Exhibit 4.7
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National RMBS Trust 200[ ]-[ ]
Note Trust Deed
Date: [ ]
Parties: [NAME AND ABN OF ISSUER TRUSTEE] having its registered
office at [address of Issuer Trustee] in its capacity as
trustee of the National RMBS Trust 200[ ]-[ ] ("Issuer
Trustee")
NATIONAL GLOBAL MBS MANAGER PTY LTD (ABN 36 102 668 226)
of Xxxxx 00, 000 Xxxxxx Xxxxxx, Xxxxxxxxx XXX 0000,
Xxxxxxxxx ("Global Trust Manager")
[NAME and details of Note Trustee] ("Note Trustee" which
expression includes all persons being the trustee of this
Note Trust Deed)
Recitals:
A. The Issuer Trustee wishes to issue, at the direction of
the Global Trust Manager, the [Class/Classes of US Notes].
B. The Note Trustee has agreed to act as Note Trustee for the
[Noteholders of Class/Classes of US Notes] on the terms
set out in this deed.
C. This deed is an indenture qualified under, and subject to
the mandatory provisions of, the Trust Indenture Xxx 0000
of the United States of America, which are incorporated by
reference in and made part of this deed.
Operative provisions:
[NB: The provisions of this deed may be amended, and additional provisions
inserted, to reflect regulation in those jurisdictions applicable to a
specific series of Notes]
1 Definitions and Interpretation
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Definitions Schedule
1.1 The following words have these meanings unless the
contrary intention appears:
Definitions Schedule means the deed called "National RMBS
Trusts Definitions Schedule" dated [ ] and made between
the companies described in schedule 1 to that deed (as
amended from time to time).
Supplemental Deed means the deed entitled "National RMBS
Trust 200[ ]-[ ] Supplemental Deed" dated on or about the
date of this deed between the Issuer Trustee, the Global
Trust Manager 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 in
respect of the Trust shall bear the same
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meaning in this deed. In the event of any inconsistency
between a definition in this deed and a definition in the
Definitions Schedule, the definitions in this deed will
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 this 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.
Interpretation
1.4 This deed binds the Issuer Trustee, the Global Trust
Manager, the Note Trustee and the [Noteholders of
Class/Classes of US Notes] of each Trust.
1.5 By executing this deed, the Note Trustee agrees that terms
used in any Transaction Document have the meaning given to
them in the Definitions Schedule.
Appointment of the Note Trustee
1.6 The Note Trustee:
(a) is appointed to act as trustee on behalf of the
[Noteholders of Class/Classes of US Notes] on the
terms and conditions of this deed; and
(b) acknowledges and declares that it:
(i) holds the sum of $10 received on the date of
this deed; and
(ii) will hold the benefit of the obligations of the
Issuer Trustee and the Global Trust Manager
under this deed and under other Transaction
Documents given in favour of the Note Trustee,
in each case, on trust for each [Noteholder of the
Class/Classes of US Note], in accordance with the
terms and conditions of this deed.
Interpretation of provisions incorporated from TIA
1.7 Where a provision of the TIA is incorporated into this
deed in accordance with the TIA (as described in clause
25.5) the following terms used in that provision have the
following meanings in this deed:
"default" means an Event of Default.
"indenture securities" means the [Class/Classes of US
Notes].
"indenture security holder" means the [Noteholder of the
Class/Classes of US Note].
"indenture to be qualified" means this deed.
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"indenture trustee" or "institutional trustee" means the
Note Trustee.
"obligor upon the indenture securities" means the Issuer
Trustee.
"SEC" has the meaning given to that term in the
Definitions Schedule.
Any other term, expression or provision which is used in
this deed in respect of a section or provision of the TIA
and which is defined in the TIA, defined in the TIA by
reference to another statute or defined by or in any rule
of or issued by the SEC, will have the meaning assigned to
it by such definitions. Any term or expression that is
used in both:
(a) (TIA): a mandatory provision of the TIA; and
(b) (This Deed): a clause of this deed that, on its face,
appears to satisfy or reflect that mandatory
provision of the TIA,
will be construed and interpreted as a Federal court of
the United States of America would construe and interpret
the term or expression.
2 Covenant to Pay
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Covenant to Pay
2.1 The Issuer Trustee at the direction of the Global Trust
Manager shall on any date when any [Class/Classes of US
Note] becomes due to be redeemed, in whole or in part,
unconditionally pay to or to the order of the Note Trustee
in accordance with, and subject to, the terms of the
Transaction Documents in same day funds the principal of
such [Class/Classes of US Note] becoming due on that date
and shall (subject to the [Conditions of the Class/Classes
of US Notes]) until payment in whole of the principal of
the [Class/Classes of US Note](both before and after
judgment) unconditionally pay to or to the order of the
Note Trustee interest on the Invested Amount of the
[Class/Classes of US Note]as set out in the [Conditions of
the Class/Classes of US Notes] (subject to clause 2.4),
provided that:
(a) payment of any sum due in respect of the
[Class/Classes of US Notes] made to a Paying Agent as
provided in the Agency Agreement (unless notice in
accordance with clause 3 of the Agency Agreement has
been given) or to the Note Trustee in accordance with
this deed shall to that extent, satisfy such
obligation except to the extent that there is failure
in the Paying Agent's or the Note Trustee's (as the
case may be) subsequent payment to the relevant
[Noteholders of Class/Classes of US Notes] under the
[Conditions of the Class/Classes of US Notes] and the
Agency Agreement; and
(b) a payment made after the due date shall be deemed to
have been made when the full amount due has been
received by the Paying Agent or the Note Trustee and
notice to that effect has been given to the
[Noteholders of Class/Classes of US Notes], except to
the extent that there is failure in the Paying
Agent's or the
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Note Trustee's (as the case may be) subsequent
payment to the relevant [Noteholders of Class/Classes
of US Notes] under the [Conditions of the
Class/Classes of US Notes] and the Agency Agreement.
Discharge
2.2 Subject to clause 2.1, any payment to be made in respect
of the [Class/Classes of US Notes] by the Issuer Trustee
or the Note Trustee may be made as provided in the
[Conditions of the Class/Classes of US Notes] and any
payment so made will (subject to clause 2.1) to that
extent be a good discharge to the Issuer Trustee or the
Note Trustee, as the case may be.
Payment after an Event of Default
2.3 At any time after an Event of Default has occurred, the
Note Trustee may take the actions referred to in clause 3
of the Agency Agreement.
Rate of Interest after an Event of Default
2.4 If the [Class/Classes of US Notes] become immediately due
and payable, the rate of interest payable in respect of
them shall continue to be calculated by the Calculation
Agent in accordance with the [Conditions of the
Class/Classes of US Notes] (with consequential amendments
as necessary) except that the rate of interest need not be
published unless the Note Trustee otherwise requires. The
first period in respect of which interest shall be so
calculable shall commence on the expiry of the Interest
Period during which the [Class/Classes of US Notes] become
so repayable.
3 Amount, Form and issue of [Class/Classes of US Notes]
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Aggregate Amount and Denomination
3.1 The [Class/Classes of US Notes] will be issued in minimum
denominations of US$[ ] each and multiples of
US$[ ] in excess of that amount.
Description and Form of [Class/Classes of US Notes]
3.2 (a) (Form of [Class/Classes of US Notes]): The [Class/
Classes of US Notes] must be serially numbered and
typewritten or printed (in the case of [Class/Classes
of Book Entry US Notes]) or typewritten, printed,
lithographed or engraved or produced by any
combination of these methods and with or without
steel borders (in the case of [Class/Classes of
Definitive US Notes]) in the form or substantially in
the form set out in Schedule 1.
(b) (Signing of [Class/Classes of US Notes]): Each
[Class/Classes of US Note]must be signed by an
Authorised Person or other duly appointed attorney or
representative of the Issuer Trustee on behalf of the
Issuer Trustee.
(c) (Authentication of [Class/Classes of US Notes]): Each
[Class/Classes of US Note] must be authenticated by
an Authorised Person or other duly appointed
representative of the Note Trustee on behalf of the
Note Trustee. No [Class/Classes
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of US Note] will be valid for any purpose unless and
until so authenticated.
(d) (Dating of [Class/Classes of US Notes]): The
[Class/Classes of US Notes] must be dated the date of
their authentication.
Initial issue as [Class/Classes of Book Entry US Notes]
3.3 (a) (Issue as [Class/Classes of Book Entry US Notes]): The
[Class/Classes of US Notes] will upon issue be
represented by one or more book-entry notes initially
registered in accordance with clause 4 in the name of
[name of nominee], as nominee of DTC as the initial
Depository.
(b) (Delivery of [Class/Classes of Book Entry US Notes]):
The Issuer Trustee must on the date of this deed
deliver or procure the delivery of [Class/Classes of
Book Entry US Notes] to the Principal Paying Agent as
agent for the Depository.
(c) (Rights attaching to [Class/Classes of Book Entry US
Notes]): A [Class/Classes of Book Entry US Note]
executed and authenticated in accordance with clause
3.2 will constitute binding and valid obligations of
the Issuer Trustee. Until a [Class/Classes of Book
Entry US Note] has been exchanged pursuant to this
deed, it shall in all respects be entitled to the
same benefits as a [Class/Classes of Definitive US
Note] except as specifically provided to the contrary
in this deed or the provisions of the [Class/Classes
of Book Entry US Note].
(d) (Exchange etc): Subject to this deed, the procedures
relating to the exchange, authentication, delivery,
surrender, cancellation, presentation, marking up or
down of any [Class/Classes of Book Entry US Note] and
any other matters to be carried out by the relevant
parties upon exchange of any [Class/Classes of Book
Entry US Note] will be made in accordance with the
provisions of the [Class/Classes of Book Entry US
Notes] and the normal practice of the Depository's
nominee, the [Registrar of the Class/Classes of US
Notes] and the rules and procedures of the Depository
from time to time.
(e) (Dealings with Depository): Unless and until the
[Class/Classes of Definitive US Notes] have been
issued to a [Owner of Class/Classes of US Note]
pursuant to clause 3.4, the following provisions
apply:
(i) the Issuer Trustee, the Global Trust Manager,
each Agent and the Note Trustee will be entitled
to deal with the Depository for all purposes
whatsoever (including the payment of principal
of and interest on the [Class/Classes of US
Notes] and the giving of instructions or
directions under this deed) as the absolute
holder of the [Class/Classes of US Notes] and
none of the Issuer Trustee, the Global Trust
Manager,
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any Agent or the Note Trustee will be affected by
notice to the contrary;
(ii) whenever a notice or other communication to the
[Noteholders of Class/Classes of US Notes] is
required under this deed or any other
Transaction Document all such notices and
communications must be given to the Depository
and are not required to be given to the [Owner
of Class/Classes of US Notes];
(iii) the rights of [Owner of Class/Classes of US
Notes] may be exercised only through the
Depository and are limited to those established
by law and agreements between such [Owner of
Class/Classes of US Notes] and the Depository
and/or the Clearing Agency Participants;
(iv) the Issuer Trustee, the Global Trust Manager,
each Agent and the Note Trustee may conclusively
rely upon any statement from the Depository or
any Clearing Agency Participant as to the votes,
instructions or directions it has received from
[Owner of Class/Classes of US Notes] and/or
Clearing Agency Participants.
To the extent that the provisions of this clause 3.3
conflict with any other provisions of this deed, the
provisions of this clause 3.3 prevail.
Issue of [Class/Classes of Definitive US Notes]
3.4 (a) (Events leading to exchange): If:
(i) the Depository advises the Note Trustee in
writing that the Depository is no longer willing
or able properly to discharge its
responsibilities with respect to the
[Class/Classes of US Notes] and the Global Trust
Manager is unable to locate a qualified
successor to act as Depository;
(ii) the Global Trust Manager (at its option) advises
the Issuer Trustee, the Note Trustee, the Paying
Agents and the Depository in writing the
[Class/Classes of Definitive US Notes] are to be
issued in replacement of the [Class/Classes of
Book Entry US Notes]; or
(iii) an Event of Default has occurred and is
subsisting and the [Owner of Class/Classes of US
Notes] representing beneficial interests
aggregating to at least a majority of the
aggregate Invested Amount of the [Class/Classes
of US Notes] advise the Issuer Trustee through
the Depository in writing that the continuation
of a book entry system is no longer in the best
interests of the [Owner of Class/Classes of US
Notes],
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then the Issuer Trustee, on the direction of the
Global Trust Manager, must within 30 days of such
event instruct the Depository to notify all of the
appropriate [Owner of Class/Classes of US Notes] of
the occurrence of any such event and of the
availability of [Class/Classes of Definitive US
Notes] to such [Owners of Class/Classes of US Notes]
requesting the same. The Note Trustee must promptly
advise the Issuer Trustee and the Global Trust
Manager upon the occurrence of an event referred to
in clause 3.4(a)(i) and the Issuer Trustee must
promptly advise the Note Trustee and the Global Trust
Manager upon the occurrence of an event referred to
in clause 3.4(a)(iii).
(b) (Exchange for [Class/Classes of Definitive US
Notes]): Upon the surrender to the Issuer Trustee of
[Class/Classes of Book Entry US Notes] by the
Depository following an instruction of the Issuer
Trustee pursuant to clause 3.4(a), and the delivery
by the Depository of the relevant registration
instructions to the Issuer Trustee, the Issuer
Trustee must issue and execute and the Note Trustee
must authenticate and deliver [Class/Classes of
Definitive US Notes] of the same aggregate Invested
Amount as those [Class/Classes of Book Entry US
Notes], replacing those [Class/Classes of Book Entry
US Notes], in accordance with clause 3.2 and the
instructions of the Depository. None of the Note
Trustee, the Global Trust Manager, the Issuer Trustee
or any Agent will be liable for any delay in delivery
of such instructions and each such person may
conclusively rely on, and will be protected in
relying on, such instructions.
(c) (No other entitlement): No other [Owner of
Class/Classes of US Note] will be entitled to receive
a [Class/Classes of Definitive US Note] representing
such [Owner of Class/Classes of US Note]'s interest
in a [Class/Classes of US Note], except as provided
in this clause 3.4.
Indemnity of non-issue of [Class/Classes of Definitive US Notes]
3.5 If the Issuer Trustee is required to issue [Class/Classes
of Definitive US Notes] following an event specified in
clause 3.4 but fails to do so within 30 days of surrender
to the Issuer Trustee of the [Class/Classes of Book Entry
US Notes] in accordance with clause 3.4 then the Issuer
Trustee must, subject to clause 23, indemnify the Note
Trustee, the [Noteholders of Class/Classes of US Notes]
and [Owners of Class/Classes of US Notes], and keep them
indemnified, against any loss or damage incurred by any of
them if the amount received by the Note Trustee, the
[Noteholders of Class/Classes of US Notes] or [Owners of
Class/Classes of US Notes], respectively, is less than the
amount that would have been received had [Class/Classes of
Definitive US Notes] been issued. If the Issuer Trustee
breaches its obligations under clause 3.4, it is
acknowledged and agreed that damages alone will not be an
adequate remedy for such a breach and that, in addition to
any other rights they may have, the Note Trustee, the
[Noteholders of Class/Classes of US Notes] and the [Owners
of Class/Classes of US
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Notes] are entitled to xxx the Issuer Trustee for specific
performance, injunctive relief or other equitable relief
to enforce the Issuer Trustee's obligations under clause
3.4.
4 [Register of the Class/Classes of US Notes]
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Maintenance of [Register of the Class/Classes of US Notes]
4.1 The Note Trustee must procure that the [Register of the
Class/Classes of US Notes] is maintained, and that
[Class/Classes of US Notes] are transferred, exchanged,
replaced, redeemed and cancelled, all in accordance with
the provisions of the [Class/Classes of US Notes]
(including the [Conditions of the Class/Classes of US
Notes]) and the Agency Agreement. If at any time for any
reason there ceases to be a person performing the
functions of the [Registrar of the Class/Classes of US
Notes] under the Agency Agreement, the Note Trustee must
act as the [Registrar of the Class/Classes of US Notes]
and perform all of the obligations of the [Registrar of
the Class/Classes of US Notes] contained in the Agency
Agreement.
Provision of [Noteholder of the Class/Classes of US Note] Information
4.2 (Provision of Information): The Issuer Trustee must
provide or procure the provision to the Note Trustee (if
the Note Trustee is not the [Registrar of the
Class/Classes of US Notes]) at intervals of not more than
6 months (commencing as from the Closing Date), and at
such other times as the Note Trustee may request in
writing, all information in the possession or control of
the [Registrar of the Class/Classes of US Notes] as to the
names and addresses of the [Noteholders of Class/Classes
of US Notes], provided that the Issuer Trustee will not
have any obligations pursuant to this clause 4.2 while the
[Class/Classes of US Notes] are all [Class/Classes of Book
Entry US Notes].
4.3 (Note Trustee's Obligations): The Note Trustee must
preserve, in as current form as is reasonably practicable,
the names and addresses of the [Noteholders of
Class/Classes of US Notes] provided to it pursuant to
clause 4.2 or otherwise received by it in any capacity and
must comply with its obligations pursuant to section
312(b) of the TIA.
