Exhibit 4.3
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CLASS A NOTE
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Registered CUSIP No:
No. R- ISIN No.:
Common Code:
Unless this Class A Note is presented by an authorised representative of The
Depository Trust Company, a New York corporation, ("DTC") to the Trustee (as
defined below) or its agent for registration of transfer, exchange or payment,
and any Class A 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 OF THE
CLASS A NOTE FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much
as the registered owner hereof, Cede & Co, has an interest in this Class A Note.
THE PRINCIPAL OF THIS CLASS A NOTE IS PAYABLE IN INSTALMENTS AND MAY BE SUBJECT
TO CHARGE-OFFS OR EXCHANGE AS SET FORTH BELOW, THE NOTE TRUST DEED AND IN THE
CLASS A NOTE CONDITIONS. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
CLASS A NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE OF THIS
CLASS A NOTE.
PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001 007)
(a limited liability company incorporated under the law of New South
Wales, Australia)
in its capacity as trustee ("TRUSTEE") of the Kingfisher Trust 2001-1G
(the "TRUST")
CLASS A NOTE
This Class A Note is issued by the Trustee in an initial aggregate principal
amount of US$[ ] (the "CLASS A NOTES") and is:
(a) constituted by a Note Trust Deed (the "NOTE TRUST DEED") dated May
18, 2001 made between the Trustee, ANZ Capel Court Limited (ABN 30
004 768 807) (the "TRUST MANAGER") and The Bank of New York, New
York Branch (the "NOTE TRUSTEE"); and
(b) issued subject to, and with the benefit of, amongst other things:
(i) a Master Trust Deed (the "MASTER TRUST DEED") dated 1 August
2000 made between the Trust Manager and the Trustee as amended
by deed dated May 16, 2001;
(ii) a Supplemental Deed (the "SUPPLEMENTAL DEED") dated May 17,
2001 made between (amongst others) Australia and New Zealand
Banking Group Limited (ABN 11 005 357 522), the Trust Manager,
the Trustee and P.T. Limited ("SECURITY TRUSTEE");
(iii) a Global Master Security Trust Deed (the "MASTER SECURITY
TRUST DEED") dated May 16, 2001 made between the Trustee, the
Trust Manager, the Note Trustee and the Security Trustee;
(iv) the Agency Agreement ("AGENCY AGREEMENT") dated May 18, 2001
made between the Trustee, the Note Trustee, the Trust Manager,
The Bank of New York, New York Branch as Principal Paying
Agent, Class A Note Registrar and Calculation Agent, The Bank
of New York, London Branch as London Paying Agent;
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(v) a Deed of Charge dated May 16, 2001 made between the Trustee,
the Security Trustee, the Trust Manager and the Note Trustee;
(vi) the Note Trust Deed; and
(vii) the Class A Note Conditions as set out in the Annexure to this
Class A Note (the "CLASS A NOTE CONDITIONS").
Unless defined in this Class A Note, words and phrases defined in, or
incorporated in, either or both of the Note Trust Deed and the Class A Note
Conditions have the same meaning in this Class A Note. Where there is any
inconsistency in a definition between the Note Trust Deed and the Class A Note
Conditions, the Note Trust Deed prevails.
The Trustee in its capacity as trustee of the Trust, subject to and in
accordance with this Class A Note, the Class A Note Conditions, the Agency
Agreement, the Supplemental Deed and the Note Trust Deed, promises to pay to
Cede & Co. as the registered holder of this Class A Note, or to registered
assigns of this Class A Note, the principal sum of US$[ ] (or such part of that
amount as may become repayable under the Class A Note Conditions, the
Supplemental Deed and the Note Trust Deed) on such date(s) as the principal sum
(or any part of it) becomes repayable in accordance with the Class A Note
Conditions, the Supplemental Deed and the Note Trust Deed and to pay interest in
arrears on each Payment Date on the Invested Amount of this Class A Note at
rates determined in accordance with Condition 6 of the Class A Note Conditions.
If this Class A Note is a Class A Book Entry Note and the Trustee is obliged to
issue Class A Definitive Notes under clause 3.4(a) of the Note Trust Deed, this
Class A Note will be exchangeable in whole upon its surrender at the offices of
the Class A Note Registrar as specified in the Class A Note Conditions or
notified to Class A Note Holders from time to time (or such other place as the
Note Trustee may agree) for Class A Definitive Notes and the Trustee shall
execute and procure that the Note Trustee authenticates and delivers in full
exchange for this Class A Note, Class A Definitive Notes in aggregate principal
amount equal to the then Invested Amount of this Class A Note subject to and in
accordance with clause 3.4(b) of the Note Trust Deed. The Trustee is not obliged
to issue Class A Definitive Notes until 30 days after the occurrence of an event
set out in clause 3.4(a) of the Note Trust Deed.
The Class A Definitive Notes to be issued on that exchange will be in registered
form each in the denomination of US$100,000 or integral multiples thereof. If
the Trustee fails to meet its obligations to issue Class A Definitive Notes,
this shall be without prejudice to the Trustee's obligations with respect to the
Class A Notes under the Note Trust Deed, the Master Trust Deed, the Supplemental
Deed, the Agency Agreement and this Class A Note.
Payments of interest on this Class A Note due and payable on each Payment Date,
together with the instalment of principal, if any, shall be payable in
accordance with Condition 8.1 of the Class A Note Conditions and the Agency
Agreement. If this Class A Note is a Class A Book-Entry Note such payments will
be made to the nominee of the Depository (initially, such nominee to be Cede &
Co.) and each of the persons appearing from time to time in the records of DTC
as the holder of a beneficial interest in a Class A Note will be entitled to
receive any payment so made in respect of that Class A Note only in accordance
with the respective rules and procedures of DTC. Such persons will have no claim
directly against the Trustee in respect of payments due on the Class A Notes
which must be made by the holder of this Class A Note, for so long as this Class
A Note is outstanding.
On any payment of principal and/or interest on the Class A Notes details of that
payment shall be endorsed by or on behalf of the Trustee in the Class A Note
Register and, in the case of payments of principal, the Invested Amount and the
Stated Amount of the Class A Notes shall be reduced for all
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purposes by the amount so paid and endorsed in the Class A Note Register. Any
such record shall be prima facie evidence that the payment in question has been
made.
This Class A Note shall not become valid for any purpose unless and until the
Certificate of Authentication attached has been signed by an Authorised Person
or other duly appointed representatives of the Note Trustee.
This Class A Note is governed by, and shall be construed in accordance with, the
laws of the New South Wales, Australia.
If this Class A Note is a Class A Book-Entry Note, this Class A Note is a global
note.
IN WITNESS the Trustee has caused this Class A Note to be signed manually by a
person duly authorised on its behalf.
PERPETUAL TRUSTEE COMPANY LIMITED by:
.........................................................
Authorised Person/duly appointed representative
IMPORTANT NOTES:
Neither the Trust Manager nor the Trustee is under any obligation at any time to
repurchase any Class A Notes from Class A Note Holders.
This Class A Note is not a certificate of title and the Class A Note Register on
which these Class A Notes are registered is the only conclusive evidence of the
title of the abovementioned person to the Class A Notes.
The Trustee's liability is limited in accordance with Condition 12. The Trustee
issues this Class A Note only in its capacity as trustee of the Trust and in no
other capacity. A liability arising under or in connection with the Trust under
the Master Trust Deed, the Supplemental Deed, the Note Trust Deed, this Class A
Note or any other Transaction Document is limited to and can be enforced against
the Trustee only to the extent to which it can be satisfied out of the Assets of
the Trust out of which the Trustee is actually indemnified for the liability.
This limitation of the Trustee's liability will not apply to any obligation or
liability of the Trustee to the extent that it is not so satisfied because under
any Transaction Document in relation to the Trust or by operation of law there
is a reduction in the extent of the Trustee's indemnification out of the Assets
of the Trust as a result of any fraud, negligence or wilful default on the part
of the Trustee. Subject to the terms of the Transaction Documents, the Trustee
will have no liability for any act or omission of the Trust Manager or of any
other person.
Transfers of the Class A Notes must be pursuant to the annexed form of
assignment and otherwise in accordance with clause 12 of the Agency Agreement.
None of the Trust Manager or Australia and New Zealand Banking Group Limited
(the "BANK") as the Seller, Servicer and Custodian, or any other affiliate of
the Bank or the Trustee in its personal capacity or as trustee of any other
trust guarantees the payment or repayment of any principal, interest or other
amounts owing in respect of the Class A Notes.
The Class A Notes do not represent deposits or other liabilities of the Bank.
The holding of the Class A Notes is subject to investment risk, including
possible delays in payment and loss of income and principal invested. No party
to the Transaction Documents for the Trust, or any affiliate of any
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of them, stand in any way behind the capital value and/or performance of the
Class A Notes, or the Assets held by the Trust.
ASSIGNMENT
Social Security or taxpayer I.D., or other identifying number of assignee:
For value received, the undersigned hereby sells, assigns and transfer unto
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(name and address of assignee)
the within Class A Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________________, attorney to transfer said Class
A Note on the books kept for registration thereof, with full power of
substitution in the premises.
o_____Dated: *
Signature Guaranteed:
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Class A Note
Registrar, which requirements include
membership or participation in STAMP or
such other "signature guarantee program"
as may be determined by the Class A Note
Registrar in addition to, or in
substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934,
as amended.
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* NOTE: The signatures of this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class A Note in every
particular without alteration, enlargement or any change whatsoever.
