Exhibit 4.1
CONFORMED COPY
WESTPAC SECURITIES ADMINISTRATION LIMITED
(the Trustee)
and
THE MORTGAGE COMPANY PTY LIMITED
(the Trust Manager)
MASTER TRUST DEED
WST TRUSTS
T A B L E O F C O N T E N T S
1. DEFINITIONS AND INTERPRETATION........................................ 1
1.1 Definitions.................................................. 1
1.2 Interpretation............................................... 21
1.3 Binding on Noteholders....................................... 22
2. TRUSTEE OF WST TRUSTS................................................. 22
2.1 Appointment of Trustee....................................... 22
2.2 Trustee to act in interests of Beneficiary and Noteholders
of a Trust................................................... 22
2.3 Separate and distinct Trusts................................. 22
2.4 Termination of deed.......................................... 22
3. THE TRUSTS............................................................ 22
3.1 Beneficial Interest in the Trusts............................ 22
3.2 Creation of Trusts........................................... 23
3.3 Name of the Trusts........................................... 23
3.4 Duration of a Trust.......................................... 23
3.5 Termination; winding up...................................... 23
3.6 Costs of winding up of a Trust............................... 25
4. INVESTMENT OF THE TRUSTS GENERALLY.................................... 25
4.1 Authorised Investments only.................................. 25
4.2 Trust Manager selects investments............................ 25
4.3 Investment proposals......................................... 26
4.4 Disposal or realisation of Authorised Investments............ 26
4.5 Temporary investment of cash and limitation on maturity of
Authorised Investments....................................... 27
4.6 Support Facilities........................................... 27
4.7 Authorised Trustee Investments............................... 28
4.8 Limitation of Trustee's personal liability................... 28
4.9 Moneys payable to Trustee.................................... 29
4.10 Segregation of Assets of a Trust............................. 29
4.11 Assets of Trusts............................................. 29
4.12 Liabilities of a Trust....................................... 29
5. GENERAL............................................................... 30
5.1 Power to acquire Assets...................................... 30
5.2 Borrowings - general......................................... 30
5.3 Borrowings - Support Facilities etc.......................... 30
6. ORIGINATION........................................................... 31
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7. ACQUISITION OR FUNDING BY WAREHOUSE TRUST FROM ANOTHER TRUST.......... 31
7.1 Direction by Trust Manager................................... 31
7.2 Required information......................................... 31
7.3 Conditions to acceptance..................................... 32
7.4 Effect of acceptance......................................... 32
7.5 Implementation............................................... 32
7.6 General direction............................................ 32
7.7 Transfers between Trusts..................................... 32
7.8 Acknowledgement by Approved Seller........................... 34
8. ACQUISITION FROM APPROVED SELLER...................................... 34
8.1 Note Issue Direction......................................... 34
8.2 Accession of Approved Sellers................................ 34
8.3 Sale Notices................................................. 34
8.4 Constitution and Entitlement of the Trust Back............... 35
8.5 Conditions Precedent to Purchase............................. 38
8.6 Representations and warranties of Approved Seller............ 39
8.7 Undertakings................................................. 42
8.8 Priority..................................................... 42
8.9 Title Perfection Event; Termination; Repurchase............ 44
8.10 Subsequent adjustment........................................ 46
8.11 Substitution................................................. 47
8.12 Indemnification.............................................. 48
8.13 Power of Attorney............................................ 48
9. ACQUISITION FROM WAREHOUSE TRUST BY ANOTHER TRUST..................... 49
9.1 Direction.................................................... 49
9.2 Implementation of acquisition................................ 49
9.3 Survival of rights and remedies.............................. 49
9.4 Acknowledgement by Approved Seller........................... 49
10. NOTES................................................................. 50
10.1 Acknowledgement of indebtedness.............................. 50
10.2 Legal nature of Notes........................................ 50
10.3 Terms of Notes............................................... 50
10.4 Interest and Principal Entitlement of Noteholders............ 50
10.5 Minimum denomination of Notes................................ 50
10.6 Notes not invalid if issued in breach........................ 50
10.7 Location of Notes............................................ 50
10.8 No discrimination between Noteholders........................ 51
11. SELLER NOTE........................................................... 51
11.1 Seller Note.................................................. 51
11.2 Form......................................................... 51
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12. LIMITS ON RIGHTS OF NOTEHOLDERS AND BENEFICIARY....................... 51
12.1 General Limits............................................... 51
12.2 Interests of Beneficiary assignable.......................... 52
12.3 Ranking of interest of Beneficiary........................... 52
12.4 Further limit on interest of Noteholders..................... 52
12.5 No liability of Noteholders or Beneficiary................... 52
13. PROCEDURE FOR ISSUE OF NOTES.......................................... 53
13.1 Note Issue Direction for a Trust............................. 53
13.2 Requirements for a Note Issue Direction...................... 53
13.3 Series Notice................................................ 55
13.4 Amendment.................................................... 56
13.5 Comply with Note Issue Direction............................. 56
13.6 Proviso on compliance with Note Issue Direction.............. 56
13.7 Dealer Agreement............................................. 56
13.8 Issue of Notes and transfer of benefit of Mortgages.......... 56
13.9 Action following Note Issue.................................. 57
13.10 No liability for insufficient moneys......................... 58
13.11 Further assurance............................................ 58
13.12 Further issues subject to Rating Agency approval............. 58
13.13 Issue of unrated Notes....................................... 58
13.14 No limit on Notes............................................ 58
13.15 Excluded issue, offer or invitation only..................... 58
14. TRANSFERS OF NOTES.................................................... 58
14.1 No restrictions on transfer of Notes......................... 58
14.2 Minimum transfer............................................. 59
14.3 Form of transfer............................................. 59
14.4 Execution of Note Transfer................................... 59
14.5 Stamping of Note Transfer.................................... 59
14.6 Delivery of Note Transfer to Trustee......................... 59
14.7 Registration of Transferee as Noteholder..................... 59
14.8 Trustee entitled to refuse to register Transfer.............. 59
14.9 Refusal to register absolute................................. 59
14.10 No fee for registration of a Note Transfer................... 60
14.11 Taking effect of Note Transfers.............................. 60
14.12 Rights and obligations of transferee......................... 60
14.13 Payments to transferee....................................... 60
14.14 Transmission of entitlements................................. 60
14.15 Marked Note Transfer......................................... 61
14.16 Reliance on documents........................................ 61
14.17 Specimen signatures.......................................... 61
14.18 Notes lodged with Austraclear................................ 61
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15. NOTE ACKNOWLEDGEMENT.................................................. 62
15.1 Issue of Note Acknowledgement................................ 62
15.2 Note Acknowledgement not certificate of title................ 62
15.3 Execution of Note Acknowledgement............................ 62
15.4 More than one Note Acknowledgement........................... 62
15.5 Worn out, defaced or lost Note Acknowledgement............... 62
15.6 Joint holdings............................................... 62
15.7 Delivery of Note Acknowledgement............................. 63
16. THE REGISTER.......................................................... 63
16.1 Details to be kept on Register............................... 63
16.2 Asset register............................................... 64
16.3 Place of keeping Register, copies and access................. 64
16.4 Details on Register conclusive............................... 64
16.5 Closing of Register.......................................... 64
16.6 Alteration of details on Register............................ 64
16.7 Rectification of Register.................................... 65
16.8 Correctness of Register...................................... 65
16.9 Trust Manager must provide information....................... 65
16.10 Third party registrar........................................ 65
17. MEETINGS OF NOTEHOLDERS............................................... 65
17.1 Application of this clause................................... 65
17.2 Convening of meetings by Trustee and Trust Manager........... 66
17.3 Notice of meetings........................................... 66
17.4 Chairman..................................................... 67
17.5 Quorum....................................................... 67
17.6 Adjournment.................................................. 67
17.7 Voting procedure............................................. 67
17.8 Right to attend and speak.................................... 68
17.9 Appointment of proxies....................................... 68
17.10 Corporate representatives.................................... 69
17.11 Rights of Representatives.................................... 69
17.12 Powers of a meeting of Noteholders........................... 69
17.13 Extraordinary Resolution binding on Noteholders.............. 70
17.14 Minutes and records.......................................... 70
17.15 Written resolutions.......................................... 70
17.16 Further procedures for meetings.............................. 71
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18. THE TRUST MANAGER..................................................... 71
18.1 Appointment of Trust Manager................................. 71
18.2 Complete powers of management................................ 71
18.3 Note issuance................................................ 72
18.4 Trust Manager to act in interests of Beneficiary and
Noteholders.................................................. 72
18.5 Trust Manager to assist Trustee.............................. 72
18.6 Trust Manager's power to delegate............................ 72
18.7 Trust Manager's power to appoint advisers.................... 73
18.8 Trust Manager's books available to Trustee................... 73
18.9 Trust Manager will account to Trustee for moneys received.... 73
18.10 Trust Manager to report Pool Data on Reuters................. 73
18.11 Trust Manager to prepare notices etc......................... 74
18.12 Prior approval of circulars.................................. 74
18.13 Taxes........................................................ 74
18.14 Acquisition or disposal of Assets............................ 74
18.15 Monitor Support Facilities................................... 74
18.16 Make calculations, co-ordinate and provide reports........... 74
18.17 Trust Manager cannot bind Trustee unless authorised.......... 75
18.18 Trust Manager must perform obligations under other
Transaction Documents........................................ 75
18.19 Trust Manager to provide personnel and systems............... 75
18.20 Additional covenants by Trust Manager........................ 75
19. TRUST MANAGER'S FEE.................................................. 76
20. RETIREMENT, REMOVAL AND REPLACEMENT OF TRUST MANAGER.................. 76
20.1 Retirement on Trust Manager's Default........................ 76
20.2 Trustee may remove recalcitrant Trust Manager................ 77
20.3 Trustee appoints replacement Trust Manager................... 77
20.4 Voluntary Retirement......................................... 77
20.5 No resignation by Trust Manager unless successor appointed... 77
20.6 Trustee to act as Trust Manager if no successor appointed.... 78
20.7 Release of outgoing Trust Manager............................ 78
20.8 New Trust Manager to execute deed............................ 78
20.9 Settlement and discharge..................................... 78
20.10 Delivery of books, documents, etc............................ 78
20.11 Notice to Noteholders of new Trust Manager................... 79
20.12 Waiver of Trust Manager's Defaults........................... 79
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21. TRUSTEE'S POWERS...................................................... 79
21.1 General power................................................ 79
21.2 Specific powers.............................................. 79
21.3 Powers to be exercised with others........................... 81
21.4 Delegation to Related Bodies Corporate....................... 81
21.5 Trustee's power to appoint attorneys and agents.............. 82
21.6 Generally unlimited discretion............................... 82
22. TRUSTEE'S COVENANTS................................................... 82
22.1 General...................................................... 82
22.2 To act continuously as Trustee............................... 82
22.3 To act honestly, diligently and prudently.................... 82
22.4 No dispositions of Assets except in accordance with Trust
Deed......................................................... 83
22.5 Indemnity re acts of Trustee's delegates..................... 83
22.6 Forward notices etc to Trust Manager......................... 83
22.7 Trustee will implement Trust Manager's directions............ 83
22.8 Custodian.................................................... 83
22.9 Bank accounts................................................ 84
22.10 Perform Transaction Documents................................ 84
23. TRUSTEE'S FEES AND EXPENSES........................................... 84
23.1 Trustee's Fee................................................ 84
23.2 Reimbursement of expenses.................................... 84
23.3 Segregation of Trust Expenses................................ 84
24. REMOVAL, RETIREMENT AND REPLACEMENT OF TRUSTEE........................ 84
24.1 Retirement for Trustee's Default............................. 84
24.2 Trust Manager may remove recalcitrant Trustee................ 85
24.3 Trust Manager appoints replacement........................... 85
24.4 Voluntary Retirement......................................... 85
24.5 No resignation by Trustee unless successor appointed......... 85
24.6 Trust Manager to act as Trustee if no successor appointed.... 86
24.7 Trusts to be vested in new Trustee........................... 86
24.8 Release of outgoing Trustee.................................. 86
24.9 New Trustee to execute deed.................................. 86
24.10 Trust Manager and outgoing Trustee to settle amounts
payable...................................................... 87
24.11 Outgoing Trustee to retain lien.............................. 87
24.12 Delivery of books, documents, etc............................ 87
24.13 Notice to Noteholders of New Trustee......................... 87
25. APPOINTMENT OF SERVICER............................................... 87
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26. LEAD MANAGER.......................................................... 87
26.1 Appointment of Lead Manager.................................. 87
26.2 Fees......................................................... 88
27. BANK ACCOUNTS......................................................... 88
27.1 Opening of bank accounts..................................... 88
27.2 Location of bank accounts.................................... 88
27.3 Name of bank accounts........................................ 89
27.4 Purpose of bank accounts..................................... 89
27.5 Authorised signatories....................................... 89
27.6 Trust Manager not entitled to have access.................... 89
27.7 Bank statements and account information...................... 89
27.8 Deposits..................................................... 89
27.9 Withdrawals.................................................. 89
27.10 All transactions through central accounts.................... 90
28. AUDITOR............................................................... 90
28.1 Auditor must be registered................................... 90
28.2 Appointment of Auditor....................................... 90
28.3 Removal and retirement of Auditor............................ 90
28.4 Appointment of replacement Auditor........................... 90
28.5 Auditor may have other offices............................... 91
28.6 Access to working papers..................................... 91
28.7 Auditor's remuneration and costs............................. 91
28.8 Access to information........................................ 91
29. ACCOUNTS AND AUDIT.................................................... 91
29.1 Keeping Accounts............................................. 91
29.2 Location and inspection of books............................. 91
29.3 Accounts to be kept in accordance with Approved Accounting
Standards.................................................... 91
29.4 Preparation of annual Accounts............................... 91
29.5 Annual audited Accounts...................................... 92
29.6 Inspection and copies of audited Accounts.................... 92
29.7 Tax returns.................................................. 92
29.8 Audit........................................................ 92
29.9 No Responsibility for Servicer............................... 92
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30. PAYMENTS.............................................................. 92
30.1 Cashflow Allocation Methodology.............................. 92
30.2 Payments to Beneficiary...................................... 93
30.3 Subordination of Beneficiary's Entitlements.................. 93
30.4 Insufficient moneys.......................................... 93
30.5 Income or capital............................................ 93
30.6 Income of Trust.............................................. 94
31. INDEMNITY............................................................. 94
32. REPRESENTATIONS AND WARRANTIES........................................ 95
32.1 General representations and warranties....................... 95
32.2 Trustee entitled to assume accuracy of representations
and warranties............................................... 95
33. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY
GENERALLY............................................................. 96
33.1 Reliance on certificates..................................... 96
33.2 Trustee and Trust Manager may assume signed documents to
be genuine................................................... 96
33.3 Trustee's reliance on Trust Manager, Approved Seller or
Servicer..................................................... 97
33.4 Trust Manager's reliance on Trustee, Approved Seller or
Servicer..................................................... 97
33.5 Compliance with laws......................................... 98
33.6 Taxes........................................................ 98
33.7 Reliance on experts.......................................... 98
33.8 Oversights of others......................................... 98
33.9 Powers, authorities and discretions.......................... 98
33.10 Impossibility or impracticability............................ 98
33.11 Duties and charges........................................... 99
33.12 Legal and other proceedings.................................. 99
33.13 No liability except for negligence etc....................... 100
33.14 Further limitations on Trustee's liability................... 100
33.15 Further limitations on Trust Manager's liability............. 100
33.16 Liability of Trustee limited to its right of indemnity....... 101
33.17 Trustee's right of indemnity - general....................... 102
33.18 Trustee's right of indemnity - Consumer Credit Legislation... 103
33.19 Extent of liability of Trust Manager......................... 104
33.20 Right of indemnity........................................... 104
33.21 Conflicts.................................................... 104
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33.22 Trustee not obliged to investigate the Trust Manager etc..... 105
33.23 Independent investigation of credit.......................... 105
33.24 Information.................................................. 105
33.25 Entering into Transaction Documents.......................... 105
33.26 Reliance by Trustee.......................................... 106
33.27 Investigation by Trustee..................................... 106
34. NOTICES............................................................... 106
34.1 Notices Generally............................................ 106
34.2 Notices to Noteholders....................................... 107
34.3 Notices to Designated Rating Agencies........................ 107
35. PAYMENTS GENERALLY.................................................... 107
35.1 Payments to Noteholders...................................... 107
35.2 Payment Methods.............................................. 107
35.3 Payment to be made on Business Day........................... 108
35.4 Payment good discharge....................................... 108
35.5 Trust Manager to arrange payments............................ 108
35.6 Valid receipts............................................... 108
35.7 Taxation..................................................... 108
36. AMENDMENT............................................................. 109
36.1 Amendment without consent.................................... 109
36.2 Amendment with consent....................................... 109
36.3 Copy of amendments to Noteholders............................ 109
36.4 Copy of amendments in advance to Designated Rating
Agencies..................................................... 110
37. CONFIDENTIALITY....................................................... 110
38. MISCELLANEOUS......................................................... 112
38.1 Data Base to be retained as confidential..................... 112
38.2 Certificates by Trust Manager................................ 112
38.3 Waivers, remedies cumulative................................. 112
38.4 Retention of documents....................................... 112
38.5 Governing law................................................ 113
38.6 Severability of provisions................................... 113
38.7 Counterparts................................................. 113
38.8 Inspection of this deed...................................... 113
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MASTER TRUST DEED
MASTER TRUST DEED dated 14 February 1997 between:
1. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472) of ▇▇▇▇▇ ▇,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (the Trustee); and
2. THE MORTGAGE COMPANY PTY LIMITED (ACN 070 968 302) of ▇▇▇▇▇ ▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (the Trust Manager).
RECITALS
A. It is intended by this deed to provide for the establishment of separate
trusts, all being Trusts (collectively the WST Trusts) (or such other
name as the Trustee and the Trust Manager may from time to time agree).
B. The Trustee has agreed to act as the trustee and the Trust Manager as
the manager of the Trusts. The Mortgage Company Pty Limited has agreed
to act as the servicer of certain Trusts.
C. The Trustee may enter into Support Facilities and a Security Trust Deed
in connection with the issue of Notes by the Trustee as the trustee of a
Trust.
D. Notes issued by the Trustee will not be deposit or other liabilities of
Westpac or its Associates, nor do Westpac or its Associates stand by the
capital value and/or performance of the Notes, or any Assets of any
Trust, except as expressly provided in the Transaction Documents for
that Trust.
IT IS AGREED as follows.
PART A - DEFINITIONS AND INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply unless the context requires
otherwise.
Accounts means accounts as defined in section 9 of the Corporations
Law.
Adverse Effect means an event which will materially and adversely
affect the amount of any payment to be made to any Noteholder, or
will materially and adversely affect the timing of such payment.
Application for Notes means an application for Notes in the form of
schedule 1 or in such other form as may from time to time be agreed
between the Trustee and the Trust Manager.
Approved Accounting Standards means:
(a) the accounting standards from time to time approved under the
Corporations Law;
(b) the requirements of the Corporations Law in relation to the
preparation and content of accounts; and
Page 2
(c) generally accepted accounting principles and practices in
Australia consistently applied, except where inconsistent
with the standards or requirements referred to in paragraphs
(a) or (b).
Approved Bank means:
(a) a Bank which has a short term rating of at least A-1+ from
S&P and P-1 from ▇▇▇▇▇'▇; or
(b) in relation to a Trust, any bank or financial institution
which is specified to be an Approved Bank in the relevant
Series Notice,
but (in relation to a Rated Trust for which S&P is a Designated
Rating Agency) means Westpac Banking Corporation for so long as it
has a short term rating of A-1 or better from S&P.
Approved Seller means:
(a) other than in clauses 8.1, 8.2, 8.3, 8.5(b), 8.6, 8.7, 8.11,
8.12, 11, 33 and 37, the Trustee as trustee of any Warehouse
Trust; or
(b) other than in clauses 8.2, 8.5(b), 8.6, 8.7, 8.11, 8.12, 11,
33 and 37, the Trustee as trustee of any other Trust that is
not a Warehouse Trust; or
(c) any person which the Trust Manager notifies the Trustee is an
Approved Seller for the purposes of this deed and who has
executed a Seller Accession Certificate,
and where used in the context of a Trust means the Approved Seller in
relation to that Trust.
Assets in relation to a Trust means the assets being property of that
Trust from time to time including the following to the extent to
which they relate to the Trust:
(a) any Loans, Mortgages or other Receivables and any other
Receivable Securities and Related Securities and other rights
held by the Trustee in its capacity as the Trustee of that
Trust on and subject to the terms of the Transaction
Documents;
(b) cash, debts or other Authorised Investments;
(c) the interests of the Trustee in any Support Facility; and
(d) income accrued from Receivables and Authorised Investments.
Associate in relation to an entity means:
(a) a Related Corporation of that entity;
(b) an entity, or the trustee or manager of a trust, which has a
Controlling Interest in that entity, or a Related Corporation
of that entity;
(c) a Related Corporation of an entity included in paragraph (b)
or (e);
(d) a director of that entity or an entity included in paragraph
(a), (b) or (c) or of the manager or of the trustee of any
trust included in paragraph (a), (b) or (c) or a spouse,
child, parent or sibling of that director;
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(e) a corporation, or the trustee or manager of a trust, in which
one or more entity or person mentioned in paragraph (a), (b),
(c), (d), (e), (f) or (g) alone or together has a Controlling
Interest;
(f) the trustee of a discretionary trust of which an entity or
person included in paragraph (a), (b), (c), (d), (e) or (g)
is a beneficiary (whether or not through one or more other
discretionary trusts); or
(g) an entity of which a director of that entity or a Related
Corporation of that entity is also a director.
For the purposes of this definition:
(i) where a person is a beneficiary of a discretionary trust,
that person shall be taken to own, and control, all the
assets of that trust;
(ii) director has the meaning given in the Corporations Law; and
(iii) a person has a Controlling Interest in a corporation or trust
if:
(A) the corporation or its directors, or the trustee or
manager of the trust or its directors, are
accustomed, or under an obligation, whether formal or
informal, to act in accordance with the directions,
instructions or wishes of that person or of that
person in concert with others; or
(B) the person has a relevant interest (as defined in the
Corporations Law) in aggregate in more than 20% of
the issued or voting shares, units or other interests
in the corporation or trust (in number, voting power
or value), or would have that relevant interest if
any rights were exercised to subscribe for, or
acquire or convert into, shares, units or other
interests which are issued or unissued. The
definition of relevant interest applies as if units
or other interests were shares.
Auditor in relation to a Trust means the auditor of that Trust
appointed from time to time under clause 28.
Austraclear means Austraclear Limited.
Austraclear Regulations means the regulations published by
Austraclear.
Austraclear System means the System as defined in the Austraclear
Regulations.
Australian Jurisdiction means a State or Territory of the
Commonwealth and the Commonwealth of Australia.
Authorisation includes:
(a) any consent, authorisation, registration, filing, lodgement,
agreement, notarisation, certificate, permission, licence,
approval, authority or exemption from, by or with a
Governmental Agency; or
(b) in relation to anything which will be fully or partly
prohibited or restricted by law if a Governmental Agency
intervenes or acts in any way within a specified period after
lodgement, filing, registration or notification, the expiry
of that period without intervention or action.
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Authorised Investments in respect of a Trust means, unless otherwise
specified in the relevant Series Notice, any investments which at
their date of acquisition are:
(a) Loans secured by Mortgages, those Mortgages and any other
Related Securities and Receivable Rights;
(b) other Receivables, Receivable Securities and Receivable
Rights approved by the Trust Manager;
(c) cash;
(d) bonds, debentures, stock or treasury bills of the
Commonwealth of Australia or the Government of any State or
Territory of the Commonwealth;
(e) debentures or stock of any public statutory body constituted
under the law of the Commonwealth of Australia or of any
State of the Commonwealth where the repayment of the
principal secured and the interest payable thereon is
guaranteed by the Commonwealth or any State or Territory of
the Commonwealth;
(f) notes of other securities of the Commonwealth of Australia or
the Government of any State or Territory of the Commonwealth;
(g) (i) deposits with, or the acquisition of certificates of
deposit (whether negotiable, convertible or
otherwise), issued by, a Bank which carries on
business in Victoria and New South Wales;
(ii) bills of exchange which at the time of acquisition
have a remaining term to maturity of not more than
200 days, accepted or endorsed by a Bank which
carries on business in Victoria and New South Wales,
which, in each case, has either:
(A) the highest short-term rating available to be given
by the Rating Agencies; or
(B) if such investment has a maturity of 30 days or less
and does not exceed 20% of the total Invested Amount
of all relevant Notes on the date of the investment a
short-term rating of A-1/P-1 by the Rating Agencies;
(h) any other assets of a class of assets that are both:
(i) prescribed for the purposes of sub-paragraph (iv) of
the definition of a pool of mortgages in section
84FA(1) of the Stamp Duties Act, 1920 of New South
Wales, or are otherwise included within that
definition of pool of mortgages; and
(ii) declared by order of the Governor in Council of
Victoria and published in the Victorian Government
Gazette to be assets for purposes of Subdivision 17A
of the Stamps Act, 1958 of Victoria or are otherwise
included within sub-paragraph (b)(ii) of the
definition of pool of mortgages in section 137NA of
that Act.
(In paragraphs (b) - (g) inclusive of this definition, expressions
shall be construed and, if necessary read down, so that the Notes in
relation to any Trust constitute mortgage-backed securities for the
purposes of both the Stamp Duties Act, 1920 of New South Wales and
the ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ of Victoria.)
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Authorised Signatory means:
(a) in relation to The Mortgage Company Pty Limited (in whatever
capacity) or Westpac Banking Corporation (in whatever
capacity), any person from time to time nominated as an
Authorised Officer by an authorised attorney of the Mortgage
Company Pty Limited or Westpac Banking Corporation (as the
case may be) by notice to the Trustee accompanied by:
(i) a certified copy of the power of attorney (if not
previously provided); and
(ii) a certified copy of the signatures of each person so
appointed;
(b) in relation to the Trustee, any duly appointed attorney of
the Trustee;
(c) except as provided in the relevant Series Notice or Security
Trust Deed, in relation to the Security Trustee any officer
or employee of the Security Trustee whose title includes the
word "Manager"; and
(d) in relation to any other person, any person from time to time
whose name, title or position and specimen signature are set
out in a certificate signed by two directors or one director
and one secretary of that person confirming that person's
appointment as an Authorised Signatory for the purposes of
this deed and/or any Transaction Document to which that
corporation is a party.
Authorised Trustee Investment means an investment in which a trustee
is for the time being authorised to invest trust funds under the laws
of an Australian Jurisdiction.
Bank means a corporation authorised under the Banking ▇▇▇ ▇▇▇▇ to
carry on general banking business in Australia or a corporation
formed or incorporated under an Act of the Parliament of an
Australian Jurisdiction to carry on the general business of banking.
Beneficiary means, in relation to a Trust, the person nominated in
the Notice of Creation of Trust for that Trust as the beneficiary of
that Trust (including, where relevant, the holder of any unit
representing an interest as beneficiary of the Trust).
Borrowing means, in relation to a Trust, any Financial Indebtedness
of the Trustee in its capacity as trustee of the Trust but does not
include any Financial Indebtedness of the Trustee in any other
capacity or in respect of any other Trust. Borrow has an equivalent
meaning.
Business Day means any day, other than a Saturday, Sunday or public
holiday, on which Banks are open for business in Sydney.
Carryover Charge Off in relation to Notes relating to a Trust has the
meaning, if any, given to that term in the relevant Series Notice for
that Trust.
Certificate of Title means, in relation to a Mortgaged Property, the
certificate of title (or, if one is not issued, the original
registration confirmation statement or similar document) (if any) to
that Mortgaged Property issued under any relevant legislation (and,
in the case of Land, issued under any Real Property Legislation).
Class in relation to Notes issued, or to be issued, in respect of a
Trust means Notes having as amongst themselves in all respects the
same rights or restrictions (and for this purpose a Seller Note is a
Class of Notes).
Closing Date means, in respect of a Trust, the date specified as the
Closing Date in the Series Notice or Sale Notice for that Trust.
Page 6
Collection Account means the account established and maintained under
clause 27 or, in relation to a Trust, any other account specified as
the Collection Account in the Series Notice for that Trust.
Collections in respect of a Trust means such amounts as may be
specified as Collections for the Trust in the relevant Series Notice.
Consumer Credit Legislation means any legislation relating to
consumer credit including:
(a) the Credit Act of any Australian Jurisdiction;
(b) the Consumer Credit Code (NSW) 1996; and
(c) any other equivalent legislation of any Australian
Jurisdiction.
Coupon in relation to a Note and a Coupon Payment Date means the
amount of interest (if any) accrued in respect of that Note and due
for payment on that Coupon Payment Date, determined in accordance
with the corresponding Series Notice.
Coupon Payment Date in relation to a Note means each date for the
payment of interest under the Note as specified in the corresponding
Series Notice.
Creditor in relation to a Trust means a creditor of the Trustee
(including the Security Trustee, the Noteholders, the Approved
Seller, the Trustee as trustee of another Trust, the Servicer, the
Trust Manager, the Support Facility Providers and the Lead Manager
(if any) in relation to the Trust) in its capacity as trustee of the
Trust.
Cut-Off Date means, in relation to a Portfolio of Receivables, the
date specified as the Cut-off Date for the Receivables relating to
that Portfolio of Receivables in the relevant Note Issue Direction or
Series Notice.
Data Base in relation to the Trustee, the Trust Manager and any
Servicer means all information, data and records collected, held or
stored in any way or in any medium (including, without limitation,
computer retention and storage) by or for the Trustee, the Trust
Manager and the Servicer respectively relating to and including any
Receivable, Receivable Security or Related Security which is given or
transferred to the Trustee under or as contemplated by this deed.
Dealer Agreement means, in relation to any Notes, any dealer
agreement, subscription agreement, underwriting agreement or other
distribution agreement (however called) under which dealers, managers
or other persons agree to subscribe for, underwrite or otherwise
arrange the distribution of those Notes.
Designated Rating in relation to a Support Facility provided to, or
the benefit of which is held by, the Trustee as trustee of a Rated
Trust, means a credit rating of the party providing the Support
Facility as specified or approved by each Designated Rating Agency
for that Trust.
Designated Rating Agency in relation to Notes issued or to be issued
by the Trustee of a Trust, means each Rating Agency which has been
requested by the Trust Manager to rate such Notes in relation to that
Trust.
Distributable Income has the meaning given in clause 30.6.
Eligible Receivable means a Receivable or Receivable Security (as the
case may be) which meets the Eligibility Criteria for that
Receivable.
Page 7
Eligibility Criteria in respect of a Receivable or a Receivable
Security and a Trust has the meaning given in the corresponding
Series Notice for that Trust.
Enforcement Expenses in relation to a Purchased Receivable or a
Purchased Receivable Security has the meaning given in the relevant
Series Notice.
Expenses in relation to a Trust means any costs, charges or expenses
incurred by the Trustee or the Trust Manager in the administration or
operation of the Trust under the Transaction Documents for that
Trust, including the following to the extent to which they relate to
that Trust:
(a) any such amounts payable or incurred by the Trustee or the
Trust Manager in the acquisition, maintenance, review,
administration or disposal of an Authorised Investment or
Asset;
(b) any such amounts payable under or incurred by the Trustee
or the Trust Manager under any Security Trust Deed;
(c) any fees and other amounts payable to the Trust Manager under
this deed (including Enforcement Expenses incurred in
connection with the enforcement of any Receivable Security);
(d) any fees and expenses payable to the Auditor or any other
auditor;
(e) any fees and expenses payable by the Trustee (including in
its personal capacity) to the Designated Rating Agency as
agreed between the Trustee and the Trust Manager from time to
time;
(f) the cost and expenses of registering caveats or transfers of
any Receivable or Receivable Security;
(g) any fees and expenses charged from time to time by
Austraclear to the Trustee's account in the exercise of the
Trustee's power under clause 21.2(k);
(h) any costs of postage and printing of all cheques, accounts,
statements, notices, Note Acknowledgements and other
documents required to be posted to a Beneficiary or
Noteholders of the Trust under this deed;
(i) any costs of any valuation of the Trust or of any Asset of
the Trust;
(j) any expenses incurred in connection with Trust Accounts of
the Trustee in relation to the Trust and bank fees (including
account keeping fees) and other bank or government charges
(including bank account debits, tax and charges in respect of
financial institutions duty) incurred in connection with the
keeping of, or the transaction of business through, the
internal accounts and bank accounts of the Trustee and their
management;
(k) any fees, charges and amounts which are paid or payable to
any person appointed or engaged by the Trustee or the Trust
Manager pursuant to this deed to the extent that the fees,
charges and amounts would be payable or reimbursable to the
Trustee or the Trust Manager under any other provision of
this definition or under any other provision of this deed if
the services performed by the person so appointed or engaged
had been carried out directly by the Trustee or the Trust
Manager and to the extent that those fees, charges and
amounts are reasonable in amount and properly incurred;
Page 8
(l) the amount of any indemnity from the Trust claimed by the
Trustee or the Trust Manager under clause 33.12;
(m) all legal costs and disbursements (calculated in the same
manner as under clause 33.12) incurred by the Trust Manager
and the Trustee in relation to:
(i) any subsequent consent, agreement, approval, waiver
or amendment under, of or to any Transaction
Document; or
(ii) any matter of concern to the Trust Manager or the
Trustee in relation to a Transaction Document or the
Trust (provided that those costs and disbursements
cannot be incurred unless the expenditure has first
been notified to the Trust Manager);
(n) any costs incurred by the Trust Manager or the Trustee in, or
in connection with, the retirement or removal (other than
removal on the grounds of their own default) of the Trustee
or the Trust Manager respectively under this deed and the
appointment of any person in substitution to the extent that
those costs are reasonable in amount and properly incurred;
(o) any other costs, charges, expenses, fees, liabilities, Taxes
(including stamp duty payable on cheques), imposts and other
outgoings properly incurred by the Trustee or the Trust
Manager in exercising their respective powers, duties and
obligations under this deed or any other Transaction Document
(other than the Notes);
(p) any legal costs and disbursements incurred by the Trustee in
connection with court proceedings brought against it under
this deed (except where the Trustee is found to have been in
breach of this deed or to have acted in breach of its
duties);
(q) any costs incurred by the Trustee in, or in connection with,
the retirement or removal of the Servicer and the appointment
of any substitute to the extent those costs are reasonable in
amount and properly incurred;
(r) any costs and expenses which the Trustee is obliged to
reimburse under clause 7.1 or 7.2 of the Servicing Agreement;
and
(s) any amount specified as an Expense in the Series Notice
for a Trust,
provided that general overhead costs and expenses of the Trustee and
the Trust Manager (including, without limitation, rents and any
amounts payable by the Trustee or the Trust Manager (as applicable)
to its employees in connection with their employment) incurred
directly or indirectly in connection with the business of the Trustee
or the Trust Manager (as applicable) or in the exercise of its
rights, powers and discretions or the performance of its duties and
obligations in relation to the Trust shall not constitute Expenses.
Expiry Time means, in relation to a Sale Notice, the time specified
as the expiry time in that Sale Notice.
Extraordinary Resolution in relation to the Noteholders of a Trust or
any Class means, subject to the provisions of any Security Trust Deed
in respect of the relevant Trust:
(a) a resolution passed at a meeting of the Noteholders of that
Trust or Class (as the case may be) duly convened and held in
accordance with the provisions contained in clause 17 by a
majority consisting of not less than 75% of the votes able to
be cast by Noteholders cast (by show of hands or poll, as the
case may be); or
Page 9
(b) a resolution in writing under clause 17.15 signed by all
the Noteholders of that Trust or Class.
Fair Market Value means:
(i) in relation to a Purchased Receivable and the related
Receivable Rights, the fair market value of that Purchased
Receivable and those Receivable Rights agreed between the
Trustee (acting on appropriate expert advice) and the
Approved Seller, or in the absence of such agreement as
determined by the Auditor; or
(ii) in relation to any other Receivable and the related
Receivable Rights, the fair market value of that Receivable
and those Receivable Rights determined by the Trust Manager
(acting on appropriate expert advice, including where
relevant the Auditor),
in all cases as reflecting the status of the Receivable as a
performing or non-performing Receivable (as determined by the
relevant Servicer) and any benefit in respect of that Receivable
which the intended purchaser will have under any relevant Support
Facility. The Trustee shall be entitled to assume that a purchase
price offered to it for a Purchased Receivable and the related
Receivable Rights which is equal to or exceeds the relevant Unpaid
Balance is equal to or exceeds the Fair Market Value of that Purchase
Receivable and the related Receivable Rights.
Financial Indebtedness means any indebtedness, present or future,
actual or contingent in respect of moneys borrowed or raised or any
financial accommodation whatever. It includes indebtedness under or
in respect of a negotiable or other financial instrument, guarantee,
interest, gold or currency exchange, hedge or arrangement of any
kind, redeemable share, share the subject of a guarantee, discounting
arrangement, finance or capital lease, hire purchase, deferred
purchase price (for more than 90 days) of an asset or service or an
obligation to deliver goods or other property or provide services
paid for in advance by a financier or in relation to another
financing transaction.
Financial Year in relation to each Trust means:
(a) each consecutive period of 12 months from 1 July in each
year until 30 June in the following year; or
(b) any other consecutive period of 12 months as may at any time
be substituted for the consecutive period referred to in
paragraph (a) of this definition by determination of the
Trust Manager with the approval of the Trustee,
and includes,
(c) any consecutive period greater or less than 12 months that
may arise as a result of the adoption of any substituted
period under paragraph (b) of this definition;
(d) the period commencing on the date of its creation under this
deed to the next succeeding 30 June, or, if a substituted
period is in force under this definition in respect of the
Trust at its commencement, then to the immediately succeeding
date of termination of that substituted period; and
(e) the period to the Termination Date of the Trust from the
immediately preceding 1 July or, if a substituted period is
in force under this definition at the Termination Date then
from the immediately preceding date of commencement of that
substituted period.
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Future Agreement means the agreement formed between an Approved
Seller and the Trustee if the Trustee accepts a Sale Notice given
under clause 8.
Government Agency means:
(a) any body politic or government in any jurisdiction, whether
federal, state, territorial or local;
(b) any minister, department, office, commission,
instrumentality, agency, board, authority or organisation of
any government or in which any government is interested;
(c) any corporation owned or controlled by any government.
Hedge Agreement means, in relation to a Trust, any futures contract,
option agreement, hedge, swap, cap, forward rate agreement or other
arrangement in relation to interest rates made by the Trustee
(whether alone or with the Trust Manager or any other person) with
respect to the Receivables in, or Notes issued in relation to, that
Trust in accordance with this deed, as specified in the relevant
Series Notice.
Information Memorandum means, in relation to the issue of any Notes,
any publicity documents publicly circulated to prospective investors
in relation to that issue entitled "Information Memorandum",
"Offering Circular" or a similar name, but does not include any term
sheet or general correspondence in relation to the placement of any
Notes.
Initial Invested Amount in relation to a Note has the meaning given
in the relevant Series Notice for that Note.
