Exhibit 4.5
Form of Security Trust Deed
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Perpetual Limited
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ME Portfolio Management Limited
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Perpetual Trustee Company Limited
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The Bank of New York
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SECURITY TRUST DEED -
SMHL GLOBAL FUND
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
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TABLE OF CONTENTS
Clause Page
1 DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
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1.2 Definitions from other documents 9
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1.3 Interpretation 9
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1.4 Benefit of Covenants Hereunder 10
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1.5 Transaction Document 10
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1.6 Knowledge of Issuing Trustee 10
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1.7 Knowledge of the Security Trustee 11
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1.8 Knowledge of the Note Trustee 11
2 ACCEPTANCE OF TRUST 11
2.1 Appointment of Security Trustee 11
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2.2 Duration of Trust 11
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2.3 Benefit of trusts 11
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2.4 Terms of Notes 11
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2.5 Interested Persons bound 11
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2.6 Resolution of conflicts 12
3 NOTE TRUSTEE 12
3.1 Capacity 12
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3.2 Exercise of rights 12
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3.3 Instructions or directions 13
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3.4 Payments 13
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3.5 Notices 13
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3.6 Limitation of liability of Note Trustee 13
4 CHARGE 13
4.1 Charge 13
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4.2 Priority 14
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4.3 Nature of Charge 14
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4.4 Crystallisation 14
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4.5 De-crystallisation 15
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4.6 Prospective liability 15
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4.7 Amount ultimately recoverable 16
5 REPRESENTATIONS AND WARRANTIES 16
5.1 By the Issuing Trustee 16
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5.2 By the Manager 17
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5.3 Survival of Representations and Warranties 18
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6 ISSUING TRUSTEE'S AND MANAGER'S COVENANTS 18
6.1 Covenants 18
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6.2 Negative Covenants 18
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6.3 Fixed Rate Mortgages 19
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6.4 Dealing in Accordance with Transaction Documents 20
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6.5 Notify Events of Default 20
7 EVENTS OF DEFAULT 21
7.1 Events of Default 21
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7.2 Rights of the Security Trustee upon Event of
Default 22
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7.3 Notify Events of Default 23
8 ENFORCEMENT 23
8.1 Power to Deal with the Charged Property Ceases 23
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8.2 Protection of Charged Property 23
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8.3 Power to Enforce 23
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8.4 No Obligation to Enforce 23
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8.5 Obligation to Convene Meeting 24
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8.6 Security Trustee to Act in Accordance with
Directions 24
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8.7 Security Trustee Must Receive Indemnity 25
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8.8 Limitation on Rights of Secured Creditors 25
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8.9 Immaterial waivers 25
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8.10 Acts pursuant to resolutions 26
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8.11 Overriding provision 26
9 RECEIVER 26
9.1 Appointment of Receiver 26
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9.2 Agency of Receiver 27
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9.3 Powers of Receiver 27
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9.4 Nature of Receiver's Powers 29
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9.5 Status of Receiver after commencement of winding-up 29
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9.6 Powers exercisable by the Security Trustee 29
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9.7 Notice of exercise of rights 30
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9.8 Termination of receivership and possession 30
10 SECURITY TRUSTEE'S POWERS 30
10.1 Act jointly 30
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10.2 Appointment of Attorney 30
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10.3 Purposes of appointment 31
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10.4 Delegation and substitution 31
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10.5 Security Trustee may make good default 31
11 PROTECTION OF PERSONS DEALING WITH SECURITY TRUSTEE OR
RECEIVER 32
11.1 No Enquiry 32
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11.2 Receipts 32
12 APPLICATION OF MONEYS 32
12.1 Priority of Payments 32
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12.2 Moneys Received 34
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12.3 Satisfaction of debts 34
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12.4 Investment of Funds 34
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12.5 Powers to Invest 35
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12.6 Limit of Security Trustee's Liability 35
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12.7 Amounts contingently due 35
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12.8 Notice of a subsequent Encumbrance 35
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12.9 [Payments into Euro Account] 36
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12.10 [Payments out of Euro Account] 36
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12.11 Payments into US$ Account 36
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12.12 Payments out of US$ Account 37
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12.13 Excluded amounts 37
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12.14 Proportionate Sharing 37
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12.15 Currency Indemnity 38
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12.16 Currency conversion 38
13 REMUNERATION AND INDEMNIFICATION OF SECURITY TRUSTEE 40
13.1 Fee 40
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13.2 Cessation of Fee 40
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13.3 Expenses 40
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13.4 Costs 40
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13.5 Indemnity 41
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13.6 Non-Discharge 41
14 SUPPLEMENTAL SECURITY TRUSTEE PROVISIONS 41
14.1 Additional Powers, Protections, etc. 41
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14.2 Security Trustee Not Precluded From Entering into
Contracts 43
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14.3 Duties of the Security Trustee 44
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14.4 Security Trustee Liable for Negligence etc. 44
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14.5 Reliance on Experts 44
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14.6 Information 44
15 RETIREMENT AND REMOVAL OF SECURITY TRUSTEE 44
15.1 Retirement 44
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15.2 Removal 45
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15.3 Appointment 45
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15.4 Retirement or Removal Effective 46
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15.5 Vesting of Property in Security Trustee 46
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15.6 Retention of Lien 46
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16 MEETINGS OF SECURED CREDITORS 46
16.1 Meetings Regulated by the Schedule 46
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16.2 Limitation on Security Trustee's Powers 47
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16.3 Security Trustee rights 47
17 CONTINUING SECURITY AND RELEASES 48
17.1 Liability Preserved 48
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17.2 Issuing Trustee's Liability Not Affected 48
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17.3 Waiver by Issuing Trustee 48
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17.4 No Notice or Enforcement 48
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17.5 No Liability for Loss 49
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17.6 No Liability to Account 49
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17.7 Indemnity Regarding Exercise of Powers 49
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17.8 No Conflict 49
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17.9 Contract Involving Conflict of Duty 49
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17.10 Benefit for Receiver etc. 50
18 ASSURANCE 50
18.1 Further Assurance 50
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18.2 Postponement or Waiver of Encumbrances 50
19 PAYMENTS 50
19.1 Moneys Repayable as Agreed or on Demand 50
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19.2 No Set-Off or Deduction 51
20 DISCHARGE OF THE CHARGE 51
20.1 Release 51
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20.2 Contingent Liabilities 51
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20.3 Charge Reinstated 51
21 AMENDMENT 52
21.1 Amendment by Security Trustee 52
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21.2 Amendment with Consent 52
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21.3 Distribution of Amendments 53
22 EXPENSES, STAMP DUTIES AND REGISTRATION 53
22.1 Expenses 53
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22.2 Stamp Duties 53
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22.3 Registration 53
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22.4 Goods and services tax in relation to the Security
Trustee 54
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22.5 Indemnity 54
23 GOVERNING LAW AND JURISDICTION 55
23.1 Governing Law 55
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23.2 Jurisdiction 55
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24 NOTICES 55
24.1 Service of Notices 55
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24.2 Addresses 56
25 MISCELLANEOUS 57
25.1 Assignments 57
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25.2 Certificate of Security Trustee 57
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25.3 Continuing Obligation 57
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25.4 Settlement Conditional 57
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25.5 No Merger 57
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25.6 Interest on Judgment 58
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25.7 No Postponement 58
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25.8 Severability of Provisions 58
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25.9 Remedies Cumulative 58
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25.10 Waiver 58
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25.11 Consents and Approvals 58
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25.12 Written Waiver, Consent and Approval 58
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25.13 Time of Essence 59
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25.14 Moratorium Legislation 59
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25.15 Debit Accounts 59
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25.16 Binding on Each Signatory 59
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25.17 Counterparts 59
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25.18 Certificate of amount of Secured Moneys etc 59
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25.19 Attorneys 60
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25.20 Know Your Customer 60
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25.21 Compliance with Regulation AB 60
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25.22 Direction of claims by the Manager 66
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25.23 Direction of defence of claims 67
26 TRUSTEES' LIABILITY 67
26.1 Limitation on Issuing Trustee's liability 67
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26.2 Limitation on Security Trustee's liability 69
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26.3 Rights against Charged Property Preserved 69
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26.4 Waiver of Personal Liability 69
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26.5 Restricted remedies 69
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26.6 Wilful Default of the Issuing Trustee 70
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26.7 Wilful default of the Security Trustee 71
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26.8 Wilful default of the Note Trustee 71
27 PRIVACY 72
SCHEDULE 1 - MEETINGS PROCEDURES 74
SCHEDULE 2 - REPORT ON ASSESSMENT OF COMPLIANCE WITH REGULATION AB
SERVICING CRITERIA 83
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SCHEDULE 3 - SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE 84
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DATE [ ]
PARTIES
PERPETUAL LIMITED ABN 86 ▇▇▇ ▇▇▇ ▇▇▇ of Level 12, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ in its capacity as trustee of the Securitisation Fund
(ISSUING TRUSTEE)
ME PORTFOLIO MANAGEMENT LIMITED ABN 79 005 964 134 of Level 16, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ (MANAGER)
PERPETUAL TRUSTEE COMPANY LIMITED ABN 42 000 001 007 of Level 12, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ (SECURITY TRUSTEE)
THE BANK OF NEW YORK of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (NOTE TRUSTEE)
RECITALS
A. The Issuing Trustee is the trustee, and the Manager is the manager,
of the Securitisation Fund.
B. Under the terms of the Master Trust Deed, the Issuing Trustee is
authorised to enter into this Deed to charge the assets of the
Securitisation Fund to secure payment of the Secured Moneys and the
due and punctual performance of its obligations under the Secured
Documents to the Secured Creditors.
C. The Security Trustee has agreed to act as trustee for the benefit of
the Secured Creditors on the terms and conditions and with the
powers and authorities contained in this Deed.
THIS DEED WITNESSES
that in consideration of, among other things, the mutual promises
contained in this Deed, the parties agree:
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1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed unless the context indicates a contrary intention:
ATTORNEY means an attorney appointed under this Deed.
CHARGE means the charge created by this Deed.
CHARGED PROPERTY means:
(a) all of the present and future property, rights, entitlements,
benefits and money from time to time forming part of the
Securitisation Fund pursuant to the terms of the Master Trust
Deed, including, but not limited to, the property, rights,
entitlements and benefits of the Issuing Trustee as trustee of
the Securitisation Fund in the Fund Property, but excluding
any property, rights, entitlements, benefits and money located
or taken for the
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
purposes of any legislation of a State or Territory of
Australia with respect to stamp duties to be located in a
State or Territory other than New South Wales, the Australian
Capital Territory or the Northern Territory;
(b) all property, rights, entitlements, benefits and money of the
Issuing Trustee as trustee of the Securitisation Fund acquired
after the date of this deed, including, but not limited to,
property, rights, entitlements and benefits of the Issuing
Trustee as trustee of the Securitisation Fund in the Fund
Property, but excluding:
(1) the Future Property; and
(2) all property, rights, entitlements, benefits and money
which form part of the Charged Property under paragraph
(a) above; and
(c) all Future Property of the Chargor as at 12 noon on the last
day of the Relevant Period.
CHARGE RELEASE DATE means, subject to clause 20.3, the date the
Security Trustee discharges the Charge and this Deed pursuant to
clause 20.1.
COMMISSION has the meaning given to it in the Notes Supplementary
Bond Terms Notice.
CURRENCY SWAP means each:
(a) [Euro Currency Swap;] [and]
(b) US Currency Swap.
CURRENCY SWAP PROVIDER means each:
(a) [Euro Currency Swap Provider;] [and]
(b) US Currency Swap Provider.
ENCUMBRANCE means an interest or power:
(a) reserved in or over an interest in any asset including, but
not limited to, any retention of title; or
(b) created or otherwise arising in or over any interest in any
asset under a bill of sale, mortgage, charge, lien, pledge,
trust or power,
by way of, or having similar commercial effect to, security for the
payment of a debt, any other monetary obligation or the performance
of any other obligation, and includes, but is not limited to, any
agreement to grant or create any of the above.
ENHANCEMENT means each Enhancement (as defined in the Master Trust
Deed) entered into by the Issuing Trustee, except for any Mortgage
Insurance Policy.
ENHANCEMENT PROVIDER means, in relation to an Enhancement, the
person who has entered into or agreed to make that Enhancement
available to the Issuing Trustee.
[EURO CURRENCY SWAP has the same meaning as in the Notes
Supplementary Bond Terms Notice.]
[EURO CURRENCY SWAP PROVIDER has the same meaning as in the Notes
Supplementary Bond Terms Notice.]
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EVENT OF CRYSTALLISATION means an event upon which the Charge
crystallises pursuant to clause 4.4.
EVENT OF DEFAULT means each of the events set out or referred to in
this Deed as an Event of Default.
EXTRAORDINARY RESOLUTION in relation to the Voting Secured Creditors
means:
(a) a resolution passed at a meeting of the Voting Secured
Creditors duly convened and held in accordance with the
provisions contained in this Deed by a majority consisting of
not less than 75% of the votes cast thereat; or
(b) a resolution in writing pursuant to clause 15 of the Schedule
signed by all the Voting Secured Creditors.
FINANCIAL INDEBTEDNESS means moneys borrowed or raised (including
rentals under financial leases) and interest thereon; any liability
under any bill of exchange, debenture, note or other security or
under any acceptance credit facility; any liability in respect of
the acquisition cost of assets or services to the extent payable
after the time of acquisition or possession thereof; any guarantee,
indemnity or other assurance against financial loss in respect of
any moneys borrowed or raised, interest or liabilities; and any
other arrangement which achieves in substance the same or equivalent
effect as any of the foregoing.
FUND PROPERTY means:
(a) all Loans, Mortgages and Related Securities;
(b) all Interest ▇▇▇▇▇▇;
(c) all Enhancements;
(d) all bank accounts;
(e) all other Authorised Investments;
(f) all computer software and models, accounting records,
financial statements, vouchers and other similar documents
relating in any way to the Securitisation Fund;
(g) all Redraw Funding Facilities;
(h) all Top-Up Funding Facilities;
(i) all Payment Funding Facilities; and
(j) all Title Documents.
FUTURE PROPERTY means land in Western Australia, other than a
security interest, acquired within 12 months after the date of this
deed.
The terms "land" and "security interest" referred to in the
definition of Future Property have the same meanings as in Section
87 of the Western Australian Stamp Act 1921.
GST has the same meaning as in the A New Tax System (Goods and
Services) Act 1999.
INSOLVENCY EVENT means in respect of a person (and, in the case of
the Issuing Trustee, excluding in its personal capacity):
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(a) an application or order is made for the bankruptcy, winding up
or dissolution of the person other than a frivolous or
vexatious application or an application which is not stayed
within 21 days;
(b) a resolution is passed, or steps are taken to pass a
resolution, for the winding up or dissolution of the person,
otherwise than for the purpose of an amalgamation or
reconstruction while solvent on terms previously approved by
the Security Trustee;
(c) the person is otherwise wound up or dissolved or made
bankrupt;
(d) a liquidator, provisional liquidator, official manager,
administrator, receiver, receiver and manager, trustee in
bankruptcy or any similar official is appointed to the person
or any of the assets of the person, but in the case of a
receiver or receiver and manager only, in respect of the
assets of the Fund, or any steps are taken for any such
appointment and such appointment is not revoked within 21
days;
(e) the person suspends payment of its debts generally;
(f) the person is, or becomes unable to pay its debts when they
are due or is, or becomes, unable to pay its debts within the
meaning of the Corporations Act;
(g) the person enters into, or resolves to enter into, any
arrangement, composition or compromise with, or assignment for
the benefit of, its creditors or any class of them;
(h) the person ceases or threatens to cease, to carry on business;
(i) a notice under section 601AB(3) of the Corporations Act is
given to, or in respect of, the person;
(j) the person is, or becomes, or under the Corporations Act is
presumed to be, insolvent;
(k) the person takes any steps to obtain, or is granted protection
from its creditors or any class of them, under applicable
legislation;
(l) anything analogous or having substantially similar effect, to
any of the above occurs under or in respect of any existing or
future law.
INTERESTED PERSON means a collective reference to the Issuing
Trustee, the Bondholders, the Beneficiaries of the Securitisation
Fund, the Manager and all persons claiming through them and
"Interested Person" means a several reference to all Interested
Persons.
LIQUIDITY NOTEHOLDER means a Bondholder (as defined in the Master
Trust Deed) of an SMHL Global Fund [ ]-[ ] Liquidity Note.
MASTER TRUST DEED means the Master Trust Deed for the Superannuation
Members' Home Loans Trusts, dated 4 July 1994 made between the
Manager (as manager) and the Issuing Trustee (as trustee), as
amended and restated from time to time.
MORTGAGE DOCUMENTS means all original Mortgages, Loan agreements,
Related Securities and documents amending or varying the foregoing
and all certificates of title to Land affected by any Mortgage and
all searches, certificates, results of
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
statutory enquiries, answers to requisitions on title, opinions,
correspondence, accounts and other supporting materials provided to
or held by the Issuing Trustee or any agent or servant thereof in
relation to every Mortgage, Loan agreement or Related Security.
NOTEHOLDER SECURED CREDITOR means together:
(a) the Note Trustee on behalf of the Class A Offered Noteholders
save that where the Note Trustee has become bound to take
steps and/or proceed under this Deed and fails to do so within
a reasonable period of time and such failure is continuing,
the Class A Offered Noteholders and then only to the extent
permitted by Australian law;
(b) [each Class A[ ] Noteholder;] and
(c) each Class B Noteholder.
NOTES means Class A Notes, Class B Notes and Liquidity Notes.
NOTES SUPPLEMENTARY BOND TERMS NOTICE means the Supplementary Bond
Terms Notice dated on or about the date of this Deed in respect of
the Securitisation Fund and providing the terms of issue of Class A
Notes and Class B Notes and executed by, among others, the Issuing
Trustee, the Manager and the Security Trustee.
OUTSTANDING PRINCIPAL BALANCE has the same meaning as in the Notes
Supplementary Bond Terms Notice.
PAYMENT FUNDING FACILITY means any facility provided to the Issuing
Trustee to enable the Issuing Trustee to support or fund payments
required or to be made by the Issuing Trustee in respect of any
Enhancement or Hedge or as otherwise provided in that facility.
PAYMENT FUNDING FACILITY PROVIDER means, in relation to a Payment
Funding Facility, the person who has entered into or agreed to make
that Payment Funding Facility available to the Issuing Trustee.
POWER means any right, power, authority, discretion or remedy
conferred on the Security Trustee, Receiver or Attorney by any
Secured Document or any applicable law.
PRIOR INTEREST means the lien over, and right of indemnification
from, the Charged Property held by the Issuing Trustee under, and
calculated in accordance with, the Master Trust Deed for paid but
not reimbursed, or for unpaid, Expenses (other than the Secured
Moneys) in relation to the Securitisation Fund.
RECEIVER means a receiver appointed by the Security Trustee
hereunder and includes a receiver and manager and where more than
one person has been appointed as receiver or receiver and manager
each such person and also any servant agent or delegate of any such
receiver or receiver and manager.
REDRAW FACILITY PROVIDER means, in relation to a Redraw Funding
Facility, the person who has entered into or agreed to make that
Redraw Funding Facility available to the Issuing Trustee.
REDRAW FUNDING FACILITY means any facility provided to the Issuing
Trustee to enable the Issuing Trustee to fund payments under a Loan
Redraw Facility.
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REGULATION AB has the meaning given to it in the Notes Supplementary
Bond Terms Notice.
RELATED BODY CORPORATE has the meaning given to it in section 9 of
the Corporations Act.
RELEVANT PERIOD means the period which commences on and includes the
date of this deed and ends on and includes the earlier of:
(a) the date 12 months and 1 day after the date of this deed; and
(b) the date (if any) on which an Event of Default occurs.
REPAYMENT DATE means the date on which the Total Outstanding
Principal Balance is zero or will be zero following any payments
made on the relevant Payment Date.
REPRESENTATIVE means:
(a) in the case of a Class A Offered Noteholder, the Note Trustee
as its representative or any other person appointed as a proxy
for the Class A Offered Noteholders in accordance with this
Deed);
(b) in the case of any other Secured Creditor, a person who is
appointed as a proxy for that Secured Creditor pursuant to
clause 9 of the Schedule; and
(c) without limiting the generality of paragraph (a), in the case
of a Voting Secured Creditor which is a body corporate, a
person who is appointed pursuant to clause 10 of Schedule 1 by
the Secured Creditor.
SECURED CREDITOR means:
(a) each Payment Funding Facility Provider;
(b) the Security Trustee in relation to its rights (held on its
own right or for the benefit of other Secured Creditors) under
this Deed;
(c) any Class A Offered Noteholder in relation to its rights under
the Class A Offered Notes held by it;
(d) [any Class A[ ] Noteholder in relation to its rights under the
Class A[ ] Notes held by it;]
(e) any Class B Noteholder in relation to its rights under the
Class B Notes held by it;
(f) the Manager in relation to its rights as manager under the
Secured Documents for the Securitisation Fund;
(g) each Enhancement Provider in relation to its rights under each
Enhancement;
(h) each Interest Hedge Provider in relation to its rights under
each Interest Hedge;
(i) the Note Trustee in relation to its rights (held on its own
right or for the benefit of any Class A Offered Noteholder)
under the Secured Documents;
(j) each Paying Agent, the Note Registrar, the Calculation Agent
[and the Class A[ ] Irish Paying Agent] in relation to its
rights under the Secured Documents;
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
(k) the Lead Manager in relation to its rights under the Secured
Documents;
(l) each Currency Swap Provider in relation to its rights under
its Currency Swap;
(m) each Redraw Facility Provider;
(n) each Top-Up Funding Facility Provider; and
(o) any Liquidity Noteholder in relation to its rights under
Liquidity Notes held by it.
SECURED DOCUMENTS means each of:
(a) this Deed;
(b) the Master Trust Deed, insofar as it relates to the
Securitisation Fund;
(c) the Mortgage Origination and Management Agreement, insofar as
it relates to the Securitisation Fund;
(d) each Note;
(e) each Supplementary Bond Terms Notice;
(f) each Enhancement;
(g) each Hedge;
(h) the Note Trust Deed;
(i) each Payment Funding Facility;
(j) each Redraw Funding Facility;
(k) each Top-Up Funding Facility;
(l) each Currency Swap; and
(m) the Committed Bond Subscription Agreement.
SECURED MONEYS means all debts and monetary liabilities of the
Issuing Trustee to Secured Creditors on any account under or in
relation to any Secured Document and in any capacity and
irrespective of whether the debts or liabilities:
(a) are present or future;
(b) are actual, prospective, contingent or otherwise;
(c) are at any time ascertained or unascertained;
(d) are owed or incurred by or on account of the Issuing Trustee
alone, or severally or jointly with any other person;
(e) are owed to or incurred for the account of the Security
Trustee, a Secured Creditor or any person whose account the
Security Trustee is owed or incurs it, alone, or severally or
jointly with any other person;
(f) are owed to any other person as agent (whether disclosed or
not) for or on behalf of the Security Trustee, a Secured
Creditor or any person whose account the Security Trustee is
owed or incurs it;
(g) are owed or incurred as principal, interest, fees, charges,
Taxes, damages (whether for breach of contract or tort or
incurred on any other ground), losses, costs or expenses, or
on any other account;
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
(h) are owed to or incurred for the account of the Security
Trustee, a Secured Creditor or any person whose account the
Security Trustee is owed or incurs it, directly or as a result
of:
(1) the assignment to the Security Trustee, a Secured
Creditor or any person whose account the Security
Trustee is owed or incurs it, of any debt or liability
of the Issuing Trustee; or
(2) any other dealing with any such debt or liability;
(i) are owed to or incurred for the account of the Security
Trustee, a Secured Creditor or any person whose account the
Security Trustee is owed or incurs it, before the date of this
Deed, before the date of any assignment of this Deed to the
Security Trustee, a Secured Creditor or any person whose
account the Security Trustee is owed or incurs it, by any
other person or otherwise; or
(j) comprise any combination of the above.
