Note Trust Deed
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
(Trustee)
CRUSADE MANAGEMENT LIMITED
(Manager)
THE BANK OF NEW YORK
(Note Trustee)
THE BANK OF NEW YORK
(Principal Paying Agent)
THE BANK OF NEW YORK
(Calculation Agent)
P.T. LIMITED
(Security Trustee)
XXXXXX XXXXXX XXXXXXXX
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 0 0000 0000
Fax 00 0 0000 0000
(C) Copyright Xxxxxx Xxxxxx Xxxxxxxx 2005
Note Trust Deed
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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) 23.6(b)
(a)(3) 23.6
(a)(4) 22.2(b)
(a)(5) NA(2)
(b) 23.6
(c) NA
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311 (a) 13.1
(b) 13.1
(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) 11.1(m)
(b) 11.1(m)
(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)
(b) 13.4
(c) 13.2(a)
(d) 13.2(c), (d)
(e) 36.2
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316 (a)(1) 36.3
(a)(2) 37.2(b)
(b) 36.4, 37.2(a)
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317 (a)(1) 6.1
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Note Trust Deed
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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 2
1.1 Definitions and Interpretation 2
1.2 Definitions in Master Trust Deed, Supplementary Terms Notice
and Conditions 4
1.3 Incorporation by reference 4
1.4 Interpretation 5
1.5 Determination, statement and certificate sufficient evidence 5
1.6 Document or agreement 5
1.7 Transaction Document 5
1.8 Trustee as trustee 6
1.9 Knowledge of Trustee 6
1.10 Knowledge of the Note Trustee 6
1.11 Appointment of the Note Trustee 6
1.12 Obligations of the Trustee 6
1.13 Opinion of Counsel 7
2. PAYMENTS ON NOTES 7
2.1 Principal amount 7
2.2 Covenant to repay 7
2.3 Deemed payment 8
2.4 Following Event of Default 8
2.5 Requirements for Paying Agents 9
2.6 Certification 9
3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, NOTES 10
3.1 Issue of Book-Entry Notes 10
3.2 Form of Book-Entry Notes 10
3.3 Definitive Class A-1 Notes 12
3.4 Definitive Class A-2 Notes 12
3.5 Notice of Exchange Events 14
3.6 Stamp and Other Taxes 14
3.7 Indemnity for non-issue 14
3.8 Note Register and Note Registrar 14
4. COVENANT OF COMPLIANCE 16
5. CANCELLATION OF OFFSHORE NOTES 16
5.1 Cancellation of Offshore Notes 16
5.2 Records 16
6. ENFORCEMENT 17
6.1 Actions following Event of Default 17
6.2 Evidence of default 17
6.3 Overdue interest 17
6.4 Restrictions on enforcement 17
6.5 Action by Offshore Noteholders 18
7. PROCEEDINGS 18
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7.1 Acting only on direction 18
7.2 Security Trustee acting 19
7.3 Note Trustee alone entitled to act 19
7.4 Available amounts 20
7.5 No liability 20
8. NOTICE OF PAYMENT 20
9. INVESTMENT BY NOTE TRUSTEE 20
10. PARTIAL PAYMENTS 21
11. COVENANTS BY THE TRUSTEE AND MANAGER 21
12. REMUNERATION OF NOTE TRUSTEE 24
12.1 Fee 24
12.2 Additional Remuneration 25
12.3 Costs, expenses 25
12.4 Overdue rate 25
12.5 Continuing obligation 26
13. NOTE TRUSTEE 26
13.1 Preferential Collection of Claims Against Trustee 26
13.2 Duties of Note Trustee 26
13.3 Rights and limited responsibilities of Note Trustee 27
13.4 Notice of Defaults 34
14. NOTE TRUSTEE'S LIABILITY 35
15. DELEGATION BY NOTE TRUSTEE 35
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE 35
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE 36
18. WAIVER 36
19. AMENDMENT 37
19.1 Approval 37
19.2 Extraordinary Resolution of Offshore Noteholders 38
19.3 Distribution of amendments 38
19.4 Amendments binding 38
19.5 Conformity with TIA 38
20. OFFSHORE NOTEHOLDERS 38
20.1 Absolute Owner 38
20.2 Clearing Agency Certificate 40
21. CURRENCY INDEMNITY 40
22. NEW NOTE TRUSTEES 41
22.1 Appointment by Trustee 41
22.2 Appointment by Note Trustee 41
22.3 Notice 42
23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL 42
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23.1 Removal by Trustee 42
23.2 Removal by Offshore Noteholders 42
23.3 Resignation 43
23.4 Trust Corporation 43
23.5 Successor to Note Trustee 43
23.6 Eligibility; Disqualification 44
24. NOTE TRUSTEE'S POWERS ADDITIONAL 44
25. SEVERABILITY OF PROVISIONS 44
26. NOTICES 45
26.1 General 45
26.2 Details 45
27. GOVERNING LAW AND JURISDICTION 47
28. COUNTERPARTS 47
29. LIMITED RECOURSE 47
29.1 General 47
29.2 Liability of Trustee limited to its right to indemnity 47
29.3 Unrestricted remedies 48
29.4 Restricted remedies 48
30. SUCCESSOR TRUSTEE 49
31. REIMBURSEMENT FOR THE COST OF INDEPENDENT ADVICE 49
32. NO LIABILITY 49
33. INFORMATION MEMORANDUM 50
34. NOTE TRUSTEE'S LIMITED LIABILITY 50
34.1 Reliance on certificate 50
34.2 Note Trustee's reliance on Manager, Security Trustee,
Trustee or Servicer 51
34.3 Compliance with laws 51
34.4 Reliance on experts 51
34.5 Oversights of others 51
34.6 Powers, authorities and discretions 52
34.7 Impossibility or impracticability 52
34.8 Legal and other proceedings 52
34.9 No liability except for negligence etc. 53
34.10 Further limitations on Note Trustee's liability 53
34.11 Conflicts 54
34.12 Information 55
34.13 Investigation by Note Trustee 55
35. NOTEHOLDERS' LISTS AND REPORTS 55
35.1 Provision of information 55
35.2 Preservation of Information; Communications to Noteholders 56
35.3 Reports by Note Trustee 56
35.4 Notices to Class A-1 Noteholders; Waiver 56
35.5 Reports by Trustee 57
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36. TRUST INDENTURE ACT - MISCELLANEOUS 57
36.1 Compliance Certificates and Opinions, etc 57
36.2 Undertaking for Costs 59
36.3 Exclusion of section 316 59
36.4 Unconditional Rights of Offshore Noteholders to Receive
Principal and Interest 60
36.5 Conflict with Trust Indenture Act 60
37. CONSENT OF OFFSHORE NOTEHOLDERS 60
37.1 General 60
37.2 Special Written Approvals 60
37.3 Requirement for writing 62
37.4 No conflict between actions of Offshore Noteholders 62
38. DOCUMENTS 62
SCHEDULE 1 66
Form of Class A-1 Book-Entry Note 66
Assignment 70
SCHEDULE 2 71
Information to be contained in Noteholder's Report 71
SCHEDULE 3 72
Terms and Conditions of the Class A-1 Notes 72
1. FORM DENOMINATION AND TITLE 73
SCHEDULE 4 96
Form of Class A-2 Book-Entry Note 96
Assignment 101
SCHEDULE 5 102
Terms and Conditions of the Class A-2 Notes 102
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DATE 2005
PARTIES
1. PERPETUAL TRUSTEES CONSOLIDATED LIMITED (ABN 81 004 029 841)
incorporated in Australia and registered in Victoria of Level 7, 0
Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000 in its capacity as
trustee of the Crusade Global Trust No. 1 of 2005 (the TRUSTEE);
2. CRUSADE MANAGEMENT LIMITED (ABN 90 072 715 916) incorporated in
Australia and registered in New South Wales of 0-00 Xxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxxx Xxxxx 0000 as Manager of the Crusade Global Trust
No. 1 of 2005 (the MANAGER);
3. THE BANK OF NEW YORK acting through its office at 000 Xxxxxxx Xxxxxx,
Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx xx Xxxxxxx (the
NOTE TRUSTEE), which expression shall, wherever the context requires,
include any other person or company for the time being a trustee under
this deed or trustees of this deed;
4. THE BANK OF NEW YORK acting through its office at 000 Xxxxxxx Xxxxxx,
Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx xx Xxxxxxx as
principal paying agent for the Class A-1 Notes described below and
acting through its office at 00xx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx X00
0XX, Xxxxxx Xxxxxxx as principal paying agent for the Class A-2 Notes
described below (together the PRINCIPAL PAYING AGENT), which
expression shall wherever the context requires, include any successor
principal paying agent from time to time appointed under the Agency
Agreement;
5. THE BANK OF NEW YORK acting through its office at 00xx Xxxxx, 0 Xxxxxx
Xxxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx (the CALCULATION AGENT), which
expression shall wherever the context requires, include any successor
calculation agent from time to time appointed under the Agency
Agreement;
6. P.T. LIMITED (ABN 67 004 454 666) incorporated in Australia and
registered in Victoria of Level 0, 0 Xxxxxxxxxxx Xxxxxx, Xxxxxx, XXX
0000 in its capacity as security trustee (the SECURITY TRUSTEE)
RECITALS
A The Trustee has resolved at the direction of the Manager to issue
US$[600,000,000] of Class A-1 Notes due June 2037 (the CLASS A-1
NOTES), (euro)[500,000,000] of Class A-2 Notes due June 2037 (the
CLASS A-2 NOTES and together with the Class A-1 Notes, the OFFSHORE
NOTES), A$[500,000,000] of Class
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A-3 Notes due June 2037, A$[26,700,000] of Class B Notes due June 2037
and A$[8,600,000] of Class C Notes due June 2037 (together those A$
denominated Notes being the A$ NOTES). The Offshore Notes are 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 Offshore
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.
CLASS A NOTE OWNER means a Class A-1 Note Owner or a Class A-2 Note Owner
(as applicable).
CLASS A-1 NOTE OWNER means, with respect to a Class A-1 Book-Entry Note,
the person who is the beneficial owner of such Class A-1 Book-Entry Note,
as reflected on the books of the Clearing Agency, or on the books of the
person maintaining an account with such Clearing Agency (directly as
Clearing Agency Participant or as an indirect participant) in each case in
accordance with the rules of such Clearing Agency.
CLASS A-2 NOTE OWNER means, with respect to a Class A-2 Book-Entry Note,
the person who is the beneficial owner of such Class A-2 Book-Entry Note,
as reflected on the books of the Clearing Agency, or on the books of the
person maintaining an account with such Clearing Agency (directly as
Clearing Agency Participant or as an indirect participant) in each case in
accordance with the rules of such Clearing Agency.
CLEARING AGENCY PARTICIPANT means a broker, dealer, bank, other financial
institution or other person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
CORPORATE TRUST OFFICE means the office of the Note Trustee 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, Xxxxx 00 Xxxx,
Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx xx Xxxxxxx, or at such other
address as the Note Trustee may designate by notice to the Manager, the
Offshore Noteholders and the Trustee or the principal corporate trust
office of any successor Note Trustee.
EVENT OF DEFAULT means, in respect of an Offshore Note, any of the events
described in the relevant Condition 9.
EXCHANGE ACT means the United States Securities Exchange Act of 1934, as
amended.
EXTRAORDINARY RESOLUTION has the meaning given in clause 19.2.
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INDEPENDENT means, in relation to a person, that the person:
(a) is independent of the Trustee, the Manager, the Servicer, any Approved
Seller and any of their Associates;
(b) does not have any direct financial interest or any material indirect
financial interest (other than less than 5% of the outstanding amount
of any publicly traded security) in any person referred to in
paragraph (a); and
(c) is not an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions of any person referred
to in paragraph (a).
INDEPENDENT CERTIFICATE means, in relation to any person, a certificate or
opinion from that person where that person must be Independent, which
opinion or certificate states that the signer has read the definition of
INDEPENDENT in this deed and that the signer is Independent within the
meaning of that definition.
MASTER TRUST DEED means the Master Trust Deed dated 14 March 1998 between
the Trustee, Xx.Xxxxxx Bank Limited and the Manager.
NOTE DEPOSITORY AGREEMENT means the agreement among the Trustee, the
Principal Paying Agent and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Class A-1
Notes, as the same may be amended or supplemented from time to time.
NOTEHOLDERS REPORT means the report to be delivered by the Manager, on
behalf of the Trustee, in accordance with clause 11(n)(i) containing the
information set out in Schedule 2.
OFFICER'S CERTIFICATE means a certificate signed by any Authorised
Signatory of the Trustee or the 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 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 and the Note Trustee, as applicable.
PAYING AGENT means any institution appointed as a Paying Agent by the
Trustee under the Agency Agreement.
RESPONSIBLE OFFICER means, with respect to the Note Trustee, any of its
officers, including any Vice President, Assistant Vice President or any
other of its officers customarily performing functions similar to those
performed by any of them and, with respect to a particular matter, any
other officer in the Corporate Trust Department to whom such matter is
referred because of such officer's knowledge of, and familiarity with, the
particular subject.
STATUTE means legislation now or hereafter in force of the Parliament of
the Commonwealth of Australia or of any State or Territory thereof or of
any legislative body of any other country or political subdivision thereof
and any rule, regulation, ordinance, by-law, statutory instrument, order or
notice now or hereafter made under such legislation.
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SUPPLEMENTARY TERMS NOTICE means the Supplementary Terms Notice dated on or
about the date of this deed between the Trustee, the Manager, the Note
Trustee, the Security Trustee, Xx.Xxxxxx and the Custodian.
TIA means the United States Trust Indenture Act of 1939, as amended.
TRUST ACCOUNT means the Collection Account, the US$ Account, the Euro
Account or any other account maintained by or on behalf of the Trustee in
relation to the Trust.
TRUST CORPORATION means:
(a) a corporation with the power and authority to act as a trustee in
relation to the Note Trust at law or pursuant to legislation
applicable to trustees in any relevant jurisdiction; and
(b) any person eligible for appointment as a trustee under an indenture to
be qualified pursuant to the TIA, as set forth in Section 310 of the
TIA,
which shall include The Bank of New York for so long as it complies with
such legislation.
1.2 DEFINITIONS IN MASTER TRUST DEED, SUPPLEMENTARY TERMS NOTICE AND CONDITIONS
(a) Words and expressions which are defined in the Master Trust Deed (as
amended by the Supplementary Terms Notice), the Supplementary Terms
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;
(ii) definitions in the Supplementary Terms 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 Supplementary Terms 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
Offshore Noteholder under this deed unless the Note Trustee (or the
relevant Offshore Noteholders acting under clause 6.5, as the case may
be) has agreed in writing to the changes under this deed.
1.3 INCORPORATION BY REFERENCE
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 meaning in this deed.
COMMISSION means the Securities and Exchange Commission of the United
States of America.
INDENTURE SECURITIES means the Class A-1 Notes.
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INDENTURE SECURITY HOLDER means a Class A-1 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 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.
1.4 INTERPRETATION
Clause 1.2 of the Master Trust Deed applies to this deed as if set out in
full and:
(a) 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;
(b) an Event of Default SUBSISTS until it has been waived in writing by
the Note Trustee;
(c) 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
(d) all references to costs or charges or expenses include any value added
tax or similar tax charged or chargeable in respect of the charge or
expense.
1.5 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.
1.6 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.
1.7 TRANSACTION DOCUMENT
This deed is a TRANSACTION DOCUMENT for the purposes of the Master Trust
Deed.
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1.8 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.
1.9 KNOWLEDGE OF TRUSTEE
In relation to the Trust, the Trustee will only 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.
1.10 KNOWLEDGE OF THE NOTE TRUSTEE
In relation to the Trust, 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.
1.11 APPOINTMENT OF THE NOTE TRUSTEE
The Note Trustee:
(a) is appointed to act as trustee on behalf of the Offshore Noteholders
on the terms and conditions of this deed; and
(b) acknowledges and declares that it:
(i) holds the sum of US$10.00 received on the date of this deed;
(ii) will hold the benefit of the obligations of the Trustee under
this deed; and
(iii) will hold the benefit of the covenant in clause 2.2, the
covenants in clause 11 and all other rights of the Offshore
Noteholders under the Offshore Notes,
in each case, on trust for each Offshore Noteholder in accordance with the
terms and conditions of this deed.
1.12 OBLIGATIONS OF THE TRUSTEE
(a) Where the Manager may act on behalf of the Trustee, failing action by
the Manager in accordance with the relevant clause (including any
requirement to take such action within a specified time) the reference
to the Manager acting on behalf of the Trustee shall be construed as a
reference to the Trustee.
(b) Without limiting the Trustee's obligations under paragraph (a), the
Trustee shall not be liable for any act or omission by the Manager
where it is acting or fails to act (as the case may be) on behalf of
the Trustee under this deed.
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(c) Where the Manager is empowered to act on behalf of the Trustee, the
Manager undertakes to the Trustee that it will duly and punctually
perform, on behalf of the Trustee, those obligations imposed on the
Trustee in accordance with the terms of the relevant clause.
1.13 OPINION OF COUNSEL
For the purposes of this deed, the Trustee and the Note Trustee may where
necessary seek, and rely conclusively on, any Opinion of Counsel on any
matters relating to or connected with the TIA. Where the Trustee or the
Note Trustee elects to seek and has sought the Opinion of Counsel it shall
not be required to take any action under this deed unless and until it has
received such an Opinion of Counsel. The cost of any such Opinion of
Counsel will be an Expense of the Trustee in relation to the Trust.
2. PAYMENTS ON NOTES
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2.1 PRINCIPAL AMOUNT
(a) The aggregate initial principal amount of the Class A-1 Notes is
limited to US$[600,000,000].
(b) The aggregate initial principal amount of the Class A-2 Notes is
limited to (euro)[500,000,000].
2.2 COVENANT TO REPAY
(a) The Trustee covenants with the Note Trustee that the Trustee will, in
accordance with the terms of the Offshore 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 the relevant Condition 6) at the
direction of the Manager on:
(i) the Final Maturity Date; or
(ii) each earlier date as the Offshore 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:
(iii) in US$ in New York for immediate value the principal amount of
those Class A-1 Notes repayable, or in the case of a partial
payment of those Class A-1 Notes, the principal amount payable,
subject to and in accordance with the terms of those Class A-1
Notes (including the relevant Conditions); and
(iv) in Euros in London for immediate value the principal amount of
those Class A-2 Notes repayable, or in the case of a partial
payment of those Class A-2 Notes, the principal amount payable,
subject to and in accordance with the terms of those Class A-2
Notes (including the relevant Conditions).
(b) Subject to clause 2.3 and to the terms of the Offshore Notes
(including the relevant Conditions and in particular the relevant
Condition 6) and the Transaction Documents
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(including clause 29 of this deed), until any payment both before as
well as after any judgment or other order of a court of competent
jurisdiction, the Trustee shall, at the direction of the Manager, pay
or procure to be paid unconditionally in accordance with this deed to
or to the order of the Note Trustee:
(i) any interest on the Offshore Notes, 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 on the Offshore Notes at the times and in the
amounts provided for in accordance with the relevant Conditions.
2.3 DEEMED PAYMENT
Any payment of principal or interest in respect of any Offshore 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
those Offshore Notes by the Trustee in this clause 2 to the extent of that
payment, except to the extent that the Principal Paying Agent subsequently
fails to pay that amount under those Offshore Notes in accordance with the
terms of those Offshore Notes (including the relevant Conditions).
2.4 FOLLOWING EVENT OF DEFAULT
At any time after an Event of Default in respect of the Offshore 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 Manager, the Principal Paying
Agent, the Irish Paying Agent, the other Paying Agents (if any) and
the Calculation Agent and until such notice is withdrawn, require the
Principal Paying Agent, the Irish Paying Agent, the other Paying
Agents and the Calculation Agent under the Agency Agreement either:
(i) (A) to act as Principal Paying Agent, Irish Paying Agent and
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 under the Note Trust 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 Offshore Notes on
behalf 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 Offshore 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; or
(b) by notice in writing to the Trustee require it to make all subsequent
payments in respect of the Offshore Notes 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.
The satisfaction by the Trustee of its payment obligations on each Payment
Date under the Supplementary Terms Notice and the relevant Conditions to
the Note Trustee in accordance with this paragraph (b) shall be a good
discharge to the Note Trustee, to the extent of such payment.
The Trustee shall not be liable for any act or omission or default of the
Note Trustee during the period it is required to make payments in respect
of the Offshore Notes to the Note Trustee under paragraph (b).
2.5 REQUIREMENTS FOR PAYING AGENTS
The 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 Offshore Noteholders all
sums held by that Paying Agent for the payment of principal and
interest with respect to the Offshore Notes until all relevant sums
are paid to the Note Trustee or the Offshore 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 Manager if the full amount of
any payment of principal or interest required to be made by the
Supplementary Terms Notice and the relevant Conditions in respect of
the Offshore 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 Offshore Notes under the relevant
Condition 5 the Note Trustee may rely upon an Officer's Certificate from
the Manager on behalf of the Trustee certifying or stating, the opinion of
each person signing that Officer's Certificate as to the following matters:
(a) the fair value (within 90 days of such release) of the property or
securities to be released from the Security Trust Deed;
(b) that 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
(c) that the Trustee will be in a position to discharge all its
liabilities in respect of the relevant Offshore Notes and any amounts
required under the Security Trust Deed to be paid in priority to or
pari passu with those Offshore Notes,
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and that Officer's Certificate shall be conclusive and binding on the
Trustee, the Note Trustee and the holders of those Offshore Notes. The Note
Trustee shall not incur any liability as a result of relying on such
certificate or such certificate subsequently being considered invalid.
3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, NOTES
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3.1 ISSUE OF BOOK-ENTRY NOTES
(a) Each Class of Offshore Note shall, on initial issue be represented by
one or more Book-Entry Notes.
(b) Each Book-Entry Note must be signed manually or by facsimile by an
Authorised Signatory of the Trustee on behalf of the Trustee and must
be manually authenticated by the Principal Paying Agent.
3.2 FORM OF BOOK-ENTRY NOTES
(a) The Book-Entry Notes shall be typed in the form or substantially in
the form set out:
(i) in the case of Class A-1 Book-Entry Notes - in Schedule 1; and
(ii) in the case of Class A-2 Book-Entry Notes - in Schedule 4.
(b) The procedures relating to the exchange, authentication, delivery,
surrender, cancellation, presentation, marking up or down of any of a
Book-Entry Note (or part of a Book-Entry Note) and any other matters
to be carried out by the relevant parties upon exchange (in whole or
part) of any Book-Entry Note shall be made in accordance with the
provisions of the relevant terms of the Book-Entry Notes 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) The Book-Entry Notes shall be in an aggregate principal amount of:
(i) US$[600,000,000] for the Class A-1 Notes; and
(ii) (euro)[500,000,000] for the Class A-2 Notes.
(d) The Manager on behalf of the Trustee shall procure by written
direction to the Principal Paying Agent that, prior to the issue and
delivery of any Book-Entry Note, that Book-Entry Note will be
authenticated manually by an Authorised Signatory of the Principal
Paying Agent and no Book-Entry Note shall be valid for any purpose
unless and until so authenticated. A Book-Entry Note so executed and
authenticated shall be a binding and valid obligation of the Trustee.
Until a Book-Entry Note (or part of a Book-Entry 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. Each
Book-Entry Note shall be subject to this deed except that the
registered owner of a Book-Entry Note shall be the only person
entitled to receive payments from the Principal Paying Agent of
principal or interest in relation to it.
(e) The Class A-1 Notes and Class A-2 Notes upon original issue will be
issued in the form of typewritten Notes representing the Class A-1
Book-Entry Notes and Class A-2 Book-Entry Notes respectively. The
Manager on behalf of the Trustee shall, on the date of this deed,
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deliver or arrange the delivery on its behalf to the Principal Paying
Agent, as agent for the Clearing Agency, of the Class A-1 Book-Entry
Notes and the Class A-2 Book-Entry Notes. The Class A-1 Book-Entry
Notes shall initially be registered on the Note Register in the name
of the nominee of the relevant Clearing Agencies. The Class A-2
Book-Entry Notes shall initially be registered on the Note Register in
the name of the nominee of the Common Depository for and on behalf of
the relevant Clearing Agencies. No Class A Note Owner will receive a
Definitive Note representing such Class Note Owner's interest in such
Note, except as provided in clause 3.3 or 3.4.
(f) Whenever a notice or other communication to the Offshore Noteholders
is required under this deed, unless and until Definitive Notes shall
have been issued to Class A Note Owners pursuant to clause 3.3 or 3.4,
the Note Trustee shall give all such notices and communications
specified herein to be given to Offshore Noteholders to the registered
holders of the Book-Entry Notes, and shall have no obligation to the
Offshore Note Owners.
(g) Unless and until the Definitive Notes have been issued to the Class A
Note Owners pursuant to clause 3.3 or 3.4 (as the case may be):
(i) the provisions of this clause shall be in full force and effect;
(ii) the Note Registrar, the Trustee, the Manager, each Paying Agent
and the Note Trustee shall be entitled to deal with the
registered holders of the Book-Entry Notes for all purposes of
this deed (including the payment of principal of and interest on
the Offshore Notes and the giving of instructions or directions
hereunder) as the sole holder of the Offshore Notes, and shall
have no obligation to any Class A 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 Class A Note Owners shall be exercised only through
the relevant Clearing Agency and shall be limited to those
established by law and agreements between such Class A Note
Owners and the Clearing Agency and/or the Clearing Agency
Participants. In respect of Class A-1 Notes, pursuant to the Note
Depository Agreement, unless and until Definitive Class A-1 Notes
are issued pursuant to clause 3.3, the relevant Clearing Agency
will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of principal and
interest on the Class A-1 Notes to such Clearing Agency
Participants. In respect of Class A-2 Notes, unless and until
Definitive Class A-2 Notes are issued pursuant to clause 3.4, the
relevant Clearing Agencies will make book-entry transfers among
themselves via book entries maintained by the relevant Common
Depository and among the Clearing Agency Participants in respect
of transfers among Clearing Agency Participants with the relevant
Clearing Agency and receive and transmit payments of principal
and interest on the Class A-2 Notes to such Clearing Agency
Participants; and
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(v) whenever this deed requires or permits actions to be taken based
upon instructions or directions of a Class of Class A Note Owners
evidencing a specific percentage of all Invested Amounts of all
Offshore Notes in that Class, the relevant Clearing Agency shall
be deemed to represent such percentage only to the extent that it
has received instructions to such effect from Class A Note Owners
and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest
in the Offshore Notes and has delivered such instructions to the
Principal Paying Agent.
3.3 DEFINITIVE CLASS A-1 NOTES
(a) If:
(i) the Principal Paying Agent advises the Manager in writing that
the relevant Clearing Agency is no longer willing or able
properly to discharge its responsibilities with respect to the
Class A-1 Notes or that Clearing Agency or its successor and the
Manager is unable to locate a qualified successor; or
(ii) after the occurrence of an Event of Default, the Note Trustee, at
the written direction of Class A-1 Note Owners representing
beneficial interests aggregating to at least a majority of the
aggregate Invested Amount of the Class A-1 Notes, advises both
the Principal Paying Agent and the Trustee in writing that the
continuation of a book-entry system through the Clearing Agency
for the Class A-1 Notes is no longer in the best interests of the
Class A-1 Note Owners,
then the Principal Paying Agent shall notify all of the appropriate
Class A-1 Note Owners and the Trustee of the occurrence of any such
event and of the availability of Definitive Class A-1 Notes to such
Class A-1 Note Owners. Upon the surrender of the Class A-1 Book-Entry
Notes to the Trustee by the Clearing Agency, and the delivery by the
Clearing Agency of the relevant registration instructions to the
Trustee, the Trustee (with the assistance of the Manager) shall
execute and procure the Principal Paying Agent to authenticate the
Definitive Class A-1 Notes in accordance with the instructions of that
Clearing Agency.
(b) The Definitive Class A-1 Notes will be serially numbered and shall be
typewritten, printed, lithographed or engraved or produced by any
combination of these methods (with or without steel engraved borders),
all as determined by the Authorised Signatories executing such
Definitive Notes, as evidenced by their execution of such Definitive
Class A-1 Notes.
(c) Neither the Note Registrar nor the Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on,
and shall be protected in relying on, such instructions.
