (iii) and
clause 4.1(c) to the extent that such
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information is in the possession of the Global Trust
Manager or which the Global Trust Manager is entitled
to obtain from any person and the Global Trust Manager
is permitted, under any applicable privacy legislation,
to provide that information or material to the Issuer
Trustee or the Security Trustee, as the case may be.
5 Further assurances
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Issuer Trustee Assurances
5.1 The Issuer Trustee, in respect of each Trust, agrees
to:
(a) execute in favour of the Security Trustee, or
as the Security Trustee directs, and in a
form acceptable to the Security Trustee,
further documents; and
(b) do the things the Security Trustee stipulates,
to provide more effective security to the
Security Trustee over the Secured Property
of the relevant Trust, for the payment of
the Secured Money of the relevant Trust and
to enable the Security Trustee to exercise
its rights in connection with that Secured
Property.
Completion of Instruments
5.2 An Authorised Person of the Security Trustee may fill
in any blanks in this deed and in any Deed of Charge
and complete in favour of the Security Trustee or
anyone purchasing under the powers given by this deed
any instrument executed by or on behalf of the Issuer
Trustee in blank and deposited with the Security
Trustee in connection with this deed or any Deed of
Charge.
Registration of Charge
5.3 The Global Trust Manager (on behalf of the Security
Trustee) must register the Charge in respect of each
Trust at the Issuer Trustee's expense as a charge on
the register of charges maintained by the Australian
Securities and Investments Commission under the
Corporations Act. The Issuer Trustee agrees to procure
execution of all documents required by the Global Trust
Manager which are necessary to register each such
Charge and to provide evidence to the Security Trustee
promptly after registration is completed.
6 Representations and warranties
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6.1 The Issuer Trustee, as trustee of each Trust,
represents and warrants that:
(a) (no breach) it is not in breach of any material
provision of the Master Trust Deed or the
relevant Supplemental Deed;
(b) (power) it has power to enter into this deed
and the Deed of Charge in respect of the
Trust, and to observe its obligations under
them and to allow them to be enforced;
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(c) (authorisations) it has in full force and
effect the authorisations necessary to
exercise the powers referred to in paragraph
(b) above;
(d) (no contravention) this deed, the Deed of
Charge in respect of the Trust and the
transactions under them do not contravene its
constituent documents or any law, regulation
or official directive or any of its
obligations or undertakings by which it or
any of its assets are bound;
(e) (creation of Trust) the Trust has been validly
created;
(f) (appointment of Issuer Trustee) the Issuer
Trustee has been validly appointed as the
trustee of the Trust;
(g) (sole trustee) the Issuer Trustee is the sole
trustee of the Trust;
(h) (no removal) so far as the Issuer Trustee is
aware, there are no proceedings to remove the
Issuer Trustee as trustee; and
(i) (title) it is the legal owner, or owner in
equity, of the Secured Property.
Global Trust Manager representation and warranties
6.2 The Global Trust Manager, as manager of each Trust,
represents and warrants that:
(a) (no breach) it is not in breach of any
material provision of the Master Trust Deed;
(b) (power) it has the power to enter into this
deed and the Deed of Charge in respect of the
Trust, and to observe its obligations under
them and allow them to be enforced;
(c) (authorisations) it has in full force and
effect the authorisations necessary to
exercise the powers referred to in
paragraph (b);
(d) (no contravention) as far as the Global Trust
Manager is aware, this deed, the Deed of
Charge and the transactions under them do not
contravene its constituent documents or any
law, regulation or official directive or any
of its obligations or undertakings by which
it or any of its assets are bound;
(e) (appointment of Global Trust Manager) the
Global Trust Manager has been validly
appointed as trust manager of the Trust; and
(f) (no removal) as far as the Global Trust
Manager is aware, there are no proceedings
to remove the Global Trust Manager as trust
manager.
6.3 The representations and warranties in clauses 6.1 and
6.2 are taken to be made in respect of a Trust on the
date of execution of the Deed of Charge for that Trust.
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7 General powers, rights and responsibilities
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Power to Invest
7.1 All moneys received by the Security Trustee and not
required to be applied immediately under any of the
discretions or powers contained in this deed may be
placed at the time by the Security Trustee in
Authorised Investments.
Other Powers
7.2 The Security Trustee may, whenever it thinks it
expedient in the interests of the Secured Creditors
of a Trust, apply to any court for directions in
relation to any question of law or fact arising
either before or after an Event of Default in respect
of that Trust and assent to, and approve of, or oppose
any application to any court made by or at the
instance of any Secured Creditor of that Trust, the
Issuer Trustee or the Global Trust Manager.
Further, the Security Trustee:
(a) (defend Security Trust Fund) may take such
action as it is directed to take by an
Extraordinary Resolution of Voting Secured
Creditors of a Trust to defend the Security
Trust Fund referable to that Trust against
any legal proceedings that, if successful,
might adversely affect the Security Trust
Fund referable to that Trust; and
(b) (defend itself as Security Trustee) may take
such action as it considers necessary to
defend itself as trustee of the Security
Trust against any legal proceedings.
Discretion of Security Trustee as to Exercise of Powers
7.3 Subject to any express provision to the contrary
contained in this deed, the Security Trustee will, as
regards all the powers, authorities and discretions
vested in it by this deed have absolute discretion
as to the exercise of them in all respects and, in
the absence of fraud, negligence or breach of trust
on its part, the Security Trustee will not be in any
way responsible for any loss, costs, damages, claims
or obligations that may result from the exercise or
non-exercise of them.
Limitation on Security Trustee's Actions
7.4 Notwithstanding knowledge by, or notice to, the
Security Trustee of any Event of Default or breach
anticipatory or actual of, or default under, any
covenant, obligation, condition or provision by the
Issuer Trustee or the Global Trust Manager contained
in or imposed by this deed or the Master Trust Deed,
the Security Trustee is only required to take all
such steps and do all such things as it is
empowered to do having regard to the powers,
authorities and discretions vested in it pursuant to
this deed and the obligations imposed on the Security
Trustee by this deed.
Limitations on Security Trustee's Responsibility
7.5 The Security Trustee is not to:
(a) be held responsible if it acts upon any
resolution purporting to have been passed
at any meeting of the Voting Secured
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Creditors of a Trust at which minutes were made
and signed even though it may subsequently be
found that there was some defect in the
constitution of the meeting or the passing of
the resolution or that for any other reason
the resolution was not valid or binding upon
any of those Voting Secured Creditors whom it
purports to bind or upon the Security Trustee;
(b) be obliged to notify the Secured Creditors of
a Trust of the happening of any Event of
Default insofar as they relate to that Trust
except in the circumstances set out in
clause 9.1;
(c) be bound or concerned to examine or enquire
into, nor be liable for any defect or failure
in, the title of the Issuer Trustee to any
Secured Property;
(d) be under any liability whatsoever for acting
in accordance with any direction obtained from
the Secured Creditors or the Voting Secured
Creditors (as the case may be) of a Trust at
a meeting convened under clause 9; and
(e) be under any liability whatsoever for a
failure to take any action in respect of any
breach by the Issuer Trustee of its duties
as trustee of the Trust of which the Security
Trustee is not actually aware or in respect
of any Event of Default in respect of a Trust
of which the Security Trustee is not actually
aware,
except to the extent that any such matter or liability
is caused by the fraud, negligence or breach of trust
of the Security Trustee.
No Liability
7.6 The Security Trustee is not liable:
(a) for any loss, costs, damages or expenses
arising out of the exercise or non-exercise
of a discretion or for any act or omission
on its part under this deed;
(b) for any loss, costs, damages or expenses
arising out of the exercise or non-exercise
of a discretion of the Issuer Trustee or the
Global Trust Manager or the act or omission
of the Issuer Trustee or the Global Trust
Manager;
(c) for any loss caused by its failure to check
any information, document, form or list
supplied or purported to be supplied to it
by the Issuer Trustee or the Global Trust
Manager;
(d) to the Secured Creditors of a Trust or any
other person for any liability or thing beyond
the extent to which it can be satisfied out
of property of the Security Trust Fund
referable to that Trust out of which the
Security Trustee is actually indemnified for
the liability or thing;
(e) to make a payment to any Secured Creditor
except out of funds held for that purpose
pursuant to this deed; or
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(f) for any other act or omission on its part,
except, in all cases, to the extent that the relevant
matter is due to the fraud, negligence or breach of
trust of the Security Trustee.
Security Trustee not responsible for monitoring
7.7 (a) Each Secured Creditor is taken to confirm that:
(i) it has made its own appraisal and
investigation of the business,
financial condition, status and
affairs of the Global Trust
Manager, the Servicer, the Issuer
Trustee and each other party to
each Transaction Document, of the
Assets of each Trust and of the
property comprising the Security
Trust Fund referable to that Trust;
(ii) it is solely responsible for
continuing that appraisal and
investigation after the date of
this deed;
(iii) it has not entered into any
Transaction Document as the result
of any inducement from, or
representation or statement by, the
Security Trustee; and
(iv) it has made its own appraisal of
its financial return under the
Transaction Documents.
(b) Each Secured Creditor is taken to confirm that
it has not relied, and will not rely, on the
Security Trustee at any time, and that the
Security Trustee is not required:
(i) to provide it with any information
concerning the business, financial
condition, status or affairs of the
Global Trust Manager, the Servicer,
the Issuer Trustee or any other
party to any Transaction Document;
(ii) to investigate the adequacy,
accuracy or completeness of any
information provided by the Global
Trust Manager, the Servicer, the
Issuer Trustee or any other party
to any Transaction Document in
connection with the Transaction
Documents (whether or not the
information is provided to that
Secured Creditor by the Security
Trustee);
(iii) to assess or keep under review the
business, financial condition,
status or affairs of the Global
Trust Manager, the Servicer, the
Issuer Trustee or any other party
to any Transaction Document or to
inspect any of their properties or
books;
(iv) to investigate whether or not an
Event of Default has occurred in
respect of a Trust; or
(v) to investigate or keep itself
informed as to the performance by
any other party to any Transaction
Document of its obligations under
any Transaction
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Document, or any other document or
agreement to which one or more of
them is a party.
(c) Except to the extent contemplated by another
Transaction Document, the Security Trustee has
no duty or responsibility, but is authorised
in its absolute discretion, to provide any
Secured Creditor of a Trust with any credit or
other information concerning the assets,
liabilities, financial condition or business
of the Issuer Trustee, the Trust or (to the
extent that it is relevant to the performance
by that person of its obligations under the
Transaction Documents) the Global Trust
Manager or the Servicer which may come into
the possession of the Security Trustee.
Security Trustee's Further Duties
7.8 Subject to this deed, the Security Trustee must
comply with the duties imposed on it by this deed and
must:
(a) act continuously as trustee of each Security
Trust until it is terminated in accordance
with this deed or until the Security Trustee
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 and each Deed of Charge;
(c) subject to this deed, retain each Security
Trust Fund in safe custody and hold it on
trust for the Secured Creditors of the
relevant Trust upon the terms of this deed
and the relevant Deed of Charge; and
(d) not sell, mortgage, charge or part with the
possession of any part or the whole of the
Security Trust Fund referable to a Trust (or
permit any of its officers, agents and
employees to do so) except as permitted or
contemplated by this deed and the relevant
Deed of Charge.
