Exhibit 4.2
---------------------------------
DATED 17 MAY 2001
KINGFISHER TRUST 2001-1G
SUPPLEMENTAL DEED
PERPETUAL TRUSTEE COMPANY
LIMITED
("TRUSTEE")
ANZ CAPEL COURT LIMITED
("TRUST MANAGER")
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
("SELLER", SERVICER, CUSTODIAN
AND RESIDUAL INCOME UNITHOLDER)
P.T. LIMITED
("SECURITY TRUSTEE")
KINGFISHER SECURITISATION PTY
LTD
("RESIDUAL CAPITAL UNITHOLDER")
MALLESONS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Solicitors
Level 60
Governor ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Fax (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
DX ▇▇▇ ▇▇▇▇▇▇
Ref: SRF:BCC
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CONTENTS KINGFISHER TRUST 2001-1G SUPPLEMENTAL DEED
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PART 1 - INTERPRETATION 2
1 INTERPRETATION 2
Definitions 2
Transaction Document 17
Limited to Trust 17
Definitions and consistency 17
Global Master Security Trust Deed 18
Register of Note Holders 18
Transfer of Notes 18
Reporting Statement 18
Definitions Schedule 19
Credit ratings 19
Support Facilities 19
PART 2 - THE TRUST AND ITS ASSETS 20
2 TRUST 20
Name of Trust 20
Determination of final Payment Date 20
Realisation of Assets of the Trust 20
Conditions of Sale during 180 days 20
Right of refusal 21
Sale at lower price 21
Conditions of sale after 180 days 21
Further conditions of sale after 180 days 22
Procedures pending winding-up 22
Costs on winding-up of the Trust 23
Calculation of Final Distributions 23
Final Distributions 23
3 ENTITLEMENT OF BENEFICIARIES 23
Issue of ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Residual Income ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
Transfer of Units 25
Limit on rights 26
4 CONSUMER CREDIT CODE 26
Right of indemnity - Consumer Credit Legislation 26
Servicer 26
5 REPURCHASE OPTION 27
Clean-Up offer 27
Calculation 27
Acceptance 27
Consent of Note Holders 27
Reconveyance 27
Clean-Up Amount 28
6 RECEIVABLES 29
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Requirement to satisfy 29
Eligibility Criteria 29
Servicer may release Related Security 30
7 THE CUSTODIAN 30
Standard 30
Transfer of Custody 31
Information Indemnity 31
Auditor review 31
Document Custody Audit Report 32
Timing of Document Custody Audit Reports 32
Adverse Document Custody Audit Report 33
Custodian Transfer Event 33
Failure to comply with clause 7.10 33
Indemnity 34
Trustee to co-operate with Servicer 34
Trustee's duty while holding Title Documents 34
Reappointment of the Custodian as custodian 35
PART 3 - THE NOTES 36
8 PURPOSE 36
Purpose 36
Criteria 36
General 36
9 TERMS OF ISSUE OF THE NOTES 36
Notes to be issued 36
Form, constituent documents and denomination of
the Notes 36
Tranches of Class A Notes and Class B Notes 37
Initial Invested Amount of the Notes 38
Interest on the Class A Notes 38
Interest on the Class B Notes 38
Overdue interest 38
Redemption 39
Trustee's Covenant to the Note Holders 39
Register of Note Holders 40
Transfer and Transmission of Notes 40
Taxation 40
Rounding of Payments 40
Call Option 41
Redemption for Taxation or Other Reasons 41
10 CONDITIONS PRECEDENT 43
Conditions precedent to the issue of Notes 43
11 REPRESENTATIONS AND WARRANTIES 44
Representations and Warranties 44
Trustee representations and warranties 45
Seller representations and warranties 46
12 PAYMENTS 47
Manner 47
Cleared Funds 48
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PART 4 - PRINCIPAL AND INCOME DETERMINATIONS AND
PAYMENTS 49
13 COLLECTIONS 49
Establishment of Collection Account with
Servicer 49
Remittance to Collection Account 49
14 TERMINATION OF THE SWAPS AND APPLICATION OF
THRESHOLD RATE 49
Calculation of Threshold Rate 49
Termination of Basis Swap or Fixed Rate Swap 49
Seller's Discretion 50
Trustee's power 50
Termination of Linked Deposit Accounts 51
Servicer to adjust 51
Gross Up for Linked Deposit Accounts 51
15 CASHFLOW ALLOCATION METHODOLOGY 51
General 51
Collection Period 52
Finance Charge Collections 52
Calculation of Available Income 53
Principal Draw 54
Liquidity Drawing 54
Calculation and application of Total Available
Income 54
Required Payments (Interest waterfall) 55
Excess Available Income 56
Principal Collections 57
Redraw Shortfall 58
Principal Distributions 58
Payments of Principal on the Notes and to the
Redraw Facility Provider 59
Principal Charge-Offs 59
Carryover Principal Charge-Offs 60
Increases 60
Early Repayment Costs and Early Repayment
Benefits 61
Application of proceeds following an Event of
Default 61
Excluded Amount 63
16 DETERMINATIONS BY TRUST MANAGER 63
Determinations by Trust Manager 63
17 TRUST MANAGER, TRUSTEE, CUSTODIAN AND SERVICER
FEES 64
Trust Manager's fee 64
Trustee's fee 65
Custodian's fee 65
Servicer's fee 65
Fee and GST 66
PART 5 - GENERAL 67
18 NOTICES 67
Notices 67
Deemed receipt 68
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19 COUNTERPARTS 68
20 DAMAGES 68
Claim for Damages 68
Allocation of Damages 69
21 MISCELLANEOUS 69
Certificate 69
Exercise of rights 69
Waiver and variation 69
Supervening legislation 69
Approvals and consent 70
Remedies cumulative 70
Indemnities 70
Time of the essence 70
Receipts 70
Acknowledgment 70
Disclosure of information 70
Rights cumulative 71
Signatures 71
22 GOVERNING LAW 71
Governing Law 71
Submission to jurisdiction 71
Service 71
23 LIMITED RECOURSE - TRUSTEE 71
Limitation on Trustee's liability 71
Claims against Trustee 72
Breach of Trust 72
Acts or omissions 72
No obligation 72
24 SELLER TRUST 72
Constitution of Seller Trust 72
Declaration of Trust 73
Entitlement 73
Dealing with assets 73
Treatment of Shared Collateral 73
Proceeds 74
Claw-Back 74
Duties 75
Indemnity 75
Termination 75
Transfer 75
Other liabilities 76
Shared Securities 76
25 SELLER PROVISIONS 76
Seller Advances 76
Restrictions on Seller Advances 77
Set-Off 77
Seller Downgrade 77
Reduction or increase of Seller Deposit 78
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Interest on Seller Deposit 79
Seller Upgrade 79
Termination of Trust or Amendments to
Receivables 79
Withdrawals from the account 80
SCHEDULE 1 REGISTER OF NOTE HOLDERS 81
SCHEDULE 2 TRANSFER OF NOTES 84
SCHEDULE 3 STEPDOWN PERCENTAGE 88
EXECUTION PAGE 92
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KINGFISHER TRUST 2001-1G SUPPLEMENTAL DEED
DATE: 17 May 2001
PARTIES: PERPETUAL TRUSTEE COMPANY LIMITED
(ABN 42 000 001 007) in its capacity as trustee of the
Trust having its registered office at ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ("TRUSTEE")
ANZ CAPEL COURT LIMITED (ABN 30 004 768 807) having
its registered office at ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ("TRUST MANAGER")
P.T. LIMITED (ABN 67 004 454 666) in its capacity as
security trustee of the Security Trust having its
registered office at ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ("SECURITY TRUSTEE")
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ABN
11 005 357522) having its registered office at ▇▇▇▇▇ ▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ("SERVICER",
"SELLER", "CUSTODIAN" and "RESIDUAL INCOME UNITHOLDER")
KINGFISHER SECURITISATION PTY LTD (ABN 89 093 469 375)
of ▇/- ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ("RESIDUAL
CAPITAL UNITHOLDER")
RECITALS:
A. By the Master Trust Deed, provision was made for the
establishment of the Trust pursuant to a Notice of
Creation of Trust, which will be regulated by this deed.
B. The Trustee may acquire Receivables.
C. The Security Trustee will hold a security interest over
the Assets of the Trust under the Global Master Security
Trust Deed and the Deed of Charge.
D. The Servicer will be appointed to service the
Receivables, which, from time to time, will comprise
Assets of the Trust under the Master Servicer Deed and
this deed.
E. The Trustee, at the direction of the Trust Manager, may
obtain funds by issuing the Notes in accordance with the
terms of this deed.
F. The parties to this deed have agreed that the terms and
conditions for the constitution of the Trust and the
issuing of the Notes in respect of the Trust will be the
terms and conditions set out in the Master Trust Deed,
this deed, the Dealer Agreement and the Note Trust Deed
(including the Class A Note Conditions).
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OPERATIVE PROVISIONS:
PART 1 - INTERPRETATION
1 INTERPRETATION
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DEFINITIONS
1.1 The following words have these meanings unless the
contrary intention appears:
A$ means the lawful currency of the Commonwealth of
Australia.
A$ CLASS A INTEREST AMOUNT means, in respect of a Class
A Note, a Payment Date and the Interest Period ending on
(but excluding) that Payment Date, an amount calculated
as follows:
N
A = B x C x ---
365
where:
A = the A$ Class A Interest Amount for that Interest
Period;
B = the Total Invested Amount of the Class A Notes
on the Determination Date immediately preceding
the commencement of that Interest Period (which,
for the avoidance of doubt, is the Total Invested
Amount of the Class A Notes on the first day of
that Interest Period after taking into account any
reduction to the Total Invested Amount on or prior
to that date);
C = the A$ Class A Interest Rate for that Interest
Period; and
N = the number of days in that Interest Period.
A$ CLASS A INTEREST RATE means, in respect of a Class A
Note, a Payment Date and the Interest Period ending on
(but excluding) that Payment Date, the aggregate of:
(a) the Bank ▇▇▇▇ Rate for that Interest Period; and
(b) the A$ Class A Margin for that Class A Note.
A$ CLASS A MARGIN, in respect of a Class A NOTE, has the
same meaning as the "Spread" specified under the heading
"Floating Amounts Payable by Party B" in the
confirmation for each Currency Swap.
A$ CLASS A PRINCIPAL means, in relation to a Payment
Date, the aggregate of:
(a) the amount allocated on that Payment Date from
Principal Collections to the A$ Class A Principal
pursuant to clause 15.13(d); and
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(b) the amount allocated on that Payment Date from
Excess Available Income to the A$ Class A
Principal pursuant to clauses 15.10(a)(i) and
15.10(b)(i).
A$ EQUIVALENT means, in relation to an amount which is
calculated, determined or expressed in US$ or which
includes a component determined or expressed in US$,
that US$ amount or US$ component (as the case may be)
multiplied by the A$ Exchange Rate and expressed in A$.
A$ EXCHANGE RATE means the "A$ Exchange Rate" specified
under the heading "Exchange Rates" in the confirmation
for each Currency Swap.
AGGREGATE STATED AMOUNT means, on any Determination
Date, the aggregate of the A$ Equivalent of the Stated
Amounts of the relevant Notes at that time.
AVAILABLE INCOME means, for any period, the amount
calculated in accordance with clause 15.4.
AVAILABLE LIQUIDITY AMOUNT has the meaning given to it
in the Liquidity Facility Agreement.
AVAILABLE REDRAW AMOUNT has the meaning given to it in
the Redraw Facility Agreement.
BANK ▇▇▇▇ RATE means, in respect of any Interest Period,
the rate expressed as a percentage per annum:
(a) calculated by taking the rate appearing on the
Reuters screen BBSW page at or about 10.15 am
(Melbourne time) on the first day of that Interest
Period for each bank so quoting (being no fewer
than five) as being the mean buying and selling
rate for a ▇▇▇▇ (which for the purpose of this
definition means a ▇▇▇▇ of exchange of the type
specified for the purpose of quoting on the
Reuters screen BBSW page) having a tenor of 90
days after eliminating the highest and the lowest
mean rates and taking the average of the remaining
mean rates (rounded up, if necessary, to the
nearest four decimal places);
(b) if fewer than five banks quote on the Reuters
screen BBSW page, the rate calculated as above by
taking the rates otherwise quoted by five banks
otherwise authorised to quote rates on the Reuters
screen BBSW page at or about 10.15 am (Melbourne
time) for a ▇▇▇▇ of exchange having a tenor of 90
days; or
(c) if a rate cannot be determined in accordance with
the procedures in (a) or (b), the rate specified
in good faith by the Trust Manager at or around
that time on that day, having regard, to the
extent possible, to comparable indices then
available as to the rate otherwise bid and offered
for bills of exchange having a tenor of 90 days,
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provided that, if the first Interest Period is a period
of less than 90 days, the Bank ▇▇▇▇ Rate for that
Interest Period will be the Bank ▇▇▇▇ Rate for 90 days
and if the first Interest Period is greater than 90
days, the Bank ▇▇▇▇ Rate for that Interest Period will
be calculated by the Trust Manager to be a linear
interpolated rate for the relevant period.
BASIS SWAP means an ISDA Master Agreement, the schedule
relating to it and each confirmation between the Basis
Swap Provider, the Trustee and the Trust Manager under
which the Trustee pays to the Basis Swap Provider an
amount in respect of Purchased Receivables that do not
bear interest at a fixed rate and under which the Basis
Swap Provider pays to the Trustee an amount calculated
by reference to the Bank ▇▇▇▇ Rate.
BASIS SWAP PROVIDER means Australia and New Zealand
Banking Group Limited or such other person who may be
appointed under this deed or the Basis Swap to act as
the Basis Swap Provider.
BUSINESS DAY means any day (other than a Saturday,
Sunday or public holiday) on which banks are open for
business in Melbourne and Sydney, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America and London, United
Kingdom.
CALL OPTION DATE means, in respect of the Notes, each
Payment Date commencing on or after the earlier of:
(a) the Payment Date falling in September 2008; and
(b) the Payment Date on which the aggregate
Outstanding Balance of all Housing Loans referable
to the Purchased Receivables (calculated as at the
end of the immediately preceding Collection
Period) is less than 10% of the aggregate
Outstanding Balance of all Housing Loans referable
to the Purchased Receivables on the Cut-Off Date.
CARRYOVER PRINCIPAL CHARGE-OFF has the meaning given in
clause 15.15.
CASHFLOW ALLOCATION METHODOLOGY means the methodology
specified in clause 15.
CLASS means the Class A Notes or the Class B Notes (or
both).
CLASS A BOOK-ENTRY NOTE means a Book-Entry Note (as
defined in the Definitions Schedule) issued in respect
of the Class A Notes.
CLASS A DEFINITIVE NOTE means a Definitive Note (as
defined in the Definitions Schedule) issued in respect
of the Class A Notes.
CLASS A NOTE means a Note referred to in clause 9.1(a)
and issued on the terms and conditions contained in this
deed and the Class A Note Conditions.
CLASS A NOTE HOLDER has the same meaning as in the Class
A Note Conditions.
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CLASS A NOTE CONDITIONS means the terms and conditions
for the Class A Notes as annexed as Schedule 1 to the
Note Trust Deed in respect of the Trust.
CLASS A NOTE OWNER means a Note Owner (as defined in the
Definitions Schedule) in respect of the Class A Notes.
CLASS A NOTE PERCENTAGE means on any Determination Date
a percentage calculated as follows:
ASA(A)
CANP = -----------
ASA + RPO
where:
CANP = the Class A Note Percentage
ASA(A) = the Aggregate Stated Amount of the Class A
Notes on the immediately preceding
Determination Date;
ASA = the Aggregate Stated Amount of all Notes on the
immediately preceding Determination Date;
RPO = the Redraw Principal Outstanding on the
immediately preceding Determination Date,
provided that, in respect of the first Determination
Date, such amounts will be calculated by reference to
the Initial Invested Amount of the relevant Classes of
Notes and RPO will be zero.
CLASS A NOTE REGISTER means the Note Register (as
defined in the Definitions Schedule) maintained in
respect of the Class A Notes.
CLASS A NOTE REGISTRAR means the Note Registrar (as
defined in the Definitions Schedule) in respect of the
Class A Notes.
CLASS A TRANCHE has the meaning given to that term in
clause 9.3.
CLASS B NOTE means a Note referred to in clause 9.1(b)
issued on the terms and conditions contained in this
deed and the Dealer Agreement.
CLASS B NOTE HOLDER means each person who is from time
to time entered in the Register of Note Holders as the
holder of a Class B Note.
CLASS B NOTE INTEREST AMOUNT means, in respect of a
Class B Note, a Payment Date and the Interest Period
ending on (but excluding) that Payment Date, the amount
calculated in accordance with clause 9.9 for that Class
B Note.
CLASS B NOTE INTEREST RATE means, in respect of a Class
B Note, a Payment Date and the Interest Period ending on
(but excluding) that Payment Date, the aggregate of:
(a) the Bank ▇▇▇▇ Rate for that Interest Period; and
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(b) the Class B Note Margin for that Class B Note.
CLASS B NOTE MARGIN means, in relation to a Class B
Note, the margin (expressed as a percentage per annum)
notified by the Trust Manager for the relevant Class B
Note in accordance with the Dealer Agreement (in the
case of the Class B Notes) and advised by the Trust
Manager to the Trustee.
CLASS B NOTE PERCENTAGE means, on any Determination
Date, a percentage calculated as follows:
ASA(B)
CBP = -----------
ASA + RPO
where:
CBP = the Class B Note Percentage;
ASA(B) = the Aggregate Stated Amount of the Class B
Notes on the immediately preceding
Determination Date;
ASA = the Aggregate Stated Amount of all Notes on
the immediately preceding Determination Date;
RPO = the Redraw Principal Outstanding on the
immediately preceding Determination Date,
provided that, in respect of the first Determination
Date, such amounts will be calculated by reference to
the Initial Invested Amount of the relevant Classes of
Notes and RPO will be zero.
CLASS B PRINCIPAL means, in relation to a Payment Date,
the aggregate of: -
(a) the amount allocated on that Payment Date from
Principal Collections to the Class B Principal
pursuant to clause 15.13(e); and
(b) the amount allocated on that Payment Date from
Excess Available Income to the Class B Principal
pursuant to clauses 15.10(c) and 15.10(d).
CLASS B TRANCHE has the meaning given to that term in
clause 9.3.
CLEAN-UP ACCOUNT means the bank account established by
the Trustee under clause 5.6(iii)(A) and, pending the
establishment of that bank account in accordance with
this deed, means the Collection Account.
CLEAN-UP AMOUNT means, on a Determination Date, an
amount equal to the lesser of:
(a) 0.25% x (TIA + RPO); and
(b) $25,000,
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where TIA is the Total Invested Amount of all Notes on
that Determination Date and RPO is the Redraw Principal
Outstanding on that Determination Date.
CLEAN-UP OFFER has the meaning given to it in clause
5.1.
CLEAN-UP OFFER AMOUNT has the meaning given to it in
clause 5.1.
CLEAN-UP OPTION means the offer by the Trustee to
reconvey the Purchased Receivables to the Seller under
clause 5.1.
COLLATERAL ACCOUNT means any collateral account (as
defined in, and established under, a Support Facility).
COLLECTION BUSINESS DAY means a day (excluding a
Saturday, Sunday and any public holiday) on which banks
are open for business in Melbourne, Australia.
COLLECTION PERIOD means, in relation to a Payment Date,
the period from (and including) the first day of the
Quarter immediately preceding the related Determination
Date up to (and including) the last day of the Quarter
immediately preceding the related Determination Date
except in the case of the first Collection Period, which
commences on (and includes) the day after the Cut-Off
Date and ends on 31 August 2001. However, if the last
day of the Quarter is not a Collection Business Day then
the Collection Period will end on (and include) the next
Collection Business Day. Any subsequent Collection
Period will commence on (and include) the day after the
end of the previous Collection Period.
COLLECTIONS means all amounts received by the Seller,
the Servicer, the Trust Manager or the Trustee after the
Cut-Off Date in respect of the Purchased Receivables
(including, without limitation, all principal, interest,
the proceeds received under any Mortgage Insurance
Policy, any proceeds recovered from any enforcement
action in respect of a Purchased Receivable, amounts
received on a repurchase of a Purchased Receivable, any
amount received from the Seller as damages in respect of
a breach of any representation, warranty or covenant in
connection with the Purchased Receivables and any other
amounts received in relation to the Purchased
Receivables), but excluding any interest credited to any
Collateral Account in respect of a Support Facility.
CORPORATIONS LAW means the Corporations Law of Australia
under the Corporations ▇▇▇ ▇▇▇▇.
COUPON RATE means the Class B Note Interest Rate.
CURRENCY SWAP means each ISDA Master Agreement, the
schedule to it, each confirmation issued under it and
each credit support annex entered into in connection
with it between each Currency Swap Provider, the
Trustee, the Trust Manager and a person acting as the
support provider.
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CURRENCY SWAP PROVIDER means each of Australia and New
Zealand Banking Group Limited and Citibank N.A., and any
other person who subsequently enters into a currency
swap with the Trustee and the Trust Manager.
CUSTODIAN TRANSFER EVENT means an event described in
clause 7.10.
DEALER AGREEMENT means the agreement entitled
"Kingfisher Trust 2001-1G Dealer Agreement" between the
Trustee, the Trust Manager, the Seller and Australia and
New Zealand Banking Group Limited.
DEFINITIONS SCHEDULE means the deed entitled "Kingfisher
Master Trusts Master Definitions Schedule" dated 1
August 2000 between the Trustee, the Trust Manager and
the Security Trustee as amended by the deed entitled
"Kingfisher Master Trusts Amending Deed" dated 16 May
2001.
DESIGNATED RATING AGENCY means, in relation to the
Notes, such internationally recognised rating agencies
which have been requested by the Trust Manager to rate
the relevant Notes and which have been advised by the
Trust Manager.
DETERMINATION DATE means the day which is 4 Business
Days prior to a Payment Date.
DOCUMENT CUSTODY AUDIT REPORT has the meaning given to
that term in clause 7.7.
EARLY REPAYMENT BENEFITS means those amounts (if any)
which are payable to a Debtor during a Collection Period
as a result of the Debtor prepaying any amount in
respect of a Fixed Interest Rate Loan.
EARLY REPAYMENT COSTS mean those costs which are
actually received from a Debtor during a Collection
Period as a result of the Debtor prepaying any amount in
respect of a Fixed Interest Rate Loan.
ELIGIBILITY CRITERIA means the criteria for purchasing a
Receivable set out in clause 6.2.
ENFORCEMENT EXPENSES means all expenses paid by or on
behalf of the Servicer in connection with the
enforcement of any Purchased Receivable.
EXCESS AVAILABLE INCOME has the meaning given to it in
clause 15.10.
EXPENSES OF THE TRUST means all costs, charges and
expenses reasonably and properly incurred by the Trustee
or the Trust Manager in connection with the Trust and
any other amounts for which the Trustee is entitled to
be reimbursed or indemnified out of the Trust and which
the Trustee elects to pay, including, without
limitation, the expenses as described in clause 33.3 of
the Master Trust Deed.
EXTRAORDINARY EXPENSES means, on a Determination Date,
any out of pocket expenses incurred by the Trustee
during the immediately preceding Collection Period that
are not Required Payments in respect of that
Determination Date.
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FINAL MATURITY DATE means the Payment Date occurring in
September 2032.