SECURITISATION FUND means the Securitisation Fund constituted under
the Master Trust Deed known as SMHL Global Fund [ ]-[ ].
SUPPLEMENTARY BOND TERMS NOTICE means each Supplementary Bond Terms
Notice dated or about the date of this Deed in respect of the
Securitisation Fund.
STATUTE means any legislation now or hereafter in force of the
Parliament of the Commonwealth of Australia or of any State or
Territory thereof and any rule regulation ordinance by-law statutory
instrument order or notice now or hereafter made under such
legislation.
TITLE DOCUMENTS means all certificates, documents, instruments,
indicia of title or other evidence of the right, title, interest and
estate of the Issuing Trustee in the items referred to in paragraphs
(a) - (c) (inclusive) of the definition of "Charged Property" in
this clause 1.1, including without limiting the generality of the
foregoing, all Mortgage Documents.
TOP-UP FUNDING FACILITY means any facility provided to the Issuing
Trustee to enable the Issuing Trustee to fund payments under a
Top-up Loan.
TOP-UP FUNDING FACILITY PROVIDER means, in relation to a Top-up
Funding Facility, the person who has entered into or agreed to make
that Top-up Funding Facility available to the Issuing Trustee.
TOP-UP LOAN has the meaning given to it under the Notes
Supplementary Bond Terms Notice.
US CURRENCY SWAP has the same meaning as in the Notes Supplementary
Bond Terms Notice.
US CURRENCY SWAP PROVIDER has the same meaning as in the Notes
Supplementary Bond Terms Notice.
VOTING SECURED CREDITOR means:
(a) with respect only to the enforcement of the security under
this Deed, for so long as the Secured Moneys of the Class A
Noteholders and the Class B Noteholders each calculated and
expressed in the A$ Equivalent are 75%
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or more of total Secured Moneys calculated and expressed in
the A$ Equivalent, the Noteholder Secured Creditors alone; and
(b) at any other time (subject to clause 16.3)
(1) the Note Trustee, acting on behalf of the Class A
Offered Noteholders under the Note Trust Deed and clause
3 or, if the Note Trustee has become bound to take steps
and/or to proceed hereunder and fails to do so within a
reasonable time and such failure is continuing, the
Class A Offered Noteholders and then only to the extent
permitted by the Australian law; and
(2) each other Secured Creditor (other than a Class A
Offered Noteholder).
1.2 DEFINITIONS FROM OTHER DOCUMENTS
(a) Subject to clause 1.1 each expression used herein that is
defined in the Master Trust Deed (as amended by the Notes
Supplementary Bond Terms Notice) and the Notes Supplementary
Bond Terms Notice has the same meaning when used in this Deed
unless the context otherwise requires or unless otherwise
defined in this Deed.
(b) Subject to clause 21, no change to the Master Trust Deed or
any other document after the date of this Deed will change the
meaning of terms used in this Deed or adversely affect the
rights of the Security Trustee under this Deed unless the
Security Trustee (subject to clause 16.3) with the prior
written consent of the Noteholder Secured Creditors has agreed
to the changes.
1.3 INTERPRETATION
In this Deed unless the context indicates a contrary intention:
(a) the expression "person" includes an individual, a corporation
and a Government Agency;
(b) the expression "power" in relation to the Security Trustee or
a Receiver includes all powers authorities rights remedies
privileges and discretions conferred upon the Security Trustee
or the Receiver by this Deed, by any other deed agreement
document or instrument by any Statute or otherwise by law;
(c) a reference to any party includes that party's executors,
administrators, successors, substitutes and assigns, including
any person taking by way of novation;
(d) a reference to this Deed, the Master Trust Deed, each
Supplementary Bond Terms Notice or to any other deed agreement
document or instrument includes respectively this Deed, the
Master Trust Deed or such other deed agreement document or
instrument as amended, novated, supplemented, varied or
replaced from time to time;
(e) a reference to any Statute or to any section or provision
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thereof includes any statutory modification or re-enactment or
any statutory provision substituted therefor and all
ordinances, by-laws regulations and other statutory
instruments issued thereunder;
(f) a reference to a Related Body Corporate shall include a
corporation which is or becomes a Related Body Corporate
during the currency of this Deed;
(g) words importing the singular shall include the plural (and
vice versa) and words denoting a given gender shall include
all other genders;
(h) headings are for convenience only and shall not affect the
interpretation hereof;
(i) a reference to a clause is a reference to a clause of this
Deed;
(j) a reference to the Schedule is a reference to the Schedule to
this Deed;
(k) where any word or phrase is given a defined meaning any other
part of speech or other grammatical form in respect of such
word or phrase has a corresponding meaning;
(l) where the day on or by which any sum is payable hereunder or
any act matter or thing is to be done is a day other than a
Banking Day such sum shall be paid and such act matter or
thing shall be done on the immediately succeeding Banking Day;
(m) all accounting terms used in this Deed shall have the same
meaning ascribed to those terms under accounting principles
and practices generally accepted in Australia from time to
time;
(n) a reference to the Issuing Trustee is a reference to the
Issuing Trustee in its capacity as trustee of the
Securitisation Fund, and in no other capacity; and
(o) a reference to the property, business, assets, undertaking or
money of the Issuing Trustee is a reference to the property,
business, assets, undertaking or money of the Issuing Trustee
in the capacity referred to in paragraph (n) only.
1.4 BENEFIT OF COVENANTS HEREUNDER
Unless the context indicates a contrary intention, the Security
Trustee shall hold the covenants, undertaking and other obligations
and liabilities of the Issuing Trustee and the Manager hereunder on
trust for the benefit of the Secured Creditors on the terms and
conditions of this Deed.
1.5 TRANSACTION DOCUMENT
This is a Transaction Document for the purposes of the Master Trust
Deed.
1.6 KNOWLEDGE OF ISSUING TRUSTEE
In relation to the Securitisation Fund, the Issuing Trustee will
only be considered to have knowledge or notice of or be aware of any
matter or thing if the Issuing Trustee has knowledge, notice or
awareness of that matter or thing by virtue of the actual notice or
awareness of the officers or employees of the Issuing Trustee who
have day to day responsibility for the administration of the
Securitisation Fund.
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1.7 KNOWLEDGE OF THE SECURITY TRUSTEE
In relation to the Securitisation Fund, the Security Trustee will
only be considered to have knowledge or notice of or be aware of any
matter or thing if the Security Trustee has knowledge, notice or
awareness of that matter or thing by virtue of the actual notice or
awareness of the officers or employees of the Security Trustee who
have day to day responsibility for the administration of the trust
created by this Deed.
1.8 KNOWLEDGE OF THE NOTE TRUSTEE
In relation to the Securitisation Fund, the Note Trustee will only
be considered to have knowledge or notice of or be aware of any
matter or thing if the Note Trustee has knowledge, notice or
awareness of that matter or thing by virtue of the actual notice or
awareness of the officers or employees of the Note Trustee who have
day to day responsibility for the administration of the trust
created by this Deed.
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2 ACCEPTANCE OF TRUST
2.1 APPOINTMENT OF SECURITY TRUSTEE
The Security Trustee is hereby appointed, and by its execution
hereof accepts its appointment, as trustee on behalf of, and for,
the Secured Creditors on the terms and conditions of this Deed.
2.2 DURATION OF TRUST
The trusts established pursuant to this Deed shall commence on the
date hereof and shall terminate on the first to occur of:
(a) the Charge Release Date; and
(b) the 80th anniversary of the date of this Deed.
2.3 BENEFIT OF TRUSTS
Each Secured Creditor is entitled to the benefit of the trusts
created by this Deed on the terms and conditions herein contained.
2.4 TERMS OF NOTES
All Notes relating to the Securitisation Fund shall be issued with
the benefit of, and subject to, the provisions of this Deed, the
Master Trust Deed, each Supplementary Bond Terms Notice, the Note
Trust Deed and Conditions for the Class A Offered Notes.
2.5 INTERESTED PERSONS BOUND
The provisions of this Deed and the Master Trust Deed shall be
binding upon every Interested Person and the Security Trustee.
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2.6 RESOLUTION OF CONFLICTS
(a) The Security Trustee must, as regards the exercise of all
discretions vested in it by this Deed and all other
Transaction Documents, except where expressly provided
otherwise, have regard to the interest of the Secured
Creditors.
(b) Subject to the provisions of this Deed, if there is at any
time, with respect to enforcement, a conflict between a duty
owed by the Security Trustee to any Secured Creditor or class
of Secured Creditors, and a duty owed by it to another Secured
Creditor or class of Secured Creditors, the Security Trustee
must give priority to the interests of the Noteholders (which,
in the case of Class A Offered Noteholders, shall be
determined by the Note Trustee acting on their behalf (as
provided in clause 16.3) or the Class A Offered Noteholders,
as provided herein and in the Note Trust Deed, which, in the
case of [Class A[ ] Noteholders and] Class B Noteholders,
shall be determined by the [Class A[ ] Noteholders and] Class
B Noteholders as provided herein, and which, in the case of
the Liquidity Noteholders, shall be determined by the
Liquidity Noteholders as provided herein).
(c) Subject to the provisions of this Deed (other than paragraph
(b)), the Security Trustee must give priority to the interests
only of the Class A Noteholders if, in the Security Trustee's
opinion (in relation to which in determining the interests of
the Class A Offered Noteholders, the Security Trustee may rely
on a determination of the Note Trustee) there is a conflict
between the interests of the Class A Noteholders and the
interests of the Class B Noteholders or other Secured
Creditors.
(d) Provided that the Security Trustee acts in accordance with
this clause 2.6 and in good faith, it shall not incur any
liability to any Secured Creditor for giving effect to
paragraph (b) or (c).
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3 NOTE TRUSTEE
3.1 CAPACITY
The Note Trustee is a party to this Deed in its capacity as trustee
for the Class A Offered Noteholders from time to time under the Note
Trust Deed. Notwithstanding any other provision of this Deed, this
Deed becomes effective against the Note Trustee only upon execution
of the Note Trust Deed.
3.2 EXERCISE OF RIGHTS
Except as otherwise provided in this Deed and in the Note Trust
Deed:
(a) the rights, remedies and discretions of the Class A Offered
Noteholders under this Deed including all rights to vote or
give instructions or consent to the Security Trustee and to
enforce any undertakings or warranties under this Deed, may
only be exercised by the Note Trustee on behalf of the Class A
Offered Noteholders in accordance with the Note Trust Deed;
and
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(b) the Class A Offered Noteholders may only exercise enforcement
rights in respect of the Charged Property through the Note
Trustee and only in accordance with this Deed and the Note
Trust Deed.
3.3 INSTRUCTIONS OR DIRECTIONS
The Security Trustee may rely on any instructions or directions
given to it by the Note Trustee as being given on behalf of all
Class A Offered Noteholders from time to time and need not inquire
whether the Note Trustee or the Class A Offered Noteholders from
time to time have complied with any requirements under the Note
Trust Deed or as to the reasonableness or otherwise of the Note
Trustee.
3.4 PAYMENTS
Any payment to be made to a Class A Offered Noteholder under this
Deed may be made to the Note Trustee or a Paying Agent on behalf of
that Class A Offered Noteholder.
3.5 NOTICES
Any notice to be given to a Class A Offered Noteholder under this
Deed may be given to the Note Trustee on behalf of that Class A
Offered Noteholder. Any costs to the Note Trustee of publishing such
notice to the Class A Offered Noteholders will be reimbursed by the
Issuing Trustee to the Note Trustee.
3.6 LIMITATION OF LIABILITY OF NOTE TRUSTEE
Notwithstanding any other provision of this deed, the Note Trustee
will have no liability under or in connection with this deed or any
other Transaction Document other than to the extent to which the
liability is able to be satisfied out of the property from which the
Note Trustee is actually indemnified for the liability. This
limitation will not apply to a liability of the Note Trustee to the
extent that it is not satisfied because, under this deed, any other
Transaction Document or by operation of laws, there is a reduction
in the extent of the Note Trustee's indemnification as a result of
the Note Trustee's fraud, negligence or wilful default. Nothing in
this clause or any similar provision in any other Transaction
Document limits or adversely affects the powers of the Note Trustee.
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4 CHARGE
4.1 CHARGE
(a) The Issuing Trustee in its capacity as trustee of the Charged
Property charges all of its interest in the Charged Property
to the Security Trustee as security for the due and punctual
payment of the Secured Moneys and the performance of its
obligations under the Secured Documents.
(b) The Charge does not charge any Charged Property as at the date
of this Deed which as at that date is, or is taken under the
applicable stamp duties legislation of the relevant
jurisdiction to be, situated in any State or
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
Territory of Australia other than New South Wales, the
Australian Capital Territory or the Northern Territory.
4.2 PRIORITY
The parties intend that the Charge take priority over all other
Encumbrances over the Charged Property other than the Prior
Interest.
4.3 NATURE OF CHARGE
The Charge is a floating charge over all Charged Property.
4.4 CRYSTALLISATION
The floating charge created in clauses 4.1 and 4.3 automatically and
immediately crystallises and becomes fixed:
(a) without the Security Trustee giving any notice to the Issuing
Trustee, in respect of:
(1) all of the Charged Property:
(A) when a Receiver or any other receiver or receiver
and manager or administrator or provisional
liquidator is appointed, or proposed to be
appointed, in respect of any of the Charged
Property;
(B) when the Charge or any other Encumbrance over any
of the Charged Property is enforced in any other
way;
(C) when a notice under section 218 of the Income Tax
Assessment Act 1936 (Cth), section 260-5 in
Schedule 1 of the Tax Administration Act 1953 or
similar provision under the Income Tax Assessment
Act 1997 in respect of the Issuing Trustee is
signed by, or on behalf of, the Commissioner of
Taxation or the Deputy Commissioner of Taxation;
(D) upon any Government Agency taking any step which
may result in an amount of Tax or an amount owing
to a Government Agency ranking ahead of the
Charge;
(E) when an order is made or a resolution is passed
for the liquidation of the Issuing Trustee whether
in its personal capacity or in its capacity as
trustee of the Securitisation Fund;
(F) when a resolution is passed or a direction is
given by the Beneficiaries for the winding-up or
termination of the Securitisation Fund;
(G) when all of the Beneficiaries give a direction to
the Issuing Trustee to distribute the assets of
the Securitisation Fund;
(H) upon the termination of the Securitisation Fund,
whether under the Master Trust Deed or by
expiration of time or otherwise;
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
(I) when an order is made requiring distribution of
any Securitisation Fund assets to any person or
appointing a Receiver in respect of the
Securitisation Fund;
(J) when the Issuing Trustee resolves, or any other
person on whose instructions the Issuing Trustee
must act directs the Issuing Trustee, to
distribute any corpus of the Charged Property
which is subject to the floating charge;
(K) when any step is taken to issue, levy or enforce
any distress, attachment, execution or other
process against or upon any of the Charged
Property;
(L) when any Encumbrance over any of the Charged
Property is, or becomes capable of being, enforced
or any floating Encumbrance over any of the
Charged Property crystallises or otherwise becomes
a fixed Encumbrance; or
(M) upon occurrence of an Event of Default; or
(2) in respect of any asset, if the Issuing Trustee:
(A) creates or allows any Encumbrance over;
(B) sells, leases or otherwise disposes of;
(C) creates or allows any interest in; or
(D) parts with possession of,
that asset in breach of the Master Trust Deed or this
Deed, or agrees or attempts to do so or take any step
towards doing so.
4.5 DE-CRYSTALLISATION
(a) Where an asset has become subject to a fixed charge under
clause 4.4, the Security Trustee may release the asset from
that fixed charge by notice in writing to the Issuing Trustee.
(b) When an asset is released from the fixed charge under clause
4.5(a)) the asset will again be subject to:
(1) the floating charge under clauses 4.1 and 4.3; and
(2) the further operation of clause 4.4.
(c) The Security Trustee must promptly give each Designated Rating
Agency a notice of any release made pursuant to clause 4.5(a).
4.6 PROSPECTIVE LIABILITY
(a) The parties acknowledge that the maximum amount of the
prospective liability secured by this Deed for the purposes of
establishing priority under section 282(3) of the Corporations
Act, is $5,000,000,000.
(b) The Security Trustee may from time to time lodge a notice
under s268(2) of the Corporations Act on behalf of the Issuing
Trustee specifying an increase in the maximum amount of the
prospective liability referred to in
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
clause 4.6(a) and from the date of lodgment the amount
specified in clause 4.6(a) is to be regarded as varied to the
amount specified in that notice.
(c) Neither clause 4.6(a) nor clause 4.6(b) in any way affects or
limits the actual amount of Secured Moneys which may in fact
be secured by the Charge.
(d) Clauses 4.6(a), 4.6(b) and 4.6(c) are to be construed
independently of each other.
4.7 AMOUNT ULTIMATELY RECOVERABLE
Subject to this Deed and without limiting the Secured Moneys, the
amount ultimately recoverable by the Chargee under this Deed is
limited to $5,000,000,000.
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5 REPRESENTATIONS AND WARRANTIES
5.1 BY THE ISSUING TRUSTEE
The Issuing Trustee hereby represents and warrants to the Security
Trustee:
(a) (DUE INCORPORATION): the Issuing Trustee is duly incorporated
and has the corporate power to own its property and to carry
on its business as is now being conducted;
(b) (CONSTITUTION): the execution delivery and performance of each
Secured Document does not violate the constitution of the
Issuing Trustee;
(c) (CORPORATE POWER): the Issuing Trustee has the power and has
taken all corporate and other action required to enter into
each Secured Document and to authorise the execution and
delivery of each Secured Document and the performance of its
obligations hereunder;
(d) (FILINGS): the Issuing Trustee has filed all material
corporate notices and effected all material registrations with
the Australian Securities and Investments Commission or
similar office in the jurisdiction of incorporation and all
such filings and registrations are current, complete and
accurate, except that this representation and warranty does
not apply to the filing of an ASIC form 309 or ASIC form 350
in relation to the creation of the Charge;
(e) (LEGALLY BINDING OBLIGATION): each Secured Document
constitutes a valid, legally binding and enforceable
obligation of the Issuing Trustee in accordance with its terms
except as such enforceability may be limited by any applicable
bankruptcy, insolvency, reorganisation, moratorium or trust or
other similar laws affecting creditors' rights generally;
(f) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery
and performance of each Secured Document by the Issuing
Trustee does not violate any existing law or regulation or any
document or agreement to which the Issuing Trustee is a party
in either case in its capacity as trustee of the
Securitisation Fund or which is binding upon it or any of its
assets in its capacity as trustee of the Securitisation Fund;
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(g) (AUTHORISATION): all consents, licences, approvals and
authorisations of every Government Agency required to be
obtained by the Issuing Trustee in connection with the
execution and delivery of, and performance of its obligations
under, each Secured Document have been obtained and are valid
and subsisting;
(h) (GOOD TITLE): the Issuing Trustee is the legal owner of and
has the power under the Master Trust Deed to enter into each
Secured Document and to charge in the manner provided in this
Deed, the Charged Property and, subject only to the Master
Trust Deed, this Deed and the Prior Interest, the Charged
Property is free of all other Encumbrances;
(i) (SECURITISATION FUND VALIDLY CREATED): the Securitisation Fund
has been validly created and is in existence at the date of
this Deed;
(j) (SOLE TRUSTEE): the Issuing Trustee has been validly appointed
as trustee of the Securitisation Fund and is presently the
sole trustee of the Securitisation Fund;
(k) (MASTER TRUST DEED): the Securitisation Fund is constituted
pursuant to the Master Trust Deed; and
(l) (NO PROCEEDINGS TO REMOVE): no notice has been given to the
Issuing Trustee and to the Issuing Trustee's knowledge no
resolution has been passed or direction or notice has been
given, removing the Issuing Trustee as trustee of the
Securitisation Fund.
5.2 BY THE MANAGER
The Manager hereby represents and warrants to the Security Trustee
that:
(a) (DUE INCORPORATION): the Manager is duly incorporated and has
the corporate power to own its property and to carry on its
business as is now being conducted;
(b) (CONSTITUTION): the execution, delivery and performance of
each Secured Document does not violate the constitution of the
Manager;
(c) (CORPORATE POWER): the Manager has the power and has taken all
corporate and other action required to enter into each Secured
Document and to authorise the execution and delivery of each
Secured Document and the performance of its obligations
hereunder;
(d) (FILINGS): the Manager has filed all corporate notices and
effected all registrations with the Australian Securities and
Investments Commission or similar office in its jurisdiction
of incorporation and in any other jurisdiction as required by
law and all such filings and registrations are current,
complete and accurate;
(e) (LEGALLY BINDING OBLIGATION): each Secured Document
constitutes a valid, legally binding and enforceable
obligation of the Manager in accordance with its terms except
as such enforceability may be limited by any applicable
bankruptcy, insolvency, re-organisation, moratorium or trust
or other similar laws affecting creditors' rights generally;
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(f) (EXECUTION, DELIVERY AND PERFORMANCE): the execution, delivery
and performance of each Secured Document by the Manager does
not violate any existing law or regulation or any document or
agreement to which the Manager is a party or which is binding
upon it or any of its assets;
(g) (AUTHORISATION): all consents, licences, approvals and
authorisations of every Government Agency required to be
obtained by the Manager in connection with the execution,
delivery and performance of each Secured Document have been
obtained and are valid and subsisting; and
(h) (WARRANTIES): to the Manager's knowledge, all representations
and warranties given by the Manager in any Transaction
Document are true and accurate.
5.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties in this Deed survive the
execution and delivery of this Deed and the provision of advances
and accommodation.
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6 ISSUING TRUSTEE'S AND MANAGER'S COVENANTS
6.1 COVENANTS
(a) The Issuing Trustee covenants in favour of the Security
Trustee that it will duly and punctually perform observe and
fulfil its obligations under the Secured Documents and in
accordance with the terms of the Secured Documents, will pay
the Secured Moneys to, or to the order of, the Security
Trustee as and when the same fall due for payment.
(b) Notwithstanding clause 6.1(a), every payment by the Issuing
Trustee, or the Security Trustee in accordance with this Deed,
to the Secured Creditors on account of the Secured Moneys will
operate as payment by the Issuing Trustee to the Security
Trustee in satisfaction of the Issuing Trustee's obligations
in respect thereof.
(c) Each of the Issuing Trustee and the Manager will ensure that
it complies with its obligations under the Secured Documents.
(d) Each of the Issuing Trustee and the Manager will give to the
Note Trustee a copy of the Register, and to the Security
Trustee any information in the power or possession of the
Issuing Trustee or the Manager relating to the Securitisation
Fund that the Security Trustee reasonably requests in
connection with the exercise and performance of its powers and
obligations under this Deed, including without limitation:
(1) the identity, and notice details of, each Secured
Creditor and Beneficiary; and
(2) the Secured Moneys owing to each Secured Creditor.
6.2 NEGATIVE COVENANTS
The Issuing Trustee shall not do, nor shall the Manager direct the
Issuing Trustee to do, any of the following without the prior
written consent of the Security
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
Trustee and without prior written confirmation from each Designated
Rating Agency of the rating assigned to the Notes in relation to the
Securitisation Fund and the Notes, except as permitted by this Deed
or the Master Trust Deed or the Supplementary Bond Terms Notice:
(a) (NO ENCUMBRANCES): subject only to the Prior Interest, create,
purport or attempt to create or permit to exist any
Encumbrance howsoever ranking over any part of the Charged
Property;
(b) (NO SALE, LEASE ETC.): subject to clause 6.4, convey, assign,
transfer, lease or otherwise dispose or part with possession
of, make any bailment over, or create or permit to exist any
other interest in any part of the Charged Property whilst such
part of the Charged Property is subject to the Charge;
(c) (NO FINANCIAL INDEBTEDNESS): create, incur, assume, permit or
suffer to exist any Financial Indebtedness except for:
(1) the Notes;
(2) Financial Indebtedness arising under the Transaction
Documents in relation to the Securitisation Fund;
(3) Financial Indebtedness which is fully subordinated to
the Secured Moneys, or is non-recourse other than with
respect to proceeds in excess of those needed to pay the
Secured Moneys, and does not constitute a claim against
the Issuing Trustee in the event that those excess
proceeds are insufficient to pay that subordinated
Financial Indebtedness; or
(4) Financial Indebtedness that will not result in any
reduction or withdrawal of the rating assigned to the
initial Notes by each such Designated Rating Agency;
(d) (NO RELEASE UNDER TRANSACTION DOCUMENTS): give any release or
discharge (whether full, partial or conditional) to any person
in respect of their obligations under any of the Transaction
Documents relating to the Securitisation Fund, except as
contemplated by those Transaction Documents; and
(e) (BANK ACCOUNTS): open any bank account not permitted in the
Transaction Documents.