4.4 (Protection): The Issuer Trustee, the Note Trustee and the
[Registrar of the Class/Classes of US Notes] will have the
protection of section 312(c) of the TIA in relation to the
disclosure of information in accordance with clause 4.2
and 4.3.
[Register of the Class/Classes of US Notes] Conclusive
4.5 A [Class/Classes of US Note] is not a certificate of title
and the [Register of the Class/Classes of US Notes] is the
only conclusive evidence of title to the [Class/Classes of
US Notes].
5 Stamp duties
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The Issuer Trustee shall pay any stamp, issue,
documentary, registration or other duty or tax duties
including interest and penalties, payable in the
Commonwealth of Australia, the Australian Capital
Territory, the United
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States of America and the United Kingdom in respect of the
creation, issue and offering of the [Class/Classes of US
Notes] and the execution or delivery of this deed and each
other Transaction Document. Subject to clause 23, the
Issuer Trustee shall also indemnify the Note Trustee and
the [Noteholders of Class/Classes of US Notes] from and
against all stamp, issue, documentary and other
registration taxes paid by any of them in any jurisdiction
in connection with any action taken by or on behalf of the
Note Trustee or the [Noteholders of Class/Classes of US
Notes] and [Owners of Class/Classes of US Notes] to
enforce the Issuer Trustee's obligations under this deed
or the [Class/Classes of US Notes].
6 Application of moneys received by the Note Trustee
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Declaration of Trust
6.1 All moneys received by the Note Trustee in respect of the
[Class/Classes of US Notes] or amounts payable under this
deed shall, despite any appropriation of all or part of
them by the Issuer Trustee, be held by the Note Trustee on
trust to apply them (subject to clause 6.2):
(a) first, in payment of all costs, charges, expenses and
liabilities incurred by the Note Trustee (including
all fees and remuneration payable to it) in carrying
out its functions under this deed;
(b) secondly, pari passu and rateably in payment of any
amounts owing in respect of the [Class/Classes of US
Notes]; and
(c) thirdly, in payment of any balance to the Issuer
Trustee for distribution in accordance with the
Master Trust Deed and the Supplemental Deed in
respect of the Trust.
If the Note Trustee holds any moneys in respect of
[Class/Classes of US Notes] which have become void or in
respect of which claims have become prescribed, the Note
Trustee shall hold them on these trusts.
Accumulation
6.2 If the amount of the moneys at any time (other than on a
Payment Date) available for payment in respect of the
[Class/Classes of US Notes] under clause 6.1 is less than
10 per cent of the then Invested Amount of the
[Class/Classes of US Notes] and upon receipt of a written
direction from the Global Trust Manager, the Note Trustee
may invest such moneys in Authorised Investments
denominated in US Dollars until the next Payment Date. In
the event the Global Trust Manager does not provide
written instructions to the Note Trustee within 5 days of
receipt of funds, the Note Trustee may at its discretion,
invest the funds in units of money market funds, including
money market funds managed or advised by the Note Trustee
or an affiliate thereof, having the highest possible
rating by a recognised rating agency in the US. The Note
Trustee may retain such investments and accumulate the
income from them until the earlier of the next Payment
Date or when the investments and the accumulations,
together with any other funds for the time being under its
control and available for such payment, amount to at least
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per cent of the Invested Amount of the [Class/Classes of
US Notes] then outstanding and then such investments,
accumulations and funds (after deduction of, or provision
for, any applicable taxes) shall be applied as specified
in clause 6.1.
Investment
6.3 Moneys held by the Note Trustee may be invested in its
name or under its control in Authorised Investments in
accordance with clause 6.2 or deposited in its name or
under its control at such bank or other financial
institution which has the Required Credit Rating in US$.
If that bank or institution is the Note Trustee or a
subsidiary, holding or associated company of the Note
Trustee, it need only account for an amount of interest
equal to the largest amount of interest payable by it on
such a deposit to an independent customer. The Note
Trustee may at any time vary or transpose any such
investments or assets, and shall not be responsible for
any resulting loss, whether by depreciation in value or
otherwise.
7 Covenants
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The Issuer Trustee and the Global Trust Manager
7.1 So long as any [Class/Classes of US Note] is outstanding,
each of the Issuer Trustee and the Global Trust Manager
severally covenants in favour of the Note Trustee that it:
(a) ([Class/Classes of US Notes]) will comply with all of
its obligations under the [Class/Classes of US Notes]
(as if the provisions of the [Class/Classes of US
Notes], including the [Conditions of the
Class/Classes of US Notes], were set out in full in
this deed);
(b) (Transaction Documents):
(i) will comply with, perform and observe all of its
material obligations under all the other
Transaction Documents to which it is a party;
and
(ii) will enforce its rights under the Transaction
Documents in a manner consistent with its
respective obligations and duties under the
Transaction Documents;
(c) (Notice of Event of Default) will notify the Note
Trustee in writing promptly on becoming aware of the
occurrence of any Event of Default, Global Trust
Manager's Default, Servicer Termination Event, Title
Perfection Event or Issuer Trustee Default;
(d) (Certificate of Compliance) will provide to the Note
Trustee within 120 days after the end of each
financial year of the Trust (commencing on the
financial year ending on [ ]):
(i) in accordance with section 314(a)(4) of the TIA,
a certificate from its principal executive
officer, principal
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financial officer or principal accounting
officer as to his or her knowledge of the
activities of the Issuer Trustee, the Global
Trust Manager, as the case may be, in respect of
the Trust during that year and of the Issuer
Trustee's, Global Trust Manager's, as the case
may be, compliance with all conditions,
covenants and other provisions under this deed
(and determined without regard to any period of
grace or requirement of notice under this deed
or any other Transaction Document) and giving
reasonable details about any non-compliance; and
(ii) a certificate (which may be part of the
certificate referred to in clause 7.1(d)(i))
from an Authorised Person of the Issuer Trustee,
the Global Trust Manager, as the case may be,
stating whether to the best of his or her
knowledge in the period since the date of
execution of this deed (in the case of the first
such certificate) based on a review of the
activities referred to in clause 7.1(d)(i) or
since the provision of the most recent
certificate under this clause 7.1(d)(ii) (in the
case of any other such certificate), an Event of
Default, Title Perfection Event, Servicer
Termination Event, Global Trust Manager's
Default or Issuer Trustee Default has occurred
and, if any such event has occurred, giving
reasonable details of that event;
(e) (notices to [Noteholders of Class/Classes of US
Notes]) will send to the Note Trustee the form of
each notice to be given to [Noteholders of
Class/Classes of US Notes] and [Owners of
Class/Classes of US Notes] and, once given, two
copies of each such notice, such notice to be in a
form previously approved by the Note Trustee;
(f) (further acts) will so far as permitted by applicable
law, do such further things as may be necessary in
the opinion of the Note Trustee to give effect to
this deed;
(g) (notice of late payment) will promptly upon request
by the Note Trustee, give notice to the [Noteholders
of Class/Classes of US Notes] of any unconditional
payment to the Paying Agent or the Note Trustee of
any sum due in respect of the [Class/Classes of US
Notes] made after the due date for such payment;
(h) (change in Agents) will give at least 14 days' prior
notice to the [Noteholders of Class/Classes of US
Notes] of any future appointment, resignation or
removal of an Agent or of any change by an Agent of
its Specified Office and not make any such
appointment or removal without the Note Trustee's
prior written approval;
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(i) (provision of legal opinions) will procure the
delivery of legal opinions addressed to the Note
Trustee in accordance with section 314(b) of the TIA:
(i) on the Closing Date, a legal opinion either
stating that the Master Security Trust Deed and
the Deed of Charge in respect of the Trust has
been properly recorded and filed so as to make
effective the Security Interest intended to be
created by the Deed of Charge in respect of the
Trust, and reciting the details of such action,
or stating that no such action is necessary to
make such Security Interest effective; and
(ii) within 120 days after the end of each financial
year of the Trust (commencing on the financial
year ending in [ ]), a legal opinion either
stating that such action has been taken with
respect to the recording, filing, re-recording
(if any) and re-filing (if any) of the Deed of
Charge in respect of the Trust as is necessary
to maintain the Security Interest created by
such Deed of Charge, and reciting the details of
such action or stating that no such action, is
necessary to maintain such Security Interest;
(j) (Change of Global Trust Manager) will, in the case of
the Issuer Trustee only, promptly notify the Note
Trustee of any retirement or replacement of the
Global Trust Manager pursuant to clause 23 of the
Master Trust Deed and of the appointment of a
replacement Global Trust Manager;
(k) ([Class/Classes of US Notes] held by Issuer Trustee
etc) will, in the case of the Issuer Trustee only,
send to the Note Trustee as soon as practicable after
being so requested by the Note Trustee a certificate
of the Issuer Trustee signed by an Authorised Person
of the Issuer Trustee stating the number of
[Class/Classes of US Notes] held or issued at the
date of such certificate by or on behalf of the
Issuer Trustee;
(l) (books of account) will, in the case of the Issuer
Trustee only, keep proper books of account and, at
any time after an Event of Default has occurred or if
the Note Trustee reasonably believes that such an
event has occurred, so far as permitted by applicable
law, allow the Note Trustee and anyone appointed by
it, access to the books of account of the Issuer
Trustee at all times during normal business hours;
and
(m) (financial statements etc) will, in the case of the
Issuer Trustee only, send to the Note Trustee at the
time of their issue and in the case of annual
financial statements in any event within 180 days of
the end of each financial year two copies in English
of the Trust's accounts and every notice, statement
or circular issued, or which legally or contractually
should be issued, to the
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members or creditors (or any class of them) of the
Trust in their capacity as such.
Covenants between Issuer Trustee and Global Trust Manager
7.2 (a) (Obligations of Global Trust Manager): Without
limiting any other obligations of the Global Trust
Manager pursuant to any Transaction Document, the
Global Trust Manager covenants in favour of the
Issuer Trustee to prepare and submit to the Issuer
Trustee all documents required to be filed with or
submitted to the Commission by the Issuer Trustee in
relation to the [Class/Classes of US Notes], the
Trust or this deed at least, where possible, 5
Business Days before such filing or submission is
required and to take such other actions as may
reasonably be taken by the Global Trust Manager to
perform or ensure the performance by the Issuer
Trustee of its obligations under the TIA or the
Exchange Act in relation to the [Class/Classes of US
Notes], the Trust or this deed. No breach by the
Issuer Trustee of any obligation under the TIA, the
Exchange Act or this deed will be considered to be
fraudulent, negligent or breach of trust for the
purposes of clause 23.3 to the extent that it results
from a breach by the Global Trust Manager of this
clause 7.2(a).
(b) (Obligation of Issuer Trustee): Subject to compliance
by the Global Trust Manager with clause 7.2(a), the
Issuer Trustee covenants in favour of the Global
Trust Manager to sign all documents and do all things
reasonably requested by the Global Trust Manager in
relation to the compliance by the Issuer Trustee or
the Global Trust Manager of its obligations under the
TIA or the Exchange Act in relation to the
[Class/Classes of US Notes], the Trust or this deed.
8 Enforcement
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Actions following Event of Default
8.1 If an Event of Default has occurred in respect of the
Trust, the Note Trustee must:
(a) (Notify [Noteholders of Class/Classes of US Notes]):
notify each [Noteholder of the Class/Classes of US
Note] and such other persons as are specified in
section 313(c) of the TIA of the Event of Default in
respect of the Trust, as the case may be, within 90
days, or such shorter period as may be required by
the rules of any stock exchange on which the
[Class/Classes of US Notes] are listed, after the
occurrence of the Event of Default in respect of the
Trust provided that, except in the case of a default
in payment of principal or interest on any
[Class/Classes of US Note], the Note Trustee may
withhold such notice if and so long as the board of
directors, the executive committee or a trust
committee of its directors and/or Authorised Persons
in good faith determine that withholding the notice
is in the interest of [Noteholders of Class/Classes
of US Notes];
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(b) (Determine whether to Seek Directions): if a meeting
of Voting Secured Creditors is to be held under the
Master Security Trust Deed, determine whether it
proposes to seek directions from [Noteholders of
Class/Classes of US Notes] as to how to vote at that
meeting and, if so, whether it proposes to instruct
the Security Trustee to delay the holding of that
meeting while it obtains such directions from the
[Noteholders of Class/Classes of US Notes]; and
(c) (Vote at Meeting of Voting Secured Creditors):
subject to clause 8.5, vote at any meeting of Voting
Secured Creditors held under the Master Security
Trust Deed. Any such votes by the Note Trustee must
be exercised for or against any proposal at the
meeting of Voting Secured Creditors in the same
proportion as that of the aggregate Invested Amounts
of the [Class/Classes of US Notes] held by
[Noteholders of Class/Classes of US Notes] who have
directed the Note Trustee to vote for or against such
a proposal.
8.2 In addition to the above provisions of this clause 8, and
for avoidance of doubt, the Note Trustee also has the
power, subject to clause 23 and to the Master Security
Trust Deed:
(a) (enforce following default) in the event of a default
in repayment of the principal or payment of interest
by the Issuer Trustee in respect of any
[Class/Classes of US Note] when and as the same shall
become due and payable, which default has continued
for a period of 10 days, to recover judgment, in its
own name and as the Note Trustee, against the Issuer
Trustee upon the [Class/Classes of US Notes] for the
whole amount of such principal and interest remaining
unpaid;
(b) (file proofs) to file such proofs of claim and other
payments or documents as may be necessary or
advisable in order to have the claims of the Note
Trustee and the [Noteholders of Class/Classes of US
Notes] allowed in any judicial proceedings in
relation to the Issuer Trustee upon the
[Class/Classes of US Notes], the Secured Creditors in
relation to the Trust or the Assets of the Trust;
(c) (collect moneys) to collect and receive any moneys or
other property payable or deliverable on any of those
claims and to distribute those moneys; and
(d) (enforce rights) if an Event of Default occurs in
respect of the Trust and is subsisting, to proceed to
protect and enforce its rights and the rights of the
[Noteholders of Class/Classes of US Notes] by such
appropriate judicial proceedings as the Note Trustee
deems most effectual to protect and enforce any such
rights, whether for the performance of any provision
of this deed or in aid of the exercise of any power
under this deed or to enforce any other proper
remedy,
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but nothing in this clause 8.2 is to be construed as
requiring the Note Trustee to take any such action unless
it has been directed to do so by the [Noteholders of
Class/Classes of US Notes] and has been indemnified or put
in funds to its satisfaction by the [Noteholders of
Class/Classes of US Notes] against any liability that it
may incur as a result of taking such action.
Evidence of default
8.3 If the Security Trustee or the Note Trustee takes any
action against the Issuer Trustee to enforce any of the
provisions of any [Class/Classes of US Notes] or this
deed, proof that:
(a) as regards any [Class/Classes of US Note], the Issuer
Trustee has not paid any principal or interest due in
respect of that [Class/Classes of US Note] shall
(unless the contrary is proved) be sufficient
evidence that the Issuer Trustee has not paid that
principal or interest on all other [Class/Classes of
US Notes] in respect of which the relevant payment is
then due; and
(b) as regards any Interest Amount, the Issuer Trustee
has not paid any interest due in respect of that
Interest Amount shall (unless the contrary is proved)
be sufficient evidence that the Issuer Trustee has
not paid that interest on all other Interest Amounts
in respect of which the relevant payment is then due.
Overdue interest
8.4 The rates of interest payable in respect of any
[Class/Classes of US Note] which has become due and
repayable in full and which has not been repaid shall be
calculated at three-monthly intervals, commencing on the
expiry of the Interest Period during which the
[Class/Classes of US Note] became due and repayable in
accordance with the provisions of Condition 6.4, except
that no notices need be given to [Noteholders of
Class/Classes of US Notes] in relation to that interest.
Restrictions on enforcement
8.5 If any of the [Class/Classes of US Notes] remain
outstanding and are due and payable otherwise than by
reason of a default in payment of any amount due on the
[Class/Classes of US Notes], the Note Trustee must not
vote under the Master Security Trust Deed to, or otherwise
direct the Security Trustee to, dispose of the Secured
Property in respect of the Trust or consent to the
Security Trustee so disposing unless either:
(a) a sufficient amount would be realised to discharge in
full all amounts owing to the [Noteholders of
Class/Classes of US Notes] and any other amounts
payable by the Issuer Trustee in respect of the Trust
ranking in priority to or pari passu with the
[Class/Classes of US Notes]; or
(b) the Note Trustee is of the opinion, reached after
considering at any time and from time to time the
advice of a merchant bank or other financial adviser
selected by the Note Trustee, that the cash flow
receivable by the Issuer Trustee (or the Security
Trustee under the Master Security Trust Deed) will
not (or that
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there is a significant risk that it will not) be
sufficient, having regard to any other relevant
actual, contingent or prospective liabilities of the
Issuer Trustee, to discharge in full in due course
all the amounts referred to in paragraph (a).
Liability for Enforcement
8.6 Subject to clauses 12, 15.3, 15.5 and the mandatory
provisions of the TIA, the Note Trustee will not be liable
for any decline in the value, nor any loss realised upon
any sale or other dispositions made under the Master
Security Trust Deed and the Deed of Charge in respect of
the Trust, of any Secured Property in respect of the Trust
or any other property which is charged to the Security
Trustee by any other person in respect of or relating to
the obligations of the Issuer Trustee or any third party
in respect of the Issuer Trustee or the [Class/Classes of
US Notes] or relating in any way to the Secured Property
except where caused by its fraud, negligence or breach of
trust. Without limitation, the Note Trustee shall not be
liable for any such decline or loss directly or indirectly
arising from its acting, or failing to act, as a
consequence of an opinion reached by it in good faith
based on advice received by it in accordance with clause
8.5.