FINAL TERMINATION DATE means the date referred to in
clause 2.2.
FINANCE CHARGE COLLECTIONS means, in respect of a
Determination Date, the amount calculated in accordance
with clause 15.3.
FIXED INTEREST RATE LOAN means any Housing Loan
comprising part of a Receivable in respect of which the
Seller or the Servicer cannot vary the interest rate
charged to the Debtor for a specified period of time.
FIXED RATE SWAP means an ISDA Master Agreement, the
schedule relating to it and each confirmation between
the Fixed Rate Swap Provider, the Trustee and the Trust
Manager, under which the Trustee pays to the Fixed Rate
Swap Provider an amount in respect of Purchased
Receivables that are Fixed Interest Rate Loans and under
which the Fixed Rate Swap Provider pays to the Trustee
an amount calculated by reference to the Bank ▇▇▇▇ Rate.
FIXED RATE SWAP PROVIDER means Australia and New Zealand
Banking Group Limited, or such other person who may be
appointed under this deed or the Fixed Rate Swap to act
as the Fixed Rate Swap Provider.
GST LAW means the A New Tax System (Goods and Services
Tax) ▇▇▇ ▇▇▇▇.
INITIAL INVESTED AMOUNT has, in relation to a Class A
Note, the meaning given to it in clause 9.7(a) and, in
relation to a Class B Note, has the meaning given to it
in clause 9.7(b).
INTEREST AMOUNT means in respect of a Class A Note and
in respect of any Interest Period, the amount calculated
in accordance with clause 9.8.
INTEREST PERIOD, in respect of a Note, means (initially)
the period from (and including) the Issue Date to (but
excluding) the first Payment Date and thereafter each
period from (and including) each Payment Date to (but
excluding) the next following Payment Date. The final
Interest Period is from (and including) the Payment Date
immediately preceding the date on which interest ceases
to accrue on the Note pursuant to the Class A Note
Conditions or this deed, as the case may be, to (but
excluding) the date on which interest ceases to accrue
on the Note pursuant to the Class A Note Conditions or
this deed, as the case may be.
INVESTED AMOUNT on any Determination Date:
(a) in respect of a Class A Note, has the same meaning
as in the Class A Note Conditions;
(b) in respect of a Class B Note, means an amount
equal to:
(i) the Initial Invested Amount of that Class B
Note; less
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(ii) the aggregate of all Principal Amounts which
have been paid before that date in relation
to that Class B Note; less
(iii) the Principal Amount to be paid on the next
Payment Date in relation to that Class B
Note.
LINKED DEPOSIT ACCOUNT means a deposit account
maintained by a Debtor with the Seller under which
either:
(a) interest that would otherwise be earned in respect
of the deposit account is set off against interest
due under the Housing Loan of that Debtor; or
(b) interest is not earned on the deposit account, but
interest due under the Housing Loan of that Debtor
is calculated by deducting the credit balance of
that deposit account from the balance of the
Housing Loan, and then applying the interest rate
applicable to the Housing Loan to the result.
LIQUIDITY DRAWING means the amount drawn under the
Liquidity Facility on any Payment Date.
LIQUIDITY SHORTFALL means, on a Determination Date, the
amount (if any) by which the Payment Shortfall on that
Determination Date exceeds the Principal Draw which is
allocated on that Determination Date for application
towards the Payment Shortfall in accordance with clause
15.5.
MORTGAGE INSURANCE INTEREST PROCEEDS means, in respect
of a Purchased Receivable, the amount received by or on
behalf of the Trustee under a Mortgage Insurance Policy
and which is determined by the Trust Manager not to be
in the nature of principal.
MORTGAGE INSURANCE PREMIUM POLICY means the insurance
policy issued by PMI Mortgage Insurance Ltd (ABN 70 000
511 071) dated on or about the date of this deed in
respect of amounts loaned to Debtors to cover premiums
payable on Primary Mortgage Insurance Policies.
MORTGAGE INSURANCE POLICY means each of:
(a) each Primary Mortgage Insurance Policy;
(b) the Pool Insurance Policy;
(c) the Mortgage Insurance Premium Policy; and
(d) to the extent the context requires:
(i) the PMI Guarantee; and
(ii) the RSA Payment Deed.
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MORTGAGE INSURER means each of:
(a) ANZ Lenders Mortgage Insurance Pty Limited (ABN 77
008 680 055); and
(b) PMI Mortgage Insurance Ltd (ABN 70 ▇▇▇ ▇▇▇ ▇▇▇),
and any other mortgage insurer approved by the Trust
Manager and acceptable to each Designated Rating Agency
and notified to the Trustee.
NOTES means:
(a) the Class A Notes; and
(b) the Class B Notes.
OTHER INCOME means, on a Determination Date (and without
double counting any amounts included in Other Income on
a preceding Determination Date) any interest received on
Authorised Investments or on the Collection Account
during the immediately preceding Collection Period and
any other miscellaneous income received or expected to
be received by the Trustee on or before the immediately
following Payment Date but excluding any interest
received on any Collateral Account.
PAYMENT DATE means the 20th day of each of September,
December, March and June. The first Payment Date will be
20 September 2001.
PAYMENT SHORTFALL means, on a Determination Date, the
amount by which the Available Income is insufficient to
meet the Required Payments as calculated on that
Determination Date.
PENALTY PAYMENT means:
(a) the amount of any liability (including, without
limitation, any civil or criminal penalty) which
the Trustee is liable for under the Consumer
Credit Code;
(b) any other liability payable by the Trustee, or
legal costs or other expenses payable or incurred
by the Trustee, in relation to such liability;
(c) any amount which the Trustee agrees to pay (with
the consent of the Servicer) to a Debtor or other
person in settlement of any liability or alleged
liability or application for an order under Part 6
of the Consumer Credit Code; and
(d) any legal costs or other costs and expenses
payable or incurred by the Trustee in relation to
that application or settlement,
to the extent to which a person can be indemnified for
that liability, money or amount under the Consumer
Credit Code.
PMI GUARANTEE means the deed entitled "Guarantee Deed"
dated on or about the date of this deed between the
Trustee, the Seller, PMI
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Mortgage Insurance Ltd and ANZ Lenders Mortgage
Insurance Pty Limited.
POOL INSURANCE POLICY means the policy of insurance
issued to the Trustee and the Seller by PMI Mortgage
Insurance Ltd in respect of Purchased Receivables which
are not subject to Primary Mortgage Insurance Policies.
PRIMARY MORTGAGE INSURANCE POLICY means a primary
mortgage insurance policy issued by ANZ Lenders'
Mortgage Insurance Pty Limited in respect of Purchased
Receivables which have a LVR at the date of origination
of over 80%.
PRINCIPAL AMOUNT means, in respect of any Note and any
Payment Date, any amount of principal which is payable
in respect of such Note on such Payment Date.
PRINCIPAL CHARGE-OFFS means, in respect of a Collection
Period, the aggregate losses including principal and
interest (as determined by the Trust Manager) for all
Purchased Receivables which arise during that Collection
Period after all enforcement action has been taken in
respect of any Purchased Receivable and after taking
into account:
(a) all proceeds received as a consequence of
enforcement under any Purchased Receivables (less
the relevant Enforcement Expenses) during that
Collection Period;
(b) proceeds of any claims received under a Mortgage
Insurance Policy during that Collection Period;
and
(c) any payments received during that Collection
Period from the Seller or the Servicer for a
breach of its obligations under the Transaction
Documents.
PRINCIPAL COLLECTIONS means, in respect of a
Determination Date and the Collection Period immediately
preceding that Determination Date, the amount calculated
in accordance with clause 15.11.
PRINCIPAL DRAW means each distribution of Principal
Collections made in accordance with clauses 15.5 and
15.13(c).
PURCHASED RECEIVABLE means a Receivable which is
purchased by the Trustee on behalf of the Trust. For the
avoidance of doubt, a Purchased Receivable does not
include any Other Secured Liability.
QUARTER means the three month period in each year
commencing on 1 September, 1 December, 1 March and 1
June.
RECOVERIES means amounts received from or on behalf of
Debtors or under any Mortgage or any Related Security in
respect of Purchased Receivables that were previously
the subject of a loss as described in the definition of
Principal Charge-Offs.
REDRAW means the Seller's re-advance to a Debtor of
repayments of principal made by that Debtor on its
Housing Loan in accordance with the terms of the
relevant Loan Agreement.
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REDRAW DRAWING has the meaning given to that term in the
Redraw Facility Agreement.
REDRAW LIMIT has the meaning given to it in the Redraw
Facility Agreement in respect of the Trust.
REDRAW PERCENTAGE means, on any Determination Date, a
percentage calculated as follows:
RPO
RP = -----------
ASA + RPO
where:
RP = the Redraw Percentage
ASA = the Aggregate Stated Amount of all Notes on
the immediately preceding Determination Date;
RPO = the Redraw Principal Outstanding calculated
on the immediately preceding Determination
Date,
provided that, in respect of the first Determination
Date, such amounts will be calculated by reference to
the Initial Invested Amount of the Notes and RPO will be
zero.
REDRAW PRINCIPAL in relation to a Payment Date, means
the aggregate of :
(a) the amount allocated on that Payment Date from
Principal Collections to the Redraw Principal
pursuant to clause 15.13(b); and
(b) the amount allocated on that Payment Date from
Excess Available Income to Redraw Principal
pursuant to clause 15.10(a)(ii) and 15.10(b)(ii).
REDRAW PRINCIPAL OUTSTANDING means, on a Determination
Date, an amount equal to:
(a) the aggregate of all Redraw Drawings previously
made or to be made on the immediately following
Payment Date; less
(b) the aggregate amount of all Redraw Principal
previously paid under clause 15.14(b) to the
Redraw Facility Provider; less
(c) the amount of any Redraw Principal under clause
15.14(b) to be paid to the Redraw Facility
Provider on the immediately following Payment
Date; less
(d) the amount of any Principal Charge-Offs allocated
to the Redraw Principal Outstanding under clause
15.14A(b)(ii) on that Determination Date which
will not be reimbursed on the immediately
following Payment Date under clause 15.10(a)(ii);
less
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(e) (without double counting any Principal
Charge-Offs) any Carryover Principal Charge-Offs
in respect of the Redraw Principal Outstanding
which have not been reimbursed on or before the
immediately following Payment Date under clause
15.10(b)(ii).
REDRAW SHORTFALL means, on a Determination Date, the
amount (if any) by which the Principal Collections (as
calculated on that Determination Date and prior to
taking into account any Redraw Drawings to be made on
the next Payment Date) are insufficient to meet in full
any Redraws made by the Seller during the immediately
preceding Collection Period which are repayable to the
Seller pursuant to clause 15.13(a).
RELEVANT PARTIES means each of the Trust Manager, the
Seller, the Servicer, the Custodian, the Security
Trustee, the Calculation Agent, each Paying Agent, the
Note Trustee, the Class A Note Registrar, each
Counterparty, the Redraw Facility Provider and the
Liquidity Facility Provider.
REQUIRED CREDIT RATING means in respect of:
(a) S&P, either a short term rating of A-1+ or a long
term rating of AAA (as the case may be) or such
other rating agreed between the Trust Manager and
S&P and notified to the Trustee; and
(b) ▇▇▇▇▇'▇, either a short term rating of P-1 or a
long term rating of Aaa (as the case may be) or
such other rating agreed between the Trust Manager
and ▇▇▇▇▇'▇ and notified to the Trustee;
(c) Fitch, either a short-term rating of F1 or a long
term rating of AAA (as the case may be) or such
other rating agreed between the Trust Manager and
Fitch and notified to the Trustee; and
(d) any other Designated Rating Agency, a rating
acceptable to that Designated Rating Agency.
REQUIRED PAYMENTS means the aggregate of the priority
payments in paragraphs (a) to (g) inclusive of clause
15.8 calculated by the Trust Manager on each
Determination Date under clause 16.1.
RESIDUAL CAPITAL UNITHOLDER means Kingfisher
Securitisation Pty Ltd (ABN 89 093 469 375) or such
other person whose name is entered in the Unit Register
from time to time.
RESIDUAL INCOME UNITHOLDER means Australia and New
Zealand Banking Group Limited (ABN 11 005 357 522) or
such other person whose name is entered in the Unit
Register from time to time.
RSA PAYMENT DEED means the deed entitled "Kingfisher
Trust 2001-1G Payment Deed" dated on or about the date
of this deed between (among others) the Trustee and
Royal & Sun Alliance Lenders Mortgage Insurance Limited.
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SCHEDULED BALANCE in relation to a Receivable means the
amount that would be owing on that Receivable at the
date of determination if the Debtor had made, prior to
that date, the minimum payments and repayments required
under that Receivable.
SECURED MONEY has the meaning given to it in the Deed of
Charge for the Trust.
SECURED PROPERTY has the meaning given to it in the Deed
of Charge for the Trust.
SECURITIES ACT means the Securities Act of 1933 (US).
SELLER DEPOSIT has the meaning given to that term in
clause 25.5(a).
SET-OFF ACCOUNT has the meaning given to that term in
clause 25.5(a).
STATED AMOUNT:
(a) has, in relation to a Class A Note, the same
meaning as in the Class A Note Conditions;
(b) means, in relation to a Class B Note on any
Determination Date, an amount equal to:
(i) the Invested Amount of that Class B Note on
that Determination Date; less
(ii) the amount of any Principal Charge-Offs to
be allocated to that Class B Note under
clause 15.14A on that Determination Date
which will not be reimbursed on the
immediately following Payment Date under
clause 15.10(c); less
(iii) (without double counting any Principal
Charge-Offs) any Carryover Principal
Charge-Offs in respect of that Class B Note
which have not been reimbursed on or before
the immediately following Payment Date under
clause 15.10(d).
STEPDOWN PERCENTAGE means, on any Determination Date and
in respect of the immediately following Payment Date,
the percentage calculated in accordance with schedule 3
on that Determination Date.
SUPPORT FACILITIES includes, in addition to those items
set out in the Definitions Schedule:
(a) the Basis Swap;
(b) the Fixed Rate Swap;
(c) each Currency Swap; and
(d) the Mortgage Insurance Policies.
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THRESHOLD RATE means the minimum interest rates required
to be set on the Housing Loans forming part of the
Purchased Receivables which will ensure that the Trustee
has sufficient funds available to meet its obligations
under the Transaction Documents (assuming that all
parties comply with their obligations under such
documents and such Housing Loans) and taking into
account Housing Loans where the Seller does not have the
discretion under the Loan Agreement to vary the interest
rate of that Housing Loan and moneys held in Authorised
Investments where the yield is determined externally and
not by the Servicer.
TOTAL AVAILABLE INCOME means, on a Determination Date,
the amount calculated in accordance with clause 15.7 on
that Determination Date.
TOTAL INVESTED AMOUNT means, on any Determination Date,
the aggregate A$ Equivalent of the Invested Amount of
the relevant Notes on that Determination Date.
TRANCHING NOTICE means a notice containing information
specified in clause 9.4 given for the purposes described
in clause 9.3.
TRANSACTION DOCUMENTS means in respect of the Trust:
(a) the Master Trust Deed (insofar as it applies to
the Trust);
(b) the Definitions Schedule (insofar as it applies to
the Trust);
(c) the Notice of Creation of Trust in respect of the
Trust;
(d) this deed;
(e) the Master Servicer Deed (insofar as it applies to
the Trust);
(f) the Global Master Security Trust Deed (insofar as
it applies to the Trust);
(g) the Deed of Charge;
(h) each Support Facility;
(i) each Derivative Contract;
(j) the Note Trust Deed;
(k) the Agency Agreement;
(l) the Sale Notice;
(m) each Note;
(n) the Underwriting Agreement;
(o) the Dealer Agreement;
(p) each Primary Mortgage Insurance Policy;
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(q) the Pool Insurance Policy;
(r) the PMI Guarantee;
(s) the RSA Payment Deed;
(t) the Mortgage Insurance Premium Policy; and
(u) such other documents as may be agreed from time to
time between the Trustee and the Trust Manager.
TRUST means the Kingfisher Trust 2001-1G. US$ or US
DOLLARS means the lawful currency of the United States
of America.
UNDERWRITING AGREEMENT means the agreement entitled
"Underwriting Agreement" between the Trustee, the Trust
Manager, the Seller and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (as
representative for the underwriters named in it).
UNIT REGISTER has the meaning given to it in clause
3.7(a).
WAIVER OF SET-OFF in relation to a Housing Loan means a
provision, in the related Mortgage or Loan Agreement or
otherwise, by which, among other things, the Debtor
agrees to make all payments in respect of the Housing
Loan without set-off or counterclaim unless prohibited
by law.
TRANSACTION DOCUMENT
1.2 This deed is a Transaction Document for the purposes of
the Master Trust Deed.
LIMITED TO TRUST
1.3 The rights and obligations of the parties under this
deed relate only to the Trust (as defined in this deed),
and do not relate to any other Trust (as defined in the
Definitions Schedule).
DEFINITIONS AND CONSISTENCY
1.4 Terms which are defined in this deed apply to the Trust
only. Capitalised terms used but not defined in this
deed have the meanings given to them in the Definitions
Schedule. In the event of any inconsistency between a
term defined in this deed and a term defined in the
Definitions Schedule, the term defined in this deed will
prevail. In the event of any inconsistency between a
provision of this deed and a provision of any other
Transaction Document, the provision of this deed shall
prevail.
1.5 Subject to clause 1.6, clauses 1.2 to 1.5 (inclusive) of
the Definitions Schedule are deemed to be incorporated
in this deed as if set out in full in it.
1.6 If after the date of this deed any amendment is made to
the Definitions Schedule, such amendment shall apply to
this deed only if each party to this deed so agrees and
if the amendment is made in a manner consistent with
clause 36 of the Master Trust Deed.
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GLOBAL MASTER SECURITY TRUST DEED
1.7 The Global Master Security Trust Deed applies to the
Trust and the Trust is a "Global Trust" for the purposes
of the Definitions Schedule and the Master Trust Deed.
REGISTER OF NOTE HOLDERS
1.8 The Register of Note Holders in respect of the
Registered Notes issued in respect of the Trust is to be
maintained in accordance with Schedule 1. The Register
of Note Holders will be maintained in respect of
Registered Notes only and all references in Schedule 1
to "Notes" are to be construed accordingly.
TRANSFER OF NOTES
1.9 A transfer of Registered Notes of the Trust shall be
effected in accordance with clause 9.14 and with
Schedule 2. All references in Schedule 2 to "Notes" are
to be construed as references to "Registered Notes".
REPORTING STATEMENT
1.10 The Reporting Statement in respect of the Trust shall
include (without limitation) the following details:
(a) the Total Invested Amount and the Aggregate Stated
Amount of each class of Notes as calculated on the
related Determination Date;
(b) the Class A Note Interest Rate on the Class A
Notes and the Class B Note Interest Rate on the
Class B Notes for the related Interest Period;
(c) the interest payments and principal distributions
on each class of Notes in respect of the related
Payment Date;
(d) the Total Available Income as calculated on the
related Determination Date;
(e) the aggregate Outstanding Balance of the Housing
Loans forming part of the Purchased Receivables as
at the close of business on the last day of the
related Collection Period;
(f) the delinquency and loss statistics with respect
to the Receivables as at the close of business on
the last day of the related Collection Period;
(g) the Redraw Shortfall, if any, calculated on the
related Determination Date;
(h) the Payment Shortfall, if any, calculated on the
related Determination Date;
(i) the amount of any Liquidity Drawing, to be made on
the related Payment Date;
(j) the amount of Principal Collections that are
available for distribution on the related Payment
Date;
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(k) the amount of any Principal Draw, to be made on
the related Payment Date;
(l) the Principal Charge-Offs and the Carryover
Principal Charge-Offs for each class of Notes and
the Redraw Facility;
(m) the amount of any Redraw Principal Outstanding;
and
(n) any other items of information applicable to the
Notes and the related Determination Date or
Payment Date.
DEFINITIONS SCHEDULE
1.11 For the purposes of the Definitions Schedule:
(a) the Class A Notes are "Senior Notes";
(b) the Class A Note Holders are "Senior Note
Holders";
(c) the Class B Notes are "Junior Notes";
(d) the Class B Note Holders are "Junior Note
Holders";
(e) the rating applicable to Authorised Investments of
the type described in paragraph (c)(ii) of that
definition (in the Definition Schedule) is A-1;
and
(f) there is no Required Servicer Rating.
1.12 For the purposes of the Trust the Trust Manager confirms
that it has requested each of S&P, ▇▇▇▇▇'▇ and Fitch to
rate the Notes.
CREDIT RATINGS
1.13 A reference to the credit rating of any entity by a
Designated Rating Agency means, where that Designated
Rating Agency does not have a public credit rating of
that entity, the equivalent internal private credit
rating of that entity as notified by that Designated
Rating Agency to the Trustee and the Trust Manager.
SUPPORT FACILITIES
1.14 For the purposes of the Definitions Schedule and the
Deed of Charge, each Support Facility is a "Support
Facility".
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PART 2 - THE TRUST AND ITS ASSETS
2 TRUST
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NAME OF TRUST
2.1 The Trust to which this deed applies will be known as
the "Kingfisher Trust 2001-1G".
DETERMINATION OF FINAL PAYMENT DATE
2.2 The Trustee must, as soon as practicable following the
Termination Date of the Trust, declare on the direction
of the Trust Manager, a date ("FINAL TERMINATION DATE")
(which, if Notes have been issued and have not then been
redeemed (or deemed to be redeemed) in full, must be a
Payment Date and must not be the next Payment Date
immediately after the declaration if the Determination
Date in relation to that Payment Date has then passed),
being a date by which the Trustee reasonably believes
that the sale and distribution of the Assets of the
Trust will be completed in accordance with this clause
2. Based on the direction of the Trust Manager, the
Trustee may substitute another date as the Final
Termination Date (which, if the Notes have not been
redeemed in full, must be a Payment Date) if it
reasonably believes that the Assets will not in fact be
sold and distributed by the then Final Termination Date.
REALISATION OF ASSETS OF THE TRUST
2.3 Subject to clause 2.2, upon the occurrence of the
Termination Date of the Trust, the Trustee, in
consultation with the Trust Manager, must sell and
realise the Assets of the Trust (and, in relation to the
sale (other than pursuant to clause 2.5) of any
Receivables forming part of the Assets of the Trust, the
Trustee must obtain appropriate expert advice prior to
the sale) and such sale (so far as is reasonably
practicable and reasonably commercially viable) must be
completed within 180 days of the Termination Date of the
Trust provided that during the period of 180 days from
that Termination Date:
(a) the Trustee must not sell the Receivables at less
than an amount equal to the Repurchase Price of
the Housing Loans which comprise part of the
Receivables that then form part of the Assets of
the Trust;
(b) the Trustee must not sell any Receivables unless
the sale is on terms in accordance with clause
2.4; and
(c) the Trustee must not sell any Receivables unless
it has first offered the Receivables for sale to
the Seller or its nominee in accordance with
clause 2.5 and the Seller or its nominee has
either not accepted that offer within 90 days of
that Termination Date or has accepted that offer
but not paid the consideration due by the time
required pursuant to clause 2.5.
