Pre-Effective Amendment to Registration Statement for Securities of a Real Estate Company — Form S-11
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-11/A Pre-Effective Amendment to Registration Statement HTML 1.20M
for Securities of a Real Estate Company
2: EX-1.1 Underwriting Agreement 35 113K
3: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 188K
4: EX-4.1 Instrument Defining the Rights of Security Holders 233 781K
5: EX-4.2 Instrument Defining the Rights of Security Holders 8 22K
6: EX-4.4 Instrument Defining the Rights of Security Holders 44 155K
7: EX-4.5 Instrument Defining the Rights of Security Holders 133 487K
8: EX-5.1 Opinion re: Legality 3 16K
9: EX-8.2 Opinion re: Tax Matters 2 11K
10: EX-10.1 Material Contract HTML 105K
11: EX-10.2 Material Contract HTML 563K
12: EX-10.3 Material Contract 17 65K
13: EX-10.4 Material Contract 17 66K
14: EX-10.5 Material Contract 23 78K
15: EX-25.1 Statement re: Eligibility of Trustee HTML 40K
16: EX-99.1 Miscellaneous Exhibit 2 11K
EX-4.1 — Instrument Defining the Rights of Security Holders
Exhibit Table of Contents
Exhibit 4.1
Deed of Amendment
ARMS II Funds
Permanent Custodians Limited
Australian Mortgage Securities Limited
Australian Securitisation Management Pty Limited
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
www.aar.com.au
(C) Copyright Allens Arthur Robinson 2003
[ALLENS ARTHUR ROBINSON LOGO]
Deed of Amendment
ARMS II Funds
TABLE OF CONTENTS
[Download Table]
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Interpretation 2
1.3 Supplemental Deed 2
2. AMENDMENT 2
3. CONFIRMATION 3
4. GOVERNING LAW AND JURISDICTION 3
5. COUNTERPARTS 3
6. APPLIES TO ALL FUNDS 3
7. TRUSTEE'S CAPACITY 3
SCHEDULE 1
SCHEDULE 2
SCHEDULE 3
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Deed of Amendment ARMS II Funds
DATE 2003
PARTIES
1. PERMANENT CUSTODIANS LIMITED (ACN 001 426 384) of 35 Clarence
Street, Sydney, New South Wales 2000 (PCL);
2. AUSTRALIAN MORTGAGE SECURITIES LIMITED (ABN 89 003 072 446) of
Level 6, 12 Castlereagh Street, Sydney, New South Wales 2000 (AMS);
and
3. AUSTRALIAN SECURITISATION MANAGEMENT PTY LIMITED
(ABN 32 103 852 428) of Level 6, 12 Castlereagh Street, Sydney,
New South Wales 2000 (ASM).
RECITALS
A Clause 27.1(a) of:
(a) each of the Domestic Master Trust Deed and the Euro
Master Trust Deed provides that PCL (as Trustee) and AMS
(as the trust manager); and
(b) the Global Master Trust Deed provides that PCL (as
Trustee) and ASM (as the trust manager),
may, by way of supplemental deed, vary or amend that Master
Trust Deed in respect of any one or more Funds, so long as such
variation or amendment is (among other things) of a formal,
technical or administrative nature only.
B Clause 27.1(c) of:
(a) each of the Domestic Master Trust Deed and the Euro
Master Trust Deed provides that PCL (as Trustee) and AMS
(as the trust manager); and
(b) the Global Master Trust Deed provides that PCL (as
Trustee) and ASM (as the trust manager),
may, by way of supplemental deed, vary or amend that Master
Trust Deed in respect of any one or more Funds, so long as such
variation or amendment is (among other things), in the opinion
of PCL, appropriate, expedient or desirable for any reason as a
consequence of the introduction or imposition of, or any
amendment or alteration to, any statute, regulation or
requirement of any Governmental Body (including, without
limitation, the introduction or imposition of any Tax, any
amendment to any regulation imposing a Tax, the issue of or
amendment to any ruling by the Commissioner or Deputy
Commissioner of Taxation or the issue of any government
announcement or statement that has or may have the effect of
altering the manner or basis of taxation of trusts generally or
of trusts similar to any of the Funds).
C Each of AMS and ASM has instructed PCL that the amendments set
out in this Deed are appropriate as a consequence of the
amendments to the Income Tax Assessment Act 1997 (Cth) in
relation to the consolidation of entities for tax purposes.
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Deed of Amendment ARMS II Funds
D Pursuant to clauses 27.1(a) and 27.1(c) of each Master Trust
Deed, PCL and the relevant trust manager propose to amend each
Master Trust Deed in the manner set out in this Deed.
THIS DEED PROVIDES as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed:
DOMESTIC MASTER TRUST DEED means the Master Trust Deed dated 7 March
1995 between PCL and AMS (as amended from time to time) as applicable
to trust funds created under it which are designated as "ARMS II
Funds".
EURO MASTER TRUST DEED means the Master Trust Deed dated 7 March 1995
between PCL and AMS (as amended and restated on 12 July 1999 and as
further amended from time to time) as applicable to trust funds created
under it which are designated as "ARMS II Euro Funds".
EFFECTIVE DATE means close of business on the date of this Deed.
FUND has the meaning given in each Master Trust Deed.
GLOBAL MASTER TRUST DEED means the Master Trust Deed dated 7 March 1995
between PCL and AMS (as amended and restated on 23 April 2003) as
applicable to trust funds created under it which are designated as
"ARMS Global Funds".
MASTER TRUST DEED means each of the Domestic Master Trust Deed, the
Euro Master Trust Deed and the Global Master Trust Deed.
1.2 INTERPRETATION
Clause 1.2 of the Global Master Trust Deed is incorporated into this
Deed as if set out in full in this Deed.
1.3 SUPPLEMENTAL DEED
This Deed is:
(a) supplemental to each Master Trust Deed; and
(b) a TRANSACTION DOCUMENT in relation to each Fund (for the
purposes of each Master Trust Deed).
2. AMENDMENT
Pursuant to clauses 27.1(a) and 27.1(c) of each Master Trust Deed, the
parties agree that on and from the Effective Date:
(a) the Domestic Master Trust Deed will be amended and restated as
set out in Schedule 1;
(b) the Euro Master Trust Deed will be amended and restated as set
out in Schedule 2; and
(c) the Global Master Trust Deed will be amended and restated as
set out in Schedule 3.
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Deed of Amendment ARMS II Funds
3. CONFIRMATION
For the purposes of clause 27.1(c) of each Master Trust Deed, each of
AMS and ASM confirms to PCL that the amendments set out in this Deed
are appropriate as a consequence of the amendments to the Income Tax
Assessment Act 1997 (Cth) in relation to the consolidation of entities
for tax purposes.
4. GOVERNING LAW AND JURISDICTION
This Deed is governed by the laws of New South Wales. Each party
submits to the jurisdiction of courts exercising jurisdiction there and
waives any right to claim that those courts are an inconvenient forum.
5. COUNTERPARTS
This Deed may be executed in one or more counterparts which together
shall constitute the one document.
6. APPLIES TO ALL FUNDS
This Deed, and the amendments set out in this Deed, apply to all Funds
(whether or not constituted at the Effective Date).
7. TRUSTEE'S CAPACITY
Clause 25.9 of each Master Trust Deed is incorporated into this Deed as
if set out in full in this Deed.
EXECUTED as a deed.
Each attorney executing this Deed states that he or she has no notice of
revocation or suspension of his or her power of attorney.
SIGNED SEALED AND DELIVERED for PERMANENT
CUSTODIANS LIMITED by its attorney in
the presence of:
---------------------------------- ---------------------------------
Witness Signature Attorney Signature
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Deed of Amendment ARMS II Funds
---------------------------------- ---------------------------------
Print Name Print Name
SIGNED SEALED AND DELIVERED for AUSTRALIAN
MORTGAGE SECURITIES LIMITED by its attorneys in
the presence of:
---------------------------------- ---------------------------------
Witness Signature Attorney Signature
---------------------------------- ---------------------------------
Print Name Print Name
---------------------------------
Attorney Signature
---------------------------------
Print Name
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Deed of Amendment ARMS II Funds
SIGNED SEALED AND DELIVERED for AUSTRALIAN
SECURITISATION MANAGEMENT PTY LIMITED by its
attorneys in the presence of:
---------------------------------- ---------------------------------
Witness Signature Attorney Signature
---------------------------------- ---------------------------------
Print Name Print Name
---------------------------------
Attorney Signature
---------------------------------
Print Name
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Amended and Restated Master Trust Deed
SCHEDULE 1
Amended and Restated Master Trust Deed
Permanent Custodians Limited
Australian Mortgage Securities Limited
ARMS II Funds
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Tel 61 2 9230 4000
Fax 61 2 9230 5333
www.aar.com.au
(C) Copyright Allens Arthur Robinson 2004
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Amended and Restated Master Trust Deed
TABLE OF CONTENTS
[Download Table]
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 11
2. THE ARMS II FUNDS 12
2.1 Appointment of Trustee 12
2.2 Separate and Distinct Funds 12
3. THE FUNDS 13
3.1 Beneficial Interest in Funds 13
3.2 Fund Creation Notice 13
3.3 Creation of Additional Funds 13
3.4 Name of Funds 13
3.5 Duration of Funds 13
3.6 Beneficiary Register 13
3A. BENEFICIARIES OF DESIGNATED FUNDS 14
3A.1 Acknowledgement 14
3A.2 Residual Capital Unit 14
3A.3 Residual Income Unit 14
4. LIMITS ON RIGHTS OF BONDHOLDERS AND BENEFICIARIES 15
4.1 General Limits 15
4.2 Further Limits on Interests of Beneficiaries 15
4.3 Ranking of Interest of Beneficiaries 15
4.4 Resolution of Conflicts 16
4.5 No Liability of Bondholders or Beneficiaries 16
5. BONDS 16
5.1 Nature of Bonds 16
5.2 Trustee's Covenant to Bondholders 16
5.3 Minimum Face Value of Bonds 17
5.4 Bonds Not Invalid if Issued in Breach 17
5.5 Location of Bonds 17
6. PROCEDURE FOR ISSUE OF BONDS 17
6.1 Form of Issue Notice 17
6.2 Notice to Warehouse Beneficiary 18
6.3 Supplementary Bond Terms 18
6.4 Amendment 19
6.5 Acceptance of Issue Notice 19
6.6 Non-Complying Issue Notice 19
6.7 Issue of Bonds and Transfer of Benefit of Mortgages 19
6.8 Acquisition of Portfolio 20
6.9 Amount of Bonds Created for an Issuing Fund 20
6.10 Action following Issue 20
6.11 No Liability for Insufficient Moneys 21
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6.12 Recording of Transfer and Further Assurance 21
6.13 Subsequent Adjustment 21
6.14 No Limit on Bonds 22
6.15 Compliance with Laws 22
7. TRANSFERS OF BONDS 22
7.1 No Restrictions on Transfer of Bonds 22
7.2 Selling Restriction 22
7.3 Form of Transfer 22
7.4 Registration of Transferee as Bondholder 22
7.5 Registrar Entitled to Refuse to Register Transfer and Acceptance 23
7.6 Notice of Refusal to Register 23
7.7 No Fee for Registration of a Bond Transfer 23
7.8 Taking Effect of Bond Transfers 23
7.9 Transmission of Entitlements 23
7.10 Marking of Transfers 24
7.11 Specimen Signatures 24
8. REGISTRATION CONFIRMATIONS 24
8.1 Issue of Registration Confirmation 24
8.2 No Certificate of Title 24
8.3 Joint Holdings 24
9. WAREHOUSE FUNDING 24
9.1 Transfer of Warehouse Assets to Another Fund 24
9.2 Warehouse Trigger Event 25
9.3 Parties to Give Effect to Transfer 25
9.4 Rights Additional to Issue of Bonds 25
10. APPOINTMENT OF TRUST MANAGER 26
10.1 Appointment 26
10.2 Powers of Management 26
10.3 Trust Manager to Enforce Against Master Servicer 26
10.4 Trust Manager Not Liable for Master Servicer 26
10.5 Effect of Compliance as Master Servicer 26
10.6 Enforcement of Duties of Master Servicer 26
11. INVESTMENT OF THE FUND 27
11.1 Authorised Investments 27
11.2 Trust Manager to Make Proposals 27
11.3 Trustee to Comply with Proposals 27
11.4 Authorised Investments for Rated Funds 28
11.5 Limitation on Maturity of Investments 28
11.6 Rights Attaching to Assets 28
11.7 Trustee's Dealing with Assets 28
11.8 Interest Hedges and Enhancements 28
11.9 Hedges and Enhancements for Rated Funds 29
11.10 Limitation of Trustee's Personal Liability 29
11.11 Moneys Payable to Trustee 29
11.12 Segregation of Assets of a Fund 29
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11.13 Assets of Funds 29
11.14 Liabilities of a Fund 29
11.15 Origination and Management of Mortgages 29
11.16 Trust Manager will act as Master Servicer 30
11.17 Trust Manager's Power to Delegate 30
11.18 Trust Manager 30
11.19 Professional Advisers 31
12. ADDITIONAL OBLIGATIONS OF TRUST MANAGER 31
12.1 General 31
12.2 Additional Obligations 31
12.3 Trust Manager Cannot Bind Trustee Unless Authorised 32
12.4 Threshold Rate Obligation 32
13. RETIREMENT OF TRUST MANAGER 32
13.1 Removal 32
13.2 Voluntary Retirement 33
13.3 No Resignation by Trust Manager Unless Successor Appointed 33
13.4 Trustee Appoints Replacement Trust Manager 33
13.5 Terms of Appointment of Incoming Manager 33
13.6 Effect of Termination of Outgoing Manager 33
13.7 Delivery of Documents 33
13.8 Notice to Security Trustee of Incoming Manager 34
14. TRUSTEE'S POWERS 34
14.1 General Power 34
14.2 Specific Powers 34
14.3 Delegation to Related Bodies Corporate 35
14.4 Trustee's Power to Delegate; Appoint Attorneys and Agents 35
14.5 Trustee Liable for Delegates 36
14.6 Delegable and Non-Delegable Duties of Trustee 36
14.7 Trustee Not Liable for Third Parties 36
15. TRUSTEE'S COVENANTS 36
15.1 General 36
15.2 To Act Continuously as Trustee 36
15.3 To Act Honestly, Diligently and Prudently 36
15.4 No Dispositions of Assets 37
15.5 Forward Notices etc. to Trust Manager 37
15.6 Trustee will implement Trust Manager's Directions 37
15.7 Custodian 37
15.8 Perform Transaction Documents 37
16. TRUSTEE'S FEES AND EXPENSES 37
16.1 Trustee's Fee 37
16.2 Manager's Fee 37
17. RETIREMENT OF TRUSTEE 38
17.1 Mandatory Retirement 38
17.2 Trust Manager may Remove Trustee 38
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17.3 Trust Manager Appoints Replacement 38
17.4 Voluntary Retirement 38
17.5 Funds to be Vested in New Trustee 38
17.6 Release of Outgoing Trustee 39
17.7 Incoming Trustee to Execute Deed 39
17.8 Trust Manager and Outgoing Trustee to Settle Amounts Payable 39
17.9 Outgoing Trustee to Retain Lien 39
17.10 Delivery of Documents 39
17.11 Notice to Security Trustee of Incoming Trustee 40
18. TRUST ACCOUNTS 40
18.1 Opening of Trust Accounts 40
18.2 Location of Trust Accounts 40
18.3 Authorised Signatories 40
18.4 Bank Statements and Account Information 40
18.5 Deposits 41
18.6 Withdrawals 41
18.7 Central Clearing Account 41
19. AUDITORS 41
19.1 Appointment of Auditor 41
19.2 Removal and Retirement of Auditor 41
19.3 Appointment of Replacement Auditor 42
19.4 Auditor may have other Offices 42
20. RECORDS AND FINANCIAL STATEMENTS 42
21. PAYMENTS FROM FUNDS AND TERMINATION 42
21.1 Payments by Trustee 42
21.2 Income of the Fund 42
21.3 Income Entitlement 43
21.4 Distribution of excess Tax Income 43
21.5 Payments to Beneficiaries 43
21.6 Application of Fund income 43
21.7 Application of Residual Income Beneficiaries' Entitlements 44
21.8 Trust Manager to ensure compliance by Trustee 44
21.9 Distribution on Vesting Date 44
22. THE REGISTER 45
22.1 Details to be kept on the Register 45
22.2 Place of Keeping Register, Copies and Access 45
22.3 Branch Registers 46
22.4 Details on Register Conclusive 46
22.5 Closing of Register 46
22.6 Alteration of Details on Register 47
22.7 Rectification of Register 47
22.8 Trustee May Appoint Registrar 47
23. MEETINGS OF BONDHOLDERS 48
23.1 Governing Provisions 48
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23.2 Security Trust Deed prevails 48
24. PAYMENTS GENERALLY 48
24.1 Cheque Details 48
24.2 Payments Good Discharge 48
24.3 Valid Receipts 48
25. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY GENERALLY 49
25.1 Powers Additional 49
25.2 Reliance on Certificates 49
25.3 No Liability 49
25.4 Notices from Trustee and Trust Manager 49
25.5 Compliance with Laws 49
25.6 Reliance on Experts 50
25.7 Powers, Authorities and Discretions 50
25.8 Legal and Other Proceedings 50
25.9 Liability of Trustee under Transaction Documents 50
25.10 Trustee's indemnity not be impaired 51
25.11 Trust Manager's Right of Indemnity 52
25.12 Conflicts 52
25.13 Consumer Credit Code 52
26. NOTICES 53
26.1 Notices Generally 53
26.2 Notices to Bondholders 54
26.3 Notices to Designated Rating Agencies 54
27. AMENDMENT 55
27.1 Amendment by Trustee 55
27.2 Certain Provisions Not to be Varied 55
27.3 Copy of Amendments to Bondholders 55
27.4 Copy of Amendments in Advance to Designated Rating Agencies 56
28. MISCELLANEOUS 56
28.1 Data Base Confidential 56
28.2 Waivers, Remedies Cumulative 56
28.3 Governing Law 56
28.4 Jurisdiction 56
28.5 Severability of Provisions 57
28.6 Counterparts 57
28.7 Inspection of this Deed 57
28.8 Non-Business Days 57
SCHEDULE 1 58
Form of Fund Creation Notice 58
SCHEDULE 2 59
Form of Issue Notice 59
SCHEDULE 3 61
Form of Portfolio Compliance Certificate 61
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SCHEDULE 4 63
Form of Bond Application 63
SCHEDULE 5 65
Form of Registration Confirmation 65
SCHEDULE 6 67
Form of Transfer and Acceptance 67
SCHEDULE 7 70
Procedures for Bondholder's Meeting 70
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Amended and Restated Master Trust Deed
DATE 2003
PARTIES
1. PERMANENT CUSTODIANS LIMITED (ACN 001 426 384) of 35 Clarence
Street, Sydney, NSW 2000 (PCL); and
2. AUSTRALIAN MORTGAGE SECURITIES LIMITED (ACN 003 072 446) of
Level 6, 12 Castlereagh Street, Sydney, NSW 2000 (AMS).
RECITALS
A This Deed is made for the purposes of establishing Warehouse
Funds and Issuing Funds to be known collectively as the ARMS II
FUNDS.
B PCL has agreed to act as trustee, and the Trust Manager has
agreed to act as manager of the Warehouse Funds and the Issuing
Funds, upon and subject to the terms of this Deed.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed and the recitals to it:
AMORTISATION DATE means, in relation to a Bond, each date upon which
all or part of the principal amount of that Bond is payable in
accordance with the corresponding Bond Terms.
AMORTISATION AMOUNT means, in relation to a Bond and an Amortisation
Date, the principal amount payable in respect of that Bond on that
Amortisation Date, determined in accordance with the corresponding Bond
Terms.
ANCILLARY DOCUMENTS means, in relation to a Mortgage, all documents
evidencing, entered into by or delivered to the Trustee in connection
with:
(a) the Loan secured by that Mortgage; and
(b) the Collateral Securities for that Mortgage.
APPROVED ACCOUNTING STANDARDS means:
(a) accounting standards from time to time approved under the
Corporations Act;
(b) the requirements of the Corporations Act in relation to the
preparation and content of accounts; and
(c) generally accepted accounting principles and practices in
Australia consistently applied, except where inconsistent with
the standards or requirements referred to in paragraphs (a) or
(b).
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ASSETS means, in relation to a Fund, all property and assets (real and
personal (including choses in action and other rights), tangible and
intangible, present or future) comprised in, and held by Trustee as
trustee of that Fund.
ASSOCIATE in relation to a person means a person that is taken to be an
associate of the firstmentioned person by virtue of Division 2 of Part
1.2 of the Corporations Act.
AUDITOR means, in relation to a Fund, the auditor of that Fund
appointed from time to time pursuant to clause 19.
AUSTRACLEAR means Austraclear Limited.
AUSTRACLEAR REGULATIONS means the regulations published by Austraclear.
AUSTRACLEAR SYSTEM means the SYSTEM as defined in the Austraclear
Regulations.
AUSTRALIAN JURISDICTION means a State or Territory of the Commonwealth
and the Commonwealth of Australia.
AUTHORISED INVESTMENTS means investments which at their date of
acquisition are:
(a) Loans secured by Mortgages over Land;
(b) cash;
(c) bonds, debentures, stock or treasury bills of the Commonwealth
of Australia or the Government of any State or Territory of
the Commonwealth;
(d) debentures or stock of any public statutory body constituted
under the law of the Commonwealth of Australia or of any State
of the Commonwealth where the repayment of the principal
secured and the interest payable thereon is guaranteed by the
Commonwealth or the State;
(e) notes or other securities of the Commonwealth of Australia or
the Government of any State or Territory of the Commonwealth;
(f) deposits with, or the acquisition of certificates of deposit
(whether negotiable, convertible or otherwise), issued by, a
Bank;
(g) bills of exchange which at the time of acquisition have a
remaining term to maturity of not more than 200 days, accepted
or endorsed by a Bank; and
(h) commercial paper.
(In paragraphs (b)-(g) inclusive of this definition, expressions shall
be construed and, if necessary read down, so that the Bonds in relation
to any Fund constitute "mortgage-backed securities" for the purposes of
the Duties Act, 1997 of New South Wales, the Duties Act, 2000 of
Victoria, the Duties Act, 2001 of Queensland and the Duties Act 2001 of
Tasmania).
AUTHORISED SIGNATORY means, in relation to any corporation, any person
from time to time whose name, title or position and specimen signature
are set out in a certificate signed by two directors or one director
and one secretary of the corporation confirming that person's
appointment as an Authorised Signatory for the purposes of this Deed
and/or any Transaction Document to which that corporation is a party.
BANK means a corporation authorised under Part 2 of the Banking Act,
1959 to carry on banking business, including the general business of
banking, in Australia or a corporation formed or
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incorporated under an Act of the Parliament of an Australian
Jurisdiction to carry on the general business of banking.
BENEFICIARY means, in relation to a Fund, each Residual Capital
Beneficiary and each Residual Income Beneficiary of that Fund.
BENEFICIARY REGISTER has, in relation to a Fund, the meaning given in
clause 3.6(a).
BOND means, in relation to a Fund, a debt security issued or to be
issued by the Trustee as trustee of that Fund in accordance with clause
5.
BOND APPLICATION means an application for Bonds in the form of Schedule
4 or such other form as may from time to time be agreed between the
Trustee and the Trust Manager.
BONDHOLDER means, in relation to a Bond and at any time, the person
inscribed in the Register as the holder of that Bond at that time.
BOND TERMS means, in relation to a Bond, all of the terms and
conditions applicable to that Bond, as set out in this Deed, the
relevant Supplementary Bond Terms and the relevant Security Trust Deed
(if any).
BUSINESS DAY means a day, other than a Saturday, Sunday or public
holiday on which Banks are open for business in Sydney and Melbourne.
COLLATERAL SECURITY means, in relation to a Mortgage and a Loan secured
by that Mortgage, any other guarantee, indemnity or Security Interest
executed in favour of or held by the Trustee as security for the
obligations secured by that Mortgage or the obligations of any person
who has given any such guarantee, indemnity or Security Interest.
CONSUMER CREDIT CODE means the Consumer Credit Code incorporated in the
Consumer Credit (Queensland) Act 1994, as it is in force as
co-operative or consistent legislation in each Australian State or
Territory.
CONSUMER CREDIT REGULATIONS means the regulations made under the
Consumer Credit (Queensland) Act 1994 which apply to the Consumer
Credit Code.
CORPORATIONS ACT means the Corporations Act 2001 (Commonwealth).
CREDITOR means, in relation to a Fund, a creditor of the Trustee in
respect of a debt or obligation incurred by the Trustee while acting in
its capacity as trustee of the Fund.
DATA BASE means all information, data and records collected, held or
stored in any way or in any medium by or for the Trustee or the Trust
Manager relating to the Funds, their Assets and their management.
DESIGNATED FUND means each of the following Funds:
(a) AA Settlement Warehouse Fund No.1;
(b) AMS Warehouse Fund;
(c) CBA Warehouse Fund;
(d) ARMS II Fund II;
(e) ARMS II Fund III;
(f) ARMS II Fund VI;
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(g) ARMS II Fund VIII;
(h) ARMS II Fund IX:
(i) ARMS II Fund X; and
(j) ARMS II Fund XI.
DESIGNATED RATING means, in relation to a person or an obligation, and
a Rated Fund, each credit rating as specified or approved by each
Designated Rating Agency for that Fund or for the obligations of the
Trustee as trustee of that Fund.
DESIGNATED RATING AGENCY means, in relation to a Fund or Bonds, each
Rating Agency which has been requested by the Trust Manager to rate the
debt obligations of that Fund or those Bonds.
DOLLAR or $ means the lawful currency for the time being of the
Commonwealth of Australia.
ENHANCEMENTS means a Mortgage Insurance Policy, a Stand-by Facility, a
Guaranteed Investment Contract and any other security, support, rights
or benefits in favour of the Trustee in support of or substitution for
payments due under or in respect of an Authorised Investment, or
payable by the Trustee under or in respect of the Bonds.
EVENT OF INSOLVENCY means, in relation to a body corporate, any of the
following events:
(a) an order is made that the body corporate be wound up;
(b) a liquidator, provisional liquidator, controller (as defined
in the Corporations Act) or administrator is appointed in
respect of the body corporate or a substantial portion of its
assets whether or not under an order;
(c) the body corporate enters into, or resolves to enter into, a
scheme of arrangement, deed of company arrangement or
composition with, or assignment for the benefit of, all or any
class of its creditors;
(d) the body corporate resolves to wind itself up, or otherwise
dissolve itself, or gives notice of its intention to do so, or
is otherwise wound up or dissolved;
(e) the body corporate is or states that it is insolvent;
(f) as a result of the operation of section 459F(1) of the
Corporations Act, the body corporate is taken to have failed
to comply with a statutory demand;
(g) the body corporate takes any step to obtain protection or is
granted protection from its creditors, under any applicable
legislation; or
(h) anything analogous or having a substantially similar effect to
any of the events specified above happens under the law of any
applicable jurisdiction,
and in relation to a Fund means any of the above events occurring in
relation to that Fund, as if that Fund were a person having independent
legal capacity but not the Trustee in its capacity as trustee of any
other Fund or trust.
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EXPENSES means, in relation to a Fund, all costs, charges, fees and
expenses properly incurred by the Trustee or the Trust Manager in
exercising its rights or performing its obligations with respect to
that Fund under this Deed, to the extent to which they relate to that
Fund or are properly payable from that Fund, including:
(a) any amounts payable or incurred by the Trustee or the Trust
Manager under any Transaction Document;
(b) any costs, fees and expenses payable to the Trustee or the
Trust Manager or any person or engaged by the Trustee or the
Trust Manager pursuant to this Deed; and
(c) all legal costs and disbursements incurred by the Trust
Manager or the Trustee in connection with:
(i) settling and executing any Transaction Document;
(ii) any subsequent consent, approval, waiver or amendment
under, of or to any Transaction Document; or
(iii) evaluating any matter of concern to the Trust Manager
or the Trustee in relation to a Transaction Document
or a Fund.
Expenses do not include general overhead costs and expenses of the
Trustee or the Trust Manager (for example, rent and amounts payable to
employees in connection with their employment) incurred directly or
indirectly in connection with the business of the Trustee or the Trust
Manager.
EXTRAORDINARY RESOLUTION means:
(a) a resolution passed by a majority consisting of not less than
75% of the votes cast in respect of that resolution, at a
meeting of Bondholders duly convened and held in accordance
with Schedule 7; or
(b) a written resolution signed by all Bondholders passed in
accordance with Schedule 7.
FACE VALUE means:
(a) in relation to a Bond, and at any time, the principal amount
outstanding in respect of that Bond at that time; and
(b) in relation to a Mortgage, and at any time, the principal
amount of the Loan secured by that Mortgage outstanding at
that time;
(c) in relation to an Authorised Investment and at any time the
face value of that Authorised Investment or the principal
amount payable in respect of that Authorised Investment at
that time.
FINANCIAL STATEMENTS means, in relation to a Fund, and a date or
period, a profit and loss account for that period, a balance sheet as
at that date, and all notes and other explanations of or relating to
the same.
FINANCIAL YEAR means, in relation to a Fund, each period from 1 July in
one calendar year until 30 June in the next calendar year, provided
that:
(a) the first Financial Year for a Fund commences on the date upon
which it is constituted in accordance with this Deed, and ends
on the next 30 June; and
(b) the final Financial Year for a Fund ends on the Vesting Date
for that Fund.
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FITCH RATINGS means Fitch Australia Pty Limited.
FUND CREATION NOTICE means a notice given by the Trust Manager to the
Trustee under clause 3.2.
FUNDING PERIOD means, in relation to a Warehouse Fund, the period for
which the beneficiary of that Fund has agreed pursuant to the relevant
Warehouse Funding Agreement to provide funding to the Trustee as
trustee of that Fund, to finance the investment by the Trustee in
Authorised Investments.
FUNDS means the Warehouse Funds and the Issuing Funds (each a FUND).
GOVERNMENT BODY means:
(a) any person, government or the body exercising an executive,
legislative, judicial or other government function of any
Australian Jurisdiction; and
(b) any person deriving a right directly or indirectly from any
other Government Body.
GUARANTEED INVESTMENT CONTRACT means a guaranteed investment contract
of a type approved by the Chief Commissioner of Stamp Duties in New
South Wales pursuant to paragraph (g) of the definition of PRESCRIBED
PROPERTY in the dictionary to the Duties Act, 1997 of New South Wales.
INCOME DISTRIBUTION DATE means, in relation to a Fund, each date upon
which income of that Fund is to be distributed to a Beneficiary of that
Fund, as specified in the Fund Creation Notice relating to that Fund or
in any Transaction Document in relation to that Fund. If there is any
inconsistency between the Fund Creation Notice and any Transaction
Document as to the Income Distribution Dates for a Fund, the
Transaction Document prevails.
INCOME PERCENTAGE means, in relation to a Residual Income Beneficiary
of a Fund at any time, the subscription price paid by that Residual
Income Beneficiary for all Residual Income Units held by that Residual
Income Beneficiary at that time divided by the aggregate of the
subscription prices for all Residual Income Units subscribed for in
that Fund at that time (expressed as a percentage).
INCOMING MANAGER has the meaning given in clause 13.4.
INCOMING TRUSTEE has the meaning given in clause 17.5.
INITIAL AMOUNT means, in relation to a Fund, the initial amount settled
or to be settled on the Trustee to constitute that Fund, as specified
in the relevant Fund Creation Notice.
INTEREST ENTITLEMENT means, in relation to a Bond and an Interest
Payment Date, the amount of interest accrued in respect of that Bond
and due for payment on that Interest Payment Date, determined in
accordance with the relevant Bond Terms.
INTEREST HEDGE means any futures contract, option agreement, hedge,
swap, cap, forward rate agreement or other arrangement in relation to
interest rates entered into by the Trustee.
INTEREST PAYMENT DATE means, in relation to a Bond, each date for the
payment of interest under the Bond, determined in accordance with the
relevant Bond Terms.
ISSUE means each issue of Bonds by the Trustee under this Deed.
ISSUE DATE means, in relation to a Bond, the date on which that Bond is
issued or proposed to be issued, as the context requires.
ISSUE NOTICE means a notice given by the Trust Manager to the Trustee
under clause 5.1, as amended in accordance with clause 6.4.
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ISSUE PROCEEDS means, in relation to an Issue, the amount received by
the Trustee from the initial Bondholders of the relevant Bonds in
payment of the Subscription Amount for those Bonds.
ISSUING FUND means each trust fund from time to time created under this
Deed following the giving by the Trust Manager of a Fund Creation
Notice which specifies that the trust fund to be created is to be an
Issuing Fund.
LAND means:
(a) any estate or interest whether at law or in equity in freehold
or leasehold land, including all improvements on such land;
and
(b) any parcel and any lot, common property and land comprising a
parcel within the meaning of the Strata Titles Act, 1973 (New
South Wales) or the Community Land Development Act, 1989 (New
South Wales) or any equivalent legislation in any other
Australian Jurisdiction.
LOAN means a loan or other form of financial accommodation made
available by the Trustee as trustee of a Fund, or any other
indebtedness owed to the Trustee as trustee of a Fund.
MANAGER'S DEFAULT means, in relation to a Fund:
(a) the Trust Manager breaches any of its obligations under this
Deed or any other Transaction Document in relation to the
Fund; and
(b) if the breach is capable of remedy, the Trust Manager does not
remedy the breach within 30 days after notice from the Trustee
or the Security Trustee (if any) requiring it to be remedied.
MANAGER'S FEE means, in relation to a Fund, the fee payable to the
Trust Manager in accordance with clause 16.2.
MARKED T&A means a Transfer and Acceptance Form marked by the Registrar
in accordance with clause 7.10.
MASTER ORIGINATION AND SERVICING AGREEMENT means the agreement so
entitled dated 7 March 1995 made between the Trustee and AMS, or any
other document between the Trustee, the Trust Manager and any other
person relating to the origination, management and servicing of
Mortgages by that person (as the case requires).
MASTER SERVICER means initially AMS, and subsequently the person from
time to time appointed by the Trust Manager to perform the role of the
Master Servicer under this Deed and the Master Origination and
Servicing Agreement.
MATURITY DATE means, in relation to a Bond, the date upon which the
Face Value of that Bond is due to be reduced to zero, and the Bond is
due to be redeemed in full.
MOODY'S means Moody's Investors Service Inc of 99 Church Street, New
York or Moody's Investors Service Pty. Limited of 55 Hunter Street,
Sydney.
MORTGAGE means a registered (or pending registration, registrable)
mortgage over Land situated in any Australian Jurisdiction, which
secures the repayment of a Loan and any other moneys payable on or in
respect of that Loan.
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MORTGAGE INSURANCE POLICY means a policy of insurance under which,
amongst other things, an insurer insures payment to the mortgagee of
amounts payable under or in respect of, or secured by, a Mortgage.
MORTGAGOR means the mortgagor under a Mortgage.
NOTICE means a notice, certificate, request, demand or other
communication to be given, served or made under or pursuant to this
Deed.
OUTGOING MANAGER has the meaning given in clause 13.4.
OUTGOING TRUSTEE has the meaning given in clause 17.5.
PENALTY PAYMENT means:
(a) the amount of any criminal or civil penalty which the Trustee
is ordered to pay under the Consumer Credit Code;
(b) any other money ordered to be paid by the Trustee, or legal
costs or other expenses payable or incurred by the Trustee
related to such an order;
(c) any amount which the Trustee agrees to pay to a debtor or
other person in settlement of an application for an order
under the Consumer Credit Code; and
(d) any legal costs or other costs or expenses payable or incurred
by the Trustee related to that application,
in each case in relation to a Regulated Loan or a Regulated Mortgage.
PORTFOLIO means:
(a) in relation to an Issue, the Mortgages specified by the Trust
Manager in or details of which are attached to the relevant
Issue Notice; and
(b) in relation to a Fund, the Mortgages from time to time
comprised in the Assets of that Fund.
PORTFOLIO COMPLIANCE CERTIFICATE means a certificate in the form set
out in Schedule 3, or such other form as the Trustee and the Trust
Manager may from time to time agree.
RATED FUND means a Fund in respect of which there is a Designated
Rating Agency.
RATING AGENCY means Moody's, S&P, Fitch Ratings or any other recognised
rating agency designated from time to time in writing by the Trust
Manager to the Trustee.
REGISTER means the register maintained by or on behalf of the Trustee
pursuant to clause 22.
REGISTERED COMPANY AUDITOR has the same meaning as in the Corporations
Act.
REGISTRAR means, in relation to an Issuing Fund, the Trustee, or the
person (if any) from time to time appointed by the Trustee in relation
to that Fund under clause 22.8.
REGISTRATION CONFIRMATION means a confirmation as to the registration
of a person as the holder of a Bond in the form set out in Schedule 5
or in such other form as may from time to time be agreed between the
Trustee and the Trust Manager.
REGULATED LOAN means a Loan comprised in the Assets of any Fund which
is regulated by the Consumer Credit Code.
REGULATED MORTGAGE means a Mortgage comprised in the Assets of any Fund
which is regulated by the Consumer Credit Code.
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RELATED BODY CORPORATE has the same meaning as in section 9 of the
Corporations Act.
REPRESENTATIVE means:
(a) in the case of any Bondholder, a person appointed as a proxy
for that Bondholder pursuant to Schedule 7, paragraph 8.1; or
(b) in the case of a Bondholder which is a body corporate, a
person appointed by that Bondholder pursuant to Schedule 7,
paragraph 8.3.
RESIDUAL CAPITAL BENEFICIARY means, in relation to a Fund, each holder
of a Residual Capital Unit in that Fund from time to time.
RESIDUAL CAPITAL UNIT means, in relation to a Fund, each unit in that
Fund designated as such.
RESIDUAL INCOME BENEFICIARY means, in relation to a Fund, each holder
of a Residual Income Unit in that Fund from time to time.
RESIDUAL INCOME UNIT means, in relation to a Fund, each unit in that
Fund designated as such.
S&P means Standard & Poor's (Australia) Pty. Limited, trading as
"Standard & Poor's Ratings Group".
SECURITY INTEREST means any mortgage, pledge, lien, charge,
encumbrance, hypothecation, title retention, preferential right, trust
arrangement, right of set-off, flawed asset, contingent debt
arrangement and any other security arrangement or agreement.
SECURITY TRUST DEED means, in relation to a Fund, a deed between the
Trustee as trustee of that Fund, the Trust Manager and a person acting
as security trustee under which the Trustee charges in favour of that
Security Trustee all or some of the Assets of the Fund to secure the
payment of moneys owing to some or all of the Creditors of that Fund.
SECURITY TRUSTEE means, in relation to a Security Trust Deed, initially
the person in whose favour that Security Trust Deed is executed, and
subsequently any successor security trustee appointed under that
Security Trust Deed.
SERIES means, in relation to Bonds, Bonds whose terms and conditions
are the same in all respects.
STAND-BY FACILITY means an agreement entered into by the Trustee as
trustee of a Fund pursuant to which a third party agrees to finance the
payment by the Trustee of amounts payable in respect of Bonds issued in
respect of that Fund to cover a short-fall in the Fund due to default
in the payment of amounts payable under or in respect of Mortgages
comprised in that Fund.
SUBSCRIPTION AMOUNT means, in relation to a Bond, the total amount
payable upon issue of that Bond.
SUPPLEMENTARY BOND TERMS means, in relation to a Bond, the
supplementary terms and conditions upon which that Bond is issued, as
attached to the relevant Issue Notice, and subsequently inscribed in
the Register pursuant to clause 22.1.
TAXATION ACT means the Income Tax Assessment Act, 1936 (Commonwealth)
and the Income Tax Assessment Act, 1997 (Commonwealth).
TAX includes all income tax, goods and services tax, withholding tax,
stamp, financial institutions, registration and other duties, bank
accounts debits tax and other taxes, levies, imposts, deductions and
charges whatsoever (including in respect of any duty imposed on
receipts or liabilities of
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financial institutions any amounts paid in respect thereof to another
financial institution) together with interests on them and penalties
with respect of them (if any) and charges, fees or other amounts made
on or in respect of them.
THRESHOLD RATE OBLIGATION means any obligation of the Trust Manager
under any Transaction Document relating to any Fund to exercise its
powers under this Deed and the Master Origination and Servicing
Agreement to change the rate of interest payable on or in respect of
Loans secured by Mortgages to a minimum rate required to ensure that,
subject to any assumptions and having regard to any relevant matters
specified in that Transaction Document, the Trustee will have available
to it sufficient funds to enable it to comply with all of its
obligations under the Transaction Documents for that Fund as they fall
due.
TRANSACTION DOCUMENTS means:
(a) this Deed;
(b) each Master Origination and Servicing Agreement;
(c) each Ancillary Document;
(d) each Security Trust Deed;
(e) each Interest Hedge;
(f) all Bonds and the Supplementary Bond Terms relating to them;
(g) each Warehouse Funding Agreement;
(h) each Enhancement; and
(i) each other document which is expressed to be, or which is
agreed by the Trust Manager and Trustee to be, a Transaction
Document for the purposes of this Deed,
and in relation to a Fund means all of the foregoing to the extent that
they relate to that Fund.
TRANSFER AND ACCEPTANCE FORM means a form of transfer and acceptance of
Bonds in the form of Schedule 6, or such other form as may from time to
time be agreed between the Trustee and the Trust Manager.
TRUST ACCOUNT means, in relation to a Fund, the bank account for that
Fund opened and maintained by the Trustee in accordance with clause 18.
TRUST MANAGER means initially AMS and subsequently the person from time
to time appointed to perform the role of the Trust Manager under this
Deed.
TRUSTEE means initially PCL, and subsequently any person appointed as
the trustee of the Funds in accordance with this Deed.
TRUSTEE'S DEFAULT in relation to a Fund means:
(a) the Trustee breaches any obligation or duty imposed on the
Trustee under this Deed, or any other Transaction Document, in
relation to the Fund; and
(b) if the breach is capable of remedy, the Trustee does not
remedy the breach within 30 days after notice from the Trust
Manager requiring it to be remedied.
TRUSTEE'S FEE means, in relation to a Fund, fees payable to the Trustee
for that Fund in accordance with clause 16.1.
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TRUSTEE'S INDEMNITY means, in relation to a Fund:
(a) the Trustee's right of indemnity from the Assets of that Fund
in respect of liabilities incurred by the Trustee acting in
its capacity as trustee of that Fund; and
(b) all equitable liens and other Security Interests which the
Trustee has over the Assets of that Fund.
VESTING DATE means, in relation to a Fund, the earlier of:
(a) the date that is eighty years after 7 March 1995;
(b) the date upon which the Fund terminates by operation of law;
(c) if Bonds have been issued by the Trustee as trustee of the
Fund:
(i) the date immediately following the date upon which
the Trustee pays in full all moneys which are or may
become due (actually or contingently) in respect of
those Bonds; or
(ii) the date appointed by the Bondholders in relation to
the Fund as the Vesting Date, in accordance with this
Deed;
(d) if Bonds have not been issued by the Trustee as trustee of the
Fund, the date appointed by the Trust Manager as the Vesting
Date in accordance with this Deed; or
(e) in the case of a Warehouse Fund, the date nominated by the
Residual Income Beneficiaries of that Fund pursuant to clause
9.2.
WAREHOUSE BENEFICIARY means, in relation to a Warehouse Fund, each
Beneficiary of that Warehouse Fund.
WAREHOUSE FUND means each trust fund from time to time created under
this Deed following the giving by the Trust Manager to the Trustee of a
Fund Creation Notice which specifies that the trust fund to be created
is to be a Warehouse Fund.
WAREHOUSE FUNDING AGREEMENT means any agreement or arrangement pursuant
to which a Warehouse Beneficiary provides funding to the Trustee as
trustee of the relevant Warehouse Fund to settle and/or purchase
Mortgages.
WAREHOUSE TRIGGER EVENT means, in relation to a Warehouse Fund:
(a) a Trustee's Default occurs in relation to that Warehouse Fund
and continues unremedied;
(b) a Manager's Default occurs in relation to that Warehouse Fund
and continues unremedied;
(c) the Funding Period for that Warehouse Fund expires, and the
Trustee has not, within 5 Business Days of such expiry, given
to the relevant Warehouse Beneficiary a notice under clause
9.1 in respect of all of the Assets comprised in that
Warehouse Fund; or
(d) any other event occurs which is defined to be a Warehouse
Trigger Event for that Fund in any Warehouse Funding Agreement
relating to that Fund.
1.2 INTERPRETATION
In this Deed unless the context indicates a contrary intention:
(a) PERSON includes an individual, a body politic, a corporation
and a statutory or other authority or association
(incorporated or unincorporated);
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(b) references to a party include that party's executors,
administrators, successors, substitutes and assigns, including
any person taking by way of novation;
(c) references to any legislation or to any section or provision
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;
(d) CORPORATION means any body corporate wherever formed or
incorporated, including any public authority or any
instrumentality of the Crown;
(e) the expression CERTIFIED by a corporation or person means
certified in writing by an Authorised Signatory of the
corporation or by that person respectively and CERTIFY and
like expressions shall be construed accordingly;
(f) words importing the singular shall include the plural (and
vice versa) and words denoting a given gender shall include
all other genders;
(g) headings are for convenience only and shall not affect the
interpretation of this Deed;
(h) references to a clause or a Schedule are to a clause or a
Schedule of this Deed;
(i) where any word or phrase is given a defined meaning, any other
part of speech or other grammatical form of that word or
phrase has a corresponding meaning;
(j) where the day on or by which any sum is payable under this
Deed or any act, matter or thing is to be done is not a
Business Day such sum shall be paid and such act, matter or
thing shall be done on the next succeeding Business Day;
(k) all accounting terms shall be interpreted in accordance with
the Approved Accounting Standards;
(l) month means calendar month;
(m) a reference to any document or agreement is to such document
as amended, varied, supplemented or novated from time to time;
and
(n) a reference to an ENTITLEMENT of a Beneficiary of a Fund means
the entitlement of that Beneficiary as set out in this Deed,
the relevant Fund Creation Notice and any Transaction Document
relating to that Fund.
2. THE ARMS II FUNDS
2.1 APPOINTMENT OF TRUSTEE
The Trustee agrees to act as trustee of each Fund upon and subject to
the terms and conditions of this Deed.
2.2 SEPARATE AND DISTINCT FUNDS
Each Fund shall be a separate and distinct trust fund.
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3. THE FUNDS
3.1 BENEFICIAL INTEREST IN FUNDS
The Trustee must hold each Fund, and each Asset comprised in that Fund
from time to time, on trust for the Beneficiaries of that Fund upon and
subject to the terms and conditions of this Deed.
3.2 FUND CREATION NOTICE
The Trust Manager may at any time give to the Trustee a notice in, or
substantially in, the form of Schedule 1 or in such other form as the
Trust Manager and the Trustee may from time to time agree, duly
completed and executed by an Authorised Signatory of the Trust Manager,
and specifying:
(a) whether the Fund to be created is a Warehouse Fund or an
Issuing Fund;
(b) the Initial Amount for that Fund;
(c) the initial Beneficiaries of that Fund and their respective
entitlements as Beneficiaries of that Fund;
(d) the name of that Fund;
(e) the Income Distribution Dates for that Fund; and
(f) in the case of a Rated Fund, the Designated Rating Agency and
the Designated Rating for that Rated Fund.
3.3 CREATION OF ADDITIONAL FUNDS
If the Trust Manager has given to the Trustee a Fund Creation Notice,
then unless the Trustee rejects that Fund Creation Notice by written
notice to the Trust Manager within one Business Day of it being given,
the Fund referred to in that notice shall be constituted immediately
upon the Trust Manager settling or procuring the settlement upon the
Trustee of the Initial Amount.
3.4 NAME OF FUNDS
(a) Each Fund shall be known by the name specified in the relevant
Fund Creation Notice, unless the Trustee reasonably objects to
the use of that name, in which case that Fund will be called
by such other name as the Trustee and the Trust Manager may
agree.
(b) The Trustee and the Trust Manager may from time to time agree
in writing to change the name of a Fund.
3.5 DURATION OF FUNDS
Each Fund shall continue until, and shall terminate on, the Vesting
Date for that Fund.
3.6 BENEFICIARY REGISTER
(a) The interests of any person as a Beneficiary of a Fund will be
evidenced by registration in the register in relation to that
Fund maintained under this clause 3.6 (the BENEFICIARY
REGISTER).
(b) The Trustee must keep the Beneficiary Register in relation to
each Fund at its registered office in a form that it considers
appropriate and must enter on the Beneficiary Register in
relation to each Fund the following particulars.
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(i) The name and address of the holder of each unit in
the Fund.
(ii) The date on which the name of the holder of each unit
in the Fund is entered in the Beneficiary Register in
relation to that Fund.
(iii) The date on which the holder of a unit in the Fund
ceases to be registered as the holder of that unit.
(iv) The subscription moneys initially paid for each unit
in the Fund, and the aggregate subscription moneys of
all units in the Fund from time to time.
(v) Any other details which the Trustee considers
necessary or desirable.
(c) Each Beneficiary of a Fund shall promptly notify the Trustee
of any change of its name or address and the Trustee must
alter the Beneficiary Register in relation to that Fund
accordingly.
3A. BENEFICIARIES OF DESIGNATED FUNDS
3A.1 ACKNOWLEDGEMENT
The parties acknowledge that:
(a) the interest of AMS as sole beneficiary of each Designated
Fund is represented by:
(i) a single income unit (the RESIDUAL INCOME UNIT); and
(ii) a single capital unit (the RESIDUAL CAPITAL UNIT);
and
(b) no other units in any Designated Fund may be issued.
3A.2 RESIDUAL CAPITAL UNIT
(a) The Residual Capital Beneficiary of each Designated Fund has
no right to receive distributions in respect of that
Designated Fund other than the right to receive the amount of
A$10 on the termination of that Designated Fund. The Residual
Capital Unit for each Designated Fund may not be redeemed at
any other time or in any other way.
(b) The Residual Capital Unit for each Designated Fund is not
transferable except:
(i) by AMS to another person who is not related to the
Residual Income Beneficiary (the TRANSFEREE) on terms
that the Transferee may not transfer the Residual
Capital Unit to any person other than AMS; or
(ii) to AMS.
3A.3 RESIDUAL INCOME UNIT
(a) The beneficial interest held by the Residual Income
Beneficiary of each Designated Fund is limited to that
Designated Fund and each Asset of that Designated Fund (other
than any Asset of that Designated Fund held on trust for the
Residual Capital Beneficiary of that Designated Fund under
clause 3A.2) subject to and in accordance with this Deed and
each other Transaction Document in relation to that Designated
Fund.
(b) Subject to clause 21, the Residual Income Beneficiary of each
Designated Fund is not entitled to receive distributions in
respect of that Designated Fund other than:
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(i) distributions under and in accordance with this Deed
and the Transaction Documents in relation to that
Designated Fund; and
(ii) the right to receive, on the termination of that
Designated Fund, the entire beneficial interest of
that Designated Fund, subject to the rights of the
Residual Capital Beneficiary of that Designated Fund.
(c) The Residual Income Unit for each Designated Fund may not be
redeemed at any other time or in any other way.
(d) The Residual Income Unit for each Designated Fund is not
transferable.
4. LIMITS ON RIGHTS OF BONDHOLDERS AND BENEFICIARIES
4.1 GENERAL LIMITS
Subject, in the case of a Warehouse Fund, to the terms of any Warehouse
Funding Agreement, no Bondholder or Beneficiary shall be entitled to:
(a) require the transfer to it of any Asset comprised in any Fund;
(b) exercise any rights, powers or privileges (including
instituting or defending legal proceedings) in respect of any
Asset of any Fund;
(c) attend meetings or take part in or consent to any action
concerning any property or corporation in which the Trustee
holds an interest;
(d) lodge or enter a caveat or similar instrument claiming an
estate or interest in any Asset of any Fund;
(e) have any recourse to the Trustee in its personal capacity,
except to the extent of any fraud, negligence or wilful
default by the Trustee; or
(f) seek to wind up any Fund.
4.2 FURTHER LIMITS ON INTERESTS OF BENEFICIARIES
Subject to clause 3A, no Beneficiary may assign, transfer or otherwise
encumber its beneficial interest in any Fund (otherwise than as
expressly contemplated by this Deed) without the prior written consent
of the Trust Manager and the Trustee (which either may give or withhold
in its absolute discretion). Any assignment, transfer or encumbrance in
breach of this clause shall be of no force and effect and shall not
vest in any purported assignee, transferee or encumbrancee any right,
title or interest in any Fund.
4.3 RANKING OF INTEREST OF BENEFICIARIES
The rights of any Beneficiary in relation to any Fund and in relation
to any payment or distribution out of any Fund shall at all times rank
after, and be subject to, the rights of Bondholders in respect of the
Bonds issued in relation to that Fund and other Creditors of that Fund.
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4.4 RESOLUTION OF CONFLICTS
If there is at any time a conflict between:
(a) a duty owed by the Trustee or the Trust Manager under any
Transaction Document to a Beneficiary and a duty owed by such
person to the Bondholders under any Transaction Document; or
(b) a duty owed to Bondholders of one Series of Bonds and a duty
owed to Bondholders of another Series of Bonds ranking in
priority after that Series,
the Trustee or the Trust Manager must give priority:
(i) to the interests of the Bondholders over the
interests of the Beneficiaries; and
(ii) to the interests of Bondholders in the same order of
priority as the ranking of the Series of Bonds held
by them respectively,
and shall not, provided it acts in good faith, incur any liability to
any Beneficiary or any Bondholder for so doing.
4.5 NO LIABILITY OF BONDHOLDERS OR BENEFICIARIES
No Beneficiary or Bondholder shall, by reason of being a Beneficiary or
Bondholder:
(a) have any liability to make any contribution to the Assets of
any Fund; or
(b) be under any obligation to indemnify the Trustee, the Trust
Manager, the Master Servicer or any other person in respect of
any of their respective liabilities (actual or contingent,
present or future) arising from the exercise by them of their
respective powers and the performance by them of their
respective duties and obligations under this Deed and the
Transaction Documents.
5. BONDS
5.1 NATURE OF BONDS
The Trust Manager may by giving notice to the Trustee in accordance
with clause 6, require the Trustee as trustee of an Issuing Fund, to
issue debt securities:
(a) in the form of inscribed stock;
(b) in accordance with this Deed; and
(c) with the benefit of and subject to this Deed, the relevant
Supplementary Bonds Terms and the relevant Security Trust Deed
(if any).
5.2 TRUSTEE'S COVENANT TO BONDHOLDERS
The Trustee covenants for the benefit of each Bondholder:
(a) to make all payments on or in respect of the Bonds held by
that Bondholder on the due date for payment; and
(b) to comply with:
(i) all of the relevant Bond Terms; and
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(ii) the relevant Security Trust Deed (if any).
5.3 MINIMUM FACE VALUE OF BONDS
The minimum initial Face Value of each Bond shall be $10,000 or such
other amount specified in the relevant Supplementary Bond Terms.
5.4 BONDS NOT INVALID IF ISSUED IN BREACH
No Bond shall be invalid or unenforceable on the ground that it was
issued in breach of this Deed or any other Transaction Document.
5.5 LOCATION OF BONDS
The property in Bonds shall for all purposes be regarded as situated at
the place where the Register for those Bonds is located.
6. PROCEDURE FOR ISSUE OF BONDS
6.1 FORM OF ISSUE NOTICE
Each Issue Notice must:
(a) be in the form of Schedule 2, or in such other form as the
Trustee and the Trust Manager may from time to time agree;
(b) be signed by an Authorised Signatory of the Trust Manager;
(c) be received by the Trustee not less than 5 Business Days
before the Issue Date (or at such other time as may be agreed
between the Trustee and the Trust Manager);
(d) specify:
(i) the name or designation to be ascribed to the Bonds;
(ii) the aggregate Face Value of the Bonds to be issued;
(iii) the denominations in which the Bonds are to be
issued;
(iv) the Issue Date;
(v) all reasonable details of any Security Trust Deed,
Enhancements or Interest Hedges required to be
entered into by the Trustee as trustee of the
relevant Issuing Fund as a condition precedent to the
issue of the Bonds;
(vi) whether any of the Bonds will constitute a separate
Series of Bonds, and if so specify the information
referred to in the previous sub-paragraphs of this
paragraph (d) with respect to each such Series; and
(vii) whether the Portfolio is comprised in the Assets of a
Warehouse Fund, and if not the person for whose
benefit the Issue Proceeds of that Issue are to be
held pursuant to clause 6.8(a);
(e) have attached to it or otherwise identify in a manner
satisfactory to the Trustee:
(i) details of the Portfolio which the Trustee, as
trustee of the relevant Issuing Fund, is to acquire
with the Issue Proceeds;
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(ii) the Supplementary Bond Terms applicable to those
Bonds, which must specify the details referred to in
clause 6.3; and
(iii) if the relevant Issuing Fund is a Rated Fund, a
letter or certificate from the Designated Rating
Agency addressed to the Trustee confirming that the
Bonds in each Series specified in the Issue Notice
will be rated not lower than the Designated Rating
for that Series, and if Bonds have previously been
issued by the Trustee as trustee of that Issuing Fund
that the issue of the Bonds specified in the Issue
Notice will not cause the credit rating assigned to
the Bonds previously issued to be downgraded to a
credit rating lower than the Designated Rating for
those Bonds; and
(f) contain a certification by the Trust Manager that:
(i) the terms of this Deed with respect to the proposed
Issue have been, and will on the Issue Date continue
to be complied with;
(ii) the acquisition of the Portfolio and the
characteristics of the Portfolio are consistent with
all information memoranda, notices, reports,
statements and the like given to Bondholders or
prospective Bondholders, and will not cause any
statements made in any such document or statement to
be misleading or deceptive, or likely to mislead or
deceive; and
(iii) assuming that all parties to all Transaction
Documents relating to the relevant Issuing Fund, and
all issuers of Authorised Investments from time to
time comprised in the Assets of that Issuing Fund
comply in full with their respective obligations
under those Transaction Documents and Authorised
Investments and having regard to:
(A) the terms of those Transaction Documents;
(B) the terms of the Mortgages comprised in the
relevant Portfolio;
(C) the anticipated Expenses of that Issuing
Fund; and
(D) all other information available to the Trust
Manager,
the Trustee will have available to it sufficient
funds to enable it to comply with its obligations
under those Transaction Documents.
