Note Trust Deed
Perpetual Trustees Victoria Limited
Interstar Securitisation Management Pty Limited
The Bank of New York
Perpetual Trustee Company Limited
Interstar Millennium Trusts
Interstar Millennium Series 2004-2G Trust
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
xxx.xxx.xxx.xx
(C) Copyright Xxxxxx Xxxxxx Xxxxxxxx 2004
Note Trust Xxxx Xxxxxx Xxxxxx Xxxxxxxx
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CROSS REFERENCE TABLE(1)
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TRUST INDENTURE ACT SECTION CLAUSE
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310 (a)(1) 23.6
(a)(2) 23.1(d)
(a)(3) 22.2(b)
(a)(4) 22.2(b)
(a)(5) NA2
(b) 23.6
(c) 23.6, 23.1
NA
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311 (a) 13
(b) 13
(c) NA
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312 (a) 35.1, 35.2(a)
(b) 35.2(b)
(c) 35.2(c)
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313 (a) 35.3
(b)(1) 35.3
(b)(2) NA
(c) 35.4
(d) 35.3
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314 (a)(1) 35.5
(a)(2) 35.5
(a)(3) 35.5
(a)(4) 11(j)
(b) 11(k)
(c) 36.1(a)
(d) 36.1(b)
(e) 36.1(c)
(f) 36.1(a)
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315 (a) 13.2
(b) 6.1(b)
(c) 14.2
(d) 34.8
(e) 36.2
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316 (a)(1) 36.3
(a)(2) NA
(b) 36.4
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317 (a)(1) 6.1
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(a)(2) NA
(b) 2.5
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318 (a) 36.5
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NOTES:
1. This Cross Reference Table shall not, for any purpose, be deemed to be part
of this deed.
2. NA means not applicable.
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions and Interpretation 1
1.2 Definitions in Master Trust Deed, Series Notice and Conditions 2
1.3 Interpretation 3
1.4 Determination, statement and certificate sufficient evidence 4
1.5 Document or agreement 4
1.6 Transaction Document 4
1.7 Trustee as trustee 4
1.8 Knowledge of Trustee 4
1.9 Knowledge of the Note Trustee 4
1.10 Appointment of the Note Trustee 4
1.11 Commencement 5
1.12 Opinion of Counsel 5
2. PAYMENTS ON US$ NOTES 5
2.1 Principal Amount 5
2.2 Covenant to repay 5
2.3 Deemed Payment 6
2.4 Following Event of Default 6
2.5 Requirements of Paying Agents 7
2.6 Certification 7
2.7 Determinations 7
3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, US$ NOTES 8
3.1 Issue of Global Notes 8
3.2 Terms of Global Notes 8
3.3 Issue of Definitive Notes 9
3.4 Notice of Exchange Events 10
3.5 Form of Definitive Notes 10
3.6 Stamp and Other Taxes 10
3.7 Indemnity for non-issue 11
3.8 Note Register and Note Registrar 11
3.9 US Tax Treatment 12
4. COVENANT OF COMPLIANCE 13
5. CANCELLATION OF US$ NOTES 13
5.1 Cancellation 13
5.2 Records 14
6. ENFORCEMENT 14
6.1 Actions following Event of Default 14
6.2 Evidence of default 14
6.3 Restrictions on enforcement 14
6.4 Action by Noteholders 15
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7. PROCEEDINGS 15
7.1 Acting only on direction 15
7.2 Security Trustee acting 16
7.3 Note Trustee alone entitled to act 16
7.4 Available amounts 16
7.5 No liability 17
8. NOTICE OF PAYMENT 17
9. INVESTMENT BY NOTE TRUSTEE 18
10. PARTIAL PAYMENTS 18
11. COVENANTS BY THE TRUSTEE AND TRUST MANAGER 21
12. REMUNERATION OF NOTE TRUSTEE 21
12.1 Fee 21
12.2 Additional Remuneration 21
12.3 Costs, expenses 21
12.4 Overdue rate 21
12.5 Continuing obligation 22
13. LIMITED RESPONSIBILITIES OF NOTE TRUSTEE 22
13.1 Limited Responsibilities 22
13.2 Examination of Documents 28
14. NOTE TRUSTEE'S LIABILITY 28
14.1 No exemption from liability 28
14.2 Occurrence of an Event of Default 28
15. DELEGATION BY NOTE TRUSTEE 28
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE 29
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE 29
18. WAIVER 30
19. AMENDMENT 30
19.1 Approval 30
19.2 Extraordinary Resolution of Noteholders 31
19.3 Distribution of amendments 31
19.4 Amendments binding 31
19.5 Conformity with TIA 31
20. US$ NOTEHOLDERS 31
20.1 Absolute Owner 31
20.2 Clearing System Certificate 32
21. CURRENCY INDEMNITY 32
22. NEW NOTE TRUSTEES 33
22.1 Appointment by Trustee 33
22.2 Appointment by Note Trustee 33
22.3 Notice 34
22.4 Requirement for Note Trustee 34
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23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL 35
23.1 Removal by Trustee 35
23.2 Removal by US$ Noteholders 35
23.3 Resignation 35
23.4 Trust Corporation 36
23.5 Successor to Note Trustee 36
23.6 Eligibility; Disqualification 36
24. NOTE TRUSTEE'S POWERS ADDITIONAL 37
25. SEVERABILITY OF PROVISIONS 37
26. NOTICES 37
26.1 General 37
26.2 Details 38
27. GOVERNING LAW AND JURISDICTION 39
28. COUNTERPARTS 39
29. LIMITED RECOURSE 39
29.1 General 39
29.2 Liability of Trustee limited to its right of Indemnity 39
29.3 Unrestricted remedies 39
29.4 Restricted remedies 40
30. SUCCESSOR TRUSTEE 40
31. INDEMNITY FOR THE COST OF INDEPENDENT ADVICE 40
32. NO LIABILITY 40
33. INFORMATION MEMORANDUM 41
34. NOTE TRUSTEE'S LIMITED LIABILITY 41
34.1 Reliance on certificates 41
34.2 Note Trustee's reliance on Trust Manager or Security Trustee 41
34.3 Compliance with laws 42
34.4 Reliance on experts 42
34.5 Oversights of others 42
34.6 Impossibility or impracticability 42
34.7 Legal and other proceedings 43
34.8 No liability except for negligence etc. 43
34.9 Further limitations on Note Trustee's liability 43
34.10 Conflicts 44
34.11 Information 45
34.12 Investigation by Note Trustee 44
35. NOTEHOLDERS' LISTS AND REPORTS 45
35.1 Provision of information 45
35.2 Preservation of Information; Communications to US$ Noteholders 46
35.3 Reports by Note Trustee 46
35.4 Notices to US$ Noteholders; Waiver 46
35.5 Reports by Trustee 47
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36. TRUST INDENTURE ACT - MISCELLANEOUS 47
36.1 Compliance Certificates and Opinions, etc 47
36.2 Undertaking for Costs 49
36.3 Exclusion of section 316 49
36.4 Unconditional Rights of US$ Noteholders to Receive Principal
and Interest 50
36.5 Conflict with Trust Indenture Act 50
SCHEDULE 1 53
Form of Global Note - US$ Notes 53
SCHEDULE 2 57
Form of Definitive Note - US$ Notes 57
SCHEDULE 3 59
Provisions for Meetings of US$ Noteholders 59
SCHEDULE 4 67
Information to be contained in Noteholders Report 67
SCHEDULE 5 68
Terms and Conditions of US$ Notes 68
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DATE 200[*]
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PARTIES
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1. PERPETUAL TRUSTEES VICTORIA LIMITED (ABN 47 004 027 258) of Level
28, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx in its capacity as
trustee of Interstar Millennium Series 2004-2G Trust (the
TRUSTEE);
2. INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED (ABN 56 100 346
898) of Level 28, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx in its
capacity as Trust Manager (the TRUST MANAGER);
3. THE BANK OF NEW YORK of 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx
Xxxx 10286 (the PRINCIPAL PAYING AGENT, the CALCULATION AGENT and
the NOTE REGISTRAR and, in its capacity as trustee for the US$
Noteholders, the NOTE TRUSTEE); and
4. PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001 007) of Level
7, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx, in its capacity
as Security Trustee (the SECURITY TRUSTEE).
RECITALS
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A The Trustee has resolved at the direction of the Trust Manager to
issue US$[*] Class A Notes, US$[*] Class AB Notes and US$[*]
Class B Notes to be constituted and secured in the manner
provided in this deed and the other Transaction Documents.
B The Note Trustee has agreed to act as trustee for the US$
Noteholders under this deed.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS AND INTERPRETATION
The following definitions apply unless the context requires
otherwise.
CORPORATE TRUST OFFICE means the principal office of the Note Trustee
in New York at which at any particular time its corporate trust
business is administered, which at the date of the execution of this
deed is 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx 00000 or at such
other address as the Note Trustee may designate by notice to the
Trust Manager, the US$ Noteholders and the Trustee or the principal
corporate trust office of any successor Note Trustee.
EVENT OF DEFAULT means, in respect of a US$ Note, any of the events
described in Condition 9 of that US$ Note.
EXTRAORDINARY RESOLUTION has the meaning set out in paragraph 1 of
schedule 3.
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MASTER TRUST DEED means the Master Trust Deed dated 2 December 1999
between Perpetual Trustees Victoria Limited and Interstar Securities
(Australia) Pty Limited and applying to the Trust by reason of the
Notice of Creation of Trust between Interstar Securities (Australia)
Pty Limited, the Trust Manager and the Trustee dated 31 December
2003.
NOTE DEPOSITORY AGREEMENT means the Note Depository Agreement dated
on or about the date of this deed between the Trustee, the Principal
Paying Agent and DTC.
NOTEHOLDERS REPORT means the report to be delivered by the Trust
Manager, on behalf of the Trustee, in accordance with clause 11(l)(i)
containing the information set out in schedule 4.
NOTE TRUST means the trust established in clause 1.10 of this deed.
OFFICER'S CERTIFICATE means a certificate signed by any Authorised
Signatory of the Trustee or the Trust Manager on behalf of the
Trustee, under the circumstances described in, and otherwise
complying with, the applicable requirements of section 314 of the
TIA.
OPINION OF COUNSEL means one or more written opinions of legal
counsel who may, except as otherwise expressly provided in this deed,
be employees of or counsel to the Trustee or the Trust Manager on
behalf of the Trustee and who shall be satisfactory to the Trustee or
the Note Trustee, as applicable, and which opinion or opinions shall
be addressed to the Trustee or the Note Trustee, as applicable, and
shall be in form and substance satisfactory to the Trustee or the
Note Trustee, as applicable.
SERIES NOTICE means the Series Notice dated on or about the date of
this deed between the Trustee, the Trust Manager, Interstar
Securities (Australia) Pty Limited, Perpetual Trustee Company
Limited, the Note Trustee, the Principal Paying Agent and the
Calculation Agent.
TIA means the United States Trust Indenture Act of 1939, as amended.
TRUST CORPORATION means any person:
(a) eligible for appointment as a trustee under an indenture to be
qualified pursuant to the TIA, as set forth in section 310(a) of
the TIA; and
(b) entitled by rules made under the Public Trustee Act 1906 of
England to act as a custodian trustee or entitled under any other
comparable legislation applicable to a trustee in any other
jurisdiction to carry out the functions of a custodian trustee,
and shall include The Bank of New York for so long as it complies
with section 310(a) of the TIA and carries on the business of
custodian trustee.
1.2 DEFINITIONS IN MASTER TRUST DEED, SERIES NOTICE AND CONDITIONS
(a) Words and expressions which are defined in the Master Trust
Deed (as amended by the Series Notice), the Series Notice and
the relevant Conditions (including in each case by reference to
another agreement) have the same meanings when used in this
deed unless the context otherwise requires or unless otherwise
defined in this deed.
(b) If a definition in any of the documents in paragraph (a) above
is inconsistent with any of the other documents in paragraph
(a), the definitions will prevail in the following order:
(i) definitions in this deed;
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(ii) definitions in the Series Notice;
(iii) definitions in the Master Trust Deed;
(iv) definitions in the relevant Conditions.
(c) No change to the Master Trust Deed or any other document
(including the order of payment set out in the Series Notice)
after the date of this deed will change the meaning of terms
used in this deed or adversely affect the rights of the Note
Trustee or any US$ Noteholder under this deed unless the Note
Trustee (or the relevant US$ Noteholders acting under clause
6.4, as the case may be) has agreed in writing to the changes
under this deed.
1.3 INTERPRETATION
(a) Clause 1.2 of the Master Trust Deed applies to this deed as if
set out in full and:
(i) a reference to an ASSET includes any real or personal,
present or future, tangible or intangible property or
asset and any right, interest, revenue or benefit in,
under or derived from the property or asset;
(ii) an Event of Default SUBSISTS until it has been waived in
writing by the Note Trustee;
(iii) a reference to an amount for which a person is
CONTINGENTLY LIABLE includes an amount which that person
may become actually or contingently liable to pay if a
contingency occurs, whether or not that liability will
actually arise; and
(iv) all references to costs or charges or expenses include
GST, any value added tax or similar tax charged or
chargeable in respect of the charge or expense.
(b) Where this deed refers to a provision of the TIA, the provision
is incorporated by reference in and made part of this deed. The
following terms used in the TIA have the following meanings in
this deed.
COMMISSION means the Securities and Exchange Commission of the
United States of America.
INDENTURE SECURITIES means the US$ Notes.
INDENTURE SECURITY HOLDER means a US$ Noteholder.
INDENTURE TO BE QUALIFIED means the Note Trust Deed.
INDENTURE TRUSTEE or INSTITUTIONAL TRUSTEE means the Note
Trustee.
OBLIGOR on the indenture securities means the Trustee.
Any other term 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 Commission, will
have the meaning assigned to them by such definitions.
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1.4 DETERMINATION, STATEMENT AND CERTIFICATE SUFFICIENT EVIDENCE
Except where otherwise provided in this deed any determination,
statement or certificate by the Note Trustee or an Authorised
Signatory of the Note Trustee provided for in this deed is
sufficient evidence of each thing determined, stated or certified
until proven wrong.
1.5 DOCUMENT OR AGREEMENT
A reference to:
(a) an AGREEMENT includes a Security Interest, guarantee,
undertaking, deed, agreement or legally enforceable
arrangement whether or not in writing; and
(b) a DOCUMENT includes an agreement (as so defined) in writing or
a certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as
amended, novated, supplemented or replaced from time to time, except
to the extent prohibited by this deed.
1.6 TRANSACTION DOCUMENT
This deed is a TRANSACTION DOCUMENT for the purposes of the Master
Trust Deed.
1.7 TRUSTEE AS TRUSTEE
In this deed, except where provided to the contrary:
(a) a reference to the Trustee is a reference to the Trustee in
its capacity as trustee of the Trust only, and in no other
capacity; and
(b) a reference to the assets, business, property or undertaking
of the Trustee is a reference to the assets, business,
property or undertaking of the Trustee only in the capacity
described in paragraph (a) above.
1.8 KNOWLEDGE OF TRUSTEE
In relation to the Trust, the Trustee will be considered to have
knowledge or notice of or be aware of any matter or thing if the
Trustee has knowledge, notice or awareness of that matter or thing
by virtue of the actual notice or awareness of the officers or
employees of the Trustee who have day to day responsibility for the
administration of the Trust.
1.9 KNOWLEDGE OF THE NOTE TRUSTEE
The Note Trustee will only be considered to have knowledge or notice
of or be aware of any matter or thing if the Note Trustee has
knowledge, notice or awareness of that matter or thing by virtue of
the actual notice or awareness of the officers or employees of the
Note Trustee who have day to day responsibility for the
administration of the Note Trust.
1.10 APPOINTMENT OF THE NOTE TRUSTEE
Upon execution of this deed by the Note Trustee, the Note Trustee:
(a) is appointed to act as trustee on behalf of the US$
Noteholders on the terms and conditions of this deed; and
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(b) acknowledges and declares that it:
(i) holds the sum of US$10.00 received on the date of this
deed; and
(ii) will hold the benefit of the obligations of the Trustee
under this deed,
in each case, on trust for each US$ Noteholder, in accordance with
the terms and conditions of this deed. If the Note Issue Date has
not occurred within 30 days of the Note Trustee executing this deed,
the trust constituted under this clause 1.10 will cease.
1.11 COMMENCEMENT
(a) This clause 1, clause 27 and clause 34.7 commence upon
execution of this deed by the Note Trustee.
(b) Subject to paragraph (a), this deed commences and will take
effect on the Note Issue Date.
1.12 OPINION OF COUNSEL
For the purposes of this deed, the Trustee and the Note Trustee may
where necessary seek, and rely conclusively on, any Opinion of
Counsel on any matters relating to or connected with the TIA. Where
the Trustee or the Note Trustee elects to seek and has sought the
Opinion of Counsel it shall not be required to take any action under
this deed unless and until it has received such an Opinion of
Counsel. The cost of any such Opinion of Counsel will be an EXPENSE
of the Trustee in relation to the Trust.
2. PAYMENTS ON US$ NOTES
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2.1 PRINCIPAL AMOUNT
Subject to clause 2.3:
(a) the aggregate Principal Amount of the Class A Notes is limited
to US$[*];
(b) the aggregate Principal Amount of the Class AB Notes is
limited to US$[*]; and
(c) the aggregate Principal Amount of the Class B Notes is limited
to US$[*].
2.2 COVENANT TO REPAY
(a) The Trustee covenants with the Note Trustee that the Trustee
will, in accordance with the terms of the US$ Notes (including
the relevant Conditions) and the Transaction Documents (and
subject to the terms of the Transaction Documents and the
relevant Conditions, including clause 29 of this deed and
relevant Condition 6) at the direction of the Trust Manager
on:
(i) the Maturity Date; or
(ii) each earlier date as the US$ Notes, or any of them, may
become repayable (whether in full or in part),
pay or procure to be paid unconditionally in accordance with
this deed to or to the order of the Note Trustee in US$ in New
York City in same day funds the Principal Amount of each Class
of US$ Notes repayable or, in the case of a partial payment of
the US$ Notes, the
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Principal Payment repayable, subject to and in accordance with
the terms of the US$ Notes (including the relevant
Conditions).
(b) Subject to clause 2.3 and to the terms of the US$ Notes
(including the relevant Conditions and the Transaction
Documents (including clause 29 of this deed)), the Trustee
shall, at the direction of the Trust Manager, pay or procure
to be paid unconditionally to or to the order of the Note
Trustee:
(i) any interest (both before and after any judgment or
other order of a court of competent jurisdiction), at
the respective rates calculated from time to time, in
accordance with and on the dates provided for in the
relevant Conditions; and
(ii) principal payable at the times and in the amounts
provided for in accordance with the relevant Conditions.
(c) The Note Trustee shall hold the benefit of the covenant in
this clause 2.2, the covenants in clause 11, and all other
rights of the US$ Noteholders under the US$ Notes, on trust
for the benefit of the US$ Noteholders.
2.3 DEEMED PAYMENT
Any payment of principal or interest in respect of US$ Notes to or
to the account of the Principal Paying Agent in the manner provided
in clause 3 of the Agency Agreement shall satisfy the covenant in
relation to the US$ Notes by the Trustee in this clause 2 to the
extent of that payment.
2.4 FOLLOWING EVENT OF DEFAULT
At any time after an Event of Default in respect of the US$ Notes
has occurred, or at any time after Definitive Notes have not been
issued when so required in accordance with the relevant Conditions,
the Note Trustee may:
(a) by notice in writing to the Trustee, the Trust Manager, the
Principal Paying Agent, the other Paying Agents (if any) and
the Calculation Agent require the Principal Paying Agent, the
other Paying Agents and the Calculation Agent under the Agency
Agreement either:
(i) (A) to act as Principal Paying Agent, Paying Agents and
Calculation Agent respectively of the Note Trustee
in relation to payments to be made by or on behalf
of the Note Trustee under the provisions of this
deed on the terms of the Agency Agreement except
that the Note Trustee's liability under any
provisions of the Agency Agreement for the
indemnification of the Paying Agents and
Calculation Agent shall be limited to any amount
for the time being held by the Note Trustee on the
trusts of this deed and which is available to be
applied by the Note Trustee under this deed; and
(B) hold all Definitive Notes and all amounts,
documents and records held by them in respect of
the US$ Notes to the order of the Note Trustee; or
(ii) to deliver up all Definitive Notes and all amounts,
documents and records held by them in respect of the US$
Notes, to the Note Trustee or as the Note Trustee shall
direct in that notice, other than any documents or
records which the relevant
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Paying Agent or Calculation Agent is obliged not to
release by any law or regulation; and
(b) by notice in writing to the Trustee require it to make all
subsequent payments in respect of the US$ Notes to or to the
order of the Note Trustee and not to the Principal Paying
Agent and, with effect from the issue of that notice to the
Trustee and until that notice is withdrawn, clause 2.3 shall
not apply.
A payment by the Trustee of its payment obligations on each Payment
Date under the Series Notice and the relevant Conditions to the Note
Trustee in accordance with paragraph (b) above shall be a good
discharge to the Trustee to the extent of such payment.
2.5 REQUIREMENTS OF PAYING AGENTS
The Trust Manager on behalf of the Trustee will cause each Paying
Agent to execute and deliver to the Note Trustee an instrument in
which that Paying Agent shall agree with the Note Trustee, subject to
the provisions of this clause, that such Paying Agent shall:
(a) hold on trust for the Note Trustee and the US$ Noteholders all
sums held by that Paying Agent for the payment of principal
and interest with respect to the US$ Notes until all relevant
sums are paid to the Note Trustee or the US$ Noteholders or
otherwise disposed of as provided in this deed; and
(b) immediately notify by telex or facsimile the Note Trustee, the
Trustee, the Security Trustee and the Trust Manager if the
full amount of any payment of principal or interest required
to be made by the Series Notice and the relevant Conditions in
respect of the US$ Notes is not unconditionally received by it
or to its order in accordance with the Agency Agreement.
2.6 CERTIFICATION
For the purposes of any redemption of US$ Notes under the relevant
Condition 5, the Note Trustee may rely upon an Officer's Certificate
of the Trust Manager certifying that the Trustee will be in a
position to discharge all its liabilities in respect of the relevant
US$ Notes and any amounts required under the Security Trust Deed to
be paid in priority to or pari passu with those US$ Notes and such
certificate shall be conclusive and binding on the Trustee, the Note
Trustee and the holders of those US$ Notes. The Note Trustee shall
not incur any liability as a result of relying on such certificate or
such certificate subsequently being considered invalid.
2.7 DETERMINATIONS
If the Trust Manager does not at any time for any reason determine a
Principal Payment or the Principal Amount applicable to any US$ Notes
in accordance with the relevant Condition 5(e), the Principal Payment
or Principal Amount must be determined by the Calculation Agent in
accordance with the relevant Condition 5(d)(iii) (provided that it
has the relevant information in its possession to do so) and each
such determination or calculation shall be deemed to have been made
by the Trust Manager.
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3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, US$ NOTES
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3.1 ISSUE OF GLOBAL NOTES
(a) The Class A Notes shall on initial issue be represented by a
Class A Global Note.
(b) The Class AB Notes shall on initial issue be represented by a
Class AB Global Note.
(c) The Class B Notes shall on initial issue be represented by a
Class B Global Note.
(d) The Trustee shall on the date of this deed procure the
registration in the Note Register of Cede & Co, as nominee for
the relevant Clearing Agency, as holder of each Global Note
for US$ Notes, and no Note Owner for US$ Notes will receive a
Definitive Note representing such Note Owner's interest in
such Note except as provided in clause 3.3.
3.2 TERMS OF GLOBAL NOTES
(a) Each Global Note for US$ Notes will be issued in the form or
substantially the form set out in schedule 1.
(b) The procedures relating to the exchange, authentication,
delivery, surrender, cancellation, presentation, marking up or
down of a Global Note (or part of a Global Note) and any other
matters to be carried out by the relevant parties upon
exchange (in whole or part) of any Global Note shall be made
in accordance with the provisions of the terms of that Global
Note and the normal practice of the relevant Common
Depository, the Principal Paying Agent, and the rules and
procedures of the relevant Clearing Agency from time to time.
(c) (i) The Class A Global Notes shall be issued in an aggregate
Principal Amount of US$[*].
(ii) The Class AB Global Notes shall be issued in an
aggregate Principal Amount of US$[*].
(iii) The Class B Global Notes shall be issued in an aggregate
Principal Amount of US$[*].
(d) A Global Note for US$ Notes registered in accordance with
clause 3.1(d) shall be a binding and valid obligation of the
Trustee. Until such Global Note (or part of that Global Note)
has been exchanged pursuant to this deed, it (or that part)
shall in all respects be entitled to the same benefits as a
Definitive Note (subject to its terms). Each Global Note shall
be subject to this deed.
(e) The Trustee shall, at the direction of the Trust Manager,
procure that, prior to the issue and delivery of a Global
Note, that Global Note will be authenticated manually or by
facsimile by an Authorised Signatory of the Principal Paying
Agent and no Global Note shall be valid for any purpose unless
and until so authenticated. Each Global Note must be signed
manually or by facsimile by an Authorised Signatory or
attorney of the Trustee on behalf of the Trustee and must be
authenticated manually or by facsimile by the Principal Paying
Agent.
(f) Whenever a notice or other communication to the US$
Noteholders is required under this deed to be given by the
Note Trustee, unless and until Definitive Notes have been
issued to
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the Note Owners pursuant to clause 3.3, the Note Trustee shall
give all such notices and communications specified herein to
be given to the US$ Noteholders to the relevant Clearing
Agency, and shall have no obligation to the Note Owners in
respect of the same.
(g) Unless and until the Definitive Notes have been issued to the
Note Owners pursuant to clause 3.3:
(i) the provisions of this clause shall be in full force and
effect;
(ii) the Note Registrar, the Trustee, the Trust Manager, each
Paying Agent and the Note Trustee shall be entitled to
deal with the relevant Clearing Agency for all purposes
of this deed (including the payment of principal of and
interest on the US$ Notes and the giving of instructions
or directions hereunder) as the sole holder of the US$
Notes, and shall have no obligation to any Note Owners;
(iii) to the extent that the provisions of this clause
conflict with any other provisions of this deed, the
provisions of this clause shall prevail;
(iv) the rights of Note Owners shall be exercised only
through the relevant Clearing Agency and shall be
limited to those established by law and agreements
between such Note Owners and the relevant Clearing
Agency and/or the relevant Clearing Agency Participants.
Pursuant to the Note Depository Agreement, unless and
until Definitive Notes are issued in respect of the US$
Notes pursuant to clause 3.3(a), the relevant initial
Clearing Agency will make book-entry transfers among the
relevant Clearing Agency Participants and receive and
transmit payments of principal and interest on the US$
Notes to such Clearing Agency Participants; and
(v) whenever this deed requires or permits actions to be
taken based upon instructions or directions of Note
Owners evidencing a specific percentage of the Principal
Amounts of all or a Class of US$ Notes, the relevant
Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received
instructions to such effect from the Note Owners and/or
relevant Clearing Agency Participants owning or
representing, respectively, such required percentage of
the beneficial interest in all or the relevant Class of
US$ Notes and has delivered such instructions to the
Principal Paying Agent.
3.3 ISSUE OF DEFINITIVE NOTES
If at any time the US$ Notes are represented by Global Notes and:
(a) the Principal Paying Agent advises the Trust Manager in
writing that DTC is no longer willing or able to discharge
properly its responsibilities as depository for the US$ Notes
and the Trust Manger is unable to locate a qualified
successor; or
(b) the Trustee, at the direction of the Trust Manager, advises
the Principal Paying Agent in writing that it has elected to
terminate the book-entry system through DTC; or
(c) after the occurrence of an Event of Default, the Note Trustee,
at the written direction of Noteholders holding a majority of
the outstanding Principal Amount of the US$ Notes,
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advises the Trustee and the Principal Paying Agent that the
continuation of a book-entry system is no longer in the best
interests of the US$ Noteholders,
then the Trust Manager must direct the Trustee to, and the Trustee
must (at its expense), within 30 days of becoming aware of the
occurrence of the relevant event, issue Definitive Notes in exchange
for the whole of the outstanding interest in each Global Note for US$
Notes.
3.4 NOTICE OF EXCHANGE EVENTS
(a) The Trustee or the Trust Manager shall notify the Note Trustee
forthwith if the Trustee or the Trust Manager (as the case may
be) becomes actually aware of any of the events referred to in
clause 3.3 and shall, unless the Note Trustee agrees
otherwise, promptly give notice of the event and of the
Trustee's obligation to issue Definitive Notes under clause
3.3 to the relevant Note Owners in accordance with the
relevant Condition 12.
(b) The Note Trustee shall notify the Trustee and the Trust
Manager forthwith if the Note Trustee becomes actually aware
of any of the events referred to in clause 3.3.
3.5 FORM OF DEFINITIVE NOTES
(a) Each Definitive Note for US$ Notes will be issued in the form
or substantially the form set out in schedule 2.
(b) The Definitive Notes for US$ Notes shall be issued in minimum
denominations of US$100,000 and integral multiples of US$1,000
in excess thereof each (serially numbered) and shall be issued
on the terms of the relevant Conditions.
(c) Title to Definitive Notes for US$ Notes shall pass by
registration in accordance with the Master Trust Deed and this
deed.
(d) Definitive Notes shall be signed manually or in facsimile by
an Authorised Signatory or an attorney of the Trustee. The
Trustee may use the facsimile signature of any person who at
the date of printing of Definitive Notes is an Authorised
Signatory of the Trustee notwithstanding that at the time of
issue of any Definitive Notes that person has ceased for any
reason to be an Authorised Signatory of the Trustee and
Definitive Notes so executed shall be binding and valid
obligations of the Trustee. The Trustee shall procure that an
Authorised Signatory of the Principal Paying Agent
authenticates each Definitive Note. No Definitive Note
relating to it shall be valid for any purpose unless and until
so authenticated.
3.6 STAMP AND OTHER TAXES
The Trustee will pay any stamp and other duties and Taxes payable in
Australia, the United Kingdom or the United States on or in
connection with:
(a) the execution of the Transaction Documents;
(b) the constitution and original issue and delivery of the US$
Notes;
(c) any action taken by the Note Trustee or (where permitted under
this deed so to do), a Clearing Agency or any Note Owner to
enforce the provisions of the US$ Notes or the Transaction
Documents; and
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(d) the creation of the security constituted under the Security
Trust Deed.