Insolvency Event in relation to the Trustee (in its personal capacity
and as trustee of a Trust), the Trust Manager, a Servicer, or a
Mortgage Insurer (each a relevant corporation) means the happening of
any of the following events:
(a) an administrator of the relevant corporation is appointed;
(b) except for the purpose of a solvent reconstruction or
amalgamation:
(i) an application or an order is made, proceedings are
commenced, a resolution is passed or proposed in a
notice of meeting or an application to a court or
other steps (other than frivolous or vexatious
applications, proceedings, notices and steps) are
taken for:
(A) the winding up, dissolution or administration
of the relevant corporation; or
(B) the relevant corporation entering into an
arrangement, compromise or composition with
or assignment for the benefit of its
creditors or a class of them; or
(ii) the relevant corporation ceases, suspends or
threatens to cease or suspend the conduct of all or
substantially all of its business or disposes of or
threatens to dispose of substantially all of its
assets; or
(c) the relevant corporation is, or under applicable legislation
is taken to be, unable to pay its debts (other than as the
result of a failure to pay a debt or claim the subject of a
good faith dispute) or stops or suspends or threatens to stop
or suspend payment of all or a class of its debts (except, in
the case of the Trustee where this occurs in relation to
another trust of which it is the trustee);
Page 11
(d) a receiver, receiver and manager or administrator is
appointed (by the relevant corporation or by any other
person) to all or substantially all of the assets and
undertaking of the relevant corporation or any part thereof
(except, in the case of the Trustee where this occurs in
relation to another trust of which it is the trustee); or
(e) anything analogous to an event referred to in paragraphs (a)
to (d) (inclusive) or having substantially similar effect,
occurs with respect to the relevant corporation.
Insurance Policy means:
(a) in relation to a Loan, any fire and/or risks insurance policy
or other general insurance policy in force in respect of that
Loan or the related Mortgaged Property; or
(b) in relation to any other Receivable, any insurance policy
taken out with respect to the assets from which that
Receivable is derived.
Insurance Proceeds means any payments received by the designated
beneficiary of an Insurance Policy.
Invested Amount in relation to a Note has the meaning given in the
relevant Series Notice for that Note.
Investment Direction means:
(a) a Note Issue Direction; or
(b) a Warehouse Trust Direction.
Land means:
(a) any estate or interest whether at law or in equity in
freehold or leasehold land situated in an Australian
Jurisdiction, including all improvements on that land; and
(b) any parcel and any lot, common property and land comprising a
parcel within the meaning of the Strata Titles Act, 1973 (New
South Wales) or the Community Land Development Act, 1989 (New
South Wales) or any equivalent legislation in any other
Australian Jurisdiction.
Lead Manager means, in relation to any issue of Notes, any person who
is appointed as lead manager, co-lead manager, arranger, co-arranger
or any similar participant in relation to that issue.
Liquidity Facility Agreement in relation to a Trust means any
agreement specified as a Liquidity Facility Agreement in the Series
Notice for that Trust.
Liquidity Facility Provider means in relation to a Liquidity Facility
Agreement the bank or financial institution which provides that
facility or if it is a syndicated facility the bank or financial
institution which is the agent under that facility.
Loan means a loan originated or acquired by the Trustee in accordance
with this deed.
Marked Note Transfer means a Note Transfer marked by the Trustee in
accordance with clause 14.15.
Page 12
Maturity Date in relation to a Note means the date specified in the
corresponding Series Notice to be the last or, where there is only
one specified, the Payment Date for the Note.
Moody's means ▇▇▇▇▇'▇ Investor Services Inc or ▇▇▇▇▇'▇ Investor
Services Pty Limited, and their respective successors and assigns.
Mortgage means a registered (or pending registration, registrable)
mortgage over Land, situated in any Australian Jurisdiction, which is
either:
(a) originated by the Trustee under this deed; or
(b) originally granted to the relevant Approved Seller,
and securing the repayment of the principal amount of a Loan and all
other moneys payable under the Loan.
Mortgaged Property means:
(a) in relation to a Mortgage, the Land the subject of that
Mortgage; and
(b) in relation to any other Receivable Security, the property
subject to that Receivable Security.
Mortgage Insurance Policy means a policy of insurance under which a
Mortgage Insurer insures the Trustee as trustee of a Trust against
loss under a Receivable which is an Asset of that Trust.
Mortgage Insurance Proceeds means any amounts received by the Trustee
(or a Servicer on its behalf) under any Mortgage Insurance Policy.
Mortgage Insurer means any mortgage insurer specified, in relation to
a Trust, as a Mortgage Insurer in the Series Notice for that Trust.
Mortgagor means the security provider under a Receivable Security.
Note means:
(a) a debt security issued by the Trustee as trustee of a Trust
in accordance with clause 10;
(b) a Seller Note; or
(c) any other security or instrument issued by the Trustee and
agreed by the Trustee and the Trust Manager to be a Note.
Note Acknowledgement means an acknowledgment of the registration of a
person as the holder of a Note in the form set out in schedule 2 or
in such other form as may from time to time be agreed between the
Trustee and the Trust Manager.
Noteholder means, in relation to a Trust at any given time:
(a) a person then appearing in the Register as the holder of a
Note with respect to that Trust;
(b) the holder of a Seller Note with respect to that Trust (if
not covered in paragraph (a)); or
Page 13
(c) in relation to a Warehouse Trust, each Warehouse Facility
Provider in relation to that Warehouse Trust except where the
relevant reference to Noteholder relates to the application
or subscription for, or the issue or holding of, Notes.
Note Issue Date in relation to a Trust and Notes means the date on
which the Notes are issued by the Trustee as trustee of that Trust
and, in the case of a proposed issue of Notes, means the date for
this referred to in the corresponding Note Issue Direction.
Note Issue Direction means a direction by the Trust Manager to the
Trustee substantially in the form of schedule 3 or in such other form
as may from time to time be agreed between the Trustee and the Trust
Manager.
Note Transfer means a transfer and acceptance of Notes materially in
the form of schedule 4 or in such other form as may from time to time
be agreed between the Trustee and the Trust Manager.
Notice of Creation of Trust means a notice substantially in the form
of schedule 5 or in such other form as may from time to time be
agreed between the Trustee and the Trust Manager.
Obligor means, in relation to a Receivable, the person who is obliged
to make payments with respect to that Receivable, whether as a
principal or secondary obligation (and in the case of a Loan means
the person who is the account debtor under that Loan), and includes
where the context requires, any other person obligated to make
payments with respect to that Receivable (including any guarantor).
Other Secured Liability means a loan, financial obligation or other
liability that is at any time secured by a Purchased Receivable
Security, other than a Purchased Receivable and any amounts payable
under any relevant Receivable Agreement or otherwise payable in
connection with a Purchased Receivable.
Payment Date means a Coupon Payment Date or a Principal Repayment
Date.
Portfolio of Receivables means the Receivables specified by the Trust
Manager in an Investment Direction as a class or type of Receivable
that has substantially the same terms and conditions.
Principal Entitlement in relation to a Note and a Principal Repayment
Date means the amount of principal in respect of the Note due to be
repaid on that Principal Repayment Date, determined in accordance
with the corresponding Series Notice.
Principal Repayment Date in relation to a Note means each date for
the repayment of part or all of the outstanding principal in relation
to the Note as specified in the corresponding Series Notice.
Privacy Act means the Privacy ▇▇▇ ▇▇▇▇ (Cth) or any equivalent law of
any Australian Jurisdiction.
Purchase Price means, in relation to Receivables and related
Receivable Rights offered for sale under a Sale Notice, the Purchase
Price specified in the relevant Sale Notice as adjusted (where
relevant) in accordance with that Sale Notice.
Purchased Receivable means a Receivable referred to in a Sale Notice
which is accepted by the Trustee unless the Trustee has ceased to
have an interest in that Receivable.
Purchased Receivable Security means a Receivable Security referred to
in a Sale Notice which is accepted by the Trustee, unless the Trustee
has ceased to have any interest in that Receivable Security.
Page 14
Rated Trust means a Trust in respect of which there is a Designated
Rating Agency.
Rating Agency means Moody's, S&P or any other recognised rating
agency designated from time to time in writing by the Trust Manager
to the Trustee.
Real Property Legislation means any law relating to the registration,
priority or effectiveness of any mortgage over land in any State or
Territory of Australia.
Receivable means a right or interest under or in relation to any
asset which generates revenue over time, including:
(a) a residential or commercial loan (including a Loan);
(b) an operating or finance lease (including a lease of real
property, plant and equipment and a hire purchase agreement);
(c) a trade receivable;
(d) an automobile receivable;
(e) a credit or charge card receivable; and
(f) any other receivable or other form of monetary obligation.
Receivable Agreement means in relation to a Receivable, any agreement
or arrangement entered into between:
(a) if the Receivable is originated by the Trustee under this
deed, the Trustee; or
(b) if the Receivable is acquired by the Trustee from an Approved
Seller under this deed, the Approved Seller,
and the Obligor under which the Obligor incurs obligations to the
Trustee or Approved Seller (as the case may be) with respect to the
Receivable, and in the case of an agreement entered into by an
Approved Seller in a form provided to the Trustee by the Approved
Seller before the Sale Notice with respect to that Receivable is
given.
Receivable Rights means, in relation to Receivables to be acquired by
the Trustee from an Approved Seller, all of the Approved Seller's or
the Trustee's (as the context requires) right, title, benefit and
interest (present and future) in, to, under or derived from:
(a) the Receivables and Receivable Securities specified in
the relevant Sale Notice; and
(b) such of the following as relate to those Receivables and
Receivable Securities:
(i) the Related Securities;
(ii) the Relevant Documents;
(iii) the Collections; and
(iv) all moneys, present, future, actual or contingent,
owing at any time by an Obligor (whether alone or
with another person) or any other person (other than
the Approved Seller) under or in connection with a
Related Security, including all principal, interest,
reimbursable costs and expenses and any other amounts
incurred by or payable to the Approved Seller,
irrespective
Page 15
of whether such amounts relate to advances made or
other financial accommodation provided by the
Approved Seller to any Obligor before or after the
Closing Date,
but does not include:
(c) any Other Secured Liability; and
(d) in relation to the Receivables and Receivable Securities
specified in a Sale Notice:
(i) any interest or finance charges accrued up to but
excluding the Closing Date (or any other date
specified for that purpose in the Sale Notice) which
are unpaid as at close of business on that date; and
(ii) any interest in Collections received or applied by
the Approved Seller before the Cut-Off Date (or any
other date specified for that purpose in the Sale
Notice),
if so specified in the Sale Notice.
Receivable Security means:
(a) in relation to a Loan, a Mortgage or any guarantee relating
to that Loan; or
(b) in relation to any other Receivable, any guarantee, indemnity
or Security Interest granted in respect of, or in connection
with, that Receivable.
Record Date means, with respect to a Payment Date for any Note, the
date specified in the Series Notice for the Trust to which that Note
relates.
Redraw Facility Agreement means in relation to a Trust any facility
specified as a Redraw Facility Agreement in the Series Notice for
that Trust.
Redraw Facility Provider means, in relation to a Trust, a person who
has entered into or agreed to make available a Redraw Facility
Agreement to the Trustee in relation to that Trust.
Register means, in relation to a Trust, the register of Noteholders
for that Trust maintained by or on behalf of the Trustee under clause
16.
Registered Company Auditor has the same meaning as in the
Corporations Law.
Related Corporation has the meaning given to related body corporate
in the Corporations Law.
Related Receivable means, in relation to a Receivable Security, the
Receivable secured by that Receivable Security.
Related Security in relation to a Receivable means:
(a) any Relevant Document for that Receivable;
(b) any Insurance Policy or Insurance Proceeds with respect to
the Receivable; and
(c) any Mortgage Insurance Policy or Mortgage Insurance Proceeds
with respect to the Receivable; or
(d) any other agreement specified as a Related Security for the
Receivable in the relevant Series Notice.
Page 16
Relevant Document means, with respect to a Receivable:
(a) the Receivable Agreement relating to that Receivable;
(b) the mortgage document in relation to each Receivable Security
for that Receivable;
(c) the Certificate of Title for the Mortgaged Property secured
by each Receivable Security;
(d) any amendment or replacement of such documents and any other
document which is entered into by or executed in favour of
the Approved Seller or Trustee (as the case may be) in
connection with that Receivable after the Cut-Off Date; or
(e) any other document specified as a Relevant Document in the
relevant Series Notice,
but does not include any document or agreement which relates only to
an Other Secured Liability.
Representative means:
(a) in the case of any Noteholder, a person appointed as a proxy
for that Noteholder under clause 17.9; and
(b) without limiting the generality of paragraph (a), in the case
of a Noteholder which is a body corporate, a person appointed
under clause 17.10 by the Noteholder.
Repurchase Date has the meaning, in relation to a Purchased
Receivable and the related Receivable Rights, given in clause
8.6(d)(ii)(D) with respect to the Purchased Receivable and related
Receivable Rights.
Repurchase Price means, in relation to a Purchased Receivable and the
related Receivable Rights, the price determined under clause
8.9(d)(iv).
S&P means Standard & Poor's (Australia) Pty Limited and its
successors and assigns.
Sale Notice means:
(a) in relation to purchase of Receivables by a Trust other than
from another Trust, a notice in the form of annexure A given
under clause 8; or
(b) in relation to a purchase of Receivables by a Trust from
another Trust, a notice in the form agreed by the Trustee and
the Trustee Manager in relation to that purchase.
Sale Termination Date means in relation to the obligations of a party
relating to a Sale Notice, the earlier of:
(a) the date 3 months after the date on which the last relevant
Purchased Receivable is discharged; and
(b) the date the Trustee (whether in its capacity as trustee of
the Trust to which the Purchased Receivables related or as
trustee of another Trust, including a Warehouse Trust) ceases
to have any interest in the relevant Purchased Receivable and
related Receivable Rights.
Security Interest includes any mortgage, pledge, lien, charge,
encumbrance, hypothecation, title retention, preferential right or
trust arrangement.
Page 17
Security Trust Deed in relation to a Trust means a deed between the
Trustee as trustee of that Trust, the Trust Manager and the Security
Trustee for that Trust under which, amongst other things, the Trustee
as trustee of the Trust charges all or some of the Assets of the
Trust to secure the payment of moneys owing to the Noteholders and
other Creditors of the Trust in favour of that Security Trustee as
trustee for such Noteholders and other Creditors.
Security Trustee means, in relation to a Trust, any person who is
appointed as security trustee in relation to the Assets of that
Trust.
Seller Accession Certificate means a certificate in the form of
annexure B.
Seller Note means, in relation to a Trust, a debt security issued by
the Trustee to the relevant Approved Seller under clause 11.
Series Notice means:
(a) in relation to a Warehouse Trust:
(i) to the extent that no notice referred to in paragraph
(b) has been given, a Warehouse Trust Direction which
satisfies the requirements of Clause 7.2; and
(ii) to the extent so provided in the relevant Warehouse
Facility Agreement, that Warehouse Facility
Agreement; or
(b) in each other case, a written notice from the Trust Manager
to the Trustee materially in the form of annexure D
satisfying the requirements of clause 13.3.
Servicer means, in relation to a Trust, the person appointed to
service the Assets of that Trust.
Servicer Transfer Event in relation to a Trust has the meaning (if
any) given to that term in the Servicing Agreement for that Trust.
Servicer's Report means, in relation to a Trust, the report to be
provided by the relevant Servicer to the Trustee and the Trust
Manager under clause 25.3 which is in the format and includes the
information agreed between the Servicer, the Trust Manager and the
Trustee or set out in any Series Notice.
Servicing Agreement means, in relation to a Trust, any agreement
under which a Servicer is appointed to service any of the Assets of
that Trust.
Stated Amount in relation to a Note has the meaning given in the
relevant Series Notice for that Note.
Subscription Amount in relation to any proposed Notes means the total
amount payable by the proposed Noteholders as specified in the
corresponding Note Issue Direction.
Support Facility in relation to a Trust means:
(a) any Mortgage Insurance Policy;
(b) any Liquidity Facility Agreement;
(c) any Hedge Agreement;
(d) any Redraw Facility Agreement;
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(e) any Warehouse Facility Agreement;
(f) any other security, support, rights or benefits in support of
or substitution for an Authorised Investment or the income or
benefit arising thereon on an Authorised Investment, for the
financial management, credit enhancement or liquidity support
of the assets and liabilities of the Trust; or
(g) any other facility specified as a Support Facility in the
relevant Series Notice,
entered into by the Trustee for that Trust.
Support Facility Provider means, in relation to a Trust, any person
who has entered into or agreed to make available a Support Facility
(other than a Mortgage Insurance Policy) to the Trustee in relation
to that Trust.
Taxation Act means the Income Tax Assessment ▇▇▇ ▇▇▇▇ (Commonwealth).
Tax and Taxes means any tax, levy, impost, deduction, charge, rate,
stamp duty, financial institutions duty, bank accounts debit tax or
any other tax, withholding or remittance of any nature which is now
or later payable or required to be remitted to, or imposed or levied,
collected or assessed by a Government Agency, together with any
interest, penalty, charge, fee or other amount imposed or made in
respect thereof.
Termination Date in relation to a Trust means the earliest of the
following dates in relation to that Trust:
(a) the eightieth anniversary of the date of creation of that
Trust under this deed;
(b) the date on which the Trust terminates by operation of
statute or by the application of general principles of law;
(c) if Notes have been issued by the Trustee as trustee of the
Trust the earliest of:
(i) the Business Day immediately following the date on
which the Trustee pays in full all moneys due or
which may become due, whether contingently or
otherwise, to the Creditors of the Trust (as
determined by the Auditor, that determination to be
conclusive); or
(ii) following the occurrence of an Event of Default under
any Security Trust Deed, the Security Trustee has
enforced to the fullest extent that it is able to do
so all of its powers under the Security Trust Deed
which arise on the occurrence of that Event of
Default or on the Security Trust Deed becoming
enforceable, and has distributed all of the amounts
which it is required to distribute under the Security
Trust Deed (as determined by the Auditor, that
determination to be conclusive),
and the Trustee has received a confirmation from the
Australian Taxation Office that the Trustee has lodged its
final tax return in relation to that Trust; or
(d) if Notes have not been issued by the Trustee as trustee of
the Trust, the date appointed by the Trust Manager as the
Termination Date by notice in writing to the Trustee (which,
if the Trust is a Warehouse Trust, must be after the date on
which all amounts have been fully and finally repaid under
the relevant Warehouse Facility Agreement) after the Trustee
has received a confirmation from the Australian Taxation
Office that the Trustee has lodged its final tax return in
relation to that matter,
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but a Trust shall not terminate under paragraphs (c) or (d) until the
Trustee, in relation to that Trust, ceases to hold any Trust Back
Assets.
Threshold Rate means, in relation to the Receivables, the interest
rate (expressed as a per centum per annum) determined by the Trust
Manager in accordance with the relevant Series Notice.
Title Documents means any document of title or other document in
relation to any Authorised Investment.
Title Perfection Event means, in relation to a Trust, each of the
events referred to in clause 8.9 for that Trust and the events (if
any) specified as Title Perfection Events in the relevant Series
Notice.
Transaction Documents means:
(a) this deed;
(b) any Series Notice;
(c) any Seller Accession Certificate;
(d) any Security Trust Deed;
(e) any Servicing Agreement;
(f) any Support Facility;
(g) any Note or document evidencing a Note from time to time;
(h) any other document which is expressed (in a Series Notice or
otherwise) to be, or which is agreed by the Trust Manager and
Trustee to be, a Transaction Document for the purposes of
this deed; and
(h) any other document that is executed under or which is or is
expressed to be incidental or collateral to, any other
Transaction Document,
but in relation to a Trust means only those of the above documents
which relate to that Trust.
Transfer of Receivable Security means:
(a) in relation to a Mortgage or other Related Security that is a
registered mortgage of Land, a transfer of mortgage relating
to that Mortgage or Related Security under the Real Property
Legislation which, on registration, would result in the
Trustee being the registered mortgagee of that Mortgage or
Related Security; and
(b) in relation to any other Receivable Security and if required
by relevant legislation or practices a transfer of Security
Interest relating to that Receivable Security which, on
registration, would result in the Trustee being the
registered holder of that Receivable Security.
Trust Back means, in relation to a Trust, the trust (if any) referred
to in Clause 8.4 for that Trust.
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Trust Back Assets means, in relation to a Trust, such right under or
interest in the Receivables and Receivable Securities specified in the Sale
Notice relating to that Trust and the related Collections to the extent
that such right or interest relates to (but only to the extent that it
relates to) any Other Secured Liabilities.
Trust means each Trust constituted from time to time under clause 3.
Trust Manager's Default means:
(a) in relation to a Warehouse Trust, the happening of any events
specified in clauses 20.1(a) and 20.1(b) (but in the case of an event
under clause 20.1(a), only to the extent that the relevant Warehouse
Facility Provider has not waived or excused that failure to pay); and
(b) in relation to a in relation to any other Trust, means the happening
of any of the events specified in clause 20.1.
Trust Manager's Fee in relation to a Trust means the Trust Manager's
fee in relation to that Trust referred to in clause 19.
Trust Manager's Report means, in relation to a Trust, the report to
be provided by the Trust Manager to the Trustee and the Rating Agency
under clause 18.15 which is in the format and includes the
information agreed by the Trust Manager and the Trustee or set out in
the relevant Series Notice.
Trustee's Default in relation to a Trust means the occurrence of any
of the events specified in clause 24.1.
Trustee's Fee in relation to a Trust means the Trustee's fee for that
Trust under clause 23.1.
Unpaid Balance means:
(a) in relation to any Loan at any time, the sum of:
(i) the unpaid principal amount of that Loan; and
(ii) the unpaid amount of all finance charges, interest payments and
other amounts accrued on or payable under or in connection with
that Loan or the related Receivable Rights at that time,
or the amount otherwise stated to be the Unpaid Balance for that
Loan, in the relevant Series Notice; or
(b) in relation to any other Receivable, the amount stated to be the
Unpaid Balance for the Receivable in the relevant Series Notice.
Warehouse Facility Agreement means, in relation to a Trust, any facility
specified as a Warehouse Facility Agreement in the Series Notice for that
Trust, under which one or more financial institutions or other persons
agree to make available financial accommodation to the Trustee to enable it
to acquire Receivables.
Warehouse Facility Provider means, in relation to a Trust, a person who has
entered into or agreed to make available a Warehouse Facility Agreement to
the Trustee in relation to that Trust.
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Warehouse Trust means a Trust under which the Trustee originates or
acquires Receivables using the proceeds of financial accommodation
provided under a Warehouse Facility Agreement, some or all of which
Receivables may subsequently be acquired by one or more other Trusts.
Warehouse Trust Direction means a direction by the Trust Manager to
the Trustee materially in the form of Schedule 7 or in such other
form as may from time to time be agreed between the Trustee and the
Trust Manager.
Westpac means Westpac Banking Corporation (ARBN 007 457 141).
1.2 Interpretation
Headings are for convenience only and do not affect interpretation.
The following rules of interpretation apply unless the context
requires otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms have a
corresponding meaning.
(d) A reference to a person includes a body corporate, an unincorporated
body or other entity and conversely.
(e) A reference to a clause, schedule or annexure is to a clause of, or
schedule or annexure to, this deed.
(f) A reference to any party to this deed or any other agreement or
document includes the party's successors and permitted assigns.
(g) A reference to any agreement or document is to that agreement or
document as amended, novated, supplemented, varied or replaced from
time to time, except to the extent prohibited by this deed.
(h) A reference to any legislation or to any provision of any legislation
includes any modification or re-enactment of it, any legislative
provision substituted for it and all regulations and statutory
instruments issued under it.
(i) Mentioning anything after include, includes or including does not
limit what else might be included
(j) A reference to dollars or $ is to Australian currency.
(k) Where any word or phrase is given a defined meaning any other part of
speech or other grammatical form in respect of such word or phrase
has a corresponding meaning.
(l) Where the day on or by which any sum is payable under this deed or
any act, matter or thing is to be done is a day other than a Business
Day such sum shall be paid and such act, matter or thing shall be
done on the next succeeding Business Day.
(m) A word or phrase defined in the Corporations Law has the same meaning
in this deed.
(n) All accounting terms shall be interpreted in accordance with the
Approved Accounting Standards.
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(o) A reference to a month is to a calendar month.
(p) A reference to any document is to such document as amended, varied,
supplemented or novated from time to time.
1.3 Binding on Noteholders
This deed shall be binding on all Noteholders as if each was
originally a party to this deed.
PART B - TRUSTS
2. TRUSTEE OF WST TRUSTS
2.1 Appointment of Trustee
The Trustee is appointed, and agrees to act, as trustee of each Trust
on, and subject to, the terms and conditions of this deed.
2.2 Trustee to act in interests of Beneficiary and Noteholders of a Trust
The Trustee shall, in respect of each Trust, act in the interests of
the Beneficiary and Noteholders in relation to that Trust on, and
subject to, the terms and conditions of this deed. In the event of
any conflict of interests, the interests of the Noteholders will
prevail.
2.3 Separate and distinct Trusts
Each Trust shall be a separate and distinct trust fund held by the
Trustee on separate and distinct terms and conditions.
2.4 Termination of deed
This deed shall terminate on the date agreed by the Trustee and the
Trust Manager if at that date:
(a) there are no Trusts in existence;
(b) the Trustee and the Trust Manager are satisfied that all Notes have
been fully redeemed and all Creditors paid in full;
(c) there is no Sale Notice which has been given to the Trustee but which
has not at that date been accepted or rejected by the Trustee; and
(d) there is no Investment Direction which has been given to the Trustee
but which has not been acted on or rejected by the Trustee.
3. THE TRUSTS
3.1 Beneficial Interest in the Trusts
(a) The Trustee shall hold each part of each Trust, and each Asset of
each Trust from time to time, on trust for the relevant Beneficiary
on and subject to the terms and conditions of this deed.
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(b) The interest of a Beneficiary under a Trust may be evidenced by the
issue of one or more units by the Trustee, if the relevant Series
Notice so specifies. A unit may give the holder a right only to
capital or only to income, or may give such other rights as the
relevant Series Notice may provide. If a Beneficiary has paid all
subscription and other moneys payable by it for the issue of a unit,
the interests of that Beneficiary under paragraph (a) are not
affected by the failure of the Trustee to issue any such unit.
3.2 Creation of Trusts
(a) (Trust Manager may create) The Trust Manager may at any time create a
Trust by lodging with the Trustee:
(i) (notice of creation) a duly completed and executed Notice of
Creation of Trust; and
(ii) (initial Assets) the sum of $10.00 to constitute the initial
Assets of the additional Trust (which sum may be evidenced, at
the time of creation of that Trust or a later date, by the
issue of a unit under clause 3.1).
(b) (Constitution of a Trust) On satisfaction of clause 3.2(a), the
additional Trust referred to in the corresponding Notice of Creation
of Trust under clause 3.2(a)(i) shall be created.
(c) (No limit on Trusts) There shall be no limit on the number of Trusts
that may be created under this deed.
3.3 Name of the Trusts
(a) Each Trust which is not a Warehouse Trust shall be known as:
(i) (initial name) the Series X-Y Trust, where X represents the
year in which the Trust was created and Y represents the
consecutive order of creation of the Trust; for example, in the
case of the first Trust the Series ▇▇▇▇-▇ ▇▇▇ Trust; or
(ii) (alternative name) such other name as the Trustee, the Trust
Manager and the relevant Approved Seller (if any) may from time
to time agree.
(b) Each Warehouse Trust shall be known as:
(i) the WST Warehouse Trust #Z where Z is the number of order of
creation of Warehouse Trusts; for example, in the case of the
first Warehouse Trust the WST Warehouse Trust #1; or
(ii) (alternative name) such other name as the Trustee and the Trust
Manager and the relevant Approved Seller may from time to time
agree.
3.4 Duration of a Trust
Each Trust shall continue until, and shall terminate on, its respective
Termination Date.
3.5 Termination; winding up
(a) (Realisation of Assets) Subject to this clause 3 and to the
Transaction Documents, immediately following the Termination Date of
a Trust the Trustee in consultation with the Trust Manager must:
Page 24
(i) sell and realise the Assets of that Trust (having obtained
appropriate expert advice prior to the sale of any Receivable
or Receivable Security); and
(ii) so far as reasonably practicable and reasonably commercially
viable, and subject to this clause, complete the sale within
180 days after the Termination Date for that Trust.
(b) (First right of refusal) Where an Approved Seller has a first right
of refusal in relation to those Receivables or Receivable Securities
under clause 8.9(c), the Trustee must comply with that clause 8.9(c).
(c) (Sale within 180 days) During the 180 day period after the
Termination Date of a Trust, the Trustee must not (subject to
paragraph (d)) sell any Receivables and the related Receivable Rights
for an amount less than:
(i) in the case of performing Receivables, their Unpaid Balance; or
(ii) in the case of non-performing Receivables, their Fair Market
Value.
(d) (Performing Receivables) Notwithstanding paragraph (c)(i), the
Trustee may not sell any performing Receivable for less than its Fair
Market Value without the consent of an Extraordinary Resolution of
the relevant Noteholders. Any purported sale without that approval
will be ineffective.
(e) (Sale at less than Unpaid Balance) The Trustee must not sell any
Receivable and the related Receivable Rights for less than the Unpaid
Balance of the Receivable unless:
(i) if the Invested Amount of each Note is greater than zero, the
Noteholders (including the holder of the Seller Note) have
consented to such sale by Extraordinary Resolution; or
(ii) if the Invested Amount of each Note is zero, the relevant
Beneficiary consents.
(f) (Procedures before winding up) The provisions of this deed will
continue to apply to a Trust for the period between the Termination
Date of that Trust and the date on which the Assets of that Trust
have been realised and distributed, notwithstanding the occurrence of
the Termination Date.
(g) (Expenses) The Trust Manager must direct the Trustee to, and the
Trustee must, pay or provide for all Taxes, Expenses, claims and
demands due or incurred, or which the Trustee believes should be
provided for, in connection with or arising out of the administration
or winding up of any Trust, including the fees of any consultants or
advisers employed in connection with the administration or winding up
of the Trust.
(h) (Distribution) The Trust Manager shall direct the Trustee to
distribute the proceeds of realisation of the Assets of a Trust
(after deducting the amounts paid or provided for under paragraph
(g)) in accordance with the cashflow allocation methodology set out
in the relevant Series Notice and in accordance with any directions
given to it by the Trust Manager. The Trustee shall comply with that
direction.
Page 25
(i) (Beneficiary) If all Notes relating to a Trust have been fully
redeemed and the Creditors paid in full, the Trustee may distribute
all or part of the Assets to the relevant Beneficiary in specie
(without recourse to the Trustee and without any representation or
warranty by the Trustee).
(j) (Performing/non-peforming) The Servicer is to determine whether a
Receivable is performing or non-performing for the purposes of this
clause 3.5.
3.6 Costs of winding up of a Trust
During the winding up of a Trust under clause 3.5:
(a) (Trustee's Fee) the Trustee shall be entitled to the continued
payment of the Trustee' s Fee under clause 23.1;
(b) (Trust Manager's Fee) the Trust Manager shall be entitled to
continued payment of the Trust Manager's Fee under clause 19; and
(c) (Expenses) the Trustee and the Trust Manager shall be entitled to
reimbursement for, and the Trust Manager and the Trustee shall make
provision for, all Expenses incurred, made or apprehended in relation
to the Trust (which shall for this purpose include, without
limitation, all Taxes, costs, charges, expenses, claims and demands
incurred, made or apprehended in connection with the winding up of
the Trust, including the fees of any agents, solicitors, bankers,
accountants or other persons who the Trustee or the Trust Manager may
employ in connection with the winding up of the Trust).
4. INVESTMENT OF THE TRUSTS GENERALLY
4.1 Authorised Investments only
Subject to this deed, each Trust shall comprise only assets and property
which are Authorised Investments as at the date of their acquisition.
4.2 Trust Manager selects investments
Subject to the terms of this deed:
(a) the Trust Manager alone shall have absolute and uncontrolled
discretion to determine, and it shall be the duty of the Trust
Manager to:
(i) recommend or to propose in writing to the Trustee (which may be
under a Series Notice), the manner in which any moneys forming
part of a Trust shall be invested and what purchases, sales,
transfers, exchanges, collections, realisations or alterations
of Assets shall be effected and when and how the same should be
effected; and
(ii) give to the Trustee all directions which the Trustee may desire
in relation to the above matters; and
(b) it shall be the role of the Trustee to give effect to all such
recommendations or proposals of the Trust Manager as are communicated
by the Trust Manager to the Trustee in accordance with this clause.
Page 26
4.3 Investment proposals
(a) (Trust Manager's investment proposals) The Trust Manager shall from
time to time give to the Trustee a proposal for the acquisition or
origination of property which is to constitute Assets of a Trust and
for the sale, transfer or other realisation of or dealing with the
Assets of a Trust.
(b) (Sufficient details) Except where the Trust Manager's proposal is an
Investment Direction, each proposal shall contain all necessary
details relating to the proposal together with all information and
evidence as the Trustee may reasonably require to satisfy itself that
the implementation of the proposal is permitted under this deed.
Where the Trust Manager's proposal is an Investment Direction, it
will comply with this deed.
(c) (Discretion) The Trust Manager shall have the fullest discretion to
recommend in the proposal the time and mode of and the broker,
contractor or agent (if any) to be engaged for the implementation of
the proposal including the right to recommend a postponement for so
long as the Trust Manager in its discretion shall think fit.
(d) (Trustee must implement investment proposals) Subject to clause 4.7
and this deed generally, on receipt of any written proposal by the
Trust Manager under this clause 4, the Trustee shall implement that
proposal and the Trustee shall not be required, nor be under a duty,
to inquire or to make any assessment or judgment in relation to that
proposal or whether the proposed investment is an Authorised
Investment or is otherwise permitted under this deed. Subject to this
deed, the Trustee must not make an investment if it is knows that it
is not an Authorised Investment.
4.4 Disposal or realisation of Authorised Investments
(a) (Authorised Investments to be held to maturity in Rated Trusts)
Subject to this deed, any applicable Security Trust Deed or Support
Facility, Authorised Investments in respect of a Rated Trust shall be
held until their maturity (and the Trustee shall accordingly not have
power to dispose of or realise any Authorised Investment in a Rated
Trust) but nothing in this deed shall affect the rights, powers,
duties and obligations of the Trustee in relation to enforcing any
Receivable, Receivable Security or Related Securities or otherwise in
relation to any other Authorised Investment or Support Facility.
(b) (Circumstances for disposal in Rated Trusts) Subject to this clause
4.4(b) and to clause 4.4(c), the Trustee shall have power to dispose
of or realise any Authorised Investment in a Rated Trust if the Trust
Manager confirms to the Trustee that the disposal or realisation of
the Authorised Investment will not lead to a loss or where to
continue to hold such Authorised Investment would:
(i) (breach) result in a breach of this deed;
(ii) (affect Authorised Trustee Investment status) affect the status
of Notes as an Authorised Trustee Investment (if applicable);
(iii) (adversely affect rating) adversely affect the then rating (if
any) of the Notes issued in relation to the Rated Trust; or
(iv) (prejudicial to Noteholders) in the opinion of the Trust
Manager, be prejudicial to the interests of Noteholders in the
Rated Trust.
Page 27
The Trustee may only exercise its power of disposal or realisation
under paragraphs (ii)-(iv) (inclusive) on the written direction of
the Trust Manager.
(c) (No restriction on disposal in unrated Trusts) Subject to each
Transaction Document there shall be no restriction on the disposal or
realisation of or temporary investment or reinvestment in Authorised
Investments:
(i) in a Trust which is not a Rated Trust; or
(ii) where the disposal is to another Trust under clauses 7, 8.9(d)
or 9.
(d) (Proceeds on realisation) On the settlement of the discharge,
realisation or disposal of an Asset, the Trustee may accept the
proceeds in the form of:
(i) a Bank cheque payable to the Trustee; or
(ii) in other immediately available funds.
4.5 Temporary investment of cash and limitation on maturity of Authorised
Investments
The Trust Manager shall in respect of a Trust be entitled to direct the
Trustee to cause cash on hand which represents the income or capital of the
Trust and which is not required for:
(a) (Expenses) the immediate payment of the Expenses of the Trust;
(b) (Trustee's Fee) the immediate payment of the Trustee's Fee in
relation to the Trust; or
(c) (Noteholders or Beneficiaries) the immediate payment to the
Noteholders or a Beneficiary of the Trust,
to be invested in Authorised Investments provided that such Authorised
Investments shall mature on a date on or before the due date for such
payment.
4.6 Support Facilities
(a) (Enter into Support Facilities) The Trustee shall in relation to any
Trust, on the prior direction of the Trust Manager (and following a
review by the Trustee of the documentation for the proposed Support
Facility), enter into or acquire and perform any Support Facilities
on such terms and conditions as are reasonably required by the Trust
Manager (subject to this deed).
(b) (Rating of parties to Support Facility) If Notes have been, or are
proposed to be, issued by the Trustee as trustee of a Rated Trust,
the Trust Manager shall (subject to this deed):
(i) direct the Trustee that each Support Facility for the benefit
of the Rated Trust must be taken out or executed with a person
having at that time a Designated Rating (if required by the
corresponding Designated Rating Agency); and
(ii) take, or direct the Trustee to take, such other action as may
be necessary to satisfy the requirements of the relevant
Designated Rating Agency in relation to that Rated Trust.
Page 28
(c) (Support Facilities for Rated Trusts) If Notes have been, or are
proposed to be, issued by the Trustee as trustee of a Rated Trust,
any Support Facility for the benefit of the Rated Trust shall be
entered into by the Trustee prior to or on the Note Issue Date in
relation to those Notes provided that the Trustee may, on the prior
direction of the Trust Manager:
(i) enter into a new Support Facility as trustee of a Rated Trust
after a Note Issue Date, if and only if, the Trust Manager has
received written confirmation from any Designated Rating Agency
that entering into the Support Facility will not result in a
downgrading of the Notes; or
(ii) substitute a new Support Facility for any existing Support
Facility entered into in accordance with this clause 4.6 where
it has previously issued Notes as trustee of a Rated Trust, if
and only if, the Trust Manager considers the same to be in the
interests of that Rated Trust and the Trust Manager has
received written confirmation from any Designated Rating Agency
that the new Support Facility will not result in a downgrading
of the Notes.
(d) (Downgrading of parties) If a person providing a Support Facility to
the Trustee as trustee of a Rated Trust ceases to have a Designated
Rating (if the corresponding Designated Rating Agency requires it to
have a Designated Rating) and the Designated Rating Agency has
downgraded, or has indicated that it proposes to downgrade, its
rating of the Notes, the Trustee shall, if directed by the Trust
Manager and subject to this deed:
(i) enter into any substitute or additional Support Facility
identified by the Trust Manager, and on such terms required by
the Trust Manager; or
(ii) take such other action as may be required by the relevant
Designated Rating Agency,
to maintain the rating of the Notes as it stood prior to such
downgrading or proposed downgrading of the rating of the Notes.
(e) (No obligation to have Support Facilities) Nothing in this clause or
this deed shall be construed as requiring that any given Trust has
the benefit of any Support Facility. The Trustee is not required to
enter into any Support Facility except as provided in this clause.
4.7 Authorised Trustee Investments
The Trust Manager shall not direct the Trustee to, and the Trustee shall
not invest, any moneys of a Trust in any Authorised Investment which
prejudices the qualification of Notes in that Trust as an Authorised
Trustee Investment in a given Australian Jurisdiction if the Trust Manager
has indicated to the Trustee that the Notes are, or are proposed to be, an
Authorised Trustee Investment of that Australian Jurisdiction or any
Information Memorandum or prospectus in relation to such Notes indicates
that the Notes are, or are proposed to be, an Authorised Trustee Investment
of that Australian Jurisdiction.