8.7 The Note Trustee will not be liable for any loss, expense
or liability which may be suffered as a result of any
assets secured by the Master Security Trust Deed and the
Deed of Charge in respect of the Trust, the Secured
Property or any deeds or documents of title thereto being
uninsured or inadequately insured or by clearing
organisations or their operator or by any person on behalf
of the Security Trustee or the Note Trustee, except where
caused by its fraud, negligence or breach of trust.
8.8 In giving any direction to the Security Trustee under this
deed or the Master Security Trust Deed, the Note Trustee
shall not be obliged to ensure that the Security Trustee
complies with such direction and will not be liable for
failure by the Security Trustee so to comply.
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9 Proceedings
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Acting only on direction
9.1 (a) Subject to paragraph (b), the Note Trustee may but
shall not be bound to vote under the Master Security
Trust Deed and the Deed of Charge in respect of the
Trust, or otherwise direct the Security Trustee under
the Master Security Trust Deed and the Deed of Charge
in respect of the Trust, or take any proceedings,
actions or steps under, or any other proceedings
pursuant to or in connection with, the Master
Security Trust Deed and the Deed of Charge in respect
of the Trust, this deed or any [Class/Classes of US
Notes] unless directed or requested to do so by an
Extraordinary Resolution of the [Noteholders of
Class/Classes of US Notes] and then only if the Note
Trustee is indemnified to its satisfaction against
all actions, proceedings, claims and demands to which
it may render itself liable and all costs, charges,
damages and expenses which it may incur by so doing.
(b) So long as any of the [Class/Classes of US Notes]
remain outstanding, the Note Trustee shall not, and
shall not be bound to, act at the request or
direction of any [Noteholders of Class/Classes of US
Notes] other than the [Noteholders of Class/Classes
of US Notes] under paragraph (a) unless:
(i) so to do would not in its opinion be materially
prejudicial to the interests of the [Noteholders
of Class/Classes of US Notes]; or
(ii) the relevant action is sanctioned by an
Extraordinary Resolution of the [Noteholders of
Class/Classes of US Notes].
(c) If the Note Trustee is entitled to vote at any
meeting of the Voting Secured Creditors on behalf of
the [Noteholders of Class/Classes of US Notes], the
Note Trustee must vote in accordance with the
directions of the [Noteholders of Class/Classes of US
Notes] and otherwise in its absolute discretion. In
acting in accordance with the directions of the
[Noteholders of Class/Classes of US Notes], the Note
Trustee must exercise its votes for or against any
proposal to be put to a meeting in the same
proportion as that of the aggregate Invested Amounts
of the [Noteholders of Class/Classes of US Notes] who
have directed the Note Trustee to vote for or against
that proposal.
Security Trustee acting
9.2 Only the Security Trustee may enforce the provisions of
the Master Security Trust Deed and the Deed of Charge in
respect of the Trust and neither the Note Trustee nor any
[Noteholder of the Class/Classes of US Note] is entitled
to proceed directly against the Issuer Trustee to enforce
the performance of any of the provisions of the Deed of
Charge, the Master Security Trust Deed or the [Class/
Classes of US Notes]
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(including the [Conditions of the Class/Classes of US
Notes]) except that if the Security Trustee, having become
bound to take steps and/or to proceed under the Master
Security Trust Deed and the Deed of Charge in respect of
the Trust, fails to do so within 7 Business Days and such
failure is continuing, the Note Trustee failing which the
[Noteholders of Class/Classes of US Notes] may proceed
directly against the Issuer Trustee but then only if and
to the extent the Note Trustee, failing which the
[Noteholders of Class/Classes of US Notes], are able to do
so under Australian law.
Note Trustee alone entitled to act
9.3 Only the Note Trustee may:
(a) direct the Security Trustee to enforce the provisions
of the Master Security Trust Deed and the Deed of
Charge in respect of the Trust or otherwise; or
(b) enforce the provisions of this deed or the
[Class/Classes of US Notes] (including the
[Conditions of the Class/Classes of US Notes]),
and no [Noteholder of the Class/Classes of US Note] is
entitled to take any of the above actions or to proceed
directly against the Note Trustee to enforce the
performance of any of the provisions of this deed or the
[Class/Classes of US Notes] (including the [Conditions of
the Class/Classes of US Notes]) except that if the Note
Trustee, having become bound to take steps and/or proceed
under clause 8, this clause 9 and/or the Master Security
Trust Deed and the Deed of Charge in respect of the Trust,
fails to do so within a reasonable time and such failure
is continuing, the [Noteholders of Class/Classes of US
Notes] may take such steps and/or proceedings directly but
then only if and to the extent the [Noteholders of
Class/Classes of US Notes] are able to do so under
Australian law.
10 Remuneration and indemnification of the Note Trustee
--------------------------------------------------------------------------------
Normal remuneration
10.1 So long as any [Class/Classes of US Note] is outstanding,
the Issuer Trustee shall pay the Note Trustee a fee as
remuneration for its services as note trustee, in an
amount equal to such sum on such dates in each case as may
be agreed from time to time with the Issuer Trustee. Such
remuneration shall accrue from day to day from the date of
this deed until the Trust is terminated, and is to be paid
personally by the Issuer Trustee and not from the Assets
of the Trust.
Extra remuneration
10.2 At any time after the Issuer Trustee has failed to pay any
sums due under the [Class/Classes of US Notes], or if the
Note Trustee undertakes duties which it considers
necessary or expedient under this deed, or is requested by
the Issuer Trustee to undertake duties, and in either case
which they both agree to be of an exceptional nature or
otherwise outside the scope of the Note Trustee's normal
duties under this deed, the Issuer Trustee shall pay such
additional remuneration as
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they may agree or, failing agreement as to any of the
matters in this clause (or as to such sums referred to in
clause 10.1), as determined by a merchant or investment
bank (acting as an expert and not as arbitrator) selected
by the Note Trustee and approved by the Issuer Trustee or,
failing such approval, nominated by the President for the
time being of the New South Wales Law Society. The
expenses involved in such nomination and such merchant
bank's fee shall be paid by the Issuer Trustee. The
determination of such merchant or investment bank shall be
conclusive and binding on the Issuer Trustee, the Note
Trustee and the [Noteholders of Class/Classes of US
Notes].
Expenses
10.3 The Issuer Trustee shall also, on each Payment Date, pay
all costs, charges, liabilities and expenses properly
incurred by the Note Trustee (except for any overhead or
general operating expenses incurred by the Note Trustee)
in the preparation and execution of this deed and the
performance of its functions under this deed including,
but not limited to, legal expenses in connection with any
legal proceedings properly brought by the Note Trustee
against the Issuer Trustee to enforce any provision of
this deed, the [Class/Classes of US Notes], and any stamp,
documentary, registration or other taxes or duties
including any GST paid by the Note Trustee in connection
with those documents and its supply of services.
Indemnity
10.4 Subject to clause 23, the Issuer Trustee shall indemnify
the Note Trustee in respect of all liabilities and
expenses properly incurred by it or by anyone appointed by
it or to whom any of its functions may be delegated by it
in the carrying out of its functions and against any loss,
liability, cost, claim, action, demand or expense
(including, but not limited to, all proper costs, charges
and expenses paid or incurred in disputing or defending
any of the foregoing) which any of them may incur or which
may be made against any of them arising out of or in
relation to or in connection with, its appointment or the
exercise of its functions.
Continuing effect
10.5 Clauses 10.3 and 10.4 will continue in full force and
effect as regards the Note Trustee even if it no longer is
Note Trustee.
11 Supplemental Provisions
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Liability to Account
11.1 The Note Trustee is under no obligation to account to any
Interested Person for any moneys received pursuant to this
deed or any other Transaction Document other than those
received by the Note Trustee from the Issuer Trustee or
received or recovered by the Note Trustee under this deed
or any other Transaction Document, subject always to such
deductions and withholdings by the Note Trustee as are
authorised by this deed. Obligations of the Note Trustee
to any Interested Person or any other person under or in
connection with this deed can only be enforced against the
Note Trustee to the extent to which they can be satisfied
out of such moneys in accordance with this deed.
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[Class/Classes of US Notes]
11.2 The Note Trustee is not responsible for the receipt or
application of the proceeds of issue of any of the
[Class/Classes of US Notes] or (except when acting as
[Registrar of the Class/Classes of US Notes] and to the
extent specifically provided in this deed or the Agency
Agreement) for the exchange, transfer or cancellation of
any Note.
Advice
11.3 The Note Trustee may act on the opinion or advice of, or
information obtained from, any expert (including any
lawyer, valuer, accountant, banker, broker, credit-rating
agency or lead manager) and shall not be responsible to
anyone for any loss occasioned by so acting to the extent
it conforms with any applicable requirements of this deed
or the TIA. Any such opinion, advice or information may be
sent or obtained by letter, telex, telegraph, cable or fax
and the Note Trustee shall not be liable to anyone for
acting in good faith on any opinion, advice or information
purporting to be conveyed by such means even if it
contains some error or is not authentic.
Note Trustee to assume performance
11.4 The Note Trustee need not notify anyone of the execution
of this deed or any other Transaction Document or any
transaction contemplated by them or do anything to find
out if an Event of Default has occurred in respect of the
Trust. Until it has actual knowledge or express notice to
the contrary, the Note Trustee may assume that no such
event has occurred and that the Issuer Trustee and each
other party to the Transaction Documents is performing all
its obligations under this deed and the [Class/Classes of
US Notes].
Resolutions of [Noteholders of Class/Classes of US Notes]
11.5 The Note Trustee shall not be responsible for having acted
in good faith on a resolution purporting to have been
passed at a meeting of [Noteholders of Class/Classes of US
Notes] in respect of which minutes have been made and
signed even if it is later found that there was a defect
in the constitution of the meeting or the passing of the
resolution or that the resolution was not valid or binding
on the [Noteholders of Class/Classes of US Notes].
Reliance
11.6 Subject to clause 15.2(b), the Note Trustee is, for any
purpose and at any time, entitled to rely on, act upon,
accept and regard as conclusive and sufficient (without
being in any way bound to call for further evidence or
information or being responsible for any loss that may be
occasioned by such reliance, acceptance or regard) any of
the following:
(a) any information, report, balance sheet, profit and
loss account, certificate or statement supplied by
the Issuer Trustee, the Security Trustee, or the
Global Trust Manager or by an officer, auditor or
solicitor of the Issuer Trustee, the Security
Trustee, or the Global Trust Manager;
(b) any information or statement provided to it in
relation to the [Class/Classes of US Notes], the
[Noteholders of Class/Classes
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of US Notes] or the [Owners of Class/Classes of US
Notes] by the Depository or its nominee;
(c) all statements (including statements made or given to
the best of the maker's knowledge and belief or
similarly qualified) contained in any information,
report, balance sheet, profit and loss account,
certificate, opinion or statement given pursuant to
or in relation to this deed, the Master Security
Trust Deed, the Deed of Charge in respect of the
Trust, the Master Trust Deed or the Supplemental Deed
in respect of the Trust provided the Note Trustee
shall examine, where applicable, the evidence
furnished to it pursuant to any provision of this
deed to determine whether or not such evidence
conforms to the requirements of this deed;
(d) all accounts supplied to the Note Trustee pursuant to
this deed and all reports of the Auditor supplied to
the Note Trustee pursuant to this deed; and
(e) notices and other information supplied to the Note
Trustee under this deed,
save, in each case, when it is actually aware that the
information supplied pursuant to subclauses (a) to (e) is
incorrect or incomplete.
Certificate signed by Authorised Person
11.7 If the Note Trustee, in the exercise of its functions,
requires to be satisfied or to have information as to any
fact or the expediency of any act, it may call for and
accept as sufficient evidence of that fact or the
expediency of that act a certificate signed by an
Authorised Person of the Issuer Trustee or the Global
Trust Manager as to that fact or to the effect that, in
their opinion, that act is expedient and the Note Trustee
need not call for further evidence and shall not be
responsible for any loss occasioned by acting on such a
certificate. Nothing in this clause 11.7 is to be
construed as either limiting the Note Trustee's right to
call for such evidence, in its discretion, and to exercise
its powers under this deed so to do or permitting the Note
Trustee to rely on evidence of compliance with conditions
precent where such reliance is not permitted by section
314 of the TIA.
Signatures
11.8 The Note Trustee may rely in good faith on the validity of
any signature on any Note, transfer, form or application
or other instrument or document unless the Note Trustee
has reason to believe that the signature is not genuine.
The Note Trustee is not liable to make good out of its own
funds any loss incurred by any person if a signature is
forged or otherwise fails to bind the person whose
signature it purports to be or on whose behalf it purports
to be made.
Deposit of documents
11.9 The Note Trustee may deposit this deed and any other
documents with any bank or entity whose business includes
the safe custody of
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documents or with any lawyer or firm of lawyers believed
by it to be of good repute and may pay all sums due in
respect thereof.
Discretion
11.10 The Note Trustee shall have absolute and uncontrolled
discretion as to the exercise of its functions and shall
not be responsible for any loss, liability, cost, claim,
action, demand, expense or inconvenience which may result
from their exercise or non-exercise except where it arises
from the Note Trustee's fraud, negligence or breach of
trust.
Agents
11.11 Whenever it considers it expedient in the interests of
the [Noteholders of Class/Classes of US Notes], the Note
Trustee may, in the conduct of its trust business, instead
of acting personally, employ and pay an agent selected by
it, whether or not a lawyer or other professional person,
to transact or conduct, or concur in transacting or
conducting, any business and to do or concur in doing all
acts required to be done by the Note Trustee (including
the receipt and payment of money). The Note Trustee
remains liable for the acts or omissions of an agent
except where the Note Trustee has acted in good faith and
without negligence or breach of trust in relation to the
appointment of the agent. The Note Trustee is not bound to
supervise the proceedings or acts of any such agent.
Delegation
11.12 Whenever it considers it expedient in the interests of
the [Noteholders of Class/Classes of US Notes], the Note
Trustee may delegate to any person on any terms (including
power to sub-delegate) all or any of its functions. The
Note Trustee remains liable for the acts or omissions of a
delegate except where the Note Trustee has acted in good
faith and without negligence or breach of trust in
relation to the appointment of the delegate. The Note
Trustee shall not have any obligation to supervise such
delegate or be responsible for any loss, liability, cost,
claim, action, demand or expense incurred by reason of any
misconduct or default by any such delegate or
sub-delegate.
Application to Court
11.13 The Note Trustee may, whenever it thinks it expedient in
the interests of the [Noteholders of Class/Classes of US
Notes], apply to any court for directions in relation to
any question of law or fact arising either before or after
an Event of Default in respect of the Trust and assent to
or approve any applications of any [Noteholder of the
Class/Classes of US Note], the Issuer Trustee or the
Global Trust Manager.
Interests of [Noteholders of Class/Classes of US Notes]
11.14 In connection with the exercise by it of any of its
trusts, powers, authorities and discretions under this
deed or any other Transaction Document (including, without
limitation, any modification, waiver, authorisation or
determination), the Note Trustee must where it is required
to have regard to the interests of the [Noteholders of
Class/Classes of US Notes], have regard to the general
interests of the [Noteholders of Class/Classes of US
Notes]. The Note Trustee will not
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incur any liability to any [Noteholder of the
Class/Classes of US Note] as a result of the Note Trustee
giving effect to this clause.
Assumption as to Prejudice
11.15 The Note Trustee is entitled to assume, for the purposes
of exercising any power, trust, authority, duty or
discretion under or in relation to the [Class/Classes of
US Notes], this deed or any other Transaction Document in
respect of the Trust, that such exercise will not be
materially prejudicial to the interest of the [Noteholders
of Class/Classes of US Notes] if each Current Rating
Agency has confirmed in writing that such exercise will
not result in the reduction, qualification or withdrawal
of the credit rating then assigned by it to the
[Class/Classes of US Notes] (but nothing in this clause is
to be construed as requiring the Note Trustee to obtain
such confirmation).
Ratings
11.16 Except as otherwise provided in this deed or any other
Transaction Document in respect of the Trust, the Note
Trustee has no responsibility for the maintenance of any
rating of the [Class/Classes of US Notes] by any Current
Rating Agency or any other person.
Validity of Transaction Documents
11.17 The Note Trustee is not responsible for the execution,
delivery, legality, effectiveness, adequacy, genuineness,
validity, performance, enforceability, admissibility in
evidence, form or content of this deed or any other
Transaction Document in respect of the Trust (other than
the execution and delivery by it of this deed and each
other Transaction Document in respect of the Trust to
which it is expressed to be a party and the performance of
those obligations expressed to be binding on it under this
deed and such Transaction Documents) and is not liable for
any failure to obtain any licence, consent or other
authority for the execution, delivery, legality,
effectiveness, adequacy, genuineness, validity,
performance, enforceability or admissibility in evidence
of this deed or any other Transaction Document in respect
of the Trust except to the extent specifically provided in
this deed or such Transaction Document. The Note Trustee
is not responsible for recitals, statements, warranties or
representations of any party (other than itself) contained
in any Transaction Document in respect of the Trust (and
is entitled to assume the accuracy and correctness
thereof).
