Note Trust Deed
Perpetual Trustees Victoria Limited
Interstar Securitisation Management Pty Limited
The Bank of New York, New York branch
The Bank of New York (Luxembourg) S.A.
Interstar Millennium Trusts
Interstar Millennium Series 2002-1G Trust
The Chifley Tower
2 Chifley Square
Sydney NSW 2000
Australia
Tel 61 2 9230 4000
Fax 61 2 9230 5333
www.aar.com.au
(C) Copyright Allens Arthur Robinson 2002
Note Trust Deed [Allens Arthur Robinson Logo]
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CROSS REFERENCE TABLE(1)
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TRUST INDENTURE ACT SECTION CLAUSE
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310 (a)(1) 23.6
(a)(2) 23.1(d)
(a)(3) 23.6
(a)(4) 22.2(b)
(a)(5) NA(2)
(b) 23.6
(c) 23.6, 23.1
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(j)
(b) 11.1(k)
(c) 36.1(a)
(d) 36.1(b)
(e) 36.1(c)
(f) 36.1(a)
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315 (a) 13.2(b)
(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) NA
(b) 36.4
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317 (a)(1) 6.1
(a)(2) NA
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Page (i)
Note Trust Deed [Allens Arthur Robinson Logo]
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(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.
Page (ii)
Note Trust Deed [Allens Arthur Robinson Logo]
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions and Interpretation 1
1.2 Definitions in Master Trust Deed, Series Notice and Conditions 2
1.3 Interpretation 3
1.4 Determination, statement and certificate sufficient evidence 4
1.5 Document or agreement 4
1.6 Transaction Document 4
1.7 Trustee as trustee 4
1.8 Knowledge of Trustee 4
1.9 Knowledge of the Note Trustee 4
1.10 Appointment of the Note Trustee 4
1.11 Commencement 5
1.12 Opinion of Counsel 5
2. PAYMENTS ON CLASS A2 NOTES 5
2.1 Principal Amount 5
2.2 Covenant to repay 5
2.3 Deemed Payment 6
2.4 Following Event of Default 6
2.5 Requirements of Paying Agents 7
2.6 Certification 7
2.7 Determinations 7
3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, CLASS A2 NOTES 8
3.1 Issue of Global Notes 8
3.2 Terms of Global Notes 8
3.3 Issue of Definitive Notes 9
3.4 Notice of Exchange Events 10
3.5 Form of Definitive Notes 10
3.6 Stamp and Other Taxes 10
3.7 Indemnity for non-issue 10
3.8 Note Register and Note Registrar 11
3.9 US Tax Treatment 12
4. COVENANT OF COMPLIANCE 13
5. CANCELLATION OF CLASS A2 NOTES 13
5.1 Cancellation 13
5.2 Records 13
6. ENFORCEMENT 13
6.1 Actions following Event of Default 13
6.2 Evidence of default 14
6.3 Overdue interest 14
6.4 Restrictions on enforcement 14
6.5 Action by Noteholders 15
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7. PROCEEDINGS 15
7.1 Acting only on direction 15
7.2 Security Trustee acting 16
7.3 Note Trustee alone entitled to act 16
7.4 Available amounts 16
7.5 No liability 17
8. NOTICE OF PAYMENT 17
9. INVESTMENT BY NOTE TRUSTEE 17
10. PARTIAL PAYMENTS 17
11. COVENANTS BY THE TRUSTEE AND TRUST MANAGER 17
12. REMUNERATION OF NOTE TRUSTEE 21
12.1 Fee 21
12.2 Additional Remuneration 21
12.3 Costs, expenses 21
12.4 Overdue rate 22
12.5 Continuing obligation 22
13. LIMITED RESPONSIBILITIES OF NOTE TRUSTEE 22
14. NOTE TRUSTEE'S LIABILITY 29
15. DELEGATION BY NOTE TRUSTEE 29
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE 29
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE 30
18. WAIVER 30
19. AMENDMENT 31
19.1 Approval 31
19.2 Extraordinary Resolution of Noteholders 31
19.3 Distribution of amendments 32
19.4 Amendments binding 32
19.5 Conformity with TIA 32
20. CLASS A2 NOTEHOLDERS 32
20.1 Absolute Owner 32
20.2 Clearing System Certificate 33
21. CURRENCY INDEMNITY 33
22. NEW NOTE TRUSTEES 34
22.1 Appointment by Trustee 34
22.2 Appointment by Note Trustee 34
22.3 Notice 34
22.4 Requirement for Note Trustee 35
23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL 35
23.1 Removal by Trustee 35
23.2 Removal by Class A2 Noteholders 35
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23.3 Resignation 35
23.4 Trust Corporation 35
23.5 Successor to Note Trustee 36
23.6 Eligibility; Disqualification 36
24. NOTE TRUSTEE'S POWERS ADDITIONAL 37
25. SEVERABILITY OF PROVISIONS 37
26. NOTICES 37
26.1 General 37
26.2 Details 38
27. GOVERNING LAW AND JURISDICTION 39
28. COUNTERPARTS 39
29. LIMITED RECOURSE 39
29.1 General 39
29.2 Liability of Trustee limited to its right of Indemnity 39
29.3 Unrestricted remedies 39
29.4 Restricted remedies 39
30. SUCCESSOR TRUSTEE 40
31. REIMBURSEMENT FOR THE COST OF INDEPENDENT ADVICE 40
32. NO LIABILITY 40
33. INFORMATION MEMORANDUM 41
34. NOTE TRUSTEE'S LIMITED LIABILITY 41
34.1 Reliance on certificates 41
34.2 Note Trustee may assume signed documents to be genuine 41
34.3 Note Trustee's reliance on Trust Manager or Security Trustee 42
34.4 Compliance with laws 42
34.5 Taxes 42
34.6 Reliance on experts 42
34.7 Oversights of others 43
34.8 Powers, authorities and discretions 43
34.9 Impossibility or impracticability 43
34.10 Legal and other proceedings 43
34.11 No liability except for gross negligence etc. 44
34.12 Further limitations on Note Trustee's liability 44
34.13 Conflicts 45
34.14 Information 46
34.15 Investigation by Note Trustee 46
35. NOTEHOLDERS' LISTS AND REPORTS 46
35.1 Provision of information 46
35.2 Preservation of Information; Communications to Noteholders 47
35.3 Reports by Note Trustee 47
35.4 Notices to Class A2 Noteholders; Waiver 47
35.5 Reports by Trustee 48
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36. TRUST INDENTURE ACT - MISCELLANEOUS 49
36.1 Compliance Certificates and Opinions, etc 49
36.2 Undertaking for Costs 50
36.3 Exclusion of section 316 51
36.4 Unconditional Rights of Class A2 Noteholders to Receive Principal and Interest 51
36.5 Conflict with Trust Indenture Act 51
SCHEDULE 1 54
Form of Global Note 54
SCHEDULE 2 58
Form of Definitive Class A2 Note 58
SCHEDULE 3 61
Provisions for Meetings of Class A2 Noteholders 61
SCHEDULE 4 70
Information to be contained in Noteholder's Report 70
SCHEDULE 5 71
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Page (iv)
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DATE 2002
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PARTIES
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1. PERPETUAL TRUSTEES VICTORIA LIMITED (ABN 42 004 027 258) of
Level 4, 333 Collins Street, Melbourne, Victoria in its capacity
as trustee of Interstar Millennium Series 2002-1G Trust (the
TRUSTEE);
2. INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED (ACN 100 346
898) of Level 28, 367 Collins Street, Melbourne, Victoria in its
capacity as Trust Manager (the TRUST MANAGER);
3. THE BANK OF NEW YORK, NEW YORK BRANCH of 101 Barclay Street,
21W, New York, New York 10286 (the PRINCIPAL PAYING AGENT, the
CALCULATION Agent and the NOTE REGISTRAR and, in its capacity as
trustee for the Class A2 Noteholders, the NOTE TRUSTEE); and
4. THE BANK OF NEW YORK (LUXEMBOURG) S.A. of Aerogolf Center, 1A,
Hoehenhof, L-1736, Senningerberg, Luxembourg (the LUXEMBOURG
PAYING AGENT).
RECITALS
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A The Trustee has resolved at the direction of the Trust Manager
to issue US$1,000,000,000 Class A2 Notes to be constituted and
secured in the manner provided in this deed and the other
Transaction Documents.
B The Note Trustee has agreed to act as trustee for the Class A2
Noteholders under this deed.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS AND INTERPRETATION
The following definitions apply unless the context requires otherwise.
CORPORATE TRUST OFFICE means the principal office of the Note Trustee
at which at any particular time its corporate trust business is
administered, which at the date of the execution of this deed is 101
Barclay Street, 21W, New York, New York 10286 or at such other address
as the Note Trustee may designate by notice to the Trust Manager, the
Class A2 Noteholders and the Trustee or the principal corporate trust
office of any successor Note Trustee.
EVENT OF DEFAULT means, in respect of a Class A2 Note, any of the
events described in Condition 9.
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EXTRAORDINARY RESOLUTION has the meaning set out in paragraph 1 of
schedule 3.
MASTER TRUST DEED means the Master Trust Deed dated 2 December 1999
between Perpetual Trustees Victoria Limited and Interstar Securities
(Australia) Pty Limited and applying to the Trust by reason of the
Notice of Creation of Trust between Interstar Securities (Australia)
Pty Limited, the Trust Manager and the Trustee dated [*] 2002.
NOTE DEPOSITORY AGREEMENT means the Note Depository Agreement dated on
or about the date of this deed between the Trustee, the Principal
Paying Agent and DTC.
NOTEHOLDERS REPORT means the report to be delivered by the Trust
Manager, on behalf of the Trustee, in accordance with clause 11(l)(i)
containing the information set out in schedule 4.
NOTE TRUST means the trust established in clause 1.10 of this deed.
OFFICER'S CERTIFICATE means a certificate signed by any Authorised
Signatory of the Trustee or the Trust Manager on behalf of the Trustee,
under the circumstances described in, and otherwise complying with, the
applicable requirements of section 314 of the TIA.
OPINION OF COUNSEL means one or more written opinions of legal counsel
who may, except as otherwise expressly provided in this deed, be
employees of or counsel to the Trustee or the Trust Manager on behalf
of the Trustee and who shall be satisfactory to the Trustee or the Note
Trustee, as applicable, and which opinion or opinions shall be
addressed to the Trustee or the Note Trustee, as applicable, and shall
be in form and substance satisfactory to the Trustee and the Note
Trustee, as applicable.
SERIES NOTICE means the Series Notice dated on or after the date of
this deed between the Trustee, the Trust Manager, Interstar Securities
(Australia) Pty Limited, Perpetual Trustee Company Limited, the Note
Trustee, the Principal Paying Agent, the Calculation Agent, the
Luxembourg Paying Agent, Interstar Nominees (B) Pty Limited, Interstar
Nominees (N) Pty Limited and Interstar Nominees (R) Pty Limited.
TIA means the United States Trust Indenture Act of 1939, as amended.
TRUST CORPORATION means any person eligible for appointment as a
trustee under an indenture to be qualified pursuant to the TIA, as set
forth in section 310(a) of the TIA, which shall include The Bank of New
York for so long as it complies with such section.
1.2 DEFINITIONS IN MASTER TRUST DEED, SERIES NOTICE AND CONDITIONS
(a) Words and expressions which are defined in the Master Trust
Deed (as amended by the Series Notice), the Series Notice and
the 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 Series Notice;
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(iii) definitions in the Master Trust Deed;
(iv) definitions in the Conditions.
(c) No change to the Master Trust Deed or any other document
(including the order of payment set out in the Series Notice)
after the date of this deed will change the meaning of terms
used in this deed or adversely affect the rights of the Note
Trustee or any Class A2 Noteholder under this deed unless the
Note Trustee (or the Class A2 Noteholders acting under clause
6.5, as the case may be) has agreed in writing to the changes
under this deed.
1.3 INTERPRETATION
(a) Clause 1.2 of the Master Trust Deed applies to this deed as if
set out in full and:
(i) a reference to an ASSET includes any real or personal,
present or future, tangible or intangible property or
asset and any right, interest, revenue or benefit in,
under or derived from the property or asset;
(ii) an Event of Default SUBSISTS until it has been waived in
writing by the Note Trustee;
(iii) a reference to an amount for which a person is
CONTINGENTLY LIABLE includes an amount which that person
may become actually or contingently liable to pay if a
contingency occurs, whether or not that liability will
actually arise; and
(iv) all references to costs or charges or expenses include
GST, any value added tax or similar tax charged or
chargeable in respect of the charge or expense.
(b) Where this deed refers to a provision of the TIA, the
provision is incorporated by reference in and made part of
this deed. The following terms used in the TIA have the
following meanings in this deed.
COMMISSION means the Securities and Exchange Commission of the
United States of America.
INDENTURE SECURITIES means the Class A2 Notes.
INDENTURE SECURITY HOLDER means a Class A2 Noteholder.
INDENTURE TO BE QUALIFIED means the Note Trust Deed.
INDENTURE TRUSTEE or INSTITUTIONAL TRUSTEE means the Note
Trustee.
OBLIGOR on the indenture securities means the Trustee.
Any other term which is used in this deed in respect of a
section or provision of the TIA and which is defined in the
TIA, defined in the TIA by reference to another statute or
defined by or in any rule of or issued by the Commission, will
have the meaning assigned to them by such definitions.
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1.4 DETERMINATION, STATEMENT AND CERTIFICATE SUFFICIENT EVIDENCE
Except where otherwise provided in this deed any determination,
statement or certificate by the Note Trustee or an Authorised Signatory
of the Note Trustee provided for in this deed is sufficient evidence of
each thing determined, stated or certified until proven wrong.
1.5 DOCUMENT OR AGREEMENT
A reference to:
(a) an AGREEMENT includes a Security Interest, Guarantee,
undertaking, deed, agreement or legally enforceable
arrangement whether or not in writing; and
(b) a DOCUMENT includes an agreement (as so defined) in writing or
a certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the
extent prohibited by this deed.
1.6 TRANSACTION DOCUMENT
This deed is a TRANSACTION DOCUMENT for the purposes of the Master
Trust Deed.
1.7 TRUSTEE AS TRUSTEE
In this deed, except where provided to the contrary:
(a) a reference to the Trustee is a reference to the Trustee in
its capacity as trustee of the Trust only, and in no other
capacity; and
(b) a reference to the assets, business, property or undertaking
of the Trustee is a reference to the assets, business,
property or undertaking of the Trustee only in the capacity
described in paragraph (a) above.
1.8 KNOWLEDGE OF TRUSTEE
In relation to the Trust, the Trustee will be considered to have
knowledge or notice of or be aware of any matter or thing if the
Trustee has knowledge, notice or awareness of that matter or thing by
virtue of the actual notice or awareness of the officers or employees
of the Trustee who have day to day responsibility for the
administration of the Trust.
1.9 KNOWLEDGE OF THE NOTE TRUSTEE
In relation to the Trust, the Note Trustee will be considered to have
knowledge or notice of or be aware of any matter or thing if the Note
Trustee has knowledge, notice or awareness of that matter or thing by
virtue of the actual notice or awareness of the officers or employees
of the Note Trustee who have day to day responsibility for the
administration of the Note Trust.
1.10 APPOINTMENT OF THE NOTE TRUSTEE
Upon execution of this deed by the Note Trustee, the Note Trustee:
(a) is appointed to act as trustee on behalf of the Class A2
Noteholders on the terms and conditions of this deed; and
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(b) acknowledges and declares that it:
(i) holds the sum of US$10.00 received on the date of
this deed; and
(ii) will hold the benefit of the obligations of the
Trustee under this deed,
in each case, on trust for each Class A2 Noteholder, in accordance with
the terms and conditions of this deed. If the first Closing Date has
not occurred within 30 days of the Note Trustee executing this deed,
the trust constituted under this clause 1.10 will cease.
1.11 COMMENCEMENT
(a) This clause 1, clause 27 and clause 34.10 commence upon
execution of this deed by the Note Trustee.
(b) Subject to paragraph (a), this deed commences and will take
effect on the first Closing Date.
1.12 OPINION OF COUNSEL
For the purposes of this deed, the Trustee may where necessary seek,
and rely conclusively on, any Opinion of Counsel on any matters
relating to or connected with the TIA. Where the Trustee elects to seek
and has sought the Opinion of Counsel it shall not be required to take
any action under this deed unless and until it has received such an
Opinion of Counsel. The cost of any such Opinion of Counsel will be an
EXPENSE of the Trustee in relation to the Trust.
2. PAYMENTS ON CLASS A2 NOTES
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2.1 PRINCIPAL AMOUNT
Subject to clause 2.3, the aggregate Principal Amount of the Class A2
Notes is limited to US$[1,000,000,000].