4.8 Limitation of Trustee's personal liability
Notwithstanding any other provision of this deed, the Trustee is not
obliged to execute any instrument, enter into any agreement, take any
action, or incur any obligation in connection with a Trust (including,
without limitation, in connection with Support Facilities or Assets)
unless:
Page 29
(a) in the case of agreements, actions or obligations that are expressly
contemplated by the Transaction Documents and are between parties to
the Transaction Documents, its personal liability in connection with
the instrument, agreement, action or obligation is limited in a
manner consistent with clause 33.16; or
(b) in any other case, the Trustee's liability is limited in a manner
satisfactory to the Trustee in its absolute discretion.
4.9 Moneys payable to Trustee
Subject to this deed, the Trust Manager and the Trustee shall ensure that
any agreements entered into in relation to the Trusts contain a provision
to the effect that any moneys belonging to the Trusts under the agreements
shall be paid to the Trustee or to an account, or Authorised Investment, in
the name of the Trustee as trustee of the relevant Trust.
4.10 Segregation of Assets of a Trust
(a) Subject to this deed (and in particular to clause 27.10) and any
Series Notice the Trustee shall:
(i) ensure that no money or other Assets of a Trust are commingled
with the money or other Assets of another Trust;
(ii) account for the Assets included in each Trust separately from
the Assets included in all other Trusts; and
(iii) keep the liabilities of, and principal amounts outstanding to
Noteholders and providers of Support Facilities or other
Creditors in relation to each Trust separate and apart from the
liabilities of, and principal amounts outstanding to
Noteholders and providers of Support Facilities or other
Creditors in relation to all other Trusts.
(b) Notwithstanding this clause 4.10:
(i) any Expenses of a Warehouse Trust may be borne by one or more
Warehouse Trusts in the respective amounts agreed by the
Trustee and the Trust Manager from time to time; and
(ii) the Trustee at the direction of the Trust Manager may enter any
Hedge Agreement which relates to Assets of any two or more
Trusts.
4.11 Assets of Trusts
Assets of a Trust shall not be available to meet any liability of, or
principal amounts outstanding to Noteholders and providers of Support
Facilities or other Creditors in relation to, any Trust other than the
Trust of which those Assets form a part.
4.12 Liabilities of a Trust
Any liabilities to the extent that they relate to a Trust and principal
amounts outstanding to Noteholders and providers of Support Facilities or
other Creditors to the extent that they relate to a Trust, shall not be
aggregated with any liabilities, and principal amounts outstanding to
Noteholders and providers of Support Facilities or other Creditors, to the
extent that they relate to any other Trust or offset against the Assets of
any Trust other than the Trust of which those liabilities and principal
amounts form a part or to which they relate.
Page 30
PART C - ACQUISITION AND ORIGINATION OF ASSETS
5. GENERAL
5.1 Power to acquire Assets
Subject to this deed and any Series Notice, the Trustee may Borrow for the
purpose of or in connection with:
(a) the making of, investment in, or funding of assets underlying, Loans
or other Receivables;
(b) in relation to paragraph (a), investment in other Authorised
Investments; or
(c) the continued funding of any investment in Receivables, Receivable
Securities or other Authorised Investments.
5.2 Borrowings - general
Subject to clause 5.3, the Trustee may only Borrow in relation to a Trust
following receipt of a Warehouse Trust Direction under clause 7.1 or a Note
Issue Direction under clause 13 and only by way of:
(a) the issue of Notes (including a Seller Note, and any Borrowing
relating to that Seller Note) at any time and from time to time under
this deed and the relevant Trust;
(b) a Support Facility (and any Notes issued with respect to that Support
Facility);
(c) in the case of a Rated Trust, a Borrowing which is at all times
subordinated and subject to the Notes, the interests of the
Noteholders under the Notes, and the interests of the providers of
any Support Facilities, in relation to the relevant Trust; or
(d) in the case of a Trust which is not a Rated Trust, any other
Borrowing agreed by the Trustee and the Trust Manager.
5.3 Borrowings - Support Facilities etc.
(a) Where there are, or may be, ongoing obligations of the Trustee or
Approved Seller (as the case may be) to provide Obligors with the
ability to redraw amounts prepaid under a Receivable, or to increase
the principal amount of or owing in relation to any Receivable, the
Trustee shall subject to any applicable restriction in the
Transaction Documents at the direction (whether under a Series Notice
or otherwise) of the Trust Manager (without limiting its rights or
powers under this deed):
(i) issue a Seller Note to the Approved Seller with respect to
those obligations of the Approved Seller;
(ii) enter into a Redraw Facility Agreement or Warehouse Facility
Agreement with respect to those obligations;
(iii) sell or otherwise transfer that Receivable to a Warehouse
Trust;
(iv) issue Notes to reimburse the relevant Approved Seller for any
redrawn amounts funded by the Approved Seller; or
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(v) enter any other arrangements as may be agreed between the
Trustee, the Trust Manager and the Approved Seller.
(b) The Trustee may, at the direction of the Trust Manager in accordance
with clause 13, issue Notes in relation to its obligations under a
Warehouse Facility Agreement or a Warehouse Trust.
(c) The parties to a Series Notice for a Warehouse Trust may amend the
Series Notice from time to time in writing.
6. ORIGINATION
(a) Where an Investment Direction directs the Trustee to fund the making
of Loans, or the making or creation of other Receivables, other than
by acquisition from an Approved Seller (an Origination), and the
Trustee implements the direction, the Trustee shall use the proceeds
of the relevant issue of Notes or drawing under the relevant Support
Facility (as the case may be) for the purpose of the Origination in
accordance with the detailed procedure for Origination set out in the
relevant Series Notice and as agreed by the Trustee, the Trust
Manager and the relevant originator.
(b) The Trustee is not required to Originate Receivables unless it is
satisfied (in its absolute direction) with the procedures for the
Origination (including as to any indemnity for liability under
Consumer Credit Legislation).
7. ACQUISITION OR FUNDING BY WAREHOUSE TRUST FROM ANOTHER TRUST
7.1 Direction by Trust Manager
(a) Subject to Clause 7.3, the Trust Manager may from time to time direct
the Trustee under a Warehouse Trust Direction to acquire from another
Trust Receivables and/or Receivable Securities using the proceeds of
financial accommodation under a Warehouse Facility Agreement or in
consideration of the transfer of any Authorised Investments held by
the Warehouse Trust.
(b) The Trustee has power, as trustee of a Trust, to dispose of
Receivables and/or Receivable Securities to a Warehouse Trust in
accordance with a Series Notice relating to that Trust and that
Warehouse Trust.
7.2 Required information
A Warehouse Trust Direction must include:
(a) all relevant details relating to:
(i) the other Trust;
(ii) the Receivables and relevant Receivable Securities;
(iii) the Warehouse Facility Agreement (including the amount of
financial accommodation to be raised); and
(iv) all necessary information required in a Series Notice under
this deed; and
(b) all other information reasonably required by the Trustee in order to
make a determination under clause 7.3.
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7.3 Conditions to acceptance
The Trustee will not accept a direction under clause 7.1 unless the
direction (including the Receivables and Receivable Securities specified in
the direction) complies with the requirements of the relevant Warehouse
Trust Direction and any relevant Warehouse Facility Agreement or as the
Trust Manager and the Trustee otherwise agree.
7.4 Effect of acceptance
(a) A Warehouse Trust Direction must be executed in accordance with
clause 13.3(e).
(b) If the Trustee accepts a Warehouse Trust Direction under clause 7.1,
it shall:
(i) enter into, or ensure that there is in place, a relevant
Warehouse Facility Agreement;
(ii) acquire or originate the Receivables (as the case may be),
and otherwise comply with the Warehouse Trust Direction.
7.5 Implementation
If the Trustee accepts a Warehouse Trust Direction under clause 7.1, the
Trust Manager shall do everything reasonably necessary to enable the
Trustee to implement the direction.
7.6 General direction
(a) A Warehouse Trust Direction under clause 7.1 may take the form of a
general direction that specifies one or more Trusts from which
Receivables and Receivable Securities may be acquired by the Trustee
from time to time without the need for a further Warehouse Trust
Direction under clause 7.1.
(b) Without limiting paragraph (a), a general direction referred to in
that paragraph can provide that the Trust Manager may draw an amount
under the relevant Warehouse Facility Agreement on behalf of and
without prior notice to the Trustee, on satisfaction of any relevant
procedures specified in the Warehouse Trust Direction. Those
procedures may include:
(i) notice to be given to the Trustee within a specified period
after that drawing; and
(ii) requirements as to whom the proceeds of that drawing will be
paid.
7.7 Transfers between Trusts
(a) Where a transfer of Assets is to occur between Trusts (whether
between two Warehouse Trusts, between a Warehouse Trust and a Trust
which is not a Warehouse Trusts, or between two Trusts neither of
which is a Warehouse Trust), the provisions of this clause 7.7 apply.
(b) The transfer may take place under a Sale Notice, under a relevant
Series Notice, or by such other method as the Trustee and the Trust
Manager may determine. The information and timing of that transfer
and the delivery of that Sale Notice or any other document will be as
agreed between the Trustee and the Trust Manager.
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(c) Subject to payment of the agreed Purchase Price (as adjusted in
accordance with the terms of the sale), the Trustee as trustee of a
Trust will hold automatically by virtue of this deed and without any
further act or instrument or other thing being done or brought into
existence, the benefit of all Receivable Rights transferred to it by
the Trustee as trustee of another Trust (together with the benefit of
all Support Facilities which the Trustee and the Trust Manager agree
are to be transferred, and all other rights and entitlements relating
to the relevant Receivables). The Trustee will hold the Receivables
so acquired as trustee of the Trust which acquires those Receivable
Rights and no longer as the trustee of Trust which disposed of the
Receivable Rights.
(d) The Sale Notice, Series Notice or other method of transfer (as the
case may be) may, if so agreed between the Trustee and the Trust
Manager, provide:
(i) that the Trust Manager, the Servicer or the Approved Seller of
the Assets which are the subject of the transfer shall give for
the benefit of the acquiring Trust specified representations,
warranties and undertakings in relation to the Assets; and
(ii) for the effect of any breach of a representation, warranty or
undertaking referred to in sub-paragraph (i).
(e) Following a transfer between Trusts, each of:
(i) the Trustee as trustee of the Trust which transfers the
relevant Receivable Rights (the Old Trust);
(ii) the Trustee as trustee of the Trust which acquires the relevant
Receivable Rights (the New Trust); and
(iii) the relevant Approved Seller,
agrees that with effect from the date of transfer of the relevant
Receivable Rights the rights and obligations as between the Approved
Seller and the Trustee as trustee of the Old Trust will be novated,
and enjoyed by, the Approved Seller and the Trustee as trustee of the
New Trust as between themselves (without the need for further action
on the part of any person). The Approved Seller and the Trustee as
trustee of the Old Trust shall, as between themselves, cease from
that date to owe any obligations or hold any rights as between
themselves.
(f) Where Assets of a Trust which are transferred to another Trust are
subject to a Trust Back, that Trust Back is dealt with in accordance
with clause 8.4(j).
(g) Following a transfer of Assets between Trusts, the Trust Manager
shall calculate, and notify the Trustee of, the amount of:
(i) any accrued interest under the relevant Receivables that may be
due from the transferee Trust to the transferor Trust at any
time; and
(ii) any repaid or prepaid principal under the relevant Receivables
that may be due from the transferor Trust to the transferee
Trust,
in accordance with the provisions (if any) of the relevant Series
Notice or Sale Notice.
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The Trust Manager directs the Trustee (as Trustee of the Trust with
any obligation under this paragraph (f)) to pay any amount so
calculated to the other relevant Trust as an adjustment to the
corresponding purchase price, in accordance with the relevant Series
Notice.
7.8 Acknowledgement by Approved Seller
Each Approved Seller acknowledges and agrees that any interest in
Receivables acquired from it by the Trustee as trustee of any Trust
may be disposed of by the Trustee to another Trust.
8. ACQUISITION FROM APPROVED SELLER
8.1 Note Issue Direction
Where:
(a) a Note Issue Direction directs that the Trustee issues Notes; or
(b) a Warehouse Trust Direction directs that the Trustee draws any amount
under the relevant Warehouse Facility Agreement,
to fund the acquisition of Authorised Investments from an Approved Seller
under a Sale Notice under clause 8.3, and the Trustee implements the
direction, the Trustee shall use the proceeds of the relevant issue of
Notes or drawing under the Warehouse Facility Agreement (as the case may
be) for the purpose of the acquisition in accordance with this clause.
8.2 Accession of Approved Sellers
(a) (Approved Seller) A person approved by the Trust Manager may at any
time become an Approved Seller for the purposes of this deed by
entering into a Seller Accession Certificate. The Trust Manager shall
not direct the Trustee to acquire Receivables and/or Receivable
Securities from an Approved Seller for a Rated Trust (other than the
Approved Seller who first disposed of Receivables and/or Receivable
Securities to that Trust) without first confirming the rating for
that Trust.
(b) (Accession) On execution of a Seller Accession Certificate by that
person and the Trustee, that person shall be taken to be an Approved
Seller for the purposes of this deed with all the rights and
obligations as if it were an original party to this deed.
(c) (Trustee as Approved Seller) If the Trustee as trustee of a Trust is
to be an Approved Seller, it need not execute a Seller Accession
Certificate but will be bound by this deed as an Approved Seller as
trustee of that Trust.
8.3 Sale Notices
(a) An Approved Seller may (but is not obliged to) offer to sell its
equitable interest in any Authorised Investments to the Trustee by
delivering a Sale Notice to the Trustee.
(b) Unless the Trustee otherwise agrees, a Sale Notice given under this
deed shall be delivered to the Trustee not later than 4.00 pm on the
Business Day before the day on which the Expiry Time falls (which
must also be a Business Day).
(c) An offer in a Sale Notice is irrevocable during the period up to and
including the Expiry Time of that Sale Notice.
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(d) If so directed by the Trust Manager, the Trustee shall accept the
offer contained in a Sale Notice at any time prior to the Expiry Time
by, and only by, the payment by the Trustee to the Approved Seller
(or as it directs) of the Purchase Price in same day funds to the
bank account specified by the Approved Seller for that purpose in
that Sale Notice.
(e) Notwithstanding:
(i) satisfaction of all relevant conditions precedent; or
(ii) any negotiations undertaken between the Approved Seller and the
Trustee prior to the Trustee accepting the offer contained in a
Sale Notice,
the Trustee is not obliged to accept the offer contained in a Sale
Notice and no contract for the sale or purchase of any Receivables or
related Receivable Rights referred to in a Sale Notice will arise
unless and until the Trustee accepts the offer contained in the Sale
Notice in accordance with this clause.
(f) The offer contained in a Sale Notice may only be accepted in relation
to all the Receivables and related Receivable Rights referred to in
the Sale Notice.
8.4 Constitution and Entitlement of the Trust Back
(a) Constitution of Trust Back
On the acceptance of a Sale Notice which relates to Receivable
Securities that secure Other Secured Liabilities:
(i) a trust shall be constituted; and
(ii) the relevant Trust Back Assets shall vest in the Trustee and be
held by the Trustee on and subject to the trusts, terms and
conditions of this clause.
(b) Declaration of trust
The Trustee declares that it will hold all its right, title and
interest in the Trust Back Assets on bare trust for the relevant
Approved Seller in accordance with this clause.
(c) Entitlement of the Approved Seller to the Trust Back Assets
The beneficial interest in the Trust Back Assets relating to a Trust
vests absolutely in the relevant Approved Seller.
(d) Dealing with Trust Back Assets
Subject to the terms of this deed:
(i) an Approved Seller is entitled to deal with its Trust Back
Assets in its absolute discretion;
(ii) the Trustee must not deal with any Trust Back Assets other
than:
(A) in accordance with directions given by the relevant
Approved Seller as beneficiary of the Trust Back, from
time to time;
(B) in accordance with all the Transaction Documents; or
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(C) to the extent necessary to exercise and enforce any
Receivable Rights; and
(iii) the Trustee must act in accordance with any direction given to
it by the relevant Approved Seller in respect of its Trust Back
Assets, except that the Trustee is not obliged to act in
accordance with the direction of that Approved Seller where to
do so would:
(A) be illegal; or
(B) materially prejudice the exercise of the Trustee's rights
in relation to the Receivables or Receivable Securities.
(e) Proceeds
Subject to clause 8.8:
(i) an Approved Seller may retain any proceeds received by it from
its Trust Back Assets; and
(ii) the Trustee must immediately on the direction of the Trust
Manager pay to an Approved Seller (or otherwise pay as the
Approved Seller directs) any proceeds the Trustee receives in
respect of that Approved Seller's Trust Back Assets.
That payment constitutes a good discharge of the Trustee.
(f) Trustee's duties
(i) The Trustee owes no fiduciary or other duties to any Approved
Seller in respect of that Approved Seller's Trust Back Assets
other than pursuant to paragraph (d) or (e)(ii) and, in any
event, is not liable in any manner whatsoever to any Approved
Seller for any liability, loss, cost or expense to that
Approved Seller's Trust Back Assets (whether consequential or
otherwise) resulting from doing or omitting to do any act or
thing in relation to those Trust Back Assets, except where such
loss is caused by the fraud, negligence or wilful default of
the Trustee.
(ii) Subject to sub-paragraphs (d)(iii) and (e)(ii), the Trustee is
not required to take any action in respect of any Trust Back
Assets.
(g) Indemnity in respect of Trust Back Assets
(i) Without limiting any indemnity to which the Trustee is
otherwise entitled and subject to paragraph (ii), each Approved
Seller unconditionally and irrevocably indemnifies the Trustee
against any liability, loss, cost or expense incurred by the
Trustee as a result of the Trustee complying with any
directions by that Approved Seller in accordance with this deed
in connection with any Trust Back for that Approved Seller
(including the transfer of the Trust Back Assets to the
Approved Seller under paragraph (j)). That Approved Seller must
pay or reimburse the Trustee on demand for all reasonable
expenses, including but not limited to stamp duties and taxes,
payable in connection with such indemnity.
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(ii) An Approved Seller's obligations under sub-paragraph (i) to
indemnify and reimburse the Trustee do not apply to the extent
that such liabilities or expenses arise as a result of the
fraud, negligence or wilful default of the Trustee.
(h) Conflicts or Inconsistencies
If there is at any time a conflict or inconsistency
between:
(i) any:
(A) directions given by an Approved Seller, as referred to in
paragraph (d); or
(B) duty owed by the Trustee to an Approved Seller by virtue
of the Trustee being the trustee of the Trust Back
(whether arising by operation of law, equity or
otherwise); and
(ii) the obligations and duties of the Trustee arising under or in
connection with the Transaction Documents (apart from this
clause) or the interests of Mortgagees (as defined in the
Security Trust Deed),
the Trustee:
(iii) must give priority to the obligations, duties and interests
referred to in paragraph (ii) over any direction or duty
referred to in paragraph (i); and
(iv) shall not, provided it acts in good faith and without fraud,
negligence or wilful default, incur any liability to the
relevant Approved Seller for so doing.
(i) Termination of Trust Back
A Trust Back shall terminate when the Trustee ceases to have any
right to, or interest in, the Trust Back Assets of that Trust Back.
(j) Transfer of Trust Back
(i) Where the Trustee holds Trust Back Assets as trustee of a Trust
(the First Trust), and any of those Trust Back Assets are
transferred to another Trust (the Second Trust), then
automatically and without any further act or instrument being
done or brought into existence:
(A) the Trustee, as trustee of the Second Trust, will hold
all its right, title and interest in the Trust Back
Assets so transferred on bare trust for the relevant
Approval Seller in accordance with this clause 8.4; and
(B) the Trustee, as trustee of the First Trust, will cease to
hold any interest in the Trust Back Assets so transferred
on the Trust Back in relation to the First Trust.
(ii) The Trust Manager will notify each Approved Seller of any
transfer by that Trust of any Receivable for which that
Approved Seller is the registered mortgagee, except where the
relevant transferee is the Trustee as trustee of another Trust.
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(k) Additional financial accommodation
Notwithstanding any other provision of this deed, an Approved Seller
may provide further financial accommodation to an Obligor on the
security of a Purchased Receivable Security after that Purchased
Receivable Security has been assigned in equity to a Trust. The
Definition of Other Secured Liability includes such further financial
accommodation (except to the extent that the financial accommodation
relates to a Receivable which is an Asset of the relevant Trust at
the time the financial accommodation was provided).
(l) Caveat
(i) If the Trustee perfects title to any Receivable Security under
this clause 8.4:
(A) the Trustee shall notify the Security Trustee of the
Receivable Securities which are affected by a Trust Back;
and
(B) neither the Trustee nor the Security Trustee shall
dispose of or create any interest in that Receivable
Security unless the person receiving that Receivable
Security or that interest is first notified of the
relevant Trust Back.
(ii) If an Approved Seller reasonably believes that the Trustee or
the Security Trustee intends to dispose of or create an
interest in a Receivable Security which secures an Other
Secured Liability of that Approved Seller without notifying the
relevant third party acquirer of the relevant Trust Back under
paragraph (i), that Approved Seller may lodge a caveat to
protect its interest in the relevant Trust Back Assets.
8.5 Conditions Precedent to Purchase
(a) General
The right of an Approved Seller (other than the Trustee as trustee of
a Trust) to give a Sale Notice under clause 8.3 shall be subject to
the Trustee having received in form and substance satisfactory to the
Trustee on or before the date such offer is given:
(i) (verification certificate) except where the Approved Seller is
a Trust, a certificate in relation to the Approved Seller given
by an Authorised Signatory of the Approved Seller substantially
in the form of schedule 6 with the attachments referred to and
dated as at the date of the Sale Notice;
(ii) (Investment Direction) the Trust Manager having delivered to
the Trustee as the case may be:
(a) a Note Issue Direction and executed Series Notice under
clause 13 in relation to the issue of the relevant Notes;
or
(b) a Warehouse Trust Direction and Series Notice under
clause 7 in relation to a drawing under the relevant
Warehouse Facility Agreement; and
(iii) (other conditions) any other condition precedent specified in
the relevant Series Notice.
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(b) Further conditions precedent
The rights of an Approved Seller (other than the Trustee as trustee
of a Trust) to give a Sale Notice shall be subject to the further
conditions precedent that on the date of giving a Sale Notice the
following statements shall be true (and the Approved Seller, other
than the Trustee, shall, by virtue of giving that Sale Notice be
deemed to have certified that):
(i) (representations true) the representations and warranties in
clause 8.6 are true as of such day as though they had been made
at that date in respect of the facts and circumstances then
subsisting;
(ii) (no default) no Title Perfection Event has occurred and is
subsisting or would result from the acceptance of a Sale
Notice.
8.6 Representations and warranties of Approved Seller
Each Approved Seller (other than the Trustee as trustee of a Trust)
makes the following representations and warranties.
(a) (i) (Status) It is a corporation validly existing under the laws of
the place of its incorporation specified in this Deed or the
relevant Seller Accession Certificate.
(ii) (Power) It has the power to enter into and perform its
obligations under the Transaction Documents to which it is
expressed to be a party and to carry out the transactions
contemplated by those documents.
(iii) (Corporate authorisations) It has taken on a timely basis all
necessary corporate action to authorise the entry into and
performance of the Transaction Documents to which it is
expressed to be a party and to carry out the transactions
contemplated by those documents.
(iv) (Documents binding) Each Transaction Document to which it is
expressed to be a party is its valid and binding obligation
enforceable in accordance with its terms, except to the extent
it is affected by laws relating to liquidation or doctrines of
equity.
(v) (Transactions permitted) The execution and performance by it of
the Transaction Documents to which it is expressed to be a
party and each transaction contemplated under those documents
did not and will not (as applicable) violate in any respect a
provision of:
(A) a law or treaty or a judgment, ruling, order or decree of
a Governmental Agency binding on it; or
(B) its constituent documents.
(vi) (Authorisations) Each Authorisation which is required in
relation to:
(A) the execution, delivery and performance by it of
Transaction Documents to which it is expressed to be a
party and the transactions contemplated by those
documents;
(B) the validity and enforceability of Transaction Documents
to which it is expressed to be a party; and
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(C) the perfection of the interest of the Trustee in the
Purchased Receivables and related Receivable Rights (not
including such Authorisations, (if any) pertaining solely
to acts of the Trustee),
has been obtained or effected. Each is in full force and
effect. It has complied with each of them. It has paid all
applicable fees for each of them.
(vi) (Series Notice) Any representations and warranties required to
be made by the Approved Seller as set out in the relevant
Series Notice.
(b) Time at which representations and warranties made
The representations and warranties in clause 8.6(a) are deemed to be
made by an Approved Seller, by reference to the facts and
circumstances then existing in relation to the relevant Trust, on
each of the dates on which a Sale Notice is given and on the Closing
Date specified in that Sale Notice (unless otherwise specified in the
representation or warranty).
(c) Reliance on representations and Warranties
Each Approved Seller acknowledges that the Trustee may accept an
offer in accordance with clause 8.3 and, if an offer is accepted,
will pay the Purchase Price in reliance on the representations and
warranties in clause 8.6(a).
(d) Breach of representations and warranties
(i) (Duty to give notice) For the purposes of sub-paragraph (ii)
(and without affecting the Trustee's right to damages), if an
Approved Seller, the Trust Manager or the Trustee becomes aware
that a representation or warranty in relation to any Purchased
Receivable or other Receivable Rights is incorrect (including,
without limitation, relating to whether a Purchased Receivable
is an Eligible Receivable) otherwise than as a result of
receiving notice from the other, it must notify the other
parties and the Designated Rating Agency, within 5 Business
Days of it becoming so aware.
(ii) (Offer and acceptance)
If:
(A) such a representation and warranty is incorrect;
(B) the Approved Seller gives or receives a notice under
paragraph (d)(i) not later than 5 Business Days before
120 days after the relevant Closing Date; and
(C) the Trustee does not waive that breach, or the Approved
Seller does not remedy the breach to the satisfaction of
the Trustee, within the period of 5 Business Days
referred to above, or such longer time as the Trustee in
its absolute discretion permits,
then, without any action being required by
either party:
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(D) the Approved Seller shall be taken to have offered to
repurchase the relevant Purchased Receivables and related
Receivable Rights:
(1) where it gives a notice under subparagraph (B) on
the date which is the earlier of the date specified
in that notice and 10 Business Days after that
notice is given; or
(2) otherwise, on the date which is 10 Business Days
after the notice it receives or should have given
(as the case may be) under paragraph (d)(i),
(in either case, the Repurchase Date) for an amount equal
to its Unpaid Balance;
(E) the Trustee, by not waiving the breach or agreeing to a
longer time as referred to in paragraph (C) above, shall
be taken to have accepted that offer;
(F) the Trustee shall be entitled to:
(1) all Collections received in relation to the
relevant Purchased Receivable and the related
Receivable Rights on and from the Closing Date to
(but excluding) the Repurchase Date; and
(2) the Unpaid Balance of the relevant Purchased
Receivable as at the Repurchase Date; and
(G) the Approved Seller shall pay to the Trustee the Unpaid
Balance as at the Repurchase Date of that Receivable
within 5 Business Days of the Repurchase Date, together
with any relevant break costs for which the Approved
Seller is liable in relation to the prepayment of any
Hedge Agreement for the relevant Trust.
(iii) (Effect of repurchase) On payment of the amount under paragraph
(d)(ii)(G):
(A) the Trustee shall cease to have any interest in the
relevant Purchased Receivables and related Receivable
Rights; and
(B) the Approved Seller shall hold both the legal and
beneficial interest in those Receivables and Receivable
Rights and be entitled to all interest and fees that
accrue in respect of them from (and including) the
Repurchase Date; and
(C) no rights or interest under or in respect of those
Receivables or Receivable Rights shall form part of the
relevant Trust Back Assets.
(iv) (Other breach) Except where paragraph (ii) applies, the
Trustee's rights in relation to a breach of a representation or
warranty shall give rise only to a claim for damages.
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(v) (Limit on damages) Subject to clause 8.12, the maximum amount
that an Approved Seller may become obliged to pay to the
Trustee in relation to the breach of any representation or
warranty relating to a Purchased Receivable, a Purchased
Receivable Security or other Receivable Rights is an amount
equal to the Unpaid Balance of that Receivable at the time the
Approved Seller pays the damages.
(vi) (Conditions precedent to damages) No Approved Seller shall be
obliged to pay any damages for a breach of representation or
warranty under any Transaction Document, or any indemnity in
relation to such breach, unless:
(A) the Trustee first establishes that there has been a
breach that has caused loss;
(B) the damages or indemnity claimed represent no more than
the loss incurred as a result of the breach;
(C) the Trustee first gives the Approved Seller a written
notice specifying:
(1) the quantum of the claim; and
(2) the basis of the claim.
(vii) (Payment) Where an Approved Seller is liable to pay damages
under this clause, it shall make such payment within 14
Business Days of receipt by the Approved Seller of a notice
that complies with paragraph (vi).
8.7 Undertakings
(a) Approved Seller Undertakings
Each Approved Seller undertakes to the Trustee as follows in relation
to the relevant Trust and Portfolio of Receivables:
(i) (comply with Series Notice) it will comply with its obligations
under the relevant Series Notice; and
(ii) (comply with Servicing Agreement) it will comply with its
obligations under the Servicing Agreement.
(b) Term of Undertaking
Each undertaking in this clause continues from the date of this deed
until the date following the Sale Termination Date when the Trustee
ceases to have any interest in the Purchased Receivables or related
Receivable Rights or until the Trustee's interest in the Purchased
Receivables or related Receivable Rights is perfected.
8.8 Priority
(a) Priority
Notwithstanding:
(i) anything contained in any Purchased Receivables or the related
Receivable Rights (including any Related Securities);
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(ii) the terms of a Receivable or any Other Secured Liability;
(iii) the respective dates on which anything is done or omitted to be
done under or in relation to a Receivable Security or the
moneys secured by that Receivable Security; or
(iv) any rule of law or equity to the contrary,
all moneys received by an Approved Seller, a Servicer, the Trust
Manager or the Trustee or any receiver, receiver and manager or
attorney under or in relation to a Purchased Receivable, a Purchased
Receivable Security or any Other Secured Liability as the result of
the enforcement of a Purchased Receivable or a Purchased Receivable
Security shall be applied in the following order of priority
(A) First, subject to paragraph (b):
(1) all costs, charges and expenses of the relevant
mortgagee or any receiver, receiver and manager or
attorney incurred in or incidental to the exercise
or performance or attempted exercise or performance
of any right, power or remedy in relation to the
Receivable Security;
(2) all outgoings in relation to the Receivable
Security which the mortgagee or any receiver,
receiver and manager or attorney thinks fit to pay;
and
(3) the remuneration of any receiver or receiver and
manager.
(B) Second, in satisfaction of amounts owing under the
Receivable or any other Receivable Rights secured by that
Purchased Receivable Security.
(C) Third, the Other Secured Liability for all moneys now or
in the future secured by the Purchased Receivable
Security that relate to that Other Secured Liability.
(b) Enforcement Expenses
(i) Where, and to the extent that, the costs, charges, expenses,
outgoings and remuneration referred to in sub-paragraphs
(A)(1)-(3) of paragraph (a) (Enforcement Expenses) are covered
by a Mortgage Insurance Policy, they shall be treated as a
first priority payment under sub-paragraph (a)(A).
(ii) Where, and to the extent that, the Enforcement Expenses are not
covered by a Mortgage Insurance Policy, then subject to the
terms of the relevant Purchased Receivable, Purchased
Receivable Security or Related Security:
(A) if they arise because the enforcement arose from default
under an Other Secured Liability, they shall be treated
as a third priority payment under sub-paragraph (a)(C);
and
(B) otherwise, they shall be treated as a first priority
payment under sub-paragraph (a)(A).
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(c) Continuing balance
This clause 8.8 applies to a continuing balance and any present or
future moneys secured by a Receivable Security notwithstanding any
subsequent repayment, advance or provision of accommodation or other
increase or decrease in the amount secured.
8.9 Title Perfection Event; Termination; Repurchase
(a) Title Perfection Event
Unless otherwise provided in the relevant Series Notice, each of the
following is a Title Perfection Event in relation to a Portfolio of
Receivables and the relevant Approved Seller:
(i) (downgrade) where the Portfolio of Receivables is held subject
to a Rated Trust the Approved Seller ceases to have a long term
credit rating of at least:
(A) BBB from S&P (if S&P has rated that Trust or Notes issued
by the Trustee as trustee of that Trust);
(B) Baa2 from ▇▇▇▇▇'▇ (if ▇▇▇▇▇'▇ has rated that Trust or
Notes issued by the Trustee as trustee of that Trust);
(C) its equivalent from any other Designated Rating Agency
which has rates that Trust or Notes issued by the Trustee
as trustee of that Trust; and
(ii) (Insolvency Event) an Insolvency Event occurs with respect to
the Approved Seller.
(b) Remedies
(i) On the occurrence of a Title Perfection Event, the Trustee and
the Trust Manager must take all reasonable steps to perfect the
Trustee's title in and to the relevant Purchased Receivables
and related Receivable Rights, and may:
(A) by notice to the Approved Seller terminate the rights and
obligations as between the Trustee and the Approved
Seller in relation to the relevant Purchase Receivable;
(B) complete, execute and register on behalf of the Approved
Seller any relevant Transfer of Receivable Security;
(C) give notice of any sale of the relevant Receivable Rights
under any relevant Future Agreement to the relevant
Obligors;
(D) give notice of the perfection of its title in the
Purchased Receivables and related Receivable Rights to
any other interested person, including the insurers under
the relevant Mortgage Insurance Policies; and/or
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(E) do anything else reasonably necessary to perfect its
interest in the relevant Purchased Receivables and
related Receivable Rights, including without limitation,
registering Transfers of Receivable Securities or
caveats.
Except as otherwise provided in the relevant Servicing
Agreement, the Trustee shall not take any such action until the
occurrence of a Title Perfection Event.
(ii) The relevant Approved Seller agrees that on being directed to
do so by the Trustee following a Title Perfection Event, it
will promptly (and in any event within 10 Business Days or such
longer period as the Trustee permits) take all action to
perfect the Trustee's legal title to the Purchased Receivables
and the related Receivable Rights by:
(A) giving written notice of the Trustee's interest to any
Obligor;
(B) registering any relevant Transfer of Receivable Security;
(C) taking any other action required or permitted by law to
perfect such legal title; and
(D) delivering all Relevant Documents relating to the
relevant Portfolio of Receivables to the Trustee.
(c) First Right of Refusal
(i) As soon as practical after the Termination Date of the Trust,
the Trust Manager directs the Trustee to offer (by written
notice to the Approved Seller) irrevocably to extinguish in
favour of the Approved Seller, or if the Trustee has perfected
its title, to assign to the Approved Seller, its entire right,
title and interest in and to the Purchased Receivables, and
related Receivable Rights (if any) in consideration of the
payment to the Trustee by the Approved Seller in relation to
the Trust of:
(A) in the case of performing Purchased Receivables, the
Unpaid Balance of the relevant Purchased Receivables; and
(B) in the case of non-performing Purchased Receivables,
their Fair Market Value.
In each case, the Servicer is to determine whether a Receivable
is performing or non-performing.
(ii) The Approved Seller cannot accept the offer if the Fair Market
Value of relevant Purchased Receivables is less than the Unpaid
Balance without the approval of an Extraordinary Resolution.
Any purported acceptance without that approval will be
ineffective.
(iii) During the 180 day period after the Termination Date of a
Trust, the Trustee must not sell any Receivables and the
related Receivable Rights for an amount less than:
(A) in the case of performing Receivables, their Unpaid
Balance; or
(B) in the case of non-performing Receivables, their Fair
Market Value.
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(iv) The Approved Seller may accept or reject that offer in its
discretion.
(v) The Trustee will not sell or deal with the relevant Purchased
Receivables and related Receivable Rights except in accordance
with paragraph (c)(i) unless the Approved Seller has failed to
accept the offer referred to in paragraph (c)(i) within 180
days after the occurrence of the Sale Termination Date by
paying to the Trustee, within 180 days, the purchase price
referred to in paragraph (c)(i) for all of those Purchased
Receivables and related Receivable Rights.
(d) Clean Up Offer
(i) A Series Notice for a Trust may provide that the Trust Manager
may, in certain circumstances, direct a Warehouse Trust to
purchase Receivables or Receivable Securities held by another
Trust at a particular time. The parties will comply with that
Series Notice.
(ii) Unless otherwise provided in that Series Notice, the
consideration for the purchase in sub-paragraph will be:
(A) in the case of performing Purchased Receivables, the
Unpaid Balance of the relevant Purchased Receivables; and
(B) in the case of non-performing Receivables, their Fair
Market Value.
In each case, the Servicer is to determine whether a Receivable
is performing or non-performing.
(e) Costs of Repurchase; Indemnity
(i) The Approved Seller shall pay all costs and expenses (including
stamp duty) relating to the repurchase or extinguishment of its
relevant Purchased Receivables and related Receivable Rights
under clauses 8.6(d) and 8.9(c).
(ii) Without limiting any indemnity to which the Trustee is
otherwise entitled, each Approved Seller unconditionally and
irrevocably indemnifies the Trustee against any liability,
loss, cost or expense incurred by the Trustee as a result of a
Title Perfection Event relating to that Approved Seller. That
Approved Seller must pay or reimburse the Trustee on demand for
all reasonable expenses, including but not limited to stamp
duties and taxes, payable in connection with such indemnity.
8.10 Subsequent adjustment
(a) Where Receivables in a Portfolio of Receivables have been acquired
from an Approved Seller:
(i) (interest) where so specified in the relevant Series Notice or
Sale Notice, the Trust Manager shall direct the Trustee after a
Note Issue Date for a Trust to debit any interest or fees
received by the Trustee in respect of a Receivable referred to
in the corresponding Note Issue Direction, with an amount that
represents accrued but unpaid interest on the Receivable up to
the date specified for that purpose in the Series Notice, and
to credit that amount to the relevant Approved Seller;
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(ii) (repaid principal) where so specified in the relevant Series
Notice or Sale Notice, after the Note Issue Date the relevant
Approved Seller will as soon as possible (but by close of
business on the first Determination Date) pay to the Trustee,
as an adjustment to the amount paid by the Trustee under clause
13.8(e), an amount equal to the amount of any principal
received by the Approved Seller on or after the date specified
for that purpose in the Sales Notice in respect of any
Receivables referred to in the corresponding Note Issue
Direction;
(b) (other costs) subject to clause 8.10(a), the Trust Manager may in its
absolute discretion direct the Trustee on or at any time after a Note
Issue Date for a Trust to debit or credit the corresponding Trust
with such other amounts that the Trust Manager believes are
appropriate so that the Approved Seller has the benefit of any
receipts, and bears the cost of any outgoings, in respect of each
Receivable referred to in the corresponding Note Issue Direction (and
any corresponding Receivables, Receivable Security, Related
Securities and Support Facilities) up to (but not including) the Note
Issue Date and so that the relevant Trust has the benefit of such
receipts, and bears such costs, from (and including) the Note Issue
Date; and
(c) (Trustee to act in accordance with direction) the Trustee or the
Approved Seller (as the case may be) shall act in accordance with,
and may rely on, a direction of the Trust Manager in accordance with
this clause 8.10.
8.11 Substitution
If:
(a) an Obligor under a Purchased Receivable is, in accordance with the
relevant Approved Seller's ordinary course of business, entitled to
replace the related Receivable Security, or a Security Interest which
is a Related Security, with another security securing the same
Receivable;
(b) the representations and warranties of the Approved Seller in clause
8.6(a) and in the relevant Series Notice would be true and correct in
relation to the Receivable and the new Security Interest at the time
of substitution as if it was specified as a Purchased Receivable in
the Sale Notice; and
(c) without limitation, in relation to Land, the new security would be
subject to a Mortgage Insurance Policy under which the Trustee would
be the insured;
then:
(i) the Approved Seller may discharge the related Receivable Security, or
the relevant Related Security, on the giving of the new security;
(ii) the new security shall be taken to be a Purchased Receivable Security
or a Related Security in relation to the relevant Trust, as the case
may be, for the purposes of each Transaction Document and it and the
related Receivable Rights shall be Assets of the relevant Trust; and
(iii) the Approved Seller shall do anything else reasonably necessary to
assure to the Trustee its interest in that new security.
