Exhibit 4.6
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National RMBS Trust 200[ ]-[ ]
Deed of Charge
Date: [ ]
Parties: [NAME AND ABN OF ISSUER TRUSTEE] in its capacity as trustee
of the Trust having its registered office at [address of
Issuer Trustee] ("Issuer Trustee")
[NAME AND ABN OF SECURITY TRUSTEE] having its registered
office at [address of Security Trustee] ("Security
Trustee")
NATIONAL GLOBAL MBS MANAGER PTY LTD (ABN 36 102 668 226)
having an office at Xxxxx 00, 000 Xxxxxx Xxxxxx, Xxxxxxxxx
XXX 0000, Xxxxxxxxx ("Global Trust Manager")
[NAME and details of Note Trustee] ("Note Trustee").
Recitals:
A. The Master Security Trust Deed makes provision for the
establishment of the Security Trust pursuant to this deed.
B. As security for its obligations to the Secured Creditors,
the Issuer Trustee, as trustee of the Trust, has agreed to
grant to the Security Trustee a charge over all of the
Assets of the Trust for the benefit of the Secured
Creditors.
C. The Issuer Trustee has the power under the Master Trust
Deed to grant the charge evidenced in the Master Security
Trust Deed and this deed.
D. The Security Trustee has agreed to act as trustee for the
Secured Creditors and hold the benefit of the Charge on
trust for the Secured Creditors and otherwise act in
accordance with the Master Security Trust Deed and this
deed.
E. The Note Trustee acts as Note Trustee on behalf of the
[Noteholders of Class/Classes of US Notes] in accordance
with the Note Trust Deed.
Operative provisions:
1 Interpretation
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1.1 The following words have these meanings unless the
contrary intention appears:
Definitions Schedule means the deed entitled "National
RMBS Trusts Definitions Schedule" [ ] between the parties
described in Schedule 1 to that deed (as amended from time
to time).
Event of Default means the occurrence of any of the
following events in respect of the Trust:
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(a) the Issuer Trustee fails to pay or repay any amount
due under:
(i) the [Senior Class of Notes] or the Redraw Notes
(for such times as the [Senior Class of Notes]
or the Redraw Notes, as the case may be, are
outstanding);
(ii) [any subordinated classes of Notes (after all of
the notes senior to that class of notes and the
Redraw Notes have been repaid or redeemed in
full)]; or
(iii) any Transaction Document,
within 10 Business Days of the due date for payment or
repayment of such amount;
(b) the Issuer Trustee is (for any reason) not entitled
fully to exercise its right of indemnity against the
Assets of the Trust to satisfy any liability to a
Secured Creditor and the circumstances are not
rectified to the reasonable satisfaction of the
Security Trustee within 14 days of the Security
Trustee requiring the Issuer Trustee in writing to
rectify them;
(c) the Issuer Trustee fails to perform or observe any
other provision of a Transaction Document (other than
the obligations referred to in this definition),
where such failure will have a Material Adverse
Effect and the failure is not remedied within 30 days
after written notice from the Security Trustee
requiring the Issuer Trustee to rectify them;
(d) an Insolvency Event occurs in respect of the Issuer
Trustee (in its capacity as trustee of the Trust) and
the Issuer Trustee is not replaced (by either the
Global Trust Manager or a replacement trustee) in
accordance with the Master Trust Deed within 30 days
of such Insolvency Event;
(e) the Charge:
(i) is or becomes wholly or partly void, voidable or
unenforceable; or
(ii) loses the priority which it has at or after the
date of this deed;
(f) all or any part of any Transaction Document, is
terminated [(other than the Basis Swap, the Fixed
Rate Swap, the Redraw Facility Agreement or a
Currency Swap, in respect of a termination because of
an action of a taxing authority or change in tax
law)] or is or becomes void, illegal, invalid,
unenforceable or of limited force and effect, or any
party becomes entitled to terminate, rescind or avoid
all or part of any Transaction Document [(other than
the Basis Swap, the Fixed Rate Swap, the Redraw
Facility Agreement or a Currency Swap, in respect of
a termination because of an action of a taxing
authority or a change in tax law)]; or
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(g) except with the prior consent of the Security
Trustee, that consent only to be given upon the
instructions or the consent of the Voting Secured
Creditors:
(i) the Trust is wound up, or the Issuer Trustee is
required to wind up the Trust under the terms of
this deed, or applicable law, or the winding up
of the Trust commences; or
(ii) the Trust is held or conceded by the Issuer
Trustee not to have been constituted or to have
been imperfectly constituted; or
(iii) the Issuer Trustee ceases to be authorised to
hold the property of the Trust in its name and
perform its obligations under the Transaction
Documents.