2.2 COVENANT TO REPAY
(a) The Trustee covenants with the Note Trustee that the Trustee
will, in accordance with the terms of the Class A2 Notes
(including the Conditions) and the Transaction Documents (and
subject to the terms of the Transaction Documents and the
Conditions, including clause 29 of this deed and Condition 6)
at the direction of the Trust Manager on:
(i) the Maturity Date of the Class A2 Notes; or
(ii) each earlier date as the Class A2 Notes, or any of
them, may become repayable (whether in full or in
part),
pay or procure to be paid unconditionally in accordance with
this deed to or to the order of the Note Trustee in US$ in New
York City in same day funds the Principal Amount of the Class
A2 Notes repayable or, in the case of a partial payment of the
Class A2 Notes, the Principal Payment repayable, subject to
and in accordance with the terms of the Class A2 Notes
(including the Conditions).
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(b) Subject to clause 2.3 and to the terms of the Class A2 Notes
(including the Conditions and the Transaction Documents
(including clause 29 of this deed)), the Trustee shall, at the
direction of the Trust Manager, pay or procure to be paid
unconditionally to or to the order of the Note Trustee:
(i) any interest (both before and after any judgment or
other order of a court of competent jurisdiction), at
the respective rates calculated from time to time, in
accordance with and on the dates provided for in the
Conditions; and
(ii) principal payable at the times and in the amounts
provided for in accordance with the Conditions.
(c) The Note Trustee shall hold the benefit of the covenant in
this clause 2.2, and all other rights of the Noteholders under
the Notes, on trust for the benefit of the Class A2
Noteholders.
2.3 DEEMED PAYMENT
Any payment of principal or interest in respect of Class A2 Notes to or
to the account of the Principal Paying Agent in the manner provided in
clause 3 of the Agency Agreement shall satisfy the covenant in relation
to the Class A2 Notes by the Trustee in this clause 2 to the extent of
that payment.
2.4 FOLLOWING EVENT OF DEFAULT
At any time after an Event of Default in respect of the Class A2 Notes
has occurred, or at any time after Definitive Notes have not been
issued when so required in accordance with the Conditions, the Note
Trustee may:
(a) by notice in writing to the Trustee, the Trust Manager, the
Principal Paying Agent, the other Paying Agents (if any) and
the Calculation Agent require the Principal Paying Agent, the
other Paying Agents and the Calculation Agent under the Agency
Agreement either:
(i) (A) to act as Principal Paying Agent, Paying
Agents and Calculation Agent respectively of
the Note Trustee in relation to payments to
be made by or on behalf of the Note Trustee
under the provisions of this deed on the
terms of the Agency Agreement except that the
Note Trustee's liability under any provisions
of the Agency Agreement for the
indemnification of the Paying Agents and
Calculation Agent shall be limited to any
amount for the time being held by the Note
Trustee on the trusts of this deed and which
is available to be applied by the Note
Trustee under this deed; and
(B) hold all Definitive Notes and all amounts,
documents and records held by them in respect
of the Class A2 Notes to the order of the
Note Trustee; or
(ii) to deliver up all Definitive Notes and all amounts,
documents and records held by them in respect of the
Class A2 Notes, to the Note Trustee or as the
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Note Trustee shall direct in that notice, other than
any documents or records which the relevant Paying
Agent or Calculation Agent is obliged not to release
by any law or regulation; and
(b) by notice in writing to the Trustee require it to make all
subsequent payments in respect of the Class A2 Notes to or to
the order of the Note Trustee and not to the Principal Paying
Agent and, with effect from the issue of that notice to the
Trustee and until that notice is withdrawn, clause 2.3 shall
not apply.
(c) A payment by the Trustee of its payment obligations on each
Payment Date under the Series Notice and the Conditions to the
Note Trustee in accordance with paragraph (b) shall be a good
discharge to the Trustee to the extent of such payment.
2.5 REQUIREMENTS OF PAYING AGENTS
The Trust Manager on behalf of the Trustee will cause each Paying Agent
to execute and deliver to the Note Trustee an instrument in which that
Paying Agent shall agree with the Note Trustee, subject to the
provisions of this clause, that such Paying Agent shall:
(a) hold in trust for the Note Trustee and the Class A2
Noteholders all sums held by that Paying Agent for the payment
of principal and interest with respect to the Class A2 Notes
until all relevant sums are paid to the Note Trustee or the
Class A2 Noteholders or otherwise disposed of as provided in
this deed; and
(b) immediately notify by facsimile the Note Trustee, the Trustee,
the Security Trustee and the Trust Manager if the full amount
of any payment of principal or interest required to be made by
the Series Notice and the Conditions in respect of the Class
A2 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 Class A2 Notes under Condition 5,
the Note Trustee may rely upon an Officer's Certificate of the Trust
Manager certifying that the Trustee will be in a position to discharge
all its liabilities in respect of the relevant Class A2 Notes and any
amounts required under the Security Trust Deed to be paid in priority
to or pari passu with those Class A2 Notes and such certificate shall
be conclusive and binding on the Trustee, the Note Trustee and the
holders of those Class A2 Notes. The Note Trustee shall not incur any
liability as a result of relying on such certificate or such
certificate subsequently being considered invalid.
2.7 DETERMINATIONS
If the Trust Manager does not at any time for any reason determine a
Principal Payment or the Principal Amount applicable to any Class A2
Notes in accordance with Condition 5(d), the Principal Payment or
Principal Amount must be determined by the Calculation Agent in
accordance with Condition 5(d)(iii) (but based on the information in
its possession) and each such determination or calculation shall be
deemed to have been made by the Trust Manager.
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3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, CLASS A2 NOTES
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3.1 ISSUE OF GLOBAL NOTES
(a) The Class A2 Notes shall on issue be represented by a Global
Note.
(b) The Trustee shall on the date of this deed procure the
registration in the Note Register of Cede & Co, as nominee for
the Clearing Agency, as holder of the Global Note, and no
Class A2 Note Owner will receive a Definitive Note
representing such Class A2 Note Owner's interest in such Note
except as provided in clause 3.3.
3.2 TERMS OF GLOBAL NOTES
(a) Each Global Note will be issued in the form or substantially
the form set out in schedule 1.
(b) The procedures relating to the exchange, authentication,
delivery, surrender, cancellation, presentation, marking up or
down of a Global Note (or part of a Global Note) and any other
matters to be carried out by the relevant parties upon
exchange (in whole or part) of any Global Note shall be made
in accordance with the provisions of the terms of that Global
Note and the normal practice of the Common Depository, the
Principal Paying Agent, and the rules and procedures of the
Clearing Agency from time to time.
(c) The Global Notes shall be in an aggregate Principal Amount of
US$1,000,000,000.
(d) A Global Note registered in accordance with clause 3.1(b)
shall be a binding and valid obligation of the Trustee. Until
such Global Note (or part of the Global Note) has been
exchanged pursuant to this deed, it (or that part) shall in
all respects be entitled to the same benefits as a Definitive
Note (subject to its terms). Each Global Note shall be subject
to this deed.
(e) The Trustee shall, at the direction of the Trust Manager,
procure that, prior to the issue and delivery of a Global
Note, that Global Note will be authenticated manually by an
Authorised Signatory of the Principal Paying Agent and no
Global Note shall be valid for any purpose unless and until so
authenticated. Each Global Note must be signed manually or by
facsimile by an Authorised Signatory or attorney of the
Trustee on behalf of the Trustee and must be manually
authenticated by the Principal Paying Agent.
(f) Whenever a notice or other communication to the Class A2
Noteholders is required under this deed, unless and until
Definitive Notes have been issued to Class A2 Note Owners
pursuant to clause 3.3, the Note Trustee shall give all such
notices and communications specified herein to be given to
Class A2 Noteholders to the Clearing Agency, and shall have no
obligation to the Class A2 Note Owners in respect of the same.
(g) Unless and until the Definitive Notes have been issued to the
Class A2 Note Owners pursuant to clause 3.3:
(i) the provisions of this clause shall be in full force
and effect;
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(ii) the Note Registrar, the Trustee, the Manager, each
Paying Agent and the Note Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this
deed (including the payment of principal of and
interest on the Class A2 Notes and the giving of
instructions or directions hereunder) as the sole
holder of the Class A2 Notes, and shall have no
obligation to any Class A2 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 A2 Note Owners shall be exercised
only through the Clearing Agency and shall be limited
to those established by law and agreements between
such Class A2 Note Owners and the Clearing Agency
and/or the Clearing Agency Participants. Pursuant to
the Note Depository Agreement, unless and until
Definitive Notes are issued pursuant to clause 3.3,
the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and
receive and transmit payments of principal and
interest on the Class A2 Notes to such Clearing Agency
Participants; and
(v) whenever this deed requires or permits actions to be
taken based upon instructions or directions of Class
A2 Note Owners evidencing a specific percentage of the
Principal Amounts of all Class A2 Notes, the Clearing
Agency shall be deemed to represent such percentage
only to the extent that it has received instructions
to such effect from Class A2 Note Owners and/or
Clearing Agency Participants owning or representing,
respectively, such required percentage of the
beneficial interest in the Class A2 Notes and has
delivered such instructions to the Principal Paying
Agent.
3.3 ISSUE OF DEFINITIVE NOTES
If at any time the Class A2 Notes are represented by a Global Note and:
(a) the Principal Paying Agent advises the Trust Manager in
writing that DTC is no longer willing or able to discharge
properly its responsibilities as depository for the Class A2
Notes and the Trust Manger is unable to locate a qualified
successor; or
(b) the Trustee, at the direction of the Trust Manager, advises
the Principal Paying Agent in writing that it has elected to
terminate the book-entry system through DTC; or
(c) after the occurrence of an Event of Default, the Note Trustee,
at the written direction of Noteholders holding a majority of
the outstanding Principal Amount of the Class A2 Notes,
advises the Trustee and the Principal Paying Agent that the
continuation of a book-entry system is no longer in the best
interests of the Class A2 Noteholders,
then the Trust Manager must direct the Trustee to, and the Trustee must
(at its expense), within 30 days of becoming aware of the occurrence of
the relevant event, issue Definitive Notes in exchange for the whole of
the outstanding interest in the Global Note.
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3.4 NOTICE OF EXCHANGE EVENTS
(a) The Trustee or the Trust Manager shall notify the Note Trustee
forthwith if the Trustee or the Trust Manager (as the case may
be) becomes actually aware of any of the events referred to in
clause 3.3 and shall, unless the Note Trustee agrees
otherwise, promptly give notice of the event and of its
obligations to issue Definitive Notes to the Class A2 Note
Owners in accordance with Condition 12.
(b) The Note Trustee shall notify the Trustee and the Trust
Manager forthwith if the Note Trustee becomes actually aware
of any of the events referred to in clause 3.3.
3.5 FORM OF DEFINITIVE NOTES
(a) Each Definitive Note will be issued in the form or
substantially the form set out in schedule 2.
(b) The Definitive Notes shall be issued in denominations of
US$100,000 each (serially numbered) and shall be issued on the
terms of the Conditions.
(c) Title to the Definitive Notes shall pass by registration in
accordance with the Master Trust Deed and this deed.
(d) The Definitive Notes shall be signed manually or in facsimile
by an Authorised Signatory or an attorney of the Trustee. The
Trustee may use the facsimile signature of any person who at
the date of printing of the Definitive Notes is an Authorised
Signatory of the Trustee notwithstanding that at the time of
issue of any of the Definitive Notes that person has ceased
for any reason to be an Authorised Signatory of the Trustee
and the Definitive Notes so executed shall be binding and
valid obligations of the Trustee. The Trustee shall procure
that an Authorised Signatory of the Principal Paying Agent
authenticates each Definitive Note. No Definitive Note shall
be valid for any purpose unless and until so authenticated.
3.6 STAMP AND OTHER TAXES
The Trustee will pay any stamp and other duties and Taxes payable in
Australia, the United States, Belgium or Luxembourg on or in connection
with:
(a) the execution of the Transaction Documents;
(b) the constitution and original issue and delivery of the Class
A2 Notes; and
(c) any action taken by the Note Trustee or (where permitted under
this deed so to do), the Clearing Agency or any Class A2 Note
Owner to enforce the provisions of the Class A2 Notes or the
Transaction Documents; and
(d) the creation of the security constituted under the Security
Trust Deed.
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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(b) but
fails to do so within 30 days of the Trustee or the Trust Manager
becoming actually aware of the occurrence of the relevant event then
the Trustee shall (subject to clause 29 of this deed) indemnify the
Note Trustee, the Class A2 Noteholders and the Class A2 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 Class A2
Noteholders or the Class A2 Note Owners is less than the amount that
would have been received had Definitive Notes been issued within the 30
days referred to above. If and for so long as the Trustee discharges
its obligations under this indemnity, the breach by the Trustee of the
provisions of clause 3.3(b) shall be deemed to be cured. The Trust
Manager must promptly advise the Trustee if it becomes actually aware
of the occurrence of the relevant event.
3.8 NOTE REGISTER AND NOTE REGISTRAR
(a) The Trust 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 Trust Manager,
on behalf of the Trustee, shall provide for the registration
of the Class A2 Notes and the registration of transfers of
Class A2 Notes. The Note Registrar will be responsible for
registering Class A2 Notes and transfers of Class A2 Notes as
provided in this deed and the Agency Agreement. 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
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 the transfer of any Class
A2 Note at the office or agency of the Trustee to be
maintained as provided in clause 11(e), if the requirements of
Section 8-401(a) of the Uniform Commercial Code of New York
(the UCC) are met the Trustee must execute and upon its
written request the Principal Paying Agent must authenticate
and the Class A2 Noteholder shall obtain from the Note
Trustee, in the name of the designated transferee or
transferees, one or more new Class A2 Notes, in any authorised
denominations and of a like aggregate principal amount.
(c) At the option of the Class A2 Noteholder, Class A2 Notes may
be exchanged for other Class A2 Notes in any authorised
denominations and a like aggregate principal amount, upon
surrender of the Class A2 Notes to be exchanged at such office
or agency. Whenever any Class A2 Notes are so surrendered for
exchange, if the requirements of Section 8-401(a) of the UCC
are met the Trustee must execute and upon its written request
the Principal Paying Agent must authenticate and the Class A2
Noteholder shall obtain from the Note Trustee, the Class A2
Notes which the Class A2 Noteholder making the exchange is
entitled to receive.
(d) Every Class A2 Note presented or surrendered for registration
of transfer or exchange shall be:
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(i) duly endorsed by, or be accompanied by a written
instrument of transfer in a form satisfactory to
the Note Registrar duly executed by the transferring
Class A2 Noteholder or its 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.
(e) No service charge shall be made to a Class A2 Noteholder for
any registration of transfer or exchange of Class A2 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
Class A2 Notes.
(f) Notwithstanding the preceding provisions of this clause, the
Trustee shall not be required to make and the Note Registrar
need not register transfers or exchanges of Class A2 Notes
selected for redemption or of any Class A2 Note for a period
of 30 days preceding the due date for any payment with respect
to the Class A2 Note.
3.9 US TAX TREATMENT
It is the intention of the parties to this deed and, by their holding
of the Class A2 Notes, the Class A2 Noteholders, that the Class A2
Notes be treated for United States federal income tax purposes as debt
denominated in US dollars. To the extent that the Class A2 Notes are
not treated, for United States federal income tax purposes as a debt
denominated in US dollars, the Note Trustee, by entering into this deed
and each Class A2 Noteholder, by its acceptance of its Class A2 Note
hereby identify the Class A2 Noteholder's interest in:
(a) the A$ Equivalent of the Principal Amount of the relevant
Class A2 Notes (the CLASS A PRINCIPAL AMOUNT) and the A$
Interest Amount payable with respect to that Class A2 Note
(the CLASS A INTEREST, and together with the Class A Principal
Amount, the CLASS A HYPOTHETICAL A$ SECURITY); and
(b) the related Currency Swap,
for the purposes of Code Section 988(d)(2)(B) and Treasury regulation
section 1.988-5(a)(8) as a "qualified hedging transaction" as defined
in Treasury regulation section 1.988-5(a)(1). For such purposes:
(i) the Class A Hypothetical A$ Security represents a
qualifying debt instrument and the related Currency
Swap, a hedge;
(ii) the qualifying debt instrument and hedge were acquired
and entered into, respectively, as of the Closing Date
(or, in the case of any subsequent acquisition of a
Class A2 Note, as of the date of such subsequent
acquisition);
(iii) the qualifying debt instrument and hedge are hereby
identified as constituting a qualified hedging
transaction;
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(iv) no amount must be deferred by reason of legging into
integrated treatment;
(v) the qualified debt instrument is described by the
definitions of Class A Principal Amount and Class A
Interest and the definitions relating thereto
applying in this deed, and the hedge is described by
the definition of Currency Swap applying in this deed;
and
(vi) the cash flow resulting from the treatment of the
qualifying debt instrument and hedge as a qualified
hedging transaction is the US dollar cash flow that is
payable under the terms of the Class A2 Notes.