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8.12 Indemnification
(i) Without limiting any other rights which the Trustee may have under
any Transaction Document or under applicable law, each Approved
Seller agrees to indemnify the Trustee from and against any and all
damages, losses, claims, liabilities and related costs and expenses
including legal costs and expenses on a full indemnity basis the
Trustee may sustain or incur as a direct or indirect consequence of:
(A) the breach of any representation or warranty or undertaking
made by that Approved Seller under or in connection with any
Transaction Document, or any other information or report
delivered by that Approved Seller under any Transaction
Document, being false or incorrect in any respect when made or
deemed made or delivered;
(B) the failure by that Approved Seller (whether before or after
the relevant Closing Date) to comply with any applicable law,
rule or regulation with respect to any Receivable Security,
including without limitation the nonconformity of any
Receivable Security or the Related Receivable with any such
applicable law, rule or regulation; and
(C) any dispute, claim, offset or defence of the Obligor to the
payment of any Purchased Receivable Security which results from
a breach by the Approved Seller under any Transaction Document.
To the extent that the matters referred to in paragraph (i) are
covered by clause 8.6(d), clause 8.6(d) shall apply.
(ii) An Approved Seller shall not be obliged to pay any indemnity for a
breach of representation or warranty under any Transaction Document,
unless:
(A) the Trustee first establishes that there has been a breach that
has caused loss;
(B) the indemnity claimed represents no more than the loss incurred
as a result of the breach; and
(C) the Trustee first gives the Approved Seller a written notice
specifying:
(1) the quantum of the claim; and
(2) the basis of the claim.
(iii) (Payment) Where an Approved Seller is liable to pay damages under
this clause, it shall make such payment within 5 Business Days of
receipt by the Approved Seller of a notice that complies with
paragraph (ii).
8.13 Power of Attorney
(a) The Trustee shall ensure that each power of attorney given by an
Approved Seller to the Trustee under or in relation to this deed
shall be exercised only strictly in accordance with its terms.
(b) The Trustee shall:
(i) register each such power of attorney with the land titles
office of each relevant jurisdiction; and
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(ii) keep each such power of attorney in a secure place.
9. ACQUISITION FROM WAREHOUSE TRUST BY ANOTHER TRUST
9.1 Direction
(a) Where:
(i) a Note Issue Direction directs that the Trustee issues Notes;
or
(ii) a Warehouse Trust Direction directs that the Trustee draws any
amount under the relevant Warehouse Facility Agreement,
to fund the acquisition of Receivables by a Trust from a Warehouse
Trust, and the Trustee implements that direction, the Trustee shall
use the proceeds of the relevant issue of Notes or drawing under the
Warehouse Facility Agreement (as the case may be) for the purpose of
that acquisition.
(b) The Trustee has power, as the trustee of a Warehouse Trust, to
dispose of Receivables to another Trust in accordance with Series
Notices relating to that Warehouse Trust and that other Trust, and
subject to other relevant Transaction Documents.
9.2 Implementation of acquisition
An acquisition of Receivables contemplated by clause 9.1 shall take effect
in accordance with clause 7.7.
9.3 Survival of rights and remedies
Where there exists any right or obligation of the Trustee in relation to
Receivables to be acquired from a Warehouse Trust, including any:
(a) Trust Back in relation to the Receivables;
(b) Approved Seller repurchase obligation under 8.6(d);
(c) Approved Seller representations or undertakings under 8.6(a); or
(d) limitation as to priority of payments on enforcement of the
Receivables,
the Trustee (in its capacity as Trustee of the Trust acquiring the
Receivables (the New Trust)), will acquire those Receivables with the
benefit of those rights and subject to those obligations.
Where any rights or obligations of the Trustee in relation to the
Receivables cannot be transferred to the Trustee in its capacity as trustee
of the New Trust, clauses 7.7(d), 7.7(e) and 7.7(g) will apply.
9.4 Acknowledgement by Approved Seller
Each Approved Seller which disposes of Receivables to a Warehouse Trust
acknowledges and agrees that those Receivables acquired from it by the
Trustee as trustee of a Warehouse Trust may be disposed of by the Trustee
to another Trust.
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PART D - NOTES
10. NOTES
10.1 Acknowledgement of indebtedness
Subject to the terms of this deed and the relevant Series Notice, each
entry in the Register for a Trust in respect of a Note relating to that
Trust constitutes an independent and separate acknowledgement to the
relevant Noteholder by the Trustee of its indebtedness as trustee of that
Trust for the Invested Amount of that Note.
10.2 Legal nature of Notes
The Trustee may issue Notes of such legal nature as the Trust Manager and
the Trustee may agree. Unless otherwise agreed, the Notes will be in the
form of inscribed stock, and the Trustee's obligations in relation to the
Notes and under this deed in respect of those Notes (including any
obligation to pay interest or principal) will become effective on
inscription in the Register for that Trust under this deed of the details
for those Notes.
10.3 Terms of Notes
All Notes issued by the Trustee as trustee of a Trust shall be issued with
the benefit of, and subject to, this deed, the Series Notice relating to
those Notes and the Security Trust Deed (if any) relating to that Trust.
The Series Notice in relation to Notes shall be binding on the Trust
Manager, the Trustee and the corresponding Noteholders.
10.4 Interest and Principal Entitlement of Noteholders
Subject to this deed, the corresponding Series Notice and the Security
Trust Deed (if any) relating to a Trust (and, in particular, subject to any
such provisions which provide for principal losses to be charged off
against any Notes), the Trustee as trustee of each Trust shall in respect
of the Notes issued by it in such capacity pay or cause to be paid to the
Noteholders of those Notes:
(a) (interest) their Coupon on each Coupon Payment Date; and
(b) (principal) their Principal Entitlement on each Principal Repayment
Date.
10.5 Minimum denomination of Notes
The minimum denomination of each Note shall be $10,000 (or, in the case of
Notes held by joint holders, $10,000 multiplied by the number of holders of
that Note) or such other amount specified in the corresponding Series
Notice.
10.6 Notes not invalid if issued in breach
No Note shall be invalid or unenforceable on the ground that it was issued
in breach of this deed or any other Transaction Document.
10.7 Location of Notes
The property in Notes shall for all purposes be regarded as situated at the
place where the relevant Register is located on which such Notes are
recorded.
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10.8 No discrimination between Noteholders
There shall not be any discrimination or preference between Notes within
the same Class, or the corresponding Noteholders, in relation to a Trust by
reason of the time of issue of Notes or for any other reason, subject only
to the Series Notice relating to the Notes and the terms of the Security
Trust Deed (if any) relating to the Trust.
11.1 SELLER NOTE
11.2 Seller Note
Where a Series Notice so provides, the Trustee may issue a debt instrument
(the Seller Note) to the relevant Approved Seller with respect to any
ongoing obligations of the Approved Seller with respect to Purchased
Receivables acquired from the Approved Seller by the Trustee.
11.3 Form
The Seller Note:
(a) may be issued in any form and on any terms agreed by the Trustee, the
Approved Seller and the Trust Manager; and
(b) may relate to any current or future obligations of the Approved
Seller, actual or contingent, and whether or not quantifiable at the
date of issue of the Seller Note.
12.1 LIMITS ON RIGHTS OF NOTEHOLDERS AND BENEFICIARY
12.2 General Limits
No Noteholder or Beneficiary shall be entitled to:
(a) (particular interest) an interest in any particular part of any Trust
or Asset comprised in any Trust;
(b) (require transfer) subject (in the case of the Beneficiary) to this
deed, require the transfer to it of any Asset comprised in any Trust;
(c) (interfere in management) interfere with or question the exercise or
non-exercise of the rights or powers of a Servicer, the Trust Manager
or the Trustee in their dealings with any Trust or any Asset;
(d) (exercise rights in respect of Assets) exercise any rights, powers or
privileges in respect of any Asset in any Trust;
(e) (act in Trustee's place) attend meetings or take part in or consent
to any action concerning any property or corporation which the
Trustee as trustee of a Trust holds an interest;
(f) (terminate Trusts) seek to wind up or terminate any Trust (except as
provided in clause 17);
(g) (remove) seek to remove the relevant then Servicer, Trust Manager or
Trustee;
(h) (interfere) interfere in any way with any Trust;
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(i) (lodge caveats etc) lodge or enter a caveat or similar instrument in
relation to a Register or claim any estate or interest in any Land
over which a Mortgage or any Related Securities are held or to which
any other Asset relates in respect of any Trust;
(j) (communicate with Mortgagors etc) except where the Noteholder or
Beneficiary is Westpac, or the Trustee has otherwise consented, and
subject to any provision of a Transaction Document which allows any
such communication, negotiate or communicate in any way with any
Mortgagor, or Obligor or other security provider in respect of any
Mortgage, Loan, other Receivable, Receivable Security or Related
Security or with any person providing a Support Facility to the
Trustee or any other person who is party to any Transaction Document;
(k) (take proceedings) take any proceedings of any nature whatsoever in
any court or otherwise or to obtain any remedy of any nature
(including against the Trustee, the Trust Manager or a Servicer or
any former Trustee, Trust Manager or Servicer or in respect of any
Trust or any Asset of any Trust) (unless, in the case of a Warehouse
Trust, the Noteholder or Beneficiary is Westpac and the Trustee
consents to Westpac taking the proceedings) provided that it shall be
entitled to compel the Trustee, the Trust Manager and any Servicer to
comply with their respective duties and obligations under the
Transaction Documents and, if the Noteholders are entitled to the
benefit of any applicable Security Trust Deed, the Noteholders may
compel the Security Trustee to comply with its duties and obligations
under the Security Trust Deed; and
(l) (recourse to personal assets of Trustee or Trust Manager) any
recourse whatsoever to the Trustee or the Trust Manager in their
personal capacity, except to the extent of any fraud, negligence,
wilful default, breach of trust (in the case of the Trustee only) or
breach of duty on the part of the Trustee or the Trust Manager
respectively.
12.2 Interests of Beneficiary assignable
Subject to the relevant Series Notice a Beneficiary may assign, or create
or allow to exist a Security Interest over, its rights and interests in
respect of a Trust without the prior written consent of any person.
12.3 Ranking of interest of Beneficiary
The rights, claims and interest of a Beneficiary in relation to any Trust,
the Assets of any Trust and in relation to any payment or distribution out
of any Trust (including, without limitation, on the winding up of a Trust)
shall at all times rank after, and be subject to, the interests of
Noteholders under the Notes issued in relation to that Trust (including,
without limitation, in relation to any payment obligations on the Notes).
12.4 Further limit on interest of Noteholders
A Noteholder in relation to a Trust shall only be a creditor of the Trustee
in its capacity as trustee of that Trust to the extent of the Notes held by
that Noteholder (or, in the case of a Warehouse Facility Provider, their
rights under the relevant Warehouse Facility Agreement) and shall not be
entitled to any beneficial or, subject to any applicable Security Trust
Deed, other interest in any Trust.
12.5 No liability of Noteholders or Beneficiary
No Noteholder by reason of being a Noteholder, or Beneficiary by reason of
being a Beneficiary, shall in respect of a Trust:
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(a) (liability) have any liability to make any contribution to the Assets
of the Trust or any payment to the Trustee, the Trust Manager or any
other person in relation to the Trust; and
(b) (indemnity) be under any obligation to indemnify the Trustee, the
Trust Manager or any Creditor of the Trustee as trustee of the Trust
in respect of any of the liabilities (actual, contingent or otherwise
and whether due to any deficiency or not) of the Trustee or the Trust
Manager in relation to, arising from or in connection with the Assets
of the Trust or the Trust generally.
13. PROCEDURE FOR ISSUE OF NOTES
13.1 Note Issue Direction for a Trust
(a) (Delivery of direction) If the Trust Manager proposes that the
Trustee will issue Notes as trustee of a Trust, it shall, at least 3
Business Days (or such other period agreed by the Trustee or as
specified in a relevant Series Notice) prior to the proposed Note
Issue Date, deliver to the Trustee a Note Issue Direction directing
amongst other things that the Trustee (subject to this deed and the
relevant Series Notice):
(i) (transfer benefit of Mortgages) hold as trustee of the Trust
the benefit of the Portfolio of Receivables specified by the
Trust Manager in the Note Issue Direction; and
(ii) (issue Notes) issue as trustee of the Trust the Notes specified
by the Trust Manager in the Note Issue Direction.
(b) (Conditions precedent to first direction) The right of the Trust
Manager to give a Note Issue Direction for any Trust is subject to
the Trustee receiving in form and substance satisfactory to it:
(i) in relation to the first Note Issue Direction for that Trust, a
certificate in relation to the relevant Servicer, the Trust
Manager and (if any) the relevant Approved Seller (except where
the Approved Seller is a Trust) given by a director or
secretary of that company substantially in the form of Schedule
6 with the attachments referred to in that certificate;
(ii) in relation to the first Note Issue Direction for that Trust,
unless the Trustee already holds a copy as trustee of another
Trust a duly executed and stamped counterpart of this deed;
(iii) in relation to the first Note Issue Direction for that Trust, a
legal opinion on this deed, or the Trustee being satisfied that
it will receive that legal opinion on or before the first
proposed Note Issue Date; and
(iv) any other document or condition specified in the relevant
Series Notice.
13.2 Requirements for a Note Issue Direction
A Note Issue Direction given by the Trust Manager to the Trustee in respect
of a Trust under this deed shall (whether in that Note Issue Direction, or
in the accompanying Series Notice):
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(a) (contain the following information) specify the following in respect
of the Notes:
(i) (classes) whether any of the Notes will constitute a Class
separate from any other Notes previously issued by the Trustee
as trustee of the Trust or from any other Notes referred to in
the Note Issue Direction;
(ii) (name) the name of the Notes or, if the Notes are divided into
more than one Class, the name of each Class of Notes;
(iii) (amount) the total number of Notes and, if the Notes are
divided into more than one Class, the number of Notes in each
Class;
(iv) (principal amount) the total principal amount of the Notes
and, if the Notes are divided into more than one Class, the
principal amount of each Class;
(v) (minimum subscription) the minimum subscription amounts for
Notes (if any);
(vi) (issue price) where the Notes are to be issued at a discount
or a premium to the face value, the issue price of the Notes;
(vii) (Note Issue Date) the proposed Note Issue Date;
(viii) (Security Trust Deed and Support Facilities) whether a
Security Trust Deed or any Support Facilities need to be
effected in relation to the proposed Note Issue Date and, if
so, reasonable details of these;
(ix) (Receivables) all relevant details (including where relevant
the nature, principal amount and rate of return) of
Receivables held or to be held under the Trust to which the
Trust to which the Note Issue Direction relates;
(x) (Seller) where relevant, the identity and details of the
relevant Approved Seller or Warehouse Trust from which the
Receivables are to be acquired;
(xi) (Lead Manager) if there is to be a Lead Manager in relation to
the issue of the Notes, the identity and address of that Lead
Manager and any fees to which the Lead Manager is entitled in
relation to the issue;
(xii) (Dealer Agreement if a Dealer Agreement is to be effected in
relation to the proposed Note Issue Date, reasonable details
of that agreement (including the parties to that agreement and
the amount of their proposed subscriptions);
(xiii) (such other required information) such other information
required by the Note Issue Direction or the relevant Series
Notice; and
(b) (duly completed) without limiting paragraph (a), be otherwise duly
completed; and
(c) (accompanied by a Series Notice) be accompanied by a duly completed
and executed Series Notice for the Notes, or if the Notes are divided
into more than one Class and the Trust Manager elects to have a
separate Series Notice for each Class, a duly completed Series Notice
for each Class. However, if the terms of a Series Notice for the
Notes, or a particular Class of the Notes, are the same as for a
previous issue of Notes or a Class of Notes in respect of the Trust,
or if the Notes
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are contemplated by or issued under a previous Series Notice, this
requirement may be satisfied if the Note Issue Direction specifies
that this is the case and is accompanied by the relevant previous
Series Notice.
13.3 Series Notice
(a) (Mandatory Information) A Series Notice shall specify the following
in respect of the Notes to which it refers or if it relates to more
than one Class of Notes for each Class to which it refers:
(i) (Coupon Payment Dates) each date (if any) for the payment of
interest under the Notes;
(ii) (Principal Repayment Dates) each date for the repayment of
part or all of the outstanding principal under the Notes;
(iii) (rate of interest) the rate of interest (if any) on the Notes
(which may be fixed, variable, calculated by way of discount
on the issue price or determined by a stated method) and the
method for calculating the interest;
(iv) (repayment of principal) where principal on the Notes is to
amortise, the amount (or the method of calculating the amount)
of principal to be repaid on the Notes on each Principal
Repayment Date;
(v) (Class rights) if the corresponding Note Issue Direction
specifies that the Notes are to constitute a Class separate
from any other Notes previously issued by the Trustee as
trustee of the relevant Trust or from any other Notes referred
to in the Note Issue Direction, the rights or restrictions
that constitute the first mentioned Notes as a separate Class
and the relationship of those rights and restrictions to any
other then or proposed Class of Notes;
(vi) (cashflow allocation methodology) the manner in which cashflow
from the Receivables (and any relevant Support Facilities)
will be applied by the Trustee, and in which any shortfalls in
income will be allocated among Notes and/or Classes of Notes;
(vii) (conversion rights) where the Notes may be converted into a
different Class of Notes, details of that conversion
(including when and in what manner it can occur); and
(viii) (fees) any relevant fee (for example, fees
to the Servicer) for the relevant Trust.
(b) (Optional information) A Series Notice may specify the following in
respect of the Notes or Classes of Notes to which it refers:
(i) (special rights) any preferred, deferred or special rights or
restrictions applying to the Notes whether with regard to the
payment of interest, the repayment of principal, voting, the
division into classes or otherwise, which may include, without
limitation, that the Notes are to be initially issued on a
partly paid basis or shall have an additional entitlement to
the principal or capital of the corresponding Trust beyond the
repayment in full of their Initial Invested Amount; and
(ii) (other information) any other terms or restrictions applying to
the Notes that may be included in the Series Notice.
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(c) (Inconsistency) If a term of a Series Notice is inconsistent with any
provision of this deed, the Series Notice shall prevail to the extent
of the inconsistency, with respect only to the Trust and Notes to
which that Series Notice relates.
(d) (Amendment) A Series Notice in relation to a Trust may expressly
amend any provision of this deed with respect to that Trust and the
relevant Notes. This deed and those Notes shall be construed
accordingly.
(e) (Execution) Once the Trustee, the Trust Manager, the relevant
Servicer, the provider of any relevant Support Facility and any
relevant Approved Seller have agreed to the terms of a Series Notice
they shall execute that Series Notice in the Australian Capital
Territory, on or before the date on which the Trust Manager proposes
to issue the relevant Investment Direction.
13.4 Amendment
The Trust Manager may (and where either the Trustee or the relevant
Beneficiary have acknowledged the Note Issue Direction in accordance with
clause 13.6(b), the Trustee and the Beneficiary), prior to a proposed Note
Issue Date amend a previously issued Note Issue Direction or Series Notice
(including any Note Issue Direction or Series Notice previously amended
under this clause). For the purposes of clause 13.13 only an amendment
shall be treated as creating a further issue of Notes. Such an amendment
for a Rated Trust shall only be made if prior notice of the amendment has
been given to the Designated Rating Agency.
13.5 Comply with Note Issue Direction
Subject to this clause 13, the Trustee may comply with a Note Issue
Direction.
13.6 Proviso on compliance with Note Issue Direction
(a) (Trustee shall not accept direction) The Trustee shall not comply
with a Note Issue Direction unless at least 3 Business Days (or such
other period agreed by the Trustee) prior to the proposed Note Issue
Date the Trust Manager has certified to the Trustee that the Note
Issue Direction and any corresponding Series Notice comply with this
deed.
(b) (Acknowledgement of direction) If the Trustee is satisfied that the
Note Issue Direction has been given in accordance with this deed and
has elected to accept the Note Issue Direction then it shall
immediately (and in no event later than the close of business 2
Business Days (or such other period agreed by the Trust Manager)
prior to the proposed Note Issue Date) sign the acknowledgement of
receipt on the Note Issue Direction and return it to the Trust
Manager. This acknowledgement will not of itself constitute a
declaration of trust and a trust will only arise in accordance with
clause 13.8(g).
13.7 Dealer Agreement
If a Series Notice so provides, the Trustee shall enter into a Dealer
Agreement in relation to the relevant Notes on such terms and conditions as
are reasonably required by the Trust Manager and the Trustee (subject to
this deed).
13.8 Issue of Notes and transfer of benefit of Mortgages
If the Trustee has:
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(a) (acknowledged the Note Issue Direction) acknowledged receipt of a
Note Issue Direction;
(b) (sufficient applications for Notes) received from the Lead Manager
(if any) or other intending Noteholders duly executed Applications
for Notes and the Trust Manager has confirmed that the Subscription
Amount for such Notes is not less than the amount specified in the
corresponding Note Issue Direction;
(c) (received or granted Support Facilities etc) on or prior to the
proposed Note Issue Date:
(i) (Security Trust Deed) entered into a Security Trust Deed as
trustee of the relevant Trust (unless not required for the
issue of the Notes by the Trust Manager in the corresponding
Note Issue Direction); and
(ii) (Support Facilities) obtained, or entered into arrangements to
obtain with effect from the corresponding Note Issue Date, as
trustee of the relevant Trust the benefit of the Support
Facilities referred to in the corresponding Note Issue
Direction,
and, to the extent required, received any legal opinions on those
documents reasonably requested by the Trustee; and
(d) (rating) if the Notes are to be rated, the Trust Manager has advised
the Trustee that it has received a provisional indication from the
Rating Agency that the Notes will have a rating equal to or higher
than the rating specified in the relevant Series Notice,
then, subject to the other requirements of this deed being satisfied in
relation to matters which must be done on or prior to the Note Issue Date,
the Trustee agrees with the Trust Manager (for the benefit solely of the
Trust Manager) that if, on the direction of the Trust Manager on the Note
Issue Date it issues Notes, as trustee of the relevant Trust, to the
intending Noteholders for the amount referred to in the corresponding Note
Issue Direction:
(e) (acquisition) where the relevant Receivables are to be acquired from
an Approved Seller:
(i) the Trustee will accept the relevant Sale Notice (but only if
the Trustee has issued the relevant Notes) and without any
obligation to the Approved Seller to do so; and
(ii) the Trustee agrees with the Trust Manager (for the benefit
solely of the Trust Manager) to pay to the Approved Seller from
the proceeds of the issue of the Notes the principal amounts of
the Receivables relating to the Portfolio of Receivables, or
such other consideration specified in relation to the Note
Issue Direction, as at the date specified in the corresponding
Note Issue Direction; or
(f) (origination) where the Trustee is to originate the relevant
Receivables, originate those Receivables (and any relevant Receivable
Securities) in accordance with the procedures agreed under clause 6.
13.9 Action following Note Issue
As soon as practicable after a Note Issue Date for a Trust:
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(a) (enter details in the Register) the Trustee shall enter into the
Register for that Trust in accordance with clause 16 the information
required under clause 16.1;
(b) (issue Note Acknowledgement) the Trustee shall issue a Note
Acknowledgement to each Noteholder in respect of its holding of
Notes; and
(c) (issue Marked Note Transfers) if requested by a Noteholder in its
Application for Notes, the Trustee shall issue a Marked Note Transfer
to the Noteholder.
13.10 No liability for insufficient moneys
If insufficient moneys are raised on a proposed Note Issue Date to satisfy
clause 13.8(b), neither the Trustee nor the Trust Manager shall have any
obligation or liability to any person (including, without limitation, each
other, any intending Noteholder or any Beneficiary) to issue the Notes or,
in the case of a proposed issue in relation to a Trust, to hold the benefit
of the Portfolio of Receivables referred to in the corresponding Note Issue
Direction for the Trust, or otherwise.
13.11 Further assurance
Subject to the Transaction Documents, the Trustee shall following a Note
Issue Date for a Trust execute such documentation and do all such other
acts, matters or things as the Trust Manager reasonably requires to
transfer the benefit of the Portfolio of Receivables referred to in the
corresponding Note Issue Direction (and the benefit of all corresponding
Loans, Related Securities and Support Facilities) to the Trust.
13.12 Further issues subject to Rating Agency approval
Where the Trustee as trustee of a Rated Trust has issued Notes, no further
Notes in respect of that Trust shall be created unless the Trustee receives
a certificate from each Designated Rating Agency in respect of the Notes
then on issue in respect of the Trust confirming the rating of those Notes.
13.13 Issue of unrated Notes
Nothing in this deed shall be construed as requiring the Trustee or the
Trust Manager to obtain a rating for Notes to be issued by the Trustee
(except where those Notes are to be issued by a Rated Trust).
13.14 No limit on Notes
Subject to the provisions of this deed, there shall be no limit on the
amount or value of Notes which may be issued in respect of a Trust.
13.15 Excluded issue, offer or invitation only
Notwithstanding anything contained in this deed, no issue or allotment of
Notes, offer of Notes for subscription or purchase or invitation to
subscribe for or buy Notes shall be made unless the issue, allotment, offer
or invitation is an excluded issue, excluded offer or excluded invitation
for the purposes of the Corporations Law.
14. TRANSFERS OF NOTES
14.1 No restrictions on transfer of Notes
Subject to this deed and the corresponding Series Notice, there shall be no
restriction on the transfer of Notes.
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14.2 Minimum transfer
(a) (Corporations Law) A Noteholder shall not be entitled to transfer any
of its Notes unless the offer or invitation to the transferee by the
Noteholder in relation to such Notes is an excluded offer or an
excluded invitation for the purposes of the Corporations Law.
(b) (Series Notice) Without limiting the generality of clause 14.1, or
the operation of clause 14.2(a), a Noteholder shall not be entitled
to transfer any of its Notes unless the amount payable by the
transferee is greater than the minimum amount (if any) provided in
the Series Notice for the Notes.
14.3 Form of transfer
Every transfer of Notes shall be effected by a Note Transfer.
14.4 Execution of Note Transfer
Every Note Transfer shall be duly completed and executed by the transferor
and transferee.
14.5 Stamping of Note Transfer
Every Note Transfer lodged with the Trustee shall be duly stamped (if
applicable).
14.6 Delivery of Note Transfer to Trustee
Every Note Transfer shall be delivered to the Trustee together with the
Note Acknowledgement to which it relates for registration.
14.7 Registration of Transferee as Noteholder
Subject to this clause 14 the Trustee shall on receipt of a Note Transfer
enter the transferee in the relevant Register as the holder of the Notes
which are the subject of the Note Transfer.
14.8 Trustee entitled to refuse to register Transfer
The Trustee may refuse to register any Note Transfer which would result in:
(a) (breach) a contravention of or failure to observe:
(i) (this deed) the terms of this deed;
(ii) (Series Notice) the Series Notice for the Notes;
(iii) (Security Trust Deed) the Security Trust Deed (if any) relating
to the Notes; or
(iv) (the Law) a law of an Australian Jurisdiction; or
(b) (requires registration) an obligation to procure registration of any
of the above with, or the approval of any of the above by, any
Government Agency.
14.9 Refusal to register absolute
The Trustee shall not be bound to give any reason for refusing to
register any Note Transfer and its decision shall be final,
conclusive and binding. If the Trustee refuses to register a Note
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Transfer it shall as soon as practicable (and in no event later than 7 days
after the date the Note Transfer was lodged with it) send to the transferor
and the transferee notice of such refusal.
14.10 No fee for registration of a Note Transfer
No fee shall be charged for the registration of any Note Transfer.
14.11 Taking effect of Note Transfers
(a) (Not until registration) A Note Transfer shall not take effect until
registered by the Trustee and until the transferee is entered in the
relevant Register as the holder of the Notes which are the subject of
the Note Transfer, the transferor shall remain the holder of those
Notes.
(b) (Transfer received when Register closed) When a Note Transfer is
received by the Trustee during any period when the relevant Register
is closed for any purpose, the Trustee shall not register the Note
Transfer until the next Business Day on which that Register is
reopened.
14.12 Rights and obligations of transferee
Subject to this deed, a transferee of Notes on being noted in the relevant
Register as the holder of the Notes shall have the following rights and
obligations:
(a) (those of the transferor) all the rights and the obligations which
the transferor previously had; and
(b) (those under this deed) all the rights and obligations of a
Noteholder as provided by this deed as if the transferee was
originally a party to this deed.
14.13 Payments to transferee
Subject to this deed (including clause 35.1), on the entry of a transferee
of Notes in the relevant Register the transferee shall become entitled to
receive any payments then due or which may become due to the holder of the
relevant Notes (including whether or not the entitlement to payment wholly
or partly arose or accrued prior to the transfer and the Trustee shall be
discharged for any such payment made to the transferee).
14.14 Transmission of entitlements
(a) (Election) Any person becoming entitled to Notes as a result of the
death, mental incapacity or bankruptcy of a Noteholder may, on
producing such evidence as the Trustee requires of their entitlement,
elect to be either registered as the Noteholder or to transfer the
Notes in the manner specified in this clause 14.
(b) (Method of election) If an entitled person elects to be registered as
the Noteholder, the person shall deliver to the Trustee a notice in
writing to this effect signed by the person. If the person elects to
have another person registered he or she shall execute a Note
Transfer in relation to the Notes in favour of that person. All the
provisions of this deed relating to the transfer of Notes and the
registration of Note Transfers shall be applicable to any such notice
or Note Transfer as if the death, mental incapacity or bankruptcy of
the Noteholder had not occurred and the notice or Note Transfer was a
Note Transfer executed by the Noteholder.
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(c) (Discharge) A person entitled to Notes under this clause shall be
entitled to receive and may give a good discharge for all moneys
payable in respect of such Notes but, except as otherwise provided by
this deed, shall not be entitled to any of the rights or privileges
of a Noteholder unless and until the person is entered in the
relevant Register as the holder of such Notes.
14.15 Marked Note Transfer
(a) (Entitlement to marking) A Noteholder may from time to time request
the Trustee to provide the Noteholder with a Marked Note Transfer.
(b) (Marking) The Noteholder shall deliver a Note Transfer to the Trustee
and the Trustee shall ▇▇▇▇ the Note Transfer in such manner as agreed
from time to time by the Trustee and the Trust Manager and issue the
same to the Noteholder.
(c) (Trustee will not register transfer) Until the expiry of 90 days (or
any substitute period as the Trustee and Trust Manager agree from
time to time and as advised to Noteholders of the relevant Trust)
from the date on which the Note Transfer was marked, the Trustee
shall not register any transfer of Notes relating to the Marked Note
Transfer otherwise than on that Marked Note Transfer.
(d) (No extension by closing of Register) The period referred to in sub-
paragraph (c) shall not be extended by the closing of the relevant
Register for any purpose.
(e) (Delivery) A Marked Note Transfer shall be issued to a Noteholder by
personal delivery at the time the Noteholder attends the offices of
the Trustee (or such other place nominated by the Trustee) for the
marking of the Note Transfer by the Trustee.
14.16 Reliance on documents
The Trustee shall be entitled to accept and assume the authenticity and
genuineness of any Note Transfer or other document produced to it to be
duly executed. The Trustee shall not be bound to enquire into the
authenticity or genuineness of any Note Transfer or other document, nor
shall it incur any liability for registering any Note Transfer which is
subsequently discovered to be a forgery or otherwise defective, unless the
Trustee had actual notice of such forgery or defect at the time of
registration of such Note Transfer.
14.17 Specimen signatures
The Trustee may (but need not) require each Noteholder to submit specimen
signatures (and in the case of a corporation may require those signatures
to be authenticated by the secretary or director of such Noteholder) of
persons authorised to execute Note Transfers on behalf of such Noteholder
and shall be entitled to assume (until notified to the contrary) that such
authority has not been revoked.
14.18 Notes lodged with Austraclear
If Notes are lodged into the Austraclear System, the Trustee shall enter
Austraclear in the relevant Register as the holder of those Notes. While
those Notes remain in the Austraclear System:
(a) all payments and notices required of the Trustee and the Trust
Manager in relation to those Notes will be directed to Austraclear;
and
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(b) all dealings (including transfers) and payments in relation to those
Notes within the Austraclear System will be governed by the
Austraclear Regulations and need not comply with this clause 14 to
the extent of any inconsistency.
15. NOTE ACKNOWLEDGEMENT
15.1 Issue of Note Acknowledgement
When a person has been entered in the relevant Register as the holder of
Notes, as soon as practicable (and in any event no later than 5 Business
Days or such shorter period specified in the relevant Series Notice or as
otherwise agreed by the Trustee with the person or the Trust Manager)
thereafter, the Trustee shall issue a Note Acknowledgement to that person
in respect of those Notes. If the person has been entered into the relevant
Register under a Note Transfer and the transferor continues to retain a
holding of Notes, the Trustee shall within the same period stated above
issue to the transferor a Note Acknowledgement in respect of that retained
holding of Notes. No certificates will be issued in respect of Notes.
15.2 Note Acknowledgement not certificate of title
A Note Acknowledgement shall not be a certificate of title as to Notes and
the relevant Register shall be the only conclusive evidence of the
ownership of Notes and the entitlements under them. A Note Acknowledgement
cannot be pledged or deposited as security nor can a Note be transferred by
delivery of only a Note Acknowledgement.
15.3 Execution of Note Acknowledgement
Each Note Acknowledgement shall be signed on behalf of the Trustee
manually, or in facsimile by mechanical or electronic means, by any
Authorised Signatory of the Trustee. If any Authorised Signatory of the
Trustee whose signature appears on a Note Acknowledgement dies or otherwise
ceases to be an Authorised Signatory before the Note Acknowledgement has
been issued, the Trustee may nevertheless issue the Note Acknowledgement.
15.4 More than one Note Acknowledgement
If a Noteholder wishes more than one Note Acknowledgement it shall return
its Note Acknowledgement to the Trustee and at the same time request in
writing the issue of a specified number of separate Note Acknowledgements.
Subject to clause 10.5, the Trustee shall then cancel the original Note
Acknowledgement and issue in lieu separate Note Acknowledgements. A fee
prescribed by the Trustee (not exceeding $10 for each Note Acknowledgement)
shall be paid by the Noteholder to the Trustee.
15.5 Worn out, defaced or lost Note Acknowledgement
If any Note Acknowledgement is worn out or defaced then on production to
the Trustee it may cancel the same and may issue a new Note
Acknowledgement. If any Note Acknowledgement is lost or destroyed then on
proof to the satisfaction of the Trustee, and on such indemnity as the
Trustee may consider adequate having been given, a new Note Acknowledgement
shall be given to the person entitled to such lost or destroyed Note
Acknowledgement. An entry as to the issue of the new Note Acknowledgement
and of the indemnity (if any) shall be made in the relevant Register. A fee
prescribed by the Trustee (not exceeding $10) shall be paid by the person
requesting the new Note Acknowledgement to the Trustee.
15.6 Joint holdings
If a single parcel of Notes is held by more than one person, only the
person whose name stands first in the relevant Register in relation to that
parcel of Notes shall be entitled to:
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(a) be issued the relevant Note Acknowledgement and, if applicable, a
Marked Note Transfer;
(b) be given any notices; and
(c) be paid any moneys due in respect of such Notes.
15.7 Delivery of Note Acknowledgement
A Note Acknowledgement may be sent to the relevant Noteholder by mail or by
personal delivery to the Noteholder's address appearing in the relevant
Register and the Note Acknowledgement so sent shall be at the risk of that
Noteholder.
16. THE REGISTER
16.1 Details to be kept on Register
The Trustee shall keep or cause to be kept a register with respect to each
Trust, on which shall be entered the following information relating to that
Trust:
(a) (name) the name of the Trust;
(b) (creation) the date of the creation of the Trust;
(c) (Note Issue Dates) the Note Issue Dates for Notes issued in relation
to the Trust;
(d) (Initial Invested Amount) the total Initial Invested Amount of Notes
issued on each such Note Issue Date;
(e) (Invested Amount) the Invested Amount of each Note or Class of Notes
from time to time;
(f) (Stated Amount) the Stated Amount of each Note or Class of Notes from
time to time;
(g) (Series) details of relevant Classes of Notes;
(h) (details of Noteholders) the name and address of each Noteholder;
(i) (number of Notes) the number of Notes held by each Noteholder;
(j) (Note Acknowledgement) the serial number of each Note Acknowledgement
issued to each Noteholder;
(k) (date of entry) the date on which a person was entered as the holder
of Notes;
(l) (date of cessation) the date on which a person ceased to be a
Noteholder;
(m) (account) the account to which any payments due to a Noteholder are
to be made (if applicable);
(n) (payments) a record of each payment in respect of the Notes in
relation to the Trust; and
(o) (tax file number) a record that the Trustee has (or has not) received
the tax file number for each Noteholder;
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(p) (additional information) such other information as:
(i) is required by the relevant Series Notice;
(ii) the Trustee considers necessary or desirable; or
(iii) the Trust Manager reasonably requires.
16.2 Asset register
The Trustee shall keep or cause to be kept an asset register with respect
to each Trust, in which shall be entered the Authorised Investments and
other Assets of the Trust (other than Purchased Receivables and the related
Receivable Rights) entered into the relevant asset register on an
individual basis.
16.3 Place of keeping Register, copies and access
Each Register shall be:
(a) (place kept) kept at the Trustee's principal office in Sydney or at
such place as the Trustee and the Trust Manager may agree;
(b) (access to Trust Manager and Auditor) open to the Trust Manager and
the Auditor of the Trust to which it relates to inspect during normal
business hours;
(c) (inspection by Noteholders) open for inspection by a Noteholder
during normal business hours but only in respect of information
relating to that Noteholder; and
(d) (not for copying) not available to be copied by any person (other
than the Trust Manager) except in compliance with such terms and
conditions (if any) as the Trust Manager and Trustee in their
absolute discretion nominate from time to time.
16.4 Details on Register conclusive
(a) (Reliance on Register) The Trustee shall be entitled to rely on a
Register as being a correct, complete and conclusive record of the
matters set out in it at any time and whether or not the information
shown in that Register is inconsistent with any other document,
matter or thing.
(b) (no trusts etc) The Trustee shall not be obliged to enter on a
Register notice of any trust, Security Interest or other interest
whatsoever in respect of any Notes and the Trustee shall be entitled
to recognise a Noteholder as the absolute owner of Notes and the
Trustee shall not be bound or affected by any trust affecting the
ownership of any Notes unless ordered by a court or required by
statute.
(c) (Register not to be signed) The Trustee shall ensure that it does not
sign or otherwise execute any entry in a Register.
16.5 Closing of Register
The Trustee may close a Register for the periods specified in the relevant
Series Notice.
16.6 Alteration of details on Register
On the Trustee being notified of any change of name or address or payment
or other details of a Noteholder by the Noteholder, the Trustee shall alter
the relevant Register accordingly.
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16.7 Rectification of Register
If:
(a) an entry is omitted from a Register;
(b) an entry is made in a Register otherwise than in accordance with this
deed;
(c) an entry wrongly exists in a Register;
(d) there is an error or defect in any entry in a Register; or
(e) default is made or unnecessary delay takes place in entering in a
Register that any person has ceased to be the holder of Notes,
the Trustee may rectify the same.