Acceptance of Certificates etc.
7.9 The Security Trustee is, for any purpose and at any
time, entitled to rely on, act upon, accept and
regard as conclusive and sufficient (without being
in any way bound to call for further evidence or
information or being responsible for any loss that may
be occasioned by such reliance, acceptance or regard)
any of the following:
(a) any information, report, balance sheet, profit
and loss account, certificate or statement
supplied by the Issuer Trustee or the Global
Trust Manager or by any officer, auditor or
solicitor of the Issuer Trustee or the Global
Trust Manager including the Register of a
Trust and any other details of the identity
of, Secured Moneys owing to, and notice
details of, any Secured Creditor of a Trust;
(b) all statements (including statements made or
given to the best of the maker's knowledge and
belief or similarly qualified)
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contained in any information, report, balance
sheet, profit and loss account, certificate
or statement given pursuant to, or in relation
to, this deed or the Master Trust Deed; and
(c) all accounts supplied to the Security Trustee
pursuant to this deed and all reports of the
Auditor supplied to the Security Trustee
pursuant to this deed,
except, in each case, when it is actually aware that
the information supplied pursuant to clauses (a) to
(c) is incorrect.
Act on Opinion of Experts
7.10 The Security Trustee may in relation to this deed or
the rights, powers or obligations conferred or
imposed by this deed act on the advice or opinion or
information received from any adviser of a kind
appropriate to the particular case including any
lawyer, banker, accountant, securities company, broker
or valuer or other expert in Australia or elsewhere,
whether obtained by the Security Trustee or otherwise
(including by the Issuer Trustee or the Global Trust
Manager). The Security Trustee is not responsible
for any loss occasioned by so acting in good faith
and any such advice or opinion or information may be
given verbally or by letter or otherwise. The
Security Trustee is not to be liable for any loss
occasioned by acting in good faith on any opinion,
advice and information purporting to be so conveyed
although the same contains some error or is not
authentic unless it has reasonable grounds to believe
such advice, opinion or information not to be
authentic.
Right to Rectify
7.11 The Security Trustee may do anything which should have
been done by the Issuer Trustee under this deed or
under the Deed of Charge but which has not been done
or which the Security Trustee considers has not been
done properly, but the Security Trustee is under
no obligation to do so.
Consent to Dealings
7.12 During such time that a Charge has effect as a
floating charge over the relevant Secured Property,
the Issuer Trustee may dispose of, or deal with,
such Secured Property to the extent permitted by the
Master Trust Deed and the Supplemental Deed for the
relevant Trust.
Ascertain Event of Default
7.13 The Security Trustee need not:
(a) without limiting any other provision of this
deed, notify any person of the execution of
this deed or any Deed of Charge; or
(b) take any steps to ascertain whether there
has occurred any:
(i) Event of Default in respect of a
Trust; or
(ii) event which constitutes, or which
with the giving of notice or the
lapse of time would constitute, an
Event of Default in respect of a
Trust.
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Nothing in this clause limits or restricts the
duties of the Security Trustee to take any action
in accordance with clause 9.1 or clause 9.9 of this
deed if it becomes actually aware of, or has actual
notice of, an Event of Default in respect of a Trust.
Until it has actual notice to the contrary, the
Security Trustee may assume that no Event of Default
has occurred in respect of a Trust and that the
Issuer Trustee and the Global Trust Manager are
observing and performing all the obligations on their
part contained in the Transaction Documents in
respect of the Trust and need not inquire whether
that is, in fact, the case.
No duty to investigate
7.14 The Security Trustee has no duty to keep itself
informed about the circumstances of the Issuer
Trustee or the Global Trust Manager, or the
performance by the Issuer Trustee or the Global
Trust Manager of their respective obligations under
this deed, any Deed of Charge or the other Transaction
Documents or (subject to the express requirements of
this deed) to consider or provide any Secured Creditor
with any information with respect to the Issuer
Trustee or the Global Trust Manager.
Liability must be limited
7.15 Except for the obligations imposed on it under clause
9.1, the Security Trustee is not obliged to do or
omit to do any thing including enter into any
transaction or incur any liability unless the
Security Trustee's liability is limited in a manner
which is consistent with clause 25.2.
Not use own funds
7.16 Except as required by clause 9.1 or clause 9.9, the
Security Trustee will not be under any obligation
for whatever reason to advance or use its own funds
for the payment of any costs, expenses or liabilities
whatsoever.
Cover for costs
7.17
(a) Before exercising a right, power or discretion
or performing an obligation as Security
Trustee (except the power to provide a notice
to all Secured Creditors in accordance with
clause 9.1(a) and to convene a meeting of
Voting Secured Creditors in accordance with
clause 9.1(b)), the Security Trustee need
not act unless its liability is limited in a
manner satisfactory to it or , if required by
the Security Trustee, until the Voting Secured
Creditors place it in funds equivalent to the
amount which the Security Trustee determines
may become liabilities of the Security
Trustee in respect of that act (or until the
Voting Secured Creditors provide an indemnity
to the Security Trustee in respect of those
liabilities in a form acceptable to it,
acting reasonably), provided that no Voting
Secured Creditor shall be under any obligation
to either contribute to such placing of funds
or provide such indemnity to the Security
Trustee if that Secured Creditor has no Secured
Moneys due or payable to it at that time.
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(b) If the Voting Secured Creditors do not place
the Security Trustee in funds, or do not
provide the indemnity, in the manner
contemplated by paragraph (a), then the
Security Trustee is not required to exercise
the relevant right, power or discretion or
perform the relevant obligation.
Receipt of instructions
7.18 Without limiting its rights, powers and discretions,
but subject to its express duties or obligations
under clause 9 of this deed, the Security Trustee
will not be required to exercise any right, power or
discretion (including to require anything to be
done, form any opinion or give any notice, consent,
waiver or approval) without the specific instructions
of the Voting Secured Creditors of a Trust given by
Extraordinary Resolution. However, the Security
Trustee may exercise a right, power or discretion
before it receives any such instructions if the
Security Trustee reasonably believes that it is in
the best interests of the Secured Creditors of the
Trust that it does so (and provided that the Security
Trustee first notifies in writing the Voting Secured
Creditors of its intention to do so).
Dispute or ambiguity
7.19 In the event of any dispute or ambiguity as to the
construction or enforceability of this deed or any
other Transaction Document, or the Security Trustee's
powers or obligations under or in connection with
this deed or the determination or calculation of
any amount or thing for the purpose of this deed or
the construction or validity of any direction from
Voting Secured Creditors, the Security Trustee may
(but will have no obligation to):
(a) obtain and rely on advice from any person
referred to in clause 7.10; and
(b) apply to a court or similar body for any
direction or order the Security Trustee
considers appropriate,
and provided the Security Trustee is using
reasonable endeavours to resolve such
ambiguity or dispute, the Security 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 or ambiguity.
No liability for documents
7.20 The Security Trustee has no responsibility for the
form or contents of this deed or any other
Transaction Document and will have no liability
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 except insofar as it applies to the
Security Trustee or to any representation and
warranty given by the Security Trustee.
Conflict of duty
7.21
(a) If there is at any time a conflict between
a duty owed by the Security Trustee to the
Noteholders and a duty owed by the Security
Trustee to any other Secured Creditor or
class of
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Secured Creditor, then the Security Trustee
must give priority to the interests of the
Noteholders as a whole.
(b) The Security Trustee must give priority to
the interests of the Senior Noteholders as a
class if, in the opinion of the Security
Trustee, there is a conflict between the
interests of the Senior Noteholders (on the
one hand) and the interests of the Junior
Noteholders or other persons entitled to the
benefit of this deed and the Deed of Charge in
respect of a Trust (on the other hand).
(c) Provided that the Security Trustee acts in
good faith, it shall not incur any liability
to any Secured Creditor for doing so.
Indemnity
7.22 Without prejudice to any right of indemnity given by
law to trustees, the Security Trustee will be
indemnified in respect of a Security Trust out of
the Security Trust Fund which relates to that Security
Trust for all costs, fees, charges, expenses and
liabilities incurred in or about the due execution
of that Security Trust.
Delegation
7.23 The Security Trustee may in accordance with this
clause authorise in writing specified parties to act
as its delegate, attorney or agent to perform its
functions under the Transaction Documents (including
the holding of Mortgage Title Documents and a power
to sub-delegate). The Security Trustee may include
provisions in the authorisation to protect and
assist those dealing with the delegate, attorney or
agent as the Security Trustee thinks fit.
The Security Trustee must not delegate to any person
any of its trusts, duties, powers, authorities and
discretions under this deed or a Deed of Charge in
relation to a Security Trust except:
(a) subject to this clause, to a Related Entity
of the Security Trustee;
(b) to the Global Trust Manager, the Servicer or
a Receiver in accordance with the provisions
of this deed or any other Transaction
Document relating to the Security Trust;
(c) to any Clearing System (in respect of which
the Security Trustee is not liable for its
acts or omissions); or
(d) in accordance with the provisions of this
deed or the Supplemental Deed relating to
that Security Trust,
provided that, in each case, the Security
Trustee must not delegate to such third
parties any material part of its powers,
duties or obligations as Security Trustee.
Where the Security Trustee delegates any of
its trusts, duties, powers, authorities and
discretions to any person who is a Related
Entity of the Security Trustee, the Security
Trustee at all times remains liable for the
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acts or omissions of such Related Entity and
for the payment of fees of that Related
Entity when acting as delegate. Subject to
this, the Security Trustee is not liable for
the acts or omissions of any delegate,
attorney or agent if it appointed the
delegate, attorney or agent in good faith.
7.24 Any delegation made by the Security Trustee
under clause 7.23 in respect of a Security
Trust will automatically terminate if the
Security Trustee retires, or is removed, in
accordance with clause 16 of this deed in
respect of that Security Trust.
7.25 The Security Trustee has no duties,
obligations or responsibilities other than
those expressly set out in this deed.
No Liability
7.26 Without limitation, the Security Trustee is not liable
for:
(a) any decline in the value or loss
realised upon any sale or other
dispositions made under this deed
of any Secured Property or any
other property charged to the
Security Trustee by any other
person in respect of or relating to
the obligations of any person in
respect of the Issuer Trustee or
the Secured Money or relating in
any way to the Secured Property;
(b) any decline in value directly or
indirectly arising from the
Security Trustee acting or failing
to act as a consequence of an
opinion reached by it; or
(c) any omission delay or mistake or
any loss or irregularity in or
about the exercise, attempted
exercise, non-exercise or purported
exercise of any of its powers under
this deed or a Deed of Charge,
except to the extent caused or contributed
to by any fraud, negligence or breach of
trust on the part of the Security Trustee.