CONDITIONS OF SALE DURING 180 DAYS
2.4 Pursuant to clause 2.3, the Trustee must not conclude a
sale (other than pursuant to clause 2.5) unless:
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(a) any Receivables sold pursuant to that sale are
assigned in equity only (unless the Trustee
already holds legal title to such Receivables);
(b) the sale is expressly subject to the Servicer's
rights to be retained as Servicer of the
Receivables in accordance with the terms of this
deed; and
(c) the sale is expressly subject to the rights of the
Seller Trust in respect of those Receivables
pursuant to this deed and the Seller's rights (as
beneficiary of the Seller Trust) in respect of
those Receivables pursuant to this deed.
RIGHT OF REFUSAL
2.5 (a) On the Termination Date of the Trust, the Trustee
is deemed to irrevocably offer to extinguish in
favour of the Seller, its entire right, title and
interest in the Receivables forming part of the
Assets of the Trust in return for the payment to
the Trustee of an amount equal to the Repurchase
Price (as at the Termination Date of the Trust) of
the Housing Loans which comprise part of the
Receivables then forming part of the Assets of the
Trust.
(b) The Seller may verbally accept the offer referred
to in clause 2.5(a) within 90 days after the
Termination Date of the Trust and having accepted
the offer, must pay to the Trustee, in immediately
available funds, the amount referred to in clause
2.5(a) by the expiration of 180 days after the
Termination Date of the Trust. If the Seller
accepts such offer, the Trustee must execute
whatever documents the Seller reasonably requires
to complete the extinguishment of the Trustee's
rights, title and interest in the Receivables then
forming part of the Assets of the Trust.
(c) The Trustee must not sell any Receivables referred
to in clause 2.5(a) unless the Seller has failed
to accept the offer referred to in clause 2.5(a)
within 90 days after the Termination Date of the
Trust or, having accepted the offer, has failed to
pay the amount referred to in clause 2.5(a) by the
expiration of 180 days after the Termination Date
of the Trust.
SALE AT LOWER PRICE
2.6 If, after the expiration of the period of 180 days from
the Termination Date of the Trust, the Trustee has not
sold the Receivables which form part of the Assets of
the Trust for the amount determined in accordance with
clause 2.3(a), the Trustee may proceed to sell such
Receivables free from the prohibition contained in
clause 2.4(a) and may, if necessary, sell such
Receivables on the terms set out in clause 2.7 if the
terms of that clause are satisfied. If any Receivables
are sold for less than the price for those Receivables
determined in accordance with clause 2.5(a), then any
such shortfall must be allocated as provided for in
clause 2.11.
CONDITIONS OF SALE AFTER 180 DAYS
2.7 Upon the expiration of the period of 180 days from
the Termination Date of the Trust, the Trustee
may, if necessary (in its reasonable
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opinion) sell the Receivables forming part of the Assets
of the Trust for an amount which is less than the
Repurchase Price of the Housing Loans which comprise
part of the Receivables and, in that case, the Trustee
shall:
(a) take all necessary steps to protect the Trustee's
interest in, and title to, the Receivables;
(b) terminate the rights and obligations of the
Servicer in respect of those Receivables; and
(c) sell the legal and beneficial ownership in such
Receivables to the prospective purchaser free of
the Seller Trust and all rights of the Seller to
repurchase such Receivables in accordance with
this deed.
FURTHER CONDITIONS OF SALE AFTER 180 DAYS
2.8 If the Trustee sells the Receivables forming part of the
Assets of the Trust pursuant to clause 2.7, the Trustee
must include as a condition of the sale that the
purchaser will:
(a) consent to the granting in favour of the Seller of
mortgages and other Security Interests subsequent
to the Mortgages assigned to the purchaser;
(b) enter into priority agreements with the Seller, in
the form then specified in the Servicing
Procedures, limiting the priority of the Mortgages
and Related Securities assigned to the purchaser
over any subsequent mortgages and other Security
Interests held by the Seller to the then principal
outstanding of the relevant Housing Loan and any
interest fees and expenses on this amount; and
(c) use reasonable endeavours to obtain the consent of
the providers of Mortgages and Related Securities
assigned to the purchaser, and any other relevant
person, to the grant of subsequent mortgages and
other Security Interests to the Seller.
PROCEDURES PENDING WINDING-UP
2.9 During the period commencing on the Termination Date of
the Trust and ending on the Final Termination Date:
(a) the Trustee, the Servicer and the Trust Manager
must continue to perform their respective roles in
accordance with the Master Trust Deed and this
deed in respect of the Assets of the Trust;
(b) all Collections (if any) must continue to be
deposited in the Collection Account in accordance
with this deed;
(c) all proceeds arising from the sale of Assets of
the Trust must be deposited into the Collection
Account; and
(d) the Trustee must continue to make all payments
determined and directed by the Trust Manager as
required to be made in accordance with this deed.
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COSTS ON WINDING-UP OF THE TRUST
2.10 On the Determination Date (if applicable) prior to the
Final Termination Date, the Trust Manager (in
consultation with the Trustee) must in respect of the
Trust make provision for all Taxes, costs, charges,
expenses, claims and demands anticipated to become
payable after the Final Termination Date in connection
with or arising out of the administration or winding up
of the Trust, including the fees of any consultants whom
the Trustee, the Seller, the Servicer, the Security
Trustee or the Trust Manager have employed in connection
with the administration or winding up of the Trust. Such
costs (if any) will be treated as an Expense of the
Trust by the Trust Manager in making its determinations
as to payments to be made on the Final Termination Date
in accordance with clause 2.11.
CALCULATION OF FINAL DISTRIBUTIONS
2.11 Prior to the Final Termination Date, the Trust Manager
must determine how the amounts (if any) standing to the
credit of the Collection Account are to be distributed
and must make such determination in accordance with the
provisions of this deed for payments and allocations of
any Principal Collections and Finance Charge
Collections. After making such determinations the Trust
Manager must notify the Trustee of the allocations and
payments to be made on the Final Termination Date.
FINAL DISTRIBUTIONS
2.12 On the Final Termination Date determined under clause
2.2, the Trustee must make the payments that the Trust
Manager directs it to make pursuant to clause 2.11.
3 ENTITLEMENT OF BENEFICIARIES
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ISSUE OF UNITS
3.1 The beneficial interest in the Trust is, on the date of
this deed, represented by the issue of:
(a) one Residual Capital Unit; and
(b) one Residual Income Unit,
to the Residual Capital Unitholder and the Residual
Income Unitholder, respectively, pursuant to the Notice
of Creation of Trust.
3.2 The Trustee must evidence the issue of the Units
referred to in clause 3.1 by entering each Unitholder's
name in the Unit Register.
3.3 The holder of the Residual Capital Unit and the holder
of each Residual Income Unit, issued in accordance with
this clause and the Notice of Creation of Trust, hold
the beneficial interest in the Trust in accordance with
the Master Trust Deed and this deed.
3.4 A failure by the Trustee to issue a Residual Income Unit
does not affect the Residual Income Unitholders' rights
as beneficiary of the Trust under the Master Trust Deed
and this deed.
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RESIDUAL CAPITAL UNIT
3.5 (a) The issue price of the Residual Capital Unit was
the amount of $5, paid by the Residual Capital
Unitholder under the Notice of Creation of Trust
on establishment of the Trust.
(b) The beneficial interest held by the holder of the
Residual Capital Unit is limited to the Trust and
each Asset of the Trust (other than any Asset of
the Trust held on trust for the holders of
Residual Income Units under clause 3.6) subject to
and in accordance with the Master Trust Deed and
this deed.
(c) The holder of the Residual Capital Unit has no
right to receive distributions in respect of the
Trust other than the right to receive on the Final
Termination Date the entire beneficial interest of
the Trust subject to the rights of holders of
Residual Income Units. The Residual Capital Unit
may not be redeemed at any time or in any other
way.
(d) The Residual Capital Unit is not transferable
without the written consent of the Trustee.
RESIDUAL INCOME UNIT
3.6 (a) The issue price of the first Residual Income Unit
was the amount of $5 paid by the Residual Income
Unitholder under the Notice of Creation of Trust
on establishment of the Trust.
(b) A person may, with the consent of the Trustee and
the Trust Manager (whose consent may be given or
withheld in their absolute discretion), become the
holder of any additional Residual Income Unit by
paying the issue price for the Residual Income
Unit.
(c) The issue price of a Residual Income Unit will be
the amount agreed between the Trustee, the Trust
Manager and the person applying for such Residual
Income Unit.
(d) The beneficial interest held by the holder of a
Residual Income Unit is limited to the right to
receive on the Final Termination Date, repayment
of the issue price paid for the Residual Income
Unit under clause 3.6(a) or clause 3.6(b) (to the
extent funds are available therefore) and to
receive distributions under clause 15 of this deed
only to the extent that funds are available for
distribution to the Residual Income Unitholders,
provided that the Residual Income Unitholders are
entitled to receive an amount of up to $1 (at the
Trust Manager's discretion) in accordance with
clause 15.8(a) to enable the Trust Manager to
comply with its obligations under clause 31.2 of
the Master Trust Deed.
(e) The holder of a Residual Income Unit has the right
to receive distributions in respect of the Trust
under the Master Trust Deed and this deed only to
the extent that amounts are available for
distribution under the Master Trust Deed and this
deed.
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(f) Each Residual Income Unit is transferable in
accordance with clause 3.8.
UNIT REGISTER
3.7 (a) The entitlement of any person to a Unit will be
evidenced by registration in the register
maintained under this clause 3.7 (the "UNIT
REGISTER").
(b) The Trustee will keep the Unit Register at its
office in a form that it considers appropriate
(which may be electronic) and will enter the
following particulars:
(i) the name and address of the holder of each
Unit;
(ii) the date on which the name of the holder of
each Unit is entered in the Unit Register;
(iii) the date on which the holder of a Unit
ceases to be registered as the holder of
that Unit;
(iv) the issue price initially paid for each
Unit, and the aggregate issue price of all
Units from time to time; and
(v) any other details which the Trustee or the
Trust Manager may consider reasonably
necessary or desirable.
(c) The holder of a Unit shall promptly notify the
Trustee of any change of its name or address and
the Trustee will alter the Unit Register
accordingly.
(d) Without limiting clause 3.1, the interest of any
holder in a Unit will be constituted by
registration in the Unit Register.
TRANSFER OF UNITS
3.8 (a) (i) Subject to clause 3.5(d) the holder of a
Unit may transfer the Unit by instrument in
writing in any form approved by the Trustee.
No fee will be charged on the transfer of a
Unit.
(ii) An instrument of transfer shall be executed
by or on behalf of both the transferor and
the transferee.
(iii) A transferor of a Unit remains the holder of
the Unit transferred until the transfer is
registered and the name of the transferee is
entered in the Unit Register in respect of
the Unit.
(b) The instrument of transfer of a Unit must be left
for registration at the address where the Unit
Register on which the Unit to which the transfer
relates are registered is kept. It must be left
together with any information that the Trustee
properly requires to show the right of the
transferor to make the transfer.
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LIMIT ON RIGHTS
3.9 Each Unitholder is subject to, and bound by, the
provisions of the Master Trust Deed and this deed.
4 CONSUMER CREDIT CODE
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RIGHT OF INDEMNITY - CONSUMER CREDIT LEGISLATION
4.1 (a) Without prejudice to the right of indemnity given
by law to trustees, and without limiting any other
provision of this deed, the Trustee will be
indemnified out of the Trust, free of any set-off
or counterclaim against all Penalty Payments which
the Trustee is required to pay personally or in
its capacity as trustee of that Trust and arising
in connection with the performance of its duties
or exercise of its powers under the Transaction
Documents in relation to the Trust.
(b) The Trustee's right to be indemnified in
accordance with clause 4.1(a) applies
notwithstanding any allegation that the Trustee
has incurred any such Penalty Payment as a result
of its fraud, gross negligence or wilful default
or any other act or omission which may otherwise
disentitle the Trustee to be so indemnified.
However, the Trustee is not entitled to that right
of indemnity or reimbursement to the extent that
there is a determination by a relevant court of
gross negligence, fraud or wilful default by the
Trustee (provided that, until such determination,
the Trustee is entitled to that right of indemnity
or reimbursement but must, upon such
determination, repay to the relevant Trust any
amount paid to it under this clause 4.1).
(c) This clause 4.1 overrides any other provision of
this deed.
(d) The Servicer indemnifies the Trustee, free of any
set-off or counterclaim, against all Penalty
Payments which the Trustee is required to pay
personally or in its capacity as trustee of the
Trust and arising in connection with the
performance of its duties or exercise of its
powers under the Transaction Documents in relation
to the Trust. The Trustee may rely on others in
relation to compliance with the Consumer Credit
Code.
(e) The Trustee shall call upon the indemnity referred
to in paragraph (d) before it calls upon the
indemnity in paragraph (a). If any such claim is
not satisfied within 3 Business Days of the claim
being made, the Trustee may (without prejudice to
its rights under any indemnity under paragraph
(d)) exercise its right of indemnity referred to
in paragraph (a).
SERVICER
4.2 With effect on and from the Closing Date, Australia and
New Zealand Banking Group Limited agrees to act as the
Servicer of the Purchased Receivables and undertakes to
comply with the duties and obligations imposed on it
under the Master Servicer Deed and this deed.
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4.3 The Trust is a Relevant Trust (as defined in the Master
Servicer Deed) for the purposes of the Master Servicer
Deed.
5 REPURCHASE OPTION
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CLEAN-UP OFFER
5.1 Subject to clause 5.4, at least five Business Days
before each Call Option Date (but not later than the
Termination Date) the Trustee, at the written request of
the Trust Manager, may give notice to the Seller of an
offer ("CLEAN-UP OFFER") to re-convey the Purchased
Receivables to the Seller on a Call Option Date for an
amount ("CLEAN-UP OFFER AMOUNT") equal to (as at the
last day of the immediately preceding Interest Period)
the aggregate of the Repurchase Price for each Housing
Loan which comprises part of the Purchased Receivables
then forming part of the Assets of the Trust as
determined by the Trust Manager.
CALCULATION
5.2 The Trust Manager agrees to calculate the amount
described in clause 5.1 and include such amount in its
request to the Trustee to make a Clean-Up Offer.
ACCEPTANCE
5.3 Acceptance of a Clean-Up Offer may only be effected by
payment in immediately available funds by the Seller to
the Collection Account of the Clean-Up Offer Amount. For
the avoidance of doubt, the Seller is under no
obligation to accept any Clean-Up Offer.
CONSENT OF NOTE HOLDERS
5.4 If:
(a) Notes have been issued and have not been redeemed
(or deemed to be redeemed) on or before a Call
Option Date; and
(b) the Clean-Up Offer Amount is less than the amount
which is sufficient to ensure that the Trustee can
redeem the Total Invested Amount of all Notes (as
at the Determination Date immediately preceding
the Call Option Date) in full,
the Trustee must, prior to giving notice to the Seller,
obtain the consent by way of an Extraordinary Resolution
of the Note Holders in favour of making a Clean-Up Offer
for the Aggregate Stated Amount (without double
counting) of all Notes.
RECONVEYANCE
5.5 Upon receipt of the Clean-Up Offer Amount by the Trustee
in immediately available funds:
(a) the Trustee's entire right and interest in the
Purchased Receivables is automatically
extinguished; and
(b) the Trustee must apply the Clean-Up Offer Amount
towards the redemption of the Class B Notes in
accordance with clause 9.17 of this deed and the
redemption of the Class A Notes in accordance with
the Class A Note Conditions.
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CLEAN-UP AMOUNT
5.6 Where:
(a) the Total Invested Amount of all Notes on any
Determination Date is less than or equal to 10% of
the A$ Equivalent of the aggregate of the Initial
Invested Amount of all Notes; and
(b) the Trustee has not been directed by the Trust
Manager to redeem all of the Notes outstanding on
the next Payment Date or the Trustee has been
directed by the Trust Manager to redeem all of the
Notes on the next Payment Date but the Trustee has
insufficient funds on that Payment Date to do so,
then the Trust Manager must, on that Payment Date:
(i) calculate the Clean-Up Amount as at the
Determination Date immediately preceding that
Payment Date;
(ii) notify the Seller, the Trustee and each Designated
Rating Agency of the Clean-Up Amount and the
method of its calculation; and
(iii) direct the Trustee to:
(A) as soon as practicable, establish in the
name of the Trustee a bank account with an
Eligible Bank;
(B) deduct an amount equal to the Clean-Up
Amount as at that Determination Date from
the amount (if any) payable to the Residual
Income Unitholders under clause 15.10(f) on
that Payment Date; and
(C) deposit the amount deducted in accordance
with clause 5.6(iii)(B) into the Clean-Up
Account and hold that amount on trust for
the Residual Income Unitholders until that
amount is repaid to the Residual Income
Unitholders in accordance with clause 5.7.
5.7 The Trustee must only withdraw any amount standing to
the credit of the Clean-Up Account:
(a) if, on any Determination Date after the Payment
Date referred to in clause 5.6(i), the Trustee
determines that Extraordinary Expenses have been
incurred by the Trustee during the immediately
preceding Collection Period, to meet in whole or
in part the payment or satisfaction of such
Extraordinary Expenses on the next Payment Date;
and
(b) upon the first to occur of:
(i) the date on which all Notes have been fully
and finally redeemed in accordance with the
Master Trust Deed and this deed; and
(ii) the Termination Date of the Trust,
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to pay the amount standing to the credit of the Clean-Up
Account to the Residual Income Unitholders.
5.8 The Trustee must on the Business Day immediately
following the date of any withdrawal made by it in
accordance with clause 5.7, notify the Trust Manager of
the amount of any such withdrawal.
5.9 The Trust Manager must, on each Payment Date, notify the
Residual Income Unitholders of any withdrawal made by
the Trustee under clause 5.7.
6 RECEIVABLES
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REQUIREMENT TO SATISFY
6.1 Each Receivable to be purchased by the Trustee must
satisfy the Eligibility Criteria.
ELIGIBILITY CRITERIA
6.2 The Eligibility Criteria in respect of each Receivable
for the Trust are as follows:
(a) it is a Housing Loan;
(b) it was advanced and is repayable in Australian
dollars;
(c) the term of the related Housing Loan does not
exceed 30 years;
(d) the related Housing Loan is fully drawn (other
than to the extent to which Redraws are available
to the Debtor under such Housing Loan) as at the
relevant Cut-Off Date;
(e) the related Housing Loan is secured by a Mortgage
over Land which is either:
(i) a first ranking registered mortgage; or
(ii) a second ranking registered mortgage where:
(A) there are two registered mortgages over
the Land securing the Housing Loan and
the Seller is the first mortgagee; and
(B) the first ranking registered mortgage
is also being acquired by the Trustee;
(f) the Land subject to the related Mortgage has
erected on it a residential dwelling which is not
under construction;
(g) the related Housing Loan is covered by a Mortgage
Insurance Policy providing for 100% cover of
principal and interest losses in respect of the
Housing Loan;
(h) the sale of the Receivable does not contravene or
conflict with any law;
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(i) it is not a Defaulted Housing Loan as at the
relevant Cut-Off Date;
(j) it has a total principal amount outstanding of no
more than A$500,000 as at the Cut-Off Date;
(k) it is, or will by the Closing Date be, duly
stamped or taken by the relevant stamp duties
authority to be duly stamped with all applicable
stamp duty; and
(l) the related Housing Loan has a LVR of less than or
equal to 95%.
6.3 The Trustee is not required to investigate whether any
Receivable satisfies the Eligibility Criteria and is not
liable to any person in any manner whatsoever if any
Receivable does not satisfy the Eligibility Criteria.
SERVICER MAY RELEASE RELATED SECURITY
6.4 The Servicer may release a Related Security securing a
Purchased Receivable where:
(a) that Purchased Receivable is secured by more than
one Related Security; and
(b) the release of such a Related Security will not
result in the LVR of the relevant Purchased
Receivable (as calculated at the date of the
release) exceeding the LVR as at the date of
origination.
7 THE CUSTODIAN
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7.1 The Trustee (at the direction of the Trust Manager)
appoints the Custodian to hold the Title Documents in
respect of the Receivables and Related Securities
forming the Assets of the Trust on behalf of the Trustee
until a Custodian Transfer Event occurs. The Custodian
may appoint a person as its agent to hold any Title
Documents. The Custodian will be liable for the acts or
omissions of any such agent.
STANDARD
7.2 The Custodian's duties and responsibilities in its
capacity as custodian under this deed are to:
(a) hold as custodian under and in accordance with
this deed each Title Document that it may receive
on behalf of the Trustee pursuant to a Transaction
Document in accordance with its standard
safe-keeping practices and in the same manner and
to the same extent as it holds its own documents;
(b) ensure that each Title Document is capable of
identification and is kept in a separate file in a
secure vault; and
(c) cure any exceptions or deficiencies noted by the
Auditor of the Trust in a Document Custody Audit
Report (to the extent it relates to information
provided by the Custodian where any
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exception or deficiencies relate to items reviewed
by the Auditor described in clause 7.5(b)).
TRANSFER OF CUSTODY
7.3 If a Title Perfection Event or Custodian Transfer Event
occurs, then the provisions of clauses 7.10 and 7.12 of
this deed will apply and, if applicable, the Trustee may
terminate the appointment of the Custodian as custodian
under this clause 7.
INFORMATION INDEMNITY
7.4 If the Custodian is requested to provide information in
its possession to enable the Servicer to complete any
Servicer's Statement or any computer diskette or
separate statement accompanying a Servicer's Statement
and the Custodian does not supply that information and
as a result the Trustee is unable (when entitled to do
so under this deed and the Master Trust Deed) to lodge
and register Transfers upon the occurrence of a Title
Perfection Event, then the Custodian indemnifies the
Trustee (whether for its own account or for the account
of the Note Holders) for all actions, loss, damage,
costs, charges and expenses suffered as a result.
AUDITOR REVIEW
7.5 The Trust Manager must retain the Auditor of the Trust
to conduct periodic reviews (at the intervals determined
in accordance with clause 7.8) in respect of the
Custodian's role as custodian under this deed. The
Auditor must review:
(a) the custodial procedures adopted by the Custodian;
and
(b) the accuracy of information in respect of the
Purchased Receivables contained in the most recent
Servicer's Statement or on computer diskette or
separate statement accompanying the most recent
Servicer's Statement.
7.6 (a) In respect of the review referred to in clause
7.5(a), the Trust Manager must instruct the
Auditor of the Trust that its review should
consist of reporting on whether:
(i) the Purchased Receivables and Related
Securities forming part of the Assets of the
Trust are capable of identification and are
distinguishable from the other assets of the
Custodian;
(ii) controls exist such that the Title Documents
relating to such Purchased Receivables and
Related Securities may not be removed or
tampered with except with appropriate
authorisation; and
(iii) an appropriate tracking system is in place
and such that the location of the security
packets containing the Title Documents in
respect of the Purchased Receivables and
Related Securities of the Trust can be
detected at any time and the location of the
Title Documents can be detected at any time.
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(b) In respect of the review referred to in clause
7.5(b), the Trust Manager must instruct the
Auditor of the Trust to review a sample of
security packets containing the Title Documents in
respect of the Purchased Receivables and Related
Securities then forming part of the Assets of the
Trust to determine whether they contain the
following:
(i) an original counterpart of the corresponding
Mortgage and each Related Security; and
(ii) the certificate of title (if any) in respect
of the Land the subject of the Mortgage.
If such security packets do not contain any of the
foregoing, the Auditor must determine if there is any
adequate explanation regarding the documents not in the
security packets or whether the security packets or the
Custodian's records indicate the location of the missing
documents. The Trust Manager must instruct the Auditor
to confirm (after having conducted the above review) the
accuracy of the information in respect of the Purchased
Receivables and Related Securities contained in the
Servicer's Statement and the computer diskette referred
to in clause 7.5(b).
