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 2003-3G 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 LOGO]
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Cross Reference Table(1)
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Trust Indenture Act Section Clause
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310 (a)(1) 23.6
(a)(2) 23.1(d)
(a)(3) 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
(a)(2) NA
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Page (i)
Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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(b) 2.5
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318 (a) 36.5
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Notes:
1. This Cross Reference Table shall not, for any purpose, be deemed to be part
of this deed.
2. NA means not applicable.
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Page (ii)
Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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Table of Contents
1. Definitions and Interpretation 1
1.1 Definitions and Interpretation 1
1.2 Definitions in Master Trust Deed, Series Notice and Conditions 3
1.3 Interpretation 3
1.4 Determination, statement and certificate sufficient evidence 4
1.5 Document or agreement 4
1.6 Transaction Document 4
1.7 Trustee as trustee 4
1.8 Knowledge of Trustee 4
1.9 Knowledge of the Note Trustee 4
1.10 Appointment of the Note Trustee 5
1.11 Commencement 5
1.12 Opinion of Counsel 5
2. Payments on Non-A$ Notes 5
1.1 Principal Amount 5
2.2 Covenant to repay 5
2.3 Deemed Payment 6
2.4 Following Event of Default 6
2.5 Requirements of Paying Agents 7
2.6 Certification 7
2.7 Determinations 8
3. Form of, Issue of and Duties and Taxes on, Non-A$ Notes 8
3.1 Issue of Global Notes 8
3.2 Terms of Global Notes 8
3.3 Issue of Definitive Notes 10
3.4 Notice of Exchange Events 11
3.5 Form of Definitive Notes 12
3.6 Stamp and Other Taxes 12
3.7 Indemnity for non-issue 13
3.8 Note Register and Note Registrar 13
3.9 US Tax Treatment 14
4. Covenant of compliance 15
5. Cancellation of Non-A$ Notes 15
5.1 Cancellation 15
5.2 Records 16
6. Enforcement 16
6.1 Actions following Event of Default 16
6.2 Evidence of default 17
6.3 Overdue interest 17
6.4 Restrictions on enforcement 17
6.5 Action by Noteholders 18
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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7. Proceedings 18
7.1 Acting only on direction 18
7.2 Security Trustee acting 19
7.3 Note Trustee alone entitled to act 19
7.4 Available amounts 19
7.5 No liability 20
8. Notice of Payment 20
9. Investment by Note Trustee 20
10. Partial Payments 20
11. Covenants by the Trustee and Trust Manager 21
12. Remuneration of Note Trustee 24
12.1 Fee 24
12.2 Additional Remuneration 24
12.3 Costs, expenses 24
12.4 Overdue rate 24
12.5 Continuing obligation 25
13. Limited Responsibilities of Note Trustee 25
13.1 Limited Responsibilities 25
13.2 Examination of Documents 31
14. Note Trustee's liability 31
14.1 No exemption from liability 31
14.2 Occurrence of an Event of Default 31
15. Delegation by Note Trustee 32
16. Employment of agent by Note Trustee 32
17. Note Trustee Contracting with Trustee 32
18. Waiver 33
19. Amendment 33
19.1 Approval 33
19.2 Extraordinary Resolution of Noteholders 34
19.3 Distribution of amendments 34
19.4 Amendments binding 34
19.5 Conformity with TIA 34
20. Non-A$ Noteholders 34
20.1 Class A3 Noteholder as Couponholder 34
20.2 Notice 35
20.3 Absolute Owner 35
20.4 Clearing System Certificate 36
21. Currency Indemnity 36
22. New Note Trustees 37
22.1 Appointment by Trustee 37
22.2 Appointment by Note Trustee 38
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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22.3 Notice 38
22.4 Requirement for Note Trustee 38
23. Note Trustee's Retirement and Removal 39
23.1 Removal by Trustee 39
23.2 Removal by Non-A$ Noteholders 39
23.3 Resignation 39
23.4 Trust Corporation 40
23.5 Successor to Note Trustee 40
23.6 Eligibility; Disqualification 40
24. Note Trustee's Powers Additional 41
25. Severability of provisions 41
26. Notices 41
26.1 General 41
26.2 Details 42
27. Governing law and jurisdiction 43
28. Counterparts 43
29. Limited Recourse 43
29.1 General 43
29.2 Liability of Trustee limited to its right of Indemnity 43
29.3 Unrestricted remedies 43
29.4 Restricted remedies 43
30. Successor Trustee 44
31. Indemnity for the cost of independent advice 44
32. No liability 44
33. Information memorandum 44
34. Note Trustee's limited liability 45
34.1 Reliance on certificates 45
34.2 Note Trustee's reliance on Trust Manager or Security Trustee 45
34.3 Compliance with laws 46
34.4 Reliance on experts 46
34.5 Oversights of others 46
34.6 Impossibility or impracticability 46
34.7 Legal and other proceedings 46
34.8 No liability except for negligence etc. 47
34.9 Further limitations on Note Trustee's liability 47
34.10 Conflicts 48
34.11 Information 49
34.12 Investigation by Note Trustee 49
35. Noteholders' Lists and Reports 49
35.1 Provision of information 49
35.2 Preservation of Information; Communications to US$ Noteholders 49
35.3 Reports by Note Trustee 50
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Page (iii)
Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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35.4 Notices to Non-A$ Noteholders; Waiver 50
35.5 Reports by Trustee 50
36. Trust Indenture Act - Miscellaneous 51
36.1 Compliance Certificates and Opinions, etc 51
36.2 Undertaking for Costs 52
36.3 Exclusion of section 316 53
36.4 Unconditional Rights of Non-A$ Noteholders to Receive Principal and Interest 53
36.5 Conflict with Trust Indenture Act 53
Schedule 1 57
Form of Global Note - US$ Notes 57
Schedule 2 79
Form of Definitive Note - US$ Notes 79
Schedule 3 88
Provisions for Meetings of Non-A$ Noteholders 88
Schedule 4 96
Information to be contained in Noteholders Report 96
Schedule 5 97
Terms and Conditions of US$ Notes 97
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Page (iv)
Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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Date 2003
Parties
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 2003-3G Trust (the Trustee);
2. Interstar Securitisation Management Pty Limited (ABN 56 100 346 898)
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
Non-A$ Noteholders, the Note Trustee).
Recitals
A The Trustee has resolved at the direction of the Trust Manager to
issue US$[*] Class A2 Notes, (euro)[*] Class A3 Notes and US$[*] 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 Non-A$
Noteholders under this deed.
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It is agreed as follows.
1. Definitions and Interpretation
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1.1 Definitions and Interpretation
The following definitions apply unless the context requires otherwise.
Corporate Trust Office means the principal office of the Note Trustee in
New York at which at any particular time its corporate trust business is
administered, which at the date of the execution of this deed is [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.
Coupon means an Interest Coupon or a Principal Coupon.
Couponholder means, in relation to a Coupon and at any time, the person who
is the holder of the Coupon at that time.
Event of Default means, in respect of a Non-A$ Note, any of the events
described in Condition 9 of that Non-A$ Note.
Extraordinary Resolution has the meaning set out in paragraph 1 of schedule
3.
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Interest Coupon means a coupon which entitles the bearer to payment of
Interest on a Class A3 Note in accordance with the terms of the Master
Trust Deed and the Series Notice.
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 3 February 2003.