8 Crystallisation of floating charge
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Crystallisation
8.1 If the Charge referable to a Trust has not
otherwise taken effect as a fixed charge
over all of the Secured Property referable
to that Trust, it automatically takes effect
as a fixed charge over the Secured Property
of that Trust in respect of which the Charge
has not previously taken effect as a fixed
charge immediately prior to the occurrence
of any of the following events:
(a) an Event of Default occurs in
respect of that Trust;
(b) the Issuer Trustee breaches any of
the covenants in clause 4.2 of this
deed in respect of that Trust;
(c) the Australian Federal Commissioner
of Taxation (or some person authorised
to issue on his behalf) issues a notice
in respect of tax due by the
Issuer Trustee under sections 218 or
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255 of the Income Tax Assessment Xxx 0000
(Cwth) or under section 74 of the Sales
Tax Assessment Xxx 0000 (Cwth) or under
any similar provision of any law;
(d) the Issuer Trustee files an Australian tax
return which results in Tax becoming due by
the Issuer Trustee in its capacity as trustee
of that Trust which is not paid on time; or
(e) if the law provides that the Charge becomes
fixed.
Replacement of fixed charge with floating charge
8.2 Subject to clauses 8.3 and 8.4 and in respect of any
Relevant Secured Property of a Trust, the Security
Trustee:
(a) must give notice of the fixing of such
Charge in respect of the Relevant Secured
Property to the Issuer Trustee and each
Current Rating Agency promptly after
becoming actually aware of the fixing of
such Charge in respect of the Relevant
Secured Property; and
(b) may and, if directed by Voting Secured
Creditors of that Trust who in aggregate are
owed not less than 90% of the Secured Money
of that Trust at the time, the Security
Trustee must, give a notice to the Issuer
Trustee stating that, from the effective date
specified in the notice, it no longer requires
that Charge to operate as a fixed charge over
the Relevant Secured Property of that Trust
specified in the notice. Any such
notification does not prejudice the rights
of the Security Trustee to give a notice to
the Issuer Trustee stating that the charge
takes effect as a fixed charge or the fixing
of the charge again in accordance with
clause 8.1.
Subsequent dealing
8.3 From the effective date specified in a notice given
under clause 8.2(b):
(a) the Issuer Trustee may deal with the
Relevant Secured Property the subject of
the notice, if it was acquired by the
Issuer Trustee before the effective date
of the notice, as if it had always been
charged by way of floating charge under
this deed;
(b) the floating charge given by the relevant
Deed of Charge over the Relevant Secured
Property the subject of the notice acquired
by the Issuer Trustee on or after the
effective date of the notice continues to
operate as a floating charge as if it had
never been a fixed charge; and
(c) a person dealing with the Issuer Trustee
in relation to the Relevant Secured Property
the subject of the notice may rely on the
notice from the Security Trustee as conclusive
evidence that, as at the time the notice is
issued, such Relevant Secured Property is
charged by way of floating charge.
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Further charge
8.4 The Issuer Trustee charges, by way of floating
charge and further assurance, the Relevant Secured
Property the subject of a notice given pursuant to
clause 8.2(b) to the Security Trustee as security
for payment of the Secured Money on the same terms as
the relevant Charge.
9 Security Trustee to convene meetings
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Convene Meetings
9.1 Subject to clause 9.5, the Security Trustee must,
upon becoming actually aware of the occurrence of
an Event of Default in respect of a Trust, take
the following steps:
(a) notify all Secured Creditors of that Trust
that the Charge granted in respect of that
Trust has taken effect as a fixed charge
over all of the Secured Property of that
Trust and provide to those Secured Creditors
full details of the Event of Default as
advised to the Security Trustee under clause
4.1(e) or otherwise known to the Security
Trustee and the actions and procedures
which the Issuer Trustee and the Global
Trust Manager have notified the Security
Trustee are being taken or will be taken by
the Issuer Trustee and the Global Trust
Manager to remedy the relevant Event of
Default; and
(b) do all such things as are necessary or
appropriate to promptly convene a meeting
of the Voting Secured Creditors of that
Trust in accordance with the provisions of
clause 10.
Extraordinary Resolutions
9.2 Subject to the terms of the Supplemental Deed for
the relevant Trust, at a meeting of Voting Secured
Creditors of a Trust referred to in clause 9.1(b),
the Voting Secured Creditors of that Trust must vote
on whether to direct the Security Trustee by
Extraordinary Resolution to:
(a) declare the Secured Moneys in respect of
that Trust immediately due and payable;
(b) appoint a Receiver in accordance with
clause 11 (and, if a Receiver is to be
appointed, the Voting Secured Creditors
of that Trust must determine the amount of
the Receiver's remuneration);
(c) instruct the Security Trustee in writing
to sell and realise the Secured Property
of that Trust where the Security Trustee has
agreed to do so; or
(d) take such other action as the Voting Secured
Creditors may specify in the terms of such
Extraordinary Resolution and which the
Security Trustee indicates that it is
willing to take.
Notice
9.3 If the Voting Secured Creditors of a Trust
pass an Extraordinary Resolution pursuant
to this clause 9 at a meeting convened
following an
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Event of Default in respect of that Trust,
the Security Trustee must notify the Issuer
Trustee and the Global Trust Manager in writing
one Business Day after such Extraordinary
Resolution is so passed of any direction
thereby given to the Security Trustee by
the Voting Secured Creditors of that Trust.
No obligation to appoint Receiver
9.4 The Security Trustee must not take any steps
to appoint a Receiver under clause 11 or
otherwise to enforce the Charge created
under a Deed of Charge unless:
(a) the Voting Secured Creditors of the
relevant Trust have passed an
Extraordinary Resolution referred
to in clause 9.2 or at a meeting
convened pursuant to clauses 9.6,
9.7 or 9.8; or
(b) in the opinion of the Security
Trustee, the delay required to
obtain the consent of the Voting
Secured Creditors of the relevant
Trust would be prejudicial to the
interests of those Voting Secured
Creditors.
Nothing in this clause 9.4 affects or
restricts the operation of clause 8 of this
deed.
Waiver of Event of Default
9.5 The Security Trustee may, at its discretion
but not in contravention of an Extraordinary
Resolution of the Voting Secured Creditors,
waive or ignore an Event of Default in
respect of a Trust or determine that any
event that would otherwise be an Event of
Default will not be treated as such, if such
action, in the opinion of the Security
Trustee, will not be prejudicial to the
interests of the Secured Creditors of that
Trust.
Meetings
9.6 The Security Trustee may at any time convene
a meeting of Voting Secured Creditors of a
Trust to consider such Extraordinary
Resolutions as are put to the meeting by the
Security Trustee including, without
limitation, resolutions put for the purpose
of seeking directions from Voting Secured
Creditors as to the exercise of its powers
and duties and performance of its
obligations.
Global Trust Manager convenes meeting
9.7 If the Security Trustee fails to convene a
meeting in accordance with clause 9.1(b),
the Global Trust Manager may convene a
meeting of the relevant Voting Secured
Creditors in accordance with this clause 9.
Any such meeting is to have only the same
powers as if convened by the Security
Trustee and is to be conducted in accordance
with the provisions of clause 10.
Secured Creditors convene meeting
9.8 The Voting Secured Creditors of a Trust who
in aggregate are owed not less than 10% of
the Secured Money of a Trust may convene a
meeting of Voting Secured Creditors at any
time. Any such meeting is to have only the
same powers as if convened by the Security
Trustee or the Global Trust Manager pursuant
to this clause 9 and is to be conducted in
accordance with the provisions of clause 10.
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Notice of Event of Default
9.9 If the Security Trustee becomes actually
aware of the occurrence of an Event of
Default in respect of a Trust, and the
Issuer Trustee has not given the Security
Trustee notice in accordance with clause
4.1(e), the Security Trustee must give the
Issuer Trustee notice of the occurrence of
that Event of Default.
Notice of action to remedy Event of Default
9.10 If the Issuer Trustee and the Global Trust
Manager take any action or procedures
referred to in clause 9.1(a) to remedy an
Event of Default in respect of a Trust, both
the Issuer Trustee and the Global Trust
Manager must keep the Security Trustee
informed of those actions and procedures.
Limitation on rights of Secured Creditors
9.11 Subject to this deed, the powers, rights and
remedies conferred on the Security Trustee by
this deed are exercisable by the Security Trustee
only, and no Secured Creditor is entitled without
the written consent of the Security Trustee to
exercise the same or any of them. Without limiting
the generality of the foregoing, no Secured Creditor
is entitled to enforce the Deed of Charge in respect
of a Trust or the provisions of this deed or to
appoint or cause to be appointed a Receiver to any
of the Secured Property or otherwise to exercise
any power conferred by the terms of any applicable
law on charges except as provided in this deed and
the Deed of Charge in respect of the Trust.
10 Meeting of Voting Secured Creditors
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Notice of Meeting
10.1 (a) The Security Trustee, if it wishes to
convene a meeting of Voting Secured
Creditors, must give at least five days'
notice specifying the place, day and hour
of the meeting and the general nature of
the business to be transacted and containing
such or any further information as the
Security Trustee may think fit and the
terms of any resolution of which the Security
Trustee is aware will be proposed.
(b) Subject to clause 10.2, such notice
must be sent to all Voting Secured
Creditors of the relevant Trust.
The accidental omission to send
such notice to, or the non-receipt
of a notice of meeting by, any such
Voting Secured Creditor will not
invalidate the meeting.
(c) The Security Trustee must notify
the Issuer Trustee and the Global
Trust Manager of the place, day and
hour of the meeting and of the
nature of the business to be
transacted at that meeting.
(d) The omission to give a notice
referred to in the preceding
paragraph (c) to either the Global
Trust Manager or the Issuer Trustee
will invalidate the meeting, but
the party who failed to receive the
notice may waive the same.
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(e) The Security Trustee, the Issuer
Trustee and the Global Trust
Manager and any person on behalf of
any of them and its solicitors and
any officer, solicitor or auditor
of any of them and any counsel
instructed by the solicitor of any
of them may attend any meeting or
any adjourned meeting of Voting
Secured Creditors and all such
persons have the right of audience
at such meeting.
(f) Notwithstanding the other
provisions of this clause 10, a
resolution of Voting Secured
Creditors (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:
(i) been signed by or on behalf of all
Voting Secured Creditors; and
(ii) been presented to the Security
Trustee for entry in the records
referred to in clause 10.21.
Advertisement of Meeting in Newspaper
10.2 Instead of the notice requirements of clause 10.1,
but without limiting any obligations of the Issuer
Trustee or the Note Trustee in respect of a Trust to
provide the notices required by the Note Trust Deed
for a Trust, notice of any meeting of the Voting
Secured Creditors of a Trust may be given by
advertisement in a daily newspaper circulating
generally throughout the relevant jurisdictions and
by electronic means (including without limitation
email or otherwise as agreed between the Security
Trustee and the Global Trust Manager) at least five
days before the proposed meeting and giving the
same details as set out in clause 10.1(a).
Notwithstanding the foregoing provisions of clauses
10.1 and 10.2, if it is so agreed by Voting
Secured Creditors who:
(a) are a majority in number of Voting
Secured Creditors (present in person or
by proxy) having the right to attend and
vote at the meeting; and
(b) hold or represent between them an amount
which is at least 95% of the Secured Money
at the time,
a resolution may be proposed and passed at a meeting
of which no notice has been given in the manner
contemplated by this deed.