[Insert additional Events of Default (if any) specific to
series of Notes.]
Note Trust Deed means the Note Trust Deed in respect of
the Trust.
Secured Creditor means:
(a) the Note Trustee (in its personal capacity and as
trustee of the Note Trust) on behalf of each
[Noteholder of class/classes of US Notes];
(b) each [Noteholder of class/classes of US Notes];
(c) each[Noteholder of a junior class of Note];
(d) [each Noteholder of any further class of Notes];
(e) each Redraw Noteholder;
(f) each Paying Agent;
(g) each Counterparty;
(h) the Liquidity Facility Provider;
(i) the Redraw Facility Provider;
(j) the Depositor;
(k) the Servicer;
(l) the Seller;
(m) the Global Trust Manager;
(n) the Security Trustee;
(o) each Support Facility Provider (to the extent not
included in the above paragraphs); and
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(p) [insert other relevant Secured Creditors, if any].
Secured Money means all amounts which at any time for any
reason or circumstance in connection with any Transaction
Document that relates to, or applies to, the Trust or this
deed or any transactions contemplated by any of them
(insofar as such transactions relate to, or apply to, the
Trust), whatsoever whether at law, in equity, under
statute or otherwise:
(a) are payable, are owing but not currently payable, are
contingently owing, or remain unpaid by the Issuer
Trustee to the Security Trustee on its own account or
for the account of the Secured Creditors or to any
Secured Creditor or to any Receiver;
(b) have been advanced or paid by the Security Trustee on
its own account or for the account of the Secured
Creditors or by any Secured Creditor:
(i) at the express request of the Issuer Trustee;
and
(ii) on behalf of the Issuer Trustee;
(c) which the Security Trustee on its own account or for
the account of the Secured Creditors or any Secured
Creditor is liable to pay by reason of any act or
omission of the Issuer Trustee or has paid or
advanced in the protection or maintenance of the
Secured Property or the security interest created by
this deed following an act or omission by the Issuer
Trustee; or
(d) are reasonably foreseeable as likely, after that
time, to fall within any of paragraphs (a), (b) or
(c) above.
This definition applies:
(i) irrespective of the capacity in which the Issuer
Trustee, the Security Trustee or any Secured Creditor
became entitled or is liable in respect of the amount
concerned;
(ii) whether the Issuer Trustee, the Security Trustee or
any Secured Creditor is liable as principal debtor or
surety or otherwise;
(iii) whether the Issuer Trustee is liable alone or
jointly, or jointly and severally with another
person;
(iv) whether the Security Trustee or any Secured Creditor
is the original obligee or an assignee or a
transferee of the Secured Money and whether or not:
(A) the assignment or transfer took place before or
after the delivery of this deed; or
(B) the Issuer Trustee consented to or was aware of
the assignment or transfer; or
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(C) the assigned or transferred obligation was
secured; or
(v) whether the Security Trustee or any Secured Creditor
is the original Security Trustee or an original
Secured Creditor or an assignee or a transferee of
the original Security Trustee or an original Secured
Creditor, and whether or not the Issuer Trustee
consented to or was aware of the assignment or
transfer.