Defect in Security
11.18 The Note Trustee is not bound or concerned to examine or
enquire into nor is it liable for any defect in or failure
to perfect any Security Interest created or purported to
be created by the Master Security Trust Deed or the Deed
of Charge in respect of the Trust and the Note Trustee may
accept without enquiry, requisition or objection such
title as the Security Trustee may have to the Secured
Property in respect of the Trust or any part thereof from
time to time and shall not be bound to investigate or make
any enquiry into the title of the Security Trustee or the
Secured Property in respect of the Trust or any part
thereof from time to time.
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[Noteholders of Class/Classes of US Notes] Responsible
11.19 Each [Noteholder of the Class/Classes of US Note] is
solely responsible for making its own independent
appraisal of and investigation into the financial
condition, creditworthiness, condition, affairs, status
and, nature of the Issuer Trustee and the Trust and the
Note Trustee does not at any time have any responsibility
for the same and no [Noteholder of the Class/Classes of US
Note] may rely on the Note Trustee in respect of such
appraisal and investigation.
Limit on Obligation
11.20 No provision of this deed or any other Transaction
Document requires the Note Trustee to do anything which
may be contrary to any applicable law or regulation or to
expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its
duties, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or full indemnity against such
risk or liability is not assured to it. Except for the
obligations imposed on it under this deed, the
[Class/Classes of US Notes] or any other Transaction
Document, the Note Trustee is not obliged to do or omit to
do any thing, including entering into any transaction or
incurring any liability unless the Note Trustee's
liability, is limited in a manner satisfactory to the Note
Trustee in its absolute discretion.
No liability for breach
11.21 The Note Trustee is not to be under any liability
whatsoever for a failure to take any action in respect of
any breach by the Issuer Trustee of its duties as trustee
of the Trust of which the Note Trustee is not aware or in
respect of any Event of Default in respect of the Trust of
which the Note Trustee is not aware.
Dispute or ambiguity
11.22 In the event of any dispute or ambiguity as to the
construction or enforceability of this deed or any other
Transaction Document in respect of the Trust, or the Note
Trustee's powers or obligations under or in connection
with this deed or the determination or calculation of any
amount or thing for the purpose of this deed or the
construction or validity of any direction from
[Noteholders of Class/Classes of US Notes], provided the
Note Trustee is using reasonable endeavours to resolve
such ambiguity or dispute, the Note Trustee, in its
absolute discretion, may (but will have no obligation to)
refuse to act or refrain from acting in relation to
matters affected by such dispute or ambiguity.
Loss to charged property
11.23 The Note Trustee shall not be responsible for any loss,
expense or liability occasioned to the Secured Property in
respect of the Trust or any other property or in respect
of all or any of the moneys which may stand to the credit
of the Collections Account from time to time however
caused (including, without limitation, where caused by an
act or omission of the Security Trustee) unless that loss
is occasioned by the fraud, negligence or breach of trust
of the Note Trustee.
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Forged [Class/Classes of US Notes]
11.24 The Note Trustee shall not be liable to the Issuer
Trustee or any [Noteholder of the Class/Classes of US
Note] by reason of having accepted as valid or not having
rejected any Note purporting to be such and later found to
be forged or not authentic.
Confidentiality
11.25 Unless ordered to do so by a court of competent
jurisdiction, the Note Trustee shall not be required to
disclose to any [Noteholder of the Class/Classes of US
Note] or Unitholder any confidential financial or other
information made available to the Note Trustee by the
Issuer Trustee.
Disclosure
11.26 Subject to this deed, any applicable laws and any duty of
confidentiality owed by any Interested Person to any other
person, the Note Trustee may, for the purpose of meeting
its obligations under this deed, disclose to any
[Noteholder of the Class/Classes of US Note] any
confidential, financial or other information made
available to the Note Trustee by an Interested Person or
any other person in connection with this deed.
Determinations conclusive
11.27 As between itself and the [Noteholders of Class/Classes
of US Notes], the Note Trustee may determine all questions
and doubts arising in relation to any of the provisions of
this deed or the [Conditions of the Class/Classes of US
Notes]. Such determinations, whether made upon such a
question actually raised or implied in the acts or
proceedings of the Note Trustee, shall be conclusive and
shall bind the Note Trustee and the [Noteholders of
Class/Classes of US Notes].
Currency conversion
11.28 Subject to the [Conditions of the Class/Classes of US
Notes], the Master Security Trust Deed, and the Deed of
Charge in respect of the Trust, where it is necessary or
desirable to convert any sum from one currency to another,
it shall (unless otherwise provided hereby or required by
law) be converted at such rate or rates, in accordance
with such method and as at such date as may reasonably be
specified by the Note Trustee but having regard to current
rates of exchange, if available. Any rate, method and date
so specified shall be binding on the Issuer Trustee,
Global Trust Manager and the [Noteholders of Class/Classes
of US Notes].
[Class/Classes of US Notes] held by the Issuer Trustee etc
11.29 In the absence of actual knowledge or express notice to
the contrary, the Note Trustee may assume without enquiry
that no [Class/Classes of US Notes] are for the time being
held by or on behalf of the Issuer Trustee.
Legal opinions
11.30 Subject to the requirements of the TIA imposed on the
Note Trustee in relation to opinions, the Note Trustee
shall not be responsible to any person for failing to
request, require or receive any legal opinion relating to
any [Class/Classes of US Notes] or for checking or
commenting upon the content of any such legal opinion.
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No liability for tax on payments
11.31 The Note Trustee has no responsibility whatsoever to any
[Noteholder of the Class/Classes of US Note] or any other
person in relation to any deficiency in a payment by the
Note Trustee to any [Noteholders of Class/Classes of US
Notes] if that deficiency arises as a result of the Note
Trustee or the Issuer Trustee being subject to any Tax in
respect of that payment, the Secured Property in respect
of the Trust, the Master Security Trust Deed, this deed or
any income or proceeds from them.
Powers additional
11.32 The powers conferred upon the Note Trustee by this deed
are in addition to its powers under general law.
12 Note Trustee liable for negligence
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If the Note Trustee fails to show the degree of care and
diligence required of it as trustee having regard to the
provisions of this deed and the mandatory provisions of
the TIA conferring on it any trusts, powers, authorities
or discretions, nothing in this deed shall relieve or
indemnify it from or against any liability which would
otherwise attach to it in respect of any fraud, negligence
or breach of trust of which it may be guilty.
13 Waiver
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Waiver
The Note Trustee may, without the consent of the
[Noteholders of Class/Classes of US Notes] and without
prejudice to its rights in respect of any subsequent
breach, from time to time and at any time, if in its
opinion the interests of the [Noteholders of Class/Classes
of US Notes] will not be materially prejudiced thereby,
waive or authorise, on such terms as seem expedient to it,
any breach or proposed breach by the Issuer Trustee of
this deed or the [Conditions of the Class/Classes of US
Notes] provided that the Note Trustee shall not do so in
contravention of an express direction given by an
Extraordinary Resolution of the [Noteholders of
Class/Classes of US Notes] or a request made pursuant to
Condition 10.1. No such direction or request will affect a
previous waiver, authorisation or determination. Any such
waiver, authorisation or determination shall be binding on
the [Noteholders of Class/Classes of US Notes] and, if the
Note Trustee so requires, will be notified to the
[Noteholders of Class/Classes of US Notes] as soon as
practicable.
14 Note Trustee not precluded from entering into contracts
--------------------------------------------------------------------------------
The Note Trustee and any other person (including any
director or officer of the Note Trustee), whether or not
acting for itself, may acquire, hold or dispose of any
[Class/Classes of US Note] or other security (or any
interest therein) of the Issuer Trustee or any other
person, may enter into or be interested in any contract or
transaction with the Issuer Trustee or any other party to
a Transaction Document in respect of the Trust and may act
on, or as depository or agent for, any committee or body
of
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holders of any securities of any such person in each case
with the same rights as it would have had if the Note
Trustee were not acting as Note Trustee and need not
account for any profit or commission received in
connection with such arrangements. This clause 14 only
applies if the Note Trustee is subject to section 311(a)
of the TIA.
15 Duties of Note Trustee
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Note Trustee's General Duties
15.1 The Note Trustee must comply with the duties imposed on it
by this deed, the [Class/Classes of US Notes] (including
the [Conditions of the Class/Classes of US Notes]) and
each other Transaction Document in respect of the Trust to
which it is a party and must in the exercise of all
discretions vested in it by this deed and all other
Transaction Documents in respect of the Trust except where
expressly provided otherwise, have regard to the interest
of the [Noteholders of Class/Classes of US Notes].
Duties prior to an Event of Default
15.2 Prior to an Event of Default in respect of the Trust:
(a) the Note Trustee shall not be liable except for the
performance of such duties as are specifically set
out in this deed, the [Class/Classes of US Notes]
(including the [Conditions of the Class/Classes of US
Notes]) or any other Transaction Document in respect
of the Trust to which it is a party and no implied
covenants or obligations on the part of the Note
Trustee are to be read into this deed (subject to the
mandatory requirements of the TIA); and
(b) (subject to the mandatory requirements of the TIA)
the Note Trustee may conclusively rely, as to the
truth of the statements and the correctness of the
opinions expressed therein, in the absence of bad
faith on the part of the Note Trustee, upon
certificates or opinions furnished to the Note
Trustee and conforming to the requirements of this
deed provided that the Note Trustee shall examine,
where applicable, the evidence furnished to it
pursuant to any provision of this deed to determine
whether or not such evidence conforms to the
requirements of this deed.
Duties following an Event of Default
15.3 If an Event of Default has occurred in respect of the
Trust and is subsisting, the Note Trustee shall exercise
the rights and powers vested in it by this deed and use
the same degree of care and skill in their exercise as a
prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
Certain Limitations of Liability where Acting in Good Faith
15.4 The Note Trustee shall not be liable under this deed or
any Transaction Document in respect of the Trust for any
error of judgment made in good faith by an Authorised
Person of the Note Trustee unless it is proved that the
Note Trustee was negligent in ascertaining the pertinent
facts.
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Note Trustee Not Relieved of Liability for Negligence
15.5 Subject to clauses 15.2 and 15.4, nothing in this deed
will relieve the Note Trustee from liability for its own
negligent action, its own negligent failure to act or its
own breach of trust. Section 315(d)(3) of the TIA is
expressly excluded by this deed.
Preferred Collection of Claims Against Issuer Trustee
15.6 The Note Trustee must comply with section 311(a) of the
TIA and the rules thereunder other than with respect to
any creditor relationship excluded from the operation of
section 311(a) by section 311(b) of the TIA. Following its
retirement or removal pursuant to clause 18, the Note
Trustee will remain subject to section 311(a) of the TIA
to the extent required by the TIA.
Compliance with Section 310 of the TIA
15.7 (Section 310(a) of TIA): The Note Trustee must ensure that
it at all times satisfies the requirements of section
310(a) of the TIA.
15.8 (Capital): Without limiting the foregoing, the Note
Trustee must ensure that it all times has a combined
capital and surplus (as those terms are used in the TIA)
of at least US$50,000,000 as set forth in its most recent
published annual report of condition.
15.9 (Section 310(b) of TIA): The Note Trustee must at all
times comply with section 310(b) of the TIA, provided that
any indenture or indentures under which other securities
of the Issuer Trustee are outstanding will be excluded
from the operation of section 310(b)(1) of the TIA if the
requirements for such exclusion set out in section
310(b)(1) of the TIA are met.
Transaction Documents
15.10 The Note Trustee must make available at the Note
Trustee's registered office for inspection by [Noteholders
of Class/Classes of US Notes] a copy of each Transaction
Document in accordance with Condition 11 (provided that
the Note Trustee will not be in default of its obligations
pursuant to this clause 15.10 in respect of any
Transaction Document, other than a Transaction Document to
which the Note Trustee in respect of the Trust is a party,
a copy of which has not been provided to the Note Trustee.
16 Amendment
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Amendment by Note Trustee
16.1 Subject to this clause 16 and to any approval required by
law, the Note Trustee, the Global Trust Manager and the
Issuer Trustee may together agree, without the consent of
any [Noteholders of Class/Classes of US Notes], by way of
supplemental deed to alter, add to or modify any provision
of this deed or the [Class/Classes of US Notes] (including
the [Conditions of the Class/Classes of US Notes]) so long
as such alteration, addition or modification is not a
Payment Modification and such alteration, addition or
revocation in the opinion of the Note Trustee:
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(a) (Necessary or expedient) is necessary or expedient to
comply with the provisions of any statute or with the
requirements of any Governmental Agency;
(b) (Manifest error) is made to correct a manifest error
or ambiguity, or is to correct inconsistency between
the provisions of any Transaction Document and the
description of the provisions thereof in the related
prospectus, or is of a formal, technical or
administrative nature only;
(c) (Amendment to law) is appropriate or expedient as a
consequence of an amendment to any statute or altered
requirements of any Governmental Agency or any
decision of any court (including, without limitation,
an alteration, addition or modification which is in
the opinion of the Note Trustee appropriate or
expedient as a consequence of the enactment of a
statute or an amendment to any statute or ruling by
the Federal Commissioner of Taxation or Deputy
Commissioner of Taxation or any governmental
announcement or statement or any decision of any
court, in any case which has or may have the effect
of altering the manner or basis of taxation of trusts
generally or of trusts similar to the Trust or the
Note Trust); or
(d) (Otherwise desirable) in the opinion of the Note
Trustee and the Issuer Trustee is otherwise desirable
for any reason and:
(i) is not in the opinion of the Note Trustee
likely, upon coming into effect, to be
materially prejudicial to the interests of
[Noteholders of Class/Classes of US Notes]; or
(ii) if it is in the opinion of the Note Trustee
likely, upon coming into effect, to be
materially prejudicial to the interests of
[Noteholders of Class/Classes of US Notes], the
consent of an Extraordinary Resolution of the
[Noteholders of Class/Classes of US Notes] to
the alteration, addition or resolution has been
obtained. For the purpose of determining whether
there has been an Extraordinary Resolution of
the [Noteholders of Class/Classes of US Notes]
consenting to an alteration, addition or
revocation, [Class/Classes of US Notes] which
are beneficially owned by the Issuer Trustee or
the Global Trust Manager or by any person
directly or indirectly controlling or controlled
by or under direct or indirect common control
with the Issuer Trustee or the Global Trust
Manager, shall be disregarded,
provided that the Note Trustee, the Global Trust
Manager and the Issuer Trustee may not alter, add to
or modify any provision of this deed or the
[Class/Classes of US Notes] unless the Global Trust
Manager has notified each Current Rating Agency 5
Business Days in advance.
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Amendments requiring consent of all [Noteholders of Class/Classes of US Notes]
16.2 The Note Trustee, the Global Trust Manager and the Issuer
Trustee may together agree by way of supplemental deed to
make or effect a Payment Modification to this deed or the
[Class/Classes of US Notes] (including the [Conditions of
the Class/Classes of US Notes]) if, and only if, the
consent has first been obtained of each [Noteholder of the
Class/Classes of US Note] to such Payment Modification.
Compliance with TIA
16.3 Any supplemental deed altering, adding to or revoking any
provision of this deed or the [Class/Classes of US Notes]
(including the [Conditions of the Class/Classes of US
Notes]) referred to in this clause 16 must conform, to the
extent applicable, with the requirements of the TIA.
No Current Rating Agency downgrade
16.4 The Note Trustee will be entitled to assume that any
proposed alteration, addition or revocation, other than a
Payment Modification, will not be materially prejudicial
to the interests of [Noteholders of Class/Classes of US
Notes] if each Current Rating Agency confirms in writing
that if the alteration, addition or revocation is effected
this will not lead to a reduction, qualification or
withdrawal of the then rating given to the [Class/Classes
of US Notes] by the Current Rating Agency.
Distribution of amendments
16.5 Unless the Note Trustee agrees otherwise, the Global Trust
Manager on behalf of the Issuer Trustee must distribute to
all [Noteholders of Class/Classes of US Notes] a copy of
any amendment made pursuant to this clause 16 as soon as
reasonably practicable after the amendment has been made.
Amendments binding on [Noteholders of Class/Classes of US Notes]
16.6 Any alteration, addition or revocation of a provision of
this deed or the [Class/Classes of US Notes] made pursuant
to this clause 16 is binding on all [Noteholders of
Class/Classes of US Notes].
17 Reports
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Reports by Note Trustee
17.1 If so required by section 313(a) of the TIA, the Note
Trustee shall provide to each [Noteholder of the
Class/Classes of US Note], and such other persons as the
Note Trustee is required by section 313(c) of the TIA to
provide, at intervals of not more than 12 months
(commencing as from the Closing Date) a brief report of
the events referred to in section 313(a) of the TIA that
have occurred within the preceding 12 months and shall
provide such additional reports to [Noteholders of
Class/Classes of US Notes], and such other persons as the
Note Trustee is required by section 313(c) of the TIA to
provide reports to, as are required by section 313(b) of
the TIA at the times specified in that section. A copy of
each such report at the time of its provision to
[Noteholders of Class/Classes of US Notes] must be copied
to the Issuer Trustee and the Global Trust Manager and
must be filed by the Note
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Trustee with the Commission and each stock exchange, if
any, on which the [Class/Classes of US Notes] are listed.