6.3 FIXED RATE MORTGAGES
(a) Unless each Designated Rating Agency should otherwise notify
the Manager in writing, the Manager must not at any time
cause:
(1) the aggregate Outstanding Principal Balance of all fixed
interest rate Mortgages to exceed 50% of the aggregate
Outstanding Principal Balance of all Mortgages;
(2) the aggregate Outstanding Principal Balance of all fixed
interest rate Mortgages with an outstanding fixed
interest rate period of 3 years or less to exceed 50% of
the aggregate Outstanding Principal Balance of all
Mortgages; and
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
(3) the aggregate Outstanding Principal Balance of all fixed
interest rate Mortgages with an outstanding fixed
interest rate period of greater than 3 years and not
exceeding 5 years to exceed 25% of the aggregate
Outstanding Principal Balance of all Mortgages; and
(4) the fixed interest rate period for any Mortgage to end
on or after the date nominated by the Manager and
notified in writing to the Issuing Trustee, the Security
Trustee and the Note Trustee prior to the issue of any
Notes by the Issuing Trustee.
(b) The Manager must not cause any fixed interest rate Mortgage to
become an Asset of the Fund unless:
(1) the Trustee has entered into a Payment Funding Facility
for such amount agreed to from time to time by the
Manager and each Designated Rating Agency so that the
rating of the Notes by each Designated Rating Agency
will not be downgraded or withdrawn by the Trustee
holding fixed interest rate Mortgages; and
(2) the Trustee has entered into an Enhancement or Interest
Hedge in respect of the fixed interest rate component of
the Mortgage for the period of that fixed interest rate
component and whether in respect of that Mortgage alone
or with any other Mortgage that is an Asset of the
Securitisation Fund.
(c) Subject to the terms of any such Payment Funding Facility, the
Manager must cause the principal amount outstanding under the
Payment Funding Facility to be not less than the amount agreed
from time to time by the Manager and each Designated Rating
Agency.
(d) For the purposes of clause 6.3 a reference:
(1) to a Mortgage is to a Mortgage which is an Asset of the
Securitisation Fund;
(2) to a fixed interest rate Mortgage is a Mortgage under
which all or part of the interest payable is set at a
fixed rate;
(3) the Outstanding Principal Balance of a fixed interest
rate Mortgage is that portion of the Outstanding
Principal Balance of the Mortgage which is subject to a
fixed interest rate.
6.4 DEALING IN ACCORDANCE WITH TRANSACTION DOCUMENTS
The Issuing Trustee may in respect of a given part of the Charged
Property whilst subject to the floating charge deal with and pay or
apply that part of the Charged Property in accordance with the
provisions of the Transaction Documents.
6.5 NOTIFY EVENTS OF DEFAULT
Each of the Manager and the Issuing Trustee must immediately notify
the Security Trustee in writing if it becomes actually aware of the
occurrence of any Event of Default and must provide the Security
Trustee with full and complete details in relation thereto
immediately upon becoming actually aware of such details.
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
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7 EVENTS OF DEFAULT
7.1 EVENTS OF DEFAULT
Subject to the Supplementary Bond Terms Notice for the Class A Notes
and Class B Notes and the Supplementary Bond Terms Notice for the
Liquidity Notes, each of the following events is an Event of Default
whether or not caused by any reason whatsoever outside the control
of an Interested Person or any other person:
(a) (FAILURE TO PAY): the Issuing Trustee does not within 10
Banking Days of the due date, and in the specified manner, pay
in full any Secured Moneys (except in respect of any moneys
payable under any Payment Funding Facility, Top-up Funding
Facility and Redraw Funding Facility which fall due for
payment prior to the Repayment Date or payment of interest on
Class B Notes unless all Class A Notes have been repaid);
(b) (FAILURE TO COMPLY): the Issuing Trustee defaults in fully
performing observing and fulfilling any material obligation in
relation to the Securitisation Fund under this Deed or a
Secured Document (other than a provision requiring the payment
of money as contemplated by paragraph (a) of this clause or,
prior to the Repayment Date, in respect of any such default
under a Payment Funding Facility, Top-up Funding Facility and
Redraw Funding Facility and such default has not been remedied
within 10 Banking Days of the Issuing Trustee receiving notice
from the Security Trustee specifying the breach and requiring
the same to be rectified);
(c) (UNTRUE WARRANTY): any representation, warranty or statement
in relation to the Securitisation Fund made, repeated or
deemed to be made or repeated in this Deed or in a Secured
Document by the Issuing Trustee is proved to be untrue in any
material respect when made, repeated or deemed to be made or
repeated (as the case may be) (except, prior to the Repayment
Date, in respect of any representation, warranty or statement
made, repeated or deemed to be made or repeated under the
Payment Funding Facility, Top-up Funding Facility and Redraw
Funding Facility);
(d) (BREACH OF UNDERTAKING): the Issuing Trustee breaches any
material undertaking given at any time to the Security Trustee
in relation to the Securitisation Fund or fails to comply with
any material condition imposed by the Security Trustee in
relation to the Securitisation Fund in agreeing to any matter
(including any waiver) (except, prior to the Repayment Date,
in respect of any breach of any material undertaking or
failure to comply with any material condition under the
Payment Funding Facility, Top-up Funding Facility and Redraw
Funding Facility);
(e) (INSOLVENCY EVENT): any Insolvency Event occurs in relation to
the Issuing Trustee other than for the reconstruction of the
Issuing Trustee or the Securitisation Fund with the prior
written approval of the Manager and the Security Trustee and
provided that each Designated Rating Agency has confirmed in
writing that such reconstruction will not have an adverse
effect on the rating of the Notes;
(f) (ENCUMBRANCE): any Encumbrance over any Charged Property
becomes enforceable or any Encumbrance that is a floating
security over any
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Charged Property crystallises or otherwise becomes a fixed or
specific security;
(g) (INVESTIGATION): any investigation into the affairs, or into
particular affairs, of the Issuing Trustee in relation to the
Securitisation Fund is directed or commenced under any
Statute;
(h) (VOID OR VOIDABLE): any Secured Document is, becomes or is
claimed by the Issuing Trustee or the Manager to be void,
voidable or unenforceable in whole or in any material part;
(i) (REPUDIATION): the Issuing Trustee disaffirms, disclaims,
repudiates or rejects any Secured Document to which it is a
party in whole or in any material part;
(j) (VESTING OF ASSETS): there occurs without the prior written
approval of the Security Trustee, any vesting or distribution
of any assets of the Securitisation Fund other than in
accordance with the relevant Supplementary Bond Terms Notices;
(k) (BREACH OF TRUST): any material breach of trust in relation to
the Securitisation Fund by the Issuing Trustee or the Issuing
Trustee for any reason loses or ceases to be entitled to a
material extent to its right of indemnity against the assets
of the Securitisation Fund;
(l) (DIMINUTION OF ASSETS): as a result of the act or omission of
the Issuing Trustee the assets of the Securitisation Fund are
materially diminished or made materially less accessible to
the Security Trustee;
(m) (WINDING-UP): without the prior consent of the Security
Trustee the Securitisation Fund is wound-up or the Issuing
Trustee is required to wind up the Securitisation Fund under
the Master Trust Deed or applicable law, or the winding up of
the Securitisation Fund commences; and
(n) (PRIORITY OF CHARGE): the Charge ceases to rank as
contemplated by clause 4.2.
7.2 RIGHTS OF THE SECURITY TRUSTEE UPON EVENT OF DEFAULT
Upon the occurrence of an Event of Default, the Security Trustee may
in its absolute discretion, and shall, subject to clauses 8.4, 8.5,
8.6 and 8.7, if so directed by an Extraordinary Resolution:
(a) declare the Charge immediately enforceable;
(b) declare the Secured Moneys immediately due and payable;
(c) give a notice crystallising the charge in relation to any or
all of the Secured Property under clause 4.4; and/or
(d) appoint a Receiver over the Charged Property, or exercise the
powers that a Receiver would otherwise have if appointed under
this Deed.
The Security Trustee may exercise its rights pursuant to this clause
notwithstanding any delay or previous waiver.
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7.3 NOTIFY EVENTS OF DEFAULT
Each of the Issuing Trustee and the Manager must promptly (and in
any event within 5 Banking Days) notify the Note Trustee on behalf
of the Class A Offered Noteholders, and all other Secured Creditors,
the Security Trustee, and each of the Designated Rating Agencies if,
to the knowledge of its officers who are responsible for the
administration of the Securitisation Fund, it becomes aware of the
occurrence of an Event of Default or any event specified in clause
4.4 and they must provide full details of the Event of Default or
other event and the actions and procedures which are being taken or
will be taken by the Issuing Trustee and the Manager to remedy the
relevant Event of Default or other event.
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8 ENFORCEMENT
8.1 POWER TO DEAL WITH THE CHARGED PROPERTY CEASES
The Issuing Trustee's power to deal for any purpose with all or any
part of the Charged Property, other than by or through a Receiver
appointed under this Deed shall immediately cease upon the Charge
crystallising and becoming fixed pursuant to the provisions of this
Deed (subject only to the operation of clause 4.5, in which case the
Issuing Trustee's power to deal in accordance with this Deed with
any asset or assets the subject of a notice under such clause shall
be reinstated from the date of such notice).
8.2 PROTECTION OF CHARGED PROPERTY
If the Charge crystallises and becomes fixed pursuant to the
provisions of this Deed upon the occurrence of an Event of
Crystallisation, the Security Trustee shall have the right either in
its own name or in the name of the Issuing Trustee to immediately
seek and obtain appropriate relief in relation to that part of the
Charged Property affected or threatened by such Event of
Crystallisation.
8.3 POWER TO ENFORCE
At any time after the Charge becomes enforceable, the Security
Trustee may, without reference to Secured Creditors, at its
discretion and without further notice (subject to the terms of this
Deed) take such proceedings as it may think fit to enforce any of
the provisions of this Deed.
8.4 NO OBLIGATION TO ENFORCE
Subject to clauses 8.5 and 14.4, upon the occurrence of an Event of
Default, pending the receipt of directions from the Voting Secured
Creditors as contemplated by clauses 8.5 and 8.6, the Security
Trustee shall not be bound to take any action under this Deed or
give any consent or waiver or make any determination hereunder
(including, without limiting the generality of the foregoing, to
appoint any Receiver, to declare the Charge enforceable or the
Secured Moneys immediately due and payable pursuant to clause 7.2 or
to take any other proceedings referred to in clause 8.3). Nothing in
this clause shall affect the operation of clause 4.4 upon the
occurrence of an Event of Crystallisation or
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
the Charge becoming enforceable prior to the Security Trustee
receiving directions from the Secured Creditors.
8.5 OBLIGATION TO CONVENE MEETING
(a) Following the Security Trustee becoming actually aware of the
occurrence of an Event of Default, it shall, subject to clause
8.9, promptly convene a meeting of the Voting Secured
Creditors in accordance with this Deed, at which it shall seek
directions from the Voting Secured Creditors by way of an
Extraordinary Resolution of the Voting Secured Creditors
regarding the action it should take as a result of such Event
of Default.
(b) If the Security Trustee fails to convene a meeting, or to
propose the necessary Extraordinary Resolutions, in accordance
with clause 8.5(a), the Manager must convene a meeting of
Voting Secured Creditors, or propose the necessary
Extraordinary Resolutions (as the case may be), in accordance
with this clause 8, which meeting is to have only the same
powers as if convened by the Security Trustee and is to be
conducted in accordance with the provisions of the Schedule,
in which event all references in this Deed and the Schedule to
the Security Trustee in relation to the requirements of
meetings of Voting Secured Creditors will be read and
construed, mutatis mutandis, as references to the Manager.
8.6 SECURITY TRUSTEE TO ACT IN ACCORDANCE WITH DIRECTIONS
(a) Subject to sub-clause 8.6(b), the Security Trustee shall take
all action necessary to give effect to any Extraordinary
Resolution of the Voting Secured Creditors and shall comply
with all directions contained in or given pursuant to any
Extraordinary Resolution of the Voting Secured Creditors.
(b) The obligation of the Security Trustee pursuant to sub-clause
8.6(a) is subject to:
(1) this Deed; and
(2) if required by the Security Trustee (in its absolute
discretion) the receipt from the Voting Secured
Creditors (other than the Note Trustee) of an indemnity
in a form reasonably satisfactory to the Security
Trustee (which may be by way of an Extraordinary
Resolution of the Voting Secured Creditors) against all
actions, proceedings, claims and demands to which it may
render itself liable, and all costs, charges, damages
and expenses which it may incur, in giving effect to an
Extraordinary Resolution of the Voting Secured
Creditors.
The Security Trustee shall first claim on its indemnity from
the property held on trust under clause 2.1 before it claims
on any indemnity from the Secured Creditors (other than the
Note Trustee), including any indemnity provided under clause
8.7. The Note Trustee is in no circumstance required to give
any indemnity to the Security Trustee.
(c) If an Event of Default is a payment default in respect of a
subordinated Class of Notes, as long as there are Class A
Notes outstanding that rank
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
prior to those subordinated Notes, the Security Trustee must
not take any action without [the consent of the Class A[ ]
Noteholders, and] the consent of the Note Trustee acting at
the direction of the Class A Offered Noteholders, by
Extraordinary Resolution.
(d) If the Security Trustee becomes bound to take steps and/or
proceed under this Deed and it fails to do so within a
reasonable time and such failure is continuing, the Voting
Secured Creditors may exercise such powers as they determine
by Extraordinary Resolution.
8.7 SECURITY TRUSTEE MUST RECEIVE INDEMNITY
If:
(a) the Security Trustee convenes a meeting of the Voting Secured
Creditors, or is required by an Extraordinary Resolution to
take any action under this Deed, and advises them that the
Security Trustee will not act in relation to the enforcement
of this Deed unless it is personally indemnified by the Voting
Secured Creditors (other than the Note Trustee) to its
reasonable satisfaction against all actions, proceedings,
claims and demands to which it may render itself liable, and
all costs, charges, damages and expenses which it may incur,
in relation to the enforcement of this Deed and put in funds
to the extent to which it may become liable (including costs
and expenses); and
(b) the Voting Secured Creditors refuse to grant the requested
indemnity and put the Security Trustee in funds,
then the Security Trustee will not be obliged to act in relation to
such enforcement. In those circumstances, the Voting Secured
Creditors may exercise such Powers and enjoy such protections and
indemnities, of the Security Trustee under this Deed, any
Encumbrance or other document or agreement created or entered into
in favour of the Security Trustee as security for the Secured Moneys
or by law as they determine by Extraordinary Resolution. The Note
Trustee is in no circumstance required to give an indemnity to the
Security Trustee.
8.8 LIMITATION ON RIGHTS OF SECURED CREDITORS
Subject to this Deed, the powers, rights and remedies conferred on
the Security Trustee by this Deed are exercisable by the Security
Trustee only, and no Secured Creditor is entitled without the
written consent of the Security Trustee to exercise the same or any
of them. Without limiting the generality of the foregoing, subject
to clause 8.7, no Secured Creditor is entitled to enforce the Charge
or the provisions of this Deed or to appoint or cause to be
appointed a Receiver to any of the Charged Property or otherwise to
exercise any power conferred by the terms of any applicable law on
chargees except as provided in this Deed.
8.9 IMMATERIAL WAIVERS
(a) The Security Trustee may (subject to clause 16.3), with the
prior written consent of the Noteholder Secured Creditors
agree, on any terms and conditions as it may deem expedient,
having first given notice to any Designated Rating Agency for
each Class of Notes, but without the consent
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
of the other Secured Creditors and without prejudice to its
rights in respect of any subsequent breach, to any waiver or
authorisation of any breach or proposed breach of any of the
terms and conditions of the Secured Documents or any of the
provisions of this Deed which is not, in the reasonable
opinion of the Security Trustee, materially prejudicial to the
interests of the Secured Creditors and may determine that any
event that would otherwise be an Event of Default shall not be
treated as an Event of Default for the purpose of this Deed.
(b) No such waiver, authorisation or determination shall be made
in contravention of any directions contained in an
Extraordinary Resolution of Voting Secured Creditors.
(c) Any such waiver, authorisation or determination shall, if the
Security Trustee so requires, be notified to the Voting
Secured Creditors by the Manager as soon as practicable
thereafter in accordance with this Deed.
8.10 ACTS PURSUANT TO RESOLUTIONS
The Security Trustee shall not be responsible for having acted in
good faith upon any resolution purporting to have been passed at any
meeting of the Voting Secured Creditors in respect of which minutes
have been made and signed, even though it may subsequently be found
that there was some defect in the constitution of that meeting or
the passing of that resolution or that for any reason that
resolution was not valid or binding upon the Voting Secured
Creditors.
8.11 OVERRIDING PROVISION
Notwithstanding any other provision of this Deed:
(a) the Security Trustee is not obliged to do or omit to do
anything including entering into any transaction or incurring
any liability unless the Security Trustee's liability is
limited in a manner satisfactory to the Security Trustee in
its absolute discretion; and
(b) the Security Trustee will not be under any obligation to
advance or use its own funds for the payment of any costs,
expenses or liabilities, except in respect of its own fraud,
negligence or wilful default.
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9 RECEIVER
9.1 APPOINTMENT OF RECEIVER
Subject to clause 8 upon or at any time after the occurrence of an
Event of Default the Security Trustee may:
(a) appoint any person or any 2 or more persons jointly, or
severally, or jointly and severally to be a receiver or a
receiver and manager of the Charged Property;
(b) remove any Receiver and on the removal, retirement or death of
any Receiver, appoint another Receiver; and
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
(c) fix or vary the remuneration and direct payment of that
remuneration and any costs, charges and expenses of the
Receiver out of the proceeds of any realisation of the Charged
Property.
9.2 AGENCY OF RECEIVER
(a) Subject to clause 9.5, each Receiver is the agent of the
Issuing Trustee.
(b) The Issuing Trustee is responsible for the acts, defaults and
remuneration of the Receiver.
(c) Each Secured Creditor acknowledges that:
(1) any Receiver will be only the agent of the Issuing
Trustee in its capacity as trustee of the Securitisation
Fund; and
(2) notwithstanding anything else in this Deed or at law,
the Issuing Trustee in its personal capacity is not
responsible for any act or omission of the Receiver.
9.3 POWERS OF RECEIVER
Subject to any express exclusion by the terms of the Receiver's
appointment, and whether or not the Receiver has taken possession of
the whole or any part of the Charged Property, the Receiver has, in
addition to any powers conferred on the Receiver by applicable law,
power to do any of the following:
(a) MANAGE, POSSESSION OR CONTROL: to manage, enter into
possession or assume control of any of the Charged Property;
(b) LEASE OR LICENCE: to accept the surrender of, determine, grant
or renew any lease or licence in respect of the use or
occupation of any of the Charged Property:
(1) on any terms or special conditions that the Security
Trustee or Receiver thinks fit; and
(2) in conjunction with the sale, lease or licence of any
other property by any person;
(c) SALE: to sell or concur in selling any of the Charged Property
to any person:
(1) by auction, private treaty or tender;
(2) on such terms and special conditions as the Security
Trustee or the Receiver thinks fit;
(3) for cash or for a deferred payment of the purchase
price, in whole or in part, with or without interest or
security;
(4) in conjunction with the sale of any property by any
other person; and
(5) in one lot or in separate parcels;
(d) GRANT OPTIONS TO PURCHASE: to grant to any person an option to
purchase any of the Charged Property;
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
(e) ACQUIRE PROPERTY: to acquire any interest in any property, in
the name or on behalf of the Issuing Trustee, which on
acquisition forms part of the Charged Property;
(f) CARRY ON BUSINESS: to carry on or concur in carrying on any
business of the Issuing Trustee in respect of the Charged
Property;
(g) BORROWINGS AND SECURITY:
(1) to raise or borrow any money, in its name or the name or
on behalf of the Issuing Trustee, from the Security
Trustee or any person approved by the Security Trustee
in writing; and
(2) to secure money raised or borrowed under clause
9.3(g)(1) by an Encumbrance over any of the Charged
Property, ranking in priority to, equal with, or after,
the Charge;
(h) MAINTAIN OR IMPROVE CHARGED PROPERTY: to do anything to
maintain, protect or improve any of the Charged Property
including, but not limited to, completing, repairing, erecting
a new improvement on, demolishing or altering any of the
Charged Property;
(i) INCOME AND BANK ACCOUNTS: to do anything to manage or obtain
income or revenue from any of the Charged Property including,
but not limited to, operating any bank account which forms
part of the Charged Property or opening and operating a new
bank account;
(j) ACCESS TO CHARGED PROPERTY: to have access to any of the
Charged Property;
(k) INSURE CHARGED PROPERTY: to insure any of the Charged
Property;
(l) SEVER FIXTURES: to sever fixtures in respect of any of the
Charged Property;
(m) COMPROMISE: to make or accept any compromise or arrangement;
(n) SURRENDER CHARGED PROPERTY: to surrender or transfer any of
the Charged Property to any person;
(o) EXCHANGE CHARGED PROPERTY: to exchange with any person any of
the Charged Property for any other property whether of equal
value or not;
(p) EMPLOY OR DISCHARGE: to employ or discharge any person as an
employee, contractor, agent, professional adviser or
auctioneer for any of the purposes of this Deed;
(q) DELEGATE: to delegate to any person any Power of the Receiver;
(r) PERFORM OR ENFORCE DOCUMENTS: to observe, perform, enforce,
exercise or refrain from exercising any right, power,
authority, discretion or remedy of the Issuing Trustee under,
or otherwise obtain the benefit of:
(1) any document, agreement or right which attaches to or
forms part of the Charged Property; and
(2) any document or agreement entered into in exercise of
any Power by the Receiver;
(s) RECEIPTS: to give effectual receipts for all moneys and other
assets which may come into the hands of the Receiver;
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
(t) TAKE PROCEEDINGS: to commence, discontinue, prosecute, defend,
settle or compromise in its name or the name or on behalf of
the Issuing Trustee, any proceedings including, but not
limited to, proceedings in relation to any insurance in
respect of any of the Charged Property;
(u) INSOLVENCY PROCEEDINGS: in connection with any Charged
Property, to make any debtor bankrupt, wind-up any company,
corporation or other entity and do all things in relation to
any bankruptcy or winding-up which the Receiver thinks
necessary or desirable including, but not limited to,
attending and voting at creditors' meetings and appointing
proxies for those meetings;
(v) EXECUTE DOCUMENTS: in connection with any Charged Property, to
enter into and execute any document or agreement in the name
of the Receiver or the name or on behalf of the Issuing
Trustee including, but not limited to, notices, bills of
exchange, cheques or promissory notes for any of the purposes
of this Deed;
(w) VOTE: to exercise any voting rights or powers in respect of
any part of the Charged Property;
(x) ABILITY OF ISSUING TRUSTEE: to do anything the Issuing Trustee
could do in respect of the Charged Property; and
(y) INCIDENTAL POWER: to do anything necessary or incidental to
the exercise of any Power of the Receiver.
9.4 NATURE OF RECEIVER'S POWERS
The Powers of the Receiver must be construed independently and no
one Power limits the generality of any other Power. Any dealing
under any Power of the Receiver will be on the terms and conditions
the Receiver thinks fit.
9.5 STATUS OF RECEIVER AFTER COMMENCEMENT OF WINDING-UP
(a) The power to appoint a Receiver under clause 9.1 may be
exercised even if at the time an Event of Default occurs or if
at the time a Receiver is appointed, an order has been made or
a resolution has been passed for the winding-up of the Issuing
Trustee or any event set out in clause 4.4(a)(1)(E) to clause
4.4(a)(1)(K) has occurred.