6.2 NOTICE TO WAREHOUSE BENEFICIARY
If the Portfolio of which details are attached to an Issue Notice in
accordance with clause 6.1(e)(i) comprises Assets of a Warehouse Fund,
the Trust Manager must give a copy of the Issue Notice to each
Beneficiary of that Warehouse Fund at the same time as it gives the
Issue Notice to the Trustee.
6.3 SUPPLEMENTARY BOND TERMS
The Supplementary Bond Terms for the Bonds comprised in each Issue must
specify:
(a) the rate per annum (if any) at which interest payable on the
Face Value of the Bonds is to be calculated and the method of
calculation;
(b) the Interest Payment Dates (if any);
(c) the Amortisation Dates (if any);
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(d) the Amortisation Amounts payable on each Amortisation Date, or
the method of calculating those amounts;
(e) the Maturity Date of the Bonds;
(f) any preferred, deferred or other rights applicable to the
Bonds;
(g) if the Issue will comprise Bonds of different Series, the
details specified in the previous paragraphs of this clause
6.3 with respect to each Series, and any other terms and
conditions which distinguish Bonds in one Series from Bonds in
any other Series;
(h) in the case of an Issue in respect of a Rated Fund, the
minimum rating requirements in relation to that Rated Fund;
and
(i) any other terms and conditions which the Trustee and the Trust
Manager may agree.
6.4 AMENDMENT
With the consent of the Trustee, the Trust Manager may prior to an
Issue Date amend by notice in writing to the Trustee an Issue Notice
previously given, or the Supplementary Bond Terms or details of the
Portfolio attached to such an Issue Notice.
6.5 ACCEPTANCE OF ISSUE NOTICE
The Trustee may rely upon any certification from the Trust Manager to
the contents of an Issue Notice as evidence of the matters so
certified.
6.6 NON-COMPLYING ISSUE NOTICE
If the Trustee receives an Issue Notice which it reasonably believes
does not comply with this clause 6, it must no later than close of
business 2 Business Days prior to the proposed Issue Date advise the
Trust Manager in writing giving reasonable details of the reasons for
the Trustee's belief.
6.7 ISSUE OF BONDS AND TRANSFER OF BENEFIT OF MORTGAGES
If the Trustee has:
(a) received an Issue Notice which it reasonably believes complies
with this clause 6;
(b) subject to clause 6.9, received from intending Bondholders
duly executed Bond Applications which have been accepted by
the Trust Manager and the Subscription Amount (in cleared
funds) for the Bonds applied for, in each case of an aggregate
amount equal to the Face Value of the Bonds referred to in the
relevant Issue Notice; and
(c) as trustee of the relevant Fund, on or prior to the proposed
Issue Date:
(i) entered into a Security Trust Deed, (if specified in
the relevant Issue Notice);
(ii) entered into or otherwise obtained the benefit of the
Transaction Documents relating to that Fund as
referred to in the relevant Issue Notice; and
(iii) received a Portfolio Compliance Certificate given as
of a time no earlier than 5:00 pm on the Business Day
immediately preceding the proposed Issue Date,
then, the Trustee must, subject to the terms of this Deed, on
the Issue Date, issue Bonds, as trustee of the relevant Fund,
in accordance with the Bond Applications.
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6.8 ACQUISITION OF PORTFOLIO
Upon receipt of the Issue Proceeds of an Issue, the Trustee:
(a) will (notwithstanding any other provision of this Deed) hold
those Issue Proceeds:
(i) if and to the extent that the Portfolio specified in
the relevant Issue Notice was, immediately prior to
the Issue Date, comprised in the Assets of a
Warehouse Fund, as trustee of that Warehouse Fund; or
(ii) if and to the extent that the Portfolio specified in
the relevant Issue Notice was not, immediately prior
to the Issue Date, comprised in the Assets of a
Warehouse Fund, upon trust absolutely for the benefit
of the person specified in the relevant Issue Notice,
in each case to the extent of the aggregate Face Value of the
relevant Mortgages comprised in that Portfolio as at close of
business on the Business Day immediately preceding the Issue
Date;
(b) must (notwithstanding clause 18.5) cause those Issue Proceeds
to be credited direct to the Trust Account for the relevant
Warehouse Fund or to be applied in accordance with the
instructions of the Beneficiaries of the relevant Warehouse
Fund or, (if clause 6.8(a)(ii) applies) deal with them in
accordance with the Trustee's obligations to the person for
whose benefit they are held, or otherwise in accordance with
the directions of that person;
(c) will hold automatically by virtue of this Deed (without any
further act or other thing being done or any instrument being
brought into existence) as trustee of the relevant Issuing
Fund the benefit of:
(i) the Portfolio specified in the relevant Issue Notice;
(ii) all Ancillary Documents, Enhancements and Interest
Hedges relating to the Mortgages in that Portfolio;
and
(d) must apply the balance (if any) of the Issue Proceeds in
accordance with the relevant Supplementary Bond Terms.
6.9 AMOUNT OF BONDS CREATED FOR AN ISSUING FUND
The aggregate Subscription Amount of Bonds issued on an Issue Date may
exceed the aggregate Face Value (as at close of business on the
Business Day immediately preceding the Issue Date) of Mortgages in the
Portfolio to be held by the Trustee as trustee of the relevant Issuing
Fund under clause 6.8(c) only to the extent and on conditions such that
each Designated Rating Agency confirms that any credit rating assigned
or to be assigned to any Bonds to be issued by the Trustee as trustee
of that Issuing Fund will not be downgraded below the Designated
Rating, qualified or withdrawn.
6.10 ACTION FOLLOWING ISSUE
As soon as practicable after an Issue Date, the Registrar must:
(a) inscribe in the Register in accordance with clause 22:
(i) the Supplementary Bond Terms for the Bonds, as
attached to the corresponding Issue Notice, with any
amendments made to them under clause 6.4; and
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(ii) the details of each Bondholder, as contained in that
Bondholder's Bond Application;
(b) issue a Registration Confirmation to each Bondholder in
respect of the Bonds held by it; and
(c) if requested by a Bondholder in its Bond Application for
Bonds, issue a Transfer and Acceptance Form to the Bondholder,
marked in accordance with clause 7.10.
6.11 NO LIABILITY FOR INSUFFICIENT MONEYS
If on an Issue Date the conditions specified in paragraphs (a)-(c) of
clause 6.7 and clause 6.9 are not fulfilled:
(a) the Trustee shall not proceed with the Issue and will refund
all Subscription Amounts received to the applicants for Bonds;
and
(b) neither the Trustee nor the Trust Manager shall have any
obligation or liability to any person to proceed with the
Issue.
6.12 RECORDING OF TRANSFER AND FURTHER ASSURANCE
On or as soon as reasonably practicable following an Issue Date:
(a) the Trust Manager must record in the records kept pursuant to
clause 20 the transfer to the relevant Issuing Fund of the
benefit of the Portfolio details of which were attached to the
corresponding Issue Notice (and the benefit of all
corresponding Ancillary Documents, Enhancements and Interest
Hedges); and
(b) the Trustee must execute such documentation and do all such
other acts, matters or things as the Trust Manager reasonably
requires to give effect to that transfer.
6.13 SUBSEQUENT ADJUSTMENT
(a) (ACCRUED INTEREST) Following an Issue Date, the Trustee, as
trustee of the Warehouse Fund in which the Portfolio acquired
with the proceeds of the relevant Issue were held prior to
that Issue, shall be entitled to any interest proceeds
received by the Trustee that represents accrued but unpaid
interest on Mortgages in that Portfolio up to (but not
including) the Issue Date. The Trust Manager must notify the
Trustee of the amount of any such interest as soon as
reasonably practicable following the Issue Date. Upon receipt
of such notification, the Trustee must promptly credit the
amount of any such interest to the Trust Account for the
relevant Warehouse Fund.
(b) (OTHER COSTS) Subject to paragraph (c) below, the Trust
Manager may in its absolute discretion direct the Trustee in
writing on or at any time after an Issue Date to transfer
funds between the corresponding Warehouse Fund or Issuing Fund
with such other amounts as the Trust Manager considers
appropriate, so that:
(i) the Warehouse Fund has the benefit of any receipts,
and bears the cost of any losses or outgoings, in
respect of each Mortgage (and any corresponding
Ancillary Documents, Enhancements and Interest
Hedges) up to (but not including) the Issue Date; and
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(ii) the Issuing Fund has the benefit of such receipts,
and bears such costs, from (and including) the Issue
Date.
(c) (TRUST MANAGER TO CERTIFY ADJUSTMENTS) A written direction by
the Trust Manager pursuant to this clause 6.13 must certify
that the relevant amount is, in the opinion of the Trust
Manager, to be properly debited or credited to a Warehouse
Fund or an Issuing Fund (as the case may be).
(d) (TRUSTEE TO ACT IN ACCORDANCE WITH DIRECTION) The Trustee must
act in accordance with, and may rely upon, a written
direction, of the Trust Manager and any certificate given in
accordance with this clause 6.13.
6.14 NO LIMIT ON BONDS
Subject to the provisions of this Deed, there shall be no limit on the
number or Face Value of Bonds which may be issued in respect of a Fund.
6.15 COMPLIANCE WITH LAWS
The Trust Manager must ensure that no issue or allotment of Bonds,
offer of Bonds for subscription or purchase, or invitation to subscribe
for or buy, Bonds shall be made unless the issue, allotment, offer or
invitation is made in compliance with all applicable laws in all
jurisdictions in which the issue, allotment, offer or invitation is
made.
7. TRANSFERS OF BONDS
7.1 NO RESTRICTIONS ON TRANSFER OF BONDS
Subject to this Deed and the corresponding Supplementary Bond Terms,
there are no restrictions on the transfer of Bonds.
7.2 SELLING RESTRICTION
A Bondholder may not transfer any of its Bonds unless the offer or
invitation to the transferee by the Bondholder in relation to such
Bonds does not require disclosure under Chapter 6D.2 of the
Corporations Act.
7.3 FORM OF TRANSFER
Every transfer of Bonds shall be effected by Transfer and Acceptance,
duly completed and executed by the transferor and transferee, duly
stamped (if applicable), and lodged with the Registrar.
7.4 REGISTRATION OF TRANSFEREE AS BONDHOLDER
Subject to the terms of this Deed, the Registrar must promptly
following receipt of a Transfer and Acceptance enter the transferee in
the Register as the holder of the Bonds the subject of that Transfer
and Acceptance.
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7.5 REGISTRAR ENTITLED TO REFUSE TO REGISTER TRANSFER AND ACCEPTANCE
The Registrar may refuse to register any Transfer and Acceptance which
would result in:
(a) a breach of the terms of this Deed, the relevant Bond Terms,
the Security Trust Deed (if any) relating thereto, or a law of
an Australian Jurisdiction; or
(b) the Trustee being required to take any action upon or
following registration to avoid any such breach.
7.6 NOTICE OF REFUSAL TO REGISTER
If the Registrar refuses to register a Transfer and Acceptance, it must
as soon as practicable (and in any event not later than 7 days after
the date the Transfer and Acceptance was lodged with it) send to the
transferor and the transferee notice of such refusal.
7.7 NO FEE FOR REGISTRATION OF A BOND TRANSFER
No fee shall be charged for the registration of any Transfer and
Acceptance.
7.8 TAKING EFFECT OF BOND TRANSFERS
(a) A Transfer and Acceptance shall not take effect until
registered and until the transferee is inscribed in the
Register as the holder of the relevant Bonds, the transferor
shall remain the holder of those Bonds.
(b) If a Transfer and Acceptance is received by the Registrar
during any period when the Register is closed, the Registrar
need not register the Transfer and Acceptance until after the
Register is re-opened.
7.9 TRANSMISSION OF ENTITLEMENTS
(a) (ELECTION) Any person becoming entitled to Bonds as a result
of the death, mental incapacity or bankruptcy of a Bondholder
may, upon producing such evidence as the Registrar requires of
the person's entitlement, either elect to be registered as the
Bondholder or to transfer the Bonds in the manner specified in
this clause 7.9.
(b) (METHOD OF ELECTION) If such an entitled person elects to be
registered as the Bondholder, the person shall deliver to the
Registrar a notice in writing to that effect signed by the
person. A person who elects to have another person registered
shall execute a Transfer and Acceptance in relation to the
Bonds in favour of that person. All the provisions of this
Deed relating to the transfer of Bonds shall be applicable to
any such notice or Transfer and Acceptance as if the death,
mental incapacity or bankruptcy of the Bondholder had not
occurred and the notice or Transfer and Acceptance was
executed by the Bondholder.
(c) (DISCHARGE) A person entitled to Bonds under this clause shall
be entitled to receive and may give a good discharge for all
moneys payable in respect of such Bonds but, except as
otherwise provided by this Deed, shall not be entitled to any
of the rights or privileges of a Bondholder unless and until
the person is entered in the Register as the holder of such
Bonds.
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7.10 MARKING OF TRANSFERS
(a) The Registrar must, upon request of a Bondholder, mark a
Transfer and Acceptance with a certificate to the effect that
the Bonds referred to in that Transfer and Acceptance are
registered in the name of that Bondholder, and that no
transfer of those Bonds will be registered other than pursuant
to such Transfer and Acceptance Form for the period specified
in such certificate.
(b) Where any Transfer and Acceptance is marked pursuant to
paragraph (a) above, the Registrar must not, during the
specified period, register any transfer of the Bonds referred
to in that Transfer and Acceptance except as effected by such
Marked T&A.
7.11 SPECIMEN SIGNATURES
The Registrar may (but need not) require each Bondholder to submit
specimen signatures (and in the case of a corporation may require those
signatures to be authenticated by the secretary or director of such
Bondholder) of persons authorised to execute Transfers and Acceptances
on behalf of such Bondholder and shall be entitled to assume (until
notified to the contrary) that such authority has not been revoked.
8. REGISTRATION CONFIRMATIONS
8.1 ISSUE OF REGISTRATION CONFIRMATION
As soon as practicable (and in any event no later than 5 Business
Days), after a person has been entered and inscribed in the Register as
the holder of Bonds, the Registrar must issue a Registration
Confirmation to:
(a) that person in respect of those Bonds; and
(b) if the transferor of those Bonds continues to retain a holding
of Bonds, to the transferor in respect of the Bonds which it
continues to hold.
8.2 NO CERTIFICATE OF TITLE
Neither a Registration Confirmation nor a Transfer and Acceptance
Constitutes a certificate of title as to Bonds.
8.3 JOINT HOLDINGS
If a Bond is held by more than one person, only the person whose name
appears first in the Register in relation to that Bond shall be
entitled to:
(a) be issued a Registration Confirmation and a Marked T&A; and
(b) be paid any moneys or exercise any other rights in respect of
such Bonds.
9. WAREHOUSE FUNDING
9.1 TRANSFER OF WAREHOUSE ASSETS TO ANOTHER FUND
The Trust Manager, may at any time by not less than 5 Business Days
prior written notice (or such other period, either shorter or longer,
as may be specified in any relevant Transaction Document or
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agreed by the relevant Warehouse Beneficiary) require the transfer by a
Warehouse Beneficiary of its beneficial interest in some or all of the
Assets of the relevant Warehouse Fund to:
(a) the Trustee in its capacity as trustee of an Issuing Fund or
another Warehouse Fund; or
(b) a person nominated by the Trust Manager,
in consideration of payment by the Trustee to that Warehouse
Beneficiary of an amount equal to (subject to any provision of any
relevant Warehouse Funding Agreement):
(c) the Face Value of those Assets; minus
(d) the aggregate of:
(i) all Taxes which are or may become payable in respect
of the relevant Warehouse Fund;
(ii) all Expenses incurred but not previously paid of that
Warehouse Fund;
(iii) all other amounts which are or may become payable by
it to Creditors of that Warehouse Fund; and
(iv) all amounts in respect of which it is entitled to be
reimbursed or indemnified under this Deed; plus
(e) any other amount payable to the Warehouse Beneficiary in
accordance with the relevant Warehouse Funding Agreement.
9.2 WAREHOUSE TRIGGER EVENT
If a Warehouse Trigger Event occurs in relation to a Warehouse Fund,
the Residual Income Beneficiaries of that Fund may by notice in writing
to the Trustee and the Trust Manager:
(a) nominate a date (which must not be less than 5 Business Days
after the date of the notice) as the Vesting Date for that
Fund; and
(b) subject to clauses 3A, 9.1, 9.3, 21 and 25.10 and the Fund
Creation Notice in relation to that Fund require the transfer
on the Vesting Date by the Trustee to the Residual Income
Beneficiaries of all of the Assets of that Fund.
9.3 PARTIES TO GIVE EFFECT TO TRANSFER
Each of the Trustee, the Trust Manager and the Beneficiaries of a
Warehouse Fund must execute all documents and do all things as the
other may reasonably require to give effect to a transfer of the Assets
of a Fund following the giving by:
(a) the Trust Manager of a notice under clause 9.1; or
(b) the Residual Income Beneficiaries of a notice under
clause 9.2.
9.4 RIGHTS ADDITIONAL TO ISSUE OF BONDS
This clause 9 does not limit the operation of clause 6.
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10. APPOINTMENT OF TRUST MANAGER
10.1 APPOINTMENT
The Trust Manager must manage each Fund upon and subject to the terms
of this Deed.
10.2 POWERS OF MANAGEMENT
The Trust Manager has, subject to this Deed, full and complete powers,
and is responsible for, the management of the Funds (including
liabilities), including:
(a) the management, administration, investment and day to day
operation of the Funds; and
(b) the keeping of all books, records and accounts for each Fund
in accordance with this Deed.
10.3 TRUST MANAGER TO ENFORCE AGAINST MASTER SERVICER
If the Master Servicer is not the same person as the Trust Manager, the
Trust Manager must take all reasonable action to:
(a) ensure that the Master Servicer complies with its obligations
under the Master Origination and Servicing Agreement; and
(b) enforce the performance by the Master Servicer of its
obligations under the Master Origination and Servicing
Agreement.
10.4 TRUST MANAGER NOT LIABLE FOR MASTER SERVICER
If the Master Servicer is not the same person as the Trust Manager,
neither the Trustee nor subject to clause 10.3 the Trust Manager has
any responsibility or liability for the performance by the Master
Servicer of its obligations under the Master Origination and Servicing
Agreement.
10.5 EFFECT OF COMPLIANCE AS MASTER SERVICER
If, and for as long as the Master Servicer is the same person as the
Trust Manager, compliance by the Master Servicer with its obligations
under the Master Origination and Servicing Agreement will be deemed to
be compliance by the Trust Manager with its obligations under this Deed
with respect to the origination, management and servicing of Mortgages.
10.6 ENFORCEMENT OF DUTIES OF MASTER SERVICER
(a) If and for so long as the Master Servicer is the same person
as the Trust Manager, the Trustee must, subject to paragraph
(b), if it becomes aware of a breach by the Master Servicer of
its obligations under the Master Origination and Servicing
Agreement, take such action which it reasonably considers
appropriate, having regard to its duties under this Deed, with
respect to that breach.
(b) The Trustee has no obligation to make any enquiry as to the
performance by the Master Servicer of its obligations under
the Master Origination and Servicing Agreement.
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11. INVESTMENT OF THE FUND
11.1 AUTHORISED INVESTMENTS
(a) Subject to the terms of this Deed, the Assets of each Fund
must comprise only property which is an Authorised Investment
at its date of acquisition.
(b) If an Asset of a Fund would not at any time be an Authorised
Investment if it were to be acquired at that time, neither the
Trustee nor the Trust Manager shall be obliged to dispose of
that Asset.
11.2 TRUST MANAGER TO MAKE PROPOSALS
(a) The Trust Manager must from time to time make proposals to the
Trustee as to the investment of the Assets of the Fund. Each
such proposal must:
(b) be in writing in a form agreed between the Trustee and the
Trust Manager;
(c) specify the Authorised Investments to be purchased or sold;
(d) specify the action (if any) to be taken by the Trustee to give
effect to it;
(e) contain a certification by the Trust Manager that the giving
effect to by the Trustee of the proposal will be in accordance
with this Deed;
(f) specify the price to be paid for the Asset or in the case of a
Loan to be made by the Trustee, the amount of the Loan;
(g) specify to whom any amount is payable under paragraph (e), or
if an Asset is to be acquired from a Warehouse Fund, the name
of the Warehouse Fund;
(h) in the case of the making of a Loan secured by a Mortgage, if
the Trust manager is not the same person as the Master
Servicer, contain a certification by the Trust Manager that it
is not aware of any breach by the Master Servicer of the
representations and warranties made in the Master Origination
and Servicing Agreement with respect to that Loan or Mortgage;
and
(i) contain all other information which the Trustee may reasonably
require to satisfy itself that certification is correct and to
give effect to the proposal.
An Issue Notice which complies with clause 6 complies with this clause
11.2.
11.3 TRUSTEE TO COMPLY WITH PROPOSALS
The Trustee:
(a) must comply with a proposal made by the Trust Manager in
accordance with this Deed provided that, in the case of a
proposal for the making or acquisition of a Loan secured by a
Mortgage (unless any Transaction Document otherwise provides
or unless otherwise agreed), the Trustee has received evidence
satisfactory to it that a Solicitor's Certificate required by
clause 12.1(b) of the Master Origination and Servicing
Agreement has been or will upon such a Loan being made or
acquired, be issued; and
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(b) may rely upon the recommendations and advice of the Trust
Manager with respect to any such proposal, without being under
a duty to make any enquiry or exercise any judgment as to:
(i) the merits of the proposal; or
(ii) whether the proposal complies with this Deed (unless
the Trustee ought reasonably to know that the proposal
does not so comply).
11.4 AUTHORISED INVESTMENTS FOR RATED FUNDS
The Trust Manager shall only give to the Trustee as a trustee of a
Rated Fund a proposal to acquire investments falling within paragraphs
(c)-(h) (inclusive) of the definition of "Authorised Investments" where
the investment (or the issuer of it) has a rating that complies at the
time of the proposed acquisition with the minimum rating requirements
(if any) specified in any Warehouse Funding Agreement, Supplementary
Bond Terms or in relation to that Rated Fund.
11.5 LIMITATION ON MATURITY OF INVESTMENTS
The Trust Manager must ensure that, to the extent that money is or will
be required to meet Expenses of a Fund or payments due to Bondholders
of a Fund, the Assets of that Fund are invested in Authorised
Investments which mature or are otherwise immediately available in or
convertible into cash on or before the date those Expenses of the Fund
or payments (as the case may be) are due.
11.6 RIGHTS ATTACHING TO ASSETS
(a) The Trust Manager may exercise all voting and other rights
conferred by any Assets of a Fund in such manner as it sees
fit in its absolute discretion.
(b) The Trustee must execute and deliver to the Trust Manager or
as the Trust Manager directs all proxies and powers of
attorney which the Trust Manager may request for the purposes
of exercising the voting and other rights conferred by the
Assets of a Fund.
11.7 TRUSTEE'S DEALING WITH ASSETS
The Trustee must not buy, sell or otherwise deal with the Assets of a
Fund except in accordance with the proposals of the Trust Manager made
in accordance with this Deed.
11.8 INTEREST HEDGES AND ENHANCEMENTS
Subject to the terms of this Deed, the Trustee must, as trustee of a
Fund, enter into any Interest Hedges and Enhancements on such terms and
with such counterparties as the Trust Manager may require in writing,
provided that if the Fund is a Rated Fund, the identity of the
counterparty and the terms of the relevant Transaction Document must be
such that each Designated Rating Agency confirms that the entering into
of such arrangements will not cause any credit rating assigned to any
Bonds issued by the Trustee as trustee of that Rated Fund to be
downgraded below the Designated Rating, qualified or withdrawn.
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11.9 HEDGES AND ENHANCEMENTS FOR RATED FUNDS
The Trustee, as trustee of a Rated Fund in respect of which Bonds have
previously been issued, must not enter into or terminate any Interest
Hedge or Enhancement unless the Trustee receives a direction from the
Trust Manager to do so and a certificate from the Trust Manager that
doing so:
(a) either will not cause the rating of those Bonds by a
Designated Rating Agency to be downgraded, or is necessary to
avoid the rating of those Bonds being downgraded; and
(b) is in the best interests of the Creditors and Beneficiaries of
that Rated Fund.
11.10 LIMITATION OF TRUSTEE'S PERSONAL LIABILITY
Notwithstanding any other provision of this Deed, the Trustee is not
obliged to execute any document or incur any obligation as trustee of a
Fund unless its personal liability under that document or in respect of
that obligation is limited in a manner consistent with clause 25.9.
11.11 MONEYS PAYABLE TO TRUSTEE
Subject to this Deed, the Trust Manager must ensure that any agreement
entered into by the Trustee as trustee of a Fund contains a provision
to the effect that any moneys payable to the Trustee under it must be
paid to the Trustee, or to an account or Authorised Investment in the
name of the Trustee.
11.12 SEGREGATION OF ASSETS OF A FUND
Subject to this Deed, the Trustee must:
(a) ensure that no Assets of a Fund are mixed or co-mingled with
the Assets of any other Fund, or with any assets or property
of the Trustee or any other person; and
(b) where advised by the Trust Manager that it is appropriate to
do so, apportion any Asset coming into the hands of the
Trustee which belongs to one or more Fund, or of any liability
which relates to one or more Fund, in such manner as the Trust
Manager certifies in writing is fair and reasonable.
11.13 ASSETS OF FUNDS
The Assets of a Fund are only available to meet liabilities incurred by
the Trustee as trustee of that Fund, and are not available to meet any
other liabilities of the Trustee (whether incurred personally or as
trustee of any other Fund).
11.14 LIABILITIES OF A FUND
Subject to clause 11.12, liabilities incurred by the Trustee as trustee
of a Fund must not be:
(a) aggregated with any liabilities of the Trustee, whether
incurred personally or as trustee of any other Fund; or
(b) set-off against the Assets of any other Fund.
11.15 ORIGINATION AND MANAGEMENT OF MORTGAGES
All Mortgages must be originated, managed and serviced in accordance
with:
(a) the Master Origination and Servicing Agreement; and
(b) any Interest Hedges and Enhancements relating to those
Mortgages.
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11.16 TRUST MANAGER WILL ACT AS MASTER SERVICER
If the Master Servicer is not the same person as the Trust Manager,
and:
(a) the appointment of the Master Servicer is terminated under the
Master Origination and Servicing Agreement; and
(b) the Master Servicer is not immediately replaced on the same or
substantially the same terms,
the Trust Manager must with effect from the date the termination
becomes effective assume the role of Master Servicer, upon the same
terms and conditions as those binding on the Master Servicer under the
Master Servicing and Origination Agreement immediately prior to
termination, until a replacement Master Servicer is appointed.
11.17 TRUST MANAGER'S POWER TO DELEGATE
The Trust Manager may, in performing its obligations under this Deed:
(a) delegate to any of its officers and employees all or any of
the powers, authorities and discretions conferred on the Trust
Manager by this Deed;
(b) by power of attorney:
(i) appoint any person to be its attorney or agent for
such purpose and with such powers, authorities and
discretions (not exceeding those vested in the Trust
Manager) as the Trust Manager thinks fit with or
without power to sub-delegate, and also to authorise
the issue in the name of the Trust Manager of
documents bearing facsimile signatures of the Trust
Manager or of the attorney or agent either with or
without proper manuscript signatures of their
officers thereon; and
(ii) insert such provisions for the protection and
convenience of those dealing with any such attorney
or agent as the Trust Manager may think fit;
(c) appoint by writing or otherwise any person to be agent or
sub-agent of the Trust Manager as the Trust Manager may think
necessary or proper for such purposes and with such power,
authorities and discretions (not exceeding those vested in the
Trust Manager) as the Trust Manager thinks fit and to
supersede or suspend any such agent or sub-agent for such
cause or reason as the Trust Manager may in its sole
discretion think sufficient with or without assigning any
cause or reason and either absolutely or for such time as it
may think proper; and
(d) delegate to another person approved by the Trustee, on terms
approved by the Trustee, its obligations under this Deed with
respect to the origination, management and servicing of
Mortgages. The Trustee must not unreasonably withhold or delay
its approval in either case.
11.18 TRUST MANAGER
The Trust Manager is, subject to clause 10.4, liable for:
(a) the acts or omissions of any officer, employee, attorney,
agent, sub-delegate or sub-agent to whom any delegation is
made under clause 11.17; and
(b) the fees and expenses of any such person.
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11.19 PROFESSIONAL ADVISERS
The Trust Manager may engage and pay reasonable expenses to any
valuers, solicitors, barristers, accountants, surveyors, property
advisers, real estate agents, contractors, qualified advisers, and such
other persons as may be necessary, usual or desirable for the purpose
of enabling the Trust Manager to be fully and properly advised and
informed, in order that it may properly exercise its powers and perform
its obligations under this Deed.
12. ADDITIONAL OBLIGATIONS OF TRUST MANAGER
12.1 GENERAL
The covenants in this clause 12 are for the benefit of the Trustee,
each Beneficiary and each Bondholder.
12.2 ADDITIONAL OBLIGATIONS
The Trust Manager must:
(a) (ACT HONESTLY) act honestly and in good faith in the
performance of its duties and in the exercise of its powers
under this Deed;
(b) (PRUDENTLY) exercise such diligence and prudence as a prudent
man of business would exercise in performing its duties and
exercising its powers under this Deed, having regard to the
interests of the Beneficiaries and the Bondholders;
(c) (CONDUCT ITS BUSINESS PROPERLY) use its best endeavours to
carry on and conduct its business in so far as it relates to
this Deed in a proper and efficient manner;
(d) (MAKE AVAILABLE RECORDS) make available to the Trustee for
inspection all of the books and records of each Fund
maintained by the Trust Manager under this Deed and give to
the Trustee such written or oral information as the Trustee
reasonably requires with respect to all matters relating to
the Funds;
(e) (PAY RECEIPTS) pay to the Trustee, within one Business Day of
receipt, all money coming into its hand which is an Asset of a
Fund;
(f) (NOT CO-MINGLE) ensure that any Assets of a Fund which it may
come to hold from time to time are not mixed or co-mingled
with any Assets of any other Fund, or with any assets of the
Trust Manager or any other person;
(g) (PREPARE NOTICES) prepare or cause to be prepared all notices,
reports statements and the like which the Trustee is required
to prepare under any of the provisions of this Deed and
deliver those notices and statements;
(h) (APPROVAL OF NOTICES) submit to the Trustee all information
memoranda, notices, reports, statements and the like to be
given by the Trust Manager to Bondholders, or prospective
Bondholders, for the Trustee's consent prior to the issue of
the same other than notices, reports, statements and
information provided by the Trust Manager to Bondholders on a
periodic basis or on request by a Bondholder relating to the
nature of the Authorised Investments comprised in the Assets
of a Fund and the performance of those Authorised Investments;
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(i) (ACCURACY OF NOTICES) ensure that all information memoranda,
notices, reports, statements and the like given by the Trust
Manager to Bondholders or prospective Bondholders:
(i) are true in all material respects;
(ii) are not misleading or deceptive or likely to mislead
or deceive; and
(iii) comply with the requirements of all applicable laws;
(j) (COPIES OF ALL NOTICES) give to the Trustee a copy of all
notices, reports and statements provided by the Trust Manager
to Bondholders, including those provided on a periodic basis
or on request;
(k) (TAXES) direct the Trustee to make all payments (as and when
they fall due) out of a Fund for Taxes levied upon any Fund or
upon the Trustee in its capacity as trustee of any Fund;
(l) (MONITOR TRANSACTION DOCUMENTS) monitor and enforce the
Transaction Documents and take all such steps as are necessary
to ensure that the Trustee complies with its obligations and
obtains the benefits conferred on it by the Transaction
Documents to which it is a party;
(m) (COMPLY WITH TRANSACTION DOCUMENTS) comply with its
obligations under all Transaction Documents to which it is a
party; and
(n) (NECESSARY INFORMATION) give to the Trustee all information,
notices, certificates, consents, approvals and authorisations
which it is entitled or obliged to give under the Transaction
Documents and which are necessary to enable the Trustee to
comply with its obligations under the Transaction Documents.
12.3 TRUST MANAGER CANNOT BIND TRUSTEE UNLESS AUTHORISED
In exercising its powers, authorities and discretions and performing
its duties and obligations under this Deed, the Trust Manager has no
power to bind the Trustee, otherwise than as expressly provided in this
Deed.
12.4 THRESHOLD RATE OBLIGATION
The Trust Manager must:
(a) comply with each Threshold Rate Obligation; and
(b) without limiting paragraph (a), in complying with each
Threshold Rate Obligation, have regard to:
(i) the interests of the Beneficiaries of each Fund; and
(ii) the ability of the Beneficiaries of each Fund to
comply with their respective obligations where such
obligations are secured by a Security Interest over
their respective entitlements to receive
distributions of income from the Funds.
13. RETIREMENT OF TRUST MANAGER
13.1 REMOVAL
The Trustee may terminate the appointment of the Trust Manager under
this Deed if:
(a) an Event of Insolvency occurs in relation to the Trust
Manager; or
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(b) a Manager's Default has occurred and is continuing.
13.2 VOLUNTARY RETIREMENT
The Trust Manager may, subject to clause 13.3, resign upon giving to
the Trustee not less than 3 months' notice in writing (or such other
period as the Trust Manager and the Trustee may agree) of its intention
to do so.
13.3 NO RESIGNATION BY TRUST MANAGER UNLESS SUCCESSOR APPOINTED
The Trust Manager must not resign under clause 13.2 unless:
(a) it procures that, before the date on which that termination
becomes effective, another person assumes all of the
obligations of the Trust Manager under this Deed as its
successor, and executes such documents as the Trustee requires
to become bound by this Deed, with effect from that date, as
if it had originally been a party to this Deed as the Trust
Manager; and
(b) the appointment of the successor Trust Manager under
paragraph (a);
(i) is approved by the Trustee; and
(ii) will not cause the credit rating of any Bonds issued
by the Trustee as trustee of any Fund to be
downgraded below the Designated Rating for that Fund.
13.4 TRUSTEE APPOINTS REPLACEMENT TRUST MANAGER
On termination of the appointment of the Trust Manager (the OUTGOING
MANAGER) under clause 13.1, the Trustee shall be entitled to appoint
another person to be the Trust Manager (the INCOMING MANAGER) and until
any such appointment is made, the Trustee shall, subject to this Deed
and to any approval required by law, act as Trust Manager and shall be
entitled to the Manager's Fee.
13.5 TERMS OF APPOINTMENT OF INCOMING MANAGER
The Trustee must ensure that the Incoming Manager executes such
documents as the Trustee requires to assume with effect from the date
its appointment becomes effective, all of the rights, powers,
discretions and obligations of the Trust Manager under this Deed and
the Transaction Documents to which the Outgoing Manager is or was a
party, as if the Incoming Manager had been originally a party to this
Deed and any such Transaction Documents as the Trust Manager.
13.6 EFFECT OF TERMINATION OF OUTGOING MANAGER
The termination of the appointment of the Outgoing Manager under this
clause 13 will not affect any of the rights, obligations or liabilities
of the Outgoing Manager under this Deed or any Transaction Document
accrued or arising before such termination, or as a result of any act
or thing occurring before such termination.
13.7 DELIVERY OF DOCUMENTS
The Outgoing Manager must immediately upon termination of its
appointment becoming effective deliver to the Trustee (or at its
direction) the Data Base and all other books, documents, records and
property relating to the Funds. The Outgoing Manager is entitled to
take, and keep copies of such books, documents and records. Each of the
Trustee and the Incoming Manager must produce the
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originals of such books, documents and records in its possession upon
the giving of reasonable written notice by the Outgoing Manager.
13.8 NOTICE TO SECURITY TRUSTEE OF INCOMING MANAGER
The Trustee or the Incoming Manager must give notice to the Security
Trustee (if any) as soon as practicable following the appointment of
the Incoming Manager.
14. TRUSTEE'S POWERS
14.1 GENERAL POWER
Subject to the terms of this Deed, the Trustee has all of the rights,
powers and discretions over and in respect of the Assets of the Funds
which it could exercise if it were the absolute and beneficial owner of
such Assets.
14.2 SPECIFIC POWERS
The Trustee has the following powers:
(a) (AUTHORISED INVESTMENTS) to make, purchase, acquire, dispose
of or otherwise deal with any Authorised Investment;
(b) (ENFORCEMENT OF RIGHTS) to exercise or enforce its rights
under or in respect of any of the Assets of any Fund;
(c) (FEES AND EXPENSES) to pay all Expenses of a Fund;
(d) (ADVISERS) to engage, and to incur reasonable expenses in
relation to, any valuers, solicitors, barristers, accountants,
surveyors, property advisers, real estate agents, contractors,
qualified advisers, and such other persons as may be
necessary, usual or desirable for the purpose of enabling the
Trustee to be fully and properly advised and informed, in
order that it may properly exercise its powers and perform its
obligations under this Deed;
(e) (PROCEEDINGS) to institute, prosecute, defend, settle and
compromise legal or administrative proceedings in respect of
the Assets of any Fund;
(f) (WAIVERS) to give any waiver, time or indulgence to any person
on such terms as it may in its discretion determine;
(g) (AUSTRACLEAR) at the written request of the Trust Manager, to
register Austraclear as the holder of Bonds, and to lodge
Registration Confirmations and Marked T&A's with Austraclear,
to facilitate transactions through the Austraclear System;
(h) (BONDS) to borrow money by the issue of Bonds as provided in
this Deed;
(i) (OTHER BORROWINGS) to otherwise borrow or raise money or
procure financial accommodation;
(j) (TRANSACTION DOCUMENTS) to enter into and perform its
obligations under any Transaction Document;
(k) (INSURANCE) to insure any Asset;
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(l) (ATTEND MEETINGS) to attend and vote at meetings; and
(m) (INCIDENTAL POWERS) to do all such things which the Trustee
reasonably considers incidental to any of the previous powers
or necessary or convenient to be done for or in connection
with any Fund or the Trustee's functions under this Deed.
Each of the above powers is a separate and independent power. None of
them limits the others, or any other power of the Trustee under this
Deed.
14.3 DELEGATION TO RELATED BODIES CORPORATE
The Trustee may, with the prior written consent of the Trust Manager
from time to time by instrument in writing delegate to any Related Body
Corporate of the Trustee which is a trustee company or trustee
corporation for the purposes of any of the following:
(a) the Trustee Companies Act 1964 (New South Wales);
(b) the Trustee Companies Act 1984 (Victoria);
(c) the Trustee Companies Act 1968 (Queensland);
(d) the Trustee Companies Act 1988 (South Australia);
(e) the Trustee Companies Act 1953 (Tasmania);
(f) the Trustee Companies Ordinance 1947 (Australian Capital
Territory); or
(g) the Trustee Companies Act 1987 (Western Australia),
the exercise of its powers and the performance of its obligations under
this Deed.
14.4 TRUSTEE'S POWER TO DELEGATE; APPOINT ATTORNEYS AND AGENTS
The Trustee may, in performing its obligations under this Deed:
(a) delegate to any of its officers and employees all or any of
the powers, authorities and discretions conferred on the
Trustee by this Deed;
(b) by power of attorney:
(i) appoint any person to be its attorney or agent for
such purpose and with such powers, authorities and
discretions (not exceeding those vested in the
Trustee) as the Trustee thinks fit with or without
power to sub-delegate, and also to authorise the
issue in the name of the Trustee of documents bearing
facsimile signatures of the Trustee or of the
attorney or agent either with or without proper
manuscript signatures of their officers thereon; and
(ii) insert such provisions for the protection and
convenience of those dealing with any such attorney
or agent as the Trust Manager may think fit; and
(c) appoint by writing or otherwise any person to be agent or
sub-agent of the Trustee as the Trustee may think necessary or
proper for such purposes and with such power, authorities and
discretions (not exceeding those vested in the Trustee) as the
Trustee thinks fit and to supersede or suspend any such agent
or sub-agent for such cause or reason as the Trustee may in
its sole discretion think sufficient with or without assigning
any cause or reason and either absolutely or for such time as
it may think proper.
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14.5 TRUSTEE LIABLE FOR DELEGATES
The Trustee is, notwithstanding any delegation under clause 14.3 or
14.4:
(a) subject to clause 14.7, liable for any act or omission of any
such delegate as if any such act or omission were its own; and
(b) responsible for payment of the remuneration, fees and expenses
of any person appointed under this clause 14.
14.6 DELEGABLE AND NON-DELEGABLE DUTIES OF TRUSTEE
The Trustee must not delegate:
(a) the receipt and payment of money (otherwise than to a Bank or
Austraclear, or in the case of the purchase price, sale
proceeds or other moneys payable or receivable in respect of
Authorised Investments to a solicitor, stockbroker or real
estate agent); or
(b) the exercise of any right of enforcement under a Mortgage or
Ancillary Document, otherwise than to the Master Servicer
under the Master Origination and Servicing Agreement.
14.7 TRUSTEE NOT LIABLE FOR THIRD PARTIES
Except as expressly provided in any Transaction Document, no failure by
the Trustee to comply with its obligations under any Transaction
Document will be considered to be the neglect, default or breach of
duty of the Trustee to the extent that that failure was caused or
contributed to by any other party to that Transaction Document (having
regard to the powers and duties conferred on the Trustee by this Deed).
15. TRUSTEE'S COVENANTS
15.1 GENERAL
The covenants in this clause 15 are for the benefit of the Trust
Manager, each Beneficiary and each Bondholder.
15.2 TO ACT CONTINUOUSLY AS TRUSTEE
The Trustee must act continuously as trustee of each Fund until the
earlier of:
(a) the Vesting Date of the Fund; and
(b) the date on which Trustee retires or is removed from office,
in either case, in accordance with this Deed.
15.3 TO ACT HONESTLY, DILIGENTLY AND PRUDENTLY
The Trustee must:
(a) act at all times in the best interests of the Beneficiaries
and the Bondholders of each Fund;
(b) act honestly and in good faith in the performance of its
duties and in the exercise of its discretions hereunder; and
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(c) exercise such diligence and prudence as a prudent man of
business would exercise in performing its functions and in
exercising its powers and discretions and performing its
obligations under this Deed, having regard to the interests of
the Beneficiaries and the Bondholders.
15.4 NO DISPOSITIONS OF ASSETS
Except as provided in the Transaction Documents, the Trustee must not
sell, mortgage, charge or otherwise encumber or part with possession of
any Asset.
15.5 FORWARD NOTICES ETC. TO TRUST MANAGER
The Trustee must promptly forward to the Trust Manager all notices,
reports, circulars and other documents received by it or on its behalf
as trustee of a Fund.
15.6 TRUSTEE WILL IMPLEMENT TRUST MANAGER'S DIRECTIONS
Subject to this Deed and any other Transaction Document to which it is
a party, the Trustee must act upon all directions given to it by the
Trust Manager in accordance with this Deed.
15.7 CUSTODIAN
Unless otherwise required by the terms of any Security Trust Deed, the
Trustee must keep in safe custody all documents of title to or
evidencing Assets. The Trustee may comply with this obligation by
holding Assets in Austraclear or any other clearing or custody system
approved by the Trust Manager and (if required) the relevant Security
Trustee (if any).
15.8 PERFORM TRANSACTION DOCUMENTS
The Trustee must comply with its obligations under all Transaction
Documents to which it is a party.
16. TRUSTEE'S FEES AND EXPENSES
16.1 TRUSTEE'S FEE
The Trustee shall be entitled to deduct from each Fund such fee as is
agreed in writing from time to time between the Trustee and the Trust
Manager. The fees payable to the Trustee in respect of each Fund must
be determined on or before the first Issue Date for that Fund, and
shall apply until the Vesting Date of that Fund.
16.2 MANAGER'S FEE
The Manager shall be entitled to be paid in respect of the performance
of its duties as Trust Manager in relation to each Fund such fees as
may from time to time be agreed between the Trustee, the Trust Manager,
the relevant Security Trustee (if there is a Security Trust Deed for
that Fund) and the relevant Designated Rating Agency (if that Fund is a
Rated Fund).
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17. RETIREMENT OF TRUSTEE
17.1 MANDATORY RETIREMENT
(a) If:
(i) an Event of Insolvency has occurred in relation to
the Trustee;
(ii) a Trustee's Default has occurred and is continuing
(except for a Trustee's Default constituted by a
failure by the Trustee to pay any amount which it
would, but for clause 25.9 or any corresponding
provision of any Transaction Document, have been
liable to pay);
(iii) there is a change in the effective control of the
Trustee; or
(iv) the Trustee rejects a Fund Creation Notice in
accordance with clause 3.3,
the Trust Manager may, subject to paragraph (b), by notice in
writing to the Trustee require the Trustee to retire as
trustee of the Funds within such period as the Trust Manager
may specify in the notice. The Trustee must so retire within
the period specified.
(b) The Trust Manager may only give a notice pursuant to paragraph
(a)(iv) above if it has been directed to do so by an
Extraordinary Resolution of Bondholders.
17.2 TRUST MANAGER MAY REMOVE TRUSTEE
If the Trustee does not retire within the period specified in a notice
given under clause 17.1 the Trust Manager may by deed poll remove the
Trustee from office as trustee of the Funds.
17.3 TRUST MANAGER APPOINTS REPLACEMENT
On the retirement or removal of the Trustee under clause 17.1 or 17.2,
the Trust Manager must as soon as reasonably practicable appoint some
other statutory trustee to be the Trustee of the Funds. Until the
appointment is completed the Trust Manager must act as Trustee.
17.4 VOLUNTARY RETIREMENT
The Trustee may only voluntarily retire as trustee of the Funds if:
(a) the Trustee gives to the Trust Manager not less than 3 months'
(or such other period as the Trust Manager may agree) written
notice of its intention to do so; and
(b) the Trustee selects as the new Trustee of the Funds a
statutory trustee whose identity is acceptable to the Trust
Manager (acting reasonably) and which enters into the
documents referred to in clause 17.7.
17.5 FUNDS TO BE VESTED IN NEW TRUSTEE
Upon retiring or being removed from office, the Trustee (the OUTGOING
TRUSTEE) must execute all documents and do all things necessary to vest
the Funds or cause them to be vested, in the person appointed as the
successor Trustee (the INCOMING TRUSTEE).
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17.6 RELEASE OF OUTGOING TRUSTEE
Upon retirement or removal, the Outgoing Trustee shall have no further
obligations under this Deed, but retirement or removal will not affect
any of the rights, obligations or liabilities of the Outgoing Trustee
accrued or arising before retirement or removal.
17.7 INCOMING TRUSTEE TO EXECUTE DEED
The Incoming Trustee must execute all documents as the Trust Manager
requires to:
(a) assume with effect from the date its appointment becomes
effective, all of the rights, powers, discretions and
obligations of the Trustee under this Deed and the Transaction
Documents to which the Outgoing Trustee is or was a party or
of which it had the benefit, as if the Incoming Trustee had
originally been a party to, or had had the benefit of this
Deed and any such Transaction Document as the Trustee; and
(b) indemnify the Outgoing Trustee for all liabilities of the
Outgoing Trustee under or in respect of the Bonds issued by
the Outgoing Trustee which mature on or after the date of the
retirement or removal of the Outgoing Trustee, and for all
other liabilities and expenses incurred by the Outgoing
Trustee for which it is entitled to be indemnified out of the
Funds and which have not been recouped by it, provided that
the liability of the Incoming Trustee under such indemnity
shall be limited to the same extent provided for in clause
25.9 and any payment shall rank in the same priority pursuant
to clause 25.9 as the corresponding liability for which the
Outgoing Trustee claims such indemnification.
17.8 TRUST MANAGER AND OUTGOING TRUSTEE TO SETTLE AMOUNTS PAYABLE
The Trust Manager may:
(a) settle with the Outgoing Trustee the amount of any sums
payable by the Outgoing Trustee to the Trust Manager or the
Incoming Trustee, or by the Trust Manager to the Outgoing
Trustee under this Deed; and
(b) give or accept from the Outgoing Trustee a discharge in
respect thereof.
Any such settlement or discharge shall (except in the case of any
fraud, negligence or wilful default on the part of the Outgoing Trustee
or its officers, employees, agents and delegates) be conclusive and
binding upon all persons.
17.9 OUTGOING TRUSTEE TO RETAIN LIEN
Notwithstanding the retirement or removal of the Outgoing Trustee and
the indemnity in favour of the Outgoing Trustee by the Incoming Trustee
as contemplated by clause 17.7, the Outgoing Trustee will retain a lien
over each Fund to meet claims of any Creditors of the Outgoing Trustee
as trustee of the Fund, to the extent that the claims of those
Creditors are not properly and duly satisfied by the Incoming Trustee.
17.10 DELIVERY OF DOCUMENTS
The Outgoing Trustee must immediately upon termination of its
appointment becoming effective deliver to the Incoming Trustee (or at
its direction) the Data Base and all other books, documents, records
and property relating to the Funds under its control. The Outgoing
Trustee is entitled to take, and keep copies of such books, documents
and records. Each of the Trust Manager and the
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Incoming Trustee must produce the originals of such books, documents
and records in its possession upon the giving of reasonable written
notice by the Outgoing Trustee.
17.11 NOTICE TO SECURITY TRUSTEE OF INCOMING TRUSTEE
The Incoming Trustee or the Trust Manager must give notice to the
Security Trustee (if any) as soon as practicable following the
appointment of the Incoming Trustee.
18. TRUST ACCOUNTS
18.1 OPENING OF TRUST ACCOUNTS
The Trustee:
(a) must, as directed by the Trust Manager, open a separate
account with a Bank in respect of each Fund. Each such account
must:
(i) be opened in the name of the Trustee;
(ii) bear a designation indicating the Fund to which it
relates; and
(iii) in the case of a Rated Fund, be maintained with a
Bank whose debt obligations are rated at all relevant
times by the Designated Rating Agency, not lower than
the Designated Rating; and
(b) may open such additional accounts with a Bank in respect of a
Fund as the Trust Manager may direct.
18.2 LOCATION OF TRUST ACCOUNTS
(a) Unless otherwise directed in writing by the Trust Manager, the
principal Trust Account of each Fund must be opened and
maintained at a branch of a Bank in New South Wales.
(b) If directed to do so by the Trust Manager, the Trustee must
open Trust Accounts with a branch of a Bank outside New South
Wales provided that the Trustee enters into arrangements with
the relevant Bank so that as soon as practicable after the
receipt of moneys to the credit of any such account, such
moneys are to be transferred to the credit of the principal
Trust Account of the relevant Fund.
18.3 AUTHORISED SIGNATORIES
The Trustee must ensure that the only authorised signatories for any
Trust Account are officers or employees of the Trustee.
18.4 BANK STATEMENTS AND ACCOUNT INFORMATION
(a) The Trustee must give to the Trust Manager (and any other
person from time to time specified by the Trust Manager):
(i) copies of all statements for a Trust Account promptly
following receipt of the same by the Trustee; and
(ii) such explanations and reconciliations as to any such
statements as may from time to time reasonably be
required by the Trust Manager (or such other person).
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(b) The Trustee authorises the Trust Manager to obtain statements
and information in relation to each Trust Account direct from
the Bank at which it is held.
18.5 DEPOSITS
Subject to this Deed and except in respect of payments made through the
Austraclear System, the Trustee must pay into the Trust Account of a
Fund the following moneys:
(a) subject to clause 6.8(b) and (d), the Issue Proceeds of each
Issue by the Trustee as trustee of that Fund;
(b) all proceeds of sale and other moneys received under or in
respect of the Authorised Investments of that Fund;
(c) all money received under or in respect of any Transaction
Documents entered into by the Trustee in its capacity as
trustee of that Fund; and
(d) all other moneys received by the Trustee in respect of that
Fund.
18.6 WITHDRAWALS
Subject to this Deed, the Trustee may withdraw funds from a Trust
Account and apply them in:
(a) settling or purchasing Authorised Investments in accordance
with this Deed and making payments required in connection with
the holding of Authorised Investments;
(b) making payments to the Bondholders or the Beneficiaries of
that Fund;
(c) paying amounts payable by the Trustee under any Transaction
Documents entered into by the Trustee in its capacity as
trustee of that Fund; and
(d) paying Expenses of that Fund.
18.7 CENTRAL CLEARING ACCOUNT
The Trustee, as trustee of a number of Funds, may maintain an account
with a Bank as a clearing account for the receipt of money comprising
Assets of those Funds generally, provided that as soon as practicable
after the receipt of money to the clearing account and the
identification of the Fund to which the money relates, the Trustee must
ensure that the Bank credits that money to the Trust Account for that
Fund. The Trustee may mix or co-mingle the Assets of one Fund with the
Assets of another Fund in accordance with this clause.
19. AUDITORS
19.1 APPOINTMENT OF AUDITOR
The Trustee must appoint an auditor of each Fund within one month of
the creation of that Fund pursuant to this Deed. The auditor must be a
firm of chartered accountants some of whose members are Registered
Company Auditors.
19.2 REMOVAL AND RETIREMENT OF AUDITOR
(a) The Trustee may from time to time remove an Auditor.
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(b) An Auditor may retire at any time upon giving [one months']
written notice (or such shorter period as the Trustee may
agree) to the Trustee of its intention to so retire.
19.3 APPOINTMENT OF REPLACEMENT AUDITOR
Any vacancy in the office of an Auditor occurring under clause 19.2
must be filled by the Trustee appointing as auditor a firm of chartered
accountants some of whose members are Registered Company Auditors.
19.4 AUDITOR MAY HAVE OTHER OFFICES
An Auditor may also be the auditor of the Trustee, the Trust Manager, a
Related Body Corporate of the Trustee or the Trust Manager or of any
other Fund but a member of the firm appointed as an Auditor may not be
an officer, a partner of an officer or an employee of the Trustee, the
Trust Manager or a Related Body Corporate of the Trustee or the Trust
Manager.
20. RECORDS AND FINANCIAL STATEMENTS
(a) The Trust Manager must keep accounting and other records which
correctly record and explain the Assets and financial position
of each Fund, and all transactions entered into by the Trustee
as trustee of each Fund, in a manner which will enable the
preparation from time to time of true and fair Financial
Statements of each Fund and the auditing of those Financial
Statements.
(b) The Trust Manager must make all accounting records available
to the Trustee for inspection at all reasonable times without
charge.
(c) All Financial Statements must be prepared in accordance with
Approved Accounting Standards.
(d) The Trust Manager must deliver to the Trustee and the Security
Trustee not later than three months after the end of each
Financial Year of each Fund, the Financial Statements of that
Fund for that Financial Year, duly audited by the Auditor.
(e) The Trust Manager must ensure that the Financial Statements of
each Fund are audited by the Auditor as at the end of each
Financial Year.
(f) The Trust Manager must ensure that all necessary tax returns
for each Fund are prepared and lodged within any applicable
time limits.
21. PAYMENTS FROM FUNDS AND TERMINATION
21.1 PAYMENTS BY TRUSTEE
The Trustee must, at the direction of the Trust Manager, pay all
amounts received by it in respect of each Fund in accordance with the
Transaction Documents in relation to that Fund.
21.2 INCOME OF THE FUND
For each Financial Year in respect of a Fund the Trust Manager will
ascertain the following on behalf of the Trustee:
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(a) the net income of that Fund in accordance with section 95(1)
of the Taxation Act (the TAX INCOME); and
(b) the net income of that Fund in accordance with conventional
accounting principles applicable to the administration of
trusts (the ACCOUNTING INCOME).
