Note Trust Deed
Perpetual Trustees Victoria Limited
Interstar Securitisation Management Pty Limited
The Bank of New York, New York branch
Interstar Millennium Trusts
Interstar Millennium Series 2003-1G 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 2003
Note Trust Deed Allens Arthur Robinson
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CROSS REFERENCE TABLE(1)
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TRUST INDENTURE ACT SECTION CLAUSE
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310 (a)(1) 23.6
(a)(2) 23.1(d)
(a)(3) 22.2(b)
(a)(4) 22.2(b)
(a)(5) NA(2)
(b) 23.6
(c) 23.6, 23.1
NA
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311 (a) 13
(b) 13
(c) NA
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312 (a) 35.1, 35.2(a)
(b) 35.2(b)
(c) 35.2(c)
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313 (a) 35.3
(b)(1) 35.3
(b)(2) NA
(c) 35.4
(d) 35.3
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314 (a)(1) 35.5
(a)(2) 35.5
(a)(3) 35.5
(a)(4) 11(j)
(b) 11(k)
(c) 36.1(a)
(d) 36.1(b)
(e) 36.1(c)
(f) 36.1(a)
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315 (a) 13.2
(b) 6.1(b)
(c) 14.2
(d) 34.8
(e) 36.2
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316 (a)(1) 36.3
(a)(2) NA
(b) 36.4
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317 (a)(1) 6.1
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(a)(2) NA
(b) 2.5
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318 (a) 36.5
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NOTES:
1. This Cross Reference Table shall not, for any purpose, be deemed to be
part of this deed.
2. NA means not applicable.
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions and Interpretation 1
1.2 Definitions in Master Trust Deed, Series Notice and Conditions 2
1.3 Interpretation 3
1.4 Determination, statement and certificate sufficient evidence 3
1.5 Document or agreement 3
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 4
1.12 Opinion of Counsel 5
2. PAYMENTS ON US$ NOTES 5
2.1 Principal Amount 5
2.2 Covenant to repay 5
2.3 Deemed Payment 6
2.4 Following Event of Default 6
2.5 Requirements of Paying Agents 6
2.6 Certification 7
2.7 Determinations 7
3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, US$ NOTES 7
3.1 Issue of Global Notes 7
3.2 Terms of Global Notes 7
3.3 Issue of Definitive Notes 9
3.4 Notice of Exchange Events 9
3.5 Form of Definitive Notes 9
3.6 Stamp and Other Taxes 10
3.7 Indemnity for non-issue 10
3.8 Note Register and Note Registrar 10
3.9 US Tax Treatment 11
4. COVENANT OF COMPLIANCE 12
5. CANCELLATION OF US$ 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 15
7.3 Note Trustee alone entitled to act 16
7.4 Available amounts 16
7.5 No liability 16
8. NOTICE OF PAYMENT 16
9. INVESTMENT BY NOTE TRUSTEE 17
10. PARTIAL PAYMENTS 17
11. COVENANTS BY THE TRUSTEE AND TRUST MANAGER 17
12. REMUNERATION OF NOTE TRUSTEE 20
12.1 Fee 20
12.2 Additional Remuneration 20
12.3 Costs, expenses 20
12.4 Overdue rate 21
12.5 Continuing obligation 21
13. LIMITED RESPONSIBILITIES OF NOTE TRUSTEE 21
13.1 Limited Responsibilities 21
13.2 Examination of Documents 27
14. NOTE TRUSTEE'S LIABILITY 27
14.1 No exemption from liability 27
14.2 Occurrence of an Event of Default 28
15. DELEGATION BY NOTE TRUSTEE 28
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE 28
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE 28
18. WAIVER 29
19. AMENDMENT 30
19.1 Approval 30
19.2 Extraordinary Resolution of Noteholders 30
19.3 Distribution of amendments 30
19.4 Amendments binding 30
19.5 Conformity with TIA 30
20. US$ NOTEHOLDERS 31
20.1 Absolute Owner 31
20.2 Clearing System Certificate 31
21. CURRENCY INDEMNITY 32
22. NEW NOTE TRUSTEES 32
22.1 Appointment by Trustee 32
22.2 Appointment by Note Trustee 33
22.3 Notice 33
22.4 Requirement for Note Trustee 33
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23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL 33
23.1 Removal by Trustee 33
23.2 Removal by US$ Noteholders 34
23.3 Resignation 34
23.4 Trust Corporation 34
23.5 Successor to Note Trustee 34
23.6 Eligibility; Disqualification 35
24. NOTE TRUSTEE'S POWERS ADDITIONAL 35
25. SEVERABILITY OF PROVISIONS 35
26. NOTICES 36
26.1 General 36
26.2 Details 36
27. GOVERNING LAW AND JURISDICTION 37
28. COUNTERPARTS 38
29. LIMITED RECOURSE 38
29.1 General 38
29.2 Liability of Trustee limited to its right of Indemnity 38
29.3 Unrestricted remedies 38
29.4 Restricted remedies 38
30. SUCCESSOR TRUSTEE 38
31. REIMBURSEMENT FOR THE COST OF INDEPENDENT ADVICE 39
32. NO LIABILITY 39
33. INFORMATION MEMORANDUM 39
34. NOTE TRUSTEE'S LIMITED LIABILITY 39
34.1 Reliance on certificates 39
34.2 Note Trustee's reliance on Trust Manager or Security Trustee 40
34.3 Compliance with laws 40
34.4 Reliance on experts 41
34.5 Oversights of others 41
34.6 Impossibility or impracticability 41
34.7 Legal and other proceedings 41
34.8 No liability except for negligence etc. 42
34.9 Further limitations on Note Trustee's liability 42
34.10 Conflicts 43
34.11 Information 43
34.12 Investigation by Note Trustee 44
35. NOTEHOLDERS' LISTS AND REPORTS 44
35.1 Provision of information 44
35.2 Preservation of Information; Communications to Noteholders 44
35.3 Reports by Note Trustee 45
35.4 Notices to US$ Noteholders; Waiver 45
35.5 Reports by Trustee 45
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36. TRUST INDENTURE ACT - MISCELLANEOUS 46
36.1 Compliance Certificates and Opinions, etc 46
36.2 Undertaking for Costs 47
36.3 Exclusion of section 316 48
36.4 Unconditional Rights of US$ Noteholders to Receive Principal and Interest 48
36.5 Conflict with Trust Indenture Act 48
SCHEDULE 1 52
Form of Global Note 52
SCHEDULE 2 56
Form of Definitive Note 56
SCHEDULE 3 58
Provisions for Meetings of US$ Noteholders 58
SCHEDULE 4 66
Information to be contained in Noteholder's Report 66
SCHEDULE 5 67
Terms and Conditions of US$ Notes 67
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|
DATE | 2003
|
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PARTIES |
|
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1. | PERPETUAL TRUSTEES VICTORIA LIMITED (ABN 47 004 027 258) of
| Level 4, 333 Collins Street, Melbourne, Victoria in its capacity
| as trustee of Interstar Millennium Series 2003-1G 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); and
|
|
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 US$ Noteholders, the NOTE TRUSTEE).
|
|
|
RECITALS |
|
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|
A | The Trustee has resolved at the direction of the Trust Manager
| to issue US$[*] Class A2 Notes and US$[*] Class B1 Notes to be
| constituted and secured in the manner provided in this deed and
| the other Transaction Documents.
|
|
B | The Note Trustee has agreed to act as trustee for the US$
| Noteholders under this deed.
|
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS AND INTERPRETATION
The following definitions apply unless the context requires otherwise.
CORPORATE TRUST OFFICE means the principal office of the Note Trustee
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
US$ Noteholders and the Trustee or the principal corporate trust office
of any successor Note Trustee.
EVENT OF DEFAULT means, in respect of a US$ Note, any of the events
described in Condition 9.
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 [*].
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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 [*] 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, 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;
(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 US$ Noteholder under this deed unless the Note Trustee (or the
US$ Noteholders acting under clause 6.5, as the case may be) has
agreed in writing to the changes under this deed.
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1.3 INTERPRETATION
(a) Clause 1.2 of the Master Trust Deed applies to this deed as if set
out in full and:
(i) a reference to an ASSET includes any real or personal,
present or future, tangible or intangible property or asset
and any right, interest, revenue or benefit in, under or
derived from the property or asset;
(ii) an Event of Default SUBSISTS until it has been waived in
writing by the Note Trustee;
(iii) a reference to an amount for which a person is CONTINGENTLY
LIABLE includes an amount which that person may become
actually or contingently liable to pay if a contingency
occurs, whether or not that liability will actually arise;
and
(iv) all references to costs or charges or expenses include GST,
any value added tax or similar tax charged or chargeable in
respect of the charge or expense.
(b) Where this deed refers to a provision of the TIA, the provision is
incorporated by reference in and made part of this deed. The
following terms used in the TIA have the following meanings in
this deed.
COMMISSION means the Securities and Exchange Commission of the
United States of America.
INDENTURE SECURITIES means the US$ Notes.
INDENTURE SECURITY HOLDER means a US$ Noteholder.
INDENTURE TO BE QUALIFIED means the Note Trust Deed.
INDENTURE TRUSTEE or INSTITUTIONAL TRUSTEE means the Note Trustee.
OBLIGOR on the indenture securities means the Trustee.
Any other term which is used in this deed in respect of a section
or provision of the TIA and which is defined in the TIA, defined
in the TIA by reference to another statute or defined by or in any
rule of or issued by the Commission, will have the meaning
assigned to them by such definitions.
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.
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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 US$ Noteholders on
the terms and conditions of this deed; and
(b) acknowledges and declares that it:
(i) holds the sum of US$10.00 received on the date of this
deed; and
(ii) will hold the benefit of the obligations of the Trustee
under this deed,
in each case, on trust for each US$ Noteholder, in accordance with the
terms and conditions of this deed. If the Note Issue Date has not
occurred within 30 days of the Note Trustee executing this deed, the
trust constituted under this clause 1.10 will cease.
1.11 COMMENCEMENT
(a) This clause 1, clause 27 and clause 34.7 commence upon execution
of this deed by the Note Trustee.
(b) Subject to paragraph (a), this deed commences and will take effect
on the Note Issue Date.
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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 US$ NOTES
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2.1 PRINCIPAL AMOUNT
Subject to clause 2.3:
(a) the aggregate Principal Amount of the Class A2 Notes is limited to
US$[*]; and
(b) the aggregate Principal Amount of the Class B1 Notes is limited to
US$[*].
2.2 COVENANT TO REPAY
(a) The Trustee covenants with the Note Trustee that the Trustee will,
in accordance with the terms of the US$ Notes (including the
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; or
(ii) each earlier date as the US$ Notes, or any of them, may
become repayable (whether in full or in part),
pay or procure to be paid unconditionally in accordance with this
deed to or to the order of the Note Trustee in US$ in New York
City in same day funds the Principal Amount of each Class of US$
Notes repayable or, in the case of a partial payment of the US$
Notes, the Principal Payment repayable, subject to and in
accordance with the terms of the US$ Notes (including the
Conditions).
(b) Subject to clause 2.3 and to the terms of the US$ 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, the covenants in clause 11, and all other rights of
the Noteholders under the Notes, on trust for the benefit of the
US$ Noteholders.
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2.3 DEEMED PAYMENT
Any payment of principal or interest in respect of US$ Notes to or to
the account of the Principal Paying Agent in the manner provided in
clause 3 of the Agency Agreement shall satisfy the covenant in relation
to the US$ Notes by the Trustee in this clause 2 to the extent of that
payment.
2.4 FOLLOWING EVENT OF DEFAULT
At any time after an Event of Default in respect of the US$ Notes has
occurred, or at any time after Definitive Notes have not been issued
when so required in accordance with the Conditions, the Note Trustee
may:
(a) by notice in writing to the Trustee, the Trust Manager, the
Principal Paying Agent, the other Paying Agents (if any) and the
Calculation Agent require the Principal Paying Agent, the other
Paying Agents and the Calculation Agent under the Agency Agreement
either:
(i) (A) to act as Principal Paying Agent, Paying Agents
and Calculation Agent respectively of the Note Trustee
in relation to payments to be made by or on behalf of
the Note Trustee under the provisions of this deed on
the terms of the Agency Agreement except that the Note
Trustee's liability under any provisions of the Agency
Agreement for the indemnification of the Paying Agents
and Calculation Agent shall be limited to any amount
for the time being held by the Note Trustee on the
trusts of this deed and which is available to be
applied by the Note Trustee under this deed; and
(B) hold all Definitive Notes and all amounts, documents
and records held by them in respect of the US$ Notes
to the order of the Note Trustee; or
(ii) to deliver up all Definitive Notes and all amounts,
documents and records held by them in respect of the
US$ Notes, to the Note Trustee or as the Note Trustee
shall direct in that notice, other than any documents
or records which the relevant Paying Agent or
Calculation Agent is obliged not to release by any law
or regulation; and
(b) by notice in writing to the Trustee require it to make all
subsequent payments in respect of the US$ Notes to or to the order
of the Note Trustee and not to the Principal Paying Agent and,
with effect from the issue of that notice to the Trustee and until
that notice is withdrawn, clause 2.3 shall not apply.
(c) A payment by the Trustee of its payment obligations on each
Quarterly Payment Date under the Series Notice and the Conditions
to the Note Trustee in accordance with paragraph (b) above shall
be a good discharge to the Trustee to the extent of such payment.
2.5 REQUIREMENTS OF PAYING AGENTS
The Trust Manager on behalf of the Trustee will cause each Paying Agent
to execute and deliver to the Note Trustee an instrument in which that
Paying Agent shall agree with the Note Trustee, subject to the
provisions of this clause, that such Paying Agent shall:
(a) hold on trust for the Note Trustee and the US$ Noteholders all
sums held by that Paying Agent for the payment of principal and
interest with respect to the US$ Notes until all
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relevant sums are paid to the Note Trustee or the US$ Noteholders
or otherwise disposed of as provided in this deed; and
(b) immediately notify by telex or facsimile the Note Trustee, the
Trustee, the Security Trustee and the Trust Manager if the full
amount of any payment of principal or interest required to be made
by the Series Notice and the Conditions in respect of the US$
Notes is not unconditionally received by it or to its order in
accordance with the Agency Agreement.
2.6 CERTIFICATION
For the purposes of any redemption of US$ Notes under Condition 5, the
Note Trustee may rely upon an Officer's Certificate of the Trust
Manager certifying that the Trustee will be in a position to discharge
all its liabilities in respect of the relevant US$ Notes and any
amounts required under the Security Trust Deed to be paid in priority
to or pari passu with those US$ Notes and such certificate shall be
conclusive and binding on the Trustee, the Note Trustee and the holders
of those US$ Notes. The Note Trustee shall not incur any liability as a
result of relying on such certificate or such certificate subsequently
being considered invalid.
2.7 DETERMINATIONS
If the Trust Manager does not at any time for any reason determine a
Principal Payment or the Principal Amount applicable to any US$ Notes
in accordance with 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.
3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, US$ NOTES
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3.1 ISSUE OF GLOBAL NOTES
(a) The Class A2 Notes shall on initial issue be represented by a
Class A2 Global Note.
(b) The Class B1 Notes shall on initial issue be represented by a
Class B1 Global Note.
(c) 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 each Global Note, and no Note Owner
will receive a Definitive Note representing such Note Owner's
interest in such Note except as provided in clause 3.3.
3.2 TERMS OF GLOBAL NOTES
(a) Each Global Note 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.
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(c) (i) The Class A2 Global Notes shall be in an aggregate
Principal Amount of US$[*].
(ii) The Class B1 Global Notes shall be in an aggregate
Principal Amount of US$[*].
(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 or by facsimile by an
Authorised Signatory of the Principal Paying Agent and no Global
Note shall be valid for any purpose unless and until so
authenticated. Each Global Note must be signed manually or by
facsimile by an Authorised Signatory or attorney of the Trustee on
behalf of the Trustee and must be authenticated manually or by
facsimile by the Principal Paying Agent.
(f) Whenever a notice or other communication to the US$ Noteholders is
required under this deed, unless and until Definitive Notes have
been issued to Note Owners pursuant to clause 3.3, the Note
Trustee shall give all such notices and communications specified
herein to be given to US$ Noteholders to the Clearing Agency, and
shall have no obligation to the Note Owners in respect of the
same.
(g) Unless and until the Definitive Notes have been issued to the Note
Owners pursuant to clause 3.3:
(i) the provisions of this clause shall be in full force and
effect;
(ii) the Note Registrar, the Trustee, the Trust Manager, each
Paying Agent and the Note Trustee shall be entitled to deal
with the Clearing Agency for all purposes of this deed
(including the payment of principal of and interest on the
US$ Notes and the giving of instructions or directions
hereunder) as the sole holder of the US$ Notes, and shall
have no obligation to any Note Owners;
(iii) to the extent that the provisions of this clause conflict
with any other provisions of this deed, the provisions of
this clause shall prevail;
(iv) the rights of Note Owners shall be exercised only through
the Clearing Agency and shall be limited to those
established by law and agreements between such 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 US$ Notes to such Clearing Agency Participants; and
(v) whenever this deed requires or permits actions to be taken
based upon instructions or directions of Note Owners
evidencing a specific percentage of the Principal Amounts
of all or a Class of US$ Notes, the Clearing Agency shall
be deemed to
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represent such percentage only to the extent that it
has received instructions to such effect from Note
Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage
of the beneficial interest in all or the relevant
Class of US$ Notes and has delivered such instructions
to the Principal Paying Agent.
3.3 ISSUE OF DEFINITIVE NOTES
If at any time the US$ Notes are represented by Global Notes and:
(a) the Principal Paying Agent advises the Trust Manager in writing
that DTC is no longer willing or able to discharge properly its
responsibilities as depository for the US$ Notes and the Trust
Manger is unable to locate a qualified successor; or
(b) the Trustee, at the direction of the Trust Manager, advises the
Principal Paying Agent in writing that it has elected to terminate
the book-entry system through DTC; or
(c) after the occurrence of an Event of Default, the Note Trustee, at
the written direction of Noteholders holding a majority of the
outstanding Principal Amount of the US$ Notes, advises the Trustee
and the Principal Paying Agent that the continuation of a
book-entry system is no longer in the best interests of the US$
Noteholders,
then the Trust Manager must direct the Trustee to, and the Trustee must
(at its expense), within 30 days of becoming aware of the occurrence of
the relevant event, issue Definitive Notes in exchange for the whole of
the outstanding interest in each Global Note.
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 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$100,000 each (serially numbered) and shall be issued on the
terms of the Conditions.
(c) Title to the Definitive Notes shall pass by registration in
accordance with the Master Trust Deed and this deed.
(d) The Definitive Notes shall be signed manually or in facsimile by
an Authorised Signatory or an attorney of the Trustee. The Trustee
may use the facsimile signature of any person who at the date of
printing of the Definitive Notes is an Authorised Signatory of the
Trustee notwithstanding that at the time of issue of any of the
Definitive Notes that person has
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ceased for any reason to be an Authorised Signatory of the Trustee
and the Definitive Notes so executed shall be binding and valid
obligations of the Trustee. The Trustee shall procure that an
Authorised Signatory of the Principal Paying Agent authenticates
each Definitive Note. No Definitive Note shall be valid for any
purpose unless and until so authenticated.
3.6 STAMP AND OTHER TAXES
The Trustee will pay any stamp and other duties and Taxes payable in
Australia or the United States on or in connection with:
(a) the execution of the Transaction Documents;
(b) the constitution and original issue and delivery of the US$ Notes;
and
(c) any action taken by the Note Trustee or (where permitted under
this deed so to do), the Clearing Agency or any Note Owner to
enforce the provisions of the US$ Notes or the Transaction
Documents; and
(d) the creation of the security constituted under the Security Trust
Deed.
3.7 INDEMNITY FOR NON-ISSUE
If the Trustee is required to issue, or procure the issue of,
Definitive Notes following an event specified in clause 3.3(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 US$ Noteholders and the Note Owners and keep them
indemnified against any loss or damage incurred by any of them if the
amount received by the Note Trustee, the US$ Noteholders or the Note
Owners is less than the amount that would have been received had
Definitive Notes been issued within the 30 days referred to above. If
and for so long as the Trustee discharges its obligations under this
indemnity, the breach by the Trustee of the provisions of clause 3.3(b)
shall be deemed to be cured. The Trust Manager must promptly advise the
Trustee if it becomes actually aware of the occurrence of the relevant
event.
3.8 NOTE REGISTER AND NOTE REGISTRAR
(a) The Note Registrar, on behalf of the Trustee, shall keep or cause
to be kept the Note Register in which, subject to such reasonable
regulations as it may prescribe, the Note Registrar, on behalf of
the Trustee, shall provide for the registration of the US$ Notes
and the registration of transfers of US$ Notes. The Note Registrar
will be responsible for registering US$ Notes and transfers of US$
Notes as provided in this deed and the Agency Agreement. The
Trustee may appoint another person as Note Registrar in accordance
with the Agency Agreement.
(b) Upon surrender for registration of the transfer of any US$ Note at
the office or agency of the Trustee to be maintained as provided
in clause 11(e), if the requirements of Section 8-401(a) of the
Uniform Commercial Code of New York (the UCC) are met the Trustee
must execute and upon its written request the Principal Paying
Agent must authenticate and the US$ Noteholder shall obtain from
the Note Trustee, in the name of the designated
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transferee or transferees, one or more new US$ Notes, in any
authorised denominations and of a like aggregate principal amount.
(c) At the option of the US$ Noteholder, US$ Notes may be exchanged
for other US$ Notes in any authorised denominations and a like
aggregate principal amount, upon surrender of the US$ Notes to be
exchanged at any such office or agency referred to in paragraph
(b) above. Whenever any US$ Notes are so surrendered for exchange,
if the requirements of Section 8-401(a) of the UCC are met the
Trustee must execute and upon its written request the Principal
Paying Agent must authenticate and the US$ Noteholder shall obtain
from the Note Trustee, the US$ Notes which the US$ Noteholder
making the exchange is entitled to receive.
(d) Every US$ Note presented or surrendered for registration of
transfer or exchange shall be:
(i) duly endorsed by, or be accompanied by a written instrument
of transfer in a form satisfactory to the Note Registrar
duly executed by the transferring US$ Noteholder or its
attorney duly authorised in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar which requirements
include membership or participation of Securities Transfer
Agents Medallion Program (STAMP) or such other "signature
guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, Stamp,
all in accordance with the Exchange Act; and
(ii) accompanied by such other documents as the Note Registrar
may require.
(e) No service charge shall be made to a US$ Noteholder for any
registration of transfer or exchange of US$ Notes, but the Trustee
may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of US$ Notes.
(f) Notwithstanding the preceding provisions of this clause, the
Trustee shall not be required to make and the Note Registrar need
not register transfers or exchanges of US$ Notes selected for
redemption or of any US$ Note for a period of 10 days preceding
the due date for any payment with respect to the US$ Note.
