Exhibit 4.3
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National RMBS Trust 200[ ]-[ ] Supplemental Deed
Date: [ ]
Parties: [NAME AND ABN OF ISSUER TRUSTEE] in its capacity as trustee
of the Trust having its registered office at [address of
Issuer Trustee] (hereinafter included in the expression
"Issuer Trustee")
NATIONAL GLOBAL MBS MANAGER PTY LTD (ABN 36 102 668 226)
having an office at Level 00, 000 Xxxxxx Xxxxxx, Xxxxxxxxx
XXX 0000, Xxxxxxxxx ("Global Trust Manager")
NATIONAL AUSTRALIA BANK LIMITED (ABN 12 004 044 937)
having its registered office at Level 00, 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 0000 (in its capacity as
"Seller")
[NAME AND ABN OF SECURITY TRUSTEE] in its capacity as
security trustee of the Security Trust having its
registered office at [address of Security Trustee]
(hereinafter included in the expression "Security
Trustee")
NATIONAL AUSTRALIA BANK LIMITED (ABN 12 004 044 937)
having its registered office at Level 00, 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 0000 (in its capacity as
"Servicer")
[Insert any other relevant parties]
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Recitals:
A. By the Master Trust Deed, provision was made for the
establishment of the Trust pursuant to a Notice of
Creation of Trust, which will be regulated by this deed.
B. The Issuer Trustee may acquire Mortgage Loans.
C. The Security Trustee will hold a security interest over
the Assets of the Trust under the Master Security Trust
Deed and the Deed of Charge.
D. The Servicer will be appointed to service the Mortgage
Loans, which, from time to time, will comprise Assets of
the Trust under, the Servicing Agreement and this deed.
E. The Issuer Trustee, at the direction of the Global Trust
Manager, may obtain funds by issuing the Notes in
accordance with the terms of this deed.
F. The parties to this deed have agreed that the terms and
conditions for the constitution of the Trust and the
issuing of the Notes in respect of the Trust will be the
terms and conditions set out in the Master Trust Deed and
this deed.
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Operative provisions:
PART 1 - INTERPRETATION
1 Interpretation
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Definitions
1.1 The following words have these meanings unless the
contrary intention appears:
A$ means the lawful currency of the Commonwealth of
Australia.
A$ [Senior Class of Note] Interest Amount means [insert
methodology for calculation of interest amount]
A$ [Senior Class of Note] Interest Rate means, in respect
of a [Senior Class of Note], [insert methodology for
calculation of interest rate]
A$ [Senior Class of Note] Margin, in respect of a [Senior
Class of Note], has the same meaning as the "Spread"
specified under the heading "A$ Floating Amounts payable
by Party B" in the confirmation for each Currency Swap.
A$ [Senior Class of Note] Principal means, in relation to
a Payment Date [insert methodology for calculation of
principal]
A$ Equivalent means, in relation to an amount which is
calculated, determined or expressed in US$ or which
includes a component determined or expressed in US$, that
US$ amount or US$ component (as the case may be)
multiplied by the A$ Exchange Rate and expressed in A$.
A$ Exchange Rate means the "A$ Exchange Rate" specified
under the heading "Exchange Rates" in the confirmation for
each Currency Swap.
A$ Note means [insert class/classes of A$ Note].
A$ Note Interest Amount means, in respect of an A$ Note, a
Payment Date and the Interest Period ending on (but
excluding) that Payment Date, the amount calculated in
accordance with clause 8.7 for that A$ Note.
A$ Note Interest Rate means, in respect of an A$ Note, a
Payment Date and the Interest Period ending on (but
excluding) that Payment Date, [insert methodology for
calculation of interest rate]
A$ Note Margin means, in relation to an A$ Note, [insert
methodology for calculation of margin]
Aggregate Stated Amount means, on any Determination Date,
the aggregate of the A$ Equivalent of the Stated Amounts
of the relevant Notes at that time.
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Available Income means, for any period, the amount
calculated in accordance with clause 14.4.
Available Liquidity Amount has the meaning given to it in
the Liquidity Facility Agreement.
Available Redraw Amount has the meaning given to it in the
Redraw Facility Agreement.
[Bank Xxxx Xxxx means, in respect of any Interest Period,
the rate expressed as a percentage per annum:
(a) calculated by taking the rate appearing on the
Reuters screen BBSW page at or about 10.15 am
(Melbourne time) on the first day of that Interest
Period for each bank so quoting (being no fewer than
five) as being the mean buying and selling rate for a
bill (which for the purpose of this definition means
a bill of exchange of the type specified for the
purpose of quoting on the Reuters screen BBSW page)
having a tenor of 90 days after eliminating the
highest and the lowest mean rates and taking the
average of the remaining mean rates (rounded up, if
necessary, to the nearest four decimal places);
(b) if fewer than five banks quote on the Reuters screen
BBSW page, the rate calculated as above by taking the
rates otherwise quoted by five banks otherwise
authorised to quote rates on the Reuters screen BBSW
page at or about 10.15 am (Melbourne time) for a bill
of exchange having a tenor of 90 days; or
(c) if a rate cannot be determined in accordance with the
procedures in (a) or (b), the rate specified in good
faith by the Global Trust Manager at or around that
time on that day, having regard, to the extent
possible, to comparable indices then available as to
the rate otherwise bid and offered for bills of
exchange having a tenor of 90 days,
provided that, in respect of the first Interest Period if
the Interest Period is less than 90 days, the Bank Bill
Rate for that Interest Period will be the Bank Bill Rate
for 90 days and if the first Interest Period is greater
than 90 days, the Bank Bill Rate for that Interest Period
will be calculated by the Global Trust Manager to be a
linear interpolated rate for the relevant period.]
Basis Swap means an ISDA Master Agreement, the schedule
relating to it and each confirmation between the Basis
Swap Provider, the Issuer Trustee and the Global Trust
Manager under which the Issuer Trustee pays to the Basis
Swap Provider an amount in respect of Purchased Mortgage
Loans that do not bear interest at a fixed rate and under
which the Basis Swap Provider pays to the Issuer Trustee
an amount calculated by reference to the [Bank Bill Rate].
Basis Swap Provider means [name of Basis Swap Provider] or
such other person who may be appointed under this deed or
the Basis Swap to act as the Basis Swap Provider.
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Call Option Date means, in respect of the Notes, each
Payment Date commencing on or after the earlier of:
(a) the Payment Date falling in [month, year]; and
(b) the Payment Date on which the aggregate Outstanding
Principal Balance of all Housing Loans referable to
the Purchased Mortgage Loans (calculated as at the
end of the immediately preceding Collection Period)
is less than 10% of the aggregate Outstanding
Principal Balance of all Housing Loans referable to
the Purchased Mortgage Loans on the Closing Date.
Xxxxxxxxx Principal Charge-Off has the meaning given in
clause 14.15.
[Senior Class of Book-Entry Note] means a Book-Entry Note
(as defined in the Definitions Schedule) issued in respect
of the [Senior Class of Notes].
[Senior Class of Definitive Note] means a Definitive Note
(as defined in the Definitions Schedule) issued in respect
of the [Senior Class of Notes].
[Senior Class of Note] means a Note referred to in clause
8.1(a) and issued on the terms and conditions contained in
the [Conditions of the Senior Class of Notes / this deed
and the Dealer Agreement].
[Noteholders of the Senior Class of Notes] has the same
meaning as in the [Conditions of the Senior Class of
Notes].
[Conditions of the Senior Class of Notes] means the terms
and conditions for the [Senior Class of Notes] as annexed
as Schedule 1 to the Note Trust Deed in respect of the
Trust.
[Note Owner of Senior Class of Note] means a Note Owner
(as defined in the Definitions Schedule) in respect of the
[Senior Class of Notes].
[Senior Class of Note] Percentage means [insert
methodology for calculation of percentage]
[Register of Senior Class of Notes]means the Note Register
(as defined in the Definitions Schedule) maintained in
respect of the [Senior Class of Notes].
[Registrar of Senior Class of Notes]means the Note
Registrar (as defined in the Definitions Schedule) in
respect of the [Senior Class of Notes].
[Junior Class of Note] means a Note referred to in clause
8.1(b) issued on the terms and conditions contained in
[this deed and the Dealer Agreement / Conditions of the
Junior Class of Notes (if the Junior Class of Notes is
issued in US)].
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[Noteholder of Junior Class of Notes] means [where the
Junior Class of Notes are not issued in the US] each
person who is from time to time entered in the Register as
the holder of a [Junior Class of Note].
[Junior Class of Note] Percentage means [insert
methodology for calculation of percentage]
[Junior Class of Note] Principal means, in relation to a
Payment Date, [insert methodology for calculation of
principal]
Clean-Up Account means the bank account established by the
Issuer Trustee under clause 5.6(iii)(A) and, pending the
establishment of that bank account in accordance with this
deed, means the Collections Account.
Clean-Up Amount means [insert methodology for calculation
of clean-up amount]
Clean-Up Offer has the meaning given to it in clause 5.1.
Clean-Up Offer Amount has the meaning given to it in
clause 5.1.
Clean-Up Option means the offer by the Issuer Trustee to
reconvey the Purchased Mortgage Loans to the Seller under
clause 5.1.
Closing Date means the date on which the offer contained
in a Secondary Sale Agreement is accepted by the Issuer
Trustee.
Collateral Account means any collateral account (as
defined in, and established under, a Support Facility).
Collection Period means, in relation to a Payment Date,
the period from (and including) the first day of the
[insert applicable monthly, quarterly or semi-annual
collection period] immediately preceding the related
Determination Date up to (and including) the last day of
the [insert applicable monthly, quarterly or semi-annual
collection period] immediately preceding the related
Determination Date except in the case of the first
Collection Period, which commences on the day after the
Cut-Off Date and ends on [ ].
Collections means [ ].
Currency Swap means each ISDA Master Agreement, the
schedule to it, each confirmation issued under it, and any
credit support annex entered into in connection with it
between a Currency Swap Provider, the Issuer Trustee, the
Global Trust Manager and a person acting as the support
provider.
Currency Swap Provider means [name(s) of Currency Swap
Provider(s)], and any other person who subsequently enters
into a currency swap with the Issuer Trustee and the
Global Trust Manager.
Dealer Agreement means the agreement entitled "National
RMBS Trust 200[ ]-[ ] Dealer Agreement" between the Issuer
Trustee, the Global Trust Manager, the Seller and [name
and ABN of Dealer].
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Definitions Schedule means the deed entitled "National
RMBS Trusts Definitions Schedule" dated [ ] and made
between the parties named in schedule 1 to that deed (as
amended from time to time).
Delegation Deed means the deed entitled "National RMBS
Trusts Deed of Delegation" dated [ ] between the Global
Trust Manager and National Australia Managers Limited (ABN
70 006 437 565) (as amended from time to time).
Determination Date means the day which is [ ] Business
Days prior to a Payment Date.
Early Repayment Costs mean those costs which are actually
received from a Debtor during a Collection Period as a
result of the Debtor prepaying any amount in respect of a
Fixed Interest Rate Loan.
Enforcement Expenses means all expenses paid by or on
behalf of the Servicer in connection with the enforcement
of any Purchased Mortgage Loan.
Excess Available Income has the meaning given to it in
clause 14.10.
Expenses of the Trust means all costs, charges and
expenses reasonably and properly incurred by the Issuer
Trustee or the Global Trust Manager in connection with the
Trust and any other amounts for which the Issuer Trustee
is entitled to be reimbursed or indemnified out of the
Trust and which the Issuer Trustee elects to pay,
including, without limitation, the expenses as described
in clause 26.3 of the Master Trust Deed.
Extraordinary Expenses means, on a Determination Date, any
out of pocket expenses incurred by the Issuer Trustee
during the immediately preceding Collection Period that
are not Required Payments in respect of that Determination
Date.
Final Maturity Date means the Payment Date occurring in
[month, year].
Final Termination Date means the date referred to in
clause 2.2.
Finance Charge Collections means, in respect of a
Determination Date, the amount calculated in accordance
with clause 14.3.
Fixed Interest Rate Loan means any Housing Loan comprising
part of a Mortgage Loan in respect of which the Seller or
the Servicer cannot vary the interest rate charged to the
Debtor for a specified period of time.
Fixed Rate Swap means an ISDA Master Agreement, the
schedule relating to it and each confirmation between the
Fixed Rate Swap Provider, the Issuer Trustee and the
Global Trust Manager, under which the Issuer Trustee pays
to the Fixed Rate Swap Provider an amount in respect of
Purchased Mortgage Loans that bear interest at a fixed
rate and under which the Fixed Rate Swap Provider pays to
the Issuer Trustee an amount calculated by reference to
the [Bank Bill Rate].
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Fixed Rate Swap Provider means National Australia Bank
Limited, or such other person who may be appointed under
this deed or the Fixed Rate Swap to act as the Fixed Rate
Swap Provider.
Initial Invested Amount has, in relation to a [Senior
Class of Note], the meaning given to it in clause 8.5(a)
and, in relation to an A$ Note, has the meaning given to
it in clause 8.5(b) [if required, insert clause references
in relation to other classes of Notes].
Interest Amount means, in respect of a [Senior Class of
Note] and in respect of any Interest Period, the amount
calculated in accordance with clause 8.6.
Interest Period, in respect of a Note, means (initially)
the period from (and including) the Issue Date to (but
excluding) the first Payment Date and thereafter each
period from (and including) each Payment Date to (but
excluding) the next following Payment Date. The final
Interest Period is from (and including) the Payment Date
immediately preceding the date on which interest ceases to
accrue on the Note pursuant to the [Conditions of the
Senior Class of Notes or Class/Classes of Notes issued in
US] or this deed, as the case may be, to (but excluding)
the date on which interest ceases to accrue on the Note
pursuant to the [Conditions of the Senior Class of Notes
or Class/Classes of Notes issued in US] or this deed, as
the case may be.
Invested Amount on any Determination Date:
(a) in respect of a [Senior Class of Note which is issued
in US], has the same meaning as in the [Conditions of
the Senior Class of Notes];
(b) in respect of an A$ Note, means an amount equal to:
(i) the Initial Invested Amount of that A$ Note; less
(ii) the aggregate of all Principal Amounts which
have been paid before that date in relation to that
A$ Note; less
(iii) the Principal Amount to be paid on the next
Payment Date in relation to that A$ Note.
[If required, insert definition of Invested Amount in
respect of further Class/Classes of Notes]
Linked Deposit Account means a deposit account maintained
by a Debtor with the Seller under which either:
(a) interest that would otherwise be earned in respect of
the deposit account is set off against interest due
under the Housing Loan of that Debtor; or
(b) interest is not earned on the deposit account, but
interest due under the Housing Loan of that Debtor is
calculated by deducting the credit balance of that
deposit account from the balance of the Housing Loan,
and then applying the interest rate applicable to the
Housing Loan to the result.
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Liquidity Drawing means the amount drawn under the
Liquidity Facility on any Payment Date.
Liquidity Shortfall means, on a Determination Date, the
amount (if any) by which the Payment Shortfall on that
Determination Date exceeds the Principal Draw which is
allocated on that Determination Date for application
towards the Payment Shortfall in accordance with clause
14.5.
Mortgage Insurance Interest Proceeds means, in respect of
a Purchased Mortgage Loan, the amount received by or on
behalf of the Issuer Trustee under a Mortgage Insurance
Policy and which is determined by the Global Trust Manager
not to be in the nature of principal.
Mortgage Insurance Policy includes, for the purposes of
the Definitions Schedule, the Pool Insurance Policy.
Mortgage Insurer means [insert names of mortgage insurers]
and any other mortgage insurer approved by the Global
Trust Manager and acceptable to each Current Rating
Agency.
Notes means:
(a) the [Senior Class of Notes];
(b) the [Junior Class of Notes];
(c) [any further subordinated class/classes of Notes];
and
(d) [the Redraw Notes].
Other Income means [ ].
Payment Date means the [ ] day of each of [insert
applicable months]. The first Payment Date will be [date].
Payment Shortfall means, on a Determination Date, the
amount by which the Available Income is insufficient to
meet the Required Payments as calculated on that
Determination Date.