4. COVENANT OF COMPLIANCE
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Each of the Trustee and the Trust Manager covenants with the Note
Trustee that it will comply with and perform and observe all provisions
of the Transaction Documents which are expressed to be binding on it
for the benefit of the Note Trustee or any Class A2 Noteholder. The
Transaction Documents to which they are a party and the Conditions
shall be binding on the Trustee, the Note Trustee and the Class A2
Noteholders. The Note Trustee (or the Class A2 Noteholders, under
clause 6.5, as the case may be) is entitled to enforce the obligations
of the Trustee under the Class A2 Notes and the Conditions as if the
same were set out and contained in this deed (which shall be read and
construed as one document with the Class A2 Notes). The provisions
contained in schedule 3 shall have effect as if set out in this deed.
5. CANCELLATION OF CLASS A2 NOTES
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5.1 CANCELLATION
The Trustee shall procure that all Class A2 Notes:
(a) which have been redeemed in full; or
(b) in the case of any Definitive Note, which, being mutilated or
defaced, have been surrendered and replaced under Condition
11,
shall forthwith 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 Class A2 Notes and of their redemption, payment, exchange
or cancellation (as the case may be) and of all replacement
Class A2 Notes issued in substitution for lost, stolen,
mutilated, defaced or destroyed Definitive Notes; and
(b) such records shall be made available to the Note Trustee on
reasonable notice and during business hours promptly following
the Note Trustee's request for the same.
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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 Conditions 9 and 10) at its discretion and
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 Trust Manager which are permitted under the
Transaction Documents;
(ii) enforce the security created under the Security Trust
Deed; and
(iii) enforce repayment of the Class A2 Notes together with
accrued interest and any other moneys payable to the
Note Trustee or the Class A2 Noteholders under the
Transaction Documents.
(b) The Note Trustee must, within 90 days of becoming aware of the
occurrence of an Event of Default, notify each Class A2
Noteholder of the occurrence of that Event of Default unless:
(i) the Event of Default is not an Event of Default under
clause 8.1(a) of the Security Trust Deed; and
(ii) it determines (and only for so long as it so
determines) in good faith that withholding such notice
is in the interests of the Class A2 Noteholders.
6.2 EVIDENCE OF DEFAULT
If the Security Trustee or the Note Trustee takes any action against
the Trustee to enforce any of the provisions of any Class A2 Notes or
this deed, proof that, as regards any Class A2 Note, the Trustee has
not paid any principal or interest due in respect of that Class A2 Note
shall (unless the contrary is proved) be sufficient evidence that the
Trustee has not paid that principal or interest on all other Class A2
Notes in respect of which the relevant payment is then due.
6.3 OVERDUE INTEREST
The rates of interest payable in respect of any Class A2 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 such Class A2 Note became due and
repayable in accordance with the provisions of Condition 4 except that
no notices need be given to the Class A2 Noteholders in relation to
that interest.
6.4 RESTRICTIONS ON ENFORCEMENT
(a) If any of the Class A2 Notes remain outstanding and are due
and payable otherwise than by reason of a default in payment
of any amount due on the Class A2 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 (as
defined in the Security Trust Deed) unless either:
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(i) a sufficient amount would be realised to discharge in
full all amounts owing to the Class A2 Noteholders and
any other amounts payable by the Trustee ranking in
priority to or pari passu with the Class A2 Notes; or
(ii) the Note Trustee is of the opinion, reached after
considering at any time and from time to time the
advice of a merchant bank or other financial adviser
selected by the Note Trustee in its sole and absolute
discretion (the cost of which advice 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 gross
negligence, fraud or wilful default by it) nor the Security
Trustee (except in the case of negligence, fraud or wilful
default by it) will be liable for any decline in the value,
nor any loss realised upon any sale or other dispositions made
under the Security Trust Deed, of any Mortgaged Property or
any other property which is charged to the Security Trustee by
any other person in respect of or relating to the obligations
of the Trustee or any third party in respect of the Trustee or
the Class A2 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 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 Class A2 Noteholders may proceed
directly against the Trustee but then only if and to the extent the
Class A2 Noteholders are able to do so under Australian law.
7. PROCEEDINGS
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7.1 ACTING ONLY ON DIRECTION
The Note Trustee shall not be bound to vote under the Security Trust
Deed, or otherwise direct the Security Trustee under the Security Trust
Deed, or take any proceedings, actions or steps under, or any other
proceedings pursuant to or in connection with, the Security Trust Deed,
this deed or any Class A2 Notes, unless directed or requested to do so:
(a) by an Extraordinary Resolution of the Class A2 Noteholders, as
appropriate; or
(b) in writing by the holders of at least 75% of the aggregate
Principal Amount of the Class A2 Notes, as appropriate,
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and then only if the Note Trustee is indemnified to its satisfaction
against all action, proceedings, claims and demands to which it may
render itself liable and all costs, charges, damages and expenses which
it may incur by so doing.
If an Extraordinary Resolution of Voting Mortgagees (as defined in the
Security Trust Deed) elects not to direct the Security Trustee to
enforce the Security Trust Deed, in circumstances where the Security
Trustee could enforce, the Note Trustee must, at the direction in
accordance with (a) and/or (b) above of the Class A2 Noteholders,
direct the Security Trustee to enforce the Security Trust Deed on
behalf of the Noteholders.
7.2 SECURITY TRUSTEE ACTING
Only the Security Trustee may enforce the provisions of the Security
Trust Deed and neither the Note Trustee nor any holder of a Class A2
Note is entitled to proceed directly against the Trustee to enforce the
performance of any of the provisions of the Security Trust Deed or the
Class A2 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 Class A2
Noteholders may proceed directly against the Trustee but then only if
and to the extent the Class A2 Noteholders are able to do so under
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 or the Class A2 Notes
(including the Conditions),
and no Class A2 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 Class A2 Notes (including
the Conditions).
7.4 AVAILABLE AMOUNTS
For the purpose of Condition 5(f) the Note Trustee shall not be
satisfied that the Trustee will be in a position to discharge the
liabilities referred in 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
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(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, AA- by Fitch and (for so long as it
is a Designated Rating Agency) Aa3 by Moody's or whose short
term unsecured and unguaranteed debt securities are rated A-1
by S&P, F1+ by Fitch and (for so long as it is a Designated
Rating Agency) P-1 by Moody's to provide sufficient cash on or
before the relevant Payment Date to enable the Trustee to
discharge the relevant liabilities,
and in each circumstance the Trust Manager has certified to the Note
Trustee that the requirements of clause 7.4(a) or (b) have been met and
the Note Trustee shall be entitled to rely on such certification.
7.5 NO LIABILITY
In giving any direction to the Security Trustee under this deed or the
Security Trust Deed, the Note Trustee shall not be obliged to ensure
that the Security Trustee complies with such direction and will not be
liable for any failure by the Security Trustee so to comply.
8. NOTICE OF PAYMENT
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The Principal Paying Agent shall give notice to the relevant Class A2
Noteholders in accordance with 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 Condition 6 as appropriate (in the case of Definitive Notes) or to
the order of the registered holder of the Class A2 Notes (in the case
of any Global Note) and payment of those amounts by the Note Trustee to
the Principal Paying Agent for that purpose shall be a good discharge
to the Note Trustee.
9. INVESTMENT BY NOTE TRUSTEE
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Moneys held by the Note Trustee under the trusts of this deed may be
invested in the name or under the control of the Note Trustee in any
Authorised Investments and the Note Trustee may at any time or times
vary any Authorised Investments into other Authorised Investments and
shall not be responsible for any loss due to depreciation in value or
otherwise resulting from any Authorised Investments made by it. The
Note Trustee need only account for interest on money held on deposit
with itself equal to the highest rate payable by it to an independent
depositor in respect of comparable deposits.
10. PARTIAL PAYMENTS
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On any payment of amounts by the Trustee, the Security Trustee or the
Note Trustee in accordance with the Series Notice, the Conditions or
the Security Trust Deed (other than the payment in full against
surrender of a Class A2 Note) the Trustee, the Security Trustee or the
Note Trustee (as the case may be) shall, or shall procure that, the
Note Register
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relating to the Class A2 Note in respect of which such payment is made
shall be amended to evidence the amount and the date of payment.
11. COVENANTS BY THE TRUSTEE AND TRUST MANAGER
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Each of the Trustee and the Trust Manager severally undertakes to the
Note Trustee, on behalf of the Class A2 Noteholders, as follows in
relation to the Trust for so long as any of the Class A2 Notes remain
outstanding (except to the extent that the Note Trustee otherwise
consents):
(a) (MASTER TRUST DEED COVENANTS) It will comply with its
covenants in clause 17, 21 and 28 of the Master Trust Deed (as
the case may be).
(b) (TRANSACTION DOCUMENTS):
(i) It will comply with its material obligations under
the Transaction Documents.
(ii) It will use its reasonable endeavours (to the extent
that it is able to do so under the Master Trust Deed)
to procure that each other party to a Transaction
Document complies with and performs its obligations
under that Transaction Document.
(c) (INFORMATION) It will give to the Note Trustee a copy of any
information in its possession relating to the Trust as soon as
reasonably practicable in connection with the exercise and
performance of its powers and obligations under this deed and
which the Trustee or the Trust Manager (as the case may be)
reasonably considers has a material bearing on the interest of
the Class A2 Noteholders.
(d) (NOTIFY EVENTS OF DEFAULT)
(i) It will promptly notify the Note Trustee if it has
knowledge or notice of or is aware of the occurrence
of an Event of Default, Trustee's Default or Trust
Manager's Default including full details (to the
extent known, without making any enquiry) of that
Event of Default, Trustee's Default or Trust
Manager's Default (as the case may be).
(ii) In addition to its obligations under sub-clause item
(d)(i) of this clause 11, it will confirm to the Note
Trustee, on each anniversary of this deed:
(A) whether or not the Trust Manager or the
Trustee is aware that any Event of Default
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 Trust Manager on behalf
of the Trustee will maintain in the Borough of Manhattan, The
City of New York an office or agency where Class A2 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 A2 Notes and this deed may be served. The Trustee
hereby initially appoints
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the Principal Paying Agent to serve as its agent for the
foregoing purposes. The Principal Paying Agent shall act
solely for, and as agent of, the Trustee and shall not have
any obligations towards or relationship or agency or trust
with any other person in respect of its appointment under this
sub-paragraph (e). The Trust Manager will give prompt written
notice to the Note Trustee of the location, and of any change
in the location, of any such office or agency. If at any time
the Trust Manager on behalf of the Trustee shall fail to
maintain any such office or agency or shall fail to furnish
the Note Trustee with the address thereof, such surrenders,
notices and demands may be made or served at the Corporate
Trust Office, and the Trustee hereby appoints the Note Trustee
as its agent to receive all such surrenders, notices and
demands.
(f) (CALCULATION AGENT ) It will procure that, so long as any of
the Class A2 Notes remain outstanding, there will at all times
be a Calculation Agent.
(g) (PRINCIPAL PAYING AGENT) It will procure that, so long as any
of the Class A2 Notes remain outstanding, there will at all
times be a Principal Paying Agent.
(h) (CHANGE TO PAYING AGENTS OR CALCULATION AGENT) It will give
notice to the Class A2 Noteholders in accordance with the
Agency Agreement and Condition 12 of:
(i) any appointment, resignation or removal of any Paying
Agent (other than the appointment of the initial
Principal Paying Agent and any other Paying Agent) or
Calculation Agent;
(ii) any change to any Paying Agent's Paying Office (as
defined in the Agency Agreement); or
(iii) any change to the Calculation Agent's Specified
Office (as defined in the Agency Agreement).
(i) (NOTICES) It will promptly give to the Note Trustee, or ensure
that the Note Trustee receives for approval by the Note
Trustee, two copies of the form of every notice prior to the
notice being given to the Class A2 Noteholders in accordance
with Condition 12.
(j) (ANNUAL STATEMENT AS TO COMPLIANCE) The Trustee (or the Trust
Manager on its behalf) will deliver to the Note Trustee,
within 120 days after the end of each fiscal year of the Trust
(commencing on 30 September 2003), and otherwise in compliance
with the requirements of section 314(a)(4) of the TIA, an
Officer's Certificate stating that:
(i) a review of the activities of the Trustee in respect
of the Trust during such year and of performance
under the Transaction Documents has been made under
supervision of the person signing the Officer's
Certificate (the SIGNATORY); and
(ii) to the best of the knowledge of the Signatory, based
on the review referred to in paragraph (i), the
Trustee has complied with all conditions and
covenants under the Transaction Documents throughout
the relevant year, or, if there has been a default in
the compliance of any such condition or
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covenant, specifying each such default known to the
Signatory of the nature and status of the default.
For the purposes of this clause 11.2(j) compliance
shall be determined without regard to any period of
grace or requirement of notice under the Transaction
Documents.
(k) (OPINIONS AS TO TRUST ESTATE) On the Closing Date, the Trustee
(or the Trust Manager on its behalf) shall furnish to the Note
Trustee an Opinion of Counsel (who may be of counsel for the
Trustee) either stating that in the opinion of such counsel
the Security Trust Deed and any other requisite documents has
been properly recorded and filed so as to make effective the
Security Interest intended to be created by the Security Trust
Deed, and reciting the details of such action, or stating that
in the opinion of such counsel no such action is necessary to
make such Security Interest effective.
Within 120 days after the end of each fiscal year commencing
on 30 September 2003 the Trustee (or the Trust Manager on its
behalf) shall furnish to the Note Trustee an Opinion of
Counsel (who may be of counsel for the Trustee) either stating
that in the opinion of such counsel such action has been taken
with respect to the recording, filing, re-recording, and
refiling of the Security Trust Deed and any other requisite
documents as is necessary to maintain the Security Interest
created by the Security Trust Deed, and reciting the details
of such action, or stating that in the opinion of such counsel
no such action is necessary to maintain such Security
Interest.
(l) (NOTEHOLDER REPORT)
(i) The Trust Manager, on behalf of the Trustee, shall
deliver to the Principal Paying Agent and the Note
Trustee on each Payment Date the Noteholders Report
for the related Collection Period, with written
instructions for the Note Trustee and the Principal
Paying Agent to forward the Noteholders Report to
each Class A2 Noteholder.
(ii) Each Noteholder Report shall contain the information
set out in schedule 4.
(m) (LISTING) It will use its best endeavours to:
(i) obtain and maintain the listing of the Class A2 Notes
on the Luxembourg Stock Exchange (including
compliance with the continuing obligations applicable
to the Trustee by virtue of the admission of the
Class A2 Notes to the Luxembourg 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 A2 Notes on any
other Stock Exchange or Stock Exchanges or securities
market or markets as the Trust Manager (with the
prior written approval of the Note Trustee, that
approval not to be unreasonably withheld or delayed)
decides and following that quotation or listing enter
into a deed supplemental to this deed to effect such
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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 Luxembourg Stock Exchange (or to any other
relevant stock exchange or securities market) any
information which the Luxembourg 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.
(n) (LUXEMBOURG PAYING AGENt) It will procure that, so long as the
Class A2 Notes are listed on the Luxembourg Stock Exchange,
there will at all times be a Paying Agent with a specified
office in Luxembourg for so long as it is necessary to do so
to comply with the Luxembourg Stock Exchange listing
requirements.
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.
12.2 ADDITIONAL REMUNERATION
If the Note Trustee gives a notice under Condition 9 or it undertakes
duties which it considers expedient or necessary under this deed, or
which the Trustee requests it to undertake and which duties the Note
Trustee, the Trust Manager and the Trustee agree to be of an
exceptional nature or otherwise outside the scope of the normal duties
of the Note Trustee under this deed, the Trustee shall pay to the Note
Trustee any additional remuneration as they agree.
In the event of the Note Trustee, the Trust Manager and the Trustee
failing to agree as to any of the matters in this clause 12.2, such
matter shall be determined by a merchant or investment bank (acting as
an expert and not as an arbitrator) selected by the Note Trustee and
approved by the Trustee or, failing such approval, nominated (on the
application of the Note Trustee or the Trustee) by the President for
the time being of The Law Society of England and Wales (the expenses
involved in such nomination and the fees of such merchant or investment
bank being shared equally by the Trustee and the Note Trustee) and the
determination of any such merchant or investment bank shall be final
and binding upon the Note Trustee, the Trust Manager and the Trustee
and shall be payable by the Trustee to the Note Trustee.
12.3 COSTS, EXPENSES
(a) Subject to clause 34.8, the Trustee shall also reimburse, pay
or discharge all reasonable costs, charges, liabilities and
expenses and any stamp and other Taxes or duties paid by the
Note Trustee (or the Class A2 Noteholders acting under clause
6.5 (as the case may be)) in connection with undertaking its
duties under the Transaction Documents and in connection with
any legal proceedings brought by the Note Trustee (or the
Class A2 Noteholders acting under clause 6.5 (as the case may
be)) to enforce any obligation under this deed or the Class A2
Notes.