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CERTIFICATE OF AUTHENTICATION
This Class A Note is authenticated by The Bank of New York, New York Branch as
Note Trustee and until so authenticated shall not be valid for any purpose.
THE BANK OF NEW YORK, NEW YORK BRANCH by:
...............(sgd.) Xxxxx Xxxxxxx..........
Authorised Person/duly appointed representative
Dated: [ ] 2001
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ANNEXURE
The following, subject to amendments, are the terms and conditions of the Class
A Notes, substantially as they will appear on the reverse of any Class A Notes.
Class A Notes will initially be issued in book entry form. Class A Notes in
definitive form will only be issued in limited circumstances. While the Class A
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 Notes in
definitive form.
1 GENERAL
The issue of the US$[ ] Class A Mortgage Backed Floating Rate Notes due
2032 ("CLASS A NOTES"), the A$[ ] Class B Mortgage Backed Floating Rate
Notes due 2032 ("CLASS B NOTES") (together the "Notes") by Perpetual
Trustee Company Limited, ABN 42 000 001 007, ("PERPETUAL") in its capacity
as trustee of the Kingfisher Trust 2001-1G ("TRUST") (Perpetual in such
capacity, the "TRUSTEE") was authorized by a resolution of the board of
directors of Perpetual passed on or about May 22, 2001.
The Class A Notes:
(a) are constituted by the Kingfisher Trust 2001-1G Note Trust
Deed ("NOTE TRUST DEED") dated May 18, 2001 made between the
Trustee, ANZ Capel Court Limited ("TRUST MANAGER") and The
Bank of New York, New York Branch ("NOTE TRUSTEE") as trustee
for the several persons who are from time to time the holders
of the Class A Notes (each a "CLASS A NOTE HOLDER" and
together the "CLASS A NOTE HOLDERS"); and
(b) are issued subject to, and with the direct or indirect benefit
of, amongst other things:
(i) a Master Trust Deed ("MASTER TRUST DEED") dated August
1, 2000, as amended by deed dated May 16, 2001, made
between the Trust Manager and Perpetual;
(ii) a Supplemental Deed ("SUPPLEMENTAL DEED") dated May 17,
2001 made between Australia and New Zealand Banking
Group Limited, ABN 11 005 357 522 (generally the "BANK"
and in its respective capacities under the Supplemental
Deed, the "SELLER", the initial "SERVICER" and the
"CUSTODIAN"), the Trust Manager, the Trustee, P.T.
Limited, ABN 67 004 454 666 ("SECURITY TRUSTEE") and
certain other parties;
(iii) a Global Master Security Trust Deed ("MASTER SECURITY
TRUST Deed") dated May 16, 2001 made between the
Trustee, the Trust Manager, the Note Trustee and the
Security Trustee and a Deed of Charge ("Deed of Charge")
dated May 16, 2001 between the same parties;
(iv) the Note Trust Deed; (v) these terms and conditions
("CLASS A NOTE CONDITIONS"); (vi) the Agency Agreement
(as defined below); and
(c) have certain defined terms, the meanings of which are
contained in a Master Definitions Schedule ("DEFINITIONS
SCHEDULE") dated August 1, 2000, as amended by deed dated May
16, 2001, made between the Trust Manager, the Trustee and the
Security Trustee.
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Certain provisions of these Class A Note Conditions (including the
definitions herein) are summaries of the Transaction Documents (as defined
in CONDITION 3) and are subject to the detailed provisions of the
Transaction Documents, a copy of each of which may be inspected as
indicated in CONDITION 3.
Payments of interest and principal, and the calculation of certain amounts
and rates, under these Class A Note Conditions in respect of the Class A
Notes will be made pursuant to an Agency Agreement ("AGENCY AGREEMENT")
dated May 16, 2001 made between the Trustee, the Note Trustee, the Trust
Manager, The Bank of New York, New York Branch, as the initial principal
paying agent and the calculation agent ("PRINCIPAL PAYING AGENT" and
"CALCULATION AGENT") (together with any other paying agent appointed from
time to time under the Agency Agreement, "PAYING AGENTS") and as the
initial Class A note registrar ("CLASS A NOTE REGISTRAR") and The Bank of
New York, London Branch as initial London paying agent.
The Trustee has entered into two ISDA Master Agreements in relation to
currency risk (each a "CURRENCY SWAP AGREEMENT") with Australia and New
Zealand Banking Group Limited and Citibank N.A. (each a "CURRENCY SWAP
PROVIDER") and the Trust Manager, each together with a schedule and a
confirmation relating thereto in respect of the Class A Notes (each such
confirmation documenting a "CURRENCY SWAP").
The Trustee has entered into an ISDA Master Agreement in relation to basis
and interest rate risk with Australia and New Zealand Banking Group
Limited (the "BASIS SWAP PROVIDER" and the "FIXED RATE SWAP PROVIDER"),
together with a schedule and a confirmation relating thereto in respect of
the Class A Notes (each such confirmation documenting a "BASIS SWAP" or a
"FIXED RATE SWAP").
The Class A Notes will on issue be listed on the official list of the UK
Listing Authority in its capacity as competent authority pursuant to Part
IV of the FS Act and admitted to trading by the London Stock Exchange.
"US$" means the lawful currency for the time being of the United States of
America and "A$" means the lawful currency for the time being of the
Commonwealth of Australia.
2 INTERPRETATION AND PAYMENT CALCULATIONS
2.1 INTERPRETATION
In these Class A Note Conditions, unless the context otherwise requires:
(a) a reference to a party includes that party's executors,
administrators, successors, substitutes and assigns, including any
person replacing that party by way of novation;
(b) a reference to any regulation or to any section or provision thereof
includes any statutory modification or re-enactment or any statutory
provision substituted therefor and all ordinances, by-laws,
regulations and other statutory instruments issued thereunder;
(c) a reference to any document or agreement is a reference to such
document or agreement as amended, varied, supplemented or replaced
from time to time;
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(d) words importing the singular include the plural (and vice versa);
(e) words denoting a given gender include all other genders; and
(f) headings are for convenience only and do not affect the
interpretation of these Class A Note Conditions.
2.2 PAYMENT CALCULATIONS
Except as expressly provided otherwise in these Class A Note Conditions,
all payments in a given currency under these Class A Note Conditions will
be rounded down to the nearest cent in that currency and all other
calculations and percentages determined hereunder will be rounded down to
the nearest 4 decimal places.
3 CLASS A NOTE HOLDERS BOUND
The Class A Note Holders are bound by, and are deemed to have notice of,
all the provisions of the Transaction Documents. A copy of each
Transaction Document is available for inspection, upon reasonable prior
notice, during normal business hours on New York Business Days at the
registered office for the time being of the Note Trustee (which is, at the
date of these Class A Note Conditions, 000 Xxxxxxx Xxxxxx, 00X, Xxx Xxxx,
Xxx Xxxx, 00000).
"TRANSACTION DOCUMENTS" means the Master Trust Deed insofar as it relates
to the Trust, the Definitions Schedule insofar as it applies to the Trust,
the Notice of Creation of Trust, the Supplemental Deed, each Support
Facility, the Master Security Trust Deed insofar as it applies to the
Trust, the Deed of Charge, the Underwriting Agreement, the Currency Swap
Agreement, the Basis Swap, the Fixed Rate Swap, the Note Trust Deed, each
Note, the Master Servicer Deed insofar as it applies to the Trust, the
Agency Agreement, the Sale Notice, each Primary Mortgage Insurance Policy,
the Pool Insurance Policy, the PMI Guarantee, the RSA Payment Deed, the
Mortgage Insurance Premium Policy and any other document which is agreed
by the Trust Manager and the Trustee to be a Transaction Document in
relation to the Trust.
"SUPPORT FACILITY", "NOTICE OF CREATION OF TRUST", "MASTER SERVICER DEED"
"UNDERWRITING AGREEMENT", "SALE NOTICE", "PRIMARY MORTGAGE INSURANCE
POLICY", "POOL INSURANCE POLICY", "PMI GUARANTEE", "RSA PAYMENT DEED" AND
"MORTGAGE INSURANCE PREMIUM POLICY" have the same respective meanings as
in the Supplemental Deed or the Definitions Schedule, as the case may be.
4 FORM, DENOMINATION AND TITLE OF AND TO, AND THE ISSUE OF
DEFINITIVE, CLASS A NOTES
4.1 FORM AND DENOMINATION
The Class A Notes will be issued in registered form, without interest
coupons, in minimum denominations of US$100,000 and integral multiples of
$US10,000 in excess thereof. The initial principal amount of each Class A
Note ("INITIAL INVESTED AMOUNT" in relation to that Class A Note) will be
stated on its face.