3.4 DEFINITIVE CLASS A-2 NOTES
(a) If, at any time any Class A-2 Notes, are represented by a Book-Entry
Note:
(i) that Book-Entry Note becomes immediately due and repayable by
reason of the occurrence of an Event of Default;
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(ii) either Euroclear or Clearstream, Luxembourg is closed for
business for a continuous period of 14 days (other than by reason
of holiday, statutory or otherwise) or announces an intention
permanently to cease business; or
(iii) as the result of any amendment to, or change in, the laws or
regulations of any jurisdiction or any body politic, or
government in any jurisdiction, or any minister, department,
office, commission, instrumentality, agency, board, authority or
organisation of any government or any corporation owned or
controlled by any government having power to tax or in the
interpretation by a revenue authority or a court of, or in the
administration of, laws or regulations relating to taxation which
becomes effective on or after the Note Issue Date, the Trustee or
any Paying Agent is or will be required to make any deduction or
withholding from any payment in respect of any of the Class A-2
Notes which would not be required were those Class A-2 Notes in
definitive form,
then the Trustee shall (at its expense) (but subject to paragraph (c)
below), within 30 days of becoming aware of the occurrence of the
relevant event, but not prior to 40 days after the Closing Date issue
Definitive Class A-2 Notes in exchange for the whole of the
outstanding interest in that Book-Entry Note.
(b) The procedures to be carried out by the relevant parties on an
exchange under paragraph (a) shall be made in accordance with the
provisions of the terms of the Book-Entry Note in respect of which
exchange is to be made and the normal practice of the relevant Common
Depository, the Principal Paying Agent and the rules and procedures of
Euroclear and Clearstream, Luxembourg from time to time.
(c) Despite this clause 3.4, the Trustee is not obliged to issue
Definitive Class A-2 Notes until the later of:
(i) the expiry of 40 days after the later of the Note Issue Date and
the date on which the relevant Class A-2 Notes are first offered
to persons other than distributors in reliance on Regulation S of
the Securities Act 1933, as amended; and
(ii) 30 days after it becomes aware of the occurrence of the relevant
event or request in paragraph (a).
(d) All Definitive Class A-2 Notes shall, subject to the terms of the
Agency Agreement, be held by the Principal Paying Agent and shall be
authenticated and delivered (at the cost of the Trustee) to the
relevant Class A-2 Noteholders in accordance with the instructions of
the holder of the relevant Book-Entry Note. The relevant Book-Entry
Note shall be marked-down in respect of those Definitive Class A-2
Notes which are so delivered as appropriate.
(e) The Definitive Class A-2 Notes will be serially numbered and shall be
typewritten, printed, lithographed or engraved or produced by any
combination of these methods (with or without steel engraved borders),
all as determined by the Authorised Signatories executing such
Definitive Notes, as evidenced by their execution of such Definitive
Class A-2 Notes.
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(f) Neither the Note Registrar nor the Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on,
and shall be protected in relying on, such instructions.
3.5 NOTICE OF EXCHANGE EVENTS
(a) The Trustee or the Manager shall notify the Note Trustee in writing
forthwith if the Trustee or the Manager (as the case may be) becomes
actually aware of any of the events referred to in clause 3.3(a) and
3.4(a) and shall, unless the Note Trustee agrees otherwise, promptly
give notice of the event and of the Trustee's obligation to issue
Definitive Notes to the relevant Offshore Noteholders in accordance
with the relevant Condition 12.
(b) The Note Trustee shall notify the Trustee and the Manager in writing
forthwith if the Note Trustee becomes actually aware of any of the
events referred to in clause 3.3(a) and 3.4(a) and (where relevant)
actually aware that the relevant event has the effect specified in
that clause.
3.6 STAMP AND OTHER TAXES
The Trustee will pay any stamp and other duties and Taxes payable in
Australia, the United Kingdom, Belgium, Luxembourg, Republic of Ireland 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 Offshore
Notes;
(c) any action taken by the Note Trustee or (where permitted under this
deed so to do), the relevant Clearing Agency or an Offshore Noteholder
to enforce the provisions of the Offshore Notes or the Transaction
Documents; and
(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 following an event specified in clause 3.3(a) or 3.4(a) but fails to
do so within 30 days of the Trustee or the Manager becoming actually aware
of the occurrence of the relevant event then the Trustee shall (subject to
clause 29) indemnify the Note Trustee, the Offshore Noteholders, and the
Class A 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
Offshore Noteholders or the Class A 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(a) or 3.4(a) shall be deemed to be cured. The
Manager must promptly advise the Trustee if it becomes actually aware of
the occurrence of the relevant event and the Trustee shall promptly notify
the Note Trustee of the relevant event.
3.8 NOTE REGISTER AND NOTE REGISTRAR
(a) The Manager, 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 Manager shall provide for the registration of
the Offshore Notes and the registration of transfers of Offshore
Notes.
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The Note Registrar will be responsible for registering Offshore Notes
and transfers of Offshore Notes as herein provided. The Trustee may,
with the consent of the Note Trustee, appoint another person as Note
Registrar. Upon any resignation or removal of any Note Registrar under
the Agency Agreement, the Trustee with the assistance of and at the
direction of, the Manager shall promptly appoint a successor or, if it
elects not to make such an appointment, assume the duties of the Note
Registrar.
(b) Upon surrender for registration of transfer of any Offshore Note at
the office or agency of the Trustee to be maintained as provided in
clause 11(e) (and in the case of a Class A-1 Note, if the requirements
of Section 8-401(a) of the Uniform Commercial Code of New York (the
UCC) are met), the Trustee shall, at the direction of the Manager,
execute and upon its written direction the Principal Paying Agent
shall authenticate and the Offshore Noteholder shall obtain from the
Note Trustee, in the name of the designated transferee or transferees,
one or more new Offshore Notes, in any authorised denominations, of
the same class and a like aggregate principal amount.
(c) At the option of the Offshore Noteholder, Offshore Notes may be
exchanged for other Offshore Notes in any authorised denominations and
a like aggregate principal amount, upon surrender of the Offshore
Notes to be exchanged at such office or agency. Whenever any Offshore
Notes are so surrendered for exchange (and in the case of a Class A-1
Note, if the requirements of Section 8-401(a) of the UCC are met), the
Trustee shall, at the direction of the Manager, execute and upon its
written request the Principal Paying Agent shall authenticate and the
Offshore Noteholder shall obtain from the Note Trustee, the Offshore
Notes which the Offshore Noteholder making the exchange is entitled to
receive.
(d) Every Class A-1 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 Class A-1 Noteholder thereof or such
Class A-1 Noteholder's attorney duly authorised in writing, with such
signature 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.
Every Class A-2 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 Class A-2 Noteholder thereof or such
Class A-2 Noteholder's attorney duly authorised in writing, and (ii)
accompanied by such other documents as the Note Registrar may require.
(e) No service charge shall be made to an Offshore Noteholder for any
registration of transfer or exchange of Offshore 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 Offshore Notes.
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(f) The preceding provisions of this section notwithstanding, the Trustee
shall not be required to make and the Note Registrar need not register
transfers or exchanges of Offshore Notes selected for redemption or of
any Offshore Note for a period of 30 days preceding the due date for
any payment with respect to the Offshore Note.
4. COVENANT OF COMPLIANCE
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Each of the Manager and the Trustee 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 Offshore 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 Offshore
Noteholders). The Note Trustee (or the Offshore Noteholders, under clause
6.5, as the case may be) is entitled to enforce the obligations of the
Trustee under the Offshore 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 Notes). The provisions contained in Schedule 3 and
Schedule 5 shall have effect as if set out in this deed.
5. CANCELLATION OF OFFSHORE NOTES
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5.1 CANCELLATION OF OFFSHORE NOTES
The Trustee shall procure that all Offshore Notes:
(a) which have been surrendered for payment, registration of transfer,
exchange or redemption; or
(b) in the case of any Definitive Note, which, being mutilated or defaced,
has been surrendered and replaced under the relevant Condition 11,
shall be cancelled by or on behalf of the Trustee.
5.2 RECORDS
The Trustee shall procure that:
(a) the Principal Paying Agent keeps a full and complete record of all
Offshore Notes and of their redemption, payment, exchange or
cancellation (as the case may be) and of all replacement Offshore
Notes issued in substitution for lost, stolen, mutilated, defaced or
destroyed Definitive Notes; and
(b) such records referred to in paragraph (a) above 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.
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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 6.4 and 7, and to
the relevant Conditions 9 and 10) at its discretion, and must, if so
directed or requested under clause 7.1, without further notice take
any action available to it to direct the Security Trustee to:
(i) institute any proceedings against the Trustee and/or the Manager
which are permitted under the Transaction Documents;
(ii) enforce the security created under the Security Trust Deed
(including anything set out in clause 8.2 of the Security Trust
Deed); and
(iii) enforce repayment of the Offshore Notes together with accrued
interest and any other moneys payable to the Note Trustee, the
Offshore Noteholders under the Transaction Documents.
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 Offshore Notes or this
deed, proof that as regards any Offshore Note, the Trustee has not paid any
principal or interest due in respect of that Offshore Note shall (unless
the contrary is proved) be sufficient evidence that the Trustee has not
paid that principal or interest on all other Offshore Notes in respect of
which the relevant payment is then due.
6.3 OVERDUE INTEREST
The rates of interest payable in respect of any Offshore Note which has
become due and repayable in full and which has not been repaid shall be
calculated at three-monthly intervals, commencing on the expiry of the
Interest Period during which the Offshore Note became due and repayable in
accordance with the provisions of the relevant Condition 4 except that no
notices need be given to Offshore Noteholders, in relation to that
interest.
6.4 RESTRICTIONS ON ENFORCEMENT
(a) If any of the Offshore Notes remain outstanding and are due and
payable otherwise than by reason of a default in payment of any amount
due on any Offshore Notes, the Note Trustee must not vote under the
Security Trust Deed to, or otherwise direct the Security Trustee to,
enforce the Security Trust Deed or dispose of the Mortgaged Property
unless either:
(i) the Note Trustee is of the opinion, reached after considering at
any 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 such advice shall be an Expense payable to the Note
Trustee), that a sufficient amount would be realised to discharge
in full all amounts owing to the Offshore Noteholders and any
other amounts payable by the Trustee ranking in priority to or
pari passu with the Offshore Notes; or
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(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 such advice shall be an
Expense payable to 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 breach of trust 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 Offshore 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).
6.5 ACTION BY OFFSHORE 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 Offshore Noteholders may proceed directly
against the Trustee but then only if and to the extent the Offshore
Noteholders are able to do so under the Transaction Documents and
Australian law.
7. PROCEEDINGS
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7.1 ACTING ONLY ON DIRECTION
(a) The Note Trustee may 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 or any
Offshore Notes.
(b) Subject to the Note Trustee being indemnified to its satisfaction
against all actions, proceedings, claims and demands to which it may
render itself liable and all costs, charges, damages and expenses
which it may incur, the Note Trustee:
(i) shall only be bound to undertake any of the acts contemplated in
paragraph (a) if it is directed to do so in writing by the
holders of at least 75% of the aggregate Invested Amount (or such
higher percentage as may be required by the TIA) of either all
the Offshore Notes, all the Class A-1 Notes or all the Class A-2
Notes, as appropriate; and
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(ii) shall, if an Extraordinary Resolution of Voting Mortgagees elects
not to direct the Security Trustee to enforce the Security Trust
Deed in circumstances where the Security Trustee could enforce
the Security Trust Deed, at the direction of either the Offshore
Noteholders, the Class A-1 Noteholders or the Class A-2
Noteholders in accordance with paragraph (b)(i), direct the
Security Trustee to enforce the Security Trust Deed on behalf of
the Offshore Noteholders, the Class A-1 Noteholders or the Class
A-2 Noteholders (as the case may be).
(c) The Note Trustee shall be protected with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the holders of the required aggregate Invested Amount of
the relevant Offshore Notes in accordance with this deed relating to
the time, method and place of conducting any proceeding for any remedy
available to, or exercising any trust or power conferred upon it,
under this deed.
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 Offshore Noteholder is entitled
to proceed directly against the Trustee to enforce the performance of any
of the provisions of the Security Trust Deed, the Offshore Notes (including
the 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 Offshore Noteholders may proceed directly against the
Trustee but then only if and to the extent the Note Trustee and/or the
Offshore Noteholders are able to do so under the Transaction Documents and
Australian law. 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 6.5 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 Offshore Notes (including the
Conditions),
and no Offshore 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 Offshore Notes (including the
Conditions).
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7.4 AVAILABLE AMOUNTS
For the purpose of Condition 5 of each Class of Offshore Notes, the Note
Trustee shall not be satisfied that the Trustee will be in a position to
discharge the liabilities referred to in those 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 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, Aa3 by Xxxxx'x or AA- by Fitch Ratings or whose short term
unsecured and unguaranteed debt securities are rated A-1+ by S&P, P-1
by Xxxxx'x or F1+ by Fitch Ratings, 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 Manager or the Trustee 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 failure by the Security Trustee so to comply.
8. NOTICE OF PAYMENT
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The Principal Paying Agent shall give notice to the relevant Offshore
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 an account designated by the nominee of the
relevant Clearing Agency in the name of such nominee by wire transfer in
immediately available funds or to the order of the Offshore Noteholder (in
the case of any Book-Entry Note), and payment of those amounts by the Note
Trustee to the Principal Paying Agent for that purpose shall be a good
discharge by the Note Trustee.
9. INVESTMENT BY NOTE TRUSTEE
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At the direction of the Manager, the Note Trustee must invest any moneys
held by the Note Trustee under the Note Trust in such Authorised
Investments as the 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 Manager must not direct the Note
Trustee to make any investment that could have an adverse effect on the 50%
risk weighting attributed to the Class A-2 Notes by the Bank of England and
the Note
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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.
10. PARTIAL PAYMENTS
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In the case of Definitive Notes, on any payment of amounts received by the
Note Trustee in accordance with the Supplementary Terms Notice, the
relevant Condition or under clause 16 of the Security Trust Deed (other
than the payment in full against surrender of a Definitive Note) the
Definitive Note in respect of which such payment is made shall be produced
to the Note Trustee or a Paying Agent by or through whom such payment is
made and the Note Trustee shall, or shall cause that Paying Agent to,
enface on the Definitive Note a memorandum of the amount and the date of
payment, but the Note Trustee may in any particular case dispense with that
production and enfacement upon the Trustee certifying to the Note Trustee
that an indemnity has been given to the Trustee by the recipient of the
payment as the Trustee considers sufficient and the Note Trustee shall be
entitled to rely on such certification.
11. COVENANTS BY THE TRUSTEE AND MANAGER
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Each of the Trustee and the Manager undertakes to the Note Trustee, on
behalf of the Offshore Noteholders, as follows in relation to the Trust for
so long as any of the Offshore Notes remain outstanding (except to the
extent that the Note Trustee otherwise consents in accordance with this
deed).
(a) (MASTER TRUST DEED COVENANTS) It will comply with its covenants in the
Master Trust Deed.
(b) (TRANSACTION DOCUMENTS)
(i) It will comply with its material obligations under the
Transaction Documents.
(ii) It will use 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 Manager (as the case may be) reasonably considers has a material
bearing on the interest of the Offshore Noteholders.
(d) (NOTIFY EVENTS OF DEFAULT)
(i) It will promptly notify the Note Trustee in writing if it has
knowledge or notice of or is aware of the occurrence of an Event
of Default, Trustee's Default, Servicer Transfer Event, Title
Perfection Event or Manager's Default including full details (to
the extent known, without making any enquiry) of that Event of
Default, Trustee's Default, Servicer Transfer Event, Title
Perfection Event or Manager's Default (as the case may be).
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(ii) In addition to its obligations under sub-clause item (d)(i) of
this clause 11, the Manager, on behalf of the Trustee, will
confirm to the Note Trustee in writing, on each anniversary of
this deed:
(A) whether or not the Manager or the Trustee is aware that any
Event of Default has occurred; and
(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 Manager on behalf of the Trustee
will maintain:
(i) in the Borough of Manhattan, The City of New York an office or
agency where Class A-1 Notes may be surrendered for registration
of transfer or exchange, and where notices and demands to or upon
the Trustee in respect of the Class A-1 Notes and this deed may
be served and the Trustee initially appoints the Principal Paying
Agent acting through its office at 000 Xxxxxxx Xxxxxx, Xxxxx 00
Xxxx, Xxx Xxxx, XX 00000 for this purpose; and
(ii) in London, United Kingdom, an office or agency where Class A-2
Notes may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Trustee in
respect of the Class A-2 Notes and this deed may be served and
the Trustee initially appoints the Principal Paying Agent acting
through its office at 00xx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx X00
0XX, Xxxxxx Xxxxxxx for this purpose.
The Trustee hereby initially appoints the Principal Paying Agent to
serve as its agent for the purposes of the surrender of Class A-1
Notes and Class A-2 Notes for registration of transfer or exchange.
The 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 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 notices and demands may be
made or served at the Corporate Trust Office. The Trustee hereby
appoints the Note Trustee as its agent to receive all such notices and
demands to be served at the Corporate Trust Office. Each of the
Principal Paying Agent and the Note Trustee shall, in respect of its
appointment under this sub-paragraph (e), 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. The Manager
shall procure that the Trustee maintains the appointment of, if
European Council Directive 2003/48/EC or any other directive
implementing the conclusions of the ECOFIN Council Meeting of 26-27
November 2000 is brought into force, a Paying Agent in a member state
of the European Union that will not be obliged to withhold or deduct
tax pursuant to any such directive or any law implementing or
complying with, or introduced to conform with, such directive (an EU
TAX DIRECTIVE PAYING AGENT).
(f) (LISTING) It will use its best endeavours to:
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(i) obtain and maintain the listing of the Class A-2 Notes on the
Irish Stock Exchange (including compliance with the continuing
obligations applicable to the Trustee by virtue of the admission
of the Class A-2 Notes to the Irish Stock Exchange) or, if it is
unable to do so having used best endeavours, use best endeavours
to obtain and maintain a quotation or listing of the Class A-2
Notes on any other stock exchange or exchanges or securities
market or markets as the 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 Irish
Stock Exchange (or to any other relevant stock exchange or
securities market) any information which the Irish Stock Exchange
or, as the case may be, any other such stock exchange or
securities market, may require to be furnished in accordance with
its requirements.
(g) (CALCULATION AGENT) It will procure that, so long as any of the
Offshore Notes remain outstanding, there will at all times be a
Calculation Agent.
(h) (PRINCIPAL PAYING AGENT) It will procure that, so long as any of the
Offshore Notes remain outstanding, there will at all times be a
Principal Paying Agent.
(i) (IRISH PAYING AGENT) It will procure that, so long as the Class A-2
Notes are listed on the Irish Stock Exchange, there will at all times
be a Paying Agent with a specified office in the Republic of Ireland
for so long as it is necessary to do so to comply with the Irish Stock
Exchange listing requirements.
(j) (CHANGE TO PAYING AGENTS OR CALCULATION AGENT) It will give notice to
the Offshore 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 the Irish 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).
(k) (NOTICES) It will promptly give to the Note Trustee, or ensure that
the Note Trustee receives for approval by the Note Trustee, two copies
of the form of every notice prior to the notice being given to the
Offshore Noteholders in accordance with the relevant Condition 12.
(l) (ANNUAL STATEMENT AS TO COMPLIANCE) The Trustee (or the Manager on its
behalf) will deliver to the Note Trustee, within 90 days after the end
of each fiscal year of the Trust (commencing on 30 September 2005),
and otherwise in compliance with the requirements of section 314(a)(4)
of the TIA, an Officer's Certificate stating that:
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(i) a review of the activities of the Trustee in respect of the Trust
during such year and of performance under this deed has been made
under supervision of the person signing the Officer's Certificate
(the SIGNATORY); and
(ii) to the best of the knowledge of the Signatory, based on the
review referred to in sub-paragraph (i), the Trustee has complied
with all conditions and covenants under this deed 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(l) compliance shall be determined
without regard to any period of grace or requirement of notice under
the Transaction Documents.
(m) (OPINIONS AS TO TRUST ESTATE) On the Closing Date, the Trustee (or the
Manager on its behalf) shall furnish to the Note Trustee an Opinion of
Counsel (who may be the 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 90 days after the end of each fiscal year commencing on 30
September 2005 the Trustee (or the Manager on its behalf) shall
furnish to the Note Trustee an Opinion of Counsel (who may be the
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.
(n) (NOTEHOLDER REPORT)
(i) The Trustee (or the Manager on its behalf) shall deliver to the
Principal Paying Agent and the Note Trustee on each Determination
Date the Noteholders Report for the related Collection Period,
with written instructions for the Note Trustee and the Principal
Paying Agent to forward the Noteholder Report to each Offshore
Noteholder.
(ii) Each Noteholder Report shall contain the information set out in
Schedule 2.
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 and the
Manager from time to time and at the times specified in the Supplementary
Terms Notice.
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12.2 ADDITIONAL REMUNERATION
If the Note Trustee undertakes any of the acts contemplated in clause 7.1
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 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 that the Note Trustee, the Manager and the Trustee fail to
agree on such additional remuneration, such remuneration 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 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 costs, charges, liabilities and expenses and any stamp
and other Taxes or duties properly incurred or paid by the Note
Trustee (or the Offshore Noteholders acting under clause 6.5 (as the
case may be)) in connection with properly undertaking its duties under
the Transaction Documents (including the fees and expenses of its
counsel) and in connection with any legal proceedings brought by the
Note Trustee (or the Offshore Noteholders acting under clause 6.5 (as
the case may be)) to enforce any obligation under this deed the
Offshore 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
Offshore Noteholders acting under clause 6.5 (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 Note Trust or of their
powers or in respect of any matter or thing done or omitted in any way
relating to this deed (other than arising from any fraud, negligence
or wilful default by the Note Trustee or that person).
12.4 OVERDUE RATE
All sums payable by the Trustee under clauses 12 and 34.8 shall survive
termination of this deed and the resignation or removal of the Note Trustee
and shall be payable by the Trustee on the next Payment Date in the order
set out in the Supplementary Terms Notice or (if applicable) the Security
Trust Deed and shall carry interest at the rate of LIBOR (in the case of
sums payable in US$), EURIBOR (in the case of sums payable in Euros) and
the Three Month Bank Bill Rate (in the case of sums payable in A$) (as
applicable) 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.
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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. NOTE TRUSTEE
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13.1 PREFERENTIAL COLLECTION OF CLAIMS AGAINST TRUSTEE
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) of the
TIA only to the extent required by the TIA.
13.2 DUTIES OF NOTE TRUSTEE
(a) If an Event of Default has occurred and is subsisting, and a
Responsible Officer of the Note Trustee has received written notice of
such from the Trustee and the Manager, the Note Trustee shall exercise
the rights and powers vested in it by this deed and use the same
degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such
person's own affairs.
(b) Except while an Event of Default subsists:
(i) the Note Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this deed and no implied
covenants or obligations shall be read into this deed against the
Note Trustee; and
(ii) in the absence of bad faith on its part, the Note Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Note Trustee and conforming to the
requirements of this deed; however, the Note Trustee shall
examine the certificates and opinions to determine whether or not
they conform to the requirements of this deed.
(c) The Note Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (a) of this
clause; and
(ii) the Note Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved
that the Note Trustee was negligent in ascertaining the pertinent
facts.
(d) Section 315(d)(3) of the TIA is expressly excluded by this deed.
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13.3 RIGHTS AND LIMITED RESPONSIBILITIES OF NOTE TRUSTEE
By way of supplement to any Statute regulating the Note Trust and in
addition to the powers and protections which may from time to time be
vested or available to the Note Trustee by general law, and subject to
clause 14, it is expressly declared as follows.
(a) The Note Trustee may conclusively rely on any document believed by it
to be genuine and to have been signed or presented by the proper
person. The Note Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Note Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel. The Note Trustee
shall not be liable for any action it takes, suffers or omits to take
in good faith in reliance on the Officer's Certificate or Opinion of
Counsel.
(c) No provision of this deed shall require the Note Trustee to expend or
risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any
of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or indemnity satisfactory to it
against such risk or liability is not assured to it.
(d) The Note Trustee shall not be responsible for and makes no
representations as to the validity or adequacy of this deed (other
than in relation to its own execution of this deed) or the Offshore
Notes, shall not be accountable for the Trustee's use of the proceeds
from the Offshore Notes, and shall not be responsible for any
statement of the Trustee in this deed or in any document issued in
connection with the sale of the Offshore Notes or in the Offshore
Notes.
(e) The Note Trustee may, in relation to this deed, act on the advice or
opinion of or any information obtained from any lawyer, valuer,
accountant, banker, broker, credit-rating agency, lead manager or
other expert whether obtained by the Trustee, the Note Trustee, the
Manager, the Servicer or otherwise.
(f) Any advice, opinion or information obtained by the Note Trustee under
paragraph (e) may be sent or obtained by letter, telegram, telex,
facsimile transmission, email or cable and may be conclusively relied
on by the Note Trustee without further investigation and the Note
Trustee shall not be liable for acting on any such advice, opinion or
information purporting to be conveyed by any such letter, telegram,
telex, facsimile transmission, email or cable although the same shall
contain some error or shall not be authentic.
(g) 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 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.
(h) 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
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firm of lawyers reasonably considered by the Note Trustee to be of
good repute, and, except in the case of fraud, negligence or breach of
trust (in the case of the Security Trustee) or fraud, negligence or
wilful default (in the case of the Note Trustee), neither the Note
Trustee nor the Security Trustee shall 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 the Servicer or any of its affiliates
or by 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.
(i) The Note Trustee shall not be responsible for the application of the
proceeds of the issue of any of the Offshore Notes by the Trustee or
any moneys borrowed by the Trustee under any Transaction Document or
the exchange of any Book-Entry Note for any other Book-Entry Note or
Definitive Note, as the case may be.
(j) 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 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 Offshore 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.
(k) 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 Offshore Noteholders shall be
conclusive and binding on the Offshore 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 Offshore 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.
(l) The Note Trustee shall not be liable for acting upon any resolution
purporting to have been passed at any meeting of all Offshore
Noteholders, the Class A-1 Noteholders or the Class A-2 Noteholders
(as the case may be) in respect of which minutes have been made and
signed even though subsequently it may be found that there was some
defect in the
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constitution of the meeting or the passing of the resolution or that
for any reason the resolution was not valid or binding upon the
Offshore Noteholders, Class A-1 Noteholders or the Class A-2
Noteholders (as the case may be).
(m) The Note Trustee shall not be liable to the Trustee or any Offshore
Noteholder by reason of having accepted as valid or not having
rejected any Definitive Note purporting to be such and subsequently
found to be forged or not authentic and the Note Trustee may call for
and shall be at liberty to accept and place full reliance on as
sufficient evidence of the facts stated therein a certificate or
letter of confirmation certified as true and accurate and signed on
behalf of a Clearing Agency, the Note Registrar or any Common
Depository for any of them or any person as the Note Trustee
reasonably considers appropriate, or any form of record made by any of
them 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 Offshore Notes.
(n) Any consent or approval given by the Note Trustee for the purpose of
this deed, the 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 Conditions may be given retrospectively.
(o) Save to the extent 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 any Offshore Noteholder or
any Mortgagee, any information made available to the Note Trustee by
the Trustee or any other person in connection with the Note Trust and
no Offshore Noteholder shall be entitled to take any action to obtain
from the Note Trustee any such information.
(p) 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, 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 Manager as relevant and any
rate, method and date so agreed shall be binding on the Trustee and
the Offshore Noteholders.
(q) Subject to clauses 6.5 and 7.4, the Note Trustee may certify in good
faith whether or not any of the events set out in 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
Offshore Noteholders and may certify, in relation to the event set out
in paragraph (a) of relevant Condition 9 in relation to any payment of
interest on the Offshore 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 Supplementary Terms
Notice or the Security Trust Deed, all interest (after payment of all
sums which are permitted under the Supplementary Terms 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 Offshore Noteholders. The Note Trustee shall have no liability
to the Trustee, any Offshore Noteholder or any other person in
relation to any such certificate or in relation to
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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
Offshore Noteholders. The Trustee shall pay the Note Trustee all
proper costs and expenses of providing the certificate at the times
specified in the Supplementary Terms Notice.
(r) 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.
(s) 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, 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 defect 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 Offshore Noteholder is solely responsible for making
its own independent appraisal of and investigation into the Trust and
the Offshore Notes and the Note Trustee shall not at any time have any
responsibility for the same and no Offshore Noteholder shall rely on
the Note Trustee in that respect.
(t) 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
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.