Reports by Global Trust Manager
17.2 The Global Trust Manager covenants that it will:
(a) (Copy Securities Exchange Act Reports to Note
Trustee) file:
(i) with the SEC at such times as are required under
the Exchange Act; and
(ii) with the Note Trustee, within 15 days after it
is required to file the same with the SEC,
copies of the annual reports and of the information,
documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from
time to time by rules and regulations prescribe), if
any, which it may be required to file with the SEC
pursuant to section 13 or 15(d) of the Exchange Act
or, if it is not required to file information,
documents or reports pursuant to either of such
sections, then to file with the Note Trustee and the
SEC, in accordance with the rules and regulations
prescribed by the SEC, such of the supplementary and
periodic information, documents and reports which may
be required pursuant to section 13 of the Exchange
Act, in respect of a security listed and registered
on a national securities exchange as may be
prescribed in such rules and regulations;
(b) (Other reports) file with the Note Trustee and the
Commission, in accordance with rules and regulations
prescribed from time to time by the SEC, such
additional information, documents and reports with
respect to compliance by it with the conditions and
covenants of this deed as may be required from time
to time by such rules and regulations; and
(c) (Summaries to [Noteholders of Class/Classes of US
Notes]) transmit to [Noteholders of Class/Classes of
US Notes], and such other persons as are required by
section 314(a)(3) of the TIA, such summaries of any
information, documents and reports required to be
filed by the Global Trust Manager pursuant to clauses
17.2(a) and (b) as may be required by rules and
regulations prescribed from time to time by the SEC.
Restricted Securities
17.3 The Issuer Trustee and the Global Trust Manager each
severally covenants that it will forthwith notify the Note
Trustee if, at any time, after the Closing Date, any
[Class/Classes of US Notes] become "restricted securities"
(as defined in Rule 144(a)(3) of the Securities Act of
1933 of the United States of America) and during any
period during which the Issuer Trustee or the Global Trust
Manager is neither subject to Sections 13 or 15(d) of the
Exchange Act nor exempt from reporting pursuant to Rule
12g3-2(d) under the Exchange Act, make available to each
holder of those [Class/Classes of US Notes] in connection
with any
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resale of those [Class/Classes of US Notes] and to any
prospective purchaser of the [Class/Classes of US Notes]
from that holder, in each case upon request, the
information specified in and meeting the requirements of
Rule 144(A)(d)(4) under the Securities Act.
18 Appointment, retirement and removal of the Note Trustee
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Appointment
18.1 The Issuer Trustee has the power to appoint new note
trustees but no-one may be so appointed unless previously
approved by an Extraordinary Resolution of the
[Noteholders of Class/Classes of US Notes]. The Issuer
Trustee may not appoint a new Note Trustee if such
appointment would result in the suspension, reduction,
qualification or withdrawal of a rating assigned to any of
the [Class/Classes of US Notes] by any Current Rating
Agency. Any appointment of a new Note Trustee shall be
notified by the Issuer Trustee to the [Noteholders of
Class/Classes of US Notes] and each Current Rating Agency
as soon as practicable. Any new Note Trustee must
forthwith execute a deed on substantially the same terms
as this deed.
Retirement of Note Trustee
18.2 The Note Trustee covenants that it will retire as Note
Trustee if:
(a) (Insolvency): an Insolvency Event occurs in relation
to the Note Trustee in its personal capacity or in
respect of its personal assets (and not in its
capacity as trustee of any trust or in respect of any
assets it holds as trustee);
(b) (Ceases to carry on business): it ceases to carry on
business;
(c) (Ceases to be an Eligible Trust Corporation): it
ceases to be an Eligible Trust Corporation;
(d) ([Noteholders of Class/Classes of US Notes] require
retirement): it is so directed by the Extraordinary
Resolution of the [Noteholders of Class/Classes of US
Notes];
(e) (Breach of duty): it fails to comply with any of its
obligations under any Transaction Document with
respect to the applicable Trust and the Issuer
Trustee and the Global Trust Manager determines that
this failure has had, or if continued, will have, an
Adverse Effect, and if capable of remedy, the Note
Trustee does not remedy this failure within 14 days
after the earlier of the following:
(i) the Note Trustee becoming aware of this failure;
and
(ii) receipt by the Note Trustee of written notice
with respect to this failure from either the
Issuer Trustee or the Global Trust Manager; and
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(iii) the Note Trustee fails to satisfy any obligation
imposed on it under the TIA with respect to a
Trust or this deed; or
(f) (Change in ownership): there is a change in ownership
of 50% or more of the issued equity share capital of
the Note Trustee from the position as at the date of
this deed or effective control of the Note Trustee
alters from the position as at the date of this deed
unless in either case approved by the Global Trust
Manager (whose approval must not be unreasonably
withheld); or
(g) there is an Event of Default in respect of the Trust
which requires the Note Trustee to resign by virtue
of its obligations under the TIA.
Removal by Issuer Trustee
18.3 If the Note Trustee refuses to retire, the Issuer Trustee
at the direction of the Global Trust Manager is entitled
to remove the Note Trustee from office immediately by
notice in writing to the Note Trustee if any event
referred to in clause 18.2 has occurred. On the retirement
or removal of the Note Trustee under the provisions of
clause 18.2 or this clause 18.3:
(a) (notify Current Rating Agencies): the Issuer Trustee
must promptly notify each Current Rating Agency of
such retirement or removal; and
(b) (appoint substitute note trustee): subject to any
approval required by law, the Issuer Trustee is
entitled to and must use reasonable endeavours to
appoint in writing some other Eligible Trust
Corporation that is approved by each Current Rating
Agency to be the substitute note trustee and whose
appointment is confirmed by each Current Rating
Agency not to result in the suspension, reduction,
qualifications or withdrawal of a rating assigned by
them to any of the [Class/Classes of US Notes].
Note Trustee may Retire
18.4 The Note Trustee may retire at any time as trustee under
this deed upon giving 3 months (or such lesser time as the
Global Trust Manager, the Issuer Trustee and the Note
Trustee agree) notice in writing to the Issuer Trustee,
the Global Trust Manager, the Security Trustee and each
Current Rating Agency, without giving any reason and
without being responsible for any liabilities incurred by
reason of such retirement provided that such retirement is
in accordance with this deed, provided further that no
such period of notice of retirement may expire within the
period of 30 days preceding each Payment Date. Upon such
retirement, the Note Trustee, subject to any approval
required by law, may appoint in writing any other Eligible
Trust Corporation that is approved by the Global Trust
Manager, which approval must not be unreasonably withheld
by the Global Trust Manager, as Note Trustee in its stead
and whose appointment is confirmed by each Current Rating
Agency not to result in an Adverse Rating Effect in
respect of the [Class/Classes of US Notes]. If the Note
Trustee does not propose a replacement by the date
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which is 1 month prior to the date of its proposed
retirement, the Global Trust Manager is entitled to
appoint a Substitute Note Trustee, which must be an
Eligible Trust Corporation that is approved by each
Current Rating Agency, as of the date of the proposed
retirement.
Appointment of substitute note trustee by [Noteholders of Class/Classes of
US Notes]
18.5 Notwithstanding clauses 18.2, 18.3 and 18.4, no retirement
or removal of the Note Trustee will be effective until a
substitute note trustee has been appointed in its place.
If a substitute note trustee has not been appointed under
clauses 18.2, 18.3 and 18.4 at a time when the position of
Note Trustee would, but for this clause 18.5, become
vacant in accordance with those clauses, the Issuer
Trustee must promptly advise the [Noteholders of
Class/Classes of US Notes] who may appoint an Eligible
Trust Corporation nominated to act as Note Trustee.
Successor to Note Trustee
18.6 On the execution by the Issuer Trustee, the Global Trust
Manager and any successor note trustee of an instrument
effecting the appointment of that successor note trustee,
that successor note trustee accepts the appointment and
shall, without any further act, deed or conveyance, become
vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of the predecessor Note
Trustee with effect as if originally named as Note Trustee
in this deed and the Transaction Documents in respect of
the Trust and that predecessor Note Trustee, on payment to
it of the pro rata proportion of its fee and disbursements
then unpaid (if any), shall have no further liabilities
under this deed, except for any accrued liabilities
arising from or relating to any act or omission occurring
prior to the date on which the successor Note Trustee is
appointed.
18.7 Any corporation:
(a) into which the Note Trustee is merged;
(b) with which the Note Trustee is consolidated;
(c) resulting from any merger or consolidation to which
the Note Trustee is a party;
(d) to which the Note Trustee sells or otherwise
transfers all or substantially all the assets of its
corporate trust business,
shall, on the date when that merger, consolidation, sale
or transfer becomes effective and to the extent permitted
by applicable law, become the successor Note Trustee under
this deed without the execution or filing of any agreement
or document or any further act on the part of the parties
to this deed, unless otherwise required by the Issuer
Trustee or the Global Trust Manager, and after that
effective date all references in this deed to the Note
Trustee shall be references to that corporation.
18.8 If no other person can be found to act as Note Trustee,
the [Noteholders of Class/Classes of US Notes] may elect a
Note Trustee from among the holders of the [Class/Classes
of US Notes] (if any [Class/Classes of US Notes] are
outstanding).
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Issuer Trustee and Global Trust Manager cannot be appointed
18.9 Notwithstanding the preceding provisions of this clause
18, none of the Global Trust Manager, the Issuer Trustee,
any Support Facility Provider nor any of their Related
Entities may be appointed as Note Trustee.
No Limitation of TIA
18.10 Nothing in this clause 18 is to be construed as limiting
any right of a [Noteholder of the Class/Classes of US
Note] to take any action to remove the Note Trustee in
accordance with section 310(b) of the TIA.
19 [Class/Classes of US Notes] held in Clearing Systems and Notices
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[Class/Classes of US Notes] held in Clearing Systems
19.1 So long as any [Class/Classes of US Note] is held on
behalf of a Clearing System, in considering the interests
of [Noteholders of Class/Classes of US Notes], the Note
Trustee may have regard to any information provided to it
by such Clearing System or its operator as to the identity
(either individually or by category) of its accountholders
or participants with entitlements to any such
[Class/Classes of US Note] and may consider such interests
on the basis that such accountholders or participants were
the holder(s) thereof.
20 Currency indemnity
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Currency of account and payment
20.1 U.S. Dollars is the sole currency of account and payment
for all sums payable by the Issuer Trustee under or in
connection with this deed and the [Class/Classes of US
Notes], including damages.
Extent of discharge
20.2 Any amount received or recovered in a currency other than
U.S. Dollars (whether as a result of, or of the
enforcement of, a judgment or order of a court of any
jurisdiction, in the winding-up or dissolution of the
Issuer Trustee or otherwise), by the Note Trustee or any
[Noteholder of the Class/Classes of US Note] in respect of
any sum expressed to be due to it from the Issuer Trustee
shall only discharge the Issuer Trustee to the extent of
the U.S. Dollar amount which the recipient is able to
purchase with the amount so received or recovered in that
other currency on the date of that receipt or recovery
(or, if it is not practicable to make that purchase on
that date, on the first date on which it is practicable to
do so).
Indemnity
20.3 If that U.S. Dollar amount is less than the U.S. Dollar
amount expressed to be due to the recipient under this
deed, the [Class/Classes of US Notes] the Issuer Trustee
shall indemnify it against any loss sustained by it as a
result. In any event, the Issuer Trustee shall (subject to
clause 23) indemnify the recipient against the cost of
making any such purchase.
Indemnity separate
20.4 The indemnities in this clause 20 and in clause 10.5
constitute separate and independent obligations from the
other obligations in this deed, shall
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give rise to a separate and independent cause of action,
shall apply irrespective of any indulgence granted by the
Note Trustee and/or any [Noteholder of the Class/Classes
of US Note] and shall continue in full force and effect
despite any judgment, order, claim or proof for a
liquidated amount in respect of any sum due under this
deed, the [Class/Classes of US Notes] or any other
judgment or order.
21 Representations and warranties
--------------------------------------------------------------------------------
By the Issuer Trustee
21.1 The Issuer Trustee represents and warrants to the Note
Trustee that:
(a) (Due Incorporation): it is duly incorporated and has
the corporate power to own its property and to carry
on its business as is now being conducted;
(b) (Constitution): the execution, delivery and
performance of this deed does not violate its
constitution;
(c) (Corporate power): it has the power and has taken all
corporate and other action required to enter into
this deed and to authorise the execution and delivery
of this deed and the performance of its obligations
under this deed;
(d) (Filings): all corporate notices and all
registrations with the Australian Securities and
Investments Commission required to be filed or
effected, as applicable, by it in connection with the
execution, delivery and performance of this deed have
been filed or effected, as applicable, and all such
filings and registrations are current, complete and
accurate;
(e) (Execution, delivery and performance): its execution,
delivery and performance of this deed does not
violate any existing law or regulation in any
applicable jurisdiction or any document or agreement
to which it is a party or which is binding upon it or
any of its assets;
(f) (Authorisation): all consents, licences, approvals
and authorisations of every Governmental Agency
required to be obtained by it in connection with the
execution, delivery and performance of this deed in
its personal capacity have been obtained and are
valid and subsisting; and
(g) (No breach): it is not in breach of any material
provision of the Master Trust Deed or the
Supplemental Deed in respect of the Trust.
By the Global Trust Manager
21.2 The Global Trust Manager represents and warrants to the
Note Trustee that:
37
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(a) (Due Incorporation): it is duly incorporated and has
the corporate power to own its property and to carry
on its business as is now being conducted;
(b) (Constitution): the execution, delivery and
performance of this deed does not violate its
constitution;
(c) (Corporate power): it has the power and has taken all
corporate and other action required to enter into
this deed and to authorise the execution and delivery
of this deed and the performance of its obligations
under this deed;
(d) (Filings): all corporate notices and all
registrations with the Australian Securities and
Investments Commission required to be filed or
effected, as applicable, by it in connection with the
execution, delivery and performance of this deed have
been filed or effected, as applicable, and all such
filings and registrations are current, complete and
accurate;
(e) (Execution, delivery and performance): its execution,
delivery and performance of this deed does not
violate any existing law or regulation in any
applicable jurisdiction or any document or agreement
to which it is a party or which is binding upon it or
any of its assets;
(f) (Authorisation): all consents, licences, approvals
and authorisations of every Governmental Agency
required to be obtained by it in connection with the
execution, delivery and performance of this deed in
its personal capacity have been obtained and are
valid and subsisting;
(g) (Investment Company): the Trust is not, and, if all
the parties to the Transaction Documents perform
their obligations under the Transaction Documents,
will not become, an "investment company" as that term
is defined in the Investment Company Act of 1940 of
the United States of America;
(h) (Compliance with TIA): this deed has been duly
qualified under the TIA; and
(i) (No breach): it is not in breach of any material
provision of the Master Trust Deed or the
Supplemental Deed in respect of the Trust.
By the Note Trustee
21.3 The Note Trustee represents and warrants to the Issuer
Trustee and the Global Trust Manager that:
(a) (Due Incorporation): it is duly incorporated and has
the corporate power to own its property and to carry
on its business as is now being conducted;
(b) (Constitution): the execution, delivery and
performance of this deed does not violate its
constitution;
38
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(c) (Corporate power): it has the power and has taken all
corporate and other action required to enter into
this deed and to authorise the execution and delivery
of this deed and the performance of its obligations
under this deed;
(d) (Filings): all corporate notices and all
registrations with the Australian Securities and
Investments Commission, the Commission or similar
office in its jurisdiction of incorporation and in
any other jurisdiction required to be filed or
effected, as applicable, by it in connection with the
execution, delivery and performance of this deed have
been filed or effected, as applicable, and all such
filings and registrations are current, complete and
accurate;
(e) (Execution, delivery and performance): its execution,
delivery and performance of this deed does not
violate any existing law or regulation in any
applicable jurisdiction or any document or agreement
to which it is a party or which is binding upon it or
any of its assets;
(f) (Authorisation): all consents, licences, approvals
and authorisations of every Governmental Agency
required to be obtained or made by the Note Trustee
in connection with the execution, delivery and
performance of this deed have been obtained or made
and are valid and subsisting;
(g) (Eligible Trust Corporation): it is an Eligible Trust
Corporation;
(h) (No Insolvency Event): no Insolvency Event has
occurred and is continuing in relation to the Note
Trustee; and
(i) (No Litigation): no litigation, arbitration, dispute
or administrative proceeding has been commenced or is
pending or, to the knowledge of the Note Trustee,
threatened by any person which will, or is likely to,
have a material and adverse effect on the ability of
the Note Trustee to perform its obligations under
this deed.
22 Notices
--------------------------------------------------------------------------------
Notices
22.1 Subject to clauses 22.4, 22.5 and 22.6, any notice,
approval, consent or other communication in connection
with this deed:
(a) must be given by an Authorised Person of the relevant
party;
(b) must be in writing; and
(c) must be left at the address of the addressee or sent
by prepaid ordinary post to the address of the
addressee or sent by facsimile to the facsimile
number of the addressee, or sent by e-mail to the
e-mail address of the addressee specified in clause
22.2 or any
39
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other address, facsimile number or e-mail address any
party may from time to time notify to the other
parties as its address for service of
communications pursuant to this deed.