DOCUMENT CUSTODY AUDIT REPORT
7.7 The Trust Manager must instruct the Auditor of the Trust
to provide a document custody audit report ("DOCUMENT
CUSTODY AUDIT REPORT") to the Trustee in which the
Auditor, based on its reviews referred to in clauses 7.5
and 7.6, specifies a grade of the overall custodial
performance by the Custodian, based on the following
grading system:
(a) excellent - all control procedures and accuracy of
information in respect of Purchased Receivables
testing completed without exception;
(b) good - minor exceptions noted;
(c) improvement required:
(i) base internal controls are in place but a
number of issues were identified that need
to be resolved for controls to be considered
adequate; and/or
(ii) testing of the information in respect of
Purchased Receivables identified a number of
minor exceptions which are the result of
non-compliance with the control system;
(d) adverse - major deficiencies in internal controls
were identified. Cannot rely on the integrity of
the information in respect of Purchased
Receivables in the Servicer's Statement and in the
diskettes referred to in clause 7.5(b).
TIMING OF DOCUMENT CUSTODY AUDIT REPORTS
7.8 The Trust Manager must instruct the Auditor of the Trust
to prepare a Document Custody Audit Report annually on
31 March of each year
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during which any Notes are outstanding (or such other
period as may be agreed by the Trust Manager, the
Trustee and each Designated Rating Agency). The Trust
Manager must require the Auditor to deliver a copy of
each such Document Custody Audit Report to the Trust
Manager, the Custodian and the Seller (if not the
Custodian).
ADVERSE DOCUMENT CUSTODY AUDIT REPORT
7.9 If the Auditor issues a Document Custody Audit Report
which has a finding of "Adverse", the Trustee must
instruct the Auditor to conduct a further Document
Custody Audit Report no sooner than 2 months but no
later than 4 months after the date of receipt by the
Trustee of the "Adverse" Document Custody Audit Report.
The Trust Manager must instruct the Auditor to deliver
the further Document Custody Audit Report to the
Trustee, with a copy to the Trust Manager, the Custodian
and the Seller (if not the Custodian).
CUSTODIAN TRANSFER EVENT
7.10 Upon:
(a) the occurrence of an Insolvency Event in respect
of the Custodian; or
(b) the receipt of a further Document Custody Audit
Report pursuant to clause 7.9 which is "Adverse",
a Custodian Transfer Event occurs. The Trust Manager
must immediately upon becoming actually aware of a
Custodian Transfer Event deliver a notice to the
Custodian of the occurrence of a Custodian Transfer
Event. Upon receipt of such notice the Custodian, as
soon as reasonably practicable following its receipt of
the notice, must transfer custody of the Title Documents
relating to the Purchased Receivables then forming part
of the Assets of the Trust held by it to the Trustee or
another custodian nominated by the Trustee.
7.11 The obligations to deliver Title Documents under this
clause do not extend to such documents which the
Custodian can prove, to the reasonable satisfaction of
the Trustee, are deposited with a solicitor (acting on
behalf of the Servicer), a land titles office, a stamp
duties office, any other Governmental Agency or any
other person to whom the Custodian is directed to
deliver such documents by the Trust Manager. The
Custodian must provide a list of such documents to the
Trustee together with any which have been lost within 10
Business Days of the above notice having been received
by it. In respect of Title Documents that are so
deposited, the Custodian must deliver these to the
Trustee immediately upon receipt from the solicitor or
relevant office and, in respect of Title Documents that
are lost, the Custodian must take all reasonable steps
satisfactory to the Trustee to promptly replace such
Title Documents.
FAILURE TO COMPLY WITH CLAUSE 7.10
7.12 If the Custodian does not comply with the requirements
of clauses 7.10 and 7.11 within the specified time
limits, the Trustee must (unless the Trustee is
satisfied, in its absolute discretion, that the
Custodian has used its best endeavours to deliver the
Title Documents and has made appropriate arrangements
for the remaining Title Documents to be
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delivered in accordance with clause 7.10 within a
reasonable period as determined by the Trustee (but in
any event no longer than 10 Business Days from the date
that they were due to be delivered in accordance with
clause 7.10)) to the extent to which it has information
available to it at the time:
(a) execute and lodge caveats in respect of all Land
or Mortgages (as the case may be) for which all
Title Documents in respect of the Trust have not
been delivered; and
(b) initiate legal proceedings to take possession of
the Title Documents in respect of the Trust that
have not been delivered;
and to the extent that the Trustee cannot do so, as a
result of not having information available to it to do
so to the extent the Custodian has customarily provided
or is required to provide that information under clause
7.4, the indemnity in clause 7.4 applies.
INDEMNITY
7.13 The Custodian indemnifies the Trustee against all loss,
costs, damages, charges and expenses incurred by the
Trustee:
(a) as a result of the occurrence of a Custodian
Transfer Event (provided that where the Custodian
Transfer Event relates to the matters described in
clause 7.5(b) such indemnity is only given in
connection with information actually requested or
provided by the Custodian); or
(b) in connection with the Trustee taking the action
referred to in clauses 7.11 or 7.12;
including all registration fees, stamp duty, legal fees
(charged at the usual commercial rates of the relevant
legal services provider) and disbursements, and the cost
of preparing and transmitting all necessary
documentation.
TRUSTEE TO CO-OPERATE WITH SERVICER
7.14 If the Trustee or Custodian holds any Title Document and
if the Trustee or Custodian (as the case may be)
receives from the Servicer an undertaking to return the
Title Documents to the Trustee or the Custodian (as the
case may be), the Trustee or Custodian (as the case may
be) must release to the Servicer from time to time such
Title Documents as are reasonably required by the
Servicer to perform its obligations as Servicer under
this deed and the Master Servicer Deed. The Custodian
and the Trustee are under no duty to investigate whether
the documents requested by the Servicer are reasonably
required by the Servicer to perform its obligations as
Servicer.
TRUSTEE'S DUTY WHILE HOLDING TITLE DOCUMENTS
7.15 While the Trustee holds any Title Documents, it must
hold them in accordance with its standard safekeeping
practices and in the same manner and to the same extent
as it holds equivalent mortgage documents as trustee.
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REAPPOINTMENT OF THE CUSTODIAN AS CUSTODIAN
7.16 If following a Custodian Transfer Event:
(a) the Trustee is satisfied, notwithstanding the
occurrence of the Custodian Transfer Event, that
the Custodian is an appropriate person to act as
custodian of the Title Documents; and
(b) the Designated Rating Agency confirms that the
appointment of the Custodian to act as custodian
of the Title Documents will not result in an
Adverse Rating Effect,
then the Trustee may by agreement with the Custodian
appoint it to remain as custodian of the Title Documents
upon such terms as are agreed between the Trustee and
the Custodian and approved by the Trust Manager.
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PART 3 - THE NOTES
8 PURPOSE
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PURPOSE
8.1 Subject to clause 8.2, the Trustee must, as directed by
the Trust Manager, use the proceeds of all Notes and all
payments received from each Currency Swap on the Closing
Date to fund the acquisition of Receivables (or to fund
Authorised Investments to be acquired with any surplus
of the proceeds and payments over the amount required to
fund the acquisition of the Receivables, such surplus
created due to the size of the parcels of Notes to be
issued) or for any other purpose agreed between the
Trustee and the Trust Manager (and which each Designated
Rating Agency confirms in writing will not have an
Adverse Rating Effect).
CRITERIA
8.2 Notwithstanding any other provision of the Transaction
Documents in respect of the Trust, the Trust Manager
must not direct the Trustee to issue Notes under this
deed to acquire, or invest in, any Receivables or to
reimburse the Seller in respect of Redraws unless such
Receivables satisfy the Eligibility Criteria. In this
regard, the Trust Manager is entitled to rely upon a
representation and warranty from the Seller that such
Receivables satisfy the Eligibility Criteria.
GENERAL
8.3 The Trustee (at the direction of the Trust Manager) may
issue Notes, for the purposes set out in clause 8.1 in
accordance with this deed.
9 TERMS OF ISSUE OF THE NOTES
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NOTES TO BE ISSUED
9.1 The Trustee will, subject to satisfaction of the
conditions precedent described in clause 9.1 of the
Master Trust Deed, and on the direction of the Trust
Manager, issue two classes of Notes as follows:
(a) the Class A Notes (including any Class A
Tranches); and
(b) the Class B Notes (including any Class B
Tranches).
FORM, CONSTITUENT DOCUMENTS AND DENOMINATION OF THE NOTES
9.2 (a) (BEARER NOTES): If the Class A Notes or the Class
B Notes are issued in the form of Bearer Notes,
then the Class A Notes and/or the Class B Notes
(as the case may be) will be:
(i) in book-entry form, without coupons;
(ii) upon issue represented by one or more
Book-Entry Notes (and interests in such
Book-Entry Notes may be exchanged for
Definitive Notes in the circumstances set
out in the Note Trust Deed); and
(iii) constituted, issued and authenticated
pursuant to the Note Trust Deed and will be
denominated in US$.
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(b) (REGISTERED NOTES): If the Class A Notes or the
Class B Notes are issued in the form of Registered
Notes, then the Class A Notes and/or the Class B
Notes (as the case may be) will, upon issue, be in
the form of registered debt securities, will be
constituted pursuant to the Master Trust Deed and
this deed and will be denominated in A$. Such
Class A Notes or Class B Notes are direct,
secured, limited recourse obligations of the
Trustee.
TRANCHES OF CLASS A NOTES AND CLASS B NOTES
9.3 The Trustee may, at the direction of the Trust Manager
contained in a Tranching Notice delivered to the Trustee
not less than 10 Business Days before the proposed Issue
Date, issue any number of sub-classes of Class A Notes
(each a "CLASS A TRANCHE") or Class B Notes (each a
"CLASS B TRANCHE") (as the case may be). Each sub-class
shall be designated as follows:
(a) in the case of sub-classes of Class A Notes,
"Class A#"; and
(b) in the case of sub-classes of Class B Notes,
"Class B#".
9.4 Each Tranching Notice shall contain the following
information:
(a) the proposed number of Class A Tranches or Class B
Tranches (as the case may be);
(b) the proposed amounts of each Class A Tranche or
Class B Tranche (as the case may be);
(c) any preferential entitlement to repayment of
principal proposed in respect of the Class A
Tranches or the Class B Tranches (as the case may
be) and the extent of such entitlement; and
(d) the proposed Issue Date in relation to the Class A
Tranches or Class B Tranches (as the case may be).
9.5 If the Trustee, at the direction of the Trust Manager,
determines not to issue sub-classes of Class A Notes or
Class B Notes (as the case may be), then any references
to a "Class A Tranche" or a "Class B Tranche" (as the
case may be) in any Transaction Document shall be
disregarded and shall be deemed to be a reference to a
"Class A Note" (or "Class A Notes") or a "Class B Note"
(or "Class B Notes") (as appropriate). In such
circumstances, all Class A Notes or Class B Notes (as
the case may be) shall rank equally and ratably as
between themselves as regards the payment of interest
and principal.
9.6 Each sub-class of Class A Notes or Class B Notes shall
rank equally and rateably with any other Class A Notes
or Class B Notes (as the case may be), except that prior
to an Event of Default, amongst the sub-classes of Class
A Notes or Class B Notes some of those sub-classes may
be issued with a preferential entitlement to repayment
of principal in an order determined by the Trust Manager
and specified in the direction given to the Trustee
under clause 9.3 and clause 9.4.
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INITIAL INVESTED AMOUNT OF THE NOTES
9.7 (a) (CLASS A NOTES): Each Class A Note on its issue
will have an Initial Invested Amount as set out on
the face of that Class A Note and will be issued
at par value.
(b) (CLASS B NOTES): Each Class B Note on its issue
will have an Initial Invested Amount as set out in
the Register of Note Holders for the Class B Notes
and will be issued at par value.
INTEREST ON THE CLASS A NOTES
9.8 Each Class A Note will accrue interest, and such
interest will be calculated and payable, in accordance
with the Class A Note Conditions.
INTEREST ON THE CLASS B NOTES
9.9 Each Class B Note will have interest payable in respect
of each Interest Period calculated:
(a) at the Class B Note Interest Rate for that Class B
Note for that Interest Period;
(b) on the Invested Amount of that Class B Note on the
first day of that Interest Period (after taking
into account any reduction in the Invested Amount
of that Class B Note on that day); and
(c) on the basis of the actual number of days in that
Interest Period and a year of 365 days,
and payable in arrears on each Payment Date.
Each Class B Note will cease to accrue interest from the
date upon which the Class B Note is redeemed in
accordance with clause 9.11(b), unless upon such date,
payment is improperly withheld or refused in which case
the Class B Note will continue to accrue interest in
accordance with this deed (both before and after
judgment) until but excluding the earlier of the day on
which all sums due in respect of the Class B Note up to
that day are received by or on behalf of the relevant
Note Holder and the seventh day after notice is given to
the Note Holder that such payment will be made, provided
that such payment is in fact made on that day.
OVERDUE INTEREST
9.10 (a) (CLASS A NOTES): If interest is not paid in
respect of a Class A Note on the date when due and
payable in accordance with the Class A Note
Conditions, the unpaid interest will in turn bear
interest in accordance with the Class A Note
Conditions.
(b) (CLASS B NOTES): If any interest is not paid in
respect of a Class B Note on the date when due and
payable in accordance with this deed (but without
regard to any limitation herein contained) that
unpaid interest will in turn bear interest at the
Class B Note Interest Rate from time to time
applicable for the relevant Class B Note until
(but excluding) the date on which the unpaid
interest is paid in accordance with clause
15.8(g).
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REDEMPTION
9.11 (a) (CLASS A NOTES) The Class A Notes will be redeemed
(or deemed to be redeemed) in accordance with the
Class A Note Conditions.
(b) (CLASS B NOTES) Each Class B Note will be fully
and finally redeemed, and the obligations of the
Trustee with respect to the payment of the
Invested Amount of that Class B Note will be fully
and finally discharged, on the first to occur of:
(i) the date upon which the Invested Amount of
that Class B Note is reduced to zero and all
accrued but previously unpaid interest is
paid in full (including, but not limited to,
the exercise by the Trustee of the Clean-Up
Option);
(ii) if the Stated Amount in relation to the
Class B Note is less than the Invested
Amount in relation to the Class B Note, the
date on which the Stated Amount of that
Class B Note is reduced to zero and all
accrued but previously unpaid interest is
paid in full (including, but not limited to,
the exercise by the Trustee of the Clean-Up
Option);
(iii) the date upon which the relevant Note Holder
renounces all of its rights to any amounts
payable under or in respect of that Class B
Note;
(iv) the Final Maturity Date; and
(v) the date upon which the Trustee completes a
sale and realisation of all Assets of the
Trust in accordance with the Master Trust
Deed and this deed and the proceeds of such
sale and realisation are applied, to the
extent available, to repay the Invested
Amount plus any accrued, but unpaid, Class B
Note Interest Amount in respect of that
Class B Note in accordance with the Master
Trust Deed or this deed.
Each Class B Note redeemed in full (or deemed to be
redeemed in full) pursuant to this deed will be
cancelled and may not be resold or reissued.
TRUSTEE'S COVENANT TO THE NOTE HOLDERS
9.12 Subject to the terms of the Master Trust Deed and this
deed, the Trustee:
(a) acknowledges to each Note Holder its indebtedness
in respect of the Invested Amount of each Note;
and
(b) covenants for the benefit of each Note Holder:
(i) to make all payments of interest in respect
of the Notes held by the Note Holder on each
Payment Date;
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(ii) to comply with the terms of this deed and
the Transaction Documents to which it is a
party; and
(iii) to pay the Stated Amount, together with all
then accrued but unpaid interest, in
relation to the Notes held by the Note
Holder on the Final Maturity Date.
Subject to this deed (and in the case of the Class A
Notes the Class A Note Conditions), no amount of
principal will be paid in respect of a Note in excess of
the Stated Amount of that Note.
REGISTER OF NOTE HOLDERS
9.13 The Trustee shall keep an up to date Register of Note
Holders in respect of the Class B Notes in accordance
with Schedule 1. The Register of Note Holders may be
maintained in electronic form.
TRANSFER AND TRANSMISSION OF NOTES
9.14 (a) (TRANSFER OF CLASS B NOTES IN ACCORDANCE WITH
CORPORATIONS LAW): A Note Holder is only entitled
to transfer a Class B Note if the offer of the
Class B Note for sale, or the invitation to
purchase the Class B Note, to the proposed
transferee by the Note Holder is an offer or
invitation that does not need disclosure to
investors under Part 6D.2 of Chapter 6 of the
Corporations Law and otherwise complies with the
Corporations Law and if the transfer of the Class
B Note complies with Schedule 2.
(b) (REGULATION S): A Class B Note may not be offered
or sold within the United States of America or to,
or for the account or benefit of, United States
persons except in accordance with Regulation S
under the Securities Act or pursuant to an
exemption from the registration requirements of
the Securities Act. Terms used in this clause
9.14(b) have the meaning given to them by
Regulation S under the Securities Act.
TAXATION
9.15 All payments in respect of the Notes will be made
without withholding or deduction for, or on account of,
any present or future taxes, duties or charges of
whatsoever nature unless the Trustee (or, in the case of
the Class A Notes, any Paying Agent) is required by any
applicable law to make such a withholding or deduction.
In that event the Trustee (or, in the case of the Class
A Notes, any Paying Agent) will, after making such
withholding or deduction, account to the relevant
authorities for the amount so required to be withheld or
deducted. Neither the Trustee nor any such Paying Agent
will be obliged to make any additional payments in
respect of the relevant Notes in relation to the
withholding or deduction. Immediately after becoming
aware that such a withholding or deduction is or will be
required, the Trustee will notify the Note Trustee or
the relevant Note Holders in the manner required by the
Transaction Documents.
ROUNDING OF PAYMENTS
9.16 Except as otherwise specified in this deed, all payments
in respect of a given currency will be rounded to the
nearest cent of that currency.
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CALL OPTION
9.17 (a) The Trustee will, subject to the other provisions
of this deed, when directed by the Trust Manager
(at the Trust Manager's option), redeem all, but
not some only, of the Notes at their then Invested
Amount (without double counting), subject to the
following, together with all accrued but unpaid
interest in respect of the Notes to (but
excluding) the date of redemption, on any Call
Option Date.
(b) Notwithstanding the foregoing, the Trustee may
redeem the Notes at their Stated Amount on a Call
Option Date, instead of at their Invested Amount
(without double counting), together with accrued
but unpaid interest in respect of the Notes to
(but excluding) the date of redemption, if so
approved by an Extraordinary Resolution of the
Note Holders.
(c) The Trustee must not redeem the Notes unless it is
in a position on the relevant Call Option Date to
repay the then Invested Amounts or the Stated
Amounts (without double counting), as required, of
the Notes together with all accrued but unpaid
interest to (but excluding) the date of redemption
and to discharge all its liabilities in respect of
amounts which are required under the Global Master
Security Trust Deed and this deed to be paid in
priority to or equally with the Notes as if the
Deed of Charge in respect of the Trust were
enforced.
REDEMPTION FOR TAXATION OR OTHER REASONS
9.18 (a) If the Trust Manager satisfies the Trustee (and,
in the case of the Class A Notes, the Note
Trustee) immediately prior to giving the direction
referred to below that by virtue of either a
change in law of the Commonwealth of Australia or
any of its political subdivisions or any of its
authorities or any other jurisdiction to which the
Trustee becomes subject (a "RELEVANT
JURISDICTION"), or a change in the application or
official interpretation thereof, from that in
effect on the Closing Date, either:
(i) on the next Payment Date the Trustee will be
required to deduct or withhold from any
payment of principal or interest in respect
of the Notes including corresponding
payments under any Currency Swap, any amount
for or on account of any present or future
taxes, duties, assessments or governmental
charges of whatever nature imposed, levied,
collected, withheld or assessed by a
Relevant Jurisdiction; or
(ii) on the next Payment Date the total amount
payable in respect of interest in relation
to any of the Receivables for a Collection
Period ceases to be receivable (whether or
not actually received) by the Trustee by
reason of any present or future taxes,
duties, assessments or governmental charges
of whatever nature imposed, levied,
collected, withheld or assessed by a
Relevant Jurisdiction,
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and, in each case, such obligation cannot be
avoided by the Trustee taking reasonable
measures available to it, the Trustee must,
when so directed by the Trust Manager (at
the Trust Manager's option), redeem all, but
not some only, of the Notes on any
subsequent Payment Date at their then
Invested Amount (without double counting),
subject to the following, together with
accrued but unpaid interest in respect of
the Notes to (but excluding) the date of
redemption. Notwithstanding the foregoing,
the Trustee may redeem the Notes at their
Stated Amount, instead of at their Invested
Amount (without double counting), together
with accrued but unpaid interest in respect
of the Notes to (but excluding) the date of
redemption, if so approved by an
Extraordinary Resolution of the Note
Holders.
(b) The Trust Manager will not direct the Trustee to,
and the Trustee will not, so redeem the Notes
unless the Trustee is in a position on such
Payment Date to repay in respect of the Notes
their then Invested Amount or Stated Amount
(without double counting), as required, together
with all accrued but unpaid interest to (but
excluding) the date of redemption and to discharge
all its liabilities in respect of amounts which
are required under the Global Master Security
Trust Deed and this deed to be paid in priority to
or equally with the Notes as if the Deed of Charge
in respect of the Trust was enforced.
(c) This clause is subject to the Class A Notes
Conditions in respect of the Class A Notes.
9.19 For the purpose of any redemption under clauses 9.17 and
9.18, the Trustee may rely on any certificate from an
Authorised Officer of the Trust Manager that the Trustee
will be in a position to repay the Notes at their then
Invested Amount or Stated Amount (without double
counting), as applicable, together with all accrued but
unpaid interest to (but excluding) the date of
redemption and to discharge all its liabilities in
respect of amounts which are required under the Global
Master Security Trust Deed and this deed to be paid in
priority to or equally with the Notes as if the Deed of
Charge in respect of the Trust were enforced.
NOTIFICATION OF EARLY REDEMPTION TO THE UNITED KINGDOM LISTING AUTHORITY
9.20 The Trust Manager must, in accordance with listing rule
15.15 of the listing rules made in accordance with the
Financial Services ▇▇▇ ▇▇▇▇ (UK) and no later than
7.30am on the Business Day following the day on which
the Class A Notes are redeemed in accordance with
clauses 9.17 or 9.18, notify the United Kingdom Listing
Authority of such redemption. The notification must
state the amount of Class A Notes redeemed, that no
Class A Notes remain outstanding and that the Class A
Notes are to be cancelled.