Penalty Payment means:
(a) the amount of any liability (including, without
limitation, any civil or criminal penalty) which the
Issuer Trustee is liable for under the Consumer
Credit Code;
(b) any other liability payable by the Issuer Trustee, or
legal costs or other expenses payable or incurred by
the Issuer Trustee, in relation to such liability;
(c) any amount which the Issuer Trustee agrees to pay
(with the consent of the Servicer) to a Debtor or
other person in settlement of any liability or
alleged liability or application for an order under
Part 6 of the Consumer Credit Code; and
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(d) any legal costs or other costs and expenses payable
or incurred by the Issuer Trustee in relation to that
application or settlement,
to the extent to which a person can be indemnified for
that liability, money or amount under the Consumer Credit
Code.
[Pool Insurance Policy means the policy of insurance to be
issued to the Issuer Trustee and the Seller by [name of
insurer] in respect of Purchased Mortgage Loans which are
not subject to Lender's Mortgage Insurance. The Pool
Insurance Policy comprises a Mortgage Insurance Policy for
the purposes of the Definitions Schedule in respect of the
Trust.]
Principal Amount means, in respect of any Note and any
Payment Date, any amount of principal which is payable in
respect of such Note on such Payment Date.
Principal Charge-Offs means, in respect of a Collection
Period, the aggregate losses including principal and
interest (as determined by the Global Trust Manager) for
all Purchased Mortgage Loans which arise during that
Collection Period after all enforcement action has been
taken in respect of any Purchased Mortgage Loan and after
taking into account:
(a) all proceeds received as a consequence of enforcement
under any Purchased Mortgage Loans (less the relevant
Enforcement Expenses) during that Collection Period;
(b) proceeds of any claims under a Mortgage Insurance
Policy during that Collection Period; and
(c) any payments received during that Collection Period
from the Seller or the Servicer for a breach of its
obligations under the Transaction Documents.
Principal Collections means, in respect of a Determination
Date and the Collection Period immediately preceding that
Determination Date, the amount calculated in accordance
with clause 14.11.
Principal Draw means each distribution of Principal
Collections made in accordance with clauses 14.5 and
14.13(c).
Quarter means the three month period in each year
commencing on [insert relevant period dates].
Recoveries means amounts received from or on behalf of
Debtors or under any Mortgage or any Collateral Security
in respect of Purchased Mortgage Loans that were
previously the subject of a loss as described in the
definition of Principal Charge-Offs.
Redraw means the Seller's re-advance to a Debtor of
repayments of principal made by that Debtor on its Housing
Loan in accordance with the terms of the relevant Loan
Agreement.
Redraw Drawing has the meaning given to that term in the
Redraw Facility Agreement.
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Redraw Limit has the meaning given to it in the Redraw
Facility Agreement in respect of the Trust.
Redraw Note means a Note referred to in clause 8.1(c)
issued on the terms and conditions contained in this deed.
Redraw Note Percentage means [insert methodology for
calculation of percentage]
Redraw Noteholder means each person who is from time to
time entered in the Register as the holder of a Redraw
Note.
Redraw Note Principal means [insert methodology for
calculation of principal]
Redraw Principal in relation to a Payment Date, means
[insert methodology for calculation of principal]
Redraw Principal Outstanding means [insert methodology for
calculation of principal outstanding]Redraw Shortfall
means, on a Determination Date, the amount (if any) by
which the Principal Collections (as calculated on that
Determination Date and prior to taking into account any
Redraw Drawings to be made on the next Payment Date and
the proceeds of any Redraw Notes to be issued on the next
Payment Date) are insufficient to meet in full any Redraws
made by the Seller during the immediately preceding
Collection Period which are repayable to the Seller
pursuant to clause 14.13(a).
Relevant Parties means each of the Global Trust Manager,
the Seller, the Servicer, the Security Trustee, the
Calculation Agent, each Paying Agent, the Note Trustee,
each Counterparty, the Redraw Facility Provider and the
Liquidity Facility Provider.
Required Payments means the aggregate of the priority
payments in paragraphs (a) to (g) inclusive of clause 14.8
calculated by the Global Trust Manager on each
Determination Date under clause 14.8.
Required Credit Rating means [insert applicable short term
and long term ratings in respect of applicable ratings
agencies]
Secured Money has the meaning given to it in the Deed of
Charge for the Trust.
Secured Property has the meaning given to it in the Deed
of Charge for the Trust.
Securities Act means the Securities Act of 1933 (US).
Servicer's Collections means any and all amounts in the
nature of a fee, charge or expense (however described)
paid by a Debtor under or in connection with a Purchased
Mortgage Loan during the life of, or on prepayment or
repayment of, that Purchased Mortgage Loan, in each case
as determined by the Servicer and notified to the Global
Trust Manager and the Issuer Trustee (but excluding any
Early Repayment Costs).
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Stated Amount [insert methodology for calculation of
Stated Amount in respect of class/classes of Notes]
Stepdown Percentage means, on any Determination Date and
in respect of the immediately following Payment Date, the
percentage calculated in accordance with schedule 3 on
that Determination Date.
Support Facilities includes, in addition to those items
set out in the Definitions Schedule:
(a) the Basis Swap;
(b) the Fixed Rate Swap; and
(c) each Currency Swap.
Threshold Rate means the sum of the minimum interest rates
required to be set on the Housing Loans forming part of
the Purchased Mortgage Loans which will ensure that the
Issuer Trustee has sufficient funds available to meet its
obligations under the Transaction Documents (assuming that
all parties comply with their obligations under such
documents and such Housing Loans) and taking into account
Housing Loans where the Seller does not have the
discretion under the Loan Agreement to vary the interest
rate of that Housing Loan and moneys held in Authorised
Investments where the yield is determined externally and
not by the Servicer.
Total Available Income means, on a Determination Date, the
amount calculated in accordance with clause 14.7 on that
Determination Date.
Total Invested Amount means, on any Determination Date,
the aggregate A$ Equivalent of the Invested Amount of the
relevant Notes on that Determination Date.
Transaction Documents means in respect of the Trust:
(a) the Master Trust Deed (insofar as it applies to the
Trust);
(b) the Definitions Schedule (insofar as it applies to
the Trust);
(c) the Notice of Creation of Trust in respect of the
Trust;
(d) this deed;
(e) the Servicing Agreement (insofar as it applies to the
Trust);
(f) the Master Security Trust Deed (insofar as it applies
to the Trust);
(g) the Deed of Charge;
(h) each Support Facility;
(i) the Note Trust Deed;
(j) the Agency Agreement;
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(k) the Delegation Deed;
(l) the Sale Agreement;
(m) any Offer to Sell;
(n) each Note;
(o) the Underwriting Agreement;
(p) the Dealer Agreement; and
(q) [insert any additional transaction documents in
respect of Series]
(r) such other documents as may be agreed from time to
time between the Issuer Trustee and the Global Trust
Manager.
Trust means the National RMBS Trust 200[ ]-[ ].
US$ or US Dollars means the lawful currency of the United
States of America.
Underwriting Agreement means the agreement entitled
"Underwriting Agreement" between the Issuer Trustee, the
Global Trust Manager, the Seller and [name of Underwriter]
(as representative for the underwriters named in it).
Unit Register has the meaning given to it in clause
3.7(a).
Waiver of Set-Off in relation to a Housing Loan means a
provision, in the related Mortgage or Loan Agreement or
otherwise, by which, inter alia, the Debtor agrees to make
all payments in respect of the Housing Loan without
set-off or counterclaim unless prohibited by law.
[Insert definitions in respect of further classes of Notes
and Notes denominated in currencies other than US$ and
A$.]
Transaction Document
1.2 This deed is a Transaction Document for the purposes of
the Master Trust Deed.
Limited to Trust
1.3 The rights and obligations of the parties under this deed
relate only to the Trust (as defined in this deed), and do
not relate to any other Trust (as defined in the
Definitions Schedule).
Definitions and consistency
1.4 Terms which are defined in this deed apply to the Trust
only. Capitalised terms used but not defined in this deed
have the meanings given to them in the Definitions
Schedule. In the event of any inconsistency between a term
defined in this deed and a term defined in the Definitions
Schedule, the term defined in this deed will prevail. In
the event of any inconsistency between a provision of this
deed and a provision of any other Transaction Document,
the provision of this deed shall prevail.
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1.5 Subject to clause 1.6, clauses 1.2 to 1.5 (inclusive) of
the Definitions Schedule are deemed to be incorporated in
this deed as if set out in full in it.
1.6 If after the date of this deed any amendment is made to
the Definitions Schedule, such amendment shall apply to
this deed only if each party to this deed so agrees and if
the amendment is made in a manner consistent with clause
28 of the Master Trust Deed.
Master Security Trust Deed
1.7 The Master Security Trust Deed applies to the Trust.
Register
1.8 The Register in respect of the A$ Notes issued in respect
of the Trust is to be maintained in accordance with
Schedule 1. The Register will be maintained in respect of
A$ Notes only and all references in Schedule 1 to "Notes"
are to be construed accordingly.
Transfer of Notes
1.9 A transfer of A$ Notes of the Trust shall be effected in
accordance with clause 8.12 and with Schedule 2. All
references in Schedule 2 to "Notes" are to be construed as
references to "A$ Notes".
Reporting Statement
1.10 The Reporting Statement in respect of the Trust shall
contain (amongst other things) the following details:
(a) the Total Invested Amount and the Aggregate Stated
Amount of each class of Notes as calculated on the
related Determination Date;
(b) the A$ Note Interest Rates on the A$ Notes for the
related Interest Period;
(c) the interest payments and principal distributions on
each class of Notes in respect of the related Payment
Date;
(d) the Total Available Income as calculated on the
related Determination Date;
(e) the aggregate Outstanding Principal Balance of the
Housing Loans forming part of the Purchased Mortgage
Loans as at the close of business on the last day of
the related Collection Period;
(f) the delinquency and loss statistics with respect to
the Mortgage Loans as at the close of business on the
last day of the related Collection Period;
(g) the Redraw Shortfall, if any, calculated on the
related Determination Date;
(h) the amount of any shortfall in Total Available Income
as calculated on the related Determination Date;
(i) the amount of any Liquidity Drawing, to be made on
the related Payment Date;
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(j) the amount of Principal Collections that are
available for distribution on the related Payment
Date;
(k) the Redraw Note Principal, if any, in respect of the
related Payment Date;
(l) the amount of any Principal Draw, to be made on the
related Payment Date;
(m) the Principal Charge-Offs and the Carryover Principal
Charge-Offs for each class of Notes and the Redraw
Facility; and
(n) any other items of information applicable to the
Notes and the related Determination Date or Payment
Date.
Definitions Schedule
1.11 For the purposes of the Definitions Schedule:
(a) the [Senior Class of Notes] [and the Redraw Notes]
are "Senior Notes";
(b) the [Noteholders of the Senior Class of Notes] [and
the Redraw Noteholders] are "Senior Noteholders";
(c) the [Junior Class of Notes] are "Junior Notes"; and
(d) the [Noteholders of the Junior Class of Notes] are
"Junior Noteholders".
1.12 For the purposes of the Trust:
(a) the Global Trust Manager confirms that it has
requested each of [the applicable ratings agencies]
to rate the Notes; and
(b) the Residual Capital Unitholder and the Residual
Income Unitholder is the National Australia Bank
Limited.
Support Facilities
1.13 For the purposes of the Definitions Schedule and the Deed
of Charge, each Support Facility is a "Support Facility".
Master Trust Deed
1.14 The Global Trust Manager and the Issuer Trustee agree
that, for the purposes of the Trust, clause 19 of the
Master Trust Xxxx is deleted and replaced with the
following:
"(a) Subject to paragraph (b), the recourse of the Issuer
Trustee, the Global Trust Manager and any creditor
(including, without limitation, any Secured Creditor)
in respect of a Trust is limited to the Assets of
that particular Trust.
(b) Paragraph (a) does not limit the rights of any
Secured Creditor under clause 33 (or any similar
provision in any Transaction Document) or any other
provision in any Transaction Document entitling a
Secured Creditor
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to exercise its rights or to take proceedings in
respect of the Trust."
[Insert any further amendments to the Master Trust Deed in
respect of Series]
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PART 2 - THE TRUST AND ITS ASSETS
2 Trust
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Name of Trust
2.1 The Trust to which this deed applies will be known as the
"National RMBS Trust 200[ ]-[ ]".
Determination of final Payment Date
2.2 The Issuer Trustee must, as soon as practicable following
the Termination Date of the Trust, declare on the
direction of the Global Trust Manager, a date ("Final
Termination Date") (which, if Notes have been issued and
have not then been redeemed (or deemed to be redeemed) in
full, must be a Payment Date and must not be the next
Payment Date immediately after the declaration if the
Determination Date in relation to that Payment Date has
then passed), being a date by which the Issuer Trustee
reasonably believes that the sale and distribution of the
Assets of the Trust will be completed in accordance with
this clause 2. Based on the direction of the Global Trust
Manager, the Issuer Trustee may substitute another date as
the Final Termination Date (which, if the Notes have not
been redeemed in full, must be a Payment Date) if it
reasonably believes that the Assets will not in fact be
sold and distributed by the then Final Termination Date.
Realisation of Assets of the Trust
2.3 Subject to clause 2.2, upon the occurrence of the
Termination Date of the Trust, the Issuer Trustee, in
consultation with the Global Trust Manager, must sell and
realise the Assets of the Trust (and, in relation to the
sale (other than pursuant to clause 2.5) of any Mortgage
Loans forming part of the Assets of the Trust, the Issuer
Trustee must obtain appropriate expert advice prior to the
sale) and such sale (so far as is reasonably practicable
and reasonably commercially viable) must be completed
within 180 days of the Termination Date of the Trust
provided that during the period of 180 days from that
Termination Date:
(a) the Issuer Trustee must not sell the Mortgage Loans
at less than an amount equal to the Repurchase Price
of the Housing Loans which comprise part of the
Mortgage Loans that then form part of the Assets of
the Trust;
(b) the Issuer Trustee must not sell any Mortgage Loans
unless the sale is on terms in accordance with clause
2.4; and
(c) the Issuer Trustee must not sell any Mortgage Loans
unless it has first offered the Mortgage Loans for
sale to the Seller or its nominee in accordance with
clause 2.5 and the Seller or its nominee has either
not accepted that offer within 90 days of that
Termination Date or has accepted that offer but not
paid the consideration due by the time required
pursuant to clause 2.5.
Conditions of Sale during 180 days
2.4 The Issuer Trustee must not conclude a sale pursuant to
clause 2.3 (other than pursuant to clause 2.5) unless:
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(a) any Mortgage Loans sold pursuant to that sale are
assigned in equity only (unless the Issuer Trustee
already holds legal title to such Mortgage Loans);
(b) the sale is expressly subject to the Servicer's
rights to be retained as Servicer of the Mortgage
Loans in accordance with the terms of this deed; and
(c) the sale is expressly subject to the rights of the
Seller Trust in respect of those Mortgage Loans
pursuant to this deed and the Seller's rights (as
beneficiary of the Seller Trust) in respect of those
Mortgage Loans pursuant to this deed.
Right of refusal
2.5 (a) On the Termination Date of the Trust, the Issuer
Trustee is deemed to irrevocably offer to extinguish
in favour of the Seller, its entire right, title and
interest in the Mortgage Loans forming part of the
Assets of the Trust in return for the payment to the
Issuer Trustee of an amount equal to the Repurchase
Price (as at the Termination Date of the Trust) of
the Housing Loans which comprise part of the Mortgage
Loans then forming part of the Assets of the Trust.
(b) The Seller may verbally accept the offer referred to
in clause 2.5(a) within 90 days after the Termination
Date of the Trust and having accepted the offer, must
pay to the Issuer Trustee, in immediately available
funds, the amount referred to in clause 2.5(a) by the
expiration of 180 days after the Termination Date of
the Trust. If the Seller accepts such offer, the
Issuer Trustee must execute whatever documents the
Seller reasonably requires to complete the
extinguishment of the Issuer Trustee's rights, title
and interest in the Mortgage Loans then forming part
of the Assets of the Trust.
(c) The Issuer Trustee must not sell any Mortgage Loans
referred to in clause 2.5(a) unless the Seller has
failed to accept the offer referred to in clause
2.5(a) within 90 days after the Termination Date of
the Trust or, having accepted the offer, has failed
to pay the amount referred to in clause 2.5(a) by the
expiration of 180 days after the Termination Date of
the Trust.