(u) The Note Trustee shall not be obliged (whether or not directed to do
so by the Offshore Noteholders) to direct the Security Trustee to
perfect legal title to any Purchased Receivable if, in the opinion of
the Note Trustee, that perfection would or might result in the Note
Trustee becoming liable to or incurring any obligation to any Obligor
under a
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Purchased Receivable and, in its opinion, there is or would be
insufficient cash to discharge, in accordance with the provisions of
the Security Trust Deed, that liability or obligations as and when
they arise. Notwithstanding the generality of the foregoing, the Note
Trustee shall have no responsibility or liability for the payment of
any fees for the registration of the relevant Mortgages in Australia
or for any related legal, administrative or other fees, costs and
expenses (including, but not limited to, any proper disbursements and
any goods and services tax or analogous value added tax). The Manager
will provide to the Note Trustee such information and the Trustee will
pay to the Note Trustee such costs as the Note Trustee reasonably
considers necessary to make these determinations and, subject to
clause 29, the Trustee indemnifies the Note Trustee against any loss
or damage suffered as a result of the Note Trustee incurring such an
obligation.
(v) 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 Offshore Notes (including the
Conditions), except where expressly provided otherwise, have regard to
the interests of the Offshore Noteholders.
(w) 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 or to require any
other person to maintain any such insurance or monitor the adequacy of
any such insurance and shall not be responsible for any loss, expense
or liability which may be suffered by any person as a result of the
lack of or inadequacy of any insurance.
(x) The Note Trustee shall not be responsible for any loss, expense or
liability (including, without limitation, any decline in the 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.
(y) The Note Trustee has no responsibility whatsoever to the Trustee or
any Offshore 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.
(z) 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
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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.
(aa) 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 any other document or any obligation or rights
created or purported to be created by them or under them or any
Security Interest 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;
(viii) the title of the Trustee to any Mortgage, 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
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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 Trustee, the Servicer or
the Manager to obtain or comply with the Transaction Documents or
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 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.
(bb) 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 or as a consequence of or in connection with it being held or
treated as, or being deemed to be, a creditor, for the purposes of the
Consumer Credit Legislation, in respect of any of the Mortgages.
(cc) 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 Approved Seller, the Servicer,
the Trustee, the Manager, any Paying Agent, the Calculation Agent, any
Designated Rating Agency or any other credit-rating agency in respect
of every manner and circumstance for which a certificate or any letter
of confirmation or explanation is expressly provided for under this
deed or in respect of the rating of the Offshore Notes or the
Conditions and the Note Trustee is not bound in any such case to call
for further evidence or be responsible for any loss, liability, costs,
damages, expenses or inconvenience that may be occasioned by its
failing so to do.
(dd) 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
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for individual Offshore 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.
(ee) 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 the Offshore Notes by a Designated Rating
Agency or any other credit-rating agency or any other person.
(ff) The Note Trustee shall be under no obligation to monitor or supervise
the functions of the Servicer from time to time under the terms of the
Servicing Agreement or any other person under any other Transaction
Document, and is entitled, in the absence of actual knowledge of a
breach of duty or obligation, to assume that the Servicer is properly
performing its obligations in accordance with the provisions of the
Servicing Agreement or that any other person is properly performing
its obligations in accordance with each other Transaction Document, as
the case may be.
(gg) The Note Trustee acknowledges that the Manager is responsible, under
the Supplementary Terms Notice, for calculating all amounts referred
to in clause 5 of the Supplementary Terms 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 other than as a result of the fraud, negligence or
wilful default of the Note Trustee.
(hh) Subject to clause 36.5, where there are any inconsistencies between
any Statute regulating the Note Trust and the provisions of this deed,
the provisions of this deed shall, to the extent allowed by law,
prevail.
(ii) Subject to clause 36.5 and to the maximum extent permitted by law, any
duty imposed on the Note Trustee under any Statute shall not apply to
the Note Trustee unless and only to the extent that the relevant duty
is expressly stated as applying to the Note Trustee in this deed.
13.4 NOTICE OF DEFAULTS
(a) If an Event of Default occurs and is subsisting and the Note Trustee
has received notice of that Event of Default from the Trustee and the
Manager, the Note Trustee shall mail to each Offshore Noteholder
notice of the Event of Default within 90 days after receipt of such
notice.
(b) Except in the case of a default in payment of principal of or interest
on any Offshore Note (including payments pursuant to the mandatory
redemption provisions of that Offshore Note), the Note Trustee may
withhold the notice referred to in paragraph (a) if and so long as the
board of directors, the executive committee or a trust committee in
good faith determines that withholding the notice is in the interest
of the Offshore Noteholders.
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14. NOTE TRUSTEE'S LIABILITY
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(a) Subject to paragraph (b), the Note Trustee will have no liability
under or in connection with this deed or any other Transaction
Document (whether to the Offshore Noteholders, the Trustee, the
Manager or any other person) other than to the extent to which the
liability is able to be satisfied out of the assets of the Note Trust
from which the Note Trustee is actually indemnified for the liability.
(b) The limitation in paragraph (a) will not apply to a liability of the
Note Trustee to the extent that it is not satisfied because, under
this deed or by operation of law, there is a reduction in the extent
of the Note Trustee's indemnification as a result of the Note
Trustee's fraud, negligence or wilful default. Nothing in this clause
or any similar provision in any other Transaction Document limits or
adversely affects the rights of the Note Trustee.
15. DELEGATION BY NOTE TRUSTEE
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(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 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 Offshore
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, providing the Note
Trustee and the delegate are not Related Bodies Corporate, not in any
way be responsible for any loss incurred by reason of any fraud,
negligence, 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 the Designated Rating
Agencies.
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE
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The Note Trustee may in the conduct of the Note Trust, 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 Note Trust. If 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 fraud, negligence, misconduct or
default on the part of that agent.
Any Note Trustee or the agent of the Note Trustee which is a banker,
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 Note Trust 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 including matters which might or should have been attended to in
person
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by a trustee not being a banker, lawyer, accountant, broker or other
professional. 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 Note 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 the Offshore Notes or any of them, 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 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 by them 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 Offshore Noteholders are not materially
prejudiced), 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 Manager of any of
the covenants or provisions contained in this deed or in the
Offshore Notes (including the Conditions) or any other
Transaction Document (as to which evidence of a breach of one
Offshore Note shall be deemed evidence of a breach of all
Offshore Notes in the Class to which that Offshore Note belongs);
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:
(iii) any express direction given in writing by holders of Offshore
Notes representing at least 75% of the aggregate Invested Amount
of the Offshore Notes;
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(iv) a request made by the Offshore Noteholders in accordance with the
relevant Condition 10; or
(v) clauses 36.4 or 37.2 of this deed,
and shall at all times act in accordance with the requirements of the
TIA.
No direction or request shall affect any waiver, authorisation or
determination previously given or made.
(b) Any waiver, authorisation or determination under this clause is
binding on the Offshore Noteholders and if, but only if, the Note
Trustee so requires, shall be notified by the Trustee to the Offshore
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 Manager and the Trustee may, following giving notice
to each Designated Rating Agency, by way of supplemental deed alter, add to
or modify this deed (including this clause 19), the Conditions (subject to
the relevant Condition 13) and this clause or any Transaction Document 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;
(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 to the
interests of the Offshore Noteholders as a whole or any Class of
Offshore Noteholder,
and in the manner, and to the extent, permitted by the Transaction
Documents.
For the avoidance of doubt, the Note Trustee shall be entitled to rely
conclusively on, and shall not be liable to any person for such reliance
on, an Opinion of Counsel in connection with any alteration, addition or
modification under sub-paragraphs (b) to (d) (inclusive) above.
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19.2 EXTRAORDINARY RESOLUTION OF OFFSHORE NOTEHOLDERS
Subject to clause 37.2, 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 Offshore Noteholders as a whole or any Class of Offshore
Noteholders, the Note Trustee, the Manager and the Trustee may make that
alteration, addition or modification (subject to the TIA (if applicable))
only if sanctioned in writing by holders of at least 75% of the aggregate
Invested Amount of the Offshore Notes (an EXTRAORDINARY RESOLUTION).
19.3 DISTRIBUTION OF AMENDMENTS
The Manager shall distribute to all Offshore Noteholders and each
Designated Rating Agency a copy of any amendments made under clause 19.1 or
19.2 under 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 Offshore Noteholders.
19.5 CONFORMITY WITH TIA
Every amendment of this deed executed pursuant to this clause 19 which
affects the Class A-1 Notes or the Class A-1 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. OFFSHORE NOTEHOLDERS
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20.1 ABSOLUTE OWNER
(a) The Trustee, the Manager, the Security Trustee, the Note Trustee and
any Paying Agent may treat the registered holders of any Definitive
Note as the absolute owner of that Definitive Note (whether or not
that Definitive Note is overdue and despite any notation or notice to
the contrary or writing on it or any notice of previous loss or theft
of it or trust or other interest in it) for the purpose of making
payment and for all purposes and none of the Trustee, the Manager, the
Security Trustee, the Note Trustee or the Paying Agents is affected by
any notice to the contrary.
(b) So long as the Offshore Notes, or any of them, are represented by a
Book-Entry Note, the Trustee, the Manager, 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 Offshore
Note as the absolute owner of that Offshore Note and the Trustee, the
Manager, 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 the Book-Entry Note to be paid principal
and interest on the Book-Entry Note in accordance with its terms.
Without limitation, notices to Offshore Noteholders may be given by:
(i) in the case of the Class A-1 Noteholders, delivery of the
relevant notice to the relevant Clearing Agency for the Class A-1
Notes as the holder of the relevant
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Class A-1 Notes for communication by them to entitled account
holders in substitution for publication as required by the
relevant Conditions;
(ii) in the case of the Class A-2 Noteholders, delivery of the
relevant notice to Euroclear or Clearstream, Luxembourg for
communication by them to entitled account holders in substitution
for publication as required by the relevant Conditions; or
(iii) in the case of the Class A-2 Noteholders, for so long as Class
A-2 Notes are listed on the Irish Stock Exchange and the Irish
Stock Exchange so requires, delivery of the relevant notice to
the Company Announcements Office of the Irish Stock Exchange.
(c) Provided the Trustee pays the relevant Noteholder in accordance with
the Transaction Documents, such Noteholder shall have no claim
directly against the Trustee, the Note Trustee or the Principal Paying
Agent in respect of payment due on the Offshore Notes for so long as
the Offshore Notes are represented by a Book Entry Note and the
relevant obligations of the Trustee will be discharged by payment to
the registered holder of the Book Entry Note in respect of each amount
so paid.
(d) All payments made to any person treated as the owner of an Offshore
Note under this clause (or, in the case of a Book-Entry Note, to or to
the order of the registered holder of that Book-Entry 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 that Offshore
Note.
(e) Any instalment of interest or principal, payable on any Offshore Note
which is punctually paid or duly provided for by the Trustee to the
Paying Agent on the applicable Payment Date or Maturity Date shall be
paid to the person in whose name such Offshore Note is registered on
the Record Date, by cheque mailed first-class, postage prepaid, to
such person's address as it appears on the Note Register on such
Record Date, except that, unless Definitive Notes have been issued
pursuant to clause 3.3 or clause 3.4, with respect to Offshore Notes
registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be the Common Depository),
payment will be made by wire transfer in immediately available funds
to the account designated by such nominee and except for the final
instalment of principal payable with respect to such Offshore Note on
a Payment Date or Maturity Date (and except for the redemption for any
Offshore Note called for redemption pursuant to the relevant Condition
5 which shall be payable as provided in paragraph (f).
(f) The principal of each Offshore Note shall be payable on each Payment
Date and the Final Maturity Date as set forth in the relevant
Conditions. The Principal Paying Agent shall notify the person in
whose name an Offshore Note is registered at the close of business on
the Record Date preceding the Payment Date, of the date on which the
Trustee expects that the final instalment of principal and interest on
such Offshore Note will be paid. Such notice shall be mailed or
transmitted by facsimile prior to such Final Maturity Date and shall
specify that such final instalment will be payable only upon
presentation and surrender of such Offshore Note and shall specify the
place where such Offshore Note may be presented
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and surrendered for payment of such instalment. Notices in connection
with redemptions of Offshore Notes shall be mailed to Offshore
Noteholders as provided in clause 26.1.
20.2 CLEARING AGENCY CERTIFICATE
The Trustee, the 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 any Clearing Agency or any form of record made by either of them
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 Book-Entry Note.
21. CURRENCY INDEMNITY
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Subject to this deed including clause 29, the Trustee indemnifies the Note
Trustee, the Offshore Noteholders and keeps them indemnified against:
(a) any loss or damage incurred by any of them arising from the
non-payment by the Trustee of any US$ or Euro amount due to the Note
Trustee or the relevant Offshore Noteholders under this deed or the
relevant Offshore Notes by reason of any variation in the rates of
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$ or Euros, and under which
the Note Trustee or the Offshore Noteholders do not have an option to
have that judgment or order expressed in US$ or Euros (as the case may
be), and those prevailing at the date of actual payment by the
Trustee; and
(b) any deficiency arising or resulting from any variation in rates of
exchange between:
(i) the date (if any) as of which the non-US$ or non-Euro (as the
case may be) currency equivalent of the US$ or Euro (as the case
may be) amounts due or contingently due under this deed (other
than this clause) or in respect of the relevant Offshore Notes is
calculated for the purposes of any bankruptcy, insolvency or
liquidation of the Trustee; and
(ii) 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$ or Euros (as the case may be).
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.
(c) The indemnities in this clause are obligations of the Trustee separate
and independent from its obligations under the Offshore Notes and
apply irrespective of any time or indulgence granted by the Note
Trustee or the Offshore 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 Offshore Notes. Any
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deficiency will constitute a loss suffered by the Offshore Noteholders
and no proof or evidence of any actual loss shall be required by the
Trustee or its liquidator.
22. NEW NOTE TRUSTEES
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22.1 APPOINTMENT BY TRUSTEE
The Trustee may, at the direction of the Manager, at any time appoint a new
Note Trustee of this deed who has previously been approved by an
Extraordinary Resolution of the Offshore Noteholders. One or more persons
may hold office as Note Trustee or Note Trustees but that Note Trustee or
those Note Trustees must be or include a Trust Corporation. Whenever there
are more than two Note Trustees 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
and Manager, appoint any person established or resident in any
jurisdiction (whether a 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 Offshore 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 solely at
the direction of the Note Trustee.
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(d) The Note Trustee may remove or accept the resignation or retirement of
any person appointed under this clause. The reasonable 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
(a) The Trustee shall notify the Principal Paying Agent of any appointment
of a new Note Trustee or any retirement or resignation or removal of
an existing Note Trustee of this deed as soon as practicable after
becoming aware of that appointment, retirement or removal in
accordance with the relevant Condition 12.
(b) The Note Trustee shall notify each Designated Rating Agency and the
Offshore Noteholders of any appointment of a new Note Trustee or its
retirement or removal as soon as practicable.
23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL
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23.1 REMOVAL BY TRUSTEE
The Trustee (or the 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 that failure
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 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
23.7.
23.2 REMOVAL BY OFFSHORE NOTEHOLDERS
The Offshore Noteholders may resolve by written consent of the holders of
at least 75% of the aggregate Invested Amount of all the Offshore Notes to
require the Trustee to remove the Note Trustee or Note Trustees for the
time being of this deed.
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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 Manager, the
Security Trustee and each Designated Rating Agency not less than 3
months written notice to that effect which notice shall expire not
less than 30 days before any due date for payment of any Class of
Offshore Notes.
(b) Notwithstanding paragraph (a), the Note Trustee shall not resign its
appointment under this deed until a successor Note Trustee meeting the
requirements set forth in clause 23.4 has been appointed and has
accepted its appointment as Note Trustee under this deed as provided
in clause 23.5.
(c) 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.
23.4 TRUST CORPORATION
Each of the Trustee and the Manager undertakes that if the only Note
Trustee which is a Trust Corporation retires, resigns or is removed it will
use its reasonable endeavours to appoint a new Note Trustee which is a
Trust Corporation as soon as reasonably practicable. The retirement,
resignation or removal of any Note Trustee shall not become effective until
a successor Note Trustee which is a Trust Corporation is appointed. The
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, resignation 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 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;
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(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 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 Offshore
Noteholders may elect a Note Trustee from among the holders of the
Offshore 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.
(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
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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 Offshore Notes.
25. SEVERABILITY OF PROVISIONS
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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.
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26. NOTICES
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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; and
(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 to the
sender under this clause 26; and
(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 5.00 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.
(d) For the purposes of paragraph (c), all notices, requests, demands,
consents, approvals, agreements or other communications to the Note
Trustee, Principal Paying Agent, Note Registrar or the Calculation
Agent 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 CONSOLIDATED LIMITED
Level 7, 0 Xxxxxxxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx 0000
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Manager, Securitisation
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THE MANAGER
CRUSADE MANAGEMENT LIMITED
Level 11
00 Xxxxxx Xxxxxx
XXXXXX XXX 0000
XXXXXXXXX
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Executive Manager, Securitisation
THE PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK
IN RELATION TO THE CLASS A-1 NOTES, CLASS A-1 NOTEHOLDERS AND CLASS A-1
NOTE OWNERS:
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx
xx Xxxxxxx
Telex: Not applicable
Fax: x0 000 000 0000/5803
Attention: Global Trust Services
IN RELATION TO THE CLASS A-2 NOTES, CLASS A-2 NOTEHOLDERS AND CLASS A-2
NOTE OWNERS:
00xx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx
Telex: Not applicable
Fax: x00 0000000000
Attention: Global Trust Services
THE CALCULATION AGENT
THE BANK OF NEW YORK
00xx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx
Telex: Not applicable
Fax: x00 0000000000
Attention: Global Trust Services
THE NOTE TRUSTEE
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx
xx Xxxxxxx
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Telex: Not applicable
Fax: x0 000 000 0000/5803
Attention: Global Trust Services
THE SECURITY TRUSTEE
P.T. LIMITED
Level 0
0 Xxxxxxxxxxx Xxxxxx,
XXXXXX, XXX 0000
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Manager, Securitisation
27. GOVERNING LAW AND JURISDICTION
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This deed and the Note Trust 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 Note Trust,
including the exercise of the Note Trustee's powers under clause 13 of this
deed, is 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, the law of the State of New York will prevail
to the extent of the inconsistency.
28. COUNTERPARTS
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This deed may be executed in any number of counterparts. All counterparts
together will be taken to constitute one instrument.
29. LIMITED RECOURSE
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29.1 GENERAL
Clause 30 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Manager under this deed.
29.2 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT TO INDEMNITY
(a) This deed applies to the Trustee only in its capacity as trustee of
the Trust and in no other capacity (except where the Transaction
Documents provide otherwise). Subject to paragraph (c) below, a
liability arising under or in connection with this deed or the Trust
can be enforced against the Trustee only to the extent to which it can
be satisfied out of the assets and property of the Trust which are
available to satisfy the right of the Trustee to be exonerated or
indemnified for the liability. This limitation of the Trustee's
liability applies despite any other provision of this deed and extends
to all liabilities and obligations of the
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Trustee in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to this deed or
the Trust.
(b) Subject to paragraph (c) below, no person (including any Relevant
Party) may take action against the Trustee in any capacity other than
as trustee of the Trust or seek the appointment of a receiver (except
under the Security Trust Deed), or a liquidator, an administrator or
any similar person to the Trustee or prove in any liquidation,
administration or arrangements of or affecting the Trustee.
(c) The provisions of this clause 29.2 shall not apply to any obligation
or liability of the Trustee to the extent that it is not satisfied
because under a Transaction Document or by operation of law there is a
reduction in the extent of the Trustee's indemnification or
exoneration out of the Assets of the Trust as a result of the
Trustee's fraud, negligence, or Default.
(d) It is acknowledged that the Relevant Parties are responsible under
this deed or the other Transaction Documents for performing a variety
of obligations relating to the Trust. No act or omission of the
Trustee (including any related failure to satisfy its obligations
under this deed) will be considered fraud, negligence or Default of
the Trustee for the purpose of paragraph (c) above to the extent to
which the act or omission was caused or contributed to by any failure
by any Relevant Party or any person who has been delegated or
appointed by the Trustee in accordance with the Transaction Documents
to fulfil its obligations relating to the Trust or by any other act or
omission of a Relevant Party or any such person.
(e) In exercising their powers under the Transaction Documents, each of
the Trustee, the Security Trustee and the Noteholders must ensure that
no attorney, agent, delegate, receiver or receiver and manager
appointed by it in accordance with this deed or any other Transaction
Documents has authority to act on behalf of the Trustee in a way which
exposes the Trustee to any personal liability and no act or omission
of any such person will be considered fraud, negligence, or Default of
the Trustee for the purpose of paragraph (c) above.
(f) In this clause, RELEVANT PARTIES means each of the Manager, the
Servicer, the Custodian, the Calculation Agent, each Paying Agent, the
Note Trustee, the Note Registrar and the provider of any Support
Facility.
(g) Nothing in this clause limits the obligations expressly imposed on the
Trustee under the Transaction Documents.
29.3 UNRESTRICTED REMEDIES
Nothing in clause 29.2 or 29.4 limits any party in:
(a) obtaining an injunction or other order to restrain any breach of this
deed by any party;
(b) obtaining declaratory relief; or
(c) relation to its rights under the Security Trust Deed or this deed.
29.4 RESTRICTED REMEDIES
Except as provided in clause 29.3, no party shall:
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(a) (JUDGMENT) obtain a judgment for the payment of money or damages by
the Trustee;
(b) (STATUTORY DEMAND) issue any demand under section 459E(1) of the
Corporations Act 2001 (Cth) (or any analogous provision under any
other law) against the Trustee;
(c) (WINDING UP) apply for the winding up or dissolution of the Trustee;
(d) (EXECUTION) levy or enforce any distress or other execution to, on, or
against any assets of the Trustee;
(e) (COURT APPOINTED RECEIVER) apply for the appointment by a court of a
receiver to any of the assets of the Trustee;
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any set-off or
counterclaim against the Trustee; or
(g) (ADMINISTRATOR) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and each 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 20 of the Master Trust Deed to
become the Trustee under this deed.
31. REIMBURSEMENT 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(a) 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 Trustee or if another person is expressly stated in
the relevant provision in a Transaction Document, that person.
32. NO LIABILITY
--------------------------------------------------------------------------------
Without limitation the Note Trustee shall not be liable (subject to the
mandatory requirements of the TIA) for:
(a) any decline in the value or loss realised upon any sale or other
dispositions made under the Security Trust Deed of any Mortgaged
Property or any other property charged to the Security Trustee by any
other person in respect of or relating to the obligations of any
person in respect of the Trustee or the Secured Moneys (as defined in
the Security Trust Deed) or relating in any way to the Mortgaged
Property;
(b) any decline in value directly or indirectly arising from the Note
Trustee acting or failing to act as a consequence of an opinion
reached by it; or
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(c) 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 deeds or documents of title thereto 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
operator or by any person on behalf of the Security Trustee or the
Note Trustee,
except for the fraud, negligence, or wilful default of the Note Trustee.
33. INFORMATION MEMORANDUM
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The Note Trustee has no responsibility for any statement or information in
or omission from any information memorandum, prospectus, offering circular,
advertisement, circular or other document issued by or on behalf of the
Trustee or Manager, including in connection with the issue of Offshore
Notes. Neither the Trustee nor the Manager may publish or permit to be
published any such document in connection with the offer of Offshore Notes
or an invitation for subscriptions for Offshore 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 CERTIFICATE
(a) 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 Manager, any Paying
Agent, the Calculation Agent or any Designated Rating Agency in
respect of every manner and circumstance for which a certificate or
any letter of confirmation or explanation is expressly provided for
under this deed or in respect of the rating of any of the Offshore
Notes or the relevant Conditions and the Note Trustee is not bound in
any such case to call for further evidence.
(b) The Note Trustee shall not incur any liability as a result of relying
upon the authority, validity, due authorisation of, or the accuracy of
any information contained in any notice, resolution, direction,
consent, certificate, receipt, affidavit, statement, valuation report
or other document or communication (including any of the above
submitted or provided by the Manager, by the Trustee or by an Offshore
Noteholder) if the Note Trustee is entitled, under clause 34.2 to
assume such authenticity, validity, due authorisation or accuracy.
(c) In preparing any notice, certificate, advice or proposal the Note
Trustee shall be entitled to assume, unless it is actually aware to
the contrary, that each person under any Authorised Investment,
Support Facility, Receivable, Receivable Security, Related Securities,
other Transaction Document or any other deed, agreement or arrangement
incidental to any of
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the above or to the 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 MANAGER, SECURITY TRUSTEE, TRUSTEE OR SERVICER
(a) (AUTHORISED SIGNATORIES ARE SUFFICIENT EVIDENCE) Whenever any
certificate, notice, proposal, direction, instruction, document or
other communication is to be given to the Note Trustee, the Note
Trustee may assume:
(i) the authenticity and validity of any signature in any such
document and that such document has been duly authorised; and
(ii) the accuracy of any information contained in any such documents,
in either case unless the officers of the Note Trustee responsible for
the administration of the Note Trust are actually aware to the
contrary.
(b) (NOTE TRUSTEE NOT LIABLE FOR LOSS) The Note Trustee shall not be
responsible for any loss arising from any forgery or lack of
authenticity or any act, neglect, mistake or discrepancy of the
Manager, the Security Trustee, Trustee or the Servicer or any officer,
employee, agent or delegate of the Manager, the Security Trustee, the
Trustee or the Servicer 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 Note Trust are not actually
aware of such forgery, lack of authenticity or validity, act, neglect,
mistake or discrepancy.
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 applicable present or future law of any place or any
applicable ordinance, rule, regulation or by law or of any applicable
decree, order or judgment of any competent court or other tribunal, the
Note Trustee shall be prohibited from doing or performing.
34.4 RELIANCE ON EXPERTS
The Note Trustee may rely on and act on the opinion or statement or
certificate or advice of or information obtained from the Security Trustee,
the Servicer, the Trustee, 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
except to the extent of losses, costs, claims or damages caused by the Note
Trustee's fraud, negligence or wilful default.
34.5 OVERSIGHTS OF OTHERS
Having regard to the limitations on the Note Trustee's duties, powers,
authorities and discretions under 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 person or
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agent appointed by the Note Trustee or on whom the Note Trustee is entitled
to rely under this deed (other than a Related Body Corporate), attorney,
banker, receiver, barrister, solicitor, agent or other person acting as
agent or adviser to the Note Trustee except to the extent of losses, costs,
claims or damages caused by the Note Trustee's fraud, negligence or wilful
default, provided that nothing in this deed or any other Transaction
Document imposes any obligations on the Note Trustee to review or supervise
the performance by any other party of its obligations.
34.6 POWERS, AUTHORITIES AND DISCRETIONS
Except as otherwise provided in this deed and 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.
34.7 IMPOSSIBILITY OR IMPRACTICABILITY
If for any reason whatsoever it becomes impossible or impracticable for the
Note Trustee 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 and, except to the extent of its own fraud, negligence or wilful
default, 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.
34.8 LEGAL AND OTHER PROCEEDINGS
(a) (INDEMNITY FOR LEGAL COSTS) The Note Trustee or the Offshore
Noteholders acting under clause 6.5 (as the case may be) (each an
INDEMNIFIED PARTY) shall be indemnified by the Trustee (subject to
clause 29) for all legal costs and disbursements on a full indemnity
basis and all other costs, disbursements, outgoings and expenses
incurred by the Indemnified Party in connection with:
(i) the enforcement or contemplated enforcement of, or preservation
of rights under;
(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; and
(iii) obtaining legal advice or opinions concerning or relating to the
interpretation or construction of,
this deed or any other Transaction Document or otherwise under or in
respect of the Note Trust Deed provided that in relation to the
matters referred to in paragraph (i) or (ii) only, the Indemnified
Party shall only be so indemnified by the Trustee if:
(iv) the basis upon which any of those costs, disbursements, outgoings
and expenses will be incurred has been approved in advance by the
written consent of the holders of at least 75% of the aggregate
Invested Amount of the Offshore Notes; or
(v) the Indemnified Party reasonably considers the incurring of those
costs, disbursements, outgoings and expenses to be necessary.
(b) (DEFENCE OF PROCEEDINGS ALLEGING NEGLIGENCE ETC) The Indemnified Party
shall be entitled to claim in respect of the above indemnity from the
Trustee for its expenses and liabilities
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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
immediately repay to the Trust the amount previously paid by the
Trustee to it in respect of that indemnity.
34.9 NO LIABILITY EXCEPT FOR NEGLIGENCE ETC.
Except to the extent caused by the fraud, negligence or wilful default on
the Note Trustee's part or on the part of any of its officers or employees,
or any agents 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 for any losses, costs, liabilities or claims arising
from the failure to pay moneys on the due date for payment to any Offshore
Noteholder or any other person or for any loss howsoever caused in respect
of any of the Trust or to any Offshore Noteholder or other person.