3.7 INDEMNITY FOR NON-ISSUE
If the Trustee is required to issue, or procure the issue of,
Definitive Notes in respect of any US$ Notes following an event
specified in clause 3.3(b) but fails to do so within 30 days of the
Trustee or the Trust Manager becoming actually aware of the
occurrence of the relevant event then the Trustee shall (subject to
clause 29 of this deed) indemnify the Note Trustee, the relevant US$
Noteholders and the Note Owners and keep them indemnified against any
loss or damage incurred by any of them if the amount received by the
Note Trustee, the relevant US$ Noteholders or the Note Owners is less
than the amount that would have been received had Definitive Notes
been issued within the 30 days referred to above. If and for so long
as the Trustee discharges its obligations under this indemnity, the
breach by the Trustee of the provisions of clause 3.3(b) shall be
deemed to be cured. The Trust Manager must promptly advise the
Trustee if it becomes actually aware of the occurrence of the
relevant event.
3.8 NOTE REGISTER AND NOTE REGISTRAR
(a) The Note Registrar, on behalf of the Trustee, shall keep or
cause to be kept the Note Register in which, subject to such
reasonable regulations as it may prescribe, the Note
Registrar, on behalf of the Trustee, shall provide for the
registration of the US$ Notes and the registration of
transfers of US$ Notes. The Note Registrar will be responsible
for registering US$ Notes and transfers of US$ Notes as
provided in this deed and the Agency Agreement. The Trustee
may appoint another person as Note Registrar in accordance
with the Agency Agreement.
(b) Upon surrender for registration of the transfer of any US$
Note at the office or agency of the Trustee to be maintained
as provided in clause 11(e), if the requirements of Section
8-401(a) of the Uniform Commercial Code of New York (the UCC)
are met the Trustee must execute and upon its written request
the Principal Paying Agent must authenticate and the US$
Noteholder shall obtain from the Note Trustee, in the name of
the designated transferee or transferees, one or more new US$
Notes, in any authorised denominations and of a like aggregate
principal amount.
(c) At the option of the US$ Noteholders, US$ Notes may be
exchanged for other US$ Notes in any authorised denominations
and a like aggregate principal amount, upon surrender of the
US$ Notes to be exchanged at any such office or agency
referred to in paragraph (b) above. Whenever any US$ Notes are
so surrendered for exchange, if the requirements of Section
8-401(a) of the UCC are met the Trustee must execute and upon
its written request the Principal Paying Agent must
authenticate and the US$ Noteholder shall obtain from the Note
Trustee, the US$ Notes which the US$ Noteholder making the
exchange is entitled to receive.
(d) Every US$ Note presented or surrendered for registration of
transfer or exchange shall be:
(i) duly endorsed by, or be accompanied by a written
instrument of transfer in a form satisfactory to the
Note Registrar duly executed by the transferring US$
Noteholder or its attorney duly authorised in writing,
with such signature
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guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note Registrar which
requirements include membership or participation of
Securities Transfer Agents Medallion Program (STAMP) or
such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in
substitution for, Stamp, all in accordance with the
Exchange Act; and
(ii) accompanied by such other documents as the Note
Registrar may require.
(e) No service charge shall be made to a US$ Noteholder for any
registration of transfer or exchange of US$ Notes, but the
Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of
US$ Notes.
(f) Notwithstanding the preceding provisions of this clause, the
Trustee shall not be required to make and the Note Registrar
need not register transfers or exchanges of US$ Notes selected
for redemption or of any US$ Note for a period of 10 days
preceding the due date for any payment with respect to the US$
Note.
3.9 US TAX TREATMENT
It is the intention of the parties to this deed and, by their holding
of the US$ Notes, the US$ Noteholders, that the US$ Notes be treated
for United States federal income tax purposes as debt denominated in
US dollars. To the extent that the US$ Notes are not treated, for
United States federal income tax purposes as debts denominated in US
dollars, the Note Trustee, by entering into this deed and each US$
Noteholder, by its acceptance of its US$ Note hereby identify the US$
Noteholder's interest in:
(a) the Class A A$ Equivalent of the Principal Amount of the
relevant Class A Notes (the CLASS A PRINCIPAL AMOUNT) and the
Class A A$ Interest Amount payable with respect to those Class
A Notes (the CLASS A INTEREST, and together with the Class A
Principal Amount, the CLASS A HYPOTHETICAL A$ SECURITY);
(b) the Class AB A$ Equivalent of the Principal Amount of the
relevant Class AB Notes (the CLASS AB PRINCIPAL AMOUNT) and
the Class AB A$ Interest Amount payable with respect to those
Class AB Notes (the CLASS AB INTEREST, and together with the
Class AB Principal Amount, the CLASS AB HYPOTHETICAL A$
SECURITY);
(c) the Class B A$ Equivalent of the Principal Amount of the
relevant Class B Notes (the CLASS B PRINCIPAL AMOUNT) and the
Class B A$ Interest Amount payable with respect to those Class
B Notes (the CLASS B INTEREST, and together with the Class B
Principal Amount, the CLASS B HYPOTHETICAL A$ SECURITY); and
(d) each related Currency Swap,
for the purposes of Code Section 988(d)(2)(B) and Treasury regulation
section 1.988-5(a)(8) as a "qualified hedging transaction" as defined
in Treasury regulation section 1.988-5(a)(1). For such purposes:
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(i) each of the Class A Hypothetical A$ Security, the Class
AB Hypothetical A$ Security and the Class B Hypothetical
A$ Security represents a qualifying debt instrument and
each related Currency Swap, a hedge;
(ii) each qualifying debt instrument and each hedge were
acquired and entered into, respectively, as of the Note
Issue Date (or, in the case of any subsequent
acquisition of a US$ Note, as of the date of such
subsequent acquisition);
(iii) each qualifying debt instrument and each hedge are
hereby identified as constituting a qualified hedging
transaction;
(iv) no amount must be deferred by reason of legging into
integrated treatment;
(v) each qualified debt instrument is described by the
definitions of Class A Principal Amount and Class A
Interest, Class AB Principal Amount and Class AB
Interest or Class B Principal Amount and Class B
Interest (as the case may be) and the definitions
relating thereto applying in this deed, and each hedge
is described by the definition of Currency Swap applying
in this deed; and
(vi) the cash flow resulting from the treatment of each
qualifying debt instrument and each hedge as a qualified
hedging transaction is the US dollar cash flow that is
payable under the terms of the US$ Notes.
4. COVENANT OF COMPLIANCE
--------------------------------------------------------------------------------
Each of the Trustee and the Trust Manager covenants with the Note
Trustee that it will comply with and perform and observe all
provisions of the Transaction Documents which are expressed to be
binding on it for the benefit of the Note Trustee or any US$
Noteholder. The Transaction Documents to which the Trustee and the
Note Trustee are a party and the relevant Conditions shall be binding
on the Trustee, the Note Trustee and the US$ Noteholders. The Note
Trustee (or the US$ Noteholders, under clause 6.4, as the case may
be) is entitled to enforce the obligations of the Trustee under the
US$ Notes and the relevant Conditions as if the same were set out and
contained in this deed (which shall be read and construed as one
document with the US$ Notes). The provisions contained in schedule 3
shall have effect as if set out in this deed.
5. CANCELLATION OF US$ NOTES
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5.1 CANCELLATION
The Trustee shall procure that all US$ Notes:
(a) which have been redeemed in full; or
(b) in the case of any Definitive Note, which, being mutilated or
defaced, have been surrendered and replaced under the relevant
Condition 11,
shall forthwith be cancelled by or on behalf of the Trustee.
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5.2 RECORDS
The Trustee shall procure that:
(a) the Principal Paying Agent keeps a full and complete record of
all US$ Notes and of their redemption, payment, exchange or
cancellation (as the case may be) and of all replacement US$
Notes, issued in substitution for lost, stolen, mutilated,
defaced or destroyed Definitive Notes; and
(b) such records shall be made available to the Note Trustee on
reasonable notice and during business hours promptly following
the Note Trustee's request for the same.
6. ENFORCEMENT
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6.1 ACTIONS FOLLOWING EVENT OF DEFAULT
(a) At any time while an Event of Default is subsisting the Note
Trustee may (subject to the Security Trust Deed, to clauses
6.3 and 7, and to the relevant Conditions 9 and 10) at its
discretion and without further notice and must, if so directed
or requested under clause 7.1, take any action available to it
to direct the Security Trustee to:
(i) institute any proceedings against the Trustee and/or the
Trust Manager which are permitted under the Transaction
Documents;
(ii) enforce the security created under the Security Trust
Deed; and
(iii) enforce repayment of the US$ Notes together with accrued
interest and any other moneys payable to the Note
Trustee or the US$ Noteholders under the Transaction
Documents.
(b) The Note Trustee must, within 90 days of becoming aware of the
occurrence of an Event of Default, notify each US$ Noteholder
of the occurrence of that Event of Default unless:
(i) the Event of Default is not an Event of Default under
clause 8.1(a) of the Security Trust Deed; and
(ii) it determines (and only for so long as it so determines)
in good faith that withholding such notice is in the
interests of the US$ Noteholders.
6.2 EVIDENCE OF DEFAULT
If the Security Trustee or the Note Trustee takes any action against
the Trustee to enforce any of the provisions of any US$ Notes, or
this deed, proof that as regards any US$ Note, the Trustee has not
paid any principal or interest due in respect of that US$ Note shall
(unless the contrary is proved) be sufficient evidence that the
Trustee has not paid that principal or interest on all other US$
Notes in respect of which the relevant payment is then due.
6.3 RESTRICTIONS ON ENFORCEMENT
(a) If any of the US$ Notes remain outstanding and are due and
payable otherwise than by reason of a default in payment of
any amount due on the US$ Notes, the Note Trustee
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must not vote under the Security Trust Deed to, or otherwise
direct the Security Trustee to, dispose of the Mortgaged
Property (as defined in the Security Trust Deed) unless
either:
(i) 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 institution
selected by the Note Trustee in its absolute discretion
(the cost of which advice the Trustee indemnifies the
Note Trustee) that a sufficient amount would be realised
to discharge in full all amounts owing to the US$
Noteholders and any other amounts payable by the Trustee
ranking in priority to or pari passu with the US$ Notes;
or
(ii) 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 in its sole and absolute discretion
(the cost of which advice the Trustee indemnifies the
Note Trustee), that the cash flow receivable by the
Trustee (or the Security Trustee under the Security
Trust Deed) will not (or that there is a significant
risk that it will not) be sufficient, having regard to
any other relevant actual, contingent or prospective
liabilities of the Trustee, to discharge in full in due
course all the amounts referred to in paragraph (i)
relating to the Trust.
(b) Neither the Note Trustee (except in the case of negligence,
fraud or wilful default by it) nor the Security Trustee
(except in the case of negligence, fraud or wilful default by
it) will be liable for any decline in the value, nor any loss
realised upon any sale or other dispositions made under the
Security Trust Deed, of any Mortgaged Property 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
Trustee or any third party in respect of the Trustee or the
US$ Notes or relating in any way to the Mortgaged Property.
Without limitation, neither the Note Trustee nor the Security
Trustee shall 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 paragraph (a).
6.4 ACTION BY NOTEHOLDERS
Notwithstanding any other provision of this deed, if the Note
Trustee, having become bound to take steps and/or proceed under
clause 6.1 and/or the Security Trust Deed, fails to do so within a
reasonable time and such failure is continuing, the US$ Noteholders
may proceed directly against the Trustee but then only if and to the
extent the US$ Noteholders are able to do so under the Transaction
Documents.
7. PROCEEDINGS
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7.1 ACTING ONLY ON DIRECTION
The Note Trustee shall not be bound to vote under the Security Trust
Deed, or otherwise direct the Security Trustee under the Security
Trust Deed, or take any proceedings, actions or steps under, or any
other proceedings pursuant to or in connection with, the Security
Trust Deed, this deed, any US$ Notes, unless directed or requested to
do so:
(a) by an Extraordinary Resolution of the relevant Class of US$
Noteholders, as appropriate; or
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(b) in writing by the holders of at least 75% of the aggregate
Principal Amount of the relevant Class of US$ Noteholders, as
appropriate,
and then only if the Note Trustee is indemnified to its satisfaction
against all action, 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.
If an Extraordinary Resolution of Voting Mortgagees (as defined in
the Security Trust Deed) elects not to direct the Security Trustee to
enforce the Security Trust Deed, in circumstances where the Security
Trustee could enforce, the Note Trustee must, at the direction in
accordance with (a) and/or (b) above of the US$ Noteholders, direct
the Security Trustee to enforce the Security Trust Deed on behalf of
the Noteholders.
7.2 SECURITY TRUSTEE ACTING
Only the Security Trustee may enforce the provisions of the Security
Trust Deed and neither the Note Trustee nor any US$ Noteholder is
entitled to proceed directly against the Trustee to enforce the
performance of any of the provisions of the Security Trust Deed or
the US$ Notes (including the relevant Conditions), provided that if
the Security Trustee having become bound to take steps and/or to
proceed under the Security Trust Deed, fails to do so within a
reasonable time and such failure is continuing, the Note Trustee
and/or US$ Noteholders may proceed directly against the Trustee but
then only if and to the extent the US$ Noteholders are able to do so
under the Transaction Documents. The Security Trustee shall comply
with all directions given to it by the Note Trustee pursuant to any
power to give directions granted to the Note Trustee pursuant to this
deed or to the Security Trust Deed provided that the Security Trustee
has the power under the Security Trust Deed to take the action
contemplated by the direction, and the Security Trustee shall not be
liable for any direct and indirect costs, expenses, losses, damages,
liabilities or actions arising or resulting from any action or
conduct undertaken or not taken by the Security Trustee or its
officers, employees or agents including as a consequence of following
those directions.
7.3 NOTE TRUSTEE ALONE ENTITLED TO ACT
Subject to clauses 36.4, 6.4 and 7.2, only the Note Trustee may:
(a) direct the Security Trustee to enforce or not to enforce the
Security Trust Deed; or
(b) enforce the provisions of this deed, the US$ Notes (including
the relevant Conditions),
and no US$ Noteholder is entitled to take any of the above actions or
to proceed directly against the Trustee to enforce the performance of
any of the provisions of this deed or the US$ Notes (including the
relevant Conditions).
7.4 AVAILABLE AMOUNTS
For the purpose of Condition 5(f) the Note Trustee shall not be
satisfied that the Trustee will be in a position to discharge the
liabilities referred in their relevant Conditions unless, either:
(a) the Trustee will have available to it sufficient cash in the
Collection Account and sufficient Authorised Investments which
will mature on or before the relevant Payment Date after
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making any other payments or provisions having priority in
order of application under the applicable provisions of the
Security Trust Deed; or
(b) the Trustee has entered into a legally binding contract with
an entity either whose long term unsecured and unguaranteed
debt is rated AA- by S&P and Aa3 by Moody's or whose short
term unsecured and unguaranteed debt securities are rated A-1
by S&P and P-1 by Moody's to provide sufficient cash on or
before the relevant Payment Date to enable the Trustee to
discharge the relevant liabilities,
and in each circumstance the Trust Manager has certified to the Note
Trustee that the requirements of clause 7.4(a) or (b) have been met
and the Note Trustee shall be entitled to rely on such certification.
7.5 NO LIABILITY
In giving any direction to the Security Trustee under this deed or
the 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 any failure by the Security Trustee so to
comply.
8. NOTICE OF PAYMENT
--------------------------------------------------------------------------------
The Principal Paying Agent shall give notice to the relevant US$
Noteholders in accordance with the relevant Condition 12 of the day
fixed for any payment to them of amounts received by the Note Trustee
under clause 16 of the Security Trust Deed. Those payments may be
made in accordance with the relevant Condition 6 as appropriate (in
the case of Definitive Notes) or to the order of the registered
holder of the US$ Notes (in the case of any Class A Global Note,
Class AB Global Note or Class B Global Note) and payment of those
amounts by the Note Trustee to the Principal Paying Agent for that
purpose shall be a good discharge to the Note Trustee.
9. INVESTMENT BY NOTE TRUSTEE
--------------------------------------------------------------------------------
Moneys held by the Note Trustee under the trusts of this deed may be
invested in the name or under the control of the Note Trustee in any
Authorised Investments and the Note Trustee may at any time or times
vary any Authorised Investments into other Authorised Investments and
shall not be responsible for any loss due to depreciation in value or
otherwise resulting from any Authorised Investments made by it. At
the direction of the Trust Manager, the Note Trustee must invest any
moneys held by the Note Trustee under the trusts of this deed in such
Authorised Investments as the Trust Manager may specify from time to
time and the Note Trustee shall not be responsible for any loss due
to depreciation in value or otherwise resulting from any Authorised
Investments made by it in compliance with any such direction. The
Note Trustee need only account for interest on money held on deposit
with itself equal to the highest rate payable by it to an independent
depositor in respect of comparable deposits.
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10. PARTIAL PAYMENTS
--------------------------------------------------------------------------------
On any payment of amounts by the Trustee, the Security Trustee or the
Note Trustee in accordance with the Series Notice, the Conditions in
relation to the US$ Notes or the Security Trust Deed (other than the
payment in full against surrender of a US$ Note) the Trustee, the
Security Trustee or the Note Trustee (as the case may be) shall, or
shall procure that, the Note Register relating to the US$ Note in
respect of which such payment is made shall be amended to evidence
the amount and the date of payment.
11. COVENANTS BY THE TRUSTEE AND TRUST MANAGER
--------------------------------------------------------------------------------
Each of the Trustee and the Trust Manager severally undertakes to the
Note Trustee, on behalf of the US$ Noteholders, as follows in
relation to the Trust for so long as any of the US$ Notes remain
outstanding (except to the extent that the Note Trustee otherwise
consents):
(a) (MASTER TRUST DEED COVENANTS) It will comply with its
covenants in clause 17, 21 and 28 of the Master Trust Deed (as
the case may be).
(b) (TRANSACTION DOCUMENTS)
(i) It will comply with its material obligations under the
Transaction Documents.
(ii) It will use its reasonable endeavours (to the extent
that it is able to do so under the Master Trust Deed) to
procure that each other party to a Transaction Document
complies with and performs its obligations under that
Transaction Document.
(c) (INFORMATION) It will give to the Note Trustee a copy of any
information in its possession relating to the Trust as soon as
reasonably practicable in connection with the exercise and
performance of its powers and obligations under this deed and
which the Trustee or the Trust Manager (as the case may be)
reasonably considers has a material bearing on the interest of
the US$ Noteholders.
(d) (NOTIFY EVENTS OF DEFAULT)
(i) It will promptly notify the Note Trustee if it has
knowledge or notice of or is aware of the occurrence of
an Event of Default, Trustee's Default or Trust
Manager's Default or, with respect to the Trust Manager
only, an event that, with the giving of notice or the
passage of time would constitute an Event of Default,
Trustee's Default or Trust Manager's Default (POTENTIAL
DEFAULT) including full details (to the extent known,
without making any enquiry) of that Event of Default,
Trustee's Default or Trust Manager's Default or, in
respect of the Trust Manager only, Potential Default (as
the case may be).
(ii) In addition to its obligations under sub-clause item
(d)(i) of this clause 11, it will confirm to the Note
Trustee, on each anniversary of this deed:
(A) whether or not the Trust Manager or the Trustee is
aware that any Event of Default or, with respect
to the Trust Manager only, Potential Default has
occurred; and
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(B) any other matter which is required to be notified
to the Note Trustee under the Transaction
Documents and which has not previously been so
notified.
(e) (MAINTENANCE OF OFFICE OR AGENCY) The Trust Manager on behalf
of the Trustee will maintain in the Borough of Manhattan, The
City of New York an office or agency where US$ Notes may be
surrendered for registration of transfer or exchange.
The Trustee hereby initially appoints the Note Registrar to
serve as its agent for the foregoing purposes. The Note
Registrar shall act solely for, and as agent of, the Trustee
and shall not have any obligations towards or relationship or
agency or trust with any other person in respect of its
appointment under this sub-paragraph (e). The Trust Manager
will give prompt written notice to the Note Trustee of the
location, and of any change in the location, of any such
office or agency. If at any time the Trust Manager on behalf
of the Trustee shall fail to maintain any such office or
agency or shall fail to furnish the Note Trustee with the
address thereof, such surrenders may be made or served at the
relevant Corporate Trust Office, and the Trustee hereby
appoints the Note Trustee as its agent to receive all such
surrenders.
(f) (CALCULATION AGENT) It will procure that, so long as any of
the US$ Notes remain outstanding, there will at all times be a
Calculation Agent.
(g) (PRINCIPAL PAYING AGENT) It will procure that, so long as any
of the US$ Notes remain outstanding, there will at all times
be a Principal Paying Agent.
(h) (CHANGE TO PAYING AGENTS OR CALCULATION AGENT) It will give
notice to the US$ Noteholders in accordance with the Agency
Agreement and the relevant Condition 12 of:
(i) any appointment, resignation or removal of any Paying
Agent (other than the appointment of the initial
Principal Paying Agent and any other Paying Agent) or
Calculation Agent;
(ii) any change to any Paying Agent's Paying Office (as
defined in the Agency Agreement); or
(iii) any change to the Calculation Agent's Specified Office
(as defined in the Agency Agreement).
(i) (NOTICES) It will promptly give to the Note Trustee, or ensure
that the Note Trustee receives for its approval, two copies of
the form of every notice prior to the notice being given to
the US$ Noteholders in accordance with the relevant Condition
12.
(j) (ANNUAL STATEMENT AS TO COMPLIANCE) The Trustee (or the Trust
Manager on its behalf) will deliver to the Note Trustee,
within 120 days after the end of each fiscal year of the Trust
(commencing on [*]), and otherwise in compliance with the
requirements of section 314(a)(4) of the TIA, an Officer's
Certificate stating that:
(i) a review of the activities of the Trustee in respect of
the Trust during such year and of performance under the
Transaction Documents has been made under supervision of
the person signing the Officer's Certificate (the
SIGNATORY); and
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(ii) to the best of the knowledge of the Signatory, based on
the review referred to in paragraph (i), the Trustee has
complied with all conditions and covenants under the
Transaction Documents throughout the relevant year, or,
if there has been a default in the compliance of any
such condition or covenant, specifying each such default
known to the Signatory of the nature and status of the
default.
For the purposes of this clause 11(j) compliance shall be
determined without regard to any period of grace or
requirement of notice under the Transaction Documents.
(k) (OPINIONS AS TO TRUST ESTATE) On the Note Issue Date, the
Trustee (or the Trust Manager on its behalf) shall furnish to
the Note Trustee an Opinion of Counsel (who may be of counsel
for the Trustee) either stating that in the opinion of such
counsel the Security Trust Deed and any other requisite
documents has been properly recorded and filed so as to make
effective the Security Interest intended to be created by the
Security Trust Deed, and reciting the details of such action,
or stating that in the opinion of such counsel no such action
is necessary to make such Security Interest effective.
Within 120 days after the end of each fiscal year commencing
on [*] the Trustee (or the Trust Manager on its behalf) shall
furnish to the Note Trustee an Opinion of Counsel (who may be
of counsel for the Trustee) either stating that in the opinion
of such counsel such action has been taken with respect to the
recording, filing, re-recording, and refiling of the Security
Trust Deed and any other requisite documents as is necessary
to maintain the Security Interest created by the Security
Trust Deed, and reciting the details of such action, or
stating that in the opinion of such counsel no such action is
necessary to maintain such Security Interest.
(l) (NOTEHOLDERS REPORT)
(i) The Trust Manager, on behalf of the Trustee, shall
deliver to the Principal Paying Agent and the Note
Trustee on each Payment Date the Noteholders Report for
the related Collection Period, with written instructions
for the Note Trustee and the Principal Paying Agent to
forward the Noteholders Report to each US$ Noteholder.
(ii) Each Noteholder Report shall contain the information set
out in schedule 4.
(m) (LISTING) It will use its best endeavours to:
(i) obtain and maintain a quotation or listing of the US$
Notes on any Stock Exchange or Stock Exchanges or
securities market or markets as the Trust Manager (with
the prior written approval of the Note Trustee, that
approval not to be unreasonably withheld or delayed)
decides and following that quotation or listing enter
into a deed supplemental to this deed to effect such
consequential amendments to this deed necessary to
comply with the requirements of any such Stock Exchange
or securities market; and
(ii) procure that there will at all times be furnished to the
relevant Stock Exchange or securities market any
information which such Stock Exchange or securities
market may require to be furnished in accordance with
its requirements.
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12. REMUNERATION OF NOTE TRUSTEE
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12.1 FEE
The Trustee shall pay to the Note Trustee a fee agreed between them
or as agreed between the Note Trustee and the Trust Manager (on
behalf of the Trustee).
12.2 ADDITIONAL REMUNERATION
If the Note Trustee gives a notice under the relevant Condition 9 or
it undertakes duties which it considers expedient or necessary under
this deed, or which the Trustee requests it to undertake and which
duties the Note Trustee, the Trust Manager and the Trustee agree to
be of an exceptional nature or otherwise outside the scope of the
normal duties of the Note Trustee under this deed, the Trustee shall
pay to the Note Trustee any additional remuneration as they agree.
In the event of the Note Trustee, the Trust Manager and the Trustee
failing to agree as to any of the matters in this clause 12.2, such
matter shall be determined by a merchant or investment bank (acting
as an expert and not as an arbitrator) selected by the Note Trustee
and approved by the Trustee or, failing such approval, nominated (on
the application of the Note Trustee or the Trustee) by the President
for the time being of The Law Society of New South Wales (the
expenses involved in such nomination and the fees of such merchant or
investment bank being shared equally by the Trustee and the Note
Trustee) and the determination of any such merchant or investment
bank shall be final and binding upon the Note Trustee, the Trust
Manager and the Trustee and shall be payable by the Trustee to the
Note Trustee.
12.3 COSTS, EXPENSES
(a) Subject to clause 34.8, the Trustee shall also reimburse, pay
or discharge all reasonable costs, charges, liabilities and
expenses and any stamp and other Taxes or duties incurred or
paid by the Note Trustee (or the US$ Noteholders acting under
clause 6.4 (as the case may be)) in connection with
undertaking its duties under the Transaction Documents
(including in relation to any Hedge Agreement and the fees and
expenses of its counsel) and in connection with any legal
proceedings brought by the Note Trustee (or the US$
Noteholders acting under clause 6.4 (as the case may be)) to
enforce any obligation under this deed or the US$ Notes.
(b) Without prejudice to the right of indemnity by law given to
trustees, to the extent the Trustee is itself entitled to be
indemnified and, subject to clause 29, the Trustee indemnifies
the Note Trustee (or the US$ Noteholders acting under clause
6.4 (as the case may be)) and every other person properly
appointed by it or any of them under this deed from and
against all liabilities, losses, damages, costs, expenses,
actions, proceedings, claims and demands incurred by or made
against it or him in the execution of the trusts of this deed
or of their powers or in respect of any matter or thing done
or omitted in any way relating to this deed.
12.4 OVERDUE RATE
All sums payable by the Trustee under clause 12.3 shall survive the
termination of this deed and the resignation or removal of the Note
Trustee and be payable by the Trustee on the next Payment Date
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in the order set out in the Series Notice or (if applicable) the
Security Trust Deed and shall carry interest at the rate of LIBOR
plus 2% from the due date. Any amount payable shall carry interest at
that rate from the due date to the date of actual payment.
12.5 CONTINUING OBLIGATION
Unless otherwise specifically stated in any discharge relating to
this deed the provisions of this clause shall continue in full force
and effect notwithstanding such discharge and even if the Note
Trustee has ceased to be the Note Trustee for any reason including
but not limited to those contemplated in clause 23 it will be
entitled to all rights arising to it prior to it ceasing to be the
Note Trustee.
13. LIMITED RESPONSIBILITIES OF NOTE TRUSTEE
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13.1 LIMITED RESPONSIBILITIES
Subject to clauses 13.2 and 14, it is expressly declared as follows.
(a) Any advice, opinion or information obtained by the Note
Trustee from any lawyer, valuer, accountant, banker, broker,
credit-rating agency, lead manager or other expert may be sent
or obtained by letter, telex, telegram, facsimile
transmission, email or cable and the Note Trustee shall not be
liable for acting on any advice, opinion or information
purporting to be conveyed by any such letter, telex, telegram,
facsimile transmission, email or cable although the same shall
contain some error or shall not be authentic.
(b) The Note Trustee may call for and shall be at liberty to
accept as sufficient evidence of any fact or matter or the
expediency of any transaction or thing a certificate signed by
two Authorised Signatories of the Trustee or the Trust Manager
(as the case may be) and the Note Trustee shall not be bound
in any such case to call for further evidence or be
responsible for any loss that may be occasioned by the Note
Trustee acting on that certificate.
(c) The Note Trustee is at liberty to hold or to place this deed
and any other documents relating to this deed in any part of
the world with any banker or banking company or company whose
business includes undertaking the safe custody of documents or
lawyer or firm of lawyers reasonably considered by the Note
Trustee to be of good repute and except in the case of fraud,
negligence or wilful default of the Note Trustee, the Note
Trustee shall not be responsible for any loss, expense or
liability which may be suffered as a result of any assets
secured by the Security Trust Deed, Mortgaged Property or any
deed or documents of title thereto, being uninsured or
inadequately insured or being held by or to the order of any
clearing organisations or their operators or by any person on
behalf of the Note Trustee if prudently chosen in accordance
with the Transaction Documents.
(d) The Note Trustee shall not be responsible for the application
of the proceeds of the issue of any of the US$ Notes by the
Trustee or any moneys borrowed by the Trustee under any
Transaction Document or the exchange of any Global Note for
any Definitive Notes.
(e) Except as otherwise provided in this deed or any other
Transaction Documents to which it is a party, the Note Trustee
shall not be bound to give notice to any person of the
execution
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of this deed or any of the Transaction Documents or any
transaction contemplated hereby or thereby or to take any
steps to ascertain whether any Event of Default has happened
and, until it has actual knowledge or express notice to the
contrary, the Note Trustee is entitled to assume that no Event
of Default has happened and that the Trustee and each other
party to any Relevant Document is observing and performing all
the obligations on its part contained in the US$ Notes and
under this deed or, as the case may be, the Security Trust
Deed or any other Transaction Document to which it is a party.
(f) Save as expressly otherwise provided in this deed or the
Transaction Documents:
(i) the Note Trustee shall have absolute and uncontrolled
discretion as to the exercise of the discretions vested
in the Note Trustee by this deed and the Transaction
Documents (the exercise of which as between the Note
Trustee and the US$ Noteholders shall be conclusive and
binding on the US$ Noteholders) but whenever the Note
Trustee is under the provisions of this deed or the
Transaction Documents bound to act at the request or
direction of the US$ Noteholders, or any of them, the
Note Trustee shall nevertheless not be so bound unless
it is first indemnified or accepts security to its
satisfaction against all actions, proceedings, claims
and demands to which it may render itself liable and
all costs, charges, damages, expenses and liabilities
which it may incur by so doing; and
(ii) in the absence of fraud, negligence or wilful default,
the Note Trustee shall not be in any way responsible
for any loss (whether consequential or otherwise),
costs, damages or inconvenience that may result from
the exercise or non-exercise of any powers, authorities
and discretions vested in it.