Quorum
10.3 No business is to be transacted at any such meeting
unless a quorum is present when the meeting proceeds
to business. The quorum necessary for a meeting at
which any resolution including an Extraordinary
Resolution is to be proposed must be at least such
number of Voting Secured Creditors (present in person
or by proxy) having the right to attend and vote at
that meeting who hold or are owed between them an
amount which is not less than 67% of the Secured
Money at the time.
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Quorum at Adjourned Meeting
10.4 If within 15 minutes from the time appointed for
any meeting, a quorum is not present, the meeting must
stand adjourned for such period as the chairman
directs and notice of the adjourned meeting in
accordance with clause 10.1 or clause 10.2 must be
given to the Voting Secured Creditors by the Security
Trustee.
At an adjourned meeting two or more Voting Secured
Creditors present in person, holding or who are owed
between them an amount which is not less than 50% of
the Secured Money at the time form a quorum.
Chairman
10.5 At a meeting of Voting Secured Creditors, some person
nominated by the Security Trustee (whether a Secured
Creditor, a representative of the Security Trustee or
not) must preside as chairman. If no such person is
present within 15 minutes after the time appointed
for holding the meeting the Voting Secured Creditors
present must choose one of their number to preside
as chairman.
Voting
10.6 (a) Every question submitted to a meeting of
Voting Secured Creditors must be decided
in the first instance by a show of hands.
In the case of an equality of votes, the
chairman both on the show of hands and on a
poll is entitled to have a second or casting
vote in addition to the vote or votes (if
any) to which he may be entitled as a Voting
Secured Creditor.
(b) The chairman or such number of Voting Secured
Creditors (present in person or by proxy)
holding or who are owed between them an
amount which is not less than 2% of the
Secured Money may, before or on the
declaration of the result of a show of
hands, demand a poll. If at any meeting a
poll is so demanded, it must be taken in
such manner and, subject to this deed,
either at once or after such adjournment as
the chairman directs and the result of such
poll will be deemed to be the resolution of
the meeting in which the poll was demanded
as at the date of the taking of the poll.
The demand for a poll must not prevent the
continuance of meeting for the transaction
of any business other than the question on
which the poll has been demanded. Any poll
demanded at any meeting on the election of a
chairman or any question of adjournment must
be taken at the meeting without adjournment.
The demand for a poll may be withdrawn.
Votes
10.7 (a) The Voting Secured Creditors are only entitled
to vote:
(i) at a meeting convened by the
Security Trustee following the
occurrence of an event referred to
in clause 9.1(b) to consider the
Extraordinary Resolutions referred
to in clause 9.2 or such other
resolutions put to the meeting (or
at any adjournment of such a
meeting) by the
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Security Trustee which are related
to, or incidental to, such
resolutions; and
(ii) at any meeting convened under
clauses 9.6, 9.7 or 9.8 to consider
such Extraordinary Resolutions as
are put to the meeting.
(b) On a show of hands every Voting Secured
Creditor who is present in person or by
proxy and who has the right to vote shall
have one vote.
(c) On a poll every Voting Secured Creditor
who is present in person or by proxy and
has the right to vote shall have one vote
for each $10 (but not a part thereof) of the
Secured Moneys that the Voting Secured
Creditor holds.
Voting by Joint Noteholders
10.8 In the case of joint holders of a Note, the vote of
the senior joint holder who tenders a vote whether
in person or by proxy is to be accepted to the
exclusion of the votes of the other joint holders
and for this purpose seniority is to be determined
on the basis of whose name stands first in the
Register maintained in accordance with the Master
Trust Deed.
Voting by Corporation
10.9 A corporation being a Voting Secured Creditor
may vote by any officer or representative duly
authorised in writing who is entitled to speak,
demand a poll, vote, act as a proxy and in all
other respects exercise the rights of a Voting
Secured Creditor and must be reckoned as a
Voting Secured Creditor for all purposes.
Voting by Person of Unsound Mind
10.10 A Voting Secured Creditor of unsound mind or
in respect of whom an order has been made by
any court having jurisdiction in respect of
mental health may vote whether on a show of
hands or on a poll by his committee curator
bonis or other person in the nature of a
committee curator bonis appointed by such court.
Objection to Voter's Qualification
10.11 No objection is to be raised to the qualification
of any voter except at the meeting or adjourned
meeting at which the vote objected to is given
or tendered and every vote not disallowed at such
meeting shall be valid for all purposes. Any such
objection made in due time shall be referred to
the chairman of the meeting and his decision shall
be final and conclusive.
Method of Voting
10.12 On a show of hands and on a poll votes may be given
either personally or by proxy and a proxy is to
have the same right of audience as a Voting
Secured Creditor.
Proxy Instrument
10.13 The instrument appointing a proxy must be in writing
under the hand of the appointor or of his attorney
duly authorised in writing or if the
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appointor is a corporation either under its common
seal or under the hand of an officer or attorney
so authorised.
Attendance at Meetings and Appointment of Proxy
10.14 Each Voting Secured Creditor is entitled to attend
and (subject to clause 10.7) to vote at any meeting
of Voting Secured Creditors convened under this deed
and is entitled to appoint another person (whether
a Voting Secured Creditor or not) as his proxy to
attend and vote. Such proxy has the same rights as
the Voting Secured Creditor to vote, whether on a
poll or on a show of hands, to speak and to be
reckoned in a quorum.
Voting Authority to be Deposited with Security Trustee
10.15 The instrument appointing a proxy and the power
of attorney or other authority (if any) under which
it is signed or a certified copy of such power or
authority must be deposited with the Security Trustee
or its duly appointed agent not less than 2 days
before the time appointed for holding the meeting or
adjourned meeting at which the person named in the
instrument proposes to vote and in default the
instrument or proxy is invalid. A copy of a proxy
(and the authority under which it is signed) sent by
fax will be sufficient for the foregoing requirement
provided the relevant original or certified copy (in
the case of the authority) is received by the
Security Trustee prior to the relevant meeting. No
instrument appointing a proxy is valid after the
expiration of 12 months from the date named in it
as the date of its execution.
Form of Proxy
10.16 An instrument appointing a proxy may be in the
following form or in any other form which the Security
Trustee may approve:
"I, ,
of , being a
Voting Secured Creditor in respect of the [ ]
[X] Security Trust appoint
of (and in his or
her absence or if this instrument of proxy is duly
completed except as to the name of the proxy, the
chairman of the meeting) to vote for me and on my
behalf at the meeting of Voting Secured Creditors to
be held on the .... day of .......... 20.. and at
any adjournment thereof.
Signed at by me this day of [year]
I direct my proxy to vote for/against the proposed
resolution.* (In the absence of direction the proxy
may vote as he/she thinks fit or abstain from voting.)
* If more than one resolution, refer to each
separately."
Proxy - Effect of Death or Insanity
10.17 A vote given in accordance with the terms of an
instrument of proxy is valid notwithstanding the
previous death or insanity of the principal or
revocation of the proxy or of the authority under
which the proxy was executed if no intimation in
writing of such death, insanity or revocation
has been received by the Security Trustee before
the commencement of the meeting or adjourned
meeting at which the proxy is used.
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Determination of Voting
10.18 At any meeting of Voting Secured Creditors
unless a poll is demanded in accordance with
clause 10.6(b) a statement by the chairman
that a resolution has been carried or
carried by any particular majority or lost
or not carried by any particular majority is
to be conclusive evidence of the fact.
Adjournment
10.19 The chairman may with the consent of a majority
of Voting Secured Creditors (present in person or
by proxy) at a meeting adjourn that meeting from
time to time and from place to place.
Effect of Resolution
10.20 An Extraordinary Resolution passed at a meeting
of Voting Secured Creditors of a Trust duly convened
and held in accordance with this clause 10 is binding
upon all the Secured Creditors of that Trust whether
present or not present at such meeting and each
of such Secured Creditors and (subject to clauses
7.15 to 7.17 inclusive) the Security Trustee is
bound to give effect to the Extraordinary Resolution
provided that a resolution of all Voting Secured
Creditors of a Trust which in its terms (or having
regard to the terms of this deed) affects a particular
Class of Voting Secured Creditors only, or in a
manner different to the rights of Voting Secured
Creditors generally, is not binding on the Voting
Secured Creditors of that particular Class unless
the Voting Secured Creditors of that particular
Class have, by Extraordinary Resolution or Written
Resolution, agreed to be bound thereby. Nothing in
this clause 10.20 requires the Security Trustee to
do or omit to do any act if, in the opinion of the
Security Trustee, this might cause it to breach a
law, a Transaction Document, a fiduciary duty
or an obligation owed to another person.
Minutes
10.21 Minutes of all resolutions passed and proceedings
at every meeting of Voting Secured Creditors must be
made and duly entered in a book to be provided for
that purpose by the Security Trustee and any such
minutes if purporting to be signed by the chairman
of the meeting at which such resolutions were passed
or proceedings had or by the chairman of the next
succeeding meeting (if any) of Voting Secured
Creditors are conclusive evidence of the matters
stated in them and until the contrary is proved every
such meeting in respect of the proceedings of which
minutes have been made is deemed to have been duly
held and convened and all resolutions passed and
proceedings conducted at such meeting are deemed to
have been duly passed and conducted.
11 Appointment of receiver
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Appointment
11.1 Subject to clause 11.2, if the Voting Secured
Creditors of a Trust pass the Extraordinary Resolution
referred to in clause 9.2(b) or resolve to appoint
a receiver or receiver and manager at a meeting
convened under clauses 9.6, 9.7 or 9.8, the Security
Trustee must (subject to clauses 7.15 to 7.17
inclusive) appoint a person or persons as receiver or
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receiver and manager of the Secured Property of
that Trust to deal with that Secured Property in
accordance with any reasonable instructions given by
the Voting Secured Creditors by Extraordinary
Resolution passed at a meeting of the Voting Secured
Creditors convened in accordance with this deed and
the Security Trustee must fix the remuneration of a
Receiver in accordance with the terms of the
Extraordinary Resolution passed at any such meeting.
New Receiver
11.2 If a Receiver is removed, retires or dies, then
the Security Trustee may appoint a new Receiver
on substantially the same terms as the previous
Receiver.
No Liability for Receiver
11.3 The Security Trustee will not be responsible for
anything done or not done by the Receiver. To the
extent permitted by law, the Receiver will be the
agent of the Issuer Trustee and not the Security
Trustee. The Receiver's remuneration and necessary
expenses must be paid out of the Secured Property
in accordance with this deed.
Two or more Receivers
11.4 If 2 or more persons are appointed as Receiver of
the same part of the Secured Property, then the
Security Trustee may provide that their rights,
powers and remedies vest in them jointly and
severally, or jointly.
Appointment over part
11.5 The power to appoint a receiver or receiver
and manager over all of the Secured Property
may be exercised whether or not a Receiver
has already been appointed over part of it.