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10 CONDITIONS PRECEDENT
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CONDITIONS PRECEDENT TO THE ISSUE OF NOTES
10.1 The obligation of the Trustee to issue Notes is subject
to:
(a) (CONSTITUTION) receipt by the Trust Manager of a
certified copy of the constitution of the Seller
and the Servicer;
(b) (TRANSACTION DOCUMENTS) receipt by the Trust
Manager of a certified copy of each executed and
(where relevant) stamped Transaction Document;
(c) (RATING) confirmation from each Designated Rating
Agency that the Class A Notes have been assigned a
provisional rating of AAA (in the case of S&P and
Fitch) and AAA (in the case of Moody's) and the
Class B Notes have been assigned a provisional
rating of AA- (in the case of S&P and Fitch only);
(d) (DISKETTE) delivery to the Trustee from the Seller
of a computer diskette containing:
(i) a list of the offices (including addresses
and telephone numbers) at which the Title
Documents relating to the Purchased
Receivables are retained;
(ii) the name and address of the Debtor in
respect of each Purchased Receivable;
(iii) the account number of each Purchased
Receivable; and
(iv) such other information in respect of the
Purchased Receivables as is agreed between
the Seller and the Trustee;
(e) (SEGREGATION) delivery to the Trustee from the
Seller of a letter which explains how the security
packets containing the Title Documents are marked
or segregated so as to enable the Trustee to
identify those security packets when at the
premises of the Custodian where the security
packets are stored;
(f) (POWER OF ATTORNEY) delivery to the Trustee from
the Seller of each Power of Attorney;
(g) (LEGAL OPINIONS) receipt by the Trust Manager of:
(i) a legal opinion from Mallesons ▇▇▇▇▇▇▇
▇▇▇▇▇▇, in relation to the obligations of
the Trust Manager, the Seller, the Servicer,
the Custodian, the Liquidity Facility
Provider, the Redraw Facility Provider,
Australia and New Zealand Banking Group
Limited as a Currency Swap Provider, the
Basis Swap Provider and the Fixed Rate Swap
Provider under the Transaction Documents to
which they are bound;
(ii) a legal opinion from Mallesons ▇▇▇▇▇▇▇
▇▇▇▇▇▇ in relation to the tax neutrality of
the Trust;
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(iii) a legal opinion from ▇▇▇▇▇ ▇▇▇▇▇ York, in
relation to the obligations of the Trustee
and the Security Trustee under the
Transaction Documents to which they are
bound;
(iv) a legal opinion from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ &
Wood LLP, in relation to the validity and
enforceability of the obligations of the
Seller, the Trustee and the Trust Manager in
relation to the Transaction Documents which
are expressed to be governed by the laws of
New York and as to certain other matters of
United States law;
(v) a legal opinion from ▇▇▇▇▇▇, ▇▇▇▇▇▇ and
▇▇▇▇▇▇ LLP as to the due execution by The
Bank of New York of the Transaction
Documents to which it is a party;
(vi) an opinion in respect of each Currency Swap
Provider in relation to the validity and
enforceability of the obligations of each
Currency Swap Provider under each Currency
Swap; and
(vii) a legal opinion from ▇▇▇▇▇▇▇ Wisewoulds as
to the due execution by PMI Mortgage
Insurance Ltd of the Transaction Documents
to which it is a party and in relation to
the obligations of PMI Mortgage Insurance
Ltd under the Transaction Documents to which
it is bound.
The Trust Manager must provide confirmation to the
Trustee upon its receipt of such documents.
11 REPRESENTATIONS AND WARRANTIES
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REPRESENTATIONS AND WARRANTIES
11.1 Each of the Trustee, the Servicer, the Custodian and the
Trust Manager represents and warrants to each other (but
with respect to itself only) as follows:
(a) (INCORPORATION) it is validly incorporated and
existing under the laws pursuant to which it
purports to have been incorporated;
(b) (CORPORATE POWER) it has the corporate power to
own its assets and to carry on its business as it
is now being conducted and the business proposed
to be conducted under this deed;
(c) (POWER) it has full power and authority to enter
into and perform its obligations under this deed
and each of the Transaction Documents to which it
is a party;
(d) (ALL ACTION TAKEN) it has taken all necessary
internal corporate action to authorise the
execution, delivery and performance of this deed
and each of the Transaction Documents to which it
is
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a party in accordance with their respective terms
and no additional approval or consent of any
person is required;
(e) (VALIDITY OF OBLIGATIONS) this deed and each of
the Transaction Documents to which it is a party
constitute legal, valid and binding obligations of
it and, subject to any necessary stamping and
registration and to doctrines of equity and laws
and defences generally affecting creditors'
rights, are enforceable in accordance with their
respective terms;
(f) (NO VIOLATION) the execution, delivery and
performance by it of this deed and each of the
Transaction Documents to which it is a party does
not and will not violate in any respect any
material provision of:
(i) any law, regulation, authorisation, ruling,
consent, judgement, order or decree of any
Governmental Agency which is binding upon it
or any of its assets;
(ii) the constitution or other constituent
documents of it; or
(iii) any Encumbrance or document which is binding
upon it or any of its assets,
and (except, in the case of the Trustee and the
Servicer, in respect of the Deed of Charge) does
not and will not result in:
(iv) the creation or imposition of any
Encumbrance or restriction of any nature on
any of its assets under the provision of; or
(v) the acceleration of the date of payment of
any obligation existing under,
any Encumbrance or document which is binding
upon it or its assets;
(g) (AUTHORISATIONS) it has obtained all
Authorisations necessary for it to enter into, and
perform its obligations under, the Transaction
Documents and such Authorisations remain in full
force and effect.
TRUSTEE REPRESENTATIONS AND WARRANTIES
11.2 Without limiting the representations and warranties
provided in clause 11.1, the Trustee represents and
warrants to the Trust Manager, the Custodian and the
Servicer that:
(a) (CREATION OF TRUST) the Trust has been validly
created;
(b) (APPOINTMENT OF TRUSTEE) it has been validly
appointed as the trustee of the Trust;
(c) (SOLE TRUSTEE) it is the sole trustee of the
Trust;
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(d) (TRUST POWER) it has power under the Transaction
Documents to enter into, perform and comply with
its obligations, and to carry out the transactions
contemplated by, this deed;
(e) (NO REMOVAL) as far as it is aware, there are no
proceedings to remove it as trustee of the Trust;
and
(f) (VESTING DATE) the vesting date has not occurred
in respect of the Trust.
SELLER REPRESENTATIONS AND WARRANTIES
11.3 The Seller represents and warrants to the Trustee that
the following will be true and correct in relation to
each Receivable specified in the Sale Notice as at the
Cut-Off Date:
(a) the Seller did not enter into the Receivable in
contravention with any applicable law in a manner
which would result in a Material Adverse Effect;
(b) the Receivable is enforceable in accordance with
its terms against the relevant Debtor;
(c) the Receivable satisfies the Eligibility Criteria;
(d) at the time the Seller entered into the
Receivable, it did so in good faith;
(e) no Debtor was required to open or maintain a
deposit account with the Seller in relation to or
as a precondition of entering into the Receivable;
(f) at the time that the Seller entered into the
Receivable, the Receivable was originated in the
ordinary course of the Seller's business and since
then the Seller has, in respect of that
Receivable, complied with the Servicing
Procedures;
(g) at the time the Seller entered into the
Receivable, it had not received any notice of the
insolvency or bankruptcy of the Debtor or that the
Debtor did not have the legal capacity to enter
into the Receivable;
(h) the Seller is the sole legal and beneficial owner
of the Receivable and to its knowledge no
Encumbrance exists in relation to its right, title
and interests in the Receivable;
(i) it holds, in accordance with the Servicing
Procedures, all documents necessary to enforce the
provisions of, and the security created by, the
Receivable and each Related Security (if any);
(j) other than in respect of priorities granted by
statute, it has not received notice from any
person that claims to have an Encumbrance ranking
in priority to or equal with the Receivable or
Related Security;
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(k) except if the Receivable is subject to a fixed
rate of interest at any time and except as may be
provided by applicable laws or any Binding
Provision, the interest payable on the Receivable
is not subject to any limitation and no consent,
additional memoranda or other writing is required
from the Debtor to give effect to a change in the
interest rate payable on the Receivable and any
change will be effective on notice being given to
the Debtor in accordance with the terms of the
Receivable;
(l) it is lawfully entitled to assign the Receivable
upon the terms and conditions of the Sale Notice
and no consent to the sale and assignment of the
Receivable or notice of that sale and assignment
is required to be given by or to any person
including, without limitation, any Debtor;
(m) at the time the Seller entered into the
Receivable, all necessary steps were taken to
ensure that the related Mortgage complied with all
legal requirements applicable at that time to be:
(i) a first ranking registered mortgage;
(ii) where the Seller already held the first
ranking registered mortgage, a second
ranking registered mortgage,
(subject to any statutory charges, any prior
charges of a body corporate, service company or
equivalent, whether registered or otherwise), in
either case secured over Land, subject to stamping
and registration in due course;
(n) upon the acceptance of the offer contained in the
Sale Notice, beneficial ownership of the
Receivable will vest in the Trustee free and clear
of all Encumbrances; and
(o) the sale of the Receivable will not be held by a
court to constitute a transaction at an
undervalue, a fraudulent conveyance or a voidable
preference under any insolvency laws.
12 PAYMENTS
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MANNER
12.1 The Trustee and the Servicer will make all payments
under this deed:
(a) in immediately available funds (unless otherwise
agreed) to the account specified by the payee, in
either case, by 4.00 pm (Melbourne time) on the
due date;
(b) without set-off, counterclaim or other deduction;
and
(c) in accordance with this deed.
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CLEARED FUNDS
12.2 Notwithstanding any other provision of this deed, where
the proceeds of a payment due to the Trustee on a day
are required to be applied by the Trustee towards some
other payment due on the same day, the payment to the
Trustee must be made in immediately available funds in
sufficient time to allow the Trustee to make that other
payment and the Trustee will have no obligation to make
the other payment until the first payment has been made.
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PART 4 - PRINCIPAL AND INCOME DETERMINATIONS AND PAYMENTS
13 COLLECTIONS
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ESTABLISHMENT OF COLLECTION ACCOUNT WITH SERVICER
13.1 Immediately following the date of constitution of the
Trust, the Trustee must establish the Collection Account
with the Servicer (provided that such Servicer has the
Required Credit Rating) or such other Eligible Bank as
the Trust Manager may determine (notice of which is to
be provided to the Trustee) from time to time.
REMITTANCE TO COLLECTION ACCOUNT
13.2 To the extent that the Servicer is the Seller and the
Servicer has the Required Credit Rating, the Servicer is
entitled to retain any Collections in respect of a
Collection Period until 9.00 am (Melbourne time) on the
Payment Date following the end of the relevant
Collection Period, on or before which time it must
deposit such Collections into the Collection Account or
pay such amount in the manner directed by the Trustee
(acting on the direction of the Trust Manager).
13.3 To the extent that the Servicer is not the Seller, and
for so long as the Servicer has short term credit
ratings of no lower than A-1 from S&P, P-1 from ▇▇▇▇▇'▇
and F1 from Fitch, it may retain Collections until
9:00am (Melbourne time) on the Business Day which is the
earlier of 30 days from receipt and 2 Business Days
before the Payment Date following the end of the
relevant Collection Period. However, while the sum of
all Collections held by the Servicer and the value of
any short term Authorised Investments which are with, or
issued by, a bank or financial institution which has a
short-term credit rating of A-1 from S&P exceeds an
amount equal to 20% of the Aggregate Stated Amount of
all Notes, the Servicer will only be entitled to retain
any additional Collections received for 2 Business Days
following receipt.
13.4 Subject to clause 13.2 and 13.3, the Servicer agrees to
remit all Collections it receives to the Collection
Account within 2 Business Days of receipt of such
Collections.
14 TERMINATION OF THE SWAPS AND APPLICATION OF THRESHOLD RATE
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CALCULATION OF THRESHOLD RATE
14.1 The Trust Manager shall, on each Payment Date after the
date on which the Basis Swap is terminated and not
replaced in the manner contemplated by clause
14.2(a)(i), and on any other date required by the
Transaction Documents:
(a) calculate the Threshold Rate on that day; and
(b) notify the Trustee, the Servicer and the Seller of
that Threshold Rate.
TERMINATION OF BASIS SWAP OR FIXED RATE SWAP
14.2 If, at any time, the Basis Swap or the Fixed Rate Swap
terminates due to the default or failure to perform by
the Basis Swap Provider or the
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Fixed Rate Swap Provider (as the case may be), the Trust
Manager and the Trustee must endeavour to:
(a) in the case of the Basis Swap:
(i) (in the case of the Trustee, to the extent
that the Trust Manager has made appropriate
arrangements to ensure that it is possible
for the Trustee to) enter into a replacement
swap on substantially similar terms and with
a counterparty acceptable to each Designated
Rating Agency;
(ii) (in the case of the Trustee, to the extent
that the Trust Manager has made appropriate
arrangements to ensure that it is possible
for the Trustee to) ensure the Seller sets
the weighted average (rounded up to 4
decimal places) of the variable interest
rates payable under each applicable
Purchased Receivable which then forms part
of the Assets of the Trust to at least equal
to the Threshold Rate; or
(iii) (in the case of the Trustee, to the extent
that the Trust Manager has made appropriate
arrangements to ensure that it is possible
for the Trustee to) within 3 Business Days,
enter into such other arrangements which
each Designated Rating Agency has confirmed
will not result in an Adverse Rating Effect;
and
(b) in the case of the Fixed Rate Swap, within 3
Business Days:
(i) (in the case of the Trustee, to the extent
that the Trust Manager has made appropriate
arrangements to ensure that it is possible
for the Trustee to) immediately enter into a
replacement swap on substantially similar
terms and with a counterparty acceptable to
each Designated Rating Agency; or
(ii) (in the case of the Trustee, to the extent
that the Trust Manager has made appropriate
arrangements to ensure that it is possible
for the Trustee to) enter into such other
arrangements which each Designated Rating
Agency has confirmed will not result in an
Adverse Rating Effect.
SELLER'S DISCRETION
14.3 If clause 14.2(a)(ii) applies, the Seller may, at its
discretion, set the interest rate on the Purchased
Receivables (where permitted under the relevant Loan
Agreement) at an interest rate higher than the Threshold
Rate.
TRUSTEE'S POWER
14.4 If the Trustee has notice that the Seller has failed to
fulfil its obligations under clause 14.2(a)(ii), the
Trustee has the power to set the interest rate on the
Purchased Receivables in accordance with clause
14.2(a)(ii).
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TERMINATION OF LINKED DEPOSIT ACCOUNTS
14.5 The Seller will, following notice by the Trustee to the
relevant Debtors after the occurrence of a Title
Perfection Event, subject to any contractual notice
requirements by which the Seller is bound, promptly
withdraw all interest off-set benefits (if any) that
would otherwise be available to Debtors under the terms
of their Linked Deposit Accounts.
SERVICER TO ADJUST
14.6 If at any time a Basis Swap terminates whilst there are
any Notes which have not been redeemed (or deemed to be
redeemed) in full, the Servicer must, in respect of each
Collection Period commencing thereafter:
(a) (REDUCE INTEREST OFF-SET BENEFITS APPLICABLE TO
LINKED DEPOSIT ACCOUNTS) reduce, except as may be
provided by applicable laws (including, but not
limited to the Consumer Credit Code), the interest
off-set benefits available in respect of Linked
Deposit Accounts, so that the effective interest
rate applicable on Purchased Receivables which are
subject to Linked Deposit Accounts produces an
income which is at least equal to the lesser of:
(i) the amount of income that would be produced
if the interest off-set benefit was zero;
and
(ii) the amount of income which ensures that
there is enough Available Income to make all
necessary payments due by the Trustee; and
(b) if the amount of income produced pursuant to
clause 14.6(a), when aggregated with all other
Available Income, is not sufficient to enable it
to meet its obligations under the Transaction
Documents, ensure that the weighted average
interest rate applied to the Purchased Receivables
is not lower than the Threshold Rate determined by
the Trust Manager.
GROSS UP FOR LINKED DEPOSIT ACCOUNTS
14.7 The Seller must pay the Servicer (as part of the
Collections to be deposited by the Servicer into the
Collection Account) any amount which would otherwise be
received by the Servicer as a Collection to the extent
that the obligation to pay such amounts is discharged or
reduced by virtue of the terms of a Linked Deposit
Account. Such payment must be made on the day that the
relevant amount would otherwise have been received.
15 CASHFLOW ALLOCATION METHODOLOGY
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GENERAL
15.1 Prior to the occurrence of an Event of Default, the
Collections, Other Income and any amount required to be
drawn under the Support Facilities will be allocated by
the Trust Manager and paid in accordance with clauses
15.2 to 15.17 below.
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COLLECTION PERIOD
15.2 The Servicer will collect all Collections on behalf of
the Trustee during each Collection Period. On each
Determination Date, the Trust Manager will allocate the
Collections between Finance Charge Collections and
Principal Collections.
FINANCE CHARGE COLLECTIONS
15.3 On each Determination Date, the Finance Charge
Collections for the immediately preceding Collection
Period will be calculated by the Trust Manager as the
aggregate of the following items:
(a) any amounts received from a Debtor in relation to
Taxes and Governmental Agency charges in respect
of a Purchased Receivable during that Collection
Period;
(b) any interest and other amounts in the nature of
interest or income, fees and charges received
during that Collection Period under or in respect
of any Purchased Receivable, or any similar amount
deemed by the Servicer to be in the nature of
income, interest, fee or charge, including without
limitation amounts of that nature:
(i) recovered during that Collection Period from
the enforcement of a Purchased Receivable
(but excluding any amount received under any
Mortgage Insurance Policy);
(ii) received by the Trustee during that
Collection Period under clause 2.3;
(iii) received during that Collection Period from
a Debtor following notice given to that
Debtor in accordance with clause 14.5;
(iv) received during that Collection Period from
the Seller or the Servicer by the Trustee
upon repurchase of a Purchased Receivable
for any reason (including without
limitation, any such amount which represents
amounts in respect of accrued but unpaid
interest and fees on the Purchased
Receivables);
(v) received during that Collection Period from
another trust or any other person as an
Accrued Interest Adjustment upon the
transfer of a Purchased Receivable from the
Trust to that other trust or that person;
(vi) received during that Collection Period from
the Seller or the Servicer in respect of:
(A) damages payable as a result of a breach
of a representation or warranty
contained in the Transaction Documents
in respect of a Purchased Receivable
and which the Trust Manager determines
should be accounted for
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as Finance Charge Collections in
accordance with the provisions of this
deed; or
(B) any obligation to indemnify or
reimburse the Trustee in respect of a
Purchased Receivable or under or in
connection with a Transaction Document,
such amounts to include damages received
from the Seller or the Servicer which are
determined to be Finance Charge Collections
in accordance with clause 20.2;
(vii) received during that Collection Period from
the Seller under clause 14.7 of this deed,
less reversals made during that Collection Period
in respect of interest, income, fees or charges in
respect of any Purchased Receivable where the
original debit entry (or any part of the original
debit entry) was made in error;
(c) any amounts allocated as Finance Charge
Collections by the Trust Manager out of funds
received during that Collection Period under
clause 25.1(b);
(d) any fees paid during that Collection Period by a
Debtor in relation to the final discharge of a
Purchased Receivable;
(e) any Recoveries received during that Collection
Period in respect of a Purchased Receivable which
were previously the subject of a loss as described
in the definition of "Charge-Off";
(f) any amount received during that Collection Period
from or on behalf of a Debtor in reimbursement of
Enforcement Expenses; and
(g) any amount of input tax credits (as defined in the
GST Law) received by the Trustee during that
Collection Period in respect of the Trust.
CALCULATION OF AVAILABLE INCOME
15.4 On each Determination Date, the Available Income is
calculated by the Trust Manager (without double
counting) as follows:
(a) the Finance Charge Collections received during the
immediately preceding Collection Period; plus
(b) any Other Income in respect of the immediately
preceding Collection Period; plus
(c) the Mortgage Insurance Income Proceeds received by
the Trustee during that Collection Period in
respect of a Purchased Receivable; plus
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(d) any net payments due to be received by the Trustee
under the Fixed Rate Swap or the Basis Swap on the
next Payment Date (excluding any Early Repayment
Costs); plus
(e) all other amounts received by or on behalf of the
Trustee in respect of the Assets of the Trust in
the nature of income during the immediately
preceding Collection Period.
PRINCIPAL DRAW
15.5 If, on any Determination Date, there is a Payment
Shortfall then the Trust Manager must direct the Trustee
to make a Principal Draw on the Payment Date immediately
following that Determination Date equal to the lesser
of:
(a) the Payment Shortfall; and
(b) the amount of Principal Collections available for
application for that purpose on the following
Payment Date in accordance with clause 15.13(c),
and apply it towards the Payment Shortfall.
LIQUIDITY DRAWING
15.6 If, on any Determination Date, there is a Liquidity
Shortfall, the Trust Manager must direct the Trustee in
writing to request from the Liquidity Facility Provider,
in accordance with the Liquidity Facility Agreement, a
Liquidity Drawing under the Liquidity Facility Agreement
on the Payment Date immediately following that
Determination Date equal to the lesser of:
(a) the Liquidity Shortfall on that Determination
Date; and
(b) the Available Liquidity Amount on that
Determination Date.
The Trustee must, if so directed by the Trust Manager
and subject to the terms of the Liquidity Facility
Agreement, make that Liquidity Drawing and have the
proceeds deposited or transferred into the Collection
Account on the relevant Payment Date.
CALCULATION AND APPLICATION OF TOTAL AVAILABLE INCOME
15.7 On each Determination Date, the Total Available Income
is calculated as the aggregate of:
(a) any Available Income calculated in accordance with
clause 15.4 on that Determination Date;
(b) any Principal Draw calculated in accordance with
clause 15.5 on that Determination Date; and
(c) any Liquidity Drawing calculated in accordance
with clause 15.6 on that Determination Date.
The Total Available Income in respect of a Determination
Date must be applied on the immediately following
Payment Date to meet Required Payments in accordance
with clause 15.8.
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REQUIRED PAYMENTS (INTEREST WATERFALL)
15.8 The Trust Manager must direct the Trustee to pay (or
direct the payment of) the following items in the
following order of priority out of the Total Available
Income (as calculated on the relevant Determination
Date) on each Payment Date:
(a) first, at the Trust Manager's discretion, up to $1
to each Residual Income Unitholder;
(b) second, solely with respect to the first Payment
Date, any Accrued Interest Adjustment to the
Seller upon the transfer of any Receivable to the
Trust during the Collection Period immediately
preceding that Payment Date;
(c) third, pari passu and rateably:
(i) any Taxes payable in relation to the Trust
for the Collection Period immediately
preceding that Payment Date;
(ii) the Trustee's fee payable on that Payment
Date;
(iii) the Servicer's fee payable on that Payment
Date;
(iv) the Trust Manager's fee payable on that
Payment Date;
(v) the Custodian's fee payable on that
Payment Date;
(vi) the Note Trustee's fee payable on that
Payment Date;
(vii) any Enforcement Expenses incurred during
the Collection Period immediately
preceding that Payment Date; and
(viii) any other Expenses of the Trust incurred
during the Collection Period immediately
preceding that Payment Date;
(d) fourth, pari passu and rateably:
(i) any fees payable by the Trustee on that
Payment Date under the Redraw Facility
Agreement and the Liquidity Facility
Agreement;
(ii) any interest payable by the Trustee under
the Liquidity Facility Agreement for the
Interest Period ending on (but excluding)
that Payment Date and any unpaid interest in
respect of preceding Interest Periods; and
(iii) any net amount payable by the Trustee on
that Payment Date to the Basis Swap Provider
under the Basis Swap and to the Fixed Rate
Swap Provider under the Fixed Rate Swap
(excluding any Early Repayment Costs during
the immediately preceding Collection
Period); and
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(e) fifth, to the Liquidity Facility Provider in
repayment or reimbursement of any Liquidity
Drawing made before that Payment Date;
(f) sixth, pari passu and rateably:
(i) to each Currency Swap Provider, such amount
of the A$ Class A Interest Amount for the
Interest Period ending on (but excluding)
that Payment Date as is payable to the
Currency Swap Provider on that Payment Date
in accordance with the relevant Currency
Swap and any unpaid A$ Class A Interest
Amounts in respect of preceding Interest
Periods; and
(ii) any interest payable by the Trustee under
the Redraw Facility Agreement for the
Interest Period ending on (but excluding)
that Payment Date and any unpaid interest
amounts for the Redraw Facility in respect
of preceding Interest Periods; and
(g) seventh, the Class B Note Interest Amount for the
Class B Notes for the Interest Period ending on
(but excluding) that Payment Date and any unpaid
Class B Note Interest Amounts for the Class B
Notes in respect of preceding Interest Periods.