21.3 INCOME ENTITLEMENT
Notwithstanding anything to the contrary contained in this Deed:
(a) (PRESENT ENTITLEMENT) the Residual Income Beneficiaries of
each Fund shall, as at the end of each Financial Year for that
Fund, have an absolute vested interest in, and be presently
entitled to, the income of that Fund for that Financial Year
in accordance with their respective Income Percentages; and
(b) (APPLICATION OF INCOME) unless the Trustee (in consultation
with the Trust Manager) otherwise determines, having regard to
any relevant taxation or other implications for the Trustee
(disregarding for these purposes any possible operation of
clause 21.4) for any Financial Year for that Fund, for the
purposes of paying, applying, distributing, setting aside or
allocating any income in respect of that Financial Year for
the benefit of the Residual Income Beneficiaries of that Fund
in accordance with the terms of this Deed, the income that is
to be so paid, applied, distributed, set aside or allocated
shall be whichever is the greater of the Tax Income or the
Accounting Income for that Financial Year.
21.4 DISTRIBUTION OF EXCESS TAX INCOME
For the avoidance of doubt, in the event that the Tax Income of a Fund
exceeds the Accounting Income of that Fund in any Financial Year then,
notwithstanding anything to the contrary in this Deed, the Trust
Manager must direct the Trustee to, and the Trustee shall, so far as
possible, ensure that such excess is allocated to the Residual Income
Beneficiaries of that Fund in accordance with their respective Income
Percentages and shall take such action as is reasonably necessary to
give effect to this clause.
21.5 PAYMENTS TO BENEFICIARIES
(a) (DISTRIBUTABLE INCOME DUE AS AT CLOSE OF FINANCIAL YEAR) The
income of a Fund for a Financial Year (to the extent not
previously distributed) shall, subject to clause 21.8,
constitute a debt due as at the end of that Financial Year by
the Trustee as trustee of the Fund to each Residual Income
Beneficiary of that Fund who is entitled to the income under
clause 21.3(a) and shall, subject to clause 21.8, be payable
under paragraph (b).
(b) (PAYMENT) Subject to clause 21.7, the Trustee may, on the
instructions of the Trust Manager, make interim distributions
of the income of a Fund to the Residual Income Beneficiaries
of that Fund in accordance with their respective Income
Percentages and shall as soon as practicable after the end of
a Financial Year pay the income of that Fund (to the extent
not previously distributed) to the Residual Income
Beneficiaries of that Fund in accordance with their respective
Income Percentages.
21.6 APPLICATION OF FUND INCOME
(a) If by the last day of any Financial Year for a Fund (the LAST
DAY) the Trustee has not effectively dealt with the whole of
the income of that Fund for that Financial Year by
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paying, applying or distributing it, or by setting it aside,
then the income not so paid, applied, distributed or set aside
shall be deemed to have been irrevocably applied and set aside
on the Last Day by the Trustee on behalf of, and shall be held
by the Trustee on and from the Last Day upon trust absolutely
for, the Residual Income Beneficiaries of that Fund in
accordance with their respective Income Percentages
(including, for these purposes, the allocation of excess Tax
Income (if any) pursuant to clause 21.4).
(b) If the Trustee fails to effectively allocate any excess to the
Residual Income Beneficiaries in accordance with clause 21.6,
then such excess shall vest or be deemed to be vested in those
Residual Income Beneficiaries in accordance with their
respective Income Percentages.
(c) For the purposes of this clause 21.6, references to income of
a Fund for any Financial Year shall be to the greater of the
Tax Income or the Accounting Income for that Fund for that
Financial Year.
21.7 APPLICATION OF RESIDUAL INCOME BENEFICIARIES' ENTITLEMENTS
(a) To the extent that there is an amount payable under clause
21.3 which is to be paid in priority to the amounts payable to
a Residual Income Beneficiary of a Fund, that Residual Income
Beneficiary directs the Trustee to meet that amount as an
application of that Residual Income Beneficiary's entitlement
to the income of that Fund.
(b) Notwithstanding paragraph (a) of this clause, once an amount
is paid out of a Fund to a Residual Income Beneficiary during
a Financial Year, that amount may not be recovered from that
Residual Income Beneficiary for any reason or by any person
except to the extent that the amount was paid in error.
21.8 TRUST MANAGER TO ENSURE COMPLIANCE BY TRUSTEE
Without limiting its other obligations under this Deed, the Trust
Manager, in exercising its powers and carrying out its duties in
accordance with this Deed, must, to the extent possible, ensure that
the Trustee complies with its obligations under this clause 21.
21.9 DISTRIBUTION ON VESTING DATE
The Trustee, at the direction of the Trust Manager, must as soon as
practicable following the Vesting Date for a Fund:
(a) sell or convert into cash:
(i) all of the Assets of the Fund; or
(ii) if the Vesting Date occurs following the giving by
the Residual Income Beneficiaries of that Fund of a
notice under clause 9.2 requiring transfer in specie,
and subject to the terms of any relevant Warehouse
Funding Agreement, so much of the assets of the
relevant Warehouse Fund as are necessary to enable it
to discharge in full, or make full provision for:
(A) all Taxes which are or may become payable in
respect of that Warehouse Fund;
(B) all Expenses incurred but not previously
paid of that Warehouse Fund;
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(C) all other amounts which are or may become
payable by it to Creditors of that Fund; and
(D) all amounts in respect of which it is
entitled to be reimbursed or indemnified
under this Deed;
(b) apply the proceeds of sale or conversion in the manner and
order set out in clause 21.1; and
(c) subject to the Fund Creation Notice and the Transaction
Documents in relation to that Fund, transfer the balance of
that Fund to the Residual Income Beneficiaries of that Fund in
accordance with their respective Income Percentages, either in
cash or, if the Vesting Date occurs following the giving of
notice by the Residual Income Beneficiaries under clause 9.2
and that notice requires the transfer in specie, in specie.
22. THE REGISTER
22.1 DETAILS TO BE KEPT ON THE REGISTER
The Trustee must, subject to clause 22.8, keep a register in which
shall be inscribed the following information in respect of each Issuing
Fund:
(a) the name of the Issuing Fund;
(b) the date of the creation of the Issuing Fund;
(c) the Issue Dates for Bonds issued in relation to the Fund;
(d) the number and Face Value of Bonds issued on each Issue Date;
(e) the Supplementary Bond Terms (and any amendments or variations
thereto made pursuant to clause 27), and Series, for all such
Bonds;
(f) the name, address and tax file number of each holder of Bonds;
(g) the number of Bonds held by each Bondholder;
(h) details of any Registration Confirmation issued to a
Bondholder;
(i) the date on which a person was entered as the holder of Bonds;
(j) the date on which a person ceased to be a Bondholder;
(k) the account to which any payments due to a Bondholder are to
be made (if applicable);
(l) a record of each payment in respect of the Bonds in relation
to the Issuing Fund (including the then Face Value on the
Bonds); and
(m) such other information as the Trustee or the Trust Manager
considers necessary or desirable.
22.2 PLACE OF KEEPING REGISTER, COPIES AND ACCESS
The Register must be:
(a) kept at the Registrar's principal office in Sydney or at such
place as the Trustee may, from time to time, nominate;
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(b) open for inspection by a Bondholder during normal business
hours but only in respect of information relating to that
Bondholder; and
(c) not available to be copied by any person (other than the Trust
Manager) except in compliance with such terms and conditions
(if any) as the Trust Manager and Trustee in their absolute
discretion may impose.
22.3 BRANCH REGISTERS
(a) The Registrar must if requested by the Trust Manager establish
and maintain a branch register or registers (each a BRANCH
REGISTER) on which shall be entered the names of those
Bondholders who request that their names, and the Bonds held
by them, shall be so recorded, the Bonds in respect of which
the request is made, the date on which the name of any
Bondholder was entered on such Branch Register and any other
details considered necessary or desirable by the Trustee or
the Trust Manager. The name of such Bondholder and details
regarding such Bonds shall be removed from any Register other
than such Branch Register.
(b) Every Branch Register shall be designated as the Branch
Register for the place where it is established.
(c) The Trust Manager may direct the Registrar to discontinue a
Branch Register and if it does so, the Registrar must transfer
all entries from that Branch Register to some other Branch
Register or to the Register as directed by the Trust Manager.
(d) Except where otherwise expressly stated in this Deed or where
the context otherwise requires, every reference in this Deed
to the "Register" shall include every Branch Register.
(e) Bonds registered on a Branch Register may, at the request of a
Bondholder and with the consent of the Registrar, be
transferred to another Branch Register or to the Register.
22.4 DETAILS ON REGISTER CONCLUSIVE
The Registrar is:
(a) not obliged to enter on the Register notice of any trust,
Security Interest or other interest in respect of any Bonds;
(b) entitled to recognise the person inscribed as a Bondholder in
the Register as the absolute owner of the relevant Bonds; and
(c) not bound or affected by any trust affecting the ownership of
any Bonds,
in each case unless ordered by a court or required by statute.
22.5 CLOSING OF REGISTER
(a) (DETERMINING ENTITLEMENTS) The Register shall be closed by the
Registrar for the purpose of determining the Interest
Entitlements and Principal Entitlements of Bondholders during
the period commencing from the close of business on the day
which is 5 clear Business Days (or such other period agreed
between the Registrar and the Trust Manager or set out in the
relevant Bond Terms) prior to, and ending on the commencement
of business on the Business Day immediately after, each
Interest Payment Date and each Amortisation Date respectively
of the relevant Bonds.
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(b) (IN NORMAL COURSE) The Registrar may with prior notice to the
relevant Bondholders close the Register for such other periods
as the Registrar may nominate in the notice, provided that the
aggregate period for which the Register may be closed in total
(under this paragraph and paragraph (a)) in any calendar year
must not exceed 30 Business Days or such other period as the
Registrar and the Trust Manager may agree.
(c) (SUPPLEMENTARY BOND TERMS) Notwithstanding paragraphs (a) and
(b) above, the Supplementary Bond Terms for any Bonds may
specify that the Register in relation to those Bonds will be
closed for periods or in circumstances other than those
referred to in paragraphs (a) and (b).
22.6 ALTERATION OF DETAILS ON REGISTER
Upon the Registrar being notified of any change of name or address or
payment or other details of a Bondholder by the Bondholder, the
Registrar must alter the Register accordingly.
22.7 RECTIFICATION OF REGISTER
If:
(a) an entry is omitted from the Register;
(b) an entry is made in the Register otherwise than in accordance
with this Deed;
(c) an entry wrongly exists in the Register;
(d) there is an error or defect in any entry in the Register; or
(e) default is made or unnecessary delay takes place in entering
in the Register that any person has ceased to be the holder of
Bonds,
(f) Registrar must rectify the same promptly upon becoming aware
of its existence.
22.8 TRUSTEE MAY APPOINT REGISTRAR
The Trustee may, and must if required to do so by the Trust Manager,
appoint another person to be the Registrar in relation to an Issuing
Fund, and to do, in relation to that Issuing Fund, all of the things
which this Deed requires the Registrar to do or contemplates will be
done by it, provided that:
(a) the appointment of that person must be by written agreement
between the Trustee, the Trust Manager and the Registrar;
(b) in the case of a Rated Fund, the appointment of that person
must not cause the credit rating assigned to Bonds issued by
the Trustee as trustee of that Fund to be downgraded to lower
than the Designated Rating for that Fund;
(c) the Trustee or the Trust Manager on behalf of the Trustee must
exercise its rights and enforce performance by that person of
its obligations under that agreement in accordance with clause
15.3; and
(d) subject to paragraph (c), neither the Trustee nor the Trust
Manager shall have any liability to any Bondholder or
Beneficiary for the performance by that person of its
obligations.
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23. MEETINGS OF BONDHOLDERS
23.1 GOVERNING PROVISIONS
The convening, holding of, and conduct of meetings of Bondholders, and
the exercise of voting rights and the passing of resolutions at those
meetings are governed by:
(a) the provisions of Schedule 7; and
(b) the provisions of the relevant Security Trust Deed (if any).
23.2 SECURITY TRUST DEED PREVAILS
The provisions of the Security Trust Deed for a Fund relating to
meetings of Bondholders may override, suspend, modify, supplement,
delete or render inapplicable any of the provisions of Schedule 7. If
there is any inconsistency between the provisions of the relevant
Security Trust Deed and Schedule 7, the provisions of the Security
Trust Deed prevail.
24. PAYMENTS GENERALLY
24.1 CHEQUE DETAILS
Any moneys payable by the Trustee to a Bondholder or a Beneficiary
under this Deed may be paid by:
(a) a "not negotiable" cheque in favour of the Bondholder or the
Beneficiary (as the case may be) despatched by post to the
registered address of the Bondholder or to the address of the
Beneficiary for the purposes of clause 26.1; or
(b) at the option of the Bondholder (which option may be exercised
on an Application for Bonds or a Transfer and Acceptance Form)
or the Beneficiary (as the case may be) by direct transfer to
a designated bank account in Australia of the Bondholder or
the Beneficiary.
24.2 PAYMENTS GOOD DISCHARGE
Every payment made in accordance with clause 23.1 shall be in full
satisfaction of the moneys payable and shall be a good discharge to the
Trustee and to the Trust Manager. Neither the Trustee nor the Trust
Manager is responsible for any moneys which are not credited to the
bank account of a Bondholder or a Beneficiary if the Bank at which the
Trust Account from which the payment is made is held has been
instructed to effect the direct transfer referred to in clause 23.1(b).
24.3 VALID RECEIPTS
The receipt of the Trustee for any moneys shall discharge the person
paying the same from all liability to make any further enquiry in
relation thereto. Every such receipt shall as to the moneys paid or
expressed to be received in such receipt, effectually discharge the
person paying such moneys from such liability or enquiry and from being
concerned to see to the application or being answerable or accountable
for any loss or misapplication of such moneys.
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25. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY GENERALLY
25.1 POWERS ADDITIONAL
The following provisions of this clause 25 are in addition to any
rights or powers conferred on the Trustee or the Trust Manager at law
or in equity. Each of them is to be construed separately and except
where expressly stated, none of them limits the others.
25.2 RELIANCE ON CERTIFICATES
Subject to clause 25.4, neither the Trustee nor the Trust Manager shall
incur any liability in respect of any action taken or thing suffered by
it in reliance upon any document (including, for example, any notice,
resolution, direction, consent, certificate, receipt or statement)
given to or served on it for the purposes of or pursuant to this Deed
which it reasonably believes to be genuine, and to be signed by persons
authorised to do so and having power to bind the person on whose behalf
the document is or purports to be given.
In preparing any such document each of the Trustee and the Trust
Manager is entitled to assume that each person under any Authorised
Investment other Transaction Document or any other deed, agreement or
arrangement has performed or will perform their obligations thereunder
in full by the due date and otherwise in accordance with the terms
thereof, unless the Trustee or the Trust Manager has notice to the
contrary.
25.3 NO LIABILITY
If either the Trustee or the Trust Manager incurs any liability to any
person as a consequence of having relied, in accordance with clause
25.2, upon a document which was forged or does not bind the person on
whose behalf it was purportedly given, the Trustee or the Trust Manager
(as the case may be) is entitled to reimbursement for the amount of
such loss from the relevant Fund.
25.4 NOTICES FROM TRUSTEE AND TRUST MANAGER
Whenever any document or communication is to be given by the Trust
Manager or the Trustee to the other of them, the recipient may accept
as sufficient a document which it reasonably believes to be signed on
behalf of the giver by any two Authorised Signatories of the giver of
the notice. The recipient of the notice is not responsible for any loss
arising from any act, neglect, mistake or discrepancy of the giver of
the notice or any officer, employee, agent or delegate of the giver of
the notice in preparing any such document or in compiling, verifying or
calculating any matter or information contained in any such document,
whether or not an error in any such information, document, form or list
is reproduced by the recipient in any step taken by it under this Deed.
25.5 COMPLIANCE WITH LAWS
The Trustee and the Trust Manager shall not incur any liability to
anyone in respect of any failure to perform or to do any act or thing
which the Trustee or the Trust Manager is prohibited from doing by any
applicable law (or any ordinance, rule, regulation or by-law made
pursuant thereto) or by any order or judgment of any competent court or
other tribunal.
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25.6 RELIANCE ON EXPERTS
Each of the Trustee and the Trust Manager:
(a) may act upon the opinion or advice of, or information obtained
from the Trust Manager (in the case of the Trustee only), the
Trustee (in the case of the Trust Manager only) the Master
Servicer or any barristers, solicitors, bankers, accountants,
brokers, valuers and other professional advisers (whether
instructed by the Trustee, the Trust Manager or the Master
Servicer) believed by it in good faith to be expert and
properly informed in relation to the matters upon which they
are consulted; and
(b) is not liable for anything done or suffered by it in good
faith in reliance upon such opinion, advice or information.
25.7 POWERS, AUTHORITIES AND DISCRETIONS
Except as otherwise expressly provided in this Deed, neither the
Trustee nor the Trust Manager is liable for any loss (whether
consequential or otherwise), costs or damages resulting from the
exercise of (or failure to exercise) its rights, powers or discretions
or the performance of (or failure to perform) its obligations under
this Deed, except where such losses, costs or damages are caused by the
fraud, negligence or wilful default of the Trustee or the Trust Manager
(as the case may be).
25.8 LEGAL AND OTHER PROCEEDINGS
(a) (INDEMNITY FOR LEGAL COSTS) Subject to paragraph (b), the
Trustee and the Trust Manager are entitled to be indemnified
out of a Fund, and the Trustee may pay from the Fund all
reasonable legal costs and disbursements and all other cost,
disbursements, outgoings and expenses incurred by the Trustee
or the Trust Manager in connection with:
(i) properly enforcing or preparing for the enforcement
of, or properly preserving its rights under; and
(ii) the proper initiation, defence, carriage and
settlement of any action, suit, proceeding or dispute
in respect of,
this Deed or any other Transaction Document or otherwise under
or in respect of that Fund.
(b) Nothing in paragraph (a) affects:
(i) any obligation of the Trustee to restore the Assets
of any Fund because of a failure by the Trustee to
exercise in relation to the Fund the degree of care,
diligence and prudence required of a trustee or
because of some other neglect, default or breach of
duty by the Trustee, having regard to the powers and
duties conferred on the Trustee by this Deed; or
(ii) any remedy which the Trustee, any Bondholder or any
Beneficiary may have against the Trust Manager under
any Transaction Document.
25.9 LIABILITY OF TRUSTEE UNDER TRANSACTION DOCUMENTS
(a) The Trustee has no personal liability in relation to any of
its obligations under or arising out of this Deed or any of
the Transaction Documents entered into in its capacity as
trustee of a Fund.
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(b) In relation to each such obligation, the liability of the
Trustee is limited to and does not extend beyond the Assets of
the relevant Fund as they stand at the time at which the
obligation is met or satisfied.
(c) The Trustee is not liable to meet or satisfy any such
obligation from its own assets (except the Trustee's
Indemnity) and each such obligation must be met or satisfied
from the relevant Fund or the Trustee's Indemnity.
(d) The preceding paragraphs apply notwithstanding the fact that
the liabilities of the Trustee in its capacity as the trustee
of a Fund may from time to time and at any time almost equal,
equal or exceed the value of the Assets of that Fund at the
relevant time.
(e) The previous paragraphs of this clause 25.9 do not apply to
the liability of the Trustee in relation to any obligation
which in any Transaction Document the Trustee expressly
assumes in its personal capacity.
(f) It is acknowledged by the Trustee that the Assets of each Fund
at any time will include the amount of any compensation found
by a Final Judgment (or admitted by the Trustee) to be payable
by the Trustee to restore that Fund because of a failure by
the Trustee to exercise in relation to the Fund the degree of
care, diligence and prudence required of a trustee or because
of some other neglect, default or breach of duty by the
Trustee having regard to the powers and duties conferred on
the Trustee by this Deed, in either case occurring before the
time in question and causing loss to the Fund quantified
before the time in question.
(g) For the purposes of this clause 25.9, FINAL JUDGMENT means a
judgment of a court of law in Australia against which there
can be no appeal or in relation to which the time to appeal
has expired.
25.10 TRUSTEE'S INDEMNITY NOT BE IMPAIRED
(a) The Trustee is indemnified out of the Assets of each Fund
against all liabilities, losses, costs and expenses incurred
by the Trustee in performing any of its duties or exercising
any of its powers in relation to that Fund pursuant to this
Deed or the relevant Transaction Documents.
(b) The indemnity given in paragraph (a) will not be voided and
will apply to permit payment of any liability of the Trustee
to Creditors of a Fund notwithstanding any failure by the
Trustee to exercise the degree of care, diligence and prudence
required of a trustee or neglect, default or breach of duty by
the Trustee having regard to the powers, authorities and
discretions conferred on the Trustee by this Deed, including
where the failure or the negligence, default or breach of duty
involved, on the part of the Trustee, dishonesty or any wilful
act or omission known by the Trustee to be a breach of trust.
(c) If the Trustee fails to exercise the degree of care, diligence
and prudence required of a trustee or there occurs any other
neglect, default or breach of duty by the Trustee having
regard to the powers, authorities and discretions conferred on
the Trustee by this Deed:
(i) the Trustee may not receive, hold the proceeds or
otherwise have the benefit of the indemnity given in
paragraph (a) otherwise than on behalf of and on
trust for the Creditors of the relevant Fund; and
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(ii) the Trustee may only be indemnified to the extent
necessary to allow it to discharge its liabilities to
those Creditors.
(d) Nothing in this clause 25.10 is to be taken:
(i) as imposing any restriction upon any right which any
person may have to bring an action against the
Trustee for loss or damage suffered by reason of the
Trustee's failure to exercise the degree of care,
diligence and prudence required of a trustee or any
other neglect, default or breach of duty by the
Trustee having regard to the powers, authorities and
discretions conferred on the Trustee by this Deed; or
(ii) as conferring upon the Trustee a right to be
indemnified out of the Fund against any loss the
Trustee (in its personal capacity) suffers in
consequence of an action brought against it by reason
of the Trustee's failure to exercise the degree of
care, diligence and prudence required of a trustee or
any other neglect, default or breach of duty by the
Trustee having regard to the powers, authorities and
discretions conferred on the Trustee by this Deed.
25.11 TRUST MANAGER'S RIGHT OF INDEMNITY
The Trust Manager is entitled to be indemnified out of the relevant
Fund in respect of any liability, cost or expense properly incurred by
it in its capacity as manager of the relevant Fund or so incurred by
any of its delegates, sub-delegates or agents.
25.12 CONFLICTS
Without limiting clause 15.3, nothing in this Deed prevents the
Trustee, the Trust Manager or any Related Body Corporate or Associate
(as defined in Part 1.2, Division 2 of the Corporations Act) of either
of them (all being included in this clause in references to the Trustee
and the Trust Manager) from:
(a) subscribing for, buying or selling Bonds;
(b) in the ordinary course of its business contracting or acting
in any capacity as representative or agent or otherwise or
entering into any financial, banking, development, insurance,
agency, broking or other transaction with the Trustee as
trustee of any Fund or any other trust, or in its personal
capacity;
(c) providing any advice or services to the Trustee as trustee of
any Fund; or
(d) being interested in any such contract or transaction.
The Trustee and the Trust Manager shall not be in any way liable to
account to any Bondholder, any Beneficiary or any other person for any
profits or benefits made or derived from or in connection with any such
transaction.
25.13 CONSUMER CREDIT CODE
(a) The Trust Manager, the Master Servicer and the Trustee agree:
(i) without limiting any other provision of this Deed and
subject to paragraph (b) below, the Master Servicer
shall indemnify the Trustee, free of any set-off or
counterclaim, against all Penalty Payments which the
Trustee is required to pay personally or in its
capacity as trustee of a Fund and arising in
connection with the
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performance of its duties or exercise of its powers
under this Deed in relation to that Fund;
(ii) the Master Servicer shall be the nominated credit
provider for the purposes of section 75 of the
Consumer Credit Regulations (Western Australia) for
the purposes of all Regulated Loans and Regulated
Mortgages; and
(iii) the Master Servicer must, subject to paragraph (b),
pay to the Trustee on demand any amount which the
Trustee may recover from the Master Servicer under
section 75 of the Consumer Credit Regulations
(Western Australia) by virtue of the Master Servicer
being the nominated credit provider.
(b) If the Trustee makes a Penalty Payment, the Trustee shall have
no right to recover the amount of that Penalty Payment from
the Master Servicer if that Penalty Payment was made as a
result of:
(i) the Trustee's failure to exercise the degree of care,
diligence and prudence required of a trustee; or
(ii) any other neglect, default or breach of duty by the
Trustee,
in either case, having regard to the powers, authorities and
discretions conferred on the Trustee by this Deed.
(c) For the avoidance of doubt, but subject to paragraph (d),
clause 25.10 applies to a Penalty Payment.
(d) If the Trustee has made, is obliged to make or intends to make
a Penalty Payment, and is, or claims to be, entitled to
recover the amount of that Penalty Payment from the Master
Servicer under paragraph (a), the Trustee may not exercise the
right of indemnity conferred by clause 25.10 in respect of
that Penalty Payment unless:
(i) it has made demand on the Master Servicer for
recovery of that Penalty Payment under paragraph (a);
and
(ii) the Master Servicer has failed to pay the amount of
that Penalty Payment to the Trustee within 10
Business Days after that demand.
26. NOTICES
26.1 NOTICES GENERALLY
Subject to clause 26.2, every Notice:
(a) must be in writing in order to be valid;
(b) must be deemed to have been duly served, given or made in
relation to a party if it is:
(i) delivered to the address of that party set out in
paragraph (e) (or at such other address as may be
notified in writing by that party to the other party
from time to time); or
(ii) posted by prepaid registered post to such address; or
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(iii) sent by fax to the fax number set out in
sub-paragraph (e) (or to such other number as may be
notified in writing by that party to the other party
from time to time);
(c) shall be sufficient if executed by the party giving, serving
or making the same or on its behalf by any two Authorised
Signatories of such party;
(d) shall be deemed to be given, served or made:
(i) (in the case of prepaid registered post) within 2
Business Days after posting;
(ii) (in the case of fax) on receipt of a transmission
report confirming successful transmission; and
(iii) (in the case of delivery by hand) on delivery;
(e) the addresses and facsimile numbers for service of Notices as
referred to in sub-paragraph (b) of this clause are as
follows:
THE TRUSTEE
35 Clarence Street
Sydney NSW 2000
By fax: (02) 8295 8675
Attention: Senior Manager, Securitisation
THE TRUST MANAGER
Level 6
12 Castlereagh Street
SYDNEY NSW 2000
By fax: (02) 9225 0864
Attention: Manager, Operations
A BENEFICIARY
The address or fax number set out in the relevant Beneficiary
Register or as otherwise notified by the Beneficiary to the
Trust Manager from time to time.
26.2 NOTICES TO BONDHOLDERS
A Notice by the Trustee or the Trust Manager to Bondholders shall be
deemed to be duly given or made by an advertisement placed on a
Business Day in The Australian Financial Review (or other nationally
distributed newspaper).
26.3 NOTICES TO DESIGNATED RATING AGENCIES
The Trust Manager must provide a copy of each Notice to Bondholders in
a Rated Fund to each Designated Rating Agency for that Fund as from
time to time agreed in writing with that Rating Agency.
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27. AMENDMENT
27.1 AMENDMENT BY TRUSTEE
Subject to clause 27.2, the Trustee and the Trust Manager may by way of
supplemental deed vary or amend this Deed (including this clause) in
respect of any one or more Funds or any Supplementary Bond Terms so
long as such variation or amendment 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 Trustee necessary to comply with the
provisions of any statute or regulation or with the
requirements of any Government Body;
(c) in the opinion of the Trustee, is:
(i) required by; or
(ii) a consequence of; or
(iii) consistent with; or
(iv) appropriate, expedient or desirable for any reason as
a consequence of,
the introduction or imposition of, or any amendment or
alteration to, any statute, regulation or requirement of any
Governmental Body or any decision by any court (including,
without limitation, the introduction or imposition of any Tax,
any amendment to any regulation imposing a Tax, the issue of
or amendment to any ruling by the Commissioner or Deputy
Commissioner of Taxation or the issue of any government
announcement or statement or the handing down of any decision
by any court that has or may have the effect of altering the
manner or basis of taxation of trusts generally or of trusts
similar to any of the Funds);
(d) to apply only in respect of a Fund not yet constituted;
(e) necessary to ensure that this Deed is not required to be
registered with or approved by any Government Body in any
Australian Jurisdiction;
(f) in the reasonable opinion of the Trustee not prejudicial to
the interests of the Bondholders or Beneficiaries in respect
of any Fund previously constituted (in the case of a variation
or amendment affecting that Fund); or
(g) approved by an Extraordinary Resolution of Bondholders and by
the Beneficiaries of any Fund to which the alteration,
addition or modification applies.
27.2 CERTAIN PROVISIONS NOT TO BE VARIED
The Trustee may not vary or amend clause 21, clause 27.1 or this clause
27.2 insofar as they relate to Funds previously constituted (except
pursuant to paragraphs (a), (b) or (c) of clause 27.1), without the
unanimous consent of all Bondholders and all Beneficiaries of that
Fund.
27.3 COPY OF AMENDMENTS TO BONDHOLDERS
The Trust Manager must upon request by a Bondholder, provide the
Bondholder with a copy of the supplemental deed effecting any variation
or amendment to this Deed.
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27.4 COPY OF AMENDMENTS IN ADVANCE TO DESIGNATED RATING AGENCIES
The Trust Manager must provide a copy of a proposed variation or
amendment to this Deed insofar as it applies to a Rated Fund to each
Designated Rating Agency for the Rated Fund at least 5 Business Days
(or such other period as may from time to time be agreed by the Trust
Manager with the Designated Rating Agency) prior to the same taking
effect.
28. MISCELLANEOUS
28.1 DATA BASE CONFIDENTIAL
Each of the Trustee and the Trust Manager must keep the Data Base
confidential in so far as the same is held by it and shall not disclose
the same to any other person (including any of its Related Bodies
Corporate) except:
(a) as permitted or required by any Transaction Document or
necessary for any party to a Transaction Document (including
the Trustee, the Trust Manager and the Master Servicer) to
perform its respective duties and obligations thereunder;
(b) as required for the enforcement or attempted enforcement of
any Transaction Document;
(c) to any professional adviser, delegate, agent or sub-agent of
the Trustee, the Trust Manager or the Master Servicer under a
power contained in a Transaction Document;
(d) to the officers, employees and directors of the Trustee, the
Trust Manager or the Master Servicer made in the performance
by the Trustee, the Trust Manager or the Master Servicer
respectively of its duties and obligations under the
Transaction Documents or at law;
(e) to the Auditor of any Fund or as required by the Auditor of
any Fund;
(f) as required by law or by any Government Body; or
(g) in the case of a Rated Fund, to the Designated Rating Agency
for that Fund.
28.2 WAIVERS, REMEDIES CUMULATIVE
Save as provided in this Deed, no failure to exercise and no delay in
exercising on the part of the Trustee or the Trust Manager any right,
power or privilege under this Deed shall operate as a waiver, nor shall
any single or partial exercise of any right, power or privilege
preclude any other or further exercise of such right power or
privilege, or the exercise of any other right, power or privilege.
28.3 GOVERNING LAW
This Deed shall be governed by and construed in accordance with the
laws of the State of New South Wales.
28.4 JURISDICTION
(a) Each of the Trustee, the Trust Manager, the Beneficiaries and
the Bondholders 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.
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(b) Each of the Trustee, the Trust Manager, the Beneficiaries and
the Bondholders 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 proceeding has been brought in an
inconvenient forum.
28.5 SEVERABILITY OF PROVISIONS
In the event that any provision of this Deed is prohibited or
unenforceable in any jurisdiction such provision shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Deed or affecting the validity or enforceability of such provision in
any other jurisdiction.
28.6 COUNTERPARTS
This Deed may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the
same instrument.
28.7 INSPECTION OF THIS DEED
The Beneficiaries and the Bondholders may inspect a copy of this Deed
at the office of the Trust Manager during normal business hours, but
shall not be entitled to a copy thereof.
28.8 NON-BUSINESS DAYS
If the date upon which any payment is due to be made or other thing is
due to be done is not a Business Day, that payment must be made or
thing must be done on the next day which is a Business Day.
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SCHEDULE 1
FORM OF FUND CREATION NOTICE
[Letterhead of Trust Manager]
Permanent Custodians Limited
35 Clarence Street
Sydney NSW 2000
Attention: Senior Manager, Securitisation
Dear Sirs
ARMS II PROGRAM: FUND CREATION NOTICE
We refer to the Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995
made between Permanent Custodians Limited as Trustee and Australian Mortgage
Securities Limited as Trust Manager (as amended from time to time).
Words and expressions defined in the Master Trust Deed have the same meaning
when used in this Fund Creation Notice, unless otherwise defined herein.
In accordance with clause 3.2 of the Master Trust Deed, we give you this Fund
Creation Notice for the following Fund (the FUND):
(a) the Fund is to be a [Warehouse] [Issuing]* Fund;
(b) the Initial Amount for the Fund is $ ;
(c) the initial Beneficiary/Beneficiaries of the Fund is/are [insert
details];
(d) the entitlements of the Beneficiary/Beneficiaries is/are: [the entire
beneficial interest in the Fund] [insert other details];
(e) the name of the Fund is [ ];
(f) the Income Distribution Dates for the Fund are as follows:
[insert details];
(g) the Fund is [not]* to be a Rated Fund;
(h) the Designated Rating Agency for the Fund is [ ]; and
(i) the Designated Rating for the Fund is [insert details]*.
We enclose our cheque in your favour in settlement upon you of the Initial
Amount.
Yours faithfully
-----------------
Authorised Signatory
Australian Mortgage Securities Limited
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SCHEDULE 2
FORM OF ISSUE NOTICE
[Letterhead of Trust Manager]
Permanent Custodians Limited
35 Clarence Street
Sydney NSW 2000
Attention: Senior Manager, Securitisation
Dear Sirs
ARMS II PROGRAM: ISSUE NOTICE
We refer to the Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995
made between Permanent Custodians Limited as Trustee and Australian Mortgage
Securities Limited as Trust Manager (as amended from time to time).
Words and expressions defined in the Master Trust Deed have the same meaning
when used in this Issue Notice, unless otherwise defined herein.
1. In accordance with clauses 5.1 and 6.1 of the Master Trust Deed, we
require you, as Trustee of the [insert details of Issuing Fund] to
issue the following Bonds:
(a) the name or designation to be ascribed to the Bonds is [insert
details];
(b) the aggregate Face Value of the Bonds to be issued is $[ ];
(c) the denominations in which the Bonds are to be issued is
$[ ] per Bond;
(d) the Issue Date is [insert details];
(e) the following Transaction Documents are required to be entered
into in connection with the issue of the Bonds:
(f) [insert details of Security Trust Deed, all Enhancements and
all Interest Hedges to be entered into by Trustee]
(g) Copies of [drafts of] those Transaction Documents are
enclosed.
(h) [the Bonds will comprise a single Series all being totally
fungible] [the Bonds will comprise [insert number] Series
having principal terms as follows:
(i) [insert details as per (b)-(e) above for each Series]]; and
(j) the Portfolio to be acquired with the Issue Proceeds is [not]
comprised in the Assets of a Warehouse Fund, [, being the
[ ] Fund]. [The person for whose benefit the Issue
Proceeds of the Bonds are to be held pursuant to clause 6.8(a)
of the Master Trust Deed is [insert details]].
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2. We attach:
(a) details of the Portfolio which are to be acquired by you, in
your capacity as Trustee of the Issuing Fund, with the Issue
Proceeds;
(b) the Supplementary Bond Terms applicable to the Bonds; and
(c) a letter/certificate from the Designated Rating Agency
addressed to you confirming that the Bonds [in each Series]
will be rated not lower than the Designated Rating [for that
Series]; [and that Bonds previously issued by you as Trustee
of the Issuing Fund will not be downgraded to a credit rating
lower than the Designated Rating as a result of the issue of
the Bonds specified in this Issue Notice].
3. We certify that:
(a) the terms of the Master Trust Deed with respect to the
proposed Issue have been, and will on the Issue Date, continue
to be complied with; and
(b) assuming that all parties to all Transaction Documents entered
into by you as Trustee of the relevant Issuing Fund, and all
issuers of Authorised Investments from time to time comprised
in the Assets of the Issuing Fund comply in full with their
respective obligations under those Transaction Documents and
Authorised Investments, and having regard to:
(i) the terms of the Transaction Documents;
(ii) the terms of the Mortgages comprised in the
Portfolio;
(iii) the anticipated Expenses of the Issuing Fund; and
(iv) all other information available to us as at the date
of this notice,
you will, in your capacity as Trustee of the Issuing Fund,
have available to you sufficient funds to enable you to comply
with your obligations under those Transaction Documents.
Yours faithfully
--------------------
Authorised Signatory
Australian Mortgages Securities Limited
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SCHEDULE 3
FORM OF PORTFOLIO COMPLIANCE CERTIFICATE
[Letterhead of Trust Manager]
Permanent Custodians Limited
35 Clarence Street
Sydney NSW 2000
Attention: Senior Manager, Securitisation
Dear Sirs
ARMS II PROGRAM: PORTFOLIO COMPLIANCE CERTIFICATE
We refer to:
(a) the Master Trust Deed (the MASTER TRUST DEED) dated 7
March 1995 made between Permanent Custodians Limited as Trustee and
Australian Mortgage Securities Limited as Trust Manager (as amended
from time to time); and
(b) the Issue Notice (the ISSUE NOTICE) given by us to you dated
[ ] requiring you to issue the Bonds referred to therein in your
capacity as Trustee of the [insert details of Issuing Fund].
Words and expressions defined in the Master Trust Deed have the same meaning
when used in this Portfolio Compliance Certificate, unless otherwise defined
herein.
We certify, with respect to each Mortgage comprised in the Portfolio specified
in the Issue Notice that:
1. on the date of its settlement, except as disclosed to you in writing
and approved or waived by you on or prior to settlement, all of the
representations and warranties made by us pursuant to clause 12.1 of
the Master Origination and Servicing Agreement were true and correct by
reference to the facts and circumstances then existing;
2. we are not aware of any fact, event or circumstance which would lead us
to believe that any of those representations and warranties, or any
other warranties, statements, certificates or other information
provided to us by the relevant Mortgagor, Approved Solicitor, Approved
Valuer or any other person prior to settlement of that mortgage were
incorrect, untrue or misleading in any material respect at the time
they were made;
3. we are not aware of any fact, event or circumstance which would cause
any of those representations and warranties to be untrue or incorrect
if repeated on the date of this Portfolio Compliance Certificate by
reference to the facts and circumstances now existing;
4. We are not aware of any circumstances relating to that Mortgage or the
relevant Property which could reasonably be expected to diminish, as at
the date of this Portfolio Compliance Certificate, the value or
marketability of the Property from that stated in the relevant
valuation;
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5. The Borrower in respect of each such Mortgage is not in arrears in the
payment of any periodic payments secured by that Mortgage, except to
the extent disclosed to and approved by the Designated Rating Agency
for the purposes of the letter or certificate from the Designated
Rating Agency attached to the Issue Notice;
6. we are not aware of any circumstances relating to that Mortgage, the
relevant Property, the relevant Mortgagor or any relevant Guarantor
which could reasonably be expected to cause a prudent investor to:
(a) regard the Mortgage as an unacceptable investment;
(b) expect the Mortgagor to default under the Mortgage; or
(c) diminish the value or marketability of the Property from that
stated in the relevant Valuation; and
7. we are not aware of the occurrence of any Event of Default in relation
to that Mortgage which has not been remedied to our satisfaction or
waived in accordance with the Master Origination and Servicing
Agreement.
The statements made by us above are based upon a review of the Database and the
records maintained by us with respect to the Portfolio under and in accordance
with the Master Trust Deed and the Master Origination and Servicing Agreement.
We have made no specific enquiry or investigation as to any of the matters
referred to in the statements made above.
Yours faithfully
--------------------
Authorised Signatory
Australian Mortgage Securities Limited
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SCHEDULE 4
FORM OF BOND APPLICATION
[Insert Name of Issuing Fund]
TO: Permanent Custodians Limited [the TRUSTEE]
and
Australian Mortgage Securities Limited [the TRUST MANAGER]
FROM: ______________________ACN
[insert name]
of: ______________________(the APPLICANT)
[insert address]
The Applicant applies for the following bonds (the BONDS) to be issued by the
Trustee, as Trustee of the [insert name of Issuing Fund] (the FUND) established
pursuant to the Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995 (as
amended from time to time) made between the Trustee and the Trust Manager
relating to the ARMS II Funds.
BONDS APPLIED FOR
Name/Designation:
Maturity Date:
Number of Bonds:
[Series:]
Interest Payment Dates:
[Amortisation Dates:]
Aggregate Face Value applied for:
ACKNOWLEDGEMENT AND AGREEMENT OF APPLICANT
The Applicant acknowledges and agrees that:
1. the Bonds will be issued upon and subject to the terms of the Master
Trust Deed, the Supplementary Bond Terms relating to the Bonds
inscribed in the Register in accordance with the Master Trust Deed, and
the Security Trust Deed dated [ ] executed by the Trustee, in its
capacity as Trustee of the Fund, in favour of [ ] as Security
Trustee;
2. the Trustee has no personal liability in relation to any of its
obligations under or arising out of the Bonds or any other Transaction
Document entered into in its capacity as Trustee of the Fund;
3. the liability of the Trustee under or in respect of the Bonds and the
other Transaction Documents entered into in its capacity as Trustee of
the Fund is limited to and does not extend beyond the Assets of the
Fund as they stand at the time at which such obligations are to be met
or satisfied; and
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4. the Trustee is not liable to meet or satisfy any such obligation from
its own assets (except the Trustee's Indemnity) and each such
obligation must be met or satisfied from the relevant Fund or the
Trustee's Indemnity.
PAYMENTS
Payments due under the Bonds should be made:
/ / By cheque posted to the above address.
/ / To the credit of the following account:
Name of Bank:
Address of Bank:
Account No.:
Name of Account:
Applicant's tax file number:
INTERPRETATION
Words and expressions which are defined in the Master Trust Deed have the same
meaning when used in this Bond Application.
SIGNED:
-------------------
DATED:
-------------------
- If the Applicant is a trustee, this Bond Application must be completed
in the name of the Applicant and signed by the Applicant without
reference to any trust.
- If the Applicant is a corporation, it must be executed either under the
Applicant's common seal or under Power of Attorney executed under its
common seal.
- If this Bond Application is signed under Power of Attorney, the
Attorney certifies that he or she has not received notice of revocation
of that Power of Attorney. A certified copy of the Power of Attorney
must be lodged with this Bond Application.
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SCHEDULE 5
FORM OF REGISTRATION CONFIRMATION
FUND:
NAME/DESIGNATION OF BONDS:
[SERIES]:
FACE VALUE (AS AT THE DATE HEREOF):
INTEREST RATE:
INTEREST PAYMENT DATES:
[AMORTISATION DATES]:
MATURITY DATE:
This confirms that:
BONDHOLDER:
ACN (if applicable):
ADDRESS:
appears in the Register as the holder of the abovementioned Bonds (the BONDS).
The Bonds are issued by Permanent Custodians Limited, ACN 001 334 636 (the
TRUSTEE) in its capacity as trustee of the abovementioned Fund (the FUND)
established pursuant to a Master Trust Deed (the MASTER TRUST DEED) dated 7
March 1995 for the ARMS II Funds (as amended from time to time).
The Bonds are issued subject to the provisions of the Master Trust Deed, the
Supplementary Bond Terms in relation to the Bonds [and the Security Trust Deed
dated [ ] in relation to the Fund]. A copy of the Trust Deed, the
Supplementary Bond Terms [and the Security Trust Deed] are available for
inspection by Bondholders at the offices of Australian Mortgage Securities
Limited, ACN 003 072 446 (the TRUST MANAGER) at [ ].
The Trustee has no personal liability in relation to any of its obligations
under or arising out of the Bonds or any other Transaction Document entered into
in its capacity as Trustee of the Fund.
The liability of the Trustee under or in respect of the Bonds and the other
Transaction Documents entered into in its capacity as Trustee of the Fund is
limited to and does not extend beyond the Assets of the Fund as they stand at
the time at which such obligations are to be met or satisfied.
The Trustee is not liable to meet or satisfy any such obligation from its own
assets (except the Trustee's Indemnity) and each such obligation must be met or
satisfied from the relevant Fund or the Trustee's Indemnity.
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This Bond Registration Confirmation is not a certificate of title and the
Register is the only conclusive evidence of the abovementioned Bondholder's
entitlement to Bonds.
Transfers of Bonds must be pursuant to Transfer and Acceptance in the form
required by the Trust Deed. Executed Transfers and Acceptances must be submitted
to the Registrar.
Words and expressions which are defined in the Master Trust Deed have the same
meanings when used in this Registration Confirmation.
Dated:
For and on behalf of the Registrar
------------------------
Authorised Signatory
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SCHEDULE 6
FORM OF TRANSFER AND ACCEPTANCE
[Insert Name of Issuing Fund]
To: Permanent Custodians Limited, ACN 001 334 Registry Date Lodged
636 (the REGISTRAR) Use / /
Only
TRANSFEROR
(Full Name, ACN (if applicable) and
Address)
(Please Print)
TRANSFERS TO
TRANSFEREE
(Full Name, ACN (if applicable) and
Address)
(Please Print)
The following Bonds (the BONDS) issued by the Trustee, as trustee of [insert
name of Fund] constituted under the Master Trust Deed (the MASTER TRUST DEED)
dated 7 March 1995 made between Permanent Custodians Limited as Trustee (the
TRUSTEE) and Australian Mortgage Securities Limited as Trust Manager (as amended
from time to time):
Name/Designation:
Maturity Date:
Number of Bonds:
[Series]:
[Original Face Value as at Issue Date]:
Interest Payment Dates:
[Amortisation Dates]:
Settlement Amount
$
and all of the Transferor's right, title, benefit and interest in and to the
same (including all Interest Entitlements accrued thereon but unpaid).
TRANSFEROR
-------------------------------------------------
(Signature: see Notes)
WITNESS Date / /
-------------------------------------------------
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TRANSFEREE
-------------------------------------------------
(Signature: see Notes)
WITNESS Date / /
-------------------------------------------------
PAYMENTS
(Tick where appropriate)
/ / In accordance with existing instructions (existing
Bondholders only)
/ / By cheque posted to the above address
/ / By credit to the following account in Australia and the
name of the Transferee only
Tax File Number (if applicable):
---------------------------------------------
Authorised Signature of Transferee Date / /
NOTES FOR COMPLETION
- If the Transferor/Transferee is a trustee, this Transfer and Acceptance
must be completed in the name of the Transferor/Transferee and signed
by it without reference to any trust.
- If the Transferor/Transferee is a corporation, this Transfer and
Acceptance must be executed either under common seal or under Power of
Attorney.
- If this Transfer and Acceptance is signed under Power of Attorney, the
Attorney certifies that he or she has not received notice of revocation
of that Power of Attorney. A certified copy of the Power of Attorney
must be lodged with this Transfer and Acceptance.
- This Transfer and Acceptance must be lodged with the Registrar for
registration.
CONDITIONS OF TRANSFER
- The Transferor and the Transferee acknowledge that the transfer of the
Bonds shall only take effect on the inscription of the Transferee's
name in the Register as the Bondholder of the Bonds.
- The Transferee accepts the Bonds upon and subject to the provisions of
the Master Trust Deed, the Supplementary Bond Terms inscribed in the
Register in relation to the Bonds [and the Security Trust Deed dated
[ ] executed by the Trustee as trustee of the Fund in favour of
[ ] as Security Trustee in relation thereto].
- The Transferee acknowledges that it has made its own independent
assessment and investigations regarding its investment in the Bonds. It
has not relied upon the Trustee, Australian Mortgage Securities
Limited, or any other person or any materials or other information
prepared or distributed by any of them.
- The Register shall be closed by Registrar for the purpose of
determining the Interest Entitlements and Principal Entitlements of
Bondholders during the period commencing from the close of business on
the day which is 5 clear Business Days (or such other period agreed
between the Registrar and the Trust Manager or set out in the relevant
Bond Terms) prior to, and ending on the commencement of business on the
Business Day immediately after, each Interest Payment Date and each
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Amortisation Date respectively of the relevant Bonds. The Registrar may
with prior notice to the Bondholders close the Register for such other
periods as the Registrar may nominate in the notice, provided that the
aggregate period for which the Register may be closed in total (under
this paragraph) in any calendar year must not exceed [30 Business Days]
or such other period as the Registrar and the Trust Manager may agree.
- If the Transferee is a non-resident for Australian taxation purposes,
withholding tax will be deducted from all interest payments unless
proof of an exemption is provided to the Trustee.
- [Insert any restrictions on the transfer of Bonds.]
- The Trustee has no personal liability in relation to any of its
obligations under or arising out of the Bonds or any other Transaction
Documents entered into in its capacity as Trustee of the Funds.
- The liability of the Trustee under or in respect of the Bonds and the
other Transaction Documents entered into in its capacity as Trustee of
the Fund is limited to and does not extend beyond the Assets of the
Fund as they stand at the time at which such obligations are to be met
or satisfied.
- The Trustee is not liable to meet or satisfy any such obligation from
its own assets (except the Trustee's Indemnity) and each such
obligation must be met or satisfied from the relevant Fund or the
Trustee's Indemnity.
MARKING (IF APPLICABLE)
The Registrar certifies that the Transferor is inscribed in the Register as the
holder of the Bonds specified in this Transfer and Acceptance. The Registrar
will not register any transfer of such Bonds other than pursuant to this
Transfer and Acceptance before [insert date].
Dated:
For and on behalf of Permanent Custodians Limited
(as Registrar)
---------------------------
Authorised Signatory
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SCHEDULE 7
PROCEDURES FOR BONDHOLDER'S MEETING
1. CONVENING OF MEETINGS
1.1 A meeting of Bondholders:
(a) may be convened at any time by the Trust Manager or the
Trustee; and
(b) must be convened by the Trust Manager:
(i) if requested to do so by the Trustee;
(ii) if requested to do so by Bondholders of Bonds whose
aggregate Face Value is not less than 5% of the
aggregate Face Value of all Bonds outstanding.
1.2 Each meeting of Bondholders will be held at such time and place as the
Trust Manager approves.
2. NOTICE OF MEETINGS
2.1 The Trust Manager must give notice of a proposed meeting of Bondholders
to each Bondholder, the Trustee, each Security Trustee and each
Designated Rating Agency as follows:
(a) the notice must specify the day, time and place of the meeting
and the nature of each specific resolution (if any) to be
proposed at that meeting;
(b) the notice must be given 5 Business Days in advance of the
meeting (inclusive of the day on which the notice is given and
of the day on which the meeting is held);
(c) the notice may be given to each recipient in any manner
provided in relation to that recipient under this Deed.
2.2 A meeting convened otherwise than in accordance with paragraph 2.1 is
deemed to be duly convened if it is so agreed by Bondholders
representing a quorum.
2.3 An accidental omission to give notice to, or the non-receipt of notice
by, any person entitled to such notice, does not invalidate the
proceedings at any meeting.
3. CHAIRMAN
A person (who need not be a Bondholder and who may be a representative
of the Trust Manager or the Trustee) nominated in writing by the
Trustee is entitled to take the chair at every meeting of Bondholders.
If, however, no such nomination is made or the person nominated is not
present at the meeting within 15 minutes after the time appointed for
the meeting to be held, the Bondholders present may choose one of their
number to be chairman.
4. QUORUM
4.1 Subject to paragraph 4.2, at any meeting of Bondholders any 2 or more
persons present in person holding, or holding proxies representing, in
aggregate not less than 50% of the aggregate Face Value of the Bonds
outstanding as at the date of the notice convening the meeting form a
quorum for the transaction of business. No business (other than the
choosing of a chairman) may be transacted at any meeting unless the
requisite quorum is present at the commencement of business.
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4.2 For the purposes of passing an Extraordinary Resolution, the quorum
required at a meeting of Bondholders is that there be persons present
holding, or holding proxies representing, in aggregate not less than
67% of the aggregate Face Vale of the Bonds outstanding as at the date
of the notice convening the meeting.
5. ADJOURNMENT
5.1 If within 15 minutes from the time appointed for any meeting of
Bondholders a quorum is not present then:
(a) if convened upon the requisition of Bondholders, the meeting
will be dissolved; and
(b) in any other case the meeting will stand adjourned (unless the
Trust Manager agrees that it be dissolved) for such period,
not being less than 7 days nor more than 21 days, as may be
appointed by the chairman. At such adjourned meeting two or
more Bondholders present in person holding, or holding proxies
representing, not less than 25% of the Aggregate Face Value of
the Bonds outstanding as at the date of the notice convening
the meeting, will form a quorum and will have the power to
pass any resolution (including an Extraordinary General
Meeting) 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.
5.2 The chairman may with the consent of (and must if directed by) any
meeting adjourn the same from time to time and from place to place but
no business may be transacted at any adjourned meeting except business
which might lawfully have been transacted at the meeting from which the
adjournment took place.
5.3 At least 5 days' notice of any meeting adjourned through want of a
quorum must be given in the same manner as an original meeting and must
state the quorum required at that adjourned meeting. That notice need
not contain any further information regarding the adjourned meeting.
6. VOTING PROCEDURE
6.1 Every question submitted to a meeting will be decided in the first
instance by a show of hands.
6.2 In case of equality of votes the chairman has, both on a show of hands
and on a poll, a casting vote in addition to the vote or votes (if any)
to which he may be entitled as a Bondholder or as a proxy.
6.3 Unless a poll is (before or on the declaration of the result of the
show of hands) demanded by the chairman, the Trust Manager or the
Trustee or by one or more persons holding, or holding proxies
representing, not less than 5% of the aggregate Face Value of the Bonds
outstanding as at the date of the notice convening the meeting, a
declaration by the chairman that a resolution has been carried by a
particular majority or lost or not carried by any particular majority
is conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against such
resolution.
6.4 If a poll is demanded, it must be taken in such manner and (subject to
paragraph 6.5) either at once or after such an adjournment as the
chairman directs. The demand for a poll will not prevent the
continuance of the meeting for the transaction of any business other
than the question on which the poll has been demanded.
6.5 Any poll demanded at any meeting on the election of a chairman or on
any question of adjournment will be taken at the meeting without
adjournment.
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6.6 Subject to the chairman's casting vote under paragraph 6.2:
(a) on a show of hands every Bondholder present has one vote and
every person holding proxies has one vote for each Bondholder
for whom it holds a proxy;
(b) on a poll every person present has one vote for each $100,000
(but not part thereof) of the aggregate Face Value of the
Bonds outstanding (as at the date of the notice convening the
meeting) that he holds or in respect of which he holds a
proxy; and
(c) any person entitled to more than one vote need not:
(i) use all his votes; or
(ii) cast all his votes in the same way.
7. RIGHT TO ATTEND AND SPEAK
The Trustee and the Trust Manager (through their respective
representatives) and their respective financial and legal advisers are
entitled to attend and speak at any meeting of Bondholders. No other
person is entitled to attend or vote at any meeting of the Bondholders
or to join with others in requesting the convening of such a meeting
unless he is a Bondholder or holds a proxy from a Bondholder.
8. APPOINTMENT OF REPRESENTATIVES
8.1 Each appointment of a proxy:
(a) must be in writing;
(b) if so required by the Trust Manager must be accompanied by
proof satisfactory to the Trust Manager of its due execution;
and
(c) must be deposited with the Trust Manager at its address for
service of notices under this Deed or at such other place as
the Trust Manager designates or approves not less than 24
hours before the time appointed for holding the meeting or
adjourned meeting at which the named proxy proposes to vote.
In default, the appointment of proxy is not valid unless the chairman
of the meeting decides otherwise before such meeting or adjourned
meeting proceeds to business.
8.2 The proxy named in any appointment of proxy need not be a Bondholder.
8.3 A Bondholder which is a corporation may by a certificate in writing
under its common seal appoint any person as its representative to act
as that Bondholder's representative at any meeting of Bondholders and
to exercise on the Bondholder's behalf all of the powers which the
Bondholder is entitled to exercise under these Procedures.
8.4 Neither the Trustee nor the Trust Manager is obliged to investigate or
be concerned with the validity of, or the authority of, the proxy named
in any appointment of proxy or any representative named in an
appointment under paragraph 8.3.
8.5 Any vote cast in accordance with the terms of an appointment of proxy
conforming with paragraph 8.1 or by a representative appointed under
paragraph 8.3 is valid notwithstanding the previous revocation or
amendment of the appointment or of any of the Bondholder's instructions
pursuant to which it was executed, provided that no intimation in
writing of such revocation or amendment is received by the Trust
Manager at its address for service of notices under this Deed or by the
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chairman of the meeting not less than 24 hours before the commencement
of the meeting or adjourned meeting at which the appointment is used.
9. MINUTES AND RECORDS
9.1 Minutes of all resolutions and proceedings at every meeting of
Bondholders will be made and duly entered in the books provided for
that purpose by the Trust Manager.
9.2 Minutes of meetings of Bondholders if purporting to be signed by the
chairman of that meeting or by the chairman of the next succeeding
meeting of Bondholders are conclusive evidence of the matters therein
contained and until the contrary is proved every such meeting of which
minutes have been made and signed as aforesaid is deemed to have been
duly convened and held and all resolutions passed or proceedings
transacted at that meeting are deemed to have been duly passed and
transacted.