The Note Trustee is not obliged to take any action under this deed unless
it is indemnified to its satisfaction against all actions, proceedings,
claims and demands to which it may render itself liable and all costs,
charges, damages and expenses it may incur in doing so, to the extent
permitted by law.
34.10 FURTHER LIMITATIONS ON NOTE TRUSTEE'S LIABILITY
Subject to clause 34.2, the Note Trustee shall not be liable:
(a) for any losses, costs, liabilities or expenses arising out of the
exercise or non-exercise of its discretion or for any other act or
omission on its part under this deed, any other Transaction Document
or any other document except where the exercise or non-exercise of any
discretion, or any act or omission, by the Note Trustee, or any of its
officers or employees, or any agent, 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, constitutes fraud, negligence or wilful
default;
(b) 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:
(i) any Offshore Noteholder under this deed, any other Transaction
Document or any other document;
(ii) by any person under a Support Facility, Receivable or Receivable
Security,
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 or delegate employed by the Note Trustee in
accordance with this deed to carry out any transactions contemplated
by this deed;
(c) for any Manager's Default, Servicer Transfer Event or Title Perfection
Event;
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(d) without limiting the Note Trustee's obligations or powers under the
Transaction Documents, for any act, omission or default of the
Servicer in relation to its servicing duties or its obligations under
the Servicing Agreement;
(e) without limiting the Note Trustee's obligations or powers under the
Transaction Documents, for any act, omission or default of the
Custodian in relation to its custodial duties or its obligations under
the Custodian Agreement;
(f) 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;
(g) 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;
(h) 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;
(i) for the failure of a person to carry out an agreement with the Note
Trustee in connection with the Trust; or
(j) 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
Manager, the Trustee, Security Trustee or the Servicer,
except, in the case of paragraphs (c) to (j) (inclusive), to the extent
that it is caused by the fraud, negligence or wilful default of the Note
Trustee.
Nothing in this clause 34.10 alone (but without limiting the operation of
any other clause of this deed) shall imply a duty on the Note Trustee to
supervise the Manager or the Security Trustee in the performance of the
Manager's or the Security Trustee's functions and duties, and the exercise
by the Manager or the Security Trustee of its discretions.
34.11 CONFLICTS
(a) (NO CONFLICT) Nothing in this deed shall prevent the Note Trustee
(subject to clause 13.1 and section 311 of the TIA), the Trustee, the
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
Offshore Notes;
(ii) entering into any financial, banking, development, insurance,
agency, broking or other transaction with, or providing any
advice or services for the Trust and receiving compensation for
such services; 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 Offshore 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 with any such person in
the ordinary course of its 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 Offshore Noteholder or any
other person for any profits arising from any such contracts,
transactions or offices.
34.12 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 Offshore
Noteholder) with any credit or other information concerning the affairs,
financial condition or business of the Trust.
34.13 INVESTIGATION BY NOTE TRUSTEE
Each Noteholder acknowledges that:
(a) the Note Trustee has no duty, and is under no obligation, to
investigate whether a Manager's Default, Servicer Transfer Event or
Title Perfection Event 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
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35.1 PROVISION OF INFORMATION
The Trustee (or the Manager on its behalf) will furnish or cause to be
furnished to the Note Trustee:
(a) every six months (with the first six month period commencing on the
Closing 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 Offshore 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 Offshore Notes are Book-Entry Notes,
no such list shall be required to be furnished.
35.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTEHOLDERS
(a) The Note Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Offshore 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 Offshore 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) Class A-1 Noteholders may communicate pursuant to section 312(b) of
the TIA with other Class A-1 Noteholders with respect to their rights
under this deed or under the Class A-1 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 2005, the Note Trustee shall mail to each
Class A-1 Noteholder, the Trustee and the 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
Class A-1 Noteholders shall be filed by the Note Trustee with the
Commission and each stock exchange, if any, on or by which the Class A-1
Notes are then listed. The Manager on behalf of the Trustee shall notify
the Note Trustee in writing if and when the Class A-1 Notes are listed on
or by any stock exchange.
35.4 NOTICES TO CLASS A-1 NOTEHOLDERS; WAIVER
Where this deed provides for notice to Class A-1 Noteholders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class, postage prepaid to each
Class A-1 Noteholder affected by such event, at his or her address as it
appears on the Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Class A-1 Noteholders is given by mail, neither
the failure to mail such notice nor any defect in any notice so mailed to
any particular Class A-1 Noteholder shall affect the sufficiency of such
notice with respect to other Class A-1 Noteholders, and any notice that is
mailed in the manner herein provided shall conclusively be presumed to have
been duly given.
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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 Class A-1 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.
In case, by reason of the suspension of regular mail services as a result
of a strike, work stoppage or similar activity, it shall be impractical to
mail notice of any event to Class A-1 Noteholders when such notice is
required to be given pursuant to any provision of this deed, then any
manner of giving such notice as the Manager on behalf of the Trustee shall
direct the Note Trustee shall be deemed to be a sufficient giving of such
notice.
35.5 REPORTS BY TRUSTEE
The Trustee (or the 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 Securities Exchange Act of 1934, as amended;
(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 Class A-1 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 Manager to the
Note Trustee to take any action under any provision of this deed, the
Trustee (or the 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;
(ii) an Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with;
and
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(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 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.
(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 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 Invested 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$25,000 or
less than one percent of the then Total Invested Amount of the
Notes.
Notwithstanding any other provision of this clause, the Trustee
may:
(A) collect, liquidate, sell or otherwise dispose of Receivables
or other Assets of the Trust as and to the extent permitted
or required by the Transaction Documents; and
(B) make or permit to be made cash payments out of the
Collection Account or the US$ Account or the Euro 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:
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(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
Offshore Noteholder by such Offshore 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 Offshore Noteholder, or group of
Offshore Noteholders in each case holding in the aggregate more
than 10% of the aggregate Invested Amount of the Offshore Notes;
or
(iii) any suit instituted by any Offshore Noteholder for the
enforcement of the payment of principal or interest on any
Offshore Note on or after the respective due dates expressed in
such Offshore Note and in this deed (or, in the case of final
redemption of an Offshore Note, on or after the Final Maturity
Date).
36.3 EXCLUSION OF SECTION 316
(a) Section 316(a)(1) of the TIA is expressly excluded by this deed.
(b) For the purposes of section 316(a)(2) of the TIA in determining
whether any Offshore 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 Offshore Notes which the Note
Trustee knows are so owned shall be so disregarded.
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36.4 UNCONDITIONAL RIGHTS OF OFFSHORE NOTEHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST
Notwithstanding any other provisions in this deed, any Offshore Noteholder
shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Offshore Note on
or after the respective due dates thereof expressed in such Offshore Note
or in this deed (or, in the case of final redemption of an Offshore Note,
on or after the Final 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 Offshore 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 deed by any of the
provisions of the TIA, such TIA 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.
37. CONSENT OF OFFSHORE NOTEHOLDERS
--------------------------------------------------------------------------------
37.1 GENERAL
Except as expressly provided in elsewhere in this deed or in clause 37.2
below, any action that may be taken by the Offshore Noteholders under this
deed may be taken by the holders of not less than a majority of the
aggregate Invested Amount of the Offshore Notes.
37.2 SPECIAL WRITTEN APPROVALS
(a) The following matters are only capable of being effected by the
approval in writing of all holders of the Offshore Notes, namely:
(i) modification of the date fixed for final maturity of the Offshore
Notes;
(ii) reduction or cancellation of the principal payable on the
Offshore Notes or any alteration of the date or priority of
redemption of the Offshore Notes;
(iii) alteration of the amount of interest payable on any class of the
Offshore Notes or modification of the method of calculating the
amount of interest payable on the Offshore Notes or modification
of the date of payment of or interest payable on the Offshore
Notes;
(iv) alteration of the currency in which payments under the Offshore
Notes are to be made;
(v) altering the required percentage of the aggregate Invested Amount
of the Offshore Notes required to consent or take any action;
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(vi) an election to receive the Stated Amount of the Offshore Notes
instead of the Invested Amount in the event of a call under
clause 7.1 of the Supplementary Terms Notice; and
(vii) alteration of this sub-paragraph.
(b) The Offshore Noteholders shall in addition to the powers given under
this deed, have the following powers if approval is given by an
Extraordinary Resolution of the Offshore Noteholders (or such higher
percentage as may be required by the TIA):
(i) power to sanction any compromise or arrangement proposed to be
made between the Trustee and the Offshore Noteholders;
(ii) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Offshore Noteholders
against the Trustee or against any of its property or against any
other person whether such rights shall arise under these
presents, any of the Offshore Notes or otherwise;
(iii) power to assent to any modification of the provisions contained
in these presents, the Offshore 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 these presents or the Offshore Notes (including the
relevant Conditions) is required to be given by, in writing by
the holders of at least 75% of the aggregate Invested Amount of
the Offshore Notes;
(v) power to approve a person to be appointed a trustee and power to
remove any trustee or trustees for the time being under this
deed;
(vi) 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
Offshore Notes;
(vii) 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 the approval in writing
by holders of at least 75% of the aggregate Invested Amount of
the Offshore Notes;
(viii) power to sanction any scheme or proposal for the exchange or
sale of the Offshore Notes, as the case may be, for, or the
conversion of the Offshore Notes, into, or the cancellation of
the Offshore 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.
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37.3 REQUIREMENT FOR WRITING
Except as expressly provided elsewhere in this deed, all notices and
consents from Offshore Noteholders and any Class A Note Owners (as the case
may be) shall be delivered in writing. Any solicitation of such notices or
consent shall be in writing and be delivered by the Trustee, Manager or
Note Trustee, as applicable, seeking such notice or consent from the
Offshore Noteholders or Class A Note Owners (as the case may be) to the
Principal Paying Agent, who shall deliver the foregoing to the appropriate
Offshore Noteholders or Class A Note Owners. With respect to any
solicitation of approval of Offshore Noteholders, the record date for
determining Offshore Noteholders with respect to such solicitation shall be
the date upon which the Principal Paying Agent distributes such notices or
solicitation to the Offshore Noteholders.
37.4 NO CONFLICT BETWEEN ACTIONS OF OFFSHORE NOTEHOLDERS
Notwithstanding any of the foregoing, the Class A-1 Noteholders and the
Class A-2 Noteholders may take action as a Class on any matters that relate
solely to that Class of Notes, provided that neither the Class A-1
Noteholders nor the Class A-2 Noteholders may do anything which would
affect the compliance of this deed with the TIA.
38. DOCUMENTS
--------------------------------------------------------------------------------
The Manager and the Trustee shall provide to the Note Trustee sufficient
copies of all documents required by the relevant Conditions, this deed, the
Prospectus or the Offering Circular to be made available by the Note
Trustee to Offshore Noteholders for issue or inspection but only to the
extent that such documents are in the Manager's or the Trustee's possession
or are otherwise available to the Manager or the Trustee.
EXECUTED as a deed.
Each attorney executing this deed states that he or she has no notice of,
alteration to, or revocation or suspension of, his or her power of attorney.
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TRUSTEE
SIGNED SEALED AND DELIVERED for
PERPETUAL TRUSTEES CONSOLIDATED
LIMITED by its attorney in the
presence of:
----------------------------------- ------------------------------------------
Witness Signature Attorney Signature
----------------------------------- ------------------------------------------
Print Name Print Name
MANAGER
SIGNED SEALED AND DELIVERED for
CRUSADE MANAGEMENT LIMITED by its
attorney in the presence of:
----------------------------------- ------------------------------------------
Witness Signature Attorney Signature
----------------------------------- ------------------------------------------
Print Name Print Name
Note Trust Deed [Xxxxxx Xxxxxx Xxxxxxxx LOGO]
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NOTE TRUSTEE
EXECUTED for and on behalf of THE
BANK OF NEW YORK by:
-----------------------------------
Authorised Signatory
-----------------------------------
Print Name
PRINCIPAL PAYING AGENT
EXECUTED for and on behalf of THE
BANK OF NEW YORK by:
-----------------------------------
Authorised Signatory
-----------------------------------
Print Name
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CALCULATION AGENT
EXECUTED for and on behalf of THE
BANK OF NEW YORK by:
-----------------------------------
Authorised Signatory
-----------------------------------
Print Name
SECURITY TRUSTEE
SIGNED SEALED AND DELIVERED for
P.T. LIMITED by its attorney in the
presence of:
----------------------------------- ------------------------------------------
Witness Signature Attorney Signature
----------------------------------- ------------------------------------------
Print Name Print Name
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SCHEDULE 1
FORM OF CLASS A-1 BOOK-ENTRY NOTE
--------------------------------------------------------------------------------
REGISTERED CUSIP No. [*]
No. R- ISIN No. [*]
Common Code [*]
Unless this 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 Note 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 FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THIS CLASS A-1 BOOK-ENTRY NOTE IS A GLOBAL BOND FOR THE PURPOSES OF SECTION
128F(10) OF THE INCOME TAX ASSESSMENT ACT 1936 OF THE COMMONWEALTH OF AUSTRALIA.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
(ABN 81 004 029 841)
(a limited liability company incorporated in Australia)
in its capacity as trustee of the Crusade Global Trust No. 1 of 2005
BOOK-ENTRY NOTE
representing
US$[*]
Class A-1 Mortgage Backed Floating Rate Notes Due on the
Final Maturity Date falling in June 2037
This Note is a Class A-1 Book-Entry Note without principal or interest in
respect of a duly authorised issue of Notes of Perpetual Trustees Consolidated
Limited in its capacity as trustee of the Crusade Global Trust No. 1 of 2005
(the "TRUST") (the "ISSUER"), designated as specified in the title above (the
"NOTES"), in an initial aggregate principal amount of
US$[*]
and (a) constituted by a Master Trust Deed (the "MASTER TRUST DEED") dated 14
March 1998 between the Issuer, Xx.Xxxxxx Bank Limited and Crusade Management
Limited (the "MANAGER"), by a Supplementary Terms Notice (the "SUPPLEMENTARY
TERMS NOTICE") dated on or about [*] 2005 between (among others) the Issuer, the
Security Trustee (as defined herein), Xx.Xxxxxx Custodial Pty Limited, The Bank
of New York (the
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note trustee for the time being referred to as the "NOTE TRUSTEE") as trustee
for the holders for the time being of the Class A-1 Notes (the "CLASS A-1
NOTEHOLDERS") and the Manager, and by the Conditions; (b) issued subject to a
Note Trust Deed dated [*] 2005 (the "NOTE TRUST DEED") between (among others)
the Issuer, the Manager and the Note Trustee; and (c) secured by a Security
Trust Deed (the "SECURITY TRUST DEED") dated [*] 2005 between the Issuer, the
Manager, P.T. Limited (ABN 67 004 454 666) (the "SECURITY TRUSTEE") which
expression shall include its successor for the time being as security trustee
under the Security Trust Deed) and the Note Trustee. References to the
Conditions (or to any particular numbered Condition) shall be to the Terms and
Conditions of the Class A-1 Notes set out in Schedule 3 to the Note Trust Deed
but with the deletion of those provisions which are applicable only to Class A-1
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 Class A-1 Notes under Clause 3.3 of
the Note Trust Deed this Class A-1 Book-Entry Note will be exchangeable in whole
at the offices of the Principal Paying Agent at 000 Xxxxxxx Xxxxxx, Xxxxx 00
Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx xx Xxxxxxx (or such other place
outside Australia and any of its respective territories and possessions and
other areas subject to jurisdictions as the Note Trustee may agree) for
Definitive Class A-1 Notes and the Issuer shall execute and procure that the
Principal Paying Agent authenticates and delivers in full exchange for this
Class A-1 Book-Entry Note, Definitive Class A-1 Notes in aggregate principal
amount equal to the principal amount of all Class A-1 Notes represented by this
Class A-1 Book-Entry Note. The Issuer is not obliged to issue Definitive Class
A-1 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 US$
Book-Entry Note and subject to and in accordance with the Conditions and the
Note Trust Deed promises to pay to Cede & Co., or registered assigns of this
Class A-1 Book-Entry Note the principal sum of US$ [*] (US$[*]) or such lesser
amount as may from time to time be represented by this Class A-1 Book-Entry Note
(or such part of that amount as may become repayable under the Conditions, the
Supplementary Terms Notice and the Note Trust Deed) on such date(s) that
principal sum (or any part of it) becomes repayable in accordance with the
Conditions, the Supplementary Terms Notice and the Note Trust Deed and to pay
interest in arrears on each Quarterly Payment Date (as defined in Condition 4)
on the Invested Amount (as defined in Condition 5(a)) of this Class A-1
Book-Entry Note at rates determined in accordance with Condition 4 and all
subject to and in accordance with the certification requirements described in
this Class A-1 Book-Entry Note, the Conditions, the Supplementary Terms Notice
and the Note Trust Deed, which shall be binding on the registered holder of this
Class A-1 Book-Entry Note (as if references in the Conditions to the Notes and
the Noteholders were references to this Class A-1 Book-Entry Note and the
registered holder of this Class A-1 Book-Entry Note respectively and as if the
same had been set out in this Class A-1 Book-Entry Note in full with all
necessary changes, except as otherwise provided in this Class A-1 Book-Entry
Note).
Payments of interest on this Class A-1 Note due and payable on each Quarterly
Payment Date, together with the instalment of principal, if any, shall be
payable to the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.). No payment of interest or principal may be made by the Issuer or
any Paying Agent in the Commonwealth of Australia or its possessions or into a
bank account or to an address in the Commonwealth of Australia. Each of the
persons appearing from time to time in the records of DTC, as the holder of a
beneficial interest in a Class A-1 Note will be entitled to receive any payment
so made in respect of that Class A-1 Note in accordance with the respective
rules and procedures of DTC. Such persons will
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have no claim directly against the Issuer in respect of payments due on the
Class A-1 Notes which must be made by the registered holder of this Class A-1
Book-Entry Note, for so long as this Class A-1 Book-Entry Note is outstanding.
On any payment of principal and/or interest on the Class A-1 Notes as set out
above details of that payment shall be endorsed by or on behalf of the Issuer in
the Note Register and, in the case of payments of principal, the Invested Amount
of the Class A-1 Notes shall be reduced for all purposes by the amount so paid
and endorsed in the Note Register. Any such record shall be prima facie evidence
that the payment in question has been made.
If the Issuer is obliged to issue Definitive Class A-1 Notes under clause 3.3 of
the Note Trust Deed, the Book-Entry Notes will be surrendered to the Trustee by
the Clearing Agency and the Clearing Agency will deliver the relevant
registration instructions to the Trustee. Definitive Class A-1 Notes shall be
executed by the Trustee and authenticated by the Principal Paying Agent and
delivered as per the instructions of the Clearing Agency.
The Definitive Class A-1 Notes to be issued on that exchange will be in
registered form each in the denomination of US$100,000 and multiples of US$1 in
excess thereof. If the Issuer fails to meet its obligations to issue Definitive
Class A-1 Notes, this shall be without prejudice to the Issuer's obligations
with respect to the Notes under the Note Trust Deed, the Master Trust Deed, the
Supplementary Terms Notice and this Class A-1 Book-Entry Note.
On an exchange of this Class A-1 Book-Entry Note, this Class A-1 Book-Entry Note
shall be surrendered to the Principal Paying Agent.
This Class A-1 Book-Entry Note shall not become valid for any purpose unless and
until the Certificate of Authentication attached has been signed by an
Authorised Signatory of the Principal Paying Agent (as defined in the
Supplementary Terms Notice).
This Class A-1 Book-Entry 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 Class A-1 Book-Entry Note to be signed
manually or in facsimile by a person duly authorised on its behalf.
Perpetual Trustees Consolidated Limited in its capacity as trustee of the
Crusade Global Trust No. 1 of 2005
By:
-------------------------------
Authorised Signatory
IMPORTANT NOTICE:
(a) The Class A-1 Notes do not represent deposits or other liabilities of
St. Xxxxxx Bank Limited, ABN 92 055 513 070 ("ST. XXXXXX") or associates of
St. Xxxxxx.
(b) The holding of Class A-1 Notes is subject to investment risk, including
possible delays in repayment and loss of income and principal invested.
(c) None of St. Xxxxxx, any associate of St. Xxxxxx, Perpetual Trustees
Consolidated Limited, the Security Trustee, the Note Trustee, the Principal
Paying Agent, the Note Registrar, the Calculation Agent, any Paying Agent
nor any Note Manager in any way stands behind the capital value and/or
performance of
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the Class A-1 Notes or the assets of the Trust except to the limited extent
provided in the Transaction Documents for the Trust (which, for the
avoidance of doubt, does not apply to the Note Trustee, the Principal
Paying Agent, the Note Registrar, any Paying Agent nor the Calculation
Agent).
(d) None of St. Xxxxxx, Perpetual Trustees Consolidated Limited, the Custodian
(as defined in the Supplementary Terms Notice), the Servicer (as defined in
the Supplementary Terms Notice), the Manager, the Security Trustee, the
Note Trustee, the Principal Paying Agent, the Note Registrar, any Paying
Agent, the Calculation Agent, the Currency Swap Provider (as defined in the
Supplementary Terms Notice) or any of the Note Managers (as defined in the
Supplementary Terms Notice) guarantees the payment of interest or the
repayment of principal due on the Class A-1 Notes.
(e) None of the obligations of the Issuer or the Manager are guaranteed in any
way by St. Xxxxxx or any associate of St. Xxxxxx or associate of Perpetual
Trustees Consolidated Limited.
(f) Without limiting the Conditions, the Issuer's liability to make payments in
respect of the Class A-1 Notes is limited to its right of indemnity from
the assets of the Trust from time to time available to make such payments
under the Master Trust Deed and Supplementary Terms Notice. All claims
against the Issuer in relation to the Class A-1 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 Default (as defined in the Master Trust Deed) on the part of
the Issuer.
(g) 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.
CERTIFICATE OF AUTHENTICATION
This Class A-1 Book-Entry Note is to be authenticated by The Bank of New York
and until so authenticated shall not be valid for any purpose.
THE BANK OF NEW YORK as Principal Paying Agent
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ASSIGNMENT
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Social Security or taxpayer I.D. or other identifying number of assignee
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
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(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
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attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated:
--------------------------------- -------------------------------------
Signature Guaranteed:
Dated:
--------------------------------- -------------------------------------
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the Note
Registrar, which requirements include
membership or participation in 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 Securities
Exchange Act of 1934, as amended.
----------
* NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular without alteration, enlargement or any change whatsoever.
Note Trust Deed [Xxxxxx Xxxxxx Xxxxxxxx LOGO]
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SCHEDULE 2
INFORMATION TO BE CONTAINED IN NOTEHOLDER'S REPORT
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The following information is to be included in each Noteholder's Report:
(a) the Invested Amount and the Stated Amount of each Class of Notes;
(b) the Interest Payments and principal distributions on each Class of
Notes;
(c) the Available Income;
(d) the Total Available Funds;
(e) the aggregate of all Redraws and Further Advances made during that
Collection Period;
(f) the Redraw Shortfall;
(g) the Payment Shortfall (if any);
(h) the Principal Draw (if any) for that Collection Period, together with
all Principal Draws made before the start of that Collection Period
and not repaid;
(i) the Principal Collections;
(j) the Principal Charge Off (if any);
(k) the Class A Bond Factor in respect of each Class of Class A Notes, the
Class B Bond Factor and the Class C Bond Factor;
(l) the Class A Charge Offs, the Class B Charge Offs, the Class C Charge
Offs and the Redraw Charge Offs (if any);
(m) all Carryover Charge Offs (if any);
(n) if required, the Threshold Rate at that Collection Determination Date;
(o) the relevant Interest Rate, as at the first day of the related
Interest Period ending immediately after that Collection Determination
Date as calculated by the Agent Bank;
(p) scheduled and unscheduled payments of principal on the Housing Loans;
(q) aggregate Balances Outstanding of Fixed Rate Housing Loans and
aggregate Balances Outstanding of Variable Rate Housing Loans;
(r) delinquency and loss statistics with respect to the Housing Loans; and
(s) the Liquidity Reserve as at that Determination Date.
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SCHEDULE 3
TERMS AND CONDITIONS OF THE CLASS A-1 NOTES
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The following, subject to amendments, are the terms and conditions of the Class
A-1 Notes, substantially as they will appear on the reverse of the Class A-1
Notes in definitive form. Class A-1 Notes in definitive form will only be issued
in certain circumstances. While the Class A-1 Notes remain in book-entry form,
the same terms and conditions govern them, except to the extent that they are
appropriate only to the Class A-1 Notes in definitive form. For a summary of the
provisions relating to the Class A-1 Notes in book-entry 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
Class A-1 Notes.
The issue of US$[600,000,000] Mortgage Backed Pass Through Floating Rate Class
A-1 Notes due June 2037 (the CLASS A-1 NOTES), (euro)[500,000,000] Mortgage
Backed Pass Through Floating Rate Class A-2 Notes due June 2037 (the CLASS A-2
NOTES), A$[500,000,000] Mortgage Backed Pass Through Floating Rate Class A-3
Notes due June 2037 (the CLASS A-3 NOTES, and together with the Class A-1 Notes,
and the Class A-2 Notes, the CLASS A NOTES) and A$[26,700,000] Mortgage Backed
Pass Through Floating Rate Class B Notes due June 2037 (the CLASS B NOTES) and
A$[8,600,000] Mortgaged Backed Pass Through Floating Rate Class C Notes due June
2037 (the CLASS C NOTES) (the Class B Notes, the Class C Notes and the Class A-3
Notes, together, are the A$ NOTES and the $A Notes and the Class A-1 Notes and
the Class A-2 Notes, together, are the NOTES) by Perpetual Trustees Consolidated
Limited, in its capacity as trustee of the Crusade Global Trust No. 1 of 2005
(the TRUST) (in such capacity, the ISSUER), was authorised by a resolution of
the Board of Directors of the Issuer passed on or about [*] 2005. These Notes
are (a) issued subject to a Master Trust Deed (the MASTER TRUST DEED) dated 14
March 1998 between the Issuer, Crusade Management Limited (in such capacity, the
MANAGER and, in the capacity of residual income beneficiary under the Trust, the
RESIDUAL INCOME BENEFICIARY) and St. Xxxxxx Bank Limited (ST. XXXXXX), a
Supplementary Terms Notice (the SUPPLEMENTARY TERMS NOTICE) dated on or about
[*] 2005 between (among others) the Issuer and The Bank of New York (the note
trustee for the time being referred to as the NOTE TRUSTEE) as trustee for the
holders for the time being of the Class A-1 Notes (the CLASS A-1 NOTEHOLDERS)
and the holders of the Class A-2 Notes (the CLASS A-2 NOTEHOLDERS) (the holders
for the time being of the A$ Notes being the A$ NOTEHOLDERS and, together with
the Class A-1 Noteholders and the Class A-2 Noteholders, the NOTEHOLDERS)) and
the Manager, and these terms and conditions (the CONDITIONS); (b) in the case of
the Class A-1 Notes and the Class A-2 Notes, issued subject to a Note Trust Deed
dated on or about [*] 2005 (the NOTE TRUST DEED) between the Issuer, the Manager
and the Note Trustee; and (c) secured by a Security Trust Deed (the SECURITY
TRUST DEED dated [*] 2005 between the Issuer, the Manager, the Note Trustee and
P.T. Limited (ABN 67 004 454 666 (the security trustee for the time being
referred to as the SECURITY TRUSTEE).
The statements set out below include summaries of, and are subject to the
detailed provisions of, the Master Trust Deed, the Supplementary Terms Notice,
the Security Trust Deed and the Note Trust Deed. Certain words and expressions
used herein have the meanings defined in those documents. In accordance with an
agency agreement (the AGENCY AGREEMENT) dated on or about [*] 2005 between the
Issuer, the Manager, the
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Note Trustee and The Bank of New York acting through its office designated from
time to time under the Agency Agreement as Principal Paying Agent (the PRINCIPAL
PAYING AGENT, which expression includes its successors as Principal Paying Agent
under the Agency Agreement) and The Bank of New York, as calculation agent (the
CALCULATION AGENT, which expression includes its successors as Calculation Agent
under the Agency Agreement), and 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 Class A-1 Notes will be made by the Paying Agents and the Calculation Agent
will make the determinations specified in the Agency Agreement. The Class A-1
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 Master
Trust Deed, the Supplementary Terms Notice, the Security Trust Deed, the Note
Trust Deed, the Agency Agreement, the Servicing Agreement dated 19 March 1998
and made between the Issuer, the Manager and Xx.Xxxxxx as servicer (together
with any substitute or successor, the SERVICER), the Custodian Agreement (the
CUSTODIAN AGREEMENT) dated 19 March 1998 and made between the Issuer, the
Manager and Xx.Xxxxxx Custodial Pty Ltd as custodian (together with any
substitute or successor, the CUSTODIAN) and the Indemnity (the INDEMNITY) dated
19 March 1998 between Xx.Xxxxxx as indemnifier (in such capacity, the
INDEMNIFIER), the Manager, the Custodian and the Issuer (together with the
agreements with respect to the Basis Swap, the Fixed-Floating Rate Swap and the
Currency Swap (as each such term is defined below), those documents the RELEVANT
DOCUMENTS and certain other transaction documents defined as such in the
Supplementary Terms Notice, the TRANSACTION DOCUMENTS). Copies of the
Transaction Documents are available for inspection at the principal office of
the Note Trustee, being at the date hereof 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx,
Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx xx Xxxxxxx and at the specified offices
for the time being of the Paying Agents.