Indemnity to Receiver
11.6 The Security Trustee may give an indemnity, in
such terms as it in its absolute discretion
considers appropriate, in favour of a Receiver
appointed in accordance with this clause 11. Any
indemnity granted to the Receiver by the Security
Trustee must be limited so as not to exceed the
Security Trustee's right of indemnity out of the
relevant Security Trust Fund.
12 Powers of receiver
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12.1 A Receiver may do all such things as are necessary
or expedient to deal with the Secured Property of a
Trust as if the Receiver were the absolute and
beneficial owner of it. The Receiver may, in
addition to powers conferred by statute or by the
terms of its appointment, but subject to the
Supplemental Deed for that Trust, exercise any
or all of the following powers:
(a) (possession, etc) enter, take possession
of, have access to and make use of that
Secured Property as often as the Receiver
deems expedient;
(b) (exercise rights) exercise the rights,
powers and remedies of the Issuer Trustee
over, in connection with or comprising part of
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that Secured Property (including, without
limitation, collecting in, recovering and
suing for that Secured Property);
(c) (manage) manage that Secured Property;
(d) (carry on business) carry on any business
or pursuit that is within the powers of
the Issuer Trustee, and is carried on by
the Issuer Trustee at the time the Receiver
is appointed;
(e) (sell) subject to obligations imposed by
law, sell or agree to sell that Secured
Property on any terms, including, without
limitation, the following:
(i) the sale may take place whether or
not the Receiver has taken
possession of that Secured
Property;
(ii) the sale may be by public auction,
private treaty or by tender;
(iii) the sale may be in one lot or in
parcels, and with or without
special provisions about title, or
time, or mode of payment of
purchase money, or otherwise;
(iv) allow the purchase money to remain
secured by a mortgage or charge of
the Secured Property sold, or
secured by other security, or
without security, and on any other
terms, without being responsible
for any resultant loss;
(v) enter into, rescind or vary a
contract for sale, and resell
without being responsible for loss,
and execute assurances of that
Secured Property in the name and on
behalf of the Issuer Trustee or
otherwise; or
(vi) do anything to complete any sale
which the Receiver considers
desirable, and set aside from the
proceeds of sale the amount which
the Receiver considers desirable to
meet future claims until the
possibility of claims being made is
ended;
(f) (benefit of agreements) obtain the benefit
of any agreement entered into by the Issuer
Trustee (including, without limitation, by
specific performance), whether or not the
agreement is entered into in the exercise
of the rights, powers and remedies conferred
by this deed;
(g) (proceedings) institute, conduct, defend,
submit to arbitration, settle, compromise or
defer in the name of the Issuer Trustee or
otherwise on any terms, any proceeding,
claim, question or dispute in connection
with that Secured Property or this deed and
execute releases or other discharges in
connection with them;
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(h) (delegate) delegate the Receiver's powers
including this power of delegation to any
person for any period;
(i) (surrender, etc) end, surrender, or accept
the surrender of a lease or licence of,
that Secured Property, and compromise with
or make concessions to tenants, lessees or
licensees, or agree to do any of these
things, for any period and on any terms;
(j) (transfer) surrender or transfer that
Secured Property to any person;
(k) (exchange) exchange that Secured Property
with a person for an interest in other
property of any tenure (with or without
giving or receiving other consideration).
The property so acquired may be dealt
with by the Receiver as if it were part
of that Secured Property and the Receiver
may grant a Security Interest over that
property for the payment of the Secured
Money;
(l) (remove items) remove personal property from
that Secured Property and store that property
in the name of the Issuer Trustee without
liability for loss or damage suffered by the
Issuer Trustee;
(m) (other acts) do anything which should have
been done by the Issuer Trustee under this
deed but which has not been done or which the
Receiver considers has not been done properly;
(n) (employ) employ or engage persons (including,
without limitation, employees of the Receiver
and consultants and professional advisers)
in connection with the powers conferred on
the Receiver by this clause 12;
(o) (protect priority) do or cause to be done
anything to protect the priority of this
deed in respect of that Secured Property,
to protect the Issuer Trustee's or the
Security Trustee's or a Secured Creditor's
estate or interest in that Secured Property,
to enforce this deed, to recover the Secured
Money or to protect or enhance that Secured
Property;
(p) (bank accounts) operate (to the exclusion
of the Issuer Trustee) the bank accounts
which form part of that Secured Property;
(q) (incur liabilities) expend money or incur
liabilities in exercising the powers
conferred on the Receiver by this clause 12;
(r) (Master Trust Deed) do anything which the
Issuer Trustee is empowered to do under the
Master Trust Deed;
(s) (notice) serve notice that the Charge has
become fixed on any Relevant Secured
Property of the Issuer Trustee;
(t) (authority) collect that Secured Property
or any part of it; and
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(u) (incidental) to do anything which is
ancillary to, or incidental to,
any of the foregoing.
13 Powers of security trustee and exclusion of statutory notices
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Security Trustee has powers of Receiver
13.1 At any time after an Event of Default has occurred
in relation to a Trust, the Security Trustee, in
addition to powers conferred by other provisions
of this deed or by law, may, subject to the
provisions of clause 12, exercise any of the powers
set out or referred to in clause 12 (each of which
is to be construed as if the reference to the
Receiver were a reference to the Security Trustee)
and whether or not a Receiver has been or could
be appointed under this deed.
No liability as mortgagee in possession
13.2 If either the Security Trustee or a Receiver
exercises its rights under this deed (including
without limitation, under clause 7 or clause 12),
exercises its rights conferred by law or takes
possession of the Secured Property pursuant to
this deed, then neither of them is liable to
account as mortgagee in possession.
Give up possession of Secured Property
13.3 The Security Trustee may give up possession of
the Secured Property of a Trust at any time if the
Security Trustee:
(a) believes in good faith that it is in the
interests of the Secured Creditors of that
Trust to do so; or
(b) reasonably considers that it will, by
retaining possession of that Secured
Property, incur a liability which is not
limited in accordance with clause 25.2.
Exclusion of notices
13.4 The Security Trustee or a Receiver need not
give notice or a demand to the Issuer Trustee
or allow time to elapse before exercising a right,
power or remedy under this deed or conferred by
law, unless notice or demand or a lapse of time
is required by a law which cannot be excluded. If
the law requires that a period of notice must be
given or a lapse of time must occur or be
permitted before a right, power or remedy under
this deed or conferred by law may be exercised, then:
(a) when a period of notice or lapse of time is
mandatory, that period of notice must be
given or that lapse of time must occur or
be permitted by the Security Trustee or
Receiver; or
(b) when the law provides that a period of
notice or lapse of time may be stipulated
or fixed by this deed, one day is
stipulated and fixed as that period of
notice or lapse of time and, without
limitation, where applicable, one day is
stipulated and fixed as the period of
notice or lapse of time during which:
(i) default must continue before a notice
is given or requirement otherwise
made for payment of the Secured
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Money or the observance of obligations
under this deed; and
(ii) a notice or requirement for payment
of the Secured Money or the observance
of obligations under this deed must
remain not complied with before the
Security Trustee's or Receiver's
rights, powers or remedies may be
exercised.
No duty as chargee
13.5 Nothing in this deed imposes a duty upon the
Security Trustee to exercise its powers as
chargee under this clause 13 or at law in
circumstances where a motion at a meeting of
Voting Secured Creditors that a Receiver be
appointed is put and is not passed.
14 Costs, charges, expenses and indemnities
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Indemnity by Issuer Trustee
14.1 Subject to this deed and without prejudice to any
right of indemnity given by law, the Security Trustee
will be indemnified by the Issuer Trustee against
all costs and expenses, and all loss and liability,
properly incurred by the Security Trustee and the
Receiver (as the case may be) in performing any of
their duties or exercising any of their powers under
this deed.
Extent of Indemnity
14.2 Without limiting clause 14.1, the Security Trustee
in respect of each Security Trust is entitled to
be indemnified by the Issuer Trustee of the
relevant Trust for:
(a) the costs, charges and expenses (including
legal costs and disbursements charged at
the usual commercial rates of the relevant
legal services provider) of the Security
Trustee in connection with the negotiation,
preparation, execution, stamping,
registration and completion of this deed,
any deed amending this deed and the Deed
of Charge for that Trust;
(b) the costs, charges and expenses (including
legal costs and disbursements charged at the
usual commercial rates of the relevant
legal services provider) of the Security
Trustee in connection with any consent,
exercise or non-exercise of rights or powers
or performance of obligations (including,
without limitation, in connection with the
contemplated or actual enforcement or
preservation of any rights or powers or
performance of obligations under this deed),
production of title documents, waiver,
variation, release or discharge in connection
with the Deed of Charge for that Trust or the
Secured Property of that Trust;
(c) Taxes and fees (including, without limitation,
registration fees) and fines and penalties
in respect of Taxes and fees, which may be
payable or determined to be payable in
connection with this
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deed or a payment or receipt or any other
transaction contemplated by this deed;
(d) without limiting the generality of clause
14.2(b), all legal costs and disbursements
charged at the usual commercial rates of
the relevant legal services provider and all
other costs, disbursements, outgoings and
expenses of the Security Trustee in
connection with the initiation, carriage and
settlement of any court proceedings
(including, without limitation, proceedings
against the Issuer Trustee arising from any
fraud, neglect, breach or default by the
Issuer Trustee under this deed) in respect
of this deed,
except to the extent that any such amount is
caused or contributed to by the Security
Trustee's and Receiver's fraud, negligence
or breach of trust. If the Security Trustee
is not indemnified for these amounts from
the Issuer Trustee within a reasonable
period of requesting that indemnification,
then the Security Trustee may exercise its
rights of indemnity out of the assets of the
Security Trust Fund for that amount.
Costs of experts
14.3 The costs, charges and expenses referred to
in clause 14.2 include, without limitation,
those payable to any independent consultant
or other person appointed to evaluate any
matter of concern (including any person
consulted by the Security Trustee pursuant
to clause 7.10), any agent of the Security
Trustee, any Receiver or any attorney
appointed under this deed, and, in the case
of the Security Trustee, its administration
costs in connection with any event referred
to in clause 14.2.
GST
14.4 Any amount representing a cost, charge, fee,
liability or expense paid to the Security
Trustee under this deed will be inclusive of
GST. The supplier will provide the recipient
any reasonable documentation required for
GST purposes so as to enable the recipient
to receive an input tax credit or tax refund
for GST purposes.
15 Application of money
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Application
15.1 To the extent permitted by law, money
received in connection with this deed or the
Deed of Charge in respect of a Trust is to
be applied (after satisfaction of claims
taking priority over the Charge of which the
Security Trustee has actual notice) in the
order set out in the Supplemental Deed for
that Trust.
Crediting
15.2 In an application of money in accordance
with clause 15.1 the parties entitled to
payments under that clause are to be
credited only with so much of that money as
is actually received by the Security
Trustee. The credit dates from the time of
receipt. This provision applies even if in
exercising a power of sale the Security
Trustee or a Receiver transfers
33
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the Secured Property and takes a Security Interest to
secure the unpaid balance of purchase money.