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4.2 TITLE
Title to the Class A Notes will only be shown on, and will only pass by
registration in, the register ("CLASS A NOTE REGISTER") maintained by the
Class A Note Registrar in accordance with the Agency Agreement. Class A
Notes may be transferred, or may be exchanged for other Class A Notes in
any authorized denominations and a like Invested Amount (as defined in
CONDITION 6.4), upon the surrender of the Class A Notes to be transferred
or exchanged, duly endorsed with or accompanied by a written instrument of
transfer and exchange duly executed (with such execution guaranteed by an
"eligible guarantor institution" meeting the requirements of the Class A
Note Registrar) and the provision of such other documents as the Class A
Note Registrar may reasonably require, to a specified office of the Class
A Note Registrar (as set out at the end of these Class A Note Conditions
or otherwise notified to Class A Note Holders) subject to and in
accordance with the Agency Agreement. No service charge may be made for
any transfer or exchange, but the Class A Note Registrar may require
payment by the Class A Note Holder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
transfer or exchange of Class A Notes. The Class A Note Registrar need not
register transfers or exchanges of Class A Notes for a period of 30 days
preceding the due date for any payment with respect to the Class A Notes
or for a period, not exceeding 30 days, specified by the Note Trustee
prior to any meeting, which includes Class A Note Holders, under the
Master Trust Deed or the Master Security Trust Deed, as applicable. The
Trustee, the Note Trustee, the Trust Manager, the Calculation Agent and
each Paying Agent may accept the correctness of the Class A Note Register
and any information provided to it by the Class A Note Registrar and is
not required to enquire into its authenticity. None of the Trustee, the
Note Trustee, the Trust Manager, the Calculation Agent, any Paying Agent
or the Class A Note Registrar is liable for any mistake in the Class A
Note Register or in any purported copy except to the extent that the
mistake is attributable to its own fraud, gross negligence or willful
default.
5 STATUS, SECURITY AND RELATIONSHIP BETWEEN THE CLASS A NOTES AND
THE CLASS B NOTES
5.1 STATUS OF THE SECURITIES
The Class A Notes are direct, secured (as described in CONDITION 5.2)
limited recourse (as described in CONDITION 5.3) obligations of the
Trustee.
The Class B Notes are direct, secured, limited recourse, subordinated
obligations of the Trustee.
5.2 SECURITY
The obligations of the Trustee under the Class A Notes are (amongst the
other payment obligations of the Trustee comprising the Secured Moneys (as
defined below)) secured, pursuant to the Master Security Trust Deed and
the Deed of Charge, in favor of the Security Trustee as trustee for the
Secured Creditors (as defined below), by a fixed and floating charge
("CHARGE") over all of the assets and property, real and personal
(including choses in action and other rights), tangible and intangible,
present or future, of the Trust ("SECURED PROPERTY"). The Secured Property
includes an equitable interest in certain housing loans, and related
mortgages, acquired by the
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Trustee from the Seller. The Charge is a first ranking security in respect
of the Secured Property.
"SECURED CREDITORS" and "SECURED MONEYS" have the same respective meanings
as in the Deed of Charge.
5.3 LIMITED RECOURSE
The liability of the Trustee to make interest and principal payments on
the Class A Notes is limited, except in certain circumstances described in
CONDITION 12, to the assets and property of the Trust available for this
purpose in accordance with, and subject to the order of priority of
payments in, the Supplemental Deed.
The net proceeds of realization of the assets and property of the Trust
(including following an Event of Default) may be insufficient to pay all
amounts due to the Class A Note Holders and any other amounts ranking in
priority to or equally with amounts due to the Class A Note Holders.
Except in the limited circumstances described in CONDITION 12, the assets
of Perpetual held in its personal capacity will not be available for
payment of any shortfall arising and all claims in respect of such
shortfall will be extinguished. The assets of Perpetual held in its
capacity as trustee of any other trust (including any other trust
established pursuant to the Master Trust Deed) will not in any
circumstances be available to pay any amounts due to Class A Note Holders.
None of the Bank, the Trust Manager, the Seller, the Fixed Rate Swap
Provider, the Basis Swap Provider, the Note Trustee, the Security Trustee,
the Principal Paying Agent, the London Paying Agent, the Calculation Agent
or any Currency Swap Provider, amongst others, have any obligation to any
Class A Note Holder for payment of any amount owed by the Trustee in
respect of the Class A Notes.
"EVENT OF DEFAULT" has the meaning given to it in the Deed of Charge.
5.4 NO PREFERENCE WITHIN THE CLASS A NOTES
The Class A Notes rank equally and ratably and without any preference or
priority among themselves.
5.5 SUBORDINATION OF CLASS B NOTES
Prior to the occurrence of an Event of Default, the payment of interest in
relation to the Class B Notes is subordinated to, amongst other things,
the payment of interest on the Class A Notes in accordance with the
Supplemental Deed; and the repayment of the principal on the Class B Notes
is, to a certain extent, subordinated to, amongst other things, the
repayment of the principal on the Class A Notes in accordance with the
calculations to be made of the amounts to be paid by the Trustee under the
Supplemental Deed (in the case of the Class A Notes, the subordination of
the Class B Notes is in respect of the relevant A$ amounts payable by the
Trustee to the Currency Swap Providers which in turn will be applied to
meet the payment of interest and the repayment of principal on the Class A
Notes as explained, respectively, in CONDITIONS 6.9 and 7.2).
Following the occurrence of an Event of Default, in the distribution of
the net proceeds (if any) arising from the enforcement of the Charge, any
payment in relation
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to the Class B Notes will be subordinated to, amongst other things,
payment of all amounts due in relation to the Class A Notes (the amounts
owing in respect of the Class A Notes will, for the purposes of
determining distributions to, and allocations between, the Class A Note
Holders and the Class B Note Holders (together, the "NOTE HOLDERS") and
other Secured Creditors, be converted into A$ in accordance with the
Master Security Trust Deed).
5.6 THE SECURITIES RANK EQUALLY EXCEPT AS PROVIDED IN THE TRANSACTION
DOCUMENTS
The Class A Notes and the Class B Notes enjoy the same rights,
entitlements, benefits and restrictions except as expressly provided in
the Transaction Documents.
6 INTEREST
6.1 PERIOD OF ACCRUAL
Each Class A Note accrues interest from (and including) June 4, 2001
("CLOSING DATE") and ceases to accrue interest on (but excluding) the
earliest of:
(a) the date on which the Stated Amount (as hereinafter defined) of the
Class A Note is reduced to zero and all accrued but previously
unpaid interest is paid in full (including but not limited to the
circumstances described in CONDITIONS 7.3 and 7.4);
(b) the date on which the Class A Note is redeemed or repaid in full in
accordance with CONDITION 7 (other than CONDITION 7.6), unless upon
such date, payment is improperly withheld or refused, in which case
the Class A Note will continue to bear interest in accordance with
this CONDITION 6 (both before and after judgment) until (but
excluding) whichever is the earlier of:
(i) the day on which all sums due in respect of the Class A Note
up to that day are received by or on behalf of the Class A
Note Holder; and
(ii) the seventh day after notice is given to the Class A Note
Holder (either in accordance with CONDITION 11.1 or
individually) that, where required by CONDITION 8.2, such
payment will be made, provided that upon such presentation
payment is in fact made;
(c) the date on which the Class A Note is deemed to be redeemed in
accordance with CONDITION 7.6;
(d) the date on which the Class A Note Holder renounces all of its
rights to any amounts payable under or in respect of that Class A
Note; and
(e) the Final Maturity Date (as defined in CONDITION 7.1).
"STATED AMOUNT" in relation to:
(a) a Class A Note on any Determination Date means an amount equal to
the Initial Invested Amount of that Class A Note less the sum of:
(i) the aggregate of all amounts previously paid in relation to
that Class A Note on account of principal pursuant to
CONDITION 7.2(C); less
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(ii) the amount to be paid in relation to that Class A Note on
account of principal on the next Payment Date pursuant to
CONDITION 7.2(C); less
(iii) the amount of any Principal Charge-Off to be allocated to that
Class A Note on that Determination Date which will not be
reimbursed on the immediately following Payment Date in
accordance with the Supplemental Deed; less
(iv) (without double counting any Principal Charge-Offs) any
Carryover Principal Charge-Offs in respect of that Class A
Note which have not been reimbursed on or before the
immediately following Payment Date in accordance with the
Supplemental Deed; and
(b) a Class B Note on any Determination Date, has the meaning given to
it in the Supplemental Deed.
"DETERMINATION DATE", "INITIAL INVESTED AMOUNT", "PRINCIPAL CHARGE-OFF"
and "CARRYOVER PRINCIPAL CHARGE-OFFS" have the meanings given to those
words in the Supplemental Deed.
6.2 INTEREST PERIODS
The period that a Class A Note accrues interest in accordance with
CONDITION 6.1 is divided into periods (each an "INTEREST PERIOD"). The
first Interest Period for a Class A Note commences on (and includes) the
Closing Date and ends on (but does not include) the first Payment Date
thereafter. Each succeeding Interest Period for a Class A Note commences
on (and includes) a Payment Date and ends on (but does not include) the
next Payment Date. The final Interest Period for a Class A Note ends on
(but does not include) the date on which interest ceases to accrue on the
Class A Note pursuant to CONDITION 6.1.
"BUSINESS DAY" means any day (other than a Saturday, a Sunday or a public
holiday) on which banks are open for business in Melbourne and Sydney,
Xxxxxxxxx, Xxxxxx, Xxxxxx Xxxxxxx xxx Xxx Xxxx Xxxx, Xxxxxx Xxxxxx of
America.
"PAYMENT DATE" means the 20th day of each of September, December, March
and June in each year [(or, if such a day is not a Business Day, the next
Business Day)]. The first Payment Date is September 20, 2001 [(or, if that
day is not a Business Day, the next Business Day)].
6.3 INTEREST RATE FOR THE CLASS A NOTES
The rate of interest ("INTEREST RATE") payable from time to time in
respect of a Class A Note and an Interest Period is the aggregate of
USD-LIBOR-BBA (as hereinafter defined) for that Interest Period and the
Margin (as hereinafter defined) in relation to the Class A Note.