16.8 Correctness of Register
Neither the Trust Manager nor the Trustee shall be liable for any mistake
in a Register or in any purported copy except to the extent that the
mistake is attributable to its fraud, negligence or wilful default.
16.9 Trust Manager must provide information
The Trust Manager must provide the Trustee and any person appointed in
accordance with clause 21.4 with such information as the Trustee may
reasonably require to maintain each Register.
16.10 Third party registrar
The Trustee may cause a Register to be maintained by a third party on its
behalf and require that person to discharge the Trustee's obligations under
this deed in relation to that Register.
17. MEETINGS OF NOTEHOLDERS
17.1 Application of this clause
(a) The application of this clause 17 to a given Trust, and to meetings
of Noteholders of a given Trust or a Class of Noteholders of a given
Trust, is subject in its entirety to the provisions of any Security
Trust Deed and any Series Notice in relation to that Trust and,
without limitation, a Security Trust Deed and a Series Notice in
relation to a Trust may override, suspend, amend, modify, supplement
or delete to any extent all or any of the provisions of this clause
17 in relation to that Trust and to meetings of Noteholders of that
Trust or any meeting of a Class of Noteholders of that Trust.
(b) In relation to a Warehouse Trust for which the only Noteholder is the
relevant Warehouse Facility Provider:
(i) the Warehouse Facility Provider can agree to short notice under
clause 17.3(b);
(ii) clauses 17.3(c), 17.4, 17.6, 17.7, 17.9 and 17.11 will not
apply;
(iii) the Warehouse Facility Provider constitutes a quorum for the
purposes of clause 17.5;
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(iv) an Extraordinary Resolution under this deed is constituted by a
resolution of the Warehouse Facility Provider.
17.2 Convening of meetings by Trustee and Trust Manager
(a) The Trustee or the Trust Manager may at any time convene a meeting of
the Noteholders of that Trust or Class of Noteholders of a Trust.
(b) Noteholders of a Trust or a Class of Noteholders holding in aggregate
not less than 20% of the Invested Amounts of all Notes issued by that
Trust or in that Class, may at any time convene a meeting of the
Noteholders of that Trust or Class, as the case may be.
17.3 Notice of meetings
(a) (Period of notice) Subject to clause 17.3(b) at least 7 days' notice
(inclusive of the day on which the notice is given and of the day on
which the meeting is held) of a meeting of all Noteholders or any
Class of Noteholders of a Trust shall be given to the relevant
Noteholders of the Trust.
(b) (Short notice) Notwithstanding clause 17.3(a), if it is so agreed by
a majority in number of the Noteholders of a Trust or the Class (as
the case may be) having the right to attend and vote at the meeting,
being a majority that together hold at least 95% of the then
outstanding Notes in relation to the Trust or the Class, a resolution
may be proposed and passed at a meeting of which less than 7 days'
notice has been given.
(c) (Failure to give notice) The accidental omission to give notice to or
the non-receipt of notice by any Noteholder shall not invalidate the
proceedings at any meeting.
(d) (Copies) A copy of a notice convening a meeting shall be given by the
Trustee or the Trust Manager convening the meeting to the other, and
also to the relevant Beneficiary and the Designated Rating Agencies.
Failure to give such a notice in accordance with this clause shall
invalidate the meeting unless the party who has not received the
notice waives the invalidation.
(e) (Method of giving notice) Notice of a meeting shall be given in the
manner provided in this deed.
(f) (Contents of a notice) Notice of a meeting of Noteholders shall
specify:
(i) (time etc) the day, time and place of the proposed meeting;
(ii) (agenda) the agenda of the business to be transacted at the
meeting;
(iii) (proposed resolution) the terms of any proposed resolution;
(iv) (closing of Register) that the persons appointed to maintain
the relevant Register for the purpose of determining those
entitled to attend may not register any Note Transfer in the
period of 2 Business Days prior to the meeting;
(v) (appointment of proxies) that appointments of proxies must be
lodged no later than 24 hours prior to the time fixed for the
meeting; and
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(vi) (additional information) such additional information as the
person giving the notice thinks fit.
17.4 Chairman
The Trustee may nominate a person to be chairman of a meeting which has
been convened by the Trustee or the Trust Manager. The chairman need not be
a Noteholder of the Trust and may be a representative of the Trustee. If
such a person is not present or is present but unwilling to act, then the
Noteholders present may choose a Noteholder to be the chairman.
17.5 Quorum
At any meeting any two or more persons present in person being Noteholders
holding, or Representatives holding or representing, in the aggregate not
less than 75% of the Invested Amounts of all Notes issued in relation to
the Trust or constituting the Class (as the case may be) and then
outstanding shall form a quorum for the transaction of business and no
business (other than the choosing of a chairman) shall be transacted at any
meeting unless the requisite quorum is present at the commencement of
business.
17.6 Adjournment
(a) (Quorum not present) If within 15 minutes from the time appointed for
any meeting a quorum is not present, the meeting shall stand
adjourned (unless the Trustee agrees that it be dissolved) for such
period, not being less than 7 days nor more than 42 days, as may be
appointed by the chairman. At such adjourned meeting two or more
persons present in person being Noteholders holding, or being
Representatives holding or representing, in the aggregate not less
than 50% of the Invested Amounts of all Notes issued by the Trust or
constituting the Class (as the case may be) and then outstanding
(whatever the Notes so held or represented) shall form a quorum and
shall have the power to pass any resolution and to decide on all
matters which could properly have been dealt with at the meetings
from which the adjournment took place had a quorum been present at
such meeting.
(b) (Adjournment of meeting) The chairman may with the consent of (and
shall if directed by) any meeting adjourn the same from time to time
and from place to place but no business shall be transacted at any
adjourned meeting except business which might lawfully have been
transacted at the meeting from which the adjournment took place.
(c) (Notice of adjourned meeting) At least 5 days' notice of any meeting
adjourned through want of a quorum shall be given in the same manner
as for the original meeting and such notice shall state the quorum
required at such adjourned meeting. It shall not, however, otherwise
be necessary to give any notice of an adjourned meeting.
17.7 Voting procedure
(a) (Show of hands) Every resolution submitted to a meeting shall be
decided in the first instance by a show of hands and, in case of
equality of votes, the chairman shall both on a show of hands and on
a poll have a casting vote in addition to the vote or votes (if any)
to which he or she may be entitled as a Noteholder or as a
Representative.
(b) (Declaration) At any meeting, unless a poll is (before or on the
declaration of the result of the show of hands) demanded, a
declaration by the chairman that a resolution has been carried by a
particular majority or lost or not carried by any
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particular majority is conclusive evidence of the fact without proof
of the number or proportion of the votes recorded in favour of or
against such resolution.
(c) (Poll) If at any meeting a poll is demanded by the chairman, the
Trustee or the Trust Manager or by one or more persons being
Noteholders holding, or being Representatives holding or
representing, in aggregate not less than 2% of the Notes issued by
the Trust or constituting the Class (as the case may be) and then
outstanding, it shall be taken in such manner and (subject to this
clause) either at once or after such an adjournment as the chairman
directs and the result of such poll shall be deemed to be the
resolution of the meeting at which the poll was demanded as at the
date of the taking of the poll. The demand for a poll shall not
prevent the continuance of the meeting for the transaction of any
business other than the question on which the poll has been demanded.
The demand for a poll may be withdrawn.
(d) (No adjournment) Any poll demanded at any meeting on the election of
a chairman or on any question of adjournment shall be taken at the
meeting without adjournment.
(e) (Votes) Subject to clause 17.7(a), at any meeting:
(i) on a show of hands, every person present being a Noteholder
holding, or being a Representative holding or representing,
then outstanding Notes issued by the Trust shall have one vote;
and
(ii) on a poll, every person present shall have one vote for each
Note issued by the Trust and then outstanding that he or she
holds or in respect of which he or she is a Representative as
stated in the relevant Register at the date the notices are
dispatched to Noteholders for the meeting.
Any person entitled to more than one vote need not use all his or her
votes or cast all his or her votes to which he or she is entitled in
the same way.
17.8 Right to attend and speak
The Trustee, the Trust Manager and the relevant Beneficiary (through their
respective representatives) and their respective financial and legal
advisers shall be entitled to attend and speak at any meeting of the
Noteholders of a Trust or any Class (as the case may be). No person shall
otherwise be entitled to attend or vote at any meeting of the Noteholders
of a Trust or any Class (as the case may be) unless he or she holds
outstanding Notes in relation to the Trust or is a Representative holding
or representing such Notes.
17.9 Appointment of proxies
(a) (Requirements) Each instrument appointing a proxy shall be in writing
and, together (if so required by the Trustee) with proof satisfactory
to the Trustee of its due execution, shall be deposited at the
registered office of the Trustee or at such other place as the
Trustee shall designate or approve not less than 24 hours before the
time appointed for holding the meeting or adjourned meeting at which
the named proxy proposes to vote and in default, the instrument or
proxy shall be treated as invalid unless the chairman of the meeting
decides otherwise before such meeting or adjourned meeting proceeds
to business. A notarially certified copy proof (if applicable) of due
execution shall if required by the Trustee be produced by the proxy
at the meeting or adjourned meeting but the Trustee shall not be
obliged to investigate or be concerned with the validity of, or the
authority of, the proxy named in any such instrument. Any person may
act as a proxy whether or not that person is a Noteholder.
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(b) (Proxy remains valid) Any vote given in accordance with the terms of
an instrument of proxy conforming with clause 17.9(a) shall be valid
notwithstanding the previous death or insanity of the principal,
revocation or amendment of the proxy or of any of the Noteholder's
instructions under which it was executed, so long as no intimation in
writing of such death, insanity, revocation or amendment is received
by the Trustee at its registered office or by the chairman of the
meeting in each case not less than 24 hours before the commencement
of the meeting or adjourned meeting at which the proxy is used.
17.10 Corporate representatives
A person authorised under sections 249(3)-(6) of the Corporations Law by a
Noteholder being a body corporate to act for it at any meeting shall, in
accordance with his or her authority until his or her authority is revoked
by the body corporate concerned, be entitled to exercise the same powers on
behalf of that body corporate as that body corporate could exercise if it
were an individual Noteholder and shall be entitled to produce evidence of
his or her authority to act at any time before the time appointed for the
holding of or at the meeting or adjourned meeting or for the taking of a
poll at which he proposes to vote.
17.11 Rights of Representatives
A Representative of a Noteholder shall have the right to demand or join in
demanding a poll and shall (except and to the extent to which the
Representative is specially directed to vote for or against any proposal)
have power generally to act at a meeting for the Noteholder. The Trustee,
the Trust Manager and any officer of the Trustee and the Trust Manager may
be appointed a Representative.
17.12 Powers of a meeting of Noteholders
(a) (Powers) A meeting of the Noteholders of a Trust shall, without
prejudice to any rights or powers conferred on other persons by the
Transaction Documents, only have power exercisable by Extraordinary
Resolution:
(i) to sanction any action that the Trustee, the Trust Manager or
the relevant Servicer proposes to take to enforce the
provisions of any Transaction Document relating to the Trust;
(ii) to sanction any proposal by the Trust Manager, the Trustee or
the relevant Servicer for any modification, abrogation,
variation or compromise of, or arrangement in respect of, the
rights of the Noteholders against the Trustee, the Trust
Manager, the relevant Approved Seller or the relevant Servicer
whether such rights arise under any Transaction Document or
otherwise;
(iii) to sanction the exchange or substitution of Notes for or the
conversion of Notes into, other obligations or securities of
the Trustee or any other body corporate formed or to be formed;
(iv) under clause 36.2, to consent to any alteration, addition or
modification of any Transaction Document which shall be
proposed by the Trustee or the Trust Manager;
(v) to discharge or exonerate the Trustee, the Trust Manager, the
relevant Approved Seller or the relevant Servicer from any
liability in respect of any act or omission for which it may
become responsible under any Transaction Document relating to
the Trust;
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(vi) to authorise the Trustee, the Trust Manager, the relevant
Servicer or any other person to concur in and execute and do
all such documents, acts and things as may be necessary to
carry out and give effect to any Extraordinary Resolution; and
(vii) to exercise any other power expressly granted under a Series
Notice.
(b) (No power) A meeting of the Noteholders of a Trust shall not have
power to, nor shall any resolution submitted to the meeting propose
or have the effect of:
(i) removing the relevant Servicer or the Trust Manager from
office;
(ii) interfering with the management of the Trust;
(iii) winding up or terminating the Trust (except as contemplated by
clause 17.12(a)(vii));
(iv) altering the Authorised Investments of the Trust;
(v) amending any Transaction Document (except as contemplated by
clause 17.12(a)); or
(vi) altering the Coupon Payment Dates, Principal Payment Dates,
Coupons, Principal Entitlements or the other terms of the
Series Notice in relation to any Notes (subject to clause
17.12(a)(iii)).
17.13 Extraordinary Resolution binding on Noteholders
An Extraordinary Resolution passed at a meeting of the Noteholders of a
Trust or of any Class duly convened and held in accordance with this deed
shall be binding on all the Noteholders of the Trust or of the Class
whether or not present at such meeting. Each of the Noteholders of the
Trust or of the Class (as the case may be), the Trustee and the Trust
Manager shall be bound to give effect to that resolution accordingly.
17.14 Minutes and records
Minutes of all resolutions and proceedings at every meeting of the
Noteholders of a Trust or any Class (as the case may be) shall be made and
duly entered in the books to be from time to time provided for that purpose
by the Trustee and any such minutes purporting to be signed by the chairman
of the meeting at which such resolutions were passed or proceedings
transacted or by the chairman of the next succeeding meeting of the
Noteholders of the Trust or of the Class (as the case may be) shall be
conclusive evidence of those matters and until the contrary is proved every
such meeting in respect of the proceedings of which minutes have been made
and signed shall be deemed to have been duly convened and held and all
resolutions passed or proceedings transacted at such meeting to have been
duly passed and transacted.
17.15 Written resolutions
Notwithstanding the preceding provisions of this clause 17, a resolution of
the Noteholders of a Trust or any Class (including an Extraordinary
Resolution) may be passed, without any meeting or previous notice being
required, by an instrument or instruments in writing which has or have:
(a) in the case of a resolution (including an Extraordinary Resolution)
of the Noteholders of a Trust or any Class, been signed by all
Noteholders of the Trust or the Class (as the case may be); and
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(b) any such instrument shall be effective on presentation to the Trustee
for entry in the records referred to in clause 17.14.
17.16 Further procedures for meetings
Subject to all other provisions contained in this deed, the Trustee may
without the consent of the Noteholders of a Trust or any Class prescribe
such further regulations regarding the holding of meetings of the
Noteholders of a Trust or any Class of Noteholders and attendance and
voting at such meetings as the Trustee may with the agreement of the Trust
Manager determine including particularly (but without prejudice to the
generality of the above) such regulations and requirements as the Trustee
thinks reasonable:
(a) (entitlement to vote) so as to satisfy itself that persons who
purport to attend or vote at any meeting of the Noteholders of a
Trust or any Class of Noteholders are entitled to do so in accordance
with this deed; and
(b) (forms of Representative) as to the form of appointment of a
Representative,
but the Trustee may not decrease the percentage of Noteholders required to
pass an Extraordinary Resolution or an ordinary resolution.
PART E - TRUST MANAGER
18. THE TRUST MANAGER
18.1 Appointment of Trust Manager
(a) The Trust Manager is appointed, and agrees to act, as the manager of
the Trusts on and subject to the terms of this deed and any relevant
Series Notice.
(b) Except as provided in clause 18.16 and clause 20.3:
(i) the Trust Manager will be an independent contractor and not an
agent of the Trustee;
(ii) the Trust Manager will not represent or hold itself out to any
person to be an agent of the Trustee; or
(iii) the Trustee will not be responsible for the acts, omissions or
defaults of the Trust Manager.
18.2 Complete powers of management
Subject to the Transaction Documents, the Trust Manager shall carry out and
perform the duties and obligations on its part contained in this deed and
shall have full and complete powers of management of the Trusts, including
without limitation:
(a) (Assets and liabilities) the administration and servicing of the
Assets (which are not serviced by a Servicer), borrowings and other
liabilities of the Trusts (including concluding the commercial terms
of the Hedge Agreements to be entered into by the Trustee); and
(b) (day to day operation) the conduct of the day to day operation of the
Trusts.
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18.3 Note issuance
The Trust Manager has the power, where the Borrowing takes the form
of an issue of Notes, to:
(a) negotiate the terms and conditions of the issue of Notes and any
relevant Dealer Agreement;
(b) accept the terms and conditions of the issue of Notes and any
relevant Dealer Agreement with the Lead Manager, managers or dealers
for the issue of Notes and bind the Trustee to an issue of Notes on
those terms and conditions; and
(c) direct the Trustee to enter that Dealer Agreement and issue Notes on
those terms and conditions.
However, the Trust Manager's power to act and bind the Trustee in
accordance with this clause is conditional on the Trustee being satisfied,
in its absolute discretion, with the terms and conditions of the Dealer
Agreement and the issue of Notes including the terms and conditions dealing
with the personal liability of the Trustee.
18.14 Trust Manager to act in interests of Beneficiary and Noteholders
The Trust Manager shall, in respect of each Trust, act in the interests of
the Beneficiary and the Noteholders in relation to that Trust on, and
subject to, the terms and conditions of this deed. In the event of any
conflict of interests, the interests of the Noteholders will prevail.
18.15 Trust Manager to assist Trustee
The Trust Manager shall take such action as is consistent with its powers
under this deed to assist the Trustee to perform its obligations under this
deed.
18.16 Trust Manager's power to delegate
The Trust Manager may in carrying out and performing its duties and
obligations contained in this deed:
(a) (delegate to employees) delegate to Westpac, or any of the Trust
Manager's or Westpac's officers and employees all acts, matters and
things (whether or not requiring or involving the Trust Manager's
judgment or discretion);
(b) (appoint attorneys and agents) appoint any person to be its attorney,
agent, delegate or sub-contractor for such purposes and with such
powers, authorities and discretions (not exceeding those vested in
the Trust Manager) as the Trust Manager thinks fit including, without
limitation:
(i) power for the attorney, agent, delegate or sub-contractor to
sub-delegate any such powers, authorities or discretions;
(ii) power to authorise the issue in the name of the Trust Manager
of documents bearing facsimile signatures of the Trust Manager
or of the attorney, agent, delegate or sub-contractor (either
with or without proper manuscript signatures of its officers);
and
(iii) such provisions for the protection and convenience of those
dealing with any such attorney, agent, delegate, sub-contractor
or sub-delegate as they may think fit; and
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(c) (remove agents and delegates) supersede or suspend any such agent,
delegate, sub-contractor or sub-delegate for such cause or reason as
the Trust Manager may in its sole discretion think sufficient with or
without assigning any cause or reason and either absolutely or for
such time as it may think proper,
but despite any delegation or appointment under the above paragraphs
of this clause, the Trust Manager shall remain liable for the acts or
omissions of Westpac or of any such officer, employee, attorney,
delegate, agent, sub-delegate, sub-contractor or sub-agent and shall
be solely responsible for the fees and expenses of such officer,
employee, attorney, agent, delegate, sub-delegate, sub-contractor or
sub-agent.
18.7 Trust Manager's power to appoint advisers
The Trust Manager may appoint and engage any valuers, solicitors,
barristers, accountants, surveyors, property managers, real estate agents,
contractors, qualified advisers and such other persons as may be necessary,
usual or desirable for the purpose of enabling the Trust Manager to
properly exercise its powers and perform its obligations under this deed
and all proper fees, charges and moneys payable to any such persons and all
disbursements, expenses, duties and outgoings properly chargeable to them
shall constitute Expenses of the Trust to which they relate.
18.8 Trust Manager's books available to Trustee
The Trust Manager will, in relation to each Trust:
(a) (keep proper records) keep proper books and records for the Trust
separate from any other books or records;
(b) (i) (produce books) during normal business hours on reasonable
notice make available to the Trustee or the Auditor for
inspection all of the books and records of the Trust maintained
by the Trust Manager; and
(ii) (provide information) give to the Trustee or the Auditor such
written or oral information as the Trustee or the Auditor
reasonably requires with respect to all matters in possession
of the Trust Manager relating to the Trust,
subject, in each case, to the provisions of the Privacy Act.
18.9 Trust Manager will account to Trustee for moneys received
(a) The Trust Manager will pay to the Trustee, within one Business Day of
receipt, all moneys coming into its hands belonging to the Trusts or
payable to the Trusts.
(b) The Trust Manager will keep any Assets which it may come to hold from
time to time separate from any other property belonging to or
entrusted to or held by the Trust Manager.
18.10 Trust Manager to report Pool Data on Reuters
The Trust Manager may, if so specified in a Series Notice for a Trust,
prepare and arrange for the publication by Reuters (or another customary
electronic medium) of summary pool performance data for that Trust in a
format similar to that used by other mortgage-backed securities or asset-
backed securities (as the case may be) in the Australian market.
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18.11 Trust Manager to prepare notices etc.
The Trust Manager shall prepare or cause to be prepared all notices
and statements which the Trustee is required to serve under any of
the provisions of this deed or any other Transaction Document and
shall produce such notices and statements (as the case may be) to the
Trustee at least one Business day (or any other period as the Trustee
and the Trust Manager agree) before the day on which the notice or
statement is required to be served.
18.12 Prior approval of circulars
(a) Where the Trust Manager has prepared any:
(i) Information Memorandum; or
(ii) circular, offer letter, notice, report or the like to
Noteholders, or prospective Noteholders (a Publication), on
behalf of the Trustee,
the Trust Manager shall submit the Information Memorandum or
Publication to the Trustee for the Trustee's consent (not to be
unreasonably withheld) prior to the issue of the document (unless
otherwise waived by the Trustee).
(b) Where the Trustee or the Trust Manager has prepared any Information
Memorandum or Publication which names, or purports to be issued by or
on behalf of, a Servicer or an Approved Seller, the Trustee or the
Trust Manager (as the case may be) shall submit the Information
Memorandum or Publication to the Servicer or Approved Seller (as the
case may be) for its consent (not to be unreasonably withheld) prior
to the issue of the document (unless the Servicer or Approved Seller
otherwise agrees).
18.13 Taxes
The Trust Manager directs the Trustee to make all payments (as and when
they fall due) out of a Trust to any duly empowered Government Agency for
Taxes levied on any Trust or on the Trustee in its capacity as trustee of
any Trust.
18.14 Acquisition or disposal of Assets
Subject to this deed, the Trust Manager shall ensure that all steps which
it thinks are desirable are taken in connection with the investigation or
negotiation for the acquisition or disposal of Assets.
18.15 Monitor Support Facilities
The Trust Manager shall monitor all Support Facilities in respect of a
Trust and shall properly perform the functions which are necessary for it
to perform under those Support Facilities.
18.16 Make calculations, co-ordinate and provide reports
The Trust Manager shall:
(a) calculate all payments due on any relevant Payment Date;
(b) co-ordinate the issue of relevant Notes and the raising of funds from
those issues, or from any Support Facility; and
(c) as and when required by any Series Notice or other Transaction
Document prepare and distribute for each Trust the Trust Manager's
Report,
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and where relevant (and when the Trust Manager is actually aware that the
directions need to be given, including any directions expressly required of
it under the Transaction Documents) provide all directions to the Trustee
as may be required for the Trustee to comply with its obligations under the
Transaction Documents.
18.17 Trust Manager cannot bind Trustee unless authorised
The Trust Manager acknowledges that in exercising its powers, authorities
and discretions vested in it and carrying out and performing its duties and
obligations in relation to any Trust or any Asset, whether under any
Transaction Document or any other deed, agreement or other arrangement,
neither it nor its delegate has any power to bind the Trustee, otherwise
than as expressly provided in any Transaction Document or such other deed,
agreement or other arrangement.
18.18 Trust Manager must perform obligations under other Transaction
Documents
The Trust Manager shall properly perform the functions which are necessary
for it to perform under the other Transaction Documents to which it is a
party.
18.19 Trust Manager to provide personnel and systems
The Trust Manager shall at its own expense, procure sufficient trained and
experienced personnel, equipment and systems to enable it to carry out its
obligations under this deed and shall at all times maintain complete and
accurate records, books of account and an adequate system of audit and
internal controls so as to perform its obligations under this deed.
18.20 Additional covenants by Trust Manager
The Trust Manager shall:
(a) (act honestly) act honestly and in good faith and comply with all
laws in the performance of its duties and in the exercise of its
discretions under this deed;
(b) (prudently) manage the Trust exercising the degree of diligence and
care reasonably expected of an appropriately qualified manager,
having regard to the interests of the Beneficiaries, the Noteholders
and the other Creditors;
(c) (conduct its business properly) use reasonable endeavours to carry on
and conduct its business in so far as it relates to this deed in a
proper and efficient manner;
(d) (do all things necessary to perform obligations) do everything and
take all such actions which are necessary (including, without
limitation, obtaining all such Authorisations as are appropriate) to
ensure that it is able to exercise all its powers and remedies and
perform all its obligations under this deed, the Transaction
Documents and all other deeds, agreements and other arrangements
entered into by the Trust Manager under this deed;
(e) (notify defaults) promptly, on an officer of the Trust Manager who
has responsibility for the transactions contemplated by the
Transaction Documents for a Trust, becoming actually aware, notify
the Trustee and the Designated Rating Agency of any Trust Manager's
Default, Servicer Transfer Event or any Adverse Effect relating to
that Trust and at the same time or as soon as possible afterwards
provide details of that default or effect;
(f) (not merge) not merge or consolidate into another entity unless the
surviving entity assumes the obligations of the Trust Manager under
the Transaction Documents;
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(g) (Threshold Rate) where so required under a Series Notice, calculate
Threshold Rates; and
(h) (Support Facilities) perform all obligations within its power to
ensure that all Support Facilities for each Trust are maintained and
available to the Trustee.
19. TRUST MANAGER'S FEE
In consideration of the Trust Manager performing its function and duties
under this deed, it shall be entitled to be paid from each Trust a fee in
the amount and at the times set out in the corresponding Series Notice.
20. RETIREMENT, REMOVAL AND REPLACEMENT OF TRUST MANAGER
20.1 Retirement on Trust Manager's Default
The Trust Manager shall retire from the management of the Trusts if
and when directed to do so by the Trustee in writing (which direction
must be copied to each Servicer and, if any of the Trusts are Rated
Trusts, the Designated Rating Agency). A direction may only be given
on the occurrence of any or more of the following events (each a
Trust Manager's Default).
(a) (Collections and distributions) The Trust Manager fails to make any
payment required from it within the time period specified in a
Transaction Document, and that failure is not remedied within 10
Business Days of receipt from the Trustee of notice of that failure.
(b) (Insolvency Event) An Insolvency Event has occurred and is continuing
in relation to the Trust Manager.
(c) (Breach by the Trust Manager)
(i) The Trust Manager breaches any obligation or duty imposed on
the Trust Manager under this deed, any other Transaction
Document or any other deed, agreement or arrangement entered
into by the Trust Manager under this deed in relation to the
Trust;
(ii) the Trustee reasonably believes that breach has a Adverse
Effect; and
(iii) the Trust Manager fails after 30 days' notice from the Trustee
(which notice specifies the breach with reasonable
particularity and requires rectification) to remedy that breach
or paid compensation to the Trustee for its loss from such
breach,
except, in each case, where the Trust Manager has relied on
information provided, or other action taken, by a Servicer or has not
received information from the Servicer which the Trust Manager
requires to comply with the obligation or duty.
(d) (Misrepresentation) A representation, warranty or statement by or on
behalf of the Trust Manager in a Transaction Document or a document
provided under or in connection with a Transaction Document, is not
true in a material respect or is misleading when repeated and is not
remedied to the Trustee's reasonable satisfaction within 90 days
after notice from the Trustee where (as determined by the Trustee) it
has an Adverse Effect.
The costs of removal of a Trust Manager in default shall be borne by
the Trust Manager. The Trust Manager indemnifies the Trustee and the
Trust for those costs.
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20.2 Trustee may remove recalcitrant Trust Manager
In default of the Trust Manager retiring in accordance with clause
20.1 within 30 days of being directed by the Trustee in writing so to
do, the Trustee must by deed poll executed by the Trustee remove the
Trust Manager from the management of the Trusts except that:
(a) until a replacement Trust Manager is appointed under clause 20.3, the
Trust Manager must continue as Trust Manager; and
(b) if a replacement Trust Manager is not appointed under clause 20.3
within 120 days of the Trustee electing to appoint a new Trust
Manager, the Trustee will be the new Trust Manager.
20.3 Trustee appoints replacement Trust Manager
On the retirement or removal of the Trust Manager, the Trustee shall
be entitled to appoint some other corporation to be the Trust Manager
of the Trusts provided that appointment will not materially prejudice
the interests of Noteholders. Until that appointment is complete the
Trustee may and, if required under clause 20.2(b) shall, subject to
this deed and to any approval required by law, act as Trust Manager
and will be entitled to the Trust Manager's Fee for the period it
acts as Trust Manager. A new Trust Manager shall not be appointed in
relation to a Rated Trust without prior notice being given by the
Trustee to the Designated Rating Agency.
20.4 Voluntary Retirement
The Trust Manager may, subject to clause 20.5, resign on giving to
the Trustee (with a copy to the Designated Rating Agency) not less
than 3 months' notice in writing (or such other period as the Trust
Manager and the Trustee may agree) of its intention to do so.
20.5 No resignation by Trust Manager unless successor appointed
The Trust Manager must not, subject to clause 20.6, resign under clause
20.4 unless:
(a) either:
(i) it procures that, before the date on which that termination
becomes effective, another person assumes all of the
obligations of the Trust Manager under this deed and the
relevant Series Notices as its successor, and executes such
documents as the Trustee requires to become bound by this deed
and the relevant Series Notices, with effect from that date, as
if it had originally been a party to this deed and the relevant
Series Notice as the Trust Manager; or
(ii) the Trustee elects not to appoint a successor Trust Manager,
and to perform itself the obligations and functions which this
deed and the relevant Series Notices contemplate being
performed by the Trust Manager;
(b) the appointment of the successor Trust Manager, or (as the case may
be) the election of the Trustee, will not materially prejudice the
interests of Noteholders; and
(c) in the case of the appointment of a successor Trust Manager pursuant
to paragraph (a), the appointment is approved by the Trustee.
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20.6 Trustee to act as Trust Manager if no successor appointed
If at the end of the period of notice specified in a notice given
under clause 20.4, no successor Trust Manager has been appointed, as
contemplated by clause 20.5(a)(i):
(a) the Trustee must itself perform the obligations and functions which
this deed contemplates being performed by the Trust Manager, until a
successor Trust Manager is appointed in accordance with this deed;
and
(b) the resignation of the Trust Manager will become effective.
20.7 Release of outgoing Trust Manager
On retirement or removal and provided there has been payment to the Trustee
of all sums due to it by the outgoing Trust Manager under this deed at that
date, the outgoing Trust Manager shall be released from all further
obligations under this deed but no release under this clause 20.7 shall
extend to any existing or antecedent fraud, negligence or wilful default on
the part of the outgoing Trust Manager or its officers, employees, agents
or delegates.
20.8 New Trust Manager to execute deed
(a) A new Trust Manager shall execute a deed in such form as the Trustee
may require under which the new Trust Manager undertakes to the
Trustee, the Beneficiaries and the Noteholders jointly and severally
to be bound by all the covenants on the part of the Trust Manager
under the Transaction Documents from the date of execution of the new
deed on the same terms contained in the Transaction Documents.
(b) On and from the date of execution of the new deed, the new Trust
Manager shall and may afterwards exercise all the powers, enjoy all
the rights and shall be subject to all the duties and obligations of
the Trust Manager under the Transaction Documents as fully as though
the new Trust Manager had been originally named as a party to the
Transaction Documents.
20.9 Settlement and discharge
The Trustee shall settle with the outgoing Trust Manager the amount of any
sums payable by the outgoing Trust Manager to the Trustee or by the Trustee
to the outgoing Trust Manager and shall give to or accept from the outgoing
Trust Manager a discharge in respect of those sums which shall be
conclusive and binding as between the Trustee, the outgoing Trust Manager,
the new Trust Manager, the Beneficiaries and the Noteholders.
20.10 Delivery of books, documents, etc
(a) On the retirement or removal of the Trust Manager in accordance with
the provisions of this clause 20 the outgoing Trust Manager shall
immediately deliver to the new Trust Manager appointed in respect of
any Trust (or the Trustee if it is acting as Trust Manager) the Data
Base and all other books, documents, records and property relating to
the Trusts and any other information relating to a Trust or the
outgoing Trust Manager as the Trustee or new Trust Manager may
reasonably request. The reasonable costs and expenses of this
incurred by the new Trust Manager (but not the outgoing Trust
Manager) are to be paid out of the relevant Trust.
(b) The outgoing Trust Manager shall be entitled to take, and retain as
its own property, copies of such books, documents and records. Each
of the Trustee and the new Trust Manager shall produce the originals
of such books, documents and records in
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its possession on the giving of reasonable written notice by the
outgoing Trust Manager.
20.11 Notice to Noteholders of new Trust Manager
As soon as practicable after the appointment of a new Trust Manager under
this clause 20, the new Trust Manager shall notify the Noteholders of its
appointment.
20.12 Waiver of Trust Manager's Defaults
Subject to first giving notice to the Designated Rating Agency, the Trustee
may waive any Trust Manager's Default or any other by the Trust Manager
under a Transaction Document. On any such waiver, the default shall cease
to exist, and that Trust Manager's Default shall be deemed to have been
remedied for every purpose of this deed. No such waiver shall extend to any
subsequent or other default or impair any right consequent on a Trust
Manager's Default except to the extent expressly waived.
PART F - TRUSTEE
21. TRUSTEE'S POWERS
21.1 General power
Subject to this deed, the Trustee shall have all the rights, powers and
discretions over and in respect of the Assets of the Trusts which it could
exercise if it were the absolute and beneficial owner of such Assets.
21.2 Specific powers
Without in any way affecting the generality of the above or the other
provisions of this deed, but subject to the Trustee's obligations
under this deed, the Trustee shall have the following powers (which
shall be construed as separate and independent powers of the
Trustee):
(a) (enter into Receivable Securities) to enter into,
provide, purchase and acquire:
(i) Loans on the security of Mortgages and Related Securities; and
(ii) other Receivables (where relevant, on the security of
Receivable Securities and Related Securities);
(b) (deal in other Authorised Investments) to make, purchase, acquire or
dispose of any other Authorised Investment for cash or on terms;
(c) (fees and Expenses) to pay all fees payable under this deed and all
Expenses which were properly incurred in respect of a Trust;
(d) (advisers) to engage, and to incur reasonable expenses in relation
to, any valuers, solicitors, barristers, accountants, surveyors,
property advisers, real estate agents, contractors, qualified
advisers, and such other persons as may be necessary, usual or
desirable for the purpose of enabling the Trustee to be fully and
properly advised and informed in order that it may properly exercise
its powers and perform its obligations under this deed;
(e) (execute proxies, etc) to execute all such proxies and other
instruments as may be necessary or desirable to enable the Trustee,
or any officer, delegate or agent of the Trustee to exercise any
power, discretion or right of the Trustee as the Trustee shall in its
absolute discretion see fit;
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(f) (dealings over mortgaged Land) to consent to any mortgage, lease
and/or sub-lease of or dealing with the property (including Land)
over which a Receivable Security is held provided that, in the case
of any such mortgage, the Receivable Security held by the relevant
Trust is not prejudiced by or ranks or will rank in priority to any
dealing for which consent is sought;
(g) (discharge Receivables) subject to this deed and the other relevant
Transaction Documents, to grant any form of discharge or release or
partial discharge or release of any Receivable, Receivable Security
or Related Security where to do so is in the opinion of the Trustee
not prejudicial to the relevant Trust (and, without limitation, will
not have the effect of removing a Receivable from the coverage of any
Support Facility prior to the receipt of all moneys owing or which
may become owing under the Receivable) and to execute all deeds or
other documents as shall be necessary or incidental to such a
discharge or release and to deal with certificates of title or other
indicia of title as the Trustee sees fit;
(h) (powers of Mortgagee) subject to this deed and the other relevant
Transaction Documents, to exercise any power of sale arising on
default under any Receivable, Receivable Security or Related
Securities or any other right or remedy accruing in respect of any
Trust in relation to any Asset, Support Facility or other Transaction
Document and to exercise all customary powers, authorities and
discretions following on the exercise of that power, right or remedy
where the Trustee considers it is in the interests of the relevant
Trust;
(i) (proceedings) to institute, prosecute, defend, settle and compromise
legal or administrative proceedings of any nature and generally to
enforce and pursue its rights under and in respect of Assets;
(j) (waivers) wherever it thinks it expedient or desirable in the
interests of any Trust, to give any waiver, time or indulgence to any
person on such terms as it may in its discretion determine;
(k) (Austraclear) register Austraclear as the holder of Notes, and to
lodge Note Acknowledgements and Marked Note Transfers with
Austraclear, to facilitate transactions through the Austraclear
System;
(l) (Notes) subject to this deed and the other relevant Transaction
Documents, to borrow and raise moneys by the issue of Notes as
provided in this deed;
(m) (other borrowings) to borrow, raise moneys or procure financial
accommodation where the Trustee considers the same to be in the
interests of the relevant Trust on such terms and conditions as the
Trust Manager thinks fit and that are acceptable to the Trustee
(acting reasonably);
(n) (Transaction Documents) to enter into and perform its obligations
under any Transaction Document containing such terms and conditions
as the Trust Manager thinks fit and that are acceptable to the
Trustee (acting reasonably);
(o) (insurance) insure any Asset for amounts, on conditions and for types
of insurance determined to be necessary by the Trust Manager;
(p) (attend meetings) attend and vote at meetings in accordance with the
written directions of the Trust Manager;
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(q) (indemnity) give an indemnity out of a Trust in any terms whatsoever
to such persons and against such expenses and damages as the Trust
Manager reasonably considers necessary or desirable and that are
acceptable to the Trustee;
(r) (undertakings in Transaction Documents) without limiting the above
provisions of this clause 21.2, give any representation, warranty,
indemnity or other undertaking required in respect of a Support
Facility, or other Transaction Documents, the sale or issue of Notes
or other trans- action in any way relating to a Trust as the Trust
Manager thinks fit and that are acceptable to the Trustee (acting
reasonably, subject to the following) even if the subject matter of
such representation, warranty, indemnity or other undertaking may
refer to the Trustee in its personal capacity or otherwise to the
Trustee's personal affairs provided that any such representation,
warranty, indemnity or undertaking referring to the Trustee in its
personal capacity or to its personal affairs must be acceptable to
the Trustee in its absolute discretion;
(s) (custody) appoint the Servicer in respect of a Trust to undertake
custodial duties in accordance with the relevant Servicing Agreement;
(t) (transfer Assets) transfer any of the Assets of a Trust to another
Trust in accordance with the relevant Transaction Documents;
(u) (payment direction) where a person owes an amount to the Trustee as
trustee of any Trust, direct that debtor to make that payment to
another person on behalf of the Trustee; and
(v) (incidental powers) with the written agreement of the Trust Manager
(that agreement not to be unreasonably withheld), to do all such
things incidental to any of the above powers or necessary or
convenient to be done for or in connection with any Trust or the
Trustee's functions under this deed.
21.3 Powers to be exercised with others
The Trustee's rights, powers and discretions under this deed shall be
exercised by such persons, or exercised in conjunction with, with the
approval of, or at the discretion of such persons, as contemplated by
this deed or any other Transaction Document.