10. WRITTEN RESOLUTIONS
Notwithstanding the preceding provisions of these Procedures a
resolution of all of the Bondholders (including an Extraordinary
Resolution) may be passed, without any meeting or previous notice being
required, by an instrument or instruments in writing which is or are
signed by all the Bondholders. Any such instrument or instruments are
effective upon presentation to the Trust Manager for entry in the
records referred to in paragraph 9.
11. FURTHER PROCEDURES FOR MEETINGS
Subject to all other provisions contained in this Deed, the Trust
Manager may without the consent of the Bondholders prescribe such
further regulations regarding the holding of meetings of Bondholders
and attendance and voting at those meetings as the Trust Manager may in
its sole discretion determine, including, but not limited to, such
regulations and requirements as the Trust Manager thinks reasonable:
(a) to satisfy itself that persons are in fact Bondholders who
purport to requisition a meeting or who purport to make any
requisition to the Trust Manager in accordance with this Deed;
(b) to satisfy itself that persons who purport to attend or vote
at any meeting of Bondholders are entitled to do so in
accordance with these Procedures; and
(c) as to the form of appointment of a proxy.
12. MEETINGS AND RESOLUTIONS OF CLASSES OF BONDHOLDERS
The preceding provisions of these Procedures apply in all respects,
with the necessary modifications, to meetings and resolutions of any
class of Bondholders. For that purpose a reference in the preceding
provisions to "Bondholders" is a reference to Bondholders of that class
of Bondholders.
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EXECUTED as a deed.
SIGNED SEALED AND DELIVERED for PERMANENT
CUSTODIANS LIMITED by its attorney in the
presence of:
---------------------------------- ----------------------------------
Witness Signature Attorney Signature
---------------------------------- ----------------------------------
Print Name Print Name
SIGNED SEALED AND DELIVERED for AUSTRALIAN
MORTGAGE SECURITIES LIMITED by its attorney in
the presence of:
---------------------------------- ----------------------------------
Witness Signature Attorney Signature
---------------------------------- ----------------------------------
Print Name Print Name
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SCHEDULE 2
Amended and Restated
Master Trust Deed
Permanent Custodians Limited
Australian Mortgage Securities Ltd
ARMS II Euro Funds
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
www.aar.com.au
(C) Copyright Allens Arthur Robinson 2003
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TABLE OF CONTENTS
[Download Table]
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 11
1.3 Incorporated Definitions 12
2. THE ARMS II FUNDS 12
2.1 Appointment of Trustee 12
2.2 Separate and Distinct Funds 12
3. THE FUNDS 12
3.1 Beneficial Interest in Funds 12
3.2 Fund Creation Notice 12
3.3 Creation of Additional Funds 12
3.4 Name of Funds 13
3.5 Duration of Funds 13
3.6 Beneficiary Register 13
3A. BENEFICIARIES OF DESIGNATED FUNDS 13
3A.1 Acknowledgement 13
3A.2 Residual Capital Unit 14
3A.3 Residual Income Unit 14
4. LIMITS ON RIGHTS OF BONDHOLDERS AND BENEFICIARIES 14
4.1 General Limits 14
4.2 Further Limits on Interests of Beneficiaries 15
4.3 Ranking of Interest of Beneficiaries 15
4.4 Resolution of Conflicts 15
4.5 No Liability of Bondholders, Couponholders or Beneficiaries 15
5. BONDS 16
5.1 Nature of Bonds 16
5.2 Trustee's Covenant to Bondholders and Couponholders 16
5.3 Minimum Face Value of Bonds 16
5.4 Bonds Not Invalid if Issued in Breach 16
6. PROCEDURE FOR ISSUE OF BONDS 16
6.1 Form of Issue Notice 16
6.2 Notice to Warehouse Beneficiary 18
6.3 Supplementary Bond Terms 18
6.4 Amendment 18
6.5 Acceptance of Issue Notice 18
6.6 Non-Complying Issue Notice 18
6.7 Issue of Bonds and Transfer of Benefit of Mortgages 19
6.8 Acquisition of Portfolio 19
6.9 Amount of Bonds Created for an Issuing Fund 20
6.10 Action following Issue 20
6.11 No Liability for Insufficient Moneys 20
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6.12 Recording of Transfer and Further Assurance 20
6.13 Subsequent Adjustment 20
6.14 No Limit on Bonds 21
6.15 Compliance with Laws 21
7. TRANSFERS OF BONDS 21
8. REGISTRATION CONFIRMATIONS 21
9. WAREHOUSE FUNDING 21
9.1 Transfer of Warehouse Assets to Another Fund 21
9.2 Warehouse Trigger Event 22
9.3 Parties to Give Effect to Transfer 22
9.4 Rights Additional to Issue of Bonds 22
10. APPOINTMENT OF TRUST MANAGER 22
10.1 Appointment 22
10.2 Powers of Management 23
10.3 Trust Manager to Enforce Against Master Servicer 23
10.4 Trust Manager Not Liable for Master Servicer 23
10.5 Effect of Compliance as Master Servicer 23
10.6 Enforcement of Duties of Master Servicer 23
11. INVESTMENT OF THE FUND 23
11.1 Authorised Investments 23
11.2 Trust Manager to Make Proposals 24
11.3 Trustee to Comply with Proposals 24
11.4 Authorised Investments for Rated Funds 24
11.5 Limitation on Maturity of Investments 25
11.6 Rights Attaching to Assets 25
11.7 Trustee's Dealing with Assets 25
11.8 Swaps and Enhancements 25
11.9 Swaps and Enhancements for Rated Funds 25
11.10 Limitation of Trustee's Personal Liability 25
11.11 Moneys Payable to Trustee 26
11.12 Segregation of Assets of a Fund 26
11.13 Assets of Funds 26
11.14 Liabilities of a Fund 26
11.15 Origination and Management of Mortgages 26
11.16 Trust Manager will act as Master Servicer 26
11.17 Trust Manager's Power to Delegate 27
11.18 Trust Manager 27
11.19 Professional Advisers 27
12. ADDITIONAL OBLIGATIONS OF TRUST MANAGER 28
12.1 General 28
12.2 Additional Obligations 28
12.3 Trust Manager Cannot Bind Trustee Unless Authorised 29
12.4 Threshold Rate Obligation of Trust Manager 29
13. RETIREMENT OF TRUST MANAGER 29
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13.1 Removal 29
13.2 Voluntary Retirement 29
13.3 No Resignation by Trust Manager Unless Successor Appointed 30
13.4 Trustee Appoints Replacement Trust Manager 30
13.5 Terms of Appointment of Incoming Manager 30
13.6 Effect of Termination of Outgoing Manager 30
13.7 Delivery of Documents 30
13.8 Notice to Security Trustee of Incoming Manager 30
14. TRUSTEE'S POWERS 31
14.1 General Power 31
14.2 Specific Powers 31
14.3 Delegation to Related Bodies Corporate 32
14.4 Trustee's Power to Delegate; Appoint Attorneys and Agents 32
14.5 Trustee Liable for Delegates 32
14.6 Delegable and Non-Delegable Duties of Trustee 33
14.7 Trustee Not Liable for Third Parties 33
15. TRUSTEE'S COVENANTS 33
15.1 General 33
15.2 To Act Continuously as Trustee 33
15.3 To Act Honestly, Diligently and Prudently 33
15.4 No Dispositions of Assets 34
15.5 Forward Notices etc. to Trust Manager 34
15.6 Trustee will implement Trust Manager's Directions 34
15.7 Custodian 34
15.8 Perform Transaction Documents 34
16. TRUSTEE'S FEES AND EXPENSES 34
16.1 Trustee's Fee 34
16.2 Manager's Fee 34
17. RETIREMENT OF TRUSTEE 34
17.1 Mandatory Retirement 34
17.2 Trust Manager may Remove Trustee 35
17.3 Trust Manager Appoints Replacement 35
17.4 Voluntary Retirement 35
17.5 Funds to be Vested in New Trustee 35
17.6 Release of Outgoing Trustee 35
17.7 Incoming Trustee to Execute Deed 35
17.8 Trust Manager and Outgoing Trustee to Settle Amounts Payable 36
17.9 Outgoing Trustee to Retain Lien 36
17.10 Delivery of Documents 36
17.11 Notice to Security Trustee of New Trustee 36
18. TRUST ACCOUNTS 37
18.1 Opening of Trust Accounts 37
18.2 Location of Trust Accounts 37
18.3 Authorised Signatories 37
18.4 Bank Statements and Account Information 37
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18.5 Deposits 37
18.6 Withdrawals 38
18.7 Central Clearing Account 38
19. AUDITORS 38
19.1 Appointment of Auditor 38
19.2 Removal and Retirement of Auditor 38
19.3 Appointment of Replacement Auditor 38
19.4 Auditor may have other Offices 39
20. RECORDS AND FINANCIAL STATEMENTS 39
21. PAYMENTS FROM FUNDS AND TERMINATION 39
21.1 Payments by Trustee 39
21.2 Income of the Fund 39
21.3 Income Entitlement 39
21.4 Distribution of excess Tax Income 40
21.5 Payments to Beneficiaries 40
21.6 Application of Fund income 40
21.7 Application of Residual Income Beneficiaries' Entitlements 41
21.8 Trust Manager to ensure compliance by Trustee 41
21.9 Distribution on Vesting Date 41
22. THE REGISTER 42
23. MEETINGS OF BONDHOLDERS 42
24. PAYMENTS GENERALLY 42
24.1 Payments to Beneficiaries 42
24.2 Payments to Bondholders and Couponholders 42
24.3 Payments Good Discharge 42
24.4 Valid Receipts 42
25. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY GENERALLY 43
25.1 Powers Additional 43
25.2 Reliance on Certificates 43
25.3 No Liability 43
25.4 Notices from Trustee and Trust Manager 43
25.5 Compliance with Laws 43
25.6 Reliance on Experts 44
25.7 Powers, Authorities and Discretions 44
25.8 Legal and Other Proceedings 44
25.9 Liability of Trustee under Transaction Documents 44
25.10 Trustee's indemnity not be impaired 45
25.11 Trust Manager's Right of Indemnity 46
25.12 Conflicts 46
25.13 Consumer Credit Code 46
26. NOTICES 47
26.1 Notices Generally 47
26.2 Notices to Bondholders 48
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26.3 Notices to Designated Rating Agencies 48
27. AMENDMENT 49
27.1 Amendment by Trustee 49
27.2 Certain Provisions Not to be Varied 49
27.3 Copy of Amendments to Bondholders 49
27.4 Copy of Amendments in Advance to Designated Rating Agencies 50
28. MISCELLANEOUS 50
28.1 Data Base Confidential 50
28.2 Waivers, Remedies Cumulative 50
28.3 Governing Law 50
28.4 Jurisdiction 50
28.5 Severability of Provisions 51
28.6 Counterparts 51
28.7 Inspection of this Deed 51
SCHEDULE 1 52
Form of Fund Creation Notice 52
SCHEDULE 2 54
Form of Issue Notice 54
SCHEDULE 3 56
Form of Portfolio Compliance Certificate 56
SCHEDULE 4 58
SCHEDULE 5 59
SCHEDULE 6 60
SCHEDULE 7 61
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DATE 2003
PARTIES
1. PERMANENT CUSTODIANS LIMITED (ACN 001 334 636) of 35 Clarence
Street, Sydney, NSW 2000 (PCL); and
2. AUSTRALIAN MORTGAGE SECURITIES LTD (ACN 003 072 446) of Level 6, 12
Castlereagh Street, Sydney, NSW 2000 (AMS).
RECITALS
A This Deed is made for the purposes of establishing Warehouse Funds
and Issuing Funds to be known collectively as the ARMS II EURO
FUNDS.
B PCL has agreed to act as trustee, and the Trust Manager has agreed
to act as manager of the Warehouse Funds and the Issuing Funds,
upon and subject to the terms of this Deed.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed and the recitals to it:
AMORTISATION DATE means, in relation to a Bond, each date upon which
all or part of the principal amount of that Bond is payable in
accordance with the corresponding Bond Terms.
AMORTISATION AMOUNT means, in relation to a Bond and an Amortisation
Date, the principal amount payable in respect of that Bond on that
Amortisation Date, determined in accordance with the corresponding Bond
Terms.
ANCILLARY DOCUMENTS means, in relation to a Mortgage, all documents
evidencing, entered into by or delivered to the Trustee in connection
with:
(a) the Loan secured by that Mortgage; and
(b) the Collateral Securities for that Mortgage.
APPROVED ACCOUNTING STANDARDS means:
(a) accounting standards from time to time approved under the
Corporations Act;
(b) the requirements of the Corporations Act in relation to the
preparation and content of accounts; and
(c) generally accepted accounting principles and practices in
Australia consistently applied, except where inconsistent with
the standards or requirements referred to in paragraphs (a) or
(b).
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ASSETS means, in relation to a Fund, all property and assets (real and
personal (including choses in action and other rights), tangible and
intangible, present or future) comprised in, and held by Trustee as
trustee of that Fund.
ASSOCIATE in relation to a person means a person that is taken to be an
associate of the firstmentioned person by virtue of Division 2 of Part
1.2 of the Corporations Act.
AUDITOR means, in relation to a Fund, the auditor of that Fund
appointed from time to time pursuant to clause 19.
AUSTRALIAN JURISDICTION means a State or Territory of the Commonwealth
and the Commonwealth of Australia.
AUTHORISED INVESTMENTS means investments which at their date of
acquisition are:
(a) Loans secured by Mortgages over Land;
(b) cash;
(c) bonds, debentures, stock or treasury bills of the Commonwealth
of Australia or the Government of any State or Territory of
the Commonwealth;
(d) debentures or stock of any public statutory body constituted
under the law of the Commonwealth of Australia or of any State
of the Commonwealth where the repayment of the principal
secured and the interest payable thereon is guaranteed by the
Commonwealth or the State;
(e) notes or other securities of the Commonwealth of Australia or
the Government of any State or Territory of the Commonwealth;
(f) deposits with, or the acquisition of certificates of deposit
(whether negotiable, convertible or otherwise), issued by, a
Bank;
(g) bills of exchange which at the time of acquisition have a
remaining term to maturity of not more than 200 days, accepted
or endorsed by a Bank; and
(h) commercial paper.
(In paragraphs (b)-(g) inclusive of this definition, expressions shall
be construed and, if necessary read down, so that the Bonds in relation
to any Fund constitute "mortgage-backed securities" for the purposes of
the Duties Act, 1997 of New South Wales, the Duties Act, 2000 of
Victoria, the Duties Act, 2001 of Queensland and the Duties Act, 2001
of Tasmania).
AUTHORISED SIGNATORY means, in relation to any corporation, any person
from time to time whose name, title or position and specimen signature
are set out in a certificate signed by two directors or one director
and one secretary of the corporation confirming that person's
appointment as an Authorised Signatory for the purposes of this Deed
and/or any Transaction Document to which that corporation is a party.
BANK means a corporation authorised under Part 2 of the Banking Act,
1959 to carry on banking business, including the general business of
banking, in Australia or a corporation formed or incorporated under an
Act of the Parliament of an Australian Jurisdiction to carry on the
general business of banking.
BENEFICIARY means, in relation to a Fund, each Residual Capital
Beneficiary and each Residual Income Beneficiary of that Fund.
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BENEFICIARY REGISTER has, in relation to a Fund, the meaning given in
clause 3.6(a).
BOND TERMS means, in relation to a Bond, all of the terms and
conditions applicable to that Bond, as set out in this Deed, the
relevant Supplementary Bond Terms and the relevant Security Trust Deed
(if any).
BUSINESS DAY means a day, other than a Saturday, Sunday or public
holiday on which Banks are open for business in Sydney and Melbourne.
COLLATERAL SECURITY means, in relation to a Mortgage and a Loan secured
by that Mortgage, any other guarantee, indemnity or Security Interest
executed in favour of or held by the Trustee as security for the
obligations secured by that Mortgage or the obligations of any person
who has given any such guarantee, indemnity or Security Interest.
CONSUMER CREDIT CODE means the Consumer Credit Code incorporated in the
Consumer Credit (Queensland) Act 1994, as it is in force as
co-operative or consistent legislation in each Australian State or
Territory.
CONSUMER CREDIT REGULATIONS means the regulations made under the
Consumer Credit (Queensland) Act 1994 which apply to the Consumer
Credit Code.
CORPORATIONS ACT means the Corporations Act 2001 (Commonwealth).
CREDITOR means, in relation to a Fund, a creditor of the Trustee in
respect of a debt or obligation incurred by the Trustee while acting in
its capacity as trustee of the Fund.
DATA BASE means all information, data and records collected, held or
stored in any way or in any medium by or for the Trustee or the Trust
Manager relating to the Funds, their Assets and their management.
DESIGNATED FUND means each of the following Funds:
(a) ARMS II Euro Fund I;
(b) ARMS II Euro Fund II;
(c) ARMS II Euro Fund III; and
(d) ARMS II Euro Fund IV.
DESIGNATED RATING means, in relation to a person or an obligation, and
a Rated Fund, each credit rating as specified or approved by each
Designated Rating Agency for that Fund or for the obligations of the
Trustee as trustee of that Fund.
DESIGNATED RATING AGENCY means, in relation to a Fund or Bonds, each
Rating Agency which has been requested by the Trust Manager to rate the
debt obligations of that Fund or those Bonds.
DOMESTIC MASTER TRUST DEED means the Master Trust Deed dated 7 March
1995 between PCL and AMS, as amended from time to time in relation to
trust funds designated as "ARMS II Funds".
ENHANCEMENTS means a Mortgage Insurance Policy, a Stand-by Facility, a
Guaranteed Investment Contract and any other security, support, rights
or benefits in favour of the Trustee in support of or substitution for
payments due under or in respect of an Authorised Investment, or
payable by the Trustee under or in respect of the Bonds.
EVENT OF INSOLVENCY means, in relation to a body corporate, any of the
following events:
(a) an order is made that the body corporate be wound up;
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(b) a liquidator, provisional liquidator, controller (as defined
in the Corporations Act) or administrator is appointed in
respect of the body corporate or a substantial portion of its
assets whether or not under an order;
(c) the body corporate enters into, or resolves to enter into, a
scheme of arrangement, deed of company arrangement or
composition with, or assignment for the benefit of, all or any
class of its creditors;
(d) the body corporate resolves to wind itself up, or otherwise
dissolve itself, or gives notice of its intention to do so, or
is otherwise wound up or dissolved;
(e) the body corporate is or states that it is insolvent;
(f) as a result of the operation of section 459F(1) of the
Corporations Act, the body corporate is taken to have failed
to comply with a statutory demand;
(g) the body corporate takes any step to obtain protection or is
granted protection from its creditors, under any applicable
legislation; or
(h) anything analogous or having a substantially similar effect to
any of the events specified above happens under the law of any
applicable jurisdiction,
and in relation to a Fund means any of the above events occurring in
relation to that Fund, as if that Fund were a person having independent
legal capacity but not the Trustee in its capacity as trustee of any
other Fund or trust.
EXPENSES means, in relation to a Fund, all costs, charges, fees and
expenses properly incurred by the Trustee or the Trust Manager in
exercising its rights or performing its obligations with respect to
that Fund under this Deed, to the extent to which they relate to that
Fund or are properly payable from that Fund, including:
(a) any amounts payable or incurred by the Trustee or the Trust
Manager under any Transaction Document;
(b) any costs, fees and expenses payable to the Trustee, the Trust
Manager or any person engaged by the Trustee or the Trust
Manager pursuant to this Deed; and
(c) all legal costs and disbursements incurred by the Trust
Manager or the Trustee in connection with:
(i) settling and executing any Transaction Document;
(ii) any subsequent consent, approval, waiver or amendment
under, of or to any Transaction Document; or
(iii) evaluating any matter of concern to the Trust Manager
or the Trustee in relation to a Transaction Document
or a Fund.
Expenses do not include general overhead costs and expenses of the
Trustee or the Trust Manager (for example, rent and amounts payable to
employees in connection with their employment) incurred directly or
indirectly in connection with the business of the Trustee or the Trust
Manager.
FACE VALUE means:
(a) in relation to a Bond, and at any time, the principal amount
outstanding in respect of that Bond at that time; and
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(b) in relation to a Mortgage, and at any time, the principal
amount of the Loan secured by that Mortgage outstanding at
that time;
(c) in relation to an Authorised Investment, and at any time, the
face value of that Authorised Investment or the principal
amount payable in respect of that Authorised Investment at
that time.
FINANCIAL STATEMENTS means, in relation to a Fund, and a date or
period, a profit and loss account for that period, a balance sheet as
at that date, and all notes and other explanations of or relating to
the same.
FINANCIAL YEAR means, in relation to a Fund, each period from 1 July in
one calendar year until 30 June in the next calendar year, provided
that:
(a) the first Financial Year for a Fund commences on the date upon
which it is constituted in accordance with this Deed, and ends
on the next 30 June; and
(b) the final Financial Year for a Fund ends on the Vesting Date
for that Fund.
FITCH RATINGS means Fitch Australia Pty Limited.
FUND CREATION NOTICE means a notice given by the Trust Manager to the
Trustee under clause 3.2.
FUNDING PERIOD means, in relation to a Warehouse Fund, the period for
which the beneficiary of that Fund has agreed pursuant to the relevant
Warehouse Funding Agreement to provide funding to the Trustee as
trustee of that Fund, to finance the investment by the Trustee in
Authorised Investments.
FUNDS means the Warehouse Funds and the Issuing Funds (each a FUND).
GOVERNMENT BODY means:
(a) any person, government or the body exercising an executive,
legislative, judicial or other government function of any
Australian Jurisdiction; and
(b) any person deriving a right directly or indirectly from any
other Government Body.
GUARANTEED INVESTMENT CONTRACT means a guaranteed investment contract
of a type approved by the Chief Commissioner of Stamp Duties in New
South Wales pursuant to paragraph (g) of the definition of PRESCRIBED
PROPERTY in the dictionary to the Duties Act, 1997 of New South Wales.
INCOME DISTRIBUTION DATE means, in relation to a Fund, each date upon
which income of that Fund is to be distributed to a Beneficiary of that
Fund, as specified in the Fund Creation Notice relating to that Fund or
in any Transaction Document in relation to that Fund. If there is any
inconsistency between the Fund Creation Notice and any Transaction
Document as to the Income Distribution Dates for a Fund, the
Transaction Document prevails.
INCOME PERCENTAGE means, in relation to a Residual Income Beneficiary
of a Fund at any time, the subscription price paid by that Residual
Income Beneficiary for all Residual Income Units held by that Residual
Income Beneficiary at that time divided by the aggregate of the
subscription prices for all Residual Income Units subscribed for in
that Fund at that time (expressed as a percentage).
INCOMING MANAGER has the meaning given in clause 13.4.
INCOMING TRUSTEE has the meaning given in clause 17.5.
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INITIAL AMOUNT means, in relation to a Fund, the initial amount settled
or to be settled on the Trustee to constitute that Fund, as specified
in the relevant Fund Creation Notice.
INITIAL EXCHANGE AMOUNT has the meaning given in the ISDA Definitions.
INTEREST ENTITLEMENT means, in relation to a Bond and an Interest
Payment Date, the amount of interest accrued in respect of that Bond
and due for payment on that Interest Payment Date, determined in
accordance with the relevant Bond Terms.
INTEREST PAYMENT DATE means, in relation to a Bond, each date for the
payment of interest under the Bond, determined in accordance with the
relevant Bond Terms.
ISSUE means each issue of Bonds by the Trustee under this Deed.
ISSUE DATE means, in relation to a Bond, the date on which that Bond is
issued or proposed to be issued, as the context requires.
ISSUE NOTICE means a notice given by the Trust Manager to the Trustee
under clause 5.1, as amended in accordance with clause 6.4.
ISSUE PROCEEDS means:
(a) in relation to an Issue of Bonds denominated in Australian
Dollars, the amount received by the Trustee from the initial
Bondholders of the relevant Bonds in payment of the
Subscription Amount for those Bonds; and
(b) in relation to an Issue of Bonds denominated in a currency
other than Australian Dollars, the aggregate of the Initial
Exchange Amounts received by the Trustee under the relevant
Currency Swaps in exchange for payment by the Trustee to the
relevant Currency Swap Counterparties of the aggregate
Subscription Amount received from the initial Bondholders of
those Bonds.
ISSUING FUND means each trust fund from time to time created under this
Deed following the giving by the Trust Manager of a Fund Creation
Notice which specifies that the trust fund to be created is to be an
Issuing Fund.
LAND means:
(a) any estate or interest whether at law or in equity in freehold
or leasehold land, including all improvements on such land;
and
(b) any parcel and any lot, common property and land comprising a
parcel within the meaning of the Strata Titles Act, 1973 (New
South Wales) or the Community Land Development Act, 1989 (New
South Wales) or any equivalent legislation in any other
Australian Jurisdiction.
LOAN means a loan or other form of financial accommodation made
available by the Trustee as trustee of a Fund, or any other
indebtedness owed to the Trustee as trustee of a Fund.
MANAGER'S DEFAULT means, in relation to a Fund:
(a) the Trust Manager breaches any of its obligations under this
Deed or any other Transaction Document in relation to the
Fund; and
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(b) if the breach is capable of remedy, the Trust Manager does not
remedy the breach within 30 days after notice from the Trustee
or the Security Trustee (if any) requiring it to be remedied.
MANAGER'S FEE means, in relation to a Fund, the fee payable to the
Trust Manager in accordance with clause 16.2.
MASTER ORIGINATION AND SERVICING AGREEMENT means the agreement so
entitled dated 7 March 1995 made between the Trustee and AMS, or any
other document between the Trustee, the Trust Manager and any other
person relating to the origination, management and servicing of
Mortgages by that person (as the case requires).
MASTER SERVICER means initially AMS, and subsequently the person from
time to time appointed by the Trust Manager to perform the role of the
Master Servicer under this Deed and the Master Origination and
Servicing Agreement.
MATURITY DATE means, in relation to a Bond, the date upon which the
Face Value of that Bond is due to be reduced to zero, and the Bond is
due to be redeemed in full.
MOODY'S means Moody's Investors Service Inc of 99 Church Street, New
York or Moody's Investors Service Pty. Limited of 55 Hunter Street,
Sydney.
MORTGAGE means a registered (or pending registration, registrable)
mortgage over Land situated in any Australian Jurisdiction, which
secures the repayment of a Loan and any other moneys payable on or in
respect of that Loan.
MORTGAGE INSURANCE POLICY means a policy of insurance under which,
amongst other things, an insurer insures payment to the mortgagee of
amounts payable under or in respect of, or secured by, a Mortgage.
MORTGAGOR means the mortgagor under a Mortgage.
NOTICE means a notice, certificate, request, demand or other
communication to be given, served or made under or pursuant to this
Deed.
OUTGOING MANAGER has the meaning given in clause 13.4.
OUTGOING TRUSTEE has the meaning given in clause 17.5.
PENALTY PAYMENT means:
(a) the amount of any criminal or civil penalty which the Trustee
is ordered to pay under the Consumer Credit Code;
(b) any other money ordered to be paid by the Trustee, or legal
costs or other expenses payable or incurred by the Trustee
related to such an order;
(c) any amount which the Trustee agrees to pay to a debtor or
other person in settlement of an application for an order
under the Consumer Credit Code; and
(d) any legal costs or other costs or expenses payable or incurred
by the Trustee related to that application,
in each case in relation to a Regulated Loan or a Regulated Mortgage.
PORTFOLIO means:
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(a) in relation to an Issue, the Mortgages specified by the Trust
Manager in or details of which are attached to the relevant
Issue Notice; and
(b) in relation to a Fund, the Mortgages from time to time
comprised in the Assets of that Fund.
PORTFOLIO COMPLIANCE CERTIFICATE means a certificate in the form set
out in Schedule 3, or such other form as the Trustee and the Trust
Manager may from time to time agree.
RATED FUND means a Fund in respect of which there is a Designated
Rating Agency.
RATING AGENCY means Moody's, S&P, Fitch Ratings or any other recognised
rating agency designated from time to time in writing by the Trust
Manager to the Trustee.
REGISTERED COMPANY AUDITOR has the same meaning as in the Corporations
Act.
REGULATED LOAN means a Loan comprised in the Assets of any Fund which
is regulated by the Consumer Credit Code.
REGULATED MORTGAGE means a Mortgage comprised in the Assets of any Fund
which is regulated by the Consumer Credit Code.
RELATED BODY CORPORATE has the same meaning as in section 9 of the
Corporations Act.
RESIDUAL CAPITAL BENEFICIARY means, in relation to a Fund, each holder
of a Residual Capital Unit in that Fund from time to time.
RESIDUAL CAPITAL UNIT means, in relation to a Fund, each unit in that
Fund designated as such.
RESIDUAL INCOME BENEFICIARY means, in relation to a Fund, each holder
of a Residual Income Unit in that Fund from time to time.
RESIDUAL INCOME UNIT means, in relation to a Fund, each unit in that
Fund designated as such.
S&P means Standard & Poor's (Australia) Pty. Limited, trading as
"Standard & Poor's Ratings Group".
SECURITY INTEREST means any mortgage, pledge, lien, charge,
encumbrance, hypothecation, title retention, preferential right, trust
arrangement, right of set-off, flawed asset, contingent debt
arrangement and any other security arrangement or agreement.
SECURITY TRUST DEED means, in relation to a Fund, a deed (howsoever
called) between the Trustee as trustee of that Fund, the Trust Manager
and a person (howsoever called) acting as trustee for Creditors under
which the Trustee charges in favour of that trustee all or some of the
Assets of the Fund to secure the payment of moneys owing to some or all
of the Creditors of that Fund.
SECURITY TRUSTEE means, in relation to a Security Trust Deed, initially
the person in whose favour that Security Trust Deed is executed, and
subsequently any successor trustee (howsoever called) appointed under
that Security Trust Deed.
SERIES means, in relation to Bonds, Bonds whose terms and conditions
are the same in all respects.
STAND-BY FACILITY means an agreement entered into by the Trustee as
trustee of a Fund pursuant to which a third party agrees to finance the
payment by the Trustee of amounts payable in respect of Bonds issued in
respect of that Fund to cover a short-fall in the Fund due to default
in the payment of amounts payable under or in respect of Mortgages
comprised in that Fund.
SUBSCRIPTION AMOUNT means, in relation to a Bond, the total amount
payable upon issue of that Bond.
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SUPPLEMENTARY BOND TERMS means, in relation to a Bond, the
supplementary terms and conditions upon which that Bond is issued, as
attached to or otherwise identified in the relevant Issue Notice.
TAXATION ACT means the Income Tax Assessment Act, 1936 (Commonwealth)
and the Income Tax Assessment Act, 1997 (Commonwealth).
TAX includes all income tax, goods and services tax, withholding tax,
stamp, financial institutions, registration and other duties, bank
accounts debits tax and other taxes, levies, imposts, deductions and
charges whatsoever (including in respect of any duty imposed on
receipts or liabilities of financial institutions any amounts paid in
respect thereof to another financial institution) together with
interests on them and penalties with respect of them (if any) and
charges, fees or other amounts made on or in respect of them.
THRESHOLD RATE OBLIGATION means any obligation of the Trust Manager
under any Transaction Document relating to any Fund to exercise its
powers under this Deed and the Master Origination and Servicing
Agreement to change the rate of interest payable on or in respect of
Loans secured by Mortgages to a minimum rate required to ensure that,
subject to any assumptions and having regard to any relevant matters
specified in that Transaction Document, the Trustee will have available
to it sufficient funds to enable it to comply with all of its
obligations under the Transaction Documents for that Fund as they fall
due.
TRANSACTION DOCUMENTS means:
(a) this Deed;
(b) each Master Origination and Servicing Agreement;
(c) each Ancillary Document;
(d) each Security Trust Deed;
(e) each Interest Rate Swap;
(f) each Currency Swap;
(g) all Bonds and the Supplementary Bond Terms relating to them;
(h) all Coupons;
(i) each Warehouse Funding Agreement;
(j) each Enhancement;
(k) each Subscription Agreement;
(l) each Paying Agency Agreement; and
(m) each other document which is expressed to be, or which is
agreed by the Trust Manager and Trustee to be, a Transaction
Document for the purposes of this Deed,
and in relation to a Fund means all of the foregoing to the extent that
they relate to that Fund.
TRUST ACCOUNT means, in relation to a Fund, the bank account for that
Fund opened and maintained by the Trustee in accordance with clause 18.
TRUST MANAGER means initially AMS and subsequently the person from time
to time appointed to perform the role of the Trust Manager under this
Deed.
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TRUSTEE means initially PCL, and subsequently any person appointed as
the trustee of the Funds in accordance with this Deed.
TRUSTEE'S DEFAULT in relation to a Fund means:
(a) the Trustee breaches any obligation or duty imposed on the
Trustee under this Deed, or any other Transaction Document, in
relation to the Fund; and
(b) if the breach is capable of remedy, the Trustee does not
remedy the breach within 30 days after notice from the Trust
Manager or the Security Trustee (if any) requiring it to be
remedied.
TRUSTEE'S INDEMNITY means, in relation to a Fund:
(a) the Trustee's right of indemnity from the Assets of that Fund
in respect of liabilities incurred by the Trustee acting in
its capacity as trustee of that Fund; and
(b) all equitable liens and other Security Interests which the
Trustee has over the Assets of that Fund.
VESTING DATE means, in relation to a Fund, the earlier of:
(a) the date that is eighty years after 7 March 1995;
(b) the date upon which the Fund terminates by operation of law;
(c) if Bonds have been issued by the Trustee as trustee of the
Fund:
(i) the date immediately following the date upon which
the Trustee pays in full all moneys which are or may
become due (actually or contingently) in respect of
those Bonds; or
(ii) the date appointed by the Bondholders in relation to
the Fund as the Vesting Date, in accordance with this
Deed;
(d) if Bonds have not been issued by the Trustee as trustee of the
Fund, the date appointed by the Trust Manager as the Vesting
Date in accordance with this Deed; or
(e) in the case of a Warehouse Fund, the date nominated by the
Residual Income Beneficiaries of that Fund pursuant to clause
9.2.
WAREHOUSE BENEFICIARY means, in relation to a Warehouse Fund, each
Beneficiary of that Warehouse Fund.
WAREHOUSE FUND means each trust fund from time to time created under
this Deed following the giving by the Trust Manager to the Trustee of a
Fund Creation Notice which specifies that the trust fund to be created
is to be a Warehouse Fund.
WAREHOUSE FUNDING AGREEMENT means any agreement or arrangement pursuant
to which a Warehouse Beneficiary provides funding to the Trustee as
trustee of the relevant Warehouse Fund to settle and/or purchase
Mortgages.
WAREHOUSE TRIGGER EVENT means, in relation to a Warehouse Fund:
(a) a Trustee's Default occurs in relation to that Warehouse Fund
and continues unremedied;
(b) a Manager's Default occurs in relation to that Warehouse Fund
and continues unremedied;
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(c) the Funding Period for that Warehouse Fund expires, and the
Trustee has not, within 5 Business Days of such expiry, given
to the relevant Warehouse Beneficiary a notice under clause
9.1 in respect of all of the Assets comprised in that
Warehouse Fund; or
(d) any other event occurs which is defined to be a Warehouse
Trigger Event for that Fund in any Warehouse Funding Agreement
relating to that Fund.
1.2 INTERPRETATION
In this Deed unless the context indicates a contrary intention:
(a) PERSON includes an individual, a body politic, a corporation
and a statutory or other authority or association
(incorporated or unincorporated);
(b) references to a party include that party's executors,
administrators, successors, substitutes and assigns, including
any person taking by way of novation;
(c) references to any legislation or to any section or provision
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;
(d) CORPORATION means any body corporate wherever formed or
incorporated, including any public authority or any
instrumentality of the Crown;
(e) the expression CERTIFIED by a corporation or person means
certified in writing by an Authorised Signatory of the
corporation or by that person respectively and CERTIFY and
like expressions shall be construed accordingly;
(f) words importing the singular shall include the plural (and
vice versa) and words denoting a given gender shall include
all other genders;
(g) headings are for convenience only and shall not affect the
interpretation of this Deed;
(h) references to a clause or a Schedule are to a clause or a
Schedule of this Deed;
(i) where any word or phrase is given a defined meaning, any other
part of speech or other grammatical form of that word or
phrase has a corresponding meaning;
(j) where the day on or by which any sum is payable under this
Deed or any act, matter or thing is to be done is not a
Business Day such sum shall be paid and such act, matter or
thing shall be done on the next succeeding Business Day;
(k) all accounting terms shall be interpreted in accordance with
the Approved Accounting Standards;
(l) MONTH means calendar month;
(m) a reference to any document or agreement is to such document
as amended, varied, supplemented or novated from time to time;
and
(n) a reference to an ENTITLEMENT of a Beneficiary of a Fund means
the entitlement of that Beneficiary as set out in this Deed,
the relevant Fund Creation Notice and any Transaction Document
relating to that Fund.
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1.3 INCORPORATED DEFINITIONS
Words and expressions defined in a Security Trust Deed in respect of a
Fund have the same meaning when used in this Deed to the extent that
this Deed relates to that Fund unless otherwise defined in this Deed.
Such words and expressions include:
AUSTRALIAN DOLLARS, BOND, BONDHOLDER, COUPON, COUPONHOLDER, CURRENCY
SWAP, CURRENCY SWAP COUNTERPARTY, EXTRAORDINARY RESOLUTION, INTEREST
RATE SWAP, INTEREST RATE SWAP COUNTERPARTY, ISDA DEFINITIONS, ISDA
MASTER AGREEMENT, PAYING AGENCY AGREEMENT, SUBSCRIPTION AGREEMENT, US
DOLLAR.
2. THE ARMS II FUNDS
2.1 APPOINTMENT OF TRUSTEE
The Trustee agrees to act as trustee of each Fund upon and subject to
the terms and conditions of this Deed.
2.2 SEPARATE AND DISTINCT FUNDS
Each Fund shall be a separate and distinct trust fund.
3. THE FUNDS
3.1 BENEFICIAL INTEREST IN FUNDS
The Trustee must hold each Fund, and each Asset comprised in that Fund
from time to time, on trust for the Beneficiaries of that Fund upon and
subject to the terms and conditions of this Deed.
3.2 FUND CREATION NOTICE
The Trust Manager may at any time give to the Trustee a notice in, or
substantially in, the form of Schedule 1 or in such other form as the
Trust Manager and the Trustee may from time to time agree, duly
completed and executed by an Authorised Signatory of the Trust Manager,
and specifying:
(a) whether the Fund to be created is a Warehouse Fund or an
Issuing Fund;
(b) the Initial Amount for that Fund;
(c) the initial Beneficiaries of that Fund and their respective
entitlements as Beneficiaries of that Fund;
(d) the name of that Fund;
(e) the Income Distribution Dates for that Fund; and
(f) in the case of a Rated Fund, the Designated Rating Agency and
the Designated Rating for that Rated Fund.
3.3 CREATION OF ADDITIONAL FUNDS
If the Trust Manager has given to the Trustee a Fund Creation Notice,
then unless the Trustee rejects that Fund Creation Notice by written
notice to the Trust Manager within one Business Day of it
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being given, the Fund referred to in that notice shall be constituted
immediately upon the Trust Manager settling or procuring the settlement
upon the Trustee of the Initial Amount.
3.4 NAME OF FUNDS
(a) Each Fund shall be known by the name specified in the relevant
Fund Creation Notice, unless the Trustee reasonably objects to
the use of that name, in which case that Fund will be called
by such other name as the Trustee and the Trust Manager may
agree.
(b) The Trustee and the Trust Manager may from time to time agree
in writing to change the name of a Fund.
3.5 DURATION OF FUNDS
Each Fund shall continue until, and shall terminate on, the Vesting
Date for that Fund.
3.6 BENEFICIARY REGISTER
(a) The interests of any person as a Beneficiary of a Fund will be
evidenced by registration in the register in relation to that
Fund maintained under this clause 3.6 (the BENEFICIARY
REGISTER).
(b) The Trustee must keep the Beneficiary Register in relation to
each Fund at its registered office in a form that it considers
appropriate and must enter on the Beneficiary Register in
relation to each Fund the following particulars.
(i) The name and address of the holder of each unit in
the Fund.
(ii) The date on which the name of the holder of each unit
in the Fund is entered in the Beneficiary Register in
relation to that Fund.
(iii) The date on which the holder of a unit in the Fund
ceases to be registered as the holder of that unit.
(iv) The subscription moneys initially paid for each unit
in the Fund, and the aggregate subscription moneys of
all units in the Fund from time to time.
(v) Any other details which the Trustee considers
necessary or desirable.
(c) Each Beneficiary of a Fund shall promptly notify the Trustee
of any change of its name or address and the Trustee must
alter the Beneficiary Register in relation to that Fund
accordingly.
3A. BENEFICIARIES OF DESIGNATED FUNDS
3A.1 ACKNOWLEDGEMENT
The parties acknowledge that:
(a) the interest of AMS as sole beneficiary of each Designated
Fund is represented by:
(i) a single income unit (the RESIDUAL INCOME UNIT); and
(ii) a single capital unit (the RESIDUAL CAPITAL UNIT);
and
(b) no other units in any Designated Fund may be issued.
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3A.2 RESIDUAL CAPITAL UNIT
(a) The Residual Capital Beneficiary of each Designated Fund has
no right to receive distributions in respect of that
Designated Fund other than the right to receive the amount of
A$10 on the termination of that Designated Fund. The Residual
Capital Unit for each Designated Fund may not be redeemed at
any other time or in any other way.
(b) The Residual Capital Unit for each Designated Fund is not
transferable except:
(i) by AMS to another person who is not related to the
Residual Income Beneficiary (the TRANSFEREE) on terms
that the Transferee may not transfer the Residual
Capital Unit to any person other than AMS; or
(ii) to AMS.
3A.3 RESIDUAL INCOME UNIT
(a) The beneficial interest held by the Residual Income
Beneficiary of each Designated Fund is limited to that
Designated Fund and each Asset of that Designated Fund (other
than any Asset of that Designated Fund held on trust for the
Residual Capital Beneficiary of that Designated Fund under
clause 3A.2) subject to and in accordance with this Deed and
each other Transaction Document in relation to that Designated
Fund.
(b) Subject to clause 21, the Residual Income Beneficiary of each
Designated Fund is not entitled to receive distributions in
respect of that Designated Fund other than:
(i) distributions under and in accordance with this Deed
and the Transaction Documents in relation to that
Designated Fund; and
(ii) the right to receive, on the termination of that
Designated Fund, the entire beneficial interest of
that Designated Fund, subject to the rights of the
Residual Capital Beneficiary of that Designated Fund.
(c) The Residual Income Unit for each Designated Fund may not be
redeemed at any other time or in any other way.
(d) The Residual Income Unit for each Designated Fund is not
transferable.
4. LIMITS ON RIGHTS OF BONDHOLDERS AND BENEFICIARIES
4.1 GENERAL LIMITS
Subject, in the case of a Warehouse Fund, to the terms of any Warehouse
Funding Agreement, no Bondholder, Couponholder or Beneficiary shall be
entitled to:
(a) require the transfer to it of any Asset comprised in any Fund;
(b) exercise any rights, powers or privileges (including
instituting or defending legal proceedings) in respect of any
Asset of any Fund;
(c) attend meetings or take part in or consent to any action
concerning any property or corporation in which the Trustee
holds an interest;
(d) lodge or enter a caveat or similar instrument claiming an
estate or interest in any Asset of any Fund;
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(e) have any recourse to the Trustee in its personal capacity,
except to the extent of any fraud, negligence or wilful
default by the Trustee; or
(f) seek to wind up any Fund.
4.2 FURTHER LIMITS ON INTERESTS OF BENEFICIARIES
Subject to clause 3A, no Beneficiary may assign, transfer or otherwise
encumber its beneficial interest in any Fund (otherwise than as
expressly contemplated by this Deed) without the prior written consent
of the Trust Manager and the Trustee (which either may give or withhold
in its absolute discretion). Any assignment, transfer or encumbrance in
breach of this clause shall be of no force and effect and shall not
vest in any purported assignee, transferee or encumbrancee any right,
title or interest in any Fund.
4.3 RANKING OF INTEREST OF BENEFICIARIES
The rights of any Beneficiary in relation to any Fund and in relation
to any payment or distribution out of any Fund shall at all times rank
after, and be subject to, the rights of Bondholders in respect of the
Bonds issued in relation to that Fund and other Creditors of that Fund.
4.4 RESOLUTION OF CONFLICTS
If there is at any time a conflict between:
(a) a duty owed by the Trustee or the Trust Manager under any
Transaction Document to a Beneficiary and a duty owed by such
person to the Bondholders under any Transaction Document; or
(b) a duty owed to Bondholders of one Series of Bonds and a duty
owed to Bondholders of another Series of Bonds ranking in
priority after that Series,
the Trustee or the Trust Manager must give priority:
(i) to the interests of the Bondholders over the
interests of the Beneficiaries; and
(ii) to the interests of Bondholders in the same order of
priority as the ranking of the Series of Bonds held
by them respectively,
and shall not, provided it acts in good faith, incur any liability to
any Beneficiary or any Bondholder for so doing.
4.5 NO LIABILITY OF BONDHOLDERS, COUPONHOLDERS OR BENEFICIARIES
No Beneficiary, Bondholder or Couponholder shall, by reason of being a
Beneficiary, Bondholder or Couponholder:
(a) have any liability to make any contribution to the Assets of
any Fund; or
(b) be under any obligation to indemnify the Trustee, the Trust
Manager, the Master Servicer or any other person in respect of
any of their respective liabilities (actual or contingent,
present or future) arising from the exercise by them of their
respective powers and the performance by them of their
respective duties and obligations under this Deed and the
Transaction Documents.
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5. BONDS
5.1 NATURE OF BONDS
The Trust Manager may by giving notice to the Trustee in accordance
with clause 6, require the Trustee as trustee of an Issuing Fund, to
issue debt securities:
(a) in such form as determined by the Trust Manager;
(b) in accordance with this Deed and the relevant Security Trust
Deed (if any); and
(c) with the benefit of and subject to this Deed, the relevant
Supplementary Bonds Terms and the relevant Security Trust Deed
(if any).
5.2 TRUSTEE'S COVENANT TO BONDHOLDERS AND COUPONHOLDERS
The Trustee covenants for the benefit of:
(a) each Bondholder, to make all payments on or in respect of the
Bonds held by that Bondholder on the due date for payment;
(b) each Couponholder, to make all payments on or in respect of
the Coupons held by that Couponholder on the due date for
payment; and
(c) each Bondholder and each Couponholder, to comply with:
(i) all of the relevant Bond Terms; and
(ii) the relevant Security Trust Deed (if any).
5.3 MINIMUM FACE VALUE OF BONDS
The minimum initial Face Value of each Bond shall be as specified in
the relevant Bond Terms.
5.4 BONDS NOT INVALID IF ISSUED IN BREACH
No Bond shall be invalid or unenforceable on the ground that it was
issued in breach of this Deed or any other Transaction Document.
6. PROCEDURE FOR ISSUE OF BONDS
6.1 FORM OF ISSUE NOTICE
Each Issue Notice must, subject to the relevant Supplementary Bond
Terms:
(a) be in the form of Schedule 2, or in such other form as the
Trustee and the Trust Manager may from time to time agree;
(b) be signed by an Authorised Signatory of the Trust Manager;
(c) be received by the Trustee not less than 5 Business Days
before the Issue Date (or at such other time as may be agreed
between the Trustee and the Trust Manager);
(d) specify:
(i) the name or designation to be ascribed to the Bonds;
(ii) the aggregate Face Value of the Bonds to be issued;
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(iii) the denominations in which the Bonds are to be
issued;
(iv) the Issue Date;
(v) all reasonable details of any Security Trust Deed,
Enhancements or Currency Swaps required to be entered
into by the Trustee as trustee of the relevant
Issuing Fund as a condition precedent to the issue of
the Bonds;
(vi) whether any of the Bonds will constitute a separate
Series of Bonds, and if so specify the information
referred to in the previous sub-paragraphs of this
paragraph (d) with respect to each such Series;
(vii) whether the Portfolio is comprised in the Assets of a
Warehouse Fund, and if not the person for whose
benefit the Issue Proceeds of that Issue are to be
held pursuant to clause 6.8(a); and
(viii) all other Transaction Documents to be entered into in
connection with or as a condition precedent to the
issue of the Bonds;
(e) have attached to it or otherwise identify in a manner
satisfactory to the Trustee:
(i) details of the Portfolio which the Trustee, as
trustee of the relevant Issuing Fund, is to acquire
with the Issue Proceeds;
(ii) the Supplementary Bond Terms applicable to those
Bonds, which must specify the details referred to in
clause 6.3; and
(iii) if the relevant Issuing Fund is a Rated Fund, a
letter or certificate from the Designated Rating
Agency addressed to the Trustee confirming that the
Bonds in each Series specified in the Issue Notice
will be rated not lower than the Designated Rating
for that Series, and if Bonds have previously been
issued by the Trustee as trustee of that Issuing Fund
that the issue of the Bonds specified in the Issue
Notice will not cause the credit rating assigned to
the Bonds previously issued to be downgraded to a
credit rating lower than the Designated Rating for
those Bonds; and
(f) contain a certification by the Trust Manager that:
(i) the terms of this Deed with respect to the proposed
Issue have been, and will on the Issue Date continue
to be complied with;
(ii) the acquisition of the Portfolio and the
characteristics of the Portfolio are consistent with
all information memoranda, notices, reports,
statements and the like given to Bondholders or
prospective Bondholders, and will not cause any
statements made in any such document or statement to
be misleading or deceptive, or likely to mislead or
deceive; and
(iii) assuming that all parties to all Transaction
Documents relating to the relevant Issuing Fund, and
all issuers of Authorised Investments from time to
time comprised in the Assets of that Issuing Fund
comply in full with their respective obligations
under those Transaction Documents and Authorised
Investments and having regard to:
(A) the terms of those Transaction Documents;
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(B) the terms of the Mortgages comprised in the
relevant Portfolio;
(C) the anticipated Expenses of that Issuing
Fund; and
(D) all other information available to the Trust
Manager,
the Trustee will have available to it sufficient
funds to enable it to comply with its obligations
under those Transaction Documents.
6.2 NOTICE TO WAREHOUSE BENEFICIARY
If the Portfolio of which details are attached to an Issue Notice in
accordance with clause 6.1(e)(i) comprises Assets of a Warehouse Fund,
the Trust Manager must give a copy of the Issue Notice to each
Beneficiary of that Warehouse Fund at the same time as it gives the
Issue Notice to the Trustee.
6.3 SUPPLEMENTARY BOND TERMS
The Supplementary Bond Terms for the Bonds comprised in each Issue must
specify:
(a) the rate per annum (if any) at which interest payable on the
Face Value of the Bonds is to be calculated and the method of
calculation;
(b) the Interest Payment Dates (if any);
(c) the Amortisation Dates (if any);
(d) the Amortisation Amounts payable on each Amortisation Date, or
the method of calculating those amounts;
(e) the Maturity Date of the Bonds;
(f) any preferred, deferred or other rights applicable to the
Bonds;
(g) if the Issue will comprise Bonds of different Series, the
details specified in the previous paragraphs of this clause
6.3 with respect to each Series, and any other terms and
conditions which distinguish Bonds in one Series from Bonds in
any other Series;
(h) in the case of an Issue in respect of a Rated Fund, the
minimum rating requirements in relation to that Rated Fund;
and
(i) any other terms and conditions which the Trustee and the Trust
Manager may agree.
6.4 AMENDMENT
With the consent of the Trustee, the Trust Manager may prior to an
Issue Date amend by notice in writing to the Trustee an Issue Notice
previously given, or the Supplementary Bond Terms or details of the
Portfolio attached to such an Issue Notice.
6.5 ACCEPTANCE OF ISSUE NOTICE
The Trustee may rely upon any certification from the Trust Manager to
the contents of an Issue Notice as evidence of the matters so
certified.
6.6 NON-COMPLYING ISSUE NOTICE
If the Trustee receives an Issue Notice which it reasonably believes
does not comply with this clause 6, it must no later than close of
business 2 Business Days prior to the proposed Issue Date advise the
Trust Manager in writing giving reasonable details of the reasons for
the Trustee's belief.
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6.7 ISSUE OF BONDS AND TRANSFER OF BENEFIT OF MORTGAGES
If the Trustee has:
(a) received an Issue Notice which it reasonably believes complies
with this clause 6;
(b) subject to clause 6.9, received the Subscription Amount (in
cleared funds) in an aggregate amount equal to the Face Value
of the Bonds referred to in the relevant Issue Notice; and
(c) as trustee of the relevant Fund, on or prior to the proposed
Issue Date:
(i) entered into a Security Trust Deed, (if specified in
the relevant Issue Notice);
(ii) entered into or otherwise obtained the benefit of the
Transaction Documents relating to that Fund as
referred to in the relevant Issue Notice; and
(iii) received a Portfolio Compliance Certificate given as
of a time no earlier than 5:00 pm on the Business Day
immediately preceding the proposed Issue Date,
then, the Trustee must, subject to the terms of this Deed, on the Issue
Date, issue Bonds, as trustee of the relevant Fund, in accordance with
the Transaction Documents relating to that Fund.
6.8 ACQUISITION OF PORTFOLIO
Upon receipt of the Issue Proceeds of an Issue, the Trustee:
(a) will (notwithstanding any other provision of this Deed) hold
those Issue Proceeds:
(i) if and to the extent that the Portfolio specified in
the relevant Issue Notice was, immediately prior to
the Issue Date, comprised in the Assets of a
Warehouse Fund, as trustee of that Warehouse Fund; or
(ii) if and to the extent that the Portfolio specified in
the relevant Issue Notice was not, immediately prior
to the Issue Date, comprised in the Assets of a
Warehouse Fund, upon trust absolutely for the benefit
of the person specified in the relevant Issue Notice,
in each case to the extent of the aggregate Face Value of the
relevant Mortgages comprised in that Portfolio as at close of
business on the Business Day immediately preceding the Issue
Date;
(b) must (notwithstanding clause 18.5) cause those Issue Proceeds
to be credited direct to the Trust Account for the relevant
Warehouse Fund or to be applied in accordance with the
instructions of the Beneficiaries of the relevant Warehouse
Fund or, (if clause 6.8(a)(ii) applies) deal with them in
accordance with the Trustee's obligations to the person for
whose benefit they are held, or otherwise in accordance with
the directions of that person;
(c) will hold automatically by virtue of this Deed (without any
further act or other thing being done or any instrument being
brought into existence) as trustee of the relevant Issuing
Fund the benefit of:
(i) the Portfolio specified in the relevant Issue Notice;
and
(ii) all Ancillary Documents, Enhancements and Interest
Rate Swaps relating to the Mortgages in that
Portfolio; and
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(d) must apply the balance (if any) of the Issue Proceeds in
accordance with the relevant Supplementary Bond Terms.
6.9 AMOUNT OF BONDS CREATED FOR AN ISSUING FUND
The aggregate Subscription Amount of Bonds issued on an Issue Date may
exceed the aggregate Face Value (as at close of business on the
Business Day immediately preceding the Issue Date) of Mortgages in the
Portfolio to be held by the Trustee as trustee of the relevant Issuing
Fund under clause 6.8(c) only to the extent and on conditions such that
each Designated Rating Agency confirms that any credit rating assigned
or to be assigned to any Bonds to be issued by the Trustee as trustee
of that Issuing Fund will not be downgraded below the Designated
Rating, qualified or withdrawn.
6.10 ACTION FOLLOWING ISSUE
As soon as practicable after an Issue Date, the Trust Manager must
direct the Trustee to take, and the Trustee must take, all action and
do all things which the Trustee is obliged to do under the Transaction
Documents relating to the relevant Fund.
6.11 NO LIABILITY FOR INSUFFICIENT MONEYS
If on an Issue Date the conditions specified in paragraphs (a)-(c) of
clause 6.7 and clause 6.9 are not fulfilled:
(a) the Trustee shall not proceed with the Issue and will refund
all Subscription Amounts received to the applicants for Bonds;
and
(b) neither the Trustee nor the Trust Manager shall have any
obligation or liability to any person to proceed with the
Issue.
6.12 RECORDING OF TRANSFER AND FURTHER ASSURANCE
On or as soon as reasonably practicable following an Issue Date:
(a) the Trust Manager must record in the records kept pursuant to
clause 20 the transfer to the relevant Issuing Fund of the
benefit of the Portfolio details of which were attached to the
corresponding Issue Notice (and the benefit of all
corresponding Ancillary Documents, Enhancements, and Interest
Rate Swaps); and
(b) the Trustee must execute such documentation and do all such
other acts, matters or things as the Trust Manager reasonably
requires to give effect to that transfer.
6.13 SUBSEQUENT ADJUSTMENT
(a) (ACCRUED INTEREST) Following an Issue Date, the Trustee, as
trustee of the Warehouse Fund in which the Portfolio acquired
with the proceeds of the relevant Issue were held prior to
that Issue, shall be entitled to any interest proceeds
received by the Trustee that represents accrued but unpaid
interest on Mortgages in that Portfolio up to (but not
including) the Issue Date. The Trust Manager must notify the
Trustee of the amount of any such interest as soon as
reasonably practicable following the Issue Date. Upon receipt
of such notification, the Trustee must promptly credit the
amount of any such interest to the Trust Account for the
relevant Warehouse Fund.