Initial addresses
22.2 The initial address and facsimile numbers of the Issuer
Trustee, the Global Trust Manager and the Note Trustee
are:
Issuer Trustee:
Address: [ ]
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
22.3 Unless a later time is specified in it, a notice,
approval, consent or other communication takes effect from
the time it is received.
Receipt
22.4 A letter, e-mail or facsimile is taken to be received:
(a) in the case of a posted letter, on the third
(seventh, if posted to or from a place outside
Australia) day after posting;
(b) in the case of a facsimile, on production 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 notified for the purpose of this
clause; and
(c) in the case of an e-mail, on receipt by the sender of
an e-mail confirmation that the e-mail was delivered
in its entirety to the e-mail address of the
recipient.
However, if the time of deemed receipt of any notice is
not before 4.00 p.m. (local time at the address of the
recipient) on a Business Day it is
40
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deemed to have been received at the commencement of
business on the next following Business Day.
22.5 Subject to clause 3.3(e), all notices with respect to the
[Noteholders of Class/Classes of US Notes] are valid if
despatched in accordance with, and will be regulated by,
the [Conditions of the Class/Classes of US Notes].
23 Limited recourse
--------------------------------------------------------------------------------
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).
24 Termination
--------------------------------------------------------------------------------
At any time after the expiry of the latest period after
which the right to any payment of interest or principal
becomes void in accordance with the [Conditions of the
Class/Classes of US Notes], the Issuer Trustee may by
notice to the Note Trustee and copied to the Global Trust
Manager terminate the trust constituted by this deed.
25 Trust Indenture Act
--------------------------------------------------------------------------------
Certificates and opinions
25.1 (a) ([Conditions of the Class/Classes of US Notes]
Precedent) Upon any application or request by the
Issuer Trustee to the Note Trustee to take any
action under any provision of this deed, the
Issuer Trustee must furnish to the Note Trustee:
(i) a certificate from two Authorised Persons of the
Issuer Trustee stating that all conditions
precedent, if any, provided for in this deed
relating to the proposed action have been
complied with;
(ii) Counsel's Opinion stating that all such
conditions precedent, if any, have been complied
with; and
(iii) if required by the TIA, a certificate from an
accountant meeting the applicable requirements
of section 314(c)(3) of the TIA,
provided that in the case of any such application or
request as to which the furnishing of such
documents is specifically required by any other
provision of this deed no additional certificate
or opinion need be furnished.
(b) (Fair Value) The Issuer Trustee must furnish to the
Note Trustee a certificate or opinion of an engineer,
appraiser or other expert as to the fair value:
41
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(i) of any property or securities to be released
from the Security Interest created by the Master
Security Trust Deed and the Deed of Charge in
respect of the Trust, where this is required by
section 314(d)(1) of the TIA;
(ii) to the Issuer Trustee of any securities the
deposit of which with the Issuer Trustee is to
be made the basis for the release of any
property or securities subject to the Security
Interest created by the Master Security Trust
Deed and the Deed of Charge in respect of the
Trust, where this is required by section
314(d)(2) of the TIA; and
(iii) to the Issuer Trustee of any property the
subjection of which to the Security Interest
created by the Master Security Trust Deed and
the Deed of Charge in respect of the Trust is to
be made the basis for the release of any
property or securities subject to the Security
Interest created by the Master Security Trust
Deed and the Deed of Charge in respect of the
Trust, where this is required by section
314(d)(3) of the TIA,
and every such certificate or opinion must comply
with the relevant provisions of section 314(d)
of the TIA (and, except as provided otherwise in
section 314 of the TIA, may be given by an
Authorised Person of the Issuer Trustee).
(c) (Form of certificates and options) Each certificate
or opinion with respect to compliance with a
condition or covenant provided for in this deed
(other than the certificate referred to in clause
7.1(d)(i)) shall include:
(i) a statement that each signatory of such
certificate or opinion has read such covenant or
condition and the definitions used therein;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the
statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such
examination or investigation as is necessary to
enable such signatory to express an informed
opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of
each such signatory such condition or covenant
has been complied with.
Undertaking for Costs
25.2 (a) (Undertaking) Subject to clause 25.2(b), all parties
to this deed agree, and each [Noteholder of the
Class/Classes of US Note]
42
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by such [Noteholder of the Class/Classes of US
Note]'s acceptance of the [Class/Classes of US Notes]
are deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement
of any right or remedy under this deed, or in any
suit against the Note Trustee for any action taken,
suffered or omitted by it as the Note Trustee, the
filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against
any party litigant in such suit, having due regard to
the merits and good faith of the claims or defences
made by such party litigant.
(b) (Exceptions)The provisions of clause 25.2(a) shall
not apply to:
(i) any suit instituted by the Note Trustee;
(ii) any suit instituted by any [Noteholder of the
Class/Classes of US Note], or group of
[Noteholders of Class/Classes of US Notes], in
each case holding in the aggregate
[Class/Classes of US Notes] with an Invested
Amount of more than 10% of the then aggregate
Invested Amount of all [Class/Classes of US
Notes]; or
(iii) any suit instituted by any [Noteholder of the
Class/Classes of US Note] for the enforcement of
the payment of principal or interest on any
[Class/Classes of US Note] on or after the
respective due dates expressed in such
[Class/Classes of US Note] and in this deed.
Exclusion of section 316(a)(1)
25.3 Section 316(a)(1) of the TIA is expressly excluded by this
deed.
Unconditional rights of [Noteholders of Class/Classes of US Notes] to receive
principal and interest
25.4 Notwithstanding any other provisions in this deed, any
[Noteholder of the Class/Classes of US Note] shall have
the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on each
[Class/Classes of US Note] held by it on or after the
respective due dates thereof expressed in such
[Class/Classes of US Note] or in this deed or to institute
suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such
[Noteholder of the Class/Classes of US Note], except to
the extent that this deed or the Master Security Trust
Deed contains provisions limiting or denying the right of
any [Noteholder of the Class/Classes of US Note] to
institute any such suit, if and to the extent that the
institution or prosecution thereof or the entry of
judgment therein would, under applicable law, result in
the surrender, impairment, waiver or loss of the Security
Interest created by the Master Security Trust Deed upon
any property subject to such Security Interest.
43
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Conflict with Trust Indenture Act
25.5 The provisions of section 310 to 317 (inclusive) of the
TIA are incorporated into, are a part of and govern this
deed, whether or not contained in this deed, unless
expressly excluded by this deed in accordance with the
TIA. If any provision of this deed limits, qualifies or
conflicts with any provision that is deemed to be included
in this deed by virtue of any of the provisions of the
TIA, such provision deemed to be included in this deed
will prevail.
26 Miscellaneous
--------------------------------------------------------------------------------
Certificate
26.1 A certificate signed by the Issuer Trustee, Global Trust
Manager or Note Trustee or its solicitors about a matter
or about a sum payable to the Issuer Trustee, the Global
Trust Manager or the Note Trustee in connection with this
deed or the Supplemental Deed is sufficient evidence of
the matter or sum stated in the certificate unless the
matter or sum is proved to be false.
Exercise of rights
26.2 The Issuer Trustee, Global Trust Manager, Note Trustee or
an attorney appointed under this deed may exercise a
right, power or remedy at its discretion, and separately
or concurrently with another right, power or remedy. A
single or partial exercise of a right, power or remedy by
the person does not prevent a further exercise of that or
an exercise of any other right, power or remedy. Failure
by the person to exercise or delay in exercising a right,
power or remedy does not prevent its exercise. The person
with the right, power or remedy is not liable for any loss
caused by its exercise, attempted exercise, failure to
exercise or delay in exercising it except in the case of
its fraud or wilful default or, in the case of the Issuer
Trustee, Global Trust Manager or Note Trustee, negligence,
fraud or breach of trust.
Waiver and variation
26.3 A provision of or a right created under this deed may not
be waived or varied except in writing signed by the party
or parties to be bound.
Supervening legislation
26.4 Any present or future legislation which operates to vary
the obligations of the Issuer Trustee, Global Trust
Manager or Note Trustee in connection with this deed with
the result that the rights, powers or remedies of the
Issuer Trustee, Global Trust Manager or Note Trustee are
adversely affected (including, without limitation, by way
of delay or postponement) is excluded except to the extent
that its exclusion is prohibited or rendered ineffective
by law.
Approvals and consent
26.5 The Issuer Trustee, the Global Trust Manager, Note Trustee
or an attorney appointed under this deed may give
conditionally or unconditionally or withhold its approval
or consent in its absolute discretion, unless this deed
expressly provides otherwise.
44
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Remedies cumulative
26.6 The rights, powers and remedies provided in this deed are
cumulative with and not exclusive of the rights, powers or
remedies provided by law independently of this deed.
Indemnities
26.7 Each indemnity in this deed is a continuing obligation,
separate and independent from the other obligations of the
Issuer Trustee, the Global Trust Manager and the Note
Trustee and survives termination of this deed. It is not
necessary for the Issuer Trustee, the Global Trust Manager
or the Note Trustee to incur expense or make payment
before enforcing a right of indemnity conferred by this
deed.
Time of the essence
26.8 Time is of the essence in this deed in respect of an
obligation of the Issuer Trustee or Note Trustee to pay
money.
Receipts
26.9 The receipt of a Receiver, or an Authorised Person of the
Issuer Trustee or Note Trustee, releases the person paying
money to the Receiver, the Issuer Trustee ore the Note
Trustee in connection with this deed from:
(a) liability for the money paid or expressed to be
received; and
(b) being concerned to see to its application or being
answerable or accountable for its loss or
misapplication.
Acknowledgment
26.10 The parties acknowledge and agree that the Issuer
Trustee, the Global Trust Manager and the Note Trustee in
exercising their powers and discretions under this deed,
and in performing their obligations under this deed, must
act in accordance with their duties and obligations under
this deed and may exercise such powers and discretions as
provided in this deed and (without limitation) in forming
any opinion may obtain and act upon the advice of persons
who are not parties to this deed.
26.11 The parties acknowledge that they are bound by the terms
of this deed.
Disclosure of information
26.12 Subject to this deed, the Issuer Trustee and the Note
Trustee is not required (unless ordered so to do by a
court of competent jurisdiction) to disclose to any
Unitholder, Secured Creditor or any other person
confidential, financial or other information made
available to the Issuer Trustee and the Note Trustee in
connection with this deed.
Rights cumulative
26.13 The rights, powers and remedies provided in this deed are
cumulative and not exclusive of the rights, powers or
remedies provided by law independently of this deed.
Signatures
26.14 The Issuer Trustee, the Global Trust Manager and the Note
Trustee may rely on the validity of any signature on any
transfer, form of application or other instrument or
document unless the Issuer Trustee, the Global
45
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Trust Manager or the Note Trustee (as the case may be) has
reasonable grounds to believe that the signature is not
genuine. Neither the Issuer Trustee, the Global Trust
Manager nor the Note Trustee is liable to make good out of
its own funds any loss incurred by any person if a
signature is forged or otherwise fails to bind the person
whose signature it purports to be or on whose behalf it
purports to be made. Any such loss, subject to any right
of reimbursement from any other person (including the
Global Trust Manager) is to be borne by the relevant Trust
in respect of which the loss is incurred.
Meetings
26.15 A reference in this deed to a meeting of Secured
Creditors of a Trust is a reference to a meeting of
Secured Creditors of the Trust conducted in accordance
with the provisions of the relevant Deed of Charge.
27 Governing law
--------------------------------------------------------------------------------
Governing Law
27.1 This deed and each Trust are governed by the law in force
in the Australian Capital Territory and the rights,
liabilities and obligations of the Global Trust Manager,
the Issuer Trustee, the Note Trustee, the Unitholders and
the Secured Creditors are governed by the laws in force in
the Australian Capital Territory.
Submission to jurisdiction
27.2 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
27.3 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 22.
28 Counterparts
--------------------------------------------------------------------------------
This Note Trust Deed may consist of any numbers of
counterparts and all counterparts taken together will be
deemed to constitute one and the same instrument.
EXECUTED as a deed.
46
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Schedule 1 Form of [Class/Classes of US Note]
--------------------------------------------------------------------------------
Registered CUSIP No:
No. R- ISIN No.:
Common Code:
Unless this [Class/Classes of US Note] is presented by an authorised
representative of The Depository Trust Company, a New York corporation,
("DTC") to the Issuer Trustee (as defined below) or its agent for registration
of transfer, exchange or payment, and any [Class/Classes of US Note] issued is
registered in the name of [name of nominee] or in such other name as is
requested by an authorised representative of DTC (and any payment is made to
[name of nominee] or to such other entity as is requested by an authorised
representative of DTC), any transfer, pledge or other use of the
[Class/Classes of US Note] for value or otherwise by or to any person is
wrongful in as much as the registered owner hereof, [name of nominee], has an
interest in this [Class/Classes of US Note].
[The above paragraph is to appear in the [Class/Classes of Book Entry US
Notes] only.]
The principal of this [Class/Classes of US Note] is payable in instalments and
may be subject to charge-offs or exchange as set forth below, the Note Trust
Deed and in the [Conditions of the Class/Classes of US Notes]. Accordingly,
the outstanding principal amount of this [Class/Classes of US Note] at any
time may be less than the amount shown on the face of this [Class/Classes of
US Note].
[NAME AND ABN OF ISSUER TRUSTEE]
(a limited liability company incorporated under the law of [ ])
in its capacity as trustee ("Issuer Trustee")
of National RMBS Trust 200[ ]-[ ] (the "Trust")
[CLASS/CLASSES OF US NOTE]
This [Class/Classes of US Note] is issued by the Issuer Trustee in an initial
aggregate principal amount of US$[ ] (the "[Class/Classes of US Notes]") and
is:
(a) constituted by a Note Trust Deed (the "Note Trust Deed") dated [ ] made
between the Issuer Trustee, National Global MBS Manager Pty Ltd ("the
Global Trust Manager") and [name of Note Trustee] (the "Note Trustee");
and
(b) issued subject to, and with the benefit of, amongst other things:
(i) a Master Trust Deed (the "Master Trust Deed") dated [ ] made between
the Global Trust Manager and the Issuer Trustee (as amended from
time to time);
(ii) a Supplemental Deed (the "Supplemental Deed") dated [ ] made between
National Australia Bank Limited, the Global Trust Manager, the
Issuer Trustee and [name of Security Trustee] ("Security Trustee");
(iii) a Master Security Trust Deed (the "Master Security Trust Deed")
dated [ ] made between the Issuer Trustee, the Global Trust Manager,
the Note Trustee and the Security Trustee (as amended from time to
time);
(iv) the Agency Agreement ("Agency Agreement") dated [ ] made between the
Issuer Trustee, the Note Trustee, the Global Trust Manager, [name of
Principal Paying Agent, Calculation Agent and Registrar] as
Principal Paying Agent, [Registrar
47
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of the Class/Classes of US Notes] and Calculation Agent, [name of
Paying Agent(s)] as a Paying Agent;
(v) a Deed of Charge dated [ ] made between the Issuer Trustee, the
Security Trustee, the Global Trust Manager and the Note Trustee;
(vi) the Note Trust Deed; and
(vii) the [Conditions of the Class/Classes of US Notes] as set out in the
Annexure to this [Class/Classes of US Note] (the "[Conditions of the
Class/Classes of US Notes]").
Unless defined in this [Class/Classes of US Note], words and phrases defined
in, or incorporated in, either or both of the Note Trust Deed and the
[Conditions of the Class/Classes of US Notes] have the same meaning in this
[Class/Classes of US Note]. Where there is any inconsistency in a definition
between the Note Trust Deed and the [Conditions of the Class/Classes of US
Notes], the Note Trust Deed prevails.
If this [Class/Classes of US Note] is a [Class/Classes of Book Entry US Note]
and the Issuer Trustee is obliged to issue [Class/Classes of Definitive US
Notes] under clause 3.4(a) of the Note Trust Deed, this [Class/Classes of US
Note] will be exchangeable in whole upon its surrender at the offices of the
[Registrar of the Class/Classes of US Notes] as specified in the [Conditions
of the Class/Classes of US Notes] or notified to [Noteholders of Class/Classes
of US Notes] from time to time (or such other place as the Note Trustee may
agree) for [Class/Classes of Definitive US Notes] and the Issuer Trustee shall
execute and procure that the Note Trustee authenticates and delivers in full
exchange for this [Class/Classes of US Note], [Class/Classes of Definitive US
Notes] in aggregate principal amount equal to the then Invested Amount of this
[Class/Classes of US Note] subject to and in accordance with clause 3.4(b) of
the Note Trust Deed. The Issuer Trustee is not obliged to issue [Class/Classes
of Definitive US Notes] until 30 days after the occurrence of an event set out
in clause 3.4(a) of the Note Trust Deed.