(g) The Note Trustee shall not be liable for acting upon any
resolution purporting to have been passed at any meeting of
the US$ Noteholders in respect of which minutes have been made
and signed even though subsequently it may be found that there
was some defect in the constitution of the meeting or the
passing of the resolution or that for any reason the
resolution was not valid or binding upon the US$ Noteholders.
(h) The Note Trustee shall not be liable to the Trustee or any US$
Noteholder by reason of having accepted as valid or not having
rejected any entry in the Note Register in respect of a
Definitive Note for a US$ Note which is subsequently found to
be incorrect and the Note Trustee shall be at liberty to
accept and place full reliance on the Note Register as
complete and accurate evidence to the effect that at any
particular time or through any particular period any
particular person is, was, or will be, shown in its records as
entitled to a particular number of US$ Notes.
(i) Any consent or approval given by the Note Trustee for the
purpose of this deed, the relevant Conditions and any
Transaction Document may be given on any terms and subject to
any conditions as the Note Trustee thinks fit and despite
anything to the contrary contained in this deed, any
Transaction Document or the relevant Conditions may be given
retrospectively.
(j) Save as otherwise expressly provided in this deed, the Note
Trustee shall not (unless and to the extent ordered so to do
by a court of competent jurisdiction) be required to disclose
to
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any US$ Noteholder or any Mortgagee, any information made
available to the Note Trustee by the Trustee, the Trust
Manager or any other person in connection with the trusts of
this deed and no US$ Noteholder shall be entitled to take any
action to obtain from the Note Trustee any such information.
(k) Where it is necessary or desirable for any purpose in
connection with this deed to convert any sum from one currency
to another it shall (unless otherwise provided by this deed or
any other Transaction Document or required by law) be
converted at the rate or rates, in accordance with the method
and as at the date for the determination of the rate of
exchange, as may be agreed by the Note Trustee in consultation
with the Trustee and the Trust Manager as relevant and any
rate, method and date so agreed shall be binding on the
Trustee and the US$ Noteholders.
(l) Subject to clauses 6.4 and 7.4, the Note Trustee may certify
in good faith, whether or not any of the events set out in
paragraphs (b) to (g) of the relevant Condition 9 or any
breach under clause 8 of the Security Trust Deed is in its
opinion materially prejudicial to the interests of the
relevant US$ Noteholders and may certify, in relation to the
event set out in paragraph (a) of the relevant Condition 9 in
relation to any payment of interest on the US$ Notes that the
Trustee had, on the due date for payment of the amount of
interest in question, sufficient cash to pay, in accordance
with the provisions of the Series Notice or the Security Trust
Deed, all interest (after payment of all sums which are
permitted under the Series Notice or the Security Trust Deed
to be paid in priority to or pari passu with them) and that
certificate shall be conclusive and binding upon the Trustee
and the US$ Noteholders. The Note Trustee shall have no
liability to the Trustee, any US$ Noteholder or any other
person in relation to any such certificate or in relation to
any delay or omission in providing such certificate. In giving
any certificate relating to paragraph (a) of the relevant
Condition 9, the Note Trustee may rely on any determination
made by any independent accountants of recognised standing in
Australia and any such determination shall be conclusive and
binding on the Trustee and the US$ Noteholders. The Trustee
shall pay the Note Trustee all costs and expenses of providing
the certificate at the times specified in the Series Notice.
(m) The Note Trustee shall not be bound to take any steps to
ascertain whether any event, condition or act, the happening
of which would cause a right or remedy to become exercisable
by the Note Trustee under this deed or by the Trustee under
any of the Transaction Documents has happened or to monitor or
supervise the observance and performance by the Trustee or any
of the other parties thereto of their respective obligations
thereunder and, until it shall have actual knowledge or
express notice to the contrary, the Note Trustee shall be
entitled to assume that no such event, condition or act has
happened and that the Trustee and each of the other parties
thereto are observing and performing all their respective
obligations thereunder.
(n) The Note Trustee shall not be responsible for recitals,
statements, warranties or representations of any party (other
than itself) contained in any Transaction Document or other
document entered into in connection with it and shall assume
its accuracy and correctness and (except with respect to
itself) the execution, legality, effectiveness,
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adequacy, genuineness, validity or enforceability or
admissibility in evidence of that agreement or other document
or any security constituted by them, and the Note Trustee may
accept without enquiry, requisition or objection all title as
the Trustee may have to any of the Mortgaged Property or as
any other person may have to any other security charged from
time to time to the Note Trustee and shall not be bound to
investigate or make any enquiry in the title of the Trustee to
any of the Mortgaged Property or the title of any other person
to any other security charged from time to time to the Note
Trustee whether or not any default or failure might be, or
might have been, discovered upon examination inquiry or
investigation and whether or not capable of remedy.
Notwithstanding the generality of the foregoing each US$
Noteholder is solely responsible for making its own
independent appraisal of and investigation into the Trust and
the US$ Notes and the Note Trustee shall not at any time have
any responsibility for the same and no US$ Noteholder shall
rely on the Note Trustee in that respect.
(o) The Note Trustee shall not be liable for any failure, omission
or defect in or filing or procuring registration or filing of
or otherwise protecting or perfecting the Security Trust Deed
or the Mortgaged Property or any other security or failure to
call for or delivery of documents of title to the Mortgaged
Property or any other security or to require any further
assurances in relation to any property or assets comprised in
the Mortgaged Property or any other security.
(p) The Note Trustee shall, as regards all the powers, trusts,
authorities, duties and discretions vested in it by this deed,
the Transaction Documents or the US$ Notes (including the
relevant Conditions), except where expressly provided
otherwise have regard to the interests of the US$ Noteholders.
(q) Without prejudice to the provisions of any Transaction
Document the Note Trustee shall not be under any obligation to
insure any of the Mortgaged Property (or any other property)
or any deeds or documents of title or other evidence relating
to that property.
(r) Subject to the relevant Condition 10(c), the Note Trustee
shall not be responsible for any loss, expense or liability
(including, without limitation, any decline in value or loss
realised upon any sale or disposition made under the Security
Trust Deed) occasioned to the Mortgaged Property or any other
property or in respect of all or any of the moneys which may
stand to the credit of the Collection Accounts from time to
time however caused (including any bank, broker, depository,
warehouseman or other intermediary or any clearing system or
its operator acting in accordance with or contrary to the
terms of any of the Transaction Documents or otherwise),
unless that loss is occasioned by the fraud, negligence, or
wilful default of the Note Trustee.
(s) The Note Trustee has no responsibility whatsoever to the
Trustee or any US$ Noteholder as regards any deficiency or
additional payment, as the case may be, which might arise
because the Note Trustee or the Trustee is subject to any Tax
in respect of the Mortgaged Property, the Security Trust Deed
or any other security or any income or any proceeds from them.
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(t) No provision of this deed requires the Note Trustee to do
anything which may be illegal or contrary to applicable law or
regulation or 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 has grounds to believe that repayment of those funds or
adequate indemnity against that risk or liability is not
assured to it. Without limitation nothing contained in this
deed imposes any obligation on the Note Trustee to make any
further advance to an Obligor or to borrow any moneys under a
Transaction Document or to maintain, protect or preserve any
moneys standing to the credit of the Collection Account.
(u) The Note Trustee is not responsible (except as to itself) for
the genuineness, validity, effectiveness or suitability of any
of the Transaction Documents or any of the Mortgages, Security
Interests or other documents entered into in connection with
them or any Mortgage Insurance Policy or the priority
constituted by or purported to be constituted by or pursuant
to that Security Interest, nor shall it (except as to itself)
be responsible or liable to any person because of any
invalidity of any provision of those documents or the
unenforceability of those documents, whether arising from
statute, law or decision of any court and (without limitation)
the Note Trustee shall not be responsible for or have any duty
to make any investigation in respect of or in any way be
liable whatsoever for:
(i) the nature, status, creditworthiness or solvency of any
Obligor or any other person or entity who has at any
time provided any security or support whether by way of
guarantee, Security Interest or otherwise in respect of
any advance made to any Obligor;
(ii) the execution, legality, validity, adequacy,
admissibility in evidence or enforceability of any
Mortgage or Loan or any other document entered into in
connection with them;
(iii) the title, ownership, value, sufficiency or existence
of any Land, Mortgaged Property or any Mortgage
Insurance Policy;
(iv) the registration, filing, protection or perfection of
any Mortgage or the priority of the security created
under a Mortgage whether in respect of any initial
advance or any subsequent advance or any other sums or
liabilities;
(v) the scope or accuracy of any representations,
warranties or statements made by or on behalf of any
Obligor in any application for any advance or in any
Mortgage or Loan or in any document entered into in
connection with them;
(vi) the performance or observance by any Obligor or any
other person of any provisions of any Mortgage or Loan
or in any document entered into in connection with them
or the fulfilment or satisfaction of any conditions
contained in them or relating to them or as to the
existence or occurrence at any time of any default,
event of default or similar event contained in them or
any waiver or consent which has at any time been
granted in relation to any of the above;
(vii) the existence, accuracy or sufficiency of any legal or
other opinions, searches, reports, certificates,
valuations or investigations delivered or obtained or
required to be delivered or obtained at any time in
connection with any Mortgage or Loan;
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(viii) the title of the Trustee to any Mortgage or Loan or
other Mortgaged Property;
(ix) the suitability, adequacy or sufficiency of any
guidelines under which Loans are entered into or
compliance with those guidelines or compliance with any
applicable criteria for any further advances or the
legality or ability or enforceability of the advances
or the priority of the Mortgages in relation to the
advances;
(x) the compliance of any person with the provisions and
contents of and the manner and formalities applicable
to the execution of the Mortgages and Loans and any
documents connected with them or the making of any
advance intended to be secured by them or with any
applicable laws or regulations (including Consumer
Credit Legislation);
(xi) the failure of the Approved Seller, the Servicer, the
Trust Manager or the Trustee to obtain or comply with
any Authorisation in connection with the origination,
sale purchase or administration of any of the Mortgages
or Loans or the making of any advances in connection
with them or the failure to effect or procure
registration of or to give notice to any person in
relation to or otherwise protect the security created
or purported to be created by or pursuant to any of the
Mortgages or Loans or other documents entered into in
connection with them;
(xii) the failure to call for delivery of documents of title
to or require any transfers, legal mortgages, charges
or other further assurances in relation to any of the
assets the subject matter of any of the Transaction
Documents or any other document;
(xiii) any accounts, books, records or files maintained by the
Approved Seller, the Servicer, the Trustee, the Trust
Manager or any other person in respect of any of the
Mortgages or Loans; or
(xiv) any other matter or thing relating to or in any way
connected with any Mortgage or Loan or any document
entered into in connection with them whether or not
similar to the above.
(v) The Note Trustee is not liable or responsible for any loss,
cost, damages, expenses, liabilities or inconvenience which
may result from anything done or omitted to be done by it in
accordance with the provisions of this deed, any other
Transaction Document or any other document.
(w) The Note Trustee is not liable in respect of it being treated
as, or being deemed to be, a credit provider, for the purposes
of the Consumer Credit Legislation, in respect of any of the
Mortgages.
(x) In connection with any proposed modification, waiver,
authorisation or determination permitted by this deed, the
Note Trustee shall not have regard to the consequences thereof
for individual US$ Noteholders resulting from their being for
any purpose domiciled or resident in, or otherwise connected
with, or subject to, the jurisdiction of any particular
territory.
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(y) Except as otherwise provided in this deed or any other
Transaction Document, the Note Trustee shall have no
responsibility for the maintenance of any rating of any US$
Notes by a Designated Rating Agency or any other credit-rating
agency or any other person.
(z) The Note Trustee shall be under no obligation to monitor or
supervise the functions of any person under any Authorised
Investment, Support Facility, Mortgage, Loan or Transaction
Document or any other deed, agreement or arrangement
incidental to any of the above, and is entitled, in the
absence of actual knowledge of a breach of duty or obligation,
to assume that any person is properly performing its
obligations in accordance with each Transaction Document.
(aa) The Note Trustee acknowledges that the Trust Manager is
responsible, under the Series Notice, for calculating all
amounts referred to in clause 6.2 of the Series Notice (other
than calculations required to be made by the Calculation Agent
under the Agency Agreement) and the Note Trustee has no
liability in respect of these calculations.
In relation to US$ Notes and US$ Noteholders, the Note Trustee shall
comply with section 311(a) of the TIA, excluding any creditor
relationship listed in section 311(b) of the TIA. A Note Trustee who
has resigned or been removed shall be subject to section 311(a) in
relation to US$ Notes and US$ Noteholders of TIA only to the extent
required by the TIA.
13.2 EXAMINATION OF DOCUMENTS
In relation to US$ Notes and US$ Noteholders, the Note Trustee shall
examine the evidence furnished to it pursuant to section 314 of the
TIA to determine whether the opinions, searches, reports,
certificates, valuations and investigations delivered or obtained or
required to be delivered or obtained at any time in connection with
any Mortgage or Loan conform to the requirements of this deed but
shall not be obliged to confirm or verify the mathematical
calculations or other facts stated therein.
14. NOTE TRUSTEE'S LIABILITY
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14.1 NO EXEMPTION FROM LIABILITY
Nothing in this deed shall exempt the Note Trustee from or indemnify
it against any liability for breach of trust or any liability in
respect of any fraud, negligence or wilful default of which it may be
guilty in relation to its duties under this deed.
14.2 OCCURRENCE OF AN EVENT OF DEFAULT
In the case of an Event of Default, the Note Trustee shall exercise,
with respect to the rights and powers vested in it by this deed, the
same degree of care and skill as a prudent person would exercise
under the circumstances in the conduct of such person's affairs.
15. DELEGATION BY NOTE TRUSTEE
--------------------------------------------------------------------------------
(a) The Note Trustee may whenever it thinks fit delegate by power
of attorney or otherwise to any person or persons for any
period (whether exceeding one year or not) or indefinitely all
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or any of the trusts, powers and authorities vested in the
Note Trustee by this deed and that delegation may be made upon
any terms and subject to any conditions (including power to
sub-delegate) and subject to any regulations as the Note
Trustee may in the interests of the US$ Noteholders think fit.
(b) If the Note Trustee exercises reasonable care in the selection
of a delegate under paragraph (a), the Note Trustee shall not
be required to supervise the actions of the delegate and shall
not in any way be responsible for any loss incurred by reason
of any misconduct or default on the part of any delegate or
sub-delegate. The Note Trustee must within a reasonable time
prior to any delegation or any renewal, extension or
termination of any delegation give notice of it to the Trustee
and each Designated Rating Agency.
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE
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The Note Trustee may in the conduct of the trusts of this deed
instead of acting personally employ and pay an agent, whether being a
lawyer or other professional person, to transact or concur in
transacting any business and to do or concur in doing all acts
required to be done in connection with the trusts of this deed. So
long as the Note Trustee exercises reasonable care in the selection
of that agent, the Note Trustee shall not be required to supervise
the actions of the agent and shall not in any way be responsible for
any loss incurred by reason of any misconduct or default on the part
of that agent.
Any trustee of this deed which is a lawyer, accountant, broker or
other person engaged in any profession or business is entitled to
charge and be paid all usual professional and other charges for
business transacted and acts done by him or his firm in connection
with the trusts of this deed and also his reasonable charges in
addition to disbursements for all other work and business done and
all time spent by him or his firm in connection with matters arising
in connection with this deed. Those charges will be for the account
of the Note Trustee unless agreed otherwise who shall be reimbursed
by the Trustee under clause 12.
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE
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Neither the Note Trustee nor any director or officer of a corporation
acting as a trustee under this deed, nor the Security Trustee, is by
reason of its or their fiduciary position in any way precluded from
entering into or being interested in any contract or financial or
other transaction or arrangement with the Trustee or any other party
to any of the Transaction Documents or any person or body corporate
associated with the Trustee including any contract, transaction or
arrangement of a banking or insurance nature or any contract,
transaction or arrangement in relation to the making of loans or the
provision of financial facilities to or the purchase, placing or
underwriting of or subscribing or procuring subscriptions for or
otherwise acquiring holding or dealing with any US$ Notes or any
other bonds, stocks, shares, debenture stock, debentures, notes or
other securities of the Trustee or any other party to any of the
Transaction Documents or any related person or body corporate or from
accepting or holding the trusteeship of any other trust deed
constituting or securing any other securities issued by or relating
to the Trustee or any other party to any of the Transaction Documents
or any related person or body corporate or any other office of profit
under
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the Trustee or any other party to any of the Transaction Documents or
any related person or body corporate and shall be entitled to retain
and shall not be in any way liable to account for any profit made or
share of brokerage or commission or remuneration or other benefit
received or in connection with any of those arrangements.
18. WAIVER
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(a) The Note Trustee may without prejudice to its rights in
respect of any subsequent breach, condition, event or act from
time to time and at any time (but only if, and in so far as,
in its opinion the interests of any of the US$ Noteholders are
not materially prejudiced and the rights of the US$
Noteholders to receive principal and interest in respect of
the US$ Notes are not affected), waive or authorise on any
terms and subject to any conditions as it sees fit and proper:
(i) any breach or proposed breach by the Trustee or the
Trust Manager of any of the covenants or provisions
contained in this deed or in the US$ Notes (including
the relevant Conditions) or any other Transaction
Document (as to which evidence of a breach of one US$
Note in a Class shall be deemed evidence of a breach of
all US$ Notes in that Class); or
(ii) determine that any condition, event or act which
constitutes, or which with the giving of notice, the
lapse of time or the issue of a certificate would
constitute, but for that determination, an Event of
Default shall not, or shall not subject to specified
conditions, be so treated for the purposes of this deed,
but the Note Trustee shall not exercise any powers conferred
on it by this clause in contravention of any express
direction given by an Extraordinary Resolution. No direction
or request shall affect any waiver, authorisation or
determination given or made by the Note Trustee prior to any
express direction given by the US$ Noteholders pursuant to
an Extraordinary Resolution.
(b) Any waiver, authorisation or determination under this clause
is binding on the US$ Noteholders and if, but only if, the
Note Trustee so requires, shall be notified by the Trustee to
the US$ Noteholders in accordance with the relevant Condition
12 as soon as practicable.
19. AMENDMENT
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19.1 APPROVAL
The Note Trustee, the Trust Manager and the Trustee may, following
the giving of notice to each Designated Rating Agency, by way of
supplemental deed alter, add to or modify this deed (including this
clause 19) or the relevant Conditions so long as that alteration,
addition or modification is:
(a) to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
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(b) in the opinion of the Note Trustee necessary to comply with
the provisions of any law or regulation or with the
requirements of any Government Agency;
(c) in the opinion of the Note Trustee appropriate or expedient as
a consequence of an amendment to any law or regulation or
altered requirements of any Government Agency (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 law or
regulation or an amendment to any law or regulation or ruling
by the Commissioner or Deputy Commissioner of Taxation or any
governmental announcement or statement, in any case which has
or may have the effect of altering the manner or basis of
taxation of trusts generally or of trusts similar to the
Trust); or
(d) in the opinion of the Note Trustee not materially prejudicial
nor likely to be materially prejudicial to the interests of
the US$ Noteholders as a whole or a Class of US$ Noteholders,
and in the manner, and to the extent, permitted by the Transaction
Documents.
19.2 EXTRAORDINARY RESOLUTION OF NOTEHOLDERS
Where in the opinion of the Note Trustee a proposed alteration,
addition or modification to this deed, other than an alteration,
addition or modification referred to in clause 19.1, is materially
prejudicial or likely to be materially prejudicial to the interest of
US$ Noteholders as a whole or a Class of US$ Noteholders, the Note
Trustee, the Trust Manager and the Trustee may make that alteration,
addition or modification if sanctioned by an Extraordinary Resolution
of all the US$ Noteholders or that Class of US$ Noteholders (as the
case may be).
19.3 DISTRIBUTION OF AMENDMENTS
The Trust Manager shall distribute to all US$ Noteholders a copy of
any amendments made under clause 19.1 or 19.2 under the relevant
Condition 12 as soon as reasonably practicable after the amendment
has been made.
19.4 AMENDMENTS BINDING
Any amendment under this clause is binding on the US$ Noteholders.
19.5 CONFORMITY WITH TIA
Every amendment of this deed executed pursuant to this clause 19
which affects the US$ Notes or the US$ Noteholders shall conform to
the requirements of the TIA as then in effect so long as this deed
shall then be qualified under the TIA.
20. US$ NOTEHOLDERS
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20.1 ABSOLUTE OWNER
(a) The Trustee, the Trust Manager, the Security Trustee, the Note
Trustee and any Paying Agent may treat the registered holder
of any US$ Note as the absolute owner of that Note (whether or
not that Note is overdue and despite any notation or notice to
the contrary or
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writing on it or any notice of trust or other interest in it)
for the purpose of making payment and for all purposes and
none of the Trustee, the Trust Manager, the Security Trustee,
the Note Trustee or any Paying Agent is affected by any notice
to the contrary.
(b) So long as the US$ Notes, or any of them, are represented by a
Global Note, the Trustee, the Trust Manager, the Security
Trustee, the Note Trustee and any Paying Agent may treat the
person for the time being shown in the records of the relevant
Clearing Agency as the holder of any US$ Notes as the absolute
owner of those US$ Notes and the Trustee, the Trust Manager,
the Security Trustee, the Note Trustee and the Paying Agents
are not affected by any notice to the contrary, but without
prejudice to the entitlement of the registered holder of a
Class A Global Note, Class AB Global Note or a Class B Global
Note to be paid principal and interest on the relevant Global
Note in accordance with its terms. Without limitation, notices
to the US$ Noteholders may be given by delivery of the
relevant notice to the relevant Clearing Agency as the holder
of the US$ Notes for communication by them to entitled account
holders.
(c) Provided the Trustee, the Note Trustee or the Security Trustee
(as the case may be) (or a Paying Agent on behalf of the
Trustee, the Note Trustee, or the Security Trustee (as the
case may be)) pays the registered holder of the Global Notes
for the US$ Notes in accordance with the Transaction
Documents, each Note Owner shall have no claim directly
against the Trustee, the Note Trustee or the Security Trustee
(as the case may be) in respect of payment due on any US$
Notes for so long as those US$ Notes are represented by a
Global Note.
(d) Without limiting the preceding paragraphs of this clause 20.1,
all payments made to a Note Owner in respect of a US$ Note
under this clause (or, in the case of a Class A Global Note,
Class AB Global Note or a Class B Global Note, to or to the
order of the registered holder of that Global Note) shall be
valid and, to the extent of the sums so paid, effective to
satisfy and discharge the liability for the moneys payable
upon those US$ Notes.
20.2 CLEARING SYSTEM CERTIFICATE
The Trustee, the Trust Manager, the Security Trustee and the Note
Trustee may call for and shall be at liberty to accept and place full
reliance on as sufficient evidence a certificate or letter or
confirmation signed on behalf of a Clearing Agency or any form of
record made by it to the effect that at any particular time or
throughout any particular period any particular person is, was, or
will be, shown in its records as entitled to a particular interest in
a Global Note.
21. CURRENCY INDEMNITY
--------------------------------------------------------------------------------
Subject to this deed, including clause 29, the Trustee indemnifies
the Note Trustee and the US$ Noteholders and keeps them indemnified
against:
(a) in the case of US$ Notes:
(i) any loss or damage incurred by any of them arising from
the non-payment by the Trustee of any US$ due to the
Note Trustee or the relevant US$ Noteholders under this
deed or the relevant US$ Notes by reason of any
variation in the rates of
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exchange between those used for the purposes of
calculating the amount due under a judgment or order in
respect of that payment, which amount is expressed in a
currency other than US$, and under which the Note
Trustee or the US$ Noteholders do not have an option to
have that judgment or order expressed in US$, and those
prevailing at the date of actual payment by the Trustee;
(ii) any deficiency arising or resulting from any variation
in rates of exchange between:
(A) the date (if any) as of which the non-US$ currency
equivalent of the US$ amounts due or contingently
due under this deed (other than this clause) or in
respect of the relevant US$ Notes is calculated
for the purposes of any bankruptcy, insolvency or
liquidation of the Trustee; and
(B) the final date for ascertaining the amount of
claims in that bankruptcy, insolvency or
liquidation provided that in that bankruptcy,
insolvency or liquidation claims are required to
be made in a currency other than US$; and
The amount of that deficiency shall not be reduced by any
variation in rates of exchange occurring between that final
date and the date of any distribution of assets in connection
with that bankruptcy, insolvency or liquidation.
(b) The indemnities in this clause are obligations of the Trustee
separate and independent from its obligations under the
relevant US$ Notes and apply irrespective of any time or
indulgence granted by the Note Trustee or the relevant US$
Noteholders from time to time and shall continue in full force
and effect despite the judgment or filing of any proof or
proofs in any bankruptcy, insolvency or liquidation of the
Trustee for a liquidated sum or sums in respect of amounts due
under this deed (other than this clause) or the relevant US$
Notes. Any deficiency will constitute a loss suffered by the
relevant US$ Noteholders and no proof or evidence of any
actual loss shall be required by the Trustee or its
liquidator.
22. NEW NOTE TRUSTEES
--------------------------------------------------------------------------------
22.1 APPOINTMENT BY TRUSTEE
The Trustee may at the direction of the Trust Manager at any time
appoint a new Note Trustee of this deed who has previously been
approved by an Extraordinary Resolution of the US$ Noteholders. One
or more persons may hold office as Note Trustee or Note Trustees of
this deed but that Note Trustee or those Note Trustees must be or
include a Trust Corporation. Whenever there are more than two Note
Trustees of this deed the majority of those Note Trustees are
competent to execute and exercise all the duties, powers, trusts,
authorities and discretions vested in the Note Trustee by this deed
if a Trust Corporation is included in that majority.
22.2 APPOINTMENT BY NOTE TRUSTEE
(a) The Note Trustee may, on 30 days prior written notice to the
Trustee, the Trust Manager, the Principal Paying Agent and the
US$ Noteholders (in accordance with the relevant Condition
12), appoint any person established or resident in any
jurisdiction (whether a
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Trust Corporation or not) to act either as a separate Note
Trustee or as a co-Note Trustee jointly with the Note Trustee:
(i) if the Note Trustee considers that appointment to be in
the interests of the US$ Noteholders;
(ii) for the purposes of conforming to any legal
requirements, restrictions or conditions in any
jurisdiction in which any particular act or acts is or
are to be performed; or
(iii) for the purposes of obtaining a judgment in any
jurisdiction or the enforcement in any jurisdiction of
either a judgment already obtained or any of the
provisions of this deed against the Trustee.
(b) Subject to the provisions of this deed, a person appointed
under paragraph (a) has all trusts, rights, powers,
authorities and discretions (not exceeding those conferred on
the Note Trustee by this deed) and all duties and obligations
conferred or imposed by the instrument of appointment.
(c) Subject to this deed, all trusts, rights, powers, authorities,
discretions, duties and obligations conferred or imposed upon
the Note Trustee shall be conferred or imposed upon and
exercised or performed by the Note Trustee and a person
appointed under paragraph (a) jointly (it being understood
that such separate Note Trustee or co-Note Trustee is not
authorised to act separately without the Note Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be
performed the Note Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such trusts,
rights, powers, authorities, discretions, duties and
obligations shall be exercised and performed solely by such
separate Note Trustee or co-Note Trustee, but only at the
direction of the Note Trustee.
(d) The Note Trustee may remove or accept the resignation of any
person appointed under this clause. The remuneration of any
person appointed under this clause together with any costs,
charges and expenses properly incurred by it in performing its
function as Note Trustee or co-Note Trustee will be costs,
charges and expenses incurred by the Note Trustee under this
deed which shall be reimbursed by the Trustee under clause 12.
22.3 NOTICE
The Note Trustee shall notify each Designated Rating Agency of any
appointment of a new Note Trustee or its retirement or removal as
soon as practicable.
22.4 REQUIREMENT FOR NOTE TRUSTEE
Notwithstanding anything in this deed to the contrary, no person
shall become a Note Trustee under this deed unless it meets the
requirements of Section 26(a)(1) of the United States Investment
Company Act of 1940, as amended (the INVESTMENT COMPANY ACT).
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23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL
--------------------------------------------------------------------------------
23.1 REMOVAL BY TRUSTEE
The Trustee (or the Trust Manager on its behalf after informing the
Trustee of its intention to do so) may at any time terminate the
appointment of the Note Trustee by giving written notice to that
effect to each Designated Rating Agency and the Note Trustee with
effect immediately on that notice, if any of the following occurs in
relation to the Note Trustee:
(a) an Insolvency Event has occurred in relation to the Note
Trustee;
(b) the Note Trustee has ceased its business;
(c) the Note Trustee fails to comply with any of its obligations
under any Transaction Document and such failure has had or, if
continued will have, a Material Adverse Effect (as determined
by the Trustee), and, if capable of remedy, the Note Trustee
does not remedy within 14 days after the earlier of:
(i) the Note Trustee becoming aware of that failure; and
(ii) receipt by the Note Trustee of a written notice with
respect thereto from either the Trustee or the Trust
Manager; or
(d) the Note Trustee fails to satisfy any obligation imposed on it
under the TIA with respect to the Trust or this deed or comply
with clause 23.6.
23.2 REMOVAL BY US$ NOTEHOLDERS
The US$ Noteholders may resolve by Extraordinary Resolution to
require the Trustee to remove the Note Trustee or Note Trustees for
the time being of this deed.
23.3 RESIGNATION
(a) Subject to this clause 23, the Note Trustee may resign its
appointment under this deed at any time by giving to the
Trustee, the Trust Manager, the Security Trustee and each
Designated Rating Agency not less than 3 months written notice
to that effect. Notwithstanding the preceding sentence, the
Note Trustee shall not resign its appointment under this deed
until a successor Note Trustee meeting the requirements set
forth in clauses 22.4 and 23.6 has been appointed and has
accepted its appointment as Note Trustee under this deed as
provided in clause 23.5.
(b) Subject to this deed, if a successor Note Trustee has not
accepted its appointment within 30 days after:
(i) the Note Trustee has given notice of its resignation in
accordance with paragraph (a); or
(ii) the removal of the Note Trustee under clause 23.1 or
23.2,
the Note Trustee may petition (the cost of which shall be an
Expense of the Trust) any court of competent jurisdiction for
the appointment of a successor Note Trustee.
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23.4 TRUST CORPORATION
Each of the Trustee and the Trust Manager undertakes that if the only
Note Trustee which is a Trust Corporation retires or is removed it
will use reasonable endeavours to appoint a new Note Trustee of this
deed which is a Trust Corporation as soon as reasonably practicable.