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(b) (OTHER COSTS) Subject to paragraph (c) below, the Trust
Manager may in its absolute discretion direct the Trustee in
writing on or at any time after an Issue Date to transfer
funds between the corresponding Warehouse Fund or Issuing Fund
with such other amounts as the Trust Manager considers
appropriate, so that:
(i) the Warehouse Fund has the benefit of any receipts,
and bears the cost of any losses or outgoings, in
respect of each Mortgage (and any corresponding
Ancillary Documents, Enhancements and Interest Rate
Swaps) up to (but not including) the Issue Date; and
(ii) the Issuing Fund has the benefit of such receipts,
and bears such costs, from (and including) the Issue
Date.
(c) (TRUST MANAGER TO CERTIFY ADJUSTMENTS) A written direction by
the Trust Manager pursuant to this clause 6.13 must certify
that the relevant amount is, in the opinion of the Trust
Manager, to be properly debited or credited to a Warehouse
Fund or an Issuing Fund (as the case may be).
(d) (TRUSTEE TO ACT IN ACCORDANCE WITH DIRECTION) The Trustee must
act in accordance with, and may rely upon, a written
direction, of the Trust Manager and any certificate given in
accordance with this clause 6.13.
6.14 NO LIMIT ON BONDS
Subject to the provisions of this Deed and any relevant Security Trust
Deed, there shall be no limit on the number or Face Value of Bonds
which may be issued in respect of a Fund.
6.15 COMPLIANCE WITH LAWS
The Trust Manager must ensure that no issue or allotment of Bonds,
offer of Bonds for subscription or purchase, or invitation to subscribe
for or buy, Bonds shall be made unless the issue, allotment, offer or
invitation is made in compliance with all applicable laws in all
jurisdictions in which the issue, allotment, offer or invitation is
made.
7. TRANSFERS OF BONDS
Intentionally blank.
8. REGISTRATION CONFIRMATIONS
Intentionally blank.
9. WAREHOUSE FUNDING
9.1 TRANSFER OF WAREHOUSE ASSETS TO ANOTHER FUND
The Trust Manager, may at any time by not less than 5 Business Days
prior written notice (or such other period, either shorter or longer,
as may be specified in any relevant Transaction Document or agreed by
the relevant Warehouse Beneficiary) require the transfer by a Warehouse
Beneficiary of its beneficial interest in some or all of the Assets of
the relevant Warehouse Fund to:
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(a) the Trustee in its capacity as trustee of an Issuing Fund or
another Warehouse Fund; or
(b) a person nominated by the Trust Manager,
in consideration of payment by the Trustee to that Warehouse
Beneficiary of an amount equal to (subject to any provision of any
relevant Warehouse Funding Agreement):
(c) the Face Value of those Assets; minus
(d) the aggregate of:
(i) all Taxes which are or may become payable in respect
of the relevant Warehouse Fund;
(ii) all Expenses incurred but not previously paid of that
Warehouse Fund;
(iii) all other amounts which are or may become payable by
it to Creditors of that Warehouse Fund; and
(iv) all amounts in respect of which it is entitled to be
reimbursed or indemnified under this Deed; plus
(e) any other amount payable to the Warehouse Beneficiary in
accordance with the relevant Warehouse Funding Agreement.
9.2 WAREHOUSE TRIGGER EVENT
If a Warehouse Trigger Event occurs in relation to a Warehouse Fund,
the Residual Income Beneficiaries of that Fund may by notice in writing
to the Trustee and the Trust Manager:
(a) nominate a date (which must not be less than 5 Business Days
after the date of the notice) as the Vesting Date for that
Fund; and
(b) subject to clauses 3A, 9.1, 9.3, 21 and 25.10 and the Fund
Creation Notice in relation to that Fund, require the transfer
on the Vesting Date by the Trustee to the Residual Income
Beneficiaries of all of the Assets of that Fund.
9.3 PARTIES TO GIVE EFFECT TO TRANSFER
Each of the Trustee, the Trust Manager and the Warehouse Beneficiaries
of a Warehouse Fund must execute all documents and do all things as the
other may reasonably require to give effect to a transfer of the Assets
of a Fund following the giving by:
(a) the Trust Manager of a notice under clause 9.1; or
(b) the Residual Income Beneficiaries of a notice under
clause 9.2.
9.4 RIGHTS ADDITIONAL TO ISSUE OF BONDS
This clause 9 does not limit the operation of clause 6.
10. APPOINTMENT OF TRUST MANAGER
10.1 APPOINTMENT
The Trust Manager must manage each Fund upon and subject to the terms
of this Deed.
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10.2 POWERS OF MANAGEMENT
The Trust Manager has, subject to this Deed, full and complete powers,
and is responsible for, the management of the Funds (including
liabilities), including:
(a) the management, administration, investment and day to day
operation of the Funds; and
(b) the keeping of all books, records and accounts for each Fund
in accordance with this Deed.
10.3 TRUST MANAGER TO ENFORCE AGAINST MASTER SERVICER
If the Master Servicer is not the same person as the Trust Manager, the
Trust Manager must take all reasonable action to:
(a) ensure that the Master Servicer complies with its obligations
under the Master Origination and Servicing Agreement; and
(b) enforce the performance by the Master Servicer of its
obligations under the Master Origination and Servicing
Agreement.
10.4 TRUST MANAGER NOT LIABLE FOR MASTER SERVICER
If the Master Servicer is not the same person as the Trust Manager,
neither the Trustee nor, subject to clause 10.3, the Trust Manager has
any responsibility or liability for the performance by the Master
Servicer of its obligations under the Master Origination and Servicing
Agreement.
10.5 EFFECT OF COMPLIANCE AS MASTER SERVICER
If, and for as long as the Master Servicer is the same person as the
Trust Manager, compliance by the Master Servicer with its obligations
under the Master Origination and Servicing Agreement will be deemed to
be compliance by the Trust Manager with its obligations under this Deed
with respect to the origination, management and servicing of Mortgages.
10.6 ENFORCEMENT OF DUTIES OF MASTER SERVICER
(a) If and for so long as the Master Servicer is the same person
as the Trust Manager, the Trustee must, subject to paragraph
(b), if it becomes aware of a breach by the Master Servicer of
its obligations under the Master Origination and Servicing
Agreement, take such action which it reasonably considers
appropriate, having regard to its duties under this Deed, with
respect to that breach.
(b) The Trustee has no obligation to make any enquiry as to the
performance by the Master Servicer of its obligations under
the Master Origination and Servicing Agreement.
11. INVESTMENT OF THE FUND
11.1 AUTHORISED INVESTMENTS
(a) Subject to the terms of this Deed, the Assets of each Fund
must comprise only property which is an Authorised Investment
at its date of acquisition.
(b) If an Asset of a Fund would not at any time be an Authorised
Investment if it were to be acquired at that time, neither the
Trustee nor the Trust Manager shall be obliged to dispose of
that Asset.
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11.2 TRUST MANAGER TO MAKE PROPOSALS
The Trust Manager must from time to time make proposals to the Trustee
as to the investment of the Assets of the Fund. Each such proposal
must:
(a) be in writing in a form agreed between the Trustee and the
Trust Manager;
(b) specify the Authorised Investments to be purchased or sold;
(c) specify the action (if any) to be taken by the Trustee to give
effect to it;
(d) contain a certification by the Trust Manager that the giving
effect to by the Trustee of the proposal will be in accordance
with this Deed;
(e) specify the price to be paid for the Asset or in the case of a
Loan to be made by the Trustee, the amount of the Loan;
(f) specify to whom any amount is payable under paragraph (e), or
if an Asset is to be acquired from a Warehouse Fund, the name
of the Warehouse Fund;
(g) in the case of the making of a Loan secured by a Mortgage, if
the Trust Manager is not the same person as the Master
Servicer, contain a certification by the Trust Manager that it
is not aware of any breach by the Master Servicer of the
representations and warranties made in the Master Origination
and Servicing Agreement with respect to that Loan or Mortgage;
and
(h) contain all other information which the Trustee may reasonably
require to satisfy itself that certification is correct and to
give effect to the proposal.
An Issue Notice which complies with clause 6 complies with this
clause 11.2.
11.3 TRUSTEE TO COMPLY WITH PROPOSALS
The Trustee:
(a) must comply with a proposal made by the Trust Manager in
accordance with this Deed provided that, in the case of a
proposal for the making or acquisition of a Loan secured by a
Mortgage (unless any Transaction Document otherwise provides
or unless otherwise agreed), the Trustee has received evidence
satisfactory to it that a Solicitor's Certificate required by
clause 12.1(b) of the Master Origination and Servicing
Agreement has been or will upon such a Loan being made or
acquired, be issued; and
(b) may rely upon the recommendations and advice of the Trust
Manager with respect to any such proposal, without being under
a duty to make any enquiry or exercise any judgment as to:
(i) the merits of the proposal; or
(ii) whether the proposal complies with this Deed (unless
the Trustee ought reasonably to know that the
proposal does not so comply).
11.4 AUTHORISED INVESTMENTS FOR RATED FUNDS
The Trust Manager shall only give to the Trustee as a trustee of a
Rated Fund a proposal to acquire investments falling within paragraphs
(c)-(h) (inclusive) of the definition of AUTHORISED INVESTMENTS where
the investment (or the issuer of it) has a rating that complies at the
time of the proposed
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acquisition with the minimum rating requirements (if any) specified in
any Warehouse Funding Agreement, Supplementary Bond Terms or in
relation to that Rated Fund.
11.5 LIMITATION ON MATURITY OF INVESTMENTS
The Trust Manager must ensure that, to the extent that money is or will
be required to meet Expenses of a Fund or payments due to Bondholders,
Couponholders, Interest Rate Swap Counterparties or Currency Swap
Counterparties of a Fund, the Assets of that Fund are invested in
Authorised Investments which mature or are otherwise immediately
available in or convertible into cash on or before the date those
Expenses of the Fund or payments (as the case may be) are due.
11.6 RIGHTS ATTACHING TO ASSETS
(a) The Trust Manager may exercise all voting and other rights
conferred by any Assets of a Fund in such manner as it sees
fit in its absolute discretion.
(b) The Trustee must execute and deliver to the Trust Manager or
as the Trust Manager directs all proxies and powers of
attorney which the Trust Manager may request for the purposes
of exercising the voting and other rights conferred by the
Assets of a Fund.
11.7 TRUSTEE'S DEALING WITH ASSETS
The Trustee must not buy, sell or otherwise deal with the Assets of a
Fund except in accordance with the proposals of the Trust Manager made
in accordance with this Deed.
11.8 SWAPS AND ENHANCEMENTS
Subject to the terms of this Deed, the Trustee must, as trustee of a
Fund, enter into any Interest Rate Swaps, Currency Swaps and
Enhancements on such terms and with such counterparties as the Trust
Manager may require in writing, provided that if the Fund is a Rated
Fund, the identity of the counterparty and the terms of the relevant
Transaction Document must be such that each Designated Rating Agency
confirms that the entering into of such arrangements will not cause any
credit rating assigned to any Bonds issued by the Trustee as trustee of
that Rated Fund to be downgraded below the Designated Rating, qualified
or withdrawn.
11.9 SWAPS AND ENHANCEMENTS FOR RATED FUNDS
The Trustee, as trustee of a Rated Fund in respect of which Bonds have
previously been issued, must not enter into or terminate any Interest
Rate Swap, Currency Swap or Enhancement unless the Trustee receives a
direction from the Trust Manager to do so and a certificate from the
Trust Manager that doing so:
(a) either will not cause the rating of those Bonds by a
Designated Rating Agency to be downgraded, or is necessary to
avoid the rating of those Bonds being downgraded; and
(b) is in the best interests of the Creditors and Beneficiaries of
that Rated Fund.
11.10 LIMITATION OF TRUSTEE'S PERSONAL LIABILITY
Notwithstanding any other provision of this Deed, the Trustee is not
obliged to execute any document or incur any obligation as trustee of a
Fund unless its personal liability under that document or in respect of
that obligation is limited in a manner consistent with clause 25.9.
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11.11 MONEYS PAYABLE TO TRUSTEE
Subject to this Deed, the Trust Manager must ensure that any agreement
entered into by the Trustee as trustee of a Fund contains a provision
to the effect that any moneys payable to the Trustee under it must be
paid to the Trustee, or to an account or Authorised Investment in the
name of the Trustee.
11.12 SEGREGATION OF ASSETS OF A FUND
Subject to this Deed, the Trustee must:
(a) ensure that no Assets of a Fund are mixed or co-mingled with
the Assets of any other Fund, or with any assets or property
of the Trustee or any other person; and
(b) where advised by the Trust Manager that it is appropriate to
do so, apportion any Asset coming into the hands of the
Trustee which belongs to one or more Fund, or of any liability
which relates to one or more Fund, in such manner as the Trust
Manager certifies in writing is fair and reasonable.
11.13 ASSETS OF FUNDS
The Assets of a Fund are only available to meet liabilities incurred by
the Trustee as trustee of that Fund, and are not available to meet any
other liabilities of the Trustee (whether incurred personally or as
trustee of any other Fund).
11.14 LIABILITIES OF A FUND
Subject to clause 11.12, liabilities incurred by the Trustee as trustee
of a Fund must not be:
(a) aggregated with any liabilities of the Trustee, whether
incurred personally or as trustee of any other Fund; or
(b) set-off against the Assets of any other Fund.
11.15 ORIGINATION AND MANAGEMENT OF MORTGAGES
All Mortgages must be originated, managed and serviced in accordance
with:
(a) the Master Origination and Servicing Agreement; and
(b) any Interest Rate Swaps and Enhancements relating to those
Mortgages.
11.16 TRUST MANAGER WILL ACT AS MASTER SERVICER
If the Master Servicer is not the same person as the Trust Manager,
and:
(a) the appointment of the Master Servicer is terminated under the
Master Origination and Servicing Agreement; and
(b) the Master Servicer is not immediately replaced on the same or
substantially the same terms,
the Trust Manager must with effect from the date the termination
becomes effective assume the role of Master Servicer, upon the same
terms and conditions as those binding on the Master Servicer under the
Master Servicing and Origination Agreement immediately prior to
termination, until a replacement Master Servicer is appointed.
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11.17 TRUST MANAGER'S POWER TO DELEGATE
The Trust Manager may, in performing its obligations under this Deed:
(a) delegate to any of its officers and employees all or any of
the powers, authorities and discretions conferred on the Trust
Manager by this Deed;
(b) by power of attorney:
(i) appoint any person to be its attorney or agent for
such purpose and with such powers, authorities and
discretions (not exceeding those vested in the Trust
Manager) as the Trust Manager thinks fit with or
without power to sub-delegate, and also to authorise
the issue in the name of the Trust Manager of
documents bearing facsimile signatures of the Trust
Manager or of the attorney or agent either with or
without proper manuscript signatures of their
officers thereon; and
(ii) insert such provisions for the protection and
convenience of those dealing with any such attorney
or agent as the Trust Manager may think fit;
(c) appoint by writing or otherwise any person to be agent or
sub-agent of the Trust Manager as the Trust Manager may think
necessary or proper for such purposes and with such power,
authorities and discretions (not exceeding those vested in the
Trust Manager) as the Trust Manager thinks fit and to
supersede or suspend any such agent or sub-agent for such
cause or reason as the Trust Manager may in its sole
discretion think sufficient with or without assigning any
cause or reason and either absolutely or for such time as it
may think proper; and
(d) delegate to another person approved by the Trustee, on terms
approved by the Trustee, its obligations under this Deed with
respect to the origination, management and servicing of
Mortgages. The Trustee must not unreasonably withhold or delay
its approval in either case.
11.18 TRUST MANAGER
The Trust Manager is, subject to clause 10.4, liable for:
(a) the acts or omissions of any officer, employee, attorney,
agent, sub-delegate or sub-agent to whom any delegation is
made under clause 11.17; and
(b) the fees and expenses of any such person.
11.19 PROFESSIONAL ADVISERS
The Trust Manager may engage and pay reasonable expenses to any
valuers, solicitors, barristers, accountants, surveyors, property
advisers, real estate agents, contractors, qualified advisers, and such
other persons as may be necessary, usual or desirable for the purpose
of enabling the Trust Manager to be fully and properly advised and
informed, in order that it may properly exercise its powers and perform
its obligations under this Deed.
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12. ADDITIONAL OBLIGATIONS OF TRUST MANAGER
12.1 GENERAL
The covenants in this clause 12 are for the benefit of the Trustee,
each Beneficiary and each Bondholder.
12.2 ADDITIONAL OBLIGATIONS
The Trust Manager must:
(a) (ACT HONESTLY) act honestly and in good faith in the
performance of its duties and in the exercise of its powers
under this Deed;
(b) (PRUDENTLY) exercise such diligence and prudence as a prudent
man of business would exercise in performing its duties and
exercising its powers under this Deed, having regard to the
interests of the Beneficiaries and the Bondholders;
(c) (CONDUCT ITS BUSINESS PROPERLY) use its best endeavours to
carry on and conduct its business in so far as it relates to
this Deed in a proper and efficient manner;
(d) (MAKE AVAILABLE RECORDS) make available to the Trustee for
inspection all of the books and records of each Fund
maintained by the Trust Manager under this Deed and give to
the Trustee such written or oral information as the Trustee
reasonably requires with respect to all matters relating to
the Funds;
(e) (PAY RECEIPTS) pay to the Trustee, within one Business Day of
receipt, all money coming into its hand which is an Asset of a
Fund;
(f) (NOT CO-MINGLE) ensure that any Assets of a Fund which it may
come to hold from time to time are not mixed or co-mingled
with any Assets of any other Fund, or with any assets of the
Trust Manager or any other person;
(g) (PREPARE NOTICES) prepare or cause to be prepared all notices,
reports statements and the like which the Trustee is required
to prepare under any of the provisions of this Deed and
deliver those notices and statements;
(h) (APPROVAL OF NOTICES) submit to the Trustee all information
memoranda, notices, reports, statements and the like to be
given by the Trust Manager to Bondholders, or prospective
Bondholders, for the Trustee's consent prior to the issue of
the same other than notices, reports, statements and
information provided by the Trust Manager to Bondholders on a
periodic basis or on request by a Bondholder relating to the
nature of the Authorised Investments comprised in the Assets
of a Fund and the performance of those Authorised Investments;
(i) (ACCURACY OF NOTICES) ensure that all information memoranda,
notices, reports, statements and the like given by the Trust
Manager to Bondholders or prospective Bondholders:
(i) are true in all material respects;
(ii) are not misleading or deceptive or likely to mislead
or deceive; and
(iii) comply with the requirements of all applicable laws;
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(j) (COPIES OF ALL NOTICES) give to the Trustee a copy of all
notices, reports and statements provided by the Trust Manager
to Bondholders, including those provided on a periodic basis
or on request;
(k) (TAXES) direct the Trustee to make all payments (as and when
they fall due) out of a Fund for Taxes levied upon any Fund or
upon the Trustee in its capacity as trustee of any Fund;
(l) (MONITOR TRANSACTION DOCUMENTS) monitor and enforce the
Transaction Documents and take all such steps as are necessary
to ensure that the Trustee complies with its obligations and
obtains the benefits conferred on it by the Transaction
Documents to which it is a party;
(m) (COMPLY WITH TRANSACTION DOCUMENTS) comply with its
obligations under all Transaction Documents to which it is a
party; and
(n) (NECESSARY INFORMATION) give to the Trustee all information,
notices, certificates, consents, approvals and authorisations
which it is entitled or obliged to give under the Transaction
Documents and which are necessary to enable the Trustee to
comply with its obligations under the Transaction Documents.
12.3 TRUST MANAGER CANNOT BIND TRUSTEE UNLESS AUTHORISED
In exercising its powers, authorities and discretions and performing
its duties and obligations under this Deed, the Trust Manager has no
power to bind the Trustee, otherwise than as expressly provided in this
Deed.
12.4 THRESHOLD RATE OBLIGATION OF TRUST MANAGER
The Trust Manager must:
(a) comply with each Threshold Rate Obligation; and
(b) without limiting paragraph (a), in complying with each
Threshold Rate Obligation, have regard to:
(i) the interests of the Beneficiaries of each Fund; and
(ii) the ability of the Beneficiaries of each Fund to
comply with their respective obligations where such
obligations are secured by a Security Interest over
their respective entitlements to receive
distributions of income from the Funds.
13. RETIREMENT OF TRUST MANAGER
13.1 REMOVAL
The Trustee may terminate the appointment of the Trust Manager under
this Deed if:
(a) an Event of Insolvency occurs in relation to the Trust
Manager; or
(b) a Manager's Default has occurred and is continuing.
13.2 VOLUNTARY RETIREMENT
The Trust Manager may, subject to clause 13.3, resign upon giving to
the Trustee not less than 3 months' notice in writing (or such other
period as the Trust Manager and the Trustee may agree) of its intention
to do so.
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13.3 NO RESIGNATION BY TRUST MANAGER UNLESS SUCCESSOR APPOINTED
The Trust Manager must not resign under clause 13.2 unless:
(a) it procures that, before the date on which that termination
becomes effective, another person assumes all of the
obligations of the Trust Manager under this Deed as its
successor, and executes such documents as the Trustee requires
to become bound by this Deed, with effect from that date, as
if it had originally been a party to this Deed as the Trust
Manager; and
(b) the appointment of the successor Trust Manager under paragraph
(a):
(i) is approved by the Trustee; and
(ii) will not cause the credit rating of any Bonds issued
by the Trustee as trustee of any Fund to be
downgraded below the Designated Rating for that Fund.
13.4 TRUSTEE APPOINTS REPLACEMENT TRUST MANAGER
On termination of the appointment of the Trust Manager (the OUTGOING
MANAGER) under clause 13.1, the Trustee shall be entitled to appoint
another person to be the Trust Manager (the INCOMING MANAGER) and until
any such appointment is made, the Trustee shall, subject to this Deed
and to any approval required by law, act as Trust Manager and shall be
entitled to the Manager's Fee.
13.5 TERMS OF APPOINTMENT OF INCOMING MANAGER
The Trustee must ensure that the Incoming Manager executes such
documents as the Trustee requires to assume with effect from the date
its appointment becomes effective, all of the rights, powers,
discretions and obligations of the Trust Manager under this Deed and
the Transaction Documents to which the Outgoing Manager is or was a
party, as if the Incoming Manager had been originally a party to this
Deed and any such Transaction Documents as the Trust Manager.
13.6 EFFECT OF TERMINATION OF OUTGOING MANAGER
The termination of the appointment of the Outgoing Manager under this
clause 13 will not affect any of the rights, obligations or liabilities
of the Outgoing Manager under this Deed or any Transaction Document
accrued or arising before such termination, or as a result of any act
or thing occurring before such termination.
13.7 DELIVERY OF DOCUMENTS
The Outgoing Manager must immediately upon termination of its
appointment becoming effective deliver to the Trustee (or at its
direction) the Data Base and all other books, documents, records and
property relating to the Funds. The Outgoing Manager is entitled to
take, and keep copies of such books, documents and records. Each of the
Trustee and the Incoming Manager must produce the originals of such
books, documents and records in its possession upon the giving of
reasonable written notice by the Outgoing Manager.
13.8 NOTICE TO SECURITY TRUSTEE OF INCOMING MANAGER
The Trustee or the Incoming Manager must give notice to the Security
Trustee (if any) as soon as practicable following the appointment of
the Incoming Manager.
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14. TRUSTEE'S POWERS
14.1 GENERAL POWER
Subject to the terms of this Deed, the Trustee has all of the rights,
powers and discretions over and in respect of the Assets of the Funds
which it could exercise if it were the absolute and beneficial owner of
such Assets.
14.2 SPECIFIC POWERS
The Trustee has the following powers:
(a) (AUTHORISED INVESTMENTS) to make, purchase, acquire, dispose
of or otherwise deal with any Authorised Investment;
(b) (ENFORCEMENT OF RIGHTS) to exercise or enforce its rights
under or in respect of any of the Assets of any Fund;
(c) (FEES AND EXPENSES) to pay all Expenses of a Fund;
(d) (ADVISERS) to engage, and to incur reasonable expenses in
relation to, any valuers, solicitors, barristers, accountants,
surveyors, property advisers, real estate agents, contractors,
qualified advisers, and such other persons as may be
necessary, usual or desirable for the purpose of enabling the
Trustee to be fully and properly advised and informed, in
order that it may properly exercise its powers and perform its
obligations under this Deed;
(e) (PROCEEDINGS) to institute, prosecute, defend, settle and
compromise legal or administrative proceedings in respect of
the Assets of any Fund;
(f) (WAIVERS) to give any waiver, time or indulgence to any person
on such terms as it may in its discretion determine;
(g) (BONDS) to borrow money by the issue of Bonds as provided in
this Deed;
(h) (OTHER BORROWINGS) to otherwise borrow or raise money or
procure financial accommodation;
(i) (TRANSACTION DOCUMENTS) to enter into and perform its
obligations under any Transaction Document;
(j) (INSURANCE) to insure any Asset;
(k) (ATTEND MEETINGS) to attend and vote at meetings; and
(l) (INCIDENTAL POWERS) to do all such things which the Trustee
reasonably considers incidental to any of the previous powers
or necessary or convenient to be done for or in connection
with any Fund or the Trustee's functions under this Deed.
Each of the above powers is a separate and independent power. None of
them limits the others, or any other power of the Trustee under this
Deed.
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14.3 DELEGATION TO RELATED BODIES CORPORATE
The Trustee may, with the prior written consent of the Trust Manager
from time to time by instrument in writing delegate to any Related Body
Corporate of the Trustee which is a trustee company or trustee
corporation for the purposes of any of the following:
(a) the Trustee Companies Act 1964 (New South Wales);
(b) the Trustee Companies Act 1984 (Victoria);
(c) the Trustee Companies Act 1968 (Queensland);
(d) the Trustee Companies Act 1988 (South Australia);
(e) the Trustee Companies Act 1953 (Tasmania);
(f) the Trustee Companies Ordinance 1947 (Australian Capital
Territory); or
(g) the Trustee Companies Act 1987 (Western Australia),
the exercise of its powers and the performance of its obligations under
this Deed.
14.4 TRUSTEE'S POWER TO DELEGATE; APPOINT ATTORNEYS AND AGENTS
The Trustee may, in performing its obligations under this Deed:
(a) delegate to any of its officers and employees all or any of
the powers, authorities and discretions conferred on the
Trustee by this Deed;
(b) by power of attorney:
(i) appoint any person to be its attorney or agent for
such purpose and with such powers, authorities and
discretions (not exceeding those vested in the
Trustee) as the Trustee thinks fit with or without
power to sub-delegate, and also to authorise the
issue in the name of the Trustee of documents bearing
facsimile signatures of the Trustee or of the
attorney or agent either with or without proper
manuscript signatures of their officers thereon; and
(ii) insert such provisions for the protection and
convenience of those dealing with any such attorney
or agent as the Trust Manager may think fit; and
(c) appoint by writing or otherwise any person to be agent or
sub-agent of the Trustee as the Trustee may think necessary or
proper for such purposes and with such power, authorities and
discretions (not exceeding those vested in the Trustee) as the
Trustee thinks fit and to supersede or suspend any such agent
or sub-agent for such cause or reason as the Trustee may in
its sole discretion think sufficient with or without assigning
any cause or reason and either absolutely or for such time as
it may think proper.
14.5 TRUSTEE LIABLE FOR DELEGATES
The Trustee is, notwithstanding any delegation under clause 14.3 or
14.4:
(a) subject to clause 14.7, liable for any act or omission of any
such delegate as if any such act or omission were its own; and
(b) responsible for payment of the remuneration, fees and expenses
of any person appointed under this clause 14.
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14.6 DELEGABLE AND NON-DELEGABLE DUTIES OF TRUSTEE
The Trustee must not delegate:
(a) the receipt and payment of money (otherwise than in accordance
with the Transaction Documents, or in the case of the purchase
price, sale proceeds or other moneys payable or receivable in
respect of Authorised Investments to a solicitor, stockbroker
or real estate agent); or
(b) the exercise of any right of enforcement under a Mortgage or
Ancillary Document, otherwise than to the Master Servicer
under the Master Origination and Servicing Agreement.
14.7 TRUSTEE NOT LIABLE FOR THIRD PARTIES
Except as expressly provided in any Transaction Document, no failure by
the Trustee to comply with its obligations under any Transaction
Document will be considered to be the neglect, default or breach of
duty of the Trustee to the extent that that failure was caused or
contributed to by any other party to that Transaction Document (having
regard to the powers and duties conferred on the Trustee by this Deed).
15. TRUSTEE'S COVENANTS
15.1 GENERAL
The covenants in this clause 15 are for the benefit of the Trust
Manager, each Beneficiary and each Bondholder.
15.2 TO ACT CONTINUOUSLY AS TRUSTEE
The Trustee must act continuously as trustee of each Fund until the
earlier of:
(a) the Vesting Date of the Fund; and
(b) the date on which Trustee retires or is removed from office,
in either case, in accordance with this Deed.
15.3 TO ACT HONESTLY, DILIGENTLY AND PRUDENTLY
The Trustee must:
(a) act at all times in the best interests of the Beneficiaries
and the Bondholders of each Fund;
(b) act honestly and in good faith in the performance of its
duties and in the exercise of its discretions hereunder; and
(c) exercise such diligence and prudence as a prudent man of
business would exercise in performing its functions and in
exercising its powers and discretions and performing its
obligations under this Deed, having regard to the interests of
the Beneficiaries and the Bondholders.
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15.4 NO DISPOSITIONS OF ASSETS
Except as provided in the Transaction Documents, the Trustee must not
sell, mortgage, charge or otherwise encumber or part with possession of
any Asset.
15.5 FORWARD NOTICES ETC. TO TRUST MANAGER
The Trustee must promptly forward to the Trust Manager all notices,
reports, circulars and other documents received by it or on its behalf
as trustee of a Fund.
15.6 TRUSTEE WILL IMPLEMENT TRUST MANAGER'S DIRECTIONS
Subject to this Deed and any other Transaction Document to which it is
a party, the Trustee must act upon all directions given to it by the
Trust Manager in accordance with this Deed.
15.7 CUSTODIAN
Unless otherwise required by the terms of any Security Trust Deed, the
Trustee must keep in safe custody all documents of title to or
evidencing Assets. The Trustee may comply with this obligation by
holding Assets in any clearing or custody system approved by the Trust
Manager and (if required) the relevant Security Trustee (if any).
15.8 PERFORM TRANSACTION DOCUMENTS
The Trustee must comply with its obligations under all Transaction
Documents to which it is a party.
16. TRUSTEE'S FEES AND EXPENSES
16.1 TRUSTEE'S FEE
The Trustee shall be entitled to deduct from each Fund such fee as is
agreed in writing from time to time between the Trustee and the Trust
Manager. The fees payable to the Trustee in respect of each Fund must
be determined on or before the first Issue Date for that Fund, and
shall apply until the Vesting Date of that Fund.
16.2 MANAGER'S FEE
The Manager shall be entitled to be paid in respect of the performance
of its duties as Trust Manager in relation to each Fund such fees as
may from time to time be agreed between the Trustee, the Trust Manager,
the relevant Security Trustee (if there is a Security Trust Deed for
that Fund) and the relevant Designated Rating Agency (if that Fund is a
Rated Fund).
17. RETIREMENT OF TRUSTEE
17.1 MANDATORY RETIREMENT
(a) If:
(i) an Event of Insolvency has occurred in relation to
the Trustee;
(ii) a Trustee's Default has occurred and is continuing
(except for a Trustee's Default constituted by a
failure by the Trustee to pay any amount which it
would, but for
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clause 25.9 or any corresponding provision of any
Transaction Document, have been liable to pay);
(iii) there is a change in the effective control of the
Trustee; or
(iv) the Trustee rejects a Fund Creation Notice in
accordance with clause 3.3,
the Trust Manager may, subject to paragraph (b), by notice in
writing to the Trustee require the Trustee to retire as
trustee of the Funds within such period as the Trust Manager
may specify in the notice. The Trustee must so retire within
the period specified.
(b) The Trust Manager may only give a notice pursuant to paragraph
(a)(iv) above if it has been directed to do so by an
Extraordinary Resolution of Bondholders.
17.2 TRUST MANAGER MAY REMOVE TRUSTEE
If the Trustee does not retire within the period specified in a notice
given under clause 17.1 the Trust Manager may by deed poll remove the
Trustee from office as trustee of the Funds.
17.3 TRUST MANAGER APPOINTS REPLACEMENT
On the retirement or removal of the Trustee under clause 17.1 or 17.2,
the Trust Manager must as soon as reasonably practicable appoint some
other statutory trustee to be the Trustee of the Funds. Until the
appointment is completed the Trust Manager must act as Trustee.
17.4 VOLUNTARY RETIREMENT
The Trustee may only voluntarily retire as trustee of the Funds if:
(a) the Trustee gives to the Trust Manager not less than 3 months'
(or such other period as the Trust Manager may agree) written
notice of its intention to do so; and
(b) the Trustee selects as the new Trustee of the Funds a
statutory trustee whose identity is acceptable to the Trust
Manager (acting reasonably) and which enters into the
documents referred to in clause 17.7.
17.5 FUNDS TO BE VESTED IN NEW TRUSTEE
Upon retiring or being removed from office, the Trustee (the OUTGOING
TRUSTEE) must execute all documents and do all things necessary to vest
the Funds or cause them to be vested, in the person appointed as the
successor Trustee (the INCOMING TRUSTEE).
17.6 RELEASE OF OUTGOING TRUSTEE
Upon retirement or removal, the Outgoing Trustee shall have no further
obligations under this Deed, but retirement or removal will not affect
any of the rights, obligations or liabilities of the Outgoing Trustee
accrued or arising before retirement or removal.
17.7 INCOMING TRUSTEE TO EXECUTE DEED
The Incoming Trustee must execute all documents as the Trust Manager
requires to:
(a) assume with effect from the date its appointment becomes
effective, all of the rights, powers, discretions and
obligations of the Trustee under this Deed and the Transaction
Documents to which the Outgoing Trustee is or was a party or
of which it had the benefit,
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as if the Incoming Trustee had originally been a party to, or
had had the benefit of this Deed and any such Transaction
Document as the Trustee; and
(b) indemnify the Outgoing Trustee for all liabilities of the
Outgoing Trustee under or in respect of the Bonds issued by
the Outgoing Trustee which mature on or after the date of the
retirement or removal of the Outgoing Trustee, and for all
other liabilities and expenses incurred by the Outgoing
Trustee for which it is entitled to be indemnified out of the
Funds and which have not been recouped by it, provided that
the liability of the Incoming Trustee under such indemnity
shall be limited to the same extent provided for in clause
25.9 and any payment shall rank in the same priority pursuant
to clause 25.9 as the corresponding liability for which the
Outgoing Trustee claims such indemnification.
17.8 TRUST MANAGER AND OUTGOING TRUSTEE TO SETTLE AMOUNTS PAYABLE
The Trust Manager may:
(a) settle with the Outgoing Trustee the amount of any sums
payable by the Outgoing Trustee to the Trust Manager or the
Incoming Trustee, or by the Trust Manager to the Outgoing
Trustee under this Deed; and
(b) give or accept from the Outgoing Trustee a discharge in
respect thereof.
Any such settlement or discharge shall (except in the case of any
fraud, negligence or wilful default on the part of the Outgoing Trustee
or its officers, employees, agents and delegates) be conclusive and
binding upon all persons.
17.9 OUTGOING TRUSTEE TO RETAIN LIEN
Notwithstanding the retirement or removal of the Outgoing Trustee and
the indemnity in favour of the Outgoing Trustee by the Incoming Trustee
as contemplated by clause 17.7, the Outgoing Trustee will retain a lien
over each Fund to meet claims of any Creditors of the Outgoing Trustee
as trustee of the Fund, to the extent that the claims of those
Creditors are not properly and duly satisfied by the Incoming Trustee.
17.10 DELIVERY OF DOCUMENTS
The Outgoing Trustee must immediately upon termination of its
appointment becoming effective deliver to the Incoming Trustee (or at
its direction) the Data Base and all other books, documents, records
and property relating to the Funds under its control. The Outgoing
Trustee is entitled to take, and keep copies of such books, documents
and records. Each of the Trust Manager and the Incoming Trustee must
produce the originals of such books, documents and records in its
possession upon the giving of reasonable written notice by the Outgoing
Trustee.
17.11 NOTICE TO SECURITY TRUSTEE OF NEW TRUSTEE
The Incoming Trustee or the Trust Manager must give notice to the
Security Trustee (if any) as soon as practicable following the
appointment of the Incoming Trustee.
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18. TRUST ACCOUNTS
18.1 OPENING OF TRUST ACCOUNTS
The Trustee:
(a) must, as directed by the Trust Manager, open a separate
account with a Bank in respect of each Fund. Each such account
must:
(i) be opened in the name of the Trustee;
(ii) bear a designation indicating the Fund to which it
relates; and
(iii) in the case of a Rated Fund, be maintained with a
Bank whose debt obligations are rated at all relevant
times by the Designated Rating Agency, not lower than
the Designated Rating; and
(b) may open such additional accounts with a Bank in respect of a
Fund as the Trust Manager may direct.
18.2 LOCATiON OF TRUST ACCOUNTS
(a) Unless otherwise directed in writing by the Trust Manager, the
principal Trust Account of each Fund must be opened and
maintained at a branch of a Bank in New South Wales.
(b) If directed to do so by the Trust Manager, the Trustee must
open Trust Accounts with a branch of a Bank outside New South
Wales provided that the Trustee enters into arrangements with
the relevant Bank so that as soon as practicable after the
receipt of moneys to the credit of any such account, such
moneys are to be transferred to the credit of the principal
Trust Account of the relevant Fund.
18.3 AUTHORISED SIGNATORIES
The Trustee must ensure that the only authorised signatories for any
Trust Account are officers or employees of the Trustee.
18.4 BANK STATEMENTS AND ACCOUNT INFORMATION
(a) The Trustee must give to the Trust Manager (and any other
person from time to time specified by the Trust Manager):
(i) copies of all statements for a Trust Account promptly
following receipt of the same by the Trustee; and
(ii) such explanations and reconciliations as to any such
statements as may from time to time reasonably be
required by the Trust Manager (or such other person).
(b) The Trustee authorises the Trust Manager to obtain statements
and information in relation to each Trust Account direct from
the Bank at which it is held.
18.5 DEPOSITS
Subject to this Deed, the Trustee must pay into the Trust Account of a
Fund the following moneys:
(a) subject to clause 6.8(b) and (d), the Issue Proceeds of each
Issue by the Trustee as trustee of that Fund;
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(b) all proceeds of sale and other moneys received under or in
respect of the Authorised Investments of that Fund;
(c) all money received under or in respect of any Transaction
Documents entered into by the Trustee in its capacity as
trustee of that Fund; and
(d) all other moneys received by the Trustee in respect of that
Fund.
18.6 WITHDRAWALS
Subject to this Deed, the Trustee may withdraw funds from a Trust
Account and apply them in:
(a) settling or purchasing Authorised Investments in accordance
with this Deed and making payments required in connection with
the holding of Authorised Investments;
(b) making payments to the Bondholders, the Couponholders or the
Beneficiaries of that Fund;
(c) paying amounts payable by the Trustee under any Transaction
Documents entered into by the Trustee in its capacity as
trustee of that Fund; and
(d) paying Expenses of that Fund.
18.7 CENTRAL CLEARING ACCOUNT
The Trustee, as trustee of a number of Funds, may maintain an account
with a Bank as a clearing account for the receipt of money comprising
Assets of those Funds generally, provided that as soon as practicable
after the receipt of money to the clearing account and the
identification of the Fund to which the money relates, the Trustee must
ensure that the Bank credits that money to the Trust Account for that
Fund. The Trustee may mix or co-mingle the Assets of one Fund with the
Assets of another Fund in accordance with this clause.
19. AUDITORS
19.1 APPOINTMENT OF AUDITOR
The Trustee must appoint an auditor of each Fund within one month of
the creation of that Fund pursuant to this Deed. The auditor must be a
firm of chartered accountants some of whose members are Registered
Company Auditors.
19.2 REMOVAL AND RETIREMENT OF AUDITOR
(a) The Trustee may from time to time remove an Auditor.
(b) An Auditor may retire at any time upon giving one months'
written notice (or such shorter period as the Trustee may
agree) to the Trustee of its intention to so retire.
19.3 APPOINTMENT OF REPLACEMENT AUDITOR
Any vacancy in the office of an Auditor occurring under clause 19.2
must be filled by the Trustee appointing as auditor a firm of chartered
accountants some of whose members are Registered Company Auditors.
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19.4 AUDITOR MAY HAVE OTHER OFFICES
An Auditor may also be the auditor of the Trustee, the Trust Manager, a
Related Body Corporate of the Trustee or the Trust Manager or of any
other Fund but a member of the firm appointed as an Auditor may not be
an officer, a partner of an officer or an employee of the Trustee, the
Trust Manager or a Related Body Corporate of the Trustee or the Trust
Manager.
20. RECORDS AND FINANCIAL STATEMENTS
(a) The Trust Manager must keep accounting and other records which
correctly record and explain the Assets and financial position
of each Fund, and all transactions entered into by the Trustee
as trustee of each Fund, in a manner which will enable the
preparation from time to time of true and fair Financial
Statements of each Fund and the auditing of those Financial
Statements.
(b) The Trust Manager must make all accounting records available
to the Trustee for inspection at all reasonable times without
charge.
(c) All Financial Statements must be prepared in accordance with
Approved Accounting Standards.
(d) The Trust Manager must deliver to the Trustee and the Security
Trustee not later than three months after the end of each
Financial Year of each Fund, the Financial Statements of that
Fund for that Financial Year, duly audited by the Auditor.
(e) The Trust Manager must ensure that the Financial Statements of
each Fund are audited by the Auditor as at the end of each
Financial Year.
(f) The Trust Manager must ensure that all necessary tax returns
for each Fund are prepared and lodged within any applicable
time limits.
21. PAYMENTS FROM FUNDS AND TERMINATION
21.1 PAYMENTS BY TRUSTEE
The Trustee, at the direction of the Trust Manager, must pay all
amounts received by it in respect of each Fund in accordance with the
Transaction Documents in relation to that Fund.
21.2 INCOME OF THE FUND
For each Financial Year in respect of a Fund the Trust Manager will
ascertain the following on behalf of the Trustee:
(a) the net income of that Fund in accordance with section 95(1)
of the Taxation Act (the TAX INCOME); and
(b) the net income of that Fund in accordance with conventional
accounting principles applicable to the administration of
trusts (the ACCOUNTING INCOME).
21.3 INCOME ENTITLEMENT
Notwithstanding anything to the contrary contained in this Deed:
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(a) (PRESENT ENTITLEMENT) the Residual Income Beneficiaries of
each Fund shall, as at the end of each Financial Year for that
Fund, have an absolute vested interest in, and be presently
entitled to, the income of that Fund for that Financial Year
in accordance with their respective Income Percentages; and
(b) (APPLICATION OF INCOME) unless the Trustee (in consultation
with the Trust Manager) otherwise determines, having regard to
any relevant taxation or other implications for the Trustee
(disregarding for these purposes any possible operation of
clause 21.4) for any Financial Year for that Fund, for the
purposes of paying, applying, distributing, setting aside or
allocating any income in respect of that Financial Year for
the benefit of the Residual Income Beneficiaries of that Fund
in accordance with the terms of this Deed, the income that is
to be so paid, applied, distributed, set aside or allocated
shall be whichever is the greater of the Tax Income or the
Accounting Income for that Financial Year.
21.4 DISTRIBUTION OF EXCESS TAX INCOME
For the avoidance of doubt, in the event that the Tax Income of a Fund
exceeds the Accounting Income of that Fund in any Financial Year then,
notwithstanding anything to the contrary in this Deed, the Trust
Manager must direct the Trustee to, and the Trustee shall, so far as
possible, ensure that such excess is allocated to the Residual Income
Beneficiaries of that Fund in accordance with their respective Income
Percentages and shall take such action as is reasonably necessary to
give effect to this clause.
21.5 PAYMENTS TO BENEFICIARIES
(a) (DISTRIBUTABLE INCOME DUE AS AT CLOSE OF FINANCIAL YEAR) The
income of a Fund for a Financial Year (to the extent not
previously distributed) shall, subject to clause 21.8,
constitute a debt due as at the end of that Financial Year by
the Trustee as trustee of the Fund to each Residual Income
Beneficiary of that Fund who is entitled to the income under
clause 21.3(a) and shall, subject to clause 21.8, be payable
under paragraph (b).
(b) (PAYMENT) Subject to clause 21.7, the Trustee may, on the
instructions of the Trust Manager, make interim distributions
of the income of a Fund to the Residual Income Beneficiaries
of that Fund in accordance with their respective Income
Percentages and shall as soon as practicable after the end of
a Financial Year pay the income of that Fund (to the extent
not previously distributed) to the Residual Income
Beneficiaries of that Fund in accordance with their respective
Income Percentages.
21.6 APPLICATION OF FUND INCOME
(a) If by the last day of any Financial Year for a Fund (the LAST
DAY) the Trustee has not effectively dealt with the whole of
the income of that Fund for that Financial Year by paying,
applying or distributing it, or by setting it aside, then the
income not so paid, applied, distributed or set aside shall be
deemed to have been irrevocably applied and set aside on the
Last Day by the Trustee on behalf of, and shall be held by the
Trustee on and from the Last Day upon trust absolutely for,
the Residual Income Beneficiaries of that Fund in accordance
with their respective Income Percentages (including, for these
purposes, the allocation of excess Tax Income (if any)
pursuant to clause 21.4).
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(b) If the Trustee fails to effectively allocate any excess to the
Residual Income Beneficiaries in accordance with clause 21.6,
then such excess shall vest or be deemed to be vested in those
Residual Income Beneficiaries in accordance with their
respective Income Percentages.
(c) For the purposes of this clause 21.6, references to income of
a Fund for any Financial Year shall be to the greater of the
Tax Income or the Accounting Income for that Fund for that
Financial Year.
21.7 APPLICATION OF RESIDUAL INCOME BENEFICIARIES' ENTITLEMENTS
(a) To the extent that there is an amount payable under clause
21.3 which is to be paid in priority to the amounts payable to
a Residual Income Beneficiary of a Fund, that Residual Income
Beneficiary directs the Trustee to meet that amount as an
application of that Residual Income Beneficiary's entitlement
to the income of that Fund.
(b) Notwithstanding paragraph (a) of this clause, once an amount
is paid out of a Fund to a Residual Income Beneficiary during
a Financial Year, that amount may not be recovered from that
Residual Income Beneficiary for any reason or by any person
except to the extent that the amount was paid in error.
21.8 TRUST MANAGER TO ENSURE COMPLIANCE BY TRUSTEE
Without limiting its other obligations under this Deed, the Trust
Manager, in exercising its powers and carrying out its duties in
accordance with this Deed, must, to the extent possible, ensure that
the Trustee complies with its obligations under this clause 21.
21.9 DISTRIBUTION ON VESTING DATE
The Trustee, at the direction of the Trust Manager, must as soon as
practicable following the Vesting Date for a Fund:
(a) sell or convert into cash:
(i) all of the Assets of the Fund; or
(ii) if the Vesting Date occurs following the giving by
the Residual Income Beneficiaries of that Fund of a
notice under clause 9.2 requiring transfer in specie,
and subject to the terms of any relevant Warehouse
Funding Agreement, so much of the assets of the
relevant Warehouse Fund as are necessary to enable it
to discharge in full, or make full provision for:
(A) all Taxes which are or may become payable in
respect of that Warehouse Fund;
(B) all Expenses incurred but not previously
paid of that Warehouse Fund;
(C) all other amounts which are or may become
payable by it to Creditors of that Fund; and
(D) all amounts in respect of which it is
entitled to be reimbursed or indemnified
under this Deed;
(b) apply the proceeds of sale or conversion in the manner and
order set out in clause 21.1; and
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(c) subject to the Fund Creation Notice and the Transaction
Documents in relation to that Fund, transfer the balance of
that Fund to the Residual Income Beneficiaries of that Fund in
accordance with their respective Income Percentages, either in
cash or, if the Vesting Date occurs following the giving of
notice by the Residual Income Beneficiaries under clause 9.2
and that notice requires the transfer in specie, in specie.
22. THE REGISTER
Intentionally blank.
23. MEETINGS OF BONDHOLDERS
The convening, holding of, and conduct of meetings of Bondholders, and
the exercise of voting rights and the passing of resolutions at those
meetings are governed by the provisions of the relevant Security Trust
Deed (if any).
24. PAYMENTS GENERALLY
24.1 PAYMENTS TO BENEFICIARIES
Any moneys payable by the Trustee to a Beneficiary under this Deed may
be paid by:
(a) a "not negotiable" cheque in favour of the Beneficiary
despatched by post to the address of the Beneficiary for the
purposes of clause 26.1; or
(b) at the option of the Beneficiary by direct transfer to a
designated bank account in Australia of the Beneficiary.
24.2 PAYMENTS TO BONDHOLDERS AND COUPONHOLDERS
Any moneys payable by the Trustee to a Bondholder or a Couponholder
under this Deed shall be made in accordance with the Bond Terms, the
relevant Security Trust Deed (if any) and the relevant Paying Agency
Agreement.
24.3 PAYMENTS GOOD DISCHARGE
Every payment made in accordance with clause 24.1 or 24.2 shall be in
full satisfaction of the moneys payable and shall be a good discharge
to the Trustee and to the Trust Manager. Neither the Trustee nor the
Trust Manager is responsible for any moneys which are not credited to
the bank account of a Beneficiary if the Bank at which the Trust
Account from which the payment is made is held has been instructed to
effect the direct transfer referred to in clause 24.1(b).
24.4 VALID RECEIPTS
The receipt of the Trustee for any moneys shall discharge the person
paying the same from all liability to make any further enquiry in
relation thereto. Every such receipt shall as to the moneys paid or
expressed to be received in such receipt, effectually discharge the
person paying such moneys from such liability or enquiry and from being
concerned to see to the application or being answerable or accountable
for any loss or misapplication of such moneys.
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25. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY GENERALLY
25.1 POWERS ADDITIONAL
The following provisions of this clause 25 are in addition to any
rights or powers conferred on the Trustee or the Trust Manager at law
or in equity. Each of them is to be construed separately and except
where expressly stated, none of them limits the others.
25.2 RELIANCE ON CERTIFICATES
Subject to clause 25.4, neither the Trustee nor the Trust Manager shall
incur any liability in respect of any action taken or thing suffered by
it in reliance upon any document (including, for example, any notice,
resolution, direction, consent, certificate, receipt or statement)
given to or served on it for the purposes of or pursuant to this Deed
which it reasonably believes to be genuine, and to be signed by persons
authorised to do so and having power to bind the person on whose behalf
the document is or purports to be given.
In preparing any such document each of the Trustee and the Trust
Manager is entitled to assume that each person under any Authorised
Investment, other Transaction Document or any other deed, agreement or
arrangement has performed or will perform their obligations thereunder
in full by the due date and otherwise in accordance with the terms
thereof, unless the Trustee or the Trust Manager has notice to the
contrary.
25.3 NO LIABILITY
If either the Trustee or the Trust Manager incurs any liability to any
person as a consequence of having relied, in accordance with clause
25.2, upon a document which was forged or does not bind the person on
whose behalf it was purportedly given, the Trustee or the Trust Manager
(as the case may be) is entitled to reimbursement for the amount of
such loss from the relevant Fund.
25.4 NOTICES FROM TRUSTEE AND TRUST MANAGER
Whenever any document or communication is to be given by the Trust
Manager or the Trustee to the other of them, the recipient may accept
as sufficient a document which it reasonably believes to be signed on
behalf of the giver by any two Authorised Signatories of the giver of
the notice. The recipient of the notice is not responsible for any loss
arising from any act, neglect, mistake or discrepancy of the giver of
the notice or any officer, employee, agent or delegate of the giver of
the notice in preparing any such document or in compiling, verifying or
calculating any matter or information contained in any such document,
whether or not an error in any such information, document, form or list
is reproduced by the recipient in any step taken by it under this Deed.
25.5 COMPLIANCE WITH LAWS
The Trustee and the Trust Manager shall not incur any liability to
anyone in respect of any failure to perform or to do any act or thing
which the Trustee or the Trust Manager is prohibited from doing by any
applicable law (or any ordinance, rule, regulation or by-law made
pursuant thereto) or by any order or judgment of any competent court or
other tribunal.
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25.6 RELIANCE ON EXPERTS
Each of the Trustee and the Trust Manager:
(a) may act upon the opinion or advice of, or information obtained
from the Trust Manager (in the case of the Trustee only), the
Trustee (in the case of the Trust Manager only) the Master
Servicer or any barristers, solicitors, bankers, accountants,
brokers, valuers and other professional advisers (whether
instructed by the Trustee, the Trust Manager or the Master
Servicer) believed by it in good faith to be expert and
properly informed in relation to the matters upon which they
are consulted; and
(b) is not liable for anything done or suffered by it in good
faith in reliance upon such opinion, advice or information.
25.7 POWERS, AUTHORITIES AND DISCRETIONS
Except as otherwise expressly provided in this Deed, neither the
Trustee nor the Trust Manager is liable for any loss (whether
consequential or otherwise), costs or damages resulting from the
exercise of (or failure to exercise) its rights, powers or discretions
or the performance of (or failure to perform) its obligations under
this Deed, except where such losses, costs or damages are caused by the
fraud, negligence or wilful default of the Trustee or the Trust Manager
(as the case may be).
25.8 LEGAL AND OTHER PROCEEDINGS
(a) (INDEMNITY FOR LEGAL COSTS) Subject to paragraph (b), the
Trustee and the Trust Manager are entitled to be indemnified
out of a Fund, and the Trustee may pay from the Fund all
reasonable legal costs and disbursements and all other cost,
disbursements, outgoings and expenses incurred by the Trustee
or the Trust Manager in connection with:
(i) properly enforcing or preparing for the enforcement
of, or properly preserving its rights under; and
(ii) the proper initiation, defence, carriage and
settlement of any action, suit, proceeding or dispute
in respect of,
this Deed or any other Transaction Document or otherwise under
or in respect of that Fund.
(b) Nothing in paragraph (a) affects:
(i) any obligation of the Trustee to restore the Assets
of any Fund because of a failure by the Trustee to
exercise in relation to the Fund the degree of care,
diligence and prudence required of a trustee or
because of some other neglect, default or breach of
duty by the Trustee, having regard to the powers and
duties conferred on the Trustee by this Deed; or
(ii) any remedy which the Trustee, any Bondholder, any
Couponholder or any Beneficiary may have against the
Trust Manager under any Transaction Document.
25.9 LIABILITY OF TRUSTEE UNDER TRANSACTION DOCUMENTS
(a) The Trustee has no personal liability in relation to any of
its obligations under or arising out of this Deed or any of
the Transaction Documents entered into in its capacity as
trustee of a Fund.
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(b) In relation to each such obligation, the liability of the
Trustee is limited to and does not extend beyond the Assets of
the relevant Fund as they stand at the time at which the
obligation is met or satisfied.
(c) The Trustee is not liable to meet or satisfy any such
obligation from its own assets (except the Trustee's
Indemnity) and each such obligation must be met or satisfied
from the relevant Fund or the Trustee's Indemnity.
(d) The preceding paragraphs apply notwithstanding the fact that
the liabilities of the Trustee in its capacity as the trustee
of a Fund may from time to time and at any time almost equal,
equal or exceed the value of the Assets of that Fund at the
relevant time.
(e) The previous paragraphs of this clause 25.9 do not apply to
the liability of the Trustee in relation to any obligation
which in any Transaction Document the Trustee expressly
assumes in its personal capacity.
(f) It is acknowledged by the Trustee that the Assets of each Fund
at any time will include the amount of any compensation found
by a Final Judgment (or admitted by the Trustee) to be payable
by the Trustee to restore that Fund because of a failure by
the Trustee to exercise in relation to the Fund the degree of
care, diligence and prudence required of a trustee or because
of some other neglect, default or breach of duty by the
Trustee having regard to the powers and duties conferred on
the Trustee by this Deed, in either case occurring before the
time in question and causing loss to the Fund quantified
before the time in question.
(g) For the purposes of this clause 25.9, FINAL JUDGMENT means a
judgment of a court of law in Australia against which there
can be no appeal or in relation to which the time to appeal
has expired.
25.10 TRUSTEE'S INDEMNITY NOT BE IMPAIRED
(a) The Trustee is indemnified out of the Assets of each Fund
against all liabilities, losses, costs and expenses incurred
by the Trustee in performing any of its duties or exercising
any of its powers in relation to that Fund pursuant to this
Deed or the relevant Transaction Documents.