21.4 Delegation to Related Bodies Corporate
In exercising its powers and performing its obligations and duties
under this deed, the Trustee may, with the approval of the Trust
Manager (not to be unreasonably withheld) and subject always to the
covenants on the part of the Trustee contained in this deed, from
time to time by instrument in writing appoint one or more
corporations each being:
(a) a corporation which is a Related Corporation of the Trustee; and
(b) which is a trustee company or trustee corporation for the purposes of
any State or Territory legislation governing the operation of trustee
companies,
as its delegate (or, where two or more such corporations are appointed as
its delegate, jointly and severally) to undertake, perform or discharge any
or all of the duties, powers, discretions or other functions of the Trustee
under this deed or otherwise in relation to a Trust.
The Trustee and/or the corporation (as the case may be) may by the terms of
any such appointment insert such provisions for the protection and
convenience of those dealing with any such corporation as the Trustee
and/or the corporation thinks fit but the Trustee shall
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despite any such appointment remain liable for any act or omission of any
such corporation as if any such act or omission were an act or omission of
the Trustee.
The Trustee shall be responsible for payment of the fees and expenses of
any corporation appointed under this clause.
21.5 Trustee's power to appoint attorneys and agents
The Trustee may in carrying out and performing its duties and obligations
contained in this deed appoint any person to be its attorney, agent or
delegate for such purposes and with such powers, authorities and
discretions (not exceeding those vested in the Trustee) as the Trustee
thinks fit including, without limitation:
(a) power for the attorney or agent to delegate or sub-delegate any such
powers, authorities or discretions;
(b) power to authorise the issue in the name of the Trustee documents
bearing facsimile signatures of the Trustee or of the attorney or
agent (either with or without proper manuscript signatures of their
officers); and
(c) such provisions for the protection and convenience of those dealing
with any such attorney, agent, delegate or sub-delegate as they may
think fit,
but excluding the obligation to receive or make payments. Any appointment
or delegation by the Trustee shall be made with due care.
21.6 Generally unlimited discretion
Subject to the Trustee duly observing its duties, covenants and obligations
under this deed and any other Transaction Document, the Trustee has
absolute discretion as to the exercise or non-exercise of the trusts,
powers, authorities and discretions vested in it by this deed.
22. TRUSTEE'S COVENANTS
22.1 General
The provisions contained in this clause 22 shall be for the benefit of the
Trust Manager, each Servicer, the Beneficiaries, the Noteholders and other
Creditors jointly and severally.
22.2 To act continuously as Trustee
The Trustee shall act continuously as trustee of each Trust until the Trust
is terminated as provided by this deed or the Trustee has retired or been
removed from office in the manner provided under this deed.
22.3 To act honestly, diligently and prudently
The Trustee shall:
(a) (act honestly) act honestly and in good faith in the performance of
its duties and in the exercise of its discretions under this deed;
(b) (prudently) subject to this deed, exercise such diligence and
prudence as a prudent person of business would exercise in performing
its express functions and in exercising its discretions under this
deed, having regard to the interests of the Beneficiaries, the
Noteholders and other Creditors;
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(c) (conduct its business properly) use its best endeavours to carry on
and conduct its business in so far as it relates to this deed in a
proper and efficient manner;
(d) (records) keep, or ensure that the Trust Manager keeps, accounting
records which correctly record and explain all amounts paid and
received by the Trustee;
(e) (separate Trusts and Assets) keep the Trusts separate from each other
Trust which is constituted under this deed and account for Assets and
liabilities of the Trust separately from those of other Trusts; and
(f) (do all things necessary to perform obligations) do everything and
take all such actions which are necessary (including obtaining all
appropriate Authorisations) to ensure that it is able to exercise all
its powers and remedies and perform all its obligations under this
deed, the Transaction Documents and all other deeds, agreements and
other arrangements entered into by the Trustee under this deed.
22.4 No dispositions of Assets except in accordance with Trust Deed
Except as provided in this deed, the Trustee shall not, nor shall it permit
any of its officers to, sell, mortgage, charge or otherwise encumber or
part with possession of any Asset.
22.5 Indemnity re acts of Trustee's delegates
The Trustee covenants that its officers, employees, agents, attorneys,
delegates and sub-delegates shall duly observe and perform the covenants
and obligations of this deed in the same manner as is required of the
Trustee, and agrees to indemnify the Trust Manager for its own benefit or
for the benefit of the Trusts (as the occasion may require) against any
loss or damage that the Trusts, the Trust Manager, the Servicers, the
Beneficiaries, the Noteholders or other Creditors incur or sustain in
connection with, or arising out of, any breach or default by such officers,
employees, agents, delegates and persons in the observance or performance
of any such covenant or obligation, to the extent that the Trustee would
have been liable if that breach or default had been the Trustee's own act
or omission.
22.6 Forward notices etc to Trust Manager
The Trustee shall without delay forward to the Trust Manager all notices,
reports, circulars and other documents received by it or on its behalf as
trustee of a Trust except to the extent they are received from the Trust
Manager.
22.7 Trustee will implement Trust Manager's directions
Subject to this deed and any other Transaction Document to which it
is a party, the Trustee will act on all directions given to it by the
Trust Manager in accordance with the terms of this deed.
22.8 Custodian
(a) Subject to any relevant Series Notice, the Servicer for a Trust will
act as custodian of the Relevant Documents for that Trust and any
other documents of title to or evidencing any Assets of that Trust in
accordance with the relevant Servicing Agreement. In the absence of
any agreed procedures the Trustee shall hold those documents on and
in accordance with procedures which a reputable and prudent person in
its position would adopt.
(b) The Trustee may lodge any Relevant Document or any documents of title
to or evidencing any Asset in its vault or, with the prior consent of
the relevant Approved Seller, the relevant Servicer and the Trust
Manager, in the vault of a subcustodian,
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on behalf of the Trustee or with Austraclear or another recognised
clearing system to the order of the Trustee or subcustodian on behalf
of the Trustee.
(c) Where the Trustee acts as custodian of any Relevant Document or any
documents of title to or evidencing any Asset, it shall allow the
Trust Manager, any relevant Servicer and any relevant Approved Seller
to have access to them during normal business hours on reasonable
notice.
22.9 Bank accounts
The Trustee will open and operate the bank accounts in accordance
with clause 27.
22.10 Perform Transaction Documents
The Trustee shall properly perform the functions which are necessary
for it to perform under all Transaction Documents in respect of a
Trust.
23. TRUSTEE'S FEES AND EXPENSES
23.1 Trustee's Fee
In consideration of the Trustee performing its functions and duties under
this deed, the Trustee shall be entitled to deduct from each Trust a fee in
the amount and at the times set out in the corresponding Series Notice.
23.2 Reimbursement of expenses
In addition to the Trustee's remuneration under clause 23.1, the Trustee
shall pay, or be reimbursed, from a Trust all Expenses that relate to the
Trust. These will be paid or reimbursed in accordance with the
corresponding Series Notice.
23.3 Segregation of Trust Expenses
The Trust Manager directs the Trustee to segregate, and apply, all
Expenses to the Trust to which they relate.
24. REMOVAL, RETIREMENT AND REPLACEMENT OF TRUSTEE
24.1 Retirement for Trustee's Default
The Trustee shall retire as trustee of the Trusts if and when
directed to do so by the Trust Manager in writing (which direction
must be copied to each Servicer and, if any of the Trusts are Rated
Trusts, the Designated Rating Agency). A direction may only be given
on the occurrence of one or more of the following events (each a
Trustee's Default):
(a) (Insolvency Event) an Insolvency Event has occurred and is continuing
in relation to the Trustee;
(b) (rating downgrade) any action is taken by or in relation to the
Trustee which causes the rating of any Notes to be downgraded;
(c) (breach by the Trustee) the Trustee, or any employee, delegate, agent
or officer of the Trustee, breaches any obligation or duty imposed on
the Trustee under this deed or any other Transaction Document in
relation to a Trust (including any gross negligence, wilful default
or failure to act honestly and in good faith and to exercise
diligence and prudence having regard to the interests of the relevant
Mortgagees (as defined in the relevant Security Trust Deed)) where
the Trust Manager reasonably
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believes it may have an Adverse Effect and the Trustee fails or
neglects after 30 days' notice from the Trust Manager to remedy that
breach;
(d) (merger or consolidation) the Trustee merges or consolidates with
another entity without obtaining the consent of the Trust Manager
(which consent will not be unreasonably withheld in the case of a
bona fide corporate reorganisation of the Trustee where no Insolvency
Event has occurred) and ensuring that the resulting merged or
consolidated entity assumes the Trustee's obligations under the
Transaction Documents; or
(e) (change in control) there is a change in effective control of the
Trustee from that subsisting as at the date of this deed unless
approved by the Trust Manager.
24.2 Trust Manager may remove recalcitrant Trustee
(a) In default of the Trustee retiring in accordance with clause 24.1
within 30 days of being directed by the Trust Manager in writing to
do so the Trust Manager shall have the right to and shall by deed
poll executed by the Trust Manager remove the Trustee from its office
as trustee of the Trusts.
(b) Where the Trustee is removed because of its default, it shall (as
trustee of the relevant Trust) bear the costs of its removal. The
Trustee indemnifies the Trust Manager and the Trust for those costs.
24.3 Trust Manager appoints replacement
On the retirement or removal of the Trustee under clause 24.1 or 24.2
the Trust Manager, subject to giving prior notice to the Designated
Rating Agency in relation to a Rated Trust, shall be entitled to
appoint in writing some other statutory trustee to be the Trustee
under this deed provided that appointment will not in the reasonable
opinion of the Trust Manager materially prejudice the interests of
Noteholders. Until the appointment is completed the Trust Manager
shall act as Trustee and will be entitled to the Trustee's Fee for
the period it so acts as Trustee.
24.4 Voluntary Retirement
The Trustee may, subject to clause 24.5, resign on giving to the
Trust Manager (with a copy to the Designated Rating Agency) not less
than 3 months' notice in writing (or such other period as the Trust
Manager and the Trustee may agree) of its intention to do so.
24.5 No resignation by Trustee unless successor appointed
The Trustee must not, subject to clause 24(e), resign under clause 24.4
unless:
(a) either:
(i) it procures that, before the date on which that termination
becomes effective, another person assumes all of the
obligations of the Trustee under this deed and the relevant
Series Notices as its successor, and executes such documents as
the Trust Manager requires to become bound by this deed and the
relevant Series Notices, with effect from that date, as if it
had originally been a party to this deed and the relevant
Series Notice as the Trustee; or
(ii) the Trust Manager elects to perform itself the obligations and
functions which this deed and the relevant Series Notices
contemplate being performed by the Trustee;
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(b) the appointment of the successor Trustee, or (as the case may be) the
election of the Trust Manager, will not materially prejudice the
interests of Noteholders; and
(c) in the case of the appointment of a successor Trustee pursuant to
paragraph (a), the appointment is approved by the Trust Manager.
24.6 Trust Manager to act as Trustee if no successor appointed
If at the end of the period of notice specified in a notice given under
clause 24.4, no successor Trustee has been appointed, as contemplated by
clause 24.5(a)(i):
(a) the Trust Manager must itself perform the obligations and functions
which this deed contemplates being performed by the Trustee, until a
successor Trustee is appointed in accordance with this deed; and
(b) the resignation of the Trustee will become effective.
24.7 Trusts to be vested in new Trustee
The Trustee shall, on retirement or removal, vest the Trusts or cause these
to be vested, in the new Trustee.
24.8 Release of outgoing Trustee
On retirement or removal and provided there has been payment to the Trust
Manager or the new Trustee (as the case may be) of all sums due to it by
the outgoing Trustee at that date, the outgoing Trustee shall be released
from all further obligations under the Transaction Documents. No release
under this clause shall extend to any existing or antecedent fraud,
negligence or wilful default on the part of the outgoing Trustee or its
officers, employees, agents or delegates.
24.9 New Trustee to execute deed
On appointment of the new Trustee of the Trusts the new Trustee shall:
(a) execute a deed in such form as the Trust Manager may require under
which it undertakes to the Trust Manager (for the benefit of the
Trust Manager, Westpac, the Servicers, the Beneficiaries and the
Noteholders jointly and severally) to be bound by all the obligations
of the outgoing Trustee under the Transaction Documents from the date
of the deed;
(b) on and from the date of execution of the new deed, exercise all the
powers, enjoy all the rights and be subject to all duties and
obligations of the Trustee under the Transaction Documents as if the
new Trustee had been originally named as a party to the Transaction
Documents; and
(c) indemnify the outgoing Trustee for the amount of all Notes issued in
the name of the outgoing Trustee and maturing on or after the date of
the retirement or removal of the outgoing Trustee and for all other
liabilities and expenses incurred by the outgoing Trustee for which
it is entitled to be indemnified out of the Trusts and which have not
been recouped by it, but the liability of the new Trustee under such
indemnity shall be limited to the same extent provided for in clause
33.16 and any payment shall rank in the same priority under clause 30
as the corresponding liability for which the outgoing Trustee claims
such indemnification.
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24.10 Trust Manager and outgoing Trustee to settle amounts payable
(a) The Trust Manager shall be entitled to settle with the outgoing
Trustee the amount of any sums payable by the outgoing Trustee to the
Trust Manager or the new Trustee or by the Trust Manager to the
outgoing Trustee and to give or accept from the outgoing Trustee a
discharge and any such agreement or discharge shall (except in the
case of any existing or antecedent fraud, negligence or wilful
default on the part of the outgoing Trustee or its officers,
employees, agents and delegates) be conclusive and binding on all
persons (including the Trust Manager, the new Trustee, Westpac, the
Beneficiary and the Noteholders).
(b) Even though no new Trustee is appointed in its place, the Trust
Manager may make such arrangements as it thinks fit for the discharge
of the outgoing Trustee from any existing liability and any liability
which might arise under this deed and any discharge of the outgoing
Trustee in accordance with such arrangements shall (except as stated
above) be conclusive and binding on all persons claiming under the
Transaction Documents.
24.11 Outgoing Trustee to retain lien
Notwithstanding the retirement or removal of the outgoing Trustee and the
indemnity in favour of the Trustee by the new Trustee as contemplated by
clause 24.8(c), the outgoing Trustee will retain a lien over a Trust to
meet claims of any Creditors of the Trustee as trustee of the Trust to the
extent that the claims of those Creditors are not properly and duly
satisfied by the incoming Trustee.
24.12 Delivery of books, documents, etc
(a) On the retirement or removal of the Trustee in accordance with the
provisions of this clause 24 the outgoing Trustee shall immediately
deliver to the new Trustee appointed in respect of any Trust (or the
Trust Manager if it is acting as Trustee) the Data Base and all other
books, documents, records and property relating to the Trusts. Any
related costs and expenses incurred by the incoming Trustee (but not
the outgoing Trustee) are to be paid out of the relevant Trust.
(b) The outgoing Trustee shall be entitled to take, and retain as its own
property, copies of such books, documents and records. Each of the
Trust Manager and the new Trustee shall produce the originals of such
books, documents and records in its possession on the giving of
reasonable written notice by the outgoing Trustee.
24.13 Notice to Noteholders of New Trustee
As soon as practicable after the appointment of a new Trustee under this
clause 24, the new Trustee shall notify the Noteholders of its appointment.
PART G - SERVICERS AND LEAD MANAGERS
25. APPOINTMENT OF SERVICER
Each Servicer shall be appointed, and shall act, as servicing agent for the
Trustee in respect of any Receivables, Receivable Securities and Related
Securities on and subject to the terms of the relevant Servicing Agreement.
26. LEAD MANAGER
26.1 Appointment of Lead Manager
(a) The Trust Manager may appoint any one or more persons to be Lead
Manager in relation to any issue of Notes, with remuneration
determined by the Trust Manager.
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An issue of Notes may have more than one Lead Manager. An issue of
Notes under a Trust may have a different Lead Manager, or different
Lead Managers, from other issues of Notes under that Trust.
(b) The Trust Manager may terminate the appointment of a Lead Manager at
any time.
26.2 Fees
The Trustee shall be entitled to pay from each Trust for which any
person is a Lead Manager fees (if any) to that person in the amount
and at the times set out in the corresponding Note Issue Direction.
PART H - ADMINISTRATION OF TRUSTS
27. BANK ACCOUNTS
27.1 Opening of bank accounts
(a) (Collection Account) The Trustee must open at least one account with
an Approved Bank into which Collections can be paid.
(b) (Separate bank accounts for each Trust) The Trustee must open and
maintain a separate account with an Approved Bank in respect of each
Trust.
(c) (Additional bank accounts) The Trustee may open such additional
accounts with an Approved Bank in respect of a Trust as it sees fit
or as required by the Transaction Documents. In relation to a Rated
Trust, only the accounts specified in the Transaction Documents for
that Trust may be opened.
(d) (Change bank accounts) If an account in respect of a Trust is held
with a bank which ceases to be an Approved Bank then the Trustee
shall as soon as practicable on becoming aware of that fact (and in
any event within 30 days):
(i) close that account: and
(ii) transfer all funds standing to the credit of that account to
another existing account in respect of that Trust with an
Approved Bank or, if none, the Trustee shall immediately open
an account with an Approved Bank.
27.2 Location of bank accounts
(a) (Central bank account) Unless otherwise directed in writing by the
Trust Manager, the central bank account of each Trust shall for so
long as Westpac is an Approved Bank be opened and maintained at a
branch in New South Wales of Westpac.
(b) (Interstate branch bank accounts) The Trustee may, if necessary or
desirable for the operation of a Trust, open bank accounts with a
branch outside New South Wales of an Approved Bank (which shall
unless the Trust Manager otherwise determines be Westpac for so long
as it is an Approved Bank) provided that if such accounts are opened
it shall enter into arrangements so that as soon as practicable after
the receipt of moneys to the credit of such accounts, such moneys are
to be transferred to the credit of the central bank accounts of the
Trust in New South Wales (subject to a direction to the contrary by
the Trust Manager under clause 27.2(a)).
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27.3 Name of bank accounts
Each bank account for a Trust shall be opened by the Trustee in its
name as trustee of the Trust.
27.4 Purpose of bank accounts
No bank account shall be used for any purpose other than for the relevant
Trust in respect of which the account is maintained and other than in
accordance with this deed.
27.5 Authorised signatories
The only authorised signatories for any bank account are to be officers or
employees of the Trustee or a Related Corporation of the Trustee.
27.6 Trust Manager not entitled to have access
Except as expressly provided in this deed the Trust Manager may not deal
with any bank account or the moneys in any bank account in any way.
27.7 Bank statements and account information
(a) (Copies of bank statements) The Trustee shall promptly on receipt of
a statement in respect of each bank account for a Trust provide a
copy to the Trust Manager (and any other person from time to time
specified by the Trust Manager).
(b) (Direct access) Subject to the Privacy Act, the Trustee authorises
the Trust Manager (and any other person from time to time specified
by the Trust Manager) to obtain direct from an Approved Bank,
statements and information in relation to each bank account of a
Trust.
27.8 Deposits
Subject to this deed, the Servicing Agreement and any relevant Series
Notice and except in respect of business transacted through the Austraclear
System, the Trustee shall pay (or cause the relevant Servicer to pay) into
a bank account of a Trust within one Business Day of receipt the following
moneys and proceeds:
(a) (subscription moneys) all subscription moneys raised in respect of
Notes issued by the Trustee as trustee of the Trust;
(b) (proceeds) all proceeds of the Authorised Investments and Support
Facilities in respect of the Trust; and
(c) (other moneys) all other moneys received by the Trustee in respect of
the Trust.
27.9 Withdrawals
Subject to this deed, the Trustee shall withdraw funds from a bank account
of a Trust and apply the same when necessary for the following outgoings:
(a) (Authorised Investments) purchasing Authorised Investments and making
payments required in connection with Authorised Investments;
(b) (payments to Creditors etc) making payments to the Creditors or the
Beneficiary in relation to the Trust; and
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(c) (other payments) making payments to Austraclear or any other person
of Expenses or other amounts entitled to be paid to or retained for
their respective benefit under this deed or any other Transaction
Document.
27.10 All transactions through central accounts
(a) (Receipts and outgoings) Unless otherwise directed by the Trust
Manager, all moneys and proceeds in relation to a Trust referred to
in clause 27.8 shall, subject to Clause 27.10(b), be credited to the
central bank account of the Trust (whether credited direct to the
central account or transferred from an interstate bank account of the
Trust) and all outgoings of a Trust referred to in clause 27.9 shall,
subject to clause 27.10(b), be paid from the central bank account of
the Trust (either by direct payment or by transfer to an interstate
bank account of the Trust).
(b) (Bank charges, etc) Any amounts referred to in paragraph (i) of the
definition of Expenses in clause 1.1 to the extent they relate to an
interstate bank account of a Trust may be deducted or withdrawn
direct from the interstate bank account.
28. AUDITOR
28.1 Auditor must be registered
The Auditor of each Trust shall be a firm of chartered accountants some of
whose members are Registered Company Auditors.
28.2 Appointment of Auditor
The Auditor of each Trust shall be a person nominated by the Trust Manager
and shall be appointed by the Trustee within three months of the creation
of that Trust under this deed on such terms and conditions as the Trustee
and the Trust Manager agree. The Auditor holds office subject to this
clause.
28.3 Removal and retirement of Auditor
(a) (Removal by Trustee) Subject to paragraph (b) the Trustee may, on
giving one month's notice to the Auditor and the Designated Rating
Agency, remove the Auditor as Auditor of a Trust on reasonable
grounds (to be notified to the Trust Manager before notice of removal
is given to the Auditors).
(b) (Removal at request of Trust Manager or Noteholders) The Trustee may,
on the recommendation of the Trust Manager and shall, if so requested
by an Extraordinary Resolution of Noteholders of a Trust, remove the
Auditor as Auditor of a Trust.
(c) (Retirement) An Auditor may retire at any time on giving six months'
written notice (or such shorter period approved by the Trust Manager
and the Trustee) to the Trustee of its intention to retire as Auditor
of a Trust.
28.4 Appointment of replacement Auditor
The Trustee shall fill any vacancy in the office of Auditor by appointing:
(a) where the Auditor was removed by Extraordinary Resolution of
Noteholders, and a person was nominated to be appointed as Auditor in
that resolution, that person; or
(b) in any other case, a person qualified to be appointed Auditor under
this clause.
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28.5 Auditor may have other offices
An Auditor may also be the auditor of the Trustee, the Trust Manager, a
Servicer, a Lead Manager or any of their Related Bodies Corporate or of any
other trust (whether of a similar nature to the Trusts or otherwise) but a
member of the firm appointed as an Auditor may not be an officer or
employee, or the partner of an officer or an employee, of the Trustee, the
Trust Manager, a Servicer, the Lead Manager (if any) or any of their
Related Bodies.
28.6 Access to working papers
Each Auditor shall be appointed on the basis that it will make its
working papers and reports available for inspection by the Trustee
and the Trust Manager.
28.7 Auditor's remuneration and costs
The Trustee may pay out of a Trust, or reimburse itself from a Trust,
the reasonable remuneration of the Auditor of the Trust as agreed
between the Trust Manager and the Auditor and notified to the Trustee
and any reasonable expenses of the Auditor of the Trust sustained in
the course of the performance of the duties of the Auditor.
28.8 Access to information
The Auditor of a Trust shall be entitled to require from the Trust Manager
and the Trustee, and they shall furnish to the Auditor, such information,
accounts and explanations as may be necessary for the performance by the
Auditor of its duties under this deed.
29. ACCOUNTS AND AUDIT
29.1 Keeping Accounts
The Trust Manager and the Trustee shall, having regard to their separate
functions, keep or cause to be kept accounting records which provide a true
and fair view of all sums of money received and expended by or on behalf of
each Trust, the matters in respect of which such receipt and expenditure
takes place, of all sales and purchases of Authorised Investments and of
the assets and liabilities of each Trust. The Trust Manager and the Trustee
shall furnish each to the other from time to time any information necessary
for this purpose.
29.2 Location and inspection of books
The accounting records of each Trust shall be kept at the office of the
Trustee or the Trust Manager (as the case may be) or at such other place as
the Trustee and the Trust Manager may from time to time agree and shall be
open to the inspection of the Trust Manager, the Trustee, the Auditor of
the Trust and the relevant Beneficiary on reasonable notice and during
usual business hours.
29.3 Accounts to be kept in accordance with Approved Accounting Standards
The accounting records of each Trust shall be maintained in accordance with
the Approved Accounting Standards and in a manner which will enable true
and fair Accounts of the Trust to be prepared and audited in accordance
with this deed.
29.4 Preparation of annual Accounts
The Trust Manager shall cause the preparation of the Accounts for each
Financial Year of each Trust.
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29.5 Annual audited Accounts
The Trust Manager shall require the Auditor to audit the Accounts prepared
by the Trust Manager in respect of each Trust within 3 months of the end of
each financial year of the Trust.
29.6 Inspection and copies of audited Accounts
A copy of the audited Accounts of a Trust and any Auditor's report shall be
available for inspection, but not copying, by the Noteholders in relation
to the Trust at the offices of the Trust Manager.
29.7 Tax returns
The Trust Manager shall, or shall require the Auditor to:
(a) prepare and lodge all necessary income tax returns and other
statutory returns for each Trust; and
(b) confirm that all the income of each Trust has either been distributed
or offset by deductible losses or expenses or that no Trust has any
liability to pay income tax.
29.8 Audit
The Trust Manager must require the Auditor, as part of each annual audit
carried out by the Auditor in relation to each Trust, to provide a written
report to the Trustee, the Security Trustee and the Designated Rating
Agency as to:
(a) the nature and extent of the audit performed (as specified by the
Trust Manager);
(b) any breaches of the obligations of any of the parties to the
Transaction Documents for that Trust identified by the Auditor within
the parameters of the audit specified under paragraph (a); and
(c) any errors in or omissions from any reports or information provided
by any party to a Transaction Document for that Trust to another
party under that Transaction Document identified by the Auditor
within the parameters of the audit specified under paragraph (a),
that report to be in the form agreed by the Trustee and the Trust
Manager and previously notified to the Designated Rating Agency.
29.9 No Responsibility for Servicer
Provided that it complies with its obligations under clause 18, the Trust
Manager shall have no liability to any person under this clause 29 if it
fails to keep records relating to the Assets of a Trust and that failure is
caused by the failure of the relevant Servicer to keep any records and
provide any reports which it is obliged to keep and provide under the
relevant Servicing Agreement.
30. PAYMENTS
30.1 CASHFLOW ALLOCATION METHODOLOGY
Collections in relation to a Trust and other amounts credited to the
Collection Account for a Trust will be allocated by the Trust Manager on
behalf of the Trustee, and paid by the Trustee as directed by the Trust
Manager, in accordance with the Series Notice for that Trust.
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30.2 Payments to Beneficiary
(a) (Distributable Income absolutely vested) The Beneficiary of a Trust
shall as at the end of each Financial Year of that Trust have an
absolute vested interest in the Distributable Income of that Trust
for that Financial Year.
(b) (Distributable Income due as at close of Financial Year) The
Distributable Income of a Trust for a Financial Year (to the extent
not previously distributed) shall, subject to clause 30.3, constitute
a debt due as at the end of the Financial Year by the Trustee as
trustee of the Trust to the Beneficiary entitled to the Distributable
Income under clause 30.2(a) and shall, subject to clause 30.3, be
payable under clause 30.2(c).
(c) (Payment of Distributable Income) Subject to clause 30.3, the Trustee
may make interim distribution of the Distributable Income of a Trust
to the relevant Beneficiary in accordance with the terms of the
Series Notice for that Trust and shall as soon as practicable after
the end of a Financial Year transfer an amount representing the
Distributable Income of the Trust (to the extent not previously
distributed) from the central bank account of the Trust to the bank
accounts of the Beneficiary of the Trust.
(d) (Residual capital) On the termination of a Trust, the surplus capital
of the Trust remaining after satisfaction by the Trustee of all its
obligations in respect of the Trust shall be paid to the Beneficiary
of the Trust.
30.3 Subordination of Beneficiary's Entitlements
(a) No moneys may be paid out of a Trust during a Financial Year to a
Beneficiary under clause 30.2, whilst there is any amount due, but
unpaid, which is in accordance with clause 30.1 to be paid in
priority to those amounts and before the Trustee is satisfied, after
consulting with the Trust Manager, that sufficient allowance has been
made for those priority amounts in relation to the Trust, accruing
during the Financial Year. To the extent that there is an amount
payable under clause 30.1 which is to be paid in priority to the
amounts payable to the Beneficiary, the Beneficiary directs the
Trustee to meet the amount payable under clause 30.1 as an
application of the Beneficiary's entitlement to the Distributable
Income of the Trust.
(b) Notwithstanding paragraph (a), once an amount is paid out of a Trust
to a Beneficiary during a Financial Year, that amount may not be
recovered from that Beneficiary for any reason or by any person
except to the extent that amount was paid in error.
30.4 Insufficient moneys
If after the application of the provisions of clauses 30.1 and 30.2
there is insufficient money available to the Trustee in respect of a
Trust to pay the full amount due to Noteholders in the Trust, the
deficiency shall, subject to the Series Notice for the Notes or any
Class of the Notes issued in relation to the Trust, be borne by the
Noteholders in the manner set out in the relevant Series Notice.
30.5 Income or capital
The Trust Manager shall determine whether any amount is of an income
or capital nature in accordance with clause 30.6 and, subject only
to a contrary determination by the Auditor of
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the relevant Trust in accordance with clause 30.6, the determination by the
Trust Manager shall be final and binding.
30.6 Income of Trust
(a) The income of each Trust for each Financial Year will include:
(i) any amount (including without limitation a profit made by the
Trustee) which is included in the assessable income of the
Trust for the purposes of the Taxation Act (other than Part
IIIA);
(ii) any realised capital gains derived by the Trustee to the extent
to which the same are reflected in the net capital gain (if
any) calculated under Part IIIA of the Taxation Act which is
included in the assessable income of the Trust for the purposes
of the Taxation Act,
and otherwise will be determined in accordance with Approved
Accounting Standards. All periodic income of the Trust will be deemed
to accrue from day to day and will be brought to account as arising
on a daily basis where that is required for tax purposes (using a
daily accruals method of accounting where that is the method required
for tax purposes).
(b) The expenses of each Trust for each Financial Year will include
losses or outgoings which are allowable deductions in calculating the
net income of the Trust under Section 95(1) of the Taxation Act and
otherwise will be determined in accordance with Approved Accounting
Standards. All periodic expenses of the Trust will be deemed to
accrue from day to day and will be brought to account on a daily
basis where that is required for tax purposes (using a daily accruals
method of accounting where that is the method required for tax
purposes).
(c) The Trust Manager will determine the Net Accounting Income for each
Trust for each Financial Year by applying against the income of the
Trust for that Financial Year:
(i) so much of the expenses specified in paragraph (b) as are
referable to that Financial Year; and
(ii) any Net Accounting Loss carried forward from a preceding
Financial Year.
The balance of the income of the Trust for the Financial Year
remaining after those applications will constitute the Net Accounting
Income for that Financial Year except where the amount is negative,
in which case, it will be the Net Accounting Loss for that Financial
Year.
(d) The Net Accounting Income in respect of a Financial Year for each
Trust will constitute the distributable income (Distributable Income)
of the Trust for that Financial Year.
31. INDEMNITY
The Trust Manager fully indemnifies the Trustee from and against any
expense, loss, damage, liability, fines, forfeiture, legal fees and related
costs which the Trustee may incur (whether directly or indirectly) as a
consequence of:
(a) any Trust Manager's Default; and
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(b) a failure by the Trust Manager to perform its duties or comply with
its obligations under any Transaction Document.
PART I - REPRESENTATIONS, POWERS AND INDEMNITIES
32. REPRESENTATIONS AND WARRANTIES
32.1 General representations and warranties
Each party makes the following representations and warranties for the
benefit of the others:
(a) (status) it is a corporation duly incorporated and existing under the
laws of its place of incorporation and the Commonwealth of Australia
or, in the case of Westpac (in whatever capacity), the ▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇;
(b) (power) it has the power to enter into and perform its obligations
under each Transaction Document to which it is a party, to carry out
the transactions contemplated by this deed and to carry on its
business as now conducted or contemplated;
(c) (corporate authorisations) it has taken all necessary action to
authorise the entry into and performance of each Transaction Document
to which it is a party and to carry out the transactions contemplated
by such Transaction Documents;
(d) (obligations binding) its obligations under each Transaction Document
to which it is a party are legal, valid, binding and enforceable in
accordance with their respective terms;
(e) (transactions permitted) the execution and performance by it of each
Transaction Document to which it is a party and each transaction
contemplated under those documents will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a
default under, any provision of:
(i) its memorandum or articles of association or, in the case of
Westpac (in whatever capacity), the Bank of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇; or
(ii) any other document or agreement which is binding on it or its
assets,
which is material in the context of performing its duties under each
Transaction Document to which it is a party; and
(f) (Authorisations) it holds all Authorisations necessary to carry on
its business and to act as required by each Transaction Document to
which it is a party and by law to comply with the requirements of any
legislation and subordinate legislation (including, without
limitation and to the extent relevant, any Consumer Credit
Legislation).
32.2 Trustee entitled to assume accuracy of representations and warranties
Each Noteholder acknowledges that the Trustee is not under any
obligation to:
(a) make any enquiries which a prudent purchaser of such assets would be
expected to make;
(b) conduct any investigation to determine if the representations and
warranties given by the Approved Seller in relation to the
Receivable, Receivable Securities and Related Securities are
incorrect; or
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(c) to test the truth of those representations and warranties,
and is entitled to conclusively accept and rely entirely on the
Receivables satisfying the Eligibility Criteria and on the accuracy
of the representations and warranties made by a Servicer or an
Approved Seller, unless the Trustee has actual notice of any event to
the contrary.
33. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY
GENERALLY
Without prejudice to any indemnity allowed by law or elsewhere in
this deed given to the Trustee or the Trust Manager, it is expressly
declared as follows.
33.1 Reliance on certificates
The Trustee and the Trust Manager shall not incur any liability in respect
of any action taken or thing suffered by it in reliance on any notice,
resolution, direction, consent, certificate, receipt, affidavit, statement,
valuation report or other document (including without limitation, any of
the above submitted or provided by the Trust Manager (in the case of the
Trustee only), by the Trustee (in the case only of the Trust Manager) or by
an Approved Seller or a Servicer) which it has no reason to believe is not
genuine, signed by the proper parties and with appropriate authority.
Without limiting the generality of the above the Trustee may conclusively
rely on :
(a) (statements by the Trust Manager) a statement by the Trust Manager
that an investment of the Trust is an Authorised Investment;
(b) (Note Issue Directions) a Note Issue Direction issued by the Trust
Manager; and
(c) (certificates) a certificate by the Trust Manager under this deed.
In preparing any notice, certificate, advice or proposal the Trustee
and the Trust Manager shall be entitled to assume that each person
under any Authorised Investment, Support Facility, Receivable,
Receivable Security, Related Securities, other Transaction Document
or any other deed, agreement or arrangement incidental to any of the
above or to any Trust, will perform their obligations under those
documents in full by the due date and otherwise in accordance with
their terms.
33.2 Trustee and Trust Manager may assume signed documents to be genuine
(a) (Reliance on documents) Subject to sub-clause (b):
(i) (Trustee may assume authenticity) the Trustee shall be entitled
to assume the authenticity and validity of any signature on any
application, request or other instrument or document delivered
to the Trustee (other than a document executed or purporting to
be executed by or on behalf of a Servicer, an Approved Seller
or the Trust Manager, as to which clause 33.3 shall apply);
(ii) (Trustee not liable for loss on forgeries) the Trustee shall
not be in any way liable to make good out of its own resources
any loss incurred by any person in the event of any signature
on any document being forged or otherwise failing to bind the
person whose signature it purports to be or the person on whose
behalf it purports to be executed;
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(iii) (Trust Manager may assume authenticity) the Trust Manager shall
be entitled to rely on the authenticity and validity of any
signature on any application, request or other instrument or
document delivered to the Trust Manager (other than a document
executed or purporting to be executed by or on behalf of the
Trustee, an Approved Seller or a Servicer, as to which clause
33.4 shall apply); and
(iv) (Trust Manager not liable for loss on forgeries) the Trust
Manager shall not be in any way liable to make good out of its
own resources any loss incurred by any person in the event of
any signature on any document being forged or otherwise failing
to bind the person whose signature it purports to be or the
person on whose behalf it purports to be executed.
(b) (Limitations on assumptions where actual knowledge) The Trustee or
the Trust Manager shall not be entitled to the benefit of paragraph
(a) in relation to an application, request or other instrument or
document if it was actually aware that the signature was not genuine.
33.3 Trustee's reliance on Trust Manager, Approved Seller or Servicer
(a) (Trust Manager's Authorised Signatories are sufficient evidence)
Whenever any certificate, notice, proposal, direction, instruction or
other communication is to be given by the Trust Manager, an Approved
Seller or a Servicer to the Trustee, the Trustee may accept as
sufficient evidence as to the form and content of a document unless
it has reason to believe that the relevant document was not signed on
behalf of the Trust Manager, the Approved Seller or the Servicer (as
the case may be) or by any Authorised Signatory of the Trust Manager,
the Approved Seller or the Servicer (as the case may be).
(b) (Trustee not liable for loss) The Trustee shall not be responsible
for any loss arising from any act, neglect, mistake or discrepancy of
the Trust Manager, an Approved Seller or a Servicer or any officer,
employee, agent or delegate of the Trust Manager, the Approved Seller
or the Servicer in preparing any such document or in compiling,
verifying or calculating any matter or information contained in any
such document, if the officers of the Trustee responsible for the
administration of the Trust are not actually aware, or should not
reasonably have been aware, that such document is not genuine and
correct, whether or not an error in any such information, document,
form or list is reproduced by the Trustee in any step taken by it.
33.4 Trust Manager's reliance on Trustee, Approved Seller or Servicer
(a) (Trustee's Authorised Signatories are sufficient evidence) Whenever
any certificate, notice, proposal, direction, instruction or other
communication is to be given by the Trustee, an Approved Seller or a
Servicer to the Trust Manager, the Trust Manager may (unless, in the
case of such communication from the Servicer, the Trust Manager and
the Servicer are the same entity) accept as sufficient evidence as to
the form and content of a document unless it has reason to believe
that the relevant document was not signed on behalf of the Trustee,
the Approved Seller or the Servicer (as the case may be) or by any
Authorised Signatory of the Trustee, the Approved Seller or the
Servicer (as the case may be).
(b) (Trust Manager not liable for loss) The Trust Manager shall not be
responsible for any loss arising from any act, neglect, mistake or
discrepancy of the Trustee, an Approved Seller or a Servicer or any
officer, employee, agent or delegate of the Trustee, the Approved
Seller or the Servicer in preparing any such document or in
compiling, verifying or calculating any matter or information
contained in any such
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document, if the officers of the Trust Manager responsible for the
administration of the Trust are not actually aware, or should not
reasonably have been aware, that such document is not genuine and
correct, whether or not an error in any such information, document,
form or list is reproduced by the Trust Manager in any step taken by
it.
33.5 Compliance with laws
The Trustee and the Trust Manager shall not incur any liability to
anyone in respect of any failure to perform or to do any act or thing
which by reason of any provision of any relevant present or future
law of any place or any ordinance, rule, regulation or by law or of
any decree, order or judgment of any competent court or other
tribunal, the Trustee and/or the Trust Manager shall be hindered,
prevented or forbidden from doing or performing.
33.6 Taxes
The Trustee and the Trust Manager shall not be liable to account to any
person for any payments made in good faith to any duly empowered Government
Agency of any Australian Jurisdiction or any other place for Taxes or other
charges on any of the Trusts or on any Notes or with respect to any
transaction under or arising from this deed or any other Transaction
Document notwithstanding that any such payment ought or need not have been
made.