Note Depository Agreement means the Note Depository Agreement dated on or
about the date of this deed between the Trustee, the Principal Paying Agent
and DTC.
Noteholders Report means the report to be delivered by the Trust Manager,
on behalf of the Trustee, in accordance with clause 11(l)(i) containing the
information set out in schedule 4.
Note Trust means the trust established in clause 1.10 of this deed.
Officer's Certificate means a certificate signed by any Authorised
Signatory of the Trustee or the Trust Manager on behalf of the Trustee,
under the circumstances described in, and otherwise complying with, the
applicable requirements of section 314 of the TIA.
Opinion of Counsel means one or more written opinions of legal counsel who
may, except as otherwise expressly provided in this deed, be employees of
or counsel to the Trustee or the Trust Manager on behalf of the Trustee and
who shall be satisfactory to the Trustee or the Note Trustee, as
applicable, and which opinion or opinions shall be addressed to the Trustee
or the Note Trustee, as applicable, and shall be in form and substance
satisfactory to the Trustee and the Note Trustee, as applicable.
Principal Coupon means a coupon which entitles the bearer to repayment of
all or any part of the Principal Amount of a Class A3 Note in accordance
with the terms of the Master Trust Deed and the Series Notice.
Series Notice means the Series Notice dated on or about the date of this
deed between the Trustee, the Trust Manager, Interstar Securities
(Australia) Pty Limited, Perpetual Trustee Company Limited, the Note
Trustee, the Principal Paying Agent and the Calculation Agent.
Talon means each talon relating to a Definitive Note for a Class A3 Note
exchangeable in accordance with its provisions for Coupons.
TIA means the United States Trust Indenture Act of 1939, as amended.
Trust Corporation means any person:
(a) eligible for appointment as a trustee under an indenture to be
qualified pursuant to the TIA, as set forth in section 310(a) of the
TIA; and
(b) entitled by rules made under the Public Trustee Act 1906 of England to
act as a custodian trustee or entitled under any other comparable
legislation applicable to a trustee in any other jurisdiction to carry
out the functions of a custodian trustee,
and shall include [The Bank of New York] for so long as it complies with
section 310(a) of the TIA and carries on the business of custodian trustee.
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1.2 Definitions in Master Trust Deed, Series Notice and Conditions
(a) Words and expressions which are defined in the Master Trust Deed (as
amended by the Series Notice), the Series Notice and the relevant
Conditions (including in each case by reference to another agreement)
have the same meanings when used in this deed unless the context
otherwise requires or unless otherwise defined in this deed.
(b) If a definition in any of the documents in paragraph (a) above is
inconsistent with any of the other documents in paragraph (a), the
definitions will prevail in the following order:
(i) definitions in this deed;
(ii) definitions in the Series Notice;
(iii) definitions in the Master Trust Deed;
(iv) definitions in the relevant Conditions.
(c) No change to the Master Trust Deed or any other document (including
the order of payment set out in the Series Notice) after the date of
this deed will change the meaning of terms used in this deed or
adversely affect the rights of the Note Trustee or any Non-A$
Noteholder under this deed unless the Note Trustee (or the relevant
Non-A$ Noteholders acting under clause 6.5, as the case may be) has
agreed in writing to the changes under this deed.
1.3 Interpretation
(a) Clause 1.2 of the Master Trust Deed applies to this deed as if set out
in full and:
(i) a reference to an asset includes any real or personal, present or
future, tangible or intangible property or asset and any right,
interest, revenue or benefit in, under or derived from the
property or asset;
(ii) an Event of Default subsists until it has been waived in writing
by the Note Trustee;
(iii) a reference to an amount for which a person is contingently
liable includes an amount which that person may become actually
or contingently liable to pay if a contingency occurs, whether or
not that liability will actually arise; and
(iv) all references to costs or charges or expenses include GST, any
value added tax or similar tax charged or chargeable in respect
of the charge or expense.
(b) Where this deed refers to a provision of the TIA, the provision is
incorporated by reference in and made part of this deed. The following
terms used in the TIA have the following meanings in this deed.
Commission means the Securities and Exchange Commission of the United
States of America.
indenture securities means the 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.
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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.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the extent
prohibited by this deed.
1.6 Transaction Document
This deed is a Transaction Document for the purposes of the Master Trust
Deed.
1.7 Trustee as trustee
In this deed, except where provided to the contrary:
(a) a reference to the Trustee is a reference to the Trustee in its
capacity as trustee of the Trust only, and in no other capacity; and
(b) a reference to the assets, business, property or undertaking of the
Trustee is a reference to the assets, business, property or
undertaking of the Trustee only in the capacity described in paragraph
(a) above.
1.8 Knowledge of Trustee
In relation to the Trust, the Trustee will be considered to have knowledge
or notice of or be aware of any matter or thing if the Trustee has
knowledge, notice or awareness of that matter or thing by virtue of the
actual notice or awareness of the officers or employees of the Trustee who
have day to day responsibility for the administration of the Trust.
1.9 Knowledge of the Note Trustee
The Note Trustee will only be considered to have knowledge or notice of or
be aware of any matter or thing if the Note Trustee has knowledge, notice
or awareness of that matter or thing by virtue of the actual notice or
awareness of the officers or employees of the Note Trustee who have day to
day responsibility for the administration of the Note Trust.
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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 Non-A$ Noteholders on
the terms and conditions of this deed; and
(b) acknowledges and declares that it:
(i) holds the sum of US$10.00 received on the date of this deed; and
(ii) will hold the benefit of the obligations of the Trustee under
this deed,
in each case, on trust for each Non-A$ Noteholder, in accordance with the
terms and conditions of this deed. If the Note Issue Date has not occurred
within 30 days of the Note Trustee executing this deed, the trust
constituted under this clause 1.10 will cease.
1.11 Commencement
(a) This clause 1, clause 27 and clause 34.7 commence upon execution of
this deed by the Note Trustee.
(b) Subject to paragraph (a), this deed commences and will take effect on
the Note Issue Date.
1.12 Opinion of Counsel
For the purposes of this deed, the Trustee and the Note Trustee may where
necessary seek, and rely conclusively on, any Opinion of Counsel on any
matters relating to or connected with the TIA. Where the Trustee or the
Note Trustee elects to seek and has sought the Opinion of Counsel it shall
not be required to take any action under this deed unless and until it has
received such an Opinion of Counsel. The cost of any such Opinion of
Counsel will be an Expense of the Trustee in relation to the Trust.
2. Payments on Non-A$ 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$[*];
(b) the aggregate Principal Amount of the Class A3 Notes is limited
to(euro)[*]; and
(c) the aggregate Principal Amount of the Class B1 Notes is limited to
US$[*].
2.2 Covenant to repay
(a) The Trustee covenants with the Note Trustee that the Trustee will, in
accordance with the terms of the Non-A$ Notes (including the relevant
Conditions) and the Transaction Documents (and subject to the terms of
the Transaction Documents and the relevant Conditions, including
clause 29 of this deed and relevant Condition 6) at the direction of
the Trust Manager on:
(i) the Maturity Date; or
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(ii) each earlier date as the Non-A$ Notes, or any of them, may become
repayable (whether in full or in part),
pay or procure to be paid unconditionally in accordance with this deed
to or to the order of the Note Trustee:
(iii) in respect of US$ Notes, 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 relevant Conditions);
and
(iv) in respect of Class A3 Notes, in Euros in [London] in same day
funds the Principal Amount of the Class A3 Notes repayable or, in
the case of a partial payment of the Class A3 Notes, the
Principal Payment repayable, subject to and in accordance with
the terms of the Class A3 Notes (including the relevant
Conditions).