(b) If for any reason, including, but not limited to operation of
law, a Receiver:
(1) appointed in the circumstances described in clause
9.5(a); or
(2) appointed at any other time,
ceases to be the agent of the Issuing Trustee upon or by
virtue of, or as a result of, an order or a resolution being
passed for the winding-up of the Issuing Trustee, then the
Receiver immediately becomes the agent of the Security
Trustee.
9.6 POWERS EXERCISABLE BY THE SECURITY TRUSTEE
(a) Whether or not a Receiver is appointed under clause 9.1, the
Security Trustee may, on or after the occurrence of an Event
of Default and without
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
giving notice to any person, exercise any Power of the
Receiver in addition to any Power of the Security Trustee.
(b) The exercise of any Power by the Security Trustee, Receiver or
Attorney does not cause or deem the Security Trustee, Receiver
or Attorney:
(1) to be a mortgagee in possession;
(2) to account as mortgagee in possession; or
(3) to be answerable for any act or omission for which a
mortgagee in possession is liable.
9.7 NOTICE OF EXERCISE OF RIGHTS
The Security Trustee, Receiver or Attorney is not required:
(a) to give notice of the Charge to any debtor or creditor of the
Issuing Trustee or to any other person;
(b) to enforce payment of any money payable to the Issuing Trustee
including, but not limited to, any of the debts or monetary
liabilities charged by this Deed; or
(c) to obtain the consent of the Issuing Trustee to any exercise
of a Power.
9.8 TERMINATION OF RECEIVERSHIP AND POSSESSION
The Security Trustee may, at any time, terminate the appointment of
a Receiver and may, at any time, give up possession of the Charged
Property.
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10 SECURITY TRUSTEE'S POWERS
10.1 ACT JOINTLY
The Security Trustee or Receiver may exercise any of the powers
conferred upon the Security Trustee or the Receiver in conjunction
with the exercise of similar powers by any other Encumbrancee of the
Charged Property or part thereof or by any receiver appointed by
such other Encumbrancee and may enter into and give effect to such
agreements and arrangements with such other Encumbrancee or receiver
as the Security Trustee or Receiver thinks fit.
10.2 APPOINTMENT OF ATTORNEY
In consideration of the Security Trustee entering into the Secured
Documents, the Issuing Trustee irrevocably appoints each Receiver
and each of the directors, secretaries and managers for the time
being of the Security Trustee severally its attorney for the
purposes set out in clause 10.3.
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
10.3 PURPOSES OF APPOINTMENT
The Attorney may, in its name or in the name of the Issuing Trustee,
Security Trustee or Receiver, at any time after the occurrence of an
Event of Default do any of the following:
(a) do any thing which ought to be done by the Issuing Trustee
under this Deed;
(b) exercise any right, power, authority, discretion or remedy of
the Issuing Trustee under:
(1) this Deed;
(2) any other Secured Document; or
(3) any agreement forming part of the Charged Property;
(c) do any thing which in the opinion of the Security Trustee,
Receiver or Attorney is necessary or expedient for securing or
perfecting the Charge;
(d) execute in favour of the Security Trustee any legal mortgage,
transfer, assignment and any other assurance of any of the
Charged Property;
(e) execute Deeds of assignment, composition or release in
connection with the Charged Property;
(f) sell or otherwise part with the possession of any of the
Charged Property; and
(g) generally, do any other thing, whether or not of the same kind
as those set out in clause 10.3 (a) to (f), which in the
opinion of the Security Trustee, Receiver or Attorney is
necessary or expedient:
(1) to more satisfactorily secure to the Security Trustee
the payment of the Secured Moneys; or
(2) in relation to any of the Charged Property.
10.4 DELEGATION AND SUBSTITUTION
The Attorney may, at any time, for any of the purposes in clause
10.3, appoint or remove any substitute or delegate or sub-attorney.
10.5 SECURITY TRUSTEE MAY MAKE GOOD DEFAULT
If the Issuing Trustee defaults in duly performing observing and
fulfilling any covenant on the part of the Issuing Trustee herein
contained or implied it shall be lawful for, but not obligatory upon
the Security Trustee, without prejudice to any other power of the
Security Trustee, to do all things and pay all moneys necessary or
expedient in the opinion of the Security Trustee to make good or to
attempt to make good such default to the satisfaction of the
Security Trustee and all such moneys shall form part of the Secured
Moneys.
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
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11 PROTECTION OF PERSONS DEALING WITH SECURITY TRUSTEE OR RECEIVER
11.1 NO ENQUIRY
No purchaser or other person dealing with the Security Trustee, the
Receiver or any attorney appointed hereunder or to whom is tendered
for registration an instrument executed by the Security Trustee, the
Receiver or any attorney appointed hereunder, shall be bound to
inquire as to whether any Event of Default has occurred or whether
the Charge has become enforceable or whether any Secured Moneys are
owing or payable or whether the Receiver or attorney has been
properly appointed or as to the propriety or regularity of the
exercise or purported exercise of any power by the Security Trustee,
the Receiver or such attorney or any other matter or thing or be
affected by actual or constructive notice that any lease, sale,
dealing or instrument is unnecessary or improper and notwithstanding
any irregularity or impropriety in any lease, sale, dealing or
instrument the same shall as regards the protection and title of the
lessee, purchaser or such other person be deemed to be authorised by
the aforesaid powers and shall be valid and effectual accordingly.
11.2 RECEIPTS
The receipt of the Security Trustee, the Receiver or any attorney
appointed hereunder of any moneys or assets which come into the
hands of the Security Trustee, the Receiver or such attorney by
virtue of the powers of the Security Trustee, the Receiver or the
attorney shall as to the moneys or assets paid or handed over
effectually discharge the person, other than the Issuing Trustee,
paying or handing over the same from being concerned to see to the
application or being answerable or accountable for any loss or
misapplication thereof and from any liability to inquire whether the
Charge has become enforceable or whether the Secured Moneys have
become payable pursuant to the provisions of this Deed or otherwise
as to the propriety or regularity of the appointment of such
Receiver or attorney or the propriety or regularity of the exercise
of such powers by the Security Trustee, the Receiver or the attorney
(as the case may be).
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12 APPLICATION OF MONEYS
12.1 PRIORITY OF PAYMENTS
All moneys received by the Security Trustee or by the Receiver as a
result of the exercise of the powers conferred by this Deed in
relation to the Charged Property pursuant to the provisions of this
Deed shall, subject to this Deed, be applied as follows:
(a) Firstly: in payment of all amounts which, to the extent
required by law, have priority over the payments specified in
the balance of this clause 12.1;
(b) Secondly: in payment (pari passu and rateably) of:
(1) any fees and any other expenses, liabilities, losses,
costs, claims, actions, proceedings, damages, demands,
charges, stamp and other
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duties and Taxes due to the Issuing Trustee, the
Security Trustee or the Note Trustee;
(2) any fees and any other expenses, liabilities, losses,
costs, claims, actions, proceedings, damages, demands,
charges, stamp and other duties and Taxes due to the
Principal Paying Agent, the Calculation Agent, the Note
Registrar[,] [or] the other Paying Agents [or the Class
A[ ] Irish Paying Agent]; and
(3) the Receivers remuneration;
(c) Thirdly: in payment of all costs, charges, expenses and
disbursements incurred in or incidental to the exercise or
performance or attempted exercise or performance of any Powers
of the Receiver, the Security Trustee, an Attorney or the Note
Trustee in relation to the Securitisation Fund and the Charged
Property;
(d) Fourthly: subject to this clause 12.1, in payment of such
other Expenses in relation to the Securitisation Fund or the
Charged Property as the Receiver or the Security Trustee shall
think fit to pay;
(e) Fifthly: in payment of other Encumbrances over the Charged
Property of which the Security Trustee is aware having
priority to the Charge (including the Prior Interest), in the
order of their priority and the Security Trustee and the
Receiver shall be entitled to rely upon a certificate from the
prior Encumbrancee as to the amount so secured and shall not
be bound to enquire further as to the accuracy of that amount
or as to whether that amount or any part thereof is validly
secured by such other prior Encumbrance;
(f) Sixthly: in payment of (pari passu and rateably):
(1) all Secured Moneys owing to the Enhancement Providers;
(2) all Secured Moneys owing (as at the date of payment) to;
(A) each Class A Offered Noteholder of a Class A[ ]
Note as calculated and expressed in the A$
Equivalent in the manner set out in clause
12.16(a); and
(B) [each Class A Offered Noteholder of a Class A[ ]
Note as calculated and expressed in the A$
Equivalent in the manner set out in clause
12.16(b);]
(3) [all Secured Moneys owing to each Class A[ ] Noteholder
(as at the date of payment);]
(4) all Secured Moneys owing to:
(A) each US Currency Swap Provider as calculated and
expressed in the A$ Equivalent in the manner set
out in clause 12.16(c);
(B) [each Euro Currency Swap Provider as calculated
and expressed in the A$ Equivalent in the manner
set out in clause 12.16(d);] and
(5) all Secured Moneys owing to each Interest Hedge
Provider;
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
(6) all Secured Moneys owing to the Redraw Facility
Provider;
(7) all Secured Moneys owing to the Top-up Funding Facility
Provider;
(8) all fees and other amounts owing to the Manager under
the Master Trust Deed;
(g) Seventhly: in payment of all Secured Moneys owing to the Class
B Noteholders (as at the date of payment);
(h) Eighthly: pari passu and rateably in payment or towards
satisfaction of all amounts not covered above owing to any
Secured Creditor under any Secured Document;
(i) Ninthly: in payment of subsequent Encumbrances over the
Charged Property of which the Security Trustee is aware, in
the order of their priority and the Security Trustee and the
Receiver shall be entitled to rely upon a certificate from any
subsequent Encumbrancee as to the amount so secured and shall
not be bound to enquire further as to the accuracy of that
amount or as to whether that amount or any part thereof is
validly secured by the subsequent Encumbrance; and
(j) Tenthly: the surplus (if any) shall be paid to the Issuing
Trustee to be distributed in accordance with the terms of the
Master Trust Deed, but shall not carry interest as against the
Security Trustee.
12.2 MONEYS RECEIVED
In applying any moneys towards satisfaction of the Secured Moneys
the Issuing Trustee shall be credited only with so much of the said
moneys available for that purpose as shall be actually received by
the relevant Secured Creditor, Security Trustee or the Receiver and
not required for whatever reason to be disgorged, such credit to
date from the time of such receipt.
12.3 SATISFACTION OF DEBTS
Each Secured Creditor shall accept the distribution of moneys under
this clause in full and final satisfaction of all Secured Moneys.
12.4 INVESTMENT OF FUNDS
If the amount of the moneys at any time available for payment in
respect of the Secured Documents in relation to the Securitisation
Fund under clause 12.1 shall be less than the total amount then due
in respect of the Secured Documents in relation to the
Securitisation Fund, the Security Trustee may, at its discretion,
invest such moneys upon some or one of the investments authorised
under clause 12.5 with power from time to time similarly to vary
such investments. Such investments with the resulting income
therefrom shall be accumulated until the accumulations, together
with any other funds for the time being under the control of the
Security Trustee and available for such payment, shall amount to at
least the total amount then due in respect of the Secured Documents
in relation to the Securitisation Fund and then such accumulations
and funds (after deduction of any Taxes applicable thereto) shall be
applied as specified in clause 12.1.
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12.5 POWERS TO INVEST
Any moneys received in or towards satisfaction of the Secured Moneys
pending application pursuant to the provisions of this Deed, or
surplus moneys which under this Deed ought to or may be invested by
the Security Trustee, may be invested in the name or under the
control of the Security Trustee in any Authorised Investments which
may be selected by the Security Trustee and the Security Trustee may
at any time vary or transpose any such investments for or into other
such investments and shall not be responsible for any loss
occasioned thereby, whether by depreciation in value or otherwise.
12.6 LIMIT OF SECURITY TRUSTEE'S LIABILITY
Notwithstanding anything to the contrary contained in this Deed (and
subject only to clause 14) the Security Trustee shall be under no
obligation to account to any Interested Person for any moneys
received pursuant to the trusts of this Deed other than those
received by the Security Trustee from the Issuing Trustee or
received or recovered by the Security Trustee or the Receiver
hereunder, subject always to such deductions and withholdings by the
Security Trustee or the Receiver as are authorised by this Deed.
12.7 AMOUNTS CONTINGENTLY DUE
(a) If at the time of a distribution of any money under clause
12.1 any part of the Secured Moneys is contingently owing to
any Secured Creditor, the Security Trustee, Receiver or
Attorney may retain an amount equal to the amount contingently
owing or any part of it.
(b) If the Security Trustee, Receiver or Attorney retains any
amount under clause 12.7(a) it must place that amount on
short-term interest bearing deposit which is an Authorised
Investment until the amount contingently owing becomes
actually due and payable or otherwise ceases to be
contingently owing at which time the Security Trustee,
Receiver or Attorney must:
(1) pay to the Secured Creditor the amount which has become
actually due to it; and
(2) apply the balance of the amount retained, together with
any interest on the amount contingently owing, in
accordance with clause 12.1.
12.8 NOTICE OF A SUBSEQUENT ENCUMBRANCE
(a) If the Security Trustee receives actual or constructive notice
of a subsequent Encumbrance, the Security Trustee:
(1) may open a new account in the name of the Issuing
Trustee in its books; or
(2) is regarded as having opened a new account in the name
of the Issuing Trustee in its books,
on the date it received or was regarded as having received
notice of the subsequent Encumbrance.
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
(b) From the date on which that new account is opened or regarded
as opened:
(1) all payments made by the Issuing Trustee to the Security
Trustee; and
(2) all financial accommodation and advances by the Security
Trustee to the Issuing Trustee,
are or are regarded as credited and debited, as the case may
be, to the new account.
(c) The payments by the Issuing Trustee under clause 12.8(b) must
be applied:
(1) first, in reduction of the debit balance, if any, in the
new account; and
(2) second, if there is no debit balance in the new account,
in reduction of the Secured Moneys which have not been
debited or regarded as debited to the new account.
12.9 [PAYMENTS INTO EURO ACCOUNT]
(a) [The Issuing Trustee must direct the Euro Currency Swap
Provider to pay all amounts denominated in Euro payable to the
Issuing Trustee by the Euro Currency Swap Provider under the
Euro Currency Swap into the Euro Account or to the Principal
Paying Agent.]
(b) [If the Issuing Trustee receives any amount denominated in
Euro from the Euro Currency Swap Provider under the Euro
Currency Swap it will promptly pay that amount to the credit
of the Euro Account or to the Principal Paying Agent.]
12.10 [PAYMENTS OUT OF EURO ACCOUNT]
(a) [The Issuing Trustee must, or must require that the Paying
Agents on its behalf, pay all amounts credited to the Euro
Account as follows and in accordance with the Notes
Supplementary Bond Terms Notice for the Securitisation Fund
and the Note Trust Deed.]
(b) [All amounts credited to the Euro Account by the Euro Currency
Swap Provider in relation to a payment by the Issuing Trustee
under clause 12.1(f)(2), will be applied pari passu to pay all
Secured Moneys owing to Class A[ ] Noteholders.]
12.11 PAYMENTS INTO US$ ACCOUNT
(a) The Issuing Trustee must direct the US Currency Swap Provider
to pay all amounts denominated in US$ payable to the Issuing
Trustee by the US Currency Swap Provider under the US Currency
Swap into the US$ Account or to the Principal Paying Agent.
(b) If the Issuing Trustee receives any amount denominated in US$
from the US Currency Swap Provider under the US Currency Swap
it will promptly pay that amount to the credit of the US$
Account or to the Principal Paying Agent.
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
12.12 PAYMENTS OUT OF US$ ACCOUNT
(a) The Issuing Trustee must, or must require that the Paying
Agents on its behalf, pay all amounts credited to the US$
Account as follows and in accordance with the Notes
Supplementary Bond Terms Notice for the Securitisation Fund
and the Note Trust Deed.
(b) All amounts credited to the US$ Account by the US Currency
Swap Provider in relation to a payment by the Issuing Trustee
under clause 12.1(f)(2), will be applied pari passu to pay all
Secured Moneys owing to Class A[ ] Noteholders.
12.13 EXCLUDED AMOUNTS
The following amounts shall not be treated as assets of the Trust
available for distribution under clause 12.1:
(a) the proceeds of cash collateral lodged by the provider of an
Interest Hedge which are payable to that person under that
Interest Hedge;
(b) the proceeds of cash collateral lodged by the provider of a
Currency Swap which are payable to that person under that
Currency Swap; and
(c) the proceeds of any other cash collateral lodged by an
Enhancement Provider under an Enhancement which are payable to
the Enhancement Provider.
This clause 12.13 shall not apply to the extent that the relevant
moneys are applied in accordance with the relevant document to
satisfy any obligation owed to the Issuing Trustee by the relevant
Interest Hedge Provider, Currency Swap Provider or Enhancement
Provider.
12.14 PROPORTIONATE SHARING
(a) Whenever any Secured Creditor receives or recovers any money
in respect of any sum due from the Issuing Trustee under a
Secured Document in any way (including without limitation by
set-off) except those referred to in clause 12.13 or through
distribution by the Security Trustee under this Deed (the
RECEIVED MONEYS) after the Charge has been enforced:
(1) the Secured Creditor must immediately notify the
Security Trustee;
(2) the Secured Creditor must immediately pay that money to
the Security Trustee (unless the Security Trustee
directs otherwise). As between each Class A Noteholder,
such payments (if any) are to be made pari passu and
rateably;
(3) the Security Trustee must treat the payment as if it
were a payment by the Issuing Trustee on account of all
sums then payable to the Secured Creditors; and
(4) the payment or recovery will be taken to have been a
payment for the account of the Security Trustee and not
to the Secured Creditor for its own account, and to that
extent the liability of the Issuing Trustee to the
Secured Creditor will not be reduced by the recovery or
payment, other than
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
to the extent of any distribution received by the
Secured Creditor under paragraph 12.14(a)(3); and
(B) (without limiting sub-paragraph 12.14(a)(3)(A))
immediately on the Secured Creditor making or
becoming liable to make a payment under paragraph
12.14(a)(2), the Issuing Trustee shall indemnify
the Secured Creditor against the payment to the
extent that (despite sub-paragraph 12.14(a)(3)(A))
its liability has been discharged by the recovery
or payment.
(b) If a Secured Creditor receives or recovers any Received
Moneys, and does not pay that amount to the Security Trustee
under clause 12.14(a), the Security Trustee may retain out of
amounts which would otherwise be payable to the Secured
Creditor under this Deed any amounts which the Security
Trustee considers necessary to put all Secured Creditors in
the same position as if that Secured Creditor had complied
with, or been required to comply with, clause 12.14(a) and the
Security Trustee's obligation to apply monies to such Secured
Creditor shall be discharged to the extent of such retention.
12.15 CURRENCY INDEMNITY
The Issuing Trustee shall indemnify each Secured Creditor against
any deficiency which arises whenever, for any reason (including as a
result of a judgement, order or Insolvency Event):
(a) that Secured Creditor receives or recovers an amount in one
currency (the PAYMENT CURRENCY) in respect of any amount
denominated under a Secured Document in another currency (the
DUE CURRENCY); and
(b) the amount actually received or recovered by that Secured
Creditor in accordance with its normal practice when it
converts the Payment Currency into the Due Currency is less
than the relevant amount of the Due Currency.
12.16 CURRENCY CONVERSION
(a) For the purposes of determining the pro rata entitlements of
Class A[ ] Noteholders for amounts available for distribution
under clause 12.1 (but without limiting the amounts actually
available to be converted to the relevant currency at any
time, or to be applied towards paying Class A[ ] Noteholders
under clause 12.1), the A$ Equivalent of the US$ denominated
amount owed to the Class A[ ] Noteholders will be determined
by the Manager and notified to the Security Trustee by
reference to:
(1) if the US Currency Swap is then in full force and
effect, the A$ Exchange Rate; or
(2) if the US Currency Swap is not then in full force and
effect, the spot rate of exchange advised to the
Security Trustee by the Manager which is used for
calculation of amounts payable on the
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
occurrence of an Early Termination Date under the
relevant US Currency Swap (as determined under that US
Currency Swap).
(b) [For the purposes of determining the pro rata entitlements of
Class A[ ] Noteholders for amounts available for distribution
under clause 12.1 (but without limiting the amounts actually
available to be converted to the relevant currency at any
time, or to be applied towards paying Class A[ ] Noteholders
under clause 12.1, the A$ Equivalent of the Euro denominated
amount owed to the Class A[ ] Noteholders will be determined
by the Manager and notified to the Security Trustee by
reference to:
(1) if the Euro Currency Swap is then in full force and
effect, the A$ Exchange Rate; or
(2) if the Euro Currency Swap is not then in full force and
effect, the spot rate of exchange advised to the
Security Trustee by the Manager which is used for
calculation of amounts payable on the occurrence of an
Early Termination Date under the relevant Euro Currency
Swap (as determined under that Euro Currency Swap).]
(c) For the purposes of determining the pro rata entitlements of
the US Currency Swap Provider for amounts available for
distribution under clause 12.1 (but without limiting the
amounts actually available to be converted to the relevant
currency at any time, or to be applied towards paying the US
Currency Swap Provider under clause 12.1), the A$ Equivalent
of the US$ denominated amounts owed to the US Currency Swap
Provider will be determined by the Manager and notified to the
Security Trustee by reference to:
(1) if the US Currency Swap is then in full force and
effect, the A$ Exchange Rate; or
(2) if the US Currency Swap is not then in full force and
effect, the spot rate of exchange advised to the
Security Trustee by the Manager which is used for
calculation of amounts payable on the occurrence of an
Early Termination Date under the relevant US Currency
Swap (as determined under that US Currency Swap).
(d) [For the purposes of determining the pro rata entitlements of
the Euro Currency Swap Provider for amounts available for
distribution under clause 12.1 (but without limiting the
amounts actually available to be converted to the relevant
currency at any time, or to be applied towards paying the Euro
Currency Swap Provider under clause 12.1), the A$ Equivalent
of the Euro denominated amounts owed to the Euro Currency Swap
Provider will be determined by the Manager and notified to the
Security Trustee by reference to:
(1) if the Euro Currency Swap is then in full force and
effect, the A$ Exchange Rate; or
(2) if the Euro Currency Swap is not then in full force and
effect, the spot rate of exchange advised to the
Security Trustee by the Manager which is used for
calculation of amounts payable on the occurrence of an
Early Termination Date under the relevant Euro Currency
Swap (as determined under that Euro Currency Swap).]
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
(e) Any amount to be paid to a Class of Noteholders or a Currency
Swap Provider must be made in [A$][,] [or] US$ [or Euro] [as
applicable] (and where relevant based on the respective
entitlements calculated under clause 12.16(a) to
12.16[(c)][(d)] as applicable). All amounts held in A$ must,
to the extent required to be converted to the relevant
currency after the relevant Currency Swap has terminated, be
converted to the relevant currency at the available spot rate
of exchange for acquiring that currency in the spot foreign
exchange market as at the time of conversion, provided that
if, following that conversion and based on their respective
entitlements, any Class of Noteholders or Currency Swap
Provider would be entitled to an amount greater than their
Secured Moneys as at the relevant date of payment, the excess
is to be applied (in the applicable currency) towards payment
of the Secured Moneys of Secured Creditors who rank equally
within that Class of Noteholders or equally with that Currency
Swap Provider.
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13 REMUNERATION AND INDEMNIFICATION OF SECURITY TRUSTEE
13.1 FEE
(a) Upon and from the Charge becoming enforceable, the Security
Trustee shall be entitled from the proceeds of the Charged
Property by way of remuneration for the Security Trustee's
services hereunder to a fee being the time costs of the
employees of the Security Trustee during that period for the
time spent by such employees relating to the enforcement of
the Charge, and any matters incidental thereto, costed at the
rate then usually charged by the Security Trustee for the
services of such employees to external parties of the Security
Trustee.