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(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 Class A2 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 trusts of this deed
or of their powers or in respect of any matter or thing done
or omitted in any way relating to this deed.
12.4 OVERDUE RATE
All sums payable by the Trustee under clause 12.3 shall be payable by
the Trustee on the next Payment Date in the order set out in the Series
Notice or (if applicable) the Security Trust Deed and shall carry
interest at the rate of LIBOR plus 2% from the due date. Any amount
payable shall carry interest at that rate from the due date to the date
of actual payment.
12.5 CONTINUING OBLIGATION
Unless otherwise specifically stated in any discharge relating to this
deed the provisions of this clause shall continue in full force and
effect notwithstanding such discharge and even if the Note Trustee has
ceased to be the Note Trustee for any reason including but not limited
to those contemplated in clause 23 it will be entitled to all rights
arising to it prior to it ceasing to be the Note Trustee.
13. LIMITED RESPONSIBILITIES OF NOTE TRUSTEE
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Subject to clause 14, it is expressly declared as follows.
(a) So long as it does so in good faith, 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
Trust Manager or otherwise.
(b) Any such advice, opinion or information may be sent or
obtained by letter, telex, telegram, facsimile transmission or
cable and the Note Trustee shall not be liable for acting on
any advice, opinion or information purporting to be conveyed
by any such letter, telex, telegram, facsimile transmission or
cable although the same shall contain some error or shall not
be authentic.
(c) The Note Trustee may call for and shall be at liberty to
accept as sufficient evidence of any fact or matter or the
expediency of any transaction or thing a certificate signed by
two Authorised Signatories of the Trustee or the Trust Manager
(as the case may be) and the Note Trustee shall not be bound
in any such case to call for further evidence or be
responsible for any loss that may be occasioned by the Note
Trustee acting on that certificate.
(d) 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
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banking company or company whose business includes undertaking
the safe custody of documents or lawyer or firm of lawyers
reasonably considered by the Note Trustee to be of good repute
and except in the case of fraud, negligence or wilful default
(in the case of the Security Trustee) or fraud, gross
negligence or wilful default (in the case of the Note Trustee)
of that party, 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 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.
(e) The Note Trustee shall not be responsible for the application
of the proceeds of the issue of any of the Class A2 Notes by
the Trustee or any moneys borrowed by the Trustee under any
Transaction Document or the exchange of any Global Note for
any Definitive Notes.
(f) 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 Class A2 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.
(g) Save as expressly otherwise provided in this deed or the
Transaction Documents, 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 Class A2 Noteholders shall be conclusive
and binding on the Class A2 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 Class A2 Noteholders, or any of them, the Note Trustee
shall nevertheless not be so bound unless first indemnified 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.
(h) The Note Trustee shall not be liable for acting upon any
resolution purporting to have been passed at any meeting of
the Class A2 Noteholders in respect of which minutes have been
made and signed even though subsequently it may be found that
there was some defect in the constitution of the meeting or
the passing of the resolution or that for any reason the
resolution was not valid or binding upon the Class A2
Noteholders.
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(i) The Note Trustee shall not be liable to the Trustee or any
Class A2 Noteholder by reason of having accepted as valid or
not having rejected any entry in the Note Register in respect
of a Definitive Note which is subsequently found to be
incorrect and the Note Trustee shall be at liberty to accept
and place full reliance on the Note Register as complete and
accurate evidence to the effect that at any particular time or
through any particular period any particular person is, was,
or will be, shown in its records as entitled to a particular
number of Class A2 Notes.
(j) 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.
(k) Save as otherwise expressly provided in this deed, the Note
Trustee shall not (unless and to the extent ordered so to do
by a court of competent jurisdiction) be required to disclose
to any Class A2 Noteholder or any Mortgagee, any information
made available to the Note Trustee by the Trustee, the Trust
Manager or any other person in connection with the trusts of
this deed and no Class A2 Noteholder shall be entitled to take
any action to obtain from the Note Trustee any such
information.
(l) Where it is necessary or desirable for any purpose in
connection with this deed to convert any sum from one currency
to another it shall (unless otherwise provided by this deed or
any other Transaction Document or required by law) be
converted at the rate or rates, in accordance with the method
and as at the date for the determination of the rate of
exchange, as may be agreed by the Note Trustee in consultation
with the Trustee and the Trust Manager as relevant and any
rate, method and date so agreed shall be binding on the
Trustee and the Class A2 Noteholders.
(m) 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
paragraphs (b) to (g) of 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 Class
A2 Noteholders and may certify, in relation to the event set
out in paragraph (a) of Condition 9 in relation to any payment
of interest on the Class A2 Notes that the Trustee had, on the
due date for payment of the amount of interest in question,
sufficient cash to pay, in accordance with the provisions of
the Series Notice or the Security Trust Deed, all interest
(after payment of all sums which are permitted under the
Series Notice or the Security Trust Deed to be paid in
priority to or pari passu with them) and that certificate
shall be conclusive and binding upon the Trustee and the Class
A2 Noteholders. The Note Trustee shall have no liability to
the Trustee, any Class A2 Noteholder or any other person in
relation to any such certificate or in relation to any delay
or omission in providing such certificate. In giving any
certificate relating to paragraph (a) of 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
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Trustee and the Class A2 Noteholders. The Trustee shall pay
the Note Trustee all costs and expenses of providing the
certificate at the times specified in the Series Notice.
(n) 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.
(o) 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 default or failure might be, or might have
been, discovered upon examination inquiry or investigation and
whether or not capable of remedy. Notwithstanding the
generality of the foregoing each Class A2 Noteholder is solely
responsible for making its own independent appraisal of and
investigation into the Trust and the Class A2 Notes and the
Note Trustee shall not at any time have any responsibility for
the same and no Class A2 Noteholder shall rely on the Note
Trustee in that respect.
(p) The Note Trustee shall not be liable for any failure, omission
or defect in or filing or procuring registration or filing of
or otherwise protecting or perfecting the Security Trust Deed
or the Mortgaged Property or any other security or failure to
call for or delivery of documents of title to the Mortgaged
Property or any other security or to require any further
assurances in relation to any property or assets comprised in
the Mortgaged Property or any other security.
(q) 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 Class A2 Notes (including the
Conditions), except where expressly provided otherwise have
regard to the interests of the Class A2 Noteholders.
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(r) 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 and shall not be responsible for any loss,
expense or liability which may be suffered as a result of the
lack of or inadequacy of any of that insurance.
(s) Subject to Condition 10(c), the Note Trustee shall not be
responsible for any loss, expense or liability 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.
(t) The Note Trustee has no responsibility whatsoever to the
Trustee or any Class A2 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.
(u) No provision of this deed requires the Note Trustee to do
anything which may be illegal or contrary to applicable law or
regulation or expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties, or in the exercise of any of its rights or powers, if
it has grounds to believe that repayment of those funds or
adequate indemnity against that risk or liability is not
assured to it. Without limitation nothing contained in this
deed imposes any obligation on the Note Trustee to make any
further advance to an Obligor or to borrow any moneys under a
Transaction Document or to maintain, protect or preserve any
moneys standing to the credit of the Collection Account.
(v) The Note Trustee is not responsible (except as to itself) for
the genuineness, validity, effectiveness or suitability of any
of the Transaction Documents or any of the Mortgages, Security
Interests or other documents entered into in connection with
them or any Mortgage Insurance Policy or the priority
constituted by or purported to be constituted by or pursuant
to that Security Interest, nor shall it (except as to itself)
be responsible or liable to any person because of any
invalidity of any provision of those documents or the
unenforceability of those documents, whether arising from
statute, law or decision of any court and (without limitation)
the Note Trustee shall not be responsible for or have any duty
to make any investigation in respect of or in any way be
liable whatsoever for:
(i) the nature, status, creditworthiness or solvency of
any Obligor or any other person or entity who has at
any time provided any security or support whether by
way of guarantee, Security Interest or otherwise in
respect of any advance made to any Obligor;
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(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 representation,
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 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;
(vii) 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;
(viii) 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;
(ix) the title of the Trustee to any Mortgage or Loan or
other Mortgaged Property;
(x) the suitability, adequacy or sufficiency of any
guidelines under which Loans are entered into or
compliance with those guidelines or compliance with
any applicable criteria for any further advances or
the legality or ability or enforceability of the
advances or the priority of the Mortgages in relation
to the advances;
(xi) the compliance of 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);
(xii) the failure of any Approved Seller, the Servicer, the
Trust Manager or the Trustee to obtain or comply with
any Authorisation in connection with the origination,
sale purchase or administration of any of the
Mortgages or
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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;
(xiii) 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;
(xiv) any accounts, books, records or files maintained by
any Approved Seller, the Servicer, the Trustee, the
Trust Manager or any other person in respect of any
of the Mortgages or Loans; or
(xv) 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.
(w) 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.
(x) The Note Trustee is not liable in respect of it being treated
as, or being deemed to be, a creditor, for the purposes of the
Consumer Credit Legislation, in respect of any of the
Mortgages.
(y) The Note Trustee shall be entitled to call for and rely on a
certificate or any letter of confirmation or explanation
reasonably believed by it to be genuine, of the Trustee, the
Trust Manager, any Paying Agent, the Calculation Agent or any
Designated Rating Agency in respect of every manner and
circumstance for which a certificate is expressly provided for
under this deed or in respect of the rating of the Class A2
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.
(z) In connection with any proposed modification, waiver,
authorisation or determination permitted by this deed, the
Note Trustee shall not have regard to the consequences thereof
for individual Class A2 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.
(aa) 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 Class
A2 Notes by a Designated Rating Agency or any other
credit-rating agency or any other person.
(bb) The Note Trustee shall be under no obligation to monitor or
supervise the functions of or any person under any Transaction
Document, and is entitled, in the absence of actual knowledge
of a breach of duty or obligation, to assume that any
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person is properly performing its obligations in accordance
with each Transaction Document.
(cc) The Note Trustee acknowledges that the Trust Manager is
responsible, under the Series Notice, for calculating all
amounts referred to in clause 6.2 of the Series Notice (other
than calculations required to be made by the Calculation Agent
under the Agency Agreement) and the Note Trustee has no
liability in respect of these calculations.
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 TIA only to the extent required by the TIA. Section 315(d)(3)
of the TIA is expressly excluded by this deed.
14. NOTE TRUSTEE'S LIABILITY
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Nothing in this deed shall exempt the Note Trustee from or indemnify it
against any liability for breach of trust or any liability in respect
of any fraud, negligence or wilful default of which it may be guilty in
relation to its duties under this deed.
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 Class A2 Noteholders think
fit, provided that appointment does not have an adverse effect
on the ratings of the Class A2 Notes.
(b) If the Note Trustee exercises reasonable care in the selection
of a delegate under paragraph (a), the Note Trustee shall not
be required to supervise the actions of the delegate and shall
not in any way be responsible for any loss incurred by reason
of any misconduct or default on the part of any delegate or
sub-delegate. The Note Trustee must within a reasonable time
prior to any delegation or any renewal, extension or
termination of any delegation give notice of it to the Trustee
and each Designated Rating Agency.
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE
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The Note Trustee may in the conduct of the trusts of this deed instead
of acting personally employ and pay an agent, whether being a lawyer or
other professional person, to transact or concur in transacting any
business and to do or concur in doing all acts required to be done in
connection with the trusts of this deed provided that the use of such
an agent does not have an adverse effect on the ratings of the Class A2
Notes. So long as the Note Trustee exercises reasonable care in the
selection of that agent, the Note Trustee shall not
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be required to supervise the actions of the agent and shall not in any
way be responsible for any loss incurred by reason of any misconduct or
default on the part of that agent.
Any trustee of this deed which is a lawyer, accountant, broker or other
person engaged in any profession or business is entitled to charge and
be paid all usual professional and other charges for business
transacted and acts done by him or his firm in connection with the
trusts of this deed and also his reasonable charges in addition to
disbursements for all other work and business done and all time spent
by him or his firm in connection with matters arising in connection
with this deed. Those charges will be for the account of the Note
Trustee unless agreed otherwise who shall be reimbursed by the Trustee
under clause 12.
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE
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Neither the Note Trustee nor any director or officer of a corporation
acting as a trustee under this deed, nor the Security Trustee, is by
reason of its or their fiduciary position in any way precluded from
entering into or being interested in any contract or financial or other
transaction or arrangement with the Trustee or any other party to any
of the Transaction Documents or any person or body corporate associated
with the Trustee including any contract, transaction or arrangement of
a banking or insurance nature or any contract, transaction or
arrangement in relation to the making of loans or the provision of
financial facilities to or the purchase, placing or underwriting of or
subscribing or procuring subscriptions for or otherwise acquiring
holding or dealing with any Class A2 Notes, or any other bonds, stocks,
shares, debenture stock, debentures, notes or other securities of the
Trustee or any other party to any of the Transaction Documents or any
related person or body corporate or from accepting or holding the
trusteeship of any other trust deed constituting or securing any other
securities issued by or relating to the Trustee or any other party to
any of the Transaction Documents or any related person or body
corporate or any other office of profit under the Trustee or any other
party to any of the Transaction Documents or any related person or body
corporate and shall be entitled to retain and shall not be in any way
liable to account for any profit made or share of brokerage or
commission or remuneration or other benefit received or in connection
with any of those arrangements.
18. WAIVER
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(a) The Note Trustee may without prejudice to its rights in
respect of any subsequent breach, condition, event or act from
time to time and at any time (but only if, and in so far as,
in its opinion the interests of any of the Class A2
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 the
Trust Manager of any of the covenants or provisions
contained in this deed or in the Class A2 Notes
(including the Conditions) or any other Transaction
Document (as
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to which evidence of a breach of one Class A2 Note
shall be deemed evidence of a breach of all Class A2
Notes); or
(ii) determine that any condition, event or act which
constitutes, or which with the giving of notice, the
lapse of time or the issue of a certificate would
constitute, but for that determination, an Event of
Default shall not, or shall not subject to specified
conditions, be so treated for the purposes of this
deed,
but the Note Trustee shall not exercise any powers conferred
on it by this clause in contravention of any express direction
given by an Extraordinary Resolution. No direction or request
shall affect any waiver, authorisation or determination
previously given or made.
(b) Any waiver, authorisation or determination under this clause
is binding on the Class A2 Noteholders and if, but only if,
the Note Trustee so requires, shall be notified by the Trustee
to the Class A2 Noteholders in accordance with Condition 12 as
soon as practicable.
19. AMENDMENT
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19.1 APPROVAL
The Note Trustee, the Trust Manager and the Trustee may, following the
giving of notice to each Designated Rating Agency, by way of
supplemental deed alter, add to or modify this deed (including this
clause 19), the Conditions so long as that alteration, addition or
modification is:
(a) to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(b) in the opinion of the Note Trustee necessary to comply with
the provisions of any law or regulation or with the
requirements of any Government Agency;
(c) in the opinion of the Note Trustee appropriate or expedient as
a consequence of an amendment to any law or regulation or
altered requirements of any Government Agency (including,
without limitation, an alteration, addition or modification
which is in the opinion of the Note Trustee appropriate or
expedient as a consequence of the enactment of a law or
regulation or an amendment to any law or regulation or ruling
by the Commissioner or Deputy Commissioner of Taxation or any
governmental announcement or statement, in any case which has
or may have the effect of altering the manner or basis of
taxation of trusts generally or of trusts similar to the
Trust); or
(d) in the opinion of the Note Trustee not materially prejudicial
nor likely to be prejudicial to the interests of the Class A2
Noteholders as a whole,
and in the manner, and to the extent, permitted by the Transaction
Documents.
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19.2 EXTRAORDINARY RESOLUTION OF NOTEHOLDERS
Where in the opinion of the Note Trustee a proposed alteration,
addition or modification to this deed, other than an alteration,
addition or modification referred to in clause 19.1, is materially
prejudicial or likely to be materially prejudicial to the interest of
Class A2 Noteholders as a whole, the Note Trustee, the Trust Manager
and the Trustee may make that alteration, addition or modification if
sanctioned by an Extraordinary Resolution of the Class A2 Noteholders.
19.3 DISTRIBUTION OF AMENDMENTS
The Trust Manager shall distribute to all Class A2 Noteholders a copy
of any amendments made under clause 19.1 or 19.2 under 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 Class A2 Noteholders.
19.5 CONFORMITY WITH TIA
Every amendment of this deed executed pursuant to this clause 19 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. CLASS A2 NOTEHOLDERS
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20.1 ABSOLUTE OWNER
(a) The Trustee, the Trust Manager, the Security Trustee, the Note
Trustee and any Paying Agent may treat the registered holder
of any 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 trust or other interest in it)
for the purpose of making payment and for all purposes and
none of the Trustee, the Trust Manager, the Security Trustee,
the Note Trustee or the Paying Agents is affected by any
notice to the contrary.