(b) Subject to clause 2.3 and to the terms of the Non-A$ Notes (including
the relevant Conditions and the Transaction Documents (including
clause 29 of this deed)), the Trustee shall, at the direction of the
Trust Manager, pay or procure to be paid unconditionally to or to the
order of the Note Trustee:
(i) any interest (both before and after any judgment or other order
of a court of competent jurisdiction), at the respective rates
calculated from time to time, in accordance with and on the dates
provided for in the relevant Conditions; and
(ii) principal payable at the times and in the amounts provided for in
accordance with the relevant Conditions.
(c) The Note Trustee shall hold the benefit of the covenant in this clause
2.2, the covenants in clause 11, and all other rights of the Non-A$
Noteholders under the Non-A$ Notes, on trust for the benefit of the
Non-A$ Noteholders.
2.3 Deemed Payment
Any payment of principal or interest in respect of Non-A$ 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
Non-A$ 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 Non-A$ Notes has
occurred, or at any time after Definitive Notes have not been issued when
so required in accordance with the relevant Conditions, the Note Trustee
may:
(a) by notice in writing to the Trustee, the Trust Manager, the Principal
Paying Agent, the other Paying Agents (if any) and the Calculation
Agent require the Principal Paying Agent, the other Paying Agents and
the Calculation Agent under the Agency Agreement either:
(i) (A) to act as Principal Paying Agent, Paying Agents and
Calculation Agent respectively of the Note Trustee in
relation to payments to be made by or on behalf of the Note
Trustee under the provisions of this deed on the terms of
the Agency Agreement except that the Note Trustee's
liability
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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 Non-A$ 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 Non-A$ 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 Non-A$ Notes to or to the order of the Note
Trustee and not to the Principal Paying Agent and, with effect from
the issue of that notice to the Trustee and until that notice is
withdrawn, clause 2.3 shall not apply.
A payment by the Trustee of its payment obligations on each Payment Date
under the Series Notice and the relevant Conditions to the Note Trustee in
accordance with paragraph (b) above shall be a good discharge to the
Trustee to the extent of such payment.
2.5 Requirements of Paying Agents
The Trust Manager on behalf of the Trustee will cause each Paying Agent to
execute and deliver to the Note Trustee an instrument in which that Paying
Agent shall agree with the Note Trustee, subject to the provisions of this
clause, that such Paying Agent shall:
(a) hold on trust for the Note Trustee and the Non-A$ Noteholders all sums
held by that Paying Agent for the payment of principal and interest
with respect to the Non-A$ Notes until all relevant sums are paid to
the Note Trustee or the Non-A$ Noteholders or otherwise disposed of as
provided in this deed; and
(b) immediately notify by telex or facsimile the Note Trustee, the
Trustee, the Security Trustee and the Trust Manager if the full amount
of any payment of principal or interest required to be made by the
Series Notice and the relevant Conditions in respect of the Non-A$
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 Non-A$ Notes under the relevant
Condition 5, the Note Trustee may rely upon an Officer's Certificate of the
Trust Manager certifying that the Trustee will be in a position to
discharge all its liabilities in respect of the relevant Non-A$ Notes and
any amounts required under the Security Trust Deed to be paid in priority
to or pari passu with those Non-A$ Notes and such certificate shall be
conclusive and binding on the Trustee, the Note Trustee and the holders of
those Non-A$ Notes. The Note Trustee shall not incur any liability as a
result of relying on such certificate or such certificate subsequently
being considered invalid.
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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 Non-A$ Notes in
accordance with the relevant Condition 5(d), the Principal Payment or
Principal Amount must be determined by the Calculation Agent in accordance
with the relevant 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, Non-A$ 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 A3 Notes shall on initial issue be represented by a
Temporary Class A3 Global Note.
(c) The Class B1 Notes shall on initial issue be represented by a Class B1
Global Note.
(d) The Trustee shall on the date of this deed procure the registration in
the Note Register of Cede & Co, as nominee for the relevant Clearing
Agency, as holder of each Global Note for US$ Notes, and no Note Owner
for US$ Notes will receive a Definitive Note representing such Note
Owner's interest in such Note except as provided in clause 3.3.
(e) The Trustee shall on the date of this deed deposit or procure the
deposit of the Temporary Class A3 Global Note with the relevant Common
Depository on terms that, once the Temporary Class A3 Global Note is
issued and authenticated under this deed, the relevant Common
Depository shall hold the Temporary Class A3 Global Note for the
account of persons who would otherwise be entitled to receive Class A3
Notes in definitive bearer form.
(f) The Trustee shall deposit or procure the deposit of the Permanent
Class A3 Global Note on the date of this deed with the relevant Common
Depository who shall hold the Permanent Class A3 Global Note in escrow
pending exchange for the Temporary Class A3 Global Note in accordance
with their respective terms.
3.2 Terms of Global Notes
(a) Each Global Note for US$ Notes will be issued in the form or
substantially the form set out in Part A of schedule 1.
(b) The Temporary Class A3 Global Note shall be printed or typed in the
form or substantially in the form set out in Part B of schedule 1.
(c) The Permanent Class A3 Global Note shall be printed or typed in the
form or substantially in the form set out in Part C of schedule 1.
(d) The Temporary Class A3 Global Note (or part of that Global Note) will
be exchanged for the Permanent Class A3 Global Note in accordance with
its terms. The relevant Class A3 Notes in respect of which exchange is
made will (subject as provided in clause 3.3) be represented by the
Permanent Class A3 Global Note (or part of that Global Note) for which
that exchange was made.
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(e) The procedures relating to the exchange, authentication, delivery,
surrender, cancellation, presentation, marking up or down of a Global
Note (or part of a Global Note) and any other matters to be carried
out by the relevant parties upon exchange (in whole or part) of any
Global Note shall be made in accordance with the provisions of the
terms of that Global Note and the normal practice of the relevant
Common Depository, the Principal Paying Agent, and the rules and
procedures of the relevant Clearing Agency from time to time.
(f) (i) The Class A2 Global Notes shall be issued in an aggregate
Principal Amount of US$[*].
(ii) The Class A3 Global Notes shall be issued in an aggregate
Principal Amount of (euro)[*].
(iii) The Class B1 Global Notes shall be issued in an aggregate
Principal Amount of US$[*].
(g) A Global Note for US$ Notes registered in accordance with clause
3.1(d) shall be a binding and valid obligation of the Trustee. Until
such Global Note (or part of that Global Note) has been exchanged
pursuant to this deed, it (or that part) shall in all respects be
entitled to the same benefits as a Definitive Note (subject to its
terms). Each Global Note shall be subject to this deed.
(h) 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.
(i) Whenever a notice or other communication to the Non-A$ Noteholders is
required under this deed to be given by the Note Trustee, unless and
until Definitive Notes have been issued to the Note Owners pursuant to
clause 3.3, the Note Trustee shall give all such notices and
communications specified herein to be given to the Non-A$ Noteholders
to the relevant Clearing Agency, and shall have no obligation to the
Note Owners in respect of the same.