(b) The Security Trustee's fee under sub-clause (a) shall be
payable in arrears for a given period on the same dates as the
Issuing Trustee's fee under the Master Trust Deed for the
Securitisation Fund.
13.2 CESSATION OF FEE
The Security Trustee shall not be entitled to remuneration pursuant
to clause 13.1 in respect of any period after the Charge Release
Date.
13.3 EXPENSES
The Issuing Trustee shall from the assets of the Fund pay or
discharge all costs, charges, liabilities and expenses reasonably
incurred by the Security Trustee in relation to the preparation and
execution of this Deed including, but not limited to reasonable
legal expenses and any stamp and other Taxes or duties paid by the
Security Trustee in connection with the preparation and execution of
this Deed.
13.4 COSTS
All costs, charges and expenses incurred and payments made by the
Security Trustee in the lawful exercise of its Powers are payable or
reimbursable by the Issuing Trustee within fourteen days following
demand by the Security Trustee.
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
13.5 INDEMNITY
Subject to clause 26, the Issuing Trustee shall indemnify the
Security Trustee and every or any Receiver, Attorney, or other
person appointed under this Deed in respect of all liabilities and
reasonable expenses (including Taxes) properly incurred by it or by
any person appointed by it or to whom any duties, powers, trusts,
authorities or discretions may be delegated by it in the execution
or purported execution of any duties, powers, trusts, authorities or
discretions vested in it hereby and against all liabilities,
actions, proceedings, costs, claims and demands in respect of any
matter or thing properly done or omitted in any way relating hereto.
Failing due payment in accordance with the preceding provision of
this clause, the Security Trustee may in priority to any payment to
the Secured Creditors retain and pay out of any moneys in its hands
upon the trusts of this Deed the amount of any such liabilities and
expenses, and also any remuneration outstanding to the Security
Trustee under this clause 13.
13.6 NON-DISCHARGE
Unless otherwise specifically stated in any discharge of the trusts
of this Deed the provisions of this clause 13 shall continue in full
force and effect despite such discharge.
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14 SUPPLEMENTAL SECURITY TRUSTEE PROVISIONS
14.1 ADDITIONAL POWERS, PROTECTIONS, ETC.
By way of supplement to any Statute regulating the conduct of the
trusts contained in this Deed and in addition to the powers and
rights which may from time to time be vested in the Security Trustee
by the general law it is expressly declared as follows:
(a) (ACT ON PROFESSIONAL ADVICE): The Security Trustee may act on
the opinion or advice of, or information obtained from, any
lawyer, valuer, banker, broker, accountant or other expert
appointed by the Security Trustee and shall not be responsible
to any Interested Person for any loss occasioned by so acting
so long as the Security Trustee has exercised good faith in
respect of the appointment. Any such opinion, advice or
information may be sent or obtained by letter or facsimile
transmission and the Security Trustee shall not be liable to
any Interested Person for acting in good faith on any opinion,
advice or information purporting to be conveyed by such means
even though it shall contain some error which is not a
manifest error or shall not be authentic.
(b) (NO ENQUIRY): The Security Trustee shall not be bound to give
notice to any person of the execution hereof or to take any
steps to ascertain whether any Event of Default has happened
and, until it shall have actual knowledge or shall have
express notice to the contrary, the Security Trustee shall be
entitled to assume that no such Event of Default has happened
and that the Issuing Trustee is performing all its obligations
under this Deed and under the Secured Documents, and that all
other
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
persons are performing all of the obligations imposed on them
under the Transaction Documents.
(c) (ACTS PURSUANT TO RESOLUTIONS): The Security Trustee shall not
be responsible for having acted in good faith upon any
resolution purporting to have been passed at any meeting of
the Secured Creditors in respect whereof minutes have been
made and signed even though it may subsequently be found that
there was some defect in the constitution of such meeting or
the passing of such resolution or that for any reason such
resolution was not valid or binding upon the Secured
Creditors.
(d) (DIRECTORS' CERTIFICATES): The Security Trustee may call for
and may accept as sufficient evidence of any fact or matter or
of the expediency of any dealing, transaction, step or thing a
certificate signed by any two directors or duly authorised
officers of the Issuing Trustee or the Manager as to any fact
or matter upon which the Security Trustee may, in the exercise
of any of its duties, powers, authorities and discretions
hereunder, require to be satisfied or to have information to
the effect that in the opinion of the person or persons so
certifying any particular dealing, transaction, step or thing
is expedient and the Security Trustee shall not be bound to
call for further evidence and shall not be responsible for any
loss that may be occasioned by acting on any such certificate.
(e) (CUSTODY OF DOCUMENTS): The Security Trustee may hold or
deposit this Deed and any deed or documents relating hereto or
to the Secured Documents with any banker or banking company or
entity whose business includes undertaking the safe custody of
deeds or documents or with any lawyer or firm of lawyers
believed by it to be of good repute and the Security Trustee
shall not be responsible for any loss incurred in connection
with any such holding or deposit and may pay all sums to be
paid on account of or in respect of any such deposit.
(f) (DISCRETION): The Security Trustee shall, as regards all the
powers, trusts, authorities and discretions vested in it
hereby, have absolute and uncontrolled discretion as to the
exercise thereof and shall, subject to clause 14.4, be in no
way responsible to any Interested Person or any other person
for any loss, costs, damages, expenses or inconvenience which
may result from the exercise or non-exercise thereof.
(g) (EMPLOY AGENTS): Wherever it considers it expedient in the
interests of the Secured Creditors, the Security Trustee may,
instead of acting personally, employ and pay an agent selected
by it, whether or not a lawyer or other professional person,
to transact or conduct, or concur in transacting or conducting
any business and to do or concur in doing all acts required to
be done by the Security Trustee (including the receipt and
payment of money under this Deed). Any such agent being a
lawyer, banker, broker or other person engaged in any
profession or business shall be entitled to charge and be paid
all usual professional and other charges for business
transacted and acts done by him or any partner of his or by
his firm in connection with the trusts hereof and also his
reasonable charges in addition to disbursements for all other
work and business done and all time spent by him or his
partners or firm on matters arising in connection
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
herewith including matters which might or should have been
attended to in person by a trustee not being a lawyer, banker,
broker or other professional person.
(h) (DELEGATION): The Security Trustee may whenever it thinks it
expedient in the interests of Secured Creditors, delegate to
any person or fluctuating body of persons selected by it
(including, without limitation, a Related Body Corporate) all
or any of the duties, powers, trusts, authorities and
discretions vested in the Security Trustee by this Deed. Any
such delegation may be by power of attorney or in such other
manner as the Security Trustee may think fit and may be made
upon such terms and conditions (including power to
sub-delegate) as the Security Trustee may think fit. Except
for its own fraud, negligence or wilful default, the Security
Trustee is not liable for any loss incurred as a result of any
fraud, neglect, default or breach of duty by any of its
attorneys, agents or delegates provided that the Security
Trustee exercised reasonable care in choosing each such person
and such appointment was made in good faith, except where such
attorney, agent or delegate is a Related Body Corporate of the
Security Trustee or the Security Trustee expressly directed
the relevant attorney, agent or delegate to take or not to
take (as applicable) the relevant action (in which case the
Security Trustee is liable for the action or inaction of such
person).
(i) (DISCLOSURE): Subject to this Deed, the Security Trustee may
disclose to any Secured Creditor any confidential, financial
or other information made available to the Security Trustee by
the Issuing Trustee, the Manager, any other Interested Person
or any other person in connection with this Deed.
(j) (DETERMINATION): The Security Trustee, as between itself and
the Secured Creditors, shall have full power to determine all
questions and doubts arising in relation to any of the
provisions of this Deed and every such determination, whether
made upon such a question actually raised or implied in the
acts or proceedings of the Security Trustee, shall be
conclusive and shall bind the Security Trustee and the Secured
Creditors.
14.2 SECURITY TRUSTEE NOT PRECLUDED FROM ENTERING INTO CONTRACTS
The Security Trustee, any Related Body Corporate of the Security
Trustee and any director or officer of the Security Trustee or of
any Related Body Corporate of the Security Trustee shall not be
precluded from subscribing for some or all of the Notes with or
without a commission or other remuneration or from purchasing or
otherwise acquiring, holding, dealing in or disposing of Notes, at
any time from contracting or entering into any financial or other
transactions with the Issuing Trustee, the Manager or any Related
Body Corporate thereof or from being interested in any contract or
transaction or from accepting and holding the office of trustee for
the holders of any securities or interests of the Issuing Trustee,
the Manager or any Related Body Corporate thereof and shall not be
liable to account to any Interested Person for any profit made by it
or him thereby or in connection therewith, provided that the
Security Trustee, any Related Body Corporate of the Security Trustee
and any director or officer of the Security Trustee or any Related
Body Corporate of the Security Trustee shall, in connection with the
above mentioned, act in utmost good faith in relation to the
Interested Person.
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
14.3 DUTIES OF THE SECURITY TRUSTEE
The Security Trustee has no duties or responsibilities in its
capacity as trustee other than those expressly set out in this Deed.
14.4 SECURITY TRUSTEE LIABLE FOR NEGLIGENCE ETC.
Subject to clause 14.5, nothing in this Deed shall, in any case
where the Security Trustee has failed to comply with the terms of
this Deed, or to show the degree of skill, care and diligence
required of it as Security Trustee (having regard to the provisions
of this Deed conferring on the Security Trustee any duties, powers,
trusts, authorities or discretions) relieve or indemnify the
Security Trustee from or against any liability which would otherwise
attach to it in respect of any fraud, negligence or wilful default.
14.5 RELIANCE ON EXPERTS
The Security Trustee may act upon the opinion or statement or
certificate or advice of or information obtained from any barrister,
solicitor, banker, accountant, broker, valuer or other person
believed by it in good faith to be expert or properly informed in
relation to the matters upon which they are consulted and the
Security Trustee shall not be liable for anything done or suffered
by it in good faith in reliance upon such opinion, statement,
certificate, advice or information so long as the Security Trustee
has exercised good faith in respect of the appointment.
14.6 INFORMATION
The Issuing Trustee and the Manager authorises:
(a) the Security Trustee to provide any Secured Creditor;
(b) the Note Trustee and any Paying Agent to provide any Class A
Offered Noteholder[; and]
(c) [the Class A[ ] Irish Paying Agent to provide any Class A[ ]
Noteholder],
with any information concerning the Securitisation Fund and Notes
which may come into the possession of the Security Trustee, the Note
Trustee, or any Paying Agent [or the Class A[ ] Irish Paying Agent]
(as the case may be). Save for the information which is required by
any Transaction Document to be provided by it to the respective
persons referred to in paragraph 14.6(a) or 14.6(b) (as the case may
be), none of the Security Trustee, Note Trustee[,] [or] Paying
Agents[, or the Class A[ ] Irish Paying Agent] need otherwise
provide any other person with such information.
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15 RETIREMENT AND REMOVAL OF SECURITY TRUSTEE
15.1 RETIREMENT
The Security Trustee may retire at any time upon giving not less
than three months' notice (or such shorter period as the Manager may
agree) in writing to the Issuing Trustee, the Note Trustee, each
Designated Rating Agency and the
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Manager without assigning any reason. The retiring Security Trustee
will be responsible for any costs incurred as a result of a
voluntary retirement.
15.2 REMOVAL
The Security Trustee may be removed:
(a) by the Manager after prior notice to each Designated Rating
Agency if any of the following occurs in relation to the
Security Trustee in its personal capacity:
(1) the commencement of the winding up of the Security
Trustee;
(2) the appointment of a receiver or administrator or
analogous person in respect of the whole or part of the
undertaking of the Security Trustee;
(3) the cessation by the Security Trustee of its business;
(4) a compromise or arrangement by the Security Trustee with
its creditors;
(5) failure of the Security Trustee to remedy within
fourteen days after written notice by the Manager any
material breach of duty on the part of the Security
Trustee; or
(6) if without the prior written consent of the Manager
there occurs:
(A) a change in fifty-one per cent (or such other
percentage the Manager may in its absolute
discretion determine shall constitute a change in
the effective control of the Security Trustee) of
the shareholding of the Security Trustee existing
at the date of this Deed (whether occurring at one
time or through a series or succession of
transfers or issues of shares);
(B) a change in the effective management of the
Security Trustee as existing at the date of this
Deed such that the Security Trustee is no longer
able to fulfil its duties and obligations in
relation to the Charged Property; or
(C) the establishment by any means of any trust under
which any third party becomes a beneficial owner
of any of the Security Trustee's rights under this
Deed,
and the determination of the Manager (acting bona fide
and reasonably) that any of these matters has occurred
shall be conclusive; and
(b) at any time by an Extraordinary Resolution of the Voting
Secured Creditors.
15.3 APPOINTMENT
The power of appointing a new Security Trustee shall be vested in
the Manager but no person shall be so appointed who shall not have
previously been approved by an Extraordinary Resolution of the
Voting Secured Creditors. Any appointment
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of a new Security Trustee shall as soon as practicable thereafter be
notified by the Manager to the Secured Creditors.
15.4 RETIREMENT OR REMOVAL EFFECTIVE
(a) Subject to clause 15.4(b)), the retirement or removal of the
Security Trustee shall not become effective until a new
Security Trustee is appointed and the Manager has received
confirmation by the Designated Rating Agencies that such
appointment will not cause a downgrading, qualification or
withdrawal of the then current ratings of the Notes.
(b) If the Security Trustee gives notice pursuant to clause 15.1
and no new Security Trustee have been appointed by the Manager
prior to the expiry of this notice, the retirement of the
Security Trustee shall become effective upon expiry of the
notice given under clause 15.1 and the Manager shall act as an
interim Security Trustee until the new Security Trustee has
been appointed and the Manager has received confirmation by
the Designated Rating Agencies that such appointment will not
cause a downgrading, qualification or withdrawal of the then
current ratings of the Notes.
15.5 VESTING OF PROPERTY IN SECURITY TRUSTEE
The new Security Trustee shall forthwith upon appointment execute a
deed in such form as the Manager may reasonably require whereby such
new Security Trustee undertakes to the Secured Creditors jointly and
severally to be bound by all the covenants and obligations on the
part of the outgoing Security Trustee under this Deed from the date
of such appointment and from such date the outgoing Security Trustee
will be absolved and released from all such covenants and
obligations under this Deed in respect thereof (save in respect of
any antecedent fraud, negligence or wilful default) and the new
Security Trustee will and may thereafter exercise all the powers and
enjoy all the rights and will be subject to all the duties and
obligations of the Security Trustee under this Deed in respect
thereof as fully as though the new Security Trustee had been
originally named as a party to this Deed.
15.6 RETENTION OF LIEN
Notwithstanding any release of the outgoing Security Trustee under
this clause, the outgoing Security Trustee shall remain entitled to
the benefit of the indemnities granted by this Deed to the outgoing
Security Trustee in respect of any liability, cost or other
obligation incurred by it whilst acting as Security Trustee, as if
it were still the Security Trustee under this Deed.
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16 MEETINGS OF SECURED CREDITORS
16.1 MEETINGS REGULATED BY THE SCHEDULE
The provisions of the Schedule shall apply to all meetings of
Secured Creditors and to the passing of resolutions thereat.
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16.2 LIMITATION ON SECURITY TRUSTEE'S POWERS
Save as provided for in this Deed, the Security Trustee shall not
assent or give effect to any matter which a meeting of Secured
Creditors is empowered by Extraordinary Resolution to do, unless the
Security Trustee has previously been authorised to do so by an
Extraordinary Resolution of Voting Secured Creditors.
16.3 SECURITY TRUSTEE RIGHTS
(a) Despite any other provision of this Deed, for so long as the
Noteholder Secured Creditors are the only Voting Secured
Creditors they may direct the Security Trustee to do any act
or thing which the Security Trustee is required to do, or may
only do, at the direction of an Extraordinary Resolution of
Voting Secured Creditors including those acts or things
referred to in clause 12 of Schedule 1 and the Security
Trustee shall, subject to this Deed, comply with such
direction of the Noteholder Secured Creditors.
(b) Neither the Security Trustee nor the Manager may call a
meeting of Voting Secured Creditors while the Noteholder
Secured Creditors are the only Voting Secured Creditors,
unless the Noteholder Secured Creditors otherwise consent.
(c) Despite any other provision of this Deed, at any time while an
Event of Default subsists:
(1) if the Noteholder Secured Creditors are not the only
Voting Secured Creditors; and
(2) if Noteholder Secured Creditors direct the Security
Trustee to enforce the Charge (including whether in the
case of the Note Trustee as directed to do so by the
Class A Offered Noteholders or as it determines on
behalf of the Class A Offered Noteholders),
the Security Trustee shall enforce the Charge under clause 7.2
as if directed to do so by an Extraordinary Resolution of
Voting Secured Creditors and clause 16.3(a) shall apply as if
the Noteholder Secured Creditors were the only Voting Secured
Creditors.
(d) The Security Trustee shall not be liable to any Secured
Creditor for acting, or not acting, on the directions of the
Noteholder Secured Creditors except where in so doing the
Security Trustee engages in any fraud, negligence or wilful
default.
(e) Any reference to the Noteholder Secured Creditors where:
(1) they are the only Voting Secured Creditors; or
(2) where the consent of the Noteholder Secured Creditors is
required under this Deed in relation to a discretion or
act of the Security Trustee,
means so many of the Noteholder Secured Creditors who
represent more than 50% of the aggregate of the Invested
Amount of the Class A Notes and the Class B Notes each
calculated and expressed in the A$ Equivalent.
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
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17 CONTINUING SECURITY AND RELEASES
17.1 LIABILITY PRESERVED
Notwithstanding any payout figure quoted or other form of account
stated by the Security Trustee and notwithstanding the rule in
Groongal Pastoral Company Limited (In Liquidation) v. Falkiner
(1924) 35 CLR 157, no grant of full or partial satisfaction of or
discharge from this Deed by the Security Trustee shall release the
Issuing Trustee hereunder until all the Secured Moneys have in fact
been received by the Security Trustee and are not liable for
whatever reason to be disgorged notwithstanding that such quotation
or statement of account may have arisen from the mistake,
negligence, error of law or error of fact of the Security Trustee
its servants or agents.
17.2 ISSUING TRUSTEE'S LIABILITY NOT AFFECTED
This Deed and the liability of the Issuing Trustee hereunder shall
not be affected or discharged by any of the following:
(a) (INDULGENCE): the granting to the Issuing Trustee or to any
other person of any time or other indulgence or consideration;
(b) (DELAY IN RECOVERY): the Security Trustee failing or
neglecting to recover by the realisation of any other security
or otherwise any of the Secured Moneys;
(c) (LACHES): any other laches, acquiescence, delay, act, omission
or mistake on the part of the Security Trustee or any other
person; or
(d) (RELEASE): the release, discharge, abandonment or transfer
whether wholly or partially and with or without consideration
of any other security judgment or negotiable instrument held
from time to time or recovered by the Security Trustee from or
against the Issuing Trustee or any other person.
17.3 WAIVER BY ISSUING TRUSTEE
The Issuing Trustee hereby waives in favour of the Security Trustee:
(a) all rights whatsoever against the Security Trustee and any
other person estate or assets so far as necessary to give
effect to anything in this Deed;
(b) promptness and diligence on the part of the Security Trustee
and any other requirement that the Security Trustee take any
action or exhaust any right against any other person before
enforcing this Deed; and
(c) all rights inconsistent with the provisions of this Deed
including any rights as to contribution or subrogation which
the Issuing Trustee might otherwise be entitled to claim or
enforce.
17.4 NO NOTICE OR ENFORCEMENT
It shall not be incumbent on the Security Trustee to give any notice
of the Charge to any debtors of the Issuing Trustee or to any
purchaser or any other person whomsoever or, subject to this Deed,
to enforce payment of any moneys payable
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
to the Issuing Trustee or to realise any of the Charged Property or
to take any steps or proceedings for that purpose unless the
Security Trustee thinks fit to do so.
17.5 NO LIABILITY FOR LOSS
The Security Trustee shall not nor shall any Receiver be liable or
otherwise accountable for any omission delay or mistake or any loss
or irregularity in or about the exercise, attempted exercise
non-exercise or purported exercise of any of the powers of the
Security Trustee or of the Receiver except for actual fraud,
negligence or wilful default.
17.6 NO LIABILITY TO ACCOUNT
Neither the Security Trustee nor any Receiver shall by reason of the
Security Trustee or the Receiver entering into possession of the
Charged Property or any part thereof be liable to account as
mortgagee or chargee in possession or for anything except actual
receipts or be liable for any loss upon realisation or for any
default, omission, delay or mistake for which a mortgagee or chargee
in possession might be liable.
17.7 INDEMNITY REGARDING EXERCISE OF POWERS
Without prejudice to the right of indemnity given to trustees by
law, each of the Security Trustee and the Receiver shall be entitled
to be indemnified out of the Charged Property in respect of all
costs expenses liabilities and losses incurred by it in the
execution or purported execution of the provisions hereof or of any
of the powers vested in it pursuant to this Deed, including
liabilities and expenses consequent upon any mistake, oversight,
error of judgment or want of prudence on the part of the Security
Trustee or the Receiver and against all actions, proceedings, costs,
claims and demands in respect of any matter or thing done or omitted
in any way relating to the Charged Property unless any of the
foregoing is due to actual fraud, negligence or wilful default of
the Security Trustee and the Security Trustee may obtain and pay out
of any moneys in its possession arising from the trusts or powers of
this Deed all sums necessary to effect such indemnity.
17.8 NO CONFLICT
The Security Trustee and any Receiver may exercise any power under
this Deed notwithstanding that the exercise of that power involves a
conflict between any duty owed to the Issuing Trustee by the
Security Trustee or such Receiver and:
(a) any duty owed by the Security Trustee or Receiver to any other
person; or
(b) the interests of the Security Trustee or Receiver.
17.9 CONTRACT INVOLVING CONFLICT OF DUTY
Any contract which involves any such conflict of duty or interest
shall not be void or voidable by virtue of any such conflict of duty
or interest nor shall the Security Trustee or Receiver be liable to
account to the Issuing Trustee or any other person for any moneys
because of any such conflict of interest or duty.
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
17.10 BENEFIT FOR RECEIVER ETC.
The Security Trustee shall be deemed to have accepted the benefit of
this clause 17 as agent for the Receiver and any attorney, agent or
other person appointed hereunder or by the Security Trustee who are
not parties to this Deed and the Security Trustee shall hold the
benefit of such provisions on trust for the benefit of those
grantees.
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18 ASSURANCE
18.1 FURTHER ASSURANCE
The Issuing Trustee shall procure that all persons having or
claiming any estate or interest in the Charged Property or any part
thereof shall from time to time and at all times hereafter upon the
request of the Security Trustee and at the cost of the Issuing
Trustee, make do and execute or cause to be made, done and executed
all such acts, deeds and assurances whatsoever for more
satisfactorily securing to the Security Trustee the payment of the
Secured Moneys or for assuring or more satisfactorily assuring the
Charged Property to the Security Trustee or as the Security Trustee
may direct and in particular shall, whenever requested by the
Security Trustee so to do, execute in favour of the Security Trustee
such legal mortgages transfers assignments or other assurances of
all or any part of the Charged Property in such form and containing
such powers and provisions as the Security Trustee shall require.
18.2 POSTPONEMENT OR WAIVER OF ENCUMBRANCES
The Manager and the Issuing Trustee shall if required by the
Security Trustee forthwith cause:
(a) any Encumbrance (other than the Prior Interest) which has
arisen or which arises from time to time by operation of law
over the Charged Property in favour of any person including
the Issuing Trustee to be at the Security Trustee's option
postponed in all respects after and subject to this Deed or to
be otherwise discharged released or terminated; and
(b) any borrowing or other obligation secured by any such
Encumbrance at the Security Trustee's option to be waived
released paid or performed.
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19 PAYMENTS
19.1 MONEYS REPAYABLE AS AGREED OR ON DEMAND
In the absence of any agreement to the contrary, the Secured Moneys
shall following the occurrence of an Event of Default be payable by
the Issuing Trustee to the Security Trustee in Dollars immediately
upon demand by the Security Trustee.