In connection with the issue of the Class A-1 Notes, the Issuer has entered into
an ISDA (defined below) master interest rate exchange agreement dated on or
about [*] 2005 with Xx.Xxxxxx (the BASIS SWAP PROVIDER) together with a
confirmation relating thereto dated on or about [*] 2005 (the BASIS SWAP). The
Issuer has also entered into an ISDA master interest rate exchange agreement
dated on or about [*] 2005 with Xx.Xxxxxx (the FIXED-FLOATING RATE SWAP
PROVIDER) together with a confirmation relating thereto dated on or about [*]
2005 (the FIXED-FLOATING RATE SWAP). The Issuer has also entered into an ISDA
master currency exchange agreement (including schedule and credit support annex)
dated on or about [*] 2005 with The Royal Bank of Scotland plc (the CURRENCY
SWAP PROVIDER) (the Currency Swap Provider together with the Basis Swap Provider
and the Fixed-Floating Rate Swap Provider, the SWAP PROVIDERS) together with a
confirmation relating thereto dated on or about [*] 2005 in respect of a swap
transaction relating to the Class A-1 Notes the CURRENCY SWAP).
Book-Entry Notes will also bear the following legend: "This book-entry 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. FORM DENOMINATION AND TITLE
--------------------------------------------------------------------------------
The Class A-1 Notes will be issued in registered form without interest
coupons in minimum denominations of US$100,000 and multiples of US$1 in
excess thereof.
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Each Class of Notes will be represented by one or more typewritten fully
registered book-entry notes (each, a BOOK-ENTRY NOTE and collectively, the
BOOK-ENTRY NOTES) registered in the name of Cede & Co. as nominee of The
Depository Trust Company (DTC). Beneficial interests in the Book-Entry
Notes will be shown on, and transfers thereof will be effected only
through, records maintained by DTC and its participants. Euroclear Bank,
S.A./N.V, as operator of the Euroclear System (EUROCLEAR) and Clearstream
Banking, societe anonyme (CLEARSTREAM, LUXEMBOURG), may hold interests in
the Book-Entry Notes on behalf of persons who have accounts with Euroclear
and Clearstream, Luxembourg through accounts maintained in the names of
Euroclear or Clearstream, Luxembourg, or in the names of their respective
depositories, with DTC.
If the Issuer is obliged to issue Definitive Class A-1 Notes under clause
3.3 of the Note Trust Deed, interests in the applicable Book-Entry Note
will be transferred to the beneficial owners thereof in the form of
Definitive Class A-1 Notes, without interest coupons, in the denominations
set forth above. A Definitive Class A-1 Note will be issued to each
Noteholder in respect of its registered holding or holdings of Class A-1
Notes against delivery by such Noteholders of a written order containing
instructions and such other information as the Issuer and The Bank of New
York, acting as note registrar (the NOTE REGISTRAR) may require to
complete, execute and deliver such Definitive Class A-1 Notes. In such
circumstances, the Issuer will cause sufficient Definitive Class A-1 Notes
to be executed and delivered to the Note Registrar for completion,
authentication and dispatch to the relevant Noteholders.
2. STATUS, SECURITY AND RELATIONSHIP BETWEEN THE CLASS A-1 NOTES AND THE A$
NOTES
--------------------------------------------------------------------------------
The Class A-1 Notes are secured by a first ranking 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
will rank, together with the Class A-2 Notes and the Class A-3 Notes, pari
passu and rateably without any preference or priority among themselves.
The Class A-1 Notes are issued subject to the Master Trust Deed and the
Supplementary Terms Notice and are secured by the same security as secures
the A$ Notes and the Class A-2 Notes and, the Class A-1 Notes, the Class
A-2 Notes and the Class A-3 Notes, will rank in priority to the Class B
Notes and Class C Notes in the event of the security being enforced and in
respect of principal and interest (as set out in Conditions 4 and 5).
The proceeds of the issue of the Class A-1 Notes, the Class A-2 Notes and
the A$ Notes are to be used by the Issuer to purchase an equitable interest
in certain housing loans (the LOANS) and certain related mortgages (the
MORTGAGES) from Xx.Xxxxxx as an approved seller (the APPROVED SELLER),
establish the Liquidity Reserve and to invest in such Authorised
Investments as the Manager may specify from time to time.
In the event that the security for the Class A-1 Notes is enforced and the
proceeds of such enforcement are insufficient, after payment of all other
claims ranking in priority to or pari passu with the Class A Notes under
the Security Trust Deed, to pay in full all principal and interest and
other
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amounts whatsoever due in respect of the Class A Notes, then the Class A
Noteholders shall have no further claim against the Issuer in respect of
any such unpaid amounts.
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 (see further Condition 15). None of the
Servicer, the Manager, Xx.Xxxxxx, the Note Trustee, the Security Trustee,
the Swap Providers, the Paying Agents, the Calculation Agent or the Note
Managers (as defined in the Supplementary Terms 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 Class A-1 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, to give
priority to the interests of the Class A Noteholders, if there is a
conflict between the interest of such Noteholders and any other Voting
Mortgagee (as defined below).
3. COVENANTS OF THE ISSUER
--------------------------------------------------------------------------------
So long as any of the Class A-1 Notes remains outstanding, the Issuer has
made certain covenants for the benefit of the Class A-1 Noteholders which
are set out in the Master Trust Deed.
These covenants include the following.
(a) The Issuer shall 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 shall:
(i) act honestly and in good faith and comply with all relevant material
laws 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 Class A Noteholders,
the Class B Noteholders, the Class C Noteholders, the Beneficiaries
and the other Creditors of the Trust in accordance with its
obligations under the relevant Transaction Documents;
(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 Manager keeps, accounting records which
correctly record and explain all amounts paid and received by the
Issuer;
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(v) keep the Trust separate from each other trust which is constituted
under the Master Trust Deed and from its own assets and account for
assets and liabilities of the Trust separately from those of other
trusts constituted under the Master Trust Deed and from its own assets
and liabilities;
(vi) do everything and take all such actions which are necessary (including
obtaining all appropriate Authorisations which relate to it as trustee
of the Trust and taking all actions necessary to assist the Manager to
obtain all other 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;
(vii) not, as Issuer, engage in any business or activity in respect of the
Trust except as contemplated or required by the Transaction Documents;
(viii) except as contemplated or required by the Transaction Documents,
maintain an independent and arm's length relationship with its related
bodies corporate in relation to dealings affecting the Trust;
(ix) except as contemplated or required by the Transaction Documents, not,
in respect of the Trust, guarantee or become obligated for the debts
of any other entity or hold out its credit as being available to
settle the obligations of others;
(x) comply with the rules and regulations of any stock exchange on which
any Note is listed from time to time (the STOCK EXCHANGE); and
(xi) within 45 days of notice from the Manager to do so, remove any of its
agents or delegates that breaches any obligation imposed on the Issuer
under the Master Trust Deed or any other Transaction Document where
the Manager believes it will have a Material Adverse Effect.
(c) Except as provided in any Transaction Document (and other than the charge
given to the Security Trustee), the Issuer shall not, nor shall it permit
any of its officers to, sell, mortgage, charge or otherwise encumber or
part with possession of any assets of the Trust (the TRUST ASSETS).
(d) The Issuer shall duly observe and perform the covenants and obligations of
the Master Trust Deed and will be personally liable to the Servicers, the
Noteholders, the Beneficiaries, the Note Manager or any other Creditors
only if it is guilty of negligence, fraud or Default (as defined in
Condition 15). The Issuer is not responsible for the acts or omissions of
its agents or delegates (including persons referred to in clause 17.6 of
the Master Trust Deed) selected by the Issuer in good faith using
reasonable care except where the Trustee expressly instructs the agent or
delegate to do or omit to do the relevant act, if the Trustee is aware of
the default and does not take the action available to it under the
Transaction Documents to address the act or omission or where the
Transaction Documents expressly provide that the Trustee is so liable.
(e) The Issuer will open and operate certain bank accounts in accordance with
the Master Trust Deed and the Supplementary Terms Notice.
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(f) Subject to the Master Trust Deed and any Transaction Document to which it
is a party, the Issuer shall act on all directions given to it by the
Manager in accordance with the terms of the Master Trust Deed.
(g) The Issuer shall properly perform the functions which are necessary for it
to perform under all Transaction Documents in respect of the Trust.
4. INTEREST
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(A) PAYMENT DATES
Each Class A-1 Note bears interest on its Invested Amount (as defined
below) from and including [17] March 2005 or such later date as may be
agreed between the Issuer and the Underwriters for the issue of the Class
A-1 Notes (the CLOSING DATE). Interest in respect of the Class A-1 Notes
will be payable quarterly in arrears on 17 June 2005 in respect of the
period from (and including the Closing Date and ending on (but excluding)
17 June 2005 (the FIRST QUARTERLY PAYMENT DATE) and thereafter on each 17
September, 17 December, 17 March and 17 June (each such date a QUARTERLY
PAYMENT DATE). If any Payment Date would otherwise fall on a day which is
not a Business Day (as defined below), it shall be postponed to the next
day which is a Business Day, unless it would thereby fall into the next
calendar month, in which case the due date shall be brought forward to the
immediately the preceding Business Day. The final Quarterly Payment Date
will be the earlier of the Final Maturity Date and the Payment Date on
which the Notes are redeemed in full.
BUSINESS DAY in these Conditions means any day, other than a Saturday,
Sunday or public holiday, on which Banks are open for business in London,
New York, Sydney and The Trans-European Real-Time Gross Settlement Express
Transfer (TARGET) System or any successor to it is open.
The period beginning on (and including) the Closing Date and ending on (but
excluding) the First Quarterly Payment Date, and each successive period
beginning on (and including) a Quarterly Payment Date and ending on (but
excluding) the next Quarterly Payment Date is called an INTEREST PERIOD.
Interest payable on a Class A-1 Note in respect of any Interest Period or
any other period will be calculated on the basis of the actual number of
days in that Interest Period and a 360 day year.
Interest shall cease to accrue on any Class A-1 Note for the period from
(and including):
(i) the date on which the Stated Amount (as defined in Condition 5(a)) of
that Class A-1 Note is reduced to zero (provided that interest shall
thereafter begin to accrue from (and including) any date on which the
Stated Amount of the Class A-1 Note becomes greater than zero); or
(ii) if the Stated Amount of the Class A-1 Note on the due date for
redemption is not zero, the due date for redemption of the Class A-1
Note, unless, after the due date for redemption payment of principal
due is improperly withheld or refused, following which interest shall
continue to accrue on the Invested Amount of the Class A-1 Note at the
rate from time to time applicable to the Class A-1 Notes until the
later of:
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(A) the date on which the moneys in respect of that Class A-1 Note
have been received by the Note Trustee or the Principal Paying
Agent and notice to that effect is given in accordance with
Condition 12; and
(B) the Stated Amount of that Class A-1 Note has been reduced to
zero, providing that interest shall thereafter begin to accrue
from (and including) any date on which the Stated Amount of that
Class A-1 Note becomes greater than zero.
(B) INTEREST RATE
The rate of interest applicable from time to time to a Class of Notes (the
INTEREST RATE) will be determined by the Calculation Agent on the basis of
the following paragraphs.
On the second LIBOR Business Day before the beginning of each Interest
Period (each an INTEREST DETERMINATION DATE), the Calculation Agent will
determine LIBOR as described in the definition of LIBOR set out in clause
2.1 of the Supplementary Terms Notice.
For the purposes of the foregoing paragraph, 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.
The Interest Rate applicable to the Class A-1 Notes for such Interest
Period shall be determined by the Calculation Agent in the manner set out
in the definition of Interest Rate set out in clause 2.1 of the
Supplementary Terms Notice.
The applicable Margin on the Class A-1 Notes is as set out in clause 4.2 of
the Supplementary Terms Notice.
There is no maximum or minimum Interest Rate.
(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 Interest Determination Date, determine the Interest Rate
applicable to, and calculate the amount of interest payable (the INTEREST)
for the immediately succeeding Interest Period. The Interest is calculated
in accordance with clause 4.8 of the Supplementary Terms Notice. The
determination of the Interest Rate and the Interest by the Calculation
Agent shall (in the absence of manifest error) be 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 Class A-1 Note for each Interest Period and the relevant
Quarterly Payment Date to be notified to the Issuer, the Manager, the Note
Trustee and the Paying Agents.
The Interest, Interest Rate and the relevant Quarterly Payment Date may
subsequently be amended (or appropriate alternative arrangements made by
way of adjustment) without notice in the event of a shortening of the
Interest Period.
(E) DETERMINATION OR CALCULATION BY THE MANAGER
If the Calculation Agent at any time for any reason does not determine the
relevant Interest Rate or calculate the Interest for a Class A-1 Note, the
Manager shall do so and each such determination or
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calculation shall be deemed to have been made by the Calculation Agent. In
doing so, the Manager shall apply the foregoing provisions of this
Condition, with any necessary consequential amendments, to the extent that
in its opinion, it can do so, and, in all other respects it shall 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 Class A-1 Notes remains
outstanding, there will, at all times, be a Calculation Agent. The Issuer,
or the Manager with the consent of the Issuer (such consent not to be
unreasonably withheld) reserves the right at any time to terminate the
appointment of the Calculation Agent immediately on the occurrence of
certain specified events or, otherwise, with the prior written approval of
the Note Trustee, by giving not less than 60 days written notice to, inter
alia, the Calculation Agent. Notice of that termination will be given to
the Class A-1 Noteholders. 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 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
shall take effect until a successor approved by the Note Trustee has been
appointed.
(G) INCOME DISTRIBUTION
On each Quarterly Payment Date, and based on the calculations, instructions
and directions provided to it by the Manager, the Issuer must pay or cause
to be paid out of Total Available Funds, in relation to the Quarterly
Collection Period (defined below) ending immediately before that Quarterly
Payment Date, the amounts specified in clause 5.1(c) of the Supplementary
Terms Notice in the order of priority specified in that clause.
The Issuer shall only make a payment under any of the sub-paragraphs of
clause 5.1(c) of the Supplementary Terms Notice if it is directed in
writing by the Manager to do so and only to the extent that any Total
Available Funds remain from which to make the payment after amounts with
priority to that payment have been distributed.
The Issuer is also required to make certain payments out of Total Available
Funds on each Monthly Payment Date (as defined below) as more fully
described in the Supplementary Terms Notice.
Capitalised terms in this paragraph (g) have the same meaning given in the
Supplementary Terms Notice unless otherwise defined in this document.
5. REDEMPTION AND PURCHASE
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Capitalised terms in this Condition 5 have the same meaning given in the
Supplementary Terms Notice unless otherwise defined in this document.
(A) MANDATORY REDEMPTION IN PART FROM PRINCIPAL COLLECTIONS AND
APPORTIONMENT OF PRINCIPAL COLLECTIONS BETWEEN THE CLASS A-1 NOTES,
THE CLASS A-2 NOTES AND THE A$ NOTES
The Class A-1 Notes shall be subject to mandatory redemption in part
on any Quarterly Payment Date if on that date there are any Principal
Collections available to be distributed
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in relation to such Class A-1 Notes. The principal amount so
redeemable in respect of each Class A-1 Note prior to enforcement of
the Security Trust Deed (each a PRINCIPAL PAYMENT) on any Quarterly
Payment Date shall be the amount available for payment in respect of
the Class A-1 Notes as set out in Condition 5(b) on the day which is
two Business Days prior to the Quarterly Payment Date (the QUARTERLY
DETERMINATION Date) divided by the aggregate Invested Amount of all
Class A-1 Notes, multiplied by the Invested Amount of that Note,
provided always that no Principal Payment on a Class A-1 Note on any
date may exceed the amount equal to the Invested Amount of that Class
A-1 Note at that date less amounts charged off as at that date and not
to be reinstated on the next Quarterly Payment Date, or to be charged
off on the Quarterly Payment Date, as described in Condition 5(c)
(that reduced amount being the STATED AMOUNT of that Class A-1 Note).
Notice of amounts to be redeemed will be provided by the Manager to
the Issuer, the Calculation Agent, the Principal Paying Agent and the
Note Trustee.
Following notification of the amount to be redeemed for each Quarterly
Payment Date, the Manager will determine the Bond Factor for the Class
A-1 Notes as of such Quarterly Payment Date and will notify the
Issuer, the Calculation Agent, the Principal Paying Agent and the Note
Trustee of this amount and shall cause the Bond Factor to be published
pursuant to Condition 12.
(B) PRINCIPAL DISTRIBUTIONS ON NOTES
On each Quarterly Payment Date, and based on the calculations,
instructions and directions provided to it by the Manager, the Issuer
must distribute or cause to be distributed out of Principal
Collections, in relation to the Quarterly Collection Period ending
immediately before that Quarterly Payment Date, the following amounts
in the following order of priority:
(i) first, in the manner and order of priority set out in clause
5.4(c) of the Supplementary Terms Notice;
(ii) then:
(A) prior to the Stepdown Date, or at any time if a Trigger
Event is subsisting, in the manner and order of priority set
out in clause 5.5 of the Supplementary Terms Notice; and
(B) on and after the Stepdown Date, provided that no Trigger
Event is subsisting, in the manner and order of priority set
out in clause 5.6 of the Supplementary Terms Notice.
The Issuer shall only make a payment under any of sub-paragraphs of
clause 5.4(c), 5.5 and 5.6 (as applicable) if it is directed in
writing to do so by the Manager and only to the extent that any
Principal Collections remain from which to make the payment after
amounts with priority to that payment have been distributed.
The Issuer is also required to make certain payments out of Principal
Collections (including allocating Principal Draws to Total Available
Funds) on each Monthly Payment Date in accordance with the
Supplementary Terms Notice.
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(C) GENERAL
No amount of principal will be paid to a Noteholder in excess of the
Invested Amount applicable to the Notes held by that Noteholder.
(D) EXCESS AVAILABLE INCOME - REIMBURSEMENT OF CHARGE OFFS, PRINCIPAL
DRAWS AND LIQUIDITY DRAWS
(i) General
On each Quarterly Determination Date, the Manager must determine,
for a Quarterly Collection Period, the amount (if any) by which
the Total Available Funds for the Quarterly Collection Period
exceeds the Total Payments for the Quarterly Collection Period
(EXCESS AVAILABLE INCOME).
(ii) Distribution of Excess Available Income
Subject to clause 5.2(b) of the Supplementary Terms Notice, on
each Quarterly Determination Date, the Manager must apply any
Excess Available Income for the Quarterly Collection Period
relating to that Quarterly Determination Date in the order of
priority specified in clause 5.2(a) of the Supplementary Terms
Notice.
(E) EXCESS DISTRIBUTION
The Issuer must at the written direction of the Manager pay any Excess
Distribution for a Quarterly Collection Period to the Residual Income
Beneficiary on the relevant Quarterly Payment Date. Once paid to the
Residual Income Beneficiary, the Issuer may not recover any Excess
Distributions from the Residual Income Beneficiary other than in the
circumstances specified in clause 5.3 of the Supplementary Terms
Notice.
(F) US$ ACCOUNT
The Issuer shall direct the Currency Swap Provider to pay all amounts
denominated in US$ payable to the Issuer by the Currency Swap Provider
under the Currency Swap into the US$ Account or to the Principal
Paying Agent under the Agency Agreement on behalf of the Issuer.
If any of the Issuer, the Manager or the Servicer receive any amount
denominated in US$ from the Currency Swap Provider under the Currency
Swap, they will promptly pay that amount to the credit of the US$
Account.
The Issuer shall, on the direction of the Manager, or shall require
that the Paying Agent on its behalf, pay all amounts credited to the
US$ Account by the Currency Swap Provider as specified in clause 5.16
of the Supplementary Terms Notice, and in accordance with the Note
Trust Deed and the Agency Agreement.
(G) CHARGE OFFS
If the Principal Charge Offs for any Quarterly Collection Period
exceed the Excess Available Income calculated on the Quarterly
Determination Date for that Quarterly Collection Period, the Manager
must, on and with effect from the Quarterly Payment Date immediately
following the end of the Quarterly Collection Period comply with
clause 5.14 of the Supplementary Terms Notice.
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(H) CALCULATION OF PRINCIPAL PAYMENTS AND STATED AMOUNT
On (or as soon as practicable after) each Determination Date, the
Manager shall calculate the amount of principal to be repaid in
respect of each Class A-1 Note, due on the next Payment Date following
that Determination Date; (B) the Stated Amount and Invested Amount of
each Note on the first day of the next following Interest Period
(after deducting any principal due to be made on the next Payment
Date); and (C) the Bond Factor for each Class of Note on each
Quarterly Determination Date in respect of the Collection Period
ending before that Quarterly Determination Date.
The Manager will notify the Issuer, the Note Trustee, the Principal
Paying Agent and the Calculation Agent by not later than (or as soon
as practicable after) the Quarterly Determination Date immediately
preceding the relevant Quarterly Payment Date of each such
determination and will immediately cause details of each of those
determinations to be published in accordance with Condition 12 by one
Business Day before the relevant Payment Date. If no Principal Payment
is due to be made on the Class A-1 Notes on any Payment Date a notice
to this effect will be given to the Class A-1 Noteholders in
accordance with Condition 12.
(I) CALL
The Issuer must, when so directed by the Manager (at the Manager's
option), purchase or redeem all, but not some only, of the Class A-1
Notes in accordance with, and in the circumstances specified in clause
7.1 of the Supplementary Terms Notice.
Section 7.1 of the Supplementary Terms Notice requires the Issuer to
give not more than 60 nor less than 45 days' notice to the Class A-1
Noteholders of a repurchase under that section 7.1.
(J) REDEMPTION FOR TAXATION OR OTHER REASONS
If the Manager satisfies the Issuer and the Note Trustee immediately
prior to giving the notice referred to below that either (i) on the
next Quarterly Payment Date the Issuer would be required to deduct or
withhold from any payment of principal or interest in respect of the
Class A-1 Notes or the 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 the Commonwealth of Australia or any of its political
sub-divisions or any of its authorities or (ii) the total amount
payable in respect of interest in relation to any of the Loans for a
Collection Period ceases to be receivable (whether or not actually
received) by the Issuer during such Collection Period (but, for the
avoidance of doubt, this paragraph (ii) does not apply to the failure
by the Issuer to receive any interest on any Purchased Receivable
merely by reason of the failure by the relevant Obligors to pay that
interest in breach of the relevant Receivable Agreement), the Issuer
must, when so directed by the Manager, at the Manager's option
(subject to the provisos specified in clause 7.1 of the Supplementary
Terms Notice) redeem all, but not some only, of the Class A-1 Notes in
accordance with clause 7.1 of the Supplementary Terms Notice.
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(K) REDEMPTION ON FINAL MATURITY
If not otherwise redeemed, the Class A-1 Notes will be redeemed at
their Stated Amount on the Quarterly Payment Date falling in June
2037.
(L) CANCELLATION
All Class A-1 Notes redeemed in full pursuant to the above provisions
will be cancelled forthwith, and may not be resold or reissued.
(M) CERTIFICATION
For the purposes of any redemption made pursuant to this Condition 5,
the Note Trustee may rely upon an Officer's Certificate under the Note
Trust Deed from the Manager on behalf of the Issuer certifying or
stating the opinion of each person signing such certificate as:
(i) to the fair value (within 90 days of such release) of the
property or securities proposed to be released from the Security
Trust Deed;
(ii) 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 the
Note Trust Deed; and
(iii) that the Issuer will be in a position to discharge all its
liabilities in respect of the relevant Class A-1 Notes and any
amounts required under the Security Trust Deed to be paid in
priority to or pari passu with those Class A-1 Notes,
and such Officer's Certificate shall be conclusive and binding on the
Trustee, the Note Trustee and the holders of those Class A-1 Notes.
6. PAYMENTS
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(A) METHOD OF PAYMENT
Any instalment of interest or principal, payable on any Class A-1 Note
which is punctually paid or duly provided for by the Trustee to the
Paying Agent on the applicable Payment Date or Maturity Date shall be
paid to the person in whose name such Class A-1 Note is registered on
the Record Date, by cheque mailed first-class, postage prepaid, to
such person's address as it appears on the Note Register on such
Record Date, except that, unless Definitive Notes have been issued
pursuant to clause 3.3 of the Note Trust Deed, with respect to Class
A-1 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
and except for the final instalment of principal payable with respect
to such Class A-1 Note on a Payment Date or Maturity Date.
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(B) INITIAL PRINCIPAL PAYING AGENT
The initial Principal Paying Agent is The Bank of New York at its
office at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000,
Xxxxxx Xxxxxx xx Xxxxxxx or such other office as designated from time
to time under the Agency Agreement.
(C) PAYING AGENTS
The Issuer (or the 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 paying office in New York City, and a Paying
Agent having a paying office in the United Kingdom (which may be the
same person) or such other jurisdiction as the Paying Agent, the
Manager and the Trustee may agree from time to time. Notice of any
such termination or appointment and of any change in the office
through which any Paying Agent will act will be given in accordance
with Condition 12.
(D) PAYMENT ON BUSINESS DAYS
Payments in respect of any amount of principal or Interest in respect
of any Class A-1 Note shall be made on a Business Day. If the due date
for payment of any amount of principal or Interest in respect of any
Class A-1 Note is not a Business Day then payment will not be made
until 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 Class A-1 Note shall not be
entitled to any further interest or other payment in respect of that
delay.
(E) INTEREST
If Interest is not paid in respect of a Class A-1 Note on the date
when due and payable (other than because the due date is not a
Business Day), that unpaid Interest shall itself bear interest at the
Interest Rate applicable from time to time to the Class A-1 Notes
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. TAXATION
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All payments in respect of the Class A-1 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 Class A-1 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) shall make such payment after such withholding or deduction has
been made and shall account to the relevant authorities for the amount so
required to be withheld or deducted. Neither the Issuer nor any Paying
Agent will be obliged to make any additional payments to Class A-1
Noteholders in respect of that withholding or deduction.
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8. PRESCRIPTION
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A Class A-1 Note shall become void in its entirety unless surrendered for
payment within ten years of the Relevant Date in respect of any payment on
it the effect of which would be to reduce the Stated Amount (in the case of
final maturity, if applicable) or the Invested Amount of that Class A-1
Note to zero. After the date on which a Class A-1 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 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. EVENTS OF DEFAULT
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Clause 8.1 of the Security Trust Deed sets out which events constitute an
Event of Default (whether or not it is within the control of the Issuer)
for the purpose of these Conditions and the Security Trust Deed.
In the event that the security constituted by the Security Trust Deed
becomes enforceable following an event of default under the Notes any funds
resulting from the realisation of such security shall be applied in
accordance with the order of priority of payments as stated in the Security
Trust Deed.
10. ENFORCEMENT
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At any time after an Event of Default occurs, the Security Trustee shall
(subject to being appropriately indemnified), if so directed by (a) the
Noteholder Mortgagees (as defined in the Security Trust Deed) alone, where
the Noteholder Mortgagees are the only Voting Mortgagees, or otherwise (b)
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 - which includes the Note Trustee on behalf of Class A-1
Noteholders, but not, unless the Note Trustee has become bound to take
steps and/or proceed under the Security Trust Deed and fails to do so
within a reasonable period of time and such failure is continuing, the
Class A-1 Noteholders themselves), declare the Class A Notes immediately
due and payable and declare the security 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 Noteholder
Mortgagees (in the case of the Class A-1 Noteholders, as represented by the
Note Trustee acting at the direction of the Class A-1 Noteholders) may
nevertheless direct the Security Trustee to enforce the Security Trust Deed
on behalf of the Noteholders.
VOTING MORTGAGEE has the meaning given to it in the Supplementary Terms
Notice.