The retirement or removal of any Note Trustee shall not become
effective until a successor Note Trustee which is a Trust Corporation
is appointed. The Trust Manager must assist the Trustee to appoint a
new Note Trustee of this deed. If the Trustee fails to appoint a new
Note Trustee within three months from such retirement or removal, the
Note Trustee shall be entitled to appoint a new Note Trustee which is
a Trust Corporation and such appointment shall be deemed to have been
made under clause 22.2 of this deed.
23.5 SUCCESSOR TO NOTE TRUSTEE
(a) On the execution by the Trustee, the Trust Manager and any
successor Note Trustee of an instrument effecting the
appointment of that successor Note Trustee, that successor
Note Trustee 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 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.
(b) Any corporation:
(i) into which the Note Trustee is merged;
(ii) with which the Note Trustee is consolidated;
(iii) resulting from any merger or consolidation to which the
Note Trustee is a party;
(iv) 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, conversion,
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 Trustee
or the Trust Manager, and after that effective date all
references in this deed to the Note Trustee shall be
references to that corporation.
(c) If no other person can be found to act as Note Trustee, the
US$ Noteholders may elect a Note Trustee from among the
holders of the US$ Notes.
23.6 ELIGIBILITY; DISQUALIFICATION
(a) The Note Trustee shall at all times satisfy the requirements
of section 310(a) of the TIA.
(b) The Note Trustee shall have a combined capital and surplus (as
those terms are used in the TIA) of at least US$50,000,000 as
set forth in its most recent published annual report of
condition.
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(c) The Note Trustee shall comply with section 310(b) of the TIA,
provided that any indenture or indentures under which other
securities of the Trustee are outstanding shall be excluded
from the operation of section 310(b)(1) of the TIA for the
purposes of paragraph (b) if the requirements for such
exclusion set out in section 310(b)(1) of the TIA are met.
24. NOTE TRUSTEE'S POWERS ADDITIONAL
--------------------------------------------------------------------------------
The powers conferred upon the Note Trustee by this deed shall be in
addition to any powers which may from time to time be vested in the
Note Trustee by the general law or as a holder of any of the US$
Notes.
25. SEVERABILITY OF PROVISIONS
--------------------------------------------------------------------------------
Any provision of this deed which is prohibited or unenforceable in
any jurisdiction is ineffective as to that jurisdiction to the extent
of the prohibition or unenforceability. That does not invalidate the
remaining provisions of this deed nor affect the validity or
enforceability of that provision in any other jurisdiction.
26. NOTICES
--------------------------------------------------------------------------------
26.1 GENERAL
All notices, requests, demands, consents, approvals, agreements or
other communications to or by a party to this deed:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender;
(c) subject to paragraph (d), will be taken to be duly given or
made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the
recipient shown in clause 26.2 or to any other address
which may have been notified by the recipient to the
sender under this clause 26;
(ii) (in the case of facsimile transmission) on receipt of a
transmission report confirming successful transmission
to the number shown in clause 26.2 or any other number
notified by the recipient to the sender under this
clause 26; and
(iii) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of
transmission to the number shown in clause 26.2 or any
other number notified by the recipient to the sender
under this clause 26,
but if delivery or receipt is on a day on which business is
not generally carried on in the place to which the
communication is sent or is later than 4.00 pm (local time),
it will be taken to have been duly given or made at the
commencement of business on the next day on which business is
generally carried on in that place. Any party may by notice to
each party change its address, facsimile and telex under this
clause 26.1.
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For the purposes of paragraph (c), all notices, requests, demands,
consents, approvals, agreements or other communications to the Note
Trustee must be given or made by facsimile transmission.
26.2 DETAILS
The address, facsimile and telex of each person to whom notices may
be sent at the date of this deed are as follows:
THE TRUSTEE
PERPETUAL TRUSTEES VICTORIA LIMITED
Level 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel: 00 0 0000 0000
Fax: 00 0 0000 0000
Attention: Manager, Securitisation
THE TRUST MANAGER
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
Level 28
000 Xxxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Xxxxxxxxx
Tel: 00 0 0000 0000
Fax: 00 0 0000 0000
Attention: Chief Executive Officer
THE NOTE TRUSTEE
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx
00X
Xxx Xxxx Xxx Xxxx 00000
Xxxxxx Xxxxxx
Tel: x0 000 000 0000
Telex: N/A
Fax: x0 000 000 0000/5917
Attention: Corporate Trust - Global Structured Finance
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THE SECURITY TRUSTEE
PERPETUAL TRUSTEE COMPANY LIMITED
Level 0
0 Xxxxxxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel: 00 0 0000 0000
Fax: 00 0 0000 0000
Attention: Manager, Securitisation
27. GOVERNING LAW AND JURISDICTION
--------------------------------------------------------------------------------
This deed and the trust constituted under this deed are governed by
the law of New South Wales, Australia. The parties submit to the
non-exclusive jurisdiction of courts exercising jurisdiction there.
The administration of the trust constituted under this deed,
including the exercise of the Note Trustee's powers under clauses 13
and 34 of this deed and its standard of care under clause 14 are
governed by the law of the State of New York and in the event of any
inconsistency between the operation of the law of New South Wales,
Australia and the law of the State of New York in respect of the
application of those powers and that standard of care, the law of the
State of New York will prevail to the extent of the inconsistency.
28. COUNTERPARTS
--------------------------------------------------------------------------------
This deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
29. LIMITED RECOURSE
--------------------------------------------------------------------------------
29.1 GENERAL
Clause 32 of the Master Trust Deed (as amended by the Series Notice)
applies to the obligations and liabilities of the Trustee and the
Trust Manager under this deed.
29.2 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT OF INDEMNITY
Without limiting the generality of clause 29.1, clause 32.16 of the
Master Trust Deed (as amended by the Series Notice) is incorporated
into this agreement as if set out in full, except that any reference
to TRUST refers to THE TRUST.
29.3 UNRESTRICTED REMEDIES
Nothing in this clause 29 limits a party in:
(a) obtaining an injunction or other order to restrain any breach
of this agreement by any party;
(b) obtaining declaratory relief; or
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(c) in relation to its rights under the Security Trust Deed.
29.4 RESTRICTED REMEDIES
Except as provided in clause 29.1 and subject to clause 29.3, a party
shall not:
(a) (STATUTORY DEMAND) issue any demand under s459E(1) of the
Corporations Act (or any analogous provision under any other
law) against the Trustee;
(b) (WINDING UP) apply for the winding up or dissolution of the
Trustee;
(c) (EXECUTION) levy or enforce any distress or other execution
to, on, or against any assets of the Trustee (other than the
Trust Assets);
(d) (COURT APPOINTED RECEIVER) apply for the appointment by a
court or a receiver to any of the assets of the Trustee (other
than the Trust Assets);
(e) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against the Trustee (other than in
respect of the Trust Assets); or
(f) (ADMINISTRATOR) appoint, or agree to the appointment of, any
administrator to the Trustee,
or take proceedings for any of the above and a party waives its
rights to make those applications and take those proceedings.
30. SUCCESSOR TRUSTEE
--------------------------------------------------------------------------------
The Note Trustee shall do all things reasonably necessary to enable
any successor Trustee appointed under clause 23 of the Master Trust
Deed to become the Trustee under this deed.
31. INDEMNITY FOR THE COST OF INDEPENDENT ADVICE
--------------------------------------------------------------------------------
Where the Note Trustee is required to express an opinion or make a
determination or calculation under this deed or the other Transaction
Documents, the Note Trustee may appoint or engage such independent
advisors including any of the persons referred to in clause 13.1(a)
as the Note Trustee reasonably requires to assist in the giving of
that opinion or the making of that determination or calculation and
the Trustee or, if another person is expressly stated in the relevant
provision in a Transaction Document, that person shall indemnify the
Note Trustee for any costs and expenses properly incurred by and
payable to those advisors.
32. NO LIABILITY
--------------------------------------------------------------------------------
Without limitation the Note Trustee shall not be liable (subject to
the mandatory requirements of the TIA) for:
(a) any decline or loss directly or indirectly arising from the
Note Trustee acting or failing to act as a consequence of an
opinion reached by it, except for the negligence, fraud or
wilful default of the Note Trustee; and
(b) any loss, expense or liability which may be suffered as a
result of any assets secured by the Security Trust Deed, the
Mortgaged Property (or any other property) or any deeds or
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documents of title thereto being uninsured or inadequately
insured or being held by or to the order of any clearing
organisations or their operator or by any person on behalf of
the Security Trustee or the Note Trustee, except for the
negligence, fraud or wilful default of the Note Trustee.
33. INFORMATION MEMORANDUM
--------------------------------------------------------------------------------
The Note Trustee has no responsibility for any statement or
information in or omission from any information memorandum,
advertisement, circular or other document issued by or on behalf of
the Trustee or Trust Manager, including in connection with the issue
of Notes. Neither the Trustee nor the Trust Manager may publish or
permit to be published any such document in connection with the offer
of Notes or an invitation for subscriptions for Notes containing any
statement which makes reference to the Note Trustee without the prior
written consent of the Note Trustee, which consent must not be
unreasonably withheld. In considering whether to give its consent,
the Note Trustee is not required to take into account the interests
of the Noteholders.
34. NOTE TRUSTEE'S LIMITED LIABILITY
--------------------------------------------------------------------------------
Without prejudice to any indemnity allowed by law or elsewhere in
this deed given to the Note Trustee, it is expressly declared as
follows.
34.1 RELIANCE ON CERTIFICATES
The Note Trustee shall be entitled to call for and rely on a
certificate or any letter of confirmation or explanation reasonably
believed by it to be genuine, of the Trustee, the Trust Manager, any
Paying Agent, the Calculation Agent or any Designated Rating Agency
in respect of every manner and circumstance for which a certificate
is expressly provided for under this deed or in respect of the rating
of any of the US$ Notes or the relevant Conditions and the Note
Trustee is not bound in any such case to call for further evidence.
The Note Trustee shall not incur any liability in respect of any
action taken or thing suffered by it in reliance on any notice,
resolution, direction, consent, certificate, receipt, affidavit,
statement, valuation report or other document (including any of the
above submitted or provided by the Trust Manager, a Noteholder or the
Trustee) which it has no reason to believe is not genuine, signed by
the proper parties and with appropriate authority.
In preparing any notice, certificate, advice or proposal the Note
Trustee shall be entitled to assume that each person under any
Authorised Investment, Support Facility, Mortgage, Loan, other
Transaction Document or any other deed, agreement or arrangement
incidental to any of the above or to any Trust, will perform their
obligations under those documents in full by the due date and
otherwise in accordance with their terms.
34.2 NOTE TRUSTEE'S RELIANCE ON TRUST MANAGER OR SECURITY TRUSTEE
(a) (AUTHORISED SIGNATORIES ARE SUFFICIENT EVIDENCE) Subject to
clause 13.2, whenever any certificate, notice, proposal,
direction, instruction or other communication is to be given
by the Trust Manager or the Security Trustee to the Note
Trustee, the Note Trustee may
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accept as sufficient the form and content of a document unless
it has reason to believe that the relevant document was not
signed on behalf of the Trust Manager or the Security Trustee
(as the case may be) or by any Authorised Signatory of the
Trust Manager or the Security Trustee (as the case may be).
(b) (NOTE TRUSTEE NOT LIABLE FOR LOSS) The Note Trustee shall not
be responsible for any loss arising from any act, neglect,
mistake or discrepancy of the Trust Manager or the Security
Trustee or any officer, employee, agent or delegate of the
Trust Manager or the Security Trustee in preparing any such
document or in compiling, verifying or calculating any matter
or information contained in any such document, if the officers
of the Note Trustee responsible for the administration of the
Trust are not actually aware that such document is not genuine
and correct, whether or not an error in any such information,
document, form or list is reproduced by the Note Trustee in
any step taken by it.
34.3 COMPLIANCE WITH LAWS
The Note Trustee shall not incur any liability to anyone in respect
of any failure to perform or to do any act or thing which by reason
of any provision of any relevant present or future law of any place
or any ordinance, rule, regulation or by law or of any decree, order
or judgement of any competent court or other tribunal, the Note
Trustee shall be hindered, prevented or forbidden from doing or
performing.
34.4 RELIANCE ON EXPERTS
The Note Trustee may act on the opinion or statement or certificate
or advice of or information obtained from the Security Trustee,
attorneys, barristers or solicitors (whether instructed by the Note
Trustee or not), bankers, accountants, brokers, valuers and other
persons believed by it in good faith to be expert or properly
informed in relation to the matters on which they are consulted and
the Note Trustee shall not be liable for anything done or suffered by
it in good faith in reliance on such opinion, statement, certificate,
advice or information.
34.5 OVERSIGHTS OF OTHERS
Subject to this deed, the Note Trustee shall not be responsible for
any act, omission, misconduct, mistake, oversight, error of
judgement, forgetfulness or want of prudence on the part of any
attorney, banker, receiver, barrister, solicitor, agent, any person
or agent appointed by the Note Trustee and on whom the Note Trustee
is entitled to rely under this deed (other than a Related
Corporation) or other person acting as agent or advisor to the Note
Trustee.
34.6 IMPOSSIBILITY OR IMPRACTICABILITY
If for any reason whatsoever it becomes impossible or impracticable
to carry out any or all of the provisions of this deed or any other
Transaction Document, the Note Trustee shall not be under any
liability nor shall it incur any liability by reason of any error of
law or any matter or thing done or suffered or omitted to be done in
good faith by it or its officers, employees, agents or delegates
except to the extent of its own fraud, negligence or wilful default.
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34.7 LEGAL AND OTHER PROCEEDINGS
(a) (INDEMNITY FOR LEGAL COSTS) The Note Trustee shall be
indemnified out of the Trust for all legal costs and
disbursements and all other costs, disbursements, outgoings
and expenses incurred by the Note Trustee in connection with:
(i) the enforcement or contemplated enforcement of, or
preservation of rights under; and
(ii) without limiting the generality of paragraph (i) above,
the initiation, defence, carriage and settlement of any
action, suit, proceeding or dispute in respect of;
this deed or any other Transaction Document or otherwise under
or in respect of the Trust provided that the enforcement,
contemplated enforcement or preservation by the Note Trustee
of the rights referred to in sub-paragraph (i) or the court
proceedings referred to in paragraph (ii) (other than in each
case the defence of any action, suit, proceeding or dispute
brought against the Note Trustee), and the basis of incurring
any of those costs, disbursements, outgoings and expenses by
the Note Trustee:
(iii) has been approved in advance by an Extraordinary
Resolution of the US$ Noteholders; or
(iv) the Note Trustee reasonably considers the incurring of
those costs, disbursements, outgoings and expenses to be
necessary to protect the Note Trustee against potential
personal liability.
(b) (DEFENCE OF PROCEEDINGS ALLEGING NEGLIGENCE, ETC.) The Note
Trustee shall be entitled to claim in respect of the above
indemnity from the Trust for its expenses and liabilities
incurred in defending any action, suit, proceeding or dispute
in which fraud, negligence or wilful default is alleged or
claimed against it, but on the same being proved, accepted or
admitted by it, it shall from its personal assets immediately
repay to the Trust the amount previously paid by the Trust to
it in respect of that indemnity.
34.8 NO LIABILITY EXCEPT FOR NEGLIGENCE ETC.
In the absence of fraud, negligence or wilful default on the Note
Trustee's part or on the part of any of its officers or employees, or
any agent or delegate, sub-agent, sub-delegate employed by the Note
Trustee in accordance with this deed (and where this deed provides
that the Note Trustee is liable for the acts or omissions of any such
person) to carry out any transactions contemplated by this deed, the
Note Trustee shall not be liable personally for any losses, costs,
liabilities or claims arising from the failure to pay moneys on the
due date for payment to any Noteholder or any other person or for any
loss howsoever caused in respect of the Trust or to any Noteholder or
other person.
34.9 FURTHER LIMITATIONS ON NOTE TRUSTEE'S LIABILITY
Subject to clause 34.2, the Note Trustee shall not be liable:
(a) (FOR LOSS ON DIRECTION) for any losses, costs, damages or
expenses caused by its acting (in circumstances where this
deed requires it to act or contemplates that it may so act) on
any instruction or direction given to it by:
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(i) any Noteholder under this deed, any other Transaction
Document or any other document; or
(ii) by any person under a Support Facility,
except to the extent that it is caused by the fraud,
negligence or wilful default of the Note Trustee, or any of
its officers or employees, or an agent, delegate, sub-agent or
sub-delegate employed by the Note Trustee in accordance with
this deed to carry out any transactions contemplated by this
deed;
(b) (FOR CERTAIN DEFAULTS) for any Trust Manager's Default;
(c) (FOR ACTS OF SECURITY TRUSTEE) without limiting the Note
Trustee's obligations or powers under the Transaction
Documents, for any act, omission or default of the Security
Trustee in relation to its obligations under the Transaction
Documents;
(d) (FOR ACTS OF PAYING AGENT) without limiting the Note Trustee's
obligations or powers under the Transaction Documents, for any
act, omission or default of a Paying Agent in relation to its
obligations under the Transaction Documents;
(e) (FOR ACTS OF CALCULATION AGENT) without limiting the Note
Trustee's obligations or powers under the Transaction
Documents, for any act, omission or default of the Calculation
Agent in relation to its obligations under the Transaction
Documents;
(f) (FOR FAILURE TO CARRY OUT AN AGREEMENT) for the failure of a
person to carry out an agreement with the Note Trustee in
connection with the Trust; or
(g) (FOR FAILURE TO CHECK CALCULATIONS, ETC) for any losses,
costs, liabilities or expenses caused by the Note Trustee's
failure to check any calculation, information, document, form
or list supplied or purported to be supplied to it by the
Trust Manager or the Security Trustee,
except, in the case of paragraph (g), to the extent that it is caused
by the fraud, negligence or breach of trust of the Note Trustee.
Nothing in this clause 34.9 alone (but without limiting the operation
of any other clause of this deed) shall imply a duty on the Note
Trustee to supervise the Trust Manager or the Security Trustee in the
performance of the Trust Manager's or the Security Trustee's
functions and duties, and the exercise by the Trust Manager or the
Security Trustee of its discretions.
34.10 CONFLICTS
(a) (NO CONFLICT) Nothing in this deed shall prevent the Note
Trustee, the Trustee, any Dealer, the Trust Manager, the
Security Trustee or any Related Corporation or Associate of
any of them or their directors or other officers (each a
RELEVANT PERSON) from:
(i) subscribing for purchase, holding, dealing in or
disposing of any Notes;
(ii) entering into any financial, banking, development,
insurance, agency, broking or other transaction with, or
providing any advice or services for the Trust; or
(iii) being interested in any such contract or transaction
or otherwise at any time contracting or acting in any
capacity as representative or agent,
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provided that notwithstanding anything else in this deed to
the contrary, the Note Trustee agrees that it shall not offer
or provide credit enhancement to the Trust.
(b) (NOT LIABLE TO ACCOUNT) A Relevant Person shall not be in any
way liable to account to any Noteholder or any other person
for any profits or benefits (including any profit, bank
charges, commission, exchange, brokerage and fees) made or
derived under or in connection with any transaction or
contract specified in paragraph (a) above.
(c) (FIDUCIARY RELATIONSHIP) A Relevant Person shall not by reason
of any fiduciary relationship be in any way precluded from
making any contracts or entering into any transactions or
arrangements with the Trustee or any other party to any of the
Transaction Documents in the ordinary course of the business
or from undertaking any banking, financial, development,
agency or other services including any contract or transaction
in relation to the placing of or dealing with any investment
and the acceptance of any office or profit or any contract of
loan or deposits or other contract or transaction which any
person or company not being a party to this deed could or
might have lawfully entered into if not a party to this deed.
A Relevant Person shall not be accountable to any Noteholder
or any other person for any profits arising from any such
contracts, transactions or offices.
34.11 INFORMATION
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the Note
Trustee under this deed or any other Transaction Document, the Note
Trustee shall not have any duty or responsibility to provide any
person (including any Noteholder) with any credit or other
information concerning the affairs, financial condition or business
of the Trust.
34.12 INVESTIGATION BY NOTE TRUSTEE
Each Noteholder acknowledges that:
(a) the Note Trustee has no duty, and is under no obligation, to
investigate whether a Trust Manager's Default has occurred in
relation to the Trust other than where it has actual notice;
and
(b) in making any determination, the Note Trustee may seek and
rely on advice given to it by its advisors in a manner
contemplated by this deed.
35. NOTEHOLDERS' LISTS AND REPORTS
--------------------------------------------------------------------------------
35.1 PROVISION OF INFORMATION
The Trust Manager, on behalf of the Trustee, will furnish or cause to
be furnished to the Note Trustee:
(a) every six months (with the first six month period commencing
on the Note Issue Date) (each such date being a NOTICE DATE),
a list, in such form as the Note Trustee may reasonably
require, of the names and addresses of the US$ Noteholders as
of the Record Date immediately preceding that Notice Date; and
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(b) at such other times as the Note Trustee may request in
writing, within 30 days after receipt by the Manager with a
copy provided to the Trustee of any such request, a list of
similar form and content as of a date not more than 10 days
prior to the time such list is furnished,
provided that so long as:
(c) the Note Trustee is the Note Registrar; or
(d) the US$ Notes are Global Notes,
no such list shall be required to be furnished.
35.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO US$ NOTEHOLDERS
(a) The Note Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the US$
Noteholders contained in the most recent list (if any)
furnished to the Note Trustee as provided in clause 35.1 and
if it acts as Note Registrar, the names and addresses of US$
Noteholders received by the Note Trustee in its capacity as
Note Registrar. The Trustee may destroy any list furnished to
it as provided in such clause 35.1 upon receipt of a new list
so furnished.
(b) US$ Noteholders may communicate pursuant to section 312(b) of
the TIA with other US$ Noteholders with respect to their
rights under this deed or under the US$ Notes.
(c) The Trustee, Note Trustee and Note Registrar shall have the
protection of section 312(c) of the TIA.
35.3 REPORTS BY NOTE TRUSTEE
If required by section 313(a) of the TIA, within 60 days after each
30 June, beginning with [30 June 2004], the Note Trustee shall mail
to each US$ Noteholder, the Trustee and the Trust Manager as required
by section 313(c) of the TIA a brief report dated as of such date
that complies with section 313(a) of the TIA. The Note Trustee also
shall comply with section 313(b) of the TIA. A copy of each report at
the time of its mailing to US$ Noteholders shall be filed by the Note
Trustee with the Commission and each Stock Exchange, if any, on which
any US$ Notes are listed. The Trust Manager on behalf of the Trustee
shall notify the Note Trustee if and when any US$ Notes are listed on
any Stock Exchange.
35.4 NOTICES TO US$ NOTEHOLDERS; WAIVER
(a) Where this deed provides for notice to US$ Noteholders of any
event, such notice shall be sufficiently given (unless
otherwise provided by law or otherwise herein expressly
provided) if:
(i) for so long as any US$ Notes are listed on the
Australian Stock Exchange, published in a leading
newspaper having general circulation in Australia. Each
such notice will be deemed to be given on the date of
the first publication; or
(ii) in relation to any notice specifying a Payment Date, an
Interest Rate, any Interest payable, any Principal
Payment (or the absence of a Principal Payment) or the
Principal Amount of any US$ Note after any Principal
Payment, that notice is published on a page of the
Reuters Screen or the electronic information system
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made available by Bloomberg L.P. or any other similar
electronic reporting service as may be approved by the
Note Trustee in writing and notified to the US$
Noteholders.
Such notice will be deemed to be given on the first date
on which it appears on the relevant electronic reporting
service.
(b) If, for any reason, it is impractical to give notice in the
manner provided in clause 35.4(a)(ii), then the manner of
giving notice referred to in clause 35.4(a)(i) shall be deemed
to be a sufficient giving of notice.
(c) Where this deed provides for notice in any manner, such notice
may be waived in writing by any person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by
US$ Noteholders shall be filed with the Note Trustee but such
filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
35.5 REPORTS BY TRUSTEE
The Trustee (or the Trust Manager on its behalf) shall:
(a) file with the Note Trustee, within 15 days after the Trustee
is required to file the same with the Commission, 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 Commission may from time to time by rules and regulations
prescribe) which the Trustee may be required to file with the
Commission pursuant to section 13 or 15(d) of the Exchange
Act;
(b) file with the Note Trustee and the Commission in accordance
with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports
with respect to compliance by the Trustee with the conditions
and covenants of this deed as may be required from time to
time by such rules and regulations; and
(c) supply to the Note Trustee (and the Note Trustee shall
transmit by mail to all US$ Noteholders described in section
313(c) of the TIA) such summaries of any information,
documents and reports required to be filed by the Trustee
pursuant to clauses (a) and (b) of this clause 35.5 as may be
required by rules and regulations prescribed from time to time
by the Commission.
36. TRUST INDENTURE ACT - MISCELLANEOUS
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36.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC
(a) Upon any application or request by the Trustee or the Trust
Manager to the Note Trustee to take any action under any
provision of this deed, the Trustee (or the Trust Manager on
its behalf) shall furnish to the Note Trustee:
(i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this deed relating to
the proposed action have been complied with;
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(ii) an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have
been complied with; and
(iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the
applicable requirements of section 314(c)(3) of the TIA,
except that, in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this deed, no
additional certificate or opinion need be furnished.
(b) (i) Prior to the deposit of any property or securities with
the Trustee that is to be made the basis for the release
of any property or securities subject to the Security
Interest created by the Security Trust Deed, the Trustee
(or the Trust Manager on its behalf) shall, in addition
to any obligation imposed in clause 36.1(a) or elsewhere
in this deed, furnish to the Note Trustee an Officer's
Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value
(within 90 days of such deposit) of the property or
securities to be so deposited;
(ii) Whenever any property or securities are to be released
from the Security Interest created by the Security Trust
Deed, the Trustee shall also furnish to the Note Trustee
an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to
the fair value (within 90 days of such release) of the
property or securities proposed to be released and
stating that in the opinion of such person the proposed
release will not impair the security under the Security
Trust Deed in contravention of the provisions of the
Security Trust Deed or this deed; and
(iii) Whenever the Trustee is required to furnish to the Note
Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters
described in paragraphs (i) and (ii), the Trustee (or
the Trust Manager on its behalf) shall also furnish to
the Note Trustee an Independent Certificate as to the
same matters if the fair value of the property or
securities and of all other property or securities
deposited or released from the Security Interest created
by the Security Trust Deed since the commencement of the
then current calendar year, as set forth in the
certificate required by clause (ii) and this clause
(iii), equals 10% or more of the Total Principal Amount
of the Notes, but such certificate need not be furnished
in the case of any release of property or securities if
the fair value thereof as set forth in the related
Officer's Certificate is less than US$25,000 or less
than one percent of the then Total Principal Amount of
the Notes.
Notwithstanding any other provision of this clause, the
Trustee may:
(A) collect, liquidate, sell or otherwise dispose of
Receivables or other Assets of the Trust as and to
the extent permitted or required by the
Transaction Documents; and
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(B) make or permit to be made cash payments out of the
Collection Account or the US$ Account as and to
the extent permitted or required by the
Transaction Documents.
(c) Every Officer's Certificate or opinion with respect to
compliance with a condition or covenant provided for in this
deed shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant
or condition and the definitions herein relating
thereto;
(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.
36.2 UNDERTAKING FOR COSTS
(a) Subject to paragraph (b), all parties to this deed agree, and
each US$ Noteholder by such US$ Noteholder's acceptance
thereof shall be 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) The provisions of this clause shall not apply to:
(i) any suit instituted by the Note Trustee;
(ii) any suit instituted by any US$ Noteholder, or group of
US$ Noteholders in each case holding in the aggregate
more than 10% of the Total Principal Amount of the US$
Notes; or
(iii) any suit instituted by any US$ Noteholder for the
enforcement of the payment of principal or interest on
any US$ Note on or after the respective due dates
expressed in such US$ Note and in this deed (or, in the
case of final redemption of a US$ Note, on or after the
Maturity Date).
36.3 EXCLUSION OF SECTION 316
(a) Section 316(a)(1) of the TIA is expressly excluded by this
deed.
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(b) For the purposes of section 316(a)(2) of the TIA in
determining whether any US$ Noteholders have concurred in any
relevant direction or consent, Notes owned by the Trustee or
by any Associate of the Trustee, shall be disregarded, except
that for the purposes of determining whether the Note Trustee
shall be protected in relying on any such direction or
consent, only US$ Notes which the Note Trustee knows are so
owned shall be so disregarded.
36.4 UNCONDITIONAL RIGHTS OF US$ NOTEHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST
Notwithstanding any other provisions in this deed, any US$ Noteholder
shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such US$ Note on
or after the respective due dates thereof expressed in such US$ Note
or in this deed (or, in the case of final redemption of a Note, on or
after the Maturity Date) and to institute suit for the enforcement of
any such payment, and such right shall not be impaired without the
consent of such US$ Noteholder, except 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 Security
Trust Deed upon any property subject to such Security Interest.
36.5 CONFLICT WITH TRUST INDENTURE ACT
If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required to be included in this indenture by
any of the provisions of the TIA, such required provision shall
prevail.
The provisions of section 310 to 317 (inclusive) of the TIA that
impose duties on any person (including the provisions automatically
deemed included herein unless expressly excluded by this deed) are a
part of and govern this deed, whether or not contained herein.
EXECUTED as a deed.
Each attorney executing this deed states that he has no notice of revocation or
suspension of his power of attorney.
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TRUSTEE
SIGNED SEALED AND DELIVERED for PERPETUAL TRUSTEES VICTORIA LIMITED by its
attorney in the presence of:
---------------------------------------------------------------------- ----------------------------------------------------
Witness Signature Attorney Signature
---------------------------------------------------------------------- ----------------------------------------------------
Print Name Print Name
TRUST MANAGER
SIGNED SEALED AND DELIVERED for INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
by its attorney in the presence of:
----------------------------------------------------------------- ---------------------------------------------------------
Witness Signature Attorney Signature
----------------------------------------------------------------- ---------------------------------------------------------
Print Name Print Name
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NOTE TRUSTEE, PRINCIPAL PAYING AGENT, CALCULATION AGENT AND NOTE REGISTRAR
EXECUTED AS A DEED by THE BANK OF NEW YORK in the presence of:
---------------------------------------------------------------------- ----------------------------------------------------
Witness Signature Signature
---------------------------------------------------------------------- ----------------------------------------------------
Print Name Print Name
SECURITY TRUSTEE
SIGNED SEALED AND DELIVERED for PERPETUAL TRUSTEE COMPANY LIMITED by its
attorney in the presence of:
---------------------------------------------------------------------- ----------------------------------------------------
Witness Signature Attorney Signature
---------------------------------------------------------------------- ----------------------------------------------------
Print Name Print Name
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SCHEDULE 1
FORM OF GLOBAL NOTE - US$ NOTES
--------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE OR ANY CERTIFICATE EVIDENCING OR ACKNOWLEDGING THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORISED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SUCH CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORISED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORISED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF OR THEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
THIS GLOBAL NOTE IS A GLOBAL BOND FOR THE PURPOSES OF SECTION 128F(10) OF THE
INCOME TAX ASSESSMENT ACT 1936 OF THE COMMONWEALTH OF AUSTRALIA.