33.7 Reliance on experts
The Trustee and the Trust Manager may act on the opinion or statement or
certificate or advice of or information obtained from the Trust Manager (in
the case of the Trustee only), the Trustee (in the case of the Trust
Manager only), a Servicer, barristers or solicitors (whether instructed by
the Trust Manager or the Trustee), bankers, accountants, brokers, valuers
and other persons believed by it in good faith to be expert or properly
informed in relation to the matters on which they are consulted and the
Trustee and the Trust Manager shall not be liable for anything done or
suffered by it in good faith in reliance on such opinion, statement,
certificate, advice or information.
33.8 Oversights of others
Subject to this deed, the Trustee and the Trust Manager shall not be
responsible for any act, omission, misconduct, mistake, oversight, error of
judgment, forgetfulness or want of prudence on the part of the Trust
Manager (in the case of the Trustee only), the Trustee (in the case of the
Trust Manager only), a Servicer or agent appointed by the Trustee or the
Trust Manager or on whom the Trustee or the Trust Manager is entitled to
rely under this deed (other than a Related Corporation), attorney, banker,
receiver, barrister, solicitor, agent or other person acting as agent or
adviser to the Trustee or the Trust Manager.
33.9 Powers, authorities and discretions
Except as otherwise provided in this deed and in the absence of fraud,
negligence or wilful default, the Trustee and the Trust Manager shall not
be in any way responsible for any loss (whether consequential or
otherwise), costs, damages or inconvenience that may result from the
exercise or non-exercise of any powers, authorities and discretions vested
in it.
33.10 Impossibility or impracticability
If for any reason whatsoever it becomes impossible or impracticable to
carry out any or all of the provisions of this deed or any other
Transaction Document the Trustee and the Trust Manager shall not be under
any liability and, except to the extent of their own fraud,
Page 99
negligence or wilful default, nor shall either of them incur any liability
by reason of any error of law or any matter or thing done or suffered or
omitted to be done in good faith by either of them or their respective
officers, employees, agents or delegates.
33.11 Duties and charges
The Trustee and the Trust Manager shall not be required to effect any
transaction or dealing with any Notes or with all or any part of the
Authorised Investments of a Trust on behalf or at the request of any
Noteholder or other person unless such Noteholder or other person (as the
case may be) shall first have paid in cash or otherwise provided to its
satisfaction for all duties, Taxes, governmental charges, brokerage,
transfer fees, registration fees and other charges (collectively duties and
charges) which have or may become payable in respect of such transaction or
dealing but the Trustee and the Trust Manager shall be entitled if it so
thinks fit to pay and discharge all or any of such duties and charges on
behalf of the Noteholder or other person and to retain the amount so paid
of any moneys or property to which such Noteholder or other person may be
or become entitled under this deed.
33.12 Legal and other proceedings
(a) (Indemnity for legal costs) The Trustee and the Trust Manager shall
be indemnified out of a Trust for all legal costs and disbursements
and all other cost, disbursements, outgoings and expenses incurred by
the Trustee and the Trust Manager in connection with:
(i) the enforcement or contemplated enforcement of, or preservation
of rights under; and
(ii) without limiting the generality of paragraph (i) above, the
initiation, defence, carriage and settlement of any action,
suit, proceeding or dispute in respect of,
this deed or any other Transaction Document or otherwise under or in
respect of the Trust provided that the enforcement, contemplated
enforcement or preservation by the Trustee of the rights referred to
in paragraph (i) or the court proceedings referred to in paragraph
(ii) (other than in each case the defence of any action, suit,
proceeding or dispute brought against the Trustee), and the basis of
incurring any those costs, disbursements, outgoings and expenses by
the Trustee:
(iii) has been approved in advance by the Trust Manager or by an
Extraordinary Resolution of the Noteholders of the Trust; or
(iv) is regarded by the Trustee as necessary to protect the
interests of the Noteholders in relation to the Trust following
a breach by the Trust Manager of its obligations under this
deed and the Trustee reasonably believes that any delay in
seeking an approval under paragraph (iii) will be prejudicial
to the interests of the Noteholders in relation to the Trust.
(b) (Defence of proceedings alleging negligence etc.) Each of the Trustee
and the Trust Manager shall be entitled to claim in respect of the
above indemnity from the relevant Trust for its expenses and
liabilities incurred in defending any action, suit, proceeding or
dispute in which fraud, negligence or wilful default is alleged or
claimed against it, but on the same being proved, accepted or
admitted by it, it shall from its personal assets immediately repay
to such Trust the amount previously paid by such Trust to it in
respect of that indemnity.
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33.13 No liability except for negligence etc.
In the absence of fraud, negligence or wilful default on its part or on the
part of any of its officers, employees, agents or delegates, none of the
Trustee and the Trust Manager shall be liable personally in the event of
failure to pay moneys on the due date for payment to any Noteholder, any
Beneficiary, the Trust Manager (in the case of the Trustee), the Trustee
(in the case of the Trust Manager) or any other person or for any loss
howsoever caused in respect of any of the Trusts or to any Noteholder, any
Beneficiary, the Trust Manager (in the case of the Trustee), the Trustee
(in the case of the Trust Manager) or other person.
33.14 Further limitations on Trustee's liability
Subject to clause 33.3, the Trustee shall not be liable:
(a) (for loss on its discretions) for any losses, costs, liabilities or
expenses arising out of the exercise or non-exercise of its
discretion or for any other act or omission on its part under this
deed, any other Transaction Document or any other document except
where the exercise or non-exercise of any discretion, or any act or
omission, by the Trustee, or any of its officers, employees, agents
or delegates, constitutes fraud, negligence or wilful default;
(b) (for loss on Trust Manager's discretions) for any losses, costs
liabilities or expenses arising out of the exercise or non-exercise
of a discretion by the Trust Manager or the act or omission of the
Trust Manager except to the extent that it is caused by the
Trustee's, or any of its officer's, employee's, agent's or
delegate's, fraud, negligence or wilful default;
(c) (for loss on directions) for any losses, costs, damages or expenses
caused by its acting on any instruction or direction given to it by:
(i) the Trust Manager, a Servicer or an Approved Seller under this
deed, any other Transaction Document or any other document;
(ii) by any person under a Support Facility, Receivable or
Receivable Security; or
(iii) an Obligor,
except to the extent that it is caused by the Trustee's, or any of
its officer's, employee's, agent's or delegate's, fraud, negligence
or wilful default;
(d) (for certain defaults) for any Trust Manager's Default, Servicer
Transfer Event or Title Perfection Event; or
(e) (for acts of Servicer) without limiting the Trustee's obligations
under the Transaction Documents, for any act, omission or default of
a Servicer in relation to its custodial duties or its obligations
under the relevant Servicing Agreement.
Nothing in this clause 33.14 alone (but without limiting the
operation of any other clause of this deed) shall imply a duty on the
Trustee to supervise the Trust Manager in the performance of the
Trust Manager's functions and duties, and the exercise by the Trust
Manager of its discretions.
33.15 Further limitations on Trust Manager's liability
Subject to clause 33.4, the Trust Manager shall not be liable:
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(a) (for loss on its discretions) for any losses, costs, liabilities or
expenses arising out of the exercise or non-exercise of its
discretion or for any other act or omission on its part under this
deed, any other Transaction Document or any other document except
where the exercise or non-exercise of any discretion, or any act or
omission, by the Trust Manager, or any of its officers, employees,
agents or delegates, constitutes fraud, negligence or wilful default;
(b) (for loss on Trustee's discretions) for any losses, costs,
liabilities or expenses arising out of the exercise or non-exercise
of a discretion by the Trustee or the act or omission of the Trustee
except to the extent that it is caused by the Trust Manager's, or any
of its officer's, employee's, agent's or delegate's, fraud,
negligence or wilful default;
(c) (for loss on Trustee's directions) for any losses, costs, damages or
expenses caused by its acting on any instruction or direction given
to it by:
(i) the Trustee, the Servicer or an Approved Seller under this
deed, any other Transaction Document or any other document;
(ii) by any person under a Support Facility, Receivable or
Receivable Security; or
(iii) an Obligor,
except to the extent that it is caused by the Trust Manager's, or any
of its officer's, employee's, agent's or delegate's, fraud,
negligence or wilful default;
(d) (for certain defaults) for any Trustee's Default or Title Perfection
Event; or
(e) (for acts of Servicer) for any act, omission or default of a Servicer
in relation to its custodial duties or its obligations under the
relevant Servicing Agreement.
Nothing in this clause 33.15 alone (but without limiting the operation of
any other clause of this deed) shall imply a duty on the Trust Manager to
supervise the Trustee in the performance of the Trustee's functions and
duties, and the exercise by the Trustee of its discretions.
33.16 Liability of Trustee limited to its right of indemnity
(a) This deed applies to the Trustee only in its capacity as trustee of
each Trust and in no other capacity. A liability arising under or in
connection with this deed or a Trust can be enforced against the
Trustee only to the extent to which it can be satisfied out of
property of the relevant Trust out of which the Trustee is actually
indemnified for the liability. This limitation of the Trustee's
liability applies despite any other provision of this deed and
extends to all liabilities and obligations of the Trustee in any way
connected with any representation, warranty, conduct, omission,
agreement or transaction related to this deed or a Trust.
(b) The parties (including without limitation, the Beneficiary) other
than the Trustee may not ▇▇▇ the Trustee personally or seek the
appointment of a liquidator, administrator, receiver or similar
person to the Trustee or prove in any liquidation, administration or
arrangement of or affecting the Trustee.
(c) The provisions of this clause 33.16 shall not apply to any obligation
or liability of the Trustee to the extent that it is not satisfied
because under this deed or the relevant Series Notice or by operation
of law there is a reduction in the extent of the Trustee's
indemnification out of the assets of the Trust, as a result of the
Trustee's fraud, negligence or breach of trust.
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(d) It is acknowledged that the Trust Manager is responsible under this
deed for performing a variety of obligations relating to each Trust.
No act or omission of the Trustee (including any related failure to
satisfy its obligations under this agreement) will be considered
fraud, negligence or breach of trust of the Trustee for the purpose
of paragraph (c) of this clause 33.16 to the extent to which the act
or omission was caused or contributed to by any failure by the Trust
Manager or any other person who provides services in respect of the
Trust (other than a person who has been delegated or appointed by the
Trustee and for whom the Trustee is responsible under this deed or
the relevant Transaction Documents) to fulfil its obligations
relating to the Trust or by any other act or omission of the Trust
Manager or any other person who provides services in respect of the
Trust (other than a person who has been delegated or appointed by the
Trustee and for whom the Trustee is responsible under this deed or
the relevant Transaction Documents).
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this deed has authority to act on behalf of the
Trustee in a way which exposes the Trustee to any personal liability
and no act or omission of any such person will be considered fraud,
negligence or breach of trust of the Trustee for the purpose of
paragraph (c) of this clause 33.16, provided (in the case of any
person selected and appointed by the Trustee) that the Trustee has
exercised reasonable care in the selection and supervision of such
persons.
33.17 Trustee's right of indemnity - general
(a) (Indemnity from each Trust) Subject to this deed and without
prejudice to the right of indemnity given by law to trustees, the
Trustee will be indemnified out of each Trust against all losses and
liabilities properly incurred by the Trustee in performing any of its
duties or exercising any of its powers under this deed in relation to
that Trust.
(b) (Preservation of right of indemnity) Subject to clause 33.17(c), and
without limiting the generality of clause 33.17(a), the Trustee's
right to be indemnified in accordance with clause 33.17(a) and to
effect full recovery out of a Trust, will apply in relation to any
liabilities to Creditors of the Trust notwithstanding any failure by
the Trustee to exercise a degree of care, diligence and prudence
required of the Trustee having regard to the powers, authorities and
discretions conferred on the Trustee under this deed or any other act
or omission which may not entitle the Trustee to be so indemnified
and/or effect such recovery (including, without limitation, fraud,
negligence or wilful default).
(c) (Indemnity in certain circumstances held for Trust creditors) Subject
to clause 33.17(d), if the Trustee fails to exercise the degree of
care, diligence and prudence required of a trustee having regard to
the powers, authorities and discretions conferred on the Trustee by
this deed or if any other act or omission occurs which may not
entitle the Trustee to be in-demnified in accordance with clause
33.17(a) or to effect full recovery out of a Trust (including,
without limitation, fraud, negligence or wilful default):
(i) the Trustee may not receive or hold or otherwise have the
benefit of the indemnity given in clause 33.17(a) otherwise
than on behalf of and on trust for Creditors in relation to
that Trust; and
(ii) the Trustee may only be indemnified to the extent necessary to
allow it to discharge its liability to Creditors in relation to
that Trust.
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(d) (Not to limit rights of others) Nothing in clauses 33.17(a) to (c)
shall be taken to:
(i) impose any restriction on the right of any Noteholder, a
Beneficiary, the Trust Manager or any other person to bring an
action against the Trustee for loss or damage suffered by
reason of the Trustee's failure to exercise the degree of
care, diligence and prudence required of a trustee having
regard to the powers, authorities and discretions conferred on
the Trustee by this deed (including, without limitation,
fraud, negligence or wilful default); or
(ii) confer on the Trustee a right to be indemnified out of a Trust
against any loss the Trustee suffers in consequence of an
action brought against it by reason of the Trustee's failure
to exercise the degree of care, diligence and prudence
required of a Trustee having regard to the powers, authorities
and discretions conferred on the Trustee by this deed
(including, without limitation, fraud, negligence or wilful
default).
(e) (Not to limit Trustee's duty) Nothing in this clause 33.17 shall
limit the Trustee's duties and obligations under this deed or
prevent or restrict any determination as to whether there has been,
or limit the Trustee's personal liability under this deed for, a
breach of trust or fraud, negligence or wilful default on the part
of the Trustee or its officers, employees, agents or delegates.
33.19 Trustee's right of indemnity - Consumer Credit Legislation
(a) (Indemnity from each Trust) Without prejudice to the right of
indemnity given by law to trustees, and without limiting any other
provision of this deed, the Trustee will be indemnified out of each
Trust, free of any set off or counterclaim, against all Civil
Penalty Payments which the Trustee is required to pay personally or
in its capacity as trustee of that Trust in performing any of its
duties or exercising any of its powers under this deed in relation
to that Trust.
(b) (Preservation of right and indemnity) Without limiting the
generality of paragraph (a), the Trustee's right to be indemnified
in accordance with clause 33.17(a), and to effect full recovery out
of a Trust pursuant to such a right, will apply notwithstanding any
alleged failure by the Trustee to exercise a degree of care,
diligence and prudence required of the Trustee having regard to the
powers, authorities and discretions conferred on the Trustee under
this deed or any other act or omission which may not entitle the
Trustee to be so indemnified and/or effect such recovery (including,
without limitation, fraud, negligence or wilful default) and that is
not related to the liability.
(c) (Overriding) This clause 33.18 overrides any other provision of this
deed.
(d) (Nominated credit provider) Unless otherwise specified in the Series
Notice, the Trustee nominates each Approved Seller, in relation to
each relevant Trust, as the credit provider for the purposes of
regulation 75 of the Consumer Credit Legislation with respect to
Receivables acquired by the Trust from that Approved Seller. Each
Approved Seller agrees to be a credit provider for the purposes of
regulation 75 of the Consumer Credit Legislation in relation to
those Receivables.
(e) (Indemnity) Each Approved Seller that is a nominated credit provider
under Clause 33.18(d) indemnifies the Trustee in relation to each
relevant Trust, free of any set off or counterclaim, against all
Civil Penalty Payments which the Trustee is required to pay
personally or in its capacity as trustee of that Trust in performing
any of its duties or exercising any of its powers under this deed in
relation to that Trust.
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(f) The Trustee shall call upon the indemnity under paragraph (e) before
it calls upon the indemnity in paragraph (a).
In this clause 33.18, Civil Penalty Payment means:
(i) the amount of any civil penalty which the Trustee is ordered
to pay under Part 6 of the Consumer Credit Legislation;
(ii) any other money ordered to be paid by the Trustee, or legal
costs or other expenses payable or incurred by the Trustee
related to such an order;
(iii) any amount which the Trustee agrees to pay to an Obligor or
other person in settlement of an application for an order
under Part 6 of the Consumer Credit Legislation; and
(iv) any legal costs or other costs and expenses payable or
incurred by the Trustee in relation to that application.
33.19 Extent of liability of Trust Manager
The Trust Manager shall not be personally liable to indemnify the Trustee
or make any payments to any other person in relation to any Trust except
that there shall be no limit on the Trust Manager's liability for any
fraud, negligence or wilful default by it in its capacity as the Trust
Manager of the relevant Trust.
33.20 Right of indemnity
The Trust Manager shall be indemnified out of the relevant Trust in
respect of any liability, cost or expense properly incurred by it in its
capacity as Trust Manager of the relevant Trust or so incurred by any of
its delegates, sub-delegates or agents.
33.21 Conflicts
(a) (No conflict) Nothing in this deed shall prevent the Trustee, any
Lead Manager, the Trust Manager or any Related Corporation or
Associate of any of them or their directors or other officers (each
a Relevant Person) from:
(i) subscribing for purchase, holding, dealing in or disposing of
any Notes;
(ii) entering into any financial, banking, development, insurance,
agency, broking or other transaction with, or providing any
advice or services for any of the Trusts; or
(iii) being interested in any such contract or transaction or
otherwise at any time contracting or acting in any capacity as
representative or agent.
(b) (Not liable to account) A Relevant Person shall not be in any way
liable to account to any Noteholder, any Beneficiary or any other
person for any profits or benefits (including but without
limitation, any profit, bank charges, commission, exchange,
brokerage and fees) made or derived under or in connection with any
transaction or contract specified in paragraph (a) above;
(c) (Fiduciary relationship) A Relevant Person shall not by reason of
any fiduciary relationship be in any way precluded from making any
contracts or entering into any transactions with any such person in
the ordinary course of the business or from undertaking any banking,
financial, development, agency or other services including any
contract or transaction in relation to the placing of or dealing
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with any investment and the acceptance of any office or profit or
any contract of loan or deposits or other contract or transaction
which any person or company not being a party to this deed could or
might have lawfully entered into if not a party party to this deed.
A Relevant Person shall not be accountable to Noteholders, the
Beneficiaries or any other person for any profits arising from any
such contracts, transactions or offices.
33.22 Trustee not obliged to investigate the Trust Manager etc
The Trustee shall be responsible only for so much of the Authorised
Investments, and the income and proceeds emanating from the Authorised
Investments as may be actually transferred or paid to it and the Trustee
is expressly excused from:
(a) taking any action or actions to investigate the accounts,
management, control or activities of the Trust Manager or any other
person; or
(b) inquiring into or in any manner questioning or bringing any action,
suit or proceeding or in any other manner seeking to interfere with
the management, control or activities (including the exercise or
non-exercise of powers and discretions) of such persons or seeking
to remove from office such persons, taking any steps or bringing any
action, suit or proceedings or in any other manner seeking to vary,
amend delete from or add to this deed or other instrument
establishing the Trusts, or wind up any of such persons or vest the
Trusts.
33.23 Independent investigation of credit
(a) (Trustee and Trust Manager may assume independent investigation) The
Trustee and the Trust Manager shall be entitled to assume that each
Noteholder has, independently and without reliance on the Trustee,
the Trust Manager or any other Noteholder, and based on documents
and information as each has deemed appropriate, made its own
investigations in relation to the Notes, the Trustee, the Trust
Manager and the provisions of this deed and any other Transaction
Document.
(b) (Acknowledgement of independent investigation) Each Noteholder
agrees that it will, independently and without reliance on the
Trustee, the Trust Manager, a Servicer or any other Noteholder and
based on documents and information as it shall deem appropriate at
the time, continue to make its own analysis and decisions as to all
matters relating to this deed and any other Transaction Document.
33.24 Information
Except for notices and other documents and information (if any) expressed
to be required to be furnished to any person by the Trustee under this
deed or any other Transaction Document, the Trustee shall not have any
duty or responsibility to provide any person (including, without
limitation, any Noteholder or Beneficiary but not including the Trust
Manager) with any credit or other information concerning the affairs,
financial condition or business of any of the Trusts.
33.25 Entering into Transaction Documents
Notwithstanding any other provision of this deed, the Trustee is not
obliged to enter into any Transaction Document for a Trust unless the
Trustee, with the agreement of the Trust Manager, has received independent
legal advice (if required by the Trustee) in relation to the Transaction
Document.
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33.26 Reliance by Trustee
The Trustee is entitled conclusively to rely on and is not required to
investigate the accuracy of:
(a) the contents of a Sale Notice given to it by an Approved Seller;
(b) the contents of any Trust Manager's Report or Servicer's Report;
(c) any calculations made by an Approved Seller, a Servicer or the Trust
Manager under any Transaction Document including, without
limitation, the calculation of amounts to be paid to, or charged
against, Noteholders, the Beneficiary or the Seller on specified
dates;
(d) the amount of, or allocation of, Collections;
(e) the contents of any certificate provided to the Trustee under this
deed and any certificate given by the Trust Manager or the Servicer
pursuant to a report or otherwise pursuant to subsequent amendments
to this deed or any Series Notice,
unless actually aware to the contrary, and the Trustee is not liable to
any person in any manner whatsoever in respect of all such matters.
33.27 Investigation by Trustee
The Trust Manager, each Servicer, each Approved Seller, each Noteholder
and the Beneficiary of each Trust acknowledges that:
(a) the Trustee has no duty, and is under no obligation, to investigate
whether a Trust Manager's Default, Servicer Transfer Event or Title
Perfection Event has occurred in relation to that Trust other than
where it has actual notice;
(b) the Trustee is required to provide the notices referred to in this
deed in respect of a determination of Adverse Effect only if it is
actually aware of the facts giving rise to the Adverse Effect; and
(c) in making any such determination, the Trustee will seek and rely on
advice given to it by its advisors in a manner contemplated by this
deed.
PART J - GENERAL PROVISIONS
34. NOTICES
34.1 Notices Generally
Subject to clause 34.2, every notice, certificate, request, direction,
demand or other communications required to or by a party to this deed:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender;
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post, facsimile
transmission or cable) when delivered received or left to the
address of that party shown
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in this deed (or at such other address as may be notified in
writing by that party to the other party from time to time);
(ii) (in the case of telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission; or
(iii) (in the case of electronic mail) on receipt by the sender of an
acknowledgement of transmission,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is sent
or is later than 4pm (local time), it will be taken to have been duly
given or made at the commencement of business on the next day on
which business is generally carried on in that place;
34.2 Notices to Noteholders
A notice, request or other communication by the Trustee, the Trust Manager
or a Servicer to Noteholders shall be deemed to be duly given or made by:
(a) an advertisement placed on a Business Day in The Australian Financial
Review (or other nationally distributed newspaper); or
(b) mail, postage prepaid, to the address of the Noteholders as shown on
the Register. Any notice so mailed shall be conclusively presumed to
have been duly given whether or not the Noteholder actually receives
the notice.
34.3 Notices to Designated Rating Agencies
The Trust Manager shall provide a copy of each notice, request or other
communication by the Trustee, the Trust Manager or a Servicer to
Noteholders in a Trust to each Designated Rating Agency (if any) for the
Trust as from time to time agreed in writing with that Designated Rating
Agency, and where a Transaction Document specifies that notice is to be
given to each Designated Rating Agency, but the person who is to give that
notice is not specified. Where a Transaction Document requires notice to be
given to a Designated Rating Agency, that requirement constitutes an
"agreement in writing" for the purposes of this clause 34.3.
35. PAYMENTS GENERALLY
35.1 Payments to Noteholders
Any payment made by or on behalf of the Trustee in respect of any Note
shall be made to the person whose name is, on the Record Date, entered in
the relevant Register as the registered owner of the relevant Note (or in
the case of joint registered owners, to the person whose name first appears
in the Register).
35.2 Payment Methods
Any moneys payable by the Trustee, the Trust Manager or a Servicer to a
Noteholder or to a Beneficiary under this deed shall be paid by the Trustee
in Sydney or if the Trustee elects may be paid by:
(a) (cheque) crossed not negotiable cheque in favour of the Noteholder or
the Beneficiary (as the case may be) and despatched by post to the
address of the Noteholder shown in the relevant Register on the
Record Date or to the address of the Beneficiary for the purposes of
clause 34;
(b) (electronic transfer) electronic transfer through Austraclear;
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(c) (direct payment) by direct transfer to a designated account of the
Noteholder or the Beneficiary held with a bank or other financial
institution in Australia; or
(d) (other agreed manner) any other manner specified by the Noteholder
and agreed to by the Trust Manager and the Trustee.
35.3 Payment to be made on Business Day
If any payment is due under a Transaction Document on a day which is not a
Business Day, the due date will be the next Business Day.
35.4 Payment good discharge
There is a full satisfaction of the moneys payable and a good discharge to
the Trustee, the Trust Manager or a Servicer (as the case may be) when the
cheque is despatched by post in accordance with clause 35.2(a) or, if not
posted, delivered to the Noteholder or as directed by the Noteholder.
Neither the Trustee nor the Trust Manager shall be responsible for any
moneys which are not credited to the bank account of a Noteholder or a
Beneficiary if the Trustee's bank has been instructed to effect the direct
transfer referred to in clause 35.2(c).
35.5 Trust Manager to arrange payments
The Trustee will:
(a) prepare or cause to be prepared all cheques which are to be issued to
Noteholders and to Beneficiaries and stamp the same as required by
law; or
(b) otherwise arrange payments under clause 35.20.
The Trustee will sign (by autographical, mechanical or other means) cheques
for despatch on the day on which they ought to be despatched.
35.6 Valid receipts
The receipt of the Trustee for any moneys shall exonerate the person paying
the same from all liability to make any further enquiry. Every such receipt
shall as to the moneys paid or expressed to be received in such receipt,
effectually discharge the person paying such moneys from such liability or
enquiry and from being concerned to see to the application or being
answerable or accountable or any loss or misapplication of such moneys.
35.7 Taxation
(a) (Net payments) All payments in respect of the Notes shall be made
free and clear of, and without deduction for, or by reference to, any
present or future Taxes of any Australian Jurisdiction unless
required by law. The Trustee or any person making payments on behalf
of the Trustee will be obliged to deduct interest withholding tax
imposed by the Commonwealth of Australia from payments of interest in
respect of the Notes to non-residents of the Commonwealth of
Australia not carrying on business in the Commonwealth of Australia
at or through a permanent establishment and to residents of the
Commonwealth of Australia carrying on business at or through a
permanent establishment outside the Commonwealth of Australia unless
a certificate pursuant to Section 221YM of the Taxation Act is
produced to the Trustee not later than close of business on the tenth
Business Day immediately preceding the relevant payment date.
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(b) (Tax file numbers) The Trustee or any person making payments on
behalf of the Trustee will be required to deduct tax-at-source on
interest payments to each Noteholder at the highest personal marginal
tax rate unless the Trustee receives from such Noteholder the Tax
File Number of that Noteholder or evidence of any exemption the
Noteholder may have from the need to advise the Trustee of a Tax File
Number. The Tax File Number or appropriate evidence (as the case may
be) must be received by the Trustee not less than ten Business Days
prior to the relevant payment date.
36. AMENDMENT
36.1 Amendment without consent
The Trustee, the Trust Manager and a Servicer (in relation to a Trust) may
by way of supplemental deed alter, add to or modify this deed (including
this clause 36) or (subject to clause 5.3(c)) a Series Notice in respect of
any one or more Trusts so long as such alteration, addition or modification
either complies with clause 36.2 or is:
(a) (correct manifest error) to correct a manifest error or ambiguity or
is of a formal, technical or administrative nature only;
(b) (comply with law) necessary to comply with the provisions of any
statute or regulation or with the requirements of any Government
Agency;
(c) (change in law) appropriate or expedient as a consequence of an
amendment to any statute or regulation or altered requirements of any
Government Agency (including, without limitation, an alteration,
addition or modification which is appropriate or expedient as a
consequence of the enactment of a statute or regulation or an
amendment to any statute or regulation or ruling by the Commissioner
or Deputy Commissioner of Taxation or any governmental announcement
or statement, in any case which has or may have the effect of
altering the manner or basis of taxation of trusts generally or of
trusts similar to any of the Trusts);
(d) (not yet constituted Trust) to apply only in respect of a Trust not
yet constituted under this deed; or
(e) (otherwise desirable) in the opinion of the Trustee desirable to
enable the provisions of this deed to be more conveniently,
advantageously, profitably or economically administered or is
otherwise desirable for any reason (including to give effect, in the
Trust Manager's reasonable opinion, to an allocation of Expenses
contemplated by clause 4.10(c)).
36.2 Amendment with consent
Where in the reasonable opinion of the Trustee a proposed alteration,
addition or modification to this deed (except an alteration, addition or
modification referred to in clause 36.1) is prejudicial or likely to be
prejudicial to the interests of the Noteholders or a Class of Noteholders
or the Beneficiaries in a particular then constituted Trust such
alteration, addition or modification may only be effected by the Trustee
with the prior consent of the Noteholders or a Class of Noteholders (as the
case may be) in the particular Trust under an Extraordinary Resolution of
the Noteholders or a Class of Noteholders (as the case may be) in the Trust
or with the prior written consent of the Beneficiaries (as the case may
be).
36.3 Copy of amendments to Noteholders
The Trustee shall on request by a Noteholder, provide the Noteholder with a
copy of the supplemental deed effecting any alteration, addition or
modification to this deed.
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36.4 Copy of amendments in advance to Designated Rating Agencies
The Trust Manager shall provide a copy of a proposed alteration, addition
or modification to any Transaction Document in relation to a Rated Trust,
where the Transaction Document requires notice be given to the Designated
Rating Agency to each Designated Rating Agency (if any) for the Rated Trust
at least 5 Business Days (or such other period as may from time to time be
agreed by the Trust Manager with the Designated Rating Agency) prior to any
alteration, addition or modification taking effect.
37. CONFIDENTIALITY
(a) Each party agrees that:
(i) (A) subject to paragraph (B) and clause 37(b), it will not
disclose without the prior consent of the other (other
than to the directors, employees, auditors, legal
advisors, other professional advisors which it is entitled
to consult under the Transaction Documents, affiliates or
Related Corporations (collectively, representatives) of
such party, each of whom shall be informed by such party
of the confidential nature of the Information and of the
terms of this clause 37:
(1) any information regarding, or copies of, any
Transaction Document or any transaction
contemplated by any Transaction Document; or
(2) any information regarding an Approved Seller which
information is furnished by the Approved Seller to
such party and which is designated by the Approved
Seller to such party in writing as confidential or
not otherwise available to the general public,
(the information referred to in paragraphs (1) and (2) is
collectively referred to as the Information); and
(B) such party may disclose any such Information:
(1) to any other party to this deed for the purposes
contemplated by this deed;
(2) as may be required by any Governmental Agency;
(3) in order to comply with any law, order, regulation,
regulatory request or ruling applicable to such
party (including, without limitation, any request
or requirement of the Australian Stock Exchange);
(4) subject to clause 37.8(e), in the event such party
is legally compelled (by interrogatories, requests
for information or copies, subpoena, civil
investigative demand or similar process) to
disclose any such Information;
(5) in the case of the Trustee, to a successor or bona
fide potential successor as trustee of the Trust;
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(6) to the Designated Rating Agency;
(7) to the provider, or potential provider, of a
Support Facility;
(8) as required or contemplated by the Transaction
Documents;
(9) in any legal proceedings arising out of or in
connection with any Transaction Document, as such
party reasonably considers necessary to protect its
interests; or
(10) with the prior written consent of the other party;
(ii) it will use the Information solely for the purposes of
evaluating, and administering the transactions contemplated by
Transaction Documents, making any necessary business judgments
with respect thereto and exercising its rights and performing
its obligations under the Transaction Documents and in any
event shall comply with the Privacy Act and all applicable
privacy laws;
(iii) it will, on demand, return (and cause each of its
representatives to return) to the Approved Seller all documents
or other written material received from the Approved Seller in
connection with paragraph (a)(i)(A)(II) above and all copies
thereof made by such party which contain the Information except
to the extent that such Information forms part of the business
records of that party, or is delivered to that party pursuant
to an obligation to do so under any Transaction Document.
(b) This clause 37 shall be inoperative as to such portions of the
Information which are or become generally available to the public or
such party on a non-confidential basis or were known to such party on
a non-confidential basis prior to its disclosure by the Approved
Seller.
(c) In the event that any party or anyone to whom such party or its
representatives transmits the Information is requested or becomes
legally compelled (by interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process) to
disclose any of the Information, such party will:
(i) provide the Approved Seller with prompt written notice so that
the Approved Seller may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions
of this clause 37;
(ii) take such action as required by any protective order or other
appropriate remedy.
(d) This clause 37 shall survive termination of this deed and the
Transaction Documents.
(e) Each party shall ensure that its officers, employees and agents comply
with this Clause 37 and any other confidentiality agreement between
any Approved Seller and the Trustee relating to the transactions
contemplated by this deed.
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38. MISCELLANEOUS
38.1 Data Base to be retained as confidential
Each party shall retain as confidential to itself the Data Base in so far
as the same is held by it and shall not disclose the Data Base to any other
person (including any of its Related Bodies Corporate) except:
(a) (Transaction Documents) as permitted or required by any Transaction
Document or necessary for any party to a Transaction Document to
perform its respective duties and obligations;
(b) (enforcement) as required for the enforcement or attempted enforcement
of any Transaction Document, Loan, Mortgage or Related Securities;
(c) (professional advisers) to any professional adviser, delegate, agent
or sub-agent of that party under a power contained in a Transaction
Document;
(d) (officers) to the officers, employees and directors of that party made
in the performance by that party respectively of its duties and
obligations under the Transaction Documents or at law;
(e) (Auditors) to the Auditor of any Trust or as required by the Auditor
of any Trust; or
(f) (law) as required by law or by any Government Agency or by the listing
rules of the Australian Stock Exchange Limited,
subject to all cases to the Privacy Act.
38.2 Certificates by Trust Manager
Any statement or certificate by the Trust Manager in relation to any act,
matter, thing or state of affairs in relation to any of the Trusts, this
deed or any other Transaction Document shall, in the absence of manifest
error be final, be binding and conclusive on the Trustee, the
Beneficiaries, the Noteholders and all other persons.
38.3 Waivers, remedies cumulative
Save as provided in this deed, no failure to exercise and no delay in
exercising on the part of any party of any right, power or privilege under
this deed shall operate as a waiver. Nor shall any single or partial
exercise of any right, power or privilege preclude any other or further
exercise of that or any other right, power or privilege.
38.4 Retention of documents
(a) All Applications for Notes, cancelled Note Acknowledgements, Note
Transfers and instruments of transmission shall be retained by the
Trust Manager for a period of seven years. On the expiration of seven
years from the date of any such document the document may be
destroyed.
(b) All files in respect of each Loan, Mortgage or Related Securities and
related computer tape held by a Servicer shall be retained by the
Servicer for a period of seven years after the related Loan has been
paid in full or is otherwise liquidated or for such longer period
required by law.
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38.5 Governing law
This deed shall be governed by and construed in accordance with the laws of
the Australian Capital Territory. Each of the parties and the Noteholders
submits to the non-exclusive jurisdiction of courts exercising jurisdiction
there.
38.6 Severability of provisions
Any provision of any Transaction Document which is prohibited or
unenforceable in any jurisdiction is, as to that jurisdiction, ineffective
to the extent of that prohibition or unenforceability. This does not
invalidate the remaining provisions of that Transaction Document nor affect
the validity or enforceability of that provision in any other jurisdiction.
38.7 Counterparts
This deed may be executed in any number of counterparts. All counterparts
together will be taken to constitute one instrument.
38.8 Inspection of this deed
The Noteholders may inspect a copy of this deed, each relevant Series
Notice, Servicing Agreement and Security Trust Deed at the office of the
Trust Manager during normal business hours, but shall not be entitled to a
copy of any of them.
EXECUTED as a deed in Canberra.
TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of WESTPAC SECURITIES )
ADMINISTRATION LIMITED by its )
attorney in the presence of: ) /s/ ▇ ▇ ▇▇▇▇▇▇▇
-------------------------
Signature
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇ ▇▇▇▇▇▇▇
-------------------------- -------------------------
Witness Print name
▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Print name
Page 114
TRUST MANAGER
SIGNED SEALED and DELIVERED )
on behalf of THE MORTGAGE COMPANY )
PTY LIMITED by its attorney )
in the presence of: ) /s/ ▇▇▇▇▇ ▇▇▇▇ WINTOUR
------------------------
Signature
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ WINTOUR
-------------------------- ------------------------
Witness Print name
▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Print name
Page 115
SCHEDULE 1
APPLICATION FOR NOTES
SERIES [*] WST TRUST
To: Westpac Securities Administration Limited as trustee of the Series [*] WST
Trust (the Trustee)
From: ................................................(ACN [*])
(Name)
of......................................(the Applicant).
(Address)
Application
The Applicant applies for the following Notes (the Notes) to be issued by the
Trustee as trustee of the Series [*] WST Trust (the Trust) under the Master
Trust Deed dated [ ] 1997 (as amended from time to time) establishing the WST
Trusts (the Master Trust Deed):
1. The Notes applied for are:
2. The amount of Notes applied for is:
Applicant bound
The Applicant agrees that the Notes will be issued subject to, and agrees to be
bound by, the provisions of the Master Trust Deed, the Series Notice in relation
to the Notes [and the Security Trust Deed dated [*] in relation to the Trust].
Acknowledgement by Applicant
The Applicant acknowledges that the liability of the Trustee to make payments in
respect of the Notes is limited to its right of indemnity from the assets of the
Trust from time to time available to make such payments under the Master Trust
Deed.
The Applicant further acknowledges that:
(a) it has independently and without reliance on the Westpac Banking
Corporation (Westpac), the Trustee, the Trust Manager or any other person
(including without reliance on any materials prepared or distributed by any
of the above) made its own assessment and investigations regarding its
investment in the Notes; and
(b) it understands that the Notes do not represent deposits or other
liabilities of Westpac or Associates of Westpac;
(c) the Applicant's holding of the Notes is subject to investment risk,
including possible delays in repayment and loss of income and principal
invested; and
(d) neither Westpac nor any Associate of Westpac in any way stands behind the
capital value and/or performance of the Notes or the Assets of the Trust
except to the limited extent provided in the Transaction Documents for the
Trust.
Page 116
General
Payments due under the Notes may be made:
. by cheque posted to the above address
. to the credit of the following account:
Name of Bank:
Address of Bank:
Account Details:
Account No.:
Name of Account:
A Marked Note Transfer of the abovementioned Notes is required: Yes/No.
Applicant's Tax File Number:
Interpretation
Each expression used in this Application for Notes that is not defined has the
same meaning as in the Master Trust Deed.
Dated:
SIGNED: ...............................................
* This Application for Notes together with a cheque for the amount of the
Notes applied for should be sent to the Trustee at the address above.
* Where the Applicant is a trustee, this Application for Notes must be
completed in the name of the trustee and signed by the trustee without
reference to the trust.
* Where this Application for Notes is executed by a corporation, it must be
executed either under common seal or under a power of attorney.
* If this Application for Notes is signed under a power of attorney, the
attorney certifies that it has not received notice of revocation of that
power of attorney. A certified copy of the power of attorney must be lodged
with this Application for Notes.