Secured Property means all the present and future Assets
of the Trust held by the Issuer Trustee on the terms of
the Trust in accordance with the Master Trust Deed and the
Supplemental Deed.
Security Trust means the trust constituted by this deed
and the Master Security Trust Deed.
Supplemental Deed means the deed entitled "National RMBS
Trust 200[ ]-[ ] Supplemental Deed" dated after the date
of this deed between the Issuer Trustee, the Global Trust
Manager, the Security Trustee, the Note Trustee and
others.
Trust means the National RMBS Trust 200[ ]-[ ].
1.2 Except to the extent to which words and phrases are
otherwise defined in this deed, words and phrases defined
in the Definitions Schedule and the Supplemental Deed
shall bear the same meaning when used in this deed. Where
definitions are in respect of a "Trust" they shall be
interpreted in this deed in respect of the Trust. In the
event of any inconsistency between a definition expressly
defined in this deed and a definition in the Definitions
Schedule, the definition in this deed shall prevail. In
the event of any inconsistency between a definition in the
Definitions Schedule and a definition in the Supplemental
Deed, the definition in the Supplemental Deed will
prevail. Any amendment to the Definitions Schedule will
only apply to this deed if made in accordance with the
Master Security Trust Deed.
1.3 Clauses 1.2 to 1.5 (inclusive) of the Definitions Schedule
are incorporated into this deed as if those clauses were
set out in full.
1.4 The provisions in this deed relate only to the Trust and
the Security Trust and apply in addition to the provisions
of the Master Security Trust Deed, or in place of the
provisions of the Master Security Trust Deed, as the case
may be.
2 Creation of National RMBS Trust 200[ ]-[ ] Security Trust
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Creation of Security Trust
2.1 The Security Trust is constituted:
(a) upon execution of this deed by the Issuer Trustee,
the Security Trustee, the Global Trust Manager and
the Note Trustee; and
(b) the payment of the sum of $10 by the Global Trust
Manager to the Security Trustee in respect of the
Security Trust (the receipt
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of which the Security Trustee acknowledges by its
execution of this deed).
The above sum will vest in the Security Trustee and be
held by it on and subject to the trusts, terms and
conditions of this deed, the definition of "Security Trust
Fund" in the Definitions Schedule and the Master Security
Trust Deed in respect of the Security Trust and will be
invested by the Security Trustee in accordance with the
provisions of this deed and the Master Security Trust
Deed.
Name of Security Trust
2.2 The Security Trust established under clause 2.1 will be
known as the "National RMBS Trust 200[ ]-[ ] Security
Trust".
3 Charge
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3.1 The Issuer Trustee charges all of the Secured Property to
the Security Trustee as security for payment of the
Secured Money.
3.2 The Issuer Trustee acknowledges giving this Charge and
incurring obligations and giving rights under this deed
for valuable consideration.
4 Nature of charge
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4.1 This Charge is:
(a) a fixed charge on the Issuer Trustee's right, title
and interest in, to and under the Transaction
Documents; and
(b) a fixed charge on all Secured Property which is:
(i) interests in real property (other than those
which the Issuer Trustee is prohibited by law
from charging or is incompetent to charge by a
fixed charge and any interest which the Issuer
Trustee has in respect of any Mortgage Loans);
(ii) interests in fixtures, buildings, plant and
machinery;
(iii) book debts;
(iv) securities, instruments (negotiable or
otherwise) and documents of title (other than
the Mortgage Title Documents in respect of the
Mortgage Loans which comprise the Assets of the
Trust) at any time deposited with the Security
Trustee by the Issuer Trustee for any purpose;
(v) books of account, invoices, statements, ledger
cards and records relating to the business
transactions of the Issuer Trustee; and
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(vi) interests in personal property not referred to
above that are not acquired for disposal in the
ordinary course of the Issuer Trustee's
business; and
(c) a floating charge on:
(i) the Issuer Trustee's right, title and interest
in, to and under Mortgage Loans;
(ii) the proceeds of any book debt; and
(iii) the rest of the Secured Property.