PERPETUAL TRUSTEES VICTORIA LIMITED
(ABN 47 004 027 258)
(a limited liability company incorporated under the Commonwealth of Australia)
in its capacity as trustee of the Interstar Millennium Series 2004-2G Trust
(the "TRUST")
CLASS [A/AB/B] GLOBAL NOTE
representing
US$[*]
Class [A/AB/B] Secured Floating Rate Notes Due March 2036
This Note certifies that Cede & Co is the registered holder of this Note and
that this Note is a Global Note without principal or interest coupons in respect
of a duly authorised issue of Notes of Perpetual Trustees Victoria Limited in
its capacity as trustee of the Interstar Millennium Series 2004-2G Trust (the
"ISSUER"), designated as specified in the title above (the "NOTES"), in an
initial aggregate Principal Amount of US$[*] ([*] United States Dollars) and (a)
issued pursuant to a Master Trust Deed (the "MASTER TRUST DEED") dated 2
December 1999 between Perpetual Trustees Victoria Limited and Interstar
Securities (Australia) Pty Limited and applying to the Trust by reason of the
Notice of Creation of Trust between Interstar Securities (Australia) Pty
Limited, Interstar Securitisation Management Pty Limited (the "TRUST MANAGER")
and the Issuer dated 31 December 2003, by a Series Notice (the "SERIES NOTICE")
dated [*] between (among others) the Issuer, The Bank of New York (the Note
Trustee for the time being referred to as the "NOTE TRUSTEE") as trustee for the
holders for the time being of the US$ Notes (the "US$ NOTEHOLDERS") and the
Trust Manager and by the Conditions (as defined below); (b) constituted by a
Note Trust Deed dated [*] (the "NOTE TRUST Deed") between (among others) the
Issuer, the Trust Manager, the Note Trustee and The Bank of New York (as
"PRINCIPAL PAYING AGENT" and "CALCULATION AGENT"); and (c) secured by a Security
Trust Deed (the
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"SECURITY TRUST DEED") dated 31 December 2003 between the Issuer, the Trust
Manager and Perpetual Trustee Company Limited (in that capacity, the "SECURITY
TRUSTEE", which expression shall include its successor for the time being as
security trustee under the Security Trust Deed) and acceded to by the Note
Trustee. References to the Conditions (or to any particular numbered Condition)
shall be to the Terms and Conditions of the Class [A/AB/B] Notes (or that
particular one of them) set out in schedule 5 to the Note Trust Deed but with
the deletion of those provisions which are applicable only to Class [A/AB/B]
Notes in definitive form. Terms and expressions defined in the Note Trust Deed
and the Conditions shall, save as expressly stated otherwise, bear the same
meanings when used herein.
If the Issuer is obliged to issue Definitive Notes under clause 3.3 of the Note
Trust Deed, this Global Note may be exchanged in whole by registration on the
Note Register for Definitive Notes of Class [A/AB/B] Notes and the Issuer shall
procure that the Note Registrar delivers by registration in the Note Register,
in full exchange for this Global Note, Definitive Notes in aggregate Principal
Amount equal to the Principal Amount of all Class [A/AB/B] Notes represented by
this Global Note. The Issuer is not obliged to issue Definitive Notes until 30
days after the occurrence of an event set out in clause 3.3 of the Note Trust
Deed.
The Issuer in its capacity as trustee of the Trust subject to this Global Note
and subject to and in accordance with the Conditions and the Note Trust Deed
promises to pay to the registered holder of this Global Note the principal sum
of US$[*] ([*] United States Dollars) or such lesser amount as may from time to
time be represented by this Global Note (or such part of that amount as may
become repayable under to the Conditions, the Series Notice and the Note Trust
Deed) on such date(s) that that principal sum (or any part of it) becomes
repayable in accordance with the Conditions, the Series Notice and the Note
Trust Deed and to pay interest in arrears on each Payment Date (as defined in
Condition 4) on the Principal Amount of this Global Note at rates determined in
accordance with Condition 4 and all subject to and in accordance with the
certification requirements described in this Global Note, the Conditions, the
Series Notice and the Note Trust Deed, which shall be binding on the registered
holder of this Global Note (as if references in the Conditions to the Notes and
the Noteholders were references to this Global Note and the registered holder of
this Global Note respectively and as if the same had been set out in this Global
Note in full with all necessary changes, except as otherwise provided in this
Global Note).
Interest and principal on this Global Note will be payable under this Global
Note in accordance with the relevant Conditions. Each of the persons appearing
from time to time in the records of DTC as the holder of a Class [A/AB/B] Note
represented by this Global Note will be entitled to receive any payment so made
in respect of that Class [A/AB/B] Note in accordance with the respective rules
and procedures of DTC. Such persons will have no claim directly against the
Issuer in respect of payments due on the Class [A/AB/B] Notes which must be made
by the holder of this Global Note, for so long as this Global Note is
outstanding.
On any payment of principal and/or interest on the Class [A/AB/B] Notes as set
out above, details of that payment shall be endorsed by or on behalf of the
Issuer on the Note Register and, in the case of payments of principal, the
Principal Amount of the Class [A/AB/B] Notes shall be reduced for all purposes
by the amount so paid and endorsed. Any such record shall be prima facie
evidence that the payment in question has been made.
The Definitive Notes to be issued on an exchange of this Global Note will be in
registered form each in minimum denominations of US$100,000 and integral
multiples of US$1,000 in excess thereof. If the Issuer fails to meet its
obligations to issue Definitive Notes, this shall be without prejudice to the
Issuer's obligations
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with respect to the Notes under the Note Trust Deed, the Master Trust Deed, the
Series Notice and this Global Note.
On an exchange of this Global Note, this Global Note shall be surrendered to the
Principal Paying Agent.
This Global Note is governed by, and shall be construed in accordance with, the
laws of New South Wales, Australia.
IN WITNESS the Issuer has caused this Global Note to be signed by a person duly
authorised on its behalf
PERPETUAL TRUSTEES VICTORIA LIMITED
in its capacity as trustee of the Interstar Millennium Series 2004-2G Trust
By:
-----------------------------------
Authorised Signatory
IMPORTANT NOTES:
(a) The Issuer's liability to make payments in respect of the Class
[A/AB/B] Notes is limited to its right of indemnity from the assets of
Trust from time to time available to make such payments under the
Master Trust Deed and Series Notice. All claims against the Issuer in
relation to the Class [A/AB/B] Notes can be enforced against the Issuer
only to the extent to which it can be satisfied out of the assets of
the Trust out of which the Issuer is actually indemnified for the
liability except in the case of (and to the extent of) any fraud,
negligence or wilful default on the part of the Issuer.
(b) The Noteholder is required to accept any distribution of moneys under
the Security Trust Deed in full and final satisfaction of all moneys
owing to it, and any debt represented by any shortfall that exists
after any such final distribution is extinguished.
(c) Neither Perpetual Trustees Victoria Limited, the Note Trustee nor the
Security Trustee stands behind the capital value and/or performance of
the Class [A/AB/B] Notes or the assets of the Trust except to the
limited extent provided for in the Transaction Documents relating to
the Notes.
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CERTIFICATE OF AUTHENTICATION
This Global Note is authenticated by The Bank of New York as Principal Paying
Agent and until so authenticated shall not be valid for any purpose
THE BANK OF NEW YORK
as Principal Paying Agent
By:
---------------------------------
Authorised Signatory
For The Bank of New York
(without recourse, warranty or liability)
Issued in New York on [*] 2004
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SCHEDULE 2
FORM OF DEFINITIVE NOTE - US$ NOTES
--------------------------------------------------------------------------------
PERPETUAL TRUSTEES VICTORIA LIMITED
(ABN 47 004 027 258)
(a limited liability company incorporated under the laws of
the Commonwealth of Australia)
in its capacity as trustee of the Interstar Millennium Series 2004-2G Trust
(the "TRUST")
US$[*]
Class [A/AB/B] Secured Floating Rate Notes Due March 2036
The issue of the Class [A/AB/B] Notes was authorised by resolutions of the Board
of Directors of Perpetual Trustees Victoria Limited in its capacity as trustee
of the Trust (the "ISSUER") passed on [*].
This Class [A/AB/B] Note forms one of a series of Notes which are (a) issued by
a Master Trust Deed (the "MASTER TRUST DEED") dated 2 December 1999 between
Perpetual Trustees Victoria Limited and Interstar Securities (Australia) Pty
Limited and applying to the Trust by reason of the Notice of Creation of Trust
between Interstar Securities (Australia) Pty Limited, Interstar Securitisation
Management Pty Limited (the "TRUST MANAGER") and the Issuer dated 31 December
2003, by a Series Notice (the "SERIES NOTICE") dated [*] between (among others)
the Issuer, The Bank of New York (the Note Trustee for the time being referred
to as the "NOTE TRUSTEE") as trustee for the holders for the time being of the
US$ Notes (the "US$ NOTEHOLDERS") and the Trust Manager and the terms and
conditions attached to this Note (the "CONDITIONS"); (b) constituted by a Note
Trust Deed dated [*] (the "NOTE TRUST DEED") between (among others) the Issuer,
the Trust Manager, the Note Trustee and The Bank of New York (as "PRINCIPAL
PAYING AGENT" and "CALCULATION AGENT"); and (c) secured by a Security Trust Deed
(the "SECURITY TRUST DEED") dated 31 December 2003 between the Issuer, the Trust
Manager and Perpetual Trustee Company Limited (in that capacity, the "SECURITY
TRUSTEE", which expression shall include its successor for the time being as
security trustee under the Security Trust Deed) and acceded to by the Note
Trustee.
The Issuer, in its capacity as trustee of the Trust, subject to this Class
[A/AB/B] Note and subject to and in accordance with the Conditions and the Note
Trust Deed for value received promises to pay to the registered holder on the
Payment Date (as defined in Condition 4 of the terms and conditions (the
"CONDITIONS") endorsed on the form of this Class [A/AB/B] Note) falling in March
2036 (or on such earlier date(s) as the Principal Amount of this Class [A/AB/B]
Note (or part of it) may become repayable in accordance with the Conditions) the
principal sum of:
US$[*] ([*] United States Dollars)
or such part of that amount as may be repayable on such date(s) in accordance
with the Conditions, the Series Notice, the Master Trust Deed and the Note Trust
Deed, together with interest on the Principal Amount payable in arrears on each
Payment Date and such other amounts (if any) as may be payable, all subject to
and in accordance with the Conditions and the provisions of the Series Notice,
the Master Trust Deed and the Note Trust Deed.
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This Class [A/AB/B] Note shall not become valid for any purpose unless and until
the attached Certificate of Authentication has been signed by any authorised
signatory of The Bank of New York as Principal Paying Agent.
IN WITNESS this Note has been executed on behalf of the Issuer.
PERPETUAL TRUSTEES VICTORIA LIMITED
By: ...................................
Authorised Signatory
Dated as of [*],
Issued in [*]
IMPORTANT NOTES:
(a) The Issuer's liability to make payments in respect of the Class
[A/AB/B] Notes is limited to its right of indemnity from the assets of
Trust from time to time available to make such payments under the
Master Trust Deed and Series Notice. Any claim against the Issuer in
relation to the Class [A/AB/B] Notes can be enforced against the Issuer
only to the extent to which it can be satisfied out of the assets of
the Trust out of which the Issuer is actually indemnified for the
liability except in the case of (and to the extent of) any fraud,
negligence or wilful default on the part of the Issuer.
(b) Each Class [A/AB/B] Noteholder is required to accept any distribution
of moneys under the Security Trust Deed in full and final satisfaction
of all moneys owing to it, and any debt represented by any shortfall
that exists after any such final distribution is extinguished.
(c) Neither Perpetual Trustees Victoria Limited, the Note Trustee nor the
Security Trustee stands behind the capital value and/or performance of
the Class [A/AB/B] Notes or the assets of the Trust except to the
limited extent provided for in the Transaction Documents relating to
the Notes.
CERTIFICATE OF AUTHENTICATION
This Note is one of the Notes
referred to in the Note Trust Deed
THE BANK OF NEW YORK
as Principal Paying Agent
By:
---------------------------
Authorised Signatory
For The Bank of New York
(without recourse, warranty or liability)
Issued in [*] on [*]
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SCHEDULE 3
PROVISIONS FOR MEETINGS OF US$ NOTEHOLDERS
--------------------------------------------------------------------------------
1. As used in this Schedule the following expressions shall have the
following meanings unless the context otherwise requires:
VOTING CERTIFICATE shall mean an English language certificate issued by
a Paying Agent and dated in which it is stated:
(a) that on the date thereof Notes of the relevant class (not being
Notes in respect of which a block voting instruction has been
issued and is outstanding in respect of the meeting specified in
such voting certificate and any such adjourned meeting) were
either deposited with such Paying Agent or (to the satisfaction of
such Paying Agent) were held to its order or under its control or
blocked by a depository holding the same in a manner approved by
the Note Trustee and that no such Notes will cease to be so
deposited, held or blocked until the first to occur of:
(i) the conclusion of the meeting specified in such certificate
or, if applicable, any such adjourned meeting; and
(ii) the surrender of the certificate to the Paying Agent who
issued the same; and
(b) that the bearer thereof is entitled to attend and vote at such
meeting and any such adjourned meeting in respect of the Notes
represented by such certificate;
BLOCK VOTING INSTRUCTION shall mean an English language document issued
by a Paying Agent and dated in which:
(a) it is certified that Notes of the relevant class (not being Notes
in respect of which a voting certificate has been issued and is
outstanding in respect of the meeting specified in such block
voting instruction and any such adjourned meeting) of a specified
aggregate Principal Amount have been deposited with such Paying
Agent or (to the satisfaction of such Paying Agent) are held to
its order or under its control or blocked by a depository holding
the same in a manner approved by the Note Trustee and that no such
Notes will cease to be so deposited, held or blocked until the
first to occur of:
(i) the conclusion of the meeting specified in such document or,
if applicable, any such adjourned meeting; and
(ii) the surrender to the Paying Agent, not less than 48 hours
before the time for which such meeting or any such adjourned
meeting is convened, of the receipt issued by such Paying
Agent in respect of each such deposited Note which is to be
released or (as the case may require) the Note or Notes
ceasing with the agreement of the Paying Agent to be held to
its order or under its control or blocked and the giving of
notice by the Paying Agent to the Trustee in accordance with
paragraph 17 below of the necessary amendment to the block
voting instruction;
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(b) it is certified that each holder of such Notes has instructed such
Paying Agent or that the relevant Clearing Agency has advised such
Paying Agent that the holder of such Notes has given instructions,
that the vote(s) attributable to the Note(s) so deposited, held or
blocked should be cast in a particular way in relation to the
resolution or resolutions to be put to such meeting or any such
adjourned meeting and that all such instructions are during the
period commencing 48 hours prior to the time for which such
meeting or any such adjourned meeting is convened and ending at
the conclusion or adjournment thereof neither revocable or capable
of amendment;
(c) the total number and the serial numbers of the Notes so deposited,
held or blocked are listed distinguishing with regard to each such
resolution between those in respect of which instructions have
been given as aforesaid that the votes attributable thereto should
be cast in favour of the resolution and those in respect of which
instructions have been so given that the votes attributable
thereto should be cast against the resolution; and
(d) one or more persons named in such document (each hereinafter
called PROXY) is or are authorised and instructed by such Paying
Agent to cast the votes attributable to the Notes so listed in
accordance with the instructions referred to in (c) above as set
out in such document.
EXTRAORDINARY RESOLUTION when used in this deed means a resolution
passed at a meeting of the Noteholders duly convened and held in
accordance with the provisions of this deed by a majority consisting of
not less than three-fourths of the persons voting upon a show of hands
or if a poll be duly demanded then by a majority consisting of not less
than three-fourths of the votes given on such poll.
48 HOURS shall mean a period of 48 hours including all or part of two
days upon which banks are open for business in both the place where the
relevant meeting is to be held and in each of the places where the
Paying Agents have their specified offices (disregarding for this
purpose the day upon which such meeting is to be held) and such period
shall be extended by one or, to the extent necessary, more periods of
24 hours until there is included as aforesaid all or part of two days
upon which banks are open for business as aforesaid; and
24 HOURS shall mean a period of 24 hours including all or part of a day
upon which banks are open for business in both the place where the
relevant meeting is to be held and in each of the places where the
Paying Agents have their specified offices (disregarding for this
purpose the day upon which such meeting is to be held) and such period
shall be extended by one or, to the extent necessary, more periods of
24 hours until there is included as aforesaid all or part of a day upon
which banks are open for business as aforesaid.
NOTES and NOTEHOLDERS shall mean US$ Notes and US$ Noteholders
respectively.
The holder of any voting certificate or the proxies named in any block
voting instruction shall for all purposes in connection with the
relevant meeting or adjourned meeting of Noteholders be deemed to be
the holder of the Notes to which such voting certificate or block
voting instruction relates and the Paying Agent with which such Notes
have been deposited or the person holding the same to the order or
under the control of such Paying Agent or the person holding the same
shall be deemed for such purposes not to be the holder of those notes.
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2. CONVENING OF MEETINGS
The Trustee, the Trust Manager or the Note Trustee may at any time and
the Trustee shall upon a requisition in writing signed by the holders
of not less than one-tenth of the aggregate Principal Amount of the
Notes for the time being then outstanding convene a meeting of the
Noteholders and if the Trustee makes default for a period of seven days
in convening such a meeting the same may be convened by the Note
Trustee or the requisitioners. Every such meeting shall be held at such
place as the Note Trustee may appoint or approve.
3. NOTICE OF MEETINGS
At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is held) specifying the place,
day and hour of meeting shall be given by the Note Trustee (if the
meeting is convened by the Note Trustee), by the Trustee (if the
meeting is convened by the Trustee) or by the Trust Manager (if the
meeting is convened by the Trust Manager) to the relevant Noteholders
prior to any meeting of the relevant Noteholders in the manner provided
by the relevant Condition 12. Such notice shall state generally the
nature of the business to be transacted at the meeting thereby convened
by and (except for an Extraordinary Resolution) it shall not be
necessary to specify in such notice the terms of any resolution to be
proposed. Such notice shall include a statement to the effect that
Notes may be deposited with Paying Agents or (to their satisfaction)
held to their order or under their control or blocked by a depository
holding the same in a manner approved by the Note Trustee for the
purpose of obtaining voting certificates or appointing proxies until 48
hours before the time fixed for the meeting but not thereafter. A copy
of the notice shall be sent by post to the Note Trustee (unless the
meeting is convened by the Note Trustee) and to the Trustee (unless the
meeting is convened by the Trustee or the Trust Manager).
4. CHAIRMAN
Some person (who may but need not be a Noteholder) 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 fifteen minutes after the
time appointed for holding the meeting the relevant Noteholders present
shall choose one of their number to he Chairman. The Chairman of an
adjourned meeting need not be the same person as the Chairman of the
original meeting.
5. QUORUM
At any meeting two or more persons present holding Notes or voting
certificates or being proxies in respect thereof and holding or
representing in the aggregate not less than one-twentieth of the
aggregate Principal Amount of the Notes, then outstanding, shall
(except for the purposes of passing an Extraordinary Resolution) form a
quorum for the transaction of business and no business (other than the
choosing of a Chairman) shall be transacted at any meeting unless the
requisite quorum 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 holding
Notes, or voting certificates or being proxies in respect thereof and
holding or representing in the aggregate a clear majority of the
aggregate Principal Amount of the Notes, then outstanding PROVIDED THAT
subject to paragraph 13(b) below, at any meeting the business of which
includes
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any of the following matters (each of which shall only be capable of
being effected after having been approved by Extraordinary Resolution)
namely:
(a) modification of the date fixed for final maturity of the Notes;
(b) reduction or cancellation of the principal payable on the Notes or
any alteration of the date or priority of redemption of the Notes;
(c) alteration of the amount of interest payable on any class of the
Notes or modification of the method of calculating the amount of
interest payable on the Notes or modification of the date of
payment of an, interest payable on the Notes;
(d) alteration of the currency in which payments under the Notes are
to be made;
(e) alteration of the majority required to pass an Extraordinary
Resolution or the manner in which such majority is constituted;
(f) the sanctioning of any such scheme or proposal as is described in
paragraph 18 below; or
(g) alteration of this proviso or the proviso to paragraph 6 below,
the quorum shall, subject as provided further below, be two or more
persons present holding Notes, as the case may be, or voting
certificates or being proxies in respect thereof and holding or
representing in the aggregate not less than three-quarters or at any
adjourned meeting, 25% of the aggregate Principal Amount of the Notes
then outstanding.
6. ADJOURNMENT
If within fifteen minutes after the time appointed for any such meeting
a quorum is not present the meeting shall, if convened upon the
requisition of the Noteholders be dissolved. In any other case it shall
stand adjourned to the same day in the next week (or if such day is a
public holiday the next succeeding business day) at the same time and
place (except in the case of a meeting at which an Extraordinary
Resolution is to be proposed in which case it shall stand adjourned for
such period being not less than 14 days nor more than 42 days, and at
such place as may be appointed by the Chairman of the meeting and
approved by the Note Trustee) and at such adjourned meeting two or more
persons present holding Notes, or voting certificates or being proxies
in respect thereof (whatever the aggregate of the Principal Amount of
the Notes then outstanding held) shall (subject as provided below) form
a quorum and shall (subject as provided below) have power to pass any
Extraordinary Resolution or other resolution and to decide upon all
matters which could properly have been dealt with at the meeting from
which the adjournment took place had the requisite quorum been present
PROVIDED THAT, subject to paragraph 13(b) below, at any adjourned
meeting the business of which includes any of the matters specified in
the proviso to paragraph 5 above, the quorum shall, subject as provided
further below, be two or more persons present holding Notes be or
voting certificates or being proxies in respect thereof and holding or
representing in the aggregate not less than one-quarter of the
aggregate of the Principal Amount of the Notes, then outstanding.
The Chairman may with the consent of (and shall if directed by) any
such meeting adjourn the same from time to time and from place to place
but no business shall be transacted at an, adjourned meeting except
business which might lawfully (but for lack of required quorum) have
been transacted at the meeting from which the adjournment took place.
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Notice of any adjourned meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3
above and such notice shall (except in cases where the proviso to
paragraph 6 applies when it shall state the relevant quorum) state that
the persons present holding Notes, or voting certificates or being
proxies in respect thereof at the adjourned meeting (whatever the
aggregate of the Principal Amount of the Notes then outstanding held)
will form a quorum. Subject as aforesaid it shall not be necessary to
give any notice of any adjourned meeting.
7. VOTING PROCEDURE
Every resolution submitted to a meeting shall (subject to paragraph 20)
be decided by a simple majority, in the first instance by a show of
hands, then (subject to paragraph 9) by a poll and in case of equality
of votes the Chairman shall both on a show of hands and on a poll have
a casting vote in addition to the vote or votes (if any) to which he
may be entitled as a Noteholder (in the case of Notes in definitive
form) or as a holder of a voting certificate or as a proxy. Any poll
demanded at any such meeting on the election of a Chairman or on any
question of adjournment shall be taken at the meeting without
adjournment.
8. DECLARATION
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 Trustee or
by two or more persons present holding Notes or voting certificates or
being proxies and holding or representing in the aggregate not less
than one-fiftieth part of the aggregate of the Principal Amount of the
Notes, then outstanding a declaration by the Chairman that a resolution
has been carried by a particular majority or lost or not carried by a
particular majority shall be conclusive evidence of that fact without
proof of the number or proportion of the votes recorded in favour or
against such resolution. Subject to paragraph 12 below, if at any such
meeting a poll is so demanded, it shall be taken in such manner and
subject as hereinafter provided either at once or after 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 motion on which the poll has been demanded.
9. RIGHT TO ATTEND AND SPEAK
The Note Trustee and its lawyers and any director, officer or employee
of a corporation being a trustee of this deed and any director or
officer of the Trustee and the lawyers of the Trustee and any other
person authorised in that behalf by the Note Trustee may attend and
speak at any meeting. Save as aforesaid but without prejudice to the
proviso to the definition of outstanding in Clause 1, no person shall
be entitled to attend and speak nor shall any person be entitled to
vote at any meeting of the Noteholders or join with others in
requesting the convening of such a meeting or to exercise the rights
conferred on the Noteholders by Conditions 9 and 10 unless he either
produces the Note(s) of which he is the holder or a voting certificate
or is a proxy. Neither the Issuer nor any of its subsidiaries or
holding companies or other subsidiaries of such holding companies shall
be entitled to vote at any meeting in respect of Notes held
beneficially by it or for its account. Nothing herein
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contained shall prevent any of the proxies named in any block voting
instruction from being a director, officer or representative or
otherwise connected with the Trustee.
10. VOTING ENTITLEMENT
Subject as provided in paragraph 1 hereof at any meeting:
(a) on a show of hands every person who is present in person and
produces a Definitive Note, or a voting certificate or is a proxy
in respect thereof shall have one vote; and
(b) on a poll every person who is so present shall have one vote in
respect of each US$ of Principal Amount of the Notes then
outstanding of the Notes so produced or represented by the voting
certificate so produced or in respect of which he is a proxy.
Without prejudice to the obligations of the proxies named in any block
voting instructions 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. The proxies named in any block voting instruction need not be
Noteholders.
11. REQUIREMENTS FOR PROXIES
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 relevant Paying Agent shall be deposited at
such place as the Note Trustee shall approve not less than 24 hours
before the time appointed for holding the meeting or adjourned meeting
at which the proxies named in the block voting instruction propose to
vote and in default of such deposit 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. A notarially certified copy of each block voting instruction
shall, unless the Note Trustee otherwise agrees, 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 proxies named in any such block voting.
12. PROXY REMAINS VALID
Any vote cast in accordance with the terms of a block voting
instruction shall be valid notwithstanding the previous revocation or
amendment of the block voting instruction or of any of the Noteholder's
instructions pursuant to which it was executed PROVIDED THAT no
intimation in writing of such revocation or amendment shall have been
received from the relevant Paying Agent by the Trustee at its
registered office (or such other place as may have been approved by the
Note Trustee for the purpose) by the time being 24 hours before the
time appointed for holding the meeting or adjourned meeting at which
the block voting instruction is to be used.
13. EXTRAORDINARY RESOLUTIONS
(a) Subject to paragraph (b), a meeting of the Noteholders shall in
addition to the powers given under this deed have the following
powers exercisable by Extraordinary Resolution (subject to the
provisions relating to quorum contained in paragraphs 5 and 6
above) only:
(i) power to sanction any compromise or arrangement proposed to
be made between the Trustee and the Noteholders;
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(ii) power to sanction any abrogation, modification, compromise
or arrangement in respect of the rights of the Noteholders
against the Trustee or against any of its property or
against any other person whether such rights shall arise
under this deed, any of the Notes or otherwise;
(iii) power to assent to any modification of the provisions
contained in this deed, the Notes (including the
Conditions) or the provisions of any of the Relevant
Documents which shall be proposed by the Trustee or the
Note Trustee;
(iv) power to give any authority or sanction which under the
provisions of this deed or the Notes (including the
Conditions) is required to be given by Extraordinary
Resolution;
(v) power to appoint any persons (whether Noteholders or not)
as a committee or committees to represent the interests of
the Noteholders and to confer upon such committee or
committees any powers or discretions which the Noteholders
could themselves exercise by Extraordinary Resolution;
(vi) power to approve of a person to be appointed a trustee and
power to remove any trustee or trustees for the time being
under this deed;
(vii) power to discharge or exonerate the Note Trustee from all
liability in respect of any act or omission for which the
Note Trustee may have become responsible under this deed or
under the Notes;
(viii) power to authorise the Note Trustee to concur in and
execute and do all such deeds, instruments, acts and things
as may be necessary to carry out and give effect to any
Extraordinary Resolution;
(xi) power to sanction any scheme or proposal for the exchange
or sale of the Notes for, or the conversion of the Notes as
the case may be, into, or the cancellation of the Notes in
consideration of shares, stock, notes, bonds' debentures,
debenture stock and/or other obligations and/or securities
of the Trustee or of any other company formed or to be
formed, or for or into or in consideration of cash, or
partly for or into or in consideration of such shares,
stock, notes, bonds, debenture stock and/or other
obligations and/or securities as aforesaid and partly for
or into or in consideration of cash.
(b) Despite paragraph (a) no modification involving any of the matters
referred to in paragraphs 5(a) to 5(e) (both inclusive) above in
relation to the Noteholders shall be effective unless the Note
Trustee is of the opinion that such modification is being proposed
by the Trustee as a result of, or in order to avoid, an Event of
Default.
14. RESOLUTION BINDING ON NOTEHOLDERS
Subject to paragraph 13(b) above, any resolution passed at a meeting of
the Noteholders generally, or a Class of Noteholders, duly convened and
held in accordance with this deed shall be binding upon all the
Noteholders whether present or not present at such meeting and whether
or not voting; and, in such case, each of such Noteholders shall be
bound to give effect to such resolution accordingly and the passing of
any such resolution shall be conclusive evidence that the
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circumstances justify the passing thereof. Notice of the result of the
voting on any resolution duly considered by the Noteholders shall be
published in accordance with the relevant Condition 12 by the Trustee
within 14 days of such result being known PROVIDED THAT the
non-publication of such notice shall not invalidate such resolution.
15. MINUTES AND RECORDS
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 Trustee and any such Minutes as aforesaid if
purporting to be signed by the Chairman of the meeting at which such
resolutions were passed or proceedings had shall be conclusive evidence
of the matters contained in them and until the contrary is proved every
such meeting in respect of the proceedings of which Minutes have been
made shall be deemed to have been duly held and convened and all
resolutions passed at proceedings to have been duly passed or had.
16. FURTHER PROCEDURES FOR MEETINGS
Subject to all other provisions contained in this deed the Note Trustee
may without the consent of the Trustee the Noteholders prescribe such
further regulations regarding the requisitioning and/or the holding of
meetings of Noteholders and attendance and voting at meetings of
Noteholders as the Note Trustee may in its sole discretion think fit.
17. WRITTEN RESOLUTIONS
References in this deed to a resolution duly passed at a meeting of the
Noteholders shall include, where the context permits, a resolution in
writing signed by or on behalf of all Noteholders or a Class of
Noteholders who for the time being are entitled to receive notice of a
meeting in accordance with the provisions herein contained. Such
resolution in writing may be contained in one document or in several
documents in like form each signed by or on behalf of one or more of
the Noteholders.