Any reference to the Noteholder Mortgagees while they are the only Voting
Mortgagees or where their consent is required under the Security Trust Deed
in relation to a direction or act of the
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Security Trustee, means Noteholder Mortgagees representing more than 50% of
the aggregate Invested Amount of the Class A-1 Notes, the Class A-2 Notes
and the A$ Notes.
Subject to being indemnified in accordance with the Security Trust Deed,
the Security Trustee shall take all action necessary to give effect to any
direction by the Noteholder Mortgagees where they are the only Voting
Mortgagees or to any Extraordinary Resolution of the Voting Mortgagees and
shall comply with all directions given by the Note Trustee where it is the
only Voting Mortgagee or contained in or given pursuant to any
Extraordinary Resolution of the Voting Mortgagees in accordance with the
Security Trust Deed.
No Class A-1 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.
If any of the Class A-1 Notes remains outstanding and is due and payable
otherwise than by reason of a default in payment of any amount due on the
Class A-1 Notes, the Note Trustee must not vote under the Security Trust
Deed to, or otherwise direct the Security Trustee to, dispose of the
Mortgaged Property unless either:
(a) the Note Trustee is of the opinion, reached after considering at any
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
such advice shall be an Expense payable to the Note Trustee), that a
sufficient amount would be realised to discharge in full all amounts
owing to the Class A-1 Noteholders and any other amounts payable by
the Issuer ranking in priority to or pari passu with the Class A-1
Notes; or
(b) the Note Trustee is of the opinion, reached after considering at any
time and from time to time the advice of a merchant bank or other
financial adviser selected by the Note Trustee in its sole and
absolute discretion (the cost of such advice shall be an Expense
payable to 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 paragraph (a) above.
Except in the case of negligence, fraud or breach of trust (in the case of
the Security Trustee) or negligence, fraud or wilful default (in the case
of the Note Trustee), neither the Note Trustee nor the Security Trustee
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 Class A-1
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 the Note Trust deed or
the Security Trust Deed, as the case may be.
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Subject to the provisions of the Note Trust Deed (including clause 37.2),
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
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 Class A-1 Notes on behalf of the Class A-1 Noteholders unless
directed or requested to do so by an Extraordinary Resolution of the Class
A-1 Noteholders at the time (or such higher percentage as may be required
by the TIA); 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.
Only the Security Trustee may enforce the provisions of the Security Trust
Deed and neither the Note Trustee nor any Class A-1 Noteholder is entitled
to proceed directly against the Issuer to enforce the performance of any of
the provisions of the Security Trust Deed or the Class A-1 Notes (including
these Conditions) except as provided for in the Security Trust Deed and the
Note Trust Deed.
The rights, remedies and discretions of the Class A-1 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 Class
A-1 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 Class A-1 Noteholders from time to
time and need not enquire whether the Note Trustee or the 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 Note Trustee or the Voting Mortgagees in accordance with
the Security Trust Deed.
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 shall enforce the
Security Trust Deed if so directed by an Extraordinary Resolution of the
Voting Mortgagees).
Upon enforcement of the security created by the Security Trust Deed, the
net proceeds thereof may be insufficient to pay all amounts due on
redemption to the Noteholders. The proceeds from enforcement (which will
not include amounts required by law to be paid to the holder of any prior
ranking security interest, the proceeds of or amounts credited to the
collateral account under the Liquidity Facility Agreement (as defined in
the Master Trust Deed) and payable to the Liquidity Facility Provider (as
defined in the Master Trust Deed) and the proceeds of cash collateral
lodged with and payable to a Swap Provider or other provider of a Support
Facility (as defined in the Master Trust Deed)) will be applied in the
order of priority as set out in the Security Trust Deed. Any claims of
Noteholders remaining after realization of the security and application of
the proceeds as aforesaid shall, except in certain limited circumstances,
be extinguished.
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11. REPLACEMENTS OF CLASS A-1 NOTES
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If any Class A-1 Note is lost, stolen, mutilated, defaced or destroyed, it
may be replaced at the specified office of the Principal Paying Agent
located at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000,
Xxxxxx Xxxxxx xx Xxxxxxx or such other office as may be designated from
time to time under the Agency Agreement, upon payment by the claimant of
the expenses incurred in connection with that replacement and on such terms
as to evidence and indemnity as the Issuer may reasonably require.
Mutilated or defaced Class A-1 Notes must be surrendered before
replacements will be issued.
12. NOTICES
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All notices, other than notices given in accordance with the following
paragraph, to Class A-1 Noteholders shall be deemed given if in writing and
mailed, first-class, postage prepaid to each Class A-1 Noteholder, at his
or her address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Class A-1 Noteholders is
given by mail, neither the failure to mail such notice nor any defect in
any notice so mailed to any particular Class A-1 Noteholder shall affect
the sufficiency of such notice with respect to other Class A-1 Noteholders,
and any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given.
A notice may be waived in writing by the relevant Class A-1 Noteholder,
either before or after the event, and such waiver shall be the equivalent
of such notice. Waivers of notice by Class A-1 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.
Any such notice shall be deemed to have been given on the date such notice
is deposited in the mail.
In case, by reason of the suspension of regular mail services as a result
of a strike, work stoppage or similar activity, it shall be impractical to
mail notice of any event to Class A-1 Noteholders when such notice is
required to be given, then any manner of giving such notice as the Trustee
shall direct (on the instructions of the Trust Manager) the Note Trustee
shall be deemed to be a sufficient giving of such notice.
Any notice required to be given by the Principal Paying Agent at any time
shall be deemed to have been duly given if the information contained in
such notice appears on the relevant page of the Reuters Screen, on the
Website (as defined below) or such other similar electronic reporting
service as may be approved by the Note Trustee and notified to Class A-1
Noteholders (the RELEVANT SCREEN). Any such notice shall be deemed to have
been given on the first date on which such information appeared on the
Relevant Screen. If it is impossible or impracticable to give notice in
accordance with this paragraph then notice of the matters referred to in
this Condition shall be given in accordance with the preceding paragraph.
WEBSITE means the website at the following address:
XXXXX://XXX.XXXXXX.XXX
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or such other website as the Principal Paying Agent shall notify the Note
Trustee, the Trustee, the Manager and the Class A-1 Noteholders, in
accordance with this Condition, from time to time.
All consents and approvals in these Conditions are to be given in writing.
13. MEETINGS OF VOTING MORTGAGEES AND MEETINGS OF CLASS A-1 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.
The Note Trust Deed contains provisions permitting Class A-1 Noteholders to
act in relation to any matter affecting their interests, including the
directing of the Note Trustee to direct the Security Trustee to enforce the
security under the Security Trust Deed, or the sanctioning by Extraordinary
Resolution of the Class A-1 Noteholders of a modification of the Class A-1
Notes (including these Conditions) or the provisions of any of the
Transaction Documents, provided that no modification of certain terms
including, among other things, the date of maturity of the Class A-1 Notes,
or a modification which would have the effect of altering the amount of
interest payable in respect of a Class A-1 Note or modification of the
method of calculation of the interest payable or of the date for payment of
or interest payable in respect of any Class A-1 Notes, reducing or
cancelling the amount of principal payable in respect of any Class A-1
Notes or altering the currency of payment of any Class A-1 Notes or an
alteration of the date or priority of redemption of, the Class A-1 Notes or
altering the required percentage of the aggregate Invested Amount of the
Class A-1 Notes required to consent or take any action, or an election to
receive the Stated Amount of the Notes instead of the Invested Amount in
the event of a call under Condition 5(i) or 5(j), or any other matter
referred to in clause 37.2 of the Note Trust Deed needing the approval of
all holders of Class A-1 Notes (any such modification being referred to
below as a BASIC TERMS MODIFICATION) shall be effective unless sanctioned
by all of the Class A-1 Noteholders. The quorum at any meeting of Class A-1
Noteholders for passing an Extraordinary Resolution shall be two or more
persons holding or representing over 50% of the aggregate Invested Amount
of the Class A-1 Notes then outstanding or, at any adjourned meeting, two
or more persons being or representing Class A-1 Noteholders whatever the
aggregate Invested Amount of the Class A-1 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 any such
resolution shall be all of the Class A-1 Noteholders. The Note Trust Deed
contains provisions limiting the powers of the Class A-1 Noteholders, among
other things, to request or direct the Note Trustee to take any action or
to pass an effective Extraordinary Resolution or a resolution passed under
clause 37.2, according to the effect thereof on the interests of the Class
A-1 Noteholders. Except in certain circumstances, the Note Trust Deed
imposes no such limitations on the powers of the Class A-1 Noteholders, the
exercise of which will be binding on the Class A-1 Noteholders,
irrespective of the effect on their interests. An Extraordinary Resolution
or resolution effecting a Basic Terms Modification passed at any meeting of
Class A-1 Noteholders shall be binding on all Class A-1 Noteholders,
whether or not they are present at the meeting. The
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majority required for an Extraordinary Resolution shall be 75% of the votes
cast in respect of that Extraordinary Resolution.
The Note Trust Deed permits the Note Trustee, the Manager and the Trustee
to, following the giving of notice to each Designated Rating Agency, alter,
add to or modify, by way of supplemental deed, the Note Trust Deed
(including the meeting and amendment provisions), the Conditions (subject
to the proviso more fully described in clause 37.2 of the Note Trust Deed
or any other terms of that deed or the Conditions to which it refers) or
any Transaction Document so long as that alteration, addition or
modification is:
o to correct a manifest error or ambiguity or is of a formal, technical
or administrative nature only;
o 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;
o in the opinion of the Note Trustee appropriate or expedient as a
consequence of a change to any law or regulation or a change in the
requirements of any Government Agency (including, but not limited to,
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
o in the opinion of the Note Trustee not materially prejudicial to the
interests of the Class A-1 Noteholders as a whole,
and is undertaken in a manner and to the extent, permitted by the
Transaction Documents.
Subject to clause 37.2 of the Note Trust Deed, 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 above, is
materially prejudicial or likely to be materially prejudicial to the
interests of Class A-1 Noteholders as a whole or any Class of Class A-1
Noteholders, the Note Trustee, the Manager and the Trustee may make that
alteration, addition or modification (subject to the TIA, if applicable)
only if sanctioned in writing by holders of at least 75% of the aggregate
Invested Amount of the Class A-1 Notes.
The Note Trustee may also, in accordance with the Note Trust Deed and
without the consent of the Class A-1 Noteholders (but not in contravention
of an Extraordinary Resolution or a resolution passed in accordance with
clause 37.2 of the Note Trust Deed), waive or authorise any breach or
proposed breach of the Class A-1 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
shall not, or shall not subject to specified conditions, be treated as
such. Any such modification, waiver, authorisation or determination shall
be binding on the Class A-1 Noteholders and, if, but only if, the Note
Trustee so requires, any such modification shall be notified to the Class
A-1 Noteholders in accordance with Condition 12 as soon as practicable.
Note Trust Deed [Xxxxxx Xxxxxx Xxxxxxxx LOGO]
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The Manager shall distribute to all Class A-1 Noteholders and the
Designated Rating Agencies a copy of any amendments made in accordance with
the procedure described in that clause 19 of the Note Trust Deed and under
the relevant Condition 12 as soon as reasonably practicable after the
amendment has been made.
Any amendment made will be binding on the Class A-1 Noteholders and shall
conform to the requirements of the TIA as then in effect so long as the
Note Trust Deed shall be qualified under the TIA.
14. INDEMNIFICATION AND EXONERATION OF THE NOTE TRUSTEE AND THE SECURITY
TRUSTEE
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(a) 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
security and to obtain repayment of the Class A-1 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 Transaction Documents without
accounting for any profit resulting from such transactions. Except in
the case of negligence, fraud or breach of trust (in the case of the
Security Trustee) or negligence, fraud, or wilful default (in the case
of the Note Trustee), 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, Mortgaged Property or any deeds or documents of title
thereto, 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 behalf of the
Note Trustee if prudently chosen in accordance with the Transaction
Documents.
(b) 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 advisers as the Note
Trustee reasonably requires to assist in the giving of that opinion or
the making of that determination or calculation and any properly
incurred costs and expenses payable to those advisers 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. LIMITATION OF LIABILITY OF THE ISSUER
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(A) GENERAL
Clause 30 of the Master Trust Deed applies to the obligations and
liabilities of the Issuer in relation to the Class A-1 Notes.
(B) LIABILITY OF ISSUER LIMITED TO ITS RIGHT OF INDEMNITY
(i) The Issuer enters into the Transaction Documents and issues the
Notes only in its capacity as trustee of the Trust and in no
other capacity (except where the
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Transaction Documents provide otherwise). Subject to paragraph
(iii) below, a liability arising under or in connection with the
Transaction Documents or the Trust can be enforced against the
Issuer only to the extent to which it can be satisfied out of the
assets and property of the Trust which are available to satisfy
the right of the Issuer to be exonerated or 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) Subject to paragraph (iii) below, no person (including any
Relevant Party) may take action against the Issuer in any
capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust Deed),
or a liquidator, an administrator or any similar person to the
Issuer or prove in any liquidation, administration or arrangement
of or affecting the Issuer.
(iii) The provisions of this Condition 15 shall 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 or exoneration out of the assets of the
Trust as a result of the Issuer's fraud, negligence or 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
under the Transaction Documents) will be considered fraud,
negligence or 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 or any person who has been delegated or appointed
by the Issuer in accordance with the Transaction Documents to
fulfil its obligations relating to the Trust or by any other act
or omission of a Relevant Party or any such person.
(v) In exercising their powers under the Transaction Documents, each
of the Issuer, the Security Trustee and the Noteholders must
ensure that no attorney, agent, delegate, receiver or receiver
and manager appointed by it 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 Default of the Issuer for the purpose of paragraph (iii).
(vi) In this Condition 15, RELEVANT PARTIES means each of the Manager,
the Servicer, the Calculation Agent, each Paying Agent, the Note
Registrar, the Note Trustee, the Custodian, the Basis Swap
Provider, the Fixed-Floating Rate Swap Provider and the Currency
Swap Provider and any other provider of a Support Facility.
(vii) In this Condition 15, DEFAULT means a failure by the Issuer to
comply with an obligation which is expressly imposed on it by the
terms of a Transaction
Note Trust Deed [Xxxxxx Xxxxxx Xxxxxxxx LOGO]
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Document or a written direction given by the Manager in
accordance with a Transaction Document (and in terms which are
consistent with the requirements of the Transaction Documents) in
circumstances where the Transaction Documents require or
contemplate that the Issuer will comply with that direction; in
each case within any period of time specified in, or contemplated
by, the relevant Transaction Document for such compliance.
However, it will not be the Default of the Issuer if the Issuer
does not comply with an obligation or direction where the Note
Trustee or the Security Trustee directs the Issuer not to comply
with that obligation or direction.
(viii) Nothing in this clause limits the obligations expressly imposed
on the Issuer under the Transaction Documents.
16. GOVERNING LAW
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Except for:
(a) the Subscription Agreement (as defined in the Supplementary Terms
Notice) and the Credit Support Annex to each of the Class A-1 Currency
Swap and the Class A-2 Currency Swap which are governed by the laws of
England and Wales;
(b) Underwriting Agreement (as defined in the Supplementary Terms Notice)
which is governed by the laws of New York; and
(c) the administration of the Note Trust (as defined in the Note Trust
Deed), including the exercise of the Note Trustee's powers under
clause 13 of the Note Trust Deed, which are both 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,
the law of the State of New York will prevail to the extent of the
inconsistency,
the Class A-1 Notes and the Relevant Documents are governed by, and shall
be construed in accordance with, the laws of New South Wales, Australia.
Note Trust Deed [Xxxxxx Xxxxxx Xxxxxxxx LOGO]
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SUMMARY OF PROVISIONS RELATING TO THE CLASS A-1 NOTES
WHILE IN BOOK-ENTRY FORM
Each Class A-1 Note will initially be represented by typewritten book-entry
notes (the BOOK-ENTRY NOTES), without coupons, in the principal amount of
US$[*]. The Book-Entry Notes will be deposited with the Common Depositary for
DTC on or about the Closing Date. Upon deposit of the Book-Entry Notes with the
Common Depositary, DTC will credit each investor in the Class A-1 Notes with a
principal amount of Class A-1 Notes for which it has subscribed and paid.
The Book-Entry Note will be exchangeable for definitive Class A-1 Notes in
certain circumstances described below.
Each person who is shown in the Note Register as the holder of a particular
principal amount of Class A-1 Notes will be entitled to be treated by the Issuer
and the Note Trustee as a holder of such principal amount of Class A-1 Notes and
the expression Class A-1 Noteholder shall be construed accordingly, but without
prejudice to the entitlement of the holder of the Book-Entry Note to be paid
principal and interest thereon in accordance with its terms. Such persons shall
have no claim directly against the Issuer in respect of payment due on the Class
A-1 Notes for so long as the Class A-1 Notes are represented by a Book-Entry
Note and the relevant obligations of the Issuer will be discharged by payment to
the registered holder of the Book-Entry Note in respect of each amount so paid.
(A) PAYMENTS
Interest and principal on each Book-Entry Note will be payable by the Principal
Paying Agent to the Common Depositary.
Each of the persons appearing from time to time as the beneficial owner of a
Class A-1 Note will be entitled to receive any payment so made in respect of
that Class A-1 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-1 Notes which must be made by the holder of the
relevant Book-Entry Note, for so long as such Book-Entry Note is outstanding.
A record of each payment made on a Book-Entry Note, distinguishing between any
payment of principal and any payment of interest, will be recorded in the Note
Register by the Principal Paying Agent and such record shall be prima facie
evidence that the payment in question has been made.
(B) EXCHANGE
The Book-Entry Note will be exchangeable for definitive Class A-1 Notes only if:
(i) the Trust Manager advises the Principal Paying Agent in writing that the
Clearing Agency is no longer willing or able properly to discharge its
responsibilities with respect to the Class A-1 Notes or the Clearing Agency
ceases to carry on business, and the Trust Manager is unable to located a
qualified successor; or
(ii) after the occurrence of an Event, of Default the Class A-1 Note Owner's
representing beneficial interests aggregating to at least a majority of the
aggregate Invested Amount of the Class A-1 Notes advise the Principal
Paying Agent and Issuer through the Clearing Agency in writing that the
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continuation of a book-entry system through the Clearing Agency is no
longer in the best interest of the Note Owners,
then the Principal Paying Agent shall notify all Class A-1 Note Owners and the
Issuer of the occurrence of any such event and of the availability of Definitive
Notes to Class A-1 Note Owners requesting the same. Upon the surrender of the
Book-Entry Notes to the Issuer by the Clearing Agency, and the delivery by the
Clearing Agency of the relevant registration instructions to the Issuer, the
Issuer shall execute and procure the Principal Paying Agent to authenticate the
Definitive Notes in accordance with the instructions of the Clearing Agency.
(C) NOTICES
So long as the Notes are represented by the Book-Entry Note and the same is/are
held on behalf of the Clearing Agency, notices to Class A-1 Noteholders may be
given by delivery of the relevant notice to the Clearing Agency for
communication by them to entitled account holders in substitution for delivery
to each Class A-1 Noteholder as required by the Conditions.
(D) CANCELLATION
Cancellation of any Class A-1 Note required by the Conditions will be effected
by reduction in the principal amount of the relevant Book-Entry Note.
Note Trust Deed [Xxxxxx Xxxxxx Xxxxxxxx LOGO]
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SCHEDULE 4
FORM OF CLASS A-2 BOOK-ENTRY NOTE
--------------------------------------------------------------------------------
THIS CLASS A-2 BOOK-ENTRY NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW,
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CLASS A-2 NOTES, MAY NOT BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES, OR FOR THE ACCOUNT OR
BENEFIT OF U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT)
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE LAWS OF ANY STATE OF THE
UNITED STATES.
THIS CLASS A-2 BOOK-ENTRY NOTE IS A GLOBAL BOND FOR THE PURPOSES OF SECTION
128F(10) OF THE INCOME TAX ASSESSMENT ACT 1936 OF THE COMMONWEALTH OF AUSTRALIA.
REGISTERED ISIN No __________________________
Common Code ______________________
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
(ABN 81 004 029 841)
(a limited liability company incorporated in Australia)
in its capacity as trustee of the Crusade Global Trust No. 1 of 2005
CLASS A-2 BOOK-ENTRY NOTE
representing
(euro)[*]
Class A-2 Mortgage Backed Floating Rate Notes Due on the Final Maturity
Date falling in June 2037
This Note is a Class A-2 Book-Entry Note without principal or interest in
respect of a duly authorised issue of Notes of Perpetual Trustees Consolidated
Limited in its capacity as trustee of the Crusade Global Trust No. 1 of 2005
(the "TRUST") (the "ISSUER"), designated as specified in the title above (the
"NOTES"), in an initial aggregate principal amount of
(euro)[*]
and (a) constituted by a Master Trust Deed (the "MASTER TRUST DEED") dated 14
March 1998 between the Issuer, Xx.Xxxxxx Bank Limited and Crusade Management
Limited (the "MANAGER"), by a Supplementary Terms Notice (the "SUPPLEMENTARY
TERMS NOTICE") dated on or about [*] 2005 between (among others) the
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Issuer, the Security Trustee (as defined herein), Xx.Xxxxxx Custodial Pty
Limited, 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
Class A-2 Notes (the "CLASS A-2 NOTEHOLDERS") and the Manager, and by the
Conditions; (b) issued subject to a Note Trust Deed dated [*] 2005 (the "NOTE
TRUST DEED") between (among others) the Issuer, the Manager and the Note
Trustee; and (c) secured by a Security Trust Deed (the "SECURITY TRUST DEED")
dated [*] 2005 between the Issuer, the Manager, P.T. Limited (ABN 67 004 454
666) (the "SECURITY TRUSTEE") which expression shall include its successor for
the time being as security trustee under the Security Trust Deed) and the Note
Trustee. References to the Conditions (or to any particular numbered Condition)
shall be to the Terms and Conditions of the Class A-2 Notes set out in Schedule
5 to the Note Trust Deed but with the deletion of those provisions which are
applicable only to Class A-2 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 Class A-2 Notes under clause 3.4 of
the Note Trust Deed, this Class A-2 Book-Entry Note will be exchanged in whole
at the offices of the Principal Paying Agent at 00xx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxx X00 0XX (or such other place outside Australia and any of its territories
and possessions and other areas subject to its jurisdiction as the Note Trustee
may agree) for Definitive Class A-2 Notes and the Issuer shall procure that the
Principal Paying Agent issues and delivers, in full exchange for this Class A-2
Book-Entry Note, Definitive Class A-2 Notes in aggregate principal amount equal
to the principal amount of all Class A-2 Notes represented by this Class A-2
Book-Entry Note. The Issuer is not obliged to issue Definitive
Class A-2 Notes until the later of:
(a) the expiry of 40 days after the later of the Note Issue Date and the
date on which the relevant Class A-2 Notes are first offered to
persons other than distributors in reliance on Regulation S; and
(b) 30 days after it becomes aware of the occurrence of the relevant event
or request in clause 3.4(a) of the Note Trust Deed.
If the Issuer fails to meet its obligations to issue Definitive Class A-2 Notes,
this shall be without prejudice to the Issuer's obligations with respect to the
Class A-2 Notes under the Note Trust Deed, the Master Trust Deed, the
Supplementary Terms Notice and this Class A-2 Book-Entry Note.
The Issuer, in its capacity as trustee of the Trust, subject to this Class A-2
Book-Entry Note and subject to and in accordance with the Conditions and the
Note Trust Deed promises to pay to The Bank of New York Depository (Nominees)
Limited, or registered assigns of this Class A-2 Book-Entry Note the principal
sum of (euro)[*] ([Amount in words]) or such lesser amount as may from time to
time be represented by this Class A-2 Book-Entry Note (or such part of that
amount as may become repayable under the Conditions, the Supplementary Terms
Notice and the Note Trust Deed) on such date(s) that principal sum (or any part
of it) becomes repayable in accordance with the Conditions, the Supplementary
Terms Notice and the Note Trust Deed and to pay interest in arrears on each
Quarterly Payment Date (as defined in Condition 4) on the Invested Amount of
this Class A-2 Book-Entry Note at rates determined in accordance with Condition
4 and all subject to and in accordance with the certification requirements
described in this Class A-2 Book-Entry Note, the Conditions, the Supplementary
Terms Notice and the Note Trust Deed, which shall be binding on the registered
holder of this Class A-2 Book-Entry Note (as if references in the Conditions to
the Notes and the Noteholders were references to this Class A-2 Book-Entry Note
and the registered holder of this Class A-
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2 Book-Entry Note respectively and as if the same had been set out in this Class
A-2 Book-Entry Note in full with all necessary changes, except as otherwise
provided in this Class A-2 Book-Entry Note).
Payments of interest on this Class A-2 Book-Entry Note payable on each Quarterly
Payment Date, together with the instalment of principal, if any, shall be
payable by the Principal Paying Agent to the registered holder of the Class A-2
Notes provided that no payment of interest may be made by the Issuer or any
Paying Agent in the Commonwealth of Australia or its respective territories or
possessions. Each of the persons appearing from time to time in the records of
Euroclear Bank S.A./N.V., as operator of Euroclear, or of Clearstream Banking,
Societe Anonyme, as the holder of a beneficial interest in the Class A-2 Note
will be entitled to receive any payment so made in respect of that Class A-2
Note in accordance with the respective rules and procedures of Euroclear or, as
the case may be, Clearstream, Luxembourg. Such persons will have no claim
directly against the Issuer in respect of payments due on the Class A-2 Notes
which must be made by the registered holder of this Class A-2 Book-Entry Note,
for so long as this Class A-2 Book-Entry Note is outstanding.
On any payment of principal and/or interest on the Class A-2 Notes as set out
above details of that payment shall be endorsed by or on behalf of the Issuer in
the Note Register and, in the case of payments of principal, the Invested Amount
of the Class A-2 Notes shall be reduced for all purposes by the amount so paid
and endorsed in the Note Register. Any such record shall be prima facie evidence
that the payment in question has been made.
If the Issuer is obliged to issue Definitive Class A-2 Notes under clause 3.4 of
the Note Trust Deed, the Book-Entry Notes will be surrendered to the Trustee by
the Clearing Agency and the Clearing Agency will deliver the relevant
registration instructions to the Trustee. Definitive Class A-2 Notes shall be
executed by the Trustee and authenticated by the Principal Paying Agent and
delivered as per the instructions of the Clearing Agency.
The Definitive Class A-2 Notes to be issued on that exchange will be in
registered form each in the denomination of (euro)100,000 and integral multiples
thereof. If the Issuer fails to meet its obligations to issue Definitive Class
A-2 Notes, this shall be without prejudice to the Issuer's obligations with
respect to the Notes under the Note Trust Deed, the Master Trust Deed, the
Supplementary Terms Notice and this Class A-2 Book-Entry Note.
On an exchange of this Class A-2 Book-Entry Note, this Class A-2 Book-Entry Note
shall be surrendered to the Principal Paying Agent.
This Class A-2 Book-Entry Note shall not become valid for any purpose unless and
until the Certificate of Authentication attached has been signed by an
Authorised Signatory of the Principal Paying Agent (as defined in the
Supplementary Terms Notice).
This Class A-2 Book-Entry 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 Class A-2 Book-Entry Note to be signed
manually or in facsimile by a person duly authorised on its behalf.
Perpetual Trustees Consolidated Limited in its capacity as trustee of the
Crusade Global Trust No. 1 of 2005
Note Trust Deed [Xxxxxx Xxxxxx Xxxxxxxx LOGO]
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By:
---------------------------------
Authorised Signatory
IMPORTANT NOTICE:
(a) The Class A-2 Notes do not represent deposits or other liabilities of
St. Xxxxxx Bank Limited, ABN 92 055 513 070 ("ST. XXXXXX") or associates of
St. Xxxxxx.
(b) The holding of Class A-2 Notes is subject to investment risk, including
possible delays in repayment and loss of income and principal invested.
(c) None of St. Xxxxxx, any associate of St. Xxxxxx, Perpetual Trustees
Consolidated Limited, the Security Trustee, the Note Trustee, the Principal
Paying Agent, the Note Registrar, the Calculation Agent, any Paying Agent
nor any Note Manager in any way stands behind the capital value and/or
performance of the Class A-2 Notes or the assets of the Trust except to the
limited extent provided in the Transaction Documents for the Trust (which,
for the avoidance of doubt, does not apply to the Note Trustee, the
Principal Paying Agent, the Note Registrar, any Paying Agent nor the
Calculation Agent).