3.9 US TAX TREATMENT
It is the intention of the parties to this deed and, by their holding
of the US$ Notes, the US$ Noteholders, that the US$ Notes be treated
for United States federal income tax purposes as debt denominated in US
dollars. To the extent that the US$ Notes are not treated, for United
States federal income tax purposes as debts denominated in US dollars,
the Note Trustee, by entering into this deed and each US$ Noteholder,
by its acceptance of its US$ Note hereby identify the US$ Noteholder's
interest in:
(a) the Class A2 A$ Equivalent of the Principal Amount of the relevant
Class A2 Notes (the CLASS A PRINCIPAL AMOUNT) and the Class A2 A$
Interest Amount payable with respect to those Class A2 Notes (the
CLASS A INTEREST, and together with the Class A Principal Amount,
the CLASS A HYPOTHETICAL A$ SECURITY);
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(b) the Class B1 A$ Equivalent of the Principal Amount of the relevant
Class B1 Notes (the CLASS B PRINCIPAL AMOUNT) and the Class B1 A$
Interest Amount payable with respect to those Class B1 Notes (the
CLASS B INTEREST, and together with the Class B Principal Amount,
the CLASS B HYPOTHETICAL A$ SECURITY); and
(c) each related Currency Swap,
for the purposes of Code Section 988(d)(2)(B) and Treasury regulation
section 1.988-5(a)(8) as a "qualified hedging transaction" as defined
in Treasury regulation section 1.988-5(a)(1). For such purposes:
(i) each of the Class A Hypothetical A$ Security and the Class
B Hypothetical A$ Security represents a qualifying debt
instrument and each related Currency Swap, a hedge;
(ii) each qualifying debt instrument and each hedge were
acquired and entered into, respectively, as of the Note
Issue Date (or, in the case of any subsequent acquisition
of a US$ Note, as of the date of such subsequent
acquisition);
(iii) each qualifying debt instrument and each hedge are hereby
identified as constituting a qualified hedging transaction;
(iv) no amount must be deferred by reason of legging into
integrated treatment;
(v) each qualified debt instrument is described by the
definitions of Class A Principal Amount and Class A
Interest or Class B Principal Amount and Class B Interest
(as the case may be) and the definitions relating thereto
applying in this deed, and each hedge is described by the
definition of Currency Swap applying in this deed; and
(vi) the cash flow resulting from the treatment of each
qualifying debt instrument and each hedge as a qualified
hedging transaction is the US dollar cash flow that is
payable under the terms of the US$ Notes.
4. COVENANT OF COMPLIANCE
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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 US$ Noteholder. The
Transaction Documents to which the Trustee and the Note Trustee are a
party and the Conditions shall be binding on the Trustee, the Note
Trustee and the US$ Noteholders. The Note Trustee (or the US$
Noteholders, under clause 6.5, as the case may be) is entitled to
enforce the obligations of the Trustee under the US$ 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 US$ Notes).
The provisions contained in schedule 3 shall have effect as if set out
in this deed.
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5. CANCELLATION OF US$ NOTES
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5.1 CANCELLATION
The Trustee shall procure that all US$ Notes:
(a) which have been redeemed in full; or
(b) in the case of any Definitive Note, which, being mutilated or
defaced, have been surrendered and replaced under 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
US$ Notes and of their redemption, payment, exchange or
cancellation (as the case may be) and of all replacement US$ Notes
issued in substitution for lost, stolen, mutilated, defaced or
destroyed Definitive Notes; and
(b) such records shall be made available to the Note Trustee on
reasonable notice and during business hours promptly following the
Note Trustee's request for the same.
6. ENFORCEMENT
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6.1 ACTIONS FOLLOWING EVENT OF DEFAULT
(a) At any time while an Event of Default is subsisting the Note
Trustee may (subject to the Security Trust Deed, to clauses 6.4
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 US$ Notes together with accrued
interest and any other moneys payable to the Note Trustee
or the US$ Noteholders under the Transaction Documents.
(b) The Note Trustee must, within 90 days of becoming aware of the
occurrence of an Event of Default, notify each US$ Noteholder of
the occurrence of that Event of Default unless:
(i) the Event of Default is not an Event of Default under
clause 8.1(a) of the Security Trust Deed; and
(ii) it determines (and only for so long as it so determines) in
good faith that withholding such notice is in the interests
of the US$ Noteholders.
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6.2 EVIDENCE OF DEFAULT
If the Security Trustee or the Note Trustee takes any action against
the Trustee to enforce any of the provisions of any US$ Notes or this
deed, proof that, as regards any US$ Note, the Trustee has not paid any
principal or interest due in respect of that US$ Note shall (unless the
contrary is proved) be sufficient evidence that the Trustee has not
paid that principal or interest on all other US$ Notes in respect of
which the relevant payment is then due.
6.3 OVERDUE INTEREST
The rates of interest payable in respect of any US$ Note which has
become due and repayable in full and which has not been repaid shall be
calculated at three-monthly intervals, commencing on the expiry of the
Interest Period during which such US$ Note became due and repayable in
accordance with the provisions of Condition 4 except that no notices
need be given to the US$ Noteholders in relation to that interest.
6.4 RESTRICTIONS ON ENFORCEMENT
(a) If any of the US$ Notes remain outstanding and are due and payable
otherwise than by reason of a default in payment of any amount due
on the US$ Notes, the Note Trustee must not vote under the
Security Trust Deed to, or otherwise direct the Security Trustee
to, dispose of the Mortgaged Property (as defined in the Security
Trust Deed) unless either:
(i) a sufficient amount would be realised to discharge in full
all amounts owing to the US$ Noteholders and any other
amounts payable by the Trustee ranking in priority to or
pari passu with the US$ Notes; or
(ii) the Note Trustee is of the opinion, reached after
considering at any time and from time to time the advice of
a merchant bank or other financial adviser selected by the
Note Trustee in its sole and absolute discretion (the cost
of which advice shall be an Expense payable to the Note
Trustee), that the cash flow receivable by the Trustee (or
the Security Trustee under the Security Trust Deed) will
not (or that there is a significant risk that it will not)
be sufficient, having regard to any other relevant actual,
contingent or prospective liabilities of the Trustee, to
discharge in full in due course all the amounts referred to
in paragraph (i) relating to the Trust.
(b) Neither the Note Trustee (except in the case of negligence, fraud
or wilful default by it) nor the Security Trustee (except in the
case of negligence, fraud or wilful default by it) will be liable
for any decline in the value, nor any loss realised upon any sale
or other dispositions made under the Security Trust Deed, of any
Mortgaged Property or any other property which is charged to the
Security Trustee by any other person in respect of or relating to
the obligations of the Trustee or any third party in respect of
the Trustee or the US$ Notes or relating in any way to the
Mortgaged Property. Without limitation, neither the Note Trustee
nor the Security Trustee shall be liable for any such decline or
loss directly or indirectly arising from its acting, or failing to
act, as a consequence of an opinion reached by it in good faith
based on advice received by it in accordance with paragraph (a).
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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 US$ Noteholders may proceed
directly against the Trustee but then only if and to the extent the US$
Noteholders are able to do so under 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 US$ Notes, unless directed or requested to do so:
(a) by an Extraordinary Resolution of the US$ Noteholders, as
appropriate; or
(b) in writing by the holders of at least 75% of the aggregate
Principal Amount of the US$ Notes, as appropriate,
and then only if the Note Trustee is indemnified to its satisfaction
against all action, proceedings, claims and demands to which it may
render itself liable and all costs, charges, damages and expenses which
it may incur by so doing.
If an Extraordinary Resolution of Voting Mortgagees (as defined in the
Security Trust Deed) elects not to direct the Security Trustee to
enforce the Security Trust Deed, in circumstances where the Security
Trustee could enforce, the Note Trustee must, at the direction in
accordance with (a) and/or (b) above of the US$ Noteholders, direct the
Security Trustee to enforce the Security Trust Deed on behalf of the
Noteholders.
7.2 SECURITY TRUSTEE ACTING
Only the Security Trustee may enforce the provisions of the Security
Trust Deed and neither the Note Trustee nor any holder of a US$ 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
US$ 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 US$ Noteholders may
proceed directly against the Trustee but then only if and to the extent
the US$ Noteholders are able to do so under 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.
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Note Trust Deed Allens Arthur Robinson
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7.3 NOTE TRUSTEE ALONE ENTITLED TO ACT
Subject to clauses 36.4, 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 US$ Notes (including
the Conditions),
and no US$ Noteholder is entitled to take any of the above actions or
to proceed directly against the Trustee to enforce the performance of
any of the provisions of this deed or the US$ Notes (including the
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
(b) the Trustee has entered into a legally binding contract with an
entity either whose long term unsecured and unguaranteed debt is
rated AA- by S&P and Aa3 by Moody's or whose short term unsecured
and unguaranteed debt securities are rated A-1 by S&P and P-1 by
Moody's to provide sufficient cash on or before the relevant
Payment Date to enable the Trustee to discharge the relevant
liabilities,
and in each circumstance the Trust Manager has certified to the Note
Trustee that the requirements of clause 7.4(a) or (b) have been met and
the Note Trustee shall be entitled to rely on such certification.
7.5 NO LIABILITY
In giving any direction to the Security Trustee under this deed or the
Security Trust Deed, the Note Trustee shall not be obliged to ensure
that the Security Trustee complies with such direction and will not be
liable for any failure by the Security Trustee so to comply.
8. NOTICE OF PAYMENT
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The Principal Paying Agent shall give notice to the relevant US$
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 US$ 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.
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Note Trust Deed Allens Arthur Robinson
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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 US$ Note) the Trustee, the Security Trustee or the Note
Trustee (as the case may be) shall, or shall procure that, the Note
Register relating to the US$ Note in respect of which such payment is
made shall be amended to evidence the amount and the date of payment.
11. COVENANTS BY THE TRUSTEE AND TRUST MANAGER
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Each of the Trustee and the Trust Manager severally undertakes to the
Note Trustee, on behalf of the US$ Noteholders, as follows in relation
to the Trust for so long as any of the US$ Notes remain outstanding
(except to the extent that the Note Trustee otherwise consents):
(a) (MASTER TRUST DEED COVENANTS) It will comply with its covenants in
clause 17, 21 and 28 of the Master Trust Deed (as the case may
be).
(b) (TRANSACTION DOCUMENTS)
(i) It will comply with its material obligations under the
Transaction Documents.
(ii) It will use its reasonable endeavours (to the extent that
it is able to do so under the Master Trust Deed) to procure
that each other party to a Transaction Document complies
with and performs its obligations under that Transaction
Document.
(c) (INFORMATION) It will give to the Note Trustee a copy of any
information in its possession relating to the Trust as soon as
reasonably practicable in connection with the exercise and
performance of its powers and obligations under this deed and
which the Trustee or the Trust Manager (as the case may be)
reasonably considers has a material bearing on the interest of the
US$ Noteholders.
(d) (NOTIFY EVENTS OF DEFAULT)
(i) It will promptly notify the Note Trustee if it has
knowledge or notice of or is aware of the occurrence of an
Event of Default, Trustee's Default or Trust Manager's
Default or, with respect to the Trust Manager only, an
event that, with the giving of notice or the passage of
time would constitute an Event of Default, Trustee's
Default or Trust Manager's Default (POTENTIAL DEFAULT)
including full details (to the extent known, without making
any enquiry) of that Event of Default, Trustee's
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Default or Trust Manager's Default or, in respect of the
Trust Manager only, Potential Default (as the case may be).
(ii) In addition to its obligations under sub-clause item (d)(i)
of this clause 11, it will confirm to the Note Trustee, on
each anniversary of this deed:
(A) whether or not the Trust Manager or the Trustee is
aware that any Event of Default or, with respect to
the Trust Manager only, event that with the giving of
notice or passage of time would constitute an 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 US$ Notes may be surrendered
for registration of transfer or exchange, and where notices and
demands to or upon the Trustee in respect of the US$ Notes and
this deed may be served. The Trustee hereby initially appoints the
Note Registrar to serve as its agent for the foregoing purposes.
The Note Registrar shall act solely for, and as agent of, the
Trustee and shall not have any obligations towards or relationship
or agency or trust with any other person in respect of its
appointment under this sub-paragraph (e). The Trust Manager will
give prompt written notice to the Note Trustee of the location,
and of any change in the location, of any such office or agency.
If at any time the Trust Manager on behalf of the Trustee shall
fail to maintain any such office or agency or shall fail to
furnish the Note Trustee with the address thereof, such
surrenders, 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
US$ Notes remain outstanding, there will at all times be a
Calculation Agent.
(g) (PRINCIPAL PAYING AGENT) It will procure that, so long as any of
the US$ Notes remain outstanding, there will at all times be a
Principal Paying Agent.
(h) (CHANGE TO PAYING AGENTS OR CALCULATION AGENT) It will give notice
to the US$ Noteholders in accordance with the Agency Agreement and
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).
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Note Trust Deed Allens Arthur Robinson
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(i) (NOTICES) It will promptly give to the Note Trustee, or ensure
that the Note Trustee receives for its approval, two copies of the
form of every notice prior to the notice being given to the US$
Noteholders in accordance with 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 covenant, specifying each such default known
to the Signatory of the nature and status of the default.
For the purposes of this clause 11(j) compliance shall be
determined without regard to any period of grace or
requirement of notice under the Transaction Documents.
(k) (OPINIONS AS TO TRUST ESTATE) On the Note Issue Date, the Trustee
(or the Trust Manager on its behalf) shall furnish to the Note
Trustee an Opinion of Counsel (who may be of counsel for the
Trustee) either stating that in the opinion of such counsel the
Security Trust Deed and any other requisite documents has been
properly recorded and filed so as to make effective the Security
Interest intended to be created by the Security Trust Deed, and
reciting the details of such action, or stating that in the
opinion of such counsel no such action is necessary to make such
Security Interest effective.
Within 120 days after the end of each fiscal year commencing
on 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 US$ Noteholder.
(ii) Each Noteholder Report shall contain the information set
out in schedule 4.
(m) (LISTING) It will use its best endeavours to:
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Note Trust Deed Allens Arthur Robinson
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(i) obtain and maintain a quotation or listing of the US$ Notes
on any Stock Exchange or Stock Exchanges or securities
market or markets as the Trust Manager (with the prior
written approval of the Note Trustee, that approval not to
be unreasonably withheld or delayed) decides and following
that quotation or listing enter into a deed supplemental to
this deed to effect such consequential amendments to this
deed necessary to comply with the requirements of any such
Stock Exchange or securities market; and
(ii) procure that there will at all times be furnished to the
relevant Stock Exchange or securities market any
information which such Stock Exchange or securities market
may require to be furnished in accordance with its
requirements.
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 US$ 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 US$ Noteholders acting under
clause 6.5 (as the case may be)) to enforce any obligation under
this deed or the US$ Notes.
(b) Without prejudice to the right of indemnity by law given to
trustees, to the extent the Trustee is itself entitled to be
indemnified and, subject to clause 29, the Trustee indemnifies
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Note Trust Deed Allens Arthur Robinson
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the Note Trustee (or the US$ 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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13.1 LIMITED RESPONSIBILITIES
Subject to clauses 13.2 and 14, it is expressly declared as follows.
(a) Any advice, opinion or information obtained by the Note Trustee
from any lawyer, valuer, accountant, banker, broker, credit-rating
agency, lead manager or other expert may be sent or obtained by
letter, telex, telegram, facsimile transmission 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.
(b) The Note Trustee may call for and shall be at liberty to accept as
sufficient evidence of any fact or matter or the expediency of any
transaction or thing a certificate signed by two Authorised
Signatories of the Trustee or the Trust Manager (as the case may
be) and the Note Trustee shall not be bound in any such case to
call for further evidence or be responsible for any loss that may
be occasioned by the Note Trustee acting on that certificate.
(c) The Note Trustee is at liberty to hold or to place this deed and
any other documents relating to this deed in any part of the world
with any banker or banking company or company whose business
includes undertaking the safe custody of documents or lawyer or
firm of lawyers reasonably considered by the Note Trustee to be of
good repute and except in the case of fraud, negligence or wilful
default (in the case of the Security Trustee) or fraud, 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
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Note Trust Deed Allens Arthur Robinson
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liability which may be suffered as a result of any assets secured
by the Security Trust Deed, Mortgaged Property or any deed or
documents of title thereto, being uninsured or inadequately
insured or being held by or to the order of any clearing
organisations or their operators or by any person on behalf of the
Note Trustee if prudently chosen in accordance with the
Transaction Documents.
(d) The Note Trustee shall not be responsible for the application of
the proceeds of the issue of any of the US$ Notes by the Trustee
or any moneys borrowed by the Trustee under any Transaction
Document or the exchange of any Global Note for any Definitive
Notes.
(e) Except as otherwise provided in this deed or any other Transaction
Documents to which it is a party, the Note Trustee shall not be
bound to give notice to any person of the execution of this deed
or any of the Transaction Documents or any transaction
contemplated hereby or thereby or to take any steps to ascertain
whether any Event of Default has happened and, until it has actual
knowledge or express notice to the contrary, the Note Trustee is
entitled to assume that no Event of Default has happened and that
the Trustee and each other party to any Relevant Document is
observing and performing all the obligations on its part contained
in the US$ Notes and under this deed or, as the case may be, the
Security Trust Deed or any other Transaction Document to which it
is a party.
(f) Save as expressly otherwise provided in this deed or the
Transaction Documents:
(i) the Note Trustee shall have absolute and uncontrolled
discretion as to the exercise of the discretions vested
in the Note Trustee by this deed and the Transaction
Documents (the exercise of which as between the Note
Trustee and the US$ Noteholders shall be conclusive and
binding on the US$ Noteholders) but whenever the Note
Trustee is under the provisions of this deed or the
Transaction Documents bound to act at the request or
direction of the US$ Noteholders, or any of them, the
Note Trustee shall nevertheless not be so bound unless
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;
and
(ii) in the absence of fraud, negligence or wilful default,
the Note Trustee shall not be in any way responsible for
any loss (whether consequential or otherwise), costs,
damages or inconvenience that may result from the
exercise or non-exercise of any powers, authorities and
discretions vested in it.
(g) The Note Trustee shall not be liable for acting upon any
resolution purporting to have been passed at any meeting of the
US$ Noteholders in respect of which minutes have been made and
signed even though subsequently it may be found that there was
some defect in the constitution of the meeting or the passing of
the resolution or that for any reason the resolution was not valid
or binding upon the US$ Noteholders.
(h) The Note Trustee shall not be liable to the Trustee or any US$
Noteholder by reason of having accepted as valid or not having
rejected any entry in the Note Register in respect of a Definitive
Note 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
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Note Trust Deed Allens Arthur Robinson
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evidence to the effect that at any particular time or through any
particular period any particular person is, was, or will be, shown
in its records as entitled to a particular number of US$ Notes.
(i) Any consent or approval given by the Note Trustee for the purpose
of this deed, the 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.
(j) Save as otherwise expressly provided in this deed, the Note
Trustee shall not (unless and to the extent ordered so to do by a
court of competent jurisdiction) be required to disclose to any
US$ Noteholder or any Mortgagee, any information made available to
the Note Trustee by the Trustee, the Trust Manager or any other
person in connection with the trusts of this deed and no US$
Noteholder shall be entitled to take any action to obtain from the
Note Trustee any such information.
(k) Where it is necessary or desirable for any purpose in connection
with this deed to convert any sum from one currency to another it
shall (unless otherwise provided by this deed or any other
Transaction Document or required by law) be converted at the rate
or rates, in accordance with the method and as at the date for the
determination of the rate of exchange, as may be agreed by the
Note Trustee in consultation with the Trustee and the Trust
Manager as relevant and any rate, method and date so agreed shall
be binding on the Trustee and the US$ Noteholders.
(l) Subject to clauses 6.5 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 US$ 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 US$ Notes that the
Trustee had, on the due date for payment of the amount of interest
in question, sufficient cash to pay, in accordance with the
provisions of the Series Notice or the Security Trust Deed, all
interest (after payment of all sums which are permitted under the
Series Notice or the Security Trust Deed to be paid in priority to
or pari passu with them) and that certificate shall be conclusive
and binding upon the Trustee and the US$ Noteholders. The Note
Trustee shall have no liability to the Trustee, any US$ Noteholder
or any other person in relation to any such certificate or in
relation to any delay or omission in providing such certificate.
In giving any certificate relating to paragraph (a) of Condition
9, the Note Trustee may rely on any determination made by any
independent accountants of recognised standing in Australia and
any such determination shall be conclusive and binding on the
Trustee and the US$ Noteholders. The Trustee shall pay the Note
Trustee all costs and expenses of providing the certificate at the
times specified in the Series Notice.
(m) The Note Trustee shall not be bound to take any steps to ascertain
whether any event, condition or act, the happening of which would
cause a right or remedy to become exercisable by the Note Trustee
under this deed or by the Trustee under any of the Transaction
Documents has happened or to monitor or supervise the observance
and performance by the Trustee or any of the other parties thereto
of their respective obligations
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Note Trust Deed Allens Arthur Robinson
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thereunder and, until it shall have actual knowledge or express
notice to the contrary, the Note Trustee shall be entitled to
assume that no such event, condition or act has happened and that
the Trustee and each of the other parties thereto are observing
and performing all their respective obligations thereunder.
(n) The Note Trustee shall not be responsible for recitals,
statements, warranties or representations of any party (other than
itself) contained in any Transaction Document or other document
entered into in connection with it and shall assume its accuracy
and correctness and (except with respect to itself) the execution,
legality, effectiveness, adequacy, genuineness, validity or
enforceability or admissibility in evidence of that agreement or
other document or any security constituted by them, and the Note
Trustee may accept without enquiry, requisition or objection all
title as the Trustee may have to any of the Mortgaged Property or
as any other person may have to any other security charged from
time to time to the Note Trustee and shall not be bound to
investigate or make any enquiry in the title of the Trustee to any
of the Mortgaged Property or the title of any other person to any
other security charged from time to time to the Note Trustee
whether or not any default or failure might be, or might have
been, discovered upon examination inquiry or investigation and
whether or not capable of remedy. Notwithstanding the generality
of the foregoing each US$ Noteholder is solely responsible for
making its own independent appraisal of and investigation into the
Trust and the US$ Notes and the Note Trustee shall not at any time
have any responsibility for the same and no US$ Noteholder shall
rely on the Note Trustee in that respect.
(o) The Note Trustee shall not be liable for any failure, omission or
defect in or filing or procuring registration or filing of or
otherwise protecting or perfecting the Security Trust Deed or the
Mortgaged Property or any other security or failure to call for or
delivery of documents of title to the Mortgaged Property or any
other security or to require any further assurances in relation to
any property or assets comprised in the Mortgaged Property or any
other security.
(p) The Note Trustee shall, as regards all the powers, trusts,
authorities, duties and discretions vested in it by this deed, the
Transaction Documents or the US$ Notes (including the Conditions),
except where expressly provided otherwise have regard to the
interests of the US$ Noteholders.
(q) Without prejudice to the provisions of any Transaction Document
the Note Trustee shall not be under any obligation to insure any
of the Mortgaged Property (or any other property) or any deeds or
documents of title or other evidence relating to that property.
(r) Subject to Condition 10(c), the Note Trustee shall not be
responsible for any loss, expense or liability (including, without
limitation, any decline in value or loss realised upon any sale or
disposition made under the Security Trust Deed) occasioned to the
Mortgaged Property or any other property or in respect of all or
any of the moneys which may stand to the credit of the Collection
Accounts from time to time however caused (including any bank,
broker, depository, warehouseman or other intermediary or any
clearing system or its operator acting in accordance with or
contrary to the terms of any of the Transaction Documents or
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Note Trust Deed Allens Arthur Robinson
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otherwise), unless that loss is occasioned by the fraud,
negligence, or wilful default of the Note Trustee.
(s) The Note Trustee has no responsibility whatsoever to the Trustee
or any US$ Noteholder as regards any deficiency or additional
payment, as the case may be, which might arise because the Note
Trustee or the Trustee is subject to any Tax in respect of the
Mortgaged Property, the Security Trust Deed or any other security
or any income or any proceeds from them.