Sale at lower price
2.6 If, after the expiration of the period of 180 days from
the Termination Date of the Trust, the Issuer Trustee has
not sold the Mortgage Loans which form part of the Assets
of the Trust for the amount determined in accordance with
clause 2.3(a), the Issuer Trustee may proceed to sell such
Mortgage Loans free from the prohibition contained in
clause 2.4(a) and may, if necessary, sell such Mortgage
Loans on the terms set out in clause 2.7 if the terms of
that clause are satisfied. If any Mortgage Loans are sold
for less than the price for those Mortgage Loans
determined in accordance with clause 2.5(a), then any such
shortfall must be allocated as provided for in clause
2.11.
Conditions of sale after 180 days
2.7 Upon the expiration of the period of 180 days from the
Termination Date of the Trust, the Issuer Trustee may, if
necessary (in its
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reasonable opinion) sell the Mortgage Loans forming part
of the Assets of the Trust for an amount which is less
than the Repurchase Price of the Housing Loans which
comprise part of the Mortgage Loans and, in that case, the
Issuer Trustee shall:
(a) take all necessary steps to protect the Issuer
Trustee's interest in, and title to, the Mortgage
Loans;
(b) terminate the rights and obligations of the Servicer
in respect of those Mortgage Loans; and
(c) sell the legal and beneficial ownership in such
Mortgage Loans to the prospective purchaser free of
the Seller Trust and all rights of the Seller to
repurchase such Mortgage Loans in accordance with
this deed.
Further conditions of sale after 180 days
2.8 If the Issuer Trustee sells the Mortgage Loans forming
part of the Assets of the Trust pursuant to clause 2.7,
the Issuer Trustee must include as a condition of the sale
that the purchaser will:
(a) consent to the granting in favour of the Seller of
mortgages and other Security Interests subsequent to
the Mortgages assigned to the purchaser;
(b) enter into priority agreements with the Seller, in
the form then specified in the Servicing Procedures,
limiting the priority of the Mortgages and Collateral
Securities assigned to the purchaser over any
subsequent mortgages and other Security Interests
held by the Seller to the then principal outstanding
of the relevant Housing Loan and any interest fees
and expenses on this amount; and
(c) use reasonable endeavours to obtain the consent of
the providers of Mortgages and Collateral Securities
assigned to the purchaser, and any other relevant
person, to the grant of subsequent mortgages and
other Security Interests to the Seller.
Procedures pending winding-up
2.9 During the period commencing on the Termination Date of
the Trust and ending on the Final Termination Date:
(a) the Issuer Trustee, the Servicer and the Global Trust
Manager must continue to perform their respective
roles in accordance with the Master Trust Deed and
this deed in respect of the Assets of the Trust;
(b) all Collections (if any) must continue to be
deposited in the Collections Account in accordance
with this deed;
(c) all proceeds arising from the sale of Assets of the
Trust must be deposited into the Collections Account;
and
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(d) the Issuer Trustee must continue to make all payments
determined and directed by the Global Trust Manager
as required to be made in accordance with this deed.
Costs on winding-up of the Trust
2.10 On the Determination Date (if applicable) prior to the
Final Termination Date, the Global Trust Manager (in
consultation with the Issuer Trustee) must in respect of
the Trust make provision for all Taxes, costs, charges,
expenses, claims and demands anticipated to become payable
after the Final Termination Date in connection with or
arising out of the administration or winding up of the
Trust, including the fees of any consultants whom the
Issuer Trustee, the Seller, the Servicer, the Security
Trustee or the Global Trust Manager have employed in
connection with the administration or winding up of the
Trust. Such costs (if any) will be treated as an Expense
of the Trust by the Global Trust Manager in making its
determinations as to payments to be made on the Final
Termination Date in accordance with clause 2.11.
Calculation of Final Distributions
2.11 Prior to the Final Termination Date, the Global Trust
Manager must determine how the amounts (if any) standing
to the credit of the Collections Account are to be
distributed and must make such determination in accordance
with the provisions of this deed for payments and
allocations of any Principal Collections and Finance
Charge Collections. After making such determinations the
Global Trust Manager must notify the Issuer Trustee of the
allocations and payments to be made on the Final
Termination Date.
Final Distributions
2.12 On the Final Termination Date determined under clause 2.2,
the Issuer Trustee must make the payments that the Global
Trust Manager directs it to make pursuant to clause 2.11.
3 Entitlement of Beneficiaries
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Issue of Units
3.1 The beneficial interest in the Trust is, on the date of
this deed, represented by the issue of:
(a) one Residual Capital Unit; and
(b) one Residual Income Unit,
to the Residual Capital Unitholder and the Residual Income
Unitholder, respectively, pursuant to the Notice of
Creation of Trust.
3.2 The Global Trust Manager must evidence the issue of the
Units referred to in clause 3.1 by entering each
Unitholder's name in the Unit Register.
3.3 The holder of the Residual Capital Unit and the holder of
each Residual Income Unit, issued in accordance with this
clause and the Notice of Creation of Trust, hold the
beneficial interest in the Trust in accordance with the
Master Trust Deed and this deed.
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3.4 A failure by the Issuer Trustee to issue a Residual Income
Unit does not affect the Residual Income Unitholders'
rights as beneficiary of the Trust under the Master Trust
Deed and this deed.
Residual Capital Unit
3.5 (a) The initial holder of the Residual Capital Unit is
National Australia Bank Limited.
(b) The issue price of the Residual Capital Unit was the
amount of $5, paid by National Australia Bank Limited
under the Notice of Creation of Trust on
establishment of the Trust.
(c) The beneficial interest held by the holder of the
Residual Capital Unit is limited to the Trust and
each Asset of the Trust (other than any Asset of the
Trust held on trust for the holders of Residual
Income Units under clause 3.6) subject to and in
accordance with the Master Trust Deed and this deed.
(d) The holder of the Residual Capital Unit has no right
to receive distributions in respect of the Trust
other than the right to receive on the Final
Termination Date the entire beneficial interest of
the Trust subject to the rights of holders of
Residual Income Units. The Residual Capital Unit may
not be redeemed at any time or in any other way.
(e) The Residual Capital Unit is not transferable without
the written consent of the Issuer Trustee.
Residual Income Unit
3.6 (a) The initial holder of the first Residual Income
Unit is National Australia Bank Limited. The issue price
of the first Residual Income Unit was the amount of $5
paid by National Australia Bank Limited under the Notice
of Creation of Trust on establishment of the Trust.
(b) A person may, with the consent of the Issuer Trustee
and the Global Trust Manager (whose consent may be
given or withheld in their absolute discretion),
become the holder of any additional Residual Income
Unit by paying the issue price for the Residual
Income Unit.
(c) The issue price of a Residual Income Unit will be the
amount agreed between the Issuer Trustee, the Global
Trust Manager and the person applying for such
Residual Income Unit.
(d) The beneficial interest held by the holder of a
Residual Income Unit is limited to the right to
receive on the Final Termination Date, repayment of
the issue price paid for the Residual Income Unit
under clause 3.6(a) or clause 3.6(b) (to the extent
funds are available therefore) and to receive
distributions under clause 14 of this deed only to
the extent that funds are available for distribution
to the Residual Income Unitholders, provided that the
Residual Income Unitholders are entitled to receive
an amount in accordance with clause 14.8(a) to enable
the Global Trust Manager to comply with its
obligations under clause 21.2 of the Master Trust
Deed.
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(e) The holder of a Residual Income Unit has the right to
receive distributions in respect of the Trust under
the Master Trust Deed and this deed only to the
extent that amounts are available for distribution
under the Master Trust Deed and this deed.
(f) Each Residual Income Unit is transferable in
accordance with clause 3.8.
Unit Register
3.7 (a) The entitlement of any person to a Unit will be
evidenced by registration in the register maintained
under this clause 3.7 (the "Unit Register").
(b) The Global Trust Manager will keep the Unit Register
at its office in a form that it considers appropriate
(which may be electronic) and will enter the
following particulars:
(i) the name and address of the holder of each Unit;
(ii) the date on which the name of the holder of each
Unit is entered in the Unit Register;
(iii) the date on which the holder of a Unit ceases to
be registered as the holder of that Unit;
(iv) the issue price initially paid for each Unit,
and the aggregate issue price of all Units from
time to time; and
(v) any other details which the Issuer Trustee may
consider reasonably necessary or desirable.
(c) The holder of a Unit shall promptly notify the Global
Trust Manager of any change of its name or address
and the Global Trust Manager will alter the Unit
Register accordingly.
(d) Without limiting clause 3.1, the interest of any
holder in a Unit will be constituted by registration
in the Unit Register.
Transfer of Units
3.8 (a) (i) Subject to clause 3.5(e) the holder of a Unit may
transfer the Unit by instrument in writing in any
form approved by the Issuer Trustee. No fee will
be charged on the transfer of a Unit.
(ii) An instrument of transfer shall be executed by
or on behalf of both the transferor and the
transferee.
(iii) A transferor of a Unit remains the holder of the
Unit transferred until the transfer is
registered and the name of the transferee is
entered in the Unit Register in respect of the
Unit.
(b) The instrument of transfer of a Unit must be left for
registration at the address where the Unit Register
on which the Unit to which the transfer relates are
registered is kept. It
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must be left together with any information that the
Issuer Trustee properly requires to show the right of
the transferor to make the transfer.
Limit on rights
3.9 Each Unitholder is subject to, and bound by, the
provisions of the Master Trust Deed and this deed.
4 Consumer Credit Code
--------------------------------------------------------------------------------
Right of indemnity - Consumer Credit Legislation
4.1 (a) Without prejudice to the right of indemnity
given by law to trustees, and without limiting any
other provision of this deed, the Issuer Trustee will
be indemnified out of the Trust, free of any set-off
or counterclaim against all Penalty Payments which
the Issuer Trustee is required to pay personally or
in its capacity as trustee of that Trust and arising
in connection with the performance of its duties or
exercise of its powers under the Transaction
Documents in relation to the Trust.
(b) The Issuer Trustee's right to be indemnified in
accordance with clause 4.1(a) applies notwithstanding
any allegation that the Issuer Trustee has incurred
any such Penalty Payment as a result of its fraud,
negligence or breach of trust or any other act or
omission which may otherwise disentitle the Issuer
Trustee to be so indemnified. However, the Issuer
Trustee is not entitled to that right of indemnity or
reimbursement to the extent that there is a
determination by a relevant court of negligence,
fraud or breach of trust by the Issuer Trustee
(provided that, until such determination, the Issuer
Trustee is entitled to that right of indemnity or
reimbursement but must, upon such determination,
repay to the relevant Trust any amount paid to it
under this clause 4.1).
(c) This clause 4.1 overrides any other provision of this
deed.
(d) The Servicer indemnifies the Issuer Trustee, free of
any set-off or counterclaim, against all Penalty
Payments which the Issuer Trustee is required to pay
personally or in its capacity as trustee of the Trust
and arising in connection with the performance of its
duties or exercise of its powers under the
Transaction Documents in relation to the Trust. The
Issuer Trustee may rely on others in relation to
compliance with the Consumer Credit Code.
(e) The Issuer Trustee shall call upon the indemnity
referred to in paragraph (d) before it calls upon the
indemnity in paragraph (a). If any such claim is not
satisfied within 3 Business Days of the claim being
made, the Issuer Trustee may (without prejudice to
its rights under any indemnity under paragraph (d))
exercise its right of indemnity referred to in
paragraph (a).
Servicer
4.2 With effect on and from the Closing Date, National
Australia Bank Limited agrees to act as the Servicer of
the Purchased Mortgage Loans
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and undertakes to comply with the duties and obligations
imposed on it under the Servicing Agreement and this deed.
For the purposes of the Servicing Agreement, the Trust is
a "Relevant Trust".
5 Repurchase Option
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Clean-Up offer
5.1 At least five Business Days before each Call Option Date
(but not later than the Termination Date) the Issuer
Trustee, at the written request of the Global Trust
Manager, may give notice to the Seller of an offer
("Clean-Up Offer") to re-convey the Purchased Mortgage
Loans to the Seller on a Call Option Date for an amount
("Clean-Up Offer Amount") equal to (as at the last day of
the immediately preceding Interest Period) the aggregate
of the Repurchase Price for each Housing Loan which
comprises part of the Purchased Mortgage Loans then
forming part of the Assets of the Trust as determined by
the Global Trust Manager.
Calculation
5.2 The Global Trust Manager agrees to calculate the amount
described in clause 5.1 and include such amount in its
request to the Issuer Trustee to make a Clean-Up Offer.
Acceptance
5.3 Acceptance of a Clean-Up Offer may only be effected by
payment in immediately available funds by the Seller to
the Collections Account of the Clean-Up Offer Amount. For
the avoidance of doubt, the Seller is under no obligation
to accept any Clean-Up Offer.
Consent of Noteholders
5.4 If:
(a) Notes have been issued and have not been redeemed (or
deemed to be redeemed) on or before a Call Option
Date; and
(b) the Clean-Up Offer Amount is less than the amount
which is sufficient to ensure that the Issuer Trustee
can redeem the Total Invested Amount of all Notes (as
at the Determination Date immediately preceding the
Call Option Date) in full,
the Issuer Trustee must, prior to giving notice to the
Seller, obtain the consent by way of an Extraordinary
Resolution of the Noteholders in favour of making a
Clean-Up Offer for the Aggregate Stated Amount (without
double counting) of all Notes.
Reconveyance
5.5 Upon receipt of the Clean-Up Offer Amount by the Issuer
Trustee in immediately available funds:
(a) the Issuer Trustee's entire right and interest in the
Purchased Mortgage Loans is automatically
extinguished; and
(b) the Issuer Trustee must apply the Clean-Up Offer
Amount towards the redemption of the A$ Notes in
accordance with clause 8.16 of this deed and the
redemption of the
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[Class/Classes of US Notes] in accordance with the
[Conditions of those Class/Classes of US Notes].
Clean-Up Amount
5.6 Where:
(a) the Total Invested Amount of all Notes on any
Determination Date is less than or equal to [10%] of
the A$ Equivalent of the aggregate of the Initial
Invested Amount of all Notes; and
(b) the Issuer Trustee has not been directed by the
Global Trust Manager to redeem all of the Notes
outstanding on the next Payment Date or the Issuer
Trustee has been directed by the Global Trust Manager
to redeem all of the Notes on the next Payment Date
but the Issuer Trustee has insufficient funds on that
Payment Date to do so,
then the Global Trust Manager must, on that Payment Date:
(i) calculate the Clean-Up Amount as at the Determination
Date immediately preceding that Payment Date;
(ii) notify the Seller, the Issuer Trustee and each
Current Rating Agency of the Clean-Up Amount and the
method of its calculation; and
(iii) direct the Issuer Trustee to:
(A) as soon as practicable, establish in the name of
the Issuer Trustee a bank account with an
Eligible Bank;
(B) deduct an amount equal to the Clean-Up Amount as
at that Determination Date from the amount (if
any) payable to the Residual Income Unitholders
under clause 14.10(f) on that Payment Date; and
(C) deposit the amount deducted in accordance with
clause 5.6(iii)(B) into the Clean-Up Account and
hold that amount on trust for the Residual
Income Unitholders until that amount is repaid
to the Residual Income Unitholders in accordance
with clause 5.7.
5.7 The Issuer Trustee must only withdraw any amount standing
to the credit of the Clean-Up Account:
(a) if, on any Determination Date after the first Payment
Date referred to in clause 5.6(i), the Issuer Trustee
determines that Extraordinary Expenses have been
incurred by the Issuer Trustee during the immediately
preceding Collection Period, to meet in whole or in
part the payment or satisfaction of such
Extraordinary Expenses on the next Payment Date; and
(b) upon the first to occur of:
(i) the date on which all Notes have been fully and
finally redeemed in accordance with the Master
Trust Deed and this deed; and
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(ii) the Termination Date of the Trust,
to pay the amount standing to the credit of the Clean-Up
Account to the Residual Income Unitholders.
5.8 The Global Trust Manager must, on each Payment Date,
notify the Residual Income Unitholders of any withdrawal
made by the Issuer Trustee under clause 5.7.