(b) So long as the Class A2 Notes, or any of them, are represented
by a Global Note, the Trustee, the Trust Manager, the Security
Trustee, the Note Trustee and any Paying Agent may treat the
person for the time being shown in the records of the Clearing
Agency as the holder of any Class A2 Notes as the absolute
owner of those Class A2 Notes and the Trustee, the Trust
Manager, the Security Trustee, the Note Trustee and the Paying
Agents are not affected by any notice to the contrary, but
without prejudice to the entitlement of the registered holder
of the Global Note to be paid principal and interest on the
Global Note in accordance with its terms. Without limitation,
notices to the Class A2 Noteholders may be given by delivery
of the relevant notice to the Clearing Agency as the holder of
the Class A2 Notes for communication by them to entitled
account holders.
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(c) Provided the Trustee, the Note Trustee or the Security Trustee
(as the case may be) (or a Paying Agent on behalf of the
Trustee, the Note Trustee, or the Security Trustee (as the
case may be)) pays the registered holder of the Global Notes
in accordance with the Transaction Documents, each Class A2
Note Owner shall have no claim directly against the Trustee ,
the Note Trustee or the Security Trustee (as the case may be)
in respect of payment due on the Class A2 Notes for so long as
the Class A2 Notes are represented by a Global Note.
(d) Without limiting the preceding paragraphs of this clause 20.1,
all payments made to a Class A2 Note Owner in respect of a
Class A2 Note under this clause (or, in the case of a Global
Note, to or to the order of the registered holder of the
Global Note) shall be valid and, to the extent of the sums so
paid, effective to satisfy and discharge the liability for the
moneys payable upon those Class A2 Notes.
20.2 CLEARING SYSTEM CERTIFICATE
The Trustee, the Trust Manager, the Security Trustee and the Note
Trustee may call for and shall be at liberty to accept and place full
reliance on as sufficient evidence a certificate or letter or
confirmation signed on behalf of a Clearing Agency or any form of
record made by it to the effect that at any particular time or
throughout any particular period any particular person is, was, or will
be, shown in its records as entitled to a particular interest in a
Global Note.
21. CURRENCY INDEMNITY
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Subject to this deed, including clause 29, the Trustee indemnifies the
Note Trustee and the Class A2 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$ due to the Note Trustee
or the relevant Class A2 Noteholders under this deed or the
relevant Class A2 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$, and under which the Note Trustee or
the Class A2 Noteholders do not have an option to have that
judgment or order expressed in US$, and those prevailing at
the date of actual payment by the Trustee; 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$ currency
equivalent of the US$ amounts due or contingently due
under this deed (other than this clause) or in
respect of the relevant Class A2 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$.
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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 Class
A2 Notes and apply irrespective of any time or indulgence
granted by the Note Trustee or the Class A2 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 Class A2 Notes. Any
deficiency will constitute a loss suffered by the Class A2
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 Trust Manager at any time
appoint a new Note Trustee of this deed who has previously been
approved by an Extraordinary Resolution of the Class A2 Noteholders.
One or more persons may hold office as Note Trustee or Note Trustees of
this deed but that Note Trustee or those Note Trustees must be or
include a Trust Corporation. Whenever there are more than two Note
Trustees of this deed the majority of those Note Trustees are competent
to execute and exercise all the duties, powers, trusts, authorities and
discretions vested in the Note Trustee by this deed if a Trust
Corporation is included in that majority.
22.2 APPOINTMENT BY NOTE TRUSTEE
(a) The Note Trustee may, on 30 days prior written notice to the
Trustee, the Trust Manager, the Principal Paying Agent and the
Class A2 Noteholders (in accordance with Condition 12),
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 Class A2 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, 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.
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(c) The Note Trustee may remove any person appointed under this
clause. The remuneration of any person appointed under this
clause together with any costs, charges and expenses properly
incurred by it in performing its function as Note Trustee or
co-Note Trustee will be costs, charges and expenses incurred
by the Note Trustee under this deed who shall be reimbursed by
the Trustee under clause 12.
22.3 NOTICE
The Note Trustee shall notify each Designated Rating Agency of any
appointment of a new Note Trustee or its retirement or removal as soon
as practicable.
22.4 REQUIREMENT FOR NOTE TRUSTEE
Notwithstanding anything in this deed to the contrary, no person shall
become a Note Trustee under this deed unless it meets the requirements
of Section 26(a)(3) of the United States Investment Company Act of
1940, as amended (the INVESTMENT COMPANY ACT).
23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL
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23.1 REMOVAL BY TRUSTEE
The Trustee (or the Trust Manager on its behalf after informing the
Trustee of its intention to do so) may at any time terminate the
appointment of the Note Trustee by giving written notice to that effect
to each Designated Rating Agency and the Note Trustee with effect
immediately on that notice, if any of the following occurs in relation
to the Note Trustee:
(a) an Insolvency Event has occurred in relation to the Note
Trustee;
(b) the Note Trustee has ceased its business;
(c) the Note Trustee fails to comply with any of its obligations
under any Transaction Document and such failure has had or, if
continued will have, a Material Adverse Effect (as determined
by the Trustee), and, if capable of remedy, the Note Trustee
does not remedy within 14 days after the earlier of:
(i) the Note Trustee becoming aware of that failure; and
(ii) receipt by the Note Trustee of a written notice with
respect thereto from either the Trustee or the Trust
Manager; or
(d) the Note Trustee fails to satisfy any obligation imposed on it
under the TIA with respect to the Trust or this deed or comply
with clause 23.6.
23.2 REMOVAL BY CLASS A2 NOTEHOLDERS
The Class A2 Noteholders may resolve by Extraordinary Resolution to
require the Trustee to remove the Note Trustee or Note Trustees for the
time being of this deed.
23.3 RESIGNATION
Subject to this clause 23, the Note Trustee may resign its appointment
under this deed at any time by giving to the Trustee, the Trust
Manager, the Security Trustee and each
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Designated Rating Agency not less than 3 months written notice to that
effect. Notwithstanding the preceding sentence, the Note Trustee shall
not resign its appointment under this deed until a successor Note
Trustee has been appointed and has accepted its appointment as Note
Trustee under this deed as provided in clause 23.5.
23.4 TRUST CORPORATION
Each of the Trustee and the Trust Manager undertakes that if the only
Note Trustee which is a Trust Corporation retires or is removed it will
use reasonable endeavours to appoint a new Note Trustee of this deed
which is a Trust Corporation as soon as reasonably practicable. The
retirement or removal of any Note Trustee shall not become effective
until a successor Note Trustee which is a Trust Corporation is
appointed. The Trust Manager must assist the Trustee to appoint a new
Note Trustee of this deed. If the Trustee fails to appoint a new Note
Trustee within three months from such retirement or removal, the Note
Trustee shall be entitled to appoint a new Note Trustee which is a
Trust Corporation and such appointment shall be deemed to have been
made under clause 22.2 of this deed.
23.5 SUCCESSOR TO NOTE TRUSTEE
(a) On the execution by the Trustee, the Trust Manager and any
successor Note Trustee of an instrument effecting the
appointment of that successor Note Trustee, that successor
Note Trustee shall, without any further act, deed or
conveyance, become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of the
predecessor Note Trustee with effect as if originally named as
Note Trustee in this deed and the Transaction Documents and
that predecessor Note Trustee, on payment to it of the pro
rata proportion of its fee and disbursements then unpaid (if
any), shall have no further liabilities under this deed,
except for any accrued liabilities arising from or relating to
any act or omission occurring prior to the date on which the
successor Note Trustee is appointed.
(b) Any corporation:
(i) into which the Note Trustee is merged;
(ii) with which the Note Trustee is consolidated;
(iii) resulting from any merger or consolidation to which
the Note Trustee is a party;
(iv) to which the Note Trustee sells or otherwise
transfers all or substantially all the assets of its
corporate trust business,
shall, on the date when that merger, conversion,
consolidation, sale or transfer becomes effective and to the
extent permitted by applicable law, become the successor Note
Trustee under this deed without the execution or filing of any
agreement or document or any further act on the part of the
parties to this deed, unless otherwise required by the Trustee
or the Trust Manager, and after that effective date all
references in this deed to the Note Trustee shall be
references to that corporation.
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(c) If no other person can be found to act as Note Trustee, the
Class A2 Noteholders may elect a Note Trustee from among the
holders of the Class A2 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 Class A2
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.
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) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the
recipient shown in clause 26.2 or to any other
address which may have been notified by the recipient
to the sender under this clause 26;
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(ii) (in the case of facsimile transmission) on receipt of
a transmission report confirming successful
transmission to the number shown in clause 26.2 or
any other number notified by the recipient to the
sender under this clause 26; and
(iii) (in the case of a telex) on receipt by the sender of
the answerback code of the recipient at the end of
transmission to the number shown in clause 26.2 or
any other number notified by the recipient to the
sender under this clause 26,
but if delivery or receipt is on a day on which business is
not generally carried on in the place to which the
communication is sent or is later than 4.00 pm (local time),
it will be taken to have been duly given or made at the
commencement of business on the next day on which business is
generally carried on in that place. Any party may by notice to
each party change its address, facsimile and telex under this
clause 26.1.
26.2 DETAILS
The address, facsimile and telex of each person to whom notices may be
sent at the date of this deed are as follows:
THE TRUSTEE
PERPETUAL TRUSTEES VICTORIA LIMITED
Level 7
9 Castlereagh Street
Sydney NSW 2000
Australia
Tel: 61 2 9229 9000
Fax: 61 2 9221 7870
Attention: Manager, Securitisation
THE TRUST MANAGER
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
Level 28
367 Collins Street
Melbourne VIC 3000
Australia
Tel: 61 3 9612 1111
Fax: 61 3 9621 2368
Attention: Chief Executive Officer
THE NOTE TRUSTEE
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THE BANK OF NEW YORK, NEW YORK BRANCH
101 Barclay Street
21W
New York New York 10286
United States
Tel: [*]
Telex: [*]
Fax: [*]
Attention: [*]
27. GOVERNING LAW AND JURISDICTION
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This deed and the trust constituted under this deed are governed by the
law of New South Wales, Australia. The parties submit to the
non-exclusive jurisdiction of courts exercising jurisdiction there. The
administration of the trust constituted under this deed, including the
exercise of the Note Trustee's powers under 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 32 of the Master Trust Deed (as amended by the Series Notice)
applies to the obligations and liabilities of the Trustee and the Trust
Manager under this deed.
29.2 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT OF INDEMNITY
Without limiting the generality of clause 29.1, clause 32.16 of the
Master Trust Deed (as amended by the Series Notice) is incorporated
into this agreement as if set out in full.
29.3 UNRESTRICTED REMEDIES
Nothing in this clause 29 limits a party in:
(a) obtaining an injunction or other order to restrain any breach
of this agreement by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
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29.4 RESTRICTED REMEDIES
Except as provided in clause 29.1 and subject to clause 29.3, a party
shall not:
(a) (STATUTORY DEMAND) issue any demand under s459E(1) of the
Corporations Act (or any analogous provision under any other
law) against the Trustee;
(b) (WINDING UP) apply for the winding up or dissolution of the
Trustee;
(c) (EXECUTION) levy or enforce any distress or other execution
to, on, or against any assets of the Trustee (other than the
Trust Assets);
(d) (COURT APPOINTED RECEIVER) apply for the appointment by a
court or a receiver to any of the assets of the Trustee (other
than the Trust Assets);
(e) (JUDGMENT) obtain a judgment for the payment of money or
damages by the Trustee;
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against the Trustee (other than in
respect of the Trust Assets); or
(g) (ADMINISTRATOR) appoint, or agree to the appointment of, any
administrator to the Trustee,
or take proceedings for any of the above and a party waives its rights
to make those applications and take those proceedings.
30. SUCCESSOR TRUSTEE
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The Note Trustee shall do all things reasonably necessary to enable any
successor Trustee appointed under clause 23 of the Master Trust Deed to
become the Trustee under this deed.
31. REIMBURSEMENT FOR THE COST OF INDEPENDENT ADVICE
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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
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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 disposition 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
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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, except for the
gross negligence, fraud or wilful default of the Note Trustee.
(b) any decline or loss directly or indirectly arising from the
Note Trustee acting or failing to act as a consequence of an
opinion reached by it, except for the negligence, fraud or
wilful default of the Note Trustee.
(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 any clearing organisations or their operator or
by any person on behalf of the Security Trustee or the Note
Trustee, except for the gross negligence, fraud 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, advertisement, circular
or other document issued by or on behalf of the Trustee or Trust
Manager, including in connection with the issue of Notes. Neither the
Trustee nor the Trust Manager may publish or permit to be published any
such document in connection with the offer of Notes or an invitation
for subscriptions for Notes containing any statement which makes
reference to the Note Trustee without the prior written consent of the
Note Trustee, which consent must not be unreasonably withheld. In
considering whether to give its consent, the Note Trustee is not
required to take into account the interests of the Noteholders.
34. NOTE TRUSTEE'S LIMITED LIABILITY
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Without prejudice to any indemnity allowed by law or elsewhere in this
deed given to the Note Trustee, it is expressly declared as follows.
34.1 RELIANCE ON CERTIFICATES
The Note Trustee shall not incur any liability in respect of any action
taken or thing suffered by it in reliance on any notice, resolution,
direction, consent, certificate, receipt, affidavit, statement,
valuation report or other document (including any of the above
submitted or provided by the Trust Manager, a Noteholder or the
Trustee) which it has no reason to believe is not genuine, signed by
the proper parties and with appropriate authority.
In preparing any notice, certificate, advice or proposal the Note
Trustee shall be entitled to assume that each person under any
Authorised Investment, Support Facility, Mortgage, Loan, other
Transaction Document or any other deed, agreement or arrangement
incidental to any of the above or to any Trust, will perform their
obligations under those documents in full by the due date and otherwise
in accordance with their terms.
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34.2 NOTE TRUSTEE MAY ASSUME SIGNED DOCUMENTS TO BE GENUINE
(a) (RELIANCE ON DOCUMENTS) Subject to sub-clause (b):
(i) (NOTE TRUSTEE MAY ASSUME AUTHENTICITY) the Note
Trustee shall be entitled to assume the authenticity
and validity of any signature on any application,
request or other instrument or document delivered to
the Note Trustee (other than a document executed or
purporting to be executed by or on behalf of the
Security Trustee or the Trust Manager, as to which
clause 34.3 shall apply); and
(ii) (NOTE TRUSTEE NOT LIABLE FOR LOSS ON FORGERIES) the
Note Trustee shall not be in any way liable to make
good out of its own resources any loss incurred by
any person in the event of any signature on any
document being forged or otherwise failing to bind
the person whose signature it purports to be or the
person on whose behalf it purports to be executed.
(b) (LIMITATIONS ON ASSUMPTIONS WHERE ACTUAL KNOWLEDGE) The Note
Trustee shall not be entitled to the benefit of paragraph (a)
in relation to an application, request or other instrument or
document if it was actually aware that the signature was not
genuine.
34.3 NOTE TRUSTEE'S RELIANCE ON TRUST MANAGER OR SECURITY TRUSTEE
(a) (AUTHORISED SIGNATORIES ARE SUFFICIENT EVIDENCE) Whenever any
certificate, notice, proposal, direction, instruction or other
communication is to be given by the Trust Manager or the
Security Trustee to the Note Trustee, the Note Trustee may
accept as sufficient the form and content of a document unless
it has reason to believe that the relevant document was not
signed on behalf of the Trust Manager or the Security Trustee
(as the case may be) or by any Authorised Signatory of the
Trust Manager or the Security Trustee (as the case may be).
(b) (NOTE TRUSTEE NOT LIABLE FOR LOSS) The Note Trustee shall not
be responsible for any loss arising from any act, neglect,
mistake or discrepancy of the Trust Manager or the Security
Trustee or any officer, employee, agent or delegate of the
Trust Manager or the Security Trustee in preparing any such
document or in compiling, verifying or calculating any matter
or information contained in any such document, if the officers
of the Note Trustee responsible for the administration of the
Trust are not actually aware, or should not reasonably have
been aware, that such document is not genuine and correct,
whether or not an error in any such information, document,
form or list is reproduced by the Note Trustee in any step
taken by it.
34.4 COMPLIANCE WITH LAWS
The Note Trustee shall not incur any liability to anyone in respect of
any failure to perform or to do any act or thing which by reason of any
provision of any relevant present or future law of any place or any
ordinance, rule, regulation or by law or of any decree, order or
judgement of any competent court or other tribunal, the Note Trustee
shall be hindered, prevented or forbidden from doing or performing.