(j) Unless and until the Definitive Notes have been issued to the Note
Owners pursuant to clause 3.3:
(i) the provisions of this clause shall be in full force and effect;
(ii) the Note Registrar, the Trustee, the Trust Manager, each Paying
Agent and the Note Trustee shall be entitled to deal with the
relevant Clearing Agency for all purposes of this deed (including
the payment of principal of and interest on the Non-A$ Notes and
the giving of instructions or directions hereunder) as the sole
holder of the Non-A$ 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;
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(iv) the rights of Note Owners shall be exercised only through the
relevant Clearing Agency and shall be limited to those
established by law and agreements between such Note Owners and
the relevant Clearing Agency and/or the relevant Clearing Agency
Participants. Pursuant to the Note Depository Agreement, unless
and until Definitive Notes are issued in respect of the US$ Notes
pursuant to clause 3.3(a), the relevant initial Clearing Agency
will make book-entry transfers among the relevant Clearing Agency
Participants and receive and transmit payments of principal and
interest on the US$ Notes to such Clearing Agency Participants;
and
(v) whenever this deed requires or permits actions to be taken based
upon instructions or directions of Note Owners evidencing a
specific percentage of the Principal Amounts of all or a Class of
Non-A$ Notes, the relevant Clearing Agency shall be deemed to
represent such percentage only to the extent that it has received
instructions to such effect from the Note Owners and/or relevant
Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest
in all or the relevant Class of Non-A$ Notes and has delivered
such instructions to the Principal Paying Agent.
3.3 Issue of Definitive Notes
(a) If at any time the US$ Notes are represented by Global Notes and:
(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 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
(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
Trustee and the Principal Paying Agent that the continuation of a
book-entry system is no longer in the best interests of the US$
Noteholders,
then the Trust Manager must direct the Trustee to, and the Trustee
must (at its expense), within 30 days of becoming aware of the
occurrence of the relevant event, issue Definitive Notes in exchange
for the whole of the outstanding interest in each Global Note for US$
Notes.
(b) If at any time the Class A3 Notes are represented by a Permanent Class
A3 Global Note:
(i) the Class A3 Notes become immediately due and repayable by reason
of the occurrence of an Event of Default;
(ii) either Euroclear or Clearstream, Luxembourg is closed for
business for a continuous period of 14 days (other than by reason
of holiday, statutory or otherwise) or announces an intention
permanently to cease business; or
(iii) as the result of any amendment to, or change in, the laws or
regulations of any jurisdiction or any body politic, or
government in any jurisdiction, or any minister,
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department, office, commission, instrumentality, agency, board,
authority or organisation of any government or any corporation
owned or controlled by any government having power to tax or in
the interpretation by a revenue authority or a court of, or in
the administration of, laws or regulations relating to taxation
which becomes effective on or after the first Closing Date, the
Trustee or any Paying Agent is or will be required to make any
deduction or withholding from any payment in respect of any Class
A3 Notes which would not be required were the Class A3 Notes in
definitive form,
then the Trustee shall (at its expense) (but subject to paragraph (c)
below), within 30 days of becoming aware of the occurrence of the
relevant event, but not prior to 40 days after the Closing Date
(provided certification of non-US ownership by the relevant Noteholder
is received by Euroclear or Clearstream, Luxembourg), issue Definitive
Notes (together with Coupons and Talons attached) in exchange for the
whole of the outstanding interest in the relevant Permanent Class A3
Global Note.
(c) The procedures to be carried out by the relevant parties on an
exchange under paragraph (b) shall be made in accordance with the
provisions of the terms of the Global Note in respect of which
exchange is to be made and the normal practice of the relevant Common
Depository, the Principal Paying Agent, and the rules and procedures
of Euroclear and Clearstream, Luxembourg from time to time. If any of
the events mentioned in paragraph (b) occurs while the Class A3 Notes
(or any part of the Class A3 Notes) are represented by a Temporary
Class A3 Global Note (or part of a Temporary Class A3 Global Note),
such Temporary Class A3 Global Note (or any part of it) shall
forthwith be exchanged for the Permanent Class A3 Global Note (or any
part of it) in accordance with its terms and clause 3.1 so that the
Class A3 Notes (or any part of them) are then represented solely by
the Permanent Class A3 Global Note.
(d) Despite this clause 3.3, the Trustee is not obliged to issue
Definitive Notes for Class A3 Notes until the later of:
(i) the expiry of 40 days after the Closing Date (provided
certification of non-US beneficial ownership by the relevant
Class A3 Noteholder is received by Euroclear or Clearstream,
Luxembourg); and
(ii) 30 days after it becomes aware of the occurrence of the relevant
event or request in paragraph (b).
(e) All Definitive Notes for Class A3 Notes shall be held by the Principal
Paying Agent and shall not be delivered to the relevant Class A3
Noteholders until requested to be so delivered by the relevant Class
A3 Noteholders. The Permanent Class A3 Global Note shall be
marked-down in respect of those Definitive Notes which are so
delivered as appropriate.
(f) No Definitive Note for Class A3 Notes shall be delivered in the United
States of America.
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
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referred to in clause 3.3 and shall, unless the Note Trustee agrees
otherwise, promptly give notice of the event and of the Trustee's
obligation to issue Definitive Notes under clause 3.3 to the relevant
Note Owners in accordance with the relevant Condition 12.
(b) The Note Trustee shall notify the Trustee and the Trust Manager
forthwith if the Note Trustee becomes actually aware of any of the
events referred to in clause 3.3.
3.5 Form of Definitive Notes
(a) Each Definitive Note for US$ Notes will be issued in the form or
substantially the form set out in Part A of schedule 2.
(b) The Definitive Notes for US$ Notes shall be issued in denominations of
US$100,000 each (serially numbered) and shall be issued on the terms
of the relevant Conditions.
(c) Each Definitive Note for Class A3 Notes will be issued in the form or
substantially in the form set out in Part B of schedule 2.
(d) The Definitive Notes for Class A3 Notes shall be issued in
denominations of (euro)100,000 each (serially numbered) with Coupons
and (if appropriate) Talons and shall be issued on the terms of the
relevant Conditions.
(e) Title to Definitive Notes for US$ Notes shall pass by registration in
accordance with the Master Trust Deed and this deed.
(f) The Definitive Notes for Class A3 Notes, Coupons and Talons are
negotiable instruments, title to which shall pass by delivery.
(g) Definitive Notes and Coupons shall be signed manually or in facsimile
by an Authorised Signatory or an attorney of the Trustee. Talons shall
not be signed. The Trustee may use the facsimile signature of any
person who at the date of printing of Definitive Notes or Coupons (as
the case may be) is an Authorised Signatory of the Trustee
notwithstanding that at the time of issue of any Definitive Notes or
Coupons (as the case may be) that person has ceased for any reason to
be an Authorised Signatory of the Trustee and Definitive Notes so
executed shall be binding and valid obligations of the Trustee. The
Trustee shall procure that an Authorised Signatory of the Principal
Paying Agent authenticates each Definitive Note. No Definitive Note or
the Coupons or Talons relating to it shall be valid for any purpose
unless and until so authenticated.
3.6 Stamp and Other Taxes
The Trustee will pay any stamp and other duties and Taxes payable in
Australia, the United Kingdom or the United States on or in connection
with:
(a) the execution of the Transaction Documents;
(b) the constitution and original issue and delivery of the Non-A$ Notes,
Coupons and Talons; and
(c) any action taken by the Note Trustee or (where permitted under this
deed so to do), a Clearing Agency or any Note Owner or Couponholder to
enforce the provisions of the Non-A$ Notes or the Transaction
Documents; and
(d) the creation of the security constituted under the Security Trust
Deed.