"USD-LIBOR-BBA" for an Interest Period will be calculated by the
Calculation Agent in accordance with paragraph (a) (or, if applicable,
paragraph (b)) below (subject, in the case of the first Interest Period,
to paragraph (c) below):
(a) on the second Banking Day before the beginning of the Interest
Period (a "RATE SET DATE") the Calculation Agent will determine the
rate "USD-LIBOR-BBA" as
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the applicable Floating Rate Option under the Definitions of the
International Swaps and Derivatives Association, Inc. ("ISDA") (the
"ISDA DEFINITIONS") being the rate applicable to any Interest Period
for three-month deposits in US dollars in the London inter-bank
market which appears on the Rate Page (as hereinafter defined) as of
11.00am, London time, on the Rate Set Date;
(b) if such rate does not appear on the Rate Page at that time, the
USD-LIBOR-BBA for that Interest Period will be determined as if the
Trustee and the Calculation Agent had specified "USD-LIBOR-Reference
Banks" as the applicable Floating Rate Option under the ISDA
Definitions. For this purpose "USD-LIBOR-Reference Banks" means that
the rate for an Interest Period will be determined on the basis of
the rates at which deposits in US dollars are offered by the
Reference Banks (being four major banks in the London interbank
market determined by the Calculation Agent) at approximately
11.00am, London time, on the Rate Set Date to prime banks in the
London 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 London office of each of the Reference Banks
to provide a quotation of its rate. If at least two such quotations
are provided, the USD-LIBOR-BBA for that Interest Period will be the
arithmetic mean of the rates quoted by not less than two major banks
in New York City, selected by the Calculation Agent and the Currency
Swap Providers, at approximately 11.00am, New York City time, on
that Rate Set Date for loans in US dollars to leading European banks
for a period of three months commencing on the first day of the
Interest Period and in a representative amount. If no such rates are
available in New York City, then the USD-LIBOR-BBA for such Interest
Period will be the most recently determined rate in accordance with
paragraph (a); and
(c) the USD-LIBOR-BBA for the first Interest Period will be the rate
determined by linear interpolation calculated in accordance with
paragraph (a) or, if applicable, paragraph (b) above with reference
to the duration of the first Interest Period.
"BANKING DAY" means any day on which banks are open for business in London
and New York City, other than a Saturday, a Sunday or a public holiday in
London or New York City.
"RATE PAGE" means Telerate Page 3750 or, if Telerate Page 3750 ceased to
quote the relevant rate, such other page, section or part of Telerate as
quotes the relevant rate and is selected by the Calculation Agent or, if
there is no such page, section or part of such other page, section or part
of a different screen information service as quotes the relevant rate
selected by the Calculation Agent and approved by the Note Trustee.
"MARGIN" in relation to a Class A Note means, subject to the following:
(a) for the period from, and including, the Closing Date to, but
excluding, the Payment Date in September 2008, [ ]% per annum; and
(b) for the period from, and including, the Payment Date in September
2008 to, but excluding, the date on which that Class A Note ceases
to accrue interest in accordance with CONDITION 6.1, [ ]% per annum.
If on or after the Payment Date in September 2008 the Trustee, at the
direction of the Trust Manager, proposes to exercise its option to redeem
the Notes at their Stated
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Amount in accordance with CONDITION 7.3 on a Payment Date but is unable to
do so because, following a meeting of Note Holders convened under the
Master Trust Deed by the Trust Manager for this purpose, the Note Holders
have not approved by an Extraordinary Resolution (as defined in CONDITION
10.3) the redemption of the Class A Notes at their Stated Amount, then the
Margin in relation to each Class A Note from, and including, that Payment
Date to, but excluding, the date on which that Class A Note ceases to
accrue interest in accordance with CONDITION 6.1, will remain at, or
revert to, the Margin applying at the Closing Date.
There is no maximum or minimum Interest Rate for the Class A Notes.
6.4 CALCULATION OF INTEREST ON THE CLASS A NOTES
Interest on each Class A Note for an Interest Period (the "INTEREST
AMOUNT") is calculated by applying the Interest Rate for that Class A Note
for that Interest Period to the Invested Amount of that Class A Note on
the first day of the Interest Period (after taking into account any
reductions in the Invested Amount of that Class A Note on that day), by
then multiplying such product by the actual number of days in the Interest
Period divided by 360 and rounding the resultant figure down to the
nearest cent.
If any Interest Amount is not paid on the date when it is due and payable,
then such unpaid Interest Amount will accrue interest in accordance with
these Class A Note Conditions until paid in full.
"INVESTED AMOUNT" in relation to a Class A Note means, on any
Determination Date, the Initial Invested Amount of that Class A Note less
the aggregate of all amounts previously paid, and to be paid on the next
Payment Date, in relation to that Class A Note on account of principal
pursuant to Condition 7.2(c).
6.5 DETERMINATION OF INTEREST RATE AND INTEREST AMOUNT
The Calculation Agent will, as soon as practicable after 11.00am (London
time or, if applicable, New York City time) on each Rate Set Date,
determine the Interest Rate in relation to the Class A Notes, and
calculate the Interest Amount, for the immediately succeeding Interest
Period in accordance with, respectively, Conditions 6.3 and 6.4. The
determination of the Interest Rate, and the calculation of the Interest
Amount, by the Calculation Agent in accordance with, respectively,
Conditions 6.3 and 6.4 will (in the absence of fraud, gross negligence or
willful default) be final and binding upon all parties.
6.6 NOTIFICATION AND PUBLICATION OF INTEREST RATE AND INTEREST AMOUNT
The Calculation Agent will cause the Interest Rate, the Interest Amount
and the Principal Amount (as defined in CONDITION 7.2(C)) for each
Interest Period, and the date of the next Payment Date, to be notified to
the Trustee, the Trust Manager, the Note Trustee, the Currency Swap
Providers, the Paying Agents and the United Kingdom Listing Authority ("UK
LISTING AUTHORITY") (for so long as the Class A Notes are listed on the
Official List of the UK Listing Authority and admitted to trading by the
London Stock Exchange, plc ("LONDON STOCK EXCHANGE")) on or as soon as
practical after the Calculation Agent has determined the Interest Rate and
calculated the Interest Amount or on such earlier date as the London Stock
Exchange
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or the UK Listing Authority (for so long as the Class A Notes are listed
on the Official List of the UK Listing Authority and admitted to trading
by the London Stock Exchange) and will cause the same to be published in
accordance with CONDITION 11 as soon as possible after that notification.
The Interest Amount and the Payment Date may subsequently be amended (or
appropriate alternative arrangements made by way of adjustment) without
notice in the event of an extension or shortening of the Interest Period.
If following the occurrence of an Event of Default (as defined in
CONDITION 9.1), the Security Trustee declares in accordance with the
Master Security Trust Deed that the Class A Notes are immediately due and
payable, the Interest Rate in respect of the Class A Notes will
nevertheless continue to be calculated by the Calculation Agent in
accordance with this CONDITION 6.6, but no publication of the Interest
Rate so calculated needs to be made unless the Note Trustee otherwise
requires.
6.7 DETERMINATION OR CALCULATION BY THE NOTE TRUSTEE
If the Calculation Agent at any time for any reason does not determine the
Interest Rate in respect of the Class A Notes, or calculate the Interest
Amount, in accordance with this Condition 6, the Note Trustee will do so
and each such determination or calculation by the Note Trustee will be as
if made by the Calculation Agent. In doing so, the Note Trustee will apply
the foregoing provisions of this CONDITION 6, with any necessary
consequential amendments, to the extent that it can and in all other
respects it will do so in such a manner as it considers to be fair and
reasonable in all the circumstances.
6.8 CALCULATION AGENT
The Trustee will procure that, for so long as any of the Class A Notes
remain outstanding, there will at all times be a Calculation Agent. The
Trust Manager may, with the prior written approval of the Note Trustee and
the Trustee, terminate the appointment of the Calculation Agent at any
time by giving not less than 45 days' notice in writing to, amongst
others, the Calculation Agent. Notice of that termination will be given by
the Trustee to the Class A Note Holders in accordance with CONDITION 11.1.
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
Trustee, at the direction of the Trust Manager, will appoint a successor
Calculation Agent to act as such in its place, provided that neither the
resignation nor removal of the Calculation Agent will take effect:
(a) until a successor approved by the Note Trustee and the Trustee has
been appointed;
(b) if as a result there would cease to be Agents as required by these
Class A Note Conditions; and
(c) provided further that there must at all times be a Paying Agent in
London.
Notice of the appointment of the successor shall be given by the Trustee
to the Class A Note Holders in accordance with CONDITION 11[.1]. The
initial Calculation Agent and its specified office are set out at the end
of these Class A Note Conditions.
"AGENT" and "PAYING AGENT" have the meanings given to them in the
Definitions Schedule.
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6.9 PAYMENT OF THE INTEREST AMOUNT
The Interest Amount for each Interest Period in relation to a Class A Note
is payable in arrears in US$ on the relevant Payment Date. On each Payment
Date prior to the occurrence of an Event of Default, the Trustee must (on
the direction of the Trust Manager):
(a) to the extent that there are funds available for this purpose in
accordance with the Supplemental Deed pay, in accordance with the
directions of the Trust Manager, the A$ Class A Interest Amount
(defined below) in relation to that Payment Date to the Currency
Swap Providers in accordance with each Currency Swap;
(b) to the extent of the payment received under paragraph (a) above,
direct each Currency Swap Provider to pay the interest due on the
Class A Notes on each Payment Date to the Paying Agents in
accordance with the Agency Agreement and each Currency Swap; and
(c) direct the Principal Paying Agent to pay the interest due on the
Class A Notes from the amounts received from the Currency Swap
Providers ratably amongst the Class A Notes based on their Invested
Amounts towards the Interest Amount in relation to each Class A Note
in relation to the relevant Interest Period in accordance with, and
subject to, these Class A Note Conditions and the Agency Agreement.