(d) None of St. Xxxxxx, Perpetual Trustees Consolidated Limited, the Custodian
(as defined in the Supplementary Terms Notice), the Servicer (as defined in
the Supplementary Terms Notice), the Manager, the Security Trustee, the
Note Trustee, the Principal Paying Agent, the Note Registrar, any Paying
Agent, the Calculation Agent, the Currency Swap Provider (as defined in the
Supplementary Terms Notice) or any of the Note Managers (as defined in the
Supplementary Terms Notice) guarantees the payment of interest or the
repayment of principal due on the Class A-2 Notes.
(e) None of the obligations of the Issuer or the Manager are guaranteed in any
way by St. Xxxxxx or any associate of St. Xxxxxx or associate of Perpetual
Trustees Consolidated Limited.
(f) Without limiting the Conditions, the Issuer's liability to make payments in
respect of the Class A-2 Notes is limited to its right of indemnity from
the assets of the Trust from time to time available to make such payments
under the Master Trust Deed and Supplementary Terms Notice. All claims
against the Issuer in relation to the Class A-2 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 Default (as defined in the Master Trust Deed) on the part of
the Issuer.
(g) 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.
CERTIFICATE OF AUTHENTICATION
This Class A-1 Book-Entry Note is to be authenticated by The Bank of New York
and until so authenticated shall not be valid for any purpose.
THE BANK OF NEW YORK as Principal Paying Agent
Note Trust Deed [Xxxxxx Xxxxxx Xxxxxxxx LOGO]
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ASSIGNMENT
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Social Security or taxpayer I.D. or other identifying number of assignee
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
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(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
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attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated:
---------------------------- ---------------------------------
Authorised Signatory:
Dated:
---------------------------- ---------------------------------
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* NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular without alteration, enlargement or any change whatsoever.
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SCHEDULE 5
TERMS AND CONDITIONS OF THE CLASS A-2 NOTES
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The following, subject to amendments in accordance with the Note Trust Deed, are
the terms and conditions of the Class A-2 Notes, substantially as they will
appear on the reverse of the Class A-2 Notes in definitive form. Class A-2 Notes
in definitive form will only be issued in certain circumstances. While the Class
A-2 Notes remain in book-entry form, the same terms and conditions govern them,
except to the extent that they are appropriate only to the Class A-2 Notes in
definitive form. For a summary of the provisions relating to the Class A-2 Notes
in book-entry 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 Class A-2 Notes.
The issue of US$[600,000,000] Class A-1 Mortgaged Backed Pass Through Floating
Rate Notes due June 2037 (the "CLASS A-1 NOTES"), (euro)[500,000,000] Class A-2
Mortgage Backed Pass Through Floating Rate Notes due June 2037 (the "CLASS A-2
NOTES"), A$[500,000,000] Class A-3 Mortgage Backed Pass Through Floating Rate
Notes due June 2037 (the "CLASS A-3 NOTES" and, together with the Class A-1
Notes and the Class A-2 Notes, the "CLASS A NOTES"), A$[26,700,000] Class B
Mortgage Backed Pass Through Floating Rate Notes due June 2037 (the "CLASS B
NOTES"), and A$[8,600,000] Class C Mortgaged Backed Pass Through Floating Rate
Notes due June 2037 (the "CLASS C NOTES"), the Class A-3 Notes, the Class B
Notes and the Class C Notes together being the "A$ NOTES", and the Class A
Notes, the Class B Notes and the Class C Notes together being the "NOTES") of
Perpetual Trustees Consolidated Limited in its capacity as trustee of the
Crusade Global Trust No. 1 of 2005 (the "TRUST") (in such capacity, the
"ISSUER") was authorised by a resolution of the Board of Directors of the Issuer
passed on or around [*] 2005.
The Notes are:
(a) issued subject to a Master Trust Deed (the "MASTER TRUST DEED") dated 14
March 1998 between Perpetual Trustees Consolidated Limited, Crusade
Management Limited (ABN 90 072 715 916) (in such capacity, the "MANAGER"
and, in the capacity of residual income beneficiary under the Trust, the
"RESIDUAL INCOME BENEFICIARY") and Xx.Xxxxxx Bank Limited (ABN 92 055 513
070) ("XX.XXXXXX"), a Supplementary Terms Notice (the "SUPPLEMENTARY TERMS
NOTICE") dated on or around [*] 2005 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 Class
A-1 Notes (the "CLASS A-1 NOTEHOLDERS") and the Class A-2 Notes (the "CLASS
A-2 NOTEHOLDERS" and, together with the Class A-1 Noteholders (the
"RELEVANT NOTEHOLDERS") and the Relevant Noteholders together with the
holders for the time being of the Class A-3 Notes, the "CLASS A
Noteholders"), of the Class B Notes (the "CLASS B NOTEHOLDERS") and of the
Class C Notes (the "CLASS C NOTEHOLDERS"), the Class A Noteholders, the
Class B Noteholders and the Class C Noteholders together being, the
"NOTEHOLDERS" and the Class A-3 Noteholders, the Class B Noteholders and
the Class C Noteholders together being the "A$ NOTEHOLDERS") and the
Manager, and these terms and conditions (the "CONDITIONS");
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(b) in the case of the Class A-1 Notes and the Class A-2 Notes, issued subject
to a Note Trust Deed dated on or around [*] 2005 (the "NOTE TRUST DEED")
between the Issuer, the Manager and the Note Trustee; and
(c) secured by a Security Trust Deed (the "SECURITY TRUST DEED") dated [*] 2005
between the Issuer, the Manager, the Note Trustee and P.T. Limited (ABN 67
004 454 666) (the security trustee for the time being, referred to as the
"SECURITY TRUSTEE").
The statements set out below include summaries of, and are subject to the
detailed provisions of, the Master Trust Deed, the Supplementary Terms Notice,
the Security Trust Deed and the Note Trust Deed. Certain words and expressions
used herein have the meanings defined in those documents.
In accordance with an agency agreement (the "AGENCY AGREEMENT") dated on or
around [*] 2005 between the Issuer, the Manager, the Note Trustee and 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), The Bank of New York, as calculation agent (the "CALCULATION AGENT",
which expression includes its successors as Calculation Agent under the Agency
Agreement), and AIB/ BNY Fund Management (Ireland) Limited as Irish paying agent
(the "IRISH PAYING AGENT", which expression includes its successors under the
Agency Agreement), and under which further paying agents may be appointed
(together with the Principal Paying Agent and the Irish 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 Class A-2 Notes will be made by the Paying Agents and
the Calculation Agent will make the determinations specified in the Agency
Agreement.
The Class A-2 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 Supplementary Terms
Notice, the Security Trust Deed, the Note Trust Deed, the Servicing Agreement
(the "SERVICING AGREEMENT") dated 14 March 1998 and made between Perpetual
Trustees Consolidated Limited, the Manager and Xx.Xxxxxx as servicer (together
with any substitute or successor, the "SERVICER"), the Custodian Agreement (the
"CUSTODIAN AGREEMENT") dated 14 March 1998 and made between Perpetual Trustees
Consolidated Limited, the Manager and Xx.Xxxxxx Custodial Pty Ltd as custodian
(together with any substitute or successor, the "CUSTODIAN") and the Indemnity
(the "INDEMNITY") dated 14 March 1998 between Xx.Xxxxxx as indemnifier (in such
capacity, the "INDEMNIFIER"), the Manager, the Custodian and Perpetual Trustees
Consolidated Limited (together with the agreements with respect to the Basis
Swap, the Fixed-Floating Rate Swap and the Currency Swap (as each such term is
defined below), those documents, together with certain other transaction
documents, the "TRANSACTION DOCUMENTS"). Copies of the Transaction Documents are
available for inspection at the principal office of the Note Trustee, being at
the date hereof 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000,
Xxxxxx Xxxxxx xx Xxxxxxx, at the registered office of the Irish Paying Agent at
Guild House, Guild Street, Dublin 1, Republic of Ireland, and the office of the
Issuer.
In connection with the issue of the Notes, the Issuer has entered into an ISDA
(defined below) master interest rate exchange agreement dated on or around [*]
2005 with Xx.Xxxxxx (the "BASIS SWAP PROVIDER") together with one confirmation
relating thereto dated on or around [*] 2005 (the "BASIS SWAP"). The Issuer has
also entered into an ISDA master interest rate exchange agreement dated on or
around [*] 2005 with Xx.Xxxxxx (the "FIXED-FLOATING RATE SWAP PROVIDER")
together with one confirmation relating thereto dated on or around [*] 2005 (the
"FIXED-FLOATING RATE SWAP"). The Issuer has also entered into an ISDA master
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currency exchange agreement dated on or around [*] 2005 with The Royal Bank of
Scotland plc (the "CURRENCY SWAP PROVIDER" and, together with the Basis Swap
Provider and the Fixed-Floating Rate Swap Provider, the "SWAP PROVIDERS")
together with one schedule and confirmation relating thereto dated on or around
[*] 2005 in respect of the swap transaction relating to the Class A-2 Notes (the
"CURRENCY SWAP").
Each Class A-2 Note, whether in the form of a Class A-2 Book-Entry Note or a
Definitive Note will bear the following legend: "THIS CLASS A-2 NOTE HAS NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED, (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO THE DATE THAT IS 40 DAYS
AFTER THE LATER OF THE CLOSING DATE AND THE COMMENCEMENT OF THE OFFERING OF THE
CLASS A-2 NOTES, MAY NOT BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES, OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS (AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH ANY APPLICABLE LAWS OF ANY STATE OF THE UNITED STATES."
Each Book-Entry Note will also bear the following legend: "This book-entry 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. FORM, DENOMINATION AND TITLE
The Class A-2 Notes are issued in registered form, in minimum denominations of
(euro)100,000 and integral multiples thereof.
Each Class A-2 Note (whether in global or definitive form) is not a document of
title. Title shall be determined by entry in the Note Register and only the duly
registered holder from time to time is entitled to payments in respect of a
Class A-2 Note.
Each Class A-2 Note will be represented initially by a book-entry note in
registered form (each a "CLASS A-2 BOOK-ENTRY NOTE") registered in the name of
The Bank of New York Depositary (Nominees) Limited and deposited with the Common
Depository in respect of the Class A-2 Notes. Beneficial interests in the Class
A-2 Book-Entry Notes will be shown on, and transfers thereof will be effected
only through, records maintained by Euroclear or Clearstream, Luxembourg and
their participants. Euroclear and Clearstream, Luxembourg may hold interests in
the Class A-2 Book-Entry Notes on behalf of persons who have accounts with
Euroclear and Clearstream, Luxembourg through accounts maintained in the names
of Euroclear or Clearstream, Luxembourg.
If the Issuer is obliged to issue Definitive Class A-2 Notes under clause 3.4 of
the Note Trust Deed, interests in the applicable Class A-2 Book-Entry Note will
be transferred to the beneficial owners thereof in the form of Definitive Class
A-2 Notes, without interest coupons, in the denominations set forth above. A
Definitive Class A-2 Note will be issued to each Class A-2 Noteholder in respect
of its registered holding or holdings of Class A-2 Notes against delivery by
such Class A-2 Noteholder of a written order containing instructions and such
other information as the Issuer and The Bank of New York, acting as a note
registrar (the "NOTE REGISTRAR") may require to complete, execute and deliver
such Definitive Class A-2 Notes. In such circumstances, the Issuer will cause
sufficient Definitive Class A-2 Notes to be executed and delivered to the Note
Registrar for completion, authentication (by the Principal Paying Agent) and
dispatch to the relevant Class A-2 Noteholders.
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2. STATUS, SECURITY AND RELATIONSHIP BETWEEN THE NOTES
The Notes are secured by a floating security over all of the assets of the Trust
(which include, among other things, the Purchased Loans (as defined below) and
the Mortgages (as defined below) and related securities) granted by the Issuer
under the Security Trust Deed) (the "ASSETS") and within each class will rank
pari passu and rateably without any preference or priority among themselves.
The Class A-2 Notes are issued subject to the Master Trust Deed and the
Supplementary Terms Notice and are secured by the same security as secures the
A$ Notes and the Class A-1 Notes and, the Class A-2 Notes, the Class A-1 Notes
and the Class A-3 Notes, will rank in priority to the Class B Notes and Class C
Notes in the event of the security being enforced and in respect of principal
and interest (as set out in Conditions 4 and 5).
The proceeds of the issue of the Class A-1 Notes, the Class A-2 Notes and the A$
Notes are to be used by the Issuer to purchase an equitable interest in certain
housing loans (the "LOANS") and certain related mortgages (the "MORTGAGES") from
Xx.Xxxxxx as an approved seller (the "APPROVED SELLER"), establish the Liquidity
Reserve and to invest in such Authorised Investments as the Manager may specify
from time to time.
In the event that the security for the Class A-2 Notes is enforced and the
proceeds of such enforcement are insufficient, after payment of all other claims
ranking in priority to or pari passu with the Class A Notes under the Security
Trust Deed, to pay in full all principal and interest and other amounts
whatsoever due in respect of the Class A Notes, then the Class A Noteholders
shall have no further claim against the Issuer in respect of any such unpaid
amounts.
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 (see further Condition
15). None of the Servicer, the Manager, Xx.Xxxxxx, the Note Trustee, the
Security Trustee, the Swap Providers, the Paying Agents, the Calculation Agent
or the Note Managers (as defined in the Supplementary Terms 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 Class A-2 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, to give priority to
the interests of the Class A Noteholders, if there is a conflict between the
interest of such Noteholders and any other Voting Mortgagee (as defined below).
3. COVENANTS OF THE ISSUER
So long as any of the Class A-2 Notes remains outstanding, the Issuer has made
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 shall 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.
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(b) The Issuer shall:
(i) act honestly and in good faith and comply with all relevant material
laws 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;
(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 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 from its own assets and account for
assets and liabilities of the Trust separately from those of other
trusts constituted under the Master Trust Deed and from its own assets
and liabilities;
(vi) do everything and take all such actions which are necessary (including
obtaining all appropriate authorisations which relate to it as trustee
of the Trust and taking all actions necessary to assist the Manager to
obtain all other 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;
(vii) not engage in any business or activity in respect of the Trust except
as contemplated or required by the Transaction Documents;
(viii) except as contemplated or required by the Transaction Documents,
maintain an independent and arm's length relationship with its related
bodies corporate in relation to dealings affecting the Trust;
(ix) except as contemplated or required by the Transaction Documents, not,
in respect of the Trust, guarantee or become obligated for the debts
of any other entity or hold out its credit as being available to
settle the obligations of others;
(x) comply with the rules and regulations of the Irish Stock Exchange
Limited (the "IRISH STOCK EXCHANGE"); and
(xi) within 45 days of notice from the Manager to do so, remove any of its
agents or delegates that breaches any obligation imposed on the Issuer
under the Master Trust Deed or any other Transaction Document where
the Manager believes it will have a Material Adverse Affect.
(c) Except as provided in any Transaction Document (and other than the charge
given to the Security Trustee), the Issuer shall 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.
(d) The Issuer covenants that it will duly observe and perform the covenants
and obligations of the Master Trust Deed, and the Issuer will be personally
liable to the Servicer, the Noteholders, the Residual Income Beneficiary,
the Note Managers, the Note Trustee or other creditors of the Trust, as the
case
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may be, only to the extent that there has been a reduction in its indemnity
from the Assets as a result of its negligence, fraud or Default (as defined
in Condition 15(b)(vii) "Liability of Trustee limited to its right of
indemnity"). The Issuer is not responsible for the acts or omissions of its
agents and delegates (including persons referred to in clause 17.6 of the
Master Trust Deed) selected by the Issuer in good faith and using
reasonable care, except where the Issuer expressly instructs the agent or
delegate to do (or omit to do) the relevant act, if the Issuer is aware of
the default of the agent or delegate and does not take the action available
to it under the Transaction Documents to address the act or omission or
where the Transaction Documents expressly provide that the Issuer is so
liable.
(e) The Issuer will open and operate certain bank accounts in accordance with
the Master Trust Deed and the Supplementary Terms Notice.
(f) Subject to the Master Trust Deed and any Transaction Document to which it
is a party, the Issuer shall act on all directions given to it by the
Manager in accordance with the terms of the Master Trust Deed.
(g) The Issuer shall properly perform the functions which are necessary for it
to perform under all Transaction Documents in respect of the Trust.
4. INTEREST
(A) PAYMENT DATES
Each Class A-2 Note bears interest on its Invested Amount (as defined below)
from and including [17] March 2005 or such later date as may be agreed between
the Issuer and the Joint Managers (as defined in the Subscription Agreement) for
the issue of the Class A-2 Notes (the "CLOSING DATE"). Interest in respect of
the Class A-2 Notes will be payable quarterly in arrears on 17 June 2005 in
respect of the period from (and including) the Closing Date and ending on (but
excluding) 17 June 2005 (the "FIRST QUARTERLY PAYMENT DATE"). If any Payment
Date would otherwise fall on a day which is not a Business Day, it shall be
postponed to the next day which is a Business Day, unless it would thereby fall
into the next calendar month, in which case the due date shall be brought
forward to the immediately preceding Business Day. The final Quarterly Payment
Date will be the earlier of the Final Maturity Date and the Payment Date on
which the Notes are redeemed in full.
"BUSINESS DAY" in these Conditions means any day, other than a Saturday, Sunday
or public holiday, on which Banks are open for business in London, New York,
Sydney and The Trans-European Real-Time Gross Settlement Express Transfer
(TARGET) System or any successor to it is open.
The period beginning on (and including) the Closing Date and ending on (but
excluding) the first Quarterly Payment Date, and each successive period
beginning on (and including) a Quarterly Payment Date and ending on (but
excluding) the next Quarterly Payment Date and the final period referred to
below is called an "INTEREST PERIOD". Interest payable on a Class A-2 Note in
respect of any Interest Period or any other period will be calculated on the
basis of the actual number of days elapsed and a 360 day year.
Interest shall cease to accrue on any Class A-2 Note from (and including):
(i) the date on which the Stated Amount of that Class A-2 Note is reduced
to zero (provided that interest shall thereafter begin to accrue from
(and including) any date on which the Stated Amount of that Class A-2
Note becomes greater than zero); or
(ii) if the Stated Amount on the due date for redemption in full of that
Class A-2 Note is not zero, the due date for redemption in full of
that Class A-2 Note, unless, after the due date for redemption,
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payment of principal due is improperly withheld or refused, following
which interest shall continue to accrue on the Invested Amount of the
Class A-2 Note at the rate from time to time applicable to the Class
A-2 Notes until the later of:
(A) the date on which the moneys in respect of that Class A-2 Note
have been received by the Note Trustee or the Principal Paying
Agent and notice to that effect is given in accordance with
Condition 12 "Notices"; and
(B) the Stated Amount of that Class A-2 Note has been reduced to zero
(provided that interest shall thereafter begin to accrue from
(and including) any date on which the Stated Amount of that Class
A-2 Note becomes greater than zero).
(B) INTEREST RATE
The rate of interest applicable from time to time to the Class A-2 Notes (the
"INTEREST RATE") will be determined by the Calculation Agent on the basis of the
following paragraphs.
On the second EURIBOR Business Day before the beginning of each Interest Period
(each an "INTEREST DETERMINATION DATE"), the Calculation Agent will determine
"EURIBOR", which is the rate "EUR-EURIBOR - Telerate", 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 Note Issue Date (the "ISDA DEFINITIONS") being
applicable for deposits in Euros for a period of three months which appears on
the Telerate Page 248 as of 11.00 am, Brussels time, on the relevant Interest
Determination Date. If such rate does not appear on the Telerate Page 248, the
rate for that Interest Period will be determined as if the Issuer and the
Calculation Agent had specified "EUR-EURIBOR-REFERENCE BANKS" as the applicable
Floating Rate Option under the ISDA Definitions. "EUR-EURIBOR-REFERENCE BANKS"
means that the rate for an Interest Period for a Class A-2 Note will be
determined on the basis of the rates at which deposits in Euros are offered by
four major banks in the Euro-zone interbank market agreed to by the Calculation
Agent and the Currency Swap Provider (the "REFERENCE BANKS") at approximately
11.00 am, Brussels time, on the relevant Interest Determination Date to prime
banks in the Euro-zone interbank market for a period of three months commencing
on the first day of the Interest Period and in a Representative Amount (as
defined in the ISDA Definitions). The Calculation Agent will request the
principal Euro-zone office of each of the Reference Banks to provide a quotation
of its rate. If at least two such quotations are provided by Reference Banks to
the Calculation Agent, the rate for that Interest Period will be the arithmetic
mean of the quotations. If fewer than two quotations are provided by Reference
Xxxxx to the Calculation Agent following the Calculation Agent's request, the
rate for that Interest Period will be the arithmetic mean of the rates quoted by
four major banks in the Euro-zone, selected by the Calculation Agent and the
Currency Swap Provider, at approximately 11.00 am, Brussels time, on that
Interest Determination Date for loans in Euros to leading European banks for a
period of 3 months commencing on the first day of the Interest Period and in a
Representative Xxxxxx. If no such rates are available in the Euro-zone, then the
rate for such Interest Period will be the most recently determined rate in
accordance with this definition.
In this definition of EURIBOR, EURIBOR BUSINESS DAY means any day on which the
Trans-European Real-Time Gross Settlement Express Transfer (TARGET) System or
any successor to it is open.
There is no maximum or minimum Interest Rate.
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(C) DETERMINATION OF INTEREST RATE AND CALCULATION OF INTEREST
The Calculation Agent will, as soon as practicable after 11.00 am (Brussels
time) on each Interest Determination Date, determine the relevant Interest Rate
applicable to, and calculate the amount of interest payable on each Class A-2
Note (the "INTEREST") for the immediately succeeding Interest Period. The
Interest is calculated by applying the Interest Rate for the relevant Class A-2
Notes to the relevant Invested Amount of the relevant Class A-2 Note on the
first day of the next Interest Period, multiplying such product by the actual
number of days in the relevant 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 by the Calculation Agent shall (in the absence of manifest
error) be 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 the Class A-2 Notes for each Interest Period and the relevant Quarterly
Payment Date to be notified to the Issuer, the Manager, the Note Trustee, the
Paying Agents, the Currency Swap Provider and the Irish Stock Exchange and the
Manager on behalf of the Issuer will cause the same to be published in
accordance with Condition 12 "Notices" on or as soon as possible after the date
of commencement of the relevant Interest Period. The Interest and the relevant
Quarterly Payment Date so published may subsequently be amended (or appropriate
alternative arrangements made by way of adjustment) without notice in the event
of a shortening of the Interest Period.
(E) DETERMINATION OR CALCULATION BY THE MANAGER
If the Calculation Agent at any time for any reason does not determine the
Interest Rate or calculate the Interest for the Class A-2 Notes, the Manager
shall do so and each such determination or calculation shall be deemed to have
been made by the Calculation Agent. In doing so, the Manager shall 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 shall
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 Class A-2 Notes remains
outstanding, there will at all times be a Calculation Agent. The Issuer, or the
Manager with the consent of the Issuer (such consent not to be unreasonably
withheld), reserves the right at any time to terminate the appointment of the
Calculation Agent immediately on the occurrence of certain specified events or
otherwise, with the prior written approval of the Note Trustee, by giving not
less than 60 days' notice in writing to, inter alia, the Calculation Agent.
Notice of that termination will be given to the Class A-2 Noteholders, and any
stock exchange or other relevant authority on which the Class A-2 Notes are
listed and/or traded, in accordance with the Agency Agreement. 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 shall take effect until a successor approved by
the Note Trustee has been appointed.
(G) INCOME DISTRIBUTION
On each Quarterly Payment Date, and based on the calculations, instructions and
directions provided to it by the Manager, the Issuer must pay or cause to be
paid out of Total Available Funds, in relation to the
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Quarterly Collection Period (defined below) ending immediately before that
Quarterly Payment Date, the amounts specified in clause 5.1(c) of the
Supplementary Terms Notice in the order of priority specified in that clause.
The Issuer shall only make a payment under any of the sub-paragraphs of clause
5.1(c) of the Supplementary Terms Notice if it is directed in writing by the
Manager to do so and only to the extent that any Total Available Funds remain
from which to make the payment after amounts with priority to that payment have
been distributed.
The Issuer is also required to make certain payments out of Total Available
Funds on each Monthly Payment Date (as defined below) as more fully described in
the Supplementary Terms Notice.
Capitalised terms in this paragraph (g) have the same meaning given in the
Supplementary Terms Notice unless otherwise defined in this document.
5. REDEMPTION
Capitalised terms in this Condition 5 have the same meaning given in the
Supplementary Terms Notice unless otherwise defined in this document.
(A) MANDATORY REDEMPTION IN PART FROM PRINCIPAL COLLECTIONS AND APPORTIONMENT
OF PRINCIPAL COLLECTIONS BETWEEN THE CLASS A-1 NOTES, THE CLASS A-2 NOTES
AND THE A$ NOTES
The Class A-2 Notes shall be subject to mandatory redemption in part on any
Quarterly Payment Date if on that date there are any Principal Collections
(as defined below) available to be distributed in relation to such Class
A-2 Notes. The principal amount so redeemable in respect of each Class A-2
Note prior to enforcement of the Security Trust Deed (each a "PRINCIPAL
PAYMENT") on any Quarterly Payment Date shall be the amount available for
payment in respect of the Class A-2 Notes as set out in Condition 5(b) on
the day which is two Business Days prior to the Quarterly Payment Date (the
"QUARTERLY DETERMINATION DATE") divided by the aggregate Invested Amount of
all Class A-2 Notes, multiplied by the Invested Amount of that Note,
provided always that no Principal Payment on a Class A-2 Note on any date
may exceed the amount equal to the Invested Amount of that Class A-2 Note
at that date, less amounts charged off as at that date and not to be
reinstated on the next Quarterly Payment Date, or to be charged off on the
Quarterly Payment Date, as described in Condition 5(c) (that reduced amount
being the "STATED AMOUNT" of that Class A-2 Note).
Notice of amounts to be redeemed will be provided by the Manager to the Issuer,
the Calculation Agent, the Principal Paying Agent and the Note Trustee.
Following notification of the amount to be redeemed for each Quarterly Payment
Date, the Manager will determine the Bond Factor for the Class A-2 Notes as of
such Quarterly Payment Date and will notify the Issuer, the Calculation Agent,
the Principal Paying Agent and the Note Trustee of this amount and shall cause
the Bond Factor to be published pursuant to Condition 12.
(B) PRINCIPAL DISTRIBUTIONS ON NOTES
On each Quarterly Payment Date, and based on the calculations, instructions
and directions provided to it by the Manager, the Issuer must distribute or
cause to be distributed out of Principal Collections, in relation to the
Quarterly Collection Period ending immediately before that Quarterly
Payment Date, the following amounts in the following order of priority:
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(i) first, in the manner and order of priority set out in clause 5.4(c) of
the Supplementary Terms Notice;
(ii) then:
(A) prior to the Stepdown Date, or at any time if a Trigger Event is
subsisting, in the manner and order of priority set out in clause
5.5 of the Supplementary Terms Notice; and
(B) on and after the Stepdown Date, provided that no Trigger Event is
subsisting, in the manner and order of priority set out in clause
5.6 of the Supplementary Terms Notice.
The Issuer shall only make a payment under any of clause 5.4(c), 5.5 and
5.6 (as applicable) if it is directed in writing to do so by the Manager
and only to the extent that any Principal Collections remain from which to
make the payment after amounts with priority to that payment have been
distributed.
The Issuer is also required to make certain payments out of Principal
Collections (including allocating Principal Draws to Total Available Funds)
on each Monthly Payment Date in accordance with the Supplementary Terms
Notice.
(C) GENERAL
No amount of principal will be paid to a Noteholder in excess of the
Invested Amount applicable to the Notes held by that Noteholder.
(D) EXCESS AVAILABLE INCOME - REIMBURSEMENT OF CHARGE OFFS, PRINCIPAL DRAWS AND
LIQUIDITY DRAWS
(i) General
On each Quarterly Determination Date, the Manager must determine, for a
Quarterly Collection Period, the amount (if any) by which the Total
Available Funds for the Quarterly Collection Period exceeds the Total
Payments for the Quarterly Collection Period ("EXCESS AVAILABLE INCOME").
(ii) Distribution of Excess Available Income
Subject to clause 5.2(b) of the Supplementary Terms Notice, on each
Quarterly Determination Date, the Manager must apply any Excess Available
Income for the Quarterly Collection Period relating to that Quarterly
Determination Date in the order of priority specified in clause 5.2(a) of
the Supplementary Terms Notice.