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3.7 Indemnity for non-issue
If the Trustee is required to issue, or procure the issue of, Definitive
Notes in respect of any Non-A$ Notes following an event specified in clause
3.3(a)(ii) or 3.3(b)(iii) but fails to do so within 30 days of the Trustee
or the Trust Manager becoming actually aware of the occurrence of the
relevant event then the Trustee shall (subject to clause 29 of this deed)
indemnify the Note Trustee, the relevant Non-A$ Noteholders and the Note
Owners and keep them indemnified against any loss or damage incurred by any
of them if the amount received by the Note Trustee, the relevant Non-A$
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(a)(ii) or 3.3(b)(iii) shall be deemed to be cured. The Trust Manager
must promptly advise the Trustee if it becomes actually aware of the
occurrence of the relevant event.
3.8 Note Register and Note Registrar
(a) The Note Registrar, on behalf of the Trustee, shall keep or cause to
be kept the Note Register in which, subject to such reasonable
regulations as it may prescribe, the Note Registrar, on behalf of the
Trustee, shall provide for the registration of the US$ Notes and the
registration of transfers of US$ Notes. The Note Registrar will be
responsible for registering US$ Notes and transfers of US$ Notes as
provided in this deed and the Agency Agreement. The Trustee may
appoint another person as Note Registrar in accordance with the Agency
Agreement.
(b) Upon surrender for registration of the transfer of any US$ Note at the
office or agency of the Trustee to be maintained as provided in clause
11(e), if the requirements of Section 8-401(a) of the Uniform
Commercial Code of New York (the UCC) are met the Trustee must execute
and upon its written request the Principal Paying Agent must
authenticate and the US$ Noteholder shall obtain from the Note
Trustee, in the name of the designated transferee or transferees, one
or more new US$ Notes, in any authorised denominations and of a like
aggregate principal amount.
(c) At the option of the US$ Noteholders, US$ Notes may be exchanged for
other US$ Notes in any authorised denominations and a like aggregate
principal amount, upon surrender of the US$ Notes to be exchanged at
any such office or agency referred to in paragraph (b) above. Whenever
any US$ Notes are so surrendered for exchange, if the requirements of
Section 8-401(a) of the UCC are met the Trustee must execute and upon
its written request the Principal Paying Agent must authenticate and
the US$ Noteholder shall obtain from the Note Trustee, the US$ Notes
which the US$ Noteholder making the exchange is entitled to receive.
(d) Every US$ Note presented or surrendered for registration of transfer
or exchange shall be:
(i) duly endorsed by, or be accompanied by a written instrument of
transfer in a form satisfactory to the Note Registrar duly
executed by the transferring US$ Noteholder or its attorney duly
authorised in writing, with such signature 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
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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);
(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;
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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(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 Non-A$ Noteholder. The Transaction
Documents to which the Trustee and the Note Trustee are a party and the
relevant Conditions shall be binding on the Trustee, the Note Trustee and
the Non-A$ Noteholders. The Note Trustee (or the Non-A$ Noteholders, under
clause 6.5, as the case may be) is entitled to enforce the obligations of
the Trustee under the Non-A$ Notes, the Coupons, the Talons and the
relevant Conditions as if the same were set out and contained in this deed
(which shall be read and construed as one document with the Non-A$ Notes).
The provisions contained in schedule 3 shall have effect as if set out in
this deed.
5. Cancellation of Non-A$ Notes
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5.1 Cancellation
(a) The Trustee shall procure that all Non-A$ Notes:
(i) which have been redeemed in full; or
(ii) in the case of any Definitive Note, which, being mutilated or
defaced, have been surrendered and replaced under the relevant
Condition 11 (together in each case with all unmatured Coupons
and any unexchanged Talons attached to or delivered with that
Definitive Note); or
(iii) all Talons exchanged and all Coupons paid in accordance with the
relevant Conditions or which, being mutilated or defaced, have
been surrendered and replaced under the relevant Condition 11,
shall forthwith be cancelled by or on behalf of the Trustee.
(b) The Trust Manager shall ensure that, for each quarter, a certificate
is prepared stating:
(i) the aggregate Principal Amount of the Definitive Notes for the
Class A3 Notes which have been redeemed in full and the aggregate
amounts in respect of Coupons which have been paid or, as the
case may require, the aggregate amounts of principal and interest
paid in respect of the Class A3 Global Notes during that month;
(ii) the serial numbers of those Definitive Notes;
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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(iii) the total number by Maturity Date of those Coupons;
(iv) the aggregate Principal Amounts of Definitive Notes for the Class
A3 Notes which have been so surrendered and replaced during that
quarter, the serial numbers of those Definitive Notes and the
total number by Maturity Date of Coupons which have been so
surrendered and replaced; and
(v) the total number of Talons which have been so exchanged,
and that such certificate is given to the Note Trustee by or on behalf
of the Trustee as soon as possible and in any event within four months
after the end of the relevant quarter.
(c) The Note Trustee may accept a certificate under paragraph (b) as
conclusive evidence of repayment, purchase or replacement of any Class
A3 Notes or payment of interest on them, and of cancellation of the
relevant Class A3 Notes, Coupons and Talons.
5.2 Records
The Trustee shall procure that:
(a) the Principal Paying Agent keeps a full and complete record of all
Non-A$ Notes, Coupons and Talons (other than serial numbers of
Coupons) and of their redemption, payment, exchange or cancellation
(as the case may be) and of all replacement Non-A$ Notes, Coupons or
Talons issued in substitution for lost, stolen, mutilated, defaced or
destroyed Definitive Notes, Coupons or Talons;
(b) the Principal Paying Agent in respect of the Coupons of each Maturity
Date retains until the expiry of five years (in the case of Interest
Coupons) and ten years (in the case of Principal Coupons) from the
Maturity Date of those Coupons either a list of all paid Coupons of
that Maturity Date or a record of the total amount of Coupons of that
Maturity Date still remaining unpaid; and
(c) 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
the relevant Conditions 9 and 10) at its discretion and without
further notice and must, if so directed or requested under clause 7.1,
take any action available to it to direct the Security Trustee to:
(i) institute any proceedings against the Trustee and/or the Trust
Manager which are permitted under the Transaction Documents;
(ii) enforce the security created under the Security Trust Deed; and
(iii) enforce repayment of the Non-A$ Notes together with accrued
interest and any other moneys payable to the Note Trustee or the
Non-A$ Noteholders under the Transaction Documents.
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(b) The Note Trustee must, within 90 days of becoming aware of the
occurrence of an Event of Default, notify each Non-A$ 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
Non-A$ Noteholders.
6.2 Evidence of default
If the Security Trustee or the Note Trustee takes any action against the
Trustee to enforce any of the provisions of any Non-A$ Notes, the Coupons
or this deed, proof that:
(a) as regards any Non-A$ Note, the Trustee has not paid any principal or
interest due in respect of that Non-A$ Note shall (unless the contrary
is proved) be sufficient evidence that the Trustee has not paid that
principal or interest on all other Non-A$ Notes in respect of which
the relevant payment is then due;
(b) as regards any Coupon, the Trustee has not paid any principal or
interest due in respect of that Coupon shall (unless the contrary is
proved) be sufficient evidence that the Trustee has not paid that
principal or interest on all other Coupons in respect of which the
relevant payment is then due; and
(c) as regards any Talon, the Trustee has not exchanged that Talon for
further Coupons and a further Talon as provided by its terms shall
(unless the contrary is proved) be sufficient evidence that the
Trustee has not exchanged all other Talons which are then available
for exchange.