(t) No provision of this deed requires the Note Trustee to do anything
which may be illegal or contrary to applicable law or regulation
or expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties, or in the
exercise of any of its rights or powers, if it has grounds to
believe that repayment of those funds or adequate indemnity
against that risk or liability is not assured to it. Without
limitation nothing contained in this deed imposes any obligation
on the Note Trustee to make any further advance to an Obligor or
to borrow any moneys under a Transaction Document or to maintain,
protect or preserve any moneys standing to the credit of the
Collection Account.
(u) The Note Trustee is not responsible (except as to itself) for the
genuineness, validity, effectiveness or suitability of any of the
Transaction Documents or any of the Mortgages, Security Interests
or other documents entered into in connection with them or any
Mortgage Insurance Policy or the priority constituted by or
purported to be constituted by or pursuant to that Security
Interest, nor shall it (except as to itself) be responsible or
liable to any person because of any invalidity of any provision of
those documents or the unenforceability of those documents,
whether arising from statute, law or decision of any court and
(without limitation) the Note Trustee shall not be responsible for
or have any duty to make any investigation in respect of or in any
way be liable whatsoever for:
(i) the nature, status, creditworthiness or solvency of
any Obligor or any other person or entity who has at
any time provided any security or support whether by
way of guarantee, Security Interest or otherwise in
respect of any advance made to any Obligor;
(ii) the execution, legality, validity, adequacy,
admissibility in evidence or enforceability of any
Mortgage or Loan or any other document entered into in
connection with them;
(iii) the title, ownership, value, sufficiency or existence
of any Land, Mortgaged Property or any Mortgage
Insurance Policy;
(iv) the registration, filing, protection or perfection of
any Mortgage or the priority of the security created
under a Mortgage whether in respect of any initial
advance or any subsequent advance or any other sums or
liabilities;
(v) the scope or accuracy of any 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;
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Note Trust Deed Allens Arthur Robinson
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(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 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.
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Note Trust Deed Allens Arthur Robinson
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(v) The Note Trustee is not liable or responsible for any loss, cost,
damages, expenses, liabilities or inconvenience which may result
from anything done or omitted to be done by it in accordance with
the provisions of this deed, any other Transaction Document or any
other document.
(w) The Note Trustee is not liable in respect of it being treated as,
or being deemed to be, a creditor, for the purposes of the
Consumer Credit Legislation, in respect of any of the Mortgages.
(x) In connection with any proposed modification, waiver,
authorisation or determination permitted by this deed, the Note
Trustee shall not have regard to the consequences thereof for
individual US$ Noteholders resulting from their being for any
purpose domiciled or resident in, or otherwise connected with, or
subject to, the jurisdiction of any particular territory.
(y) Except as otherwise provided in this deed or any other Transaction
Document, the Note Trustee shall have no responsibility for the
maintenance of any rating of any US$ Notes by a Designated Rating
Agency or any other credit-rating agency or any other person.
(z) The Note Trustee shall be under no obligation to monitor or
supervise the functions of any person under any Authorised
Investment, Support Facility, Mortgage, Loan or Transaction
Document or any other deed, agreement or arrangement incidental to
any of the above , and is entitled, in the absence of actual
knowledge of a breach of duty or obligation, to assume that any
person is properly performing its obligations in accordance with
each Transaction Document.
(aa) The Note Trustee acknowledges that the Trust Manager is
responsible, under the Series Notice, for calculating all amounts
referred to in clause 6.2 of the Series Notice (other than
calculations required to be made by the Calculation Agent under
the Agency Agreement) and the Note Trustee has no liability in
respect of these calculations.
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.
13.2 EXAMINATION OF DOCUMENTS
The Note Trustee shall examine the evidence furnished to it pursuant to
section 314 of the TIA to determine whether the opinions, searches,
reports, certificates, valuations and investigations delivered or
obtained or required to be delivered or obtained at any time in
connection with any Mortgage or Loan conform to the requirements of
this deed.
14. NOTE TRUSTEE'S LIABILITY
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14.1 NO EXEMPTION FROM LIABILITY
Nothing in this deed shall exempt the Note Trustee from or indemnify it
against any liability for breach of trust or any liability in respect
of any fraud, negligence or wilful default of which it may be guilty in
relation to its duties under this deed.
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Note Trust Deed Allens Arthur Robinson
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14.2 OCCURRENCE OF AN EVENT OF DEFAULT
In the case of an Event of Default, the Note Trustee shall exercise,
with respect to the rights and powers vested in it by this deed, the
same degree of care and skill as a prudent person would exercise under
the circumstances in the conduct of such person's affairs.
15. DELEGATION BY NOTE TRUSTEE
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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 US$ Noteholders think fit, provided that
appointment does not have an adverse effect on the ratings of the
US$ 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 US$
Notes. So long as the Note Trustee exercises reasonable care in the
selection of that agent, the Note Trustee shall not be required to
supervise the actions of the agent and shall not in any way be
responsible for any loss incurred by reason of any misconduct or
default on the part of that agent.
Any trustee of this deed which is a lawyer, accountant, broker or other
person engaged in any profession or business is entitled to charge and
be paid all usual professional and other charges for business
transacted and acts done by him or his firm in connection with the
trusts of this deed and also his reasonable charges in addition to
disbursements for all other work and business done and all time spent
by him or his firm in connection with matters arising in connection
with this deed. Those charges will be for the account of the Note
Trustee unless agreed otherwise who shall be reimbursed by the Trustee
under clause 12.
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE
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Neither the Note Trustee nor any director or officer of a corporation
acting as a trustee under this deed, nor the Security Trustee, is by
reason of its or their fiduciary position in any way precluded
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Note Trust Deed Allens Arthur Robinson
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from entering into or being interested in any contract or financial or
other transaction or arrangement with the Trustee or any other party to
any of the Transaction Documents or any person or body corporate
associated with the Trustee including any contract, transaction or
arrangement of a banking or insurance nature or any contract,
transaction or arrangement in relation to the making of loans or the
provision of financial facilities to or the purchase, placing or
underwriting of or subscribing or procuring subscriptions for or
otherwise acquiring holding or dealing with any US$ Notes, or any other
bonds, stocks, shares, debenture stock, debentures, notes or other
securities of the Trustee or any other party to any of the Transaction
Documents or any related person or body corporate or from accepting or
holding the trusteeship of any other trust deed constituting or
securing any other securities issued by or relating to the Trustee or
any other party to any of the Transaction Documents or any related
person or body corporate or any other office of profit under the
Trustee or any other party to any of the Transaction Documents or any
related person or body corporate and shall be entitled to retain and
shall not be in any way liable to account for any profit made or share
of brokerage or commission or remuneration or other benefit received or
in connection with any of those arrangements.
18. WAIVER
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(a) The Note Trustee may without prejudice to its rights in
respect of any subsequent breach, condition, event or act from
time to time and at any time (but only if, and in so far as,
in its opinion the interests of any of the US$ Noteholders are
not materially prejudiced and the rights of the US$
Noteholders to receive principal and interest in respect of
the US$ Notes are not affected), waive or authorise on any
terms and subject to any conditions as it sees fit and proper:
(i) any breach or proposed breach by the Trustee or the
Trust Manager of any of the covenants or provisions
contained in this deed or in the US$ Notes (including
the Conditions) or any other Transaction Document (as
to which evidence of a breach of one US$ Note in a
Class shall be deemed evidence of a breach of all US$
Notes in that Class); or
(ii) determine that any condition, event or act which
constitutes, or which with the giving of notice, the
lapse of time or the issue of a certificate would
constitute, but for that determination, an Event of
Default shall not, or shall not subject to specified
conditions, be so treated for the purposes of this
deed,
but the Note Trustee shall not exercise any powers conferred
on it by this clause in contravention of any express direction
given by an Extraordinary Resolution. No direction or request
shall affect any waiver, authorisation or determination given
or made by the Note Trustee prior to any express direction
given by the US$ Noteholders pursuant to an Extraordinary
Resolution.
(b) Any waiver, authorisation or determination under this clause
is binding on the US$ Noteholders and if, but only if, the
Note Trustee so requires, shall be notified by the Trustee to
the US$ Noteholders in accordance with Condition 12 as soon as
practicable.
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Note Trust Deed Allens Arthur Robinson
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19. AMENDMENT
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19.1 APPROVAL
The Note Trustee, the Trust Manager and the Trustee may, following the
giving of notice to each Designated Rating Agency, by way of
supplemental deed alter, add to or modify this deed (including this
clause 19) or the 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 materially prejudicial to the interests of
the US$ Noteholders as a whole or a Class of US$ Noteholders,
and in the manner, and to the extent, permitted by the Transaction
Documents.
19.2 EXTRAORDINARY RESOLUTION OF NOTEHOLDERS
Where in the opinion of the Note Trustee a proposed alteration,
addition or modification to this deed, other than an alteration,
addition or modification referred to in clause 19.1, is materially
prejudicial or likely to be materially prejudicial to the interest of
US$ Noteholders as a whole or a Class of US$ Noteholders, the Note
Trustee, the Trust Manager and the Trustee may make that alteration,
addition or modification if sanctioned by an Extraordinary Resolution
of all the US$ Noteholders or that Class of US$ Noteholders (as the
case may be).
19.3 DISTRIBUTION OF AMENDMENTS
The Trust Manager shall distribute to all US$ Noteholders a copy of any
amendments made under clause 19.1 or 19.2 under Condition 12 as soon as
reasonably practicable after the amendment has been made.
19.4 AMENDMENTS BINDING
Any amendment under this clause is binding on the US$ Noteholders.
19.5 CONFORMITY WITH TIA
Every amendment of this deed executed pursuant to this clause 19 shall
conform to the requirements of the TIA as then in effect so long as
this deed shall then be qualified under the TIA.
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20. US$ NOTEHOLDERS
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20.1 ABSOLUTE OWNER
(a) The Trustee, the Trust Manager, the Security Trustee, the
Note Trustee and any Paying Agent may treat the registered
holder of any 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 US$ Notes, or any of them, are represented by
a Global Note, the Trustee, the Trust Manager, the Security
Trustee, the Note Trustee and any Paying Agent may treat the
person for the time being shown in the records of the
Clearing Agency as the holder of any US$ Notes as the
absolute owner of those US$ Notes and the Trustee, the Trust
Manager, the Security Trustee, the Note Trustee and the
Paying Agents are not affected by any notice to the contrary,
but without prejudice to the entitlement of the registered
holder of the Global Note to be paid principal and interest
on the Global Note in accordance with its terms. Without
limitation, notices to the US$ Noteholders may be given by
delivery of the relevant notice to the Clearing Agency as the
holder of the US$ Notes for communication by them to entitled
account holders.
(c) Provided the Trustee, the Note Trustee or the Security
Trustee (as the case may be) (or a Paying Agent on behalf of
the Trustee, the Note Trustee, or the Security Trustee (as
the case may be)) pays the registered holder of the Global
Notes in accordance with the Transaction Documents, each Note
Owner shall have no claim directly against the Trustee, the
Note Trustee or the Security Trustee (as the case may be) in
respect of payment due on any US$ Notes for so long as those
US$ Notes are represented by a Global Note.
(d) Without limiting the preceding paragraphs of this clause
20.1, all payments made to a Note Owner in respect of a US$
Note under this clause (or, in the case of a 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 US$ Notes.
20.2 CLEARING SYSTEM CERTIFICATE
The Trustee, the Trust Manager, the Security Trustee and the Note
Trustee may call for and shall be at liberty to accept and place full
reliance on as sufficient evidence a certificate or letter or
confirmation signed on behalf of a Clearing Agency or any form of
record made by it to the effect that at any particular time or
throughout any particular period any particular person is, was, or will
be, shown in its records as entitled to a particular interest in a
Global Note.
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21. CURRENCY INDEMNITY
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Subject to this deed, including clause 29, the Trustee indemnifies the
Note Trustee and the US$ 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 US$ Noteholders under this deed or the
relevant US$ 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$, and under which the Note Trustee or the US$ Noteholders
do not have an option to have that judgment or order
expressed in US$, and those prevailing at the date of actual
payment by the Trustee; and
(b) any deficiency arising or resulting from any variation in
rates of exchange between:
(i) the date (if any) as of which the non-US$ currency
equivalent of the US$ amounts due or contingently due
under this deed (other than this clause) or in respect
of the relevant US$ 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$.
The amount of that deficiency shall not be reduced by any
variation in rates of exchange occurring between that final
date and the date of any distribution of assets in connection
with that bankruptcy, insolvency or liquidation.
(c) The indemnities in this clause are obligations of the Trustee
separate and independent from its obligations under the US$
Notes and apply irrespective of any time or indulgence
granted by the Note Trustee or the US$ Noteholders from time
to time and shall continue in full force and effect despite
the judgment or filing of any proof or proofs in any
bankruptcy, insolvency or liquidation of the Trustee for a
liquidated sum or sums in respect of amounts due under this
deed (other than this clause) or the US$ Notes. Any
deficiency will constitute a loss suffered by the US$
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 US$ Noteholders. One or
more persons may hold office as Note Trustee or Note Trustees of this
deed but that Note Trustee or those Note Trustees must be or include a
Trust Corporation. Whenever there are more than two Note Trustees of
this deed the majority of those Note Trustees are competent to execute
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and exercise all the duties, powers, trusts, authorities and
discretions vested in the Note Trustee by this deed if a Trust
Corporation is included in that majority.
22.2 APPOINTMENT BY NOTE TRUSTEE
(a) The Note Trustee may, on 30 days prior written notice to the
Trustee, the Trust Manager, the Principal Paying Agent and
the US$ Noteholders (in accordance with 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 US$ Noteholders;
(ii) for the purposes of conforming to any legal
requirements, restrictions or conditions in any
jurisdiction in which any particular act or acts is or
are to be performed; or
(iii) for the purposes of obtaining a judgment in any
jurisdiction or the enforcement in any jurisdiction of
either a judgment already obtained or any of the
provisions of this deed against the Trustee.
(b) Subject to the provisions of this deed, a person appointed
under paragraph (a) has all trusts, powers, authorities and
discretions (not exceeding those conferred on the Note
Trustee by this deed) and all duties and obligations
conferred or imposed by the instrument of appointment.
(c) 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)(1) 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
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effect to each Designated Rating Agency and the Note Trustee with
effect immediately on that notice, if any of the following occurs in
relation to the Note Trustee:
(a) an Insolvency Event has occurred in relation to the Note
Trustee;
(b) the Note Trustee has ceased its business;
(c) the Note Trustee fails to comply with any of its obligations
under any Transaction Document and such failure has had or, if
continued will have, a Material Adverse Effect (as determined
by the Trustee), and, if capable of remedy, the Note Trustee
does not remedy within 14 days after the earlier of:
(i) the Note Trustee becoming aware of that failure; and
(ii) receipt by the Note Trustee of a written notice with
respect thereto from either the Trustee or the Trust
Manager; or
(d) the Note Trustee fails to satisfy any obligation imposed on it
under the TIA with respect to the Trust or this deed or comply
with clause 23.6.
23.2 REMOVAL BY US$ NOTEHOLDERS
The US$ Noteholders may resolve by Extraordinary Resolution to require
the Trustee to remove the Note Trustee or Note Trustees for the time
being of this deed.
23.3 RESIGNATION
Subject to this clause 23, the Note Trustee may resign its appointment
under this deed at any time by giving to the Trustee, the Trust
Manager, the Security Trustee and each Designated Rating Agency not
less than 3 months written notice to that effect. Notwithstanding the
preceding sentence, the Note Trustee shall not resign its appointment
under this deed until a successor Note Trustee meeting the requirements
set forth in clauses 22.4 and 23.6 has been appointed and has accepted
its appointment as Note Trustee under this deed as provided in clause
23.5.
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
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Trustee with effect as if originally named as Note Trustee in
this deed and the Transaction Documents and that predecessor
Note Trustee, on payment to it of the pro rata proportion of
its fee and disbursements then unpaid (if any), shall have no
further liabilities under this deed, except for any accrued
liabilities arising from or relating to any act or omission
occurring prior to the date on which the successor Note
Trustee is appointed.
(b) Any corporation:
(i) into which the Note Trustee is merged;
(ii) with which the Note Trustee is consolidated;
(iii) resulting from any merger or consolidation to which the
Note Trustee is a party;
(iv) to which the Note Trustee sells or otherwise transfers
all or substantially all the assets of its corporate
trust business,
shall, on the date when that merger, conversion,
consolidation, sale or transfer becomes effective and to the
extent permitted by applicable law, become the successor Note
Trustee under this deed without the execution or filing of any
agreement or document or any further act on the part of the
parties to this deed, unless otherwise required by the Trustee
or the Trust Manager, and after that effective date all
references in this deed to the Note Trustee shall be
references to that corporation.
(c) If no other person can be found to act as Note Trustee, the
US$ Noteholders may elect a Note Trustee from among the
holders of the US$ Notes.
23.6 ELIGIBILITY; DISQUALIFICATION
(a) The Note Trustee shall at all times satisfy the requirements
of section 310(a) of the TIA.
(b) The Note Trustee shall have a combined capital and surplus (as
those terms are used in the TIA) of at least US$50,000,000 as
set forth in its most recent published annual report of
condition.
(c) The Note Trustee shall comply with section 310(b) of the TIA,
provided that any indenture or indentures under which other
securities of the Trustee are outstanding shall be excluded
from the operation of section 310(b)(1) of the TIA for the
purposes of paragraph (b) if the requirements for such
exclusion set out in section 310(b)(1) of the TIA are met.
24. NOTE TRUSTEE'S POWERS ADDITIONAL
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The powers conferred upon the Note Trustee by this deed shall be in
addition to any powers which may from time to time be vested in the
Note Trustee by the general law or as a holder of any of the US$ 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
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Note Trust Deed Allens Arthur Robinson
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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;
(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
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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
THE BANK OF NEW YORK, NEW YORK BRANCH
101 Barclay Street
21W
New York New York 10286
United States
Tel: 44 207 964 6396 (c/o London)
Telex: N/A
Fax: 44 207 964 6061 (c/o London)
Attention: Corporate Trust - Global Structured Finance
With a copy to:
THE BANK OF NEW YORK, LONDON BRANCH
One Canada Square
London, E14 5AL
United Kingdom
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 clauses 13 and 34 of this
deed and its standard of care under clause 14 are governed by the law
of the State of New York and in the event of any inconsistency between
the operation of the law of New South Wales, Australia and the law of
the State of New York in respect of the application of those powers and
that standard of care, the law of the State of New York will prevail to
the extent of the inconsistency.
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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.
29.4 RESTRICTED REMEDIES
Except as provided in clause 29.1 and subject to clause 29.3, a party
shall not:
(a) (STATUTORY DEMAND) issue any demand under s459E(1) of the
Corporations Act (or any analogous provision under any other
law) against the Trustee;
(b) (WINDING UP) apply for the winding up or dissolution of the
Trustee;
(c) (EXECUTION) levy or enforce any distress or other execution
to, on, or against any assets of the Trustee (other than the
Trust Assets);
(d) (COURT APPOINTED RECEIVER) apply for the appointment by a
court or a receiver to any of the assets of the Trustee (other
than the Trust Assets);
(e) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against the Trustee (other than in
respect of the Trust Assets); or
(f) (ADMINISTRATOR) appoint, or agree to the appointment of, any
administrator to the Trustee,
or take proceedings for any of the above and a party waives its rights
to make those applications and take those proceedings.
30. SUCCESSOR TRUSTEE
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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.
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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 13.1(a) as
the Note Trustee reasonably requires to assist in the giving of that
opinion or the making of that determination or calculation and 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 or loss directly or indirectly arising from the
Note Trustee acting or failing to act as a consequence of an
opinion reached by it, except for the negligence, fraud or
wilful default of the Note Trustee; and
(b) any loss, expense or liability which may be suffered as a
result of any assets secured by the Security Trust Deed, the
Mortgaged Property (or any other property) or any deeds or
documents of title thereto being uninsured or inadequately
insured or being held by or to the order of any clearing
organisations or their operator or by any person on behalf of
the Security Trustee or the Note Trustee, except for the
negligence, fraud or wilful default of the Note Trustee.
33. INFORMATION MEMORANDUM
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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 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
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Agent, the Calculation Agent or any Designated Rating Agency in
respect of every manner and circumstance for which a certificate is
expressly provided for under this deed or in respect of the rating of
any of the US$ Notes or the Conditions and the Note Trustee is not
bound in any such case to call for further evidence.
The Note Trustee shall not incur any liability in respect of any action
taken or thing suffered by it in reliance on any notice, resolution,
direction, consent, certificate, receipt, affidavit, statement,
valuation report or other document (including any of the above
submitted or provided by the Trust Manager, a Noteholder or the
Trustee) which it has no reason to believe is not genuine, signed by
the proper parties and with appropriate authority.
In preparing any notice, certificate, advice or proposal the Note
Trustee shall be entitled to assume that each person under any
Authorised Investment, Support Facility, Mortgage, Loan, other
Transaction Document or any other deed, agreement or arrangement
incidental to any of the above or to any Trust, will perform their
obligations under those documents in full by the due date and otherwise
in accordance with their terms.
34.2 NOTE TRUSTEE'S RELIANCE ON TRUST MANAGER OR SECURITY TRUSTEE
(a) (AUTHORISED SIGNATORIES ARE SUFFICIENT EVIDENCE) Subject to
clause 13.2, whenever any certificate, notice, proposal,
direction, instruction or other communication is to be given
by the Trust Manager or the Security Trustee to the Note
Trustee, the Note Trustee may 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.
34.3 COMPLIANCE WITH LAWS
The Note Trustee shall not incur any liability to anyone in respect of
any failure to perform or to do any act or thing which by reason of any
provision of any relevant present or future law of any place or any
ordinance, rule, regulation or by law or of any decree, order or
judgement of any competent court or other tribunal, the Note Trustee
shall be hindered, prevented or forbidden from doing or performing.
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Note Trust Deed Allens Arthur Robinson
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34.4 RELIANCE ON EXPERTS
The Note Trustee may act on the opinion or statement or certificate or
advice of or information obtained from the Security Trustee, attorneys,
barristers or solicitors (whether instructed by the Note Trustee or
not), bankers, accountants, brokers, valuers and other persons believed
by it in good faith to be expert or properly informed in relation to
the matters on which they are consulted and the Note Trustee shall not
be liable for anything done or suffered by it in good faith in reliance
on such opinion, statement, certificate, advice or information.
34.5 OVERSIGHTS OF OTHERS
Subject to this deed, the Note Trustee shall not be responsible for any
act, omission, misconduct, mistake, oversight, error of judgement,
forgetfulness or want of prudence on the part of any attorney, banker,
receiver, barrister, solicitor, agent, any person or agent appointed by
the Note Trustee and on whom the Note Trustee is entitled to rely under
this deed (other than a Related Corporation) or other person acting as
agent or advisor to the Note Trustee.
34.6 IMPOSSIBILITY OR IMPRACTICABILITY
If for any reason whatsoever it becomes impossible or impracticable to
carry out any or all of the provisions of this deed or any other
Transaction Document, the Note Trustee shall not be under any liability
nor shall it incur any liability by reason of any error of law or any
matter or thing done or suffered or omitted to be done in good faith by
it or its officers, employees, agents or delegates except to the extent
of its own fraud, negligence or wilful default.