Purchase of Defaulted Loans
5.9 Subject to clause 5.10, the Servicer may at its option
(but in no circumstances is obliged to) from time to time
offer to the Issuer Trustee to purchase from the Issuer
Trustee a Purchased Mortgage Loan in respect of which
default in payment of any amount due in respect of the
related Housing Loan has occurred and has continued for a
period of 90 consecutive days or more. If the Servicer
makes any such offer, the price that it must pay to the
Issuer Trustee in respect of a Purchased Mortgage Loan is
an amount equal to the Repurchase Price of the Housing
Loan comprising part of that Purchased Mortgage Loan. Upon
payment of that amount, any right, title and interest of
the Issuer Trustee is extinguished in favour of the
Servicer and the Issuer Trustee must execute whatever
documents the Servicer requires to complete such
extinguishment.
5.10 The Servicer must not exercise the option contained in
clause 5.9 in respect of a Purchased Mortgage Loan unless
the Repurchase Price of the Housing Loan comprising part
of that Purchased Mortgage Loan is at least equal to the
then Unpaid Balance of the Housing Loan that comprises
part of that Purchased Mortgage Loan.
[Insert provisions for other circumstances where the
Seller/Servicer or such other party may have an option or
obligation to repurchase the Mortgage Loans]
6 Mortgage Loans
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Requirement to satisfy
6.1 Each Mortgage Loan to be purchased by the Issuer Trustee
must be a Qualifying Mortgage Loan.
6.2 The Issuer Trustee is not required to investigate whether
any Mortgage Loan is a Qualifying Mortgage Loan and is not
liable to any person in any manner whatsoever if any
Mortgage Loan is not a Qualifying Mortgage Loan.
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PART 3 - THE NOTES
7 Purpose
--------------------------------------------------------------------------------
Purpose
7.1 (a) Subject to clause 7.2, the Issuer Trustee must, as
directed by the Global Trust Manager, use the
proceeds of all Notes (other than Redraw Notes) and
all payments received from each Currency Swap on the
Closing Date to fund the acquisition of Mortgage
Loans (or to fund Authorised Investments to be
acquired with any surplus of the proceeds and
payments over the amount required to fund the
acquisition of the Mortgage Loans, such surplus
created due to the size of the parcels of Notes to be
issued) or for any other purpose agreed between the
Issuer Trustee and the Global Trust Manager (and
which each Current Rating Agency confirms in writing
will not have an Adverse Rating Effect).
(b) The Issuer Trustee must, as directed by the Global
Trust Manager, use the proceeds of all Redraw Notes
to meet the Issuer Trustee's obligations in respect
of the reimbursement of Redraws and the repayment of
the Redraw Principal Outstanding in accordance with
clause 8.3. Any surplus of the proceeds of issue over
the amounts required to meet such obligations created
due to the size of the parcels of Notes to be issued
is to be distributed in accordance with clause 14.13.
Criteria
7.2 Notwithstanding any other provision of the Transaction
Documents in respect of the Trust, the Global Trust
Manager must not direct the Issuer Trustee to issue Notes
under this deed to acquire, or invest in, any Mortgage
Loans or to reimburse the Seller in respect of Redraws
unless such Mortgage Loans are Qualifying Mortgage Loans.
In this regard, the Global Trust Manager is entitled to
rely upon a representation and warranty from the Seller
that such Mortgage Loans are Qualifying Mortgage Loans.
General
7.3 The Issuer Trustee (at the direction of the Global Trust
Manager) may issue Notes, for the purposes set out in
clause 7.1 in accordance with this deed.
8 Terms of issue of the Notes
--------------------------------------------------------------------------------
Notes to be issued
8.1 The Issuer Trustee will, subject to satisfaction of the
conditions precedent described in clause 9.1 of the Master
Trust Deed, and on the direction of the Global Trust
Manager, issue [ ] classes of Notes as follows:
(a) the [Senior Class of Notes];
(b) the [Junior Class of Notes];
(c) [further subordinated class/classes of Notes]; and
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(d) the Redraw Notes.
Form, constituent documents and denomination of the Notes
8.2 (a) ([Class/Classes of US Notes]): The [Class/Classes of
US Notes] will be:
(i) in book-entry form, without coupons;
(ii) upon issue represented by one or more Book-Entry
Notes (and interests in such Book-Entry Notes
may be exchanged for Definitive Notes in the
circumstances set out in the Note Trust Deed);
and
(iii) constituted, issued and authenticated pursuant
to the Note Trust Deed and will be denominated
in US$.
(b) (A$ Notes): The [Class/Classes of Domestic Notes]
will, upon issue, be in the form of registered debt
securities, will be constituted pursuant to the
Master Trust Deed and this deed and will be
denominated in A$. The [Class/Classes of Domestic
Notes] are direct, secured, limited recourse
obligations of the Issuer Trustee and (in the case of
the [Class/Classes of Domestic Notes] only) are
subordinated in the manner set out in this deed. Each
of the [Class/Classes of Domestic Notes] and the
Redraw Notes rank equally and rateably and without
any preference or priority among themselves.
Issue of Redraw Notes
8.3 If the Issuer Trustee receives:
(a) a notice from the Global Trust Manager; and
(b) written confirmation from each Current Rating Agency
that the proposed issue of Redraw Notes will not
result in an Adverse Rating Effect (provided that, if
such confirmation is requested but is not received by
the Global Trust Manager by the close of business on
the day which is 2 Business Days after the date on
which the confirmation is requested, the Global Trust
Manager and the Issuer Trustee may assume that the
proposed issue of Redraw Notes will not result in an
Adverse Rating Effect),
the Issuer Trustee must, on the Payment Date referred to
in the notice, issue Redraw Notes up to the amount
specified in the notice and at the A$ Note Margin
specified in the notice.
8.4 The Global Trust Manager may give such notice to the
Issuer Trustee if, on or prior to a Determination Date,
the Global Trust Manager considers that the Principal
Collections to be calculated on the relevant Determination
Date (disregarding any proposed issue of Redraw Notes on
the immediately following Payment Date)
(as estimated by the Global Trust Manager) are likely to
be insufficient to meet in full the aggregate of any
Redraws provided by the Seller during the preceding
Collection Periods and due to be repaid or reimbursed to
the Seller pursuant to clause 14.13(a) on the
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immediately following Payment Date. Where the relevant
calculations are made by the Global Trust Manager before
the relevant Determination Date, such calculations and
amounts will be the Global Trust Manager's estimate, as at
the date of calculation, of such calculations and amounts.
The Total Invested Amount of the Redraw Notes outstanding
on any Determination Date must not exceed the amount
specified by the Global Trust Manager and which is the
subject of the confirmation referred to in clause 8.3(b)
from each Current Rating Agency.
Initial Invested Amount of the Notes
8.5 (a) ([Class/Classes of US Notes]): Each [Class/Classes of
US Note] on its issue will have an Initial Invested
Amount as set out on the face of that [Class/Classes
of US Note] and will be issued at par value.
(b) (A$ Notes): Each A$ Note on its issue will have an
Initial Invested Amount of A$[ ] and will be issued
at par value.
Interest on the [Class/Classes of US Notes]
8.6 Each [Class/Classes of US Note] will accrue interest, and
such interest will be calculated and payable, in
accordance with the [Conditions of that Class/Classes of
US Notes].
Interest on the A$ Notes
8.7 Each A$ Note will have interest payable in respect of each
Interest Period calculated [insert methodology for
calculation of interest on A$ Notes]
Each A$ Note will cease to accrue interest from the date
upon which the A$ Note is redeemed in accordance with
clause 8.9(b), unless upon such date, payment is
improperly withheld or refused in which case the A$ Note
will continue to accrue interest in accordance with this
deed (both before and after judgment) until but excluding
the earlier of the day on which all sums due in respect of
the A$ Note up to that day are received by or on behalf of
the relevant Noteholder and the seventh day after notice
is given to the Noteholder that such payment will be made,
provided that such payment is in fact made on that day.
Overdue interest
8.8 (a) ([Class/Classes of US Notes]): If interest is not paid
in respect of a [Class/Classes of US Note] on the
date when due and payable in accordance with the
[Conditions of that Class/Classes of US Notes], the
unpaid interest will in turn bear interest in
accordance with the [Conditions of that Class/Classes
of US Notes].
(b) (A$ Notes): If any interest is not paid in respect of
an A$ Note on the date when due and payable in
accordance with this deed (but without regard to any
limitation herein contained) that unpaid interest
will in turn bear interest at the A$ Note Interest
Rate from time to time applicable for the relevant A$
Note
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until (but excluding) the date on which the unpaid
interest is paid in accordance with clause 14.8(f).
Redemption
8.9 (a) (Class A Notes) The [Class/Classes of US Notes] will
be redeemed (or deemed to be redeemed) in accordance
with the [Conditions of that Class/Classes of
US Notes].
(b) (A$ Notes) Each A$ Note will be fully and finally
redeemed, and the obligations of the Issuer Trustee
with respect to the payment of the Invested Amount of
that A$ Note will be fully and finally discharged, on
the first to occur of:
(i) the date upon which the Invested Amount of that
A$ Note is reduced to zero and all accrued but
previously unpaid interest is paid in full
(including, but not limited to, the exercise by
the Issuer Trustee of the Clean-Up Option);
(ii) if the Stated Amount in relation to the A$ Note
is less than the Invested Amount in relation to
the A$ Note, the date on which the Stated Amount
of that A$ Note is reduced to zero and all
accrued but previously unpaid interest is paid
in full (including, but not limited to, the
exercise by the Issuer Trustee of the Clean-Up
Option);
(iii) the date upon which the relevant Noteholder
renounces all of its rights to any amounts
payable under or in respect of that A$ Note;
(iv) the Final Maturity Date; and
(v) the date upon which the Issuer Trustee completes
a sale and realisation of all Assets of the
Trust in accordance with the Master Trust Deed
and this deed and the proceeds of such sale and
realisation are applied, to the extent
available, to repay the Invested Amount plus any
accrued, but unpaid, A$ Note Interest Amount in
respect of that A$ Note in accordance with the
Master Trust Deed or this deed.
Each A$ Note redeemed in full (or deemed to be
redeemed in full) pursuant to this deed will be
cancelled and may not be resold or reissued.
Issuer Trustee's Covenant to the Noteholders
8.10 Subject to the terms of the Master Trust Deed and this
deed, the Issuer Trustee:
(a) acknowledges to each Noteholder its indebtedness in
respect of the Invested Amount of each Note; and
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(b) covenants for the benefit of each Noteholder:
(i) to make all payments of interest in respect of
the Notes held by the Noteholder on each Payment
Date;
(ii) to comply with the terms of this deed and the
Transaction Documents to which it is a party;
and
(iii) to pay the Stated Amount, together with all then
accrued but unpaid interest, in relation to the
Notes held by the Noteholder on the Final
Maturity Date. Subject to this deed (and in the
case of the [Class/Classes of US Notes] the
[Conditions of that Class/Classes of US Notes]),
no amount of principal will be paid in respect
of a Note in excess of the Stated Amount of that
Note.
Register
8.11 The Issuer Trustee shall keep an up to date Register in
respect of the $A Notes in accordance with Schedule 1. The
Register may be maintained in electronic form.
Transfer and Transmission of Notes
8.12 (a) (Transfer of A$ Notes in accordance with Corporations
Law): A Noteholder is only entitled to transfer an A$
Note if the offer of the A$ Note for sale, or the
invitation to purchase the A$ Note, to the proposed
transferee by the Noteholder is an offer or
invitation that does not need disclosure to investors
under Part 6D.2 of Chapter 6 of the Corporations Law
and otherwise complies with the Corporations Law and
if the transfer of the A$ Note complies with Schedule
2.
(b) (Regulation S): An A$ Note may not be offered or sold
within the United States of America or to, or for the
account or benefit of, United States persons except
in accordance with Regulation S under the Securities
Act or pursuant to an exemption from the registration
requirements of the Securities Act. Terms used in
this clause 8.12 have the meaning given to them by
Regulation S under the Securities Act.
Taxation
8.13 All payments in respect of the Notes will be made without
withholding or deduction for, or on account of, any
present or future taxes, duties or charges of whatsoever
nature unless the Issuer Trustee (or, in the case of the
[Class/Classes of US Notes], any Paying Agent) is required
by any applicable law to make such a withholding or
deduction. In that event the Issuer Trustee (or, in the
case of the [Class/Classes of US Notes], any Paying Agent)
will, after making such withholding or deduction, account
to the relevant authorities for the amount so required to
be withheld or deducted. Neither the Issuer Trustee nor
any such Paying Agent will be obliged to make any
additional payments in respect of the relevant Notes in
relation to the withholding or deduction. Immediately
after becoming aware that such a withholding or deduction
is or will be required, the Issuer Trustee will notify the
Note Trustee or the relevant Noteholders in the manner
required by the Transaction Documents.
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Prescription
8.14 A Note will become void in its entirety unless surrendered
for payment within a period of [10] years from the
Relevant Date in respect of any payment of principal or
interest thereon, the effect of which will be to reduce
the Stated Amount of, and all accrued but unpaid interest
on, that Note to zero. After the date on which a Note
becomes void in its entirety, no claim can be made in
respect of it.
"Relevant Date" in respect of a Note means the date on
which a payment in respect thereof first becomes due or,
if the full amount of the moneys payable in respect of the
Note which is due on or before that date has not been duly
received by the relevant Noteholder on or prior to such
date, the date on which the full amount of such moneys has
been so received.
Rounding of Payments
8.15 Except as otherwise specified in this deed, all payments
in respect of a given currency will be rounded to the
nearest cent of that currency.
Call Option
8.16 (a) The Issuer Trustee will, subject to the other
provisions of this deed, when directed by the Global
Trust Manager (at the Global Trust Manager's option),
redeem all, but not some only, of the Notes at their
then Invested Amount (without double counting),
subject to the following, together with all accrued
but unpaid interest in respect of the Notes to (but
excluding) the date of redemption, on any Call Option
Date.
(b) Notwithstanding the foregoing, the Issuer Trustee may
redeem the Notes at their Stated Amount on a Call
Option Date, instead of at their Invested Amount
(without double counting), together with accrued but
unpaid interest in respect of the Notes to (but
excluding) the date of redemption, if so approved by
an Extraordinary Resolution of the Noteholders.
(c) The Issuer Trustee must not redeem the Notes unless
it is in a position on the relevant Call Option Date
to repay the then Invested Amounts or the Stated
Amounts (without double counting), as required, of
the Notes together with all accrued but unpaid
interest to (but excluding) the date of redemption
and to discharge all its liabilities in respect of
amounts which are required under the Master Security
Trust Deed and this deed to be paid in priority to or
equally with the Notes as if the Deed of Charge in
respect of the Trust were enforced.
Redemption for Taxation or Other Reasons
8.17
(a) If the Global Trust Manager satisfies the Issuer
Trustee (and, in the case of the [Class/Classes of US
Notes], the Note Trustee) immediately prior to giving
the direction referred to below that by virtue of
either a change in law of the Commonwealth of
Australia or any of its political subdivisions or any
of its authorities or any other jurisdiction to which
the Issuer Trustee becomes subject (a "Relevant
Jurisdiction"),
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or a change in the application or official
interpretation thereof, from that in effect on the
Closing Date, either:
(i) on the next Payment Date the Issuer Trustee will
be required to deduct or withhold from any
payment of principal or interest in respect of
the Notes including corresponding payments under
any Currency Swap, any amount for or on account
of any present or future taxes, duties,
assessments or governmental charges of whatever
nature imposed, levied, collected, withheld or
assessed by a Relevant Jurisdiction; or
(ii) on the next Payment Date the total amount
payable in respect of interest in relation to
any of the Mortgage Loans for a Collection
Period ceases to be receivable (whether or not
actually received) by the Issuer Trustee by
reason of any present or future taxes, duties,
assessments or governmental charges of whatever
nature imposed, levied, collected, withheld or
assessed by a Relevant Jurisdiction,
and, in each case, such obligation cannot be avoided
by the Issuer Trustee taking reasonable measures
available to it, the Issuer Trustee must, when so
directed by the Global Trust Manager (at the Global
Trust Manager's option), redeem all, but not some
only, of the Notes on any subsequent Payment Date at
their then Invested Amount (without double counting),
subject to the following, together with accrued but
unpaid interest in respect of the Notes to (but
excluding) the date of redemption. Notwithstanding
the foregoing, the Issuer Trustee may redeem the
Notes at their Stated Amount, instead of at their
Invested Amount (without double counting), together
with accrued but unpaid interest in respect of the
Notes to (but excluding) the date of redemption, if
so approved by an Extraordinary Resolution of the
Noteholders.