6.3 Overdue interest
The rates of interest payable in respect of any Non-A$ 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 Non-A$ Note became due and repayable in
accordance with the provisions of relevant Condition 4 except that no
notices need be given to the Non-A$ Noteholders in relation to that
interest.
6.4 Restrictions on enforcement
(a) If any of the Non-A$ Notes remain outstanding and are due and payable
otherwise than by reason of a default in payment of any amount due on
the Non-A$ 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) the Note Trustee is of the opinion, reached after considering at
any time and from time to time the advice of a merchant bank or
other financial institution selected by the Note Trustee in its
absolute discretion (the cost of which advice the Trustee
indemnifies the Note Trustee) that a sufficient amount would be
realised to discharge in full all amounts owing to the Non-A$
Noteholders and the holders of the related Coupons and any other
amounts payable by the Trustee ranking in priority to or pari
passu with the Non-A$ Notes; or
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(ii) the Note Trustee is of the opinion, reached after considering at
any time and from time to time the advice of a merchant bank or
other financial adviser selected by the Note Trustee in its sole
and absolute discretion (the cost of which advice the Trustee
indemnifies the Note Trustee), that the cash flow receivable by
the Trustee (or the Security Trustee under the Security Trust
Deed) will not (or that there is a significant risk that it will
not) be sufficient, having regard to any other relevant actual,
contingent or prospective liabilities of the Trustee, to
discharge in full in due course all the amounts referred to in
paragraph (i) relating to the Trust.
(b) Neither the Note Trustee (except in the case of negligence, fraud or
wilful default by it) nor the Security Trustee (except in the case of
negligence, fraud or wilful default by it) will be liable for any
decline in the value, nor any loss realised upon any sale or other
dispositions made under the Security Trust Deed, of any Mortgaged
Property or any other property which is charged to the Security
Trustee by any other person in respect of or relating to the
obligations of the Trustee or any third party in respect of the
Trustee or the Non-A$ Notes or relating in any way to the Mortgaged
Property. Without limitation, neither the Note Trustee nor the
Security Trustee shall be liable for any such decline or loss directly
or indirectly arising from its acting, or failing to act, as a
consequence of an opinion reached by it in good faith based on advice
received by it in accordance with paragraph (a).
6.5 Action by Noteholders
Notwithstanding any other provision of this deed, if the Note Trustee,
having become bound to take steps and/or proceed under clause 6.1 and/or
the Security Trust Deed, fails to do so within a reasonable time and such
failure is continuing, the Non-A$ Noteholders may proceed directly against
the Trustee but then only if and to the extent the Non-A$ 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, any
Non-A$ Notes or any Coupons or Talons, unless directed or requested to do
so:
(a) by an Extraordinary Resolution of the relevant Class of Non-A$
Noteholders, as appropriate; or
(b) in writing by the holders of at least 75% of the aggregate Principal
Amount of the relevant Class of Non-A$ Noteholders, as appropriate,
and then only if the Note Trustee is indemnified to its satisfaction
against all action, proceedings, claims and demands to which it may render
itself liable and all costs, charges, damages and expenses which it may
incur by so doing.
If an Extraordinary Resolution of Voting Mortgagees (as defined in the
Security Trust Deed) elects not to direct the Security Trustee to enforce
the Security Trust Deed, in circumstances where the
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Security Trustee could enforce, the Note Trustee must, at the direction in
accordance with (a) and/or (b) above of the Non-A$ 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 Non-A$ Noteholder is entitled to
proceed directly against the Trustee to enforce the performance of any of
the provisions of the Security Trust Deed or the Non-A$ Notes (including
the relevant Conditions) or the Coupons, 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 Non-A$ Noteholders may
proceed directly against the Trustee but then only if and to the extent the
Non-A$ Noteholders are able to do so under Australian law. The Security
Trustee shall comply with all directions given to it by the Note Trustee
pursuant to any power to give directions granted to the Note Trustee
pursuant to this deed or to the Security Trust Deed provided that the
Security Trustee has the power under the Security Trust Deed to take the
action contemplated by the direction, and the Security Trustee shall not be
liable for any direct and indirect costs, expenses, losses, damages,
liabilities or actions arising or resulting from any action or conduct
undertaken or not taken by the Security Trustee or its officers, employees
or agents including as a consequence of following those directions.
7.3 Note Trustee alone entitled to act
Subject to clauses 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, the Non-A$ Notes (including the
relevant Conditions) or the Coupons,
and no Non-A$ 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, the Non-A$ Notes (including the relevant
Conditions) or the Coupons.
7.4 Available amounts
For the purpose of Condition 5(f) the Note Trustee shall not be satisfied
that the Trustee will be in a position to discharge the liabilities
referred in their relevant Conditions unless, either:
(a) the Trustee will have available to it sufficient cash in the
Collection Account and sufficient Authorised Investments which will
mature on or before the relevant Payment Date after 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,
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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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 Non-A$
Noteholders in accordance with the relevant Condition 12 of the day fixed
for any payment to them of amounts received by the Note Trustee under
clause 16 of the Security Trust Deed. Those payments may be made in
accordance with the relevant Condition 6 as appropriate (in the case of
Definitive Notes), to the order of the registered holder of the US$ Notes
(in the case of any Class A2 Global Note or Class B1 Global Note) or to the
order of the bearer of the Class A3 Notes (in the case of any Class A3
Global Note) and payment of those amounts by the Note Trustee to the
Principal Paying Agent for that purpose shall be a good discharge to the
Note Trustee.
9. Investment by Note Trustee
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Moneys held by the Note Trustee under the trusts of this deed may be
invested in the name or under the control of the Note Trustee in any
Authorised Investments and the Note Trustee may at any time or times vary
any Authorised Investments into other Authorised Investments and shall not
be responsible for any loss due to depreciation in value or otherwise
resulting from any Authorised Investments made by it. At the direction of
the Trust Manager, the Note Trustee must invest any moneys held by the Note
Trustee under the trusts of this Deed in such Authorised Investments as the
Trust Manager may specify from time to time and the Note Trustee shall not
be responsible for any loss due to depreciation in value or otherwise
resulting from any Authorised Investments made by it in compliance with any
such direction. The Note Trustee need only account for interest on money
held on deposit with itself equal to the highest rate payable by it to an
independent depositor in respect of comparable deposits.
10. Partial Payments
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(a) On any payment of amounts by the Trustee, the Security Trustee or the
Note Trustee in accordance with the Series Notice, the Conditions in
relation to the US$ Notes or the Security Trust Deed (other than the
payment in full against surrender of a US$ Note) the Trustee, the
Security Trustee or the Note Trustee (as the case may be) shall, or
shall procure that, the Note Register relating to the US$ Note in
respect of which such payment is made shall be amended to evidence the
amount and the date of payment.