"A$ CLASS A INTEREST AMOUNT" has the same meaning as in the Supplemental
Deed.
7 REDEMPTION
7.1 FINAL REDEMPTION OF THE CLASS A NOTES
Unless previously redeemed (or deemed to be redeemed) in full, the Trustee
will redeem the Class A Notes at their then Stated Amount, together with
all then accrued but unpaid interest, on the Payment Date occurring in
September 2032 ("FINAL MATURITY DATE").
7.2 PART REDEMPTION OF CLASS A NOTES
Subject to CONDITIONS 7.3, 7.4 and 7.6, on each Payment Date prior to the
occurrence of an Event of Default, until the Stated Amount of the Class A
Notes, together with all then accrued but unpaid interest, is reduced to
zero, the Trustee must (on the direction of the Trust Manager):
(a) pay, in accordance with the directions of the Trust Manager, the A$
Class A Principal (if any) payable in relation to that Payment Date
to the Currency Swap Providers in accordance with each Currency
Swap;
(b) to the extent of the payment received under paragraph (a) above,
direct each Currency Swap Provider to pay on each Payment Date to
the Paying Agents in accordance with the Agency Agreement the US$
equivalent of the amount of the A$ Class A Principal (such US$
equivalent of the A$ Class A Principal Amount being the "CLASS A
PRINCIPAL AMOUNT") received by the Currency Swap Providers from the
Trustee on that Payment Date; and
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(c) direct the Principal Paying Agent to pay the Class A Principal
Amount from the amounts received from the Currency Swap Providers
ratably amongst the Class A Notes towards the repayment of the
Stated Amount of the Class A Notes in accordance with, and subject
to, these Class A Note Conditions and the Agency Agreement
("PRINCIPAL AMOUNT"). Such a payment towards the Stated Amount on a
Class A Note will constitute a redemption of the Class A Note in
part to the extent of such repayment and, upon such repayment, the
obligations of the Trustee with respect to the Class A Note will be
discharged to the extent of such repayment.
"A$ CLASS A PRINCIPAL" has the same meaning as in the Supplemental Deed.
7.3 CALL OPTION
The Trustee will, subject to the other provisions of this CONDITION 7,
when directed by the Trust Manager (at the Trust Manager's option), redeem
all, but not some only, of the Notes at their then Invested Amount,
subject to the following, together with all accrued but unpaid interest in
respect of the Notes to (but excluding) the date of redemption, on any
Payment Date falling on or after the earlier of:
(a) the Payment Date falling in September 2008; and
(b) the Payment Date on which the aggregate Outstanding Balance of all
Housing Loans referable to the Purchased Receivables (calculated as
at the end of the immediately preceding Collection Period) is less
than 10% of the aggregate Outstanding Balance of all Housing Loans
referable to the Purchased Receivables on the Closing Date,
each a "CALL OPTION DATE".
Notwithstanding the foregoing, the Trustee may redeem the Notes at their
Stated Amount on a Call Option Date, instead of at their Invested Amount,
together with accrued but unpaid interest in respect of the Notes to (but
excluding) the date of redemption, if so approved by an Extraordinary
Resolution (as defined in CONDITION 10.3) of the Note Holders.
However, the Trustee will not redeem the Notes unless it is in a position
on the relevant Payment Date to repay the then Invested Amounts or the
Stated Amounts, as required, of the Notes together with all accrued but
unpaid interest to (but excluding) the date of redemption and to discharge
all its liabilities in respect of amounts which are required under the
Master Security Trust Deed and the Supplemental Deed to be paid in
priority to or equally with the Notes as if the Deed of Charge in respect
of the Trust were enforced.
The Trustee will give not more than 60 nor less than 45 days' notice
(which will be irrevocable) of the Payment Date on which a proposed
redemption under this CONDITION 7.3 will occur to the Seller, the Note
Trustee, the Principal Paying Agent, the Class A Note Registrar, the
Calculation Agent and the Class A Note Holders in accordance with
CONDITION 11.1.
"OUTSTANDING BALANCE", "COLLECTION PERIOD", "PURCHASED RECEIVABLES" and
"HOUSING LOANS" have the same respective meanings given to them in the
Definitions Schedule.
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7.4 REDEMPTION FOR TAXATION OR OTHER REASONS
If the Trust Manager satisfies the Trustee and the Note Trustee
immediately prior to giving the direction referred to below that by virtue
of a change in law of the Commonwealth of Australia or any of its
political subdivisions or any of its authorities or any other jurisdiction
to which the Trustee becomes subject (a "RELEVANT JURISDICTION") or a
change in the application or official interpretation thereof, from that in
effect on the Closing Date, either:
(a) on the next Payment Date the Trustee will be required to deduct or
withhold from any payment of principal or interest in respect of the
Notes including corresponding payments under any 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 a Relevant Jurisdiction;
or
(b) on the next Payment Date the total amount payable in respect of
interest in relation to any of the Housing Loans for a Collection
Period ceases to be receivable (whether or not actually received) by
the Trustee by reason of any present or future taxes, duties,
assessments or governmental charges of whatever nature imposed,
levied, collected, withheld or assessed by a Relevant Jurisdiction,
and, in each case, such obligation cannot be avoided by the Trustee taking
reasonable measures available to it, the Trustee must, when so directed by
the Trust Manager (at the Trust Manager's option), redeem all, but not
some only, of the Notes on any subsequent Payment Date at their then
Invested Amount (without double counting), subject to the following,
together with accrued but unpaid interest in respect of the Notes to (but
excluding) the date of redemption. Notwithstanding the foregoing, the
Trustee may redeem the Notes at their Stated Amount, instead of at their
Invested Amount (without double counting), together with accrued but
unpaid interest in respect of the Notes to (but excluding) the date of
redemption, if so approved by an Extraordinary Resolution (as defined in
CONDITION 10.3) of the Note Holders.
The Trust Manager will not direct the Trustee to, and the Trustee will
not, so redeem the Notes unless the Trustee is in a position on such
Payment Date to repay in respect of the Notes their then Invested Amount
or Stated Amount (without double counting), as required, together with all
accrued but unpaid interest to (but excluding) the date of redemption and
to discharge all its liabilities in respect of amounts which are required
under the Master Security Trust Deed and the Supplemental Deed to be paid
in priority to or equally with the Notes as if the Deed of Charge in
respect of the Trust was enforced.
The Trustee will give not more than 60 nor less than 45 days' notice
(which will be irrevocable) of the Payment Date on which a proposed
redemption under this CONDITION 7.4 will occur to the Note Trustee, the
Seller, the Principal Paying Agent, the Class A Note Registrar, the
Calculation Agent and the Class A Note Holders in accordance with
CONDITION 11.1.
If an event referred to in paragraph (a) of this CONDITION 7.4 occurs in
respect of only the Class A Notes (and not any other Notes) and as a
result thereof the Trustee gives notice in accordance with this CONDITION
7.4 that it proposes to redeem all of the Notes on the Payment Date
referred to in that notice, the Class A Note Holders may
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by an Extraordinary Resolution (as defined in CONDITION 10.3) in
accordance with the Note Trust Deed elect that they do not require the
Trustee to redeem the Notes. If the Class A Note Holders make such an
election they (or the Note Trustee on their behalf) must notify the
Trustee and the Trust Manager not less than 21 days before the proposed
Payment Date for the redemption of the Notes. Upon receipt of such a
notice, the Trustee must not so redeem the Notes.
7.5 CERTIFICATION
For the purpose of any redemption made under CONDITION 7.3 or 7.4, the
Trustee and the Note Trustee may rely on any certificate of an Authorized
Officer (as defined in the Definitions Schedule) of the Trust Manager that
the Trustee will be in a position to repay in respect of the Class A Notes
their then Invested Amount or Stated Amount, as applicable, together with
all accrued but unpaid interest to (but excluding) the date of redemption
and to discharge all its liabilities in respect of amounts required under
the Master Security Trust Deed and the Supplemental Deed to be paid in
priority to or equally with the Class A Notes as if the Deed of Charge in
respect of the Trust was enforced.
7.6 REDEMPTION ON FINAL PAYMENT
Upon a final distribution being made in respect of the Class A Notes under
these Class A Note Conditions or clause 15.18 of the Supplemental Deed,
the Class A Notes will thereupon be deemed to be redeemed and discharged
in full and any obligation to pay any accrued but then unpaid Interest
Amount or any then unpaid Invested Amount, Stated Amount or other amounts
in relation to the Class A Notes will be extinguished in full.
7.7 CANCELLATION
All Class A Notes redeemed in full (or deemed to be redeemed in full)
pursuant to these Class A Note Conditions will be cancelled and may not be
resold or reissued.
7.8 NO PAYMENT IN EXCESS OF STATED AMOUNT
Subject to CONDITIONS 7.3 and 7.4, no amount of principal will be paid in
respect of a Class A Note in excess of the Stated Amount of the Class A
Note.
7.9 CALCULATION OF CLASS A PRINCIPAL AMOUNTS, STATED AMOUNTS AND
OTHER AMOUNTS
(a) On each Determination Date, the Trust Manager will determine:
(i) the amount of any Class A Principal Amount payable in respect
of each Class A Note on the Payment Date;
(ii) the Stated Amount and Invested Amount of each Class A Note as
at the first day of the Interest Period commencing on the
Payment Date (after deduction of any Class A Principal Amounts
due to be paid in respect of such Class A Notes on that
Payment Date and after making any other adjustment to the
Stated Amount or the Invested Amount (as the case may be) of
the Class A Note in accordance with these Class A Note
Conditions on or with effect from that Payment Date); and
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(iii) the amount of the interest payment to be made on the Payment
Date applicable to each Class A Note.