The Trustee will only make a payment under any of
paragraphs (a) to (g) inclusive to the extent that any
Total Available Income remains from which to make the
payment after amounts with priority to that amount have
been paid and distributed.
15.9 On each Payment Date that any amount is payable to a
Currency Swap Provider under clause 15.8(f)(i), the
Trustee must comply with Condition 6.9 of the Class A
Note Conditions.
EXCESS AVAILABLE INCOME
15.10 To the extent that, on any Payment Date, the Total
Available Income exceeds the amounts payable under
clause 15.8 (as calculated on the relevant Determination
Date) ("EXCESS AVAILABLE INCOME"), the Trust Manager
must apply any such excess and direct the Trustee to pay
(or direct the payment of) such amount on that Payment
Date in the following order of priority:
(a) firstly, pari passu and rateably:
(i) as an allocation to the A$ Class A
Principal, an amount equal to any Principal
Charge-Offs allocated to the Class A Notes
on that Determination Date in respect of
Principal Charge-Offs for the immediately
preceding Collection Period; and
(ii) as an allocation to the Redraw Principal, an
amount equal to any Principal Charge-Offs
allocated to the Redraw Principal
Outstanding on that Determination Date in
respect of Principal Charge-Offs for the
immediately preceding Collection Period;
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(b) second, pari passu and rateably:
(i) as an allocation to the A$ Class A
Principal, an amount equal to the Carryover
Principal Charge-Offs in respect of the
Class A Notes; and
(ii) as an allocation to the Redraw Principal, an
amount equal to the Carryover Principal
Charge-Offs in respect of the Redraw
Principal Outstanding;
(c) third, as an allocation to the Class B Principal,
an amount equal to any Principal Charge-Offs
allocated to the Class B Notes on that
Determination Date in respect of Principal
Charge-Offs for the immediately preceding
Collection Period;
(d) fourth, as an allocation to the Class B Principal,
an amount equal to any Carryover Principal
Charge-Offs in respect of the Class B Notes;
(e) fifth, all Principal Draws which have not been
repaid as at that Payment Date; and
(f) sixth, as to any surplus, pari passu and rateably
to each Residual Income Unitholder by way of
distribution of the income of the Trust.
The Trustee will only make a payment under any of
paragraphs (a) to (f) above inclusive to the extent that
any Excess Available Income remains from which to make
the payment after amounts with priority to that amount
have been paid and distributed.
PRINCIPAL COLLECTIONS
15.11 On each Determination Date, the Principal Collections
for a Collection Period are an amount equal to:
(a) the aggregate of:
(i) the Collections for the immediately
preceding Collection Period;
(ii) any amount to be drawn under the Redraw
Facility Agreement on the Payment Date
immediately following that Determination
Date in accordance with clause 15.12;
(iii) any Principal Draws which are to be repaid
under clause 15.10(e); and
(iv) in respect of the first Determination Date
only, any amount received by the Trustee
upon the initial issue of Notes in excess of
the Purchase Price of Purchased Receivables;
less
(b) the aggregate of:
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(i) the Finance Charge Collections received by
the Trustee during that Collection Period;
and
(ii) the Mortgage Insurance Interest Proceeds
received by the Trustee during that
Collection Period in respect of a Purchased
Receivable.
REDRAW SHORTFALL
15.12 If the Trust Manager determines on any Determination
Date that there is a Redraw Shortfall, the Trust Manager
must direct the Trustee in writing to request from the
Redraw Facility Provider, in accordance with the Redraw
Facility Agreement, a Redraw Drawing under the Redraw
Facility Agreement on the immediately following Payment
Date in an amount equal to the lesser of:
(a) the Redraw Shortfall on that Determination Date;
and
(b) the Available Redraw Amount on that Determination
Date.
The Trustee must, if so directed by the Trust Manager
and subject to the terms of the Redraw Facility
Agreement, make that Redraw Drawing and have the
proceeds deposited or transferred into the Collection
Account on the relevant Payment Date.
PRINCIPAL DISTRIBUTIONS
15.13 On each Payment Date and based on the calculations,
instructions and directions provided to it by the Trust
Manager, the Trustee must distribute out of Principal
Collections (as calculated on the Determination Date
immediately preceding that Payment Date), the following
amounts in the following order of priority:
(a) first, to repay or reimburse any Redraws provided
by the Seller (up to and including the last day of
the immediately preceding Collection Period) in
relation to the Purchased Receivables to the
extent that they have not previously been repaid
or reimbursed;
(b) second, an amount equal to the Redraw Principal
Outstanding (as calculated on the Determination
Date immediately preceding that Payment Date but
excluding any Redraw Drawings to be made on that
Payment Date) will be allocated to the Redraw
Principal to be applied in accordance with clause
15.14(b) on that Payment Date;
(c) third, as a Principal Draw (if required) under
clause 15.5 on that Payment Date;
(d) fourth, an amount equal to the aggregate of:
(i) Class A Note Percentage of the Principal
Collections; and
(ii) the Stepdown Percentage (calculated on the
immediately preceding Determination Date) of
the Class B Percentage of the Principal
Collections,
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will be allocated to the A$ Class A Principal to
be applied in accordance with clause 15.14(a) on
that Payment Date;
(e) fifth, an amount equal to the Class B Note
Percentage of the Principal Collections (after any
application of the Stepdown Percentage under
paragraph (d) above) will be allocated to the
Class B Principal to be applied in accordance with
clause 15.14(c) on that Payment Date; and
(f) sixth, as to any surplus (if any), to the Residual
Capital Unitholder.
The Trustee will only make a payment under any of
paragraphs (a) to (f) inclusive to the extent that any
Principal Collections remain from which to make the
payment after amounts with priority to that amount have
been paid and distributed.
PAYMENTS OF PRINCIPAL ON THE NOTES AND TO THE REDRAW FACILITY PROVIDER
15.14 On each Payment Date prior to the occurrence of an Event
of Default, the Trustee must, in accordance with the
directions given by the Trust Manager and subject to the
payment priority provided for in clause 15.13, pay:
(a) (A$ CLASS A PRINCIPAL) the A$ Class A Principal
payable for that Payment Date to each Currency
Swap Provider in accordance with Condition 7.2(a)
of the Class A Note Conditions and the terms of
the relevant Currency Swap and comply with
Condition 7.2 of the Class A Note Conditions;
(b) (REDRAW PRINCIPAL) the Redraw Principal payable
for that Payment Date to the Redraw Facility
Provider towards the Redraw Principal Outstanding
(as calculated on the Determination Date
immediately preceding that Payment Date but
excluding any Redraw Principal to be paid to the
Redraw Facility Provider under this clause
15.14(b) on that Payment Date); and
(c) (CLASS B PRINCIPAL) the Class B Principal payable
for that Payment Date, pari passu and rateably
amongst the Class B Notes until the Aggregate
Stated Amount of the Class B Notes (as calculated
on the Determination Date immediately preceding
that Payment Date but without double counting
amounts to be paid under this clause 15.14(c) on
that Payment Date) is reduced to zero.
PRINCIPAL CHARGE-OFFS
15.14A If, on any Determination Date, the Trust Manager
determines that there are Principal Charge-Offs in
respect of the immediately preceding Collection Period,
the Trust Manager must, on that Determination Date,
allocate such Principal Charge-Offs in the following
order:
(a) first, to reduce the Stated Amount of the Class B
Notes until the Stated Amount (without double
counting) of the Class B Notes is reduced to zero
(as at that Determination Date); and
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(b) second, pari passu and rateably to reduce:
(i) rateably the Stated Amounts of the Class A
Notes by the Class A Note Percentage until
the Stated Amount (without double counting)
of the Class A Notes is reduced to zero (as
at that Determination Date); and
(ii) the Redraw Principal Outstanding by the
Redraw Percentage until the Redraw Principal
Outstanding (without double counting) is
reduced to zero (as at that Determination
Date).
CARRYOVER PRINCIPAL CHARGE-OFFS
15.15 If, on any Determination Date, the Principal Charge-Offs
for the immediately preceding Collection Period exceed
the amount of the Excess Available Income available for
allocation to Principal Charge-Offs under clause
15.10(a) on that Determination Date, the Trust Manager
must, on and with effect from the next Payment Date:
(a) first, (without double counting any Principal
Charge-Offs) reduce the Aggregate Stated Amount of
the Class B Notes by the amount of that excess
until the Aggregate Stated Amount of the Class B
Notes (as at that Determination Date) is reduced
to zero; and
(b) second, (without double counting any Principal
Charge-Offs) pari passu and rateably (based on the
Aggregate Stated Amounts of the relevant Notes and
the Redraw Principal Outstanding as at that
Determination Date) reduce:
(i) the Aggregate Stated Amount of the Class A
Notes by the amount of that excess until the
Aggregate Stated Amount of the Class A Notes
(as at that Determination Date) is reduced
to zero; and
(ii) the Redraw Principal Outstanding by the
amount of that excess until the Redraw
Principal Outstanding (as at that
Determination Date) is reduced to zero,
(each a "CARRYOVER PRINCIPAL CHARGE-OFF").
INCREASES
15.16 To the extent that on any Determination Date amounts are
available for allocation under clauses 15.10(b) and (d),
then an amount equal to these amounts shall be applied
on the next Payment Date to increase respectively:
(a) first, pari passu and rateably (based on the
Aggregate Stated Amounts of the relevant Notes and
the Redraw Principal Outstanding as at the
immediately preceding Determination Date), the
Aggregate Stated Amount of the Class A Notes,
until it reaches the Total Invested Amount of the
Class A Notes (as at that Determination Date) and
the Redraw Principal until it reaches the Redraw
Principal Outstanding (as at that Determination
Date); and
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(b) second, the Aggregate Stated Amount of the Class B
Notes until it reaches the Total Invested Amount
of the Class B Notes (as at that Determination
Date).
EARLY REPAYMENT COSTS AND EARLY REPAYMENT BENEFITS
15.17 On each Determination Date, the Trustee (or the Trust
Manager on its behalf) will calculate the aggregate of
the Early Repayment Costs in respect of the Purchased
Receivables (if any) and the aggregate of the Early
Repayment Benefits (if any) each during the immediately
preceding Collection Period and notify each of the
Servicer and the Fixed Rate Swap Provider of such
amounts. On behalf of the Trustee, the Trust Manager
agrees to:
(a) direct the Servicer to pay the aggregate amount of
Early Repayment Costs (if any), on the immediately
following Payment Date, to the Fixed Rate Swap
Provider under the terms of the Fixed Rate Swap;
and
(b) direct the Fixed Rate Swap Provider to pay the
aggregate amount of Early Repayment Benefits (if
any), on the immediately following Payment Date,
to the Servicer who, with such funds, agrees to
meet the obligation to pay such Early Repayment
Benefits to the relevant Debtors.
APPLICATION OF PROCEEDS FOLLOWING AN EVENT OF DEFAULT
15.18 Following the occurrence of an Event of Default, the
Security Trustee must apply all moneys received by it in
respect of the Secured Property in the following order:
(a) first, to pay rateably amounts owing or payable
under the Global Master Security Trust Deed to
indemnify the Security Trustee against all loss
and liability incurred by the Security Trustee or
any Receiver in acting under the Global Master
Security Trust Deed, except the Receiver's
remuneration;
(b) second, to pay rateably any fees and any
liabilities, losses, costs, claims, expenses,
actions, damages, demands, charges, stamp duties
and other taxes due to the Trust Manager, the
Trustee, the Servicer, the Custodian, the Security
Trustee, the Note Trustee or any Agent and the
Receiver's remuneration;
(c) third, to pay rateably other outgoings and
liabilities that the Receiver, the Trustee, the
Trust Manager, the Security Trustee or the Note
Trustee have incurred in acting under the Master
Trust Deed, this deed, the Global Master Security
Trust Deed, and, in the case of the Note Trustee,
under the Note Trust Deed;
(d) fourth, to pay rateably any security interests
over the Assets of the Trust of which the Security
Trustee is aware having priority to the Deed of
Charge in the order of their priority;
(e) fifth, to pay rateably:
(i) the Seller any unpaid Accrued Interest
Adjustment;
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(ii) the Fixed Rate Swap Provider and the Basis
Swap Provider amounts in respect of
collateral or prepayments owing under the
Fixed Rate Swap or Basis Swap; and
(iii) the Seller the then Seller Deposit (which
has not previously been utilised in
accordance with clause 25.10(b)) together
with all accrued, but unpaid, interest on
that amount determined in accordance with
clause 25.7;
(f) sixth, to pay rateably:
(i) the Class A Note Holders all other Secured
Moneys owing in relation to the Class A
Notes. For this purpose, the Secured Moneys
owing in respect of the Class A Notes will
be calculated on a principal component of
their Stated Amount and will be converted
from US$ to Australian dollars at the A$
Exchange Rate. This will be applied:
(A) first, rateably towards all unpaid
interest on the Class A Notes; and
(B) second, rateably to reduce the
Aggregate Stated Amount of the Class A
Notes;
(ii) any other Secured Money owing to the
Liquidity Facility Provider;
(iii) any Secured Moneys owing to the Redraw
Facility Provider, provided that for this
purpose the Secured Moneys owing in respect
of the Redraw Facility Provider will be the
Redraw Principal Outstanding;
(iv) rateably all other Secured Moneys owing to
each Currency Swap Provider; and
(v) rateably all other Secured Moneys owing to
each Swap Provider (other than each Currency
Swap Provider);
(g) seventh, to pay rateably to the Class A Note
Holders and the Redraw Facility Provider, all
unreimbursed Principal Charge-Offs and Carryover
Principal Charge-Offs constituting remaining
Secured Moneys owing in respect of the Class A
Notes and the Redraw Facility. For this purpose,
the Secured Moneys in respect of the Class A Notes
will be converted from US$ to Australian dollars
at the A$ Exchange Rate;
(h) eighth, if there are still Secured Moneys owing in
respect of the Class A Notes, after the
application of the preceding paragraphs, to pay
the remaining Secured Moneys owing in relation to
the Class A Notes;
(i) ninth, rateably to the Class B Note Holders, of
all Secured Moneys owing in relation to the Class
B Notes, to be applied:
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(A) first, rateably towards all unpaid interest
on the Class B Notes;
(B) second, rateably to reduce the Aggregate
Stated Amount of the Class B Notes;
(j) tenth, to pay rateably to each Secured Creditor
any monetary liabilities owing to that Secured
Creditor under any Transaction Document and not
satisfied under the preceding paragraphs;
(k) eleventh, to pay subsequent security interests
over the Assets of the Trust of which the Security
Trustee is aware, in the order of their priority;
and
(l) twelfth, to pay any surplus to the Trustee to be
distributed in accordance with the terms of the
Master Trust Deed and this deed. The surplus will
not carry interest as against the Security
Trustee.
EXCLUDED AMOUNT
15.19 The proceeds of any collateral provided by a Support
Facility Provider will not be treated as Secured
Property available for distribution in accordance with
clause 15.18. Any such collateral shall (subject to the
operation of any netting provisions in the relevant
Support Facility) be returned to the relevant Support
Facility Provider except to the extent that the relevant
Support Facility requires it to be applied to satisfy
any obligation owed to the Trustee by the relevant
Support Facility Provider.
16 DETERMINATIONS BY TRUST MANAGER
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DETERMINATIONS BY TRUST MANAGER
16.1 On each Determination Date, the Trust Manager will (and
where applicable, in respect of the Collection Period
ending immediately prior to that Determination Date)
determine or otherwise ascertain:
(a) the Finance Charge Collections;
(b) the Other Income;
(c) the Mortgage Insurance Interest Proceeds;
(d) the Available Income;
(e) the Total Available Income;
(f) the Principal Draw, if any;
(g) the Liquidity Draw, if any;
(h) the Expenses of the Trust;
(i) the Required Payments (and each amount comprising
the Required Payments);
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(j) the Excess Available Income;
(k) the Principal Collections;
(l) the Redraw Shortfall (if any);
(m) the Principal Charge-Offs (if any);
(n) the Carryover Principal Charge-Offs (if any);
(o) the Extraordinary Expenses, if any;
(p) the Enforcement Expenses, if any; and
(q) any other relevant determinations.
16.2 The Trust Manager must:
(a) notify the Trustee of each of the amounts
calculated by it in clause 16.1; and
(b) instruct the Trustee as to the payments to be made
by the Trustee on the relevant Payment Date in
accordance with clause 15.
16.3 On or before midday on the day which is two Business
Days prior to each Payment Date, the Trust Manager must:
(a) determine any net amounts required to be drawn
under Support Facilities on that Payment Date;
(b) notify the Trustee of such determinations; and
(c) direct the Trustee to make such drawings.
17 TRUST MANAGER, TRUSTEE, CUSTODIAN AND SERVICER FEES
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TRUST MANAGER'S FEE
17.1 For the purposes of clause 33.1 of the Master Trust
Deed, and in consideration of the Trust Manager
performing its function and duties in respect of the
Trust, it will be paid a fee by the Trustee from the
Trust quarterly in arrears on each Payment Date equal to
the product of:
(a) the aggregate Outstanding Balance of all Housing
Loans comprising part of the Purchased Receivables
on the first day of the Quarter ending immediately
before that Payment Date;
(b) 0.015% per annum or such other rate as is agreed
by the Trust Manager and the Trustee from time to
time, notice of which must be sent by the Trust
Manager to each Designated Rating Agency; and
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(c) the number of days between the immediately
preceding Payment Date and the current Payment
Date divided by 365 days,
provided that the fee payable to the Trust Manager in
respect of the first period shall be calculated with
respect to the number of days between the Closing Date
and the first Payment Date.
The fee shall accrue from day to day.
TRUSTEE'S FEE
17.2 For the purposes of clause 33.2 of the Master Trust
Deed, and in consideration of the Trustee performing its
functions and duties in respect of the Trust it will
receive a fee, in an amount and calculated in such
manner as may be agreed between the Trustee and the
Trust Manager from time to time provided there is no
Adverse Rating Effect.
CUSTODIAN'S FEE
17.3 In consideration of the Custodian performing its
functions and duties in respect of the Trust it will
receive a fee by the Trustee from the Trust quarterly in
arrears on each Payment Date equal to the product of:
(a) the aggregate Outstanding Balance of all Housing
Loans comprising part of the Purchased Receivables
on the first day of the Quarter ending immediately
before that Payment Date;
(b) 0.015% per annum or such other rate as is agreed
by the Custodian and the Trustee from time to
time, notice of which must be sent by the Trust
Manager to each Designated Rating Agency; and
(c) the number of days between the immediately
preceding Payment Date and the current Payment
Date divided by 365 days,
provided that the fee payable to the Custodian in
respect of the first period shall be calculated with
respect to the number of days between the Closing Date
and the first Payment Date.
The fee shall accrue from day to day.
SERVICER'S FEE
17.4 For the purposes of clause 5.1 of the Master Servicer
Deed, and in consideration of the Servicer performing
its functions and duties in respect of the Trust, it
will be paid a fee by the Trustee from the Trust payable
quarterly in arrears on each Payment Date equal to the
product of:
(a) the aggregate Outstanding Balance of all Housing
Loans comprising part of the Purchased Receivables
on the first day of the Quarter ending immediately
before that Payment Date;
(b) 0.35% per annum or such other rate as is agreed by
the Trust Manager, the Trustee and the Servicer
from time to time,
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notice of which must be sent by the Trust Manager
to each Designated Rating Agency; and
(c) the number of days between the immediately
preceding Payment Date and the current Payment
Date divided by 365 days,
provided that the fee payable to the Servicer in respect
of the first period shall be calculated with respect to
the number of days from (and including) the Closing Date
and the first Payment Date and based on the aggregate
Outstanding Balance of all Housing Loans comprising part
of the Purchased Receivables as at the Closing Date.
That fee shall accrue from day to day.
FEE AND GST
17.5 (a) The fees payable to the Trustee, the Trust
Manager, the Custodian and the Servicer are
inclusive of GST.
(b) Each supplier will provide the corresponding
recipient with any reasonable documentation
required for GST purposes so as to enable the
relevant recipient to receive an input tax credit
or tax refund for tax purposes.
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PART 5 - GENERAL
18 NOTICES
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NOTICES
18.1 Any notice, request, certificate, approval, demand,
consent or other communication to be given under this
deed:
(a) must be given by an Authorised Officer of the
relevant party;
(b) must be in writing; and
(c) must be left at the address of the addressee or
sent by prepaid ordinary post to the address of
the addressee or sent by facsimile to the
facsimile number of the addressee set out below or
as are notified by the party to the other parties
as its address for service of communications
pursuant to this deed.
TRUSTEE:
Address: ▇▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Attention: Manager, Securitisation
TRUST MANAGER:
Address: ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Attention: Manager, Primary Markets Group
SECURITY TRUSTEE:
Address: ▇▇▇▇▇ ▇
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Attention: Manager, Securitisation
SELLER:
Address: ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Attention: Head of Finance & Strategy, ANZ
Mortgage Group
SERVICER:
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Address: ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Attention: Head of Finance & Strategy, ANZ
Mortgage Group
CUSTODIAN:
Address: ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Attention: Head of Finance & Strategy, ANZ
Mortgage Group
DEEMED RECEIPT
18.2 A notice, request, certificate, demand, consent or other
communication under this deed is deemed to have been
received:
(a) where delivered in person, upon receipt at the
relevant office;
(b) where sent by post, on the third (seventh if
outside Australia) day after posting; and
(c) where sent by facsimile, on production by the
dispatching facsimile machine of a transmission
report by the machine from which the facsimile was
sent which indicates that the facsimile was sent
in its entirety to the facsimile number of the
recipient.
However, if the time of deemed receipt of any notice is
not before 4.00 p.m. (local time at the address of the
recipient) on a Business Day it is deemed to have been
received at the commencement of business on the next
following Business Day.
19 COUNTERPARTS
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This deed may be executed in any number of counterparts.
All counterparts together will be taken to constitute
one instrument.
20 DAMAGES
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CLAIM FOR DAMAGES
20.1 Where this deed provides for damages to be payable by
the Seller, the Servicer, the Custodian or the Trust
Manager to the Trustee:
(a) (CLAIM MUST BE IN WRITING) a written notice of a
claim for damages must be provided to the relevant
party by the Trustee;
(b) (CLAIM MUST SPECIFY THE AMOUNT OF DAMAGES) such
notice must specify the amount of damages claimed
and how such amount has been determined by
reference to the loss incurred as a result of the
breach leading to the claim for damages; and
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(c) (TRUSTEE MUST ACT ON INSTRUCTIONS) the Trustee in
preparing a notice in accordance with clauses
20.1(a) and (b) will act on the instructions of
the Trust Manager (in the case of a claim against
the Seller, the Custodian or the Servicer) or take
expert advice, if necessary (in the case of a
claim against the Trust Manager).