(b) In the case of Definitive Notes for Class A3 Notes, on any payment of
amounts received by the Note Trustee under clause 16 of the Security
Trust Deed (other than the payment in full against surrender of a
Definitive Note or Coupon) the Definitive Note or Coupon in respect
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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of which such payment is made shall be produced to the Note Trustee or
a Paying Agent by or through whom such payment is made and the Note
Trustee shall or shall cause such Paying Agent to enface on the
Definitive Note or Coupon a memorandum of the amount and the date of
payment, but the Note Trustee may in any particular case dispense with
that production and enfacement upon the Trustee certifying to the Note
Trustee that an indemnity has been given to the Trustee by the
recipient of the payment as the Trustee considers sufficient and the
Note Trustee shall be entitled to rely on such certification.
11. Covenants by the Trustee and Trust Manager
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Each of the Trustee and the Trust Manager severally undertakes to the Note
Trustee, on behalf of the Non-A$ Noteholders, as follows in relation to the
Trust for so long as any of the Non-A$ 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 Non-A$ Noteholders.
(d) (Notify Events of Default)
(i) It will promptly notify the Note Trustee if it has knowledge or
notice of or is aware of the occurrence of an Event of Default,
Trustee's Default or Trust Manager's Default or, with respect to
the Trust Manager only, an event that, with the giving of notice
or the passage of time would constitute an Event of Default,
Trustee's Default or Trust Manager's Default (Potential Default)
including full details (to the extent known, without making any
enquiry) of that Event of Default, Trustee's Default or Trust
Manager's Default or, in respect of the Trust Manager only,
Potential Default (as the case may be).
(ii) In addition to its obligations under sub-clause item (d)(i) of
this clause 11, it will confirm to the Note Trustee, on each
anniversary of this deed:
(A) whether or not the Trust Manager or the Trustee is aware
that any Event of Default or, with respect to the Trust
Manager only, event that with the giving of notice or
passage of time would constitute an Event of Default has
occurred; and
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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(B) any other matter which is required to be notified to the
Note Trustee under the Transaction Documents and which has
not previously been so notified.
(e) (Maintenance of Office or Agency) The Trust Manager on behalf of the
Trustee will maintain in the Borough of Manhattan, The City of New
York an office or agency where US$ Notes may be surrendered for
registration of transfer or exchange.
The Trustee hereby initially appoints the Note Registrar to serve as
its agent for the foregoing purposes. The Note Registrar shall act
solely for, and as agent of, the Trustee and shall not have any
obligations towards or relationship or agency or trust with any other
person in respect of its appointment under this sub-paragraph (e). The
Trust Manager will give prompt written notice to the Note Trustee of
the location, and of any change in the location, of any such office or
agency. If at any time the Trust Manager on behalf of the Trustee
shall fail to maintain any such office or agency or shall fail to
furnish the Note Trustee with the address thereof, such surrenders may
be made or served at the relevant Corporate Trust Office, and the
Trustee hereby appoints the Note Trustee as its agent to receive all
such surrenders.
(f) (Calculation Agent ) It will procure that, so long as any of the
Non-A$ 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
Non-A$ 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 Non-A$ Noteholders in accordance with the Agency Agreement and the
relevant Condition 12 of:
(i) any appointment, resignation or removal of any Paying Agent
(other than the appointment of the initial Principal Paying Agent
and any other Paying Agent) or Calculation Agent;
(ii) any change to any Paying Agent's Paying Office (as defined in the
Agency Agreement); or
(iii) any change to the Calculation Agent's Specified Office (as
defined in the Agency Agreement).
(i) (Notices) It will promptly give to the Note Trustee, or ensure that
the Note Trustee receives for its approval, two copies of the form of
every notice prior to the notice being given to the Non-A$ Noteholders
in accordance with the relevant Condition 12.
(j) (Annual Statement as to Compliance) The Trustee (or the Trust Manager
on its behalf) will deliver to the Note Trustee, within 120 days after
the end of each fiscal year of the Trust (commencing on [30 September
2004]), 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
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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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 2004] the Trustee (or the Trust Manager on its behalf) shall
furnish to the Note Trustee an Opinion of Counsel (who may be of
counsel for the Trustee) either stating that in the opinion of such
counsel such action has been taken with respect to the recording,
filing, re-recording, and refiling of the Security Trust Deed and any
other requisite documents as is necessary to maintain the Security
Interest created by the Security Trust Deed, and reciting the details
of such action, or stating that in the opinion of such counsel no such
action is necessary to maintain such Security Interest.
(l) (Noteholders Report)
(i) The Trust Manager, on behalf of the Trustee, shall deliver to the
Principal Paying Agent and the Note Trustee on each Payment Date
the Noteholders Report for the related Collection Period, with
written instructions for the Note Trustee and the Principal
Paying Agent to forward the Noteholders Report to each US$
Noteholder.
(ii) Each Noteholder Report shall contain the information set out in
schedule 4.
(m) (Listing) It will use its best endeavours to:
(i) obtain and maintain a quotation or listing of the Non-A$ Notes on
any Stock Exchange or Stock Exchanges or securities market or
markets as the Trust Manager (with the prior written approval of
the Note Trustee, that approval not to be unreasonably withheld
or delayed) decides and following that quotation or listing enter
into a deed supplemental to this deed to effect such
consequential amendments to this deed necessary to comply with
the requirements of any such Stock Exchange or securities market;
and
(ii) procure that there will at all times be furnished to the relevant
Stock Exchange or securities market any information which such
Stock Exchange or securities market may require to be furnished
in accordance with its requirements.
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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12. Remuneration of Note Trustee
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12.1 Fee
The Trustee shall pay to the Note Trustee a fee agreed between them.
12.2 Additional Remuneration
If the Note Trustee gives a notice under the relevant Condition 9 or it
undertakes duties which it considers expedient or necessary under this
deed, or which the Trustee requests it to undertake and which duties the
Note Trustee, the Trust Manager and the Trustee agree to be of an
exceptional nature or otherwise outside the scope of the normal duties of
the Note Trustee under this deed, the Trustee shall pay to the Note Trustee
any additional remuneration as they agree.
In the event of the Note Trustee, the Trust Manager and the Trustee failing
to agree as to any of the matters in this clause 12.2, such matter shall be
determined by a merchant or investment bank (acting as an expert and not as
an arbitrator) selected by the Note Trustee and approved by the Trustee or,
failing such approval, nominated (on the application of the Note Trustee or
the Trustee) by the President for the time being of The Law Society of New
South Wales (the expenses involved in such nomination and the fees of such
merchant or investment bank being shared equally by the Trustee and the
Note Trustee) and the determination of any such merchant or investment bank
shall be final and binding upon the Note Trustee, the Trust Manager and the
Trustee and shall be payable by the Trustee to the Note Trustee.
12.3 Costs, expenses
(a) Subject to clause 34.8, the Trustee shall also reimburse, pay or
discharge all reasonable costs, charges, liabilities and expenses and
any stamp and other Taxes or duties incurred or paid by the Note
Trustee (or the Non-A$ Noteholders acting under clause 6.5 (as the
case may be)) in connection with undertaking its duties under the
Transaction Documents (including the fees and expenses of its counsel)
and in connection with any legal proceedings brought by the Note
Trustee (or the Non-A$ Noteholders acting under clause 6.5 (as the
case may be)) to enforce any obligation under this deed, the Non-A$
Notes or the Coupons.