The Issuer Trustee in its capacity as trustee of the Trust, subject to and in
accordance with this [Class/Classes of US Note], the [Conditions of the
Class/Classes of US Notes], the Agency Agreement, the Supplemental Deed and
the Note Trust Deed, promises to pay to [ ] as the registered holder of this
[Class/Classes of US Note], or to registered assigns of this [Class/Classes of
US Note], the principal sum of US$[ ] (or such part of that amount as may
become repayable under the [Conditions of the Class/Classes of US Notes], the
Supplemental Deed and the Note Trust Deed) on such date(s) as the principal
sum (or any part of it) becomes repayable in accordance with the [Conditions
of the Class/Classes of US Notes], the Supplemental Deed and the Note Trust
Deed and to pay interest in arrear on each Payment Date on the Invested Amount
of this [Class/Classes of US Note] at rates determined in accordance with
Condition 6 of the [Conditions of the Class/Classes of US Notes]. The
[Class/Classes of Definitive US Notes] to be issued on that exchange will be
in registered form each in the denomination of US$[ ] or integral multiples
thereof. If the Issuer Trustee fails to meet its obligations to issue
[Class/Classes of Definitive US Notes], this shall be without prejudice to the
Issuer Trustee's obligations with respect to the [Class/Classes of US Notes]
under the Note Trust Deed, the Master Trust Deed, the Supplemental Deed, the
Agency Agreement and this [Class/Classes of US Note].
Payments of interest on this [Class/Classes of US Note] due and payable on
each Payment Date, together with the instalment of principal, if any, shall be
payable in accordance with Condition 8.1 of the [Conditions of the
Class/Classes of US Notes] and the Agency Agreement. If this [Class/Classes of
US Note] is a [Class/Classes of Book Entry US Note] such payments will be made
to the nominee of the Depository (initially, such nominee to be [name of
nominee].) and each of the persons appearing from time to time in the records
of DTC as the holder of a beneficial interest in a [Class/Classes of US
48
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Note] will be entitled to receive any payment so made in respect of that
[Class/Classes of US Note] only in accordance with the respective rules and
procedures of DTC. Such persons will have no claim directly against the Issuer
Trustee in respect of payments due on the [Class/Classes of US Notes] which
must be made by the holder of this [Class/Classes of US Note], for so long as
this [Class/Classes of US Note] is outstanding.
On any payment of principal and/or interest on the [Class/Classes of US Notes]
details of that payment shall be endorsed by or on behalf of the Issuer in the
[Register of the Class/Classes of US Notes] and, in the case of payments of
principal, the Invested Amount and the Stated Amount of the [Class/Classes of
US Notes] shall be reduced for all purposes by the amount so paid and endorsed
in the [Register of the Class/Classes of US Notes]. Any such record shall be
prima facie evidence that the payment in question has been made.
This [Class/Classes of US Note] shall not become valid for any purpose unless
and until the Certificate of Authentication attached has been signed by an
Authorised Person or other duly appointed representatives of the Note Trustee.
This [Class/Classes of US Note] is governed by, and shall be construed in
accordance with, the laws of the Australian Capital Territory, Australia.
If this [Class/Classes of US Note] is a [Class/Classes of Book Entry US Note],
this [Class/Classes of US Note] is a global note.
IN WITNESS the Issuer Trustee has caused this [Class/Classes of US Note] to be
signed manually by a person duly authorised on its behalf.
[NAME OF ISSUER TRUSTEE] by:
................................................
Authorised Person/duly appointed representative
IMPORTANT NOTES:
Neither the Global Trust Manager nor the Issuer Trustee is under any
obligation at any time to repurchase any [Class/Classes of US Notes] from
[Noteholders of Class/Classes of US Notes].
This [Class/Classes of US Note] is not a certificate of title and the
[Register of the Class/Classes of US Notes] on which these [Class/Classes of
US Notes] are registered is the only conclusive evidence of the title of the
abovementioned person to the [Class/Classes of US Notes].
The Issuer Trustee's liability is limited in accordance with Condition 12. The
Issuer Trustee issues this [Class/Classes of US Note] only in its capacity as
trustee of the Trust and in no other capacity. A liability arising under or in
connection with the Trust under the Master Trust Deed, the Supplemental Deed,
the Note Trust Deed, this [Class/Classes of US Note] or any other Transaction
Document is limited to and can be enforced against the Issuer Trustee only to
the extent to which it can be satisfied out of the Assets of the Trust out of
which the Issuer Trustee is actually indemnified for the liability. This
limitation of the Issuer Trustee's liability will not apply to any obligation
or liability of the Issuer Trustee to the extent that it is not so satisfied
because under any Transaction Document in relation to the Trust or by
operation of law there is a reduction in the extent of the Issuer Trustee's
indemnification out of the Assets of the Trust as a result of any fraud,
negligence or breach of trust on the part of the Issuer Trustee. Subject to
the terms of the Transaction Documents, the Issuer Trustee will have no
liability for any act or omission of the Global Trust Manager or of any other
person.
49
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Transfers of the [Class/Classes of US Notes] must be pursuant to the annexed
form of assignment and otherwise in accordance with clause 5 of the Agency
Agreement.
None of the Global Trust Manager or the National Australia Bank Limited (the
"Bank") as the Seller and Servicer, or any other affiliate of the Bank or the
Issuer Trustee in its personal capacity or as trustee of any other trust
guarantees the payment or repayment of any principal, interest or other
amounts owing in respect of the [Class/Classes of US Notes].
The [Class/Classes of US Notes] do not represent deposits or other liabilities
of the Bank. The holding of the [Class/Classes of US Notes] is subject to
investment risk, including possible delays in payment and loss of income and
principal invested. No party to the Transaction Documents for the Trust, or
any affiliate of any of them, stand in any way behind the capital value and/or
performance of the [Class/Classes of US Notes], or the Assets held by the
Trust.
50
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ASSIGNMENT
Social Security or taxpayer I.D., or other identifying number of assignee:
For value received, the undersigned hereby sells, assigns and transfer unto
_________________________________________
(name and address of assignee)
the within [Class/Classes of US Note] and all rights thereunder, and hereby
irrevocably constitutes and appoints ,
attorney to transfer said [Class/Classes of US Note] on the books kept for
registration thereof, with full power of substitution in the premises.
Dated: *
Signature Guaranteed:
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the [Registrar of the
Class/Classes of US Notes], which
requirements include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the [Registrar of the
Class/Classes of US Notes] in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended.
* Note: The signatures of this assignment must correspond with the name of the
registered owner as it appears on the face of the within [Class/Classes of US
Note] in every particular without alteration, enlargement or any change
whatsoever.
51
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CERTIFICATE OF AUTHENTICATION
This [Class/Classes of US Note] is authenticated by [name of Note Trustee] as
Note Trustee and until so authenticated shall not be valid for any purpose.
[NAME OF NOTE TRUSTEE] by:
........
Authorised Person/duly appointed representative
Dated: [ ]
52
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ANNEXURE
[Insert completed [Class/Classes of US Note] Conditions]
53
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Schedule 2 Provisions for Meetings of [Noteholders of
Class/Classes of US Notes]
--------------------------------------------------------------------------------
Validity
1 A holder of a [Class/Classes of US Note] may obtain a
Voting Certificate from a Paying Agent or require Paying
Agents to issue a Block Voting Instruction by depositing
his [Class/Classes of US Note] with such Paying Agent not
later than 48 hours before the time fixed for any meeting.
Each Voting Certificate and Block Voting Instruction shall
be valid for so long as the relevant [Class/Classes of US
Notes] shall not be released (as set out in the relevant
definition in the Definitions Schedule) and during the
validity of such Voting Certificate or Block Voting
Instruction the holder of such Voting Certificate or (as
the case may be) the Proxy named in such Block Voting
Instruction shall, for all purposes in connection with any
meeting of [Noteholders of Class/Classes of US Notes], be
deemed to be the [Noteholder of the Class/Classes of US
Note] of the [Class/Classes of US Notes] to which such
Voting Certificate or Block Voting Instruction relates and
the Paying Agents with which (or to the order of which)
such [Class/Classes of US Notes] have been deposited shall
be deemed for such purposes not to be the [Noteholder of
the Class/Classes of US Note] of those [Class/Classes of
US Notes].
Who may convene meetings
2 The Note Trustee or the Issuer Trustee at any time may,
and the Note Trustee (subject to it being indemnified to
its satisfaction against all costs and expenses thereby
occasioned) upon request in writing of the [Noteholders of
Class/Classes of US Notes] holding not less than five per
cent. of the aggregate Invested Amount of the relevant
[Class/Classes of US Notes] for the time being outstanding
shall, convene a meeting of the [Noteholders of
Class/Classes of US Notes]. Whenever the Issuer Trustee or
the Note Trustee upon such request of the relevant
[Noteholders of Class/Classes of US Notes] is about to
convene any such meeting it shall give notice in writing
to the Note Trustee (or the Issuer Trustee as the case may
be) of the day, time and place of that meeting and of the
nature of the business to be transacted at that meeting.
If the Note Trustee receives notice of a meeting pursuant
to the terms of the Master Security Trust Deed it shall
convene a meeting of the [Noteholders of Class/Classes of
US Notes] as soon as practicable thereafter. Every such
meeting shall be held at such time and place as the Note
Trustee may approve.
Notification of meetings
3 At least 14 days' notice (exclusive of the day on which
the notice is given and of the day on which the meeting is
held) specifying the day, time and place of meeting shall
be given to the relevant [Noteholders of Class/Classes of
US Notes]. A copy of the notice shall be given to the Note
Trustee, unless the meeting is convened by the Note
Trustee, and to the Issuer Trustee unless the meeting
shall be convened by the Issuer Trustee. Such notice
shall, unless in any particular case the Note Trustee
otherwise agrees, specify the terms of the resolutions to
be proposed and shall include statements to the effect
that [Class/Classes of
54
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US Notes] may be deposited with (or to the order of) the
Paying Agent or any Paying Agent for the purpose of
obtaining Voting Certificates or Block Voting Instructions
(and appointing Proxies) until 48 hours before the time
fixed for the meeting but not thereafter.
Chairman
4 A person (who may, but need not, be a relevant [Noteholder
of the Class/Classes of US Note]) nominated in writing by
the Note Trustee shall be entitled to take the chair at
every such meeting but if no such nomination is made or if
at any meeting the person nominated shall not be present
within 15 minutes after the time appointed for the holding
of such meeting the relevant [Noteholders of Class/Classes
of US Notes] present shall choose one of their number to
be chairman and, failing such nomination, the Issuer
Trustee may appoint a chairman (who may, but need not, be
a relevant [Noteholder of the Class/Classes of US Note]).
The chairman of an adjourned meeting need not be the same
person as was chairman of the original meeting.
Quorum
5 (a) At any such meeting any two or more persons present in
person holding relevant [Class/Classes of US Notes]
or Voting Certificates or Block Voting Instructions
or being Proxies or representatives holding or
representing in the aggregate at least 51% in
principal amount of the relevant [Class/Classes of US
Notes] for the time being outstanding shall form a
quorum for the transaction of business and no
business (other than the choosing of a chairman)
shall be transacted at any meeting unless the
requisite quorum be present at the commencement of
business. The quorum at any such meeting for passing
an Extraordinary Resolution shall (subject as
provided below) be two or more persons present in
person holding relevant [Class/Classes of US Notes]
or voting certificates or being proxies or
representatives and holding or representing in the
aggregate at least 67% in principal amount of the
relevant [Class/Classes of US Notes] for the time
being outstanding provided that at any meeting the
business of which includes any of the matters
specified in the proviso to paragraph 13 the quorum
shall be two or more persons present in person
holding relevant [Class/Classes of US Notes] or
voting certificates or being proxies or
representatives and holding or representing in the
aggregate not less than 75% in principal amount of
the relevant [Class/Classes of US Notes]. For the
purpose of this Schedule, when all the relevant
[Class/Classes of US Notes] for the time being
outstanding are represented by or comprised in a
single [Class/Classes of Book Entry US Note], the
holder of such Global Note shall be treated as two
persons for the purposes of any quorum requirements
of a meeting of the relevant [Noteholders of
Class/Classes of US Notes].
(b) If within half an hour from the time appointed for
any such meeting a quorum is not present the meeting
shall, if convened upon the requisition of
[Noteholders of Class/Classes of US Notes], be
dissolved. In any other case it shall stand adjourned
55
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(unless the Issuer Trustee and the Note Trustee agree
that it be dissolved) for such period, being not less
than 21 days nor more than 42 days and to such time
and place, as may be appointed by the chairman. At
such adjourned meeting two or more persons present in
person holding relevant [Class/Classes of US Notes]
or Voting Certificates or Block Voting Instructions
or being Proxies or representatives (whatever the
principal amount of the relevant [Class/Classes of US
Notes] so held or represented by them) shall form a
quorum and shall have the power to pass any
resolution and to decide upon all matters which could
properly have been dealt with at the meeting from
which the adjournment took place had a quorum been
present at such meeting provided that the quorum at
any adjourned meeting at which is to be proposed an
Extraordinary Resolution for the purpose of effecting
any of the modifications specified in the proviso to
paragraph 13 shall be two or more persons present
holding relevant [Class/Classes of US Notes] or
Voting Certificates or Block Voting Instructions or
being Proxies or representatives and holding or
representing in the aggregate not less than 51% in
principal amount of the relevant [Class/Classes of US
Notes] for the time being outstanding.
Adjournment
6 The chairman may with the consent of (and shall if
directed by) any meeting adjourn the same from time to
time and from place to place, but no business shall be
transacted at any adjourned meeting except business which
might lawfully have been transacted at the meeting from
which the adjournment took place.
Notice of adjourned meeting
7 At least ten days' notice of any meeting adjourned through
want of a quorum shall be given in the same manner as of
an original meeting and such notice shall state the quorum
required at such adjourned meeting. Otherwise, it is not
necessary to give any notice of an adjourned meeting.
Resolution by show of hands
8 (a) Every question submitted to a meeting shall be
decided in the first instance by a show of hands and
in the case of equality of votes the chairman shall
both on a show of hands and on a poll have a casting
vote in addition to the vote or votes (if any) to
which he may be entitled as a relevant [Noteholder of
the Class/Classes of US Note] or as a holder of a
Voting Certificate or Block Voting Instruction or as
a Proxy or representative.
(b) At any meeting, unless a poll is (before or on the
declaration of the result of the show of hands)
demanded by the chairman or the Issuer Trustee, the
Note Trustee or by one or more persons holding one or
more of the relevant [Class/Classes of US Notes] or
Voting Certificates or Block Voting Instructions or
being Proxies or representatives representing in the
aggregate not less than two per cent. of the
principal amount of the relevant [Class/Classes of US
Notes] for the time being outstanding, a
56
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declaration by the chairman that a resolution has
been carried or carried by a particular majority or
lost or not carried by any particular majority shall
be conclusive evidence of the fact without proof of
the number or proportion of the votes recorded in
favour of or against such resolution.
Poll
9 (a) If at any meeting a poll is demanded, it shall be
taken in such manner and (subject to the provisions
of this schedule) either at once or after such an
adjournment as the chairman directs and the result of
such poll shall be deemed to be the resolution of the
meeting at which the poll was demanded as at the date
of the taking of the poll. The demand for a poll
shall not prevent the continuance of the meeting for
the transaction of any business other than the
question on which the poll has been demanded.
(b) Any poll demanded at any meeting on the election of a
chairman or on any question of adjournment shall be
taken at the meeting without adjournment.
Entitlement to attend
10 The Note Trustee and the Issuer Trustee (through their
respective representatives) and their respective financial
and legal advisers shall be entitled to attend and speak
at any meeting of the relevant [Noteholders of
Class/Classes of US Notes]. No other person shall be
entitled to attend or vote at any meeting of the relevant
[Noteholders of Class/Classes of US Notes] or to join with
others in requesting the convening of such a meeting
unless he produces the relevant [Class/Classes of US Note]
or [Class/Classes of US Notes] of which he is the holder,
a Voting Certificate, a Block Voting Instruction naming
him as Proxy or evidence of his appointment as a
representative of a [Noteholder of the Class/Classes of US
Note]. The Issuer Trustee is not entitled to vote in
respect of relevant [Class/Classes of US Notes]
beneficially held by it or on its behalf but this shall
not prevent any Proxy named in any Block Voting
Instruction from being a director, officer or
representative of, or otherwise connected with, the Issuer
Trustee or any of its subsidiaries or associated
companies.
Voting rights
11 (a) Except as provided in paragraph 10 above, at any
such meeting:
(i) on a show of hands every person who is present
in person and produces a relevant Note, a Voting
Certificate, a Block Voting Instruction naming
him as a Proxy or evidence of his appointment as
a representative of a [Noteholder of the
Class/Classes of US Note] shall have one vote;
and
(ii) on a poll every person who is so present shall
have one vote in respect of each principal
amount of [Class/Classes of US Notes] which is
equal to the minimum authorised denomination for
such [Class/Classes of US Notes], so produced or
57
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represented by the Voting Certificate so
produced or in respect of which he is a Proxy or
in respect of which he is a representative.
Without prejudice to the obligations of the
Proxies named in any Block Voting Instruction,
any person entitled to more than one vote need
not use all his votes or cast all the votes to
which he is entitled in the same way. (b) A
Proxy or representative need not be a relevant
[Noteholder of the Class/Classes of US Note].