ALLOCATION OF DAMAGES
20.2 If damages or indemnities are payable to the Trustee by
the Servicer, the Seller, the Custodian or the Trust
Manager for breach of a representation, warranty or
obligation under the Master Trust Deed, this deed or
another Transaction Document, the Trust Manager will
determine what portion of such amount is to be treated
as Principal Collections and what portion of such amount
is to be treated as Finance Charge Collections. On each
Determination Date, the Trust Manager must notify the
Trustee of the damages (or the indemnities, as the case
may be) received (if any) in the Collection Period just
ended and its allocation between Principal Collections
and Finance Charge Collections.
21 MISCELLANEOUS
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CERTIFICATE
21.1 A certificate signed by the Trustee or its solicitors
about a matter or about a sum payable to the Trustee in
connection with this deed is sufficient evidence of the
matter or sum stated in the certificate unless the
matter or sum is proved to be false.
EXERCISE OF RIGHTS
21.2 The Trustee or an attorney appointed under this deed may
exercise a right, power or remedy at its discretion, and
separately or concurrently with another right, power or
remedy. A single or partial exercise of a right, power
or remedy by the Trustee does not prevent a further
exercise of that or an exercise of any other right,
power or remedy. Failure by the Trustee to exercise or
delay in exercising a right, power or remedy does not
prevent its exercise. The Trustee is not liable for any
loss caused by its exercise, attempted exercise, failure
to exercise or delay in exercising it except in the case
of the Trustee, its gross negligence, fraud or wilful
default.
WAIVER AND VARIATION
21.3 A provision of or a right created under this deed may
not be waived or varied except in writing signed by the
party or parties to be bound.
SUPERVENING LEGISLATION
21.4 Any present or future legislation which operates to vary
the obligations of the Trustee in connection with this
deed with the result that the Trustee's rights, powers
or remedies are adversely affected (including, without
limitation, by way of delay or postponement) is excluded
except to the extent that its exclusion is prohibited or
rendered ineffective by law.
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APPROVALS AND CONSENT
21.5 The Trustee, the Trust Manager or an attorney appointed
under this deed may give conditionally or
unconditionally or withhold its approval or consent in
its absolute discretion, unless this deed expressly
provides otherwise.
REMEDIES CUMULATIVE
21.6 The rights, powers and remedies provided in this deed
are cumulative with and not exclusive of the rights,
powers or remedies provided by law independently of this
deed.
INDEMNITIES
21.7 Each indemnity in this deed is a continuing obligation,
separate and independent from the other obligations of
the Trustee and the Trust Manager and survives
termination of this deed. It is not necessary for the
Trustee or the Trust Manager to incur expense or make
payment before enforcing a right of indemnity conferred
by this deed.
TIME OF THE ESSENCE
21.8 Time is of the essence in this deed in respect of an
obligation of the Trustee to pay money.
RECEIPTS
21.9 The receipt of a Receiver, or an Authorised Officer of
the Trustee, releases the person paying money to the
Receiver or the Trustee in connection with this deed
from:
(a) liability for the money paid or expressed to be
received; and
(b) being concerned to see to its application or being
answerable or accountable for its loss or
misapplication.
ACKNOWLEDGMENT
21.10 The parties acknowledge and agree that the Trustee and
the Trust Manager in exercising their powers and
discretions under this deed, and in performing their
obligations under this deed, must act in accordance with
their duties and obligations under the Transaction
Documents in respect of the Trust and may exercise such
powers and discretions as provided in the Transaction
Documents in respect of the Trust and (without
limitation) in forming any opinion may obtain and act
upon the advice of persons who are not parties to the
Transaction Documents in respect of the Trust.
21.11 The parties acknowledge that they are bound by the terms
of the Master Trust Deed, the Deed of Charge in respect
of the Trust and this deed in respect of the Trust.
DISCLOSURE OF INFORMATION
21.12 Subject to this deed, the Trustee is not required
(unless ordered so to do by a court of competent
jurisdiction) to disclose to any Unitholder, Secured
Creditor or any other person confidential, financial or
other information made available to the Trustee in
connection with this deed.
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RIGHTS CUMULATIVE
21.13 The rights, powers and remedies provided in this deed
are cumulative and not exclusive of the rights, powers
or remedies provided by law independently of this deed.
SIGNATURES
21.14 The Trustee and the Trust Manager may rely on the
validity of any signature on any transfer, form of
application or other instrument or document unless the
Trustee or the Trust Manager (as the case may be) has
reasonable grounds to believe that the signature is not
genuine. Neither the Trustee nor the Trust Manager is
liable to make good out of its own funds any loss
incurred by any person if a signature is forged or
otherwise fails to bind the person whose signature it
purports to be or on whose behalf it purports to be
made. Any such loss, subject to any right of
reimbursement from any other person (including the Trust
Manager) is to be borne by the relevant Trust in respect
of which the loss is incurred.
22 GOVERNING LAW
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GOVERNING LAW
22.1 This deed and each Trust are governed by the law in
force in New South Wales and the rights, liabilities and
obligations of the parties to it are governed by the
laws in force in New South Wales.
SUBMISSION TO JURISDICTION
22.2 Each party irrevocably and unconditionally submits to
the non-exclusive jurisdiction of the courts of New
South Wales and courts of appeal from them. Each party
waives any right it has to object to an action being
brought in those courts including, without limitation,
by claiming that the action has been brought in an
inconvenient forum or that those courts do not have
jurisdiction.
SERVICE
22.3 Without preventing any other mode of service, any
document in an action (including, without limitation,
any writ of summons or other originating process or any
third or other party notice) may be served on any party
by being delivered to or left for that party at its
address for service of notices under clause 18.
23 LIMITED RECOURSE - TRUSTEE
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LIMITATION ON TRUSTEE'S LIABILITY
23.1 The Trustee enters into this deed only in its capacity
as trustee of the Trust and in no other capacity. A
liability incurred by the Trustee arising under or in
connection with this deed or the Trust is limited to and
can be enforced against the Trustee only to the extent
to which it can be satisfied out of Assets of the Trust
out of which the Trustee is actually indemnified for the
liability. This limitation of the Trustee's liability
applies despite any other provision of this deed (other
than clause 23.3) and extends to all liabilities and
obligations of the Trustee in any way connected with any
representation, warranty, conduct, omission, agreement
or transaction related to this deed or the Trust.
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CLAIMS AGAINST TRUSTEE
23.2 The parties other than the Trustee may not ▇▇▇ the
Trustee in any capacity other than trustee of the Trust,
including seeking the appointment of a receiver (except
in relation to the Assets of the Trust), or a
liquidator, an administrator or any similar person to
the Trustee or prove in any liquidation, administration
or arrangements of or affecting the Trustee (except in
relation to the Assets of the Trust)
BREACH OF TRUST
23.3 The provisions of this clause 23 limiting the Trustee's
liability will not apply to any obligation or liability
of the Trustee to the extent that it is not satisfied
because under this deed or any other Transaction
Document in relation to the Trust 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, gross negligence or
wilful default.
ACTS OR OMISSIONS
23.4 It is acknowledged that the Relevant Parties are
responsible under this deed and the other Transaction
Documents in relation to the Trust 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 or breach of representation
or warranty under this deed) will be considered fraud,
gross negligence or wilful default for the purpose of
clause 23.3 if and to the extent the act or omission was
caused or contributed to by any failure by any Relevant
Party or any other person appointed by the Trustee under
any Transaction Document (other than a person whose acts
or omissions the Trustee is liable for in accordance
with any Transaction Document) to fulfil its obligations
relating to the Trust or by any other act or omission of
any Relevant Party or any other such person regardless
of whether or not the act or omission is purported to be
done on behalf of the Trustee.
NO OBLIGATION
23.5 No attorney, agent, receiver or receiver and manager
appointed in accordance with this deed or any other
Transaction Document has authority to act on behalf of
the Trustee in a way that exposes the Trustee to any
personal liability, and no act or omission of any such
person will be considered fraud, gross negligence or
wilful default of the Trustee for the purpose of clause
23.3.
23.6 The Trustee is not obliged to do anything or refrain
from doing anything under or in connection with this
deed (including incur a liability) unless the Trustee's
liability is limited in the same manner as set out in
this clause.
24 SELLER TRUST
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CONSTITUTION OF SELLER TRUST
24.1 Subject to this clause 24, a Seller Trust is constituted
upon execution of this deed and the payment of $20 by
the Seller to the Trustee. The Seller Trust Assets of
the Seller Trust vest in the Trustee and are held by the
Trustee on the terms of and subject to this deed.
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DECLARATION OF TRUST
24.2 The Trustee declares that it will hold all its right,
title and interest in the Seller Trust Assets of the
Seller Trust on bare trust for the Seller.
24.3 With respect to:
(a) the Trust, the Trustee will hold all of its right,
title and interest in so much of any Receivable,
Title Documents and Monetary Rights for each
Purchased Receivable from time to time assigned to
the Trustee (including, without limitation, the
proceeds of enforcement of that Purchased
Receivable) as is necessary to enable the full and
final repayment of all amounts owing by the Debtor
in respect of the Purchased Receivable, on trust
for the Trust; and
(b) the Seller Trust, the Trustee will hold each Other
Secured Liability and the balance (if any) of any
Receivables, Title Documents and Monetary Rights
on trust for the Seller Trust.
ENTITLEMENT
24.4 The beneficial interest in the Seller Trust Assets
relating to the Seller Trust vests absolutely in the
Seller.
DEALING WITH ASSETS
24.5 Subject to the terms of this deed:
(a) the Seller is entitled to deal with the Seller
Trust Assets in its absolute discretion;
(b) the Trustee must not deal with the Seller Trust
Assets of the Seller Trust other than in
accordance with the directions given to it by the
Seller from time to time; and
(c) the Trustee must act in accordance with any
direction given to it by the Seller in respect of
the Seller Trust Assets,
except if the Trustee considers that it would be illegal
for the Trustee to do so, would constitute a breach of
any document, agreement or law or would result in the
Trustee's exposure to a risk of personal liability where
the Trustee is not satisfied, in its absolute
discretion, that the Seller will be able to indemnify or
reimburse the Trustee in accordance with clause 24.11.
TREATMENT OF SHARED COLLATERAL
24.6 Where:
(a) a Purchased Receivable forms part of the Trust;
(b) an Other Secured Liability forms part of the
Seller Trust; and
(c) the Mortgage which secures the Receivable also, in
accordance with the terms of this deed, secures
the Other Secured Liability,
then all moneys received by the Seller, the Servicer,
the Trust Manager, or
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the Trustee or any receiver, receiver and manager or
attorney under or in relation to a Purchased Receivable
or any Other Secured Liability as a result of the
enforcement of a Purchased Receivable shall be applied
in accordance with the directions of the Trust Manager
and in the following order of priority:
(d) first, to meet all costs, charges and expenses of
the Trustee or the relevant mortgagee or any
receiver, receiver and manager or attorney
incurred in the enforcement of the Purchased
Receivable;
(e) second, in satisfaction of amounts owing under the
Purchased Receivable, to be held on the terms of
the Trust; and
(f) third, as to any excess, in satisfaction of the
Other Secured Liability.
For the avoidance of doubt, the Seller acknowledges
that:
(i) it may not take any action that would restrict or
prevent the transfer of, and its consent will not
be required to transfer, Receivables between
trusts, or from the Trust to any other person, in
accordance with this deed and the Master Trust
Deed or any other action which the Trustee may
take in respect of the Receivables in accordance
with this deed and the Master Trust Deed (provided
that the other trust, or the other person, to whom
the Receivables are transferred is made aware of
the existence of the interests of the Seller in
the Receivables);
(ii) it will not, and has no right to, take any action
which may affect or restrict the ability of the
Trustee or the Security Trustee (or any receiver,
receiver and manager or attorney appointed by any
of them) to take any enforcement action in respect
of a Receivable. The Seller will not demand, nor
will it receive (or be entitled to receive) any
payment in respect of an interest in the
Receivable until all payments referred to in
clauses 24.6(d) and (e) have been paid in full;
and
(iii) it may not direct the Trustee to take any action
with respect to a Seller Trust Asset that may
prejudice the interests of Unitholders and/or
Secured Creditors.
PROCEEDS
24.7 Subject to clause 24.6, the Seller may retain any
proceeds received by it from the Seller Trust Assets of
the Seller Trust.
24.8 Subject to clause 24.6, the Trustee must immediately pay
to or at the direction of the Seller any proceeds the
Trustee receives in respect of the Seller Trust Assets
of the Seller Trust. Any such payment constitutes a good
discharge of the Trustee.
CLAW-BACK
24.9 The Seller must immediately pay to or at the direction
of the Trustee any payments made erroneously by the
Trustee to the Seller under clause 24.8.
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DUTIES
24.10 (a) The Trustee owes no fiduciary or other duties to
the Seller in respect of the Seller Trust Assets
of the Seller Trust other than as set out in this
clause. The Trustee is not, in any event, liable
to the Seller for any loss to the Seller Trust
Assets of a Seller Trust as a result of acting on
the directions of the Seller or for not acting as
a result of the Seller failing to give a direction
to the Trustee. The only recourse of the Seller
against the Trustee in respect of the Seller Trust
will be for any loss suffered by the Seller to the
extent of the Trustee's fraud, gross negligence or
wilful default.
(b) The Trustee has no liability to the Unitholders of
the Trust or to the Secured Creditors of the Trust
for acting on the directions of the Seller (or for
not acting, where the Seller fails to give a
direction to the Trustee) in respect of the Seller
Trust Assets that are referable to the Trust.
INDEMNITY
24.11 Without limiting any other indemnity to which the
Trustee is entitled, and subject to clause 24.12, the
Seller indemnifies the Trustee against any cost,
expense, loss or liability incurred by the Trustee as a
result of any dealing with the Seller Trust Assets by
the Seller, the Trustee complying with directions given
to it by the Seller in respect of any Seller Trust
Assets or as a result of not acting if the Seller gives
it no direction. The Seller must pay or reimburse the
Trustee on demand for all expenses payable in connection
with this indemnity. The provisions of clauses 24.4,
24.8 and 24.10 to 24.23 (inclusive) of the Master Trust
Deed apply to the Seller Trust as if it were a "Trust"
as defined in the Master Trust Deed.
24.12 The indemnity given by the Seller in clause 24.11 will
not apply to the extent that the relevant cost, expense,
loss or liability arises as a result of the Trustee's
fraud, gross negligence or wilful default.
TERMINATION
24.13 Subject to this deed, the Seller Trust terminates when
the Trustee ceases to have any right to or interest in,
the Seller Trust Assets of the Seller Trust.
TRANSFER
24.14 If:
(a) any Purchased Receivables are transferred from the
Trust to another trust in accordance with this
deed or the Master Trust Deed; and
(b) a Seller Trust exists in respect of any such
Receivables,
then, subject to this deed, the Seller Trust in respect
of the relevant Receivables will cease to exist in
respect of the Trust from which those Receivables are
transferred and the Seller Trust established under this
deed to which those Receivables are transferred will
from that time apply to those Receivables. The consent
or approval of the Seller is not required in respect of
such a transfer.
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OTHER LIABILITIES
24.15 The Seller may provide additional or further financial
accommodation to a Debtor which is secured by a Shared
Security (other than any such financial accommodation
provided in respect of a Purchased Receivable) which has
been assigned to the Trust after that assignment has
taken place.
SHARED SECURITIES
24.16 (a) The Trustee must not, and the Trust Manager must
not direct the Trustee to, sell, transfer or grant
any Security Interest over any Shared Security
which is held by it partly as trustee for the
Trust and partly by it as trustee for the Seller
Trust without notifying the relevant transferee or
holder of the Security Interest of the existence
of the interest of the Seller as beneficiary of
the Seller Trust in that Shared Security.
(b) The Seller (as beneficiary of the Seller Trust)
has the power, in the case of a Shared Security
over Land, to lodge a caveat over any Shared
Security where the Trustee has, in breach of
clause 24.16(a) sold, transferred or granted any
Security Interest or the Seller reasonably
believes that the Trustee will sell, transfer or
grant any Security Interest.
25 SELLER PROVISIONS
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SELLER ADVANCES
25.1 If a Seller makes a further advance to a Debtor of a
Purchased Receivable (which is not a Redraw) and:
(a) (SEPARATE ACCOUNT AND TRUSTS) the Seller opens a
separate account in its records in relation to the
advance, the advance is considered for the
purposes of this deed to be an Other Secured
Liability and upon creation, the Trustee will
automatically hold the benefit of its right, title
and interest in such Other Secured Liability in
accordance with clause 24 of this deed;
(b) (ADVANCE LEADS TO SCHEDULED BALANCE BEING
EXCEEDED) the Seller records the further advance
as a debit to the account of that Debtor in its
records and the advance leads to the Scheduled
Balance in respect of that Purchased Receivable
being exceeded by more than one scheduled monthly
instalment, that Purchased Receivable is treated
as having been repaid in full by the payment, as
soon as practicable and within the Collection
Period in which the further advance was made, by
the Seller to the Trustee of the sum necessary to
repay that Purchased Receivable. Such payment from
the Seller must equal the Outstanding Balance plus
accrued but unpaid interest and fees owing in
respect of that Purchased Receivable before the
advance was made and must be paid by the Seller to
the Trustee and upon receipt included in
Collections; or
(c) (ADVANCE DOES NOT LEAD TO SCHEDULE BALANCE BEING
EXCEEDED) the Seller records the advance as a
debit to the account of that Debtor in its records
and the advance does not
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lead to the Scheduled Balance in respect of that
Purchased Receivable being exceeded by more than
one scheduled monthly instalment, the advance is
treated as an advance made pursuant to the terms
of the relevant Purchased Receivable and is a
Redraw and is to be reimbursed from Principal
Collections in accordance with clause 15.13(a).
RESTRICTIONS ON SELLER ADVANCES
25.2 The Seller shall not:
(a) make an advance pursuant to clause 25.1(b) in
relation to a Purchased Receivable which is a
Defaulted Housing Loan;
(b) make an advance pursuant to clause 25.1(c) if the
then aggregate of:
(i) all further advances made under clause
25.1(c) not repaid (calculated on the basis
that, for this purpose only, any payments on
account of principal in respect of a
Purchased Receivable first reduce the amount
of the further advances made under clause
25.1(c) in relation to that Purchased
Receivable); and
(ii) the then Redraw Principal Outstanding,
exceed, or will as a result of the further
advances exceed, the then Redraw Limit.
25.3 If a Seller makes an advance to a Debtor which results
in a breach of its obligations under clause 25.2, then:
(a) that further advance will, for all purposes, be
treated as if properly made in accordance with
clause 25.1(c); and
(b) the Seller must indemnify the Trustee against any
costs, damages or loss it suffers as a result of
such a breach (except to the extent to which such
costs, damages or loss is recoverable by the
Trustee pursuant to a Mortgage Insurance Policy).
SET-OFF
25.4 If the Seller exercises a right of set-off or
combination in respect of any Receivable, or if any
right of set-off is exercised against the Seller in
respect of any Receivable, the Seller must pay to the
Trustee, subject to any laws relating to preferences (or
the equivalent), the amount of, respectively, any
benefit accruing to the Seller as a result of the
exercise of its right of set-off or combination or the
amount of any right of set-off exercised against the
Seller.
SELLER DOWNGRADE
25.5 If at any time the Seller has a short term deposit
credit rating assigned by ▇▇▇▇▇'▇ which is lower than
P-1 (or such other rating as is agreed between the Trust
Manager, the Trustee, the Seller and ▇▇▇▇▇'▇), has a
short term deposit credit rating assigned by S&P which
is lower than A-1+ (or such other rating as is agreed
between the Trust Manager, the
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Trustee, the Seller and S&P) or has a long term
rating assigned by Fitch of lower than BBB (or
such other rating as is agreed between the Trust
Manager, the Trustee, the Seller and Fitch) then
(whether or not clause 25.8 has previously
applied) the Seller must:
(a) (MAKE A SELLER DEPOSIT): as a prepayment of its
obligations pursuant to clause 25.4, pay to the
Trustee the amount of any set-off that may
thereafter be exercised against the Seller,
deposit or maintain in an account ("SET-OFF
ACCOUNT") with an Eligible Bank (which may be the
Collection Account while the holder of the
Collection Account is rated in this manner) on
each Payment Date thereafter (after giving effect
to the payments to be made on that Payment Date)
an amount which is the greater of the following
("SELLER DEPOSIT"):
(i) in the case of a lower rating by S&P, the
amount from time to time agreed with S&P or,
failing agreement, the amount from time to
time specified by S&P, which is sufficient
in either case (as applicable) so as to not
result in an Adverse Rating Effect in
respect of S&P; or
(ii) in the case of a lower rating by ▇▇▇▇▇'▇ or
Fitch (as applicable), unless otherwise
agreed by ▇▇▇▇▇'▇ or Fitch (as the case may
be), an amount equal to 125% of the
aggregate of the amounts then standing to
the credit of the deposit accounts held by
Debtors with Housing Loans that comprise
part of the Purchased Receivables that do
not have a Waiver of Set-Off as at the
preceding Payment Date; or
(b) (OTHER ARRANGEMENTS): implement such other
arrangements as are from time to time agreed
between the Seller and S&P (in the case of a lower
rating by S&P), ▇▇▇▇▇'▇ (in the case of a lower
rating by ▇▇▇▇▇'▇) or Fitch (in the case of a
lower rating by Fitch) (and notified by the Seller
to the Trustee and the Trust Manager) so as to
ensure that an Adverse Rating Effect does not
result in respect of either S&P, ▇▇▇▇▇'▇ or Fitch
(as the case may be) if such other arrangements
cannot be so agreed with S&P, ▇▇▇▇▇'▇ or Fitch (as
the case may be), the Seller must comply with
clause 25.5(a) in relation to S&P, ▇▇▇▇▇'▇ or
Fitch (as the case may be),
provided that the Seller will not have any obligation
pursuant to this clause 25.5 if all Housing Loans which
are part of the Purchased Receivables which are Assets
of the Trust have a Waiver of Set-Off.
REDUCTION OR INCREASE OF SELLER DEPOSIT
25.6 If on a Payment Date to which clause 25.5 applies:
(a) (REDUCTION): the required amount of the Seller
Deposit pursuant to clause 25.5(a) is less than
the existing amount of the Seller Deposit, the
Trust Manager will direct the Trustee to repay
(and upon receipt of such direction the Trustee
will repay on that Payment Date) to the Seller
from the Set-Off
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Account the difference between the required amount
of the Seller Deposit on that Payment Date and the
existing amount of the Seller Deposit; and
(b) (INCREASE): the required amount of the Seller
Deposit pursuant to clause 25.5(a) is greater than
the existing amount of the Seller Deposit, the
Seller will deposit in the Set-Off Account on that
Payment Date the difference between the required
amount of the Seller Deposit on that Payment Date
and the existing amount of the Seller Deposit.
INTEREST ON SELLER DEPOSIT
25.7 On each Determination Date, the Trust Manager will
determine the amount (if any) that has been received in
the Collection Period just ended in respect of interest
that has been earned on the Set-Off Account and which is
attributable to the Seller Deposit (if any) deposited in
the Set-Off Account and will instruct the Trustee to pay
such interest to the Seller on the next Payment Date.