34.7 LEGAL AND OTHER PROCEEDINGS
(a) (INDEMNITY FOR LEGAL COSTS) The Note Trustee shall be
indemnified out of the Trust for all legal costs and
disbursements and all other costs, disbursements, outgoings
and expenses incurred by the Note Trustee in connection with:
(i) the enforcement or contemplated enforcement of, or
preservation of rights under; and
(ii) without limiting the generality of paragraph (i) above,
the initiation, defence, carriage and settlement of any
action, suit, proceeding or dispute in respect of;
this deed or any other Transaction Document or otherwise under
or in respect of the Trust provided that the enforcement,
contemplated enforcement or preservation by the Note Trustee
of the rights referred to in sub-paragraph (i) or the court
proceedings referred to in paragraph (ii) (other than in each
case the defence of any action, suit, proceeding or dispute
brought against the Note Trustee), and the basis of incurring
any of those costs, disbursements, outgoings and expenses by
the Note Trustee:
(iii) has been approved in advance by an Extraordinary
Resolution of the US$ Noteholders; or
(iv) the Note Trustee reasonably considers the incurring of
those costs, disbursements, outgoings and expenses to
be necessary to protect the Note Trustee against
potential personal liability.
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(b) (DEFENCE OF PROCEEDINGS ALLEGING NEGLIGENCE, ETC.) The Note
Trustee shall be entitled to claim in respect of the above
indemnity from the Trust for its expenses and liabilities
incurred in defending any action, suit, proceeding or dispute
in which fraud, negligence or wilful default is alleged or
claimed against it, but on the same being proved, accepted or
admitted by it, it shall from its personal assets immediately
repay to the Trust the amount previously paid by the Trust to
it in respect of that indemnity.
34.8 NO LIABILITY EXCEPT FOR NEGLIGENCE ETC.
In the absence of fraud, negligence or wilful default on the Note
Trustee's part or on the part of any of its officers or employees, or
any agent or delegate, sub-agent, sub-delegate employed by the Note
Trustee in accordance with this deed (and where this deed provides that
the Note Trustee is liable for the acts or omissions of any such
person) to carry out any transactions contemplated by this deed, the
Note Trustee shall not be liable personally for any losses, costs,
liabilities or claims arising from the failure to pay moneys on the due
date for payment to any Noteholder or any other person or for any loss
howsoever caused in respect of the Trust or to any Noteholder or other
person.
34.9 FURTHER LIMITATIONS ON NOTE TRUSTEE'S LIABILITY
Subject to clause 34.2, the Note Trustee shall not be liable:
(a) (FOR LOSS ON DIRECTION) for any losses, costs, damages or
expenses caused by its acting (in circumstances where this
deed requires it to act or contemplates that it may so act) on
any instruction or direction given to it by:
(i) any Noteholder under this deed, any other Transaction
Document or any other document; or
(ii) by any person under a Support Facility,
except to the extent that it is caused by the fraud,
negligence or wilful default of the Note Trustee, or any of
its officers or employees, or an agent, delegate, sub-agent or
sub-delegate employed by the Note Trustee in accordance with
this deed to carry out any transactions contemplated by this
deed;
(b) (FOR CERTAIN DEFAULTS) for any Trust Manager's Default;
(c) (FOR ACTS OF SECURITY TRUSTEE) without limiting the Note
Trustee's obligations or powers under the Transaction
Documents, for any act, omission or default of the Security
Trustee in relation to its obligations under the Transaction
Documents;
(d) (FOR ACTS OF PAYING AGENT) without limiting the Note Trustee's
obligations or powers under the Transaction Documents, for any
act, omission or default of a Paying Agent in relation to its
obligations under the Transaction Documents;
(e) (FOR ACTS OF CALCULATION AGENT) without limiting the Note
Trustee's obligations or powers under the Transaction
Documents, for any act, omission or default of the Calculation
Agent in relation to its obligations under the Transaction
Documents;
(f) (FOR FAILURE TO CARRY OUT AN AGREEMENT) for the failure of a
person to carry out an agreement with the Note Trustee in
connection with the Trust; or
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Note Trust Deed Allens Arthur Robinson
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(g) (FOR FAILURE TO CHECK CALCULATIONS, ETC) for any losses,
costs, liabilities or expenses caused by the Note Trustee's
failure to check any calculation, information, document, form
or list supplied or purported to be supplied to it by the
Trust Manager or the Security Trustee,
except, in the case of paragraph (g), to the extent that it is caused
by the fraud, negligence or breach of trust of the Note Trustee.
Nothing in this clause 34.9 alone (but without limiting the operation
of any other clause of this deed) shall imply a duty on the Note
Trustee to supervise the Trust Manager or the Security Trustee in the
performance of the Trust Manager's or the Security Trustee's functions
and duties, and the exercise by the Trust Manager or the Security
Trustee of its discretions.
34.10 CONFLICTS
(a) (NO CONFLICT) Nothing in this deed shall prevent the
Note Trustee, the Trustee, any Dealer, the Trust
Manager, the Security Trustee or any Related
Corporation or Associate of any of them or their
directors or other officers (each a RELEVANT PERSON)
from:
(i) subscribing for purchase, holding, dealing in or
disposing of any Notes;
(ii) entering into any financial, banking, development,
insurance, agency, broking or other transaction with,
or providing any advice or services for the Trust; or
(iii) being interested in any such contract or transaction or
otherwise at any time contracting or acting in any
capacity as representative or agent,
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.
34.11 INFORMATION
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the Note
Trustee under this deed or any other Transaction Document, the Note
Trustee shall not have any duty or responsibility to provide any person
(including any
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Note Trust Deed Allens Arthur Robinson
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Noteholder) with any credit or other information concerning the
affairs, financial condition or business of the Trust.
34.12 INVESTIGATION BY NOTE TRUSTEE
Each Noteholder acknowledges that:
(a) the Note Trustee has no duty, and is under no obligation, to
investigate whether a Trust Manager's Default has occurred in
relation to the Trust other than where it has actual notice;
(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.
35. NOTEHOLDERS' LISTS AND REPORTS
- --------------------------------------------------------------------------------
35.1 PROVISION OF INFORMATION
The Trust Manager, on behalf of the Trustee, will furnish or cause to
be furnished to the Note Trustee:
(a) every six months (with the first six month period commencing
on the Note Issue Date) (each such date being a NOTICE DATE),
a list, in such form as the Note Trustee may reasonably
require, of the names and addresses of the US$ Noteholders as
of the Record Date immediately preceding that Notice Date; and
(b) at such other times as the Note Trustee may request in
writing, within 30 days after receipt by the Manager with a
copy provided to the Trustee of any such request, a list of
similar form and content as of a date not more than 10 days
prior to the time such list is furnished,
provided that so long as:
(c) the Note Trustee is the Note Registrar; or
(d) the US$ Notes are Global Notes,
no such list shall be required to be furnished.
35.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTEHOLDERS
(a) The Note Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the US$
Noteholders contained in the most recent list (if any)
furnished to the Note Trustee as provided in clause 35.1 and
if it acts as Note Registrar, the names and addresses of US$
Noteholders received by the Note Trustee in its capacity as
Note Registrar. The Trustee may destroy any list furnished to
it as provided in such clause 35.1 upon receipt of a new list
so furnished.
(b) US$ Noteholders may communicate pursuant to section 312(b) of
the TIA with other US$ Noteholders with respect to their
rights under this deed or under the US$ Notes.
(c) The Trustee, Note Trustee and Note Registrar shall have the
protection of section 312(c) of the TIA.
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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
US$ Noteholder, the Trustee and the Trust Manager as required by
section 313(c) of the TIA a brief report dated as of such date that
complies with section 313(a) of the TIA. The Note Trustee also shall
comply with section 313(b) of the TIA. A copy of each report at the
time of its mailing to US$ Noteholders shall be filed by the Note
Trustee with the Commission and each stock exchange, if any, on which
any US$ Notes are listed. The Trust Manager on behalf of the Trustee
shall notify the Note Trustee if and when any US$ Notes are listed on
any stock exchange.
35.4 NOTICES TO US$ NOTEHOLDERS; WAIVER
(a) Where this deed provides for notice to US$ Noteholders of any
event, such notice shall be sufficiently given (unless
otherwise provided by law or otherwise herein expressly
provided) if:
(i) for so long as any US$ Notes are listed on the Australian
Stock Exchange, published in a leading newspaper having
general circulation in Australia. Each such notice will be
deemed to be given on the date of the first publication; or
(ii) in relation to any notice specifying a Quarterly Payment Date,
an Interest Rate, any Interest payable, any Principal Payment
(or the absence of a Principal Payment) or the Principal
Amount of any US$ Note after any Principal Payment, that
notice is published on a page of the Reuters Screen or the
electronic information system made available by Bloomberg L.P.
or any other similar electronic reporting service as may be
approved by the Note Trustee in writing and notified to the
US$ Noteholders.
Such notice will be deemed to be given on the first
date on which it appears on the relevant electronic
reporting service; or
(iii) if, for any reason, it is impractical to give notice in the
manner provided in paragraph (ii) of this clause 35.4(a),
then the manner of giving notice referred to in paragraph
(i) of this clause 35.4(a) 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
US$ Noteholders shall be filed with the Note Trustee but such
filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
35.5 REPORTS BY TRUSTEE
The Trustee (or the Trust Manager on its behalf) shall:
(a) file with the Note Trustee, within 15 days after the Trustee
is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time
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Note Trust Deed Allens Arthur Robinson
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to time by rules and regulations prescribe) which the Trustee
may be required to file with the Commission pursuant to
section 13 or 15(d) of the Exchange Act;
(b) file with the Note Trustee and the Commission in accordance
with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports
with respect to compliance by the Trustee with the conditions
and covenants of this deed as may be required from time to
time by such rules and regulations; and
(c) supply to the Note Trustee (and the Note Trustee shall
transmit by mail to all US$ Noteholders described in section
313(c) of the TIA) such summaries of any information,
documents and reports required to be filed by the Trustee
pursuant to clauses (a) and (b) of this clause 35.5 as may be
required by rules and regulations prescribed from time to time
by the Commission.
36. TRUST INDENTURE ACT - MISCELLANEOUS
- --------------------------------------------------------------------------------
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 impair the security under the Security
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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 US$ Noteholder by such US$ Noteholder's acceptance
thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any
right or remedy under this deed,
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Note Trust Deed Allens Arthur Robinson
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or in any suit against the Note Trustee for any action taken,
suffered or omitted by it as the Note Trustee, the filing by
any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defences made by
such party litigant.
(b) The provisions of this clause shall not apply to:
(i) any suit instituted by the Note Trustee;
(ii) any suit instituted by any US$ Noteholder, or group of
US$ Noteholders in each case holding in the aggregate
more than 10% of the Total Principal Amount of the US$
Notes; or
(iii) any suit instituted by any US$ Noteholder for the
enforcement of the payment of principal or interest on
any US$ Note on or after the respective due dates
expressed in such US$ Note and in this deed (or, in the
case of final redemption of a US$ Note, on or after the
Maturity Date).
36.3 EXCLUSION OF SECTION 316
(a) Section 316(a)(1) of the TIA is expressly excluded by this
deed.
(b) For the purposes of section 316(a)(2) of the TIA in
determining whether any US$ Noteholders have concurred in any
relevant direction or consent, Notes owned by the Trustee or
by any Associate of the Trustee, shall be disregarded, except
that for the purposes of determining whether the Note Trustee
shall be protected in relying on any such direction or
consent, only US$ Notes which the Note Trustee knows are so
owned shall be so disregarded.
36.4 UNCONDITIONAL RIGHTS OF US$ NOTEHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST
Notwithstanding any other provisions in this deed, any US$ Noteholder
shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such US$ Note on
or after the respective due dates thereof expressed in such US$ Note or
in this deed (or, in the case of final redemption of a Note, on or
after the Maturity Date) and to institute suit for the enforcement of
any such payment, and such right shall not be impaired without the
consent of such US$ Noteholder, except to the extent that the
institution or prosecution thereof or the entry of judgment therein
would, under applicable law, result in the surrender, impairment,
waiver, or loss of the Security Interest created by the Security Trust
Deed upon any property subject to such Security Interest.
36.5 CONFLICT WITH TRUST INDENTURE ACT
If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required to be included in this indenture by
any of the provisions of the TIA, such required provision shall
prevail.
The provisions of section 310 to 317 (inclusive) of the TIA that impose
duties on any person (including the provisions automatically deemed
included herein unless expressly excluded by this deed) are a part of
and govern this deed, whether or not contained herein.
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EXECUTED as a deed.
Each attorney executing this deed states that he has no notice of revocation or
suspension of his power of attorney.
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Note Trust Deed Allens Arthur Robinson
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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
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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 47 004 027 258)
(a limited liability company incorporated under the Commonwealth of Australia)
in its capacity as trustee of the Interstar Millennium Series 2003-1G Trust
(the TRUST)
CLASS [A2/B1] GLOBAL NOTE
representing
US$[*]
Class [A2/B1] Secured Floating Rate Notes Due [*] 2034
This Note certifies that Cede & Co is the registered holder of this Note and
that this Note is a Global Note without principal or interest coupons in respect
of a duly authorised issue of Notes of Perpetual Trustees Victoria Limited in
its capacity as trustee of the Interstar Millennium Series 2003-1G Trust (the
"TRUST") (the "ISSUER"), designated as specified in the title above (the
"NOTES"), in an initial aggregate Principal Amount of US$[*] ([*] United States
Dollars) and (a) issued pursuant to a Master Trust Deed (the "MASTER TRUST
DEED") dated 2 December 1999 between Perpetual Trustees Victoria Limited and
Interstar Securities (Australia) Pty Limited and applying to the Trust by reason
of the Notice of Creation of Trust between Interstar Securities (Australia) Pty
Limited, Interstar Securitisation Management Pty Limited (the "TRUST MANAGER")
and the Issuer dated [*], by a Series Notice (the "SERIES NOTICE") dated [*]
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 US$ Notes (the "US$ NOTEHOLDERS") and
the Trust Manager and by the Conditions (as defined below); (b) constituted by a
Note Trust Deed dated [*] (the "NOTE TRUST DEED") between (among others) the
Issuer, the Trust Manager, the Note Trustee and The Bank of New York, New York
branch (as "PRINCIPAL PAYING AGENT" and "CALCULATION
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Note Trust Deed Allens Arthur Robinson
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AGENT"); and (c) secured by a Security Trust Deed (the "SECURITY TRUST DEED")
dated [*] 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/B1] 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/B1] 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/B1] Notes represented by this Global Note. The
Issuer is not obliged to issue Definitive Notes until 30 days after the
occurrence of an event set out in clause 3.3 of the Note Trust Deed.
The Issuer in its capacity as trustee of the Trust subject to this Global Note
and subject to and in accordance with the Conditions and the Note Trust Deed
promises to pay to the registered holder of this Global Note the principal sum
of US$[*] ([*] United States Dollars) or such lesser amount as may from time to
time be represented by this Global Note (or such part of that amount as may
become repayable under to the Conditions, the Series Notice and the Note Trust
Deed) on such date(s) that that principal sum (or any part of it) becomes
repayable in accordance with the Conditions, the Series Notice and the Note
Trust Deed and to pay interest in arrears on each Quarterly 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/B1] Note
represented by this Global Note will be entitled to receive any payment so made
in respect of that Class [A2/B1] 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/B1] 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/B1] 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/B1] Notes shall be reduced for all purposes by
the amount so paid and endorsed. Any such record shall be prima facie evidence
that the payment in question has been made.
The Definitive Notes to be issued on an exchange of this Global Note will be in
registered form each in 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.
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Note Trust Deed Allens Arthur Robinson
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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 2003-1G Trust
By:
Authorised Signatory
IMPORTANT NOTES:
(a) The Issuer's liability to make payments in respect of the Class [A2/B1]
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/B1] 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/B1]
Notes or the assets of the Trust except to the limited extent provided
for in the Transaction Documents relating to the Notes.
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CERTIFICATE OF AUTHENTICATION
This Global Note is authenticated by The Bank of New York, New York branch, as
Principal Paying Agent 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 The Bank of New York, New York branch (without recourse, warranty or
liability) Issued in New York on [*] 2003
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SCHEDULE 2
FORM OF DEFINITIVE NOTE
- --------------------------------------------------------------------------------
PERPETUAL TRUSTEES VICTORIA LIMITED
(ABN 47 004 027 258)
(a limited liability company incorporated under the laws
of the Commonwealth Australia)
in its capacity as trustee of the Interstar Millennium Series 2003-1G Trust
(the "TRUST")
US$100,000
Class [A2/B1] Secured Floating Rate Notes Due [*] 2034
The issue of the Class [A2/B1] Notes was authorised by resolutions of the Board
of Directors of Perpetual Trustees Victoria Limited in its capacity as trustee
of the Trust (the "ISSUER") passed on [*].
This Class [A2/B1] Note forms one of a series of Notes which are (a) issued by a
Master Trust Deed (the "MASTER TRUST DEED") dated 2 December 1999 between
Perpetual Trustees Victoria Limited and Interstar Securities (Australia) Pty
Limited and applying to the Trust by reason of the Notice of Creation of Trust
between Interstar Securities (Australia) Pty Limited, Interstar Securitisation
Management Pty Limited (the "TRUST MANAGER") and the Issuer dated [*], by a
Series Notice (the "SERIES NOTICE") dated [*] between (among others) the Issuer,
The Bank of New York, New York branch (the Note Trustee for the time being
referred to as the "NOTE TRUSTEE") as trustee for the holders for the time being
of the US$ Notes (the "US$ NOTEHOLDERS") and the Trust Manager and the terms and
conditions attached to this Note (the "Conditions"); (b) constituted by a Note
Trust Deed dated [*] (the "NOTE TRUST DEED") between (among others) the Issuer,
the Trust Manager, the Note Trustee and The Bank of New York, New York branch
(as "PRINCIPAL PAYING AGENT" and "CALCULATION AGENT"); and (c) secured by a
Security Trust Deed (the "SECURITY TRUST DEED") dated [*] 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/B1] 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
Quarterly Payment Date (as defined in Condition 4 of the terms and conditions
(the "CONDITIONS") endorsed on the form of this Class [A2/B1] Note) falling in
[*] 2034 (or on such earlier date(s) as the Principal Amount of this Class
[A2/B1] 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
Quarterly Payment Date and such other amounts (if any) as may be payable, all
subject to and in accordance with the Conditions and the provisions of the
Series Notice, the Master Trust Deed and the Note Trust Deed.
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This Class [A2/B1] Note shall not become valid for any purpose unless and until
the attached Certificate of Authentication has been signed by any authorised
signatory of The Bank of New York, New York branch as Principal Paying Agent.
IN WITNESS this Note has been executed on behalf of the Issuer.
PERPETUAL TRUSTEES VICTORIA LIMITED
By: ................................................
Authorised Signatory
Dated as of [*],
Issued in [*]
IMPORTANT NOTES:
(a) The Issuer's liability to make payments in respect of the Class [A2/B1]
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/B1] 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/B1] 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/B1]
Notes or the assets of the Trust except to the limited extent provided
for in the Transaction Documents relating to the Notes.
CERTIFICATE OF AUTHENTICATION
This Note is one of the Notes
referred to in the Note Trust Deed
THE BANK OF NEW YORK, NEW YORK BRANCH
as Principal Paying Agent
By:
- ------------------------------------------
Authorised Signatory
For The Bank of New York, New York branch (without recourse, warranty or
liability)
Issued in [*] on [*]
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SCHEDULE 3
PROVISIONS FOR MEETINGS OF US$ 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 US$ Notes and US$ Noteholders
respectively.
The holder of any voting certificate or the proxies named in any block
voting instruction shall for all purposes in connection with the
relevant meeting or adjourned meeting of Noteholders be deemed to be
the holder of the Notes to which such voting certificate or block
voting instruction relates and the Paying Agent with which such Notes
have been deposited or the person holding the same to the order or
under the control of such Paying Agent or the person holding the same
shall be deemed for such purposes not to be the holder of those notes.
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2. CONVENING OF MEETINGS
The Trustee, the Trust Manager or the Note Trustee may at any time and
the Trustee shall upon a requisition in writing signed by the holders
of not less than one-tenth of the aggregate Principal Amount of the
Notes for the time being then outstanding convene a meeting of the
Noteholders and if the Trustee makes default for a period of seven days
in convening such a meeting the same may be convened by the Note
Trustee or the requisitioners. Every such meeting shall be held at such
place as the Note Trustee may appoint or approve.
3. NOTICE OF MEETINGS
At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is held) specifying the place,
day and hour of meeting shall be given by the Note Trustee (if the
meeting is convened by the Note Trustee), by the Trustee (if the
meeting is convened by the Trustee) or by the Trust Manager (if the
meeting is convened by the Trust Manager) to the relevant Noteholders
prior to any meeting of the relevant Noteholders in the manner provided
by Condition 12. Such notice shall state generally the nature of the
business to be transacted at the meeting thereby convened by and
(except for an Extraordinary Resolution) it shall not be necessary to
specify in such notice the terms of any resolution to be proposed. Such
notice shall include a statement to the effect that Notes may be
deposited with Paying Agents or (to their satisfaction) held to their
order or under their control or blocked by a depository holding the
same in a manner approved by the Note Trustee for the purpose of
obtaining voting certificates or appointing proxies until 48 hours
before the time fixed for the meeting but not thereafter. A copy of the
notice shall be sent by post to the Note Trustee (unless the meeting is
convened by the Note Trustee) and to the Trustee (unless the meeting is
convened by the Trustee or the Trust Manager).
4. CHAIRMAN
Some person (who may but need not be a Noteholder) nominated in writing
by the Note Trustee shall be entitled to take the chair at every such
meeting but if no such nomination is made or if at any meeting the
person nominated shall not be present within fifteen minutes after the
time appointed for holding the meeting the relevant Noteholders present
shall choose one of their number to he Chairman. The Chairman of an
adjourned meeting need not be the same person as the Chairman of the
original meeting.
5. QUORUM
At any meeting two or more persons present holding Notes or voting
certificates or being proxies in respect thereof and holding or
representing in the aggregate not less than one-twentieth of the
aggregate Principal Amount of the Notes, then outstanding, shall
(except for the purposes of passing an Extraordinary Resolution) form a
quorum for the transaction of business and no business (other than the
choosing of a Chairman) shall be transacted at any meeting unless the
requisite quorum be present at the commencement of business. The quorum
at any such meeting for passing an Extraordinary Resolution shall
(subject as provided below) be two or more persons present holding
Notes, or voting certificates or being proxies in respect thereof and
holding or representing in the aggregate a clear majority of the
aggregate Principal Amount of the Notes, then outstanding PROVIDED THAT
subject to paragraph 13(b) below, at any meeting the business of which
includes
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any of the following matters (each of which shall only be capable of
being effected after having been approved by Extraordinary Resolution)
namely:
(a) modification of the date fixed for final maturity of the
Notes;
(b) reduction or cancellation of the principal payable on the
Notes or any alteration of the date or priority of redemption
of the Notes;
(c) alteration of the amount of interest payable on any class of
the Notes or modification of the method of calculating the
amount of interest payable on the Notes or modification of the
date of payment of an, interest payable on the Notes;
(d) alteration of the currency in which payments under the Notes
are to be made;
(e) alteration of the majority required to pass an Extraordinary
Resolution or the manner in which such majority is
constituted;
(f) the sanctioning of any such scheme or proposal as is described
in paragraph 18(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 being proxies in respect thereof and holding or
representing in the aggregate not less than one-quarter of the
aggregate of the Principal Amount of the Notes, then outstanding.
The Chairman may with the consent of (and shall if directed by) any
such meeting adjourn the same from time to time and from place to place
but no business shall be transacted at an, adjourned meeting except
business which might lawfully (but for lack of required quorum) have
been transacted at the meeting from which the adjournment took place.