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34.5 TAXES
The Note Trustee shall not be liable to account to any person for any
payments made in good faith to any duly empowered Government Agency of
any Australian Jurisdiction or any other place for Taxes or other
charges on the Trust or on any Notes or with respect to any transaction
under or arising from this deed or any other Transaction Document
notwithstanding that any such payment ought or need not have been made.
34.6 RELIANCE ON EXPERTS
The Note Trustee may act on the opinion or statement or certificate or
advice of or information obtained from the Security Trustee, attorneys,
barristers or solicitors (whether instructed by the Note Trustee or
not), bankers, accountants, brokers, valuers and other persons believed
by it in good faith to be expert or properly informed in relation to
the matters on which they are consulted and the Note Trustee shall not
be liable for anything done or suffered by it in good faith in reliance
on such opinion, statement, certificate, advice or information.
34.7 OVERSIGHTS OF OTHERS
Subject to this deed, the Note Trustee shall not be responsible for any
act, omission, misconduct, mistake, oversight, error of judgement,
forgetfulness or want of prudence on the part of any person or agent
appointed by the Note Trustee and on whom the Note Trustee is entitled
to rely under this deed (other than a Related Corporation), attorney,
banker, receiver, barrister, solicitor, agent or other person acting as
agent or advisor to the Note Trustee.
34.8 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.
34.9 IMPOSSIBILITY OR IMPRACTICABILITY
If for any reason whatsoever it becomes impossible or impracticable to
carry out any or all of the provisions of this deed or any other
Transaction Document, the Note Trustee shall not be under any liability
nor shall it incur any liability by reason of any error of law or any
matter or thing done or suffered or omitted to be done in good faith by
it or its officers, employees, agents or delegates except to the extent
of its own fraud, negligence or wilful default.
34.10 LEGAL AND OTHER PROCEEDINGS
(a) (INDEMNITY FOR LEGAL COSTS) The Note Trustee shall be
indemnified out of the Trust for all legal costs and
disbursements and all other costs, disbursements, outgoings
and expenses incurred by the Note Trustee in connection with:
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(i) the enforcement or contemplated enforcement of, or
preservation of rights under; and
(ii) without limiting the generality of paragraph (i)
above, the initiation, defence, carriage and
settlement of any action, suit, proceeding or dispute
in respect of;
this deed or any other Transaction Document or otherwise under
or in respect of the Trust provided that the enforcement,
contemplated enforcement or preservation by the Note Trustee
of the rights referred to in sub-paragraph (i) or the court
proceedings referred to in paragraph (ii) (other than in each
case the defence of any action, suit, proceeding or dispute
brought against the Note Trustee), and the basis of incurring
any of those costs, disbursements, outgoings and expenses by
the Note Trustee:
(iii) has been approved in advance by an Extraordinary
Resolution of the Class A2 Noteholders; or
(iv) the Note Trustee reasonably considers the incurring
of those costs, disbursements, outgoings and expenses
to be necessary to protect the Note Trustee against
potential personal liability.
(b) (DEFENCE OF PROCEEDINGS ALLEGING NEGLIGENCE, GROSS NEGLIGENCE,
ETC.) The Note Trustee shall be entitled to claim in respect
of the above indemnity from the Trust for its expenses and
liabilities incurred in defending any action, suit, proceeding
or dispute in which fraud, negligence, gross negligence or
wilful default is alleged or claimed against it, but on the
same being proved, accepted or admitted by it, it shall from
its personal assets immediately repay to the Trust the amount
previously paid by the Trust to it in respect of that
indemnity.
34.11 NO LIABILITY EXCEPT FOR GROSS NEGLIGENCE ETC.
In the absence of fraud, gross negligence or wilful default on the Note
Trustee's part or on the part of any of its officers or employees, or
any agent or delegate, sub-agent, sub-delegate employed by the Note
Trustee in accordance with this deed (and where this deed provides that
the Note Trustee is liable for the acts or omissions of any such
person) to carry out any transactions contemplated by this deed, the
Note Trustee shall not be liable personally for any losses, costs,
liabilities or claims arising from the failure to pay moneys on the due
date for payment to any Noteholder or any other person or for any loss
howsoever caused in respect of the Trust or to any Noteholder or other
person.
34.12 FURTHER LIMITATIONS ON NOTE TRUSTEE'S LIABILITY
Subject to clause 34.3, the Note Trustee shall not be liable:
(a) (FOR LOSS ON ITS DISCRETION) 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 or sub-delegate employed by the
Note Trustee in accordance with this
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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 LOSS ON DIRECTION) for any losses, costs, damages or
expenses caused by its acting (in circumstances where this
deed requires it to act or contemplates that it may so act) on
any instruction or direction given to it by:
(i) any Noteholder under this deed, any other Transaction
Document or any other document; or
(ii) by any person under a Support Facility,
except to the extent that it is caused by the fraud,
negligence or wilful default of the Note Trustee, or any of
its officers or employees, or an agent, delegate, sub-agent or
sub-delegate employed by the Note Trustee in accordance with
this deed to carry out any transactions contemplated by this
deed;
(c) (FOR CERTAIN DEFAULTS) for any Trust Manager's Default;
(d) (FOR ACTS OF SECURITY TRUSTEE) without limiting the Note
Trustee's obligations or powers under the Transaction
Documents, for any act, omission or default of the Security
Trustee in relation to its obligations under the Transaction
Documents;
(e) (FOR ACTS OF PAYING AGENT) without limiting the Note Trustee's
obligations or powers under the Transaction Documents, for any
act, omission or default of a Paying Agent in relation to its
obligations under the Transaction Documents;
(f) (FOR ACTS OF CALCULATION AGENT) without limiting the Note
Trustee's obligations or powers under the Transaction
Documents, for any act, omission or default of the Calculation
Agent in relation to its obligations under the Transaction
Documents;
(g) (FOR FAILURE TO CARRY OUT AN AGREEMENT) for the failure of a
person to carry out an agreement with the Note Trustee in
connection with the Trust; or
(h) (FOR FAILURE TO CHECK CALCULATIONS, ETC) for any losses,
costs, liabilities or expenses caused by the Note Trustee's
failure to check any calculation, information, document, form
or list supplied or purported to be supplied to it by the
Trust Manager or the Security Trustee,
except, in the case of paragraph (h), to the extent that it is caused
by the fraud, negligence or breach of trust of the Note Trustee.
Nothing in this clause 34.12 alone (but without limiting the operation
of any other clause of this deed) shall imply a duty on the Note
Trustee to supervise the Trust Manager or the Security Trustee in the
performance of the Trust Manager's or the Security Trustee's functions
and duties, and the exercise by the Trust Manager or the Security
Trustee of its discretions.
34.13 CONFLICTS
(a) (NO CONFLICT) Nothing in this deed shall prevent the Note
Trustee, the Trustee, any Dealer, the Trust Manager, the
Security Trustee or any Related Corporation or
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Associate of any of them or their directors or other officers
(each a RELEVANT PERSON) from:
(i) subscribing for purchase, holding, dealing in or
disposing of any Notes;
(ii) entering into any financial, banking, development,
insurance, agency, broking or other transaction with,
or providing any advice or services for the Trust; or
(iii) being interested in any such contract or transaction
or otherwise at any time contracting or acting in any
capacity as representative or agent,
provided that notwithstanding anything else in this deed to
the contrary, the Note Trustee agrees that it shall not offer
or provide credit enhancement to the Trust.
(b) (NOT LIABLE TO ACCOUNT) A Relevant Person shall not be in any
way liable to account to any Noteholder or any other person
for any profits or benefits (including any profit, bank
charges, commission, exchange, brokerage and fees) made or
derived under or in connection with any transaction or
contract specified in paragraph (a) above.
(c) (FIDUCIARY RELATIONSHIP) A Relevant Person shall not by reason
of any fiduciary relationship be in any way precluded from
making any contracts or entering into any transactions with
any such person in the ordinary course of the business or from
undertaking any banking, financial, development, agency or
other services including any contract or transaction in
relation to the placing of or dealing with any investment and
the acceptance of any office or profit or any contract of loan
or deposits or other contract or transaction which any person
or company not being a party to this deed could or might have
lawfully entered into if not a party to this deed. A Relevant
Person shall not be accountable to any Noteholder or any other
person for any profits arising from any such contracts,
transactions or offices.
34.14 INFORMATION
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the Note
Trustee under this deed or any other Transaction Document, the Note
Trustee shall not have any duty or responsibility to provide any person
(including any Noteholder) with any credit or other information
concerning the affairs, financial condition or business of the Trust.
34.15 INVESTIGATION BY NOTE TRUSTEE
Each Noteholder acknowledges that:
(a) the Note Trustee has no duty, and is under no obligation, to
investigate whether a Trust Manager's Default has occurred in
relation to the Trust other than where it has actual notice;
(b) in making any such determination, the Note Trustee will seek
and rely on advice given to it by its advisors in a manner
contemplated by this deed.
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35. NOTEHOLDERS' LISTS AND REPORTS
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35.1 PROVISION OF INFORMATION
The Trust Manager, on behalf of the Trustee, will furnish or cause to
be furnished to the Note Trustee:
(a) every six months (with the first six month period commencing
on the 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 Class A2 Noteholders as of
the Record Date immediately preceding that Notice Date; and
(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 Class A Notes are Global 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 Class
A2 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 Class
A2 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 A2 Noteholders may communicate pursuant to section
312(b) of the TIA with other Class A2 Noteholders with respect
to their rights under this deed or under the Class A2 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 2003, the Note Trustee shall mail to each
Class A2 Noteholder, the Trustee and the Trust Manager as required by
section 313(c) of the TIA a brief report dated as of such date that
complies with section 313(a) of the TIA. The Note Trustee also shall
comply with section 313(b) of the TIA. A copy of each report at the
time of its mailing to Class A2 Noteholders shall be filed by the Note
Trustee with the Commission and each stock exchange, if any, on which
the Class A2 Notes are listed. The Trust Manager on behalf of the
Trustee shall notify the Note Trustee if and when the Class A2 Notes
are listed on any stock exchange.
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35.4 NOTICES TO CLASS A2 NOTEHOLDERS; WAIVER
(a) Where this deed provides for notice to Class A2 Noteholders of
any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if:
(i) in writing and mailed, first-class, postage prepaid
to each 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. Where notice to Class A2 Noteholders is given
by mail, neither the failure to mail such notice nor
any defect in any notice so mailed to any particular
Class A2 Noteholder shall affect the sufficiency of
such notice with respect to other Class A2
Noteholders, and any notice that is mailed in the
manner herein provided shall conclusively be presumed
to have been duly given; or
(ii) for so long as the Class A2 Notes are listed on the
Luxembourg Stock Exchange, published in a leading
newspaper having general circulation in the Grand
Duchy of Luxembourg. If publication in such manner is
impractical, such notice shall be sufficiently given
through publication in a daily newspaper with general
circulation in Europe. Each such notice will be
deemed to be given on the date of the first
publication; or
(iii) published on a page of the Reuters Screen or the
electronic information system made available by
Bloomberg L.P. or any other similar electronic
reporting service as may be approved by the Note
Trustee in writing and notified to the Class A2
Noteholders. Such notice will be deemed to be given
on the first date on which it appears on the relevant
electronic reporting service; or
(iv) if, for any reason, it is impractical to give notice
in the manners provided in the previous paragraphs of
this clause 35.4(a), then any manner of giving notice
as the Trust Manager on behalf of the Trustee shall
direct the Note Trustee shall be deemed to be a
sufficient giving of notice.
(b) 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 A2 Noteholders shall be filed with the Note Trustee but
such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such a waiver.
35.5 REPORTS BY TRUSTEE
The Trustee (or the Trust Manager on its behalf) shall:
(a) file with the Note Trustee, within 15 days after the Trustee
is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Trustee may be required to file with the
Commission pursuant to section 13 or 15(d) of the Exchange
Act;
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(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 A2 Noteholders described in
section 313(c) of the TIA) such summaries of any information,
documents and reports required to be filed by the Trustee
pursuant to clauses (a) and (b) of this clause 35.5 as may be
required by rules and regulations prescribed from time to time
by the Commission.
36. TRUST INDENTURE ACT - MISCELLANEOUS
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36.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC
(a) Upon any application or request by the Trustee or the Trust
Manager to the Note Trustee to take any action under any
provision of this deed, the Trustee (or the Trust Manager on
its behalf) shall furnish to the Note Trustee:
(i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this deed relating
to the proposed action have been complied with;
(ii) an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any,
have been complied with; and
(iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting
the applicable requirements of section 314(c)(3) of
the TIA, except that, in the case of any such
application or request as to which the furnishing of
such documents is specifically required by any
provision of this deed, no additional certificate or
opinion need be furnished.
(b) (i) Prior to the deposit of any property or securities
with the Trustee that is to be made the basis for the
release of any property or securities subject to the
Security Interest created by the Security Trust Deed,
the Trustee (or the Trust Manager on its behalf)
shall, in addition to any obligation imposed in
clause 36.1(a) or elsewhere in this deed, furnish to
the Note Trustee an Officer's Certificate certifying
or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of
such deposit) of the property or securities to be so
deposited.
(ii) Whenever any property or securities are to be
released from the Security Interest created by the
Security Trust Deed, the Trustee shall also furnish
to the Note Trustee an Officer's Certificate
certifying or stating the opinion of each person
signing such certificate as to the fair value (within
90 days of such release) of the property or
securities proposed to be released and stating that
in the opinion of such person the proposed release
will not
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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 Trust Manager on its behalf) shall
also furnish to the Note Trustee an Independent
Certificate as to the same matters if the fair value
of the property or securities and of all other
property or securities deposited or released from the
Security Interest created by the Security Trust Deed
since the commencement of the then current calendar
year, as set forth in the certificate required by
clause (ii) and this clause (iii), equals 10% or more
of the Total Principal Amount of the Notes, but such
certificate need not be furnished in the case of any
release of property or securities if the fair value
thereof as set forth in the related Officer's
Certificate is less than US$25,000 or less than one
percent of the then Total Principal Amount of the
Notes.
Notwithstanding any other provision of this clause,
the Trustee may:
(A) collect, liquidate, sell or otherwise
dispose of Receivables or other Assets of
the Trust as and to the extent permitted or
required by the Transaction Documents; and
(B) make or permit to be made cash payments out
of the Collection Account or the US$ Account
as and to the extent permitted or required
by the Transaction Documents.
(c) Every Officer's Certificate or opinion with respect to
compliance with a condition or covenant provided for in this
deed shall include:
(i) a statement that each signatory of such certificate
or opinion has read or has caused to be read such
covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the
statements or opinions contained in such certificate
or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination
or investigation as is necessary to enable such
signatory to express an informed opinion as to
whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each
such signatory such condition or covenant has been
complied with.
36.2 UNDERTAKING FOR COSTS
(a) Subject to paragraph (b), all parties to this deed agree, and
each Class A2 Noteholder by such Class A2 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
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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 Class A2 Noteholder, or
group of Class A2 Noteholders in each case holding in
the aggregate more than 10% of the Total Principal
Amount of the Class A2 Notes; or
(iii) any suit instituted by any Class A2 Noteholder for
the enforcement of the payment of principal or
interest on any Class A2 Note on or after the
respective due dates expressed in such Class A2 Note
and in this deed (or, in the case of final redemption
of a Class A2 Note, on or after the Maturity Date).
36.3 EXCLUSION OF SECTION 316
(a) Section 316(a)(1) of the TIA is expressly excluded by this
deed.
(b) For the purposes of section 316(a)(2) of the TIA in
determining whether any Class A2 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 Class A2 Notes which the Note Trustee knows are
so owned shall be so disregarded.
36.4 UNCONDITIONAL RIGHTS OF CLASS A2 NOTEHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST
Notwithstanding any other provisions in this deed, any Class A2
Noteholder shall have the right, which is absolute and unconditional,
to receive payment of the principal of and interest, if any, on such
Class A2 Note on or after the respective due dates thereof expressed in
such Class A2 Note or in this deed (or, in the case of final redemption
of a Note, on or after the Maturity Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired
without the consent of such Class A2 Noteholder, except to the extent
that the institution or prosecution thereof or the entry of judgment
therein would, under applicable law, result in the surrender,
impairment, waiver, or loss of the Security Interest created by the
Security Trust Deed upon any property subject to such Security
Interest.
36.5 CONFLICT WITH TRUST INDENTURE ACT
If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required to be included in this indenture by
any of the provisions of the TIA, such required provision shall
prevail.
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The provisions of section 310 to 317 (inclusive) of the TIA that impose
duties on any person (including the provisions automatically deemed
included herein unless expressly excluded by this deed) are a part of
and govern this deed, whether or not contained herein.
EXECUTED as a deed.
Each attorney executing this agreement states that he has no notice of
revocation or suspension of his power of attorney.