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
19.2 NO SET-OFF OR DEDUCTION
All payments by the Issuing Trustee of any moneys forming part of
the Secured Moneys shall be free of any set-off or counterclaim and
without deduction or withholding for any present or future Taxes
unless the Issuing Trustee is compelled by law to deduct or withhold
the same.
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20 DISCHARGE OF THE CHARGE
20.1 RELEASE
Upon the Manager providing a certificate to the Security Trustee
stating that all Secured Moneys have been paid in full and that all
the obligations have been performed, observed and fulfilled,
including that all costs, charges, moneys and expenses incurred by
or payable to or at the direction of the Security Trustee, the
Receiver or any attorney appointed hereunder in respect of the
Securitisation Fund have been paid (upon which certificate, the
Security Trustee may rely conclusively) and upon adequate provision
having been made to the reasonable satisfaction of the Security
Trustee of all costs, charges, moneys and expenses reasonably likely
thereafter to be incurred by or payable to or at the direction of
the Security Trustee, the Receiver or any attorney appointed
hereunder in respect of the Securitisation Fund, then the Security
Trustee shall, subject to clause 20.2, at the request of the Manager
or the Issuing Trustee, and at the cost of the Issuing Trustee,
release the Charged Property from the Charge and this Deed.
20.2 CONTINGENT LIABILITIES
The Security Trustee shall be under no obligation to grant a release
of the Charge or this Deed in respect of the Securitisation Fund
unless at the time such release is sought:
(a) none of the Secured Moneys in respect of the Securitisation
Fund are contingently or prospectively owing except where
there is no reasonable likelihood of the contingent or
prospective event occurring; and
(b) the Security Trustee has no contingent or prospective
liabilities in respect of the Securitisation Fund whether or
not there is any reasonable likelihood of such liabilities
becoming actual liabilities in respect of any bills, notes,
drafts, cheques, guarantees, letters of credit or other
instruments or documents issued, drawn, endorsed or accepted
by the Security Trustee for the account or at the request of
the Issuing Trustee for the Securitisation Fund.
20.3 CHARGE REINSTATED
If any claim is made by any person that any moneys applied in
payment or satisfaction of the Secured Moneys must be repaid or
refunded under any law (including, without limit, any law relating
to preferences, bankruptcy, insolvency or the winding up of bodies
corporate) and the Charge has already been discharged, the Issuing
Trustee shall, at the Issuing Trustee's expense, promptly do,
execute and deliver, and cause any relevant person to do, execute
and deliver, all such acts and instruments as the Security Trustee
may require to reinstate this
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
Charge and this clause shall survive the discharge of the Charge
unless the Security Trustee agrees otherwise in writing.
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21 AMENDMENT
21.1 AMENDMENT BY SECURITY TRUSTEE
The Security Trustee, the Note Trustee and the Issuing Trustee may,
following the giving of at least 5 Banking Days' notice to each
Designated Rating Agency, and with the written approval of the
Manager and subject to clause 16.3, (and, if the proposed
alteration, addition or modification is or is likely to be
prejudicial to their interests) the Noteholder Secured Creditors by
way of supplemental deed alter, add to or modify this Deed
(including this clause 21) so long as such alteration, addition or
modification is:
(a) to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(b) in the opinion of the Security Trustee necessary to comply
with the provisions of any Statute or regulation or with the
requirements of any Governmental Authority;
(c) in the opinion of the Security Trustee appropriate or
expedient as a consequence of an amendment to any Statute or
regulation or altered requirements of any Government Agency
(including, without limitation, an alteration, addition or
modification which is in the opinion of the Security Trustee
appropriate or expedient as a consequence of the enactment of
a Statute or regulation or an amendment to any Statute or
regulation or ruling by the Commissioner or Deputy
Commissioner of Taxation or any governmental announcement or
statement, in any case which has or may have the effect of
altering the manner or basis of taxation of trusts generally
or of trusts similar to the Securitisation Fund);
(d) in the opinion of the Security Trustee neither prejudicial nor
likely to be prejudicial to the interests of the Secured
Creditors as a whole or any class of Secured Creditors; or
(e) such that it does not adversely affect the rating of the Notes
by each Designated Rating Agency in respect of the
Securitisation Fund and the Notes.
21.2 AMENDMENT WITH CONSENT
Where in the opinion of the Security Trustee a proposed alteration,
addition or modification to this Deed, save and except an
alteration, addition or modification referred to in clause 21.1, is
prejudicial or likely to be prejudicial to the interests of Secured
Creditors as a whole or any class of Secured Creditors, the Security
Trustee and the Trustee may make such alteration, addition or
modification if sanctioned by an Extraordinary Resolution of the
Voting Secured Creditors or relevant class of Secured Creditors (as
the case requires).
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21.3 DISTRIBUTION OF AMENDMENTS
The Manager shall distribute to all Secured Creditors and each
Designated Rating Agency a copy of any amendment made pursuant to
clause 21.1 or 21.2 as soon as reasonably practicable after the
amendment has been made.
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22 EXPENSES, STAMP DUTIES AND REGISTRATION
22.1 EXPENSES
The Issuing Trustee shall on demand reimburse the Security Trustee
and the Note Trustee for and keep the Security Trustee and the Note
Trustee indemnified against all expenses including legal costs and
disbursements (on a solicitor/own client basis) incurred by the
Security Trustee and the Note Trustee in connection with:
(a) the preparation and execution of this Deed and any subsequent
consent, agreement, approval or waiver hereunder or amendment
hereto;
(b) the exercise, enforcement, preservation or attempted exercise
enforcement or preservation of any rights under this Deed
including without limitation any expenses incurred in the
evaluation of any matter of material concern to the Security
Trustee;
(c) any enquiry by a Government Agency concerning the Issuing
Trustee or the Charged Property or a transaction or activity
the subject of the Secured Documents; and
(d) the compliance by each of the Security Trustee and the Note
Trustee with its obligations under clause 25.21.
22.2 STAMP DUTIES
(a) Except to the extent contemplated by clause 3.4 of the Note
Trust Deed, the Issuing Trustee shall pay (and reimburse each
Secured Creditor for any such amounts paid by it) all stamp,
loan, transaction, registration and similar Taxes including
fines and penalties, financial institutions duty and federal
debits tax which may be payable to or required to be paid by
any appropriate authority or determined to be payable in
connection with the execution, delivery, performance or
enforcement of this Deed or any payment, receipt or other
transaction contemplated herein.
(b) The Issuing Trustee shall indemnify the Security Trustee and
the Note Trustee against any loss or liability incurred or
suffered by it as a result of the delay or failure by the
Issuing Trustee to pay such Taxes.
22.3 REGISTRATION
The Issuing Trustee shall at its own expense ensure that this Deed
is registered to the extent and within such time limits as may be
prescribed by law so as to ensure the full efficacy of this Deed as
a security to the Security Trustee in all jurisdictions in which any
part of the Charged Property may now or at any time during the
continuance of this Deed be located, in which the Issuing Trustee
may
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
carry on any business or in which the Issuing Trustee is or may
become resident or registered.
22.4 GOODS AND SERVICES TAX IN RELATION TO THE SECURITY TRUSTEE
(a) The fees payable to the Security Trustee referred to in clause
13.1 are exclusive of GST.
(b) In relation to any supply by the Security Trustee under this
deed, the fee payable will be adjusted:
(1) by the net increase or decrease in the costs to the
Security Trustee of making the supply arising from the
New Tax System Changes (including any GST payable on the
supply); and
(2) to take into account any changes in the rate of GST
payable pursuant to the A New Tax System (Goods and
Services Tax Imposition - General) Act 1999.
The Security Trustee may not exercise its rights under this
clause 22.4(b) unless it has received a confirmation from each
Designated Rating Agency (if any) confirming the rating given
by it in respect of the Notes. Such confirmation may be given
prior to the issue of the Notes but no subsequent adjustment
may be made until a further confirmation has been obtained.
(c) If the Security Trustee is entitled under this deed to be
reimbursed or indemnified by any other party for a liability,
loss cost or expense incurred in connection with this deed,
the reimbursement or indemnity payment must not include any
GST component of the cost or expense for which an input tax
credit may be properly claimed by the party entitled to be
reimbursed or indemnified, or by its representative member.
(d) For the purposes of this clause New Tax System Changes means:
(1) the amendment of the Sales Tax (Exemption and
Classifications) Act 1992 made by the A New Tax System
(Goods and Services Tax Transition) Act 1999;
(2) the ending of sales tax, as provided for in the A New
Tax System (End of Sales Tax) Act 1999;
(3) the imposition of the GST; and
(4) any other changes (including changes to Commonwealth,
State or Territory laws) prescribed by the Trade
Practices Regulations for the purposes of the definition
of New Tax System Changes in Trade Practices Act 1974.
22.5 INDEMNITY
Subject to this Deed and without prejudice to any right of indemnity
given by law, the Security Trustee, the Manager, the Note Trustee,
the Receiver or attorney or other person appointed under this Deed
(including, without limitation, any person appointed by the Security
Trustee, the Manager, the Note Trustee or the Receiver or any person
to whom any duties, powers, trusts, authorities or discretions may
be
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
delegated by the Security Trustee, the Manager, the Note Trustee or
the Receiver) (APPOINTEE) will be indemnified by the Issuing Trustee
against all loss, liabilities and expenses reasonably and properly
incurred by the Security Trustee, the Manager, the Note Trustee, the
Receiver, attorney or appointee (as the case may be) in the
execution or purported execution of any duties, powers, trusts,
authorities or discretions vested in such persons pursuant to this
Deed, including, without limitation, all liabilities and expenses
consequent upon any mistake or oversight, error of judgment or want
of prudence on the part of such persons and against all actions,
proceedings, costs, claims and demands in respect of any matter or
thing properly done or omitted in any way relating to this Deed,
unless any of the foregoing is due to actual fraud, negligence or
wilful default on the part of the Security Trustee, the Manager, the
Note Trustee, the Receiver, attorney or appointee (as the case may
be). The Security Trustee may in priority to any payment to the
Secured Creditors retain and pay out of any moneys in its hands upon
the trusts of this Deed all sums necessary to effect such indemnity
including, without limitation, the amount of any such liabilities
and expenses, and also any remuneration outstanding to the Security
Trustee under clause 13.1.
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23 GOVERNING LAW AND JURISDICTION
23.1 GOVERNING LAW
This Deed shall be governed by and construed in accordance with the
laws of the State of New South Wales.
23.2 JURISDICTION
(a) The Issuing Trustee, the Security Trustee, the Manager and the
Secured Creditors each irrevocably submits to and accepts
generally and unconditionally the non-exclusive jurisdiction
of the Courts and appellate Courts of the State of New South
Wales with respect to any legal action or proceedings which
may be brought at any time relating in any way to this Deed.
(b) The Issuing Trustee, the Security Trustee, the Manager and the
Secured Creditors each irrevocably waives any objection it may
now or in the future have to the venue of any such action or
proceedings and any claim it may now or in the future have
that any such action or proceedings have been brought in an
inconvenient forum.
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24 NOTICES
24.1 SERVICE OF NOTICES
Every notice or other communication of any nature whatsoever
required to be served given or made under or arising from this Deed:
(a) shall be in writing in order to be valid;
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
(b) shall be deemed to have been duly served, given or made to a
person if it is:
(1) in the case of a party to this Deed:
(A) delivered to the address of that party;
(B) posted by prepaid post to such address; or
(C) sent by facsimile to the facsimile number of that
party; or
(2) in the case of a Bondholder: delivered or posted by
pre-paid mail to the address of such Bondholder then
appearing on the Register;
(c) shall be sufficient if executed by the party giving serving or
making the same or on its behalf by any attorney, director,
secretary other duly authorised officer or solicitor of such
party; and
(d) shall be deemed to be given, served or made:
(1) (in the case of prepaid registered post within
Australia) within 3 Banking Days of posting;
(2) (in the case of prepaid international registered post)
within 7 Banking Days of posting;
(3) (in the case of facsimile) on receipt of a transmission
report confirming successful receipt at the conclusion
of the transmission; and
(4) (in the case of delivery by hand) on delivery.
24.2 ADDRESSES
The address and facsimile number of each of the Security Trustee,
the Note Trustee, the Issuing Trustee and the Manager for the
purposes of clause 24.1 shall be as follows until the party
concerned notifies in writing all other parties hereto of any
variation thereto:
ISSUING TRUSTEE
Address: Perpetual Limited
Level ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile No: (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Head of Debt Markets/Manager - Securitisation
MANAGER
Address: ME Portfolio Management Limited
Level ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇
Facsimile No: (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Manager - Capital Markets
SECURITY TRUSTEE
Address: Perpetual Trustee Company Limited
Level ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
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Facsimile No: (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Head of Debt Markets/Manager - Securitisation
NOTE TRUSTEE
Address: The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Facsimile No: (▇▇▇▇) ▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Global Structured Finance
--------------------------------------------------------------------------------
25 MISCELLANEOUS
25.1 ASSIGNMENTS
Subject to clause 15, neither the Issuing Trustee nor the Security
Trustee shall assign any of its rights or obligations hereunder
without the prior written consent of the Manager, the Note Trustee
and each Designated Rating Agency.
25.2 CERTIFICATE OF SECURITY TRUSTEE
A certificate in writing signed by an officer of the Security
Trustee certifying the amount payable by the Issuing Trustee to the
Security Trustee or to the Secured Creditors or stating any other
act, matter or thing relating to this Deed shall be conclusive and
binding on the Issuing Trustee in the absence of manifest error on
the face of the certificate.
25.3 CONTINUING OBLIGATION
This Deed shall be a continuing obligation notwithstanding any
settlement of account intervening payment express or implied
revocation or any other matter or thing whatsoever until a final
discharge thereof has been given to the Issuing Trustee.
25.4 SETTLEMENT CONDITIONAL
Any settlement or discharge between the Issuing Trustee and the
Security Trustee shall be conditional upon any security or payment
given or made to the Security Trustee by the Issuing Trustee or any
other person in relation to the Secured Documents or the Secured
Moneys not being avoided repaid or reduced by virtue of any
provision or enactment relating to bankruptcy insolvency or
liquidation for the time being in force and, in the event of any
such security or payment being so avoided repaid or reduced the
Security Trustee shall be entitled to recover the value or amount of
such security or payment avoided, repaid or reduced from the Issuing
Trustee subsequently as if such settlement or discharge had not
occurred.
25.5 NO MERGER
Neither this Deed nor any of the Security Trustee's or the
Receiver's powers shall merge or prejudicially affect nor be merged
in or prejudicially affected by and the
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Issuing Trustee's obligations hereunder shall not in any way be
abrogated or released by any other security any judgment or order
any contract any cause of action or remedy or any other matter or
thing now or hereafter existing in respect of the Secured Moneys.
25.6 INTEREST ON JUDGMENT
If a liability under this Deed (other than a liability for
negligence, fraud or wilful default of the Issuing Trustee under the
Secured Documents) becomes merged in a judgment or order then the
Issuing Trustee as an independent obligation shall pay interest to
the Security Trustee on the amount of that liability at a rate being
the higher of the rate payable pursuant to the judgment or order and
the highest rate payable on the Secured Moneys from the date it
becomes payable until it is paid.
25.7 NO POSTPONEMENT
The Security Trustee's rights under this Deed shall not be
discharged, postponed or in any way prejudiced by any subsequent
Encumbrance nor by the operation of the rules known as the rule in
▇▇▇▇▇▇▇▇▇ v Rolt or the rule in Claytons Case.
25.8 SEVERABILITY OF PROVISIONS
Any provision of this Deed which is illegal void or unenforceable
shall be ineffective to the extent only of such illegality voidness
or unenforceability without invalidating the remaining provisions
hereof.
25.9 REMEDIES CUMULATIVE
The rights and remedies conferred by this Deed upon the Security
Trustee and the Receiver are cumulative and in addition to all other
rights or remedies available to the Security Trustee or the Receiver
by Statute or by general law.
25.10 WAIVER
A failure to exercise or enforce or a delay in exercising or
enforcing or the partial exercise or enforcement of any right remedy
power or privilege hereunder by the Security Trustee shall not in
any way preclude or operate as a waiver of any further exercise or
enforcement thereof or the exercise or enforcement of any other
right remedy power or privilege hereunder or provided by law.
25.11 CONSENTS AND APPROVALS
Where any act matter or thing hereunder depends on the consent or
approval of the Security Trustee then unless expressly provided
otherwise herein such consent or approval may be given or withheld
in the absolute and unfettered discretion of the Security Trustee
and may be given subject to such conditions as the Security Trustee
thinks fit in its absolute and unfettered discretion.
25.12 WRITTEN WAIVER, CONSENT AND APPROVAL
Any waiver consent or approval given by the Security Trustee under
this Deed shall only be effective and shall only bind the Security
Trustee if it is given in writing or given verbally and subsequently
confirmed in writing and executed by
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the Security Trustee or on its behalf by an officer for the time
being of the Security Trustee.
25.13 TIME OF ESSENCE
Time is of the essence in respect of the Issuing Trustee's
obligations hereunder.
25.14 MORATORIUM LEGISLATION
To the fullest extent permitted by law, the provisions of all
Statutes operating directly or indirectly:
(a) to lessen or otherwise to vary or affect in favour of the
Issuing Trustee any obligation under this Deed; or
(b) to delay or otherwise prevent or prejudicially affect the
exercise of any powers conferred on the Security Trustee or
the Receiver under this Deed,
are hereby expressly waived negatived and excluded.
25.15 DEBIT ACCOUNTS
The Issuing Trustee authorises the Security Trustee at any time
after the Charge becomes enforceable pursuant to the provisions of
this Deed, to apply without prior notice any credit balance whether
or not then due to which the Issuing Trustee is at any time entitled
on any account at any office of the Security Trustee in or towards
satisfaction of any sum then due and unpaid from the Issuing Trustee
to the Security Trustee under this Deed or on any other account
whatsoever and the Issuing Trustee further authorises the Security
Trustee without prior notice to set-off any amount owing whether
present or future actual contingent or prospective and on any
account whatsoever by the Security Trustee to the Issuing Trustee
against any of the Secured Moneys. The Security Trustee shall not be
obliged to exercise any of its rights under this clause, which shall
be without prejudice and in addition to any right of set-off
combination of accounts lien or other right to which it is at any
time otherwise entitled whether by operation of law contract or
otherwise.
25.16 BINDING ON EACH SIGNATORY
This Deed shall bind each of the signatories hereto notwithstanding
that any one or more of the named parties hereto does not execute
this Deed, that there is any invalidity forgery or irregularity
touching any execution hereof or that this Deed is or becomes
unenforceable void or voidable against any such named party.
25.17 COUNTERPARTS
This Deed may be executed in a number of counterparts and all such
counterparts taken together shall be deemed to constitute one and
the same instrument.
25.18 CERTIFICATE OF AMOUNT OF SECURED MONEYS ETC
A certificate signed by a director, secretary or manager of the
Security Trustee will be sufficient evidence against the Issuing
Trustee and the Secured Creditors, in the absence of manifest error
or proof to the contrary:
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(a) as to the amount of the Secured Moneys stated in the
certificate;
(b) that a person specified in that certificate is a Secured
Creditor;
(c) that a document specified in the certificate is a Secured
Document; and
(d) that the Security Trustee is of the opinion stated in the
certificate.
25.19 ATTORNEYS
Each of the attorneys executing this Deed states that the attorney
has no notice of the revocation of the power of attorney appointing
that attorney.
25.20 KNOW YOUR CUSTOMER
Subject to any confidentiality, privacy or general trust law
obligations owed by the Note Trustee or the Issuing Trustee to
Bondholders and any applicable confidentiality or privacy laws,
except to the extent those obligations or laws are overridden by
applicable anti-money laundering or counter-terrorism financing
laws, each party hereto (the INFORMATION PROVIDER) agrees to provide
any information and documents reasonably required by another party
hereto (the INFORMATION RECEIVER) for the Information Receiver to
comply with any applicable anti-money laundering or
counter-terrorism financing laws including, without limitation, any
laws imposing "know your customer" or other identification checks or
procedures on a party, but only to the extent that such information
is in the possession of, or otherwise readily available to, the
Information Provider. The Information Receiver may, to the extent
required by law, decline to perform its affected obligations under
the Transaction Documents to which it is a party. Any Information
Receiver receiving information and documents pursuant to this clause
25.20 agrees to utilize such information and documents solely for
the purpose of complying with applicable anti-money laundering or
counter-terrorism financing laws.