Proxies
12 (a) Each Block Voting Instruction, together (if so
required by the Note Trustee) with proof satisfactory
to the Note Trustee of its due execution on behalf of
the Paying Agent or Paying Agent, shall be deposited
at the specified office of the Issuer Trustee or at
such other place as the Note Trustee shall designate
or approve not less than 48 hours before the time
appointed for holding the meeting or adjourned
meeting at which the Proxy named in the Block Voting
Instruction proposes to vote and in default the Block
Voting Instruction shall not be treated as valid
unless the chairman of the meeting decides otherwise
before such meeting or adjourned meeting proceeds to
business. Unless otherwise agreed by the Note
Trustee, a notarially certified copy of each such
Block Voting Instruction and such satisfactory proof
(if applicable) shall be deposited with the Note
Trustee before the commencement of the meeting or
adjourned meeting but the Note Trustee shall not
thereby be obliged to investigate or be concerned
with the validity of, or the authority of the Proxy
named in, any such Block Voting Instruction.
(b) Any vote given in accordance with the terms of a
Block Voting Instruction shall be valid despite the
previous revocation or amendment of the Block Voting
Instruction or of any of the relevant [Noteholders of
Class/Classes of US Notes]' instructions pursuant to
which it was executed, provided that no intimation in
writing of such revocation or amendment shall have
been received from the Paying Agent or the Paying
Agent by the Issuer Trustee or the Note Trustee at
the specified office of the Issuer Trustee or the
Note Trustee or by the chairman of the meeting, in
each case not less then 48 hours before the
commencement of the meeting or adjourned meeting at
which the Block Voting Instruction is intended to be
used.
Powers exercisable by Extraordinary Resolution
13 A meeting of the [Noteholders of Class/Classes of US
Notes] shall, subject to the provisions contained in the
[Conditions of the Class/Classes of US Notes], in addition
to the powers set out in this schedule, but without
prejudice to any powers conferred on other persons by this
schedule or the Note Trust Deed, have the following powers
exercisable by Extraordinary Resolution namely:
58
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(a) to authorise and request the Note Trustee to direct
the Security Trustee to enforce the Master Security
Trust Deed;
(b) to sanction any proposal by the Issuer Trustee for
any modification, abrogation, variation, compromise
of, or arrangement in respect of, the rights of the
relevant [Noteholders of Class/Classes of US Notes]
or any of them against the Issuer Trustee whether
such rights shall arise under the [Class/Classes of
US Notes] or otherwise;
(c) to sanction any proposal by the Issuer Trustee for
the exchange or sale of the relevant [Class/Classes
of US Notes] for, or substitution for the relevant
[Class/Classes of US Notes] of, or the conversion of
the relevant [Class/Classes of US Notes] into, or the
cancellation of the relevant [Class/Classes of US
Notes] in consideration of bonds, debentures,
debenture stock or other obligations or securities of
the Issuer Trustee or any other body corporate formed
or to be formed or cash or any combination of the
above;
(d) subject to the Note Trust Deed, to assent to any
modification of the provisions contained in the
relevant [Class/Classes of US Notes], the Agency
Agreement, the Note Trust Deed or this schedule which
shall be proposed by the Issuer Trustee or the Note
Trustee;
(e) to waive or authorise any breach or proposed breach
by the Issuer Trustee or Note Trustee of its
obligations under this deed;
(f) to override any waiver by the Note Trustee of a
breach of any provisions of the Transaction Documents
or an Event of Default under the Master Security
Trust Deed;
(g) to approve a person proposed to be appointed as a new
Note Trustee under the Note Trust Deed and power to
remove any trustee or trustees for the time being
thereof in relation to the relevant [Class/Classes of
US Notes];
(h) to authorise the Note Trustee to concur in and
execute and do all such documents, acts and things as
may be necessary to carry out and give effect to any
Extraordinary Resolution;
(i) to discharge or exonerate the Note Trustee from any
liability in respect of any act or omission for which
the Note Trustee may have become responsible under
the Note Trust Deed or under the relevant
[Class/Classes of US Notes];
(j) to give any authority, direction or sanction which
under the relevant [Class/Classes of US Notes] or the
Note Trust Deed is required to be given by
Extraordinary Resolution;
(k) to appoint any persons (whether relevant [Noteholders
of Class/Classes of US Notes] or not) as a committee
or committees to represent the interests of the
relevant
59
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[Noteholders of Class/Classes of US Notes] and to
confer upon such committee or committees any
powers or discretions which the relevant
[Noteholders of Class/Classes of US Notes] could
themselves exercise by Extraordinary Resolution,
(l) subject to the Note Trust Deed, to alter, add or
modify the terms and conditions of the [Class/Classes
of US Notes] or the provisions of any of the
Transaction Documents if the alteration, addition or
modification is, in the opinion of the Note Trustee,
materially prejudicial or likely to be materially
prejudicial to the [Noteholders of Class/Classes of
US Notes], other than to correct a manifest error or
ambiguity or to comply with the law, and shall
include any modifications which would have the effect
of changing the Final Maturity Date.
provided that the special quorum provisions contained in
paragraphs 5(a) and 5(b) and, in the case of any adjourned
meeting, the proviso to paragraph 5(b) shall apply in
relation to any Extraordinary Resolution for the purpose
of making a modification which:
(i) varies the date fixed for final maturity or
redemption of the relevant [Class/Classes of US
Notes];
(ii) reduces or cancels the principal amount of the
relevant [Class/Classes of US Notes] or the rate of
interest applicable to the relevant [Class/Classes of
US Notes];
(iv) alters the currency in which payments under the
relevant [Class/Classes of US Notes] are to be made;
(v) varies the provisions in this schedule concerning the
quorum required for any meeting of the relevant
[Noteholders of Class/Classes of US Notes] or the
majority required to pass an Extraordinary
Resolution;
(vi) postpones the date for payment of interest or the
rate of interest applicable to a Class of Notes; or
(vi) amends this proviso in any manner.
Binding effect of resolutions
14 A resolution passed at a meeting of the relevant
[Noteholders of Class/Classes of US Notes] duly convened
and held in accordance with this schedule is binding upon
all the relevant [Noteholders of Class/Classes of US
Notes], whether present or not present at such meeting,
and each of the relevant [Noteholders of Class/Classes of
US Notes] shall be bound to give effect thereto
accordingly. The passing of any such resolution shall be
conclusive evidence that the circumstances of such
resolution justify the passing of it.
Minutes
15 Minutes of all resolutions and proceedings at every such
meeting shall be made and duly entered in books to be from
time to time provided for that purpose by the Issuer
Trustee or the Note Trustee and any such
60
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minutes, if purporting to be signed by the chairman of the
meeting at which such resolutions were passed or
proceedings transacted or by the chairman of the next
succeeding meeting of the relevant [Noteholders of
Class/Classes of US Notes], shall be conclusive evidence
of the matters referred to in the minutes and until the
contrary is proved every such meeting in respect of the
proceedings of which minutes have been made and signed by
the chairman shall be deemed to have been duly held and
convened and all resolutions passed or proceedings
transacted thereat to have been duly passed and
transacted.
Signed resolution
16 A resolution in writing signed by or on behalf of all the
holders of the [Class/Classes of US Notes] shall be as
valid and effectual as an Extraordinary Resolution passed
at a meeting of such holders duly convened and held in
accordance with the provisions herein contained.
Further regulations
17 Subject to all other provisions contained in this deed,
the Note Trustee may from time to time without the consent
of the Issuer Trustee or the relevant [Noteholders of
Class/Classes of US Notes] or any of them prescribe such
further regulations regarding the requisitioning and
holding of meetings of [Noteholders of Class/Classes of US
Notes] and attendance and voting thereat and in relation
to resolutions in writing as the Note Trustee may in its
sole discretion determine including particularly (but
without prejudice to the generality of the foregoing) such
regulations and requirements as the Note Trustee thinks
reasonable:
(a) so as to satisfy itself that persons who propose to
requisition a meeting in accordance with paragraph 2
or who propose to make any requisition to the Note
Trustee are in fact [Noteholders of Class/Classes of
US Notes]; and
(b) as to the form of Voting Certificates or Block Voting
Instructions to be issued so as to satisfy itself
that persons who purport to attend or vote at any
meeting of [Noteholders of Class/Classes of US Notes]
are entitled to do so.
61
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Execution Page
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Issuer Trustee
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
GLOBAL TRUST MANAGER
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 this deed is executed
62
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Note Trustee
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
Occupation of witness ) authorisation under which this deed is
) signed, sealed and delivered
------------------------------------------------
Dated
National RMBS Trust
200[ ]-[ ]
Note Trust Deed
[Name of Issuer Trustee]
("Issuer Trustee")
National Global MBS Manager Pty
Ltd
("Global Trust Manager)
and
[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
(C)Mallesons Xxxxxxx Xxxxxx
(i)
--------------------------------------------------------------------------------
Contents National RMBS Trust 200[ ]-[ ] Note Trust Deed
--------------------------------------------------------------------------------
1 Definitions and Interpretation 1
Definitions Schedule 1
Interpretation 2
Appointment of the Note Trustee 2
Interpretation of provisions incorporated from TIA 2
2 Covenant to Pay 3
Covenant to Pay 3
Discharge 4
Payment after an Event of Default 4
Rate of Interest after an Event of Default 4
3 Amount, Form and issue of [Class/Classes of US Notes] 4
Aggregate Amount and Denomination 4
Description and Form of [Class/Classes of US Notes] 4
Initial issue as [Class/Classes of
Book Entry US Notes] 5
Issue of [Class/Classes of Definitive US Notes] 6
Indemnity of non-issue of [Class/Classes of
Definitive US Notes] 7
4 [Register of the Class/Classes of US Notes] 8
Provision of [Noteholder of the Class/Classes
of US Note] Information 8
[Register of the Class/Classes of US Notes]
Conclusive 8
5 Stamp duties 8
6 Application of moneys received by the Note Trustee 9
Declaration of Trust 9
Accumulation 9
Investment 10
7 Covenants 10
The Issuer Trustee and the Global Trust Manager 10
Covenants between Issuer Trustee and
Global Trust Manager 13
8 Enforcement 13
Actions following Event of Default 13
Evidence of default 15
Overdue interest 15
Restrictions on enforcement 15
Liability for Enforcement 16
9 Proceedings 17
Acting only on direction 17
Security Trustee acting 17
Note Trustee alone entitled to act 18
10 Remuneration and indemnification of the Note Trustee 18
Normal remuneration 18
(ii)
--------------------------------------------------------------------------------
Extra remuneration 18
Expenses 19
Indemnity 19
Continuing effect 19
11 Supplemental Provisions 19
Liability to Account 19
[Class/Classes of US Notes] 20
Advice 20
Note Trustee to assume performance 20
Resolutions of [Noteholders of
Class/Classes of US Notes] 20
Reliance 20
Certificate signed by Authorised Person 21
Signatures 21
Deposit of documents 21
Discretion 22
Agents 22
Delegation 22
Application to Court 22
Interests of [Noteholders of
Class/Classes of US Notes] 22
Assumption as to Prejudice 23
Ratings 23
Validity of Transaction Documents 23
Defect in Security 23
[Noteholders of Class/Classes of
US Notes] Responsible 24
Limit on Obligation 24
No liability for breach 24
Dispute or ambiguity 24
Loss to charged property 24
Forged [Class/Classes of US Notes] 25
Confidentiality 25
Disclosure 25
Determinations conclusive 25
Currency conversion 25
[Class/Classes of US Notes] held by the
Issuer Trustee etc 25
Legal opinions 25
No liability for tax on payments 26
Powers additional 26
12 Note Trustee liable for negligence 26
13 Waiver 26
Waiver 26
14 Note Trustee not precluded from
entering into contracts 26
15 Duties of Note Trustee 27
Duties prior to an Event of Default 27
Duties following an Event of Default 27
Certain Limitations of Liability where
Acting in Good Faith 27
Note Trustee Not Relieved of
Liability for Negligence 28
Preferred Collection of
Claims Against Issuer Trustee 28
Compliance with Section 310 of the TIA 28
(iii)
--------------------------------------------------------------------------------
Transaction Documents 28
16 Amendment 28
Amendment by Note Trustee 28
Amendments requiring consent of all
[Noteholders of Class/Classes of US Notes] 30
Compliance with TIA 30
No Current Rating Agency downgrade 30
Distribution of amendments 30
Amendments binding on [Noteholders of
Class/Classes of US Notes] 30
17 Reports 30
Reports by Note Trustee 30
Reports by Global Trust Manager 31
Restricted Securities 31
18 Appointment, retirement and removal of
the Note Trustee 32
Appointment 32
Retirement of Note Trustee 32
Removal by Issuer Trustee 33
Note Trustee may Retire 33
Appointment of substitute note trustee by
[Noteholders of Class/Classes of US Notes] 33
Successor to Note Trustee 34
Issuer Trustee and Global Trust Manager
cannot be appointed 34
No Limitation of TIA 35
19 [Class/Classes of US Notes] held in
Clearing Systems and Notices 35
[Class/Classes of US Notes] held in Clearing Systems 35
20 Currency indemnity 35
Currency of account and payment 35
Extent of discharge 35
Indemnity 35
Indemnity separate 35
21 Representations and warranties 36
By the Issuer Trustee 36
By the Global Trust Manager 36
By the Note Trustee 37
22 Notices 38
Notices 38
Initial addresses 39
Time effective 39
Receipt 39
23 Limited recourse 40
24 Termination 40
(iv)
--------------------------------------------------------------------------------
25 Trust Indenture Act 40
Certificates and opinions 40
Undertaking for Costs 41
Exclusion of section 316(a)(1) 42
Unconditional rights of [Noteholders of
Class/Classes of US Notes] to receive
principal and interest 42
Conflict with Trust Indenture Act 42
26 Miscellaneous 43
Certificate 43
Exercise of rights 43
Waiver and variation 43
Supervening legislation 43
Approvals and consent 43
Remedies cumulative 43
Indemnities 44
Time of the essence 44
Receipts 44
Acknowledgment 44
Disclosure of information 44
Rights cumulative 44
Signatures 44
Meetings 45
27 Governing law 45
Governing Law 45
Submission to jurisdiction 45
Service 45
28 Counterparts 45
Schedule 1 Form of [Class/Classes of US Note] 46
Schedule 2 Provisions for Meetings of [Noteholders of
Class/Classes of US Notes] 53
(v)
--------------------------------------------------------------------------------
TRUST INDENTURE ACT - CROSS REFERENCE TABLE
[This Cross Reference Table does not, for any purpose, form part of this Note
Trust Deed.] "NA" means not applicable.
------------------------------- --------------------------------------
Trust Indenture Act Section Clause Reference
------------------------------- --------------------------------------
310(a)(1) 22.3(g), 15.7-9, 18.3(b), 18.4, 18.5
------------------------------- --------------------------------------
310(a)(2) 15.7, 15.8, 15.9
------------------------------- --------------------------------------
310(a)(3) 18.7
------------------------------- --------------------------------------
310(a)(4)
------------------------------- --------------------------------------
310(a)(5) 18.12
------------------------------- --------------------------------------
310(b) 15.9, 18.13
------------------------------- --------------------------------------
310(c)
------------------------------- --------------------------------------
311(a) 15.6
------------------------------- --------------------------------------
311(b) 15.6
------------------------------- --------------------------------------
311(c)
------------------------------- --------------------------------------
312(a) 4.2, 4.3
------------------------------- --------------------------------------
312(b) 4.3
------------------------------- --------------------------------------
312(c) 4.4
------------------------------- --------------------------------------
313(a) 17.1
------------------------------- --------------------------------------
313(b)(1) 17.1
------------------------------- --------------------------------------
313(b)(2) 17.1, 22.3
------------------------------- --------------------------------------
313(c) 17.1
------------------------------- --------------------------------------
313(d) 17.1
------------------------------- --------------------------------------
314(a)(1) 17.2(a), 17.2
------------------------------- --------------------------------------
314(a)(2) 17.2(b)
------------------------------- --------------------------------------
314(a)(3) 17.2(c)
------------------------------- --------------------------------------
314(a)(4) 7.2(b)
------------------------------- --------------------------------------
314(b) 7.2(h)
------------------------------- --------------------------------------
314(c) 255.1(a)
------------------------------- --------------------------------------
314(d) 255.1(b)
------------------------------- --------------------------------------
314(e) 255.1(c)
------------------------------- --------------------------------------
314(f)
------------------------------- --------------------------------------
315(a) 15.2
------------------------------- --------------------------------------
315(b) 8.1(a)
------------------------------- --------------------------------------
315(c) 15.3
------------------------------- --------------------------------------
(vi)
--------------------------------------------------------------------------------
------------------------------- --------------------------------------
315(d) 15.5, 11.5
------------------------------- --------------------------------------
315(e) 255.2
------------------------------- --------------------------------------
316(a)(1) 255.3
------------------------------- --------------------------------------
316(a)(2) 16.2
------------------------------- --------------------------------------
316(b) 255.4
------------------------------- --------------------------------------
316(c) 22.4
------------------------------- --------------------------------------
317(a)(1) 8.3
------------------------------- --------------------------------------
317(a)(2) 8.3
------------------------------- --------------------------------------
317(b) 7.2(i)
------------------------------- --------------------------------------
318(a) 255.5
------------------------------- --------------------------------------