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Notice of any adjourned meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3
above and such notice shall (except in cases where the proviso to
paragraph 6 applies when it shall state the relevant quorum) state that
the persons present holding Notes, or voting certificates or being
proxies in respect thereof at the adjourned meeting (whatever the
aggregate of the Principal Amount of the Notes then outstanding held)
will form a quorum. Subject as aforesaid it shall not be necessary to
give any notice of any adjourned meeting.
7. VOTING PROCEDURE
Every resolution submitted to a meeting shall (subject to paragraph 20)
be decided by a simple majority, in the first instance by a show of
hands, then (subject to paragraph 9) by a poll and in case of equality
of votes the Chairman shall both on a show of hands and on a poll have
a casting vote in addition to the vote or votes (if any) to which he
may be entitled as a Noteholder (in the case of Notes in definitive
form) or as a holder of a voting certificate or as a proxy. Any poll
demanded at any such meeting on the election of a Chairman or on any
question of adjournment shall be taken at the meeting without
adjournment.
8. DECLARATION
At any meeting, unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman or the Trustee or
by two or more persons present holding Notes or voting certificates or
being proxies and holding or representing in the aggregate not less
than one-fiftieth part of the aggregate of the Principal Amount of the
Notes, then outstanding a declaration by the Chairman that a resolution
has been carried by a particular majority or lost or not carried by a
particular majority shall be conclusive evidence of that fact without
proof of the number or proportion of the votes recorded in favour or
against such resolution. Subject to paragraph 12 below, if at any such
meeting a poll is so demanded, it shall be taken in such manner and
subject as hereinafter provided either at once or after an adjournment
as the Chairman directs and the result of such poll shall be deemed to
be the resolution of the meeting at which the poll was demanded as at
the date of the taking of the poll. The demand for a poll shall not
prevent the continuance of the meeting for the transaction of any
business other than the motion on which the poll has been demanded.
9. RIGHT TO ATTEND AND SPEAK
The Note Trustee and its lawyers and any director, officer or employee
of a corporation being a trustee of this deed and any director or
officer of the Trustee and the lawyers of the Trustee and any other
person authorised in that behalf by the Note Trustee may attend and
speak at any meeting. Save as aforesaid but without prejudice to the
proviso to the definition of outstanding in Clause 1, no person shall
be entitled to attend and speak nor shall any person be entitled to
vote at any meeting of the Noteholders or join with others in
requesting the convening of such a meeting or to exercise the rights
conferred on the Noteholders by Conditions 9 and 10 unless he either
produces the Note(s) of which he is the holder or a voting certificate
or is a proxy. Neither the Issuer nor any of its subsidiaries or
holding companies or other subsidiaries of such holding companies shall
be entitled to vote at any meeting in respect of Notes held
beneficially by it or for its account. Nothing herein
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Note Trust Deed Allens Arthur Robinson
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contained shall prevent any of the proxies named in any block voting
instruction from being a director, officer or representative or
otherwise connected with the Trustee.
10. VOTING ENTITLEMENT
Subject as provided in paragraph 1 hereof at any meeting:
(a) on a show of hands every person who is present in person and
produces a Definitive Note, or a voting certificate or is a
proxy in respect thereof shall have one vote; and
(b) on a poll every person who is so present shall have one vote
in respect of each US$ 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 have been approved by the
Note Trustee for the purpose) by the time being 24 hours before the
time appointed for holding the meeting or adjourned meeting at which
the block voting instruction is to be used.
13. EXTRAORDINARY RESOLUTIONS
(a) Subject to paragraph (b), a meeting of the Noteholders shall
in addition to the powers given under this deed have the
following powers exercisable by Extraordinary Resolution
(subject to the provisions relating to quorum contained in
paragraphs 5 and 6 above) only:
(i) power to sanction any compromise or arrangement
proposed to be made between the Trustee and the
Noteholders;
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(ii) power to sanction any abrogation, modification,
compromise or arrangement in respect of the rights of
the Noteholders against the Trustee or against any of
its property or against any other person whether such
rights shall arise under this deed, any of the Notes
or otherwise;
(iii) power to assent to any modification of the provisions
contained in this deed, the Notes (including the
Conditions) or the provisions of any of the Relevant
Documents which shall be proposed by the Trustee or
the Note Trustee;
(iv) power to give any authority or sanction which under
the provisions of this deed or the Notes (including
the Conditions) is required to be given by
Extraordinary Resolution;
(v) power to appoint any persons (whether Noteholders or
not) as a committee or committees to represent the
interests of the Noteholders and to confer upon such
committee or committees any powers or discretions
which the Noteholders could themselves exercise by
Extraordinary Resolution;
(vi) power to approve of a person to be appointed a trustee
and power to remove any trustee or trustees for the
time being under this deed;
(vii) power to discharge or exonerate the Note Trustee from
all liability in respect of any act or omission for
which the Note Trustee may have become responsible
under this deed or under the Notes;
(viii) power to authorise the Note Trustee to concur in and
execute and do all such deeds, instruments, acts and
things as may be necessary to carry out and give
effect to any Extraordinary Resolution;
(xi) power to sanction any scheme or proposal for the
exchange or sale of the Notes for, or the conversion
of the Notes as the case may be, into, or the
cancellation of the Notes in consideration of shares,
stock, notes, bonds' debentures, debenture stock
and/or other obligations and/or securities of the
Trustee or of any other company formed or to be
formed, or for or into or in consideration of cash, or
partly for or into or in consideration of such shares,
stock, notes, bonds, debenture stock and/or other
obligations and/or securities as aforesaid and partly
for or into or in consideration of cash.
(b) Despite paragraph (a) no modification involving any of the
matters referred to in paragraphs 5(a) to 5(e) (both
inclusive) above in relation to the Noteholders shall be
effective unless the Note Trustee is of the opinion that such
modification is being proposed by the Trustee as a result of,
or in order to avoid, an Event of Default.
14. RESOLUTION BINDING ON NOTEHOLDERS
Subject to paragraph 13(b) above, any resolution passed at a meeting of
the Noteholders 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
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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 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 the Noteholder's Report for each
Collection Period:
(a) the aggregate Principal Amount of each Class of Notes as at the first
day after the Payment Date occurring during the Collection Period;
(b) the aggregate amount of Interest payable on each Class of Notes on the
corresponding Payment Date (if any);
(c) the aggregate of all Principal Payments to be made in respect of each
Class of Notes on the corresponding Payment Date (if any);
(d) the Income for the Collection Period;
(e) the Mortgage Principal Repayments for the Collection Period;
(f) the Expenses for the Collection Period;
(g) the aggregate of all Redraws made during the Collection Period;
(h) the Interest Rate for the Class A2 Notes for the Interest Period ending
on the day before the next Quarterly Payment Date;
(i) the Interest Rate for the Class B1 Notes for the Interest Period ending
on the day before the next Quarterly Payment Date;
(j) the schedule and unscheduled payments of principal on the Purchased
Loans during the Collection Period;
(k) the aggregate of the outstanding balances of the Purchased Loans as at
the last day of the Collection Period;
(l) the Charge-offs and Carryover Charge-offs in relation to each US$ Note
on the corresponding Payment Date (if any);
(m) the Recovery Amount for the corresponding Payment Date (if any); and
(n) delinquency and loss statistics with respect to the Purchased Loans
during the Collection Period.
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SCHEDULE 5
TERMS AND CONDITIONS OF US$ NOTES
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The following, subject to amendments, are the terms and conditions of the US$
Notes, substantially as they will appear on the reverse of the US$ Notes in
definitive form. US$ Notes in definitive form will only be issued in certain
circumstances. While the US$ Notes remain in global form, the same terms and
conditions govern them, except to the extent that they are appropriate only to
the US$ Notes in definitive form. For a summary of the provisions relating to
the US$ Notes in global form, see the summary at the end of this section.
Paragraphs in italics are included by way of explanation only, and do not
constitute part of the terms and conditions of the US$ Notes.
The issue of US$[*] Mortgage Backed Floating Rate Notes due [*] 2034 (the CLASS
A2 NOTES), US$[*] Mortgage Backed Floating Rate Notes due [*] 2034 (the CLASS B1
NOTES) and A$[*] Mortgage Backed Floating Rate Notes due [*] 2034 (the CLASS B2
NOTES) (the Class A1 Notes (as defined in the Series Notice) and the Class A2
Notes, together the CLASS A NOTES, the Class B1 Notes and the Class B2 Notes,
together the CLASS B NOTES, the Class A2 Notes and the Class B1 Notes, together
the US$ NOTES and the Class A Notes and the Class B Notes, together the NOTES)
by Perpetual Trustees Victoria Limited in its capacity as trustee of the
Interstar Millennium Series 2003-1G Trust (the TRUST) (in such capacity the
ISSUER) was authorised by a resolution of the Board of Directors of the Issuer
passed on [*]. These Notes are (a) issued subject to a Master Trust Deed (the
MASTER TRUST DEED) dated 2 December 1999 between Perpetual Trustees Victoria
Limited and Interstar Securities (Australia) Pty Limited and applying to the
Trust by reason of the Notice of Creation of Trust between Interstar
Securitisation Management Pty Limited (the TRUST MANAGER), Interstar Securities
(Australia) Pty Limited and the Issuer dated [*], by a Series Notice (the SERIES
NOTICE) dated [*] 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 US$ Notes (the US$
NOTEHOLDERS) and the Trust Manager and by these terms and conditions (the
CONDITIONS); (b) constituted by a Note Trust Deed dated [*] (the NOTE TRUST
DEED) between (among others) the Issuer, the Trust Manager, the Note Trustee,
The Bank of New York, New York branch as principal paying agent (the PRINCIPAL
PAYING AGENT, which expression includes its successors as principal paying agent
under the Agency Agreement (as defined below)) and The Bank of New York, New
York branch as calculation agent (the CALCULATION AGENT, which expression
includes its successors as calculation agent under the Agency Agreement (as
defined below)); and (c) secured by a Security Trust Deed (the SECURITY TRUST
DEED) dated [*] 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 statements set out below include summaries of, and are subject to the
detailed provisions of, the Master Trust Deed, the Series Notice, the Security
Trust Deed and the Note Trust Deed. Certain words and expressions used in these
Conditions have the meanings defined in those documents. In accordance with an
agency agreement (the AGENCY AGREEMENT) dated [*] between the Issuer, the Trust
Manager, the Note Trustee, the Principal Paying Agent, the Calculation Agent and
the Bank of New York, New York branch as
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Note Trust Deed Allens Arthur Robinson
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note registrar (the NOTE REGISTRAR, which expression includes its successors as
note registrar under the Agency Agreement), and under which further paying
agents may be appointed (together with the Principal Paying Agent the PAYING
AGENTS, which expression includes the successors of each paying agent as such
under the Agency Agreement and any additional paying agents appointed), payments
in respect of the US$ Notes will be made by the Paying Agents and the
Calculation Agent will make the determinations specified in the Agency
Agreement. The US$ Noteholders will be entitled (directly or indirectly) to the
benefit of, will be bound by, and will be deemed to have notice of, all the
provisions of the Conditions, the Master Trust Deed, the Series Notice, the
Security Trust Deed, the Note Trust Deed, the Agency Agreement and the
Investment Management Agreement (the SERVICING AGREEMENT) dated 3 December 1999
and made between the Issuer and Interstar Securities (Australia) Pty Limited as
servicer (in that capacity and together with any substitute or successor, the
SERVICER) (together with the agreements with respect to the Interest Rate Swap
and each Currency Swap (as each such term is defined below), those documents
being the RELEVANT DOCUMENTS and, together with certain other transaction
documents defined as such in the Series Notice, the TRANSACTION DOCUMENTS).
Copies of certain Transaction Documents are available for inspection at the New
York office of the Note Trustee, being at the date of issue of the US$ Notes 101
Barclay Street, 21W, New York, New York 10286.
In connection with the issue of the US$ Notes, the Issuer will enter into an
ISDA (defined below) master interest rate exchange agreement with a counterparty
rated at least A-1+ (short term) by S&P and A2 (long term) or P-1 (short term)
by Moody's (the INTEREST RATE SWAP PROVIDER) together with each confirmation
relating thereto (the INTEREST RATE SWAP). The Issuer will also enter into an
ISDA master currency exchange agreement with Barclays Bank PLC (the CURRENCY
SWAP PROVIDER and, together with the Interest Rate Swap Provider, the SWAP
PROVIDERS) together with each confirmation relating thereto (each a CURRENCY
SWAP and, together with the Interest Rate Swap, the HEDGE AGREEMENTS).
Each Global Note will bear the following legend: "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".
1. CONDITION 1. FORM, DENOMINATION AND TITLE
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The US$ Notes are serially numbered and will be issued in registered
form in denominations of US$100,000 without interest coupons.
The US$ Notes will be represented by two or more typewritten fully
registered book-entry notes (each, a GLOBAL NOTE and collectively, the
GLOBAL NOTES) registered in the name of Cede & Co. (CEDE) as nominee of
The Depository Trust Company (DTC). Beneficial interests in the Global
Notes will be shown on, and transfers thereof will be effected only
through, records maintained by DTC and its participants. Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System (EUROCLEAR) and Clearstream Banking, societe anonyme
(CLEARSTREAM, Luxembourg), may hold interests in the Global Notes on
behalf of persons who have accounts with Euroclear and Clearstream,
Luxembourg through accounts maintained in the names of Euroclear or
Clearstream, Luxembourg, or in the names of their respective
depositories, with DTC.
If the Issuer is obliged to issue Definitive Notes under clause 3.3 of
the Note Trust Deed, interests in the applicable Global Note will be
transferred to the beneficial owners thereof in the form of
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Definitive Notes, without interest coupons, in the denominations set
forth above. A Definitive Note will be issued to each Noteholder in
respect of its registered holding or holdings of US$ Notes against
delivery by such Noteholders of a written order containing instructions
and such other information as the Issuer and the Note Registrar may
require to complete, execute and deliver such Definitive Notes. In such
circumstances, the Issuer will cause sufficient Definitive Notes to be
executed and delivered to the Note Registrar for completion,
authentication and dispatch to the relevant Noteholders.
2. CONDITION 2. STATUS, SECURITY AND RELATIONSHIP BETWEEN THE CLASS A
NOTES AND THE CLASS B NOTES
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The Class A Notes are secured by a floating charge over all of the
assets of the Trust (which include, among other things, the Loans (as
defined below) and the Mortgages (as defined below) and related
securities) (as more particularly described in the Security Trust Deed)
and within each class will rank pari passu and rateably without any
preference or priority among themselves.
The priority with regard to payment of interest and principal in
respect of the Class A1 Notes and the Class A2 Notes respectively are
set out in Conditions 4 and 5. The Notes are secured by the same
charge, but the Class A Notes will rank pari passu and rateably in the
event of the charge created by the Security Trust Deed being enforced.
Payments of principal will be applied (subject to certain other
obligations ranking in priority) in repaying principal: first, on the
Class A1 Notes pari passu without preference or priority amongst
themselves; and second, toward repaying principal on the Class A2 Notes
pari passu without preference or priority amongst themselves. Payments
of Interest on the Class A Notes will rank pari passu amongst the Class
A Notes.
The Class B Notes are issued subject to the Master Trust Deed and the
Series Notice and are secured by the same charge as secures the Class A
Notes but the Class A Notes will rank in priority to the Class B Notes
in the event of the charge being enforced and in respect of principal
and Interest (as set out in Conditions 4 and 5). Payments of Interest
on the Class B Notes are subordinated to such payments in respect of
the Class A Notes and to certain other payments. Payments in respect of
principal on the Class B Notes rank pari passu with such payments on
the Class A2 Notes where the Threshold Requirements are satisfied and
are subordinated to such payments on the Class A2 Notes where the
Threshold Requirements are not satisfied. Payments in respect of
principal on the Class B Notes are subordinated to such payments on the
Class A1 Notes.
The proceeds of the issue of the Notes are to be used by the Issuer to
purchase certain housing loans (the LOANS) and related mortgages (the
MORTGAGES) from Interstar Nominees (B) Pty Limited, Interstar Nominees
(N) Pty Limited and Interstar Nominees (R) Pty Limited (each an
APPROVED SELLER).
The net proceeds of realisation of the assets of the Trust (including
following enforcement of the Security Trust Deed) may be insufficient
to pay all amounts due to the Noteholders. Save in certain limited
circumstances, the other assets of the Issuer will not be available for
payment of any shortfall arising and all claims in respect of such
shortfall shall be extinguished. None of the Servicer, the Trust
Manager, the Note Trustee, the Security Trustee, the Swap Providers,
the Paying Agents, the
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Calculation Agent, the Note Registrar or the Note Managers (as defined
in the Series Notice) has any obligation to any Noteholder for payment
of any amount by the Issuer in respect of the Notes.
The Note Trust Deed contains provisions requiring the Note Trustee to
have regard to the interests of the US$ Noteholders as regards all the
powers, trusts, authorities, duties and discretions of the Note Trustee
(except where expressly provided otherwise).
The Security Trust Deed contains provisions requiring the Security
Trustee, subject to the other provisions of the Security Trust Deed,
(a) to give priority to the interests of the Class A Noteholders if
there is a conflict between the interests of such Noteholders and the
Class B Noteholders, and (b) to give priority to the interests of the
Class B Noteholders and the Class A Noteholders if there is a conflict
between the interests of such Noteholders and any other Voting
Mortgagee. If there is a conflict between the interests of the Class A1
Noteholders and Class A2 Noteholders, the Security Trustee must convene
a meeting of the Class A Noteholders to resolve that conflict. An
Extraordinary Resolution of the Class A Noteholders in respect of the
conflict is binding on all the Class A1 Noteholders and Class A2
Noteholders.
3. CONDITION 3. COVENANTS OF THE ISSUER
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So long as any of the Notes remains outstanding, the Issuer makes
certain covenants for the benefit of the Noteholders which are set out
in the Master Trust Deed.
These covenants include the following.
(a) The Issuer must act continuously as trustee of the Trust until
the Trust is terminated as provided by the Master Trust Deed
or the Issuer has retired or been removed from office in the
manner provided under the Master Trust Deed.
(b) The Issuer must:
(i) act honestly and in good faith in the performance of
its duties and in the exercise of its discretions
under the Master Trust Deed;
(ii) subject to the Master Trust Deed, exercise such
diligence and prudence as a prudent person of business
would exercise in performing its express functions and
in exercising its discretions under the Master Trust
Deed, having regard to the interests of the
Noteholders and other creditors and beneficiaries of
the Trust;
(iii) use its best endeavours to carry on and conduct its
business in so far as it relates to the Master Trust
Deed in a proper and efficient manner;
(iv) keep, or ensure that the Trust Manager keeps,
accounting records which correctly record and explain
all amounts paid and received by the Issuer;
(v) keep the Trust separate from each other trust which is
constituted under the Master Trust Deed and account
for assets and liabilities of the Trust separately
from those of other trusts constituted under the
Master Trust Deed;
(vi) do everything and take all such actions which are
necessary (including obtaining all appropriate
authorisations) to ensure that it is able to exercise
all its powers and remedies and perform all its
obligations under the Master Trust Deed, the
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Transaction Documents and all other deeds, agreements
and other arrangements entered into by the Issuer
under the Master Trust Deed; and
(vii) comply with the rules and regulations of any Stock
Exchange on which any Note is listed from time to
time.
(c) Except as provided in any Transaction Document (and other than
the charge given to the Security Trustee), the Issuer must
not, nor shall it permit any of its officers to, sell,
mortgage, charge or otherwise encumber or part with possession
of any asset of the Trust (the TRUST ASSETS).
(d) The Issuer will open and operate certain bank accounts in
accordance with the Master Trust Deed and the Series Notice.
(e) Subject to the Master Trust Deed and any Transaction Document
to which it is a party, the Issuer must act on all directions
given to it by the Trust Manager in accordance with the terms
of the Master Trust Deed.
(f) The Issuer must properly perform the functions which are
necessary for it to perform under all Transaction Documents in
respect of the Trust.
4. CONDITION 4. INTEREST
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(a) PAYMENT DATES
Each US$ Note bears interest on its Principal Amount from and
including [*] February 2003 or such later date as may be
agreed between the Issuer and the Note Managers for the issue
of the US$ Notes (the ISSUE DATE). Interest in respect of the
US$ Notes will be payable quarterly in arrears, on the [*] day
of each [February, May, August and November], provided that,
if any such date would otherwise fall on a day which is not a
Business Day (as defined below), it will be postponed to the
next day which is a Business Day (as defined below), (each
such date a QUARTERLY PAYMENT DATE). The first Quarterly
Payment Date is [*] May 2003. The final Quarterly Payment Date
will be the earlier of the Quarterly Payment Date falling in
[*] 2034 (the MATURITY DATE) and the Quarterly Payment Date on
which the Notes are redeemed in accordance with their terms.
BUSINESS DAY in this Condition 4 and in Conditions 5, 6 and 9
below means any day other than a Saturday, Sunday or public
holiday on which banks are open for business in London, New
York City, Melbourne and Sydney.
The period beginning on (and including) the Issue Date and
ending on (but excluding) the first Quarterly Payment Date,
and each successive period beginning on (and including) a
Quarterly Payment Date and ending on (but excluding) the next
Quarterly Payment Date and the final period referred to below
is called an INTEREST PERIOD FOR THE US$ NOTES. Interest
payable on a US$ Note in respect of any relevant Interest
Period or any other period will be calculated on the basis of
the actual number of days elapsed and a 360 day year.
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The final Interest Period for a US$ Note begins on (and
includes) the Quarterly Payment Date prior to the earlier of
the Maturity Date and the date on which that US$ Note is
redeemed in accordance with its terms and ends on (but
excludes) the earlier of the Maturity Date and the date on
which that US$ Note is so redeemed (as the case may be).
(b) INTEREST RATE
The rate of interest applicable from time to time to a US$
Note (the INTEREST RATE) will be determined by the Calculation
Agent on the basis of the following paragraphs.
On the date which is 2 Business Days before the beginning of
each Interest Period for the US$ Notes (each a RATE RESET
DATE), the Calculation Agent will determine LIBOR for that
Interest Period, which is the rate applicable for deposits in
US dollars for a period of 3 months which appears on the
Telerate Page 3750 as of 11.00am London time on that Rate
Reset Date (or, in the case of the first Interest Period for
the US$ Notes, the linear interpolation of the rates
applicable for deposits in US dollars for two and three months
which appear on the Telerate Page 3750 as of 11.00am, London
time, on the relevant Rate Reset Date). If such rate does not
appear on the Telerate Page 3750, the rate for that Interest
Period will be determined as if the Issuer and the Calculation
Agent had specified the rate USD-LIBOR-REFERENCE BANKS as the
applicable Floating Rate Option under the Definitions of the
International Swaps and Derivatives Association, Inc. (ISDA)
incorporating the 2000 ISDA Definitions, as amended and
updated as at the Issue Date (the ISDA DEFINITIONS).
"USD-LIBOR-REFERENCE BANKS" means that the rate for an
Interest Period for the US$ Notes will be determined on the
basis of the rates at which deposits in US dollars are offered
by the Reference Banks (being four major banks in the London
interbank market agreed to by the Calculation Agent and the
relevant Currency Swap Provider) at approximately 11.00 am,
London time, on the Rate Reset Date to prime banks in the
London interbank market for a period of 3 months commencing on
the first day of that Interest Period and in a Representative
Amount (as defined in the ISDA Definitions). The Calculation
Agent will request the principal London office of each of the
Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate for that
Interest Period will be the arithmetic mean of the quotations.