(b) The Global Trust Manager will not direct the Issuer
Trustee to, and the Issuer Trustee will not, so
redeem the Notes unless the Issuer Trustee is in a
position on such Call Option Date to repay in respect
of the Notes their then Invested Amount or Stated
Amount (without double counting), as required,
together with all accrued but unpaid interest to (but
excluding) the date of redemption and to discharge
all its liabilities in respect of amounts which are
required under the Master Security Trust Deed and
this deed to be paid in priority to or equally with
the Notes as if the Deed of Charge in respect of the
Trust was enforced.
(c) This clause is subject to the [Conditions of the
Class/Classes of US Notes] in respect of the
[Class/Classes of US Notes].
8.18 For the purpose of any redemption under clauses 8.16 and
8.17, the Issuer Trustee may rely on any certificate from
an Authorised Person of the Global Trust Manager that the
Issuer Trustee will be in a position to repay the Notes at
their then Invested Amount or Stated Amount (without
double counting), as applicable, together with all
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accrued but unpaid interest to (but excluding) the date of
redemption and to discharge all its liabilities in respect
of amounts which are required under the Master Security
Trust Deed and this deed to be paid in priority to or
equally with the Notes as if the Deed of Charge in respect
of the Trust were enforced.
9 Conditions Precedent
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Conditions precedent to the issue of Notes
9.1 The obligation of the Issuer Trustee to issue Notes is
subject to:
(a) (Constitution) receipt by the Global Trust Manager of
a certified copy of the constitution of the Seller
and the Servicer;
(b) (Transaction Documents) receipt by the Global Trust
Manager of a certified copy of each executed and
(where relevant) stamped Transaction Document;
(c) (Rating) confirmation from each Current Rating Agency
that the [Senior Class of Notes] have been assigned a
provisional rating of [insert applicable ratings from
applicable rating agencies]; and
(d) (Legal Opinions) receipt by the Global Trust Manager
of:
(i) a legal opinion from Mallesons Xxxxxxx Xxxxxx,
in relation to the obligations of the Global
Trust Manager, the Seller, the Servicer, [the
Liquidity Facility Provider], [the Redraw
Facility Provider], [the Currency Swap
Provider], [the Basis Swap Provider] and [the
Fixed Rate Swap Provider] under the Transaction
Documents to which they are bound;
(ii) a legal opinion from [ ], in relation to the
obligations of the Issuer Trustee under the
Transaction Documents to which it is bound;
(iii) a legal opinion from [ ], in relation to the
validity and enforceability of the obligations
of the Seller, and the Global Trust Manager in
relation to the Transaction Documents which are
expressed to be governed by the laws of New York
and as to certain other matters of United States
law;
(iv) a legal opinion from [ ] as to the due execution
by [name of Note Trustee] of the Transaction
Documents to which it is a party and [ ] in
relation to the obligations of [name of Note
Trustee] under the Transaction Documents to
which it is bound;
(v) [an opinion in respect of each Currency Swap
Provider in relation to the validity and
enforceability of the obligations of each
Currency Swap Provider under each Currency
Swap]; and
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(vi) a legal opinion from [ ] as to the validity and
enforceability of the Pool Insurance Policy.
The Global Trust Manager must provide confirmation to
the Issuer Trustee upon its receipt of such
documents.
10 Representations and Warranties
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Representations and Warranties
10.1 Each of the Issuer Trustee, the Servicer and the Global
Trust Manager represents and warrants to each other (but
with respect to itself only) as follows:
(a) (incorporation) it is validly incorporated and
existing under the laws pursuant to which it purports
to have been incorporated;
(b) (corporate power) it has the corporate power to own
its assets and to carry on its business as it is now
being conducted and the business proposed to be
conducted under this deed;
(c) (power) it has full power and authority to enter into
and perform its obligations under this deed and each
of the Transaction Documents to which it is a party;
(d) (all action taken) it has taken all necessary
internal corporate action to authorise the execution,
delivery and performance of this deed and each of the
Transaction Documents to which it is a party in
accordance with their respective terms and no
additional approval or consent of any person is
required;
(e) (validity of obligations) this deed and each of the
Transaction Documents to which it is a party
constitute legal, valid and binding obligations of it
and, subject to any necessary stamping and
registration and to doctrines of equity and laws and
defences generally affecting creditors' rights, are
enforceable in accordance with their respective
terms;
(f) (no violation) the execution, delivery and
performance by it of this deed and each of the
Transaction Documents to which it is a party does not
and will not violate in any respect any material
provision of:
(i) any law, regulation, authorisation, ruling,
consent, judgement, order or decree of any
Governmental Agency;
(ii) the constitution or other constituent documents
of it; or
(iii) any Encumbrance or document which is binding
upon it or any of its assets,
and (except, in the case of the Issuer Trustee and
the Servicer, in respect of the Deed of Charge) does
not and will not result in:
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(iv) the creation or imposition of any Encumbrance or
restriction of any nature on any of its assets
under the provision of; or
(v) the acceleration of the date of payment of any
obligation existing under,
any Encumbrance or document which is binding upon it or
its assets;
(g) (Authorisations) it has obtained all Authorisations
necessary for it to enter into, and perform its
obligations under, the Transaction Documents and such
Authorisations remain in full force and effect.
Trust representations and warranties
10.2 Without limiting the representations and warranties
provided in clause 10.1, the Issuer Trustee represents and
warrants to the Global Trust Manager and the Servicer
that:
(a) (creation of Trust) the Trust has been validly
created;
(b) (appointment of Issuer Trustee) it has been validly
appointed as the trustee of the Trust;
(c) (sole Issuer Trustee) it is the sole trustee of the
Trust;
(d) (trust power) it has power under the Transaction
Documents to enter into, perform and comply with its
obligations, and to carry out the transactions
contemplated by, this deed;
(e) (no removal) as far as it is aware, there are no
proceedings to remove it as trustee of the Trust; and
(f) (vesting date) the vesting date has not occurred in
respect of the Trust.
11 Payments
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Manner
11.1 The Issuer Trustee and the Servicer will make all payments
under this deed:
(a) in immediately available funds (unless otherwise
agreed) to the account specified by the payee, in
either case, by [ ] (Melbourne time) on the due date;
(b) without set-off, counterclaim or other deduction; and
(c) in accordance with this deed.
Cleared Funds
11.2 Notwithstanding any other provision of this deed, where
the proceeds of a payment due to the Issuer Trustee on a
day are required to be applied by the Issuer Trustee
towards some other payment due on the same day, the
payment to the Issuer Trustee must be made in
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immediately available funds in sufficient time to allow
the Issuer Trustee to make that other payment and the
Issuer Trustee will have no obligation to make the other
payment until the first payment has been made.
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PART 4 - PRINCIPAL AND INCOME DETERMINATIONS AND PAYMENTS
12 Collections
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Establishment of Collections Account with Servicer
12.1 Immediately following the date of constitution of the
Trust, the Issuer Trustee must establish the Collections
Account with the Servicer (provided that such Servicer has
the Required Credit Rating) or such other Eligible Bank as
the Global Trust Manager may determine from time to time.
Remittance to Collection Account
12.2 To the extent that the Servicer is the Seller and the
Servicer has the Required Credit Rating, it is entitled to
retain any Collections in respect of a Collection Period
until [ ] (Melbourne time) on the Payment Date following
the end of the relevant Collection Period, on or before
which time it must deposit such Collections into the
Collections Account or pay such amount in the manner
directed by the Issuer Trustee (acting on the direction of
the Global Trust Manager).
12.3 To the extent that the Servicer is not the Seller, and for
so long as the Servicer has short term credit ratings of
no lower than [insert applicable short term ratings from
applicable ratings agencies], it may retain Collections
until [] (Melbourne time) on the Business Day which is the
earlier of 30 days from receipt and 2 Business Days before
the Payment Date following the end of the relevant
Collection Period. However, while the sum of all
Collections held by the Servicer and the value of any
short term Authorised Investments which are with, or
issued by, a bank or financial institution which has a
short-term credit rating of [ ] from [ ] exceeds an amount
equal to [20%] of the Aggregate Stated Amount of all
Notes, the Servicer will only be entitled to retain any
additional Collections received for 2 Business Days
following receipt.
12.4 Subject to clauses 12.2 and 12.3, the Servicer must remit
all Collections it receives to the Collections Account
within 2 Business Days of receipt of such Collections.
Servicer's Collections
12.5 The Issuer Trustee irrevocably authorises the Servicer to
deduct from any amount received from a Debtor in respect
of, in relation to or in connection with, a Purchased
Mortgage Loan, the amount of any Servicer's Collections
and for the Servicer to retain that amount for its own
account.
13 Termination of the Swaps and Application of Threshold Rate
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Calculation of Threshold Rate
13.1 The Global Trust Manager shall, on each Payment Date after
the date on which the Basis Swap is terminated and not
replaced in the manner contemplated by clause 13.2(a)(i),
and on any other date required by the Transaction
Documents:
(a) calculate the Threshold Rate on that day; and
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(b) notify the Issuer Trustee, the Servicer and the
Seller of that Threshold Rate.
Termination of Basis Swap or Fixed Rate Swap
13.2 If, at any time, the Basis Swap or the Fixed Rate Swap
terminates due to the default or failure to perform by the
Basis Swap Provider or the Fixed Rate Swap Provider (as
the case may be), the Global Trust Manager and the Issuer
Trustee must endeavour to:
(a) in the case of the Basis Swap:
(i) (in the case of the Issuer Trustee, to the
extent that the Global Trust Manager has made
appropriate arrangements to ensure that it is
possible for the Issuer Trustee to) enter into a
replacement swap on substantially similar terms
and with a counterparty acceptable to each
Current Rating Agency;
(ii) (in the case of the Issuer Trustee, to the
extent that the Global Trust Manager has made
appropriate arrangements to ensure that it is
possible for the Issuer Trustee to) ensure the
Seller sets the weighted average (rounded up to
4 decimal places) of the variable interest rates
payable under each applicable Purchased Mortgage
Loan which then forms part of the Assets of the
Trust to at least equal to the Threshold Rate;
or
(iii) (in the case of the Issuer Trustee, to the
extent that the Global Trust Manager has made
appropriate arrangements to ensure that it is
possible for the Issuer Trustee to) within 3
Business Days, enter into such other
arrangements which each Current Rating Agency
has confirmed will not result in an Adverse
Rating Effect; and
(b) in the case of the Fixed Rate Swap, within 3 Business
Days:
(i) (in the case of the Issuer Trustee, to the
extent that the Global Trust Manager has made
appropriate arrangements to ensure that it is
possible for the Issuer Trustee to) immediately
enter into a replacement swap on substantially
similar terms and with a counterparty acceptable
to each Current Rating Agency; or
(ii) (in the case of the Issuer Trustee, to the
extent that the Global Trust Manager has made
appropriate arrangements to ensure that it is
possible for the Issuer Trustee to) enter into
such other arrangements which each Current
Rating Agency has confirmed will not result in
an Adverse Rating Effect.
Servicer's Discretion
13.3 If clause 13.2(a)(ii) applies, the Seller may, at its
discretion, set the interest rate on the Purchased
Mortgage Loans (where permitted under the relevant Loan
Agreement) at an interest rate higher than the Threshold
Rate.
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Issuer Trustee's power
13.4 If the Issuer Trustee has notice that the Seller has
failed to fulfil its obligations under clause 13.2(a)(ii),
the Issuer Trustee has the power to set the interest rate
on the Purchased Mortgage Loans in accordance with clause
13.2(a)(ii).
Termination of Linked Deposit Accounts
13.5 The Seller will, following notice by the Issuer Trustee to
the relevant Debtors after the occurrence of a Title
Perfection Event, subject to any contractual notice
requirements by which the Seller is bound, promptly
withdraw all interest off-set benefits (if any) that would
otherwise be available to Debtors under the terms of their
Linked Deposit Accounts.
Gross Up for Linked Deposit Accounts
13.6 The Seller must pay the Servicer (as part of the
Collections to be deposited by the Servicer into the
Collections Account) any amount which would otherwise be
received by the Servicer as a Collection to the extent
that the obligation to pay such amounts is discharged or
reduced by virtue of the terms of a Linked Deposit
Account. Such payment must be made on the day that the
relevant amount would otherwise have been received.
14 Cashflow Allocation Methodology
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General
14.1 Prior to the occurrence of an Event of Default, the
Collections, Other Income and any amount required to be
drawn under the Support Facilities will be allocated by
the Global Trust Manager and paid in accordance with
clauses 14.2 to 14.17 below.
Collection Period
14.2 The Servicer will collect all Collections on behalf of the
Issuer Trustee during each Collection Period. On each
Determination Date, the Global Trust Manager will allocate
the Collections between Finance Charge Collections and
Principal Collections.
Finance Charge Collections
14.3 On each Determination Date, the Finance Charge Collections
for the immediately preceding Collection Period will be
calculated by the Global Trust Manager as [insert
methodology for calculation of Finance Charge Collections]
Calculation of Available Income
14.4 On each Determination Date, the Available Income is
calculated by the Global Trust Manager (without double
counting) as follows [insert methodology for calculation
of Available Income]
Principal Draw
14.5 If, on any Determination Date, there is a Payment
Shortfall then the Global Trust Manager must direct the
Issuer Trustee to make a Principal Draw on the Payment
Date immediately following that Determination Date equal
to the lesser of:
(a) the Payment Shortfall; and
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(b) the amount of Principal Collections available for
application for that purpose on the following Payment
Date in accordance with clause [14.13(c)],
and apply it towards the Payment Shortfall.
[Liquidity Drawing
14.6 If, on any Determination Date, there is a Liquidity
Shortfall, the Global Trust Manager must direct the Issuer
Trustee to make a Liquidity Drawing on the Payment Date
immediately following that Determination Date equal to the
lesser of:
(a) the Liquidity Shortfall on that Determination Date;
and
(b) the Available Liquidity Amount on that Determination
Date.
The Issuer Trustee must, if so directed by the Global
Trust Manager, make that Liquidity Drawing and have the
proceeds deposited or transferred into the Collections
Account on the relevant Payment Date.]
Calculation and application of Total Available Income
14.7 On each Determination Date, the Total Available Income is
calculated as [insert methodology for calculation of Total
Available Income]
Required Payments (Interest waterfall)
14.8 The Global Trust Manager must direct the Issuer Trustee to
pay (or direct the payment of) the following items in the
following order of priority out of the Total Available
Income (as calculated on the relevant Determination Date)
on each Payment Date: [insert Interest waterfall]
The Issuer Trustee will only make a payment under any of
paragraphs (a) to (g) inclusive to the extent that any
Total Available Income remains from which to make the
payment after amounts with priority to that amount have
been paid and distributed.
14.9 On each Payment Date that any amount is payable to a
Currency Swap Provider under clause 14.8(f)(i), the Issuer
Trustee must comply with Condition [6.9] of the
[Conditions of the Class/Classes of US Notes].
Excess Available Income
14.10 To the extent that, on any Payment Date, the Total
Available Income exceeds the amounts payable under clause
14.8 (as calculated on the relevant Determination Date)
("Excess Available Income"), the Global Trust Manager must
apply any such excess and direct the Issuer Trustee to pay
(or direct the payment of) such amount on that Payment
Date in the following order of priority: [insert
application and priority of payment of Excess Available
Income]
The Issuer Trustee will only make a payment under any of
paragraphs (a) to (f) above inclusive to the extent that
any Excess Available Income remains from which to make the
payment after amounts with priority to that amount have
been paid and distributed.