Conversion to fixed charge
4.2 Without derogating from the provisions of clause 8 of the
Master Security Trust Deed, the Security Trustee may, by
notice given at any time to the Issuer Trustee, convert
the floating charge to a fixed charge in relation to the
Secured Property specified in the notice where the
Security Trustee reasonably considers that it is necessary
to protect the rights of the Secured Creditors under this
deed and the Master Security Trust Deed. The Security
Trustee must notify each Current Rating Agency promptly
upon so converting the charge.
5 Notices
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Form
5.1 A notice, approval, consent or other communication in
connection with this deed:
(a) may be given by an Authorised Person of the relevant
party; and
(b) must be in writing; and
(c) must be left at the address of the addressee, or sent
by prepaid ordinary post (airmail if posted to or
from a place outside Australia) to the address of the
addressee or sent by facsimile to the facsimile
number of the addressee, or sent by e-mail to the
e-mail address of the addressee set out below or
which is notified to the parties from time to time
after execution of this deed.
Issuer Trustee
Address: [ ]
Facsimile: [ ]
Attention: [ ]
E-mail: [ ]
Security Trustee
Address: [ ]
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Facsimile: [ ]
Attention: [ ]
E-mail: [ ]
Global Trust Manager
Address: Xxxxx 00
000 Xxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Facsimile: [(000) 0000 0000]
Attention: [Manager, Group Funding]
E-mail: [ ]
Note Trustee
Address: [ ]
Facsimile: [ ]
Attention: [ ]
E-mail : [ ]
Time effective
5.2 Unless a later time is specified in it a notice, approval,
consent or other communication takes effect from the time
it is received.
Deemed receipt
5.3 A notice, request, certificate, demand, consent or other
communication under this deed is deemed to have been
received:
(a) where delivered in person, upon receipt at the
relevant office;
(b) where sent by post, on the third (seventh if outside
Australia) day after posting;
(c) where sent by facsimile, on production by the
dispatching facsimile machine of a transmission
report by the machine from which the facsimile was
sent which indicates that the facsimile was sent in
its entirety to the facsimile number of the
recipient; and
(d) in the case of an e-mail, on receipt by the sender of
an e-mail from the recipient stating that the e-mail
was delivered in its entirety and the contents and
attachments of the e-mail have been received.
However, if the time of deemed receipt of any notice is
not before 4.00 p.m. (local time at the address of the
recipient) on a Business Day it is deemed to have been
received at the commencement of business on the next
following Business Day.
5.4 All notices with respect to the Secured Creditors are
valid if despatched by prepaid ordinary post (airmail if
posted to a place outside Australia) to the Secured
Creditors at their registered office (or, in the case of
[Noteholders of A$ Notes] and Redraw Noteholders, to the
address specified in the Register and, in the case of
joint holders, to the person
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whose name first appears in the Register) or, in the case
of the[Noteholders of Class/Classes of US Notes], any
notice will be effectively given if it is given to the
Note Trustee in accordance with this clause and in the
manner contemplated by the Note Trust Deed and the
[Class/Classes of US Notes] Conditions for
the[Class/Classes of US Notes]. Such notice is taken to be
received on the third (seventh, if posted to a place
outside Australia) day after posting.
6 Governing law, jurisdiction and service of process
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Governing Law
6.1 This deed and the Security Trust are governed by the law
in force in the Australian Capital Territory and the
rights, liabilities and obligations of the parties and the
other Secured Creditors are governed by the laws in force
in Australian Capital Territory.
Non-exclusive jurisdiction
6.2 Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of the Australian
Capital Territory and courts of appeal from them. Each
party waives any right it has to object to an action being
brought in those courts including, without limitation, by
claiming that the action has been brought in an
inconvenient forum or that those courts do not have
jurisdiction.