(b) The indemnity given in paragraph (a) will not be voided and
will apply to permit payment of any liability of the Trustee
to Creditors of a Fund notwithstanding any failure by the
Trustee to exercise the degree of care, diligence and prudence
required of a trustee or neglect, default or breach of duty by
the Trustee having regard to the powers, authorities and
discretions conferred on the Trustee by this Deed, including
where the failure or the negligence, default or breach of duty
involved, on the part of the Trustee, dishonesty or any wilful
act or omission known by the Trustee to be a breach of trust.
(c) If the Trustee fails to exercise the degree of care, diligence
and prudence required of a trustee or there occurs any other
neglect, default or breach of duty by the Trustee having
regard to the powers, authorities and discretions conferred on
the Trustee by this Deed:
(i) the Trustee may not receive, hold the proceeds or
otherwise have the benefit of the indemnity given in
paragraph (a) otherwise than on behalf of and on
trust for the Creditors of the relevant Fund; and
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(ii) the Trustee may only be indemnified to the extent
necessary to allow it to discharge its liabilities to
those Creditors.
(d) Nothing in this clause 25.10 is to be taken:
(i) as imposing any restriction upon any right which any
person may have to bring an action against the
Trustee for loss or damage suffered by reason of the
Trustee's failure to exercise the degree of care,
diligence and prudence required of a trustee or any
other neglect, default or breach of duty by the
Trustee having regard to the powers, authorities and
discretions conferred on the Trustee by this Deed; or
(ii) as conferring upon the Trustee a right to be
indemnified out of the Fund against any loss the
Trustee (in its personal capacity) suffers in
consequence of an action brought against it by reason
of the Trustee's failure to exercise the degree of
care, diligence and prudence required of a trustee or
any other neglect, default or breach of duty by the
Trustee having regard to the powers, authorities and
discretions conferred on the Trustee by this Deed.
25.11 TRUST MANAGER'S RIGHT OF INDEMNITY
The Trust Manager is entitled to be indemnified out of the relevant
Fund in respect of any liability, cost or expense properly incurred by
it in its capacity as manager of the relevant Fund or so incurred by
any of its delegates, sub-delegates or agents.
25.12 CONFLICTS
Without limiting clause 15.3, nothing in this Deed prevents the
Trustee, the Trust Manager or any Related Body Corporate or Associate
(as defined in Part 1.2, Division 2 of the Corporations Act) of either
of them (all being included in this clause in references to the Trustee
and the Trust Manager) from:
(a) subscribing for, buying or selling Bonds;
(b) in the ordinary course of its business contracting or acting
in any capacity as representative or agent or otherwise or
entering into any financial, banking, development, insurance,
agency, broking or other transaction with the Trustee as
trustee of any Fund or any other trust, or in its personal
capacity;
(c) providing any advice or services to the Trustee as trustee of
any Fund; or
(d) being interested in any such contract or transaction.
The Trustee and the Trust Manager shall not be in any way liable to
account to any Bondholder, any Couponholder, any Beneficiary or any
other person for any profits or benefits made or derived from or in
connection with any such transaction.
25.13 CONSUMER CREDIT CODE
(a) The Trust Manager and the Trustee agree that if, and for so
long as, the Trust Manager and the Master Servicer are the
same person:
(i) without limiting any other provision of this Deed and
subject to paragraph (b) below, the Trust Manager
shall indemnify the Trustee, free of any set-off or
counterclaim, against all Penalty Payments which the
Trustee is required to pay
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personally or in its capacity as trustee of a Fund
and arising in connection with the performance of its
duties or exercise of its powers under this Deed in
relation to that Fund;
(ii) the Trust Manager shall be the nominated credit
provider for the purposes of section 75 of the
Consumer Credit Regulations (Western Australia) for
the purposes of all Regulated Loans and Regulated
Mortgages; and
(iii) the Trust Manager must, subject to paragraph (b), pay
to the Trustee on demand any amount which the Trustee
may recover from the Trust Manager under section 75
of the Consumer Credit Regulations (Western
Australia) by virtue of the Trust Manager being the
nominated credit provider.
(b) If the Trustee makes a Penalty Payment, the Trustee shall have
no right to recover the amount of that Penalty Payment from
the Trust Manager if that Penalty Payment was made as a result
of:
(i) the Trustee's failure to exercise the degree of care,
diligence and prudence required of a trustee; or
(ii) any other neglect, default or breach of duty by the
Trustee,
in either case, having regard to the powers, authorities and
discretions conferred on the Trustee by this Deed.
(c) For the avoidance of doubt, but subject to paragraph (d),
clause 25.10 applies to a Penalty Payment.
(d) If the Trustee has made, is obliged to make or intends to make
a Penalty Payment, and is, or claims to be, entitled to
recover the amount of that Penalty Payment from the Trust
Manager under paragraph (a), the Trustee may not exercise the
right of indemnity conferred by clause 25.10 in respect of
that Penalty Payment unless:
(i) it has made demand on the Trust Manager for recovery
of that Penalty Payment under paragraph (a); and
(ii) the Trust Manager has failed to pay the amount of
that Penalty Payment to the Trustee within 10
Business Days after that demand.
26. NOTICES
26.1 NOTICES GENERALLY
Subject to clause 26.2, every Notice:
(a) must be in writing in order to be valid;
(b) must be deemed to have been duly served, given or made in
relation to a party if it is:
(i) delivered to the address of that party set out in
paragraph (e) (or at such other address as may be
notified in writing by that party to the other party
from time to time); or
(ii) posted by prepaid registered post to such address; or
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(iii) sent by fax to the fax number set out in
sub-paragraph (e) (or to such other number as may be
notified in writing by that party to the other party
from time to time);
(c) shall be sufficient if executed by the party giving, serving
or making the same or on its behalf by any two Authorised
Signatories of such party;
(d) shall be deemed to be given, served or made:
(i) (in the case of prepaid registered post) within 2
Business Days after posting;
(ii) (in the case of fax) on receipt of a transmission
report confirming successful transmission; and
(iii) (in the case of delivery by hand) on delivery;
(e) the addresses and facsimile numbers for service of Notices as
referred to in sub-paragraph (b) of this clause are as
follows:
THE TRUSTEE
35 Clarence Street
SYDNEY NSW 2000
By fax: (02) 8295 8675
Attention: Senior Manager, Securitisation
THE TRUST MANAGER
Level 6
12 Castlereagh Street
SYDNEY NSW 2000
By fax: (02) 9225 0864
Attention: Manager, Operations
A BENEFICIARY
The address or fax number set out in the relevant Beneficiary Register
or as otherwise notified by the Beneficiary to the Trust Manager from
time to time.
26.2 NOTICES TO BONDHOLDERS
A Notice by the Trustee or the Trust Manager to Bondholders or
Couponholders shall be deemed to be duly given or made if given or made
in accordance with the Bond Terms and the Security Trust Deed (if any).
26.3 NOTICES TO DESIGNATED RATING AGENCIES
The Trust Manager must provide a copy of each Notice to Bondholders in
a Rated Fund to each Designated Rating Agency for that Fund as from
time to time agreed in writing with that Rating Agency.
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27. AMENDMENT
27.1 AMENDMENT BY TRUSTEE
Subject to clause 27.2, the Trustee and the Trust Manager may by way of
supplemental deed vary or amend this Deed (including this clause) in
respect of any one or more Funds or any Supplementary Bond Terms so
long as such variation or amendment 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 Trustee necessary to comply with the
provisions of any statute or regulation or with the
requirements of any Government Body;
(c) in the opinion of the Trustee, is:
(i) required by; or
(ii) a consequence of; or
(iii) consistent with; or
(iv) appropriate, expedient or desirable for any reason as
a consequence of,
the introduction or imposition of, or any amendment or
alteration to, any statute, regulation or requirement of any
Governmental Body or any decision by any court (including,
without limitation, the introduction or imposition of any Tax,
any amendment to any regulation imposing a Tax, the issue of
or amendment to any ruling by the Commissioner or Deputy
Commissioner of Taxation or the issue of any government
announcement or statement or the handing down of any decision
by any court that has or may have the effect of altering the
manner or basis of taxation of trusts generally or of trusts
similar to any of the Funds);
(d) to apply only in respect of a Fund not yet constituted;
(e) necessary to ensure that this Deed is not required to be
registered with or approved by any Government Body in any
Australian Jurisdiction;
(f) in the reasonable opinion of the Trustee not prejudicial to
the interests of the Bondholders or Beneficiaries in respect
of any Fund previously constituted (in the case of a variation
or amendment affecting that Fund); or
(g) approved by an Extraordinary Resolution of Bondholders and by
the Beneficiaries of any Fund to which the alteration,
addition or modification applies.
27.2 CERTAIN PROVISIONS NOT TO BE VARIED
The Trustee may not vary or amend clause 21, clause 27.1 or this clause
27.2 insofar as they relate to Funds previously constituted (except
pursuant to paragraphs (a), (b) or (c) of clause 27.1), without the
unanimous consent of all Bondholders and all Beneficiaries of that
Fund.
27.3 COPY OF AMENDMENTS TO BONDHOLDERS
The Trust Manager must upon request by a Bondholder, provide the
Bondholder with a copy of the supplemental deed effecting any variation
or amendment to this Deed.
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27.4 COPY OF AMENDMENTS IN ADVANCE TO DESIGNATED RATING AGENCIES
The Trust Manager must provide a copy of a proposed variation or
amendment to this Deed insofar as it applies to a Rated Fund to each
Designated Rating Agency for the Rated Fund at least 5 Business Days
(or such other period as may from time to time be agreed by the Trust
Manager with the Designated Rating Agency) prior to the same taking
effect.
28. MISCELLANEOUS
28.1 DATA BASE CONFIDENTIAL
Each of the Trustee and the Trust Manager must keep the Data Base
confidential in so far as the same is held by it and shall not disclose
the same to any other person (including any of its Related Bodies
Corporate) except:
(a) as permitted or required by any Transaction Document or
necessary for any party to a Transaction Document (including
the Trustee, the Trust Manager and the Master Servicer) to
perform its respective duties and obligations thereunder;
(b) as required for the enforcement or attempted enforcement of
any Transaction Document;
(c) to any professional adviser, delegate, agent or sub-agent of
the Trustee, the Trust Manager or the Master Servicer under a
power contained in a Transaction Document;
(d) to the officers, employees and directors of the Trustee, the
Trust Manager or the Master Servicer made in the performance
by the Trustee, the Trust Manager or the Master Servicer
respectively of its duties and obligations under the
Transaction Documents or at law;
(e) to the Auditor of any Fund or as required by the Auditor of
any Fund;
(f) as required by law or by any Government Body; or
(g) in the case of a Rated Fund, to the Designated Rating Agency
for that Fund.
28.2 WAIVERS, REMEDIES CUMULATIVE
Save as provided in this Deed, no failure to exercise and no delay in
exercising on the part of the Trustee or the Trust Manager any right,
power or privilege under this Deed shall operate as a waiver, nor shall
any single or partial exercise of any right, power or privilege
preclude any other or further exercise of such right, power or
privilege, or the exercise of any other right, power or privilege.
28.3 GOVERNING LAW
This Deed shall be governed by and construed in accordance with the
laws of the State of New South Wales.
28.4 JURISDICTION
(a) Each of the Trustee, the Trust Manager, the Beneficiaries, the
Bondholders and the Couponholders 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.
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(b) Each of the Trustee, the Trust Manager, the Beneficiaries, the
Bondholders and the Couponholders 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 proceeding has been
brought in an inconvenient forum.
28.5 SEVERABILITY OF PROVISIONS
In the event that any provision of this Deed is prohibited or
unenforceable in any jurisdiction such provision shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Deed or affecting the validity or enforceability of such provision in
any other jurisdiction.
28.6 COUNTERPARTS
This Deed may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the
same instrument.
28.7 INSPECTION OF THIS DEED
The Beneficiaries and the Bondholders may inspect a copy of this Deed
at the office of the Trust Manager during normal business hours, but
shall not be entitled to a copy thereof.
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SCHEDULE 1
FORM OF FUND CREATION NOTICE
[Letterhead of Trust Manager]
Permanent Custodians Limited
35 Clarence Street
SYDNEY NSW 2000
Attention: Senior Manager, Securitisation
Dear Sirs
ARMS II PROGRAM: FUND CREATION NOTICE
We refer to the Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995 (as
amended) made between Permanent Custodians Limited as Trustee and Australian
Mortgage Securities Ltd as Trust Manager.
Words and expressions defined in the Master Trust Deed have the same meaning
when used in this Fund Creation Notice, unless otherwise defined herein.
In accordance with clause 3.2 of the Master Trust Deed, we give you this Fund
Creation Notice for the following Fund (the FUND):
(a) the Fund is designated a Euro Fund;
(b) the Fund is to be a [Warehouse] [Issuing]* Fund;
(c) the Initial Amount for the Fund is $ ;
(d) the initial Beneficiaries of the Fund is/are [insert details];
(e) the entitlement of the Beneficiary/Beneficiaries is/are: [the entire
beneficial interest in the Fund][insert other details];
(f) the name of the Fund is [ ];
(g) the Income Distribution Dates for the Fund are as follows:
[insert details];
(h) the Fund is [not]* to be a Rated Fund;
(i) the Designated Rating Agency for the Fund is [ ]; and
(j) the Designated Rating for the Fund is [insert details]*.
We enclose our cheque in your favour in settlement upon you of the Initial
Amount.
Yours faithfully
------------------------------------
Authorised Signatory
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AUSTRALIAN MORTGAGE SECURITIES LTD
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SCHEDULE 2
FORM OF ISSUE NOTICE
[Letterhead of Trust Manager]
Permanent Custodians Limited
35 Clarence Street
SYDNEY NSW 2000
Attention: Senior Manager, Securitisation
Dear Sirs
ARMS II PROGRAM : ISSUE NOTICE
We refer to the Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995 (as
amended) made between Permanent Custodians Limited as Trustee and Australian
Mortgage Securities Ltd as Trust Manager.
Words and expressions defined in the Master Trust Deed have the same meaning
when used in this Issue Notice, unless otherwise defined herein.
1. In accordance with clauses 5.1 and 6.1 of the Master Trust Deed, we
require you, as Trustee of the [insert details of Issuing Fund] to
issue the following Bonds:
(a) the name or designation to be ascribed to the Bonds is [insert
details];
(b) the aggregate Face Value of the Bonds to be issued is $[ ];
(c) the denominations in which the Bonds are to be issued is
$[ ] per Bond;
(d) the Issue Date is [insert details];
(e) the following Transaction Documents are required to be entered
into in connection with the issue of the Bonds:
[insert details of Security Trust Deed, all Enhancements, all
Currency Swaps and any other Transaction Documents to be
entered into by Trustee]
[Copies of [drafts of] those Transaction Documents are
enclosed.]
(f) the Bonds will comprise a single Series all being totally
fungible] [the Bonds will comprise [insert number] Series
having principal terms as follows:
[insert details as per (b)-(e) above for each Series]]; and
(g) the Portfolio to be acquired with the Issue Proceeds is [not]
comprised in the Assets of a Warehouse Fund, [, being the
[ ] Fund]. [The person for whose benefit the Issue
Proceeds of the Bonds are to be held pursuant to clause 6.8(a)
of the Master Trust Deed is [insert details]].
2. We attach:
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(a) details of the Portfolio which are to be acquired by you, in
your capacity as Trustee of the Issuing Fund, with the Issue
Proceeds;
(b) the Supplementary Bond Terms applicable to the Bonds; and]
(c) a letter/certificate from the Designated Rating Agency
addressed to you confirming that the Bonds [in each Series]
will be rated not lower than the Designated Rating [for that
Series]; [and that Bonds previously issued by you as Trustee
of the Issuing Fund will not be downgraded to a credit rating
lower than the Designated Rating as a result of the issue of
the Bonds specified in this Issue Notice].
3. The Supplementary Bond Terms applicable to the Bonds are the terms and
condition set out in [ ].
4. We certify that:
(a) the terms of the Master Trust Deed with respect to the
proposed Issue have been, and will on the Issue Date, continue
to be complied with; and
(b) assuming that all parties to all Transaction Documents entered
into by you as Trustee of the relevant Issuing Fund, and all
issuers of Authorised Investments from time to time comprised
in the Assets of the Issuing Fund comply in full with their
respective obligations under those Transaction Documents and
Authorised Investments, and having regard to:
(i) the terms of the Transaction Documents;
(ii) the terms of the Mortgages comprised in the
Portfolio;
(iii) the anticipated Expenses of the Issuing Fund; and
(iv) all other information available to us as at the date
of this notice,
you will, in your capacity as Trustee of the Issuing Fund,
have available to you sufficient funds to enable you to comply
with your obligations under those Transaction Documents.
Yours faithfully
------------------------------------
Authorised Signatory
AUSTRALIAN MORTGAGES SECURITIES LTD
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SCHEDULE 3
FORM OF PORTFOLIO COMPLIANCE CERTIFICATE
[Letterhead of Trust Manager]
Permanent Custodians Limited
35 Clarence Street
SYDNEY NSW 2000
Attention: Senior Manager, Securitisation
Dear Sirs
ARMS II PROGRAM : PORTFOLIO COMPLIANCE CERTIFICATE
We refer to:
(a) the Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995 (as
amended) made between Permanent Custodians Limited as Trustee and
Australian Mortgage Securities Ltd as Trust Manager; and
(b) the Issue Notice (the ISSUE NOTICE) given by us to you dated [ ]
requiring you to issue the Bonds referred to therein in your capacity
as Trustee of the [insert details of Issuing Fund].
Words and expressions defined in the Master Trust Deed have the same meaning
when used in this Portfolio Compliance Certificate, unless otherwise defined
herein.
We certify, with respect to each Mortgage comprised in the Portfolio specified
in the Issue Notice that:
1. on the date of its settlement, except as disclosed to you in writing
and approved or waived by you on or prior to settlement, all of the
representations and warranties made by us pursuant to clause 12.1 of
the Master Origination and Servicing Agreement were true and correct by
reference to the facts and circumstances then existing;
2. we are not aware of any fact, event or circumstance which would lead us
to believe that any of those representations and warranties, or any
other warranties, statements, certificates or other information
provided to us by the relevant Mortgagor, Approved Solicitor, Approved
Valuer or any other person prior to settlement of that mortgage were
incorrect, untrue or misleading in any material respect at the time
they were made;
3. we are not aware of any fact, event or circumstance which would cause
any of those representations and warranties to be untrue or incorrect
if repeated on the date of this Portfolio Compliance Certificate by
reference to the facts and circumstances now existing;
4. we are not aware of any circumstances relating to that Mortgage or the
relevant Property which could reasonably be expected to diminish, as at
the date of this Portfolio Compliance Certificate, the value or
marketability of the Property from that stated in the relevant
valuation;
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5. the Borrower in respect of each such Mortgage is not in arrears in the
payment of any periodic payments secured by that Mortgage, except to
the extent disclosed to and approved by the Designated Rating Agency
for the purposes of the letter or certificate from the Designated
Rating Agency attached to the Issue Notice;
6. we are not aware of any circumstances relating to that Mortgage, the
relevant Property, the relevant Mortgagor or any relevant Guarantor
which could reasonably be expected to cause a prudent investor to:
(a) regard the Mortgage as an unacceptable investment;
(b) expect the Mortgagor to default under the Mortgage; or
(c) diminish the value or marketability of the Property from that
stated in the relevant Valuation; and
7. we are not aware of the occurrence of any Event of Default in relation
to that Mortgage which has not been remedied to our satisfaction or
waived in accordance with the Master Origination and Servicing
Agreement.
The statements made by us above are based upon a review of the Database and the
records maintained by us with respect to the Portfolio under and in accordance
with the Master Trust Deed and the Master Origination and Servicing Agreement.
We have made no specific enquiry or investigation as to any of the matters
referred to in the statements made above.
Yours faithfully
------------------------------------
Authorised Signatory
AUSTRALIAN MORTGAGE SECURITIES LTD
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SCHEDULE 4
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SCHEDULE 5
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SCHEDULE 6
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SCHEDULE 7
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EXECUTED as a Deed.
SIGNED SEALED AND DELIVERED for PERMANENT
CUSTODIANS LIMITED by its attorney in the
presence of:
------------------------------------ ------------------------------------
Witness Signature Attorney Signature
------------------------------------ ------------------------------------
Print Name Print Name
SIGNED SEALED AND DELIVERED for AUSTRALIAN
MORTGAGE SECURITIES LIMITED by its attorney in
the presence of:
------------------------------------ ------------------------------------
Witness Signature Attorney Signature
------------------------------------ ------------------------------------
Print Name Print Name
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SCHEDULE 3
Amended and Restated
Master Trust Deed
Permanent Custodians Limited
Australian Securitisation Management Pty Limited
Australian Mortgage Securities Ltd
ARMS II Global Funds
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Tel 61 2 9230 4000
Fax 61 2 9230 5333
www.aar.com.au
(C) Copyright Allens Arthur Robinson 2004
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TABLE OF CONTENTS
[Download Table]
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Interpretation 2
1.3 Supplemental Deed 2
2. AMENDMENT 2
3. CONFIRMATION 3
4. GOVERNING LAW AND JURISDICTION 3
5. COUNTERPARTS 3
6. APPLIES TO ALL FUNDS 3
7. TRUSTEE'S CAPACITY 3
SCHEDULE 1 6
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 11
2. THE ARMS II FUNDS 12
2.1 Appointment of Trustee 12
2.2 Separate and Distinct Funds 12
3. THE FUNDS 13
3.1 Beneficial Interest in Funds 13
3.2 Fund Creation Notice 13
3.3 Creation of Additional Funds 13
3.4 Name of Funds 13
3.5 Duration of Funds 13
3.6 Beneficiary Register 13
3A. BENEFICIARIES OF DESIGNATED FUNDS 14
3A.1 Acknowledgement 14
3A.2 Residual Capital Unit 14
3A.3 Residual Income Unit 14
4. LIMITS ON RIGHTS OF BONDHOLDERS AND BENEFICIARIES 15
4.1 General Limits 15
4.2 Further Limits on Interests of Beneficiaries 15
4.3 Ranking of Interest of Beneficiaries 15
4.4 Resolution of Conflicts 16
4.5 No Liability of Bondholders or Beneficiaries 16
5. BONDS 16
5.1 Nature of Bonds 16
5.2 Trustee's Covenant to Bondholders 16
5.3 Minimum Face Value of Bonds 17
5.4 Bonds Not Invalid if Issued in Breach 17
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5.5 Location of Bonds 17
6. PROCEDURE FOR ISSUE OF BONDS 17
6.1 Form of Issue Notice 17
6.2 Notice to Warehouse Beneficiary 18
6.3 Supplementary Bond Terms 18
6.4 Amendment 19
6.5 Acceptance of Issue Notice 19
6.6 Non-Complying Issue Notice 19
6.7 Issue of Bonds and Transfer of Benefit of Mortgages 19
6.8 Acquisition of Portfolio 20
6.9 Amount of Bonds Created for an Issuing Fund 20
6.10 Action following Issue 20
6.11 No Liability for Insufficient Moneys 21
6.12 Recording of Transfer and Further Assurance 21
6.13 Subsequent Adjustment 21
6.14 No Limit on Bonds 22
6.15 Compliance with Laws 22
7. TRANSFERS OF BONDS 22
7.1 No Restrictions on Transfer of Bonds 22
7.2 Selling Restriction 22
7.3 Form of Transfer 22
7.4 Registration of Transferee as Bondholder 23
7.5 Registrar Entitled to Refuse to Register Transfer and Acceptance 23
7.6 Notice of Refusal to Register 23
7.7 No Fee for Registration of a Bond Transfer 23
7.8 Taking Effect of Bond Transfers 23
7.9 Transmission of Entitlements 23
7.10 Marking of Transfers 24
7.11 Specimen Signatures 24
8. REGISTRATION CONFIRMATIONS 24
8.1 Issue of Registration Confirmation 24
8.2 No Certificate of Title 24
8.3 Joint Holdings 24
9. WAREHOUSE FUNDING 24
9.1 Transfer of Warehouse Assets to Another Fund 24
9.2 Warehouse Trigger Event 25
9.3 Parties to Give Effect to Transfer 25
9.4 Rights Additional to Issue of Bonds 25
10. APPOINTMENT OF TRUST MANAGER 26
10.1 Appointment 26
10.2 Powers of Management 26
10.3 Trust Manager to Enforce Against Master Servicer 26
10.4 Trust Manager Not Liable for Master Servicer 26
10.5 Effect of Compliance as Master Servicer 26
10.6 Enforcement of Duties of Master Servicer 26
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11. INVESTMENT OF THE FUND 27
11.1 Authorised Investments 27
11.2 Trust Manager to Make Proposals 27
11.3 Trustee to Comply with Proposals 27
11.4 Authorised Investments for Rated Funds 28
11.5 Limitation on Maturity of Investments 28
11.6 Rights Attaching to Assets 28
11.7 Trustee's Dealing with Assets 28
11.8 Interest Hedges and Enhancements 28
11.9 Hedges and Enhancements for Rated Funds 29
11.10 Limitation of Trustee's Personal Liability 29
11.11 Moneys Payable to Trustee 29
11.12 Segregation of Assets of a Fund 29
11.13 Assets of Funds 29
11.14 Liabilities of a Fund 29
11.15 Origination and Management of Mortgages 29
11.16 Trust Manager will act as Master Servicer 30
11.17 Trust Manager's Power to Delegate 30
11.18 Trust Manager 30
11.19 Professional Advisers 31
12. ADDITIONAL OBLIGATIONS OF TRUST MANAGER 31
12.1 General 31
12.2 Additional Obligations 31
12.3 Trust Manager Cannot Bind Trustee Unless Authorised 32
12.4 Threshold Rate Obligation 32
13. RETIREMENT OF TRUST MANAGER 32
13.1 Removal 32
13.2 Voluntary Retirement 33
13.3 No Resignation by Trust Manager Unless Successor Appointed 33
13.4 Trustee Appoints Replacement Trust Manager 33
13.5 Terms of Appointment of Incoming Manager 33
13.6 Effect of Termination of Outgoing Manager 33
13.7 Delivery of Documents 33
13.8 Notice to Security Trustee of Incoming Manager 34
14. TRUSTEE'S POWERS 34
14.1 General Power 34
14.2 Specific Powers 34
14.3 Delegation to Related Bodies Corporate 35
14.4 Trustee's Power to Delegate; Appoint Attorneys and Agents 35
14.5 Trustee Liable for Delegates 36
14.6 Delegable and Non-Delegable Duties of Trustee 36
14.7 Trustee Not Liable for Third Parties 36
15. TRUSTEE'S COVENANTS 36
15.1 General 36
15.2 To Act Continuously as Trustee 36
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15.3 To Act Honestly, Diligently and Prudently 36
15.4 No Dispositions of Assets 37
15.5 Forward Notices etc. to Trust Manager 37
15.6 Trustee will implement Trust Manager's Directions 37
15.7 Custodian 37
15.8 Perform Transaction Documents 37
16. TRUSTEE'S FEES AND EXPENSES 37
16.1 Trustee's Fee 37
16.2 Manager's Fee 37
17. RETIREMENT OF TRUSTEE 38
17.1 Mandatory Retirement 38
17.2 Trust Manager may Remove Trustee 38
17.3 Trust Manager Appoints Replacement 38
17.4 Voluntary Retirement 38
17.5 Funds to be Vested in New Trustee 38
17.6 Release of Outgoing Trustee 39
17.7 Incoming Trustee to Execute Deed 39
17.8 Trust Manager and Outgoing Trustee to Settle Amounts Payable 39
17.9 Outgoing Trustee to Retain Lien 39
17.10 Delivery of Documents 39
17.11 Notice to Security Trustee of Incoming Trustee 40
18. TRUST ACCOUNTS 40
18.1 Opening of Trust Accounts 40
18.2 Location of Trust Accounts 40
18.3 Authorised Signatories 40
18.4 Bank Statements and Account Information 40
18.5 Deposits 41
18.6 Withdrawals 41
18.7 Central Clearing Account 41
19. AUDITORS 41
19.1 Appointment of Auditor 41
19.2 Removal and Retirement of Auditor 41
19.3 Appointment of Replacement Auditor 42
19.4 Auditor may have other Offices 42
20. RECORDS AND FINANCIAL STATEMENTS 42
21. PAYMENTS FROM FUNDS AND TERMINATION 42
21.1 Payments by Trustee 42
21.2 Income of the Fund 42
21.3 Income Entitlement 43
21.4 Distribution of excess Tax Income 43
21.5 Payments to Beneficiaries 43
21.6 Application of Fund income 43
21.7 Application of Residual Income Beneficiaries' Entitlements 44
21.8 Trust Manager to ensure compliance by Trustee 44
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21.9 Distribution on Vesting Date 44
22. THE REGISTER 45
22.1 Details to be kept on the Register 45
22.2 Place of Keeping Register, Copies and Access 45
22.3 Branch Registers 46
22.4 Details on Register Conclusive 46
22.5 Closing of Register 46
22.6 Alteration of Details on Register 47
22.7 Rectification of Register 47
22.8 Trustee May Appoint Registrar 47
23. MEETINGS OF BONDHOLDERS 48
23.1 Governing Provisions 48
23.2 Security Trust Deed prevails 48
24. PAYMENTS GENERALLY 48
24.1 Cheque Details 48
24.2 Payments Good Discharge 48
24.3 Valid Receipts 48
25. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY GENERALLY 49
25.1 Powers Additional 49
25.2 Reliance on Certificates 49
25.3 No Liability 49
25.4 Notices from Trustee and Trust Manager 49
25.5 Compliance with Laws 49
25.6 Reliance on Experts 50
25.7 Powers, Authorities and Discretions 50
25.8 Legal and Other Proceedings 50
25.9 Liability of Trustee under Transaction Documents 50
25.10 Trustee's indemnity not be impaired 51
25.11 Trust Manager's Right of Indemnity 52
25.12 Conflicts 52
25.13 Consumer Credit Code 52
26. NOTICES 53
26.1 Notices Generally 53
26.2 Notices to Bondholders 54
26.3 Notices to Designated Rating Agencies 54
27. AMENDMENT 55
27.1 Amendment by Trustee 55
27.2 Certain Provisions Not to be Varied 55
27.3 Copy of Amendments to Bondholders 55
27.4 Copy of Amendments in Advance to Designated Rating Agencies 56
28. MISCELLANEOUS 56
28.1 Data Base Confidential 56
28.2 Waivers, Remedies Cumulative 56
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28.3 Governing Law 56
28.4 Jurisdiction 56
28.5 Severability of Provisions 57
28.6 Counterparts 57
28.7 Inspection of this Deed 57
28.8 Non-Business Days 57
SCHEDULE 1 58
Form of Fund Creation Notice 58
SCHEDULE 2 59
Form of Issue Notice 59
SCHEDULE 3 61
Form of Portfolio Compliance Certificate 61
SCHEDULE 4 63
Form of Bond Application 63
SCHEDULE 5 65
Form of Registration Confirmation 65
SCHEDULE 6 67
Form of Transfer and Acceptance 67
SCHEDULE 7 70
Procedures for Bondholder's Meeting 70
SCHEDULE 2 75
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 11
1.3 Incorporated Definitions 12
2. THE ARMS II FUNDS 12
2.1 Appointment of Trustee 12
2.2 Separate and Distinct Funds 12
3. THE FUNDS 12
3.1 Beneficial Interest in Funds 12
3.2 Fund Creation Notice 12
3.3 Creation of Additional Funds 12
3.4 Name of Funds 13
3.5 Duration of Funds 13
3.6 Beneficiary Register 13
3A. BENEFICIARIES OF DESIGNATED FUNDS 13
3A.1 Acknowledgement 13
3A.2 Residual Capital Unit 14
3A.3 Residual Income Unit 14
4. LIMITS ON RIGHTS OF BONDHOLDERS AND BENEFICIARIES 14
4.1 General Limits 14
4.2 Further Limits on Interests of Beneficiaries 15
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4.3 Ranking of Interest of Beneficiaries 15
4.4 Resolution of Conflicts 15
4.5 No Liability of Bondholders, Couponholders or Beneficiaries 15
5. BONDS 16
5.1 Nature of Bonds 16
5.2 Trustee's Covenant to Bondholders and Couponholders 16
5.3 Minimum Face Value of Bonds 16
5.4 Bonds Not Invalid if Issued in Breach 16
6. PROCEDURE FOR ISSUE OF BONDS 16
6.1 Form of Issue Notice 16
6.2 Notice to Warehouse Beneficiary 18
6.3 Supplementary Bond Terms 18
6.4 Amendment 18
6.5 Acceptance of Issue Notice 18
6.6 Non-Complying Issue Notice 18
6.7 Issue of Bonds and Transfer of Benefit of Mortgages 19
6.8 Acquisition of Portfolio 19
6.9 Amount of Bonds Created for an Issuing Fund 20
6.10 Action following Issue 20
6.11 No Liability for Insufficient Moneys 20
6.12 Recording of Transfer and Further Assurance 20
6.13 Subsequent Adjustment 20
6.14 No Limit on Bonds 21
6.15 Compliance with Laws 21
7. TRANSFERS OF BONDS 21
8. REGISTRATION CONFIRMATIONS 21
9. WAREHOUSE FUNDING 21
9.1 Transfer of Warehouse Assets to Another Fund 21
9.2 Warehouse Trigger Event 22
9.3 Parties to Give Effect to Transfer 22
9.4 Rights Additional to Issue of Bonds 22
10. APPOINTMENT OF TRUST MANAGER 22
10.1 Appointment 22
10.2 Powers of Management 23
10.3 Trust Manager to Enforce Against Master Servicer 23
10.4 Trust Manager Not Liable for Master Servicer 23
10.5 Effect of Compliance as Master Servicer 23
10.6 Enforcement of Duties of Master Servicer 23
11. INVESTMENT OF THE FUND 23
11.1 Authorised Investments 23
11.2 Trust Manager to Make Proposals 24
11.3 Trustee to Comply with Proposals 24
11.4 Authorised Investments for Rated Funds 24
11.5 Limitation on Maturity of Investments 25
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11.6 Rights Attaching to Assets 25
11.7 Trustee's Dealing with Assets 25
11.8 Swaps and Enhancements 25
11.9 Swaps and Enhancements for Rated Funds 25
11.10 Limitation of Trustee's Personal Liability 25
11.11 Moneys Payable to Trustee 26
11.12 Segregation of Assets of a Fund 26
11.13 Assets of Funds 26
11.14 Liabilities of a Fund 26
11.15 Origination and Management of Mortgages 26
11.16 Trust Manager will act as Master Servicer 26
11.17 Trust Manager's Power to Delegate 27
11.18 Trust Manager 27
11.19 Professional Advisers 27
12. ADDITIONAL OBLIGATIONS OF TRUST MANAGER 28
12.1 General 28
12.2 Additional Obligations 28
12.3 Trust Manager Cannot Bind Trustee Unless Authorised 29
12.4 Threshold Rate Obligation of Trust Manager 29
13. RETIREMENT OF TRUST MANAGER 29
13.1 Removal 29
13.2 Voluntary Retirement 29
13.3 No Resignation by Trust Manager Unless Successor Appointed 30
13.4 Trustee Appoints Replacement Trust Manager 30
13.5 Terms of Appointment of Incoming Manager 30
13.6 Effect of Termination of Outgoing Manager 30
13.7 Delivery of Documents 30
13.8 Notice to Security Trustee of Incoming Manager 30
14. TRUSTEE'S POWERS 31
14.1 General Power 31
14.2 Specific Powers 31
14.3 Delegation to Related Bodies Corporate 32
14.4 Trustee's Power to Delegate; Appoint Attorneys and Agents 32
14.5 Trustee Liable for Delegates 32
14.6 Delegable and Non-Delegable Duties of Trustee 33
14.7 Trustee Not Liable for Third Parties 33
15. TRUSTEE'S COVENANTS 33
15.1 General 33
15.2 To Act Continuously as Trustee 33
15.3 To Act Honestly, Diligently and Prudently 33
15.4 No Dispositions of Assets 34
15.5 Forward Notices etc. to Trust Manager 34
15.6 Trustee will implement Trust Manager's Directions 34
15.7 Custodian 34
15.8 Perform Transaction Documents 34
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16. TRUSTEE'S FEES AND EXPENSES 34
16.1 Trustee's Fee 34
16.2 Manager's Fee 34
17. RETIREMENT OF TRUSTEE 34
17.1 Mandatory Retirement 34
17.2 Trust Manager may Remove Trustee 35
17.3 Trust Manager Appoints Replacement 35
17.4 Voluntary Retirement 35
17.5 Funds to be Vested in New Trustee 35
17.6 Release of Outgoing Trustee 35
17.7 Incoming Trustee to Execute Deed 35
17.8 Trust Manager and Outgoing Trustee to Settle Amounts Payable 36
17.9 Outgoing Trustee to Retain Lien 36
17.10 Delivery of Documents 36
17.11 Notice to Security Trustee of New Trustee 36
18. TRUST ACCOUNTS 37
18.1 Opening of Trust Accounts 37
18.2 Location of Trust Accounts 37
18.3 Authorised Signatories 37
18.4 Bank Statements and Account Information 37
18.5 Deposits 37
18.6 Withdrawals 38
18.7 Central Clearing Account 38
19. AUDITORS 38
19.1 Appointment of Auditor 38
19.2 Removal and Retirement of Auditor 38
19.3 Appointment of Replacement Auditor 38
19.4 Auditor may have other Offices 39
20. RECORDS AND FINANCIAL STATEMENTS 39
21. PAYMENTS FROM FUNDS AND TERMINATION 39
21.1 Payments by Trustee 39
21.2 Income of the Fund 39
21.3 Income Entitlement 39
21.4 Distribution of excess Tax Income 40
21.5 Payments to Beneficiaries 40
21.6 Application of Fund income 40
21.7 Application of Residual Income Beneficiaries' Entitlements 41
21.8 Trust Manager to ensure compliance by Trustee 41
21.9 Distribution on Vesting Date 41
22. THE REGISTER 42
23. MEETINGS OF BONDHOLDERS 42
24. PAYMENTS GENERALLY 42
24.1 Payments to Beneficiaries 42
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24.2 Payments to Bondholders and Couponholders 42
24.3 Payments Good Discharge 42
24.4 Valid Receipts 42
25. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY GENERALLY 43
25.1 Powers Additional 43
25.2 Reliance on Certificates 43
25.3 No Liability 43
25.4 Notices from Trustee and Trust Manager 43
25.5 Compliance with Laws 43
25.6 Reliance on Experts 44
25.7 Powers, Authorities and Discretions 44
25.8 Legal and Other Proceedings 44
25.9 Liability of Trustee under Transaction Documents 44
25.10 Trustee's indemnity not be impaired 45
25.11 Trust Manager's Right of Indemnity 46
25.12 Conflicts 46
25.13 Consumer Credit Code 46
26. NOTICES 47
26.1 Notices Generally 47
26.2 Notices to Bondholders 48
26.3 Notices to Designated Rating Agencies 48
27. AMENDMENT 49
27.1 Amendment by Trustee 49
27.2 Certain Provisions Not to be Varied 49
27.3 Copy of Amendments to Bondholders 49
27.4 Copy of Amendments in Advance to Designated Rating Agencies 50
28. MISCELLANEOUS 50
28.1 Data Base Confidential 50
28.2 Waivers, Remedies Cumulative 50
28.3 Governing Law 50
28.4 Jurisdiction 50
28.5 Severability of Provisions 51
28.6 Counterparts 51
28.7 Inspection of this Deed 51
SCHEDULE 1 52
Form of Fund Creation Notice 52
SCHEDULE 2 54
Form of Issue Notice 54
SCHEDULE 3 56
Form of Portfolio Compliance Certificate 56
SCHEDULE 4 58
SCHEDULE 5 59
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SCHEDULE 6 60
SCHEDULE 7 61
SCHEDULE 3 63
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 11
1.3 Incorporated Definitions 12
2. THE ARMS II FUNDS 12
2.1 Appointment of Trustee 12
2.2 Separate and Distinct Funds 12
3. THE FUNDS 12
3.1 Beneficial Interest in Funds 12
3.2 Fund Creation Notice 12
3.3 Creation of Additional Funds 13
3.4 Name of Funds 13
3.5 Duration of Funds 13
3.6 Beneficiary Register 13
4. LIMITS ON RIGHTS OF BONDHOLDERS AND BENEFICIARIES 14
4.1 General Limits 14
4.2 Further Limits on Interests of Beneficiaries 14
4.3 Ranking of Interest of Beneficiaries 14
4.4 Resolution of Conflicts 14
4.5 No Liability of Bondholders or Beneficiaries 15
5. BONDS 15
5.1 Nature of Bonds 15
5.2 Trustee's Covenant to Bondholders 15
5.3 Minimum Face Value of Bonds 15
5.4 Bonds Not Invalid if Issued in Breach 16
6. PROCEDURE FOR ISSUE OF BONDS 16
6.1 Form of Issue Notice 16
6.2 Notice to Warehouse Beneficiary 17
6.3 Supplementary Bond Terms 17
6.4 Amendment 18
6.5 Acceptance of Issue Notice 18
6.6 Non-Complying Issue Notice 18
6.7 Issue of Bonds and Transfer of Benefit of Mortgages 18
6.8 Acquisition of Portfolio 18
6.9 Amount of Bonds Created for an Issuing Fund 19
6.10 Action following Issue 19
6.11 No Liability for Insufficient Moneys 19
6.12 Recording of Transfer and Further Assurance 20
6.13 Subsequent Adjustment 20
6.14 No Limit on Bonds 21
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6.15 Compliance with Laws 21
7. TRANSFERS OF BONDS 21
8. REGISTRATION CONFIRMATIONS 21
9. WAREHOUSE FUNDING 21
9.1 Transfer of Warehouse Assets to Another Fund 21
9.2 Warehouse Trigger Event 22
9.3 Parties to Give Effect to Transfer 22
9.4 Rights Additional to Issue of Bonds 22
10. APPOINTMENT OF TRUST MANAGER 22
10.1 Appointment 22
10.2 Powers of Management 22
10.3 Trust Manager to Enforce Against Master Servicer 22
10.4 Trust Manager Not Liable for Master Servicer 22
10.5 No Enquiry 23
11. INVESTMENT OF THE FUND 23
11.1 Authorised Investments 23
11.2 Trust Manager to Make Proposals 23
11.3 Trustee to Comply with Proposals 23
11.4 Authorised Investments for Rated Funds 24
11.5 Limitation on Maturity of Investments 24
11.6 Rights Attaching to Assets 24
11.7 Trustee's Dealing with Assets 24
11.8 Swaps and Enhancements 24
11.9 Swaps and Enhancements for Rated Funds 25
11.10 Limitation of Trustee's Personal Liability 25
11.11 Moneys Payable to Trustee 25
11.12 Segregation of Assets of a Fund 25
11.13 Assets of Funds 25
11.14 Liabilities of a Fund 25
11.15 Origination and Management of Mortgages 25
11.16 Trust Manager will act as Master Servicer 26
11.17 Trust Manager's Power to Delegate 26
11.18 Trust Manager 26
11.19 Professional Advisers 27
12. ADDITIONAL OBLIGATIONS OF TRUST MANAGER AND AMS 27
12.1 General 27
12.2 Additional Obligations 27
12.3 Trust Manager Cannot Bind Trustee Unless Authorised 28
12.4 Threshold Rate Obligation of AMS 28
13. RETIREMENT OF TRUST MANAGER 29
13.1 Removal 29
13.2 Voluntary Retirement 29
13.3 No Resignation by Trust Manager Unless Successor Appointed 29
13.4 Trustee Appoints Replacement Trust Manager 29
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13.5 Terms of Appointment of Incoming Manager 29
13.6 Effect of Termination of Outgoing Manager 29
13.7 Delivery of Documents 30
13.8 Notice to Security Trustee of Incoming Manager 30
14. TRUSTEE'S POWERS 30
14.1 General Power 30
14.2 Specific Powers 30
14.3 Delegation to Related Bodies Corporate 31
14.4 Trustee's Power to Delegate; Appoint Attorneys and Agents 31
14.5 Trustee Liable for Delegates 32
14.6 Delegable and Non-Delegable Duties of Trustee 32
14.7 Trustee Not Liable for Third Parties 32
15. TRUSTEE'S COVENANTS 32
15.1 General 32
15.2 To Act Continuously as Trustee 32
15.3 To Act Honestly, Diligently and Prudently 32
15.4 No Dispositions of Assets 33
15.5 Forward Notices etc. to Trust Manager and Bond Trustee 33
15.6 Trustee will implement Trust Manager's Directions 33
15.7 Custodian 33
15.8 Perform Transaction Documents 33
16. TRUSTEE'S FEES AND EXPENSES 33
16.1 Trustee's Fee 33
16.2 Manager's Fee 33
17. RETIREMENT OF TRUSTEE 34
17.1 Mandatory Retirement 34
17.2 Trust Manager may Remove Trustee 34
17.3 Trust Manager Appoints Replacement 34
17.4 Voluntary Retirement 34
17.5 Funds to be Vested in New Trustee 34
17.6 Release of Outgoing Trustee 35
17.7 Incoming Trustee to Execute Deed 35
17.8 Trust Manager and Outgoing Trustee to Settle Amounts Payable 35
17.9 Outgoing Trustee to Retain Lien 35
17.10 Delivery of Documents 35
17.11 Notice to Security Trustee of New Trustee 36
18. TRUST ACCOUNTS 36
18.1 Opening of Trust Accounts 36
18.2 Location of Trust Accounts 36
18.3 Authorised Signatories 36
18.4 Bank Statements and Account Information 36
18.5 Deposits 37
18.6 Withdrawals 37
18.7 Central Clearing Account 37
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19. AUDITORS 37
19.1 Appointment of Auditor 37
19.2 Removal and Retirement of Auditor 37
19.3 Appointment of Replacement Auditor 38
19.4 Auditor may have other Offices 38
20. RECORDS AND FINANCIAL STATEMENTS 38
21. PAYMENTS FROM FUNDS AND TERMINATION 38
21.1 Payments by Trustee 38
21.2 Income of the Fund 38
21.3 Income Entitlement 39
21.4 Distribution of excess Tax Income 39
21.5 Payments to Beneficiaries 39
21.6 Application of Fund income 39
21.7 Application of Residual Income Beneficiaries' Entitlements 40
21.8 Trust Manager to ensure compliance by Trustee 40
21.9 Distribution on Vesting Date 40
22. THE REGISTER 41
23. MEETINGS OF BONDHOLDERS 41
24. PAYMENTS GENERALLY 41
24.1 Payments to Beneficiaries 41
24.2 Payments to Bondholders 41
24.3 Payments Good Discharge 41
24.4 Valid Receipts 41
25. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY GENERALLY 42
25.1 Powers Additional 42
25.2 Reliance on Certificates 42
25.3 No Liability 42
25.4 Notices from Trustee and Trust Manager 42
25.5 Compliance with Laws 42
25.6 Reliance on Experts 43
25.7 Powers, Authorities and Discretions 43
25.8 Legal and Other Proceedings 43
25.9 Liability of Trustee under Transaction Documents 44
25.10 Trustee's indemnity not be impaired 44
25.11 Trust Manager's Right of Indemnity 45
25.12 Conflicts 45
25.13 Consumer Credit Code 45
26. NOTICES 46
26.1 Notices Generally 46
26.2 Notices to Bondholders 47
26.3 Notices to Designated Rating Agencies 47
27. AMENDMENT 48
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27.1 Amendment by Trustee 48
27.2 Certain Provisions Not to be Varied 48
27.3 Copy of Amendments to Bondholders 48
27.4 Copy of Amendments in Advance to Designated Rating Agencies 49
28. MISCELLANEOUS 49
28.1 Data Base Confidential 49
28.2 Waivers, Remedies Cumulative 49
28.3 Governing Law 49
28.4 Jurisdiction 49
28.5 Severability of Provisions 50
28.6 Counterparts 50
28.7 Inspection of this Deed 50
SCHEDULE 1 51
Form of Fund Creation Notice 51
Form of Issue Notice 52
SCHEDULE 3 54
Form of Portfolio Compliance Certificate 54
SCHEDULE 4 56
Intentionally blank 56
SCHEDULE 5 57
Intentionally blank 57
SCHEDULE 6 58
Intentionally blank 58
SCHEDULE 7 59
Intentionally blank 59
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DATE 2003
PARTIES
1. PERMANENT CUSTODIANS LIMITED (ACN 001 426 384) of 35 Clarence
Street, Sydney, NSW 2000 (PCL);
2. AUSTRALIAN SECURITISATION MANAGEMENT PTY LIMITED (ACN 103 852
428) of Level 6, 12 Castlereagh Street, Sydney, NSW 2000 (ASM);
and
3. AUSTRALIAN MORTGAGE SECURITIES LTD (ABN 89 003 072 446) of Level
6, 12 Castlereagh Street, Sydney, NSW 2000 (AMS).
RECITALS
A This Deed is made for the purposes of establishing Warehouse
Funds and Issuing Funds to be known collectively as the ARMS II
GLOBAL FUNDS.
B PCL has agreed to act as trustee, and the Trust Manager has
agreed to act as manager of the Warehouse Funds and the Issuing
Funds, upon and subject to the terms of this Deed.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed and the recitals to it:
AMORTISATION DATE means, in relation to a Bond, each date upon which
all or part of the principal amount of that Bond is payable in
accordance with the corresponding Bond Terms.
AMORTISATION AMOUNT means, in relation to a Bond and an Amortisation
Date, the principal amount payable in respect of that Bond on that
Amortisation Date, determined in accordance with the corresponding Bond
Terms.
ANCILLARY DOCUMENTS means, in relation to a Mortgage, all documents
evidencing, entered into by or delivered to the Trustee in connection
with:
(a) the Loan secured by that Mortgage; and
(b) the Collateral Securities for that Mortgage.
APPROVED ACCOUNTING STANDARDS means:
(a) accounting standards from time to time approved under the
Corporations Act;
(b) the requirements of the Corporations Act in relation to the
preparation and content of accounts; and
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(c) generally accepted accounting principles and practices in
Australia consistently applied, except where inconsistent with
the standards or requirements referred to in paragraphs (a) or
(b).
ASSETS means, in relation to a Fund, all property and assets (real and
personal (including choses in action and other rights), tangible and
intangible, present or future) comprised in, and held by Trustee as
trustee of that Fund.
ASSOCIATE in relation to a person means a person that is taken to be an
associate of the first mentioned person by virtue of Division 2 of Part
1.2 of the Corporations Act.
AUDITOR means, in relation to a Fund, the auditor of that Fund
appointed from time to time pursuant to clause 19.
AUSTRALIAN JURISDICTION means a State or Territory of the Commonwealth
and the Commonwealth of Australia.
AUTHORISED INVESTMENTS means investments which at their date of
acquisition are:
(a) Loans secured by Mortgages over Land;
(b) cash;
(c) bonds, debentures, stock or treasury bills of the Commonwealth
of Australia or the Government of any State or Territory of
the Commonwealth;
(d) debentures or stock of any public statutory body constituted
under the law of the Commonwealth of Australia or of any State
of the Commonwealth where the repayment of the principal
secured and the interest payable thereon is guaranteed by the
Commonwealth or the State;
(e) notes or other securities of the Commonwealth of Australia or
the Government of any State or Territory of the Commonwealth;
(f) deposits with, or the acquisition of certificates of deposit
(whether negotiable, convertible or otherwise), issued by, a
Bank;
(g) bills of exchange which at the time of acquisition have a
remaining term to maturity of not more than 200 days, accepted
or endorsed by a Bank; and
(h) commercial paper.
(In paragraphs (b)-(g) inclusive of this definition, expressions shall
be construed and, if necessary read down, so that the Bonds in relation
to any Fund constitute "mortgage-backed securities" for the purposes of
the Duties Act, 1997 of New South Wales, the Duties Act, 2000 of
Victoria, the Duties Act, 2001 of Queensland and the Duties Act, 2001
of Tasmania).
AUTHORISED SIGNATORY means, in relation to any corporation, any person
from time to time whose name, title or position and specimen signature
are set out in a certificate signed by two directors or one director
and one secretary of the corporation confirming that person's
appointment as an Authorised Signatory for the purposes of this Deed
and/or any Transaction Document to which that corporation is a party.
BANK means a corporation authorised under Part 2 of the Banking Act,
1959 to carry on banking business, including the general business of
banking, in Australia or a corporation formed or
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incorporated under an Act of the Parliament of an Australian
Jurisdiction to carry on the general business of banking.
BENEFICIARY means, in relation to a Fund, each Residual Capital
Beneficiary and each Residual Income Beneficiary of that Fund.
BENEFICIARY REGISTER has, in relation to a Fund, the meaning given in
clause 3.6(a).
BOND TERMS means, in relation to a Bond, all of the terms and
conditions applicable to that Bond, as set out in this Deed, the
relevant Supplementary Bond Terms, the relevant Bond Trust Deed (if
any) and the relevant Security Trust Deed (if any).
BOND TRUST DEED means, in relation to a Fund, a deed (howsoever
called), between (among others) the Trustee as trustee of that Fund,
the Trust Manager, the Security Trustee and a person (howsoever called)
acting as trustee for Bondholders of Bonds denominated in US Dollars.
BOND TRUSTEE means, in relation to a Bond Trust Deed, initially the
person in whose favour that Bond Trust Deed is executed, and
subsequently any successor trustee (howsoever called) appointed under
that Bond Trust Deed.
BUSINESS DAY means a day, other than a Saturday, Sunday or public
holiday on which Banks are open for business in Sydney and Melbourne.
COLLATERAL SECURITY means, in relation to a Mortgage and a Loan secured
by that Mortgage, any other guarantee, indemnity or Security Interest
executed in favour of or held by the Trustee as security for the
obligations secured by that Mortgage or the obligations of any person
who has given any such guarantee, indemnity or Security Interest.
CONSUMER CREDIT CODE means the Consumer Credit Code incorporated in the
Consumer Credit (Queensland) Act 1994, as it is in force as
co-operative or consistent legislation in each Australian State or
Territory.
CONSUMER CREDIT REGULATIONS means the regulations made under the
Consumer Credit (Queensland) Act 1994 which apply to the Consumer
Credit Code.
CORPORATIONS ACT means the Corporations Act 2001 (Commonwealth).
CREDITOR means, in relation to a Fund, a creditor of the Trustee in
respect of a debt or obligation incurred by the Trustee while acting in
its capacity as trustee of the Fund.
DATA BASE means all information, data and records collected, held or
stored in any way or in any medium by or for the Trustee, the Trust
Manager or the Master Servicer relating to the Funds, their Assets and
their management.
DESIGNATED RATING means, in relation to a person or an obligation, and
a Rated Fund, each credit rating as specified or approved by each
Designated Rating Agency for that Fund or for the obligations of the
Trustee as trustee of that Fund.
DESIGNATED RATING AGENCY means, in relation to a Fund or Bonds, each
Rating Agency which has been requested by the Trust Manager to rate the
debt obligations of that Fund or those Bonds.
DOMESTIC MASTER TRUST DEED means the Master Trust Deed dated 7 March
1995 between PCL and AMS (as amended from time to time) in relation to
trust funds in respect of which any relevant bonds, debentures or loan
facility agreements are only issued or entered into in Australia.
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ENHANCEMENTS means a Mortgage Insurance Policy, a Stand-by Facility, a
Guaranteed Investment Contract and any other security, support, rights
or benefits in favour of the Trustee in support of or substitution for
payments due under or in respect of an Authorised Investment, or
payable by the Trustee under or in respect of the Bonds.
EURO MASTER TRUST DEED means the Master Trust Deed dated 7 March 1995
between PCL and AMS, as amended and restated on 12 July 1999 and as
further amended from time to time in relation to trust funds designated
as "ARMS II Euro Funds".
EVENT OF INSOLVENCY means, in relation to a body corporate, any of the
following events:
(a) an order is made that the body corporate be wound up;
(b) a liquidator, provisional liquidator, controller (as defined
in the Corporations Act) or administrator is appointed in
respect of the body corporate or a substantial portion of its
assets whether or not under an order;
(c) the body corporate enters into, or resolves to enter into, a
scheme of arrangement, deed of company arrangement or
composition with, or assignment for the benefit of, all or any
class of its creditors;
(d) the body corporate resolves to wind itself up, or otherwise
dissolve itself, or gives notice of its intention to do so, or
is otherwise wound up or dissolved;
(e) the body corporate is or states that it is insolvent;
(f) as a result of the operation of section 459F(1) of the
Corporations Act, the body corporate is taken to have failed
to comply with a statutory demand;
(g) the body corporate takes any step to obtain protection or is
granted protection from its creditors, under any applicable
legislation; or
(h) anything analogous or having a substantially similar effect to
any of the events specified above happens under the law of any
applicable jurisdiction,
and in relation to a Fund means any of the above events occurring in
relation to that Fund, as if that Fund were a person having independent
legal capacity but not the Trustee in its capacity as trustee of any
other Fund or trust.