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Principal Collections
14.11 On each Determination Date, the Principal Collections is
calculated as [insert methodology for calculation of
Principal Collections]
Redraw Shortfall
14.12 If the Global Trust Manager determines on any
Determination Date that there is a Redraw Shortfall, the
Global Trust Manager must direct the Issuer Trustee in
writing to request from the Redraw Facility Provider, in
accordance with the Redraw Facility Agreement, a Redraw
Drawing under the Redraw Facility Agreement on the
immediately following Payment Date in an amount equal to
the lesser of:
(a) the Redraw Shortfall on that Determination Date; and
(b) the Available Redraw Amount on that Determination
Date.
The Issuer Trustee must, if so directed by the Global
Trust Manager, make that Redraw Drawing and have the
proceeds deposited or transferred into the Collections
Account on the relevant Payment Date.
Principal Distributions
14.13 On each Payment Date and based on the calculations,
instructions and directions provided to it by the Global
Trust Manager, the Issuer Trustee must distribute out of
Principal Collections (as calculated on the Determination
Date immediately preceding that Payment Date), the
following amounts in the following order of priority
[insert application and priority of payment of Principal
Distributions]:
The Issuer Trustee will only make a payment under any of
paragraphs (a) to (g) inclusive to the extent that any
Principal Collections remain from which to make the
payment after amounts with priority to that amount have
been paid and distributed.
Payments of Principal on the Notes and to the Redraw Facility Provider
14.14 On each Payment Date prior to the occurrence of an Event
of Default, the Issuer Trustee must, in accordance with
the directions given by the Global Trust Manager and
subject to the payment priority provided for in clause
14.13, pay [insert allocation of principal payments among
senior and subordinate classes of Notes]:
Principal Charge-Offs
14.14A If, on any Determination Date, the Global Trust Manager
determines that there are Principal Charge-Offs in respect
of the immediately preceding Collection Period, the Global
Trust Manager must, on that Determination Date, allocate
such Principal Charge-Offs in the following order [insert
allocation of Principal Charge-Offs]:
Xxxxxxxxx Principal Charge-Offs
14.15 If, on any Determination Date, the Principal Charge-Offs
for the immediately preceding Collection Period exceed the
amount of the Excess Available Income available for
allocation to Principal Charge-Offs under clause 14.10(a)
on that Determination Date, the Global Trust Manager must,
on and with effect from the next Payment Date: [insert
allocation of Carryover Principal Charge-Offs]
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(each a "Carryover Principal Charge-Off").
Increases
14.16 To the extent that on any Determination Date amounts are
available for allocation under clauses 14.10(b) and (d),
then an amount equal to these amounts shall be applied on
the next Payment Date to increase respectively [insert
allocation of available amounts among senior and
subordinate classes of Notes]
Early Repayment Costs
14.17 On each Determination Date, the Global Trust Manager will
calculate the aggregate of the Early Repayment Costs in
respect of the Purchased Mortgage Loans during the
immediately preceding Collection Period and will direct
the Servicer to pay that amount, on the immediately
following Payment Date, to the Fixed Rate Swap Provider
under the terms of the Fixed Rate Swap.
Application of proceeds following an Event of Default
14.18 Following the occurrence of an Event of Default, the
Security Trustee must apply all moneys received by it in
respect of the Secured Property in the following order
[insert waterfall following Event of Default]:
Excluded Amount
14.19 The proceeds of any collateral provided by a Support
Facility Provider will not be treated as Secured Property
available for distribution in accordance with clause
14.18. Any such collateral shall (subject to the operation
of any netting provisions in the relevant Support
Facility) be returned to the relevant Support Facility
Provider except to the extent that the relevant Support
Facility requires it to be applied to satisfy any
obligation owed to the Issuer Trustee by the relevant
Support Facility Provider.
15 Determinations by Global Trust Manager
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Determinations by Global Trust Manager
15.1 On each Determination Date, the Global Trust Manager will
(and where applicable, in respect of the Collection Period
ending immediately prior to that Determination Date)
determine or otherwise ascertain:
(a) the Finance Charge Collections;
(b) the Other Income;
(c) [the Mortgage Insurance Interest Proceeds];
(d) the Available Income;
(e) the Total Available Income;
(f) the Principal Draw, if any;
(g) the Liquidity Draw, if any;
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(h) the Expenses of the Trust;
(i) the Required Payments (and each amount comprising the
Required Payments);
(j) the Excess Available Income;
(k) the Principal Collections;
(l) the Redraw Shortfall (if any);
(m) the Principal Charge-Offs (if any);
(n) the Carryover Principal Charge-Offs (if any);
(o) the Extraordinary Expenses, if any;
(p) the Enforcement Expenses, if any;
(q) [additional determinations in respect of series]; and
(r) any other relevant determinations.
15.2 The Global Trust Manager must:
(a) notify the Issuer Trustee of each of the amounts
calculated by it in clause 15.1; and
(b) instruct the Issuer Trustee as to the payments to be
made by the Issuer Trustee on the relevant Payment
Date in accordance with clause 14.
15.3 On or before [midday] on the day which is two Business
Days prior to each Payment Date, the Global Trust Manager
must:
(a) determine any net amounts required to be drawn under
Support Facilities on that Payment Date;
(b) notify the Issuer Trustee of such determinations; and
(c) direct the Issuer Trustee to make such drawings.
16 Global Trust Manager, Issuer Trustee and Servicer Fees
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Global Trust Manager's fee
16.1 For the purposes of clause 26.1 of the Master Trust Deed,
and in consideration of the Global Trust Manager
performing its function and duties in respect of the
Trust, it will be paid a fee by the Issuer Trustee from
the Trust [insert methodology for calculation of Global
Trust Manager]
Issuer Trustee's fee
16.2 For the purposes of clause 26.2 of the Master Trust Deed,
and in consideration of the Issuer Trustee performing its
functions and duties in respect of the Trust it will
receive a fee, in an amount and calculated [insert
methodology for calculation of Issuer Trustee].
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Servicer's fee
16.3 For the purposes of clause 6.1 of the Servicing Agreement,
and in consideration of the Servicer performing its
functions and duties in respect of the Trust, it will be
paid a fee by the Issuer Trustee from the Trust [insert
methodology of calculation for Servicer's fee]
Fee and GST
16.4 (a) The fees payable to the Issuer Trustee and the
Servicer are inclusive of GST;
(b) The fees payable to the Global Trust Manager are not
subject to GST in the hands of the Global Trust
Manager as the supplies made by the Global Trust
Manager are not connected with Australia but the
recipient of any supplies made by the Global Trust
Manager may incur a GST liability under the reverse
charge rules of the GST legislation; and
(c) Each supplier, other than the Global Trust Manager,
will provide the corresponding recipient with any
reasonable documentation required for GST purposes so
as to enable the relevant recipient to receive an
input tax credit or tax refund for tax purposes.
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PART 5 - GENERAL
17 Notices
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Notices
17.1 Any notice, request, certificate, approval, demand,
consent or other communication to be given under this
deed:
(a) must be given by an Authorised Person of the relevant
party;
(b) must be in writing; and
(c) must be left at the address of the addressee or sent
by prepaid ordinary post to the address of the
addressee or sent by facsimile to the facsimile
number of the addressee, or sent by e-mail to the
e-mail address of the addressee set out below or as
are notified by the party to the other parties as its
address for service of communications pursuant to
this deed.
Issuer Trustee:
Address: [ ]
Facsimile: [ ]
Attention: [ ]
E-mail: [ ]
Global Trust Manager:
Address: Level 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Facsimile: [(000) 0000 0000]
Attention: [Manager, Group Funding]
E-mail: [ ]
Security Trustee:
Address: [ ]
Facsimile: [ ]
Attention: [ ]
E-mail: [ ]
Seller:
Address: Level 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Facsimile: [(00 0) 0000 0000]
Attention: [Company Secretary]
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Servicer:
Address: Level 0
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxx 0000
Facsimile: [(00 0) 0000 0000]
Attention: [Head of Servicing and Head of
Securitisation]
Deemed receipt
17.2 A notice, request, certificate, demand, consent or other
communication under this deed is deemed to have been
received:
(a) where delivered in person, upon receipt at the
relevant office;
(b) where sent by post, on the third (seventh if outside
Australia) day after posting;
(c) where sent by facsimile, on production by the
dispatching facsimile machine 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; and
(d) 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 4.00 p.m. (local time at the address of the
recipient) on a Business Day it is deemed to have been
received at the commencement of business on the next
following Business Day.
18 Counterparts
--------------------------------------------------------------------------------
This deed may be executed in any number of counterparts.
All counterparts together will be taken to constitute one
instrument.
19 Damages
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Claim for Damages
19.1 Where this deed provides for damages to be payable by the
Seller, the Servicer or the Global Trust Manager to the
Issuer Trustee:
(a) (claim must be in writing) a written notice of a
claim for damages must be provided to the relevant
party by the Issuer Trustee;
(b) (claim must specify the amount of damages) such
notice must specify the amount of damages claimed and
how such amount has been determined by reference to
the loss incurred as a result of the breach leading
to the claim for damages; and
(c) (Issuer Trustee must act on instructions) the Issuer
Trustee in preparing a notice in accordance with
clauses 19.1(a) and
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(b) will act on the instructions of the Global Trust
Manager (in the case of a claim against the Seller or
the Servicer) or take expert advice, if necessary (in
the case of a claim against the Global Trust
Manager).
Allocation of Damages
19.2 If damages or indemnities are payable to the Issuer
Trustee by the Servicer, the Seller or the Global Trust
Manager for breach of a representation, warranty or
obligation under the Master Trust Deed, this deed or
another Transaction Document, such damages (or
indemnities, as the case may be) are to be treated as
Finance Charge Collections. On each Determination Date the
Global Trust Manager must notify the Issuer Trustee of the
damages (or the indemnities, as the case may be) received
(if any) in the Collection Period just ended.
20 Miscellaneous
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Certificate
20.1 A certificate signed by the Issuer Trustee or its
solicitors about a matter or about a sum payable to the
Issuer Trustee in connection with this deed is sufficient
evidence of the matter or sum stated in the certificate
unless the matter or sum is proved to be false.
Exercise of rights
20.2 The Issuer Trustee or an attorney appointed under this
deed may exercise a right, power or remedy at its
discretion, and separately or concurrently with another
right, power or remedy. A single or partial exercise of a
right, power or remedy by the Issuer Trustee does not
prevent a further exercise of that or an exercise of any
other right, power or remedy. Failure by the Issuer
Trustee to exercise or delay in exercising a right, power
or remedy does not prevent its exercise. The Issuer
Trustee 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 the Issuer Trustee,
its negligence, fraud or breach of trust.
Waiver and variation
20.3 A provision of or a right created under this deed may not
be waived or varied except in writing signed by the party
or parties to be bound.
Supervening legislation
20.4 Any present or future legislation which operates to vary
the obligations of the Issuer Trustee in connection with
this deed with the result that the Issuer Trustee's
rights, powers or remedies are adversely affected
(including, without limitation, by way of delay or
postponement) is excluded except to the extent that its
exclusion is prohibited or rendered ineffective by law.
Approvals and consent
20.5 The Issuer Trustee, the Global Trust Manager or an
attorney appointed under this deed may give conditionally
or unconditionally or withhold its approval or consent in
its absolute discretion, unless this deed expressly
provides otherwise.
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Remedies cumulative
20.6 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
20.7 Each indemnity in this deed is a continuing obligation,
separate and independent from the other obligations of the
Issuer Trustee and the Global Trust Manager and survives
termination of this deed. It is not necessary for the
Issuer Trustee or the Global Trust Manager to incur
expense or make payment before enforcing a right of
indemnity conferred by this deed.
Time of the essence
20.8 Time is of the essence in this deed in respect of an
obligation of the Issuer Trustee to pay money.
Receipts
20.9 The receipt of a Receiver, or an Authorised Person of the
Issuer Trustee, releases the person paying money to the
Receiver or the Issuer Trustee in connection with this
deed from:
(a) liability for the money paid or expressed to be
received; and
(b) being concerned to see to its application or being
answerable or accountable for its loss or
misapplication.
Acknowledgment
20.10 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 the Transaction
Documents in respect of the Trust and may exercise such
powers and discretions as provided in the Transaction
Documents in respect of the Trust and (without limitation)
in forming any opinion may obtain and act upon the advice
of persons who are not parties to the Transaction
Documents in respect of the Trust.
20.11 The parties acknowledge that they are bound by the terms
of the Master Trust Deed, the Deed of Charge in respect of
the Trust and this deed in respect of the Trust.
Disclosure of information
20.12 Subject to this deed, the Issuer Trustee is not required
(unless ordered so to do by a court of competent
jurisdiction) to disclose to any Unitholder, Secured
Creditor or any other person confidential, financial or
other information made available to the Issuer Trustee in
connection with this deed.
Rights cumulative
20.13 The rights, powers and remedies provided in this deed are
cumulative and not exclusive of the rights, powers or
remedies provided by law independently of this deed.
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Signatures
20.14 The Issuer Trustee and the Global Trust Manager may rely
on the validity of any signature on any transfer, form of
application or other instrument or document unless the
Issuer Trustee or the Global Trust Manager (as the case
may be) has reasonable grounds to believe that the
signature is not genuine. Neither the Issuer Trustee nor
the Global Trust Manager is liable to make good out of its
own funds any loss incurred by any person if a signature
is forged or otherwise fails to bind the person whose
signature it purports to be or on whose behalf it purports
to be made. Any such loss, subject to any right of
reimbursement from any other person (including the Global
Trust Manager) is to be borne by the relevant Trust in
respect of which the loss is incurred.
21 Governing law
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Governing Law
21.1 This deed and the Trust are governed by the law in force
in the Australian Capital Territory and the rights,
liabilities and obligations of the parties to it are
governed by the laws in force in the Australian Capital
Territory.
Submission to jurisdiction
21.2 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
21.3 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 17.
22 Limited Recourse - Issuer Trustee
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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).
23 Seller Trust
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Constitution of Seller Trust
23.1 Subject to this clause 23, a Seller Trust is constituted
upon execution of this deed and the payment of $20 by the
Seller to the Issuer Trustee. The Seller Trust Assets of
the Seller Trust vest in the Issuer Trustee and are held
by the Issuer Trustee on the terms of and subject to this
deed.
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Declaration of Trust
23.2 The Issuer Trustee declares that it will hold all its
right, title and interest in the Seller Trust Assets of
the Seller Trust on bare trust for the Seller.
23.3 With respect to:
(a) the Trust, the Issuer Trustee will hold all of its
right, title and interest in so much of any Mortgage
Loan, Mortgage Title Documents and Monetary Rights
for each Purchased Mortgage Loan from time to time
assigned to the Issuer Trustee (including, without
limitation, the proceeds of enforcement of that
Purchased Mortgage Loan) as is necessary to enable
the full and final repayment of all amounts owing by
the Debtor in respect of the Purchased Mortgage Loan,
on trust for the Trust; and
(b) the Seller Trust, the Issuer Trustee will hold each
Other Secured Liability and the balance (if any) of
any Mortgage Loans, Mortgage Title Documents and
Monetary Rights on trust for the Seller Trust.
Entitlement
23.4 The beneficial interest in the Seller Trust Assets
relating to the Seller Trust vests absolutely in the
Seller.
Dealing with assets
23.5 Subject to the terms of this deed:
(a) the Seller is entitled to deal with the Seller Trust
Assets in its absolute discretion;
(b) the Issuer Trustee must not deal with the Seller
Trust Assets of the Seller Trust other than in
accordance with the directions given to it by the
Seller from time to time; and
(c) the Issuer Trustee must act in accordance with any
direction given to it by the Seller in respect of the
Seller Trust Assets,
except if the Issuer Trustee considers that it would be
illegal for the Issuer Trustee to do so, would constitute
a breach of any document, agreement or law or would result
in the Issuer Trustee's exposure to a risk of personal
liability where the Issuer Trustee is not satisfied, in
its absolute discretion, that the Seller will be able to
indemnify or reimburse the Issuer Trustee in accordance
with clause 23.11.