25.21 COMPLIANCE WITH REGULATION AB
In relation to compliance with Regulation AB:
(a) each party to this deed acknowledges and agrees that the
purpose of this clause 25.21 is to facilitate compliance by
such party in relation to the Securitisation Fund with the
provisions of Regulation AB and related rules and regulations
of the Commission to the extent applicable to such party;
(b) the Manager shall not exercise its right to request delivery
of information or other performance under these provisions
other than as required to comply with the Securities Act, the
Exchange Act and the rules and regulations of the Commission
thereunder, including Regulation AB, with respect to the
Securitisation Fund. The Manager shall not request the
delivery of information or other performance under this clause
25.21 unless the Manager is required under the Exchange Act to
file an annual report on Form 10-K with respect to the
Securitisation Fund. The Manager and each other party to this
Deed acknowledge that interpretations of the requirements of
Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities
markets, advice of
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counsel, or otherwise, and agrees to comply with requests made
by the Manager in good faith for delivery of information under
these provisions on the basis of evolving interpretations of
Regulation AB; provided that, to the extent the Manager and
the Issuing Trustee or the Security Trustee do not agree with
respect to an interpretation of Regulation AB, the Manager and
the Issuing Trustee or the Security Trustee (as applicable)
shall obtain a written opinion of counsel of U.S. national
reputation in the practice of U.S. federal securities laws
reasonably acceptable to the Manager and the Issuing Trustee
or the Security Trustee (as applicable), addressed to the
Manager and the Issuing Trustee or the Security Trustee (as
applicable), stating the opinion of such counsel with respect
to the interpretation of the relevant provision(s) of
Regulation AB; provided, further, that the costs and fees of
such counsel incurred in the preparation of such written
opinion shall be divided equally between the Manager and the
Issuing Trustee or the Security Trustee (as applicable). In
relation to the Securitisation Fund, each party to this Deed
shall cooperate fully with the Manager to deliver to the
Manager (including any of its assignees or designees), any and
all statements, reports, certifications, records and any other
information within the control of such party or for which such
party is responsible necessary in the good faith determination
of the Manager to permit the Manager to comply with the
provisions of Regulation AB, together with such disclosures
relating to the Manager, such party, any Subcontractor of such
party, the Loans, the servicing of the Loans or any other
servicing activities within the meaning of Item 1122 of
Regulation AB, reasonably believed by the Manager to be
necessary in order to effect such compliance;
(c) the Manager (including any of its assignees or designees)
shall cooperate with each other party to this Deed by
providing timely notice of requests for information under
these provisions following the Manager becoming aware that it
is required under the Exchange Act to file an annual report on
Form 10-K in any year and by reasonably limiting such requests
to information required, in the Manager's reasonable judgment,
to comply with Regulation AB;
(d) each party to this deed acknowledges and agrees that, to the
extent the Manager reasonably determines:
(1) in respect of the Issuing Trustee and the Security
Trustee - upon consultation with, and to the extent
agreed with, such party; and
(2) in respect of the Note Trustee - upon consultation with
such party,
that such party is "participating in the servicing function"
in relation to the Securitisation Fund within the meaning of
Item 1122 of Regulation AB, such party will comply with the
applicable requirements contained in clause 25.21(e) - (j);
provided that, to the extent the Manager and the Issuing
Trustee or the Security Trustee (as applicable) do not agree
whether such party is "participating in the servicing
function" with respect to one or more Servicing Criteria
within the meaning of Item 1122 in relation to the
Securitisation Fund, the Manager and the Issuing Trustee or
the Security Trustee (as applicable) shall obtain a written
opinion of
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counsel of U.S. national reputation in the practice of U.S.
federal securities laws reasonably acceptable to the Manager
and the Issuing Trustee or the Security Trustee (as
applicable), addressed to the Manager and the Issuing Trustee
or the Security Trustee (as applicable), stating whether, in
the opinion of such counsel, the Issuing Trustee or the
Security Trustee (as applicable) is "participating in the
servicing function" with respect to such Servicing Criteria
within the meaning of Item 1122 in relation to the
Securitisation Fund; provided, further, that the costs and
fees of such counsel incurred in the preparation of such
written opinion shall be divided equally between the Manager
and the Issuing Trustee or the Security Trustee (as
applicable);
(e) on or before September 1 of each calendar year, commencing in
[ ], such party shall upon the reasonable request of the
Manager:
(1) deliver to the Manager a report (in form and substance
reasonably satisfactory to the Manager) regarding such
party's assessment of compliance with the Servicing
Criteria during the immediately preceding financial year
ended June 30, as required under Rules 13a-18 and 15d-18
of the Exchange Act and Item 1122 of Regulation AB. Such
report shall be addressed to the Manager and signed by
an authorized officer of such party, and shall address
each of the Servicing Criteria specified on a
certification substantially in the form of Schedule 2
hereto and addressing, at a minimum, the criteria
identified in Schedule 3 hereto as "Applicable Servicing
Criteria", but only with respect to such of the
Servicing Criteria that such party performs;
(2) deliver to the Manager a report of a registered public
accounting firm reasonably acceptable to the Manager
that attests to, and reports on, the assessment of
compliance made by such party and delivered pursuant to
the preceding paragraph. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange
Act;
(3) cause each Subcontractor of such party (if any)
determined by the such party pursuant to clause 25.21(f)
to be "participating in the servicing function" within
the meaning of Item 1122 of Regulation AB, to deliver to
the Manager an assessment of compliance and accountants'
attestation as and when provided in clause 25.21(e)(1)
and (2), but only with respect to such of the Servicing
Criteria that such Subcontractor of such party performs;
An assessment of compliance provided by a Subcontractor of
such party pursuant to clause 25.21(e)(3) need not address any
elements of the Servicing Criteria other than those specified
by such party pursuant to clause 25.21(f), and need only
address such of the Servicing Criteria that such Subcontractor
performs;
(f) in relation to the use of Subcontractors:
(1) such party shall promptly upon the reasonable request of
the Manager provide to the Manager (or any designee of
the Manager) a written description (in form and
substance satisfactory to the
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Manager) of the role and function of each Subcontractor
utilized by such party, specifying:
(A) the identity of each such Subcontractor;
(B) which (if any) of such Subcontractors are
"participating in the servicing function" within
the meaning of Item 1122 of Regulation AB; and
(C) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by
each Subcontractor identified pursuant to clause
25.21(f)(1)(B);
(2) as a condition to the utilization of any Subcontractor
determined to be "participating in the servicing
function" within the meaning of Item 1122 of Regulation
AB, (i) such party shall cause any such Subcontractor
used by such party for the benefit of the Manager to
comply with the provisions of clauses 25.21(e) - (j),
25.22 and 25.23 of this Deed to the same extent as if
such Subcontractor were such party (provided that in the
case of a Subcontractor of the Issuing Trustee or the
Security Trustee, the obligations of such Subcontractor
under clause 25.21(h) will be owed directly to the
Manager and the Issuing Trustee or the Security Trustee,
as the case may be, will do all things reasonably
necessary to cause the Subcontractor to owe such
obligations directly to the Manager) and (ii) in the
case of the Issuing Trustee and the Security Trustee,
such party shall obtain the written consent of the
Manager (which is not to be unreasonably withheld or
delayed) to the utilization of such Subcontractor. Such
party shall be responsible for obtaining from each
Subcontractor and delivering to the Manager any
assessment of compliance and accountants' attestation
required to be delivered by such Subcontractor under
clause 25.21(e)-(j), in each case as and when required
to be delivered;
(g) the Note Trustee represents, warrants and agrees that each
report required pursuant to clauses 25.21(e)(1) and
25.21(e)(3) to be provided by the Note Trustee or any
Subcontractor of the Note Trustee will be accurate in all
material respects and will not contain an untrue statement of
a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are
made, not misleading
(h) each of the Issuing Trustee and the Security Trustee shall
indemnify the Manager, and shall hold the Manager harmless
from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses that it
sustains directly as a result of:
(1) any untrue statement of a material fact contained or
alleged to be contained in any information, report,
certification, accountants' letter or other material
provided in written or electronic form under this clause
25.21 by or on behalf of such party, or provided under
this clause 25.21 by or on behalf of any Subcontractor
of such party (with respect to such party, collectively,
the "COMPANY
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INFORMATION"); provided that in the case of any untrue
statement of a material fact contained or alleged to be
contained in the accountant's letter, each of the
Issuing Trustee and the Security Trustee will indemnify
and hold harmless the Manager only to the extent of the
sum that the Issuing Trustee or the Security Trustee,
respectively, recovers from the accounting firm
providing such accountant's letter (which recovery the
Issuing Trustee and the Security Trustee (as the case
may be) must if the Issuing Trustee or the Security
Trustee (as the case may be) in good faith determines
the Issuing Trustee or the Security Trustee (as the case
may be) is entitled to do so after taking professional
advice pursue including by taking action in any relevant
court of competent jurisdiction); provided, further,
that neither the Issuing Trustee nor the Security
Trustee will indemnify or hold harmless the Manager to
the extent that the untrue statement of a material fact
contained or alleged to be contained in the Company
Information relates to information provided to the
Issuing Trustee or the Security Trustee, respectively,
by the Manager or any other party to enable such party
to complete its duties under the Transaction Documents;
or
(2) the omission or alleged omission to state in the Company
Information a material fact required to be stated in the
Company Information or necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; provided, by
way of clarification, that this clause 25.21(h)(2) shall
be construed solely by reference to the Company
Information and not to any other information
communicated in connection with a sale or purchase of
securities, without regard to whether the Company
Information or any portion thereof is presented together
with or separately from such other information;
provided, further, that in the case of the omission or
alleged omission to state in an accountant's letter a
material fact required to be stated in the accountant's
letter or necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading, each of the Issuing
Trustee and the Security Trustee will indemnify and hold
harmless the Manager only to the extent of the sum that
the Issuing Trustee or the Security Trustee,
respectively, recovers from the accounting firm
providing such accountant's letter (which recovery the
Issuing Trustee and the Security Trustee (as the case
may be) must if the Issuing Trustee or the Security
Trustee (as the case may be) in good faith determines
the Issuing Trustee or the Security Trustee (as the case
may be) is entitled to do so after taking professional
advice pursue including by taking action in any relevant
court of competent jurisdiction); provided, further,
that neither the Issuing Trustee nor the Security
Trustee will indemnify or hold harmless the Manager to
the extent that the omission or alleged omission to
state in the Company Information a material fact
required to be stated in the Company Information or
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
misleading, relates to information provided to the
Issuing Trustee or the Security Trustee, respectively,
by the Manager or any other party to enable such party
to complete its duties under the Transaction Documents;
or
(3) any failure by such party or any Subcontractor of such
party to deliver any information, report, certification,
accountants' letter or other material when and as
required under this clause 25.21, including any failure
by such party to disclose any non-compliance with any of
the Servicing Criteria in a certification or to identify
pursuant to clause 25.21(f) any Subcontractor
"participating in the servicing function" within the
meaning of Item 1122 of Regulation AB. In the case of
any failure of performance described in clause
25.21(h)(3), such party shall promptly reimburse the
Manager, for all costs reasonably incurred by the
Manager in order to obtain the information, report,
certification, accountants' letter or other material not
delivered as required by such party or any Subcontractor
of such party;
(i) any failure by such party or any Subcontractor of such party
to:
(1) deliver any information, report, certification,
accountants' letter or other material when and as
required under this clause 25.21, shall, except as
provided in clause 25.21(i)(2), immediately and
automatically, without notice or grace period, entitle
the Manager, in its sole discretion:
(A) to remove such party or direct such party to
remove the Subcontractor of such party from the
performance of any activities which the Manager
reasonably determines to constitute "participating
in the servicing function" in relation to the
Securitisation Fund within the meaning of Item
1122 of Regulation AB; and
(B) to replace such party with respect to such
activities, each at the expense of such party,
without payment (notwithstanding anything in the
Transaction Documents to the contrary) of any
compensation to such party; provided that to the
extent that any provision of the Transaction
Documents expressly provides for the survival of
certain rights or obligations following
termination of such party, such provision shall be
given effect;
(2) deliver any information, report, certification or
accountants' letter when and as required under clause
25.21(e)-(j) or (except as provided below) any failure
by such party to identify pursuant to clause 25.21(f)
any Subcontractor of such party "participating in the
servicing function" within the meaning of Item 1122 of
Regulation AB, which continues unremedied for ten
calendar days after the date on which such information,
report, certification or accountants' letter was
required to be delivered, shall entitle the Manager, in
its sole discretion:
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(A) to remove such party or direct such party to
remove the Subcontractor of such party from the
performance of any activities which the Manager
reasonably determines to constitute "participating
in the servicing function" in relation to the
Securitisation Fund within the meaning of Item
1122 of Regulation AB; and
(B) to replace such party with respect to such
activities, in the case of the Issuing Trustee,
the Security Trustee or any Subcontractor of
either such party, at the expense of such party,
without payment (notwithstanding anything in the
Transaction Documents to the contrary) of any
compensation to such party;
provided that to the extent that any provision of the
Transaction Documents expressly provides for the
survival of certain rights or obligations following
termination of such party, such provision shall be given
effect; and
(j) each of the Issuing Trustee and the Security Trustee shall
promptly reimburse the Manager (or any designee of the
Manager), for all reasonable expenses incurred by the Manager
(or such designee), as such are incurred, in connection with
the termination of such party and the transfer of servicing
activities within the meaning of Item 1122 of Regulation AB to
a successor. The provisions of this clause 25.21(j) shall not
limit whatever rights the Manager may have under other
provisions of the Transaction Documents or otherwise, whether
in equity or at law, such as an action for damages, specific
performance or injunctive relief.
25.22 DIRECTION OF CLAIMS BY THE MANAGER
(a) If the Issuing Trustee or the Security Trustee (for the
purposes of this clause 25.22, each a RELEVANT CLAIMANT) is
entitled to recover from the accounting firm providing the
accountant's letter referred to in clause 25.21(a) by any
action, proceeding, claim or demand ((for the purpose of this
clause 25.22, a CLAIM), the Relevant Claimant must if the
Issuing Trustee or the Security Trustee in good faith
determines that it is entitled to do so after taking
professional advice pursue such Claim and must promptly notify
the Manager in writing of such Claim.
(b) Upon notice to the Manager of any such Claim under clause
25.22(a), the Manager will have the option to assume the
direction of that Claim (including the employment of legal
advisers selected by the Relevant Claimant but approved by the
Manager subject to the payment by the Relevant Claimant of all
fees and expenses).
(c) If the Relevant Claimant receives notice from the Manager of
its election to direct the Claim and the Manager approves the
legal advisers selected by the Relevant Claimant for the
purposes of that Claim, the Relevant Claimant will not be
liable to the Manager under this clause 25.22 for any fees or
expenses subsequently incurred by the Manager in connection
with the Claim unless the Relevant Claimant does not employ
legal advisers
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
approved by or on behalf of the Manager to represent the
Manager within a reasonable time after notice of the Claim.
25.23 DIRECTION OF DEFENCE OF CLAIMS
(a) If any action, proceeding, claim or demand brought against the
Manager in connection with (i) any untrue statement of a
material fact contained or alleged to be contained in the
Company Information referred to in clause 25.21(a) or (ii) the
omission or alleged omission to state in the Company
Information a material fact required to be stated in the
Company Information or necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (for the purpose of this
clause 25.23, a CLAIM), the Issuing Trustee and the Security
Trustee (for the purpose of this clause 25.23, each a RELEVANT
DEFENDANT) will have the option to assume the direction of
that Claim (including the employment of legal advisers
selected by the Relevant Defendant but approved by the Manager
subject to the payment by the Relevant Defendant of all fees
and expenses).
(b) If the Relevant Defendant notifies the Manager in writing of
its election to direct the defence of a Claim brought against
the Relevant Defendant and the Manager approves the legal
advisers selected by the Relevant Defendant for the purposes
of the defence of that Claim, the Relevant Defendant will not
be liable to the Manager under this clause 25.23 for any fees
or expenses subsequently incurred by the Manager in connection
with the Claim against the Relevant Defendant unless the
Relevant Defendant does not employ legal advisers approved by
or on behalf of the Manager to represent the Relevant
Defendant within a reasonable time after notice of the Claim.
(c) If any Claim brought against a Relevant Defendant is settled
with respect to the Relevant Defendant with the consent of the
Manager or if there is a final judgement against the Relevant
Defendant in relation to it, the Relevant Defendant agrees to
indemnify and hold harmless the Manager from and against any
loss or liability by reason of such settlement or judgement
(other than any fees and expenses incurred in circumstances
where the Relevant Defendant is not liable for them under
clause 25.23(b), or any fees and expenses incurred in
connection with any Claim brought against a Relevant Defendant
that is settled with respect to the Relevant Defendant or
compromised by the Relevant Defendant without the consent of
the Manager (unless the Manager has unreasonably withheld its
consent)).
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26 TRUSTEES' LIABILITY
26.1 LIMITATION ON ISSUING TRUSTEE'S LIABILITY
(a) Clause 26 of the Master Trust Deed applies to the obligations
and liabilities of the Issuing Trustee and the Manager under
this deed.
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(b) The Issuing Trustee enters into the Transaction Documents and
issues the Notes in its capacity as trustee of the
Securitisation Fund and in no other capacity (except where the
Transaction Documents provide otherwise). Subject to clause
26.1(d) below, a liability arising under or in connection with
the Notes, the Transaction Documents or the Securitisation
Fund is limited to and can be enforced against the Issuing
Trustee only to the extent to which it can be satisfied out of
the assets and property of the Securitisation Fund which are
available to satisfy the right of the Issuing Trustee to be
exonerated or indemnified for the liability. This limitation
of the Issuing Trustee's liability applies despite any other
provision of the Transaction Documents (other than clause 12.1
of the Note Trust Deed) and extends to all liabilities and
obligations of the Issuing Trustee in any way connected with
any representation, warranty, conduct, omission, agreement or
transaction related to the Notes, the Transaction Documents or
the Securitisation Fund.
(c) Subject to clause 26.1(d) below, no person (including any
Relevant Party) may take action against the Issuing Trustee in
any capacity other than as trustee of the Securitisation Fund
or seek the appointment of a receiver (except in relation to
property of the Securitisation Fund), or a liquidator, an
administrator or any similar person to the Issuing Trustee or
prove in any liquidation, administration or arrangement of or
affecting the Issuing Trustee except in relation to the assets
of the Securitisation Fund.
(d) The provisions of this clause 26.1 shall not apply to any
obligation or liability of the Issuing Trustee to the extent
that it is not satisfied because under a Transaction Document
or by operation of law there is a reduction in the extent of
the Issuing Trustee's indemnification or exoneration out of
the assets of the Securitisation Fund, as a result of the
Issuing Trustee's fraud, negligence or wilful default.
(e) It is acknowledged that the Relevant Parties are responsible
under this deed or the other Transaction Documents for
performing a variety of obligations relating to the
Securitisation Fund. No act or omission of the Issuing Trustee
(including any related failure to satisfy its obligations
under this Deed) will be considered fraud, negligence or
wilful default of the Issuing Trustee for the purpose of
clause 26.1(d) above to the extent to which the act or
omission was caused or contributed to by any failure by any
Relevant Party or any other person who has been delegated or
appointed by the Issuing Trustee in accordance with the
Transaction Documents to fulfil its obligations relating to
the Securitisation Fund or by any other act or omission of a
Relevant Party or any other person.
(f) No attorney, agent, delegate, receiver or receiver and manager
appointed in accordance with this deed or any other
Transaction Documents has authority to act on behalf of the
Issuing Trustee in a way which exposes the Issuing Trustee to
any personal liability and no act or omission of any such
person will be considered fraud, negligence or wilful default
of the Issuing Trustee for the purposes of clause 26.1(d).
(g) The Issuing Trustee is not obliged to do or refrain from doing
anything under this Deed (including incur any liability)
unless the Issuing Trustee's
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liability is limited in the same manner as set out in
paragraphs (b) to (f) of this clause 26.1.
(h) For the purposes of this clause 26.1, "Relevant Parties" means
each party to a Transaction Document other than the Issuing
Trustee.
26.2 LIMITATION ON SECURITY TRUSTEE'S LIABILITY
Notwithstanding any other provision of this Deed, the Security
Trustee will have no liability under or in connection with this Deed
or any other Secured Document other than to the extent to which the
liability is able to be satisfied out of the property from which the
Security Trustee is actually indemnified for the liability. This
limitation will not apply to a liability of the Security Trustee to
the extent that it is not satisfied because, under this Deed or by
operation of law, there is a reduction in the extent of the Security
Trustee's indemnification as a result of the Security Trustee's
fraud, negligence or wilful default. Nothing in this clause or any
similar provision in any other Secured Document limits or adversely
affects the powers of the Security Trustee, any Receiver or attorney
in respect of the Charge or the Charged Property.
26.3 RIGHTS AGAINST CHARGED PROPERTY PRESERVED
The Charged Property shall secure to the Security Trustee, and the
Security Trustee shall have recourse to the Charged Property for,
all of the liabilities of the Issuing Trustee to the Secured
Creditors under the Secured Documents notwithstanding that at
general law, under statute or under the Master Trust Deed the
Issuing Trustee shall not have properly incurred such liability as
Issuing Trustee or not have a right of indemnity in relation thereto
from the Charged Property or has failed to execute that degree of
care, diligence and prudence required of a trustee (including,
without limiting the generality of the foregoing any fraud,
negligence or breach of trust).
26.4 WAIVER OF PERSONAL LIABILITY
Except in the case of fraud, negligence or wilful default on the
part of the Issuing Trustee in its capacity as Issuing Trustee each
of the Manager and Security Trustee severally waives its rights and
releases the Issuing Trustee from any personal liability whatsoever,
for any loss or damage whatsoever in any way arising in respect of:
(a) the Secured Moneys; or
(b) this Deed
which cannot be paid or satisfied out of the Charged Property.
26.5 RESTRICTED REMEDIES
Except as provided in clauses 26.1(d) and 26.2, the Security Trustee
shall not, in respect of this Deed:
(a) (JUDGMENT) obtain a judgment for the payment of money or
damages by the Issuing Trustee;
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(b) (STATUTORY DEMAND) issue any demand under s459E(1) of the
Corporations Act (or any analogous provision under any other
law) against the Issuing Trustee;
(c) (WINDING UP) apply for the winding up or dissolution of the
Issuing Trustee;
(d) (EXECUTION) levy or enforce any distress or other execution
to, on, or against any assets of the Issuing Trustee;
(e) (COURT APPOINTED RECEIVER) apply for the appointment by a
court of a receiver to any of the assets of the Issuing
Trustee;
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against the Issuing Trustee; or
(g) (ADMINISTRATOR) appoint, or agree to the appointment, of any
administrator to the Issuing Trustee,
or take proceedings for any of the above and the Security Trustee
waives its rights to make those applications and take those
proceedings.
A reference to the Issuing Trustee in this clause 26.5 is to the
Issuing Trustee in its personal capacity and not as trustee of the
Securitisation Fund.
26.6 WILFUL DEFAULT OF THE ISSUING TRUSTEE
For the purposes of this Deed the expression "wilful default":
(a) in relation to the Issuing Trustee, means a wilful default of
this Deed by the Issuing Trustee
(1) other than a default which:
(A) arises out of a breach of a Transaction Document
by a person other than the Issuing Trustee or any
person referred to in paragraph 26.6(b) in
relation to the Issuing Trustee;
(B) arises because some other act or omission is a
precondition to the relevant act or omission of
the Issuing Trustee, and that other act or
omission does not occur;
(C) is in accordance with a lawful court order or
direction or is required by law; or
(D) is in accordance with an instruction or direction
given to it by any person in circumstances where
that person is authorised to do so by any
Transaction Document; and
(2) in circumstances where had it not committed that default
it would have been entitled to recoupment, reimbursement
or a right of indemnity for its costs and expenses (if
any) in complying with this Deed from the Fund.
(b) A reference to the "fraud", "negligence" or "wilful default"
of the Issuing Trustee means the fraud, negligence or wilful
default of the Issuing Trustee and of its officers or
employees, but not of its agents or delegates, unless the
Issuing Trustee is liable for the acts or omissions of such
other person under the terms of this Deed.
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26.7 WILFUL DEFAULT OF THE SECURITY TRUSTEE
For the purposes of this Deed the expression "wilful default":
(a) in relation to the Security Trustee, means a wilful default of
this Deed by the Security Trustee
(1) other than a default which:
(A) arises out of a breach of a Transaction Document
by a person other than the Security Trustee or any
person referred to in paragraph 26.7(b) in
relation to the Security Trustee;
(B) arises because some other act or omission is a
precondition to the relevant act or omission of
the Security Trustee, and that other act or
omission does not occur;
(C) is in accordance with a lawful court order or
direction or is required by law; or
(D) is in accordance with an instruction or direction
given to it by any person in circumstances where
that person is authorised to do so by any
Transaction Document; and
(2) in circumstances where had it not committed that default
it would have been entitled to recoupment, reimbursement
or a right of indemnity for its costs and expenses (if
any) in complying with this Deed from the Fund.
(b) A reference to the "fraud", "negligence" or "wilful default"
of the Security Trustee means the fraud, negligence or wilful
default of the Security Trustee and of its officers or
employees, but not of its agents or delegates, unless the
Security Trustee is liable for the acts or omissions of such
other person under the terms of this Deed.
26.8 WILFUL DEFAULT OF THE NOTE TRUSTEE
For the purposes of this Deed the expression "wilful default":
(a) in relation to the Note Trustee, means a wilful default of
this Deed by the Note Trustee
(1) other than a default which:
(A) arises out of a breach of a Transaction Document
by a person other than the Note Trustee or any
person referred to in paragraph 26.8(b) in
relation to the Note Trustee;
(B) arises because some other act or omission is a
precondition to the relevant act or omission of
the Note Trustee, and that other act or omission
does not occur;
(C) is in accordance with a lawful court order or
direction or is required by law; or
(D) is in accordance with an instruction or direction
given to it by any person in circumstances where
that person is authorised to do so by any
Transaction Document; and
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(2) in circumstances where had it not committed that default
it would have been entitled to recoupment, reimbursement
or a right of indemnity for its costs and expenses (if
any) in complying with this Deed from the Fund.
(b) A reference to the "fraud", "negligence" or "wilful default"
of the Note Trustee means the fraud, negligence or wilful
default of the Note Trustee and of its officers or employees,
but not of its agents or delegates, unless the Note Trustee is
liable for the acts or omissions of such other person under
the terms of this Deed.
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27 PRIVACY
(a) Each party to this Deed acknowledges that Personal Information
may be exchanged between the parties pursuant to the terms of
this Deed.
(b) If Personal Information is exchanged between the parties, the
party which provides the Personal Information must ensure that
it obtains such consents, if any, as are required by the
Privacy Act 1988 (as amended by the Privacy Amendment (Private
Sector) Act 2000 to be obtained by that party in relation to
the collection, use or disclosure of the Personal Information.
(c) Each party to this Deed undertakes to use its best endeavours
to ensure that at all times during the term of this Deed:
(1) Personal Information provided to it (the receiving
party) by another party (the providing party):
(A) unless otherwise required by law, will be used
only for the purpose of fulfilling the receiving
party's obligations under the Transaction
Documents; and
(B) except as expressly provided pursuant to the
Transaction Documents, will not be disclosed to
any third party unless express consent in writing
is obtained from the providing party; and
(2) in addition to the obligation under clause 27(b) above,
it will comply with the Privacy Act 1988 (as amended by
the Privacy Amendment (Private Sector) Act 2000 and all
applicable regulations, principles, standards, codes of
conduct or guidelines concerning the handling of
Personal Information under that Act or with any request
or direction arising directly from or in connection with
the proper exercise of the functions of the Privacy
Commissioner.