18. GLOBAL NOTEHOLDER
So long as the Notes are represented by any Global Note, the holder of
a Global Note shall for the purposes of paragraph 5 be deemed to
constitute a quorum and for the purposes of this schedule be deemed to
be holding such Principal Amount of the Notes (up to the Principal
Amount of Notes then outstanding) as the holder of the Global Note may
specify and able to vote such amount for or against or to abstain from
voting in such Principal Amount as the holder may specify.
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SCHEDULE 4
INFORMATION TO BE CONTAINED IN NOTEHOLDERS REPORT
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The following information is to be included in the Noteholders Report for each
Collection Period:
(a) the aggregate Principal Amount of each Class of Notes as at the first
day after the Payment Date occurring during the Collection Period;
(b) the aggregate amount of Interest payable on each Class of Notes on the
corresponding Payment Date (if any);
(c) the aggregate of all Principal Payments to be made in respect of each
Class of Notes on the corresponding Payment Date (if any);
(d) the Income for the Collection Period;
(e) the Mortgage Principal Repayments for the Collection Period;
(f) the Expenses for the Collection Period;
(g) the aggregate of all Redraws made during the Collection Period;
(h) the Interest Rate for the Class A Notes for the Interest Period ending
on the day before the next Payment Date;
(i) the Interest Rate for the Class AB Notes for the Interest Period ending
on the day before the next Payment Date;
(j) the Interest Rate for the Class B Notes for the Interest Period ending
on the day before the next Payment Date;
(k) the scheduled and unscheduled payments of principal on the Purchased
Loans during the Collection Period;
(l) the aggregate of the outstanding balances of the Purchased Loans as at
the last day of the Collection Period;
(m) the Aggregate Principal Loss Amount (if any) for the Collection Period;
(n) the Charge-offs and Carryover Charge-offs in relation to each US$ Note
on the corresponding Payment Date (if any);
(o) the Recovery Amount for the corresponding Payment Date (if any); and
(p) delinquency and loss statistics with respect to the Purchased Loans
during the Collection Period.
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SCHEDULE 5
TERMS AND CONDITIONS OF US$ NOTES
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The following, subject to amendments, are the terms and conditions of the US$
Notes, substantially as they will appear on the reverse of the US$ Notes in
definitive form. US$ Notes in definitive form will only be issued in certain
circumstances. While the US$ Notes remain in global form, the same terms and
conditions govern them, except to the extent that they are appropriate only to
the US$ Notes in definitive form. For a summary of the provisions relating to
the US$ Notes in global form, see the summary at the end of this section.
Paragraphs in italics are included by way of explanation only, and do not
constitute part of the terms and conditions of the US$ Notes.
The issue of US$[*] Mortgage Backed Floating Rate Notes due March 2036 (the
CLASS A NOTES), US$[*] Mortgage Backed Floating Rate Notes due March 2036 (the
CLASS AB NOTES) and US$[*] Mortgage Backed Floating Rate Notes due March 2036
(the CLASS B NOTES), (the Class A Notes, the Class AB Notes and the Class B
Notes, together the US$ NOTES, and the Redraw Notes (as defined in the Series
Notice), the Class A Notes, the Class AB Notes and the Class B Notes, together
the NOTES) by Perpetual Trustees Victoria Limited in its capacity as trustee of
the Interstar Millennium Series 2004-2G Trust (the TRUST) (in such capacity the
ISSUER) was authorised by a resolution of the Board of Directors of the Issuer
passed on [*]. These Notes are: (a) issued subject to a Master Trust Deed (the
MASTER TRUST DEED) dated 2 December 1999 between Perpetual Trustees Victoria
Limited and Interstar Securities (Australia) Pty Limited and applying to the
Trust by reason of the Notice of Creation of Trust between Interstar
Securitisation Management Pty Limited (the TRUST MANAGER), Interstar Securities
(Australia) Pty Limited and the Issuer dated 31 December 2003, by a Series
Notice (the SERIES NOTICE) dated [*] between (among others) the Issuer, The Bank
of New York (the Note Trustee for the time being, referred to as the NOTE
TRUSTEE) as trustee for the holders for the time being of the US$ Notes (the US$
NOTEHOLDERS) and the Trust Manager and by these terms and conditions (the
CONDITIONS); (b) constituted by a Note Trust Deed dated [*] (the NOTE TRUST
DEED) between (among others) the Issuer, the Trust Manager, the Note Trustee,
The Bank of New York as principal paying agent (the PRINCIPAL PAYING AGENT,
which expression includes its successors as principal paying agent under the
Agency Agreement (as defined below)) and The Bank of New York as calculation
agent (the CALCULATION AGENT, which expression includes its successors as
calculation agent under the Agency Agreement (as defined below)); and (c)
secured by a Security Trust Deed (the SECURITY TRUST DEED) dated 31 December
2003 between the Issuer, the Trust Manager and Perpetual Trustee Company Limited
(in that capacity, the SECURITY TRUSTEE, which expression shall include its
successor for the time being as security trustee under the Security Trust Deed)
and acceded to by the Note Trustee.
The statements set out below include summaries of, and are subject to the
detailed provisions of, the Master Trust Deed, the Series Notice, the Security
Trust Deed and the Note Trust Deed. Certain words and expressions used in these
Conditions have the meanings defined in those documents. In accordance with an
agency agreement (the AGENCY AGREEMENT) dated [*] between the Issuer, the Trust
Manager, the Note Trustee, the Principal Paying Agent, the Calculation Agent and
The Bank of New York as note registrar (the NOTE REGISTRAR, which expression
includes its successors as note registrar under the Agency Agreement), and
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under which further paying agents may be appointed (together with the Principal
Paying Agent the PAYING AGENTS, which expression includes the successors of each
paying agent as such under the Agency Agreement and any additional paying agents
appointed), payments in respect of the US$ Notes will be made by the Paying
Agents and the Calculation Agent will make the determinations specified in the
Agency Agreement. The US$ Noteholders will be entitled (directly or indirectly)
to the benefit of, will be bound by, and will be deemed to have notice of, all
the provisions of the Conditions, the Master Trust Deed, the Series Notice, the
Security Trust Deed, the Note Trust Deed, the Agency Agreement and the
Investment Management Agreement (the SERVICING AGREEMENT) dated 3 December 1999
and made between the Issuer and Interstar Securities (Australia) Pty Limited as
servicer (in that capacity and together with any substitute or successor, the
SERVICER) (together with the agreements with respect to the Interest Rate Swap
and each Currency Swap (as each such term is defined below), those documents
being the RELEVANT DOCUMENTS and, together with certain other transaction
documents defined as such in the Series Notice, the TRANSACTION DOCUMENTS).
Copies of certain Transaction Documents are available for inspection at the New
York office of the Note Trustee, being at the date of issue of the US$ Notes 000
Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx 00000.
In connection with the issue of the US$ Notes, the Issuer may enter into an ISDA
(defined below) master interest rate exchange agreement with a counterparty
rated at least A-1 (short term) by S&P and A2 (long term) or P-1 (short term) by
Xxxxx'x (the INTEREST RATE SWAP PROVIDER) together with each confirmation
relating thereto (the INTEREST RATE SWAPS). The Issuer will enter into an ISDA
master currency exchange agreement with [*] (the CURRENCY SWAP PROVIDER and,
together with the Interest Rate Swap Provider, the SWAP PROVIDERS) together with
two confirmations relating thereto (each a CURRENCY SWAP and, together with the
Interest Rate Swap, the HEDGE AGREEMENTS).
Each Global Note for the US$ Notes will bear the following legend: "This global
note is a global bond for the purposes of section 128F(10) of the Income Tax
Assessment Act 1936 of the Commonwealth of Australia".
1. CONDITION 1. FORM, DENOMINATION AND TITLE
--------------------------------------------------------------------------------
The US$ Notes are serially numbered and will be issued in registered
form in minimum denominations of US$100,000 and integral multiples of
US$1,000 in excess thereof, without interest coupons.
The US$ Notes will be represented by three or more typewritten fully
registered book-entry notes (each, a GLOBAL NOTE and collectively, the
GLOBAL NOTES) registered in the name of Cede & Co. (CEDE) as nominee of
The Depository Trust Company (DTC). Beneficial interests in the Global
Notes will be shown on, and transfers thereof will be effected only
through, records maintained by DTC and its participants. Euroclear Bank
S.A./N.V., as operator of the Euroclear System (EUROCLEAR) and
Clearstream Banking, societe anonyme (CLEARSTREAM, LUXEMBOURG), may
hold interests in the Global Notes on behalf of persons who have
accounts with Euroclear and Clearstream, Luxembourg through accounts
maintained in the names of Euroclear or Clearstream, Luxembourg, or in
the names of their respective depositories, with DTC.
If the Issuer is obliged to issue Definitive Notes under clause 3.3 of
the Note Trust Deed, interests in the applicable Global Note will be
transferred to the beneficial owners thereof in the form of Definitive
Notes, without interest coupons, in the denominations set forth above.
A Definitive Note will be issued to each Noteholder in respect of its
registered holding or holdings of US$ Notes against
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delivery by such Noteholders of a written order containing instructions
and such other information as the Issuer and the Note Registrar may
require to complete, execute and deliver such Definitive Notes. In such
circumstances, the Issuer will cause sufficient Definitive Notes to be
executed and delivered to the Note Registrar for completion,
authentication and dispatch to the relevant Noteholders.
2. CONDITION 2. STATUS, SECURITY AND RELATIONSHIP BETWEEN THE REDRAW
NOTES, THE CLASS A NOTES, THE CLASS AB NOTES AND THE CLASS B NOTES
--------------------------------------------------------------------------------
The Notes are secured by a floating charge over all of the assets of
the Trust (which include, among other things, the Loans (as defined
below) and the Mortgages (as defined below) and related securities) (as
more particularly described in the Security Trust Deed) and within each
class will rank pari passu and rateably without any preference or
priority among themselves.
The priority with regard to payment of interest and principal in
respect of the Redraw Notes, the Class A Notes, the Class AB Notes and
the Class B Notes respectively are set out in Conditions 4 and 5. The
Notes are secured by the same charge, but the Redraw Notes and the
Class A Notes will rank pari passu and rateably as between themselves
and in priority to the Class AB Notes and the Class B Notes in the
event of the charge created by the security trust deed being enforced.
The Class AB Notes will rank pari passu and rateably as between
themselves and in priority to the Class B Notes in the event of the
charge created by the Security Trust Deed being enforced. Before the
enforcement of the charge created by the Security Trust Deed, and to
the extent that, and for so long as, the Threshold Requirements (as
defined in the Series Notice) are satisfied, payments of principal will
be applied (subject to certain other obligations ranking in priority)
in repaying principal: first, on the Redraw Notes pari passu without
preference or priority amongst themselves; and second, on the Class A
Notes, the Class AB Notes and the Class B Notes pari passu without
preference or priority amongst themselves. If the Threshold
Requirements are satisfied prior to the third anniversary of the Issue
Date, the Class AB Notes and the Class B Notes will be entitled to only
50% of their pro rata allocation, with the balance applied to repay
principal on the Class A Notes. On or after the third anniversary of
the Issue Date, if the Threshold Requirements are satisfied, the Class
AB Notes and the Class B Notes will be entitled to 100% of their pro
rata allocation. To the extent that, and for so long as, the Threshold
Requirements are not satisfied, before the enforcement of the charge
created by the Security Trust Deed, payments of principal will be
applied (subject to certain other obligations ranking in priority) in
repaying principal: first, on the Redraw Notes pari passu without
preference or priority amongst themselves; second, on the Class A Notes
pari passu without preference or priority amongst themselves; third, on
the Class AB Notes pari passu without preference or priority among
themselves; and fourth, on the Class B Notes pari passu without
preference or priority amongst themselves. Payments of Interest on the
Redraw Notes and the Class A Notes will rank pari passu amongst the
Redraw Notes and the Class A Notes and in priority to payments of
Interest on the Class AB Notes and the Class B Notes. Payments of
Interest on the Class AB Notes will rank pari passu amongst the Class
AB Notes and in priority to payments of Interest on the Class B Notes.
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The proceeds of the issue of the Notes are to be used by the Issuer to
purchase certain housing loans (the LOANS) and related mortgages (the
MORTGAGES) from Interstar Securities (Australia) Pty Limited (the
APPROVED SELLER).
The net proceeds of realisation of the assets of the Trust (including
following enforcement of the Security Trust Deed) may be insufficient
to pay all amounts due to the Noteholders. Save in certain limited
circumstances, the other assets of the Issuer will not be available for
payment of any shortfall arising and all claims in respect of such
shortfall shall be extinguished. None of the Servicer, the Trust
Manager, the Note Trustee, the Security Trustee, the Swap Providers,
the Paying Agents, the Calculation Agent, the Note Registrar or the
Note Managers (as defined in the Series Notice) has any obligation to
any Noteholder for payment of any amount by the Issuer in respect of
the Notes.
The Note Trust Deed contains provisions requiring the Note Trustee to
have regard to the interests of the US$ Noteholders as regards all the
powers, trusts, authorities, duties and discretions of the Note Trustee
(except where expressly provided otherwise).
The Security Trust Deed contains provisions requiring the Security
Trustee, subject to the other provisions of the Security Trust Deed,
(a) to give priority to the interests of the Redraw Noteholders and the
Class A Noteholders if there is a conflict between the interests of
such Noteholders and the Class AB Noteholder and the Class B
Noteholders, (b) to give priority to the interests of the Class AB
Noteholders if there is a conflict between the interests of such
Noteholders and the Class B Noteholders and (c) to give priority to the
interests of the Redraw Noteholders, the Class A Noteholders, the Class
AB Noteholders and the Class B Noteholders if there is a conflict
between the interests of such Noteholders and any other Voting
Mortgagee. If there is a conflict between the interests of the Redraw
Noteholders and the Class A Noteholders, the Security Trustee must
convene a meeting of the Redraw Noteholders and the Class A Noteholders
to resolve that conflict. An Extraordinary Resolution of the Redraw
Noteholders and the Class A Noteholders in respect of the conflict is
binding on all the Class A Noteholders.
3. CONDITION 3. COVENANTS OF THE ISSUER
--------------------------------------------------------------------------------
So long as any of the Notes remains outstanding, the Issuer makes
certain covenants for the benefit of the Noteholders which are set out
in the Master Trust Deed.
These covenants include the following.
(a) The Issuer must act continuously as trustee of the Trust until the
Trust is terminated as provided by the Master Trust Deed or the
Issuer has retired or been removed from office in the manner
provided under the Master Trust Deed.
(b) The Issuer must:
(i) act honestly and in good faith in the performance of its
duties and in the exercise of its discretions under the
Master Trust Deed;
(ii) subject to the Master Trust Deed, exercise such diligence
and prudence as a prudent person of business would exercise
in performing its express functions and in exercising its
discretions under the Master Trust Deed, having regard to
the interests of the Noteholders and other creditors and
beneficiaries of the Trust;
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(iii) use its best endeavours to carry on and conduct its
business in so far as it relates to the Master Trust Deed
in a proper and efficient manner;
(iv) keep, or ensure that the Trust Manager keeps, accounting
records which correctly record and explain all amounts paid
and received by the Issuer;
(v) keep the Trust separate from each other trust which is
constituted under the Master Trust Deed and account for
assets and liabilities of the Trust separately from those
of other trusts constituted under the Master Trust Deed;
(vi) do everything and take all such actions which are necessary
(including obtaining all appropriate authorisations) to
ensure that it is able to exercise all its powers and
remedies and perform all its obligations under the Master
Trust Deed, the Transaction Documents and all other deeds,
agreements and other arrangements entered into by the
Issuer under the Master Trust Deed; and
(vii) comply with the rules and regulations of any Stock Exchange
on which any Note is listed from time to time.
(c) Except as provided in any Transaction Document (and other than the
charge given to the Security Trustee), the Issuer must not, nor
shall it permit any of its officers to, sell, mortgage, charge or
otherwise encumber or part with possession of any asset of the
Trust (the TRUST ASSETS).
(d) The Issuer will open and operate certain bank accounts in
accordance with the Master Trust Deed and the Series Notice.
(e) Subject to the Master Trust Deed and any Transaction Document to
which it is a party, the Issuer must act on all directions given
to it by the Trust Manager in accordance with the terms of the
Master Trust Deed.
(f) The Issuer must properly perform the functions which are necessary
for it to perform under all Transaction Documents in respect of
the Trust.
4. CONDITION 4. INTEREST
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(a) PAYMENT DATES
Each US$ Note bears interest on its Principal Amount from and
including [*] or such later date as may be agreed between the
Issuer and the Note Managers for the issue of the US$ Notes (the
ISSUE DATE). Interest in respect of the US$ Notes will be payable
quarterly in arrears, on the 14th day of each March, June,
September and December, provided that, if any such date would
otherwise fall on a day which is not a Business Day (as defined
below), it will be postponed to the next day which is a Business
Day (as defined below), unless that day falls in the next calendar
month, in which case the due date will be the preceding Business
Day (each such date a PAYMENT DATE). The first Payment Date will
be in June 2004. The final Payment Date will be the earlier of the
Payment Date falling in March 2036 (the MATURITY DATE) and the
Payment Date on which the Notes are redeemed in accordance with
their terms.
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BUSINESS DAY in this Condition 4 and in Conditions 5, 6 and 9
below means any day other than a Saturday, Sunday or public
holiday on which banks are open for business in London, New York
City, Melbourne and Sydney.
The period beginning on (and including) the Issue Date and ending
on (but excluding) the first Payment Date, and each successive
period beginning on (and including) a Payment Date and ending on
(but excluding) the next Payment Date and the final period
referred to below is called an INTEREST PERIOD FOR THE US$ NOTES.
Interest payable on a US$ Note in respect of any relevant Interest
Period or any other period will be calculated on the basis of the
actual number of days elapsed and a 360 day year.
The final Interest Period for a US$ Note begins on (and includes)
the Payment Date prior to the earlier of the Maturity Date and the
date on which that US$ Note is redeemed in accordance with its
terms and ends on (but excludes) the earlier of the Maturity Date
and the date on which that US$ Note is so redeemed (as the case
may be).
(b) INTEREST RATE
The rate of interest applicable from time to time to a US$ Note
(the INTEREST RATE) will be determined by the Calculation Agent on
the basis of the following paragraphs.
On the date which is 2 Business Days before the beginning of each
Interest Period for the US$ Notes (each a RATE RESET DATE), the
Calculation Agent will determine LIBOR for that Interest Period,
which is the rate applicable for deposits in US dollars for a
period of 3 months which appears on the Telerate Page 3750 as of
11.00am London time on that Rate Reset Date. If such rate does not
appear on the Telerate Page 3750, the rate for that Interest
Period will be determined as if the Issuer and the Calculation
Agent had specified the rate USD-LIBOR-REFERENCE BANKS as the
applicable Floating Rate Option under the Definitions of the
International Swaps and Derivatives Association, Inc. (ISDA)
incorporating the 2000 ISDA Definitions, as amended and updated as
at the Issue Date (the ISDA DEFINITIONS). "USD-LIBOR-REFERENCE
BANKS" means that the rate for an Interest Period for the US$
Notes will be determined on the basis of the rates at which
deposits in US dollars are offered by the Reference Banks (being
four major banks in the London interbank market agreed to by the
Calculation Agent and the relevant Currency Swap Provider) at
approximately 11.00 am, London time, on the Rate Reset Date to
prime banks in the London interbank market for a period of 3
months commencing on the first day of that Interest Period and in
a Representative Xxxxxx (as defined in the ISDA Definitions). The
Calculation Agent will request the principal London office of each
of the Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that Interest
Period will be the arithmetic mean of the quotations. If fewer
than two quotations are provided as requested, the rate for that
Interest Period will be the arithmetic mean of the rates quoted by
four major banks in New York City, selected by the Calculation
Agent and the relevant Currency Swap Provider, at approximately
11.00 am, New York City time, on that Rate Reset Date for loans in
US dollars to leading European banks for a period of 3 months
commencing on the first day of that Interest Period and in a
Representative Amount. If no such rates are available in New York
City,
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then the rate for such Interest Period will be the most recently
determined rate in accordance with this paragraph.
[QUERY: INTERPOLATION FOR FIRST INTEREST PERIOD]
In this definition of LIBOR, BUSINESS DAY means any day on which
commercial banks are open for business (including dealings in
foreign exchange and foreign currency deposits) in London and New
York City.
The Interest Rate applicable to the Class A Notes for such
Interest Period will be the aggregate of the interest rate or
arithmetic mean as determined by the Calculation Agent as referred
to above and the margin of [*]% per annum applicable to the Class
A Notes. The Interest Rate applicable to the Class AB Notes for
such Interest Period will be the aggregate of the interest rate or
arithmetic mean as determined by the Calculation Agent as referred
to above and the margin of [*]% per annum applicable to the Class
AB Notes. The Interest Rate applicable to the Class B Notes for
such Interest Period will be the aggregate of the interest rate or
arithmetic mean as determined by the Calculation Agent as referred
to above and the margin of [*]% per annum applicable to the Class
B Notes. If the Issuer has not redeemed all of the Class A Notes
on or before the Payment Date falling in March 2009, the margin
applicable to the Class A Notes will increase to [*]% per annum
for the period from (and including) that date. If the Issuer has
not redeemed all of the Class AB Notes on or before the Payment
Date falling in March 2009, the margin applicable to the Class AB
Notes will increase to [*]% per annum for the period from (and
including) that date. If the Issuer has not redeemed all of the
Class B Notes on or before the Payment Date falling in March 2009,
the margin applicable to the Class B Notes will increase to [*]%
per annum for the period from (and including) that date.
There is no maximum or minimum Interest Rate for the Class A
Notes, the Class AB Notes or the Class B Notes.
(c) DETERMINATION OF INTEREST RATE AND CALCULATION OF INTEREST
The Calculation Agent will, as soon as practicable after 11.00 am
(London time) on each Rate Reset Date determine the relevant
Interest Rate applicable to, and calculate the amount of interest
payable (the INTEREST) for the immediately succeeding Interest
Period for each Class of US$ Notes. The Interest for each Interest
Period and each Class of US$ Notes is calculated by applying the
Interest Rate for the relevant Class of US$ Notes to the Principal
Amount of the relevant US$ Note on the first day of that Interest
Period, multiplying such product by the actual number of days in
that Interest Period and dividing by 360 and rounding the
resultant figure down to the nearest cent. The determination of
the Interest Rate and the Interest for each US$ Note by the
Calculation Agent is (in the absence of manifest error) final and
binding upon all parties.
(d) NOTIFICATION AND PUBLICATION OF INTEREST RATE AND INTEREST
The Calculation Agent will cause the Interest Rate and the
Interest applicable to each US$ Note for each Interest Period and
the relevant Payment Date to be notified to the Issuer, the Trust
Manager, the Note Trustee, the Paying Agents and each Currency
Swap Provider and the Trust Manager on behalf of the Issuer will
cause the same to be published in
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accordance with Condition 12 on or as soon as possible after the
date of commencement of the relevant Interest Period. The Interest
and the relevant Payment Date so published may subsequently be
amended (or appropriate alternative arrangements made by way of
adjustment) without notice in the event of an amendment of the
Interest Period.
(e) DETERMINATION OR CALCULATION BY THE TRUST MANAGER
If the Calculation Agent at any time for any reason does not
determine the Interest Rate for or calculate the Interest payable
on a US$ Note, the Trust Manager must do so and each such
determination or calculation will be deemed to have been made by
the Calculation Agent. In doing so, the Trust Manager must apply
the foregoing provisions of this Condition, with any necessary
consequential amendments, to the extent that it can do so, and, in
all other respects it must do so in such a manner as it reasonably
considers to be fair and reasonable in all the circumstances.
(f) CALCULATION AGENT
The Issuer will procure that, so long as any of the US$ Notes
remain outstanding, there will at all times be a Calculation
Agent. The Issuer, or the Trust Manager with the consent of the
Issuer (such consent not to be unreasonably withheld), with the
prior written approval of the Note Trustee, reserves the right at
any time to terminate the appointment of the Calculation Agent
immediately on the occurrence of certain specified events or,
otherwise, by giving not less than 60 days notice in writing to,
among others, the Calculation Agent. Notice of that termination
will be given to the US$ Noteholders in accordance with Condition
12. If any person is unable or unwilling to continue to act as the
Calculation Agent, or if the appointment of the Calculation Agent
is terminated, the Issuer will, with the prior written approval of
the Note Trustee, appoint a successor Calculation Agent to act as
such in its place, provided that neither the resignation nor
removal of the Calculation Agent will take effect until a
successor approved by the Note Trustee has been appointed.
(g) INCOME DISTRIBUTION
Capitalised terms in this paragraph (g) have the same meaning
given in the Series Notice unless otherwise defined in these
Conditions.
(i) On each Payment Date, the Issuer shall, prior to the
enforcement of the Security Trust Deed (in accordance with
the written direction provided to it by the Trust Manager
on or before the date which is 4 Business Days before that
Payment Date), out of the Income for the Collection Period
immediately before the Payment Date (and out of the
proceeds of disposal of any Liquid Authorised Investments
and/or out of Mortgage Principal Repayments as provided for
in Condition 4(g)(v)) make the following payments or retain
moneys in the following order of priority.
(A) FIRST - an amount equal to any Interest Adjustment
required to be paid to an Approved Seller and then
outstanding (and the Issuer acknowledges and agrees
that it has no entitlement to the moneys comprising
the Interest Adjustment).
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(B) SECOND - payment of any Taxes payable in relation to
the Trust (not including any GST covered in Conditions
4(g)(vii) and 4(g)(viii)).
(C) THIRD- subject to the above sub-paragraph (B) and
Condition 4(g)(iii), payment (in the following order
of priority) of:
(1) pari passu and rateably as between themselves,
payments of:
(I) the Trustee's Fee for the Collection Period
(as adjusted in accordance with Condition
4(g)(viii)); and
(II) any fees payable to the Note Trustee under
the Transaction Documents for the
Collection Period;
(2) pari passu and rateably as between themselves,
payments of:
(I) any fees payable, pari passu and rateably,
to the Paying Agents under the Transaction
Documents for the Collection Period;
(II) any fees payable to the Calculation Agent
under the Transaction Documents for the
Collection Period; and
(III) any fees payable to the Note Registrar
under the Transaction Documents for the
Collection Period;
(3) the Expenses (other than the Trustee's Fee, any
fees payable to the Note Trustee, the Paying
Agents, the Calculation Agent or the Note
Registrar, the Trust Manager's Fee and the
Servicer's Fee) in relation to the Collection
Period;
(4) the Expenses (other than the Trustee's Fee, any
fees payable to the Note Trustee, the Paying
Agents, the Calculation Agent or the Note
Registrar, the Trust Manager's Fee and the
Servicer's Fee) which the Trust Manager or the
Issuer reasonably anticipates will be incurred
prior to the next Payment Date; and
(5) the Expenses (other than the Trustee's Fee, any
fees payable to the Note Trustee, the Paying
Agents, the Calculation Agent or the Note
Registrar, the Trust Manager's Fee and the
Servicer's Fee) not covered by sub-paragraphs (3)
or (4) which have already been incurred prior to
the Payment Date but which have not previously
been paid or reimbursed.
(D) FOURTH - payment, pari passu and rateably, to:
(1) the Trust Manager of the Trust Manager's Fee for
the Collection Period; and
(2) the Servicer of the Servicer's Fee for the
Collection Period.
(E) FIFTH - pari passu and rateably as between themselves:
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(1) payment to the Interest Rate Swap Provider of any
amounts payable under the Interest Rate Swap
other than any Break Costs in respect of the
termination of the Interest Rate Swap;
(2) payment of any Interest for the Interest Period
for the Redraw Notes ending on that Payment Date
to the Redraw Noteholders;
(3) (I) prior to the termination of the Class A
Currency Swap, payment to the Class A
Currency Swap Provider of the Class A A$
Interest Amount for that Payment Date (and
the reciprocal payment by the Class A
Currency Swap Provider is thereafter to be
applied in accordance with Condition
5(c)(i) towards payment of Interest on the
Class A Notes); and
(II) after the termination of the Class A
Currency Swap, to the Note Trustee for
application in accordance with Condition
5(c) of the A$ amount that the Trust
Manager determines in good faith needs to
be applied on that Payment Date in order to
enable the Issuer to meet its obligations
to pay Interest on the Class A Notes on
that Payment Date and any unpaid Interest
on the Class A Notes in respect of previous
Payment Dates; and
(4) payment to the Class A Currency Swap Provider of
any Break Costs payable under the Class A
Currency Swap other than in respect of the
termination of the Class A Currency Swap where
the Class A Currency Swap Provider is the
Defaulting Party.
(F) (1) (I) SIXTH - prior to the termination of the
Class AB Currency Swap, payment to the
Class AB Currency Swap Provider of the
Class AB A$ Interest Amount for that
Payment Date (and the reciprocal payment by
the Class AB Currency Swap Provider is
thereafter to be applied in accordance with
Condition 5(c)(iii) towards payment of
Interest on the Class AB Notes); and
(II) after the termination of the Class AB
Currency Swap, to the Note Trustee for
application in accordance with Condition
5(c) of the A$ amount that the Trust
Manager determines in good faith needs to
be applied on that Payment Date in order to
enable the Issuer to meet its obligations
to pay Interest on the Class AB Notes on
that Payment Date and any unpaid Interest
on the Class AB Notes in respect of
previous Payment Dates; and
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(2) payment to the Class AB Currency Swap Provider of
any Break Costs payable under the Class AB
Currency Swap other than in respect of the
termination of the Class AB Currency Swap where
the Class AB Currency Swap Provider is the
Defaulting Party.
(G) SEVENTH - pari passu and rateably based on the amount
owing as between themselves:
(1) (I) prior to the termination of the Class B
Currency Swap, payment to the Class B
Currency Swap Provider of the Class B A$
Interest Amount for that Payment Date (and
the reciprocal payment by the Class B
Currency Swap Provider is thereafter to be
applied in accordance with Condition
5(c)(v) towards payment of Interest on the
Class B Notes); and
(II) after the termination of the Class B
Currency Swap, to the Note Trustee for
application in accordance with Condition
5(c) of the A$ amount that the Trust
Manager determines in good faith needs to
be applied on that Payment Date in order to
enable the Issuer to meet its obligations
to pay Interest on the Class B Notes on
that Payment Date and any unpaid Interest
on the Class B Notes in respect of previous
Payment Dates; and
(2) payment to the Class B Currency Swap Provider of
any Break Costs payable under the Class B
Currency Swap other than in respect of the
termination of the Class B Currency Swap where
the Class B Currency Swap Provider is the
Defaulting Party.