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TRUSTEE
SIGNED SEALED AND DELIVERED for
PERPETUAL TRUSTEES VICTORIA LIMITED by its
attorney in the presence of:
- --------------------------------------------- ----------------------------------------
Witness Signature Attorney Signature
- --------------------------------------------- ----------------------------------------
Print Name Print Name
TRUST MANAGER
SIGNED SEALED AND DELIVERED for INTERSTAR
SECURITISATION MANAGEMENT PTY LIMITED
by its attorney in the presence of:
- --------------------------------------------- ----------------------------------------
Witness Signature Attorney Signature
- --------------------------------------------- ----------------------------------------
Print Name Print Name
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NOTE TRUSTEE, PRINCIPAL PAYING AGENT, CALCULATION AGENT AND NOTE
REGISTRAR
SIGNED SEALED AND DELIVERED for THE BANK
OF NEW YORK, NEW YORK BRANCH by its
attorney in the presence of:
- ---------------------------------------------------- -------------------------------------------------
Witness Signature Attorney Signature
- ---------------------------------------------------- -------------------------------------------------
Print Name Print Name
LUXEMBOURG PAYING AGENT
SIGNED SEALED AND DELIVERED for THE BANK
OF NEW YORK (LUXEMBOURG) S.A. by its
attorney in the presence of:
- ---------------------------------------------------- -------------------------------------------------
Witness Signature Attorney Signature
- ---------------------------------------------------- -------------------------------------------------
Print Name Print Name
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SCHEDULE 1
FORM OF GLOBAL NOTE
- --------------------------------------------------------------------------------
UNLESS THIS CERTIFICATE OR ANY CERTIFICATE EVIDENCING OR ACKNOWLEDGING THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SUCH CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF OR THEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
THIS GLOBAL NOTE IS A GLOBAL NOTE FOR THE PURPOSES OF SECTION 128F(10) OF THE
INCOME TAX ASSESSMENT ACT 1936 OF THE COMMONWEALTH OF AUSTRALIA.
PERPETUAL TRUSTEES VICTORIA LIMITED
(ABN 42 004 027 258)
(a limited liability company incorporated under the Commonwealth of Australia)
in its capacity as trustee of the Interstar Millennium Series 2002-1G Trust (the TRUST)
CLASS A2 GLOBAL NOTE
representing
US$[1,000,000,000]
Class A2 Secured Floating Rate Notes Due [December 2033]
This Note is a Global Note without principal or interest coupons in respect of a
duly authorised issue of Notes of Perpetual Trustees Victoria Limited in its
capacity as trustee of the Interstar Millennium Series 2002-1G Trust (the
"TRUST") (the "ISSUER"), designated as specified in the title above (the
"NOTES"), in an initial aggregate Principal Amount of US$[1,000,000,000] (One
Billion United States Dollars) and (a) issued pursuant to a Master Trust Deed
(the "MASTER TRUST DEED") dated 2 December 1999 between Perpetual Trustees
Victoria Limited and Interstar Securities (Australia) Pty Limited and applying
to the Trust by reason of the Notice of Creation of Trust between Interstar
Securities (Australia) Pty Limited, Interstar Securitisation Management Pty
Limited (the "TRUST MANAGER") and the Issuer dated [*] 2002, by a Series Notice
(the "SERIES NOTICE") dated on or about [*] 2002 between (among others) the
Issuer, The Bank of New York, New York branch, (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 A2 Notes (the "CLASS A2 NOTEHOLDERS") and the Trust Manager
and by the Conditions (as defined below); (b) constituted by a Note Trust Deed
dated on or about [*] 2002 (the "NOTE TRUST DEED") between (among others) the
Issuer, the Trust Manager, the Note Trustee and The Bank of New York, New York
branch (as "PRINCIPAL PAYING
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AGENT" and "CALCULATION AGENT"); and (c) secured by a Security Trust Deed (the
"SECURITY TRUST DEED") dated on or about [*] 2002 between the Issuer, the Trust
Manager, the Note Trustee and Perpetual Trustee Company Limited (in that
capacity, the "SECURITY TRUSTEE", which expression shall include its successor
for the time being as security trustee under the Security Trust Deed).
References to the Conditions (or to any particular numbered Condition) shall be
to the Terms and Conditions of the Class A2 Notes (or that particular one of
them) set out in schedule 5 to the Note Trust Deed but with the deletion of
those provisions which are applicable only to Class A2 Notes in definitive form.
Terms and expressions defined in the Note Trust Deed and the Conditions shall,
save as expressly stated otherwise, bear the same meanings when used herein.
If the Issuer is obliged to issue Definitive Notes under clause 3.3 of the Note
Trust Deed, this Global Note may be exchanged in whole by registration on the
Note Register for Definitive Notes and the Issuer shall procure that the Note
Registrar delivers by registration in the Note Register, in full exchange for
this Global Note, Definitive Notes in aggregate Principal Amount equal to the
Principal Amount of all Class A2 Notes represented by this Global Note. The
Issuer is not obliged to issue Definitive Notes until 30 days after the
occurrence of an event set out in clause 3.3 of the Note Trust Deed.
The Issuer in its capacity as trustee of the Trust subject to this Global Note
and subject to and in accordance with the Conditions and the Note Trust Deed
promises to pay to the registered holder of this Global Note the principal sum
of US$[1,000,000,000] (One Billion United States Dollars) or such lesser amount
as may from time to time be represented by this Global Note (or such part of
that amount as may become repayable under to the Conditions, the Series Notice
and the Note Trust Deed) on such date(s) that that principal sum (or any part of
it) becomes repayable in accordance with the Conditions, the Series Notice and
the Note Trust Deed and to pay interest in arrears on each Payment Date (as
defined in Condition 4) on the Principal Amount of this Global Note at rates
determined in accordance with Condition 4 and all subject to and in accordance
with the certification requirements described in this Global Note, the
Conditions, the Series Notice and the Note Trust Deed, which shall be binding on
the registered holder of this Global Note (as if references in the Conditions to
the Notes and the Noteholders were references to this Global Note and the
registered holder of this Global Note respectively and as if the same had been
set out in this Global Note in full with all necessary changes, except as
otherwise provided in this Global Note).
Interest and principal on this Global Note will be payable under this Global
Note in accordance with the relevant Conditions. Each of the persons appearing
from time to time in the records of DTC as the holder of a Class A2 Note
represented by this Global Note will be entitled to receive any payment so made
in respect of that Class A2 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 A2 Notes which must be made by the
holder of this Global Note, for so long as this Global Note is outstanding.
On any payment of principal and/or interest on the Class A2 Notes as set out
above, details of that payment shall be endorsed by or on behalf of the Issuer
on the Note Register and, in the case of payments of principal, the Principal
Amount of the Class A2 Notes shall be reduced for all purposes by the amount so
paid and endorsed. Any such record shall be prima facie evidence that the
payment in question has been made.
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The Definitive Notes to be issued on an exchange of this Global Note will be in
registered form each in the denomination of US$100,000. If the Issuer fails to
meet its obligations to issue Definitive 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 Series Notice and this Global Note.
On an exchange of this Global Note, this Global Note shall be surrendered to the
Principal Paying Agent.
This Global Note is governed by, and shall be construed in accordance with, the
laws of New South Wales, Australia.
IN WITNESS the Issuer has caused this Global Note to be signed by a person duly
authorised on its behalf
PERPETUAL TRUSTEES VICTORIA LIMITED
in its capacity as trustee of the Interstar Millennium Series 2002-1G Trust
By: .................................
Authorised Signatory
IMPORTANT NOTES:
(a) The Issuer's liability to make payments in respect of the Class A2
Notes is limited to its right of indemnity from the assets of Trust
from time to time available to make such payments under the Master
Trust Deed and Series Notice. All claims against the Issuer in relation
to the Class A2 Notes can be enforced against the Issuer only to the
extent to which it can be satisfied out of the assets of the Trust out
of which the Issuer is actually indemnified for the liability except in
the case of (and to the extent of) any fraud, negligence or wilful
default on the part of the Issuer.
(b) The Noteholder is required to accept any distribution of moneys under
the Security Trust Deed in full and final satisfaction of all moneys
owing to it, and any debt represented by any shortfall that exists
after any such final distribution is extinguished.
(c) Neither Perpetual Trustees Victoria Limited nor the Security Trustee
stands behind the capital value and/or performance of the Class A2
Notes or the assets of the Trust except to the limited extent provided
for in the Transaction Documents relating to the Notes.
CERTIFICATE OF AUTHENTICATION
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This Global Note is authenticated by [*] and until so authenticated shall not be
valid for any purpose
THE BANK OF NEW YORK, NEW YORK BRANCH
as Principal Paying Agent
By:
______________________________
Authorised Signatory
For [*]
(without recourse, warranty or liability)
Issued in New York in [*] 2002
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SCHEDULE 2
FORM OF DEFINITIVE CLASS A2 NOTE
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PERPETUAL TRUSTEES VICTORIA LIMITED
(ABN 42 004 027 258)
(a limited liability company incorporated under the laws of the Commonwealth Australia)
in its capacity as trustee of the Interstar Millennium Series 2002-1G Trust (the "TRUST")
US$100,000
Class A2 Secured Floating Rate Notes Due [December 2033]
The issue of the Class A2 Notes was authorised by resolutions of the Board of
Directors of Perpetual Trustees Victoria Limited in its capacity as trustee of
the Trust (the "ISSUER") passed on [*] 2002.
This Class A2 Note forms one of a series of Notes which are (a) issued by a
Master Trust Deed (the "MASTER TRUST DEED") dated 2 December 1999 between
Perpetual Trustees Victoria Limited and Interstar Securities (Australia) Pty
Limited and applying to the Trust by reason of the Notice of Creation of Trust
between Interstar Securities (Australia) Pty Limited, Interstar Securitisation
Management Pty Limited (the "TRUST MANAGER") and the Issuer dated [*] 2002, by a
Series Notice (the "SERIES NOTICE") dated on or about [*] 2002 between (among
others) the Issuer, The Bank of New York, New York branch (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 A2 Notes (the "CLASS A2 NOTEHOLDERS") and the Trust
Manager and the terms and conditions attached to this Note (the "CONDITIONS");
(b) constituted by a Note Trust Deed dated on or about [*] 2002 (the "NOTE TRUST
DEED") between (among others) the Issuer, the Trust Manager, the Note Trustee
and The Bank of New York, New York branch (as "PRINCIPAL PAYING AGENT" and
"CALCULATION AGENT"); and (c) secured by a Security Trust Deed (the "SECURITY
TRUST DEED") dated on or about [*] 2002 between the Issuer, the Trust Manager,
the Note Trustee and Perpetual Trustee Company Limited (in that capacity, the
"SECURITY TRUSTEE", which expression shall include its successor for the time
being as security trustee under the Security Trust Deed).
The Issuer, in its capacity as trustee of the Trust, subject to this Class A2
Note and subject to and in accordance with the Conditions and the Note Trust
Deed for value received promises to pay to the registered holder on the Payment
Date (as defined in Condition 4 of the terms and conditions (the "CONDITIONS")
endorsed on the form of this Class A2 Note) falling in [*] (or on such earlier
date(s) as the Principal Amount of this Class A2 Note (or part of it) may become
repayable in accordance with the Conditions) the principal sum of:
US$100,000 (One Hundred Thousand United States Dollars)
or such part of that amount as may be repayable on such date(s) in accordance
with the Conditions, the Series Notice, the Master Trust Deed and the Note Trust
Deed, together with interest on the Principal Amount payable in arrears on each
Payment Date and such other amounts
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(if any) as may be payable, all subject to and in accordance with the Conditions
and the provisions of the Series Notice, the Master Trust Deed and the Note
Trust Deed.
This Class A2 Note shall not become valid for any purpose unless and until the
attached Certificate of Authentication has been signed by any payment signatory
of the [*] as Principal Paying Agent.
IN WITNESS this Note has been executed on behalf of the Issuer.
PERPETUAL TRUSTEES VICTORIA LIMITED
By: ................................................
[*]
By: ...................................
[*]
Dated as of [*],
Issued in [*]
IMPORTANT NOTES:
(a) The Issuer's liability to make payments in respect of the Class A2
Notes is limited to its right of indemnity from the assets of Trust
from time to time available to make such payments under the Master
Trust Deed and Series Notice. Any claim against the Issuer in relation
to the Class A2 Notes can be enforced against the Issuer only to the
extent to which it can be satisfied out of the assets of the Trust out
of which the Issuer is actually indemnified for the liability except in
the case of (and to the extent of) any fraud, negligence or wilful
default on the part of the Issuer.
(b) Each Class A2 Noteholder is required to accept any distribution of
moneys under the Security Trust Deed in full and final satisfaction of
all moneys owing to it, and any debt represented by any shortfall that
exists after any such final distribution is extinguished.
(c) Neither Perpetual Trustees Victoria Limited nor the Security Trustee
stands behind the capital value and/or performance of the Class A2
Notes or the assets of the Trust except to the limited extent provided
for in the Transaction Documents relating to the Notes.
CERTIFICATE OF AUTHENTICATION
This Note is one of the Notes
referred to in the Note Trust Deed
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THE BANK OF NEW YORK, NEW YORK BRANCH
as Principal Paying Agent
By:
___________________________________
Authorised Signatory
For [*]
(without recourse, warranty or liability)
Issued in [*] on [*]
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SCHEDULE 3
PROVISIONS FOR MEETINGS OF CLASS A2 NOTEHOLDERS
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1. As used in this Schedule the following expressions shall have the
following meanings unless the context otherwise requires:
VOTING CERTIFICATE shall mean an English language certificate issued by
a Paying Agent and dated in which it is stated:
(a) that on the date thereof Notes of the relevant class (not
being Notes in respect of which a block voting instruction has
been issued and is outstanding in respect of the meeting
specified in such voting certificate and any such adjourned
meeting) were either deposited with such Paying Agent or (to
the satisfaction of such Paying Agent) were held to its order
or under its control or blocked by a depository holding the
same in a manner approved by the Note Trustee and that no such
Notes will cease to be so deposited, held or blocked until the
first to occur of
(i) the conclusion of the meeting specified in such
certificate or, if applicable, any such adjourned
meeting; and
(ii) the surrender of the certificate to the Paying Agent
who issued the same; and
(b) that the bearer thereof is entitled to attend and vote at such
meeting and any such adjourned meeting in respect of the Notes
represented by such certificate;
BLOCK VOTING INSTRUCTION shall mean an English language document issued
by a Paying Agent and dated in which:
(a) it is certified that Notes of the relevant class (not being
Notes in respect of which a voting certificate has been issued
and is outstanding in respect of the meeting specified in such
block voting instruction and any such adjourned meeting) of a
specified aggregate Principal Amount have been deposited with
such Paying Agent or (to the satisfaction of such Paying
Agent) are held to its order or under its control or blocked
by a depository holding the same in a manner approved by the
Note Trustee and that no such Notes will cease to be so
deposited, held or blocked until the first to occur of
(i) the conclusion of the meeting specified in such
document or, if applicable, any such adjourned
meeting; and
(ii) the surrender to the Paying Agent, not less than 48
hours before the time for which such meeting or any
such adjourned meeting is convened, of the receipt
issued by such Paying Agent in respect of each such
deposited Note which is to be released or (as the
case may require) the Note or Notes ceasing with the
agreement of the Paying Agent to be held to its order
or under its control or blocked and the giving of
notice by the Paying Agent to the Trustee in
accordance with paragraph 17 below of the necessary
amendment to the block voting instruction;
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(b) it is certified that each holder of such Notes has instructed
such Paying Agent or that the Clearing Agency has advised such
Paying Agent that the holder of such Notes has given
instructions, that the vote(s) attributable to the Note(s) so
deposited, held or blocked should be cast in a particular way
in relation to the resolution or resolutions to be put to such
meeting or any such adjourned meeting and that all such
instructions are during the period commencing 48 hours prior
to the time for which such meeting or any such adjourned
meeting is convened and ending at the conclusion or
adjournment thereof neither revocable or capable of amendment;
(c) the total number and the serial numbers of the Notes so
deposited, held or blocked are listed distinguishing with
regard to each such resolution between those in respect of
which instructions have been given as aforesaid that the votes
attributable thereto should be cast in favour of the
resolution and those in respect of which instructions have
been so given that the votes attributable thereto should be
cast against the resolution; and
(d) one or more persons named in such document (each hereinafter
called PROXY) is or are authorised and instructed by such
Paying Agent to cast the votes attributable to the Notes so
listed in accordance with he instructions referred to in (C)
above as set out in such document.
EXTRAORDINARY RESOLUTION when used in this deed means a resolution
passed at a meeting of the Noteholders duly convened and held in
accordance with the provisions of this deed by a majority consisting of
not less than three-fourths of the persons voting upon a show of hands
or if a poll be duly demanded then by a majority consisting of not less
than three-fourths of the votes given on such poll.