(d) In this clause 27 "Personal Information" has the same meaning
as in the Privacy Act 1988.
(e) Notwithstanding anything else contained in this clause 27,
paragraphs 27(a) to 27(c) above do not apply to the Note
Trustee, the Principal Paying Agent, [the Irish Paying Agent,]
[the Class A[ ] Irish Paying Agent,] the Calculation Agent or
the Note Registrar. Each of the Note Trustee, the
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Principal Paying Agent, [the Irish Paying Agent,] [the Class
A[ ] Irish Paying Agent,] the Calculation Agent and the Note
Registrar agrees to comply with all privacy legislation
applicable to it.
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SCHEDULE 1 - MEETINGS PROCEDURES
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1 DEFINITIONS AND INCORPORATION OF TERMS
(a) In this Schedule, unless the context indicates a contrary
intention:
(1) words and expressions which are defined in clause 1.1 of
the above mentioned Security Trust Deed (the "SECURITY
TRUST DEED") or which are defined by virtue of clause
1.2 of the Security Trust Deed have the same meanings in
this Schedule; and
(2) a "holder" in relation to Secured Moneys shall be
construed as meaning a Bondholder (as defined in the
Master Trust Deed) in relation to any outstanding Notes.
(b) The provisions of this Schedule regarding a meeting of the
Voting Secured Creditors shall apply, mutatis mutandis, to a
meeting of any class of Voting Secured Creditors.
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2 CONVENING OF MEETINGS
(a) GENERALLY
(1) Subject to clause 16.3 of the Security Trust Deed the
Security Trustee or the Manager at any time may convene
a meeting of the Voting Secured Creditors.
(2) Subject to clause 16.3 of the Security Trust Deed and
subject to the Security Trustee being indemnified to its
reasonable satisfaction against all costs and expenses
occasioned thereby, the Security Trustee shall convene a
meeting of the Voting Secured Creditors if requested to
do so:
(A) by the Issuing Trustee;
(B) in the case of a meeting to consider the initial
enforcement of this Deed following the occurrence
of an Event of Default where a meeting has not
been convened by the Security Trustee in
accordance with clause 8.5 of the Security Trust
Deed, by Voting Secured Creditors being holders of
not less than 10% of the then Secured Moneys
calculated and expressed in the A$ Equivalent; and
(C) in the case of a meeting following the enforcement
of this Deed or a meeting to consider any matter
which does not relate to the actual enforcement of
this Deed, by Voting Secured Creditors being
holders of not less than 10% of the then Secured
Moneys calculated and expressed in the A$
Equivalent.
(b) TIME AND PLACE
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(1) Every meeting of Voting Secured Creditors shall be held
at such time and place as the Security Trustee approves,
provided (subject to sub-paragraph (2)) that any such
meeting shall not be held until the Class A Offered
Noteholders have determined how to direct the Note
Trustee to vote (as the case may be) in the meeting of
Voting Secured Creditors.
(2) The proviso in sub-paragraph (1) shall not apply if:
(A) the meeting of Class A Offered Noteholders called
in accordance with the Note Trust Deed for the
purposes of sub-paragraph (1) is adjourned more
than once; and
(B) the Class A Offered Noteholders' determination
under sub-paragraph (1) is not made at the meeting
or adjourned meeting (as the case may be).
(c) CONDUCT
The Voting Secured Creditors may meet together in person, by
telephone, facsimile, electronic media or other means of
instantaneous communication provided that each Voting Secured
Creditor may communicate with each other Voting Secured
Creditor of the Securitisation Fund.
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3 NOTICE OF MEETINGS
(a) Subject to clause 2(b), at least 7 days' notice (inclusive of
the day on which the notice is given and of the day on which
the meeting is held) shall be given to the Voting Secured
Creditors, the Beneficiary and all the Designated Rating
Agencies.
(b) Notwithstanding that a meeting is convened upon shorter notice
than as specified in clause 3(a), or a meeting or details of
that meeting are not notified, advised or approved in
accordance with this Schedule, it shall be deemed to be duly
convened if it is so agreed by the Voting Secured Creditors
representing a quorum (which quorum must include the Note
Trustee or the Class A Offered Noteholders, as the case may
be).
(c) A copy of the notice shall in all cases be given by the party
to the Security Trust Deed convening the meeting to the other
parties to the Security Trust Deed.
(d) Notice of a meeting shall be given in the manner provided in
the Security Trust Deed.
(e) Notice of a meeting of Voting Secured Creditors must specify,
unless in any particular case the Security Trustee otherwise
agrees:
(1) the day, time and place of the proposed meeting; and
(2) the nature of the resolutions to be proposed.
(f) The accidental omission to give notice to or the non-receipt
of notice by any person entitled to receive it shall not
invalidate the proceedings at any meeting.
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4 CHAIRMAN
A person (who need not be a Voting Secured Creditor and who may be a
representative of the Security Trustee) nominated in writing by the
Security Trustee shall be entitled to take the chair at every such
meeting but if no such nomination is made or if at any meeting the
person nominated shall not be present within 15 minutes after the
time appointed for the holding of such meeting the Secured Creditors
present shall choose one of their number to be chairman.
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5 QUORUM
At any such meeting any two or more persons present in person
holding, or being Representatives holding or representing, in the
aggregate not less than 51% of the then Secured Moneys calculated
and expressed in the A$ Equivalent shall (except for the purpose of
passing an Extraordinary Resolution) form a quorum for the
transaction of business and no business (other than the choosing of
a chairman) shall be transacted at any meeting unless the requisite
quorum is present at the commencement of business. The quorum at any
such meeting for passing an Extraordinary Resolution shall be
persons present holding, or being Representatives holding or
representing, in aggregate 67% or more of the then Secured Moneys
calculated and expressed in the A$ Equivalent.
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6 ADJOURNMENT
(a) If within 15 minutes from the time appointed for any such
meeting a quorum is not present the meeting shall, if convened
upon the requisition of Secured Creditors be dissolved. In any
other case it shall stand adjourned (unless the Security
Trustee agrees that it be dissolved) for such period, not
being less than 7 days nor more than 42 days, as may be
appointed by the chairman. At such adjourned meeting two or
more persons present in person holding, or being
Representatives holding or representing in the aggregate not
less than 15% of the then, Secured Moneys calculated and
expressed in the A$ Equivalent shall (except for the purpose
of passing an Extraordinary Resolution) form a quorum and
shall have the power to pass any resolution and to decide upon
all matters which could properly have been dealt with at the
meetings from which the adjournment took place had a quorum
been present at such meeting. The quorum at any such adjourned
meeting for passing an Extraordinary Resolution shall be two
or more persons present in person holding, or being
Representatives holding or representing in the aggregate not
less than 20% of the then Secured Moneys calculated and
expressed in the A$ Equivalent.
(b) The chairman may with the consent of (and shall if directed
by) any meeting adjourn the same from time to time and from
place to place but no business shall be transacted at any
adjourned meeting except business which might lawfully have
been transacted at the meeting from which the adjournment took
place.
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(c) At least 5 days' notice of any meeting adjourned through want
of a quorum shall be given in the same manner as of an
original meeting and such notice shall state the quorum
required at such adjourned meeting. It shall not, however,
otherwise be necessary to give any notice of an adjourned
meeting.
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7 VOTING PROCEDURE
(a) Every question submitted to a meeting shall be decided in the
first instance by a show of hands and in case of equality of
votes the chairman shall both on a show of hands and on a poll
have a casting vote in addition to the vote or votes (if any)
to which he may be entitled as a Voting Secured Creditor or as
a Representative.
(b) At any meeting, unless a poll is (before or on the declaration
of the result of the show of hands) demanded by the chairman,
the Issuing Trustee, the Manager or the Security Trustee or by
one or more persons holding, or being Representatives holding
or representing, in aggregate not less than 15% of the then
Secured Moneys calculated and expressed in the A$ Equivalent,
a declaration by the chairman that a resolution has been
carried by a particular majority or lost or not carried by any
particular majority shall be conclusive evidence of the fact
without proof of the number or proportion of the votes
recorded in favour of or against such resolution.
(c) If at any meeting a poll is so demanded, it shall be taken in
such manner and (subject as hereinafter provided) either at
once or after such an adjournment as the chairman directs and
the result of such poll shall be deemed to be the resolution
of the meeting at which the poll was demanded as at the date
of the taking of the poll. The demand for a poll shall not
prevent the continuance of the meeting for the transaction of
any business other than the question on which the poll has
been demanded.
(d) Any poll demanded at any meeting on the election of a chairman
or on any question of adjournment shall be taken at the
meeting without adjournment.
(e) Subject to clause (a), at any meeting:
(1) on a show of hands, every person holding, or being a
Representative holding or representing other persons who
hold, Secured Moneys shall have one vote except that the
Note Trustee shall represent each Class A Offered
Noteholder who has directed the Note Trustee to vote on
its behalf under the Note Trust Deed; and
(2) on a poll, every person who is present shall have one
vote for each A$100 (but not part thereof) of the
Secured Moneys calculated and expressed in the A$
Equivalent that he holds or in respect of which he is a
Representative.
Any person entitled to more than one vote need not use or cast
all of the votes to which he is entitled in the same way.
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(f) A certificate from the Note Trustee to the Security Trustee
that the Note Trustee is entitled to vote on behalf of a Class
A Offered Noteholder will be satisfactory evidence to the
Security Trustee that the Note Trustee is so entitled to vote.
For the purpose of determining the amount of Secured Moneys at any
time, the Security Trustee may rely on the Accounts of the Issuing
Trustee and any information provided by the Auditor of the Issuing
Trustee. Clause 25.18 of the Security Trust Deed will apply to any
determination of Secured Moneys for the definition of Voting Secured
Creditors and this Schedule 1.
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8 RIGHT TO ATTEND AND SPEAK
The Issuing Trustee, the Manager and the Security Trustee (through
their respective representatives) and their respective financial and
legal advisers shall be entitled to attend and speak at any meeting
of Voting Secured Creditors. No person shall otherwise be entitled
to attend or vote at any meeting of the Voting Secured Creditors or
to join with others in requesting the convening of such a meeting
unless he is a Voting Secured Creditor or is a Representative.
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9 APPOINTMENT OF PROXIES
(a) Each appointment of a proxy shall be in writing and, together
(if so required by the Security Trustee) with proof
satisfactory to the Security Trustee of its due execution,
shall be deposited at the registered office of the Security
Trustee or at such other place as the Security Trustee shall
designate or approve not less than 24 hours before the time
appointed for holding the meeting or adjourned meeting at
which the named proxy proposes to vote and in default, the
appointment of proxy shall not be treated as valid unless the
chairman of the meeting decides otherwise before such meeting
or adjourned meeting proceeds to business. A notarially
certified copy proof as aforesaid (if applicable) of due
execution shall if required by the Security Trustee be
produced by the proxy at the meeting or adjourned meeting but
the Security Trustee shall not thereby be obliged to
investigate or be concerned with the validity of, or the
authority of, the proxy named in any such appointment. The
proxy named in any appointment of proxy need not be a Voting
Secured Creditor.
(b) Any vote given in accordance with the terms of an appointment
of proxy conforming with clause 9(a) shall be valid
notwithstanding the previous revocation or amendment of the
appointment of proxy or of any of the Voting Secured
Creditor's instructions pursuant to which it was executed,
provided that no intimation in writing of such revocation or
amendment shall have been received by the Security Trustee at
its registered office or by the chairman of the meeting in
each case not less than 24 hours before the commencement of
the meeting or adjourned meeting at which the appointment of
proxy is used.
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10 CORPORATE REPRESENTATIVES
A person authorised pursuant to sections 250D of the Corporations
Act by a Voting Secured Creditor being a body corporate to act for
it at any meeting shall, in accordance with his authority until his
authority is revoked by the body corporate concerned, be entitled to
exercise the same powers on behalf of that body corporate as that
body corporate could exercise if it were an individual Secured
Creditor and shall be entitled to produce evidence of his authority
to act at any time before the time appointed for the holding of or
at the meeting or adjourned meeting or for the taking of a poll at
which he proposes to vote.
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11 RIGHTS OF REPRESENTATIVES
A Representative shall have the right to demand or join in demanding
a poll and shall (except and to the extent to which the
Representative is specially directed to vote for or against any
proposal) have power generally to act at a meeting for the Secured
Creditor concerned. The Security Trustee and any officer of the
Security Trustee may be appointed a Representative.
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12 EXTRAORDINARY RESOLUTIONS
(a) A meeting of Voting Secured Creditors shall, without prejudice
to any rights or powers conferred on other persons by the
Security Trust Deed, have power exercisable by Extraordinary
Resolution:
(1) to direct the Security Trustee in the action that should
be taken by it following the occurrence of an Event of
Default or the charge or the Security Trust Deed
becoming enforceable;
(2) to sanction any action that the Security Trustee or a
Receiver proposes to take to enforce the provisions of
the Security Trust Deed;
(3) to sanction any proposal by the Manager, the Issuing
Trustee or the Security Trustee for any modification,
abrogation, variation or compromise of, or arrangement
in respect of, the rights of the Secured Creditors
against the Issuing Trustee or the Manager whether such
rights shall arise under the Security Trust Deed, the
Secured Documents or otherwise;
(4) subject to clause 12(b)(2), to postpone the day when the
Secured Moneys or any part thereof become payable and to
suspend or postpone for a time the payment of the
Secured Moneys or any part thereof;
(5) to sanction the exchange or substitution of the Secured
Moneys for, or the conversion of the Secured Moneys
into, Notes or other obligations or securities of the
Issuing Trustee or any other body corporate formed or to
be formed;
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(6) to assent to any modification of the provisions
contained in the Security Trust Deed or Notes which
shall be proposed by the Issuing Trustee, the Manager or
the Security Trustee;
(7) to assent to any alteration, addition or modification of
the Master Trust Deed or the Supplementary Bond Terms
Notice which shall be proposed by the Issuing Trustee or
the Manager;
(8) to give any authority, direction, guidance or sanction
sought by the Security Trustee from the Voting Secured
Creditors;
(9) to appoint any persons (whether Voting Secured Creditors
or not) as a committee or committees to represent the
interests of the Voting Secured Creditors and to confer
upon such committee or committees any powers or
discretions which the Voting Secured Creditors could
themselves exercise by Extraordinary Resolution;
(10) to approve a person proposed to be appointed as a new
Security Trustee under the Security Trust Deed and power
to remove any Security Trustee for the time being
thereof;
(11) to discharge or exonerate the Security Trustee from any
liability in respect of any act or omission for which it
may become responsible under the Security Trust Deed;
(12) to do any other thing which under the Security Trust
Deed is required to be given by an Extraordinary
Resolution of the Secured Creditors;
(13) to authorise the Security Trustee or any other person to
concur in and execute and do all such documents, acts
and things as may be necessary to carry out and give
effect to any Extraordinary Resolution; and
(14) to determine whether the Security Trustee should or
should not perform any act and any such Extraordinary
Resolution will (where relevant and in accordance with
clause 16.3 of the Security Trust Deed) override any
decision by the Note Trustee.
(b) A meeting of Voting Secured Creditors shall not have power in
relation to any Secured Creditor (without the consent of each
such Secured Creditor) to:
(1) release any obligation to pay any of the Secured Moneys
to that Secured Creditor;
(2) alter any date upon which any of the Secured Moneys is
payable or otherwise do any thing referred to in clause
12(a)(4);
(3) alter the amount of any payment of any part of the
Secured Moneys; or
(4) alter clause 12.1 of the Security Trust Deed in relation
to that Secured Creditor without the consent of that
Secured Creditor.
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
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13 RESOLUTION BINDING ON VOTING SECURED CREDITORS
Subject to clause 12(b), a resolution passed at a meeting of the
Voting Secured Creditors duly convened and held in accordance with
this Schedule 1 shall be binding upon all Voting Secured Creditors
whether or not present at such meeting and each of the Voting
Secured Creditors and the Issuing Trustee, the Manager and the
Security Trustee shall be bound to give effect thereto accordingly.
--------------------------------------------------------------------------------
14 MINUTES AND RECORDS
Minutes of all resolutions and proceedings at every such meeting as
aforesaid shall be made and duly entered in the books to be from
time to time provided for that purpose by the Security Trustee and
any such minutes as aforesaid if purporting to be signed by the
chairman of the meeting at which such resolutions were passed or
proceedings transacted or by the chairman of the next succeeding
meeting of the Voting Secured Creditors shall be conclusive evidence
of the matters therein contained and until the contrary is proved
provided every such meeting in respect of the proceedings of which
minutes have been made and signed as aforesaid shall be deemed to
have been duly convened and held and all resolutions passed or
proceedings transacted thereat to have been duly passed and
transacted.
--------------------------------------------------------------------------------
15 WRITTEN RESOLUTIONS
Notwithstanding the preceding provisions of this Schedule 1, a
resolution of all the Voting Secured Creditors (including an
Extraordinary Resolution) may be passed, without any meeting or
previous notice being required, by an instrument or instruments in
writing which have:
(a) in the case of a resolution (including an Extraordinary
Resolution) of all the Voting Secured Creditors, been signed
by all the Voting Secured Creditors; and
(b) any such instrument shall be effective upon presentation to
the Voting Security Trustee for entry in the records referred
to in clause 14.
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16 FURTHER PROCEDURES FOR MEETINGS
Subject to all other provisions contained in the Security Trust
Deed, the Security Trustee may without the consent of the Voting
Secured Creditors prescribe such further regulations regarding the
holding of meetings of the Voting Secured Creditors and attendance
and voting thereat as the Security Trustee may in its sole
discretion determine including particularly (but without prejudice
to the generality of the above) such regulations and requirements as
the Security Trustee thinks reasonable:
(a) so as to satisfy itself that persons are in fact Voting
Secured Creditors who purport to requisition a meeting or who
purport to make any requisition to the Security Trustee in
accordance with the Security Trust Deed;
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
(b) so as to satisfy itself that persons who purport to attend or
vote at any meeting of Voting Secured Creditors are entitled
to do so in accordance with this Schedule 1 and the Security
Trust Deed; and
(c) as to the form of appointment of a Representative.
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
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SCHEDULE 2 - REPORT ON ASSESSMENT OF COMPLIANCE WITH REGULATION AB SERVICING
CRITERIA
ME Portfolio Management Limited
Level ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
[________________] (the "ASSERTING PARTY") is responsible for
assessing compliance as of June 30, [ ] and for the period from
[ ] (date of issuance of SMHL Global Fund [ ]-[ ]) through
June 30, [ ] (the "REPORTING PERIOD") with the servicing criteria set
forth in Section 229.1122(d) of the Code of Federal Regulations (the
"CFR"), except for criteria 229.1122(d)[insert section numbers in
Regulation AB that are not applicable to Asserting Party] of the CFR,
which have not been determined pursuant to the transaction documents for
the SMHL Global Fund [ ]-[ ] to be, and the Asserting Party has
concluded are not, servicing criteria that the Asserting Party performs,
or in which the Asserting Party participates, in relation to the SMHL
Global Fund [ ]-[ ] (the "APPLICABLE SERVICING CRITERIA"). This
assessment of compliance is provided in relation to SMHL Global Fund
[ ]-[ ].
The Asserting Party has assessed its compliance with the Applicable
Servicing Criteria for the Reporting Period and has concluded that the
Asserting Party has complied, in all material respects, with the
Applicable Servicing Criteria in relation to SMHL Global Fund [ ]-[ ].
[____________], an independent registered public accounting firm,
has issued an attestation report on the assessment of compliance with the
Applicable Servicing Criteria for the Reporting Period as set forth in
this assertion.
[NAME OF ASSERTING PARTY]
Date:
By:
Name:
Title:
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
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SCHEDULE 3 - SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
-----------------------------------------------------------------------------------------------------------------------------------
APPLICABLE
SERVICING CRITERIA SERVICING
CRITERIA
-----------------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other
triggers and events of default in accordance with the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies
and procedures are instituted to monitor the third party's performance and
compliance with such servicing activities.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer
for the mortgage loans are maintained.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period in the
amount of coverage required by and otherwise in accordance with the terms of
the transaction agreements.
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CASH COLLECTION AND ADMINISTRATION
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the transaction
agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor
are made only by authorized personnel.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or
distributions, and any interest or other fees charged for such advances, are
made, reviewed and approved as specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth in the
transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes of this
criterion, "federally insured depository institution" with respect to a
foreign financial institution means a foreign financial institution that meets
the requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access.
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
-----------------------------------------------------------------------------------------------------------------------------------
APPLICABLE
SERVICING CRITERIA SERVICING
CRITERIA
-----------------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed
securities related bank accounts, including custodial accounts and related
bank clearing accounts. These reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the bank statement cutoff date, or
such other number of days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
-----------------------------------------------------------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the terms
specified in the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors' or the
trustee's records as to the total unpaid principal balance and number of
mortgage loans serviced by the Servicer.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with
timeframes, distribution priority and other terms set forth in the transaction
agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the
Servicer's investor records, or such other number of days specified in the
transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
-----------------------------------------------------------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the
transaction agreements or related mortgage loan documents.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the
transaction agreements
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed
and approved in accordance with any conditions or requirements in the
transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with the
related mortgage loan documents are posted to the Servicer's obligor records
maintained no more than two business days after receipt, or such other number
of days specified in the
--------------------------------------------------------------------------------
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
-----------------------------------------------------------------------------------------------------------------------------------
APPLICABLE
SERVICING CRITERIA SERVICING
CRITERIA
-----------------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------------------------------
transaction agreements, and allocated to principal, interest or other items
(e.g., escrow) in accordance with the related mortgage loan documents.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's
records with respect to an obligor's unpaid principal balance.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans
(e.g., loan modifications or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction agreements and related
pool asset documents.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications
and deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a
mortgage loan is delinquent in accordance with the transaction agreements.
Such records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity's activities
in monitoring delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is deemed
temporary (e.g., illness or unemployment).
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with
variable rates are computed based on the related mortgage loan documents.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts):
(A) such funds are analyzed, in accordance with the obligor's mortgage loan
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar days of full
repayment of the related mortgage loans, or such other number of days
specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are
made on or before the related penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided that such support has
been received by the servicer at least 30 calendar days prior to these dates,
or such other number of days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf
of an obligor are paid from the servicer's funds and not charged to the
obligor,
--------------------------------------------------------------------------------
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
-----------------------------------------------------------------------------------------------------------------------------------
APPLICABLE
SERVICING CRITERIA SERVICING
CRITERIA
-----------------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------------------------------
unless the late payment was due to the obligor's error or omission.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business days
to the obligor's records maintained by the servicer, or such other number of
days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and
recorded in accordance with the transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
-----------------------------------------------------------------------------------------------------------------------------------
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
--------------------------------------------------------------------------------
EXECUTED AS A DEED:
SIGNED SEALED AND DELIVERED for
PERPETUAL LIMITED
by its attorney in the
presence of:
----------------------------------- ------------------------------------
Witness Attorney
----------------------------------- ------------------------------------
Name (please print) Name (please print)
SIGNED SEALED AND DELIVERED for
ME PORTFOLIO MANAGEMENT LIMITED
by its attorney in the
presence of:
----------------------------------- ------------------------------------
Witness Attorney
----------------------------------- ------------------------------------
Name (please print) Name (please print)
SIGNED SEALED AND DELIVERED for
PERPETUAL TRUSTEE COMPANY LIMITED
by its attorney in the
presence of:
----------------------------------- ------------------------------------
Witness Attorney
----------------------------------- ------------------------------------
Name (please print) Name (please print)
--------------------------------------------------------------------------------
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Security Trust Deed - SMHL Global Fund [ ]-[ ]
EXECUTED for
and on behalf of
THE BANK OF NEW YORK
by its Authorised Officer in the
presence of:
----------------------------------- ------------------------------------
Witness Authorised Officer
----------------------------------- ------------------------------------
Name (please print) Name (please print)
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