Page 117
CONFORMED COPY
SCHEDULE 2
NOTE ACKNOWLEDGEMENT
WST TRUST NO. [ ]
Name:
[Class]:
Initial Invested Amount:
Interest Rate:
Coupon Payment Dates:
[Principal Payment Dates]:
Maturity Date:
This confirms that:
Noteholder:
ACN (if applicable):
Address:
appears in the Register as the holder of the abovementioned Notes (the Notes).
The Notes are issued by Westpac Securities Administration Limited (ACN 000 049
472) (the Trustee) in its capacity as trustee of the abovementioned Trust (the
Trust) under a Master Trust Deed dated [ ] 1997 (as amended from time to time)
establishing the WST Trusts (the Master Trust Deed).
The Notes are issued subject to the provisions of the Master Trust Deed, the
Series Notice in relation to the Notes [and the Security Trust Deed dated [*] in
relation to the Trust]. A copy of the Trust Deed, the Series Notice [and the
Security Trust Deed] are available for inspection by Noteholders at the offices
of The Mortgage Company Pty Limited, ACN 070 968 302 (the Trust Manager) at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇.
The Trustee's liability to make payments in respect of the Notes is limited to
its right of indemnity from the Assets of the Trust from time to time available
to make such payments under the Master Trust Deed and Series Notice. All claims
against the Trustee in relation to the Notes may only be satisfied out of the
assets of the Trust except in the case of (and to the extent of) any fraud,
negligence or wilful default on the part of the Trustee or its officers,
employees, agents or delegates.
The Noteholder is required to accept any distribution of moneys under the
Security Trust Deed in full and final satisfaction of all moneys owing to it,
and any debt represented by any shortfall that exists after any such final
distribution is extinguished.
Page 118
The Trustee shall not be liable to satisfy any obligations or liabilities from
its personal assets except (and to the extent) of any fraud, negligence or
wilful default on the part of the Trustee or its officers, employees, agents or
delegates. Neither the Trustee nor the Trust Manager guarantees the payment of
interest or the repayment of principal due on the Notes.
This Note Acknowledgement is not a certificate of title and the Register is the
only conclusive evidence of the abovementioned Noteholder's entitlement to
Notes.
Transfers of Notes must be under a Note Transfer in the form contained in
Schedule 4 to the Master Trust Deed (copies of which are available from the
Trustee at its abovementioned address). Executed Note Transfers must be
submitted to the Trustee.
Each expression used in this Note Acknowledgement that is not defined has the
same meaning as in the Master Trust Deed.
This Note Acknowledgement and the Notes to which it relates will be governed by
the laws of the Australian Capital Territory.
Dated:
Executed in [the Australian Capital Territory/New South Wales] for and on behalf
of Westpac Securities Administration Limited
----------------------------------------------------
Authorised Signatory
Page 119
SCHEDULE 3
NOTE ISSUE DIRECTION
To: Westpac Securities Administration Limited (ACN 000 049 472) as trustee of
the Series [*] WST Trust (the Trustee)
From: The Mortgage Company Pty Limited (ACN 070 968 302) (the Trust Manager)
1. Proposal to Issue Notes
Under clause 13.1(a) of the Master Trust Deed dated [*] 1997 (as amended from
time to time) establishing the WST Trusts (the Trust Deed) the Trust Manager
proposes and directs in this Note Issue Direction (the Note Issue Direction)
that the Trustee on [*] (the Note Issue Date) will:
(a) hold as trustee of the Series [*] WST Trust (the Trust) on the terms of the
Trust Deed the benefit of the Portfolio of Receivables specified in [the
attached Sale Notice/Annexure "A"] (the Portfolio of Receivables);
(b) issue as trustee of the Trust the Notes specified below (the proposed
Notes):
(i) the name(s), total principal amount, total number and Subscription
Amount of the proposed Notes are as follows:
Name(s):
Total principal amount:
Total number:
Subscription Amount:
(ii) the proposed Notes [will/will not] constitute a Class separate from
any other Notes previously issued by the Trustee as trustee of the
Trust or from any other proposed Notes referred to in this Note
Issue Direction.
[The details of each Class are as follows:
[specify information in (i) above for each Class]]
[(c) pay to [[*] (the Approved Seller)/[ ] (the Warehouse Trust)] the principal
amount of the Loans relating to the Portfolio of Receivables at [date] (the
Cut-Off Date) being $[*]; and]
[(d) the Lead Manager for the issue is [ ]].
2. Security Trust Deed and Support Facilities
For the purposes of clause 13.2(a)(vi) of the Trust Deed:
(a) a Security Trust Deed for the Trust [must/need not] be put in place prior
to the Note Issue Date.
(b) the following Support Facilities must be effected prior to the Note Issue
Date:
[insert details]
Page 120
3. Series Notice
The terms of the Series Notice for the proposed Notes [each Class of the
proposed Notes] are contained [in the attached duly completed Series Notice/in
the Series Notice attached to the Note Issue Direction dated [*]].
4. Trust Manager's Certifications
For the purposes of clause 13.6(a) of the Trust Deed, but subject to the Trust
Deed, the Trust Manager certifies to the Trustee that this Note Issue Direction,
and each accompanying Series Notice, complies with the Trust Deed.
Interpretation
Each expression used in this Note Issue Direction that is not defined has the
same meaning as in the Trust Deed.
Dated:
For and on behalf of The Mortgage Company Pty Limited
------------------------------------------------
Authorised signatory
RECEIPT
We acknowledge receipt of the above Note Issue Direction.
This acknowledgement shall not constitute a declaration by the Trustee that any
property (including any Receivable Security) shall be held on trust for any
person.
For and on behalf of Westpac Securities Administration Limited
-----------------------------------------------
Authorised signatory
Page 121
CONFORMED COPY
Annexure "A"
Receivables
[Attach Sale Notice or specify Receivables]
Page 122
SCHEDULE 4
NOTE TRANSFER AND ACCEPTANCE
SERIES [*] WST TRUST
To: Westpac Securities Administration Limited Date Lodged [*]
(ACN 000 049 472) as trustee of the Registry Use Only
Series [*] WST Trust (the Trustee)
TRANSFEROR
(Full name, ACN (if applicable) and address):
(please print)
APPLIES TO ASSIGN
AND TRANSFER TO
TRANSFEREE
(Full name, ACN (if applicable) and address):
(please print)
and its/their executors, administrators or assigns
The following Notes in the Series [*] WST Trust Number of Notes:
Name:
[Class]:
Initial Invested Amount:
Coupon Payment Dates:
[Principal Payment Dates]:
Maturity Date:
Settlement Amount: $[*]
and all my/our/its property and interests in rights to those Notes and to the
interest accrued on them.
TRANSFEROR
---------------------------------------------------------------------
(Signature: see Notes)
WITNESS Date:
--------------------------------------
TRANSFEREE
---------------------------------------------------------------------
(Signature: see Notes)
WITNESS Date:
--------------------------------------
PAYMENTS (Tick where appropriate)
* In accordance with existing instructions (existing holders only)
* By cheque posted to the above address
* By credit to the following account in Australia in the name of the
Transferee only
Tax File Number (if applicable):
Page 123
Authorised signature of Transferee
------------------------
Date:
NOTES:
1. The Transferor and the Transferee acknowledge that the transfer of the
Notes specified in this Transfer and Acceptance (the Notes) shall only take
effect on the entry of the Transferee's name in the Register as the
registered owner of the Notes.
2. The Transferee agrees to accept the Notes subject to the provisions of the
Master Trust Deed dated [*] 1997 (as amended from time to time)
establishing the WST Trusts (the Trust Deed), the Series Notice in relation
to the Notes [and the related Security Trust Deed dated [*]].
3. The Transferee acknowledges that it has independently and without reliance
on Westpac Banking Corporation (ARBN 007 457 141), the Trustee, The
Mortgage Company Pty Limited, ACN 070 968 302 (the Trust Manager) or any
other person (including without reliance on any materials prepared or
distributed by any of the above) made its own assessment and investigations
regarding its investment in the Notes.
4. The Trustee's liability to make payments in respect of the Notes is limited
to its right of indemnity from the assets of the abovementioned Trust from
time to time available to make such payments under the Trust Deed.
5. Where the Transferor and/or the Transferee is a trustee, this Note Transfer
must be completed in the name of the trustee and signed by the trustee
without reference to the trust.
6. Where this Note Transfer is executed by a corporation, it must be executed
either under common seal or under a power of attorney.
7. If this Transfer and Acceptance is signed under a power of attorney, the
attorney certifies that it has not received notice of revocation of that
power of attorney. A certified copy of the power of attorney must be lodged
with this Note Transfer.
8. This Note Transfer must be lodged with the Trustee for registration.
9. The Trustee may, in the manner and for the periods specified in the Trust
Deed and any relevant Series Notice, close the Register. The total period
that the Register may be closed will not exceed 30 days (or such other
period agreed to by the Trust Manager) in aggregate in any calendar year.
No Note Transfer received after 4.00 pm Sydney time on the day of closure
of the Register or whilst the Register is closed will be registered until
the Register is re-opened.
10. If the Transferee is a non-resident for Australian taxation purposes,
withholding tax will be deducted from all interest payments unless an
exemption is provided to the Trustee [or withholding tax is no longer
payable as a result of any change in the relevant Australian laws.]
11. [Insert any restrictions on the transfer of Notes.]
[Marking where clause 14.15 applies]
Page 124
12. The Trustee certifies that the Transferor is inscribed in the Register as
the holder of the Notes specified in this Note Transfer and that it will
not register any transfer of such Notes other than under this Note Transfer
before [insert date].
Dated:
For and on behalf of [*] Limited
--------------------------------------------------
Authorised Signatory
Page 125
CONFORMED COPY
SCHEDULE 5
NOTICE OF CREATION OF TRUST
To: Westpac Securities Administration Limited (ACN 000 049 472) (the Trustee)
From: The Mortgage Company Pty Limited (ACN 070 968 302) (the Trust Manager)
Under clause 3.2(a)(i) of the Master Trust Deed dated [*] 1997 between the
Trustee as trustee and the Trust Manager as trust manager establishing the WST
Trusts (as amended from time to time) (the Master Trust Deed) the Trust Manager
gives notice of the creation of a Trust under the Master Trust Deed to be known
as the Series [*] WST Trust [or such other name as the Trust Manager and the
Trustee have agreed under clause 3.3(b) of the Master Trust Deed].
The Series [*] WST Trust will be a Trust for the purposes of the Master Trust
Deed.
This Notice of Creation of Trust is accompanied by $10.00 from [*] in accordance
with clause 3.2(a)(ii) of the Master Trust Deed. [The Trustee must issue a
residual capital unit to [*]]
The Beneficiary of the Trust is [name], of [address] [give details of units and
other Beneficiaries, if any]
Terms defined in the Master Trust Deed have the same meaning when used in this
Notice.
Dated:
For and on behalf of The Mortgage Company Pty Limited.
-----------------------------------------------------
Authorised Signatory
For and on behalf of Westpac Securities Administration Limited
-----------------------------------------------------
Authorised Signatory
Page 126
SCHEDULE 6
VERIFICATION CERTIFICATE
To: Westpac Securities Administration Limited (ACN 000 049 472) as trustee
of the Series [*] WST Trust (the Trustee).
WST TRUSTS
I [*] am a [director/secretary/Authorised Signatory] of [*] Limited of [*] (the
Company).
I refer to the Master Trust Deed (the Master Trust Deed) to be entered into
between the Trustee as trustee and The Mortgage Company Pty Limited as Trust
Manager and Servicer.
Definitions in the Master Trust Deed apply in this Certificate.
I CERTIFY as follows.
1. Attached to this Certificate are complete and up to date copies of:
(a) the memorandum and articles of association of the Company (marked A);
and
(b) a duly stamped and registered power of attorney granted by the Company
for the execution of each Transaction Document to which it is
expressed to be a party (marked B). That power of attorney has not
been revoked or suspended by the Company and remains in full force and
effect.
2. The following are signatures of the Authorised Officers of the Company and
the persons who have been authorised to sign each Transaction Document to
which it is expressed to be a party and to give notices and communications
under or in connection with the Transaction Documents.
Authorised Officers
Name Position
Signature
* *
--
* *
--
* *
--
Page 127
Signatories
Name Position
Signature
* *
--
* *
--
* *
--
Signed:
-----------------------------------------
[Director/Secretary/Authorised Signatory]
-----------------------------------------
Print name
DATED
Page 128
CONFORMED COPY
SCHEDULE 7
WAREHOUSE TRUST DIRECTION
To: Westpac Securities Administration Limited (ACN 000 049 472) as trustee of
the WST Warehouse Trust #[] (the Trustee)
From: The Mortgage Company Pty Limited (ACN 070 968 302) (the Trust Manager)
1. Direction to acquire Receivables
Under clause [*] of the Master Trust Deed dated [*] 1997 (as amended from time
to time) establishing the WST Trusts (the Master Trust Deed) the Trust Manager
proposes and directs in this Direction (the Direction) that the Trustee on [*]
(the Note Issue Date) will:
(a) hold as trustee of the WST Warehouse Trust #[] (the Trust) on the terms of
the Master Trust Deed the benefit of the Portfolio of Receivables specified
in Annexure "A" (the Portfolio of Receivables);
[(b) pay to [[*] (the Approved Seller)/[ ] (the Seller Trust)] the principal
amount of the Loans relating to the Portfolio of Receivables at [date] (the
Cut-Off Date) being $[*]; and]
(c) enter into the Warehouse Facility Agreement in the attached form with [*]
to have financial accommodation of up to $[*] or any greater amount as
agreed by the Trustee and the Trust Manager from time to time.
2. Series Notice
The Series Notice for the Trust is set out in Annexure "B".
[3. Standing direction
This is a standing Warehouse Trust Direction for the purposes of clause 7.5, in
the manner set out in the attached Series Notice.]
4. Trust Manager's Certifications
Subject to the Master Trust Deed, the Trust Manager certifies to the Trustee
that this Direction, complies with the Master Trust Deed.
Interpretation
Each expression used in this Direction that is not defined has the same meaning
as in the Trust Deed.
Dated:
For and on behalf of The Mortgage Company Pty Limited
------------------------------------------------------
Authorised signatory
Page 129
RECEIPT
We acknowledge receipt of the above Warehouse Trust Direction.
This acknowledgement shall not constitute a declaration by the Trustee that any
property (including any Receivable Security) shall be held on trust for any
person.
For and on behalf of WESTPAC SECURITIES ADMINISTRATION LIMITED
------------------------------------------------------
Authorised signatory
Page 130
Annexure "A"
Receivables
[Attach Sale Notice or specify Receivables]
Page 131
Annexure "B"
SERIES NOTICE
SEE ANNEXURE E OF MASTER TRUST DEED FOR DETAILS TO BE INCLUDED
WST WAREHOUSE #[] TRUST
WAREHOUSE TRUST SERIES NOTICE
1. INTRODUCTION
This Series Notice is issued on [*] 1997 by The Mortgage Company Pty
Limited (ACN 070 968 302) of ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ as manager (Trust Manager) pursuant and subject to the Master Trust
Deed dated [*] 1997 (the Master Trust Deed) between (among others) the
Trust Manager and Westpac Securities Administration Limited (ACN 000 049
472) of ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ as trustee of the
WST Warehouse #[] Trust created under the Notice of Creation of Trust (the
Trustee).
Each party to this Series Notice agrees to be bound by the Transaction
Documents as amended by this Series Notice in the capacity set out with
respect to them in this Series Notice or the Master Trust Deed.
[The Mortgage Company Pty Limited] (the Servicer) agrees to service the
Purchased Receivables and Purchased Receivable Securities in accordance
with the Servicing Agreement.
2. SERIES NOTICE AND TRUST BACK
(a) Under clauses 5.2 and 7 of the Master Trust Deed, the Trust Manager
directs the Trustee to:
(i) enter into the Warehouse Facility Agreement;
(ii) accept any Sale Offer; and
(iii) Borrow under the Warehouse Facility Agreement from time to time
in accordance with clause 4 and the Warehouse Facility
Agreement.
(b) A Trust Back, entitled Warehouse Trust Back #[], is created in
relation to any Other Secured Liabilities secured by the Purchased
Receivable Securities.
(c) The parties agree that:
(i) the Trust will be a Trust for the purposes of the Master Trust
Deed; and
(ii) the Trust will not be a Rated Trust under the Master Trust
Deed.
3. DEFINITIONS AND INTERPRETATION
3.1 Definitions
Unless otherwise defined in this Series Notice, words and phrases
defined in the Master Trust Deed have the same meaning where used in
this Series Notice.
Page 132
In this Series Notice, and for the purposes of the definitions in the
Master Trust Deed, the following terms have the following meanings unless
the contrary intention appears. These definitions apply only in relation to
the WST Warehouse #[] Trust, and do not apply to any other Trust (as
defined in the Master Trust Deed).
[*]
3.2 Interpretation
Clause 1.2 of the Master Trust Deed is incorporated into this Series Notice
as if set out in full, except that any reference to deed is replaced by a
reference to Series Notice.
3.3 Limitation of liability
(a) General
Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Trust Manager under this Series
Notice.
(b) Liability of Trustee limited to its right of indemnity
(i) This Series Notice applies to the Trustee only in its capacity
as trustee of the Warehouse Trust and in no other capacity. A
liability arising under or in connection with this Series
Notice or the Warehouse Trust can be enforced against the
Trustee only to the extent to which it can be satisfied out of
property of the Warehouse Trust out of which the Trustee is
actually indemnified for the liability. This limitation of the
Trustee's liability applies despite any other provision of this
Series Notice and extends to all liabilities and obligations of
the Trustee in any way connected with any representation,
warranty, conduct, omission, agreement or transaction related
to this Series Notice or the Warehouse Trust.
(ii) The parties other than the Trustee may not ▇▇▇ the Trustee
personally or seek the appointment of a liquidator,
administrator, receiver or similar person to the Trustee or
prove in any liquidation, administration or arrangement of or
affecting the Trustee.
(iii) The provisions of this clause 3.3 shall not apply to any
obligation or liability of the Trustee to the extent that it is
not satisfied because under the Master Trust Deed or the Series
Notice or by operation of law there is a reduction in the
extent of the Trustee's indemnification out of the assets of
the Warehouse Trust, as a result of the Trustee's fraud,
negligence or breach of trust.
(c) It is acknowledged that the Trust Manager is responsible under this
agreement for performing a variety of obligations relating to the
Trust. No act or omission of the Trustee (including any related
failure to satisfy its obligations under this agreement) will be
considered fraud, negligence or breach of trust of the Trustee for the
purpose of sub-paragraph (iii) to the extent to which the act or
omission was caused or contributed to by any failure by the Trust
Manager or any other person (other than a person who has been properly
appointed by the Trustee and for whom the Trustee is responsible under
this deed or the relevant Transaction Documents) to fulfil its
obligations relating to the Trust or by any other act or omission of
the Trust Manager or any other person (other than a person who has
been properly appointed by the Trustee and for whom the Trustee is
responsible under this deed or the relevant Transaction Documents).
Page 133
(d) No attorney, agent, receiver or receiver and manager appointed in
accordance with this agreement has authority to act on behalf of the
Trustee in a way which exposes the Trustee to any personal liability
and no act or omission of any such person will be considered fraud,
negligence or breach of trust of the Trustee for the purpose of sub-
paragraph (iii), if the Trustee has exercised reasonable care in the
selection and supervision of such persons.
4. ACQUISITION OF RECEIVABLES
[*]
5. DISPOSAL OF RECEIVABLES
[*]
6. CASHFLOW ALLOCATION METHODOLOGY
[*]
7. MASTER TRUST DEED AND SERVICING AGREEMENT
7.1 Completion of details in relation to Master Trust Deed
(a) (Trust Manager fee)
[*]
(b) (Trustee fee)
[*]
(c) (Servicing fee)
[*]
7.2 Amendments to Master Trust Deed
[*]
7.3 Amendments to Servicing Agreement
[*]
8. BENEFICIARY
[*]
9. TITLE PERFECTION EVENTS
[*]
EXECUTED as a deed in Canberra.
Each attorney executing this Series Notice states that he or she has no notice
of revocation or suspension of his or her power of attorney.
Page 134
TRUSTEE
SIGNED SEALED and DELIVERED )
by WESTPAC SECURITIES )
ADMINISTRATION LIMITED in the )
presence of: ) -------------------------------
Signature
---------------------------------------- -------------------------------
Witness Print name
----------------------------------------
Print name
TRUST MANAGER/SERVICER
SIGNED SEALED and DELIVERED )
by THE MORTGAGE COMPANY )
PTY LIMITED in the presence of: ) --------------------------------
Signature
--------------------------------------- --------------------------------
Witness Print name
---------------------------------------
Print name
Page 135
ANNEXURE A
SALE NOTICE
TO: Westpac Securities Administration Limited (ACN 000 049 472) as trustee of
the Series [*] WST Trust (the Trustee)
Attention: [*]
FROM: [*]
(the Approved Seller)
Dear Sirs
MASTER TRUST DEED
We refer to the Master Trust Deed (the Master Trust Deed) dated [*] between
Westpac Securities Administration Limited and The Mortgage Company Pty Limited
and the Series Notice issued under the Master Trust Deed in relation to the [*]
Trust (the Series Notice).
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Terms defined in the Master Trust Deed and the Series Notice shall
have the same meaning in this Sale Notice unless the context
otherwise requires except that:
Cut-Off Date means [ ].
Expiry Time means 4:00pm on [*].
[Offered Receivable Interest means that part of the Offered
Receivable Rights which consists of the Approved Seller's right,
title, benefit, interest (present and future) in, to, under or
derived from any Receivable Security and the Related Receivables.]
[For Land only].
Offered Receivable Rights means the Approved Seller's right, title
and interest in and to the Receivables and Receivable Securities
described in the attached computer disk and printout, and the related
Receivable Rights, except to the extent of the exclusion in
paragraphs (c) and (d) of the definition of Receivable Rights.
Purchase Price means [ ].
A reference to any clause is a reference to that clause in this Sale
Notice.
1.2 Interpretation
The provisions of the Master Trust Deed will apply to any contract
formed if the offer contained in this Sale Notice is accepted.
Page 136
2. OFFER
Subject to the terms and conditions of this Sale Notice, the Approved
Seller, as legal and beneficial owner, offers to sell and assign the
Offered Receivable Rights (free from any Security Interest) to the
Trustee for the Purchase Price.
3. ACCEPTANCE
(a) The offer in clause 2 is irrevocable during the period up to and
including the Expiry Time.
(b) The Trustee may accept the offer contained in this Sale Notice at any
time prior to the Expiry Time by, and only by, the payment by the
Trustee to the Approved Seller (or as it directs) of $[*] in same day
funds [by bank cheque] [to the following bank account: [*], Account
Number [*].]
(c) Notwithstanding:
(i) satisfaction of all relevant conditions precedent; or
(ii) any negotiations undertaken between the Approved Seller and the
Trustee prior to the Trustee accepting the offer contained in
this Sale Notice,
the Trustee is not obliged to accept the offer contained in this Sale
Notice and no contract for the sale or purchase of any Offered
Receivable Rights will arise unless and until the Trustee accepts the
offer contained in the Sale Notice in accordance with this clause.
(d) The offer contained in this Sale Notice may only be accepted in
relation to all the Offered Receivable Rights.
(e) On the acceptance of the offer contained in this Sale Notice, the
Trustee shall:
(i) subject to the Master Trust Deed and any relevant Series
Notice, hold the beneficial interest in the Offered Receivable
Rights on and from the Closing Date, free of any set-off or
counterclaim; and
(ii) not assume any obligation under the Offered Receivable Rights.
4. CONSIDERATION
[(a) If the Trustee accepts the offer in this Sale Notice, the Purchase
Price shall be divided between the property purchased as follows:
(i) the lesser of $100 or 5% of the Purchase Price to that part of
the Offered Receivable Rights which is not part of the Offered
Receivable Interest; and
(ii) the balance tothe Offered Receivable Interest.] [Only for
Mortgages]
[(b) On the payment of the Purchase Price, the Trustee shall ensure
that any Accrued Interest Adjustment (as defined in the Series
Notice) is made in accordance with the Master Trust Deed and
any relevant Series Notice.]
[(c) After the Closing Date, the Approved Seller will on the next Payment
Date pay to the Trustee, as an adjustment to the Purchase Price, an
amount equal to any Principal Collections received by the Approved
Seller in relation to the
Page 137
Purchased Receivables from the close of business on the Cut-Off Date
to but excluding the Closing Date. Such payment will be discharged by
the Trust Manager or the Servicer depositing such amount in the
relevant Collection Account.]
5. ACKNOWLEDGEMENT
The Approved Seller acknowledges, agrees and confirms to the Trustee that:
(a) (Master Trust Deed binding on it) the Master Trust Deed is a valid and
binding obligation of the Approved Seller enforceable in accordance
with its terms;
(b) (repeat representations) the Approved Seller repeats the
representations and warranties made by it in clause 8.6 of the Master
Trust Deed in so far as they apply to the Offered Receivable Rights;
(c) (description of Receivables)
(i) a description of the Receivables and Receivable Securities is
in the attached computer disk and hard copy; and
(ii) each Receivable Security included or referred to in the Offered
Receivable Rights constitutes an Eligible Receivable Security;
(d) (no default) no Title Perfection Event is subsisting as at the date of
this Sale Notice nor, if the offer is accepted, will there be any
Title Perfection Event subsisting at the date the offer is accepted or
the date the purchase price is paid nor will any Title Perfection
Event result from the offer evidenced by this Sale Notice or the
transfer of the Offered Receivable Rights;
(e) (Authorisations) all necessary Authorisations for the offer evidenced
by this Sale Notice and the transfer of the Offered Receivable Rights
have been taken, or as the case may be, obtained.
[6. MEMORANDUM OF SALE OF OFFERED RECEIVABLE INTEREST
Accompanying this Sale Notice is a Memorandum of the Agreement (in the form
of annexure C to the Master Trust Deed) in relation to Receivable
Securities relating to Mortgaged Property in Queensland, Western Australia
and Tasmania, which the Approved Seller undertakes it will, if the Trustee
accepts the offer of sale in this Sale Notice, execute and within 30 days
lodge for stamping and then return to the Trustee duly stamped.]
7. GOVERNING LAW
This Sale Notice is governed by the laws of New South Wales.
------------------------------------------
Authorised Signatory of
[*]
Page 138
CONFORMED COPY
ANNEXURE B
SELLER ACCESSION CERTIFICATE
DEED dated ________________________ between:
1. [NAME OF APPROVED SELLER] (A.C.N. [*]) (the Approved Seller);
2. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472) of ▇▇▇▇▇ ▇, ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ as trustee of the Series [*] WST
Trust (the Trustee); and
3. THE MORTGAGE COMPANY PTY LIMITED (ACN 070 968 302) of ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (the Trust Manager).
RECITALS
Under a Master Trust Deed (the Master Trust Deed) dated [*] 1997 between the
Trustee and The Mortgage Company Pty Limited, Trusts may be established to
purchase Receivables from the Approved Seller.
IT IS AGREED AS FOLLOWS
1. In this deed terms defined in the Master Trust Deed have the same meaning.
2. The Approved Seller shall as and from the date of this deed be an Approved
Seller for the purposes of the Master Trust Deed as if named as a party to
the Master Trust Deed in the capacity of an Approved Seller. The Approved
Seller agrees to comply with the Master Trust Deed. All the terms and
conditions of it shall bind the Approved Seller accordingly, and it shall
be entitled to all rights of an Approved Seller under the Master Trust
Deed.
3. The Approved Seller agrees to be a credit provider for the purposes of
regulation 75 of the Consumer Credit Code in relation to Receivables
disposed of by the Approved Seller.
4. This deed is governed by the laws of New South Wales.
5. Each attorney executing this deed states that he has no notice of the
revocation of his power of attorney.
SIGNED SEALED and DELIVERED )
on behalf of )
[*] LIMITED )
by its attorney )
in the presence of: ) --------------------------------
Signature
--------------------------------------- --------------------------------
Witness Print name
---------------------------------------
Print name
Page 139
TRUSTEE
SIGNED SEALED and DELIVERED )
on behalf of )
WESTPAC SECURITIES )
ADMINISTRATION LIMITED )
by its attorney )
in the presence of: )
--------------------------------
Signature
--------------------------------------- --------------------------------
Witness Print name
---------------------------------------
Print name
TRUST MANAGER
SIGNED SEALED and DELIVERED )
on behalf of )
THE MORTGAGE COMPANY PTY )
LIMITED by its attorney )
in the presence of: )
--------------------------------
Signature
--------------------------------------- --------------------------------
Witness Print name
---------------------------------------
Print name
Page 140
ANNEXURE C
MEMORANDUM OF AGREEMENT
AGREEMENT dated between:
1. [*] (ARBN [*]) incorporated in [*] (the Approved Seller), and
2. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472) incorporated in
New South Wales of ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
as trustee of the Series [*] WST Trust (the Purchaser).
IT IS AGREED as follows.
The Approved Seller and the Trustee agree that the Approved Seller has sold to
the Trustee an equitable interest in the Approved Seller's right, title, benefit
and interest (present and future) in, to, under or derived from any Receivable
Security listed in the First Schedule and certain collections under those
Receivable Securities for the consideration specified in the Second Schedule.
FIRST SCHEDULE
(Receivable Securities)
(list all mortgages)
SECOND SCHEDULE
(Consideration)
The consideration payable by the Trustee for the sale of the Receivable
Securities was $*** and any further amounts as agreed between the parties.
----------------------------------------------------
Authorised signatory of the Approved Seller
----------------------------------------------------
Authorised signatory of the Trustee
Page 141
ANNEXURE D
SERIES NOTICE
SEE ANNEXURE E OF THE TRUST DEED
FOR DETAILS TO BE INCLUDED
SERIES [] WST TRUST
SERIES NOTICE
1. INTRODUCTION
This Series Notice is issued on [*] 1997 by The Mortgage Company Pty
Limited (ACN 070 968 302) of ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ as manager (Trust Manager) under the Master Trust Deed (as defined
below). It is issued pursuant and subject to the Master Trust Deed dated
[*] 1997 (the Master Trust Deed) between (among others) the Trust Manager
and Westpac Securities Administration Limited (ACN 000 049 472) of ▇▇▇▇▇ ▇,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ as trustee of the Series [] WST
Trust (the Trustee).
Each party to this Series Notice agrees to be bound by the Transaction
Documents as amended by this Series Notice in the capacity set out with
respect to them in this Series Notice or the Master Trust Deed.
[The Mortgage Company Pty Limited] (the Servicer) agrees to service the
Purchased Receivables and Purchased Receivable Securities in accordance
with the Servicing Agreement.
2. DIRECTION AND TRUST BACK
(a) A Trust Back, entitled Westpac [] Trust Back, is created in relation
to Other Secured Liabilities secured by the Purchased Receivable
Securities.
(b) The parties agree that the Trust will be a Trust for the purposes of
the Transaction Documents.
3. DEFINITIONS AND INTERPRETATION
3.1 Definitions
Unless otherwise defined in this Series Notice, words and phrases defined
in the Master Trust Deed have the same meaning where used in this Series
Notice.
In this Series Notice, and for the purposes of the definitions in the
Master Trust Deed, the following terms have the following meanings unless
the contrary intention appears. These definitions apply only in relation to
the Series [] WST Trust, and do not apply to any other Trust (as defined in
the Master Trust Deed).
[*]
3.2 Interpretation
Clause 1.2 of the Master Trust Deed is incorporated into this Series Notice
as if set out in full, except that any reference to deed is replaced by a
reference to Series Notice.
Page 142
3.3 Limitation of liability
(a) General
Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Trust Manager under this Series
Notice.
(b) Liability of Trustee limited to its right of indemnity
(i) This Series Notice applies to the Trustee only in its capacity
as trustee of the Trust and in no other capacity. A liability
arising under or in connection with this Series Notice or the
Trust can be enforced against the Trustee only to the extent to
which it can be satisfied out of property of the Trust out of
which the Trustee is actually indemnified for the liability.
This limitation of the Trustee's liability applies despite any
other provision of this Series Notice and extends to all
liabilities and obligations of the Trustee in any way connected
with any representation, warranty, conduct, omission, agreement
or transaction related to this Series Notice or the Trust.
(ii) The parties other than the Trustee may not ▇▇▇ the Trustee
personally or seek the appointment of a liquidator,
administrator, receiver or similar person to the Trustee or
prove in any liquidation, administration or arrangement of or
affecting the Trustee.
(iii) The provisions of this clause 3.3 shall not apply to any
obligation or liability of the Trustee to the extent that it is
not satisfied because under the Master Trust Deed or the Series
Notice or by operation of law there is a reduction in the
extent of the Trustee's indemnification out of the assets of
the Trust, as a result of the Trustee's fraud, negligence or
breach of trust.
(iv) It is acknowledged that the Trust Manager is responsible under
this agreement for performing a variety of obligations relating
to the Trust. No act or omission of the Trustee (including any
related failure to satisfy its obligations under this
agreement) will be considered fraud, negligence or breach of
trust of the Trustee for the purpose of sub-paragraph (iii) to
the extent to which the act or omission was caused or
contributed to by any failure by the Trust Manager or any other
person (other than a person who has been properly appointed by
the Trustee and for whom the Trustee is responsible under this
deed or the relevant Transaction Documents) to fulfil its
obligations relating to the Trust or by any other act or
omission of the Trust Manager or any other person (other than a
person who has been properly appointed by the Trustee and for
whom the Trustee is responsible under this deed or the relevant
Transaction Documents).
(v) No attorney, agent, receiver or receiver and manager appointed
in accordance with this agreement has authority to act on
behalf of the Trustee in a way which exposes the Trustee to any
personal liability and no act or omission of any such person
will be considered fraud, negligence or breach of trust of the
Trustee for the purpose of sub-paragraph (iii), if the Trustee
has exercised reasonable care in the selection and supervision
of such persons.
Page 143
4. NOTES
[*]
5. CASHFLOW ALLOCATION METHODOLOGY
[*]
6. MASTER TRUST DEED
6.1 Completion of details in relation to Master Trust Deed
(a) (Trust Manager fee)
[*]
(b) (Trustee fee)
[*]
(c) (Servicing fee)
[*]
6.2 Amendments to Master Trust Deed
The Master Trust Deed is amended for the purpose of the Series [] WST Trust
as follows:
[*]
7. TRANSFERS TO WAREHOUSE TRUST
[The Trustee may, from time to time, direct the Trustee to transfer a
Purchased Receivable to a Warehouse Trust. That transfer:
(a) must be in accordance with clause 7 of the Master Trust Deed; and
(b) must be for a consideration equal to the Unpaid Balance of that
Receivable.
The Trustee must comply with that direction.]
8. APPLICATION OF THRESHOLD RATE
[*]
9. BENEFICIARY
[*]
10. TITLE PERFECTION EVENTS
[*]
Page 144
EXECUTED as a deed in Canberra.
Each attorney executing this deed states that he or she has no notice of
revocation or suspension of his or her power of attorney.
TRUSTEE
SIGNED SEALED and DELIVERED )
by WESTPAC SECURITIES )
ADMINISTRATION LIMITED in the )
presence of: )
--------------------------------
Signature
--------------------------------------- --------------------------------
Witness Print name
---------------------------------------
Print name
TRUST MANAGER/SERVICER
SIGNED SEALED and DELIVERED )
by THE MORTGAGE COMPANY )
PTY LIMITED in the presence of: )
--------------------------------
Signature
--------------------------------------- --------------------------------
Witness Print name
---------------------------------------
Print name
APPROVED SELLER
SIGNED SEALED and DELIVERED )
by WESTPAC BANKING CORPORATION )
in the presence of: )
--------------------------------
Signature
--------------------------------------- --------------------------------
Witness Print name
---------------------------------------
Print name
Page 145
SCHEDULE
An Eligible Receivable means a Loan which, as at the Cut-Off Date for that Loan:
[*]
Page 146
[Form to follow once finalised]
Page 147
ANNEXURE E
SERIES NOTICE CHECKLIST
Clause 1.1 definitions:
Approved Bank
Authorised Investments
Carryover Charge Off
Closing Date
Collection Account
Collections
Coupon
Coupon Payment Date
Cut-Off Date
Dealer Agreement
Eligibility Criteria
Enforcement Expenses
Expense
Hedge Agreement
Information Memorandum
Initial Invested Amount
Invested Amount
Liquidity Facility Agreement
Maturity Date
Mortgage Insurer
Principal Entitlement
Principal Repayment Date
Record Date
Redraw Facility Agreement
Related Security
Page 148
Relevant Document
Servicer's Report - information and format
Stated Amount
Support Facility
Threshold Rate
Title Perfection Event
Transaction Document
Trust Manager's Report - information and format
Unpaid Balance
Warehouse Facility Agreement
Clause 3.1(b) - Beneficiary's unit(s)
Clause 3.5(e) - restrictions relating to Seller Note on sale proceeds
Clause 3.5(h) - cashflow allocation methodology
Clause 4.2 - investment recommendation
Clause 4.10(a) - segregation of Assets contrary to Trust Deed
Clause 5.1 - Borrowing contrary to Trust Deed
Clause 5.3 - direction as to Support Facility
Clause 6 - origination procedure
Clause 7.1 - details of acquisition by Warehouse Trust
Clause 7.2(a) - information required in a Warehouse Trust Direction
Clause 7.7 - transfers between Trusts
Clause 8.5(a)(iii) - other conditions precedent to sale
Clause 8.6(vii) - Approved Seller representations
Clause 8.7(a) - Approved Seller undertakings
Clause 8.9(a) - Title Perfection Events contrary to Trust Deed
Clause 8.9(d) - Clean Up Offer
Clause 8.10(a)(i) - accrued interest to Approved Seller, together with
relevant date
Page 149
Clause 8.10(a)(ii) - principal received by Approved Seller, together with
relevant date
Clause 9.1 - details of acquisition from Warehouse Trust
Clause 10.1 - entry in Register contrary to Trust Deed.
Clause 10.4 - paying interest or principal contrary to Trust Deed
Clause 10.5 - denomination if different from $100,000 minimum and
$100,000 increments
Clause 10.8 - any discrimination between Noteholders
Clause 11.1 - Seller Note
Clause 12.2 - if Beneficiary interest is not assignable
---
Clause 13.1(a) - period for Note Issuance Direction if not 3 Business
Days
Clause 13.1(b) - other conditions precedent to issue of Notes
Clause 13.2(a)(viii) - additional information in Note Issuance Direction
Clause 13.3 - information to be included: Clause 13.3(a) is
mandatory; clause 13.3(b) is optional
Clause 13.7 - Dealer Agreement
Clause 13.8(d) - rating specified
Clause 14.1 - restrictions on Note transfer
Clause 14.2(b) - minimum transfer amount
Clause 15.1 - timing of Note Acknowledgement
Clause 16.1(p) - additional information required in the Register
Clause 16.5 - periods for closing of Register
Clause 17.1 - override meeting provisions in Trust Deed
Clause 17.12(a) - other powers of Extraordinary Resolution
Clause 18.1(a) - additional provisions relating to Trust Manager
Clause 18.10 - publication by Reuters
Clause 18.16(b) and (c) - when drawings to be made under Support Facilities
Clause 18.20 (g) - calculate Threshold Rate
Clause 19 - Trust Manager's fee
Clause 22.8(a) - if Servicer is not Custodian
---
Clause 23.1 - Trustee's fee
Page 150
Clause 23.2 - reimbursement of Trustee's expenses
Clause 27.8 - deposits if contrary to Trust Deed
Clause 30.1 - applying income and capital of Trust
Clause 30.2(c) - distribution of Distributable Income
Clause 30.4 - manner in which shortfalls are to be borne by
Noteholders
Clause 33.18 - non-approved Seller nominated credit provider