SELLER UPGRADE
25.8 If, following the application of clause 25.5(a), the
Seller is assigned (by the relevant Designated Rating
Agency or Designated Rating Agencies responsible for
triggering the application of the clause) a short term
deposit credit rating by ▇▇▇▇▇'▇ of at least P-1 (or
such other rating as is agreed between the Trust
Manager, the Trustee, the Seller and ▇▇▇▇▇'▇), a short
term deposit credit rating by S&P of at least A-1+ (or
such other rating as is agreed between the Trust
Manager, the Trustee, the Seller and S&P) or a long term
rating by Fitch of BBB (or such other rating as is
agreed between the Trust Manager, the Trustee, the
Seller and Fitch), or if alternative arrangements
referred to in clause 25.5(b) are agreed (with the
relevant Designated Rating Agency or Designated Rating
Agencies referred to therein) which do not require the
maintenance of a Seller Deposit, the Trust Manager will
direct the Trustee to repay (and within 2 Business Days
of receipt of such direction of the Trustee will repay)
to the Seller from the Set-Off Account the then Seller
Deposit (which has not previously been utilised in
accordance with clause 25.10(b)) together with all
accrued, but unpaid, interest on that amount determined
in accordance with clause 25.7.
TERMINATION OF TRUST OR AMENDMENTS TO RECEIVABLES
25.9 On the earlier of:
(a) the date upon which all Housing Loans that
comprise part of the Purchased Receivables which
are Assets of the Trust have a Waiver of Set-Off;
(b) the Termination Date; and
(c) the Payment Date immediately following the
occurrence of a Title Perfection Event,
the Trust Manager will direct the Trustee to repay (and
upon receipt of such direction the Trustee will repay)
to the Seller from the Set-Off Account the then Seller
Deposit (which has not previously been
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utilised in accordance with clause 25.10(b)) together
with all accrued, but unpaid, interest on that amount
determined in accordance with clause 25.7.
WITHDRAWALS FROM THE ACCOUNT
25.10 The Trust Manager may only direct the Trustee to, and
the Trustee may only, make withdrawals from the Seller
Deposit in the Set-Off Account as follows:
(a) (REPAY SELLER DEPOSIT) to repay to the Seller the
Seller Deposit pursuant to clauses 25.6(a), 25.8
and 25.9; or
(b) (MEET SELLER OBLIGATIONS) to meet any obligation
of the Seller (in that capacity) to make any
payment to the Trustee pursuant to clause 25.4 in
relation to the amount of any right of set-off
exercised against the Seller referred to therein,
provided that the Seller has failed to make such
payment within 20 Business Days of receipt by the
Seller of notice from the Trustee or the Trust
Manager that such payment is due and unpaid.
EXECUTED as a deed.
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SCHEDULE 1 REGISTER OF NOTE HOLDERS
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REGISTER OF NOTE HOLDERS
1 The Trustee must, in respect of the Trust, keep an up to
date Register of Note Holders in respect of that Trust.
The Trustee must enter into the Register of Note
Holders:
(a) the name of the Trust;
(b) the names and addresses of the Note Holders;
(c) the number of Notes held by each Note Holder;
(d) the date on which each Note Holder was first
registered in the Register of Note Holders;
(e) the date on which any person ceases to be a Note
Holder;
(f) the class of Note issued;
(g) the Class B Note Interest Rate payable in relation
to the Note;
(h) the Final Maturity Date (if applicable) in
relation to the Note;
(i) the account into which any payments to a Note
Holder are to be paid (if applicable);
(j) the Invested Amount and Stated Amount, if any, in
relation to the Note; and
(k) any other particulars the Trust Manager and the
Trustee agree are desirable or as required under
this deed.
TRUSTEE NOT LIABLE FOR MISTAKE
2 The Trustee is not liable for any mistake in the
Register of Note Holders or in any purported copy except
to the extent that the mistake is attributable to the
Trustee's own fraud, negligence or wilful default.
TRUST MANAGER ACCEPT CORRECTNESS
3 The Trust Manager is entitled to accept the correctness
of all information contained in the Register of Note
Holders and is not liable to any person for any error in
it.
INSPECTION
4 The Trust Manager, or Note Holders and their authorised
representatives may inspect that part of the Register of
Note Holders which relates to the Note Holder free of
charge and on reasonable notice. The Trustee shall give
a copy of the Register of Note Holders or part of it to
the Trust Manager within 3 Business Days of receipt of a
request from the Trust Manager.
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CHANGE IN INFORMATION
5 A Note Holder must advise the Trustee of any change to
the information noted in the Register of Note Holders in
respect of that Note Holder. Upon receipt of such
advice, the Trustee must promptly update the information
contained in the Register of Note Holders.
CLOSURE
6 The Trustee from time to time may close the Register of
Note Holders but no part of the Register of Note Holders
may be closed for more than 30 days in aggregate in any
calendar year.
NOTICE OF OTHER INTEREST
7 Except as otherwise provided in this deed, no notice of
any trust, whether express, implied or constructive,
shall be entered in the Register of Note Holders and
neither the Trustee nor the Trust Manager shall be
affected by or compelled to recognise (even when having
notice of it) any right or interest in any Note other
than the Note Holders' absolute right to the entirety of
them and the receipt by a Note Holder shall be a good
discharge to the Trustee and Trust Manager.
INFORMATION
8 The Trust Manager shall furnish the Trustee with such
information as the Trustee may reasonably require to
maintain the Register of Note Holders.
CLOSURE TO CALCULATE ENTITLEMENT
9 In order to calculate Note Holder entitlements and
interest entitlements, the Register of Note Holders may
be closed by the Trustee from 3:30 pm on such Business
Day as the Trust Manager may determine from time to time
(not exceeding 5 Business Days) and recommence at the
commencement of business on the Business Day immediately
following the day the Note Holder entitlements and any
coupon or interest are payable.
CONCLUSIVENESS OF REGISTER OF NOTE HOLDERS
10 An Acknowledgment is not a certificate of title as to
Notes and the Register of Note Holders is the only
conclusive evidence of title to Notes.
WORN OUT OR LOST ACKNOWLEDGMENT
11 If an Acknowledgment becomes worn out or defaced, then
upon production of it to the Trustee, a replacement will
be issued. If an Acknowledgment is lost or destroyed,
and upon proof of this to the satisfaction of the
Trustee and the provision of such indemnity as the
Trustee considers adequate, a replacement Acknowledgment
will be issued. A fee not exceeding $10 may also be
charged by the Trustee for the new Acknowledgment if it
so requires.
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RECTIFICATION OF REGISTER OF NOTE HOLDERS
12 If:
(a) an entry is omitted from the Register of Note
Holders;
(b) an entry is made in the Register of Note Holders
otherwise than in accordance with this deed;
(c) an entry wrongly exists in the Register of Note
Holders;
(d) there is an error or defect in any entry in the
Register of Note Holders; or
(e) a default is made or an unnecessary delay takes
place in entering into the Register of Note
Holders that any person has ceased to be the
holder of a Note or any other information,
the Trustee may rectify the same and the Trustee is not
liable for any loss, costs or liability incurred as a
result of any of the foregoing occurring.
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SCHEDULE 2 TRANSFER OF NOTES
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FORM OF TRANSFER
1 All transfers of Notes must be in writing in the form of
the transfer as agreed between the Trust Manager and the
Trustee ("TRANSFER FORM").
EXECUTION OF TRANSFER
2 Every Transfer Form must be duly completed, duly stamped
(if applicable), executed by the transferor and the
transferee and delivered to the Trustee together with
the Acknowledgment relating to the Notes to be
transferred. The transferor is deemed to remain the
owner of the Notes for all purposes until the name of
the transferee is entered into the Register of Note
Holders.
RESTRICTIONS ON TRANSFER
3 A Note Holder is only entitled to transfer any Notes if:
(a) the offer or invitation to the proposed transferee
by the Note Holder in relation to the Notes does
not require disclosure to investors in accordance
with Part 6D.2 of the Corporations Law; and
(b) the transfer would not otherwise breach any
restriction on transfer of the Notes contained in
the Master Trust Deed or this deed.
TRUSTEE MAY REFUSE TO REGISTER
4 The Trustee may refuse to register any Transfer Form:
(a) if it is not duly completed, executed and stamped
(if necessary);
(b) if it contravenes or fails to comply with the
terms of this deed; or
(c) if the transfer would result in a contravention of
or failure to observe the provisions of a law of a
state or territory of the Commonwealth of
Australia, or of the Commonwealth of Australia, or
any other relevant laws.
The Trustee is not bound to give any reason for refusing
to register any Transfer Form and its decision is final,
conclusive and binding. If the Trustee refuses to
register a Transfer Form, it must, as soon as
practicable following that refusal, send to the Note
Holder and to the parties seeking to take the transfer
of the Notes notice of that refusal. The Trustee has no
obligation to enquire whether a transfer of Notes
complies with the restrictions in this deed.
REGISTRATION OF TRANSFEREE
5 Subject to the terms of this schedule, the Trustee must
upon receipt of a Transfer Form register the transferee
in the
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Register of Note Holders. No fee is to be charged for
the registration of any Transfer Form.
NO TRANSFER IF REGISTER OF NOTE HOLDERS CLOSED
6 The Trustee may refuse to register any Transfer Form for
such period as the Register of Note Holders is closed
for any purpose.
RIGHTS AND OBLIGATIONS OF TRANSFEREE
7 Notes are negotiable. A transferee of Notes pursuant to
this deed has the following rights and obligations from
the time of registration:
(a) all those rights which the transferor previously
had; and
(b) all those obligations of a Note Holder as provided
by this deed as if the transferee was originally a
party to it.
WHEN TRANSFER EFFECTIVE
8 Subject to refusal by the Trustee to register a transfer
of Notes under this schedule, and subject to condition
9, a Transfer Form is deemed for the purposes of this
deed to take effect and be registered from the beginning
of the Business Day on which the Transfer Form was
received by the Trustee, except that if a Transfer Form
is received by the Trustee after 4.00 pm in Sydney, the
Transfer Form is deemed not to be effective until the
next Business Day (when the Register of Note Holders is
open) following its receipt by the Trustee.
TRANSFER FORM RECEIVED WHEN REGISTER OF NOTE HOLDERS CLOSED
9 Where a Transfer Form is received by the Trustee during
any period when the Register of Note Holders is closed
under this deed, or on any day which is not a Business
Day, the Transfer Form is deemed to be effective and
registered (subject to refusal by the Trustee to
register a transfer) from the beginning of the first
Business Day on which the Register of Note Holders is
re-opened.
ISSUE OF ACKNOWLEDGMENT
10 Whenever, in respect of a transfer, the Trustee is
required under this deed to register a person as a Note
Holder, the Trustee must issue by mail to the transferee
(at the address stated on the Transfer Form), or arrange
for the relevant Note Holder to collect from the
Trustee, within 10 Business Days of such registration,
an Acknowledgment to the transferee in respect of the
relevant Notes and, where some, but not all, Notes held
by a Note Holder have been transferred, issue a new
Acknowledgment (within 10 Business Days of the
registration) to the transferor as confirmation of the
balance of the Notes registered in the name of the
transferor.
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FORM OF ACKNOWLEDGMENT
11 Acknowledgments may be engraved, lithographed or printed
and must be signed, either manually, mechanically,
electronically, by facsimile or by other means agreed
between the Trust Manager and the Trustee, by an
Authorised Officer or other delegate of the Trustee.
PAYMENTS TO TRANSFEREE
12 Subject to this deed, upon entry of a transferee in the
Register of Note Holders, the transferee is ipso facto
entitled to receive any payments then due or which
become due to the Note Holder and the Trustee is
discharged for any such payment made to the transferee
and, without limiting the foregoing, whether or not the
entitlement to payment wholly or partly arose or accrued
prior to the transfer, except that where a transfer is
received after the closure of the Register of Note
Holders as referred to in this deed for the purpose of
determining entitlements to interest or principal, but
prior to the date upon which that interest or principal
is due to be paid in respect of the relevant Notes, then
that interest and principal must be paid to the
transferor and not the transferee.
MARKED TRANSFERS
13 The Trustee must, unless the parties otherwise agree,
provide marking services in the manner set out in this
schedule at the Trustee's offices or the offices of a
third party appointed pursuant to this deed in Sydney.
If the Trustee or a third party is requested by a Note
Holder to ▇▇▇▇ a Transfer Form, the Trustee or the third
party must so ▇▇▇▇ the Transfer Form. Until a period of
90 days (or such other period as determined by the Trust
Manager and the Trustee) has elapsed from the date any
Transfer Form is so marked, the Trustee or any third
party must not register any Transfer Form in respect of
such Notes except that marked Transfer Form.
RELIANCE ON DOCUMENTS
14 The Trustee is entitled to accept and assume the
authenticity and genuineness of any Transfer Form or any
other document unless the Trustee has reasonable grounds
to believe that it has not been duly executed. The
Trustee is not bound to enquire into the authenticity or
genuineness of any Transfer Form or other document, nor
incurs any liability for registering any Transfer Form
which is subsequently discovered to be a forgery or
otherwise defective, unless the Trustee had actual
notice of such forgery or defect at the time of
registration of such Transfer Form.
SPECIMEN SIGNATURES
15 The Trustee may (but need not) require each Note Holder
to submit specimen signatures (and, in the case of a
corporation, may require those signatures to be
authenticated by a secretary or director of such Note
Holder) of persons authorised to execute Transfer Forms
on behalf of such Note Holder and is entitled to assume
(until notified to the contrary) that such authority has
not been revoked.
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PERSONS ENTITLED ON TRANSMISSION
16 If a Note Holder dies, the Trustee and the Trust Manager
will recognise only the survivor or survivors (where the
deceased was a joint holder) or the administrators (in
all other cases) as having any title to the Notes
registered in the name of the deceased.
REGISTRATION ON TRANSMISSION
17 A person who becomes entitled to a Note (and gives
evidence of that entitlement to the Trust Manager in a
form satisfactory to the Trust Manager and the Trustee)
because of the death, insolvency, bankruptcy, insanity
or other disability of a Note Holder is entitled to be
registered as the Note Holder or to nominate some other
person to be registered as the Note Holder.
NOTICE OF ELECTION
18 To effect a registration under condition 17, the person
must give a written notice to the Trust Manager and the
Trustee requesting the registration. If the Notes are to
be registered in the name of a nominee of the person,
the person must also execute a transfer of the Notes to
the nominee. All the provisions of this deed relating to
the registration of transfers apply to such a notice or
transfer as if it were a transfer executed by a Note
Holder.
RIGHTS OF TRANSMITTEE PRIOR TO REGISTRATION
19 A person who becomes entitled to a Note because of the
death, insolvency, bankruptcy, insanity or other
disability of a Note Holder is entitled to receive and
may give a discharge for all money payable in respect of
the Notes.
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SCHEDULE 3 STEPDOWN PERCENTAGE
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The Stepdown Percentage on a Determination Date is determined as follows:
1. If the Stepdown Conditions (as defined below) are not satisfied on that
Determination Date, the Stepdown Percentage is 100%.
2. If the Stepdown Conditions are satisfied on that Determination Date, the
Stepdown Percentage is 100% unless the following apply:
(a) if the Payment Date immediately following that Determination Date
falls prior to 20 September 2004, the Stepdown Percentage is 50%;
(b) if:
(i) the Payment Date immediately following that Determination Date
falls on or after 20 September 2004 but prior to 20 September
2011; and
(ii) the Class B Available Support on that Determination Date is
equal to or greater than two times the Class B Required
Support on that Determination Date;
the Stepdown Percentage is 0%;
(c) if:
(i) paragraph (b) above does not apply;
(ii) the Payment Date immediately following that Determination Date
falls on or after 20 September 2006 but prior to 20 September
2011; and
(iii) the Class B Available Support on that Determination Date is
equal to or greater than the Class B Required Support on that
Determination Date,
then:
(i) if the Payment Date immediately following that Determination
Date falls on or after 20 September 2006 but prior to 20
September 2007, the Stepdown Percentage is 70%;
(ii) if the Payment Date immediately following that Determination
Date falls on or after 20 September 2007 but prior to 20
September 2008, the Stepdown Percentage is 60%;
(iii) if the Payment Date immediately following that Determination
Date falls on or after 20 September 2008 but prior to 20
September 2009, the Stepdown Percentage is 40%;
(iv) if the Payment Date immediately following that Determination
Date falls on or after 20 September 2009 but prior to 20
September 2010, the Stepdown Percentage is 20%; or
(v) if the Payment Date immediately following that Determination
Date falls on or after 20 September 2010 but prior to 20
September 2011, the Stepdown Percentage is 0%; or
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(d) if the Payment Date immediately following that Determination Date
falls on or after 20 September 2011, the Stepdown Percentage is 0%.
STEPDOWN CONDITIONS
The Stepdown Conditions are satisfied on a Determination Date if:
1. the following applies:
(a) the Class B Available Support on that Determination Date is equal to
or greater than two times the Class B Required Support on that
Determination Date;
(b) the Aggregate Stated Amount for the Class B Notes as at the
immediately preceding Determination Date is equal to or greater than
0.25% of the aggregate Initial Invested Amount of the Class B Notes
as at the Closing Date;
(c) either:
(i) the Average Arrears Ratio on that Determination Date does not
exceed 2% and the aggregate Carryover Principal Charge-Offs as
at the immediately preceding Determination Date does not
exceed 30% of the aggregate of Initial Invested Amounts of the
Class B Notes; or
(ii) the Average Arrears Ratio on that Determination Date does not
exceed 4% and the aggregate Carryover Principal Charge-Offs as
at the immediately preceding Determination Date does not
exceed 10% of the aggregate Initial Invested Amounts of the
Class B Notes; and
(d) the event referred to in Condition 7.3 of the Class A Note
Conditions has not occurred on or prior to the Determination Date
and is not expected to occur on or prior to the next Payment Date
thereafter, or
2. the following applies:
(a) that Determination Date falls on or after 20 September 2006;
(b) the Average Arrears Ratio on that Determination Date does not exceed
2%;
(c) the Aggregate Stated Amount of all the Notes (as at the immediately
preceding Determination Date) is greater than 10% of the A$
Equivalent aggregate of the Initial Invested Amount of all the
Notes;
(d) the Aggregate Stated Amount for the Class B Notes (as at the
immediately preceding Determination Date) is equal to or greater
than 0.25% of the aggregate Initial Invested Amount of the Class B
Notes as at the Closing Date; and
(e) the aggregate of all Carryover Principal Charge-Offs (as at the
immediately preceding Determination Date) does not exceed:
(i) if the Determination Date falls on or after 20 September 2006
but prior to 20 September 2007, 30% of the aggregate of the
Initial Invested Amounts of the Class B Notes;
(ii) if the Determination Date falls on or after 20 September 2007
but prior to 20 September 2008, 35% of the aggregate of the
Initial Invested Amounts of the Class B Notes;
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(iii) if the Determination Date falls on or after 20 September 2008
but prior to 20 September 2009, 40% of the aggregate of the
Initial Invested Amounts of the Class B Notes;
(iv) if the Determination Date falls on or after 20 September 2009
but prior to 20 September 2010, 45% of the aggregate of the
Initial Invested Amounts of the Class B Notes; or
(v) if the Determination Date falls on or after 20 September 2010,
50% of the aggregate of the Initial Invested Amounts of the
Class B Notes.
The following terms have these meanings in this schedule:
ARREARS RATIO means, on a Determination Date, the percentage of the
Outstanding Balance of the Housing Loans referable to all Purchased
Receivables in relation to which default in payment of any amount due has
occurred and has continued for a period of 60 days or more as at the last
day of the immediately preceding Collection Period to the total
Outstanding Balance of the Housing Loans referable to all Purchased
Receivables (calculated on the last day of the immediately preceding
Collection Period).
AVERAGE ARREARS RATIO means, on any Determination Date, the amount
(expressed as a percentage) calculated as follows:
SAR
AAR = ---
4
where:
AAR = the Average Arrears Ratio; and
SAR = the sum of the Arrears Ratios for the 4 Collection Periods
preceding that Determination Date,
provided that if on that Determination Date there has not yet been 4
Collection Periods the Average Arrears Ratio in relation to that
Determination Date means the amount (expressed as a percentage) calculated
as follows:
SAR
AAR = ---
N
where:
AAR = the Average Arrears Ratio; and
SAR = the sum of the Arrears Ratios for all of the Collection Periods
preceding the Determination Date; and
N = the number of Collection Periods preceding that Determination
Date.
CLASS B AVAILABLE SUPPORT in relation to a Determination Date means an
amount (expressed as a percentage) calculated as follows:
ASA(B)
CBAS = ---------
ASA + RL
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where:
CBAS = the Class B Available Support;
ASA(B) = the Aggregate Stated Amount of the Class B Notes on the
immediately preceding Determination Date;
ASA = the Aggregate Stated Amounts of all Notes on the immediately
preceding Determination Date; and
RL = the Redraw Limit on the immediately preceding Determination Date,
provided that, in respect of the first Determination Date, such amounts
will be calculated by reference to the Initial Invested Amount of the
relevant Classes of Notes and the RL will be the Redraw Limit on the
Closing Date.
CLASS B REQUIRED SUPPORT in relation to a Determination Date means the
amount (expressed as a percentage) calculated as follows:
IIAB
CBRS = ------
AIIA
where:
CBRS = the Class B Required Support;
IIAB = the aggregate Initial Invested Amount of the Class B Notes; and
AIIA = the aggregate of the A$ Equivalent of Initial Invested Amounts of
the Class A Notes, and the Initial Invested Amounts for the
Class B Notes.
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EXECUTION PAGE
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SIGNED SEALED AND DELIVERED by )
as attorney for PERPETUAL TRUSTEE )
COMPANY LIMITED under power of )
attorney dated )
)
in the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) )
)
................................ ) ................................
Address of witness ) By executing this deed the
) attorney states that the attorney
................................ ) has received no notice of
Occupation of witness ) revocation of the power of attorney
SIGNED SEALED AND DELIVERED by )
as attorney for ANZ CAPEL COURT )
LIMITED under power of attorney )
dated )
)
in the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) )
)
................................ ) ................................
Address of witness ) By executing this deed the
) attorney states that the attorney
................................ ) has received no notice of
Occupation of witness ) revocation of the power of attorney
93
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SIGNED SEALED AND DELIVERED by )
as attorney for P.T. LIMITED under )
power of attorney dated )
)
in the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) )
)
................................ ) ................................
Address of witness ) By executing this deed the
) attorney states that the attorney
................................ ) has received no notice of
Occupation of witness ) revocation of the power of attorney
SIGNED SEALED AND DELIVERED by )
as attorney for AUSTRALIA AND NEW )
ZEALAND BANKING GROUP LIMITED )
under power of attorney dated )
)
in the presence of: )
)
................................ )
Signature of witness )
)
................................ )
Name of witness (block letters) )
)
................................ ) ................................
Address of witness ) By executing this deed the
) attorney states that the attorney
................................ ) has received no notice of
Occupation of witness ) revocation of the power of attorney
94
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SIGNED, SEALED AND )
DELIVERED by )
as attorney for KINGFISHER )
SECURITISATION PTY LTD under )
power of attorney dated )
in the presence of: )
)
)
)
.............................. )
Signature of witness )
)
.............................. )
Name of witness (block letters) )
) ..............................
.............................. ) By executing this deed the
Address of witness ) attorney states that the
) attorney has received no
.............................. ) notice of revocation of the
Occupation of witness ) power of attorney