Treatment of Shared Collateral
23.6 Where:
(a) a Purchased Mortgage Loan forms part of the Trust;
(b) an Other Secured Liability forms part of the Seller
Trust; and
(c) the Mortgage which secures the Mortgage Loan also, in
accordance with the terms of this deed, secures the
Other Secured Liability,
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then all moneys received by the Seller, the Servicer, the
Global Trust Manager, or the Issuer Trustee or any
receiver, receiver and manager or attorney under or in
relation to a Purchased Mortgage Loan or any Other Secured
Liability as a result of the enforcement of a Purchased
Mortgage Loan shall be applied in accordance with the
directions of the Global Trust Manager and in the
following order of priority:
(d) first, to meet all costs, charges and expenses of the
Issuer Trustee or the relevant mortgagee or any
receiver, receiver and manager or attorney incurred
in the enforcement of the Purchased Mortgage Loan;
(e) second, in satisfaction of amounts owing under the
Purchased Mortgage Loan, to be held on the terms of
the Trust; and
(f) third, as to any excess, in satisfaction of the Other
Secured Liability.
For the avoidance of doubt, the Seller acknowledges that:
(i) it may not take any action that would restrict or
prevent the transfer of, and its consent will not be
required to transfer, Mortgage Loans between trusts,
or from the Trust to any other person, in accordance
with this deed and the Master Trust Deed or any other
action which the Issuer Trustee may take in respect
of the Mortgage Loans in accordance with this deed
and the Master Trust Deed (provided that the other
trust, or the other person, to whom the Mortgage
Loans are transferred is made aware of the existence
of the interests of the Seller in the Mortgage
Loans);
(ii) it will not, and has no right to, take any action
which may affect or restrict the ability of the
Issuer Trustee or the Security Trustee (or any
receiver, receiver and manager or attorney appointed
by any of them) to take any enforcement action in
respect of a Mortgage Loan. The Seller will not
demand, nor will it receive (or be entitled to
receive) any payment in respect of an interest in the
Mortgage Loan until all payments referred to in
clauses 23.6(d) and (e) have been paid in full; and
(iii) it may not direct the Issuer Trustee to take any
action with respect to a Seller Trust Asset that may
prejudice the interests of Unitholders and/or Secured
Creditors.
Proceeds
23.7 Subject to clause 23.6, the Seller may retain any proceeds
received by it from the Seller Trust Assets of the Seller
Trust.
23.8 Subject to clause 23.6, the Issuer Trustee must
immediately pay to or at the direction of the Seller any
proceeds the Issuer Trustee receives in respect of the
Seller Trust Assets of the Seller Trust. Any such payment
constitutes a good discharge of the Issuer Trustee.
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Claw-Back
23.9 The Seller must immediately pay to or at the direction of
the Issuer Trustee any payments made erroneously by the
Issuer Trustee to the Seller under clause 23.8.
Duties
23.10 (a) The Issuer Trustee owes no fiduciary or other duties
to the Seller in respect of the Seller Trust Assets
of the Seller Trust other than as set out in this
clause. The Issuer Trustee is not, in any event,
liable to the Seller for any loss to the Seller Trust
Assets of a Seller Trust as a result of acting on the
directions of the Seller or for not acting as a
result of the Seller failing to give a direction to
the Issuer Trustee. The only recourse of the Seller
against the Issuer Trustee in respect of the Seller
Trust will be for any loss suffered by the Seller to
the extent of the Issuer Trustee's fraud, negligence
or breach of trust.
(b) The Issuer Trustee has no liability to the
Unitholders of the Trust or to the Secured Creditors
of the Trust for acting on the directions of the
Seller (or for not acting, where the Seller fails to
give a direction to the Issuer Trustee) in respect of
the Seller Trust Assets that are referable to the
Trust.
Indemnity
23.11 Without limiting any other indemnity to which the Issuer
Trustee is entitled, and subject to clause 23.12, the
Seller indemnifies the Issuer Trustee against any cost,
expense, loss or liability incurred by the Issuer Trustee
as a result of any dealing with the Seller Trust Assets by
the Seller, the Issuer Trustee complying with directions
given to it by the Seller in respect of any Seller Trust
Assets or as a result of not acting if the Seller gives it
no direction. The Seller must pay or reimburse the Issuer
Trustee on demand for all expenses payable in connection
with this indemnity. The provisions of clause 2 of the
Definitions Schedule and clauses 12.3, 12.5 and 12.8 to
12.24 (inclusive) of the Master Trust Deed apply to the
Seller Trust as if it were a "Trust" as defined in the
Master Trust Deed.
23.12 The indemnity given by the Seller in clause 23.11 will
not apply to the extent that the relevant cost, expense,
loss or liability arises as a result of the Issuer
Trustee's fraud, negligence or breach of trust.
Termination
23.13 Subject to this deed, the Seller Trust terminates when
the Issuer Trustee ceases to have any right to or interest
in, the Seller Trust Assets of the Seller Trust.
Transfer
23.14 If:
(a) any Purchased Mortgage Loans are transferred from the
Trust to another trust in accordance with this deed
or the Master Trust Deed; and
(b) a Seller Trust exists in respect of any such Mortgage
Loans,
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then, subject to this deed, the Seller Trust in respect of
the relevant Mortgage Loans will cease to exist in respect
of the Trust from which those Mortgage Loans are
transferred and the Seller Trust established under this
deed to which those Mortgage Loans are transferred will
from that time apply to those Mortgage Loans. The consent
or approval of the Seller is not required in respect of
such a transfer.
Other liabilities
23.15 The Seller may provide additional or further financial
accommodation to a Debtor which is secured by a Shared
Security (other than any such financial accommodation
provided in respect of a Purchased Mortgage Loan) which
has been assigned to the Trust after that assignment has
taken place.
Shared Securities
23.16 (a) The Issuer Trustee must not, and the Global Trust
Manager must not direct the Issuer Trustee to, sell,
transfer or grant any Security Interest over any
Shared Security which is held by it partly as trustee
for the Trust and partly by it as trustee for the
Seller Trust without notifying the relevant
transferee or holder of the Security Interest of the
existence of the interest of the Seller as
beneficiary of the Seller Trust in that Shared
Security.
(b) The Seller (as beneficiary of the Seller Trust) has
the power, in the case of a Shared Security over
Land, to lodge a caveat over any Shared Security
where the Issuer Trustee has, in breach of clause
23.16(a) sold, transferred or granted any Security
Interest or the Seller reasonably believes that the
Issuer Trustee will sell, transfer or grant any
Security Interest.
24 Seller Provisions
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Set-Off
24.1 If the Seller exercises a right of set-off or combination
in respect of any Mortgage Loan, or if any right of
set-off is exercised against the Seller in respect of any
Mortgage Loan, the Seller must pay to the Issuer Trustee,
subject to any laws relating to preferences (or the
equivalent), the amount of, respectively, any benefit
accruing to the Seller as a result of the exercise of its
right of set-off or combination or the amount of any right
of set-off exercised against the Seller.
Seller Downgrade
24.2 If at any time the Seller has a short term deposit credit
rating which is lower than [insert applicable short term
ratings by applicable ratings agencies]then (whether or
not clause 24.5 has previously applied) the Seller must:
(a) (make a Seller Deposit): as a prepayment of its
obligations pursuant to clause 24.1, pay to the
Issuer Trustee the amount of any set-off that may
thereafter be exercised against the Seller, deposit
or maintain in an account ("Set-Off Account") with an
Eligible Bank which has a short term credit rating of
[applicable short term credit rating] from
[applicable ratings agency] (which may be the
Collections Account while the holder of the
Collections Account is rated in this manner) on
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each Payment Date thereafter (after giving effect to
the payments to be made on that Payment Date) an
amount which is the greater of the following ("Seller
Deposit"):
(i) in the case of a lower rating by [applicable
ratings agency], the amount from time to time
agreed with [applicable ratings agency] or,
failing agreement, the amount from time to time
specified by [applicable ratings agency], which
is sufficient in either case (as applicable) so
as to not result in an Adverse Rating Effect in
respect of [applicable ratings agency]; or
(ii) in the case of a lower rating by [other
applicable ratings agencies], unless otherwise
agreed by [other applicable ratings agencies]
(as the case may be), an amount equal to []% of
the aggregate of the amounts then standing to
the credit of the deposit accounts held by
Debtors with Housing Loans that comprise part of
the Purchased Mortgage Loans that do not have a
Waiver of Set-Off as at the preceding Payment
Date; or
(b) (Other arrangements): implement such other
arrangements as are from time to time agreed between
the Seller and [the ratings agency which has assigned
a rating lower than that specified] (and notified by
the Seller to the Issuer Trustee and the Global Trust
Manager) so as to ensure that an Adverse Rating
Effect does not result in respect of any of [names of
the applicable ratings agencies] (as the case may be)
if such other arrangements cannot be so agreed with
[names of the applicable ratings agencies] (as the
case may be), the Seller must comply with clause
24.2(a) in relation to [names of the applicable
ratings agencies], as the case may be),
provided that the Seller will not have any obligation
pursuant to this clause 24.2 if all Housing Loans which
are part of the Purchased Mortgage Loans which are Assets
of the Trust have a Waiver of Set-Off.
Reduction or increase of Seller Deposit
24.3 If on a Payment Date to which clause 24.2 applies:
(a) (Reduction): the required amount of the Seller
Deposit pursuant to clause 24.2(a) is less than the
existing amount of the Seller Deposit, the Global
Trust Manager will direct the Issuer Trustee to repay
(and upon receipt of such direction the Issuer
Trustee will repay on that Payment Date) to the
Seller from the Set-Off Account the difference
between the required amount of the Seller Deposit on
that Payment Date and the existing amount of the
Seller Deposit; and
(b) (Increase): the required amount of the Seller Deposit
pursuant to clause 24.2(a) is greater than the
existing amount of the Seller Deposit, the Seller
will deposit in the Set-Off Account on that Payment
Date the difference between the required
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amount of the Seller Deposit on that Payment Date and
the existing amount of the Seller Deposit.
Interest on Seller Deposit
24.4 On each Determination Date, the Global Trust Manager will
determine the amount (if any) that has been received in
the Collection Period just ended in respect of interest
that has been earned on the Set-Off Account and which is
attributable to the Seller Deposit (if any) deposited in
the Set-Off Account and will instruct the Issuer Trustee
to pay such interest to the Seller on the next Payment
Date.
Seller Upgrade
24.5 If, following the application of clause 24.2(a), the
Seller is assigned (by the relevant Current Rating Agency
or Current Rating Agencies responsible for triggering the
application of the clause) a short term deposit credit
rating of [insert applicable short term ratings by
applicable ratings agencies], or if alternative
arrangements referred to in clause 24.2(b) are agreed
(with the relevant Current Rating Agency or Current Rating
Agencies referred to therein) which do not require the
maintenance of a Seller Deposit, the Global Trust Manager
will direct the Issuer Trustee to repay (and within 2
Business Days of receipt of such direction of the Issuer
Trustee will repay) to the Seller from the Set-Off Account
the then Seller Deposit (which has not previously been
utilised in accordance with clause 24.7(b)) together with
all accrued, but unpaid, interest on that amount
determined in accordance with clause 24.4.
Termination of Trust or Amendments to Mortgage Loans
24.6 On the earlier of:
(a) the date upon which all Housing Loans that comprise
part of the Purchased Mortgage Loans which are Assets
of the Trust have a Waiver of Set-Off;
(b) the Termination Date; and
(c) the Payment Date immediately following the occurrence
of a Title Perfection Event,
the Global Trust Manager will direct the Issuer Trustee to
repay (and upon receipt of such direction the Issuer
Trustee will repay) to the Seller from the Set-Off Account
the then Seller Deposit (which has not previously been
utilised in accordance with clause 24.7(b)) together with
all accrued, but unpaid, interest on that amount
determined in accordance with clause 24.4.
Withdrawals from the account
24.7 The Global Trust Manager may only direct the Issuer
Trustee to, and the Issuer Trustee may only, make
withdrawals from the Seller Deposit in the Set-Off Account
as follows:
(a) (Repay Seller Deposit) to repay to the Seller the
Seller Deposit pursuant to clauses 24.3(a), 24.5 and
24.6; or
(b) (meet Seller obligations) to meet any obligation of
the Seller (in that capacity) to make any payment to
the Issuer Trustee
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pursuant to clause 24.1 in relation to the amount of
any right of set-off exercised against the Seller
referred to therein, provided that the Seller has
failed to make such payment within 20 Business Days
of receipt by the Seller of notice from the Issuer
Trustee or the Global Trust Manager that such payment
is due and unpaid.
EXECUTED as a deed.
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Schedule 1 Register
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Register
1 The Issuer Trustee must, in respect of the Trust, keep an
up to date Register in respect of that Trust. The Issuer
Trustee must enter into the Register:
(a) the name of the Trust;
(b) the names and addresses of the Noteholders;
(c) the number of Notes held by each Noteholder;
(d) the date on which each Noteholder was first
registered in the Register;
(e) the date on which any person ceases to be a
Noteholder;
(f) the class of Note issued;
(g) the A$ Note Interest Rate payable in relation to the
Note;
(h) the Final Maturity Date (if applicable) in relation
to the Note;
(i) the account into which any payments to a Noteholder
are to be paid (if applicable);
(j) the Invested Amount and Stated Amount, if any, in
relation to the Note; and
(k) any other particulars the Global Trust Manager and
the Issuer Trustee agree are desirable or as required
under this deed.
Issuer Trustee not liable for mistake
2 The Issuer Trustee is not liable for any mistake in the
Register or in any purported copy except to the extent
that the mistake is attributable to the Issuer Trustee's
own fraud, negligence or breach of trust.
Global Trust Manager accept correctness
3 The Global Trust Manager is entitled to accept the
correctness of all information contained in the Register
and is not liable to any person for any error in it.
Inspection
4 The Global Trust Manager, or Noteholders and their
authorised representatives may inspect that part of the
Register which relates to the Noteholder free of charge
and on reasonable notice. The Issuer Trustee shall give a
copy of the Register or part of it to the Global Trust
Manager within 3 Business Days of receipt of a request
from the Global Trust Manager.
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Change in information
5 A Noteholder must advise the Issuer Trustee of any change
to the information noted in the Register in respect of
that Noteholder. Upon receipt of such advice, the Issuer
Trustee must promptly update the information contained in
the Register.
Closure
6 The Issuer Trustee from time to time may close the
Register but no part of the Register may be closed for
more than 30 days in aggregate in any calendar year.
Notice of other interest
7 Except as otherwise provided in this deed, no notice of
any trust, whether express, implied or constructive, shall
be entered in the Register and neither the Issuer Trustee
nor the Global Trust Manager shall be affected by or
compelled to recognise (even when having notice of it) any
right or interest in any Note other than the Noteholders'
absolute right to the entirety of them and the receipt by
a Noteholder shall be a good discharge to the Issuer
Trustee and Global Trust Manager.
Information
8 The Global Trust Manager shall furnish the Issuer Trustee
with such information as the Issuer Trustee may reasonably
require to maintain the Register.
Closure to calculate entitlement
9 In order to calculate Noteholder entitlements and interest
entitlements, the Register may be closed by the Issuer
Trustee from [ ] on such Business Day as the Global Trust
Manager may determine from time to time (not exceeding 5
Business Days) and recommence at the commencement of
business on the Business Day immediately following the day
the Noteholder entitlements and any coupon or interest are
payable.
Appointment of third party registrar
10 The Issuer Trustee, with the approval of the Global Trust
Manager, may cause the Register to be maintained by a
third party on its behalf and require that person to
discharge the Issuer Trustee's obligations under this deed
in relation to the Register. The Issuer Trustee is not
liable for any act or omission of such person provided the
Issuer Trustee has taken reasonable steps to select a
person competent to perform this function.
Conclusiveness of Register
11 An Acknowledgment is not a certificate of title as to
Notes and the Register is the only conclusive evidence of
title to Notes.
Worn out or lost Acknowledgment
12 If an Acknowledgment becomes worn out or defaced, then
upon production of it to the Issuer Trustee, a replacement
will be issued. If an Acknowledgment is lost or destroyed,
and upon proof of this to the satisfaction of the Issuer
Trustee and
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the provision of such indemnity as the Issuer Trustee
considers adequate, a replacement Acknowledgment will be
issued. A fee not exceeding $[10] may also be charged by
the Issuer Trustee for the new Acknowledgment if it so
requires.