(H) EIGHTH - to be applied by the Issuer as Mortgage
Principal Repayments received by the Issuer during the
corresponding Collection Period, of an amount equal to
the aggregate of all amounts previously applied under
Condition 5(b)(i)(A)(1), to the extent not previously
so replenished under this sub-paragraph.
(I) NINTH - in reducing the Aggregate Principal Loss
Amount for the corresponding Collection Period until
the Aggregate Principal Loss Amount is reduced to
zero.
(J) TENTH - in reducing any Carryover Charge-offs that
have not been reduced prior to that Payment Date until
the Carryover Charge-offs are reduced to zero.
(K) ELEVENTH - in payment pari passu and rateably of any
Break Costs payable to:
(1) the Interest Rate Swap Provider in respect of the
termination of the Interest Rate Swap; and
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(2) a Currency Swap Provider in respect of the
termination of a Currency Swap where the Currency
Swap Provider is the Defaulting Party.
(L) TWELFTH - in payment of any Approved Seller's Fee.
(M) THIRTEENTH - subject to clause 15.1(d) of the Series
Notice, in payment of the balance, by way of a
distribution of the income of the Trust, to the
Residual Income Beneficiaries in proportion to their
respective Income Percentages.
(ii) The obligation of the Issuer to make any payment under each
of the above paragraphs of this Condition 4(g)(i) is
limited in each case to the Income, Liquid Authorised
Investments and Mortgage Principal Repayments or (as the
case may be) to the balance of the Income, Liquid
Authorised Investments and Mortgage Principal Repayments
available after payment in accordance with the preceding
paragraph or paragraphs (if any).
(iii) In the event that for any reason whatsoever the Issuer does
not have sufficient cash to make all of the payments as
provided in Conditions 4(g)(i) and 4(g)(v) then the amount
available to be paid shall be distributed in the order of
priority of distribution as referred to in Condition
4(g)(i), and:
(A) in the case of the payment of Interest to Redraw
Noteholders or Class A Noteholders under sub-paragraph
(i)(E), the proportion of any amount available to be
paid to each Noteholder of such Class shall be the
proportion which the Principal Amount of the Notes of
that Class held by that Noteholder bears to the Total
Principal Amount of all Notes of that Class;
(B) in the case of the payment of Interest to Class AB
Noteholders under sub-paragraph (i)(F), the proportion
of any amount available to be paid to each Noteholder
of such Class shall be the proportion which the
Principal Amount of the Notes of that Class held by
that Noteholder bears to the Total Principal Amount of
all Notes of that Class; and
(C) in the case of the payment of Interest to Class B
Noteholders under sub-paragraph (i)(G), the proportion
of any amount available to be paid to each Noteholder
of such Class shall be the proportion which the
Principal Amount of that Class held by that Noteholder
bears to the Total Principal Amount of all Notes of
that Class.
(iv) In the event that:
(A) the Issuer receives a payment under Condition
4(g)(i)(C) or 4(g)(v) for Expenses which the Issuer
reasonably anticipates will be incurred prior to the
next Payment Date; and
(B) all or any part of such Expenses are not actually
incurred prior to that next Payment Date,
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then the following provisions apply:
(C) the Issuer shall repay into the Assets of the Trust on
that next Payment Date such excess amount which was
not actually incurred; or
(D) if the Issuer fails to repay the amount in accordance
with sub-paragraph (iv)(C), then such amount shall be
set-off against the amount which would otherwise be
payable under sub-paragraph (i)(C) to the Issuer with
respect to such Expenses on that next Payment Date.
(v) If, during any Financial Year, the Income accrued for a
Collection Period to be applied on the corresponding
Payment Date is less than the aggregate of the amounts
payable by the Issuer under Conditions 4(g)(i)(A) to
4(g)(i)(G) (inclusive) on that Payment Date (the SHORTFALL)
then the Issuer shall (at the direction of the Trust
Manager) apply:
(A) first, Liquid Authorised Investments; and
(B) second, to the extent the Liquid Authorised
Investments are insufficient to cover the Shortfall in
full, Mortgage Principal Repayments,
in payment of those amounts in the order of priority set
out in Condition 4(g)(i), to the extent available to do so.
(vi) If the Approved Seller's Fee is not paid in full on a
relevant Payment Date, then the unpaid balance shall bear
interest at a rate determined by the Trust Manager and
advised to the Issuer from time to time, such interest to
be calculated on a daily balance from the due date up to
and including the date of actual payment.
(vii) Any GST which applies or may apply in respect of any
services provided pursuant to the Transaction Documents by
the Trust Manager in relation to the Trust will be paid by
the Trust Manager from the Trust Manager's Fee or from the
Trust Manager's own resources.
(viii) In relation to any supply by the Issuer under the
Transaction Documents of goods or services in relation to
the Trust, the fee payable will be adjusted to take into
account any change after 1 July 2000 in the rate of GST
payable pursuant to the A New Tax System (Goods and
Services Tax Imposition - General) Act 1999.
(ix) Interest to which any Noteholder may be entitled in respect
of a Note for an Interest Period shall only fall due for
payment by the Issuer to the Noteholder upon the applicable
Payment Date.
(h) REDRAWS
Capitalised terms in this paragraph (h) have the same meaning
given in the Series Notice unless otherwise defined in these
Conditions.
If an Obligor makes Additional Repayments in relation to a Loan
held by the Issuer then the Issuer must provide a Redraw to the
Obligor upon being so directed by the Trust Manager in its
absolute discretion and subject to the Trust Manager certifying to
the Issuer that:
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(i) the Redraw to be provided to the Obligor together with any
previous Redraws (if any) provided to the Obligor will not
exceed the amount of any Additional Repayments previously
made by that Obligor;
(ii) after allowing for all payments which the Issuer is then
required to make or which the Trust Manager reasonably
expects that the Issuer will be required to make, there is
or will be sufficient cash in the assets of the Trust
(whether as a result of the issue of Redraw Notes or
otherwise) for the Issuer to provide that Redraw; and
(iii) the Loan is not in Arrears at the time of the request for
the Redraw by the Obligor.
The Trust Manager may direct the Issuer to, and the Issuer must,
apply certain Mortgage Principal Repayments for funding Redraws.
If, on a Payment Date, Mortgage Principal Repayments for the
Collection Period preceding that Payment Date are insufficient to
fund Redraws for that Collection Period, then the Trust Manager
may give the Issuer a direction to issue a series of Redraw Notes
in accordance with clause 12 of the Master Trust Deed and clause 5
of the Series Notice. The Trust Manager must not give such a
direction unless it has received written confirmation from each
Designated Rating Agency that the issue of the Redraw Notes would
not result in a downgrade or withdrawal of a rating of any Note
then outstanding.
(i) LIQUID AUTHORISED INVESTMENTS
Capitalised terms in this paragraph (i) have the same meaning
given in the Series Notice unless otherwise defined in these
Conditions.
(i) The Trust Manager shall make such directions to the Issuer,
and the Issuer must comply with those directions required
to ensure that, subject to sub-paragraph (ii), the value of
the Liquid Authorised Investments is not at any time less
than the Prescribed Minimum Level at that time.
(ii) The Trust Manager must direct the Issuer, and the Issuer
must, at the direction of the Trust Manager, apply all or
part of the Liquid Authorised Investments towards payment
of the Shortfall in the amounts referred to in Conditions
4(g)(i)(A) to 4(g)(i)(G) (inclusive) as provided in
Condition 4(g)(v).
5. CONDITION 5. REDEMPTION AND PURCHASE
--------------------------------------------------------------------------------
Capitalised terms in this Condition 5 have the same meaning given in
the Series Notice unless otherwise defined in these Conditions.
(a) MANDATORY REDEMPTION IN PART FROM MORTGAGE PRINCIPAL REPAYMENTS
The US$ Notes are subject to mandatory redemption in part on any
Payment Date if on that date there are any Mortgage Principal
Repayments, (subject to the Prescribed Minimum Level) Liquid
Authorised Investments and the Recovery Amount available to be
distributed in relation to such US$ Notes (as detailed in
Condition 5(b)). The principal amount so redeemable in respect of
each US$ Note prior to enforcement of the Security Trust Deed
(each a PRINCIPAL PAYMENT) on any Payment Date is subject to the
priorities set
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out in Condition 5(b) and will be the amount available for payment
as set out in Condition 5(b) on the day which is 4 Business Days
before the Payment Date divided by the number of US$ Notes in that
Class which are then outstanding (rounded down to the nearest
cent), provided always that no Principal Payment on a US$ Note on
any date may exceed the amount equal to the Principal Amount of
that US$ Note at that date.
The amount of mandatory principal redemptions after enforcement of
the Security Trust Deed is subject to the priority of payments set
out in the Security Trust Deed.
Notice of amounts to be redeemed will be provided by the Trust
Manager to the Issuer, the Calculation Agent, the Principal Paying
Agent, each Currency Swap Provider and the Note Trustee.
(b) PRINCIPAL DISTRIBUTIONS ON NOTES PRIOR TO THE ENFORCEMENT OF THE
SECURITY TRUST DEED
(i) (A) All Mortgage Principal Repayments which are received by
the Issuer in each Collection Period, except to the
extent the Trust Manager directs the Issuer in writing
that such moneys be applied or retained for Liquidity
Purposes in accordance with the provisions of the
Series Notice and (subject to Condition 5(b)(i)(C)) any
Liquid Authorised Investments and the Recovery Amount
for the corresponding Payment Date must, prior to the
enforcement of the Security Trust Deed, be deposited or
paid by the Issuer (at the direction of the Trust
Manager, such direction to be given on or before the
date which is 4 Business Days before the relevant
Payment Date) on the corresponding Payment Date in the
following order of priority.
(1) FIRST - in accordance with Condition 4(g)(v).
(2) SECOND - to replenish Liquid Authorised
Investments until the value of the Liquid
Authorised Investments equals the Prescribed
Minimum Level.
(3) THIRD - to Redraw Noteholders (in the proportion
as specified in sub-paragraph (i)(B)) in payment
of the Principal Amount of Redraw Notes until
such time as all Redraw Notes have been redeemed
in full.
(4) FOURTH -
(I) to the extent that, and for so long as, the
Threshold Requirements are satisfied, in
accordance with Condition 5(b)(vi); or
(II) to the extent that, and for so long as, the
Threshold Requirements are not satisfied,
in accordance with Condition 5(b)(vii).
(5) FIFTH - subject to clauses 10.2(c) and 15.1(d) of
the Series Notice, in payment of the balance by
way of a distribution of the
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capital of the Trust, to the Residual Income
Beneficiaries in proportion to their respective
Income Percentages.
The obligation of the Issuer to make any deposit
or payment under each of the above paragraphs of
Condition 5(b)(i) is limited in each case to the
Mortgage Principal Repayments, (subject to
Condition 5(b)(i)(C)) Liquid Authorised
Investments and the Recovery Amount or (as the
case may be) to the balance of the Mortgage
Principal Repayments, (subject to Condition
5(b)(i)(C)) Liquid Authorised Investments and the
Recovery Amount available after deposit or
payment in accordance with the preceding
paragraph or paragraphs (if any).
(B) The proportion of any amount available to be paid to
any Noteholder as contemplated in Condition 5(b) in
respect of any Class of Notes will be the proportion
which the Principal Amount of the Note in respect of
that Class of Notes held by that Noteholder bears to
the Total Principal Amount of all Notes in respect of
that Class of Notes.
(C) The Trust Manager must not direct the Issuer to, and
the Issuer must not, deposit or pay any Liquid
Authorised Investments under Condition 5(b)(i)(A)(3),
5(b)(i)(A)(4) or 5(b)(i)(A)(5) where such deposit or
payment would result in the value of the Liquid
Authorised Investments being less than the Prescribed
Minimum Level.
(ii) On any Payment Date when the Total Principal Amount of all
Notes does not exceed 10% of the Initial Principal Amount
of all Notes the Issuer must, if so directed in writing by
the Trust Manager on or before the date which is 4 Business
Days before that Payment Date, repay the whole of the
Principal Amount of all Notes together with any outstanding
Interest in relation to those Notes subject to the
following conditions:
(A) the Trust Manager having provided to:
(1) each relevant Noteholder, the Issuer and the Note
Trustee, 30 days' prior notice (in the case of
US$ Noteholders, in accordance with Condition
12); and
(2) each Designated Rating Agency, 30 days' prior
written notice,
of the Trust Manager's intention to direct the Issuer
to redeem the relevant Notes under this sub-paragraph;
(B) the Issuer having sufficient cash to make such
repayment (upon which the Issuer may rely conclusively
on a certification from the Trust Manager);
(C) the Issuer retaining such amount as the Trust Manager
or the Issuer reasonably determines will be necessary
to satisfy any outstanding or anticipated Expenses or
payment to any Swap Provider under a Hedge Agreement;
and
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(D) the repayment being made in the order of priority set
out in Condition 5(b)(i) and, for the purposes of
Condition 5(b)(i)(A)(4), Condition 5(b)(vii).
(iii) On any Payment Date on or after a Step-Up Margin Date the
Issuer must, if so directed by the Trust Manager on or
before the date which is 4 Business Days before that
Payment Date, repay the whole of the Principal Amount of
any Class of Notes together with any outstanding Interest
in relation to those Notes subject to the following
conditions:
(A) the Trust Manager having provided to:
(1) each relevant Noteholder, the Issuer and the Note
Trustee, 30 days' prior notice (in the case of
US$ Noteholders, in accordance with Condition
12); and
(2) each Designated Rating Agency, 30 days' prior
written notice,
of the Trust Manager's intention to direct the Issuer
to redeem the relevant Notes under this sub-paragraph;
(B) the Trust Manager receiving from each Designated Rating
Agency written confirmation that the repayment will not
result in a downgrade or withdrawal of the rating of
any other Notes;
(C) the Issuer having sufficient cash to make such
repayment (upon which the Issuer may rely conclusively
on a certification from the Trust Manager);
(D) the Issuer retaining such amount as the Trust Manager
or the Issuer reasonably determines will be necessary
to satisfy any outstanding or anticipated Expenses,
payment to any Noteholder in respect of a Note (other
than a Note in respect of which Principal Amount and
Interest are to be repaid) or payment to any Swap
Provider under a Hedge Agreement; and
(E) the repayment being made in the order of priority set
out in Condition 5(b)(i) and, for the purposes of
Condition 5(b)(i)(A)(4), Condition 5(b)(vii).
The Trust Manager may give a direction described in
sub-paragraph (iii) in respect of any one Class of Notes,
with a particular Step-Up Margin Date notwithstanding that
it has not given a similar direction in relation to any
other Class with the same Step-Up Margin Date, provided
that in no circumstance may the Trust Manager give a
direction described in sub-paragraph (iii):
(1) in relation to Class AB Noteholders and Class B
Noteholders unless:
(I) there are at that time no Redraw Notes or
Class A Notes outstanding; or
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(II) the Trust Manager at the same time gives or
has given a direction described in
paragraph (iii) in relation to all Redraw
Notes and Class A Notes then outstanding;
and
(2) in relation to Class B Noteholders unless:
(I) there are at that time no Class AB Notes
outstanding; or
(II) the Trust Manager at the same time gives or
has given a direction described in
paragraph (iii) in relation to all Class AB
Notes then outstanding.
(iv) Notwithstanding any other provision in the Transaction
Documents, a Noteholder is not entitled to receive any
amounts other than:
(A) the Interest payable on, and
(B) the Principal Xxxxxx of,
Notes held by that Noteholder.
(v) The Issuer may not recover any Beneficiary distribution
from a Beneficiary once it is paid to that Beneficiary
except where there has been an error in the relevant
calculation of the Beneficiary distribution.
(vi) If, on a Payment Date, the Trust Manager directs the Issuer
that the Threshold Requirements are satisfied (including
after giving effect to any payments in Condition
5(b)(vii)), amounts applied under Condition
5(b)(i)(A)(4)(I) must be deposited or paid, pari passu and
rateably:
(A) (1) prior to the termination of the Class A Currency
Swap, to the Class A Currency Swap Provider of
the Class A A$ Equivalent of the Principal Amount
of the Class A Notes on that Payment Date (and
the reciprocal payment by the Class A Currency
Swap Provider is thereafter to be applied in
accordance with Condition 5(c)(ii) towards
payment of the Principal Amount of the Class A
Notes (in the proportion as specified in
sub-paragraph(i)(B)) until such time as all Class
A Notes have been redeemed in full; and
(2) after the termination of the Class A Currency
Swap, to the Note Trustee for application in
accordance with Condition 5(c) of the Class A A$
Equivalent of the Principal Amount of the Class A
Notes on that Payment Date until such time as all
Class A Notes have been redeemed in full;
(B) (1) prior to the termination of the Class AB Currency
Swap, to the Class AB Currency Swap Provider of
the Class AB A$ Equivalent of the Principal
Amount of the Class AB Notes on that Payment Date
(and the reciprocal payment by the Class AB
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Currency Swap Provider is thereafter to be
applied in accordance with Condition 5(c)(iv)
towards payment of the Principal Amount of the
Class AB Notes (in the proportion as specified in
sub-paragraph (i)(B)) until such time as all
Class AB Notes have been redeemed in full; and
(2) after the termination of the Class AB Currency
Swap, to the Note Trustee for application in
accordance with Condition 5(c) of the Class AB A$
Equivalent of the Principal Amount of the Class
AB Notes on that Payment Date until such time as
all Class AB Notes have been redeemed in full;
and
(C) (1) prior to the termination of the Class B Currency
Swap, to the Class B Currency Swap Provider of
the Class B A$ Equivalent of the Principal Amount
of the Class B Notes on that Payment Date (and
the reciprocal payment by the Class B Currency
Swap Provider is thereafter to be applied in
accordance with Condition 5(c)(vi) towards
payment of the Principal Amount of the Class B
Notes (in the proportion as specified in
sub-paragraph (i)(B)) until such time as all
Class B Notes have been redeemed in full; and
(2) after the termination of the Class B Currency
Swap, to the Note Trustee for application in
accordance with Condition 5(c) of the Class B A$
Equivalent of the Principal Amount of the Class B
Notes on that Payment Date until such time as all
Class B Notes have been redeemed in full;
provided that:
(D) if the Threshold Requirements are satisfied on any
Payment Date prior to the third anniversary of the
Issue Date, the Issuer must pay on that Payment Date
under each of sub-paragraphs (vi)(B) and (vi)(C), 50%
of the amount that would otherwise have been payable
if not for this sub-paragraph (vi)(D) and must pay the
balance of the amount otherwise so payable in
accordance with sub-paragraph (vi)(A). On or after the
third anniversary of the Issue Date, if the Threshold
Requirements are satisfied, the Class AB Notes and the
Class B Notes will be entitled to 100% of the amount
payable under each of sub-paragraphs (vi)(B) and
(vi)(C); and
(E) each such amount specified in this Condition 5(b)(vi)
shall only be deposited or paid to the extent that
such deposit or payment will not result in a breach of
the Threshold Requirements.
(vii) If, on a Payment Date, the Trust Manager directs the Issuer
that the Threshold Requirements are not satisfied
(including after giving effect to any payments set out in
Condition 5(b)(vi)), amounts applied under Condition
5(b)(i)(A)(4)(II) must be deposited or paid in the
following order of priority:
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(A) first:
(1) prior to the termination of the Class A Currency
Swap, to the Class A Currency Swap Provider of the
Class A A$ Equivalent of the Principal Amount of
the Class A Notes on that Payment Date (and the
reciprocal payment by the Class A Currency Swap
Provider is thereafter to be applied in
accordance with Condition 5(c)(ii) towards
payment of the Principal Amount of the Class A
Notes (in the proportion as specified in sub-
paragraph (i)(B)); and
(2) after the termination of the Class A Currency
Swap, to the Note Trustee for application in
accordance with Condition 5(c) of the Class A A$
Equivalent of the Principal Amount of the Class A
Notes on that Payment Date,
and, in each case, until such time as the Class A
Notes have been redeemed in full;
(B) second:
(1) prior to the termination of the Class AB Currency
Swap, to the Class AB Currency Swap Provider of
the Class AB A$ Equivalent of the Principal
Amount of the Class AB Notes on that Payment Date
(and the reciprocal payment by the Class AB
Currency Swap Provider is thereafter to be
applied in accordance with Condition 5(c)(iv)
towards payment of the Principal Amount of the
Class AB Notes (in the proportion as specified in
sub-paragraph (i)(B)); and
(2) after the termination of the Class AB Currency
Swap, to the Note Trustee for application in
accordance with Condition 5(c) of the Class AB A$
Equivalent of the Principal Amount of the Class
AB Notes on that Payment Date,
and, in each case, until such time as the Class AB
Notes have been redeemed in full; and
(C) third:
(1) prior to the termination of the Class B Currency
Swap, to the Class B Currency Swap Provider of
the Class B A$ Equivalent of the Principal Amount
of the Class B Notes on that Payment Date (and
the reciprocal payment by the Class B Currency
Swap Provider is thereafter to be applied in
accordance with Condition 5(c)(vi) towards
payment of the Principal Amount of the Class B
Notes (in the proportion as specified in sub-
paragraph (i)(B)); and
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(2) after the termination of the Class B Currency
Swap, to the Note Trustee for application in
accordance with Condition 5(c) of the Class B A$
Equivalent of the Principal Amount of the Class B
Notes on that Payment Date,
and, in each case, until such time as the Class B
Notes have been redeemed in full,
provided that each amount specified in this Condition
5(b)(vii) shall only be paid or deposited to the
extent that, after making the relevant payment or
deposit, the Threshold Requirements remain
unsatisfied.
(c) US$ ACCOUNT
The Issuer must direct each Currency Swap Provider to pay all
amounts denominated in US$ payable to the Issuer by that Currency
Swap Provider under each relevant Currency Swap into the US$
Account or to the Principal Paying Agent under the Agency
Agreement. The Issuer has given this direction in each relevant
Currency Swap.
The Note Trustee must, on each Payment Date on which the Issuer
pays an amount under Condition 4(g)(i)(E) (3)(II),
4(g)(i)(F)(1)(II), 4(g)(i)(G)(1)(II), 5(b) (vi)(A)(2),
5(b)(vi)(B)(2), 5(b)(vi)(C)(2), 5(b)(vii) (A)(2), 5(b)(vii)(B)(2)
or 5(b)(vii)(C)(2) (the AUD US$ AMOUNT), pay into the US$ Account
or to the Principal Paying Agent under the Agency Agreement, an
amount in US$ equal to the AUD US$ Amount at the spot exchange
rate in New York City for US$ purchases of Australian dollars on
that Payment Date.
The Issuer must, or must require that the Paying Agents on its
behalf, at the direction of the Trust Manager pay all such
amounts as follows, and in accordance with the Note Trust Deed
and the Agency Agreement (the following not in any order of
priority):
(i) as contemplated in Conditions 4(g)(i)(E)(3)(I) and
4(g)(i)(E)(3)(II), pari passu to Class A Noteholders in
relation to Class A Notes as payments of Interest on those
Class A Notes;
(ii) as contemplated in Conditions 5(b)(vi)(A)(1),
5(b)(vi)(A)(2), 5(b)(vii)(A)(1) and 5(b)(vii)(A)(2), pari
passu to Class A Noteholders in payment of the Principal
Amount of the Class A Notes until such time as all Class A
Notes have been redeemed;
(iii) as contemplated in Conditions 4(g)(i)(F)(1)(I) and
4(g)(i)(F)(1)(II), pari passu to Class AB Noteholders in
relation to Class AB Notes as payments of Interest on those
Class AB Notes;
(iv) as contemplated in Conditions 5(b)(vi)(B)(1),
5(b)(vi)(B)(2), 5(b)(vii)(B)(1) and 5(b)(vii)(B)(2), pari
passu to Class AB Noteholders in payment of the Principal
Amount of the Class AB Notes until such time as all Class AB
Notes have been redeemed;
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(v) as contemplated in Conditions 4(g)(i)(G)(1)(I) and
4(g)(i)(G)(1)(II), pari passu to Class B Noteholders in
relation to Class B Notes as payments of Interest on those
Class B Notes;
(vi) as contemplated in Conditions 5(b)(vi)(C)(1),
5(b)(vi)(C)(2), 5(b)(vii)(C)(1) and 5(b)(vii)(C)(2), pari
passu to Class B Noteholders in payment of the Principal
Amount of the Class B Notes until such time as all Class B
Notes have been redeemed;
(vii) as contemplated in Conditions 5(b)(ii) and 5(b)(iii):
(A) pari passu to Class A Noteholders in relation to Class
A Notes;
(B) pari passu to Class AB Noteholders in relation to the
Class AB Notes; and
(C) pari passu to Class B Noteholders in relation to Class
B Notes,
as payment of redemption amounts; and
(viii) as contemplated in Conditions 5(g), 5(h) and 5(i):
(A) pari passu to Class A Noteholders in relation to Class
A Notes;
(B) pari passu to Class AB Noteholders in relation to Class
AB Notes; and
(C) pari passu to Class B Noteholders in relation to Class
B Notes,
as payment of redemption amounts.
(d) CALCULATION OF PRINCIPAL PAYMENTS AND PRINCIPAL AMOUNT
(i) On each date which is 4 Business Days before each Payment
Date, the Trust Manager must determine:
(A) the amount of any Principal Payment in respect of each
US$ Note on the Payment Date following that date; and
(B) the Principal Amount of each US$ Note as at the first
day of the next following Interest Period for the US$
Notes (after deducting any Principal Payment due to be
made in respect of each US$ Note on the next Payment
Date).
(ii) The Trust Manager must notify the Issuer, the Note Trustee,
each Paying Agent, the Calculation Agent and each Currency
Swap Provider by not later than (or as soon as practicable
after) the date which is 4 Business Days before the relevant
Payment Date of each determination with respect to the US$
Notes of the Principal Payment and Principal Amount in
respect of that Payment Date and will immediately cause
details of each of those determinations to be published in
accordance with Condition 12. If no Principal Payment is due
to be made on the Class A Notes, the Class AB Notes or the
Class B Notes on any Payment Date a notice to this effect
will be given to the Class A Noteholders, the Class AB
Noteholders or Class B Noteholders (as the case may be) in
accordance with Condition 12.
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(iii) If the Trust Manager does not at any time for any reason
determine a Principal Payment or the Principal Amount
applicable to any US$ Note in accordance with this
paragraph, the Principal Payment and the Principal Amount
must be determined by the Calculation Agent in accordance
with this paragraph and paragraph (i) above (provided that
it has the relevant information in its possession to do so)
and each such determination or calculation will be deemed to
have been made by the Trust Manager.
(e) CALL
The Issuer must, when so directed by the Trust Manager (at the
Trust Manager's option), purchase or redeem the US$ Notes by
repaying the Principal Amount, in the circumstances described in
Conditions 5(b)(ii) and 5(b)(iii).
The Trust Manager will notify Noteholders of its intention to
direct the Issuer in relation to such a repurchase in accordance
with Condition 12.
(f) REDEMPTION FOR TAXATION OR OTHER REASONS
If the Trust Manager satisfies the Issuer and the Note Trustee
immediately prior to giving the notice referred to below that:
(i) on the next Payment Date the Issuer or a Paying Agent would
be required to deduct or withhold from any payment:
(A) of principal or interest in respect of the Notes; or
(B) to a Currency Swap Provider under a Currency Swap,
any amount for or on account of any present or future taxes,
duties, assessments or governmental charges of whatever
nature imposed, levied, collected, withheld or assessed by
any Government Agency; or
(ii) a Government Agency requires the deduction or withholding
from any payment by an Obligor in respect of a Purchased
Loan of any amount for or on account of any taxes, duties,
assessments or governmental charges of whatever nature
imposed, levied, collected, withheld or assessed by that
Government Agency,
the Issuer must, when so directed by Noteholders representing at
least 75% of the outstanding Principal Amount of the Notes
(provided that the Issuer will be in a position on the next
Payment Date to discharge (and the Trust Manager will so certify
to the Issuer and the Note Trustee upon which certification the
Issuer and the Note Trustee will rely conclusively) all its
liabilities in respect of the Notes (at their relevant Principal
Amount) and any amounts which would be required under the
Security Trust Deed to be paid in priority or pari passu with the
Notes if the security for the Notes were being enforced), having
given not more than 60 nor less than 45 days notice to the
Noteholders (in the case of US$ Noteholders, in accordance with
Condition 12), redeem all, but not some only, of the Notes at
their relevant Principal Amount together with accrued interest to
(but excluding) the date of redemption on the next Payment Date,
provided that the redemption is made in the order of priority set
out in Condition 5(b)(i) and, for the purposes of Condition
5(b)(i)(A)(4), Condition 5(b)(vii).
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(g) REDEMPTION FOR GROSS UP UNDER CURRENCY SWAPS
If the Trust Manager satisfies the Issuer and the Note Trustee
immediately prior to giving the notice referred to below that on
the next Payment Date a Currency Swap Provider would be required
to deduct or withhold from any payment under a Currency Swap any
amount for or on account of any present or future taxes, duties,
assessments or governmental charges of whatever nature imposed,
levied, collected, withheld or assessed by any Government Agency,
the Issuer must, when so directed by the Trust Manager (in its
sole discretion) (provided that the Issuer will be in a position
on such Payment Date to discharge (and the Trust Manager will so
certify to the Issuer and the Note Trustee) all its liabilities
in respect of the Notes (at their relevant Principal Amount) and
any amounts which would be required under the Security Trust Deed
to be paid in priority or pari passu with the Notes if the
security for the Notes were being enforced), having given not
more than 60 nor less than 45 days notice to the Noteholders,
redeem all, but not some only, of the Notes at their relevant
Principal Amount together with accrued interest to (but
excluding) the date of redemption on the next Payment Date,
provided that the redemption is made in the order of priority set
out in Condition 5(b)(i) and, for the purposes of Condition
5(b)(i)(A)(4), Condition 5(b)(vii).
(h) REDEMPTION ON MATURITY
If not otherwise redeemed, the Issuer must redeem US$ Notes at
their Principal Amount on the Maturity Date.
(i) CERTIFICATION
For the purpose of any redemption made under this Condition 5,
the Note Trustee may rely on Officer's Certificate of the Trust
Manager that the Issuer will be in a position to discharge all
its liabilities in respect of the US$ Notes and any amounts
required under the Security Trust Deed to be paid in priority to
or pari passu with the US$ Notes and that certificate will be
conclusive and binding on the Issuer and the holders of the US$
Notes. The Note Trustee will not incur any liability as a result
of relying on such certificate or such certificate subsequently
being considered invalid.
(j) CHARGE-OFFS
If, on any Payment Date, the Aggregate Principal Loss Amount for
the corresponding Collection Period exceeds the amount allocated
or available for allocation on that Payment Date under Condition
4(g)(i)(I), the amount of such excess will be the CHARGE-OFF for
that Payment Date.