Suspense account
15.3 If the Security Trustee receives money in connection
with this deed and a Security Trust when it considers
that an amount will become owing to it under clause 14
at a future date or when part of the Secured Money
is contingently owing, then the Security Trustee
may deposit an amount not exceeding that amount or
part in an interest bearing deposit account repayable
on demand which constitutes an Authorised Investment
on terms which the Security Trustee thinks fit with
any person until that amount or part becomes actually
payable or it considers that the amount will not
(and no other amount will) become owing to it under
clause 14 or until that part no longer falls within
the definition of Secured Money, as appropriate. At
that time, the Security Trustee may retain for its
own account the amount which is then actually payable
to it. The balance is to be paid in accordance with
clause 15.1.
15.4 No money received by the Security Trustee on the
realisation of the Secured Property in relation to a
Trust is payable to any person claiming any amount
due in respect of another Trust. The determination
by the Security Trustee (advised by the Global Trust
Manager) of which property constitutes the Secured
Property in relation to a Trust is conclusive in
the absence of manifest error.
15.5 Where any costs, fees, charges, expenses and
liabilities of the Security Trustee or a
Receiver are referable to more than one
Trust, they may be apportioned between those
Trusts at the discretion of the Security
Trustee (as advised by the Global Trust
Manager). Such apportionment by the Security
Trustee is conclusive in the absence of
manifest error.
15.6 If for any reason the periodic fees payable to
the Global Trust Manager, the Servicer, the Issuer
Trustee, the Security Trustee or any other person
cannot be allocated to a particular Trust and are
therefore required to be allocated between Trusts,
those fees shall be allocated on a proportionate
basis having regard to the average daily value of
the Assets of each of those Trusts.
16 Remuneration and retirement of Security Trustee and dealings with
Security Trust
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Remuneration
16.1 The Security Trustee is to receive a fee in
an amount and payable at such times and in
such manner as may from time to time be
agreed between the Global Trust Manager and
the Issuer Trustee in respect of each
Security Trust.
Mandatory Retirement
16.2 The Security Trustee covenants that it will
retire as Security Trustee if:
(a) the Security Trustee ceases to
carry on business in all respects
or as a professional trustee;
34
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(b) there is a change in ownership of
the Security Trustee of more than 50%;
(c) there is a change in the effective
management of the Security Trustee
without prior written consent of
the Global Trust Manager such that
the Security Trustee is in the
reasonable opinion of the Global
Trust Manager no longer able to
fulfil its duties and obligations;
(d) an Insolvency Event occurs in respect
of the Security Trustee in its personal
capacity (but not in its capacity as
trustee of any other trust);
(e) an Extraordinary Resolution requiring
the removal of the Security Trustee as
trustee of any Security Trust is passed
at a meeting of Voting Secured Creditors
convened under clauses 9.6, 9.7 or 9.8; or
(f) when required to do so by the Global Trust
Manager or the Issuer Trustee by notice
in writing, the Security Trustee fails or
neglects within 14 days after receipt of
such notice to carry out or satisfy any
material duty imposed on the Security
Trustee in respect of the Security Trust.
Removal by Global Trust Manager
16.3 If the Security Trustee refuses to retire, the
Global Trust Manager is entitled to remove the
Security Trustee from office immediately by
notice in writing if an event referred to in
clause 16.2 has occurred. On the retirement or
removal of the Security Trustee under the
provisions of clause 16.2 or this clause 16.3
the Global Trust Manager, subject to any approval
required by law, is entitled to and must use
its best endeavours to appoint in writing some
other person whose appointment will not have
an Adverse Rating Effect.
Voluntary Retirement
16.4 Subject to the appointment of a new Security
Trustee, the Security Trustee may retire as
trustee under this deed upon giving not more than
90 days' and not less than 30 days' notice
in writing to the Issuer Trustee and the Global
Trust Manager (or such other time as the Global
Trust Manager, the Issuer Trustee and the Security
Trustee agree). Subject to any approval required
by law, the Security Trustee may appoint in writing
as the replacement any other person who is approved
by the Global Trust Manager (such approval not to
be unreasonably withheld) and whose appointment
each Current Rating Agency confirms will not cause
an Adverse Rating Effect. If the Security Trustee
does not propose a replacement in the
notice given by the Security Trustee under this
clause or by the date which is 30 days prior to the
date of the Security Trustee's proposed retirement,
as the case may be, the Global Trust Manager must
appoint a new security trustee as of the date of
the proposed retirement.
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Appointment of new Security Trustee by Voting Secured Creditors
16.5 If a new security trustee has not been appointed
under clauses 16.3 or 16.4 at a time when the position
of security trustee becomes vacant in accordance
with those clauses, the Global Trust Manager must
act as security trustee in accordance and subject to
the protections contained in this deed and must
promptly convene a meeting of the Voting Secured
Creditors of all Trusts at which Voting Secured
Creditors, holding or who are owed between them an
amount which is not less than 75% of the Secured
Money at the time, appoint any person nominated by
any of them to act as security trustee.
Release of Security Trustee
16.6 Upon retirement or removal of the Security Trustee,
the Security Trustee is released from all obligations
under this deed arising after the date of the
retirement or removal except for its obligation to
vest each Security Trust Fund in the new security
trustee and to deliver all books and records
relating to the Security Trust to the new security
trustee (at the cost of each Security Trust Fund).
The Global Trust Manager and the Issuer Trustee
may settle with the Security Trustee the amount of
any sums payable by the Security Trustee to the
Global Trust Manager or the Issuer Trustee or by
the Global Trust Manager or the Issuer Trustee to
the Security Trustee and may give to or accept from
the Security Trustee a discharge in respect of those
sums which will be conclusive and binding as
between the Global Trust Manager, the Issuer
Trustee and the Security Trustee but not as between
the Security Trustee and the Voting Secured Creditors.
The removal, retirement or discharge of the Security
Trustee will not affect the rights or indemnities
available to it under this deed or at law in relation
to the performance and exercise by the Security
Trustee of its obligations and powers as Security
Trustee.
Vesting of Security Trust Fund in new Security Trustee
16.7 The Security Trustee, on its retirement or removal,
must vest each Security Trust Fund of the relevant
Security Trusts or cause it (or them) to be vested
in the new security trustee and must deliver and
assign to such new security trustee as appropriate all
books, documents, records and other property
whatsoever relating to the Security Trust Fund or
Security Trust Funds. Except on removal, the Security
Trustee may make it a condition of vesting property
in the new security trustee that all liabilities of
the retiring security trustee for which it is entitled
to be indemnified and for which the retiring security
trustee considers it is personally liable are first
satisfied or provided for to the reasonable
satisfaction of the retiring security trustee.
New Security Trustee to Execute Deed
16.8 Each new security trustee must upon its
appointment execute a deed in such form as
the Global Trust Manager may require whereby
such new security trustee must undertake to
the relevant Voting Secured Creditors
jointly and severally to be bound by all the
covenants on the part of the Security
Trustee under this deed from the date of
such appointment. Any appointment of a new
security trustee has no effect until such a
deed is executed by the new security
trustee.
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Security Trustee Further Assurance
16.9 The Security Trustee must do all such things
and execute all such documents which are
necessary or appropriate for the new
security trustee to obtain the benefit of
this deed.
Dealings with Trust
16.10 None of the:
(a) Security Trustee;
(b) Related Entities of the Security Trustee;
(c) directors or officers of the Security
Trustee or its Related Entities; or
(d) shareholders of the Security Trustee
or its Related Entities,
is prohibited from:
(i) subscribing for, purchasing, holding, dealing
in or disposing of Notes;
(ii) at any time:
(A) contracting with;
(B) acting in any capacity as
representative or agent for; or
(C) entering into any financial, banking,
agency or other transaction with,
any other of them, the Issuer Trustee (and
its Related Entities), the Global Trust
Manager (and its Related Entities) or any
Secured Creditor;
(iii) being interested in any contract or
transaction referred to in paragraph (ii); or
(iv) doing anything it could do if the Security
Trustee and the Issuer Trustee were not
parties to this deed.
None of the persons mentioned is liable to account
to the Voting Secured Creditors for any profits or
benefits (including, without limitation, bank charges,
commission, exchange brokerage and fees) derived in
connection with anything referred to in paragraph (i)
to (iv).
The preceding provisions of this clause 16.10 only
apply if the Security Trustee, in connection with the
action, contract or transaction, acts in good faith
to all Voting Secured Creditors.
Without limiting the rest of this clause 16.10, the
Security Trustee and any Related Entity of the
Security Trustee may perform different roles in
connection with the Transaction Documents, including
roles as issuer trustee, security trustee, registrar,
paying agent, beneficiary, and notwithstanding that
interests or duties of the Related Entity of the
37
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Security Trustee in respect of those roles may
conflict with interests or duties of the Security
Trustee or the interests of any Secured Creditor of
a Trust. The Security Trustee and each Related Entity
of the Security 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 deed and the Transaction
Documents. This paragraph is subject to the
requirement that the Security Trustee and each
relevant Related Entity of the Security Trustee acts
in good faith without fraud, negligence or breach of
trust regarding the Voting Secured Creditors of
each Trust in exercising any powers or rights or
taking any action of the kind permitted under this
clause.
16.11 The Security Trustee will bear the reasonable costs
of its removal if it is removed because of an
Insolvency Event. The Security 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.
17 Preservation of Security Trustee's rights
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Liabilities of Issuer Trustee not affected
17.1 The liabilities under this deed of the Issuer
Trustee and the rights under this deed of the
Security Trustee, a Receiver or an attorney appointed
under this deed are not affected by anything which
might otherwise affect them at law or in equity
including, without limitation, one or more of the
following (whether occurring with or without the
consent of a person):
(a) the Security Trustee or another person
granting time or other indulgence (with or
without the imposition of an additional
burden) to, compounding or compromising
with, or wholly or partially releasing
the Issuer Trustee or another person in
any way;
(b) laches, acquiescence, delay, acts, omissions
or mistakes on the part of the Security
Trustee or another person or both the
Security Trustee and another person;
(c) any variation or novation of a right of
the Security Trustee or another person, or
material alteration of a document, in
respect of the Issuer Trustee or another
person including, without limitation, an
increase in the limit of or other variation
in connection with the Secured Money;
(d) the transaction of business, expressly or
impliedly, with, for or at the request of
the Issuer Trustee or another person;
(e) a change in the legal capacity, rights or
obligations of a person;
(f) the fact that a person is a trustee, nominee,
joint owner, joint venturer or a member of a
partnership, firm or association;
(g) a judgment against the Issuer Trustee or
another person;
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(h) any part of the Secured Money being
irrecoverable;
(i) an assignment of rights in connection
with the Secured Money;
(j) the acceptance of repudiation or other
termination in connection with the
Secured Money;
(k) without limiting the provisions of the
Transaction Documents, the invalidity
or irregularity in the execution of this
deed by the Issuer Trustee or any other
person or any deficiency in the powers of
the Issuer Trustee or any other person
to enter into or observe its obligations
under this deed; or
(l) any obligation of the Issuer Trustee or
any other person being discharged by
operation of law or otherwise.