Rectification of Register
13 If:
(a) an entry is omitted from the Register;
(b) an entry is made in the Register otherwise than in
accordance with this deed;
(c) an entry wrongly exists in the Register;
(d) there is an error or defect in any entry in the
Register; or
(e) a default is made or an unnecessary delay takes place
in entering into the Register that any person has
ceased to be the holder of a Note or any other
information,
the Issuer Trustee may rectify the same and the Issuer
Trustee is not liable for any loss, costs or liability
incurred as a result of any of the foregoing occurring.
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Schedule 2 Transfer of Notes
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Form of transfer
1 All transfers of Notes must be in writing in the form of
the transfer as agreed between the Global Trust Manager
and the Issuer Trustee ("Transfer Form").
Execution of transfer
2 Every Transfer Form must be duly completed, duly stamped
(if applicable), executed by the transferor and the
transferee and delivered to the Issuer Trustee together
with the Acknowledgment relating to the Notes to be
transferred. The transferor is deemed to remain the owner
of the Notes for all purposes until the name of the
transferee is entered into the Register.
Restrictions on transfer
3 A Noteholder is only entitled to transfer any Notes if:
(a) the offer or invitation to the proposed transferee by
the Noteholder in relation to the Notes does not
require disclosure to investors in accordance with
Part 6D.2 of the Corporations Act; and
(b) the transfer would not otherwise breach any
restriction on transfer of the Notes contained in the
Master Trust Deed or this deed.
Issuer Trustee may refuse to register
4 The Issuer Trustee may refuse to register any Transfer
Form:
(a) if it is not duly completed, executed and stamped (if
necessary);
(b) if it contravenes or fails to comply with the terms
of this deed; or
(c) if the transfer would result in a contravention of or
failure to observe the provisions of a law of a state
or territory of the Commonwealth of Australia, or of
the Commonwealth of Australia, or any other relevant
laws.
The Issuer Trustee is not bound to give any reason for
refusing to register any Transfer Form and its decision is
final, conclusive and binding. If the Issuer Trustee
refuses to register a Transfer Form, it must, as soon as
practicable following that refusal, send to the Noteholder
and to the parties seeking to take the transfer of the
Notes notice of that refusal. The Issuer Trustee has no
obligation to enquire whether a transfer of Notes complies
with the restrictions in this deed.
Registration of transferee
5 Subject to the terms of this schedule, the Issuer Trustee
must upon receipt of a Transfer Form register the
transferee in the
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Register. No fee is to be charged for the registration of
any Transfer Form.
No transfer if Register closed
6 The Issuer Trustee may refuse to register any Transfer
Form for such period as the Register is closed for any
purpose.
Rights and obligations of transferee
7 Notes are negotiable. A transferee of Notes pursuant to
this deed has the following rights and obligations from
the time of registration:
(a) all those rights which the transferor previously had;
and
(b) all those obligations of a Noteholder as provided by
this deed as if the transferee was originally a party
to it.
When transfer effective
8 Subject to refusal by the Issuer Trustee to register a
transfer of Notes under this schedule, and subject to
condition 9, a Transfer Form is deemed for the purposes of
this deed to take effect and be registered from the
beginning of the Business Day on which the Transfer Form
was received by the Issuer Trustee, except that if a
Transfer Form is received by the Issuer Trustee after [ ]
in Sydney, the Transfer Form is deemed not to be effective
until the next Business Day (when the Register is open)
following its receipt by the Issuer Trustee.
Transfer Form received when Register closed
9 Where a Transfer Form is received by the Issuer Trustee
during any period when the Register is closed under this
deed, or on any day which is not a Business Day, the
Transfer Form is deemed to be effective and registered
(subject to refusal by the Issuer Trustee to register a
transfer) from the beginning of the first Business Day on
which the Register is re-opened.
Issue of Acknowledgment
10 Whenever, in respect of a transfer, the Issuer Trustee is
required under this deed to register a person as a
Noteholder, the Issuer Trustee must issue by mail to the
transferee (at the address stated on the Transfer Form),
or arrange for the relevant Noteholder to collect from the
Issuer Trustee, within 10 Business Days of such
registration, an Acknowledgment to the transferee in
respect of the relevant Notes and, where some, but not
all, Notes held by a Noteholder have been transferred,
issue a new Acknowledgment (within 10 Business Days of the
registration) to the transferor as confirmation of the
balance of the Notes registered in the name of the
transferor.
Form of Acknowledgment
11 Acknowledgments may be engraved, lithographed or printed
and must be signed, either manually, mechanically,
electronically, by facsimile or by other means agreed
between
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the Global Trust Manager and the Issuer Trustee, by an
Authorised Person or other delegate of the Issuer Trustee.
Payments to transferee
12 Subject to this deed, upon entry of a transferee in the
Register, the transferee is ipso facto entitled to receive
any payments then due or which become due to the
Noteholder and the Issuer Trustee is discharged for any
such payment made to the transferee and, without limiting
the foregoing, whether or not the entitlement to payment
wholly or partly arose or accrued prior to the transfer,
except that where a transfer is received after the closure
of the Register as referred to in this deed for the
purpose of determining entitlements to interest or
principal, but prior to the date upon which that interest
or principal is due to be paid in respect of the relevant
Notes, then that interest and principal must be paid to
the transferor and not the transferee.
Marked transfers
13 The Issuer Trustee must, unless the parties otherwise
agree, provide marking services in the manner set out in
this schedule at the Issuer Trustee's offices or the
offices of a third party appointed pursuant to this deed
in Sydney. If the Issuer Trustee or a third party is
requested by a Noteholder to mark a Transfer Form, the
Issuer Trustee or the third party must so mark the
Transfer Form. Until a period of 90 days (or such other
period as determined by the Global Trust Manager and the
Issuer Trustee) has elapsed from the date any Transfer
Form is so marked, the Issuer Trustee or any third party
must not register any Transfer Form in respect of such
Notes except that marked Transfer Form.
Reliance on documents
14 The Issuer Trustee is entitled to accept and assume the
authenticity and genuineness of any Transfer Form or any
other document unless the Issuer Trustee has reasonable
grounds to believe that it has not been duly executed. The
Issuer Trustee is not bound to enquire into the
authenticity or genuineness of any Transfer Form or other
document, nor incurs any liability for registering any
Transfer Form which is subsequently discovered to be a
forgery or otherwise defective, unless the Issuer Trustee
had actual notice of such forgery or defect at the time of
registration of such Transfer Form.
Specimen signatures
15 The Issuer Trustee may (but need not) require each
Noteholder to submit specimen signatures (and, in the case
of a corporation, may require those signatures to be
authenticated by a secretary or director of such
Noteholder) of persons authorised to execute Transfer
Forms on behalf of such Noteholder and is entitled to
assume (until notified to the contrary) that such
authority has not been revoked.
Persons entitled on transmission
16 If a Noteholder dies, the Issuer Trustee and the Global
Trust Manager will recognise only the survivor or
survivors (where
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the deceased was a joint holder) or the administrators (in
all other cases) as having any title to the Notes
registered in the name of the deceased.
Registration on transmission
17 A person who becomes entitled to a Note (and gives
evidence of that entitlement to the Global Trust Manager
in a form satisfactory to the Global Trust Manager and the
Issuer Trustee) because of the death, insolvency,
bankruptcy, insanity or other disability of a Noteholder
is entitled to be registered as the Noteholder or to
nominate some other person to be registered as the
Noteholder.
Notice of election
18 To effect a registration under condition 17, the person
must give a written notice to the Global Trust Manager and
the Issuer Trustee requesting the registration. If the
Notes are to be registered in the name of a nominee of the
person, the person must also execute a transfer of the
Notes to the nominee. All the provisions of this deed
relating to the registration of transfers apply to such a
notice or transfer as if it were a transfer executed by a
Noteholder.
Rights of transmittee prior to registration
19 A person who becomes entitled to a Note because of the
death, insolvency, bankruptcy, insanity or other
disability of a Noteholder is entitled to receive and may
give a discharge for all money payable in respect of the
Notes.
64
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Schedule 3 Stepdown Percentage
--------------------------------------------------------------------------------
The Stepdown Percentage on a Determination Date is determined as follows:
[insert Stepdown Percentage calculations and conditions]
65
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Execution page
--------------------------------------------------------------------------------
SIGNED SEALED AND DELIVERED )
by [........................] )
as attorney for [NAME OF ISSUER )
TRUSTEE] under power of attorney )
dated [.....................] )
)
in the presence of: )
)
.................................. )
Signature of witness )
)
.................................. )
Name of witness (block letters) )
)
.................................. ) .........................................
Address of witness ) By executing this deed the attorney
) states that the attorney has received no
.................................. ) notice of revocation of the power of
Occupation of witness ) attorney
SIGNED by [................] )
on behalf of and SEALED AND )
DELIVERED by NATIONAL )
GLOBAL MBS MANAGER PTY LTD )
in the presence of: )
)
)
.................................. )
Signature of witness )
)
.................................. )
Name of witness (block letters) )
)
.................................. ) .........................................
Address of witness ) By executing this deed the signatory
) states that the signatory has received
.................................. ) no notice of revocation of the authority
Occupation of witness ) under which this deed is executed
66
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SIGNED SEALED AND DELIVERED )
by [.......................] )
as attorney for NATIONAL )
AUSTRALIA BANK LIMITED under )
power of attorney dated )
)
in the presence of: )
)
.................................. )
Signature of witness )
)
.................................. )
Name of witness (block letters) )
)
.................................. ) .........................................
Address of witness ) By executing this deed the attorney
) states that the attorney has received no
.................................. ) notice of revocation of the power of
Occupation of witness ) attorney
SIGNED SEALED AND DELIVERED )
by [.......................] )
as attorney for [NAME OF SECURITY )
TRUSTEE] under power of attorney )
dated [ ] )
in the presence of: )
)
.................................. )
Signature of witness )
)
.................................. )
Name of witness (block letters) )
)
.................................. ) .........................................
Address of witness ) By executing this deed the attorney
) states that the attorney has received no
.................................. ) notice of revocation of the power of
Occupation of witness ) attorney
67
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SIGNED SEALED AND DELIVERED )
by [.......................] )
as attorney for NATIONAL )
AUSTRALIA BANK LIMITED under )
power of attorney dated )
)
in the presence of: )
)
.................................. )
Signature of witness )
)
.................................. )
Name of witness (block letters) )
)
.................................. ) .........................................
Address of witness ) By executing this deed the attorney
) states that the attorney has received no
.................................. ) notice of revocation of the power of
Occupation of witness ) attorney
------------------------------------------------
Dated
National RMBS Trust 200[ ] -
[ ] Supplemental Deed
[Name of Issuer Trustee]
("Issuer Trustee")
National Global MBS Manager Pty
Ltd
("Global Trust Manager")
National Australia Bank Limited
("Seller")
[Name of Security Trustee]
("Security Trustee")
National Australia Bank Limited,
("Servicer")
Xxxxxxxxx Xxxxxxx Xxxxxx
Solicitors
Level 60
Governor Xxxxxxx Tower
0 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Telephone (00 0) 0000 0000
Fax (00 0) 0000 0000
DX 113 Sydney
Ref: AAV/SRF
1
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Contents National RMBS Trust 200[ ]-[ ] Supplemental Deed
--------------------------------------------------------------------------------
PART 1 - INTERPRETATION 2
1 Interpretation 2
Definitions 2
Transaction Document 12
Limited to Trust 12
Definitions and consistency 12
Master Security Trust Deed 13
Register 13
Transfer of Notes 13
Reporting Statement 13
Definitions Schedule 14
Support Facilities 14
Master Trust Deed 14
PART 2 - THE TRUST AND ITS ASSETS 16
2 Trust 16
Name of Trust 16
Determination of final Payment Date 16
Realisation of Assets of the Trust 16
Conditions of Sale during 180 days 16
Right of refusal 17
Sale at lower price 17
Conditions of sale after 180 days 17
Further conditions of sale after 180 days 18
Procedures pending winding-up 18
Costs on winding-up of the Trust 19
Calculation of Final Distributions 19
Final Distributions 19
3 Entitlement of Beneficiaries 19
Issue of Units 19
Residual Capital Unit 20
Residual Income Unit 20
Unit Register 21
Transfer of Units 21
Limit on rights 22
4 Consumer Credit Code 22
Right of indemnity - Consumer Credit Legislation 22
Servicer 22
5 Repurchase Option 23
Clean-Up offer 23
Calculation 23
Acceptance 23
Consent of Noteholders 23
Reconveyance 23
Clean-Up Amount 24
Purchase of Defaulted Loans 25
2
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6 Mortgage Loans 25
Requirement to satisfy 25
PART 3 - THE NOTES 26
7 Purpose 26
Purpose 26
Criteria 26
General 26
8 Terms of issue of the Notes 26
Notes to be issued 26
Form, constituent documents and
denomination of the Notes 27
Issue of Redraw Notes 27
Initial Invested Amount of the Notes 28
Interest on the [Class/Classes of US Notes] 28
Interest on the A$ Notes 28
Overdue interest 28
Redemption 29
Issuer Trustee's Covenant to the Noteholders 29
Register 30
Transfer and Transmission of Notes 30
Taxation 30
Prescription 31
Rounding of Payments 31
Call Option 31
Redemption for Taxation or Other Reasons 31
9 Conditions Precedent 33
Conditions precedent to the issue of Notes 33
10 Representations and Warranties 34
Representations and Warranties 34
Trust representations and warranties 35
11 Payments 35
Manner 35
Cleared Funds 35
PART 4 - PRINCIPAL AND INCOME DETERMINATIONS AND PAYMENTS 37
12 Collections 37
Establishment of Collections Account with Servicer 37
Remittance to Collection Account 37
Servicer's Collections 37
13 Termination of the Swaps and
Application of Threshold Rate 37
Calculation of Threshold Rate 37
Termination of Basis Swap or Fixed Rate Swap 38
Servicer's Discretion 38
Issuer Trustee's power 38
Termination of Linked Deposit Accounts 39
Gross Up for Linked Deposit Accounts 39
3
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14 Cashflow Allocation Methodology 39
General 39
Collection Period 39
Finance Charge Collections 39
Calculation of Available Income 39
Principal Draw 39
[Liquidity Drawing 40
Calculation and application of
Total Available Income 40
Required Payments (Interest waterfall) 40
Excess Available Income 40
Principal Collections 41
Redraw Shortfall 41
Principal Distributions 41
Payments of Principal on the Notes and
to the Redraw Facility Provider 41
Principal Charge-Offs 41
Carryover Principal Charge-Offs 41
Increases 42
Early Repayment Costs 42
Application of proceeds following
an Event of Default 42
Excluded Amount 42
15 Determinations by Global Trust Manager 42
Determinations by Global Trust Manager 42
16 Global Trust Manager, Issuer Trustee and
Servicer Fees 43
Global Trust Manager's fee 43
Issuer Trustee's fee 43
Servicer's fee 44
Fee and GST 44
PART 5 - GENERAL 45
17 Notices 45
Notices 45
Deemed receipt 46
18 Counterparts 46
19 Damages 46
Claim for Damages 46
Allocation of Damages 47
20 Miscellaneous 47
Certificate 47
Exercise of rights 47
Waiver and variation 47
Supervening legislation 47
Approvals and consent 47
Remedies cumulative 48
Indemnities 48
Time of the essence 48
Receipts 48
4
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Acknowledgment 48
Disclosure of information 48
Rights cumulative 48
Signatures 49
21 Governing law 49
Governing Law 49
Submission to jurisdiction 49
Service 49
22 Limited Recourse - Issuer Trustee 49
23 Seller Trust 49
Constitution of Seller Trust 49
Declaration of Trust 50
Entitlement 50
Dealing with assets 50
Treatment of Shared Collateral 50
Proceeds 51
Claw-Back 52
Duties 52
Indemnity 52
Termination 52
Transfer 52
Other liabilities 53
Shared Securities 53
24 Seller Provisions 53
Set-Off 53
Seller Downgrade 53
Reduction or increase of Seller Deposit 54
Interest on Seller Deposit 55
Seller Upgrade 55
Termination of Trust or
Amendments to Mortgage Loans 55
Withdrawals from the account 55
Schedule 1 Register 57
Schedule 2 Transfer of Notes 60
Schedule 3 Stepdown Percentage 64