EXPENSES means, in relation to a Fund, all costs, charges, fees and
expenses properly incurred by the Trustee or the Trust Manager in
exercising its rights or performing its obligations with respect to
that Fund under this Deed, to the extent to which they relate to that
Fund or are properly payable from that Fund, including:
(a) any costs, charges, fees and expenses payable to the Trustee,
the Trust Manager, the Security Trustee, the Bond Trustee, a
Paying Agent, the Calculation Agent or any other person
engaged by the Trustee or the Trust Manager under any
Transaction Document; and
(b) all legal costs and disbursements incurred by the Trust
Manager or the Trustee in connection with:
(i) settling and executing any Transaction Document;
(ii) any subsequent consent, approval, waiver or amendment
under, of or to any Transaction Document; or
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(iii) evaluating any matter of concern to the Trust Manager
or the Trustee in relation to a Transaction Document
or a Fund.
Expenses do not include general overhead costs and expenses of the
Trustee or the Trust Manager (for example, rent and amounts payable to
employees in connection with their employment) incurred directly or
indirectly in connection with the business of the Trustee or the Trust
Manager.
FACE VALUE means:
(a) in relation to a Bond, and at any time, the principal amount
outstanding in respect of that Bond at that time; and
(b) in relation to a Mortgage, and at any time, the principal
amount of the Loan secured by that Mortgage outstanding at
that time;
(c) in relation to an Authorised Investment, and at any time, the
face value of that Authorised Investment or the principal
amount payable in respect of that Authorised Investment at
that time.
FINANCIAL STATEMENTS means, in relation to a Fund, and a date or
period, a profit and loss account for that period, a balance sheet as
at that date, and all notes and other explanations of or relating to
the same.
FINANCIAL YEAR means, in relation to a Fund, each period from 1 July in
one calendar year until 30 June in the next calendar year, provided
that:
(a) the first Financial Year for a Fund commences on the date upon
which it is constituted in accordance with this Deed, and ends
on the next 30 June; and
(b) the final Financial Year for a Fund ends on the Vesting Date
for that Fund.
FITCH RATINGS means Fitch Australia Pty Limited.
FUND CREATION NOTICE means a notice given by the Trust Manager to the
Trustee under clause 3.2.
FUNDING PERIOD means, in relation to a Warehouse Fund, the period for
which the beneficiary of that Fund has agreed pursuant to the relevant
Warehouse Funding Agreement to provide funding to the Trustee as
trustee of that Fund, to finance the investment by the Trustee in
Authorised Investments.
FUNDS means the Warehouse Funds and the Issuing Funds (each a FUND).
GOVERNMENT BODY means:
(a) any person, government or the body exercising an executive,
legislative, judicial or other government function of any
jurisdiction; and
(b) any person deriving a right directly or indirectly from any
other Government Body.
GUARANTEED INVESTMENT CONTRACT means a guaranteed investment contract
of a type approved by the Chief Commissioner of Stamp Duties in New
South Wales pursuant to paragraph (g) of the definition of PRESCRIBED
PROPERTY in the dictionary to the Duties Act, 1997 of New South Wales.
INCOME DISTRIBUTION DATE means, in relation to a Fund, each date upon
which income of that Fund is to be distributed to a Beneficiary of that
Fund, as specified in the Fund Creation Notice relating to that Fund or
in any Transaction Document in relation to that Fund. If there is any
inconsistency
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between the Fund Creation Notice and any Transaction Document as to the
Income Distribution Dates for a Fund, the Transaction Document
prevails.
INCOME PERCENTAGE means, in relation to a Residual Income Beneficiary
of a Fund at any time, the subscription price paid by that Residual
Income Beneficiary for all Residual Income Units held by that Residual
Income Beneficiary at that time divided by the aggregate of the
subscription prices for all Residual Income Units subscribed for in
that Fund at that time (expressed as a percentage).
INCOMING MANAGER has the meaning given in clause 13.4.
INCOMING TRUSTEE has the meaning given in clause 17.5.
INITIAL AMOUNT means, in relation to a Fund, the initial amount settled
or to be settled on the Trustee to constitute that Fund, as specified
in the relevant Fund Creation Notice.
INITIAL EXCHANGE AMOUNT has the meaning given in the ISDA Definitions.
INTEREST ENTITLEMENT means, in relation to a Bond and an Interest
Payment Date, the amount of interest accrued in respect of that Bond
and due for payment on that Interest Payment Date, determined in
accordance with the relevant Bond Terms.
INTEREST PAYMENT DATE means, in relation to a Bond, each date for the
payment of interest under the Bond, determined in accordance with the
relevant Bond Terms.
ISSUE means each issue of Bonds by the Trustee under this Deed.
ISSUE DATE means, in relation to a Bond, the date on which that Bond is
issued or proposed to be issued, as the context requires.
ISSUE NOTICE means a notice given by the Trust Manager to the Trustee
under clause 5.1, as amended in accordance with clause 6.4.
ISSUE PROCEEDS means:
(a) in relation to an Issue of Bonds denominated in Australian
Dollars, the amount received by the Trustee from the initial
Bondholders of the relevant Bonds in payment of the
Subscription Amount for those Bonds; and
(b) in relation to an Issue of Bonds denominated in a currency
other than Australian Dollars, the aggregate of the Initial
Exchange Amounts received by the Trustee under the relevant
Currency Swaps in exchange for payment by the Trustee to the
relevant Currency Swap Counterparties of the aggregate
Subscription Amount received from the initial Bondholders of
those Bonds.
ISSUING FUND means each trust fund from time to time created under this
Deed following the giving by the Trust Manager of a Fund Creation
Notice which specifies that the trust fund to be created is to be an
Issuing Fund.
LAND means:
(a) any estate or interest whether at law or in equity in freehold
or leasehold land, including all improvements on such land;
and
(b) any parcel and any lot, common property and land comprising a
parcel within the meaning of the Strata Titles Act, 1973 (New
South Wales) or the Community Land Development
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Act, 1989 (New South Wales) or any equivalent legislation in
any other Australian Jurisdiction.
LOAN means a loan or other form of financial accommodation made
available by the Trustee as trustee of a Fund, or any other
indebtedness owed to the Trustee as trustee of a Fund.
MANAGER'S DEFAULT means, in relation to a Fund:
(a) the Trust Manager breaches any of its obligations under this
Deed or any other Transaction Document in relation to the
Fund; and
(b) if the breach is capable of remedy, the Trust Manager does not
remedy the breach within 30 days after notice from the Trustee
or the Security Trustee (if any) requiring it to be remedied.
MANAGER'S FEE means, in relation to a Fund, the fee payable to the
Trust Manager in accordance with clause 16.2.
MASTER ORIGINATION AND SERVICING AGREEMENT means the agreement so
entitled dated 7 March 1995 made between the Trustee and AMS, or any
other document between the Trustee, the Trust Manager and any other
person relating to the origination, management and servicing of
Mortgages by that person (as the case requires).
MASTER SERVICER means initially AMS, and subsequently the person from
time to time appointed by the Trust Manager to perform the role of the
Master Servicer under this Deed and the Master Origination and
Servicing Agreement.
MATURITY DATE means, in relation to a Bond, the date upon which the
Face Value of that Bond is due to be reduced to zero, and the Bond is
due to be redeemed in full.
MOODY'S means Moody's Investors Service Inc of 99 Church Street, New
York or Moody's Investors Service Pty. Limited of 55 Hunter Street,
Sydney.
MORTGAGE means a registered (or pending registration, registrable)
mortgage over Land situated in any Australian Jurisdiction, which
secures the repayment of a Loan and any other moneys payable on or in
respect of that Loan.
MORTGAGE INSURANCE POLICY means a policy of insurance under which,
amongst other things, an insurer insures payment to the mortgagee of
amounts payable under or in respect of, or secured by, a Mortgage.
MORTGAGOR means the mortgagor under a Mortgage.
NOTICE means a notice, certificate, request, demand or other
communication to be given, served or made under or pursuant to this
Deed.
OUTGOING MANAGER has the meaning given in clause 13.4.
OUTGOING TRUSTEE has the meaning given in clause 17.5.
PENALTY PAYMENT means:
(a) the amount of any criminal or civil penalty which the Trustee
is ordered to pay under the Consumer Credit Code;
(b) any other money ordered to be paid by the Trustee, or legal
costs or other expenses payable or incurred by the Trustee
related to such an order;
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(c) any amount which the Trustee agrees to pay to a debtor or
other person in settlement of an application for an order
under the Consumer Credit Code; and
(d) any legal costs or other costs or expenses payable or incurred
by the Trustee related to that application,
in each case in relation to a Regulated Loan or a Regulated Mortgage.
PORTFOLIO means:
(a) in relation to an Issue, the Mortgages specified by the Trust
Manager in or details of which are attached to the relevant
Issue Notice; and
(b) in relation to a Fund, the Mortgages from time to time
comprised in the Assets of that Fund.
PORTFOLIO COMPLIANCE CERTIFICATE means a certificate in the form set
out in Schedule 3, or such other form as the Trustee, the Trust Manager
and the Master Servicer may from time to time agree.
RATED FUND means a Fund in respect of which there is a Designated
Rating Agency.
RATING AGENCY means Moody's, S&P, Fitch Ratings or any other recognised
rating agency designated from time to time in writing by the Trust
Manager to the Trustee.
REGISTERED COMPANY AUDITOR has the same meaning as in the Corporations
Act.
REGULATED LOAN means a Loan comprised in the Assets of any Fund which
is regulated by the Consumer Credit Code.
REGULATED MORTGAGE means a Mortgage comprised in the Assets of any Fund
which is regulated by the Consumer Credit Code.
RELATED BODY CORPORATE has the same meaning as in section 9 of the
Corporations Act.
RESIDUAL CAPITAL BENEFICIARY means, in relation to a Fund, each holder
of a Residual Capital Unit in that Fund from time to time.
RESIDUAL CAPITAL UNIT means, in relation to a Fund, each unit in that
Fund designated as such.
RESIDUAL INCOME BENEFICIARY means, in relation to a Fund, each holder
of a Residual Income Unit in that Fund from time to time.
RESIDUAL INCOME UNIT means, in relation to a Fund, each unit in that
Fund designated as such.
S&P means Standard & Poor's (Australia) Pty Limited, trading as
Standard & Poor's Ratings Group.
SECURITY INTEREST means any mortgage, pledge, lien, charge,
encumbrance, hypothecation, title retention, preferential right, trust
arrangement, right of set-off, flawed asset, contingent debt
arrangement and any other security arrangement or agreement.
SECURITY TRUST DEED means, in relation to a Fund, a deed (howsoever
called) between the Trustee as trustee of that Fund, the Trust Manager
and a person (howsoever called) acting as trustee for Creditors under
which the Trustee charges in favour of that trustee all or some of the
Assets of the Fund to secure the payment of moneys owing to some or all
of the Creditors of that Fund.
SECURITY TRUSTEE means, in relation to a Security Trust Deed, initially
the person in whose favour that Security Trust Deed is executed, and
subsequently any successor trustee (howsoever called) appointed under
that Security Trust Deed.
SERIES means, in relation to Bonds, Bonds whose terms and conditions
are the same in all respects.
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STAND-BY FACILITY means an agreement entered into by the Trustee as
trustee of a Fund pursuant to which a third party agrees to finance the
payment by the Trustee of amounts payable in respect of Bonds issued in
respect of that Fund to cover a short-fall in the Fund due to default
in the payment of amounts payable under or in respect of Mortgages
comprised in that Fund.
SUBSCRIPTION AMOUNT means, in relation to a Bond, the total amount
payable upon issue of that Bond.
SUPPLEMENTARY BOND TERMS means, in relation to a Bond, the
supplementary terms and conditions upon which that Bond is issued, as
attached to or otherwise identified in the relevant Issue Notice.
TAXATION ACT means the Income Tax Assessment Act, 1936 (Commonwealth)
and the Income Tax Assessment Act, 1997 (Commonwealth).
TAX includes all income tax, goods and services tax, withholding tax,
stamp, financial institutions, registration and other duties, bank
accounts debits tax and other taxes, levies, imposts, deductions and
charges whatsoever (including in respect of any duty imposed on
receipts or liabilities of financial institutions any amounts paid in
respect thereof to another financial institution) together with
interests on them and penalties with respect of them (if any) and
charges, fees or other amounts made on or in respect of them.
THRESHOLD RATE OBLIGATION means any obligation of AMS under any
Transaction Document relating to any Fund to exercise its powers under
this Deed and the Master Origination and Servicing Agreement to change
the rate of interest payable on or in respect of Loans secured by
Mortgages to a minimum rate required to ensure that, subject to any
assumptions and having regard to any relevant matters specified in that
Transaction Document, the Trustee will have available to it sufficient
funds to enable it to comply with all of its obligations under the
Transaction Documents for that Fund as they fall due.
TRANSACTION DOCUMENTS means:
(a) this Deed;
(b) each Master Origination and Servicing Agreement;
(c) each Ancillary Document;
(d) each Security Trust Deed;
(e) each Bond Trust Deed;
(f) each Interest Rate Swap;
(g) each Currency Swap;
(h) all Bonds and the Supplementary Bond Terms relating to them;
(i) each Warehouse Funding Agreement;
(j) each Enhancement;
(k) each Subscription Agreement;
(l) each Paying Agency Agreement; and
(m) each other document which is expressed to be, or which is
agreed by the Trust Manager and Trustee to be, a Transaction
Document for the purposes of this Deed,
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and in relation to a Fund means all of the foregoing to the extent that
they relate to that Fund.
TRUST ACCOUNT means, in relation to a Fund, the bank account for that
Fund opened and maintained by the Trustee in accordance with clause 18.
TRUST MANAGER means initially ASM, and subsequently the person from
time to time appointed to perform the role of the Trust Manager under
this Deed.
TRUSTEE means initially PCL, and subsequently any person appointed as
the trustee of the Funds in accordance with this Deed.
TRUSTEE'S DEFAULT in relation to a Fund means:
(a) the Trustee breaches any obligation or duty imposed on the
Trustee under this Deed, or any other Transaction Document, in
relation to the Fund; and
(b) if the breach is capable of remedy, the Trustee does not
remedy the breach within 30 days after notice from the Trust
Manager or the Security Trustee (if any) requiring it to be
remedied.
TRUSTEE'S INDEMNITY means, in relation to a Fund:
(a) the Trustee's right of indemnity from the Assets of that Fund
in respect of liabilities incurred by the Trustee acting in
its capacity as trustee of that Fund; and
(b) all equitable liens and other Security Interests which the
Trustee has over the Assets of that Fund.
VESTING DATE means, in relation to a Fund, the earlier of:
(a) the date that is eighty years after 7 March 1995;
(b) the date upon which the Fund terminates by operation of law;
(c) if Bonds have been issued by the Trustee as trustee of the
Fund:
(i) the date immediately following the date upon which
the Trustee pays in full all moneys which are or may
become due (actually or contingently) in respect of
those Bonds; or
(ii) the date appointed by the Bondholders in relation to
the Fund as the Vesting Date, in accordance with this
Deed;
(d) if Bonds have not been issued by the Trustee as trustee of the
Fund, the date appointed by the Trust Manager as the Vesting
Date in accordance with this Deed; or
(e) in the case of a Warehouse Fund, the date nominated by the
Residual Income Beneficiaries of that Fund pursuant to clause
9.2.
WAREHOUSE BENEFICIARY means, in relation to a Warehouse Fund, each
Beneficiary of that Warehouse Fund.
WAREHOUSE FUND means each trust fund from time to time created under:
(a) this Deed following the giving by the Trust Manager to the
Trustee of a Fund Creation Notice which specifies that the
trust fund to be created is to be a "Warehouse Fund";
(b) the Domestic Master Trust Deed following the giving by the
Trust Manager (as defined in the Domestic Master Trust
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Deed) of a Fund Creation Notice (as defined in the Domestic
Master Trust Deed) that specifies that the trust fund to be
created is to be a "Warehouse Fund"; or
(c) the Euro Master Trust Deed following the giving by the Trust
Manager (as defined in the Euro Master Trust Deed) to the
Trustee (as defined in the Euro Master Trust Deed) of a Fund
Creation Notice (as defined in the Euro Master Trust Deed)
that specifies that the trust fund to be created is to be a
"Warehouse Fund".
WAREHOUSE FUNDING AGREEMENT means any agreement or arrangement pursuant
to which a Warehouse Beneficiary provides funding to the Trustee as
trustee of the relevant Warehouse Fund to settle and/or purchase
Mortgages.
WAREHOUSE TRIGGER EVENT means, in relation to a Warehouse Fund:
(a) a Trustee's Default occurs in relation to that Warehouse Fund
and continues unremedied;
(b) a Manager's Default occurs in relation to that Warehouse Fund
and continues unremedied;
(c) the Funding Period for that Warehouse Fund expires, and the
Trustee has not, within 5 Business Days of such expiry, given
to the relevant Warehouse Beneficiary a notice under clause
9.1 in respect of all of the Assets comprised in that
Warehouse Fund; or
(d) any other event occurs which is defined to be a Warehouse
Trigger Event for that Fund in any Warehouse Funding Agreement
relating to that Fund.
1.2 INTERPRETATION
In this Deed unless the context indicates a contrary intention:
(a) PERSON includes an individual, a body politic, a corporation
and a statutory or other authority or association
(incorporated or unincorporated);
(b) references to a party include that party's executors,
administrators, successors, substitutes and assigns, including
any person taking by way of novation;
(c) references to any legislation or to any section or provision
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;
(d) CORPORATION means any body corporate wherever formed or
incorporated, including any public authority or any
instrumentality of the Crown;
(e) the expression CERTIFIED by a corporation or person means
certified in writing by an Authorised Signatory of the
corporation or by that person respectively and CERTIFY and
like expressions shall be construed accordingly;
(f) words importing the singular shall include the plural (and
vice versa) and words denoting a given gender shall include
all other genders;
(g) headings are for convenience only and shall not affect the
interpretation of this Deed;
(h) references to a clause or a Schedule are to a clause or a
Schedule of this Deed;
(i) where any word or phrase is given a defined meaning, any other
part of speech or other grammatical form of that word or
phrase has a corresponding meaning;
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(j) where the day on or by which any sum is payable under this
Deed or any act, matter or thing is to be done is not a
Business Day such sum shall be paid and such act, matter or
thing shall be done on the next succeeding Business Day;
(k) all accounting terms shall be interpreted in accordance with
the Approved Accounting Standards;
(l) MONTH means calendar month;
(m) a reference to any document or agreement is to such document
as amended, varied, supplemented or novated from time to time;
and
(n) a reference to an ENTITLEMENT of a Beneficiary of a Fund means
the entitlement of that Beneficiary as set out in this Deed,
the relevant Fund Creation Notice and any Transaction Document
relating to that Fund.
1.3 INCORPORATED DEFINITIONS
Words and expressions defined in a Bond Trust Deed in respect of a Fund
have the same meanings when used in this Deed to the extent that this
Deed relates to that Fund unless otherwise defined in this Deed. Such
words and expressions include:
AUSTRALIAN DOLLARS, BOND, BONDHOLDER, CALCULATION AGENT, CURRENCY
SWAP, CURRENCY SWAP COUNTERPARTY, EXTRAORDINARY RESOLUTION, INTEREST
RATE SWAP, INTEREST RATE SWAP COUNTERPARTY, ISDA DEFINITIONS, ISDA
MASTER AGREEMENT, PAYING AGENCY AGREEMENT, PAYING AGENT,
SUBSCRIPTION AGREEMENT, US DOLLAR.
2. THE ARMS II FUNDS
2.1 APPOINTMENT OF TRUSTEE
The Trustee agrees to act as trustee of each Fund upon and subject to
the terms and conditions of this Deed.
2.2 SEPARATE AND DISTINCT FUNDS
Each Fund shall be a separate and distinct trust fund.
3. THE FUNDS
3.1 BENEFICIAL INTEREST IN FUNDS
The Trustee must hold each Fund, and each Asset comprised in that Fund
from time to time, on trust for the Beneficiaries of that Fund upon and
subject to the terms and conditions of this Deed.
3.2 FUND CREATION NOTICE
The Trust Manager may at any time give to the Trustee a notice in, or
substantially in, the form of Schedule 1 or in such other form as the
Trust Manager and the Trustee may from time to time agree, duly
completed and executed by an Authorised Signatory of the Trust Manager,
and specifying:
(a) whether the Fund to be created is a Warehouse Fund or an
Issuing Fund;
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(b) the Initial Amount for that Fund;
(c) the initial Beneficiaries of that Fund and their respective
entitlements as Beneficiaries of that Fund;
(d) the name of that Fund;
(e) the Income Distribution Dates for that Fund; and
(f) in the case of a Rated Fund, the Designated Rating Agency and
the Designated Rating for that Rated Fund.
3.3 CREATION OF ADDITIONAL FUNDS
If the Trust Manager has given to the Trustee a Fund Creation Notice,
then unless the Trustee rejects that Fund Creation Notice by written
notice to the Trust Manager within one Business Day of it being given,
the Fund referred to in that notice shall be constituted immediately
upon the Trust Manager settling or procuring the settlement upon the
Trustee of the Initial Amount.
3.4 NAME OF FUNDS
(a) Each Fund shall be known by the name specified in the relevant
Fund Creation Notice, unless the Trustee reasonably objects to
the use of that name, in which case that Fund will be called
by such other name as the Trustee and the Trust Manager may
agree.
(b) The Trustee and the Trust Manager may from time to time agree
in writing to change the name of a Fund.
3.5 DURATION OF FUNDS
Each Fund shall continue until, and shall terminate on, the Vesting
Date for that Fund.
3.6 BENEFICIARY REGISTER
(a) The interests of any person as a Beneficiary of a Fund will be
evidenced by registration in the register in relation to that
Fund maintained under this clause 3.6 (the BENEFICIARY
REGISTER).
(b) The Trustee must keep the Beneficiary Register in relation to
each Fund at its registered office in a form that it considers
appropriate and must enter on the Beneficiary Register in
relation to each Fund the following particulars.
(i) The name and address of the holder of each unit in
the Fund.
(ii) The date on which the name of the holder of each unit
in the Fund is entered in the Beneficiary Register in
relation to that Fund.
(iii) The date on which the holder of a unit in the Fund
ceases to be registered as the holder of that unit.
(iv) The subscription moneys initially paid for each unit
in the Fund, and the aggregate subscription moneys of
all units in the Fund from time to time.
(v) Any other details which the Trustee considers
necessary or desirable.
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(c) Each Beneficiary of a Fund shall promptly notify the Trustee
of any change of its name or address and the Trustee must
alter the Beneficiary Register in relation to that Fund
accordingly.
4. LIMITS ON RIGHTS OF BONDHOLDERS AND BENEFICIARIES
4.1 GENERAL LIMITS
Subject, in the case of a Warehouse Fund, to the terms of any Warehouse
Funding Agreement, no Bondholder or Beneficiary shall be entitled to:
(a) require the transfer to it of any Asset comprised in any Fund;
(b) exercise any rights, powers or privileges (including
instituting or defending legal proceedings) in respect of any
Asset of any Fund;
(c) attend meetings or take part in or consent to any action
concerning any property or corporation in which the Trustee
holds an interest;
(d) lodge or enter a caveat or similar instrument claiming an
estate or interest in any Asset of any Fund;
(e) have any recourse to the Trustee in its personal capacity,
except to the extent of any fraud, negligence or wilful
default by the Trustee; or
(f) seek to wind up any Fund.
4.2 FURTHER LIMITS ON INTERESTS OF BENEFICIARIES
No Beneficiary may assign, transfer or otherwise encumber its
beneficial interest in any Fund (otherwise than as expressly
contemplated by this Deed) without the prior written consent of the
Trust Manager and the Trustee (which either may give or withhold in its
absolute discretion). Any assignment, transfer or encumbrance in breach
of this clause shall be of no force and effect and shall not vest in
any purported assignee, transferee or encumbrancee any right, title or
interest in any Fund.
4.3 RANKING OF INTEREST OF BENEFICIARIES
The rights of any Beneficiary in relation to any Fund and in relation
to any payment or distribution out of any Fund shall at all times rank
after, and be subject to, the rights of Bondholders in respect of the
Bonds issued in relation to that Fund and other Creditors of that Fund.
4.4 RESOLUTION OF CONFLICTS
If there is at any time a conflict between:
(a) a duty owed by the Trustee or the Trust Manager under any
Transaction Document to a Beneficiary and a duty owed by such
person to the Bondholders under any Transaction Document; or
(b) a duty owed to Bondholders of one Series of Bonds and a duty
owed to Bondholders of another Series of Bonds ranking in
priority after that Series,
the Trustee or the Trust Manager must give priority:
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(i) to the interests of the Bondholders over the
interests of the Beneficiaries; and
(ii) to the interests of Bondholders in the same order of
priority as the ranking of the Series of Bonds held
by them respectively,
and shall not, provided it acts in good faith, incur any liability to
any Beneficiary or any Bondholder for so doing.
4.5 NO LIABILITY OF BONDHOLDERS OR BENEFICIARIES
No Beneficiary or Bondholder shall, by reason of being a Beneficiary or
Bondholder:
(a) have any liability to make any contribution to the Assets of
any Fund; or
(b) be under any obligation to indemnify the Trustee, the Trust
Manager, the Master Servicer or any other person in respect of
any of their respective liabilities (actual or contingent,
present or future) arising from the exercise by them of their
respective powers and the performance by them of their
respective duties and obligations under this Deed and the
Transaction Documents.
5. BONDS
5.1 NATURE OF BONDS
The Trust Manager may by giving notice to the Trustee in accordance
with clause 6, require the Trustee as trustee of an Issuing Fund, to
issue debt securities:
(a) in the form of inscribed stock and as otherwise determined by
the Trust Manager;
(b) in accordance with this Deed, the relevant Bond Trust Deed (if
any) and the relevant Security Trust Deed (if any); and
(c) with the benefit of and subject to this Deed, the relevant
Bond Trust Deed (if any), the relevant Supplementary Bonds
Terms and the relevant Security Trust Deed (if any).
5.2 TRUSTEE'S COVENANT TO BONDHOLDERS
The Trustee covenants for the benefit of each Bondholder:
(a) to make all payments on or in respect of the Bonds held by
that Bondholder on the due date for payment; and
(b) to comply with:
(i) all of the relevant Bond Terms;
(ii) the relevant Bond Trust Deed (if any); and
(iii) the relevant Security Trust Deed (if any).
5.3 MINIMUM FACE VALUE OF BONDS
The minimum initial Face Value of each Bond shall be as specified in
the relevant Bond Terms.
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5.4 BONDS NOT INVALID IF ISSUED IN BREACH
No Bond shall be invalid or unenforceable on the ground that it was
issued in breach of this Deed or any other Transaction Document.
6. PROCEDURE FOR ISSUE OF BONDS
6.1 FORM OF ISSUE NOTICE
Each Issue Notice must, subject to the relevant Supplementary Bond
Terms:
(a) be in the form of Schedule 2, or in such other form as the
Trustee and the Trust Manager may from time to time agree;
(b) be signed by an Authorised Signatory of the Trust Manager;
(c) be received by the Trustee not less than 5 Business Days
before the Issue Date (or at such other time as may be agreed
between the Trustee and the Trust Manager);
(d) specify:
(i) the name or designation to be ascribed to the Bonds;
(ii) the aggregate Face Value of the Bonds to be issued;
(iii) the denominations in which the Bonds are to be
issued;
(iv) the Issue Date;
(v) all reasonable details of any Security Trust Deed,
Bond Trust Deed, Enhancements and Currency Swaps
required to be entered into by the Trustee as trustee
of the relevant Issuing Fund as a condition precedent
to the issue of the Bonds;
(vi) whether any of the Bonds will constitute a separate
Series of Bonds, and if so specify the information
referred to in the previous sub-paragraphs of this
paragraph (d) with respect to each such Series;
(vii) whether the Portfolio is comprised in the Assets of a
Warehouse Fund, and if not the person for whose
benefit the Issue Proceeds of that Issue are to be
held pursuant to clause 6.8(a); and
(viii) all other Transaction Documents to be entered into in
connection with or as a condition precedent to the
issue of the Bonds;
(e) have attached to it or otherwise identify in a manner
satisfactory to the Trustee:
(i) details of the Portfolio which the Trustee, as
trustee of the relevant Issuing Fund, is to acquire
with the Issue Proceeds;
(ii) the Supplementary Bond Terms applicable to those
Bonds, which must specify the details referred to in
clause 6.3; and
(iii) if the relevant Issuing Fund is a Rated Fund, a
letter or certificate from the Designated Rating
Agency addressed to the Trustee confirming that the
Bonds in each Series specified in the Issue Notice
will be rated not lower than the Designated Rating
for that Series, and if Bonds have previously been
issued by the Trustee as trustee of that Issuing Fund
that the issue of the Bonds specified in the
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Issue Notice will not cause the credit rating
assigned to the Bonds previously issued to be
downgraded to a credit rating lower than the
Designated Rating for those Bonds; and
(f) contain a certification by the Trust Manager that:
(i) the terms of this Deed with respect to the proposed
Issue have been, and will on the Issue Date continue
to be complied with;
(ii) the acquisition of the Portfolio and the
characteristics of the Portfolio are consistent with
all information memoranda, notices, reports,
statements and the like given to Bondholders or
prospective Bondholders, and will not cause any
statements made in any such document or statement to
be misleading or deceptive, or likely to mislead or
deceive; and
(iii) assuming that all parties to all Transaction
Documents relating to the relevant Issuing Fund, and
all issuers of Authorised Investments from time to
time comprised in the Assets of that Issuing Fund
comply in full with their respective obligations
under those Transaction Documents and Authorised
Investments and having regard to:
(A) the terms of those Transaction Documents;
(B) the terms of the Mortgages comprised in the
relevant Portfolio;
(C) the anticipated Expenses of that Issuing
Fund; and
(D) all other information available to the Trust
Manager,
the Trustee will have available to it sufficient
funds to enable it to comply with its obligations
under those Transaction Documents.
6.2 NOTICE TO WAREHOUSE BENEFICIARY
If the Portfolio of which details are attached to an Issue Notice in
accordance with clause 6.1(e)(i) comprises Assets of a Warehouse Fund,
the Trust Manager must give a copy of the Issue Notice to each
Beneficiary of that Warehouse Fund at the same time as it gives the
Issue Notice to the Trustee.
6.3 SUPPLEMENTARY BOND TERMS
The Supplementary Bond Terms for the Bonds comprised in each Issue must
specify:
(a) the rate per annum (if any) at which interest payable on the
Face Value of the Bonds is to be calculated and the method of
calculation;
(b) the Interest Payment Dates (if any);
(c) the Amortisation Dates (if any);
(d) the Amortisation Amounts payable on each Amortisation Date, or
the method of calculating those amounts;
(e) the Maturity Date of the Bonds;
(f) any preferred, deferred or other rights applicable to the
Bonds;
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(g) if the Issue will comprise Bonds of different Series, the
details specified in the previous paragraphs of this clause
6.3 with respect to each Series, and any other terms and
conditions which distinguish Bonds in one Series from Bonds in
any other Series;
(h) in the case of an Issue in respect of a Rated Fund, the
minimum rating requirements in relation to that Rated Fund;
and
(i) any other terms and conditions which the Trustee and the Trust
Manager may agree.
6.4 AMENDMENT
With the consent of the Trustee, the Trust Manager may prior to an
Issue Date amend by notice in writing to the Trustee an Issue Notice
previously given, or the Supplementary Bond Terms or details of the
Portfolio attached to such an Issue Notice.
6.5 ACCEPTANCE OF ISSUE NOTICE
The Trustee may rely upon any certification from the Trust Manager to
the contents of an Issue Notice as evidence of the matters so
certified.
6.6 NON-COMPLYING ISSUE NOTICE
If the Trustee receives an Issue Notice which it reasonably believes
does not comply with this clause 6, it must no later than close of
business 2 Business Days prior to the proposed Issue Date advise the
Trust Manager in writing giving reasonable details of the reasons for
the Trustee's belief.
6.7 ISSUE OF BONDS AND TRANSFER OF BENEFIT OF MORTGAGES
If the Trustee has:
(a) received an Issue Notice which it reasonably believes complies
with this clause 6;
(b) subject to clause 6.9, received the Subscription Amount (in
cleared funds) in an aggregate amount equal to the Face Value
of the Bonds referred to in the relevant Issue Notice; and
(c) as trustee of the relevant Fund, on or prior to the proposed
Issue Date:
(i) entered into a Security Trust Deed (if specified in
the relevant Issue Notice);
(ii) entered into or otherwise obtained the benefit of the
Transaction Documents relating to that Fund as
referred to in the relevant Issue Notice; and
(iii) received a Portfolio Compliance Certificate given as
of a time no earlier than 5:00 pm on the Business Day
immediately preceding the proposed Issue Date,
then, the Trustee must, subject to the terms of this Deed, on
the Issue Date, issue Bonds, as trustee of the relevant Fund,
in accordance with the Transaction Documents relating to that
Fund.
6.8 ACQUISITION OF PORTFOLIO
Upon receipt of the Issue Proceeds of an Issue, the Trustee:
(a) will (notwithstanding any other provision of this Deed) hold
those Issue Proceeds:
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(i) if and to the extent that the Portfolio specified in
the relevant Issue Notice was, immediately prior to
the Issue Date, comprised in the Assets of a
Warehouse Fund, as trustee of that Warehouse Fund; or
(ii) if and to the extent that the Portfolio specified in
the relevant Issue Notice was not, immediately prior
to the Issue Date, comprised in the Assets of a
Warehouse Fund, upon trust absolutely for the benefit
of the person specified in the relevant Issue Notice,
in each case to the extent of the aggregate Face Value of the
relevant Mortgages comprised in that Portfolio as at close of
business on the Business Day immediately preceding the Issue
Date;
(b) must (notwithstanding clause 18.5) cause those Issue Proceeds
to be credited direct to the Trust Account for the relevant
Warehouse Fund or to be applied in accordance with the
instructions of the Beneficiaries of the relevant Warehouse
Fund or, (if clause 6.8(a)(ii) applies) deal with them in
accordance with the Trustee's obligations to the person for
whose benefit they are held, or otherwise in accordance with
the directions of that person;
(c) will hold automatically by virtue of this Deed (without any
further act or other thing being done or any instrument being
brought into existence) as trustee of the relevant Issuing
Fund the benefit of:
(i) the Portfolio specified in the relevant Issue Notice;
and
(ii) all Ancillary Documents, Enhancements and Interest
Rate Swaps relating to the Mortgages in that
Portfolio; and
(d) must apply the balance (if any) of the Issue Proceeds in
accordance with the relevant Supplementary Bond Terms.
6.9 AMOUNT OF BONDS CREATED FOR AN ISSUING FUND
The aggregate Subscription Amount of Bonds issued on an Issue Date may
exceed the aggregate Face Value (as at close of business on the
Business Day immediately preceding the Issue Date) of Mortgages in the
Portfolio to be held by the Trustee as trustee of the relevant Issuing
Fund under clause 6.8(c) only to the extent and on conditions such that
each Designated Rating Agency confirms that any credit rating assigned
or to be assigned to any Bonds to be issued by the Trustee as trustee
of that Issuing Fund will not be downgraded below the Designated
Rating, qualified or withdrawn.
6.10 ACTION FOLLOWING ISSUE
As soon as practicable after an Issue Date, the Trust Manager must
direct the Trustee to take, and the Trustee must take, all action and
do all things which the Trustee is obliged to do under the Transaction
Documents relating to the relevant Fund.
6.11 NO LIABILITY FOR INSUFFICIENT MONEYS
If on an Issue Date the conditions specified in paragraphs (a)-(c) of
clause 6.7 and clause 6.9 are not fulfilled:
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(a) the Trustee shall not proceed with the Issue and will refund
all Subscription Amounts received to the applicants for Bonds;
and
(b) neither the Trustee nor the Trust Manager shall have any
obligation or liability to any person to proceed with the
Issue.
6.12 RECORDING OF TRANSFER AND FURTHER ASSURANCE
On or as soon as reasonably practicable following an Issue Date:
(a) the Trust Manager must record in the records kept pursuant to
clause 20 the transfer to the relevant Issuing Fund of the
benefit of the Portfolio details of which were attached to the
corresponding Issue Notice (and the benefit of all
corresponding Ancillary Documents, Enhancements, and Interest
Rate Swaps); and
(b) the Trustee must execute such documentation and do all such
other acts, matters or things as the Trust Manager reasonably
requires to give effect to that transfer.
6.13 SUBSEQUENT ADJUSTMENT
(a) (ACCRUED INTEREST) Following an Issue Date, the Trustee, as
trustee of the Warehouse Fund in which the Portfolio acquired
with the proceeds of the relevant Issue were held prior to
that Issue, shall be entitled to any interest proceeds
received by the Trustee that represents accrued but unpaid
interest on Mortgages in that Portfolio up to (but not
including) the Issue Date. The Trust Manager must notify the
Trustee of the amount of any such interest as soon as
reasonably practicable following the Issue Date. Upon receipt
of such notification, the Trustee must promptly credit the
amount of any such interest to the Trust Account for the
relevant Warehouse Fund.
(b) (OTHER COSTS) Subject to paragraph (c) below, the Trust
Manager may in its absolute discretion direct the Trustee in
writing on or at any time after an Issue Date to transfer
funds between the corresponding Warehouse Fund or Issuing Fund
with such other amounts as the Trust Manager considers
appropriate, so that:
(i) the Warehouse Fund has the benefit of any receipts,
and bears the cost of any losses or outgoings, in
respect of each Mortgage (and any corresponding
Ancillary Documents, Enhancements and Interest Rate
Swaps) up to (but not including) the Issue Date; and
(ii) the Issuing Fund has the benefit of such receipts,
and bears such costs, from (and including) the Issue
Date.
(c) (TRUST MANAGER TO CERTIFY ADJUSTMENTS) A written direction by
the Trust Manager pursuant to this clause 6.13 must certify
that the relevant amount is, in the opinion of the Trust
Manager, to be properly debited or credited to a Warehouse
Fund or an Issuing Fund (as the case may be).
(d) (TRUSTEE TO ACT IN ACCORDANCE WITH DIRECTION) The Trustee must
act in accordance with, and may rely upon, a written
direction, of the Trust Manager and any certificate given in
accordance with this clause 6.13.
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6.14 NO LIMIT ON BONDS
Subject to the provisions of this Deed, any relevant Bond Trust Deed
and any relevant Security Trust Deed, there shall be no limit on the
number or Face Value of Bonds which may be issued in respect of a Fund.
6.15 COMPLIANCE WITH LAWS
The Trust Manager must ensure that no issue or allotment of Bonds,
offer of Bonds for subscription or purchase, or invitation to subscribe
for or buy, Bonds shall be made unless the issue, allotment, offer or
invitation is made in compliance with all applicable laws in all
jurisdictions in which the issue, allotment, offer or invitation is
made.
7. TRANSFERS OF BONDS
Intentionally blank.
8. REGISTRATION CONFIRMATIONS
Intentionally blank.
9. WAREHOUSE FUNDING
9.1 TRANSFER OF WAREHOUSE ASSETS TO ANOTHER FUND
The Trust Manager, may at any time by not less than 5 Business Days
prior written notice (or such other period, either shorter or longer,
as may be specified in any relevant Transaction Document or agreed by
the relevant Warehouse Beneficiary) require the transfer by a Warehouse
Beneficiary of its beneficial interest in some or all of the Assets of
the relevant Warehouse Fund to:
(a) the Trustee in its capacity as trustee of an Issuing Fund or
another Warehouse Fund; or
(b) a person nominated by the Trust Manager,
in consideration of payment by the Trustee to that Warehouse
Beneficiary of an amount equal to (subject to any provision of any
relevant Warehouse Funding Agreement):
(c) the Face Value of those Assets; minus
(d) the aggregate of:
(i) all Taxes which are or may become payable in respect
of the relevant Warehouse Fund;
(ii) all Expenses incurred but not previously paid of that
Warehouse Fund;
(iii) all other amounts which are or may become payable by
it to Creditors of that Warehouse Fund; and
(iv) all amounts in respect of which it is entitled to be
reimbursed or indemnified under this Deed; plus
(e) any other amount payable to the Warehouse Beneficiary in
accordance with the relevant Warehouse Funding Agreement.
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9.2 WAREHOUSE TRIGGER EVENT
If a Warehouse Trigger Event occurs in relation to a Warehouse Fund,
the Residual Income Beneficiaries of that Fund may by notice in writing
to the Trustee and the Trust Manager:
(a) nominate a date (which must not be less than 5 Business Days
after the date of the notice) as the Vesting Date for that
Fund; and
(b) subject to clauses 9.1, 9.3, 21 and 25.10 and the Fund
Creation Notice in relation to that Fund, require the transfer
on the Vesting Date by the Trustee to the Residual Income
Beneficiaries of all of the Assets of that Fund.
9.3 PARTIES TO GIVE EFFECT TO TRANSFER
Each of the Trustee, the Trust Manager and the Warehouse Beneficiaries
of a Warehouse Fund must execute all documents and do all things as the
other may reasonably require to give effect to a transfer of the Assets
of a Fund following the giving by:
(a) the Trust Manager of a notice under clause 9.1; or
(b) the Residual Income Beneficiaries of a notice under clause
9.2.
9.4 RIGHTS ADDITIONAL TO ISSUE OF BONDS
This clause 9 does not limit the operation of clause 6.
10. APPOINTMENT OF TRUST MANAGER
10.1 APPOINTMENT
The Trust Manager must manage each Fund upon and subject to the terms
of this Deed.
10.2 POWERS OF MANAGEMENT
The Trust Manager has, subject to this Deed, full and complete powers,
and is responsible for, the management of the Funds (including
liabilities), including:
(a) the management, administration, investment and day to day
operation of the Funds; and
(b) the keeping of all books, records and accounts for each Fund
in accordance with this Deed.
10.3 TRUST MANAGER TO ENFORCE AGAINST MASTER SERVICER
The Trust Manager must take all reasonable action to:
(a) ensure that the Master Servicer complies with its obligations
under the Master Origination and Servicing Agreement; and
(b) enforce the performance by the Master Servicer of its
obligations under the Master Origination and Servicing
Agreement.
10.4 TRUST MANAGER NOT LIABLE FOR MASTER SERVICER
Neither the Trustee nor, subject to clause 10.3, the Trust Manager has
any responsibility or liability for the performance by the Master
Servicer of its obligations under the Master Origination and Servicing
Agreement.
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10.5 NO ENQUIRY
The Trustee has no obligation to make any enquiry as to the performance
by the Master Servicer of its obligations under the Master Origination
and Servicing Agreement.
11. INVESTMENT OF THE FUND
11.1 AUTHORISED INVESTMENTS
(a) Subject to the terms of this Deed, the Assets of each Fund
must comprise only property which is an Authorised Investment
at its date of acquisition.
(b) If an Asset of a Fund would not at any time be an Authorised
Investment if it were to be acquired at that time, neither the
Trustee nor the Trust Manager shall be obliged to dispose of
that Asset.
11.2 TRUST MANAGER TO MAKE PROPOSALS
The Trust Manager must from time to time make proposals to the Trustee
as to the investment of the Assets of the Fund. Each such proposal
must:
(a) be in writing in a form agreed between the Trustee and the
Trust Manager;
(b) specify the Authorised Investments to be purchased or sold;
(c) specify the action (if any) to be taken by the Trustee to give
effect to it;
(d) contain a certification by the Trust Manager that the giving
effect to by the Trustee of the proposal will be in accordance
with this Deed;
(e) specify the price to be paid for the Asset or in the case of a
Loan to be made by the Trustee, the amount of the Loan;
(f) specify to whom any amount is payable under paragraph (e), or
if an Asset is to be acquired from a Warehouse Fund, the name
of the Warehouse Fund;
(g) in the case of the making of a Loan secured by a Mortgage,
contain a certification by the Trust Manager that it is not
aware of any breach by the Master Servicer of the
representations and warranties made in the Master Origination
and Servicing Agreement with respect to that Loan or Mortgage;
and
(h) contain all other information which the Trustee may reasonably
require to satisfy itself that certification is correct and to
give effect to the proposal.
An Issue Notice which complies with clause 6 complies with this clause
11.2.
11.3 TRUSTEE TO COMPLY WITH PROPOSALS
The Trustee:
(a) must comply with a proposal made by the Trust Manager in
accordance with this Deed provided that, in the case of a
proposal for the making or acquisition of a Loan secured by a
Mortgage (unless any Transaction Document otherwise provides
or unless otherwise agreed), the Trustee has received evidence
satisfactory to it that a Solicitor's Certificate
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required by clause 12.1(b) of the Master Origination and
Servicing Agreement has been or will upon such a Loan being
made or acquired, be issued; and
(b) may rely upon the recommendations and advice of the Trust
Manager with respect to any such proposal, without being under
a duty to make any enquiry or exercise any judgment as to:
(i) the merits of the proposal; or
(ii) whether the proposal complies with this Deed (unless
the Trustee ought reasonably to know that the
proposal does not so comply).
11.4 AUTHORISED INVESTMENTS FOR RATED FUNDS
The Trust Manager shall only give to the Trustee as a trustee of a
Rated Fund a proposal to acquire investments falling within paragraphs
(c)-(h) (inclusive) of the definition of AUTHORISED INVESTMENTS where
the investment (or the issuer of it) has a rating that complies at the
time of the proposed acquisition with the minimum rating requirements
(if any) specified in any Warehouse Funding Agreement, Supplementary
Bond Terms or in relation to that Rated Fund.
11.5 LIMITATION ON MATURITY OF INVESTMENTS
The Trust Manager must ensure that, to the extent that money is or will
be required to meet Expenses of a Fund or payments due to Bondholders,
Interest Rate Swap Counterparties or Currency Swap Counterparties of a
Fund, the Assets of that Fund are invested in Authorised Investments
which mature or are otherwise immediately available in or convertible
into cash on or before the date those Expenses of the Fund or payments
(as the case may be) are due.
11.6 RIGHTS ATTACHING TO ASSETS
(a) The Trust Manager may exercise all voting and other rights
conferred by any Assets of a Fund in such manner as it sees
fit in its absolute discretion.
(b) The Trustee must execute and deliver to the Trust Manager or
as the Trust Manager directs all proxies and powers of
attorney which the Trust Manager may request for the purposes
of exercising the voting and other rights conferred by the
Assets of a Fund.
11.7 TRUSTEE'S DEALING WITH ASSETS
The Trustee must not buy, sell or otherwise deal with the Assets of a
Fund except in accordance with the proposals of the Trust Manager made
in accordance with this Deed.
11.8 SWAPS AND ENHANCEMENTS
Subject to the terms of this Deed, the Trustee must, as trustee of a
Fund, enter into any Interest Rate Swaps, Currency Swaps and
Enhancements on such terms and with such counterparties as the Trust
Manager may require in writing, provided that if the Fund is a Rated
Fund, the identity of the counterparty and the terms of the relevant
Transaction Document must be such that each Designated Rating Agency
confirms that the entering into of such arrangements will not cause any
credit rating assigned to any Bonds issued by the Trustee as trustee of
that Rated Fund to be downgraded below the Designated Rating, qualified
or withdrawn.
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11.9 SWAPS AND ENHANCEMENTS FOR RATED FUNDS
The Trustee, as trustee of a Rated Fund in respect of which Bonds have
previously been issued, must not enter into or terminate any Interest
Rate Swap, Currency Swap or Enhancement unless the Trustee receives a
direction from the Trust Manager to do so and a certificate from the
Trust Manager that doing so:
(a) either will not cause the rating of those Bonds by a
Designated Rating Agency to be downgraded, or is necessary to
avoid the rating of those Bonds being downgraded; and
(b) is in the best interests of the Creditors and Beneficiaries of
that Rated Fund.
11.10 LIMITATION OF TRUSTEE'S PERSONAL LIABILITY
Notwithstanding any other provision of this Deed, the Trustee is not
obliged to execute any document or incur any obligation as trustee of a
Fund unless its personal liability under that document or in respect of
that obligation is limited in a manner consistent with clause 25.9.
11.11 MONEYS PAYABLE TO TRUSTEE
Subject to this Deed, the Trust Manager must ensure that any agreement
entered into by the Trustee as trustee of a Fund contains a provision
to the effect that any moneys payable to the Trustee under it must be
paid to the Trustee, or to an account or Authorised Investment in the
name of the Trustee.
11.12 SEGREGATION OF ASSETS OF A FUND
Subject to this Deed, the Trustee must:
(a) ensure that no Assets of a Fund are mixed or co-mingled with
the Assets of any other Fund, or with any assets or property
of the Trustee or any other person; and
(b) where advised by the Trust Manager that it is appropriate to
do so, apportion any Asset coming into the hands of the
Trustee which belongs to one or more Fund, or of any liability
which relates to one or more Fund, in such manner as the Trust
Manager certifies in writing is fair and reasonable.
11.13 ASSETS OF FUNDS
The Assets of a Fund are only available to meet liabilities incurred by
the Trustee as trustee of that Fund, and are not available to meet any
other liabilities of the Trustee (whether incurred personally or as
trustee of any other Fund).
11.14 LIABILITIES OF A FUND
Subject to clause 11.12, liabilities incurred by the Trustee as trustee
of a Fund must not be:
(a) aggregated with any liabilities of the Trustee, whether
incurred personally or as trustee of any other Fund; or
(b) set-off against the Assets of any other Fund.
11.15 ORIGINATION AND MANAGEMENT OF MORTGAGES
All Mortgages must be originated, managed and serviced in accordance
with:
(a) the Master Origination and Servicing Agreement; and
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(b) any Interest Rate Swaps and Enhancements relating to those
Mortgages.
11.16 TRUST MANAGER WILL ACT AS MASTER SERVICER
If:
(a) the appointment of the Master Servicer is terminated under the
Master Origination and Servicing Agreement; and
(b) the Master Servicer is not immediately replaced on the same or
substantially the same terms,
the Trust Manager must with effect from the date the termination
becomes effective assume the role of Master Servicer, upon the same
terms and conditions as those binding on the Master Servicer under the
Master Servicing and Origination Agreement immediately prior to
termination, until a replacement Master Servicer is appointed.
11.17 TRUST MANAGER'S POWER TO DELEGATE
The Trust Manager may, in performing its obligations under this Deed:
(a) delegate to any of its officers and employees all or any of
the powers, authorities and discretions conferred on the Trust
Manager by this Deed;
(b) by power of attorney:
(i) appoint any person to be its attorney or agent for
such purpose and with such powers, authorities and
discretions (not exceeding those vested in the Trust
Manager) as the Trust Manager thinks fit with or
without power to sub-delegate, and also to authorise
the issue in the name of the Trust Manager of
documents bearing facsimile signatures of the Trust
Manager or of the attorney or agent either with or
without proper manuscript signatures of their
officers thereon; and
(ii) insert such provisions for the protection and
convenience of those dealing with any such attorney
or agent as the Trust Manager may think fit;
(c) appoint by writing or otherwise any person to be agent or
sub-agent of the Trust Manager as the Trust Manager may think
necessary or proper for such purposes and with such power,
authorities and discretions (not exceeding those vested in the
Trust Manager) as the Trust Manager thinks fit and to
supersede or suspend any such agent or sub-agent for such
cause or reason as the Trust Manager may in its sole
discretion think sufficient with or without assigning any
cause or reason and either absolutely or for such time as it
may think proper; and
(d) delegate to another person approved by the Trustee, on terms
approved by the Trustee, its obligations under this Deed with
respect to the origination, management and servicing of
Mortgages. The Trustee must not unreasonably withhold or delay
its approval in either case.
11.18 TRUST MANAGER
The Trust Manager is, subject to clause 10.4, liable for:
(a) the acts or omissions of any officer, employee, attorney,
agent, sub-delegate or sub-agent to whom any delegation is
made under clause 11.17; and
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(b) the fees and expenses of any such person.
11.19 PROFESSIONAL ADVISERS
The Trust Manager may engage and pay reasonable expenses to any
valuers, solicitors, barristers, accountants, surveyors, property
advisers, real estate agents, contractors, qualified advisers, and such
other persons as may be necessary, usual or desirable for the purpose
of enabling the Trust Manager to be fully and properly advised and
informed, in order that it may properly exercise its powers and perform
its obligations under this Deed.
12. ADDITIONAL OBLIGATIONS OF TRUST MANAGER AND AMS
12.1 GENERAL
The covenants in this clause 12 are for the benefit of the Trustee,
each Beneficiary and each Bondholder.
12.2 ADDITIONAL OBLIGATIONS
The Trust Manager must:
(a) (ACT HONESTLY) act honestly and in good faith in the
performance of its duties and in the exercise of its powers
under this Deed;
(b) (PRUDENTLY) exercise such diligence and prudence as a prudent
man of business would exercise in performing its duties and
exercising its powers under this Deed, having regard to the
interests of the Beneficiaries and the Bondholders;
(c) (CONDUCT ITS BUSINESS PROPERLY) use its best endeavours to
carry on and conduct its business in so far as it relates to
this Deed in a proper and efficient manner;
(d) (MAKE AVAILABLE RECORDS) make available to the Trustee for
inspection all of the books and records of each Fund
maintained by the Trust Manager under this Deed and give to
the Trustee such written or oral information as the Trustee
reasonably requires with respect to all matters relating to
the Funds;
(e) (PAY RECEIPTS) pay to the Trustee, within one Business Day of
receipt, all money coming into its hand which is an Asset of a
Fund;
(f) (NOT CO-MINGLE) ensure that any Assets of a Fund which it may
come to hold from time to time are not mixed or co-mingled
with any Assets of any other Fund, or with any assets of the
Trust Manager or any other person;
(g) (PREPARE NOTICES) prepare or cause to be prepared all notices,
reports statements and the like which the Trustee is required
to prepare under any of the provisions of this Deed and
deliver those notices and statements;
(h) (APPROVAL OF NOTICES) submit to the Trustee all information
memoranda, notices, reports, statements and the like to be
given by the Trust Manager to Bondholders, or prospective
Bondholders, for the Trustee's consent prior to the issue of
the same other than notices, reports, statements and
information provided by the Trust Manager to Bondholders on a
periodic basis or on request by a Bondholder relating to the
nature of the Authorised
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Investments comprised in the Assets of a Fund and the
performance of those Authorised Investments;
(i) (ACCURACY OF NOTICES) ensure that all information memoranda,
notices, reports, statements and the like given by the Trust
Manager to Bondholders or prospective Bondholders:
(i) are true in all material respects;
(ii) are not misleading or deceptive or likely to mislead
or deceive; and
(iii) comply with the requirements of all applicable laws;
(j) (COPIES OF ALL NOTICES) give to the Trustee a copy of all
notices, reports and statements provided by the Trust Manager
to Bondholders, including those provided on a periodic basis
or on request;
(k) (Taxes) direct the Trustee to make all payments (as and when
they fall due) out of a Fund for Taxes levied upon any Fund or
upon the Trustee in its capacity as trustee of any Fund;
(l) (MONITOR TRANSACTION DOCUMENTS) monitor and enforce the
Transaction Documents and take all such steps as are necessary
to ensure that the Trustee complies with its obligations and
obtains the benefits conferred on it by the Transaction
Documents to which it is a party;
(m) (COMPLY WITH TRANSACTION DOCUMENTS) comply with its
obligations under all Transaction Documents to which it is a
party; and
(n) (NECESSARY INFORMATION) give to the Trustee all information,
notices, certificates, consents, approvals and authorisations
which it is entitled or obliged to give under the Transaction
Documents and which are necessary to enable the Trustee to
comply with its obligations under the Transaction Documents.
12.3 TRUST MANAGER CANNOT BIND TRUSTEE UNLESS AUTHORISED
In exercising its powers, authorities and discretions and performing
its duties and obligations under this Deed, the Trust Manager has no
power to bind the Trustee, otherwise than as expressly provided in this
Deed.
12.4 THRESHOLD RATE OBLIGATION OF AMS
AMS must:
(a) comply with each Threshold Rate Obligation; and
(b) without limiting paragraph (a), in complying with each
Threshold Rate Obligation, have regard to:
(i) the interests of the Beneficiaries of each Fund; and
(ii) the ability of the Beneficiaries of each Fund to
comply with their respective obligations where such
obligations are secured by a Security Interest over
their respective entitlements to receive
distributions of income from the Funds.
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13. RETIREMENT OF TRUST MANAGER
13.1 REMOVAL
The Trustee may terminate the appointment of the Trust Manager under
this Deed if:
(a) an Event of Insolvency occurs in relation to the Trust
Manager; or
(b) a Manager's Default has occurred and is continuing.
13.2 VOLUNTARY RETIREMENT
The Trust Manager may, subject to clause 13.3, resign upon giving to
the Trustee not less than 3 months' notice in writing (or such other
period as the Trust Manager and the Trustee may agree) of its intention
to do so.
13.3 NO RESIGNATION BY TRUST MANAGER UNLESS SUCCESSOR APPOINTED
The Trust Manager must not resign under clause 13.2 unless:
(a) it procures that, before the date on which that termination
becomes effective, another person assumes all of the
obligations of the Trust Manager under this Deed as its
successor, and executes such documents as the Trustee requires
to become bound by this Deed, with effect from that date, as
if it had originally been a party to this Deed as the Trust
Manager; and
(b) the appointment of the successor Trust Manager under paragraph
(a):
(i) is approved by the Trustee; and
(ii) will not cause the credit rating of any Bonds issued
by the Trustee as trustee of any Fund to be
downgraded below the Designated Rating for that Fund.