Continuing Security
17.2 This deed is a continuing security despite any
intervening payment, settlement of account or
other thing until a release has been executed
and given to the Issuer Trustee.
Other rights unaffected
17.3 Except as expressly limited under this deed,
this deed does not otherwise affect any other
right, power or remedy of a Secured
Creditor at law or in equity.
Purchaser from Security Trustee
17.4 A purchaser from or other person dealing with
the Security Trustee, or any Receiver, or any
attorney appointed under this deed or a person
to whom is tendered for registration an instrument
duly executed by any of them need not inquire:
(a) whether the Secured Money is in fact
owing or payable;
(b) whether default has occurred;
(c) whether a right, power or remedy which
they have exercised or purported to
exercise has been properly exercised;
(d) whether a Receiver has been properly
appointed; or
(e) about any other thing in connection with
the exercise or purported exercise of a
right, power or remedy.
The title of any person relying on this clause is
not affected by express or constructive notice of
anything in connection with the matters referred to
in clauses 17.4(a) to (e) (inclusive).
18 Power of attorney
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Attorney of Issuer Trustee
18.1 The Issuer Trustee, in respect of each Trust,
irrevocably appoints the Security Trustee, each
Authorised Person of the Security Trustee, and
each Receiver severally its attorneys.
39
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Attorney's Powers
18.2 Upon the occurrence of an Event of Default in
relation to a Trust, each attorney may:
(a) in the name of the Issuer Trustee (in its
capacity as trustee of that Trust) or the
attorney do anything which the Issuer
Trustee (in its capacity as trustee of that
Trust) may lawfully authorise an attorney to
do in connection with this deed or the
Secured Property of that Trust or which in
the attorney's opinion is necessary or
expedient to give effect to any right, power
or remedy conferred on the Security Trustee
or a Receiver by this deed, by law or
otherwise, (including, without limitation,
executing deeds and instituting, conducting
and defending legal proceedings);
(b) delegate such of its powers (including, and
where applicable, this power of delegation)
as it would be entitled to delegate under
clause 7.23 if it held those powers in its
own right rather than as attorney of the
Issuer Trustee (in its capacity as trustee
of the Trust) to any person for any period
and may revoke a delegation; and
(c) exercise or concur in exercising its powers
even if the attorney has a conflict of duty
in exercising its powers or has a direct or
personal interest in the means or result of
that exercise of powers.
Ratification by Issuer Trustee
18.3 The Issuer Trustee agrees to ratify anything
done by an attorney or its delegate in accordance
with clause 18.2.
19 Notices
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Form
19.1 A notice, approval, consent or other communication
in connection with this deed:
(a) may be given by an Authorised
Person of the relevant party; and
(b) must be in writing; and
(c) must be left at the address of the
addressee, or sent by prepaid
ordinary post (airmail if posted to
or from a place outside Australia)
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 set out below or which is
notified to the parties from time
to time after execution of this deed.
40
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Issuer Trustee
Address: Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Facsimile: (00 0) 0000 0000
Attention: Manager, Securitisation
E-mail: as notified from time to time
Security Trustee
Address: Xxxxx 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Facsimile: (00 0) 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: (000) 0000 0000
Attention: Manager, Group Funding
E-mail: as notified from time to time
Note Trustee
Address: 000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000 XXX
Facsimile: (000) 000 0000
Attention: Global Structured Products Unit
E-mail: as notified from time to time
Time effective
19.2 Unless a later time is specified in it a notice,
approval, consent or other communication takes
effect from the time it is received.
Receipt
19.3 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
41
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(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.
However, if the time of deemed receipt of
any notice is not before 4.00pm local time
on a Business Day at the address of the
recipient, it is deemed to have been
received at the commencement of business on
the next Business Day.
19.4 All notices with respect to the Secured Creditors
are valid if despatched by prepaid ordinary post
(airmail if posted to a place outside Australia)
to the Secured Creditors at their registered office
(or, in the case of Noteholders holding Registered
Notes, to the address specified in the Register
and, in the case of joint holders, to the person
whose name first appears in the Register) or, in the
case of the owners of Bearer Notes, any notice will
be effectively given if it is given to the Note
Trustee in accordance with this clause and in the
manner contemplated by the relevant Note Trust Deed
and the terms and conditions of issue (if any) of
the relevant Bearer Notes. Such notice is taken to be
received on the third (seventh, if posted to a place
outside Australia) day after posting.
20 Release and assignment
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Release
20.1 (a) The Security Trustee agrees to execute a
release of the Secured Property of a
Trust from the relevant Charge at the
request of the Issuer Trustee and the
Global Trust Manager of the relevant
Trust on the earlier to occur of the full
and final payment of all of the Secured
Money of that Trust and the termination
of the Trust.
(b) The Security Trustee agrees to execute
a release of any part of the Security
Property of a Trust from the relevant
Charge if such a release is permitted
under the Transaction Documents for that
Trust.
Assignment
20.2 The Issuer Trustee of a Trust may not create or
allow to exist a Security Interest over an interest
in this deed or assign or otherwise dispose of or
deal with its rights under this deed otherwise than
in accordance with the Master Trust Deed or the
relevant Supplemental Deed.
21 Miscellaneous
------------------------------------------------------------------------------
Certificate
21.1 A certificate signed by the Security Trustee
or its solicitors about a matter or about a
sum payable to the Security Trustee in
connection with this deed or a Deed of
Charge is sufficient evidence of the matter
or sum stated in the certificate unless the
matter or sum is proved to be false.
42
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Exercise of rights
21.2 The Security Trustee, a Receiver 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 the case of its fraud or wilful default
or, in the case of the Security Trustee, negligence,
fraud or breach of trust.
Waiver and variation
21.3 Subject to clause 9.5, 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
21.4 Any present or future legislation which
operates to vary the obligations of the
Security Trustee in connection with this
deed, the Secured Money or the Secured
Property with the result that the Security
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
21.5 The Security Trustee, a Receiver 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
21.6 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
21.7 Each indemnity in this deed is a continuing
obligation, separate and independent from
the other obligations of the Security
Trustee and survives termination of this
deed. It is not necessary for the Security
Trustee to incur expense or make payment
before enforcing a right of indemnity
conferred by this deed.
Time of the essence
21.8 Time is of the essence in this deed in respect
of an obligation of the Security Trustee to
pay money.
Receipts
21.9 The receipt of a Receiver, or an Authorised
Person of the Security Trustee, releases the
person paying money to the Receiver or the
Security Trustee in connection with this
deed from:
43
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(a) liability to enquire whether the
Secured Money has become payable;
(b) liability for the money paid or
expressed to be received; and
(c) being concerned to see to its
application or being answerable or
accountable for its loss or misapplication.
Acknowledgment
21.10 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 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.
21.11 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.
22 Amendment to Master Security Trust Deed and Deed of Charge
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Amendments
22.1 Subject to this clause 22.1 and to any approval
required by law (including, without limitation, under
the TIA) and by clause 22.2, and provided that 10
Business Days prior notice of the proposed amendment
has been given to the Security Trustee and the Current
Rating Agency, the Issuer Trustee, the Global Trust
Manager, the Security Trustee and the Note Trustee
by deed may amend, add to or revoke any provision
of this deed (including this clause 22.1) as it
applies to any Security Trust or any provision of
any Deed of Charge for the Security Trust if the
amendment, addition or revocation:
(a) in the opinion of the Security
Trustee or of a barrister or
solicitor instructed by the
Security 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 Security
Trustee is made to correct a
manifest error or ambiguity or is
of a formal, technical or
administrative nature only;
(c) in the opinion of the Security
Trustee or the Global Trust Manager
will enable the provisions of this
deed or the Deed of Charge to be
more conveniently, advantageously,
profitably or economically
administered;
44
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(d) in the opinion of the Security
Trustee or the Global Trust Manager
is otherwise desirable for any
reason; or
(e) is considered by the Security
Trustee not to be materially
prejudicial to the interests of the
Voting Secured Creditors as a whole
or the interests of any individual
Voting Secured Creditors or group
of Voting Secured Creditors.
Consent required
22.2 If in the reasonable opinion of the Security
Trustee any amendment, addition or
revocation referred to in clause 22.1(c) or
clause 22.1(d) will be or is likely to
become prejudicial to the interests of
Voting Secured Creditors of a particular
class in respect of the Security Trust or to
the interests of all Voting Secured
Creditors in respect of the Security Trust,
the amendment, addition or revocation may be
effected only if in accordance with clause
22.3 or 22.4 (as the case may be).
Amendments prejudicial to Voting Secured Creditors of a Class
22.3 Subject to clause 22.4, if in the opinion of
the Security Trustee any amendment, addition
or revocation referred to in clause 22.1(c)
or clause 22.1(d) will be or is likely to
become prejudicial to the interests of
Voting Secured Creditors of a particular
class, the amendment, addition or revocation
may only be effected if the relevant Voting
Secured Creditors pass an Extraordinary
Resolution approving such amendment,
addition or revocation in accordance with
clause 10.
Amendments prejudicial to all Voting Secured Creditors
22.4 If in the opinion of the Security Trustee,
any amendment, addition or revocation
referred to in clause 22.1(c) or clause
22.1(d) will be or is likely to become
prejudicial to the interests of all Voting
Secured Creditors in respect of the Security
Trust:
(a) the amendment, addition or
revocation may only be effected if
the relevant Voting Secured
Creditors pass an Extraordinary
Resolution approving such
amendment, addition or revocation
in accordance with clause 10; and
(b) there will not be a separate
Extraordinary Resolution required
for each class of Voting Secured
Creditors pursuant to clause 22.3.
Consent to Payment Modification in relation to Notes
22.5 If any alteration, addition or revocation
referred to in clause 22 effects or purports
to effect a Payment Modification it will not
be effective as against a given Noteholder
unless consented to by that Noteholder.
22.6 The Security Trustee will be entitled to assume
that any proposed alteration, addition or revocation
referred to in clause 22 (other than a Payment
Modification) 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.
45
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Unconditional Rights of Noteholders to Receive Principal and Interest
22.7 Notwithstanding any other provision of this deed,
any Noteholder shall have the right, which is
absolute and unconditional, to receive payment
of the principal of and interest, if any, on
each Note held by it on or after the respective
due dates thereof expressed in such Note or in this
deed or to institute suit for the enforcement of
any such payment if and to the extent that the
institution or prosecution thereof or the entry
of judgment therein would, under applicable law,
result in the surrender, impairment, waiver, or
loss of the Security Interest created by this deed
and each Deed of Charge upon any property subject
to such Security Interest, and such right shall not
be impaired without the consent of such Noteholder,
except to the extent that the Transaction Documents
contain provisions limiting or denying the right of
any Noteholder to institute any such suit.
23 Governing law, jurisdiction and service of process
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Governing Law
23.1 This deed and each Security Trust are governed
by the law in force in the Australian Capital
Territory and the rights, liabilities and
obligations of the Issuer Trustee, Security
Trustee, Global Trust Manager, the Note Trustee,
the Unitholders and the Secured Creditors are
governed by the laws in force in the Australian
Capital Territory.