(b) The Trust Manager will notify the Trustee, the Note Trustee, the
Principal Paying Agent, the Calculation Agent, the Class A Note
Registrar and the UK Listing Authority (for so long as the Class A
Notes are listed on the Official List of the UK Listing Authority
and admitted to trading by the London Stock Exchange) as soon as
practical (and in any event by not later than two Business Days
prior to the Payment Date or on such earlier date as the UK Listing
Authority may require (for so long as the Class A Notes are listed
on the London Stock Exchange)) of each determination of an amount or
percentage referred to in CONDITION 7.9(A) and will cause details of
each of those determinations to be published in accordance with
CONDITION 11.2 as soon as practical after that notification. If no
Class A Principal Amount is due to be paid on the Class A Notes on
any Payment Date the Trust Manager will cause a notice to be given
in accordance with CONDITION 11.2 as soon as practicable (and in any
event by no later than the relevant Payment Date).
(c) If the Trust Manager does not at any time for any reason make one or
more of the determinations referred to in CONDITION 7.9(A), the
Calculation Agent (or, failing the Calculation Agent, the Note
Trustee) must make such determinations in accordance with this
Condition 7.9 (but based on the information in its possession) and
each such determination will be deemed to have been made by the
Trust Manager.
8 PAYMENTS
8.1 METHOD OF PAYMENT
Any installment on account of interest or principal payable on any Class A
Note which is punctually paid or duly provided for by or on behalf of or
at the direction of the Trustee to the Paying Agents on the applicable
Payment Date shall be paid to the person in whose name such Class A Note
is registered on the relevant Record Date (as defined below), by wire
transfer in immediately available funds to the account designated by such
person or, if such person so requests in writing, by cheque mailed
first-class, postage prepaid, to such person's address as it appears on
the Class A Note Register on such Record Date.
"RECORD DATE" in relation to a Payment Date or any other date for any
payment to be made in respect of a Class A Note means the date which is 2
Business Days before a Payment Date.
8.2 SURRENDER ON FINAL PAYMENT
Prior to a final distribution being made in respect of the Class A Notes
under clause 15 of the Supplemental Deed, the Note Trustee must notify the
Class A Note Holders on the relevant Record Date of the date upon which
the Note Trustee expects that final distribution to be made and specify
that such final distribution will be payable only upon surrender of the
relevant Class A Note to a Paying Agent at its specified office. No such
final distribution will be made other than upon the surrender of the
relevant Class A Notes and none of the Trustee, the Note Trustee, the
Security Trustee or any Paying Agent will be liable to pay any additional
amount to any Class A Note Holder
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as a result of any delay in payment due to a Class A Note not having been
surrendered in accordance with this CONDITION 8.2.
8.3 PAYING AGENTS
The initial Paying Agents and their respective specified offices are set
out at the end of these Class A Note Conditions.
The Trustee, at the direction of the Trust Manager, may, with the prior
written approval of the Note Trustee, terminate the appointment of any
Paying Agent in accordance with the Agency Agreement and appoint
additional or other Paying Agents, provided that:
(a) it will at all times maintain a Paying Agent in London; and
(b) notice of any termination or appointment of a Paying Agent or of any
change in the office through which any Paying Agent will act will be
given to the Class A Note Holders in accordance with CONDITION 11.1.
8.4 TAXATION
All payments in respect of the Class A 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 Trustee or any
Paying Agent is required by any applicable law to make such a withholding
or deduction. In that event the Trustee or that Paying Agent (as the case
may be) will, after making such withholding or deduction, account to the
relevant authorities for the amount so required to be withheld or
deducted. Neither the Trustee nor any Paying Agent nor the Note Trustee
will be obliged to make any additional payments in respect of the relevant
Class A Notes in relation to the withholding or deduction. Immediately
after becoming aware that such a withholding or deduction is or will be
required, the Trustee will notify the Note Trustee, the Principal Paying
Agent and the Class A Note Holders in accordance with CONDITION 11.1,
thereof.
8.5 PRESCRIPTION
A Class A Note will become void in its entirety unless surrendered for
payment within a period of 10 years from the Relevant Date in respect of
any payment of principal or interest thereon, the effect of which will be
to reduce the Stated Amount of, and all accrued but unpaid interest on,
that Class A Note to zero. After the date on which a Class A Note becomes
void in its entirety, no claim can be made in respect of it.
"RELEVANT DATE" in respect of a Class A Note means the date on which a
payment in respect thereof first becomes due or, if the full amount of the
moneys payable in respect of the Class A Notes which is due on or before
that date has not been duly received by the Principal Paying Agent or the
Note Trustee on or prior to such date, the date on which the full amount
of such moneys having been so received.
8.6 NOTIFY LATE PAYMENTS
In the event of the unconditional payment to the Principal Paying Agent or
the Note Trustee of any sum due in respect of the Class A Notes or any of
them being made
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after the due date for payment thereof, the Trustee will promptly upon
request by the Note Trustee forthwith give or procure to be given notice
to the Class A Note Holders in accordance with CONDITION 11.1 that such
payment has been made.
8.7 ROUNDING OF PAYMENTS
All payments made to Class A Note Holders will be rounded down to the
nearest cent.
9 ENFORCEMENT FOLLOWING OCCURRENCE OF AN EVENT OF DEFAULT
9.1 ENFORCEMENT
The Master Security Trust Deed provides that at any time after the
Security Trustee becomes actually aware of the occurrence of an Event of
Default, the Security Trustee will (subject to CONDITION 10.4 and subject
to being appropriately indemnified), if so directed by an Extraordinary
Resolution of the Voting Secured Creditors, declare the Notes immediately
due and payable (in which case, subject to CONDITION 12, the Stated Amount
of, and all accrued but unpaid interest in relation to, the Class A Notes
will become immediately due and payable) and enforce the Charge.
Subject to being indemnified in accordance with the Master Security Trust
Deed and to the provisions of CONDITION 9.2, the Security Trustee will
take all action necessary to give effect to any direction in accordance
with the foregoing and will comply with all such directions.
"VOTING SECURED CREDITOR" has the meaning given to it in the Definitions
Schedule.
9.2 SECURITY TRUSTEE MAY ENFORCE CHARGE WITHOUT DIRECTION
After the Security Trustee becomes actually aware of the occurrence of an
Event of Default, the Security Trustee must not enforce the Deed of Charge
in accordance with the Master Security Trust Deed without an Extraordinary
Resolution of the Voting Secured Creditors unless, in the opinion of the
Security Trustee, the delay required to obtain the consent of the Voting
Secured Creditors would be prejudicial to the interests of those Voting
Secured Creditors.
9.3 PRIORITY OF PAYMENTS FROM PROCEEDS FROM THE ENFORCEMENT OF THE
CHARGE
Following the enforcement of the Charge, all moneys received in connection
with the Master Security Trust Deed and the Charge by the Security Trustee
or by any receiver appointed in relation to the Secured Property pursuant
to the provisions of the Master Security Trust Deed and the Deed of Charge
are to be applied, subject to the Master Security Trust Deed, in
accordance with the order of priority contained in the Supplemental Deed.
9.4 SECURITY TRUSTEE AND NOTE TRUSTEE NOT LIABLE FOR LOSS ON
ENFORCEMENT
Except in the case of fraud, gross negligence or willful default (and, in
the case of the Note Trustee, subject to the mandatory provisions of the
Trust Indenture Act), neither the Note Trustee nor the Security Trustee is
liable for any decline in the value, nor any loss realized upon any sale
or other disposition made under the Master Security Trust Deed and the
Deed of Charge, of any Secured Property or any other property which is
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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 Class A Notes or relating in any way to the Secured
Property. Without limitation, neither the Note Trustee nor the Security
Trustee will be liable for any such decline or loss directly or indirectly
arising from its acting, or failing to act, as a consequence of an opinion
reached by it which, in the case of the Note Trustee, is based in good
faith on advice received by it in accordance with the applicable
requirements of the Note Trust Deed (and the Trust Indenture Act) or the
Master Security Trust Deed, as the case may be. In respect of the Security
Trustee only, the Security Trustee is not liable for any omission, delay
or mistake or any loss or irregularity in or about the exercise, attempted
exercise, non-exercise or purported exercise of any of its powers under
the Master Security Trust Deed or the Deed of Charge except to the extent
caused or contributed to by any fraud, gross negligence or willful default
on the part of the Security Trustee.
"TRUST INDENTURE ACT" means the Trust Indenture Xxx 0000 of the United
States of America as in force at the date of the Note Trust Deed.