48 HOURS shall mean a period of 48 hours including all or part of two
days upon which banks are open for business in both the place where the
relevant meeting is to be held and in each of the places where the
Paying Agents have their specified offices (disregarding for this
purpose the day upon which such meeting is to be held) and such period
shall be extended by one or, to the extent necessary, more periods of
24 hours until there is included as aforesaid all or part of two days
upon which banks are open for business as aforesaid; and
24 HOURS shall mean a period of 24 hours including all or part of a day
upon which banks are open for business in both the place where the
relevant meeting is to be held and in each of the places where the
Paying Agents have their specified offices (disregarding for this
purpose the day upon which such meeting is to be held) and such period
shall be extended by one or, to the extent necessary, more periods of
24 hours until there is included as aforesaid all or part of a day upon
which banks are open for business as aforesaid.
NOTES and NOTEHOLDERS shall mean Class A2 Notes and Class A2
Noteholders respectively.
The holder of any voting certificate or the proxies named in any block
voting instruction shall for all purposes in connection with the
relevant meeting or adjourned meeting of Noteholders be deemed to be
the holder of the Notes to which such voting certificate or block
voting instruction relates and the Paying Agent with which such Notes
have been
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deposited or the person holding the same to the order or under the
control of such Paying Agent or the person holding the same shall be
deemed for such purposes not to be the holder of those notes.
2. CONVENING OF MEETINGS
The Trustee, the Trust Manager or the Note Trustee may at any time and
the Trustee shall upon a requisition in writing signed by the holders
of not less than one-tenth of the aggregate Principal Amount of the
Notes for the time being then outstanding convene a meeting of the
Noteholders and if the Trustee makes default for a period of seven days
in convening such a meeting the same may be convened by the Note
Trustee or the requisitioners. Every such meeting shall be held at such
place as the Note Trustee may appoint or approve.
3. NOTICE OF MEETINGS
At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is held) specifying the place,
day and hour of meeting shall be given by the Note Trustee (if the
meeting is convened by the Note Trustee), by the Trustee (if the
meeting is convened by the Trustee) or by the Trust Manager (if the
meeting is convened by the Trust Manager) to the relevant Noteholders
prior to any meeting of the relevant Noteholders in the manner provided
by Condition 12. Such notice shall state generally the nature of the
business to be transacted at the meeting thereby convened by and
(except for an Extraordinary Resolution) it shall not be necessary to
specify in such notice the terms of any resolution to be proposed. Such
notice shall include a statement to the effect that Notes may be
deposited with Paying Agents or (to their satisfaction) held to their
order or under their control or blocked by a depository holding the
same in a manner approved by the Note Trustee for the purpose of
obtaining voting certificates or appointing proxies until 48 hours
before the time fixed for the meeting but not thereafter. A copy of the
notice shall be sent by post to the Note Trustee (unless the meeting is
convened by the Note Trustee) and to the Trustee (unless the meeting is
convened by the Trustee or the Trust Manager).
4. CHAIRMAN
Some person (who may but need not be a Noteholder) nominated in writing
by the Note Trustee shall be entitled to take the chair at every such
meeting but if no such nomination is made or if at any meeting the
person nominated shall not be present within fifteen minutes after the
time appointed for holding the meeting the relevant Noteholders present
shall choose one of their number to he Chairman. The Chairman of an
adjourned meeting need not be the same person as the Chairman of the
original meeting.
5. QUORUM
At any meeting two or more persons present holding Notes or voting
certificates or being proxies in respect thereof and holding or
representing in the aggregate not less than one-twentieth of the
aggregate Principal Amount of the Notes, then outstanding, shall
(except for the purposes of passing an Extraordinary Resolution) form a
quorum for the transaction of business and no business (other than the
choosing of a Chairman) shall be transacted at any meeting unless the
requisite quorum be present at the commencement of
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business. The quorum at any such meeting for passing an Extraordinary
Resolution shall (subject as provided below) be two or more persons
present holding Notes, or voting certificates or being proxies in
respect thereof and holding or representing in the aggregate a clear
majority of the aggregate Principal Amount of the Notes, then
outstanding PROVIDED THAT subject to paragraph 13(b) below, at any
meeting the business of which includes any of the following matters
(each of which shall only be capable of being effected after having
been approved by Extraordinary Resolution) namely:
(a) modification of the date fixed for final maturity of the
Notes;
(b) reduction or cancellation of the principal payable on the
Notes or any alteration of the date or priority of redemption
of the Notes;
(c) alteration of the amount of interest payable on any class of
the Notes or modification of the method of calculating the
amount of interest payable on the Notes or modification of the
date of payment of an, interest payable on the Notes;
(d) alteration of the currency in which payments under the Notes
are to be made;
(e) alteration of the majority required to pass an Extraordinary
Resolution or the manner in which such majority is
constituted;
(f) the sanctioning of any such scheme or proposal as is described
in paragraph 18(I) below; or
(g) alteration of this proviso or the proviso to paragraph 6
below,
the quorum shall, subject as provided further below, be two or more
persons present holding Notes, as the case may be, or voting
certificates or being proxies in respect thereof and holding or
representing in the aggregate not less than three-quarters or at any
adjourned meeting, 25% of the aggregate Principal Amount of the Notes
then outstanding.
6. ADJOURNMENT
If within fifteen minutes after the time appointed for any such meeting
a quorum is not present the meeting shall, if convened upon the
requisition of the Noteholders be dissolved. In any other case it shall
stand adjourned to the same day in the next week (or if such day is a
public holiday the next succeeding business day) at the same time and
place (except in the case of a meeting at which an Extraordinary
Resolution is to be proposed in which case it shall stand adjourned for
such period being not less than 14 days nor more than 42 days, and at
such place as may be appointed by the Chairman of the meeting and
approved by the Note Trustee) and at such adjourned meeting two or more
persons present holding Notes, or voting certificates or being proxies
in respect thereof (whatever the aggregate of the Principal Amount of
the Notes then outstanding held) shall (subject as provided below) form
a quorum and shall (subject as provided below) have power to pass any
Extraordinary Resolution or other resolution and to decide upon all
matters which could properly have been dealt with at the meeting from
which the adjournment took place had the requisite quorum been present
PROVIDED THAT, subject to paragraph 13(b) below, at any adjourned
meeting the business of which includes any of the matters specified in
the proviso to paragraph 5 above, the quorum shall, subject as provided
further below, be two or more persons present holding Notes be or
voting certificates or
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being proxies in respect thereof and holding or representing in the
aggregate not less than one-quarter of the aggregate of the Principal
Amount of the Notes, then outstanding.
The Chairman may with the consent of (and shall if directed by) any
such meeting adjourn the same from time to time and from place to place
but no business shall be transacted at an, adjourned meeting except
business which might lawfully (but for lack of required quorum) have
been transacted at the meeting from which the adjournment took place.
Notice of any adjourned meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3
above and such notice shall (except in cases where the proviso to
paragraph 6 applies when it shall state the relevant quorum) state that
the persons present holding Notes, or voting certificates or being
proxies in respect thereof at the adjourned meeting (whatever the
aggregate of the Principal Amount of the Notes then outstanding held)
will form a quorum. Subject as aforesaid it shall not be necessary to
give any notice of any adjourned meeting.
7. VOTING PROCEDURE
Every resolution submitted to a meeting shall (subject to paragraph 20)
be decided by a simple majority, in the first instance by a show of
hands, then (subject to paragraph 9) by a poll and in case of equality
of votes the Chairman shall both on a show of hands and on a poll have
a casting vote in addition to the vote or votes (if any) to which he
may be entitled as a Noteholder (in the case of Notes in definitive
form) or as a holder of a voting certificate or as a proxy. Any poll
demanded at any such meeting on the election of a Chairman or on any
question of adjournment shall be taken at the meeting without
adjournment.
8. DECLARATION
At any meeting, unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman or the Trustee or
by two or more persons present holding Notes or voting certificates or
being proxies and holding or representing in the aggregate not less
than one-fiftieth part of the aggregate of the Principal Amount of the
Notes, then outstanding a declaration by the Chairman that a resolution
has been carried by a particular majority or lost or not carried by a
particular majority shall be conclusive evidence of that fact without
proof of the number or proportion of the votes recorded in favour or
against such resolution. Subject to paragraph 12 below, if at any such
meeting a poll is so demanded, it shall be taken in such manner and
subject as hereinafter provided either at once or after an adjournment
as the Chairman directs and the result of such poll shall be deemed to
be the resolution of the meeting at which the poll was demanded as at
the date of the taking of the poll. The demand for a poll shall not
prevent the continuance of the meeting for the transaction of any
business other than the motion on which the poll has been demanded.
9. RIGHT TO ATTEND AND SPEAK
The Note Trustee and its lawyers and any director, officer or employee
of a corporation being a trustee of this deed and any director or
officer of the Trustee and the lawyers of the Trustee and any other
person authorised in that behalf by the Note Trustee may attend and
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speak at any meeting. Save as aforesaid but without prejudice to the
proviso to the definition of outstanding in Clause 1, no person shall
be entitled to attend and speak nor shall any person be entitled to
vote at any meeting of the Noteholders or join with others in
requesting the convening of such a meeting or to exercise the rights
conferred on the Noteholders by Conditions 9 and 10 unless he either
produces the Note(s) of which he is the holder or a voting certificate
or is a proxy. Neither the Issuer nor any of its subsidiaries or
holding companies or other subsidiaries of such holding companies shall
be entitled to vote at any meeting in respect of Notes held
beneficially by it or for its account. Nothing herein contained shall
prevent any of the proxies named in any block voting instruction from
being a director, officer or representative or otherwise connected with
the Trustee.
10. VOTING ENTITLEMENT
Subject as provided in paragraph 1 hereof at any meeting:
(a) on a show of hands every person who is present in person and
produces a Definitive Note, or a voting certificate or is a
proxy in respect thereof shall have one vote; and
(b) on a poll every person who is so present shall have one vote
in respect of each US$ in Principal Amount of the Notes then
outstanding of the Notes so produced or represented by the
voting certificate so produced or in respect of which he is a
proxy.
Without prejudice to the obligations of the proxies named in any block
voting instructions any person entitled to more than one vote need not
use all his votes or cast all the votes to which he is entitled in the
same way. The proxies named in any block voting instruction need not be
Noteholders.
11. REQUIREMENTS FOR PROXIES
Each block voting instruction together (if so required by the Note
Trustee) with proof satisfactory to the Note Trustee of its due
execution on behalf of the relevant Paying Agent shall be deposited at
such place as the Note Trustee shall approve not less than 24 hours
before the time appointed for holding the meeting or adjourned meeting
at which the proxies named in the block voting instruction propose to
vote and in default of such deposit the block voting instruction shall
not be treated as valid unless the Chairman of the meeting decides
otherwise before such meeting or adjourned meeting proceeds to
business. A notarially certified copy of each block voting instruction
shall, unless the Note Trustee otherwise agrees, be deposited with the
Note Trustee before the commencement of the meeting or adjourned
meeting but the Note Trustee shall not thereby be obliged to
investigate or be concerned with the validity of or the authority of
the proxies named in any such block voting.
12. PROXY REMAINS VALID
Any vote cast in accordance with the terms of a block voting
instruction shall be valid notwithstanding the previous revocation or
amendment of the block voting instruction or of any of the Noteholder's
instructions pursuant to which it was executed PROVIDED THAT no
intimation in writing of such revocation or amendment shall have been
received from the relevant Paying Agent by the Trustee at its
registered office (or such other place as may
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have been approved by the Note Trustee for the purpose) by the time
being 24 hours before the time appointed for holding the meeting or
adjourned meeting at which the block voting instruction is to be used.
13. EXTRAORDINARY RESOLUTIONS
(a) Subject to paragraph (b), a meeting of the Noteholders shall
in addition to the powers given under this deed have the
following powers exercisable by Extraordinary Resolution
(subject to the provisions relating to quorum contained in
paragraphs 5 and 6 above) only:
(i) power to sanction any compromise or arrangement
proposed to be made between the Trustee and the
Noteholders;
(ii) power to sanction any abrogation, modification,
compromise or arrangement in respect of the rights of
the Noteholders against the Trustee or against any of
its property or against any other person whether such
rights shall arise under this deed, any of the Notes
or otherwise;
(iii) power to assent to any modification of the provisions
contained in this deed, the Notes (including the
Conditions) or the provisions of any of the Relevant
Documents which shall be proposed by the Trustee or
the Note Trustee;
(iv) power to give any authority or sanction which under
the provisions of this deed or the Notes (including
the Conditions) is required to be given by
Extraordinary Resolution;
(v) power to appoint any persons (whether Noteholders or
not) as a committee or committees to represent the
interests of the Noteholders and to confer upon such
committee or committees any powers or discretions
which the Noteholders could themselves exercise by
Extraordinary Resolution;
(vi) power to approve of a person to be appointed a
trustee and power to remove any trustee or trustees
for the time being under this deed;
(vii) power to discharge or exonerate the Note Trustee from
all liability in respect of any act or omission for
which the Note Trustee may have become responsible
under this deed or under the Notes;
(viii) power to authorise the Note Trustee to concur in and
execute and do all such deeds, instruments, acts and
things as may be necessary to carry out and give
effect to any Extraordinary Resolution;
(ix) power to sanction any scheme or proposal for the
exchange or sale of the Notes for, or the conversion
of the Notes as the case may be, into, or the
cancellation of the Notes in consideration of shares,
stock, notes, bonds' debentures, debenture stock
and/or other obligations and/or securities of the
Trustee or of any other company formed or to be
formed, or for or into or in consideration of cash,
or partly for or into or in consideration of such
shares, stock, notes, bonds, debenture stock and/or
other obligations
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and/or securities as aforesaid and partly for or into
or in consideration of cash.
(b) Despite paragraph (a) no modification involving any of the
matters referred to in paragraphs 5(a) to 5(e) (both
inclusive) above in relation to the Noteholders shall be
effective unless the Note Trustee is of the opinion that such
modification is being proposed by the Trustee as a result of,
or in order to avoid, an Event of Default.
14. RESOLUTION BINDING ON NOTEHOLDERS
Subject to paragraph 13(b) above, any resolution passed at a meeting of
the Noteholders duly convened and held in accordance with this deed
shall be binding upon all the Noteholders whether present or not
present at such meeting and whether or not voting; and, in such case,
each of such Noteholders shall be bound to give effect to such
resolution accordingly and the passing of any such resolution shall be
conclusive evidence that the circumstances justify the passing thereof.
Notice of the result of the voting on any resolution duly considered by
the Noteholders shall be published in accordance with Condition 12 by
the Trustee within 14 days of such result being known PROVIDED THAT the
non-publication of such notice shall not invalidate such resolution.
15. MINUTES AND RECORDS
Minutes of all resolutions and proceedings at every such meeting shall
be made and duly entered in books to be from time to time provided for
that purpose by the Trustee and any such Minutes as aforesaid if
purporting to be signed by the Chairman of the meeting at which such
resolutions were passed or proceedings had shall be conclusive evidence
of the matters contained in them and until the contrary is proved every
such meeting in respect of the proceedings of which Minutes have been
made shall be deemed to have been duly held and convened and all
resolutions passed at proceedings to have been duly passed or had.
16. FURTHER PROCEDURES FOR MEETINGS
Subject to all other provisions contained in this deed the Note Trustee
may without the consent of the Trustee the Noteholders prescribe such
further regulations regarding the requisitioning and/or the holding of
meetings of Noteholders and attendance and voting at meetings of
Noteholders as the Note Trustee may in its sole discretion think fit.
17. WRITTEN RESOLUTIONS
References in this deed to a resolution duly passed at a meeting of the
Noteholders shall include, where the context permits, a resolution in
writing signed by or on behalf of all Noteholders who for the time
being are entitled to receive notice of a meeting in accordance with
the provisions herein contained. Such resolution in writing may be
contained in one document or in several documents in like form each
signed by or on behalf of one or more of the Noteholders.
18. GLOBAL NOTEHOLDER
So long as the Notes are represented by any Global Note, the holder of
a Global Note shall for the purposes of paragraph 5 be deemed to
constitute a quorum and for the purposes of
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this schedule be deemed to be holding such Principal Amount of the
Notes (up to the Principal Amount of Notes then outstanding) as the
holder of the Global Note may specify and able to vote such amount for
or against or to abstain from voting in such Principal Amount as the
holder may specify.
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SCHEDULE 4
INFORMATION TO BE CONTAINED IN NOTEHOLDER'S REPORT
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The following information is to be included in each Noteholder's Report
[* DETAILS TO BE INSERTED]
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SCHEDULE 5
[* TERMS AND CONDITIONS OF CLASS A2 NOTES TO BE ANNEXED WHEN FINALISED]
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