Non-exclusive jurisdiction
23.2 Each party irrevocably and unconditionally
submits to the non-exclusive jurisdiction of
the courts of the Australian Capital
Territory and courts of 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 of process
23.3 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 19.
24 Counterparts
------------------------------------------------------------------------------
This deed may consist of a number of counterparts
and the counterparts taken together constitute
one and the same instrument.
25 Limited Recourse
------------------------------------------------------------------------------
25.1 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).
46
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Security Trustee Liability
25.2 Notwithstanding any other provision of this deed,
the Security Trustee will have no liability under
or in connection with this deed, a Security Trust,
or any other Transaction Document (whether to the
Voting Secured Creditors, the Issuer Trustee, the
Global Trust Manager or any other person) other
than to the extent to which the liability is able
to be satisfied in accordance with this deed out
of the property of the Security Trust Fund of the
Security Trust from which the Security Trustee
is actually indemnified for the liability. This
limitation will not apply to a liability of the
Security Trustee to the extent that it is not
satisfied because, under this deed or by operation
of law, there is a reduction in the extent of the
Security Trustee's indemnification out of the
relevant Security Trust Fund as a result of the
Security Trustee's fraud, negligence or breach of
trust. Nothing in this clause 25.2 or any similar
provision in any other Transaction Document limits
or adversely affects the powers of the Security
Trustee, any Receiver or attorney in respect of any
Security Trust Deed or any Secured Property.
26 Relevant Note Trustee
------------------------------------------------------------------------------
Capacity
26.1 The Note Trustee is a party to this deed in its
capacity as trustee from time to time for the Bearer
Noteholders of each Trust which are issued with
the benefit of a Note Trust Deed in respect of such
Trust (under the relevant Note Trust Deed for each
such Trust) in respect of which the Supplemental
Deed for that Trust specifies that this deed, and
the role of the Note Trustee, is to apply to that
Trust.
Exercise of rights
26.2 Except as otherwise provided in this deed and in
the relevant Note Trust Deed:
(a) (Only by Note Trustee): the rights,
remedies and discretions of the
relevant Bearer Noteholders under
this deed including all rights to
vote or give instructions or
consent to the Security Trustee and
to enforce any undertakings or
warranties under this deed, may
only be exercised by the relevant
Note Trustee on behalf of the
relevant Bearer Noteholders in
accordance with the relevant Note
Trust Deed; and
(b) (Limited Right of Enforcement by
Bearer Noteholders): the relevant
Bearer Noteholders may only exercise
enforcement rights in respect of the
Secured Property through the relevant
Note Trustee and only in accordance
with this deed.
Instructions or directions
26.3 The Security Trustee may rely on any instructions
or directions given to it by the relevant Note
Trustee as being given on behalf of all the
Bearer Noteholders from time to time and need not
inquire whether any such instructions or directions
are in accordance with the relevant Note Trust
Deed, whether the relevant Note Trustee or the
Bearer Noteholders from time to time have complied
with any requirements under the
47
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relevant Note Trust Deed or as to the reasonableness
or otherwise of the relevant Note Trustee.
Voting at Meetings
26.4 If the Note Trustee in respect of a Trust is entitled
under this deed to vote at any meeting of the
Secured Creditors or Voting Secured Creditors of
that Trust on behalf of the Bearer Noteholders of
that Trust, the Note Trustee must vote in accordance,
where applicable, with the directions of the
Bearer Noteholders of that Trust in accordance
with the Note Trust Deed and otherwise in its
absolute discretion.
Payments
26.5 Any payment to be made to a Bearer Noteholder
under this deed may be made to the relevant
Note Trustee or a Paying Agent on behalf of
that Bearer Noteholder.
Notices
26.6 Any notice to be given to a Bearer Noteholder
under this deed may be given to the relevant
Note Trustee on behalf of that Bearer Noteholder.
Any costs to the relevant Note Trustee of
publishing such notice to the Bearer Noteholders
will, subject to this deed, be reimbursed by the
Issuer Trustee to the relevant Note Trustee.
Limitation of relevant Note Trustee's Liability
26.7 The liability of the relevant Note Trustee
under this deed is limited in the manner and
to the same extent as under the relevant
Note Trust Deed.
EXECUTED as a deed in the Australian Capital Territory.
48
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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 )
)
................................................ ) ...............................................
Occupation of witness ) By executing this deed the attorney states that
) the attorney has received no notice of
) revocation of the power of attorney
SIGNED, SEALED AND DELIVERED by )
as attorney for P.T. 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
Occupation of witness ) the attorney has received no notice of
) revocation of the power of attorney
49
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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
Occupation of witness ) that the signatory has received no notice of
) revocation of the authority pursuant to
) which they execute this deed
SIGNED, SEALED AND DELIVERED by )
as authorised signatory for THE BANK OF NEW YORK, )
NEW YORK BRANCH )
)
in the presence of: )
)
................................................ )
Signature of witness )
)
................................................ )
Name of witness (block letters) )
)
................................................ )
Address of witness )
) ...............................................
................................................ ) By executing this deed the signatory states that
Occupation of witness ) signatory has received no notice of revocation
) of the authority under which this deed is signed,
sealed and delivered
1
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Contents National RMBS Trusts
------------------------------------------------------------------------------
Master Security Trust Deed
1 Interpretation 2
Definitions Schedule 2
Miscellaneous 2
2 Declaration of Security Trust 2
Declaration of Security Trust 2
Commencement and Termination 2
Name of Security Trust 3
Rights of Secured Creditors 3
3 Payments 4
Payment to Security Trustee 4
Discharge by Payment to Secured Creditors 4
Election by Security Trustee 4
4 Covenants by Issuer Trustee 4
General Covenants 4
Covenants in respect of Secured Property 6
Global Trust Manager Undertakings 6
5 Further assurances 7
Issuer Trustee Assurances 7
Completion of Instruments 7
Registration of Charge 7
6 Representations and warranties 7
Global Trust Manager representation and
warranties 8
7 General powers, rights and
responsibilities 9
Power to Invest 9
Other Powers 9
Discretion of Security Trustee as to
Exercise of Powers 9
Limitation on Security Trustee's Actions 9
Limitations on Security Trustee's
Responsibility 9
No Liability 10
Security Trustee not responsible for
monitoring 11
Security Trustee's Further Duties 12
Acceptance of Certificates etc. 12
Act on Opinion of Experts 13
Right to Rectify 13
Consent to Dealings 13
Ascertain Event of Default 13
No duty to investigate 14
Liability must be limited 14
Not use own funds 14
Cover for costs 14
Receipt of instructions 15
Dispute or ambiguity 15
2
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No liability for documents 15
Conflict of duty 16
Indemnity 16
Delegation 16
No Liability 17
8 Crystallisation of floating charge 17
Crystallisation 17
Replacement of fixed charge with
floating charge 18
Subsequent dealing 18
Further charge 19
9 Security Trustee to convene meetings 19
Convene Meetings 19
Extraordinary Resolutions 19
Notice 20
No obligation to appoint Receiver 20
Waiver of Event of Default 20
Meetings 20
Global Trust Manager convenes meeting 20
Secured Creditors convene meeting 20
Notice of Event of Default 21
Notice of action to remedy Event of Default 21
Limitation on rights of Secured Creditors 21
10 Meeting of Voting Secured Creditors 21
Notice of Meeting 21
Advertisement of Meeting in Newspaper 22
Quorum 22
Quorum at Adjourned Meeting 23
Chairman 23
Voting 23
Votes 23
Voting by Joint Noteholders 24
Voting by Corporation 24
Voting by Person of Unsound Mind 24
Objection to Voter's Qualification 24
Method of Voting 25
Proxy Instrument 25
Attendance at Meetings and Appointment
of Proxy 25
Voting Authority to be Deposited with
Security Trustee 25
Form of Proxy 25
Proxy - Effect of Death or Insanity 26
Determination of Voting 26
Adjournment 26
Effect of Resolution 26
Minutes 26
11 Appointment of receiver 27
Appointment 27
New Receiver 27
No Liability for Receiver 27
Two or more Receivers 27
3
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Appointment over part 27
Indemnity to Receiver 27
12 Powers of receiver 27
13 Powers of security trustee and exclusion
of statutory notices 30
Security Trustee has powers of Receiver 30
No liability as mortgagee in possession 30
Give up possession of Secured Property 30
Exclusion of notices 30
No duty as chargee 31
14 Costs, charges, expenses and indemnities 31
Indemnity by Issuer Trustee 31
Extent of Indemnity 31
Costs of experts 32
GST 32
15 Application of money 32
Application 32
Crediting 33
Suspense account 33
16 Remuneration and retirement of Security
Trustee and dealings with Security Trust 33
Remuneration 33
Mandatory Retirement 34
Removal by Global Trust Manager 34
Voluntary Retirement 34
Appointment of new Security Trustee by
Voting Secured Creditors 35
Release of Security Trustee 35
Vesting of Security Trust Fund in new
Security Trustee 35
New Security Trustee to Execute Deed 35
Security Trustee Further Assurance 36
Dealings with Trust 36
17 Preservation of Security Trustee's rights 37
Liabilities of Issuer Trustee not affected 37
Continuing Security 38
Other rights unaffected 38
Purchaser from Security Trustee 38
18 Power of attorney 39
Attorney of Issuer Trustee 39
Attorney's Powers 39
Ratification by Issuer Trustee 39
19 Notices 39
Form 39
Time effective 40
Receipt 40
4
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20 Release and assignment 41
Release 41
Assignment 41
21 Miscellaneous 42
Certificate 42
Exercise of rights 42
Waiver and variation 42
Supervening legislation 42
Approvals and consent 42
Remedies cumulative 42
Indemnities 42
Time of the essence 43
Receipts 43
Acknowledgment 43
22 Amendment to Master Security Trust
Deed and Deed of Charge 43
Amendments 43
Consent required 44
Amendments prejudicial to Voting Secured
Creditors of a Class 44
Amendments prejudicial to all Voting
Secured Creditors 44
Consent to Payment Modification in
relation to Notes 44
Unconditional Rights of Noteholders to
Receive Principal and Interest 45
23 Governing law, jurisdiction and
service of process 45
Governing Law 45
Non-exclusive jurisdiction 45
Service of process 45
24 Counterparts 45
25 Limited Recourse 46
Security Trustee Liability 46
26 Relevant Note Trustee 46
Capacity 46
Exercise of rights 46
Instructions or directions 47
Voting at Meetings 47
Payments 47
Notices 47
Limitation of relevant Note
Trustee's Liability 47
------------------------------------------------
Dated [ ]
National RMBS Trusts
Consolidated
Master Security Trust Deed
Perpetual Trustee Company Limited
("Issuer Trustee")
P.T. Limited
("Security Trustee")
National Global MBS Manager Pty Ltd
("Global Trust Manager")
The Bank of New York, New York Branch
("Note Trustee")
Mallesons Xxxxxxx Xxxxxx
Governor Xxxxxxx Xxxxx
0 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Telephone (00) 0000 0000
Fax (00) 0000 0000
DX 000 Xxxxxx
Ref: SRF:CD3