6. CONDITION 6. PAYMENTS
--------------------------------------------------------------------------------
Any instalment of interest or principal, payable on any US$ Note which
is punctually paid or duly provided for by the Issuer to the Paying
Agent on the applicable Payment Date or Maturity Date shall be paid to
the person in whose name such US$ Note is registered on the Record
Date, either by cheque mailed first-class, postage prepaid, to such
person's address as it appears on the Note Register on such Record
Date or by wire transfer in immediately available funds to the account
designated by
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such person as it appears on the Note Register on such Record Date,
except that, unless Definitive Notes have been issued pursuant to
clause 3.3(a) of the Note Trust Deed, with respect to US$ Notes
registered on the Record Date in the name of the nominee of the
Clearing Agency (initially such Clearing Agency to be DTC and such
nominee to be Cede & Co.), payment will be made by wire transfer in
immediately available funds to the account designated by such nominee.
(a) INITIAL PRINCIPAL PAYING AGENT
The initial Principal Paying Agent is The Bank of New York at its
office at 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx, Xxx Xxxx, 00000.
(b) PAYING AGENTS
The Issuer (or the Trust Manager on its behalf with the consent
of the Issuer, such consent not to be unreasonably withheld), may
at any time (with the previous written approval of the Note
Trustee) vary or terminate the appointment of any Paying Agent
and appoint additional or other Paying Agents, provided that it
will at all times maintain a Paying Agent having a specified
office in New York City and a Paying Agent having a specified
office in London (which may be the same person). Notice of any
such termination or appointment and of any change in the office
through which any Paying Agent will act will be given by the
Trust Manager on behalf of the Issuer in accordance with
Condition 12.
(c) PAYMENT ON BUSINESS DAYS
If the due date for payment of any amount of principal or
Interest in respect of any US$ Note is not a Business Day then
payment will be made on the next succeeding Business Day unless
that day falls in the next calendar month, in which case the due
date will be the preceding Business Day and the holder of that
US$ Note is not entitled to any further interest or other payment
in respect of that delay.
(d) INTEREST ON UNPAID INTEREST
If Interest is not paid in respect of a US$ Note on the date when
due and payable (other than because the due date is not a
Business Day), that unpaid Interest will itself bear interest
(both before and after judgment) at the relevant Interest Rate
applicable from time to time to the relevant US$ Note until the
unpaid Interest, and interest on it, is available for payment and
notice of that availability has been duly given in accordance
with Condition 12.
7. CONDITION 7. TAXATION
--------------------------------------------------------------------------------
All payments in respect of the US$ Notes will be made without
withholding or deduction for, or on account of, any present or future
taxes, duties or charges of whatsoever nature unless the Issuer or any
Paying Agent is required by applicable law to make any such payment in
respect of the US$ Notes subject to any withholding or deduction for,
or on account of, any present or future taxes, duties or charges of
whatever nature. In that event the Issuer or that Paying Agent (as the
case may be) must make such payment after such withholding or
deduction has been made and must account to the relevant authorities
for the amount so required to be withheld or deducted. Neither the
Issuer
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nor any Paying Agent will be obliged to make any additional payments
to US$ Noteholders in respect of that withholding or deduction.
8. CONDITION 8. PRESCRIPTION
--------------------------------------------------------------------------------
A US$ Note will become void in its entirety unless surrendered for
payment within ten years of the Relevant Date (as defined below) in
respect of any payment on it the effect of which would be to reduce
the relevant Principal Amount of that US$ Note to zero. After the date
on which a US$ Note becomes void in its entirety, no claim may be made
in respect of it.
As used in these Conditions, the RELEVANT DATE means the date on which
a payment first becomes due but, if the full amount of the money
payable has not been received in New York City by the Principal Paying
Agent or the Note Trustee on or prior to that date, it means the date
on which, the full amount of such money having been so received,
notice to that effect is duly given by the Principal Paying Agent in
accordance with Condition 12.
9. CONDITION 9. EVENTS OF DEFAULT
--------------------------------------------------------------------------------
Each of the following is an EVENT OF DEFAULT (whether or not it is
within the control of the Issuer).
(a) The Issuer fails to pay:
(i) any Interest within 10 Business Days of the Payment Date on
which the Interest was due to be paid, together with all
interest accrued and payable on that Interest; and
(ii) any other moneys secured by the Security Trust Deed, within
10 Business Days of the due date for payment (or within any
applicable grace period agreed with the Mortgagee (as
defined in the Security Trust Deed) to whom the moneys
relate).
However, it will not be an Event of Default if the Issuer
fails to pay any moneys secured by the Security Trust Deed:
(A) which are subordinated to payment of amounts due to
Redraw Noteholders and Class A Noteholders while any
moneys secured by the Security Trust Deed remain owing:
(1) to Redraw Noteholders and Class A Noteholders; or
(2) which rank in priority to amounts due to Redraw
Noteholders and Class A Noteholders; or
(B) which are subordinated to payment of amounts due to
Class AB Noteholders while any moneys secured by the
Security Trust Deed remain owing:
(1) to Class AB Noteholders; or
(2) which rank in priority to amounts due to Class AB
Noteholders; or
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(C) where the Issuer had sufficient available funds with
its bankers with which any bank accounts of the Trust
are held and had given instructions to those bankers to
make that payment, and that the payment would have been
made but for temporary technical or administrative
difficulties outside the control of the Issuer.
(b) The Issuer fails to perform or observe any other provisions
(other than an obligation referred to in paragraph (a)) of a
Transaction Document (including any representation, warranty or
undertaking) and that default (if in the opinion of the Security
Trustee is capable of remedy) is not remedied within 30 days
after written notice (or such longer period as may be specified
in the notice) from the Security Trustee requiring the failure to
be remedied.
(c) Any of the following occurs in relation to the Issuer (in its
capacity as trustee of the Trust):
(i) an administrator of the Issuer is appointed;
(ii) except for the purpose of a solvent reconstruction or
amalgamation:
(A) an application or an order is made, proceedings are
commenced, a resolution is passed or proposed in a
notice of meeting or an application to a court or other
steps (other than frivolous or vexatious applications,
proceedings, notices and steps) are taken for:
(1) the winding up, dissolution or administration of
the Issuer; or
(2) the Issuer entering into an arrangement,
compromise or composition with or assignment for
the benefit of its creditors or a class of them;
or
(B) the Issuer ceases, suspends or threatens to cease or
suspend the conduct of all or substantially all of its
business or disposes of or threatens to dispose of
substantially all of its assets;
(iii) the Issuer is or states that it is, or under applicable
legislation is taken to be, unable to pay its debts (other
than as the result of a failure to pay a debt or claim the
subject of a good faith dispute) or stops or suspends or
threatens to stop or suspend payment of all or a class of
its debts (except, where this occurs only in relation to
another trust of which it is the trustee) and, for the
avoidance of doubt, an inability of the Issuer in its
capacity as trustee of the Trust to pay its debts does not
include the Issuer making any drawings under a Support
Facility in accordance with the Transaction Documents;
(iv) a receiver, receiver and manager or administrator is
appointed (by the Issuer or by any other person) to all or
substantially all of the assets and undertaking of the
Issuer;
(v) an application is made to a court for an order appointing a
liquidator or provisional liquidator in respect of the
Issuer, or one of them is appointed, whether or not under an
order;
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(vi) as a result of the operation of section 459F(1) of the
Corporations Act, the Issuer is taken to have failed to
comply with a statutory demand;
(vii) the Issuer is or makes a statement from which it may be
reasonably deduced that the Issuer is, the subject of an
event described in section 459C(2)(b) or section 585 of the
Corporations Act;
(viii) the Issuer takes any step to obtain protection or is
granted protection from its creditors, under any applicable
legislation; or
(ix) anything analogous to an event referred to in sub-paragraphs
(i) to (viii) (inclusive) or having substantially similar
effect occurs with respect to the Issuer.
(d) The charge created by the Security Trust Deed is not or ceases to
be a first ranking charge over the assets of the Trust, or any
other obligation of the Issuer (other than as mandatorily
preferred by law) ranks ahead of or pari passu with any of the
moneys secured by the Security Trust Deed.
(e) Any security interest over the assets of the Trust is enforced.
(f) (i) For so long as any Secured Moneys are owing to the Redraw
Noteholders and the Class A Noteholders, an Interest Rate
Swap or Class A Currency Swap is terminated and a
replacement Interest Rate Swap or Class A Currency Swap (as
the case may be) on terms that will not lead to a withdrawal
or downgrade of the rating assigned to any Notes, is not put
in place; or
(ii) for so long as no Secured Moneys are owing to the Redraw
Noteholders and the Class A Noteholders, an Interest Rate
Swap or Class AB Currency Swap is terminated and a
replacement Interest Rate Swap or Class AB Currency Rate
Swap (as the case may be) on terms that will not lead to a
withdrawal or downgrade of the rating assigned to any Notes,
is not put in place; or
(iii) for so long as no Secured Moneys are owing to the Redraw
Noteholders, the Class A Noteholders or the Class AB
Noteholders, an Interest Rate Swap or Class B Currency Swap
is terminated and a replacement Interest Rate Swap or Class
B Currency Rate Swap (as the case may be) on terms that will
not lead to a withdrawal or downgrade of the rating assigned
to any Notes, is not put in place.
(g) (i) All or any part of any Transaction Document (other than an
Interest Rate Swap or a Currency Swap) is terminated or is
or becomes void, illegal, invalid, unenforceable or of
limited force and effect; or
(ii) a party becomes entitled to terminate, rescind or avoid all
or part of any Transaction Document (other than an Interest
Rate Swap or a Currency Swap).
(h) Without the prior consent of the Security Trustee:
(i) the Trust is wound up, or the Issuer is required to wind up
the Trust under the Master Trust Deed or applicable law, or
the winding up of the Trust commences;
(ii) the Trust is held or is conceded by the Issuer not to have
been constituted or to have been imperfectly constituted; or
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(iii) unless another trustee is appointed to the Trust under the
Transaction Documents, the Issuer ceases to be authorised
under the Trust to hold the property of the Trust in its
name and to perform its obligations under the Transaction
Documents.
In the event that the charge constituted by the Security Trust Deed
becomes enforceable following an event of default under the Notes any
funds resulting from the realisation of such charge will be applied in
accordance with the order of priority of payments as stated in the
Security Trust Deed.
10. CONDITION 10. ENFORCEMENT
--------------------------------------------------------------------------------
(a) At any time after an Event of Default occurs, the Security
Trustee must (subject to being appropriately indemnified), if so
directed by an Extraordinary Resolution of the Voting Mortgagees
(being 75% of votes capable of being cast by Voting Mortgagees
present in person or by proxy of the relevant meeting or a
written resolution signed by all Voting Mortgagees) declare the
Notes immediately due and payable and declare the charge to be
enforceable. If an Extraordinary Resolution of Voting Mortgagees
referred to above elects not to direct the Security Trustee to
enforce the Security Trust Deed, in circumstances where the
Security Trustee could enforce, the Note Trustee must, at the
direction of the relevant Class of US$ Noteholders (by an
Extraordinary Resolution of those US$ Noteholders (as defined in
the Note Trust Deed) or in writing by the holders of at least 75%
of the aggregate Principal Amount of the US$ Notes in that
Class), direct the Security Trustee to enforce the Security Trust
Deed on behalf of that Class of Noteholders.
VOTING MORTGAGEE means:
(i) with respect only to the enforcement of the charge under the
Security Trust Deed, for so long as the amounts outstanding
under the Redraw Notes, the Class A Notes and the Class AB
Notes are 75% or more of all amounts secured by the Security
Trust Deed, the Redraw Noteholders, the Class A Noteholders
and the Class AB Noteholders (being, in the case of the
Class A Noteholders and the Class AB Noteholders, the Note
Trustee or, if the Note Trustee has become bound to take
steps and/or to proceed under the Security Trust Deed and
fails to do so within a reasonable time and such failure is
continuing, the Class A Noteholders and the Class AB
Noteholders and then only if and to the extent that the
Class A Noteholders and the Class AB Noteholders are able to
do so under the Transaction Documents); and
(ii) at any other time (subject to the Note Trust Deed and the
Security Trust Deed):
(A) the Note Trustee acting on behalf of the US$
Noteholders or, if the Note Trustee has become bound to
take steps and/or to proceed under the Security Trust
Deed and fails to do so within a reasonable time and
such failure is continuing, the US$ Noteholders and
then only if and to the extent that the US$ Noteholders
are able to do so under the Transaction Documents and
Australian law); and
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(B) each other Mortgagee under the Security Trust Deed
(other than the US$ Noteholders).
Subject to being indemnified in accordance with the Security
Trust Deed, the Security Trustee must take all action
necessary to give effect to any Extraordinary Resolution of
the Voting Mortgagees and must comply with all directions
contained in or given pursuant to any Extraordinary
Resolution of the Voting Mortgagees in accordance with the
Security Trust Deed.
No Noteholder (in its capacity as Noteholder) is entitled to
enforce the Security Trust Deed or to appoint or cause to be
appointed a receiver to any of the assets secured by the
Security Trust Deed or otherwise to exercise any power
conferred by the terms of any applicable law on chargees
except as provided in the Security Trust Deed and as
referred to in (A) above.
(b) If any of the US$ Notes remain outstanding and are due and
payable otherwise than by reason of a default in payment of any
amount due on the US$ Notes, the Note Trustee must not vote under
the Security Trust Deed to enforce the Security Trust Deed or
dispose of the property mortgaged or charged by the Security
Trust Deed or any security interest in favour of the Security
Trustee securing the Secured Moneys (the MORTGAGED PROPERTY)
unless either:
(i) 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 advisor selected by the
Note Trustee, that a sufficient amount would be realised to
discharge in full all amounts owing to the US$ Noteholders
and any other amounts payable by the Issuer ranking in
priority to or pari passu with the US$ Notes; or
(ii) 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 advisor selected by the
Note Trustee, that the cash flow receivable by the Issuer
(or the Security Trustee under the Security Trust Deed) will
not (or that 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, to
discharge in full in due course all the amounts referred to
in sub-paragraph (i).
(c) Neither the Note Trustee (except in the case of negligence, fraud
or wilful default by it) nor the Security Trustee (except in the
case of negligence, fraud or wilful default by it) will be liable
for any decline in the value, nor any loss realised upon any sale
or other dispositions made under the Security Trust Deed, of any
Mortgaged Property 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 or any third party in respect of
the Issuer or the Notes or relating in any way to the Mortgaged
Property. Without limitation, neither the Note Trustee nor the
Security Trustee will be liable for any such decline or loss
directly or indirectly arising from its acting, or failing to
act, as a consequence of a reasonable opinion reached by it in
good faith based on advice received by it in accordance with the
Note Trust Deed or the Security Trust Deed, as the case may be.
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(d) Subject to the provisions of the Note Trust Deed, the Note
Trustee will not be bound to vote under the Security Trust Deed
or to take any proceedings, actions or steps under, or any other
proceedings pursuant to or in connection with the Security Trust
Deed, the Note Trust Deed or any US$ Notes, unless directed or
requested to do so: (i) by an Extraordinary Resolution of the
relevant Class of US$ Noteholders; or (ii) in writing by the
holders of at least three-quarters of the aggregate Principal
Amount of the relevant Class of US$ Notes, and then only if the
Note Trustee is indemnified to its satisfaction against all
action, 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.
(e) Only the Security Trustee may enforce the provisions of the
Security Trust Deed and neither the Note Trustee nor any holder
of a US$ Note is entitled to proceed directly against the Issuer
to enforce the performance of any of the provisions of the
Security Trust Deed or the US$ Notes (including these Conditions)
except as provided for in the Security Trust Deed and the Note
Trust Deed.
(f) The rights, remedies and discretions of the US$ Noteholders under
the Security Trust Deed including all rights to vote or give
instructions or consent can only be exercised by the Note Trustee
on behalf of the US$ Noteholders in accordance with the Security
Trust Deed. The Security Trustee may rely on any instructions or
directions given to it by the Note Trustee as being given on
behalf of the US$ Noteholders from time to time and need not
enquire whether the Note Trustee or the US$ Noteholders from time
to time have complied with any requirements under the Note Trust
Deed or as to the reasonableness or otherwise of the Note
Trustee. The Security Trustee is not obliged to take any action,
give any consent or waiver or make any determination under the
Security Trust Deed without being directed to do so by the Voting
Mortgagees in accordance with the Security Trust Deed.
(g) Prior to the Security Trustee becoming actually aware of the
occurrence of an Event of Default and provided that it has been
indemnified in accordance with the Security Trust Deed, the
Security Trustee may enforce the Security Trust Deed without an
Extraordinary Resolution of the Voting Mortgagees if it believes
(in its absolute discretion) that it is necessary to do so to
protect the interests of the Mortgagees (provided that it must
enforce the Security Trust Deed if so directed by an
Extraordinary Resolution of the Voting Mortgagees).
Upon enforcement of the charge created by the Security Trust Deed, the
net proceeds of enforcement may be insufficient to pay all amounts due
on redemption of the Notes. The proceeds from enforcement (which will
not include amounts required by law to be paid to the holder of any
prior ranking security interest, and the proceeds of cash collateral
lodged with and payable to a Swap Provider or other provider of a
Support Facility) will be applied in the order of priority as set out
in the Security Trust Deed. Any claims of the Noteholders remaining
after realisation of the charge and application of the proceeds will,
except in certain limited circumstances, be extinguished.
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11. CONDITION 11. REPLACEMENT OF US$ NOTES
--------------------------------------------------------------------------------
If any US$ Note is lost, stolen, mutilated, defaced or destroyed, it
may be replaced at the specified office of any Paying Agent upon
payment by the claimant of the costs incurred in connection with that
replacement and on such terms as to evidence and indemnity as the
Paying Agent may reasonably require. Mutilated or defaced US$ Notes
must be surrendered before replacements will be issued.
12. CONDITION 12. NOTICES
--------------------------------------------------------------------------------
(a) Where the Note Trust Deed or these Conditions provide for notice
to US$ Noteholders of any event, such notice shall be
sufficiently given (unless otherwise provided by law or otherwise
herein expressly provided) if:
(i) for so long as any Notes are listed on the Australian Stock
Exchange, published in a leading newspaper having general
circulation in Australia. Each such notice will be deemed to
be given on the date of the first publication; or
(ii) in relation to any notice specifying a Payment Date, an
Interest Rate, any Interest payable, any Principal Payment
(or the absence of a Principal Payment) or the Principal
Amount of any US$ Note after any Principal Payment, that
notice is published on a page of the Reuters Screen or the
electronic information system made available by Bloomberg
L.P. or any other similar electronic reporting service as
may be approved by the Note Trustee in writing and notified
to the US$ Noteholders.
Such notice will be deemed to be given on the first date on
which it appears on the relevant electronic reporting
service.
(b) If, for any reason, it is impractical to give notice in the
manner provided in paragraph (ii) of Condition 12(a), then the
manner of giving notice referred to in paragraph (i) of Condition
12(a) shall be deemed to be a sufficient giving of notice.
(c) Where these conditions provide for notice in any manner, such
notice may be waived in writing by any person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by US$
Noteholders shall be filed with the Note Trustee but such filing
shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
13. CONDITION 13. MEETINGS OF VOTING MORTGAGEES AND MEETINGS OF US$
NOTEHOLDERS; MODIFICATIONS; CONSENTS; WAIVER
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The Security Trust Deed contains provisions for convening meetings of
the Voting Mortgagees to, among other things, enable the Voting
Mortgagees to direct or consent to the Security Trustee taking or not
taking certain actions under the Security Trust Deed, for example to
enable the Voting Mortgagees to direct the Security Trustee to enforce
the Security Trust Deed.
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The Note Trust Deed contains provisions for convening meetings of
(among others) US$ Noteholders and Classes of US$ Noteholders to
consider any matter affecting their interests, including the directing
of the Note Trustee to direct the Security Trustee to enforce the
charge under the Security Trust Deed, or the sanctioning by
Extraordinary Resolution of a Class of US$ Noteholders of a
modification of that Class of US$ Notes (including these Conditions)
or the provisions of any of the Relevant Documents, provided that no
modification of certain terms including, among other things, the date
of maturity of any US$ Notes, or a modification which would have the
effect of altering the amount of interest payable in respect of a US$
Note or modification of the method of calculation of the interest
payable or of the date for payment of interest in respect of any US$
Notes, reducing or cancelling the amount of principal payable in
respect of any US$ Notes or altering the majority required to pass an
Extraordinary Resolution or altering the currency of payment of any
US$ Notes or an alteration of the date or priority of payment of
interest on, or redemption of, any US$ Notes (any such modification
being referred to below as a BASIC TERMS MODIFICATION) will be
effective except that, if the Note Trustee is of the opinion that such
a Basic Terms Modification is being proposed by the Issuer as a result
of, or in order to avoid, an Event of Default, such Basic Terms
Modification may be sanctioned by Extraordinary Resolution of the
relevant Class of US$ Noteholders as described below. The quorum at
any meeting of a Class of US$ Noteholders for passing an Extraordinary
Resolution will be two or more persons holding or representing over
50% of the aggregate Principal Amount of the US$ Notes in that Class
then outstanding or, at any adjourned meeting, two or more persons
being or representing US$ Noteholders in that Class whatever the
aggregate Principal Amount of the US$ Notes so held or represented
except that, at any meeting the business of which includes the
sanctioning of a Basic Terms Modification, the necessary quorum for
passing an Extraordinary Resolution will be two or more persons
holding or representing 75% or at any adjourned such meeting 25%, or
more of the aggregate Principal Amount of the US$ Notes in that Class
then outstanding. An Extraordinary Resolution passed at any meeting of
a Class of US$ Noteholders will be binding on all US$ Noteholders in
that Class, whether or not they are present at the meeting. The
majority required for an Extraordinary Resolution will be 75% of the
votes cast in respect of that Extraordinary Resolution.
Pursuant to the terms of the Note Trust Deed, the Note Trustee, the
Trust Manager and the Issuer may agree, without the consent of the US$
Noteholders, among other things, to any alteration, addition or
modification to the Notes or any Transaction Document that is:
(a) to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(b) in the opinion of the Note Trustee, necessary to comply with the
provisions of any law or regulation or with the requirements of
any governmental authority;
(c) in the opinion of the Note Trustee appropriate or expedient as a
consequence of an amendment to any law or regulation or altered
requirements of any governmental authority; or
(d) in the opinion of the Note Trustee neither prejudicial nor likely
to be prejudicial to the interests of the US$ Noteholders.
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The Note Trustee may also, in accordance with the Note Trust Deed and
without the consent of the US$ Noteholders (but not in contravention
of an Extraordinary Resolution), waive or authorise any breach or
proposed breach of the US$ Notes (including these Conditions) or any
Transaction Document or determine that any Event of Default or any
condition, event or act which with the giving of notice and/or lapse
of time and/or the issue of a certificate would constitute an Event of
Default will not, or will not subject to specified conditions, be
treated as such. Any such modification, waiver, authorisation or
determination will be binding on the US$ Noteholders and, if, but only
if, the Note Trustee so requires, any such modification must be
notified to the US$ Noteholders in accordance with Condition 12 as
soon as practicable.
14. CONDITION 14. INDEMNIFICATION AND EXONERATION OF THE NOTE TRUSTEE
AND THE SECURITY TRUSTEE
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The Note Trust Deed and the Security Trust Deed contain provisions for
the indemnification of the Note Trustee and the Security Trustee
(respectively) and for their relief from responsibility, including
provisions relieving them from taking proceedings to realise the
charge under the Security Trust Deed and to obtain repayment of the
US$ Notes unless indemnified to their satisfaction. Each of the Note
Trustee and the Security Trustee is entitled to enter into business
transactions with the Issuer and/or any other party to the Relevant
Documents without accounting for any profit resulting from such
transactions. Except in the case of negligence, fraud or wilful
default, neither the Security Trustee nor the Note Trustee will be
responsible for any loss, expense or liability which may be suffered
as a result of any assets secured by the Security Trust Deed, other
Mortgaged Property or any related deeds or documents of title, being
uninsured or inadequately insured or being held by or to the order of
the Servicer or any of its affiliates or by clearing organisations or
their operators or by any person on its behalf if prudently chosen in
accordance with the Transaction Documents.
Where the Note Trustee is required to express an opinion or make a
determination or calculation under the Transaction Documents, the Note
Trustee may appoint or engage such independent advisors as the Note
Trustee reasonably requires to assist in the giving of that opinion or
the making of that determination or calculation and any costs and
expenses properly incurred by and payable to those advisors will be
reimbursed to the Note Trustee by the Issuer or, if another person is
expressly stated in the relevant provision in a Transaction Document,
that person.
15. CONDITION 15. LIMITATION OF LIABILITY OF THE ISSUER
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(a) GENERAL
Clause 32 of the Master Trust Deed applies to the obligations and
liabilities of the Issuer in relation to the US$ Notes.
(b) LIABILITY OF ISSUER LIMITED TO ITS RIGHT OF INDEMNITY
(i) The Transaction Documents apply to the Issuer only in its
capacity as trustee of the Trust and in no other capacity. A
liability incurred by the Issuer acting in its capacity as
trustee of the Trust arising under or in connection with the
Transaction Documents or the Trust is limited to and can be
enforced against the
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Issuer only to the extent to which it can be satisfied out
of property of the Trust out of which the Issuer is actually
indemnified for the liability. This limitation of the
Issuer's liability applies despite any other provision of
the Transaction Documents and extends to all liabilities and
obligations of the Issuer in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to the Transaction Documents or the
Trust.
(ii) The parties other than the Issuer may not sue the Issuer in
any capacity other than as trustee of the Trust or seek the
appointment of a receiver (except in relation to the assets
of the Trust), liquidator, administrator or similar person
to the Issuer or prove in any liquidation, administration or
arrangements of or affecting the Issuer (except in relation
to the assets of the Trust).
(iii) The provisions of this Condition 15 do not apply to any
obligation or liability of the Issuer to the extent that it
is not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of the
Issuer's indemnification out of the Assets of the Trust as a
result of the Issuer's fraud, negligence, or wilful default.
(iv) It is acknowledged that the Relevant Parties are responsible
under the Transaction Documents for performing a variety of
obligations relating to the Trust. No act or omission of the
Issuer (including any related failure to satisfy its
obligations or breach of representation or warranty under
the Transaction Documents) will be considered fraud,
negligence or wilful default of the Issuer for the purpose
of paragraph (iii) of this Condition 15 to the extent to
which the act or omission was caused or contributed to by
any failure by any Relevant Party (other than a person whose
acts or omissions the Issuer is liable for in accordance
with the Transaction Documents) to fulfil its obligations
relating to the Trust or by any other act or omission of any
Relevant Party (other than a person whose acts or omissions
the Issuer is liable for in accordance with the Transaction
Documents) regardless of whether or not that act or omission
is purported to be done on behalf of the Issuer.
(v) No attorney, agent, receiver or receiver and manager
appointed in accordance with a Transaction Document has
authority to act on behalf of the Issuer in a way which
exposes the Issuer to any personal liability and no act or
omission of any such person will be considered fraud,
negligence or wilful default of the Issuer for the purpose
of paragraph (iii) of this Condition 15, provided (in the
case of any person selected and appointed by the Issuer)
that the Issuer has exercised reasonable care in the
selection of such persons.
(vi) In this Condition 15(b), RELEVANT PARTY means each of the
Trust Manager, the Servicer, the Calculation Agent, each
Paying Agent, the Note Trustee and any Support Facility
Provider.
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16. CONDITION 16. GOVERNING LAW
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The US$ Notes and the Relevant Documents are governed by, and shall be
construed in accordance with, the laws of New South Wales, Australia.
The Note Trust Deed is governed by the laws of New South Wales,
Australia except for clauses 13 and 34 of the Note Trust Deed, its
standard of care under clause 14 of the Note Trust Deed and the
administration of the trust constituted under the Note Trust Deed
which are governed by the law of the State of New York.
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SUMMARY OF PROVISIONS RELATING TO THE US$ NOTES WHILE IN GLOBAL FORM
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Each of the US$ Notes will initially be represented by typewritten book-entry
notes (the GLOBAL NOTES), without coupons, in the principal amount of US$[*] and
US$[*] respectively (in the case of the Class A Global Notes), US$[*] (in the
case of the Class AB Global Notes) and US$[*] (in the case of the Class B Global
Notes). The Global Notes will be deposited with the Common Depository for DTC on
or about the Closing Date. Upon deposit of the Global Notes with the Common
Depository, DTC will credit each investor in the US$ Notes with a principal
amount of US$ Notes for which it has subscribed and paid.
Each Global Note will be exchangeable for definitive Notes in certain
circumstances described below.
(a) PAYMENTS
Interest and principal on each Global Note will be payable by the each Paying
Agent to the Common Depository.
Each of the persons appearing from time to time as the beneficial owner of a US$
Note will be entitled to receive any payment so made in respect of that US$ Note
in accordance with the respective rules and procedures of DTC. Such persons will
have no claim directly against the Issuer in respect of payments due on the US$
Notes which must be made by the Issuer to the holder of the relevant Global Note
for so long as such Global Note is outstanding.
A record of each payment made on a Global Note, distinguishing between any
payment of principal and any payment of interest, will be recorded in the Note
Register by the Note Registrar and such record shall be prima facie evidence
that the payment in question has been made.
(b) EXCHANGE
A Global Note will be exchangeable for Definitive Notes only if:
(i) the Principal Paying Agent advises the Trust Manager in writing that
DTC is no longer willing or able to discharge properly its
responsibilities as depository for the US$ Notes and the Trust Manger
is unable to locate a qualified successor; or
(ii) the Issuer, at the direction of the Trust Manager, advises the
Principal Paying Agent in writing that it has elected to terminate the
book-entry system through DTC; or
(iii) after the occurrence of an Event of Default, the Note Trustee, at the
written direction of Noteholders holding a majority of the outstanding
Principal Amount of the US$ Notes, advises the Issuer and the
Principal Paying Agent that the continuation of a book-entry system is
no longer in the best interests of the US$ Noteholders.
If any event referred to above occurs, the Trust Manager must direct the Issuer
to, and the Issuer must (at its expense), within 30 days of becoming aware of
the occurrence of the relevant event, issue Definitive Notes in exchange for the
whole of the outstanding interest in the relevant Global Note.
(c) NOTICES
So long as the US$ Notes are represented by Global Notes and the same are held
on behalf of a Clearing Agency, notices to US$ Noteholders may be given to the
relevant Clearing Agency for communication by it
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to entitled account holders in substitution for delivery to each Note Owner of a
US$ Note as required by the relevant Conditions.
(d) CANCELLATION
Cancellation of any US$ Note required by the relevant Conditions will be
effected by reduction in the principal amount of the relevant Global Note.
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