Service of process
6.3 Without preventing any other mode of service, any document
in an action (including, without limitation, any writ of
summons or other originating process or any third or other
party notice) may be served on any party by being
delivered to or left for that party at its address for
service of notices under clause 5.
7 Counterparts
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This deed may consist of a number of counterparts and the
counterparts taken together constitute one and the same
instrument.
8 Limited recourse
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8.1 Clause 2 of the Definitions Schedule applies to this deed
as if set out in full in it (with any consequential
changes as are necessary to give effect to that clause in
this deed).
Security Trustee Liability
8.2 Notwithstanding any other provision of this deed, the
Security Trustee will have no liability under or in
connection with this deed, a Security Trust, or any other
Transaction Document (whether to the Voting Secured
Creditors, the Issuer Trustee, the Global Trust Manager or
any other person) other than to the extent to which the
liability is able to be satisfied in accordance with the
Master Security Trust Deed and this deed out of the
property of the Security Trust Fund of the Security Trust
from which the Security Trustee is actually indemnified
for the liability.
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This limitation will not apply to a liability of the
Security Trustee to the extent that it is not satisfied
because, under this deed or by operation of law, there is
a reduction in the extent of the Security Trustee's
indemnification out of the Security Trust Fund as a result
of the Security Trustee's fraud, negligence or breach of
trust. Nothing in this clause 8.2 or any similar provision
in any other Transaction Document limits or adversely
affects the powers of the Security Trustee, any Receiver
or attorney in respect of the Master Security Trust Deed
or any Secured Property.
9 Note Trustee
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Capacity
9.1 The Note Trustee is a party to this deed in its capacity
as trustee for the [Noteholders of Class/Classes of US
Notes] of the Trust from time to time under the Note Trust
Deed.
Exercise of rights
9.2 Except as otherwise provided in this deed and in the Note
Trust Deed:
(a) (Only by Note Trustee): the rights, remedies and
discretions of the [Noteholders of Class/Classes of
US Notes] under this deed including all rights to
vote or give instructions or consent to the Security
Trustee and to enforce any undertakings or warranties
under this deed, may only be exercised by the Note
Trustee on behalf of the [Noteholders of
Class/Classes of US Notes] in accordance with the
Note Trust Deed; and
(b) (Limited Right of Enforcement by [Noteholders of
Class/Classes of US Notes]): the [Noteholders of
Class/Classes of US Notes] may only exercise
enforcement rights in respect of the Secured Property
through the Note Trustee and only in accordance with
this deed.
Instructions or directions
9.3 The Security Trustee may rely on any instructions or
directions given to it by the Note Trustee as being given
on behalf of all the [Noteholders of Class/Classes of US
Notes] from time to time and need not inquire whether any
such instructions or directions are in accordance with the
Note Trust Deed, whether the Note Trustee or the
[Noteholders of Class/Classes of US Notes] from time to
time have complied with any requirements under the Note
Trust Deed or as to the reasonableness or otherwise of the
Note Trustee.
Payments
9.4 Any payment to be made to a [Noteholder of Class/Classes
of US Notes] under this deed may be made to the Note
Trustee or a Paying Agent on behalf of that [Noteholder of
Class/Classes of US Notes] in accordance with the Note
Trust Deed, the Agency Agreement and the [Class/Classes of
US Note] Conditions for the [Class/Classes of US Notes].
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Notices
9.5 Any notice to be given to a [Noteholder of Class/Classes
of US Notes] under this deed may be given to the Note
Trustee on behalf of that Class A Noteholder and in the
manner contemplated by the Note Trust Deed and the
[Class/Classes of US Note] Conditions for
the[Class/Classes of US Note]. Any costs to the Note
Trustee of publishing such notice to the [Noteholder of
Class/Classes of US Notes] will, subject to this deed, be
reimbursed by the Issuer Trustee to the Note Trustee.