9.5 DIRECTIONS FROM CLASS A NOTE HOLDERS TO NOTE TRUSTEE FOLLOWING
EVENT OF DEFAULT
If an Event of Default has occurred and is known to the Note Trustee, the
Note Trustee must:
(a) notify each Class A Note Holder of the Event of Default within 10
days (or such shorter period as may be required by the rules of the
UK Listing Authority or the London Stock Exchange, for so long as
the Class A Notes are listed onthe Official List of the UK Listing
Authority and admitted to trading by the London Stock Exchange, or
the rules of any other stock exchange, competent listing authority
and/or quotation system on or by which the Class A Notes are listed)
after the occurrence of the Event of Default, provided that, except
in the case of a default in payment of principal or interest on any
Class A Note, the Note Trustee may withhold such notice if and so
long as the board of directors, the executive committee or a trust
committee of its directors and/or its authorized officers under the
Note Trust Deed in good faith determine that withholding the notice
is in the interest of the Class A Note Holders;
(b) if a meeting of Voting Secured Creditors is to be held under the
Master Security Trust Deed, determine whether it proposes to seek
directions from the Class A Note Holders as to how to vote at that
meeting and, if so, whether it proposes to instruct the Security
Trustee to delay the holding of that meeting while it obtains such
directions from the Class A Note Holders; and
(c) vote at any meeting of Voting Secured Creditors held under the
Master Security Trust Deed.
In acting in accordance with the directions of the Class A Note Holders,
the Note Trustee must exercise its votes for or against any proposal to be
put to a meeting of Voting Secured Creditors under the Master Security
Trust Deed in the same proportion as that of the aggregate Invested
Amounts of the Class A Notes held by Class A Note Holders who have
directed the Note Trustee to vote for or against such a proposal.
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If any of the Class A Notes remain outstanding and are due and payable
otherwise than by reason of a default in payment of any amount due on the
Class A Notes, the Note Trustee must not vote at a meeting of Voting
Secured Creditors under the Master Security Trust Deed to, or otherwise
direct the Security Trustee to, dispose of the Secured Property unless:
(a) a sufficient amount would be realized to discharge in full all
amounts owing to the Class A Note Holders in respect of the Class A
Notes and any other amounts owing by the Trustee to any other person
ranking in priority to or with the Class A Notes; or
(b) the Note Trustee is of the opinion, reached after considering at any
time and from time to time the advice of a merchant bank or other
financial adviser selected by the Note Trustee, that the cash flow
receivable by the Trustee (or the Security Trustee under the Master
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 (a).
The Note Trustee need not do anything to find out if an Event of Default
has occurred. Until it has actual knowledge or express notice to the
contrary, the Note Trustee may assume that no such event has occurred and
that the Trustee and each other party to the Transaction Documents is
performing all its obligations under the Note Trust Deed and the Class A
Notes.
9.6 ONLY SECURITY TRUSTEE MAY ENFORCE CHARGE
Only the Security Trustee may enforce the Charge and neither the Note
Trustee nor any Class A Note Holder (nor any other Secured Creditor) is
entitled to proceed directly against the Trustee to enforce the
performance of any of the provisions of the Deed of Charge, Master
Security Trust Deed, the Class A Notes or these conditions, except as
provided for in the Master Security Trust Deed, the Note Trust Deed, the
Master Trust Deed and the Supplemental Deed. The Security Trustee is not
required to act in relation to the enforcement of the Charge unless its
liability is limited in a manner reasonably satisfactory to it or, if
required by the Security Trustee (in its absolute discretion), it is
adequately indemnified from the Secured Property or the Security Trustee
receives from the Voting Secured Creditors an indemnity in a form
reasonably satisfactory to the Security Trustee (which may be by way of an
Extraordinary Resolution of the Voting Secured Creditors) and is put in
funds to the extent necessary.
9.7 EXERCISE OF CLASS A NOTE HOLDER RIGHTS BY NOTE TRUSTEE
The rights, remedies and discretions of the Class A Note Holders under the
Note Trust Deed and the Master Security Trust Deed, including all rights
to vote or to give an instruction or consent, can only be exercised by the
Note Trustee on behalf of the Class A Note Holders in accordance with the
Note Trust Deed and the Master 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 Note Holders from time to time and
need not inquire whether any such instructions or directions are in
accordance with the Note Trust Deed, whether the Note Trustee or the Class
A Note
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Holders 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.
10 MEETINGS OF VOTING SECURED CREDITORS, DIRECTIONS OF CLASS A NOTE HOLDERS,
MODIFICATIONS, CONSENTS, WAIVERS AND INDEMNITIES
10.1 MEETINGS OF VOTING SECURED CREDITORS
The Master Security Trust Deed contains provisions for convening meetings
of the Voting Secured Creditors to, among other things, enable the Voting
Secured Creditors to direct or consent to the Security Trustee taking or
not taking certain actions under the Master Security Trust Deed; for
example to enable the Voting Secured Creditors, following the occurrence
of an Event of Default, to direct the Security Trustee to declare the
Class A Notes immediately due and payable and/or to enforce the Charge.
10.2 DIRECTIONS OF CLASS A NOTE HOLDERS
Under the Note Trust Deed the Note Trustee may seek directions from the
Class A Note Holders from time to time, including following the occurrence
of an Event of Default. The Note Trustee shall not be responsible for
having acted in good faith on a resolution purporting to have been passed
at a meeting of Class A Note Holders in respect of which minutes have been
made and signed even if it is later found that there was a defect in the
constitution of the meeting or the passing of the resolution or that the
resolution was not valid or binding on the Class A Note Holders.
If the Note Trustee is entitled under the Master Trust Deed or the Master
Security Trust Deed to vote at any meeting on behalf of Class A Note
Holders, the Note Trustee must vote in accordance with the directions of
the Class A Note Holders and otherwise in its absolute discretion. In
acting in accordance with the directions of Class A Note Holders, the Note
Trustee must exercise its votes for or against any proposal to be put to a
meeting in the same proportion as that of the aggregate Invested Amounts
of the Class A Notes held by Class A Note Holders who have directed the
Note Trustee to vote for or against that proposal.
10.3 AMENDMENTS TO NOTE TRUST DEED AND CLASS A NOTES
Pursuant, and subject, to the Note Trust Deed and subject to any approval
required by law, the Note Trustee, the Trust Manager and the Trustee may
together agree, without the consent or sanction of any Class A Note
Holder, by way of supplemental deed to alter, add to or modify (each a
"MODIFICATION") any provision of the Note Trust Deed or the Class A Notes
(including these Class A Note Conditions) so long as such alteration,
addition or modification is not a Payment Modification (as defined below)
and such modification in the opinion of the Note Trustee:
(a) is necessary or expedient to comply with the provisions of any
statute or with the requirements of any governmental agency;
(b) is made to correct a manifest error or ambiguity, or is to correct
inconsistency between the provisions of any Transaction Document and
the description of the provisions thereof in the related prospectus,
or is of a formal, technical or administrative nature only;
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(c) is appropriate or expedient as a consequence of an amendment to any
statute or altered requirements of any governmental agency or any
decision of any court (including, without limitation, an alteration,
addition or modification which is in the opinion of the Note Trustee
appropriate or expedient as a consequence of the enactment of a
statute or an amendment to any statute or ruling by the Australian
Commissioner or Deputy Commissioner of Taxation or any governmental
announcement or statement or any decision of any court, in any case
which has or may have the effect of altering the manner or basis of
taxation of trusts generally or of trusts similar to the Trust or
the trust constituted under the Note Trust Deed); or
(d) and the Note Trustee and the Trustee is otherwise desirable for any
reason and:
(i) is not in the opinion of the Note Trustee likely, upon coming
into effect, to be materially prejudicial to the interests of
Class A Note Holders; or
(ii) if it is in the opinion of the Note Trustee likely, upon
coming into effect, to be materially prejudicial to the
interests of Class A Note Holders, the consent of an
Extraordinary Resolution of the Class A Note Holders to the
alteration, addition or resolution has been obtained. For the
purpose of determining whether there has been an Extraordinary
Resolution of the Class A Note Holders consenting to an
alteration, addition or revocation, Class A Notes which are
beneficially owned by the Trustee or the Trust Manager or by
any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Trustee or
the Trust Manager, shall be disregarded.
The Trust Manager must give the Designated Rating Agencies (as defined in
the Supplemental Deed) 5 Business Days' prior notice of any such
modification. The Note Trustee will be entitled to assume that any
proposed modification, other than a Payment Modification, will not be
materially prejudicial to the interest of Class A Note Holders if each of
the Designated Rating Agencies confirms in writing that if the
modification is effected this will not lead to a reduction, qualification
or withdrawal of the then current rating given to the Class A Notes by
that Designated Rating Agency.
Pursuant to the Note Trust Deed, the Note Trustee may concur with the
Trustee and the Trust Manager in making or effecting any Payment
Modification if and only if the consent has first been obtained of each
Class A Note Holder to such Payment Modification.
Any supplemental deed that effects any such modifications must conform to
the requirements of the Trust Indenture Act and copies of any such
supplemental deed must be distributed by the Trustee to the Class A Note
Holders in accordance with CONDITION 11.1 as soon as reasonably
practicable after the modifications have been made.
"PAYMENT MODIFICATION" means any alteration, addition or revocation of any
provision of the Transaction Documents or the Class A Notes (including the
Class A Note Conditions) which modifies:
(a) the amount, timing, place, currency or manner of payment of
principal or interest in respect of the Class A Notes including,
without limitation, any modification to the Stated Amount, Invested
Amount, Interest Rate or Final Maturity Date in
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respect of the Class A Notes or to CONDITIONS 6.9 and 7.2 or which
would impair the rights of Class A Note Holders to institute suit
for enforcement of such payment on or after the due date for such
payment;
(b) the definition of the term "Extraordinary Resolution" (insofar as it
relates to any Notes or any class of Notes, clause 6.1 of the Note
Trust Deed or the circumstances in which the consent or direction of
an Extraordinary Resolution of Class A Note Holders is required;
(c) clause 15.18 of the Supplemental Deed; or
(d) the requirements for altering, adding to or revoking any provision
of the Note Trust Deed or the Class A Notes (including the Class A
Note Conditions).