If fewer than two quotations are provided as requested, the
rate for that Interest Period will be the arithmetic mean of
the rates quoted by four major banks in New York City,
selected by the Calculation Agent and the relevant Currency
Swap Provider, at approximately 11.00 am, New York City time,
on that Rate Reset Date for loans in US dollars to leading
European banks for a period of 3 months commencing on the
first day of that Interest Period and in a Representative
Amount. If no such rates are available in New York City, then
the rate for such Interest Period will be the most recently
determined rate in accordance with this paragraph.
In this definition of LIBOR, BUSINESS DAY means any day on
which commercial banks are open for business (including
dealings in foreign exchange and foreign currency deposits) in
London and New York City.
The Interest Rate applicable to the Class A2 Notes for such
Interest Period will be the aggregate of the interest rate or
arithmetic mean as determined by the Calculation Agent as
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Note Trust Deed Allens Arthur Robinson
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referred to above and the margin of [*]% per annum applicable
to the Class A2 Notes. The Interest Rate applicable to the
Class B1 Notes for such Interest Period will be the aggregate
of the interest rate or arithmetic mean as determined by the
Calculation Agent as referred to above and the margin of [*]%
per annum applicable to the Class B1 Notes. If the Issuer has
not redeemed all of the Class A2 Notes on or before the
Quarterly Payment Date falling in [February 2010], the
Interest Rate applicable to the Class A2 Notes will increase
by [*]% per annum for the period from (and including) that
date. If the Issuer has not redeemed all of the Class B1 Notes
on or before the Quarterly Payment Date falling in [February
2010], the Interest Rate applicable to the Class B1 Notes will
increase by [*]% per annum for the period from (and including)
that date.
There is no maximum or minimum Interest Rate for the Class A2
Notes or the Class B1 Notes.
(c) DETERMINATION OF INTEREST RATE AND CALCULATION OF INTEREST
The Calculation Agent will, as soon as practicable after 11.00
am (London time) on each Rate Reset Date determine the
relevant Interest Rate applicable to, and calculate the amount
of interest payable (the INTEREST) for the immediately
succeeding Interest Period for each Class of US$ Notes. The
Interest for each Interest Period and each Class of US$ Notes
is calculated by applying the Interest Rate for the relevant
Class of US$ Notes to the Principal Amount of the relevant US$
Note on the first day of that Interest Period, multiplying
such product by the actual number of days in that Interest
Period and dividing by 360 and rounding the resultant figure
down to the nearest cent. The determination of the Interest
Rate and the Interest for each US$ Note by the Calculation
Agent is (in the absence of manifest error) final and binding
upon all parties.
(d) NOTIFICATION AND PUBLICATION OF INTEREST RATE AND INTEREST
The Calculation Agent will cause the Interest Rate and the
Interest applicable to each US$ Note for each Interest Period
and the relevant Quarterly Payment Date to be notified to the
Issuer, the Trust Manager, the Note Trustee, the Paying Agents
and each Currency Swap Provider and the Trust Manager on
behalf of the Issuer will cause the same to be published in
accordance with Condition 12 on or as soon as possible after
the date of commencement of the relevant Interest Period. The
Interest and the relevant Quarterly Payment Date so published
may subsequently be amended (or appropriate alternative
arrangements made by way of adjustment) without notice in the
event of an amendment of the Interest Period.
(e) DETERMINATION OR CALCULATION BY THE TRUST MANAGER
If the Calculation Agent at any time for any reason does not
determine the Interest Rate for or calculate the Interest
payable on a US$ Note, the Trust Manager must do so and each
such determination or calculation will be deemed to have been
made by the Calculation Agent. In doing so, the Trust Manager
must apply the foregoing provisions of this Condition, with
any necessary consequential amendments, to the extent that it
can do so, and, in all other respects it must do so in such a
manner as it reasonably considers to be fair and reasonable in
all the circumstances.
(f) CALCULATION AGENT
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Note Trust Deed Allens Arthur Robinson
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The Issuer will procure that, so long as any of the US$ Notes
remain outstanding, there will at all times be a Calculation
Agent. The Issuer, or the Trust Manager with the consent of
the Issuer (such consent not to be unreasonably withheld),
with the prior written approval of the Note Trustee, reserves
the right at any time to terminate the appointment of the
Calculation Agent immediately on the occurrence of certain
specified events or, otherwise, by giving not less than 60
days notice in writing to, among others, the Calculation
Agent. Notice of that termination will be given to the US$
Noteholders in accordance with Condition 12. If any person is
unable or unwilling to continue to act as the Calculation
Agent, or if the appointment of the Calculation Agent is
terminated, the Issuer will, with the prior written approval
of the Note Trustee, appoint a successor Calculation Agent to
act as such in its place, provided that neither the
resignation nor removal of the Calculation Agent will take
effect until a successor approved by the Note Trustee has been
appointed.
(g) INCOME DISTRIBUTION
Capitalised terms in this paragraph (g) have the same meaning
given in the Series Notice unless otherwise defined in these
Conditions.
(i) On each Payment Date, the Issuer must, prior to the
enforcement of the Security Trust Deed (in accordance
with the written direction provided to it by the Trust
Manager on or before the date which is 2 Business Days
before that Payment Date) out of the Income for the
Collection Period immediately before that Payment Date
(or out of the proceeds of disposal of any Liquid
Authorised Investments as provided for in Condition
4(i) or out of Capital as provided for in Condition
4(g)(iv)) make the following payments or retain moneys
in the following order of priority.
(A) FIRST - an amount equal to any Interest
Adjustment required to be paid to an Approved
Seller and then outstanding (and the Issuer
acknowledges and agrees that it has no
entitlement to the moneys comprising the
Interest Adjustment).
(B) SECOND - payment of any taxes payable in
relation to the Trust (not including any GST
covered in Conditions 4(g)(vi) and 4(g)(vii).
(C) THIRD - subject to the above sub-paragraph
(B) and Condition 4(g)(iii), payment (in the
following order of priority) of:
(1) pari passu and rateably as between
themselves, payment of:
(I) the Trustee's Fee for the
Collection Period (as
adjusted in accordance with
Condition 4(g)(vii)); and
(II) any fees payable by the
Issuer to the Note Trustee
under the Transaction
Documents for the Collection
Period;
(2) pari passu and rateably as between
themselves, payment of:
(I) any fees payable, pari passu
and rateably, to the Paying
Agents under the Transaction
Documents for the Collection
Period; and
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(II) any fees payable to the
Calculation Agent under the
Transaction Documents for
the Collection Period;
(3) the Expenses (other than the
Trustee's Fee, any fees payable to
the Note Trustee, the Paying Agents
or the Calculation Agent, the Trust
Manager's Fee and the Servicer's
Fee) in relation to the Collection
Period;
(4) the Expenses (other than the
Trustee's Fee, any fees payable to
the Note Trustee, the Paying Agents
or the Calculation Agent, the Trust
Manager's Fee and the Servicer's
Fee) which the Trust Manager or the
Issuer reasonably anticipates will
be incurred prior to the next
Payment Date; and
(5) the Expenses (other than the
Trustee's Fee, any fees payable to
the Note Trustee, the Paying Agents
or the Calculation Agent, the Trust
Manager's Fee and the Servicer's
Fee) not covered by sub-paragraphs
(3) or (4)) which have already been
incurred prior to the Payment Date
but which have not previously been
paid or reimbursed.
(D) FOURTH - payment, pari passu and rateably,
to:
(1) the Trust Manager of the Trust
Manager's Fee for the Collection
Period; and
(2) the Servicer of the Servicer's Fee
for the Collection Period.
(E) FIFTH - pari passu and rateably as between
themselves:
(1) payment to the Interest Rate Swap
Provider of any amounts payable
under the Interest Rate Swap (other
than any Break Costs in respect of
the termination of the Interest Rate
Swap);
(2) payment of any Interest for the
Interest Period for the Class A1
Notes which ends on that Payment
Date to the Class A1 Noteholders;
(3) (I) prior to the termination of
the Class A2 Currency Swap,
payment to the Class A2
Currency Swap Provider of the
Class A2 A$ Interest Amount
for that Payment Date (and,
if that Payment Date is a
Quarterly Payment Date, any
reciprocal payment by the
Class A2 Currency Swap
Provider is thereafter to be
applied in accordance with
Condition 5(c)(i) towards
payment of Interest on the
Class A2 Notes); and
(II) after the termination of the
Class A2 Currency Swap, to
the Note Trustee for
application in accordance
with Condition 5(c) of the A$
amount that the Trust Manager
determines in good faith
needs to be applied
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Note Trust Deed Allens Arthur Robinson
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on that Payment Date in order
to enable the Issuer to meet
its obligations to pay
Interest on the Class A2
Notes on the next or, if that
Payment Date is a Quarterly
Payment Date that, Quarterly
Payment Date; and
(4) payment to the Class A2 Currency
Swap Provider of any Break Costs
payable under the Class A2 Currency
Swap other than in respect of the
termination of the Class A2 Currency
Swap where the Class A2 Currency
Swap Provider is the Defaulting
Party.
(F) SIXTH -
(1) payment of any Interest for the
Interest Period for the Class B2
Notes which ends on that Payment
Date to the Class B2 Noteholders;
(2) (I) prior to the termination of
the Class B1 Currency Swap,
payment to the Class B1
Currency Swap Provider of the
Class B1 A$ Interest Amount
for that Payment Date (and,
if that Payment Date is a
Quarterly Payment Date, any
reciprocal payment by the
Class B1 Currency Swap
Provider is thereafter to be
applied in accordance with
Condition 5(c)(iii) towards
payment of Interest on the
Class B1 Notes); and
(II) after the termination of the
Class B1 Currency Swap, to
the Note Trustee for
application in accordance
with Condition 5(c) of the A$
amount that the Trust Manager
determines in good faith
needs to be applied on that
Payment Date in order to
enable the Issuer to meet its
obligations to pay Interest
on the Class B1 Notes on the
next or, if that Payment Date
is a Quarterly Payment Date
that, Quarterly Payment Date;
and
(3) payment to the Class B1 Currency
Swap Provider of any Break Costs
payable under the Class B1 Currency
Swap other than in respect of the
termination of the Class B1 Currency
Swap where the Class B1 Currency
Swap Provider is the Defaulting
Party.
(G) SEVENTH - where any part of Capital has
previously been applied by the Issuer in
accordance with Condition 4(g)(iv) by the
application by the Issuer for the purposes of
replenishment of the Assets of an amount
equal to the amount of Capital so applied.
(H) EIGHTH - in reducing the Aggregate Principal
Loss Amount for the corresponding Collection
Period.
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Note Trust Deed Allens Arthur Robinson
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(I) NINTH - in reinstating, pari passu and
rateably, the Stated Amount of the Class A
Notes to the extent of any Carryover
Charge-offs in relation to the Class A Notes.
(J) TENTH - in reinstating, pari passu and
rateably, the Stated Amount of the Class B
Notes to the extent of any Carryover
Charge-offs in relation to the Class B Notes.
(K) ELEVENTH - subject to compliance with the
Prescribed Minimum Level of Liquid Authorised
Investments set out in Condition 4(i)(iii)
(and the restrictions contained in Condition
4(g)(iv)), payment pari passu and rateably of
any Break Costs payable to:
(1) the Interest Rate Swap Provider in
respect of the termination of the
Interest Rate Swap; and
(2) a Currency Swap Provider in respect
of the termination of a Currency
Swap where the Currency Swap
Provider is the Defaulting Party.
(L) TWELFTH - subject to compliance with the
Prescribed Minimum Level of Liquid Authorised
Investments set out in Condition 4(i)(iv)
(and the restrictions contained in Condition
4(g)(iv)), payment of any Approved Seller's
Fee.
(M) THIRTEENTH - subject to compliance with the
Prescribed Minimum Level of Liquid Authorised
Investments set out in Condition 4(i)(v) (and
the restrictions contained in Condition
4(g)(iv)), payment of the balance (if any),
by way of a distribution of the income of the
Trust, to the Residual Income Beneficiaries
in proportion to their respective Income
Percentages.
(ii) The obligation of the Issuer to make any payment under
each of the above paragraphs of this Condition 4(g)(i)
is limited in each case to the Income, Liquid
Authorised Investments and Capital or (as the case may
be) to the balance of the Income, Liquid Authorised
Investments and Capital available after payment in
accordance with the preceding paragraph or paragraphs
(if any).
(iii) In the event that for any reason whatsoever the Issuer
does not have sufficient cash to make all of the
payments as provided in Condition 4(g)(i) then the
amount available to be paid must be distributed in the
order of priority of distribution as referred to in
Condition 4(g)(i), and:
(A) in the case of the payment of Interest to
Class A Noteholders under sub-paragraph
(i)(E), the proportion of any amount
available to be paid to each Noteholder will
be the proportion which the Principal Amount
of the Notes of that Class held by that
Noteholder bears to the Total Principal
Amount of all Notes of that Class; and
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(B) in the case of the payment of Interest to
Class B Noteholders under sub-paragraph
(i)(F), the proportion of any amount
available to be paid to each Class B
Noteholder will be the proportion which the
Principal Amount of the Class B Notes held by
that Noteholder bears to the Total Principal
Amount of all Class B Notes.
(iv) In the event that:
(A) the Issuer receives a payment under Condition
4(g)(i)(C) for Expenses which the Issuer
reasonably anticipates will be incurred prior
to the next Payment Date; and
(B) all or any part of such Expenses are not
actually incurred prior to that next Payment
Date,
then the following provisions apply:
(C) the Issuer must repay into the Assets of the
Trust on that next Payment Date such excess
amount which was not actually incurred; or
(D) if the Issuer fails to repay the amount in
accordance with sub-paragraph (iii)(C), then
such amount will be set-off against the
amount which would otherwise be payable under
paragraph (i) to the Issuer with respect to
Expenses on that next Payment Date.
(v) If, during any Financial Year, the amount equal to the
aggregate of the Income accrued for a Collection
Period and the proceeds of disposal of any Liquid
Authorised Investments to be applied, in accordance
with Condition 4(i), under Condition 4(g)(i) on the
corresponding Payment Date is less than the aggregate
of the amounts payable by the Issuer under Conditions
4(g)(i)(A) to 4(g)(i)(F) (inclusive) for that
Collection Period, then the Issuer must (at the
direction of the Trust Manager) apply Capital in
payment of those amounts in the order of priority set
out in Condition 4(g)(i) to the extent available to do
so.
(vi) If any Approved Seller's Fee is not paid in full on a
relevant Payment Date, then the unpaid balance bears
interest at a rate determined by the Trust Manager and
advised to the Issuer from time to time, such interest
to be calculated on a daily balance from the due date
up to and including the date of actual payment.
(vii) Any GST which applies or may apply in respect of any
services provided pursuant to the Transaction
Documents by the Trust Manager in relation to the
Trust will be paid by the Trust Manager from the Trust
Manager's Fee or from the Trust Manager's own
resources.
(viii) In relation to any supply by the Issuer under the
Transaction Documents of goods or services in relation
to the Trust, the fee payable will be adjusted to take
into account any change after 1 July 2000 in the rate
of GST payable pursuant to the A New Tax System (Goods
and Services Tax Imposition - General) Act 1999.
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(ix) Interest to which any Noteholder may be entitled in
respect of a Note for an Interest Period will only
fall due for payment by the Issuer to the Noteholder
upon the applicable Payment Date.
(h) REDRAWS
Capitalised terms in this paragraph (h) have the same meaning
given in the Series Notice unless otherwise defined in these
Conditions.
If an Obligor makes Additional Repayments in relation to a
Loan held by the Issuer then the Issuer must provide a Redraw
to the Obligor upon being so directed by the Trust Manager in
its absolute discretion and subject to the Trust Manager
certifying to the Issuer that:
(i) the Redraw to be provided to the Obligor together with
the current Unpaid Balance of the Loan will not exceed
the scheduled balance of the Loan;
(ii) after allowing for all payments which the Issuer is
then required to make or which the Trust Manager
reasonably expects that the Issuer will be required to
make, there is or will be sufficient cash in the
assets of the Trust (whether as a result of the issue
of Class A1 Notes or otherwise) for the Issuer to
provide that Redraw; and
(iii) the Purchase Loan is not in Arrears at the time of the
request for the Redraw by the Obligor.
The Trust Manager may direct the Issuer to, and the Issuer
must, apply certain Mortgage Principal Repayments for funding
Redraws.
If, on a Payment Date, Mortgage Principal Repayments for the
Collection Period preceding that Payment Date are insufficient
to fund Redraws for that Collection Period, then the Trust
Manager may give the Issuer a direction to issue a series of
Class A1 Notes in accordance with clause 12 of the Master
Trust Deed and clause 5 of the Series Notice. The Trust
Manager must not give such a direction unless it has received
written confirmation from each Designated Rating Agency that
the issue of the Class A1 Notes would not result in a
downgrade or withdrawal of a rating of any Note then
outstanding.
(i) LIQUID AUTHORISED INVESTMENTS
Capitalised terms in this paragraph (i) have the same meaning
given in the Series Notice unless otherwise defined in these
Conditions.
(i) The Trust Manager is required to ensure that, subject
to sub-paragraph (ii), the value of the Liquid
Authorised Investments is not at any time less than
the Prescribed Minimum Level at that time.
(ii) The value of Liquid Authorised Investments may be less
than the Prescribed Minimum Level where all or part of
the Liquid Authorised Investments is to be applied by
the Issuer towards payment of any of the amounts
(other than any Break Costs to any Swap Provider under
Condition 4(g)(i)(K), Approved Seller's Fee or
Beneficiary Distribution) as described in Condition
4(g)(i). The Trust Manager
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Note Trust Deed Allens Arthur Robinson
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may so direct the Issuer and the Issuer must act at
the direction of the Trust Manager.
(iii) If the payment of the whole of any Break Costs under
Condition 4(g)(i)(K) would result in the value of the
Liquid Authorised Investments being less than the
Prescribed Minimum Level, or if the value of the
Liquid Authorised Investments at the time of proposed
payment is already less than the Prescribed Minimum
Level, then:
(A) a Swap Provider shall only be entitled to
receive, and the Issuer must only pay, that
part of the Break Costs to that Swap Provider
under Condition 4(g)(i)(K) which will not
result in the value of Liquid Authorised
Investments being less than the Prescribed
Minimum Level; and
(B) payment of the balance of the Break Costs to
a Swap Provider under Condition 4(g)(i)(K)
shall be deferred until such later Payment
Date as such payment will not result in the
value of Liquid Authorised Investments being
less than the Prescribed Minimum Level.
Prior to any payment of any Break Costs to any Swap
Provider under Condition 4(g)(i)(K), the Trust Manager
shall certify to the Issuer that such payment will not
breach this sub-paragraph (iii) (upon which
certification the Issuer will rely conclusively).
(iv) If the payment of the whole of the Approved Seller's
Fee under Condition 4(g)(i) would result in the value
of the Liquid Authorised Investments being less than
the Prescribed Minimum Level, or if the value of the
Liquid Authorised Investments at the time of proposed
payment is already less than the Prescribed Minimum
Level, then:
(A) an Approved Seller shall only be entitled to
receive, and the Issuer must only pay, that
part of the Approved Seller's Fee which will
not result in the value of Liquid Authorised
Investments being less than the Prescribed
Minimum Level; and
(B) payment of the balance of the Approved
Seller's Fee shall be deferred until such
later Payment Date as such payment will not
result in the value of Liquid Authorised
Investments being less than the Prescribed
Minimum Level.
Prior to any payment of the Approved Seller's Fee, the
Trust Manager shall certify to the Issuer that such
payment will not breach this sub-paragraph (iv) (upon
which certification the Issuer will rely
conclusively).
(v) If the payment of the whole of the Beneficiary
Distribution under Condition 4(g)(i) would result in
the value of the Liquid Authorised Investments being
less than the Prescribed Minimum Level, or if the
value of the Liquid Authorised Investments at the time
of proposed payment is already less than the
Prescribed Minimum Level, then:
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(A) holders of Residual Income Units shall only
be entitled to receive, and the Issuer must
only pay, that part of the Beneficiary
Distribution which will not result in the
value of Liquid Authorised Investments being
less than the Prescribed Minimum Level; and
(B) payment of the balance of the Beneficiary
Distribution shall be deferred until such
later Payment Date as such payment will not
result in the value of Liquid Authorised
Investments being less than the Prescribed
Minimum Level.
Prior to any payment of the Beneficiary Distribution,
the Trust Manager shall certify to the Issuer that
such payment will not breach this sub-paragraph (v)
(upon which certification the Issuer will rely
conclusively).
5. CONDITION 5. REDEMPTION AND PURCHASE
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Capitalised terms in this Condition 5 have the same meaning given in
the Series Notice unless otherwise defined in these Conditions.
(a) MANDATORY REDEMPTION IN PART FROM MORTGAGE PRINCIPAL
REPAYMENTS
The US$ Notes are subject to mandatory redemption in part on
any Quarterly Payment Date if on that date and/or on the two
immediately preceding Payment Dates there are any Mortgage
Principal Repayments, Surplus Liquidity and Recovery Amount
available to be distributed in relation to such US$ Notes (as
detailed in Condition 5(b)). The principal amount so
redeemable in respect of each US$ Note prior to enforcement of
the Security Trust Deed (each a PRINCIPAL PAYMENT) on any
Quarterly Payment Date is subject to the priorities set out in
Condition 5(b) and will be the amount available for payment as
set out in Condition 5(b) on the day which is 2 Business Days
before the Payment Date divided by the number of US$ Notes in
that Class which are then outstanding (rounded down to the
nearest cent), provided always that no Principal Payment on a
US$ Note on any date may exceed the amount equal to the
Principal Amount of that US$ Note at that date.
The amount of mandatory principal redemptions after
enforcement of the Security Trust Deed is subject to the
priority of payments set out in the Security Trust Deed.
Notice of amounts to be redeemed will be provided by the Trust
Manager to the Issuer, the Calculation Agent, the Principal
Paying Agent, each Currency Swap Provider and the Note
Trustee.
(b) PRINCIPAL DISTRIBUTIONS ON NOTES PRIOR TO THE ENFORCEMENT OF
THE SECURITY TRUST DEED
(i) (A) All Mortgage Principal Repayments which are
received by the Issuer during each Collection
Period, except to the extent the Trust
Manager directs the Issuer in writing that
such moneys be applied or retained for
Liquidity Purposes in accordance with the
provisions of the Series Notice, Surplus
Liquidity and Recovery Amount for the
corresponding Payment Date must, prior to the
enforcement of the Security Trust Deed, be
deposited or paid by the Issuer (at the
direction of the Trust Manager on
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Note Trust Deed Allens Arthur Robinson
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or before the date which is 2 Business Days
before the relevant Payment Date) on the
corresponding Payment Date in the following
order of priority.
(1) FIRST - payments to be made in
accordance with Condition 4(g)(iv).
(2) SECOND - to Class A1 Noteholders (in
the proportion as specified in
sub-paragraph (i)(B)) in payment of
the Principal Amount of Class A1
Notes until such time as all Class
A1 Notes have been redeemed in full.
(3) THIRD -
(I) if the Threshold
Requirements are satisfied
on that Payment Date, in
accordance with Condition
5(b)(vi); or
(II) if the Threshold
Requirements are not
satisfied on that Payment
Date, in accordance with
Condition 5(b)(vii).