13.4 TRUSTEE APPOINTS REPLACEMENT TRUST MANAGER
On termination of the appointment of the Trust Manager (the OUTGOING
MANAGER) under clause 13.1, the Trustee shall be entitled to appoint
another person to be the Trust Manager (the INCOMING MANAGER) and until
any such appointment is made, the Trustee shall, subject to this Deed
and to any approval required by law, act as Trust Manager and shall be
entitled to the Manager's Fee.
13.5 TERMS OF APPOINTMENT OF INCOMING MANAGER
The Trustee must ensure that the Incoming Manager executes such
documents as the Trustee requires to assume with effect from the date
its appointment becomes effective, all of the rights, powers,
discretions and obligations of the Trust Manager under this Deed and
the Transaction Documents to which the Outgoing Manager is or was a
party, as if the Incoming Manager had been originally a party to this
Deed and any such Transaction Documents as the Trust Manager.
13.6 EFFECT OF TERMINATION OF OUTGOING MANAGER
The termination of the appointment of the Outgoing Manager under this
clause 13 will not affect any of the rights, obligations or liabilities
of the Outgoing Manager under this Deed or any Transaction Document
accrued or arising before such termination, or as a result of any act
or thing occurring before such termination.
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13.7 DELIVERY OF DOCUMENTS
The Outgoing Manager must immediately upon termination of its
appointment becoming effective deliver to the Trustee (or at its
direction) the Data Base and all other books, documents, records and
property relating to the Funds. The Outgoing Manager is entitled to
take, and keep copies of such books, documents and records. Each of the
Trustee and the Incoming Manager must produce the originals of such
books, documents and records in its possession upon the giving of
reasonable written notice by the Outgoing Manager.
13.8 NOTICE TO SECURITY TRUSTEE OF INCOMING MANAGER
The Trustee or the Incoming Manager must give notice to the Security
Trustee (if any) as soon as practicable following the appointment of
the Incoming Manager.
14. TRUSTEE'S POWERS
14.1 GENERAL POWER
Subject to the terms of this Deed, the Trustee has all of the rights,
powers and discretions over and in respect of the Assets of the Funds
which it could exercise if it were the absolute and beneficial owner of
such Assets.
14.2 SPECIFIC POWERS
The Trustee has the following powers:
(a) (AUTHORISED INVESTMENTS) to make, purchase, acquire, dispose
of or otherwise deal with any Authorised Investment;
(b) (ENFORCEMENT OF RIGHTS) to exercise or enforce its rights
under or in respect of any of the Assets of any Fund;
(c) (FEES AND EXPENSES) to pay all Expenses of a Fund;
(d) (ADVISERS) to engage, and to incur reasonable expenses in
relation to, any valuers, solicitors, barristers, accountants,
surveyors, property advisers, real estate agents, contractors,
qualified advisers, and such other persons as may be
necessary, usual or desirable for the purpose of enabling the
Trustee to be fully and properly advised and informed, in
order that it may properly exercise its powers and perform its
obligations under this Deed;
(e) (PROCEEDINGS) to institute, prosecute, defend, settle and
compromise legal or administrative proceedings in respect of
the Assets of any Fund;
(f) (WAIVERS) to give any waiver, time or indulgence to any person
on such terms as it may in its discretion determine;
(g) (BONDS) to borrow money by the issue of Bonds as provided in
this Deed;
(h) (OTHER BORROWINGS) to otherwise borrow or raise money or
procure financial accommodation;
(i) (TRANSACTION DOCUMENTS) to enter into and perform its
obligations under any Transaction Document;
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(j) (INSURANCE) to insure any Asset;
(k) (ATTEND MEETINGS) to attend and vote at meetings; and
(l) (INCIDENTAL POWERS) to do all such things which the Trustee
reasonably considers incidental to any of the previous powers
or necessary or convenient to be done for or in connection
with any Fund or the Trustee's functions under this Deed.
Each of the above powers is a separate and independent power. None of
them limits the others, or any other power of the Trustee under this
Deed.
14.3 DELEGATION TO RELATED BODIES CORPORATE
The Trustee may, with the prior written consent of the Trust Manager
from time to time by instrument in writing delegate to any Related Body
Corporate of the Trustee which is a trustee company or trustee
corporation for the purposes of any of the following:
(a) the Trustee Companies Act 1964 (New South Wales);
(b) the Trustee Companies Act 1984 (Victoria);
(c) the Trustee Companies Act 1968 (Queensland);
(d) the Trustee Companies Act 1988 (South Australia);
(e) the Trustee Companies Act 1953 (Tasmania);
(f) the Trustee Companies Ordinance 1947 (Australian Capital
Territory); or
(g) the Trustee Companies Act 1987 (Western Australia),
the exercise of its powers and the performance of its obligations under
this Deed.
14.4 TRUSTEE'S POWER TO DELEGATE; APPOINT ATTORNEYS AND AGENTS The Trustee
may, in performing its obligations under this Deed:
(a) delegate to any of its officers and employees all or any of
the powers, authorities and discretions conferred on the
Trustee by this Deed;
(b) by power of attorney:
(i) appoint any person to be its attorney or agent for
such purpose and with such powers, authorities and
discretions (not exceeding those vested in the
Trustee) as the Trustee thinks fit with or without
power to sub-delegate, and also to authorise the
issue in the name of the Trustee of documents bearing
facsimile signatures of the Trustee or of the
attorney or agent either with or without proper
manuscript signatures of their officers thereon; and
(ii) insert such provisions for the protection and
convenience of those dealing with any such attorney
or agent as the Trust Manager may think fit; and
(c) appoint by writing or otherwise any person to be agent or
sub-agent of the Trustee as the Trustee may think necessary or
proper for such purposes and with such power, authorities and
discretions (not exceeding those vested in the Trustee) as the
Trustee thinks fit and to supersede or suspend any such agent
or sub-agent for such cause or reason as the Trustee may in
its sole discretion think sufficient with or without assigning
any cause or reason and either absolutely or for such time as
it may think proper.
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14.5 TRUSTEE LIABLE FOR DELEGATES
The Trustee is, notwithstanding any delegation under clause 14.3 or
14.4:
(a) subject to clause 14.7, liable for any act or omission of any
such delegate as if any such act or omission were its own; and
(b) responsible for payment of the remuneration, fees and expenses
of any person appointed under this clause 14.
14.6 DELEGABLE AND NON-DELEGABLE DUTIES OF TRUSTEE
The Trustee must not delegate:
(a) the receipt and payment of money (otherwise than in accordance
with the Transaction Documents, or in the case of the purchase
price, sale proceeds or other moneys payable or receivable in
respect of Authorised Investments to a solicitor, stockbroker
or real estate agent); or
(b) the exercise of any right of enforcement under a Mortgage or
Ancillary Document, otherwise than to the Master Servicer
under the Master Origination and Servicing Agreement.
14.7 TRUSTEE NOT LIABLE FOR THIRD PARTIES
Except as expressly provided in any Transaction Document, no failure by
the Trustee to comply with its obligations under any Transaction
Document will be considered to be the neglect, default or breach of
duty of the Trustee to the extent that that failure was caused or
contributed to by any other party to that Transaction Document (having
regard to the powers and duties conferred on the Trustee by this Deed).
15. TRUSTEE'S COVENANTS
15.1 GENERAL
The covenants in this clause 15 are for the benefit of the Trust
Manager, each Beneficiary and each Bondholder.
15.2 TO ACT CONTINUOUSLY AS TRUSTEE
The Trustee must act continuously as trustee of each Fund until the
earlier of:
(a) the Vesting Date of the Fund; and
(b) the date on which Trustee retires or is removed from office,
in either case, in accordance with this Deed.
15.3 TO ACT HONESTLY, DILIGENTLY AND PRUDENTLY
The Trustee must:
(a) act at all times in the best interests of the Beneficiaries
and the Bondholders of each Fund;
(b) act honestly and in good faith in the performance of its
duties and in the exercise of its discretions hereunder; and
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(c) exercise such diligence and prudence as a prudent man of
business would exercise in performing its functions and in
exercising its powers and discretions and performing its
obligations under this Deed, having regard to the interests of
the Beneficiaries and the Bondholders.
15.4 NO DISPOSITIONS OF ASSETS
Except as provided in the Transaction Documents, the Trustee must not
sell, mortgage, charge or otherwise encumber or part with possession of
any Asset.
15.5 FORWARD NOTICES ETC. TO TRUST MANAGER AND BOND TRUSTEE
The Trustee must promptly forward to the Trust Manager and the Bond
Trustee of each Fund all notices, reports, circulars and other
documents received by it or on its behalf as trustee of that Fund.
15.6 TRUSTEE WILL IMPLEMENT TRUST MANAGER'S DIRECTIONS
Subject to this Deed and any other Transaction Document to which it is
a party, the Trustee must act upon all directions given to it by the
Trust Manager in accordance with this Deed.
15.7 CUSTODIAN
Unless otherwise required by the terms of any Security Trust Deed, the
Trustee must keep in safe custody all documents of title to or
evidencing Assets. The Trustee may comply with this obligation by
holding Assets in any clearing or custody system approved by the Trust
Manager and (if required) the relevant Security Trustee (if any).
15.8 PERFORM TRANSACTION DOCUMENTS
The Trustee must comply with its obligations under all Transaction
Documents to which it is a party.
16. TRUSTEE'S FEES AND EXPENSES
16.1 TRUSTEE'S FEE
The Trustee shall be entitled to deduct from each Fund such fee as is
agreed in writing from time to time between the Trustee and the Trust
Manager. The fees payable to the Trustee in respect of each Fund must
be determined on or before the first Issue Date for that Fund, and
shall apply until the Vesting Date of that Fund.
16.2 MANAGER'S FEE
The Manager shall be entitled to be paid in respect of the performance
of its duties as Trust Manager in relation to each Fund such fees as
may from time to time be agreed between the Trustee, the Trust Manager,
the relevant Bond Trustee (if there is a Bond Trust Deed for that
Fund), the relevant Security Trustee (if there is a Security Trust Deed
for that Fund) and the relevant Designated Rating Agency (if that Fund
is a Rated Fund).
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17. RETIREMENT OF TRUSTEE
17.1 MANDATORY RETIREMENT
(a) If:
(i) an Event of Insolvency has occurred in relation to
the Trustee;
(ii) a Trustee's Default has occurred and is continuing
(except for a Trustee's Default constituted by a
failure by the Trustee to pay any amount which it
would, but for clause 25.9 or any corresponding
provision of any Transaction Document, have been
liable to pay);
(iii) there is a change in the effective control of the
Trustee; or
(iv) the Trustee rejects a Fund Creation Notice in
accordance with clause 3.3,
the Trust Manager may, subject to paragraph (b), by notice in
writing to the Trustee require the Trustee to retire as
trustee of the Funds within such period as the Trust Manager
may specify in the notice. The Trustee must so retire within
the period specified.
(b) The Trust Manager may only give a notice pursuant to paragraph
(a)(iv) above if it has been directed to do so by an
Extraordinary Resolution.
17.2 TRUST MANAGER MAY REMOVE TRUSTEE
If the Trustee does not retire within the period specified in a notice
given under clause 17.1 the Trust Manager may by deed poll remove the
Trustee from office as trustee of the Funds.
17.3 TRUST MANAGER APPOINTS REPLACEMENT
On the retirement or removal of the Trustee under clause 17.1 or 17.2,
the Trust Manager must as soon as reasonably practicable appoint some
other statutory trustee to be the Trustee of the Funds. Until the
appointment is completed the Trust Manager must act as Trustee.
17.4 VOLUNTARY RETIREMENT
The Trustee may only voluntarily retire as trustee of the Funds if:
(a) the Trustee gives to the Trust Manager not less than 3 months'
(or such other period as the Trust Manager may agree) written
notice of its intention to do so; and
(b) the Trustee selects as the new Trustee of the Funds a
statutory trustee whose identity is acceptable to the Trust
Manager (acting reasonably) and which enters into the
documents referred to in clause 17.7.
17.5 FUNDS TO BE VESTED IN NEW TRUSTEE
Upon retiring or being removed from office, the Trustee (the OUTGOING
TRUSTEE) must execute all documents and do all things necessary to vest
the Funds or cause them to be vested, in the person appointed as the
successor Trustee (the INCOMING TRUSTEE).
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17.6 RELEASE OF OUTGOING TRUSTEE
Upon retirement or removal, the Outgoing Trustee shall have no further
obligations under this Deed, but retirement or removal will not affect
any of the rights, obligations or liabilities of the Outgoing Trustee
accrued or arising before retirement or removal.
17.7 INCOMING TRUSTEE TO EXECUTE DEED
The Incoming Trustee must execute all documents as the Trust Manager
requires to:
(a) assume with effect from the date its appointment becomes
effective, all of the rights, powers, discretions and
obligations of the Trustee under this Deed and the Transaction
Documents to which the Outgoing Trustee is or was a party or
of which it had the benefit, as if the Incoming Trustee had
originally been a party to, or had had the benefit of this
Deed and any such Transaction Document as the Trustee; and
(b) indemnify the Outgoing Trustee for all liabilities of the
Outgoing Trustee under or in respect of the Bonds issued by
the Outgoing Trustee which mature on or after the date of the
retirement or removal of the Outgoing Trustee, and for all
other liabilities and expenses incurred by the Outgoing
Trustee for which it is entitled to be indemnified out of the
Funds and which have not been recouped by it, provided that
the liability of the Incoming Trustee under such indemnity
shall be limited to the same extent provided for in clause
25.9 and any payment shall rank in the same priority pursuant
to clause 25.9 as the corresponding liability for which the
Outgoing Trustee claims such indemnification.
17.8 TRUST MANAGER AND OUTGOING TRUSTEE TO SETTLE AMOUNTS PAYABLE
The Trust Manager may:
(a) settle with the Outgoing Trustee the amount of any sums
payable by the Outgoing Trustee to the Trust Manager or the
Incoming Trustee, or by the Trust Manager to the Outgoing
Trustee under this Deed; and
(b) give or accept from the Outgoing Trustee a discharge in
respect thereof.
Any such settlement or discharge shall (except in the case of any
fraud, negligence or wilful default on the part of the Outgoing Trustee
or its officers, employees, agents and delegates) be conclusive and
binding upon all persons.
17.9 OUTGOING TRUSTEE TO RETAIN LIEN
Notwithstanding the retirement or removal of the Outgoing Trustee and
the indemnity in favour of the Outgoing Trustee by the Incoming Trustee
as contemplated by clause 17.7, the Outgoing Trustee will retain a lien
over each Fund to meet claims of any Creditors of the Outgoing Trustee
as trustee of the Fund, to the extent that the claims of those
Creditors are not properly and duly satisfied by the Incoming Trustee.
17.10 DELIVERY OF DOCUMENTS
The Outgoing Trustee must immediately upon termination of its
appointment becoming effective deliver to the Incoming Trustee (or at
its direction) the Data Base and all other books, documents, records
and property relating to the Funds under its control. The Outgoing
Trustee is entitled to take, and keep copies of such books, documents
and records. Each of the Trust Manager and the
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Incoming Trustee must produce the originals of such books, documents
and records in its possession upon the giving of reasonable written
notice by the Outgoing Trustee.
17.11 NOTICE TO SECURITY TRUSTEE OF NEW TRUSTEE
The Incoming Trustee or the Trust Manager must give notice to the
Security Trustee (if any) as soon as practicable following the
appointment of the Incoming Trustee.
18. TRUST ACCOUNTS
18.1 OPENING OF TRUST ACCOUNTS
The Trustee:
(a) must, as directed by the Trust Manager, open a separate
account with a Bank in respect of each Fund. Each such account
must:
(i) be opened in the name of the Trustee;
(ii) bear a designation indicating the Fund to which it
relates; and
(iii) in the case of a Rated Fund, be maintained with a
Bank whose debt obligations are rated at all relevant
times by the Designated Rating Agency, not lower than
the Designated Rating; and
(b) may open such additional accounts with a Bank in respect of a
Fund as the Trust Manager may direct.
18.2 LOCATION OF TRUST ACCOUNTS
(a) Unless otherwise directed in writing by the Trust Manager, the
principal Trust Account of each Fund must be opened and
maintained at a branch of a Bank in New South Wales.
(b) If directed to do so by the Trust Manager, the Trustee must
open Trust Accounts with a branch of a Bank outside New South
Wales provided that the Trustee enters into arrangements with
the relevant Bank so that as soon as practicable after the
receipt of moneys to the credit of any such account, such
moneys are to be transferred to the credit of the principal
Trust Account of the relevant Fund.
18.3 AUTHORISED SIGNATORIES
The Trustee must ensure that the only authorised signatories for any
Trust Account are officers or employees of the Trustee.
18.4 BANK STATEMENTS AND ACCOUNT INFORMATION
(a) The Trustee must give to the Trust Manager (and any other
person from time to time specified by the Trust Manager):
(i) copies of all statements for a Trust Account promptly
following receipt of the same by the Trustee; and
(ii) such explanations and reconciliations as to any such
statements as may from time to time reasonably be
required by the Trust Manager (or such other person).
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(b) The Trustee authorises the Trust Manager to obtain statements
and information in relation to each Trust Account direct from
the Bank at which it is held.
18.5 DEPOSITS
Subject to this Deed, the Trustee must pay into the Trust Account of a
Fund the following moneys:
(a) subject to clause 6.8(b) and (d), the Issue Proceeds of each
Issue by the Trustee as trustee of that Fund;
(b) all proceeds of sale and other moneys received under or in
respect of the Authorised Investments of that Fund;
(c) all money received under or in respect of any Transaction
Documents entered into by the Trustee in its capacity as
trustee of that Fund; and
(d) all other moneys received by the Trustee in respect of that
Fund.
18.6 WITHDRAWALS
Subject to this Deed, the Trustee may withdraw funds from a Trust
Account and apply them in:
(a) settling or purchasing Authorised Investments in accordance
with this Deed and making payments required in connection with
the holding of Authorised Investments;
(b) making payments to the Bondholders or the Beneficiaries of
that Fund;
(c) paying amounts payable by the Trustee under any Transaction
Documents entered into by the Trustee in its capacity as
trustee of that Fund; and
(d) paying Expenses of that Fund.
18.7 CENTRAL CLEARING ACCOUNT
The Trustee, as trustee of a number of Funds, may maintain an account
with a Bank as a clearing account for the receipt of money comprising
Assets of those Funds generally, provided that as soon as practicable
after the receipt of money to the clearing account and the
identification of the Fund to which the money relates, the Trustee must
ensure that the Bank credits that money to the Trust Account for that
Fund. The Trustee may mix or co-mingle the Assets of one Fund with the
Assets of another Fund in accordance with this clause.
19. AUDITORS
19.1 APPOINTMENT OF AUDITOR
The Trustee must appoint an auditor of each Fund within one month of
the creation of that Fund pursuant to this Deed. The auditor must be a
firm of chartered accountants some of whose members are Registered
Company Auditors.
19.2 REMOVAL AND RETIREMENT OF AUDITOR
(a) The Trustee may from time to time remove an Auditor.
(b) An Auditor may retire at any time upon giving one months'
written notice (or such shorter period as the Trustee may
agree) to the Trustee of its intention to so retire.
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19.3 APPOINTMENT OF REPLACEMENT AUDITOR
Any vacancy in the office of an Auditor occurring under clause 19.2
must be filled by the Trustee appointing as auditor a firm of chartered
accountants some of whose members are Registered Company Auditors.
19.4 AUDITOR MAY HAVE OTHER OFFICES
An Auditor may also be the auditor of the Trustee, the Trust Manager, a
Related Body Corporate of the Trustee or the Trust Manager or of any
other Fund but a member of the firm appointed as an Auditor may not be
an officer, a partner of an officer or an employee of the Trustee, the
Trust Manager or a Related Body Corporate of the Trustee or the Trust
Manager.
20. RECORDS AND FINANCIAL STATEMENTS
(a) The Trust Manager must keep accounting and other records which
correctly record and explain the Assets and financial position
of each Fund, and all transactions entered into by the Trustee
as trustee of each Fund, in a manner which will enable the
preparation from time to time of true and fair Financial
Statements of each Fund and the auditing of those Financial
Statements.
(b) The Trust Manager must make all accounting records available
to the Trustee and the Bond Trustee of the relevant Fund for
inspection at all reasonable times without charge.
(c) All Financial Statements must be prepared in accordance with
Approved Accounting Standards.
(d) The Trust Manager must deliver to the Trustee, the Security
Trustee and the Bond Trustee of each Fund not later than three
months after the end of each Financial Year of that Fund, the
Financial Statements of that Fund for that Financial Year,
duly audited by the Auditor.
(e) The Trust Manager must ensure that the Financial Statements of
each Fund are audited by the Auditor as at the end of each
Financial Year.
(f) The Trust Manager must ensure that all necessary tax returns
for each Fund are prepared and lodged within any applicable
time limits.
21. PAYMENTS FROM FUNDS AND TERMINATION
21.1 PAYMENTS BY TRUSTEE
The Trustee, at the direction of the Trust Manager, must pay all
amounts received by it in respect of each Fund in accordance with the
Transaction Documents in relation to that Fund.
21.2 INCOME OF THE FUND
For each Financial Year in respect of a Fund the Trust Manager will
ascertain the following on behalf of the Trustee:
(a) the net income of that Fund in accordance with section 95(1)
of the Taxation Act (the TAX INCOME); and
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(b) the net income of that Fund in accordance with conventional
accounting principles applicable to the administration of
trusts (the ACCOUNTING INCOME).
21.3 INCOME ENTITLEMENT
Notwithstanding anything to the contrary contained in this Deed:
(a) (PRESENT ENTITLEMENT) the Residual Income Beneficiaries of
each Fund shall, as at the end of each Financial Year for that
Fund, have an absolute vested interest in, and be presently
entitled to, the income of that Fund for that Financial Year
in accordance with their respective Income Percentages; and
(b) (APPLICATION OF INCOME) unless the Trustee (in consultation
with the Trust Manager) otherwise determines, having regard to
any relevant taxation or other implications for the Trustee
(disregarding for these purposes any possible operation of
clause 21.4) for any Financial Year for that Fund, for the
purposes of paying, applying, distributing, setting aside or
allocating any income in respect of that Financial Year for
the benefit of the Residual Income Beneficiaries of that Fund
in accordance with the terms of this Deed, the income that is
to be so paid, applied, distributed, set aside or allocated
shall be whichever is the greater of the Tax Income or the
Accounting Income for that Financial Year.
21.4 DISTRIBUTION OF EXCESS TAX INCOME
For the avoidance of doubt, in the event that the Tax Income of a Fund
exceeds the Accounting Income of that Fund in any Financial Year then,
notwithstanding anything to the contrary in this Deed, the Trust
Manager must direct the Trustee to, and the Trustee shall, so far as
possible, ensure that such excess is allocated to the Residual Income
Beneficiaries of that Fund in accordance with their respective Income
Percentages and shall take such action as is reasonably necessary to
give effect to this clause.
21.5 PAYMENTS TO BENEFICIARIES
(a) (DISTRIBUTABLE INCOME DUE AS AT CLOSE OF FINANCIAL YEAR) The
income of a Fund for a Financial Year (to the extent not
previously distributed) shall, subject to clause 21.8,
constitute a debt due as at the end of that Financial Year by
the Trustee as trustee of the Fund to each Residual Income
Beneficiary of that Fund who is entitled to the income under
clause 21.3(a) and shall, subject to clause 21.8, be payable
under paragraph (b).
(b) (PAYMENT) Subject to clause 21.7, the Trustee may, on the
instructions of the Trust Manager, make interim distributions
of the income of a Fund to the Residual Income Beneficiaries
of that Fund in accordance with their respective Income
Percentages and shall as soon as practicable after the end of
a Financial Year pay the income of that Fund (to the extent
not previously distributed) to the Residual Income
Beneficiaries of that Fund in accordance with their respective
Income Percentages.
21.6 APPLICATION OF FUND INCOME
(a) If by the last day of any Financial Year for a Fund (the LAST
DAY) the Trustee has not effectively dealt with the whole of
the income of that Fund for that Financial Year by paying,
applying or distributing it, or by setting it aside, then the
income not so paid, applied, distributed or set aside shall be
deemed to have been irrevocably applied and set
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aside on the Last Day by the Trustee on behalf of, and shall
be held by the Trustee on and from the Last Day upon trust
absolutely for, the Residual Income Beneficiaries of that Fund
in accordance with their respective Income Percentages
(including, for these purposes, the allocation of excess Tax
Income (if any) pursuant to clause 21.4).
(b) If the Trustee fails to effectively allocate any excess to the
Residual Income Beneficiaries in accordance with clause 21.6,
then such excess shall vest or be deemed to be vested in those
Residual Income Beneficiaries in accordance with their
respective Income Percentages.
(c) For the purposes of this clause 21.6, references to income of
a Fund for any Financial Year shall be to the greater of the
Tax Income or the Accounting Income for that Fund for that
Financial Year.
21.7 APPLICATION OF RESIDUAL INCOME BENEFICIARIES' ENTITLEMENTS
(a) To the extent that there is an amount payable under clause
21.3 which is to be paid in priority to the amounts payable to
a Residual Income Beneficiary of a Fund, that Residual Income
Beneficiary directs the Trustee to meet that amount as an
application of that Residual Income Beneficiary's entitlement
to the income of that Fund.
(b) Notwithstanding paragraph (a) of this clause, once an amount
is paid out of a Fund to a Residual Income Beneficiary during
a Financial Year, that amount may not be recovered from that
Residual Income Beneficiary for any reason or by any person
except to the extent that the amount was paid in error.
21.8 TRUST MANAGER TO ENSURE COMPLIANCE BY TRUSTEE
Without limiting its other obligations under this Deed, the Trust
Manager, in exercising its powers and carrying out its duties in
accordance with this Deed, must, to the extent possible, ensure that
the Trustee complies with its obligations under this clause 21.
21.9 DISTRIBUTION ON VESTING DATE
The Trustee, at the direction of the Trust Manager, must as soon as
practicable following the Vesting Date for a Fund:
(a) sell or convert into cash:
(i) all of the Assets of the Fund; or
(ii) if the Vesting Date occurs following the giving by
the Residual Income Beneficiaries of that Fund of a
notice under clause 9.2 requiring transfer in specie,
and subject to the terms of any relevant Warehouse
Funding Agreement, so much of the assets of the
relevant Warehouse Fund as are necessary to enable it
to discharge in full, or make full provision for:
(A) all Taxes which are or may become payable in
respect of that Warehouse Fund;
(B) all Expenses incurred but not previously
paid of that Warehouse Fund;
(C) all other amounts which are or may become
payable by it to Creditors of that Fund; and
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(D) all amounts in respect of which it is
entitled to be reimbursed or indemnified
under this Deed;
(b) apply the proceeds of sale or conversion in the manner and
order set out in clause 21.1; and
(c) subject to the Fund Creation Notice and the Transaction
Documents in relation to that Fund, transfer the balance of
that Fund to the Residual Income Beneficiaries of that Fund in
accordance with their respective Income Percentages, either in
cash or, if the Vesting Date occurs following the giving of
notice by the Residual Income Beneficiaries under clause 9.2
and that notice requires the transfer in specie, in specie.
22. THE REGISTER
Intentionally blank.
23. MEETINGS OF BONDHOLDERS
The convening, holding of, and conduct of meetings of Bondholders, and
the exercise of voting rights and the passing of resolutions at those
meetings are governed by the provisions of the relevant Bond Trust Deed
(if any).
24. PAYMENTS GENERALLY
24.1 PAYMENTS TO BENEFICIARIES
Any moneys payable by the Trustee to a Beneficiary under this Deed may
be paid by:
(a) a "not negotiable" cheque in favour of the Beneficiary
despatched by post to the address of the Beneficiary for the
purposes of clause 26.1; or
(b) at the option of the Beneficiary by direct transfer to a
designated bank account in Australia of the Beneficiary.
24.2 PAYMENTS TO BONDHOLDERS
Any moneys payable by the Trustee to a Bondholder under this Deed shall
be made in accordance with the Bond Terms, the relevant Bond Trust Deed
(if any), the relevant Security Trust Deed (if any) and the relevant
Paying Agency Agreement.
24.3 PAYMENTS GOOD DISCHARGE
Every payment made in accordance with clause 24.1 or 24.2 shall be in
full satisfaction of the moneys payable and shall be a good discharge
to the Trustee and to the Trust Manager. Neither the Trustee nor the
Trust Manager is responsible for any moneys which are not credited to
the bank account of a Beneficiary if the Bank at which the Trust
Account from which the payment is made is held has been instructed to
effect the direct transfer referred to in clause 24.1(b).
24.4 VALID RECEIPTS
The receipt of the Trustee for any moneys shall discharge the person
paying the same from all liability to make any further enquiry in
relation thereto. Every such receipt shall as to the moneys
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paid or expressed to be received in such receipt, effectually discharge
the person paying such moneys from such liability or enquiry and from
being concerned to see to the application or being answerable or
accountable for any loss or misapplication of such moneys.
25. TRUSTEE'S AND TRUST MANAGER'S POWERS, LIABILITY AND INDEMNITY GENERALLY
25.1 POWERS ADDITIONAL
The following provisions of this clause 25 are in addition to any
rights or powers conferred on the Trustee or the Trust Manager at law
or in equity. Each of them is to be construed separately and except
where expressly stated, none of them limits the others.
25.2 RELIANCE ON CERTIFICATES
Subject to clause 25.4, neither the Trustee nor the Trust Manager shall
incur any liability in respect of any action taken or thing suffered by
it in reliance upon any document (including, for example, any notice,
resolution, direction, consent, certificate, receipt or statement)
given to or served on it for the purposes of or pursuant to this Deed
which it reasonably believes to be genuine, and to be signed by persons
authorised to do so and having power to bind the person on whose behalf
the document is or purports to be given.
In preparing any such document each of the Trustee and the Trust
Manager is entitled to assume that each person under any Authorised
Investment, other Transaction Document or any other deed, agreement or
arrangement has performed or will perform their obligations thereunder
in full by the due date and otherwise in accordance with the terms
thereof, unless the Trustee or the Trust Manager has notice to the
contrary.
25.3 NO LIABILITY
If either the Trustee or the Trust Manager incurs any liability to any
person as a consequence of having relied, in accordance with clause
25.2, upon a document which was forged or does not bind the person on
whose behalf it was purportedly given, the Trustee or the Trust Manager
(as the case may be) is entitled to reimbursement for the amount of
such loss from the relevant Fund.
25.4 NOTICES FROM TRUSTEE AND TRUST MANAGER
Whenever any document or communication is to be given by the Trust
Manager or the Trustee to the other of them, the recipient may accept
as sufficient a document which it reasonably believes to be signed on
behalf of the giver by any two Authorised Signatories of the giver of
the notice. The recipient of the notice is not responsible for any loss
arising from any act, neglect, mistake or discrepancy of the giver of
the notice or any officer, employee, agent or delegate of the giver of
the notice in preparing any such document or in compiling, verifying or
calculating any matter or information contained in any such document,
whether or not an error in any such information, document, form or list
is reproduced by the recipient in any step taken by it under this Deed.
25.5 COMPLIANCE WITH LAWS
The Trustee and the Trust Manager shall not incur any liability to
anyone in respect of any failure to perform or to do any act or thing
which the Trustee or the Trust Manager is prohibited from doing
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by any applicable law (or any ordinance, rule, regulation or by-law
made pursuant thereto) or by any order or judgment of any competent
court or other tribunal.
25.6 RELIANCE ON EXPERTS
Each of the Trustee and the Trust Manager:
(a) may act upon the opinion or advice of, or information obtained
from the Trust Manager (in the case of the Trustee only), the
Trustee (in the case of the Trust Manager only), the Master
Servicer or any barristers, solicitors, bankers, accountants,
brokers, valuers and other professional advisers (whether
instructed by the Trustee, the Trust Manager or the Master
Servicer) believed by it in good faith to be expert and
properly informed in relation to the matters upon which they
are consulted; and
(b) is not liable for anything done or suffered by it in good
faith in reliance upon such opinion, advice or information.
25.7 POWERS, AUTHORITIES AND DISCRETIONS
Except as otherwise expressly provided in this Deed, neither the
Trustee nor the Trust Manager is liable for any loss (whether
consequential or otherwise), costs or damages resulting from the
exercise of (or failure to exercise) its rights, powers or discretions
or the performance of (or failure to perform) its obligations under
this Deed, except where such losses, costs or damages are caused by the
fraud, negligence or wilful default of the Trustee or the Trust Manager
(as the case may be).
25.8 LEGAL AND OTHER PROCEEDINGS
(a) (INDEMNITY FOR LEGAL COSTS) Subject to paragraph (b), the
Trustee and the Trust Manager are entitled to be indemnified
out of a Fund, and the Trustee may pay from the Fund all
reasonable legal costs and disbursements and all other cost,
disbursements, outgoings and expenses incurred by the Trustee
or the Trust Manager in connection with:
(i) properly enforcing or preparing for the enforcement
of, or properly preserving its rights under; and
(ii) the proper initiation, defence, carriage and
settlement of any action, suit, proceeding or dispute
in respect of,
this Deed or any other Transaction Document or otherwise under
or in respect of that Fund.
(b) Nothing in paragraph (a) affects:
(i) any obligation of the Trustee to restore the Assets
of any Fund because of a failure by the Trustee to
exercise in relation to the Fund the degree of care,
diligence and prudence required of a trustee or
because of some other neglect, default or breach of
duty by the Trustee, having regard to the powers and
duties conferred on the Trustee by this Deed; or
(ii) any remedy which the Trustee, any Bondholder or any
Beneficiary may have against the Trust Manager under
any Transaction Document.
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25.9 LIABILITY OF TRUSTEE UNDER TRANSACTION DOCUMENTS
(a) The Trustee has no personal liability in relation to any of
its obligations under or arising out of this Deed or any of
the Transaction Documents entered into in its capacity as
trustee of a Fund.
(b) In relation to each such obligation, the liability of the
Trustee is limited to and does not extend beyond the Assets of
the relevant Fund as they stand at the time at which the
obligation is met or satisfied.
(c) The Trustee is not liable to meet or satisfy any such
obligation from its own assets (except the Trustee's
Indemnity) and each such obligation must be met or satisfied
from the relevant Fund or the Trustee's Indemnity.
(d) The preceding paragraphs apply notwithstanding the fact that
the liabilities of the Trustee in its capacity as the trustee
of a Fund may from time to time and at any time almost equal,
equal or exceed the value of the Assets of that Fund at the
relevant time.
(e) The previous paragraphs of this clause 25.9 do not apply to
the liability of the Trustee in relation to any obligation
which in any Transaction Document the Trustee expressly
assumes in its personal capacity.
(f) It is acknowledged by the Trustee that the Assets of each Fund
at any time will include the amount of any compensation found
by a Final Judgment (or admitted by the Trustee) to be payable
by the Trustee to restore that Fund because of a failure by
the Trustee to exercise in relation to the Fund the degree of
care, diligence and prudence required of a trustee or because
of some other neglect, default or breach of duty by the
Trustee having regard to the powers and duties conferred on
the Trustee by this Deed, in either case occurring before the
time in question and causing loss to the Fund quantified
before the time in question.
(g) For the purposes of this clause 25.9, FINAL JUDGMENT means a
judgment of a court of law in Australia against which there
can be no appeal or in relation to which the time to appeal
has expired.
25.10 TRUSTEE'S INDEMNITY NOT BE IMPAIRED
(a) The Trustee is indemnified out of the Assets of each Fund
against all liabilities, losses, costs and expenses incurred
by the Trustee in performing any of its duties or exercising
any of its powers in relation to that Fund pursuant to this
Deed or the relevant Transaction Documents.
(b) The indemnity given in paragraph (a) will not be voided and
will apply to permit payment of any liability of the Trustee
to Creditors of a Fund notwithstanding any failure by the
Trustee to exercise the degree of care, diligence and prudence
required of a trustee or neglect, default or breach of duty by
the Trustee having regard to the powers, authorities and
discretions conferred on the Trustee by this Deed, including
where the failure or the negligence, default or breach of duty
involved, on the part of the Trustee, dishonesty or any wilful
act or omission known by the Trustee to be a breach of trust.
(c) If the Trustee fails to exercise the degree of care, diligence
and prudence required of a trustee or there occurs any other
neglect, default or breach of duty by the Trustee having
regard to the powers, authorities and discretions conferred on
the Trustee by this Deed:
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(i) the Trustee may not receive, hold the proceeds or
otherwise have the benefit of the indemnity given in
paragraph (a) otherwise than on behalf of and on
trust for the Creditors of the relevant Fund; and
(ii) the Trustee may only be indemnified to the extent
necessary to allow it to discharge its liabilities to
those Creditors.
(d) Nothing in this clause 25.10 is to be taken:
(i) as imposing any restriction upon any right which any
person may have to bring an action against the
Trustee for loss or damage suffered by reason of the
Trustee's failure to exercise the degree of care,
diligence and prudence required of a trustee or any
other neglect, default or breach of duty by the
Trustee having regard to the powers, authorities and
discretions conferred on the Trustee by this Deed; or
(ii) as conferring upon the Trustee a right to be
indemnified out of the Fund against any loss the
Trustee (in its personal capacity) suffers in
consequence of an action brought against it by reason
of the Trustee's failure to exercise the degree of
care, diligence and prudence required of a trustee or
any other neglect, default or breach of duty by the
Trustee having regard to the powers, authorities and
discretions conferred on the Trustee by this Deed.
25.11 TRUST MANAGER'S RIGHT OF INDEMNITY
The Trust Manager is entitled to be indemnified out of the relevant
Fund in respect of any liability, cost or expense properly incurred by
it in its capacity as manager of the relevant Fund or so incurred by
any of its delegates, sub-delegates or agents.
25.12 CONFLICTS
Without limiting clause 15.3, nothing in this Deed prevents the
Trustee, the Trust Manager or any Related Body Corporate or Associate
(as defined in Part 1.2, Division 2 of the Corporations Act) of either
of them (all being included in this clause in references to the Trustee
and the Trust Manager) from:
(a) subscribing for, buying or selling Bonds;
(b) in the ordinary course of its business contracting or acting
in any capacity as representative or agent or otherwise or
entering into any financial, banking, development, insurance,
agency, broking or other transaction with the Trustee as
trustee of any Fund or any other trust, or in its personal
capacity;
(c) providing any advice or services to the Trustee as trustee of
any Fund; or
(d) being interested in any such contract or transaction.
The Trustee and the Trust Manager shall not be in any way liable to
account to any Bondholder, any Beneficiary or any other person for any
profits or benefits made or derived from or in connection with any such
transaction.
25.13 CONSUMER CREDIT CODE
(a) The Trust Manager, the Master Servicer and the Trustee agree:
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(i) without limiting any other provision of this Deed and
subject to paragraph (b) below, the Master Servicer
shall indemnify the Trustee, free of any set-off or
counterclaim, against all Penalty Payments which the
Trustee is required to pay personally or in its
capacity as trustee of a Fund and arising in
connection with the performance of its duties or
exercise of its powers under this Deed in relation to
that Fund;
(ii) the Master Servicer shall be the nominated credit
provider for the purposes of section 75 of the
Consumer Credit Regulations (Western Australia) for
the purposes of all Regulated Loans and Regulated
Mortgages; and
(iii) the Master Servicer must, subject to paragraph (b),
pay to the Trustee on demand any amount which the
Trustee may recover from the Master Servicer under
section 75 of the Consumer Credit Regulations
(Western Australia) by virtue of the Master Servicer
being the nominated credit provider.
(b) If the Trustee makes a Penalty Payment, the Trustee shall have
no right to recover the amount of that Penalty Payment from
the Master Servicer if that Penalty Payment was made as a
result of:
(i) the Trustee's failure to exercise the degree of care,
diligence and prudence required of a trustee; or
(ii) any other neglect, default or breach of duty by the
Trustee,
in either case, having regard to the powers, authorities and
discretions conferred on the Trustee by this Deed.
(c) For the avoidance of doubt, but subject to paragraph (d),
clause 25.10 applies to a Penalty Payment.
(d) If the Trustee has made, is obliged to make or intends to make
a Penalty Payment, and is, or claims to be, entitled to
recover the amount of that Penalty Payment from the Master
Servicer under paragraph (a), the Trustee may not exercise the
right of indemnity conferred by clause 25.10 in respect of
that Penalty Payment unless:
(i) it has made demand on the Master Servicer for
recovery of that Penalty Payment under paragraph (a);
and
(ii) the Master Servicer has failed to pay the amount of
that Penalty Payment to the Trustee within 10
Business Days after that demand.
26. NOTICES
26.1 NOTICES GENERALLY
Subject to clause 26.2, every Notice:
(a) must be in writing in order to be valid;
(b) must be deemed to have been duly served, given or made in
relation to a party if it is:
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(i) delivered to the address of that party set out in
paragraph (e) (or at such other address as may be
notified in writing by that party to the other party
from time to time); or
(ii) posted by prepaid registered post to such address; or
(iii) sent by fax to the fax number set out in
sub-paragraph (e) (or to such other number as may be
notified in writing by that party to the other party
from time to time);
(c) shall be sufficient if executed by the party giving, serving
or making the same or on its behalf by any two Authorised
Signatories of such party;
(d) shall be deemed to be given, served or made:
(i) (in the case of prepaid registered post) within 2
Business Days after posting;
(ii) (in the case of fax) on receipt of a transmission
report confirming successful transmission; and
(iii) (in the case of delivery by hand) on delivery;
(e) the addresses and facsimile numbers for service of Notices as
referred to in sub-paragraph (b) of this clause are as
follows:
THE TRUSTEE
35 Clarence Street
Sydney NSW 2000
By fax: (02) 8295 8675
Attention: Senior Manager Securitisation
THE TRUST MANAGER
Level 6
12 Castlereagh Street
SYDNEY NSW 2000
By fax: (02) 9225 0864
Attention: Manager, Operations
A BENEFICIARY
The address or fax number set out in the relevant Beneficiary
Register or as otherwise notified by the Beneficiary to the
Trust Manager from time to time.
26.2 NOTICES TO BONDHOLDERS
A Notice by the Trustee or the Trust Manager to Bondholders shall be
deemed to be duly given or made if given or made in accordance with the
Bond Terms and the Bond Trust Deed (if any).
26.3 NOTICES TO DESIGNATED RATING AGENCIES
The Trust Manager must provide a copy of each Notice to Bondholders in
a Rated Fund to each Designated Rating Agency for that Fund as from
time to time agreed in writing with that Rating Agency.
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27. AMENDMENT
27.1 AMENDMENT BY TRUSTEE
Subject to clause 27.2, the Trustee and the Trust Manager may by way of
supplemental deed vary or amend this Deed (including this clause) in
respect of any one or more Funds or any Supplementary Bond Terms so
long as such variation or amendment 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 Trustee necessary to comply with the
provisions of any statute or regulation or with the
requirements of any Government Body;
(c) in the opinion of the Trustee, is:
(i) required by; or
(ii) a consequence of; or
(iii) consistent with; or
(iv) appropriate, expedient or desirable for any reason as
a consequence of,
the introduction or imposition of, or any amendment or
alteration to, any statute, regulation or requirement of any
Governmental Body or any decision by any court (including,
without limitation, the introduction or imposition of any Tax,
any amendment to any regulation imposing a Tax, the issue of
or amendment to any ruling by the Commissioner or Deputy
Commissioner of Taxation or the issue of any government
announcement or statement or the handing down of any decision
by any court that has or may have the effect of altering the
manner or basis of taxation of trusts generally or of trusts
similar to any of the Funds);
(d) to apply only in respect of a Fund not yet constituted;
(e) necessary to ensure that this Deed is not required to be
registered with or approved by any Government Body in any
Australian Jurisdiction;
(f) in the reasonable opinion of the Trustee not prejudicial to
the interests of the Bondholders or Beneficiaries in respect
of any Fund previously constituted (in the case of a variation
or amendment affecting that Fund); or
(g) approved by an Extraordinary Resolution and by the
Beneficiaries of any Fund to which the alteration, addition or
modification applies.
27.2 CERTAIN PROVISIONS NOT TO BE VARIED
The Trustee may not vary or amend clause 21, clause 27.1 or this clause
27.2 in so far as they relate to Funds previously constituted (except
pursuant to paragraphs (a), (b) or (c) of clause 27.1), without the
unanimous consent of all Bondholders and all Beneficiaries of that
Fund.
27.3 COPY OF AMENDMENTS TO BONDHOLDERS
The Trust Manager must upon request by a Bondholder, provide the
Bondholder with a copy of the supplemental deed effecting any variation
or amendment to this Deed.
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27.4 COPY OF AMENDMENTS IN ADVANCE TO DESIGNATED RATING AGENCIES
The Trust Manager must provide a copy of a proposed variation or
amendment to this Deed insofar as it applies to a Rated Fund to each
Designated Rating Agency for the Rated Fund at least 5 Business Days
(or such other period as may from time to time be agreed by the Trust
Manager with the Designated Rating Agency) prior to the same taking
effect.
28. MISCELLANEOUS
28.1 DATA BASE CONFIDENTIAL
Each of the Trustee, the Trust Manager and the Master Servicer must
keep the Data Base confidential in so far as the same is held by it and
shall not disclose the same to any other person (including any of its
Related Bodies Corporate) except:
(a) as permitted or required by any Transaction Document or
necessary for any party to a Transaction Document (including
the Trustee, the Trust Manager and the Master Servicer) to
perform its respective duties and obligations thereunder;
(b) as required for the enforcement or attempted enforcement of
any Transaction Document;
(c) to any professional adviser, delegate, agent or sub-agent of
the Trustee, the Trust Manager or the Master Servicer under a
power contained in a Transaction Document;
(d) to the officers, employees and directors of the Trustee, the
Trust Manager or the Master Servicer made in the performance
by the Trustee, the Trust Manager or the Master Servicer
respectively of its duties and obligations under the
Transaction Documents or at law;
(e) to the Auditor of any Fund or as required by the Auditor of
any Fund;
(f) as required by law or by any Government Body; or
(g) in the case of a Rated Fund, to the Designated Rating Agency
for that Fund.
28.2 WAIVERS, REMEDIES CUMULATIVE
Save as provided in this Deed, no failure to exercise and no delay in
exercising on the part of the Trustee or the Trust Manager any right,
power or privilege under this Deed shall operate as a waiver, nor shall
any single or partial exercise of any right, power or privilege
preclude any other or further exercise of such right, power or
privilege, or the exercise of any other right, power or privilege.
28.3 GOVERNING LAW
This Deed shall be governed by and construed in accordance with the
laws of the State of New South Wales.
28.4 JURISDICTION
(a) Each of the Trustee, the Trust Manager, the Beneficiaries and
the Bondholders 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.
Page 49
(b) Each of the Trustee, the Trust Manager, the Beneficiaries and
the Bondholders 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 proceeding has been brought in an
inconvenient forum.
28.5 SEVERABILITY OF PROVISIONS
In the event that any provision of this Deed is prohibited or
unenforceable in any jurisdiction such provision shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Deed or affecting the validity or enforceability of such provision in
any other jurisdiction.
28.6 COUNTERPARTS
This Deed may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the
same instrument.
28.7 INSPECTION OF THIS DEED
The Beneficiaries and the Bondholders may inspect a copy of this Deed
at the office of the Trust Manager during normal business hours, but
shall not be entitled to a copy thereof.
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SCHEDULE 1
FORM OF FUND CREATION NOTICE
[Letterhead of Trust Manager]
Permanent Custodians Limited
35 Clarence Street
SYDNEY NSW 2000
Attention: Senior Manager Securitisation
Dear Sirs
ARMS II PROGRAM : FUND CREATION NOTICE - GLOBAL FUNDS
We refer to the Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995
made between Permanent Custodians Limited as trustee and Australian Mortgage
Securities Ltd as trust manager, as amended and restated on 23 April 2003.
Words and expressions defined in the Master Trust Deed have the same meaning
when used in this Fund Creation Notice, unless otherwise defined herein.
In accordance with clause 3.2 of the Master Trust Deed, we give you this Fund
Creation Notice for the following Fund (the FUND):
(a) the Fund is designated a Global Fund;
(b) the Fund is to be a [Warehouse] [Issuing]* Fund;
(c) the initial Amount for the Fund is A$ ;
(d) the initial Beneficiary/Beneficiaries of the Fund is/are [insert
details];
(e) the entitlements of the Beneficiary/Beneficiaries is/are: [the entire
beneficial interest in the Fund][insert other details];
(f) the name of the Fund is [ ];
(g) the Income Distribution Dates for the Fund are as follows:
[insert details];
(h) the Fund is [not]* to be a Rated Fund;
(i) the Designated Rating Agency for the Fund is [ ]; and
(j) the Designated Rating for the Fund is [insert details]*.
We enclose our cheque in your favour in settlement upon you of the Initial
Amount.
Yours faithfully
----------------------------------------
Authorised Signatory
AUSTRALIAN SECURITISATION MANAGEMENT PTY LIMITED
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SCHEDULE 2
FORM OF ISSUE NOTICE
[Letterhead of Trust Manager]
Permanent Custodians Limited
35 Clarence Street
SYDNEY NSW 2000
Attention: Senior Manager Securitisation
Dear Sirs
ARMS II PROGRAM : ISSUE NOTICE - GLOBAL FUNDS
We refer to the Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995
made between Permanent Custodians Limited as trustee and Australian Mortgage
Securities Ltd as trust manager as amended and restated on 23 April 2003.
Words and expressions defined in the Master Trust Deed have the same meaning
when used in this Issue Notice, unless otherwise defined herein.
13. In accordance with clauses 5.1 and 6.1 of the Master Trust Deed, we
require you, as Trustee of the [insert details of Issuing Fund] to
issue the following Bonds:
(a) the name or designation to be ascribed to the Bonds is [insert
details];
(b) the aggregate Face Value of the Bonds to be issued is A$/US$
[ ];
(c) the denominations in which the Bonds are to be issued is
A$/US$[ ] per Bond;
(d) the Issue Date is [insert details];
(e) the following Transaction Documents are required to be entered
into in connection with the issue of the Bonds:
[insert details of Security Trust Deed, Bond Trust Deed, all
Enhancements, all Currency Swaps and any other Transaction
Documents to be entered into by the Trustee]
[Copies of [drafts of] those Transaction Documents are
enclosed.]
(f) [the Bonds will comprise a single Series all being totally
fungible] [the Bonds will comprise [insert number] Series
having principal terms as follows:
(g) [insert details as per (b)-(e) above for each Series]]; and
(h) the Portfolio to be acquired with the Issue Proceeds is [not]
comprised in the Assets of a Warehouse Fund, [, being the
[ ] Fund]. [The person for whose benefit the Issue
Proceeds of the Bonds are to be held pursuant to clause 6.8(a)
of the Master Trust Deed is [insert details]].
14. We attach:
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(a) details of the Portfolio which are to be acquired by you, in
your capacity as Trustee of the Issuing Fund, with the Issue
Proceeds;
(b) the Supplementary Bond Terms applicable to the Bonds; and]
(c) a letter/certificate from the Designated Rating Agency
addressed to you confirming that the Bonds [in each Series]
will be rated not lower than the Designated Rating [for that
Series]; [and that Bonds previously issued by you as Trustee
of the Issuing Fund will not be downgraded to a credit rating
lower than the Designated Rating as a result of the issue of
the Bonds specified in this Issue Notice].
15. The Supplementary Bond Terms applicable to the Bonds are the terms and
condition set out in [ ].
16. We certify that:
(a) the terms of the Master Trust Deed with respect to the
proposed Issue have been, and will on the Issue Date, continue
to be complied with; and
(b) assuming that all parties to all Transaction Documents entered
into by you as Trustee of the relevant Issuing Fund, and all
issuers of Authorised Investments from time to time comprised
in the Assets of the Issuing Fund comply in full with their
respective obligations under those Transaction Documents and
Authorised Investments, and having regard to:
(i) the terms of the Transaction Documents;
(ii) the terms of the Mortgages comprised in the
Portfolio;
(iii) the anticipated Expenses of the Issuing Fund; and
(iv) all other information available to us as at the date
of this notice,
you will, in your capacity as Trustee of the Issuing Fund, have
available to you sufficient funds to enable you to comply with your
obligations under those Transaction Documents.
Yours faithfully
----------------------------------------
Authorised Signatory
AUSTRALIAN SECURITISATION MANAGEMENT PTY LIMITED
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SCHEDULE 3
FORM OF PORTFOLIO COMPLIANCE CERTIFICATE
[Letterhead of Master Servicer]
Permanent Custodians Limited
35 Clarence Street
SYDNEY NSW 2000
Attention: Senior Manager Securitisation
Dear Sirs
ARMS II PROGRAM : PORTFOLIO COMPLIANCE CERTIFICATE - GLOBAL FUNDS
We refer to:
(a) the Master Trust Deed (the MASTER TRUST DEED) dated 7 March 1995 made
between Permanent Custodians Limited as trustee and Australian Mortgage
Securities Ltd as trust manager, as amended and restated on 23 April
2003; and
(b) the Issue Notice (the ISSUE NOTICE) given by the Trust Manager to you
dated [ ] requiring you to issue the Bonds referred to therein in your
capacity as Trustee of the [insert details of Issuing Fund].
Words and expressions defined in the Master Trust Deed have the same meaning
when used in this Portfolio Compliance Certificate, unless otherwise defined
herein.
We certify, with respect to each Mortgage comprised in the Portfolio specified
in the Issue Notice that:
1. [on the date of its settlement, except as disclosed to you in writing
and approved or waived by you on or prior to settlement, all of the
representations and warranties made by us pursuant to clause 12.1 of
the Master Origination and Servicing Agreement were true and correct by
reference to the facts and circumstances then existing;]
2. [we are not aware of any fact, event or circumstance which would lead
us to believe that any of those representations and warranties, or any
other warranties, statements, certificates or other information
provided to us by the relevant Mortgagor, Approved Solicitor, Approved
Valuer or any other person prior to settlement of that mortgage were
incorrect, untrue or misleading in any material respect at the time
they were made;]
3. [we are not aware of any fact, event or circumstance which would cause
any of those representations and warranties to be untrue or incorrect
if repeated on the date of this Portfolio Compliance Certificate by
reference to the facts and circumstances now existing;]
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4. [we are not aware of any circumstances relating to that Mortgage or the
relevant Property which could reasonably be expected to diminish, as at
the date of this Portfolio Compliance Certificate, the value or
marketability of the Property from that stated in the relevant
valuation;]
5. [the Borrower in respect of each such Mortgage is not in arrears in the
payment of any periodic payments secured by that Mortgage, except to
the extent disclosed to and approved by the Designated Rating Agency
for the purposes of the letter or certificate from the Designated
Rating Agency attached to the Issue Notice; ]
6. [we are not aware of any circumstances relating to that Mortgage, the
relevant Property, the relevant Mortgagor or any relevant Guarantor
which could reasonably be expected to cause a prudent investor to:
(a) regard the Mortgage as an unacceptable investment;
(b) expect the Mortgagor to default under the Mortgage; or
(c) diminish the value or marketability of the Property from that
stated in the relevant Valuation; and]
7. [we are not aware of the occurrence of any Event of Default in relation
to that Mortgage which has not been remedied to our satisfaction or
waived in accordance with the Master Origination and Servicing
Agreement.]
The statements made by us above are based upon a review of the Database and the
records maintained by us with respect to the Portfolio under and in accordance
with the Master Trust Deed and the Master Origination and Servicing Agreement.
We have made no specific enquiry or investigation as to any of the matters
referred to in the statements made above.
Yours faithfully
--------------------------------------
Authorised Signatory
AUSTRALIAN MORTGAGE SECURITIES LTD
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Amended and Restated Master Trust Deed
SCHEDULE 4
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Amended and Restated Master Trust Deed
SCHEDULE 5
INTENTIONALLY BLANK
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Amended and Restated Master Trust Deed
SCHEDULE 6
INTENTIONALLY BLANK
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Amended and Restated Master Trust Deed
SCHEDULE 7
INTENTIONALLY BLANK
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Amended and Restated Master Trust Deed
EXECUTED in Sydney as a deed.
TRUSTEE
SIGNED SEALED AND DELIVERED for
PERMANENT CUSTODIANS LIMITED by its
attorney under power of attorney in the
presence of:
--------------------------------------- ---------------------------------------
Witness Signature Attorney Signature
--------------------------------------- ---------------------------------------
Print Name Print Name
AMS
SIGNED SEALED AND DELIVERED for
AUSTRALIAN MORTGAGE SECURITIES LTD by
its attorney under power of attorney in
the presence of:
--------------------------------------- ---------------------------------------
Witness Signature Attorney Signature
--------------------------------------- ---------------------------------------
Print Name Print Name
Page 60
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Amended and Restated Master Trust Deed
ASM
SIGNED SEALED AND DELIVERED for AUSTRALIAN SECURITISATION MANAGEMENT PTY LIMITED
by its attorney under power of attorney in the presence of:
--------------------------------------- ---------------------------------------
Witness Signature Attorney Signature
--------------------------------------- ---------------------------------------
Print Name Print Name
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