(E) EXCESS DISTRIBUTION
The Issuer must at the written direction of the Manager pay any Excess
Distribution for a Quarterly Collection Period to the Residual Income
Beneficiary on the relevant Quarterly Payment Date. Once paid to the
Residual Income Beneficiary, the Issuer may not recover any Excess
Distributions from the Residual Income Beneficiary other than in the
circumstances specified in clause 5.3 of the Supplementary Terms Notice.
(F) EURO ACCOUNT
The Issuer shall direct the Currency Swap Provider to pay all amounts
denominated in (euro) payable to the Issuer by the Currency Swap Provider
under the Currency Swap into the Euro Account or to the Principal Paying
Agent under the Agency Agreement on behalf of the Issuer.
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If any of the Issuer, the Manager or the Servicer receives any amount
denominated in (euro) from the Currency Swap Provider under a Currency
Swap, they will promptly pay that amount to the credit of the Euro Account.
The Issuer shall, on the direction of the Manager, or shall require that
the Paying Agent on its behalf, pay all amounts credited to the Euro
Account by the Currency Swap Provider as specified in clause 5.18 of the
Supplementary Terms Notice, and in accordance with the Note Trust Deed and
the Agency Agreement.
(G) CHARGE OFFS
If the Principal Charge Offs for any Quarterly Collection Period exceed the
Excess Available Income calculated on the Quarterly Determination Date for
that Quarterly Collection Period, the Manager must, on and with effect from
the Quarterly Payment Date immediately following the end of the Quarterly
Collection Period comply with clause 5.14 of the Supplementary Terms
Notice.
(H) CALCULATION OF PRINCIPAL PAYMENTS AND STATED AMOUNT
On (or as soon as practicable after) each Determination Date, the Manager
shall (A) calculate the amount of principal to be repaid in respect of each
Class A-2 Note, due on the next Payment Date following that Determination
Date, (B) the Stated Amount and Invested Amount of each Note on the first
day of the next following Interest Period (after deducting any principal
due to be made on the next Payment Date); and (C) the Bond Factor for each
Class of Note on each Quarterly Determination Date in respect of the
Collection Period ending before that Quarterly Determination Date.
The Manager will notify the Issuer, the Note Trustee, the Principal Paying
Agent and the Calculation Agent by not later than (or as soon as
practicable after) the Quarterly Determination Date immediately preceding
the relevant Quarterly Payment Date of each such determination and will
immediately cause details of each of those determinations to be published
in accordance with Condition 12 by one Business Day before the relevant
Payment Date. If no Principal Payment is due to be made on the Class A-2
Notes on any Payment Date a notice to this effect will be given to the
Class A-2 Noteholders in accordance with Condition 12.
(I) CALL
The Issuer must, when so directed by the Manager (at the Manager's option),
purchase or redeem all, but not some only, of the Class A-2 Notes in
accordance with, and in the circumstances specified in clause 7.1 of the
Supplementary Terms Notice.
Section 7.1 of the Supplementary Terms Notice requires the Issuer to give
not more than 60 nor less than 45 days' notice to the Class A-2 Noteholders
of a repurchase under that section 7.1.
(J) REDEMPTION FOR TAXATION OR OTHER REASONS
If the Manager satisfies the Issuer and the Note Trustee immediately prior to
giving the notice referred to below that either:
(i) on the next Quarterly Payment Date the Issuer would be required to deduct
or withhold from any payment of principal or interest in respect of the
Class A-2 Notes or the Currency Swap any amount for or on account of any
present or future taxes, duties, assessments or governmental charges of
whatever
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nature imposed, levied, collected, withheld or assessed by the Commonwealth
of Australia or any of its political sub-divisions or any of its
authorities; or
(ii) the total amount payable in respect of interest in relation to any of the
Loans for a Collection Period ceases to be receivable (whether or not
actually received) by the Issuer during such Collection Period (but, for
the avoidance of doubt, this paragraph (ii) does not apply to the failure
by the Issuer to receive any interest on any Purchased Receivable merely by
reason of the failure by the relevant Obligors to pay that interest in
breach of the relevant Receivable Agreement),
the Issuer must, when so directed by the Manager, at the Manager's option,
(subject to the provisions specified in clause 7.1 of the Supplementary Terms
Notice) redeem all, but not some only, of the Class A-2 Notes in accordance with
clause 7.1 of the Supplementary Terms Notice.
(K) REDEMPTION ON FINAL MATURITY
If not otherwise redeemed, the Class A-2 Notes will be redeemed at their
Stated Amount on the Quarterly Payment Date falling in June 2037.
(L) CANCELLATION
All Class A-2 Notes redeemed in full pursuant to the above provisions will
be cancelled forthwith, and may not be resold or reissued.
(M) CERTIFICATION
For the purposes of any redemption made pursuant to this Condition 5, the
Note Trustee may rely upon an Officer's Certificate under the Note Trust
Deed from the Manager on behalf of the Issuer certifying or stating the
opinion of each person signing such certificate as:
(i) to the fair value (within 90 days of such release) of the property or
securities proposed to be released from the Security Trust Deed);
(ii) 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 the Note Trust Deed; and
(iii) that the Issuer will be in a position to discharge all its
liabilities in respect of the relevant Class A-2 Notes and any amounts
required under the Security Trust Deed to be paid in priority to or
pari passu with those Class A-2 Notes,
and such Officer's Certificate shall be conclusive and binding on the
Trustee, the Note Trustee and the holders of those Class A-2 Notes.
6. PAYMENTS
(A) METHOD OF PAYMENT
Any instalment of interest or principal payable on any Class A-2 Note which is
punctually paid or duly provided for by the Issuer to the Principal Paying Agent
on the applicable Quarterly Payment Date or Final Maturity Date shall be paid to
the person in whose name such Class A-2 Note is registered on the Record Date,
by cheque mailed first-class, postage prepaid, to such person's address as it
appears on the Note Register on such Record Date, except that, unless Definitive
Class A-2 Notes have been issued pursuant to clause 3.4 of the Note Trust Deed,
with respect to Class A-2 Notes registered on the Record Date in the name of the
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nominee of the Clearing Agencies (initially in respect of the Class A-2 Notes
such Clearing Agencies to be Euroclear or Clearstream, Luxembourg and such
nominee to be Bank of New York Depository (Nominees) Limited, the nominee of the
Common Depository, payment will be made by wire transfer in immediately
available funds to the account designated by such nominee and except for the
final instalment of principal payable with respect to such Class A-2 Note on a
Quarterly Payment Date or Final Maturity Date.
Payments are subject in all cases to any fiscal or other laws or regulations
applicable in the place of payment.
(B) INITIAL PRINCIPAL PAYING AGENT AND INITIAL IRISH PAYING AGENT
The initial Principal Paying Agent is The Bank of New York acting through its
office at 00xx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx. The
initial Irish Paying Agent is AIB/BNY Fund Management (Ireland) Limited at its
registered office at Guild House, Guild Xxxxxx, Xxxxxx 0, Xxxxxxxx xx Xxxxxxx.
(C) PAYING AGENTS
The Issuer (or the Manager on its behalf with the consent of the Issuer, such
consent not to be unreasonably withheld) may at any time with the prior written
consent 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 Principal Paying Agent and will maintain at all times a
Paying Agent having a paying office in the United Kingdom (in respect of the
Class A-2 Notes) and, for so long as the Class A-2 Notes are listed on the Irish
Stock Exchange, there will be a Paying Agent with a paying office in the
Republic of Ireland for so long as it is necessary to do so to comply with the
Irish Stock Exchange's listing requirements.
The Manager shall procure that the Trustee maintains the appointment of, if
European Council Directive 2003/48/EC or any other directive implementing the
conclusions of the ECOFIN Council Meeting of 26-27 November 2000 is brought into
force, a Paying Agent in a member state of the European Union that will not be
obliged to withhold or deduct tax pursuant to any such directive or any law
implementing or complying with, or introduced to conform with, such directive.
(D) PAYMENT ON BUSINESS DAYS
Payments in respect of any amount of principal or Interest in respect of any
Class A-2 Note shall be made on a Business Day. If the due date for payment of
any amount of principal or Interest in respect of any Class A-2 Note is not a
Business Day then payment will not be made until 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 Class A-2 Note shall
not be entitled to any further interest or other payment in respect of that
delay.
(E) INTEREST ON UNPAID INTEREST
If Interest is not paid in respect of a Class A-2 Note on the date when due and
payable (other than because the due date is not a Business Day), that unpaid
Interest shall itself bear interest at the relevant Interest Rate applicable
from time to time to the relevant Class A-2 Notes 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 "Notices".
7. TAXATION
All payments in respect of the Class A-2 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, any Paying
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Agent or the Currency Swap Provider is required by applicable law to make any
such payment in respect of the Class A-2 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, that Paying Agent or the Currency
Swap Provider (as the case may be) shall make such payment after such
withholding or deduction has been made and shall account to the relevant
authorities for the amount so required to be withheld or deducted. Neither the
Issuer, any Paying Agent or the Currency Swap Provider will be obliged to make
any additional payments to Class A-2 Noteholders in respect of that withholding
or deduction.
8. PRESCRIPTION
A Class A-2 Note shall become void in its entirety unless surrendered for
payment within 10 years of the Relevant Date in respect of any payment on it the
effect of which would be to reduce the relevant Stated Amount (in the case of
final maturity, if applicable) or the relevant Invested Amount of that Class A-2
Note to zero. After the date on which a Class A-2 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 London 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 "Notices".
9. EVENTS OF DEFAULT
Clause 8.1 of the Security Trust Deed sets out which events constitute an "EVENT
OF DEFAULT" (whether or not it is within the control of the Issuer) for the
purpose of these Conditions and the Security Trust Deed.
In the event that the security constituted by the Security Trust Deed becomes
enforceable following an event of default under the Notes any funds resulting
from the realisation of such security shall be applied in accordance with the
order of priority of payments as stated in the Security Trust Deed.
10. ENFORCEMENT
At any time after an Event of Default occurs, the Security Trustee shall
(subject to being appropriately indemnified), if so directed by (a) the
Noteholder Mortgagees (as defined in the Security Trust Deed) alone, where
the Noteholder Mortgagees are the only Voting Mortgagees, or otherwise (b)
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), which includes the Note Trustee on behalf of the Class A-2
Noteholders, but not, unless the Note Trustee has become bound to take
steps and/or proceed under the Security Trust Deed and fails to do so
within a reasonable period of time and such failure is continuing, the
Class A-2 Noteholders themselves), declare the Class A Notes immediately
due and payable and declare the security 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 Noteholder
Mortgagees (in the case of the Class A-2 Noteholders, as represented by the
Note Trustee acting at the direction of the Class A-2 Noteholders) may
nevertheless direct the Security Trustee to enforce the Security Trust Deed
on behalf of the Noteholders.
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"VOTING MORTGAGEE" has the meaning given to it in the Supplementary Terms
Notice.
Any reference to the Noteholder Mortgagees while they are the only Voting
Mortgagees or where their consent is required under the Security Trust Deed
in relation to a direction or act of the Security Trustee, means Noteholder
Mortgagees representing more than 50% of the aggregate Invested Amount of
the Class A-2 Notes and the A$ Notes.
Subject to being indemnified in accordance with the Security Trust Deed,
the Security Trustee shall take all action necessary to give effect to any
direction by the Noteholder Mortgagees where they are the only Voting
Mortgagees or to any Extraordinary Resolution of the Voting Mortgagees and
shall comply with all directions given by the Note Trustee where it is the
only Voting Mortgagee or contained in or given pursuant to any
Extraordinary resolution of the Voting Mortgagees in accordance with the
Security Trust Deed.
No Class A-2 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.
If any of the Class A-2 Notes remains outstanding and is due and payable
otherwise than by reason of a default in payment of any amount due on the
Class A-2 Notes, the Note Trustee must not vote under the Security Trust
Deed to, or otherwise direct the Security Trustee to, dispose of the
Mortgaged Property unless either:
(a) the Note Trustee is of the opinion, reached after considering at any
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
such advice shall be an Expense payable to the Note Trustee), that a
sufficient amount would be realised to discharge in full all amounts
owing to the Class A-2 Noteholders and any other amounts payable by
the Issuer ranking in priority to or pari passu with the Class A-2
Notes; or
(b) the Note Trustee is of the opinion, reached after considering at any
time and from time to time the advice of a merchant bank or other
financial adviser selected by the Note Trustee in its sole and
absolute discretion (the cost of such advice shall be an Expense
payable to 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 paragraph (a) above.
Except in the case of negligence, fraud or breach of trust (in the case of
the Security Trustee) or negligence, fraud or wilful default (in the case
of the Note Trustee), neither the Note Trustee nor the Security Trustee
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 Class A-2
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
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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.
Subject to the provisions of the Note Trust Deed (including clause 37.2),
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
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 Class A-2 Notes on behalf of the Class A-2 Noteholders unless
directed or requested to do so by an Extraordinary Resolution of the Class
A-2 Noteholders at the time; 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.
Only the Security Trustee may enforce the provisions of the Security Trust
Deed and neither the Note Trustee nor any Class A-2 Noteholder is entitled
to proceed directly against the Issuer to enforce the performance of any of
the provisions of the Security Trust Deed or the Class A-2 Notes (including
these Conditions) except as provided for in the Security Trust Deed and the
Note Trust Deed.
The rights, remedies and discretions of the Class A-2 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 Class
A-2 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 Class A-2 Noteholders from time to
time and need not enquire whether the Note Trustee or the 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 Note Trustee or the Voting Mortgagees in accordance with
the Security Trust Deed.
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 shall enforce the
Security Trust Deed if so directed by an Extraordinary Resolution of the
Voting Mortgagees).
Upon enforcement of the security created by the Security Trust Deed, the
net proceeds thereof may be insufficient to pay all amounts due on
redemption to the Noteholders. The proceeds from enforcement (which will
not include amounts required by law to be paid to the holder of any prior
ranking security interest the proceeds of or amounts credited to the
collateral account under the Liquidity Facility Agreement (as defined in
the Master Trust Deed) and payable to the Liquidity Facility Provider (as
defined in the Master Trust Deed), and the proceeds of cash collateral
lodged with and payable to a Swap Provider or other provider of a Support
Facility (as defined in the Master Trust Deed)) will be applied in the
order of priority as set out in the Security Trust Deed. Any claims of
Noteholders remaining after realization of the security and application of
the proceeds as aforesaid shall, except in certain limited circumstances,
be extinguished.
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11. REPLACEMENTS OF CLASS A-2 NOTES
If any Class A-2 Note is lost, stolen, mutilated, defaced or destroyed, it may
be replaced at the specified office of the Principal Paying Agent located at
00xx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx X00 0XX or such other office as may be
designated from time to time under the Agency Agreement 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 Principal Paying Agent may reasonably
require. Mutilated or defaced Class A-2 Notes must be surrendered before
replacements will be issued.
12. NOTICES
All notices, other than notices given in accordance with the following
paragraph, to Class A-2 Noteholders shall be deemed given if in writing and
mailed, first-class, postage prepaid to each Class A-2 Noteholder, at his or her
address as it appears on the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice and
(for so long as the Class A-2 Notes are listed on the Irish Stock Exchange and
the Irish Stock Exchange so requires) if a copy is delivered to the Company
Announcement Office of the Irish Stock Exchange and if a copy of such notice is
made available at the registered office of the Irish Paying Agent at Guild
House, Guild Street, Dublin 1, Republic of Ireland. In any case where notice to
Class A-2 Noteholders is given by mail, neither the failure to mail such notice
nor any defect in any notice so mailed to any particular Class A-2 Noteholder
shall affect the sufficiency of such notice with respect to other Class A-2
Noteholders, and any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given.
A notice may be waived in writing by the relevant Class A-2 Noteholder, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Class A-2 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.
Any such notice shall be deemed to have been given on the date such notice is
deposited in the mail.
In case, by reason of the suspension of regular mail services as a result of a
strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Class A-2 Noteholders when such notice is required to be
given, then any manner of giving such notice as the Trustee shall direct (on the
instructions of the Trust Manager) the Note Trustee shall be deemed to be a
sufficient giving of such notice.
Any notice required to be given by the Principal Paying Agent at any time shall
be deemed to have been duly given if the information contained in such notice
appears on the relevant page of the Reuters Screen, on the Website (as defined
below) or such other similar electronic reporting service as may be approved by
the Note Trustee and notified to Class A-2 Noteholders (the "RELEVANT SCREEN").
Any such notice shall be deemed to have been given on the first date on which
such information appeared on the Relevant Screen. If it is impossible or
impracticable to give notice in accordance with this paragraph then notice of
the matters referred to in this Condition shall be given in accordance with the
preceding paragraph.
"WEBSITE" means the website at the following address:
xxxxx://xxx.xxxxxx.xxx
or such other website as the Principal Paying Agent shall notify the Note
Trustee, the Trustee, the Manager and the Class A-2 Noteholders, in accordance
with this Condition, from time to time.
All consents and approvals in these Conditions are to be given in writing.
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13. MEETINGS OF VOTING MORTGAGEES AND MEETINGS OF RELEVANT NOTEHOLDERS;
MODIFICATIONS; CONSENTS; WAIVER
The Security Trust Deed contains provisions permitting the Voting Mortgagees to,
among other things, 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.
The Note Trust Deed contains provisions permitting the Relevant Noteholders to
act on any matter affecting their interests, including the directing of the Note
Trustee to direct the Security Trustee to enforce the security under the
Security Trust Deed, or the sanctioning by an Extraordinary Resolution of the
Relevant Noteholders of a modification of the Relevant Notes (including these
Conditions) or the provisions of any of the Transaction Documents, provided that
no modification of certain terms including, among other things, the date of
maturity of the Class A-2 Notes, or a modification which would have the effect
of altering the amount of interest payable in respect of a Class A-2 Note or
modification of the method of calculation of the interest payable or of the date
for payment of or interest payable in respect of any Class A-2 Notes, reducing
or cancelling the amount of principal payable in respect of any Class A-2 Notes
or altering the currency of payment of any Class A-2 Notes or an alteration of
the date or priority of redemption of, the Class A-2 Notes or altering the
required percentage of the aggregate Invested Amount of the Class A-2 Notes
required to consent or take any action, or an election to receive the Stated
Amount of the Notes instead of the Invested Amount in the event of a call under
Condition 5(m) "Call" or 5(n) "Redemption for Taxation or Other Reasons", or any
other matter referred to in clause 37.2 of the Note Trust Deed needing the
approval of all holders of the Class A-2 Notes (any such modification being
referred to below as a BASIC TERMS MODIFICATION) shall be effective unless
sanctioned by all of the Class A-2 Noteholders. The quorum at any meeting of
Class A-2 Noteholders for passing an Extraordinary Resolution of Class A-2
Noteholders shall be two or more persons holding or representing over 50% of the
aggregate Invested Amount of the Class A-2 Notes then outstanding or, at any
adjourned meeting, two or more persons being or representing Class A-2
Noteholders whatever the aggregate Invested Amount of the Class A-2 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
any such resolution shall be all of the Class A-2 Noteholders. An Extraordinary
Resolution and a resolution passed effecting a Basic Terms Modification passed
at any meeting of Class A-2 Noteholders shall be binding on all Class A-2
Noteholders, whether or not they are present at the meeting.
The majority required for an "EXTRAORDINARY RESOLUTION" of Class A-2 Noteholders
shall be 75% of the votes cast in respect of that Extraordinary Resolution in
accordance with the terms of the Security Trust Deed.
The Note Trust Deed permits the Note Trustee, the Manager and the Trustee to,
following the giving of notice to each Designated Rating Agency, alter, add to
or modify, by way of supplemental deed, the Note Trust Deed (including the
meeting and amendment provisions), the Conditions (subject to the proviso more
fully described in clause 37.2 of the Note Trust Deed or any other terms of that
deed or the Conditions to which it refers) or any Transaction Document 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;
(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
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(d) in the opinion of the Note Trustee, neither materially prejudicial nor
likely to be prejudicial to the interests of the Relevant Noteholders.
The Note Trustee may also, but is not obliged to, in accordance with the Note
Trust Deed and without the consent of any Class A-2 Noteholders (but not in
contravention of an Extraordinary Resolution or any resolution passed in
accordance with clause 37.2 of the Note Trust Deed), waive or authorise any
breach or proposed breach of Class A-2 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 shall not, or shall
not subject to specified conditions, be treated as such. Any such modification,
waiver, authorisation or determination shall be binding on the relevant Class
A-2 Noteholders and, if, but only if, the Note Trustee so requires, any such
modification shall be notified to the relevant Class A-2 Noteholders in
accordance with Condition 12 "Notices" as soon as practicable.
14. INDEMNIFICATION AND EXONERATION OF THE NOTE TRUSTEE AND THE SECURITY
TRUSTEE
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 security and to obtain repayment of the 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 Transaction Documents without accounting for any
profit resulting from such transactions. Except in the case of negligence, fraud
or breach of trust (in the case of the Security Trustee) or negligence, fraud or
wilful default (in the case of the Note Trustee), 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, the Mortgaged Property or any deeds or documents of title thereto, 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 behalf of the Note Trustee 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 advisers as the Note Trustee requires to assist in the
giving of that opinion or the making of that determination or calculation and
any costs and expenses payable to those advisers 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. LIMITATION OF LIABILITY OF THE ISSUER
(A) GENERAL
Clause 30 of the Master Trust Deed applies to the obligations and liabilities of
the Issuer in relation to the Notes.
(B) LIABILITY OF ISSUER LIMITED TO ITS RIGHT OF INDEMNITY
(i) The Issuer enters into the Transaction Documents and issues the Notes
only in its capacity as trustee of the Trust and in no other capacity
(except where the Transaction Documents provide otherwise). Subject to
paragraph (iii) below, a liability arising under or in connection with
the Transaction Documents, the Trust or the Notes is limited to and
can be enforced against the Issuer only to the extent to which it can
be satisfied out of the Assets and property of the Trust
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which are available to satisfy the right of the Issuer to be
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) Subject to paragraph (iii) below, no person (including any Relevant
Party) may take action against the Issuer in any capacity other than
as trustee of the Trust or seek the appointment of a receiver (except
under the Security Trust Deed), or a liquidator, an administrator or
any similar person to the Issuer or prove in any liquidation,
administration or arrangements of or affecting the Issuer.
(iii) The provisions of this Condition 15 shall 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
Default.
(iv) It is acknowledged that the Relevant Parties are or may be 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 under the
Transaction Documents) will be considered fraud, negligence or 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 or any person who has been
delegated or appointed by the Issuer in accordance with the
Transaction Documents to fulfil its obligations relating to the Trust
or by any other act or omission of a Relevant Party or any such
person.
(v) In exercising their powers under the Transaction Documents, each of
the Issuer, the Security Trustee and the Noteholders must ensure that
no attorney, agent, delegate, receiver or receiver and manager
appointed by it 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 Default of the Issuer
for the purpose of paragraph (iii) above.
(vi) In this Condition, "RELEVANT PARTIES" means each of the Manager, the
Servicer, the Calculation Agent, each Paying Agent, the Note Trustee,
the Custodian, the Basis Swap Provider, the Fixed-Floating Rate Swap
Provider, each Paying Agent, each Lead Manager, the Currency Swap
Provider and any other provider of a Support Facility.
(vii) In this Condition, "DEFAULT" means a failure by the Issuer to comply
with:
(A) an obligation which is expressly imposed on it by the terms of a
Transaction Document; or
(B) a written direction given by the Manager in accordance with a
Transaction Document (and in terms which are consistent with the
requirements of the Transaction Documents) in circumstances where
the Transaction Documents require or contemplate that the Issuer
will comply with that direction,
in each case within any period of time specified in, or contemplated
by, the relevant Transaction Document for such compliance. However, it
will not be the Default of the Issuer if the Issuer does
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not comply with an obligation or direction where the Note Trustee or
the Security Trustee directs the Issuer not to comply with that
obligation or direction.
(viii) Nothing in this Condition limits the obligations expressly imposed
on the Issuer under the Transaction Documents.
16. GOVERNING LAW
The Class A-2 Notes, and the Transaction Documents are governed by, and shall be
construed in accordance with, the laws of New South Wales, Australia except for:
(a) the Subscription Agreement and the Credit Support Annex to each of the
Class A-1 Currency Swap and the Class A-2 Currency Swap, which are governed
by English law; and
(b) the Underwriting Agreement and the administration of the Note Trust (as
defined in the Note Trust Deed), including the exercise of the Note
Trustee's powers under clause 13 of the Note Trust Deed, which are both
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, the law of the State of New York will prevail
to the extent of the inconsistency,
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Summary of Provisions Relating to the Class A-2 Notes while in Book-Entry Form
Each Class A-2 Note will initially be represented by typewritten book-entry
notes (each, a "CLASS A-2 BOOK-ENTRY NOTE"), without coupons or talons, in the
principal amount of (euro)[*]. The Class A-2 Book-Entry Notes will be registered
in the name of The Bank of New York Depositary (Nominees) Limited and deposited
with the Common Depositary in respect of the Class A-2 Notes on or about the
Closing Date. Upon deposit of a Class A-2 Book-Entry Note with the Common
Depositary for the Class A-2 Notes, Euroclear or Clearstream, Luxembourg will
credit each subscriber of the relevant Class A-2 Notes with a principal amount
of those Class A-2 Notes for which it has subscribed and paid.
The Class A-2 Book-Entry Notes will be exchangeable for definitive Class A-2
Notes in certain circumstances described below.
Each person who is for the time being shown in the Note Register as the holder
of a particular principal amount of those Class A-2 Notes will be entitled to be
treated by the Issuer and the Note Trustee as a holder of such principal amount
of those Class A-2 Notes and the expression "CLASS A-2 NOTEHOLDER" shall be
construed accordingly. Such persons will have no claim directly against the
Issuer in respect of payments due on the Class A-2 Notes which must be made by
the registered holder of the relevant Class A-2 Book-Entry Note, for so long as
such Class A-2 Book-Entry Note is outstanding.
(A) PAYMENTS
Interest and principal on each Class A-2 Book-Entry Note will be payable by
the Principal Paying Agent to the Common Depositary for the Class A-2 Notes
provided that no payment of interest may be made by the Issuer or any
Paying Agent in the Commonwealth of Australia or its territories or
possessions. Each of the persons appearing from time to time in the records
of Euroclear, or of Clearstream, Luxembourg, as the beneficial owner of a
Class A-2 Note will be entitled to receive any payment so made in respect
of that Class A-2 Note in accordance with the respective rules and
procedures of Euroclear or, as the case may be, Clearstream, Luxembourg.
A record of each payment made on a Class A-2 Book-Entry 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 is sufficient evidence unless the contrary is proved that the
payment in question has been made.
(B) EXCHANGE
A Class A-2 Book-Entry Note will be exchangeable for Class A-2 Definitive
Notes only if: (i) the principal amount of those Class A-2 Notes becomes
immediately due and payable by reason of an Event of Default (as set out in
Condition 10 "Enforcement"); or (ii) either Euroclear or Clearstream,
Luxembourg is closed for business for a continuous period of 14 days (other
than by reason of holiday, statutory or otherwise) or announces an
intention permanently to cease business; or (iii) as the result of any
amendment to, or change in, the laws or regulations of any jurisdiction or
any body politic, or government in any jurisdiction, or any minister,
department, office, commission, instrumentality, agency, board, authority
or organisation of any government or any corporation owned or controlled by
any government having power to tax or in the interpretation by a revenue
authority or a court of, or in the administration of, laws or regulations
relating to taxation which becomes effective on or after the
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Closing Date, the Issuer or any Paying Agent is or will be required to make
any deduction or withholding from any payment in respect of those Class A-2
Notes which would not be required were those Class A-2 Notes in definitive
form, then the Issuer will (at the Issuer's expense) issue those definitive
Class A-2 Notes represented by that Class A-2 Book-Entry Note in exchange
for the whole outstanding interest in that Class A-2 Book-Entry Note within
30 days after becoming aware of the occurrence of the relevant event but in
any event not prior to the expiry of 40 days after the Note Issue Date.
(C) NOTICES
So long as any Class A-2 Notes are represented by any Class A-2 Book-Entry
Note and that Class A-2 Book-Entry Note is held on behalf of Euroclear
and/or Clearstream, Luxembourg, notices to the relevant Class A-2
Noteholders may be given by delivery of the relevant notice to Euroclear
and/or Clearstream, Luxembourg for communication by them to entitled
account holders and sent to the Company Announcement Office of the Irish
Stock Exchange.
(D) CANCELLATION
Cancellation of any Class A-2 Note required by the Conditions will be
effected by reduction in the principal amount of the relevant Class A-2
Book-Entry Note.