(4) FOURTH - subject to clause 10.2(c)
of the Series Notice, by way of a
distribution of the capital of the
Trust, to the Residual Income
Beneficiaries in proportion to their
respective Income Percentages (to be
distributed on termination of the
Trust).
The obligation of the Issuer to make
any deposit or payment under each of
the above paragraphs of Condition
5(b)(i) is limited in each case to
the Mortgage Principal Repayments,
Surplus Liquidity and Recovery
Amount or (as the case may be) to
the balance of the Mortgage
Principal Repayments, Surplus
Liquidity and Recovery Amount
available after deposit or payment
in accordance with the preceding
paragraph or paragraphs (if any).
(B) The proportion of any amount available to be
paid to any Noteholder in respect of any
Class of Notes will be the proportion which
the Principal Amount of the Note in respect
of that Class of Notes held by that
Noteholder bears to the Total Principal
Amount of all Notes in respect of that Class
of Notes.
(ii) On any Quarterly Payment Date when the Total Principal
Amount of all Notes in all Classes does not exceed 10%
of the Initial Principal Amount of all Notes the
Issuer must, if so directed in writing by the Trust
Manager on or before the date which is 2 Business Days
before that Quarterly Payment Date, repay the whole of
the Principal Amount of all Notes together with any
outstanding Interest in relation to those Notes
subject to the following conditions:
(A) the Trust Manager having provided to:
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(1) each relevant Noteholder, the Issuer
and the Note Trustee, 30 days' prior
notice (in the case of US$
Noteholders, in accordance with
Condition 12); and
(2) each Designated Rating Agency, 30
days' prior written notice,
of the Trust Manager's intention to direct
the Issuer to redeem the Notes under this
sub-paragraph;
(B) the Issuer having sufficient cash to make
such repayment (upon which the Issuer may
rely conclusively on a certification from the
Trust Manager);
(C) the Issuer retaining such amount as the Trust
Manager or the Issuer reasonably determines
will be necessary to satisfy any outstanding
or anticipated Expenses or payment to any
Swap Provider under a Hedge Agreement; and
(D) the repayment being made in the order of
priority set out in Condition 5(b)(i).
(iii) On any Quarterly Payment Date on or after a Step-Up
Margin Date the Issuer must, if so directed by the
Trust Manager on or before the date which is 2
Business Days before that Quarterly Payment Date,
repay the whole of the Principal Amount of any Notes
which have a Step-Up Margin Date on or before that
Payment Date together with any outstanding Interest in
relation to those Notes subject to the following
conditions:
(A) the Trust Manager having provided to:
(1) each relevant Noteholder, the Issuer
and the Note Trustee, 30 days' prior
notice (in the case of US$
Noteholders, in accordance with
Condition 12); and
(2) each Designated Rating Agency, 30
days' prior written notice,
of the Trust Manager's intention to direct
the Issuer to redeem the relevant Notes under
this sub-paragraph;
(B) the Trust Manager receiving from each
Designated Rating Agency written confirmation
that the repayment will not result in a
downgrade or withdrawal of the rating of any
other Notes;
(C) the Issuer having sufficient cash to make
such repayment (upon which the Issuer may
rely conclusively on a certification from the
Trust Manager);
(D) the Issuer retaining such amount as the Trust
Manager or the Issuer reasonably determines
will be necessary to satisfy any outstanding
or anticipated Expenses, payment to any
Noteholder in respect of a Note (other than a
Note in respect of which Principal Amount and
Interest are to be repaid) or payment to any
Swap Provider under a Hedge Agreement; and
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(E) the repayment being made in the order of
priority set out in Condition 5(b)(i).
The Trust Manager may give a direction described in
sub-paragraph (iii) in respect of any one Class of
Notes, with a particular Step-Up Margin Date
notwithstanding that it has not given a similar
direction in relation to any other Class with the same
Step-Up Margin Date, provided that in no circumstance
may the Trust Manager give a direction described in
sub-paragraph (iv) in relation to Class B Noteholders
unless:
(1) there are at that time no Class A Notes
outstanding; or
(2) the Trust Manager at the same time gives or
has given a direction described in paragraph
(iii) in relation to all Class A Notes then
outstanding.
(iv) A Noteholder is not entitled to receive any amounts
other than:
(A) the Interest payable on, and
(B) the Principal Amount of,
Notes held by that Noteholder.
(v) The Issuer may not recover any distribution to a
Beneficiary from a Beneficiary once it is paid to that
Beneficiary except where there has been an error in
the relevant calculation of the distribution.
(vi) If, on a Payment Date, the Threshold Requirements are
satisfied, amounts applied under Condition
5(b)(i)(A)(3)(I) must be deposited or paid, pari passu
and rateably:
(A) (1) prior to the termination of the
Class A2 Currency Swap, to the Class
A2 Currency Swap Provider of the
Class A2 A$ Equivalent of the Class
A2 Currency Swap Notional Amount for
that Payment Date (and, if that
Payment Date is a Quarterly Payment
Date, any reciprocal payment by the
Class A2 Currency Swap Provider is
thereafter to be applied in
accordance with Condition 5(c)(ii)
towards payment of the Principal
Amount of the Class A2 Notes (in the
proportion as specified in
sub-paragraph(i)(B)); and
(2) after the termination of the Class
A2 Currency Swap, to the Note
Trustee for application in
accordance with Condition 5(c) of
the Class A2 A$ Equivalent of the
Class A2 Currency Swap Notional
Amount for that Payment Date;
(B) (1) prior to the termination of the
Class B1 Currency Swap, to the Class
B1 Currency Swap Provider of the
Class B1 A$ Equivalent of the Class
B1 Currency Swap Notional Amount for
that Payment Date (and, if that
Payment Date is a Quarterly Payment
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Note Trust Deed Allens Arthur Robinson
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Date, any reciprocal payment by the
Class B1 Currency Swap Provider is
thereafter to be applied in
accordance with Condition 5(c)(iv)
towards payment of the Principal
Amount of the Class B1 Notes (in the
proportion as specified in
sub-paragraph (i)(B)); and
(2) after the termination of the Class
B1 Currency Swap, to the Note
Trustee for application in
accordance with Condition 5(c) of
the Class B1 A$ Equivalent of the
Class B1 Currency Swap Notional
Amount for that Payment Date; and
(C) to Class B2 Noteholders (in the proportion as
specified in sub-paragraph (i)(B)) in payment
of the Principal Amount of the Class B2
Notes.
(vii) If, on a Payment Date, the Threshold Requirements are
not satisfied, amounts applied under Condition
5(b)(i)(A)(3)(II) must be deposited or paid in the
following order of priority:
(A) (1) prior to the termination of the
Class A2 Currency Swap, to the Class
A2 Currency Swap Provider of the
Class A2 A$ Equivalent of the Class
A2 Currency Swap Notional Amount for
that Payment Date (and, if that
Payment Date is a Quarterly Payment
Date, any reciprocal payment by the
Class A2 Currency Swap Provider is
thereafter to be applied in
accordance with Condition 5(c)(ii)
towards payment of the Principal
Amount of the Class A2 Notes (in the
proportion as specified in
sub-paragraph (i)(B)); and
(2) after the termination of the Class
A2 Currency Swap, to the Note
Trustee for application in
accordance with Condition 5(c) of
the Class A2 A$ Equivalent of the
Class A2 Currency Swap Notional
Amount for that Payment Date,
and, in each case, until such time as the
Class A2 Notes have been redeemed in full;
(B) pari passu and rateably:
(1) (I) prior to the termination of
the Class B1 Currency Swap,
to the Class B1 Currency
Swap Provider of the Class
B1 A$ Equivalent of the
Class B1 Currency Swap
Notional Amount for that
Payment Date (and, if that
Payment Date is a Quarterly
Payment Date, any reciprocal
payment by the Class B1
Currency Swap Provider is
thereafter to be applied in
accordance with Condition
5(c)(iv) towards payment of
the Principal Amount of the
Class B1 Notes (in the
proportion as specified in
sub-paragraph (i)(B)); and
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(II) after the termination of the
Class B1 Currency Swap, to
the Note Trustee for
application in accordance
with Condition 5(c)of the
Class B1 A$ Equivalent of
the Class B1 Currency Swap
Notional Amount for that
Payment Date; and
(2) to Class B2 Noteholders (in the
proportion as specified in
sub-paragraph (i)(B)) in payment of
the Principal Amount of the Class B2
Notes,
and, in each case, until such time as the
Class B Notes have been redeemed in full.
(c) US$ ACCOUNT
The Issuer must direct each Currency Swap Provider to pay all
amounts denominated in US$ payable to the Issuer by each
Currency Swap Provider under each Currency Swap into the US$
Account or to the Principal Paying Agent under the Agency
Agreement. The Issuer has given this direction in each
Currency Swap.
The Note Trustee must, on each Payment Date on which the
Issuer pays an amount under Condition 4(g)(i)(E)(2)(II),
4(g)(i)(F)(1)(II), 5(b)(vi)(A)(2), 5(b)(vi)(B)(2),
5(b)(vii)(A)(2) or 5(b)(vii)(B)(1)(II) (the AUD AMOUNT), pay
into the US$ Account or to the Principal Paying Agent under
the Agency Agreement, an amount in US$ equal to the AUD Amount
at the spot exchange rate in New York City for US$ purchases
of Australian dollars on that Payment Date.
The Issuer must, or must require that the Paying Agents on its
behalf, at the direction of the Trust Manager pay all such
amounts as follows, and in accordance with the Note Trust Deed
and the Agency Agreement (the following not in any order of
priority):
(i) as contemplated in Conditions 4(g)(i)(E)(2)(I) and
4(g)(i)(E)(2)(II), pari passu to Class A2 Noteholders
in relation to Class A2 Notes as payments of Interest
on those Class A2 Notes;
(ii) as contemplated in Conditions 5(b)(vi)(A)(1),
5(b)(vi)(A)(2), 5(b)(vii)(A)(1) and 5(b)(vii)(A)(2),
pari passu to Class A2 Noteholders in payment of the
Principal Amount of the Class A2 Notes until such time
as all Class A2 Notes have been redeemed;
(iii) as contemplated in Conditions 4(g)(i)(F)(1)(I) and
4(g)(i)(F)(1)(II), pari passu to Class B1 Noteholders
in relation to Class B1 Notes as payments of Interest
on those Class B1 Notes;
(iv) as contemplated in Conditions 5(b)(vi)(B)(1),
5(b)(vi)(B)(2), 5(b)(vii)(B)(1)(I) and
5(b)(vii)(B)(1)(II), pari passu to Class B1
Noteholders in payment of the Principal Amount of the
Class B1 Notes until such time as all Class B1 Notes
have been redeemed;
(v) as contemplated in Conditions 5(b)(ii) and 5(b)(iii):
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(A) pari passu to Class A2 Noteholders in
relation to Class A2 Notes; and
(B) pari passu to Class B1 Noteholders in
relation to Class B1 Notes,
as payment of redemption amounts; and
(vi) as contemplated in Condition 5(f), 5(g) and 5(h):
(A) pari passu to Class A2 Noteholders in
relation to Class A2 Notes; and
(B) pari passu to Class B1 Noteholders in
relation to Class B1 Notes,
as payment of redemption amounts.
(d) CALCULATION OF PRINCIPAL PAYMENTS AND PRINCIPAL AMOUNT
(i) On each date which is 2 Business Days before each
Payment Date, the Trust Manager must determine:
(A) the amount of any Principal Payment in
respect of each US$ Note on the Payment Date
following that date; and
(B) the Principal Amount of each US$ Note as at
the first day of the next following Interest
Period for the US$ Notes (after deducting any
Principal Payment due to be made in respect
of each US$ Note on the next Payment Date).
(ii) The Trust Manager must notify the Issuer, the Note
Trustee, each Paying Agent, the Calculation Agent and
each Currency Swap Provider by not later than (or as
soon as practicable after) the date which is 2
Business Days before the relevant Payment Date of each
determination with respect to the US$ Notes of the
Principal Payment and Principal Amount in respect of
that Payment Date and will immediately cause details
of each of those determinations to be published in
accordance with Condition 12. If no Principal Payment
is due to be made on the Class A2 Notes or the Class
B1 Notes on any Payment Date a notice to this effect
will be given to the Class A2 Noteholders or Class B1
Noteholders (as the case may be) in accordance with
Condition 12.
(iii) If the Trust Manager does not at any time for any
reason determine a Principal Payment or the Principal
Amount applicable to any US$ Note in accordance with
this paragraph, the Principal Payment and the
Principal Amount must be determined by the Calculation
Agent in accordance with this paragraph and paragraph
(i) above (but based on the information in its
possession) and each such determination or calculation
will be deemed to have been made by the Trust Manager.
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(e) CALL
The Issuer must, when so directed by the Trust Manager (at the
Trust Manager's option), purchase or redeem the US$ Notes by
repaying the Principal Amount, in the circumstances described
in Conditions 5(b)(ii) and 5(b)(iii).
The Trust Manager will notify Noteholders of its intention to
direct the Issuer in relation to such a repurchase in
accordance with Condition 12.
(f) REDEMPTION FOR TAXATION OR OTHER REASONS
If the Trust Manager satisfies the Issuer and the Note Trustee
immediately prior to giving the notice referred to below that:
(i) on the next Payment Date the Issuer or a Paying Agent
would be required to deduct or withhold from any
payment:
(A) of principal or interest in respect of the
Notes; or
(B) to a Currency Swap Provider under a Currency
Swap,
any amount for or on account of any present or future
taxes, duties, assessments or governmental charges of
whatever nature imposed, levied, collected, withheld
or assessed by any Government Agency; or
(ii) a Government Agency requires the deduction or
withholding from any payment by an Obligor in respect
of a Purchased Loan of any amount for or on account of
any taxes, duties, assessments or governmental charges
of whatever nature imposed, levied, collected,
withheld or assessed by that Government Agency,
the Issuer must, when so directed by Noteholders representing
at least 75% of the outstanding Principal Amount of the Notes
(provided that the Issuer will be in a position on the next
Quarterly Payment Date to discharge (and the Trust Manager
will so certify to the Issuer and the Note Trustee upon which
certification the Issuer and the Note Trustee will rely
conclusively) all its liabilities in respect of the Notes (at
their relevant Principal Amount) and any amounts which would
be required under the Security Trust Deed to be paid in
priority or pari passu with the Notes if the security for the
Notes were being enforced), having given not more than 60 nor
less than 45 days notice to the Noteholders (in the case of
US$ Noteholders, in accordance with Condition 12), redeem all,
but not some only, of the Notes at their relevant Principal
Amount together with accrued interest to (but excluding) the
date of redemption on the next Quarterly Payment Date,
provided that the redemption is made in the order of priority
set out in Condition 5(b)(i).
(g) REDEMPTION FOR GROSS UP UNDER CURRENCY SWAPS
If the Trust Manager satisfies the Issuer and the Note Trustee
immediately prior to giving the notice referred to below that
on the next Quarterly Payment Date a Currency Swap Provider
would be required to deduct or withhold from any payment under
a Currency Swap any amount for or on account of any present or
future taxes, duties, assessments or governmental charges of
whatever nature imposed, levied, collected, withheld or
assessed by any Government Agency, the Issuer must, when so
directed by the Trust Manager (in its
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sole discretion) (provided that the Issuer will be in a
position on such Quarterly Payment Date to discharge (and the
Trust Manager will so certify to the Issuer and the Note
Trustee) all its liabilities in respect of the Notes (at their
relevant Principal Amount) and any amounts which would be
required under the Security Trust Deed to be paid in priority
or pari passu with the Notes if the security for the Notes
were being enforced), having given not more than 60 nor less
than 45 days notice to the Noteholders, redeem all, but not
some only, of the Notes at their relevant Principal Amount
together with accrued interest to (but excluding) the date of
redemption on the next Quarterly Payment Date, provided that
the redemption is made in the order of priority set out in
Condition 5(b)(i).
(h) REDEMPTION ON MATURITY
If not otherwise redeemed, the Issuer must redeem US$ Notes at
their Principal Amount on the Maturity Date.
(i) CERTIFICATION
For the purpose of any redemption made under this Condition 5,
the Note Trustee may rely on Officer's Certificate of the
Trust Manager that the Issuer will be in a position to
discharge all its liabilities in respect of the US$ Notes and
any amounts required under the Security Trust Deed to be paid
in priority to or pari passu with the US$ Notes and that
certificate will be conclusive and binding on the Issuer and
the holders of the US$ Notes. The Note Trustee will not incur
any liability as a result of relying on such certificate or
such certificate subsequently being considered invalid.
(j) CHARGE-OFFS
If, on any Payment Date, the Aggregate Principal Loss Amount
for the corresponding Collection Period exceeds the amount
allocated or available for allocation on that Payment Date
under Condition 4(g)(i)(H), the Trust Manager must direct the
Issuer to, and the Issuer must, on and with effect from that
Payment Date:
(i) reduce, pari passu and rateably:
(A) the Stated Amount of the Class B1 Notes by
the Class B1 US$ Equivalent of the amount of
that excess attributable to the Class B1
Notes; and
(B) the Stated Amount of the Class B2 Notes by
the amount of that excess attributable to the
Class B2 Notes,
until the Stated Amount of each Class B Note is
reduced to zero; and
(ii) if the Stated Amount of all Class B Notes is zero and
any amount of that excess has not been applied under
sub-paragraph (i), reduce, pari passu and rateably:
(A) the Stated Amount of the Class A1 Notes by
the balance of that excess attributable to
the Class A1 Notes; and
(B) the Stated Amount of the Class A2 Notes by
the Class A2 A$ Equivalent of the balance of
that excess attributable to the Class A2
Notes,
until the Stated Amount of each Class A Note is zero.
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6. CONDITION 6. PAYMENTS
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Any instalment of interest or principal, payable on any US$ Note which
is punctually paid or duly provided for by the Issuer to the Paying
Agent on the applicable Payment Date or Maturity Date shall be paid to
the person in whose name such US$ Note is registered on the Record
Date, either by cheque mailed first-class, postage prepaid, to such
person's address as it appears on the Note Register on such Record Date
or by wire transfer in immediately available funds to the account
designated by such person as it appears on the Note Register on such
Record Date, except that, unless Definitive Notes have been issued
pursuant to clause 3.3 of the Note Trust Deed, with respect to US$
Notes registered on the Record Date in the name of the nominee of the
Clearing Agency (initially such Clearing Agency to be DTC and such
nominee to be Cede & Co.), payment will be made by wire transfer in
immediately available funds to the account designated by such nominee.
(a) INITIAL PRINCIPAL PAYING AGENT
The initial Principal Paying Agent is The Bank of New York,
New York branch at its office at 101 Barclay Street, 21W, New
York, New York, 10286.
(b) PAYING AGENTS
The Issuer (or the Trust Manager on its behalf with the
consent of the Issuer, such consent not to be unreasonably
withheld), may at any time (with the previous written approval
of the Note Trustee) vary or terminate the appointment of any
Paying Agent and appoint additional or other Paying Agents,
provided that it will at all times maintain a Paying Agent
having a specified office in New York City. Notice of any such
termination or appointment and of any change in the office
through which any Paying Agent will act will be given by the
Trust Manager on behalf of the Issuer in accordance with
Condition 12.
(c) PAYMENT ON BUSINESS DAYS
If the due date for payment of any amount of principal or
Interest in respect of any US$ Note is not a Business Day then
payment will be made on the next succeeding Business Day
unless that day falls in the next calendar month, in which
case the due date will be the preceding Business Day and the
holder of that US$ Note is not entitled to any further
interest or other payment in respect of that delay.
(d) INTEREST ON UNPAID INTEREST
If Interest is not paid in respect of a US$ Note on the date
when due and payable (other than because the due date is not a
Business Day), that unpaid Interest will itself bear interest
(both before and after judgment) at the relevant Interest Rate
applicable from time to time to the relevant US$ Note until
the unpaid Interest, and interest on it, is available for
payment and notice of that availability has been duly given in
accordance with Condition 12.
7. CONDITION 7. TAXATION
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All payments in respect of the US$ Notes will be made without
withholding or deduction for, or on account of, any present or future
taxes, duties or charges of whatsoever nature unless the Issuer or
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any Paying Agent is required by applicable law to make any such payment
in respect of the US$ Notes subject to any withholding or deduction
for, or on account of, any present or future taxes, duties or charges
of whatever nature. In that event the Issuer or that Paying Agent (as
the case may be) must make such payment after such withholding or
deduction has been made and must account to the relevant authorities
for the amount so required to be withheld or deducted. Neither the
Issuer nor any Paying Agent will be obliged to make any additional
payments to US$ Noteholders in respect of that withholding or
deduction.
8. CONDITION 8. PRESCRIPTION
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A US$ Note will become void in its entirety unless surrendered for
payment within ten years of the Relevant Date (as defined below) in
respect of any payment on it the effect of which would be to reduce the
relevant Principal Amount of that US$ Note to zero. After the date on
which a US$ Note becomes void in its entirety, no claim may be made in
respect of it.
As used in these Conditions, the RELEVANT DATE means the date on which
a payment first becomes due but, if the full amount of the money
payable has not been received in New York City by the Principal Paying
Agent or the Note Trustee on or prior to that date, it means the date
on which, the full amount of such money having been so received, notice
to that effect is duly given by the Principal Paying Agent in
accordance with Condition 12.
9. CONDITION 9. EVENTS OF DEFAULT
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Each of the following is an EVENT OF DEFAULT (whether or not it is
within the control of the Issuer).
(a) The Issuer fails to pay:
(i) any Interest within 10 Business Days of the Payment
Date on which the Interest was due to be paid,
together with all interest accrued and payable on that
Interest; and
(ii) any other moneys secured by the Security Trust Deed,
within 10 Business Days of the due date for payment
(or within any applicable grace period agreed with the
Mortgagee (as defined in the Security Trust Deed) to
whom the moneys relate).
However, it will not be an Event of Default if the
Issuer fails to pay any moneys secured by the Security
Trust Deed:
(A) which are subordinated to payment of amounts
due to Class A Noteholders while any moneys
secured by the Security Trust Deed remain
owing:
(1) to Class A Noteholders; or
(2) which rank in priority to amounts
due to Class A Noteholders; or
(B) where the Issuer had sufficient available
funds with its bankers with which any bank
accounts of the Trust are held and had given
instructions to those bankers to make that
payment, and that the payment would have
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been made but for temporary technical or
administrative difficulties outside the
control of the Issuer.
(b) The Issuer fails to perform or observe any other provisions
(other than an obligation referred to in paragraph (a)) of a
Transaction Document (including any representation, warranty
or undertaking) and that default (if in the opinion of the
Security Trustee is capable of remedy) is not remedied within
30 days after written notice (or such longer period as may be
specified in the notice) from the Security Trustee requiring
the failure to be remedied.