"EXTRAORDINARY RESOLUTION" has the meaning given in the Definitions
Schedule.
10.4 WAIVERS, ETC.
The Security Trustee may, in accordance with the Master Security Trust
Deed and without the consent or sanction of the Voting Secured Creditors
(but not in contravention of an Extraordinary Resolution of the Voting
Secured Creditors), waive or ignore any breach or proposed breach or
determine that any event that would otherwise be an Event of Default will
not be treated as such if such action, in its opinion will not be
prejudicial to the interests of the Secured Creditors.
The Note Trustee may, without the consent of the Class A Note Holders and
without prejudice to its rights in respect of any subsequent breach, from
time to time and at any time, if in its opinion the interests of the Class
A Note Holders will not be materially prejudiced thereby, waive or
authorize, on such terms as seem expedient to it, any breach or proposed
breach by the Trustee of the Note Trust Deed or these Class A Note
Conditions provided that the Note Trustee shall not do so in contravention
of an express direction given by an Extraordinary Resolution or a request
made pursuant to Condition 10.1. No such direction or request will affect
a previous waiver, authorization or determination. Any such waiver,
authorization or determination shall be binding on the Class A Note
Holders and, if the Note Trustee so requires, will be notified to the
Class A Note Holders as soon as practicable.
10.5 INDEMNIFICATION AND EXONERATION OF THE NOTE TRUSTEE AND THE
SECURITY TRUSTEE
The Note Trust Deed and the Master 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 realize the security
and to obtain repayment of the Class A Notes unless indemnified to their
satisfaction. Each of the Note Trustee and the Security Trustee is
entitled, subject in the case of the Note Trustee to the mandatory
provisions of the Trust Indenture Act, to enter into business transactions
with the Trustee and/or any other party to the Transaction Documents
without accounting for any profit resulting from such transactions.
Subject to the mandatory provisions of the Trust Indenture Act, the Note
Trustee shall not be responsible for any loss, expense or liability
occasioned to the Secured Property or any other property or in respect of
all or any of the moneys which may stand to the
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credit of the Collection Account (as defined in the Supplemental Deed)
from time to time however caused (including, without limitation, where
caused by an act or omission of the Security Trustee) unless that loss is
occasioned by the fraud, gross negligence or willful default of the Note
Trustee. The Security Trustee is not, nor is any receiver appointed in
relation to the Secured Property pursuant to the provisions of the Master
Security Trust Deed, liable or otherwise accountable for any omission,
delay or mistake or any loss or irregularity in or about the exercise,
attempted exercise, non-exercise or purported exercise of any of the
powers of the Security Trustee or of the receiver under the Master
Security Trust Deed except for fraud, gross negligence or willful default.
Except in the case of fraud, gross negligence (except as specifically
provided in the Trust Indenture Act) or willful default, and subject to
the mandatory provisions of the Trust Indenture Act, the Note Trustee may
act on the opinion or advice of, or information obtained from, any expert
(including any lawyer, valuer, banker, broker, accountant, credit rating
agency or lead manager) and shall not be responsible to anyone for any
loss occasioned by so acting to the extent it complies with any applicable
requirements of the Note Trust Deed or the Trust Indenture Act.
Any such opinion, advice or information may be sent or obtained by letter,
telex or facsimile transmission and the Note Trustee will not be liable to
any Class A Note Holder, amongst others, for acting in good faith on any
opinion, advice or information purporting to be conveyed by such means
even if it contains some error which is not a manifest error or is not
authentic.
11 NOTICES
11.1 GENERAL
Subject to CONDITION 11.2, all notices, other than notices given in
accordance with the following paragraph and CONDITION 11.3, to Class A
Note Holders will be deemed given if in writing and mailed, first-class,
postage prepaid to each Class A Note Holder, at his or her address as it
appears on the Class A 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 Note Holders is given by mail,
neither the failure to mail such notice nor any defect in any notice so
mailed to any particular Class A Note Holder will affect the sufficiency
of such notice with respect to other Class A Note Holders, and any notice
that is mailed in the manner herein provided will conclusively be presumed
to have been duly given.
A notice may be waived in writing by the relevant Class A Note Holder,
either before or after the event, and such waiver will be the equivalent
of such notice. Waivers of notice by Class A Note Holders will be filed
with the Note Trustee but such filing will not be a condition precedent to
the validity of any action taken in reliance upon such a waiver.
Any such notice will 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 is impractical to mail
notice of any event to Class
-26-
A Note Holders when such notice is required to be given, then any manner
of giving such notice as the Trustee directs the Note Trustee will be
deemed to be a sufficient giving of such notice.
In addition to the above, notices to the Class A Note Holders shall be
valid if published in a leading daily newspaper in the City of New York
and in London. It is expected that publication will be made in the City of
New York in The Wall Street Journal and in London in the Financial Times.
Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
11.2 BOOK-ENTRY NOTES
Unless and until the Class A Definitive Notes have been issued, whenever a
notice or other communication to the Class A Note Holders is required
under the Note Trust Deed or any other Transaction Document all such
notices and communications must be given to The Depository Trust Company
or its nominee and are not required to be given to the beneficial owners
of the Class A Notes. Any such notice given to the Depository Trust
Company or its nominee shall also be published in accordance with the
requirements set forth in the last paragraph of CONDITION 11.1.
"CLASS A DEFINITIVE NOTE" has the same meaning as in the Supplemental
Deed.
11.3 CLASS A NOTE INFORMATION
Any notice specifying a Payment Date, an Interest Rate in relation to the
Class A Notes, an Interest Amount, a Class A Principal Amount (or the
absence of a Class A Principal Amount), an Invested Amount, a Stated
Amount or any other matter permitted to be given in accordance with this
CONDITION 11.3, will be deemed to have been duly given if the information
contained in the notice appears on the relevant page of the Reuters Screen
or the Electronic information system made available to its subscribers by
Bloomberg, L.P. or another similar electronic reporting service approved
by the Note Trustee in writing and notified to Class A Note Holders
pursuant to CONDITION 11.1 (the "RELEVANT SCREEN"). Any such notice will
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 will be given in accordance with CONDITION
11.1.
12 LIMITATION OF LIABILITY OF THE TRUSTEE
(a) The Trustee enters into each Transaction Document, and issues the
Class A Notes, only in its capacity as trustee of the Trust and in
no other capacity. A liability arising under or in connection with
the Class A Notes, a Transaction Document or the Trust is limited to
and can be enforced against the Trustee only to the extent to which
it can be satisfied out of the assets of the Trust out of which the
Trustee is actually indemnified for the liability. This limitation
of the Trustee's liability applies despite any other provision of
any Transaction Document (other than paragraph (c) below) and
extends to all liabilities and obligations of the Trustee in any way
connected with any representation, warranty, conduct, omission,
agreement or transaction related to a Transaction Document, the
Class A Notes or the Trust.
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(b) In relation to the Trust, no person (including, without limitation,
any Unitholder or Secured Creditor) other than the Trustee may xxx
the Trustee in any capacity other than as trustee of the Trust
including seeking the appointment of a receiver (except in relation
to the assets of the Trust), 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 (except
in relation to the assets of the Trust).
(c) The provisions of this CONDITION 12 limiting the Trustee's liability
will not apply to any obligation or liability of the Trustee to the
extent that it is not satisfied because under any Transaction
Document or by operation of law there is a reduction in the extent
of the Trustee's indemnification out of the assets of the Trust as a
result of the Trustee's fraud, gross negligence or willful default.
(d) It is acknowledged that the Relevant Parties (as defined in the
Definitions Schedule) are responsible under the Transaction
Documents in relation to the Trust 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 or breach
of a representation or warranty under any Transaction Document or
the Class A Notes) will be considered fraud, gross negligence or
willful default of the Trustee for the purpose of paragraph (c) to
the extent to which the act or omission was caused or contributed to
by any failure by a Relevant Party or any other person appointed by
the Trustee under any Transaction Document (other than a person
whose acts or omissions the Trustee is liable for in accordance with
any Transaction Document) to fulfil its obligations relating to the
Trust or by any other act or omission of a Relevant Party or any
other such person regardless of whether or not the act or omission
is purported to be done on behalf of the Trustee.
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with any Transaction Document 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, gross negligence or willful default of the
Trustee for the purpose of paragraph (c).
(f) The Trustee is not obliged to do anything or refrain from doing
anything under or in connection with these Class A Note Conditions
or any other Transaction Document (including incur a liability)
unless the Trustee's liability is limited in the same manner as set
out in this CONDITION 12.
13 GOVERNING LAW
The Notes and the Transaction Documents (other than the Underwriting
Agreement) are governed by, and will be construed in accordance with, the
laws of New South Wales of the Commonwealth of Australia. Each of the
Trustee and the Trust Manager has in the Note Trust Deed irrevocably
agreed for the benefit of the Note Trustee and the Class A Note Holders
that the courts of New South Wales are to have non-exclusive jurisdiction
to settle any disputes which may arise out of or in connection with the
Note Trust Deed and the Class A Notes.
AGENTS
PRINCIPAL PAYING AGENT AND The Bank of New York, New York Branch
CALCULATION AGENT: 000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx
-00-
Xxx Xxxx, 00000
CLASS A NOTE REGISTRAR: The Bank of New York, New York Branch
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx
Xxx Xxxx 00000
or
x/x Xxx Xxxx xx Xxx Xxxx, Xxxxxx Branch
00xx Xxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
PAYING AGENT: The Bank of New York, London Branch
00xx Xxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