Limitation of Note Trustee's Liability
9.6 The liability of the Note Trustee under this deed is
limited in the manner and to the same extent as under the
Note Trust Deed.
10 Priority amount
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10.1 The parties acknowledge that the maximum amount of the
prospective liability secured by this deed for the
purposes of establishing priority under section 282(3) of
the Corporations Act is $[ ].
10.2 Clause 10.1 in no way affects or limits the actual amount
of Secured Money which may in fact be secured by this
deed.
10.3 Clauses 10.1 and 10.2 are to be construed independently of
each other.
EXECUTED as a deed in the Australian Capital Territory
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Execution page
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SIGNED, SEALED AND )
DELIVERED by [................] )
as attorney for [NAME OF ISSUER )
TRUSTEE] under power of attorney )
dated )
[..............................] )
)
in the presence of: )
)
.................................. )
Signature of witness )
)
.................................. )
Name of witness (block letters) )
)
.................................. ) .........................................
Address of witness ) By executing this deed the attorney
) states that the attorney has received no
.................................. ) notice of revocation of the power of
Occupation of witness ) attorney
SIGNED, SEALED AND )
DELIVERED by [ ] )
as attorney for [NAME OF SECURITY )
TRUSTEE] under power of attorney )
dated [ ] )
)
in the presence of: )
)
.................................. )
Signature of witness )
)
.................................. )
Name of witness (block letters) )
)
.................................. ) .........................................
Address of witness ) By executing this deed the attorney
) states that the attorney has received no
.................................. ) notice of revocation of the power of
Occupation of witness ) attorney
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SIGNED by )
[ ] )
)
on behalf of and SEALED AND )
DELIVERED by NATIONAL )
GLOBAL MBS MANAGER PTY )
LTD in the presence of: )
)
)
.................................. )
Signature of witness )
)
.................................. )
Name of witness (block letters) )
)
.................................. ) .........................................
Address of witness ) By executing this deed the signatory
) states that the signatory has received
.................................. ) no notice of revocation of the authority
Occupation of witness ) under which they execute this deed
SIGNED, SEALED AND DELIVERED )
by [ ] )
as authorised signatory for )
[NAME OF NOTE TRUSTEE] )
)
in the presence of: )
)
)
.................................. )
Signature of witness )
)
.................................. )
Name of witness (block letters) )
)
.................................. ) .........................................
Address of witness ) By executing this deed the signatory
) states that the signatory has received
.................................. ) no notice of revocation of the authority
Occupation of witness ) under which this deed is signed, sealed
) and delivered
__________________________________________
Dated
National RMBS Trust
200[ ]-[ ]
Deed of Charge
[Name of Issuer Trustee]
("Issuer Trustee")
[Name of Security Trustee]
("Security Trustee")
National Global MBS Manager Pty
Ltd
("Global Trust Manager")
[Name of Note Trustee]
("Note Trustee")
Mallesons Xxxxxxx Xxxxxx
Solicitors
Governor Xxxxxxx Xxxxx
0 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Telephone (00 0) 0000 0000
Fax (00 0) 0000 0000
DX 000 Xxxxxx
Ref: AAV/SRF
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Contents National RMBS Trust 200[ ]-[ ] Deed of Charge
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1 Interpretation 1
2 Creation of National RMBS Trust 200[ ]-[ ]
Security Trust 5
Creation of Security Trust 5
Name of Security Trust 6
3 Charge 6
4 Nature of charge 6
Conversion to fixed charge 7
5 Notices 7
Form 7
Time effective 8
Deemed receipt 8
6 Governing law, jurisdiction and service of process 9
Governing Law 9
Non-exclusive jurisdiction 9
Service of process 9
7 Counterparts 9
8 Limited recourse 9
Security Trustee Liability 9
9 Note Trustee 10
Capacity 10
Exercise of rights 10
Instructions or directions 10
Payments 10
Notices 11
Limitation of Note Trustee's Liability 11
10 Priority amount 11