(c) Any of the following occurs in relation to the Issuer (in its
capacity as trustee of the Trust):
(i) an administrator of the Issuer is appointed;
(ii) except for the purpose of a solvent reconstruction or
amalgamation:
(A) an application or an order is made,
proceedings are commenced, a resolution is
passed or proposed in a notice of meeting or
an application to a court or other steps
(other than frivolous or vexatious
applications, proceedings, notices and steps)
are taken for:
(1) the winding up, dissolution or
administration of the Issuer; or
(2) the Issuer entering into an
arrangement, compromise or
composition with or assignment for
the benefit of its creditors or a
class of them; or
(B) the Issuer ceases, suspends or threatens to
cease or suspend the conduct of all or
substantially all of its business or disposes
of or threatens to dispose of substantially
all of its assets;
(iii) the Issuer is or states that it is, or under
applicable legislation is taken to be, unable to pay
its debts (other than as the result of a failure to
pay a debt or claim the subject of a good faith
dispute) or stops or suspends or threatens to stop or
suspend payment of all or a class of its debts
(except, where this occurs only in relation to another
trust of which it is the trustee) and, for the
avoidance of doubt, an inability of the Issuer in its
capacity as trustee of the Trust to pay its debts does
not include the Issuer making any drawings under a
Support Facility in accordance with the Transaction
Documents;
(iv) a receiver, receiver and manager or administrator is
appointed (by the Issuer or by any other person) to
all or substantially all of the assets and undertaking
of the Issuer;
(v) an application is made to a court for an order
appointing a liquidator or provisional liquidator in
respect of the Issuer, or one of them is appointed,
whether or not under an order;
(vi) as a result of the operation of section 459F(1) of the
Corporations Act, the Issuer is taken to have failed
to comply with a statutory demand;
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(vii) the Issuer is or makes a statement from which it may
be reasonably deduced that the Issuer is, the subject
of an event described in section 459C(2)(b) or section
585 of the Corporations Act;
(viii) the Issuer takes any step to obtain protection or is
granted protection from its creditors, under any
applicable legislation; or
(ix) anything analogous to an event referred to in
sub-paragraphs (i) to (viii) (inclusive) or having
substantially similar effect occurs with respect to
the Issuer.
(d) The charge created by the Security Trust Deed is not or ceases
to be a first ranking charge over the assets of the Trust, or
any other obligation of the Issuer (other than as mandatorily
preferred by law) ranks ahead of or pari passu with any of the
moneys secured by the Security Trust Deed.
(e) Any security interest over the assets of the Trust is
enforced.
(f) An Interest Rate Swap or Currency Swap is terminated and a
replacement Interest Rate Swap or Currency Swap (as the case
may be) on terms that will not lead to a withdrawal or
downgrade of the rating assigned to any Notes, is not put in
place.
(g) (i) All or any part of any Transaction Document (other than
an Interest Rate Swap or a Currency Swap) is terminated
or is or becomes void, illegal, invalid, unenforceable
or of limited force and effect; or
(ii) a party becomes entitled to terminate, rescind or
avoid all or part of any Transaction Document (other
than an Interest Rate Swap or a Currency Swap).
(h) Without the prior consent of the Security Trustee:
(i) the Trust is wound up, or the Issuer is required to
wind up the Trust under the Master Trust Deed or
applicable law, or the winding up of the Trust
commences;
(ii) the Trust is held or is conceded by the Issuer not to
have been constituted or to have been imperfectly
constituted; or
(iii) unless another trustee is appointed to the Trust under
the Transaction Documents, the Issuer ceases to be
authorised under the Trust to hold the property of the
Trust in its name and to perform its obligations under
the Transaction Documents.
In the event that the charge constituted by the Security Trust Deed
becomes enforceable following an event of default under the Notes any
funds resulting from the realisation of such charge will be applied in
accordance with the order of priority of payments as stated in the
Security Trust Deed.
10. CONDITION 10. ENFORCEMENT
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(a) At any time after an Event of Default occurs, the Security
Trustee must (subject to being appropriately indemnified), if
so directed by an Extraordinary Resolution of the Voting
Mortgagees (being 75% of votes capable of being cast by Voting
Mortgagees present in person or by proxy of the relevant
meeting or a written resolution signed by all Voting
Mortgagees) declare the US$ Notes immediately due and payable
and declare the charge to
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be enforceable. If an Extraordinary Resolution of Voting
Mortgagees referred to above elects not to direct the Security
Trustee to enforce the Security Trust Deed, in circumstances
where the Security Trustee could enforce, the Note Trustee
must, at the direction of the US$ Noteholders (by an
Extraordinary Resolution of the US$ Noteholders (as defined in
the Note Trust Deed) or in writing by the holders of at least
75% of the aggregate Principal Amount of the US$ Notes),
direct the Security Trustee to enforce the Security Trust Deed
on behalf of the Noteholders.
VOTING MORTGAGEE means:
(i) with respect only to the enforcement of the charge
under the Security Trust Deed, for so long as the
amounts outstanding under the Class A Notes and the
Class B Notes are 75% or more of all amounts secured
by the Security Trust Deed, the Noteholders (being, in
the case of the US$ Noteholders, the Note Trustee or,
if the Note Trustee has become bound to take steps
and/or to proceed under the Security Trust Deed and
fails to do so within a reasonable time and such
failure is continuing, the US$ Noteholders and then
only if and to the extent that the US$ Noteholders are
able to do so under Australian law); and
(ii) at any other time (subject to the Note Trust Deed and
the Security Trust Deed):
(A) the Class A Noteholders (being, in the case
of the Class A2 Noteholders, the Note Trustee
or, if the Note Trustee has become bound to
take steps and/or to proceed under the
Security Trust Deed and fails to do so within
a reasonable time and such failure is
continuing, the Class A2 Noteholders and then
only if and to the extent that the Class A2
Noteholders are able to do so under
Australian law); and
(B) each other Mortgagee under the Security Trust
Deed (other than a Class A Noteholder).
Subject to being indemnified in accordance with the
Security Trust Deed, the Security Trustee must take
all action necessary to give effect to any
Extraordinary Resolution of the Voting Mortgagees and
must comply with all directions contained in or given
pursuant to any Extraordinary Resolution of the Voting
Mortgagees in accordance with the Security Trust Deed.
No Noteholder (in its capacity as Noteholder) is
entitled to enforce the Security Trust Deed or to
appoint or cause to be appointed a receiver to any of
the assets secured by the Security Trust Deed or
otherwise to exercise any power conferred by the terms
of any applicable law on chargees except as provided
in the Security Trust Deed and as referred to in (A)
above.
(b) If any of the US$ Notes remain outstanding and are due and
payable otherwise than by reason of a default in payment of
any amount due on the US$ Notes, the Note Trustee must not
vote under the Security Trust Deed to enforce the Security
Trust Deed or dispose of the property mortgaged or charged by
the Security Trust Deed or any security interest in favour of
the Security Trustee securing the Secured Moneys (the
MORTGAGED PROPERTY) unless either:
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(i) a sufficient amount would be realised to discharge in
full all amounts owing to the US$ Noteholders and any
other amounts payable by the Issuer ranking in priority
to or pari passu with the US$ Notes; or
(ii) the Note Trustee is of the opinion, reached after
considering at any time and from time to time the
advice of a merchant bank or other financial advisor
selected by the Note Trustee, that the cash flow
receivable by the Issuer (or the Security Trustee under
the Security Trust Deed) will not (or that there is a
significant risk that it will not) be sufficient,
having regard to any other relevant actual, contingent
or prospective liabilities of the Issuer, to discharge
in full in due course all the amounts referred to in
sub-paragraph (i).
(c) Neither the Note Trustee (except in the case of negligence,
fraud or wilful default by it) nor the Security Trustee
(except in the case of negligence, fraud or wilful default by
it) will be liable for any decline in the value, nor any loss
realised upon any sale or other dispositions made under the
Security Trust Deed, of any Mortgaged Property or any other
property which is charged to the Security Trustee by any other
person in respect of or relating to the obligations of the
Issuer or any third party in respect of the Issuer or the
Notes or relating in any way to the Mortgaged Property.
Without limitation, neither the Note Trustee nor the Security
Trustee will be liable for any such decline or loss directly
or indirectly arising from its acting, or failing to act, as a
consequence of a reasonable opinion reached by it in good
faith based on advice received by it in accordance with the
Note Trust Deed or the Security Trust Deed, as the case may
be.
(d) Subject to the provisions of the Note Trust Deed, the Note
Trustee will not be bound to vote under the Security Trust
Deed or to take any proceedings, actions or steps under, or
any other proceedings pursuant to or in connection with the
Security Trust Deed, the Note Trust Deed or any US$ Notes,
unless directed or requested to do so: (i) by an Extraordinary
Resolution of the US$ Noteholders; or (ii) in writing by the
holders of at least three-quarters of the aggregate Principal
Amount of the US$ Notes, and then only if the Note Trustee is
indemnified to its satisfaction against all action,
proceedings, claims and demands to which it may render itself
liable and all costs, charges, damages and expenses which it
may incur by so doing.
(e) Only the Security Trustee may enforce the provisions of the
Security Trust Deed and neither the Note Trustee nor any
holder of a US$ Note is entitled to proceed directly against
the Issuer to enforce the performance of any of the provisions
of the Security Trust Deed or the US$ Notes (including these
Conditions) except as provided for in the Security Trust Deed
and the Note Trust Deed.
(f) The rights, remedies and discretions of the US$ Noteholders
under the Security Trust Deed including all rights to vote or
give instructions or consent can only be exercised by the Note
Trustee on behalf of the US$ Noteholders in accordance with
the Security Trust Deed. The Security Trustee may rely on any
instructions or directions given to it by the Note Trustee as
being given on behalf of the US$ Noteholders from time to time
and need not enquire whether the Note Trustee or the US$
Noteholders from time to time have complied with any
requirements under the Note Trust Deed or as to the
reasonableness or otherwise of the
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Note Trustee. The Security Trustee is not obliged to take any
action, give any consent or waiver or make any determination
under the Security Trust Deed without being directed to do so
by the Voting Mortgagees in accordance with the Security Trust
Deed.
(g) Prior to the Security Trustee becoming actually aware of the
occurrence of an Event of Default and provided that it has
been indemnified in accordance with the Security Trust Deed,
the Security Trustee may enforce the Security Trust Deed
without an Extraordinary Resolution of the Voting Mortgagees
if it believes (in its absolute discretion) that it is
necessary to do so to protect the interests of the Mortgagees
(provided that it must enforce the Security Trust Deed if so
directed by an Extraordinary Resolution of the Voting
Mortgagees).
Upon enforcement of the charge created by the Security Trust Deed, the
net proceeds of enforcement may be insufficient to pay all amounts due
on redemption of the Notes. The proceeds from enforcement (which will
not include amounts required by law to be paid to the holder of any
prior ranking security interest, and the proceeds of cash collateral
lodged with and payable to a Swap Provider or other provider of a
Support Facility) will be applied in the order of priority as set out
in the Security Trust Deed. Any claims of the Noteholders remaining
after realisation of the charge and application of the proceeds will,
except in certain limited circumstances, be extinguished.
11. CONDITION 11. REPLACEMENT OF US$ NOTES
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If any US$ Note is lost, stolen, mutilated, defaced or destroyed, it
may be replaced at the specified office of any Paying Agent upon
payment by the claimant of the costs incurred in connection with that
replacement and on such terms as to evidence and indemnity as the
Paying Agent may reasonably require. Mutilated or defaced US$ Notes
must be surrendered before replacements will be issued.
12. CONDITION 12. NOTICES
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(a) Where the Note Trust Deed or these Conditions provide for
notice to US$ Noteholders of any event, such notice shall be
sufficiently given (unless otherwise provided by law or
otherwise herein expressly provided) if:
(i) for so long as any Notes are listed on the Australian
Stock Exchange, published in a leading newspaper
having general circulation in Australia. Each such
notice will be deemed to be given on the date of the
first publication; or
(ii) in relation to any notice specifying a Quarterly
Payment Date, an Interest Rate, any Interest payable,
any Principal Payment (or the absence of a Principal
Payment) or the Principal Amount of any US$ Note after
any Principal Payment, that notice is published on a
page of the Reuters Screen or the electronic
information system made available by Bloomberg L.P. or
any other similar electronic reporting service as may
be approved by the Note Trustee in writing and
notified to the US$ Noteholders.
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Such notice will be deemed to be given on the first
date on which it appears on the relevant electronic
reporting service; or
(iii) if, for any reason, it is impractical to give notice
in the manner provided in paragraph (ii) of this
Condition 12(a), then the manner of giving notice
referred to in paragraph (i) of this Condition 12(a)
shall be deemed to be a sufficient giving of notice.
(b) Where these conditions provide for notice in any manner, such
notice may be waived in writing by any person entitled to
receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of
notice by US$ Noteholders shall be filed with the Note Trustee
but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
13. CONDITION 13. MEETINGS OF VOTING MORTGAGEES AND MEETINGS OF US$
NOTEHOLDERS; MODIFICATIONS; CONSENTS; WAIVER
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The Security Trust Deed contains provisions for convening meetings of
the Voting Mortgagees to, among other things, enable the Voting
Mortgagees to direct or consent to the Security Trustee taking or not
taking certain actions under the Security Trust Deed, for example to
enable the Voting Mortgagees to direct the Security Trustee to enforce
the Security Trust Deed.
The Note Trust Deed contains provisions for convening meetings of US$
Noteholders to consider any matter affecting their interests, including
the directing of the Note Trustee to direct the Security Trustee to
enforce the charge under the Security Trust Deed, or the sanctioning by
Extraordinary Resolution of the US$ Noteholders of a modification of
the US$ Notes (including these Conditions) or the provisions of any of
the Relevant Documents, provided that no modification of certain terms
including, among other things, the date of maturity of the US$ Notes,
or a modification which would have the effect of altering the amount of
interest payable in respect of a US$ Note or modification of the method
of calculation of the interest payable or of the date for payment of
interest in respect of any US$ Notes, reducing or cancelling the amount
of principal payable in respect of any US$ Notes or altering the
majority required to pass an Extraordinary Resolution or altering the
currency of payment of any US$ Notes or an alteration of the date or
priority of payment of interest on, or redemption of, the US$ Notes
(any such modification being referred to below as a BASIC TERMS
MODIFICATION) will be effective except that, if the Note Trustee is of
the opinion that such a Basic Terms Modification is being proposed by
the Issuer as a result of, or in order to avoid, an Event of Default,
such Basic Terms Modification may be sanctioned by Extraordinary
Resolution of the US$ Noteholders as described below. The quorum at any
meeting of US$ Noteholders for passing an Extraordinary Resolution will
be two or more persons holding or representing over 50% of the
aggregate Principal Amount of the US$ Notes then outstanding or, at any
adjourned meeting, two or more persons being or representing US$
Noteholders whatever the aggregate Principal Amount of the US$ Notes so
held or represented except that, at any meeting the business of which
includes the sanctioning of a Basic Terms Modification, the necessary
quorum for passing an Extraordinary Resolution will be two or more
persons holding or representing 75% or at any adjourned such meeting
25%, or more of the aggregate Principal Amount of the US$ Notes then
outstanding. An
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Extraordinary Resolution passed at any meeting of US$ Noteholders will
be binding on all US$ Noteholders, whether or not they are present at
the meeting. The majority required for an Extraordinary Resolution will
be 75% of the votes cast in respect of that Extraordinary Resolution.
Pursuant to the terms of the Note Trust Deed, the Note Trustee, the
Trust Manager and the Issuer may agree, without the consent of the US$
Noteholders, among other things, to any alteration, addition or
modification to the Notes or any Transaction Document that is:
(a) to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(b) in the opinion of the Note Trustee, necessary to comply with
the provisions of any law or regulation or with the
requirements of any governmental authority;
(c) in the opinion of the Note Trustee appropriate or expedient as
a consequence of an amendment to any law or regulation or
altered requirements of any governmental authority; or
(d) in the opinion of the Note Trustee neither prejudicial nor
likely to be prejudicial to the interests of the US$
Noteholders.
The Note Trustee may also, in accordance with the Note Trust Deed and
without the consent of the US$ Noteholders (but not in contravention of
an Extraordinary Resolution), waive or authorise any breach or proposed
breach of the US$ Notes (including these Conditions) or any Transaction
Document or determine that any Event of Default or any condition, event
or act which with the giving of notice and/or lapse of time and/or the
issue of a certificate would constitute an Event of Default will not,
or will not subject to specified conditions, be treated as such. Any
such modification, waiver, authorisation or determination will be
binding on the US$ Noteholders and, if, but only if, the Note Trustee
so requires, any such modification must be notified to the US$
Noteholders in accordance with Condition 12 as soon as practicable.
14. CONDITION 14. INDEMNIFICATION AND EXONERATION OF THE NOTE TRUSTEE AND
THE SECURITY TRUSTEE
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The Note Trust Deed and the Security Trust Deed contain provisions for
the indemnification of the Note Trustee and the Security Trustee
(respectively) and for their relief from responsibility, including
provisions relieving them from taking proceedings to realise the charge
under the Security Trust Deed and to obtain repayment of the US$ Notes
unless indemnified to their satisfaction. Each of the Note Trustee and
the Security Trustee is entitled to enter into business transactions
with the Issuer and/or any other party to the Relevant Documents
without accounting for any profit resulting from such transactions.
Except in the case of negligence, fraud or wilful default (in the case
of the Security Trustee) or negligence, fraud or wilful default (in the
case of the Note Trustee), neither the Security Trustee nor the Note
Trustee will be responsible for any loss, expense or liability which
may be suffered as a result of any assets secured by the Security Trust
Deed, other Mortgaged Property or any related deeds or documents of
title, being uninsured or inadequately insured or being held by or to
the order of the Servicer or any of its affiliates or by clearing
organisations or their operators or by any person on its behalf if
prudently chosen in accordance with the Transaction Documents.
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Where the Note Trustee is required to express an opinion or make a
determination or calculation under the Transaction Documents, the Note
Trustee may appoint or engage such independent advisors as the Note
Trustee reasonably requires to assist in the giving of that opinion or
the making of that determination or calculation and any costs and
expenses properly incurred by and payable to those advisors will be
reimbursed to the Note Trustee by the Issuer or, if another person is
expressly stated in the relevant provision in a Transaction Document,
that person.
15. CONDITION 15. LIMITATION OF LIABILITY OF THE ISSUER
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(a) GENERAL
Clause 32 of the Master Trust Deed applies to the obligations
and liabilities of the Issuer in relation to the US$ Notes.
(b) LIABILITY OF ISSUER LIMITED TO ITS RIGHT OF INDEMNITY
(i) The Transaction Documents apply to the Issuer only in
its capacity as trustee of the Trust and in no other
capacity. A liability incurred by the Issuer acting in
its capacity as trustee of the Trust arising under or
in connection with the Transaction Documents or the
Trust is limited to and can be enforced against the
Issuer only to the extent to which it can be satisfied
out of property of the Trust out of which the Issuer
is actually indemnified for the liability. This
limitation of the Issuer's liability applies despite
any other provision of the Transaction Documents and
extends to all liabilities and obligations of the
Issuer in any way connected with any representation,
warranty, conduct, omission, agreement or transaction
related to the Transaction Documents or the Trust.
(ii) The parties other than the Issuer may not sue the
Issuer in any capacity other than as trustee of the
Trust or seek the appointment of a receiver (except in
relation to the assets of the Trust), liquidator,
administrator or similar person to the Issuer or prove
in any liquidation, administration or arrangements of
or affecting the Issuer (except in relation to the
assets of the Trust).
(iii) The provisions of this Condition 15 do not apply to
any obligation or liability of the Issuer to the
extent that it is not satisfied because under a
Transaction Document or by operation of law there is a
reduction in the extent of the Issuer's
indemnification out of the Assets of the Trust as a
result of the Issuer's fraud, negligence, or wilful
default.
(iv) It is acknowledged that the Relevant Parties are
responsible under the Transaction Documents for
performing a variety of obligations relating to the
Trust. No act or omission of the Issuer (including any
related failure to satisfy its obligations or breach
of representation or warranty under the Transaction
Documents) will be considered fraud, negligence or
wilful default of the Issuer for the purpose of
paragraph (iii) of this Condition 15 to the extent to
which the act or omission was caused or contributed to
by any failure by any Relevant Party (other than a
person whose acts or omissions the Issuer is liable
for in accordance with the Transaction
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Documents) to fulfil its obligations relating to the
Trust or by any other act or omission of any Relevant
Party (other than a person whose acts or omissions the
Issuer is liable for in accordance with the
Transaction Documents) regardless of whether or not
that act or omission is purported to be done on behalf
of the Issuer.
(v) No attorney, agent, receiver or receiver and manager
appointed in accordance with a Transaction Document
has authority to act on behalf of the Issuer in a way
which exposes the Issuer to any personal liability and
no act or omission of any such person will be
considered fraud, negligence or wilful default of the
Issuer for the purpose of paragraph (iii) of this
Condition 15, provided (in the case of any person
selected and appointed by the Issuer) that the Issuer
has exercised reasonable care in the selection of such
persons.
(vi) In this Condition 15(b), RELEVANT PARTY means each of
the Trust Manager, the Servicer, the Calculation
Agent, each Paying Agent, the Note Trustee and any
Support Facility Provider.
16. CONDITION 16. GOVERNING LAW
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The US$ Notes and the Relevant Documents are governed by, and shall be
construed in accordance with, the laws of New South Wales, Australia.
The Note Trust Deed is governed by the laws of New South Wales,
Australia and the administration of the trust constituted under the
Note Trust Deed is governed by the law of the State of New York.
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SUMMARY OF PROVISIONS RELATING TO THE US$ NOTES WHILE IN GLOBAL FORM
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Each of the US$ Notes will initially be represented by typewritten book-entry
notes (the GLOBAL NOTES), without coupons, in the principal amount of US$[*] (in
the case of the Class A2 Global Note) and US$[*] (in the case of the Class B1
Global Note). The Global Notes will be deposited with the Common Depositary for
DTC on or about the Closing Date. Upon deposit of the Global Notes with the
Common Depositary, DTC will credit each investor in the US$ Notes with a
principal amount of US$ Notes for which it has subscribed and paid.
Each Global Note will be exchangeable for definitive Notes in certain
circumstances described below.
(a) PAYMENTS
Interest and principal on each Global Note will be payable by the each Paying
Agent to the Common Depositary.
Each of the persons appearing from time to time as the beneficial owner of a US$
Note will be entitled to receive any payment so made in respect of that US$ Note
in accordance with the respective rules and procedures of DTC. Such persons will
have no claim directly against the Issuer in respect of payments due on the US$
Notes which must be made by the Issuer to the holder of the relevant Global Note
for so long as such Global Note is outstanding.
A record of each payment made on a Global Note, distinguishing between any
payment of principal and any payment of interest, will be recorded in the Note
Register by the Note Registrar and such record shall be prima facie evidence
that the payment in question has been made.
(b) EXCHANGE
A Global Note will be exchangeable for Definitive Notes only if:
(i) the Principal Paying Agent advises the Trust Manager in
writing that DTC is no longer willing or able to discharge
properly its responsibilities as depository for the US$ Notes
and the Trust Manger is unable to locate a qualified
successor; or
(ii) the Issuer, at the direction of the Trust Manager, advises the
Principal Paying Agent in writing that it has elected to
terminate the book-entry system through DTC; or
(iii) after the occurrence of an Event of Default, the Note Trustee,
at the written direction of Noteholders holding a majority of
the outstanding Principal Amount of the US$ Notes, advises the
Issuer and the Principal Paying Agent that the continuation of
a book-entry system is no longer in the best interests of the
US$ Noteholders.
If any event referred to above occurs, the Trust Manager must direct the Issuer
to, and the Issuer must (at its expense), within 30 days of becoming aware of
the occurrence of the relevant event, issue Definitive Notes in exchange for the
whole of the outstanding interest in the relevant Global Note.
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(c) NOTICES
So long as the US$ Notes are represented by Global Notes and the same are held
on behalf of the Clearing Agency, notices to US$ Noteholders may be given to the
Clearing Agency for communication by it to entitled account holders in
substitution for delivery to each Note Owner as required by the Conditions.
(d) CANCELLATION
Cancellation of any US$ Note required by the Conditions will be effected by
reduction in the principal amount of the relevant Global Note.
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