(b) Without prejudice to the right of indemnity by law given to trustees,
to the extent the Trustee is itself entitled to be indemnified and,
subject to clause 29, the Trustee indemnifies the Note Trustee (or the
Non-A$ 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 survive the
termination of this deed and the resignation or removal of the Note Trustee
and be payable by the Trustee on the next Payment Date in the order set out
in the Series Notice or (if applicable) the Security Trust Deed and shall
carry
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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interest at the rate of LIBOR plus 2% from the due date. Any amount payable
shall carry interest at that rate from the due date to the date of actual
payment.
12.5 Continuing obligation
Unless otherwise specifically stated in any discharge relating to this deed
the provisions of this clause shall continue in full force and effect
notwithstanding such discharge and even if the Note Trustee has ceased to
be the Note Trustee for any reason including but not limited to those
contemplated in clause 23 it will be entitled to all rights arising to it
prior to it ceasing to be the Note Trustee.
13. Limited Responsibilities of Note Trustee
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13.1 Limited Responsibilities
Subject to clauses 13.2 and 14, it is expressly declared as follows.
(a) Any advice, opinion or information obtained by the Note Trustee from
any lawyer, valuer, accountant, banker, broker, credit-rating agency,
lead manager or other expert may be sent or obtained by letter, telex,
telegram, facsimile transmission, email or cable and the Note Trustee
shall not be liable for acting on any advice, opinion or information
purporting to be conveyed by any such letter, telex, telegram,
facsimile transmission, email or cable although the same shall contain
some error or shall not be authentic.
(b) The Note Trustee may call for and shall be at liberty to accept as
sufficient evidence of any fact or matter or the expediency of any
transaction or thing a certificate signed by two Authorised
Signatories of the Trustee or the Trust Manager (as the case may be)
and the Note Trustee shall not be bound in any such case to call for
further evidence or be responsible for any loss that may be occasioned
by the Note Trustee acting on that certificate.
(c) The Note Trustee is at liberty to hold or to place this deed and any
other documents relating to this deed in any part of the world with
any banker or banking company or company whose business includes
undertaking the safe custody of documents or lawyer or firm of lawyers
reasonably considered by the Note Trustee to be of good repute and
except in the case of fraud, negligence or wilful default of the Note
Trustee, the Note Trustee shall not be responsible for any loss,
expense or liability which may be suffered as a result of any assets
secured by the Security Trust Deed, Mortgaged Property or any deed or
documents of title thereto, being uninsured or inadequately insured or
being held by or to the order of any clearing organisations or their
operators or by any person on behalf of the Note Trustee if prudently
chosen in accordance with the Transaction Documents.
(d) The Note Trustee shall not be responsible for the application of the
proceeds of the issue of any of the Non-A$ 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,
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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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 Non-A$ Notes, the Coupons 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 Non-A$ Noteholders shall be
conclusive and binding on the Non-A$ 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 Non-A$ Noteholders, or any of them, the Note Trustee shall
nevertheless not be so bound unless it is first indemnified or
accepts security to its satisfaction against all actions,
proceedings, claims and demands to which it may render itself
liable and all costs, charges, damages, expenses and liabilities
which it may incur by so doing; and
(ii) in the absence of fraud, negligence or wilful default, the Note
Trustee shall not be in any way responsible for any loss (whether
consequential or otherwise), costs, damages or inconvenience that
may result from the exercise or non-exercise of any powers,
authorities and discretions vested in it.
(g) The Note Trustee shall not be liable for acting upon any resolution
purporting to have been passed at any meeting of the Non-A$
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 Non-A$
Noteholders.
(h) The Note Trustee shall not be liable to the Trustee or any Non-A$
Noteholder by reason of having accepted as valid or not having
rejected:
(i) any entry in the Note Register in respect of a Definitive Note
for a US$ Note which is subsequently found to be incorrect and
the Note Trustee shall be at liberty to accept and place full
reliance on the Note Register as complete and accurate evidence
to the effect that at any particular time or through any
particular period any particular person is, was, or will be,
shown in its records as entitled to a particular number of US$
Notes; or
(ii) any Definitive Note for a Class A3 Note or Coupon purporting to
be such and subsequently found to be forged or not authentic and
the Note Trustee may call for and shall be at liberty to accept
and place full reliance on as sufficient evidence of the facts
stated therein a certificate or letter of confirmation certified
as true and accurate and signed on behalf of Euroclear,
Clearstream, Luxembourg or any common depository for them or any
form of record made by any of them to the effect that at any
particular time or through any particular period any particular
person is, was, or will be, shown in its records as entitled to a
particular number of Class A3 Notes.
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(i) Any consent or approval given by the Note Trustee for the purpose of
this deed, the relevant Conditions and any Transaction Document may be
given on any terms and subject to any conditions as the Note Trustee
thinks fit and despite anything to the contrary contained in this
deed, any Transaction Document or the relevant Conditions may be given
retrospectively.
(j) Save as otherwise expressly provided in this deed, the Note Trustee
shall not (unless and to the extent ordered so to do by a court of
competent jurisdiction) be required to disclose to any Non-A$
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 Non-A$ 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 Non-A$ 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 the relevant Condition 9 or any breach under clause 8 of the
Security Trust Deed is in its opinion materially prejudicial to the
interests of the relevant Non-A$ Noteholders and may certify, in
relation to the event set out in paragraph (a) of the relevant
Condition 9 in relation to any payment of interest on the Non-A$ 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 Non-A$ Noteholders. The Note Trustee
shall have no liability to the Trustee, any Non-A$ Noteholder or any
other person in relation to any such certificate or in relation to any
delay or omission in providing such certificate. In giving any
certificate relating to paragraph (a) of the relevant Condition 9, the
Note Trustee may rely on any determination made by any independent
accountants of recognised standing in Australia and any such
determination shall be conclusive and binding on the Trustee and the
Non-A$ Noteholders. The Trustee shall pay the Note Trustee all costs
and expenses of providing the certificate at the times specified in
the Series Notice.
(m) The Note Trustee shall not be bound to take any steps to ascertain
whether any event, condition or act, the happening of which would
cause a right or remedy to become exercisable by the Note Trustee
under this deed or by the Trustee under any of the Transaction
Documents has happened or to monitor or supervise the observance and
performance by the Trustee or any of the other parties thereto of
their respective obligations thereunder and, until it shall have
actual knowledge or express notice to the contrary, the Note Trustee
shall be entitled to assume that no such event, condition or act has
happened
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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 Non-A$ Noteholder is solely responsible for making its
own independent appraisal of and investigation into the Trust and the
Non-A$ Notes and the Note Trustee shall not at any time have any
responsibility for the same and no Non-A$ 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 Non-A$ Notes (including the relevant
Conditions), except where expressly provided otherwise have regard to
the interests of the Non-A$ Noteholders.
(q) Without prejudice to the provisions of any Transaction Document the
Note Trustee shall not be under any obligation to insure any of the
Mortgaged Property (or any other property) or any deeds or documents
of title or other evidence relating to that property.
(r) Subject to the relevant Condition 10(c), the Note Trustee shall not be
responsible for any loss, expense or liability (including, without
limitation, any decline in value or loss realised upon any sale or
disposition made under the Security Trust Deed) occasioned to the
Mortgaged Property or any other property or in respect of all or any
of the moneys which may stand to the credit of the Collection Accounts
from time to time however caused (including any bank, broker,
depository, warehouseman or other intermediary or any clearing system
or its operator acting in accordance with or contrary to the terms of
any of the Transaction Documents or otherwise), unless that loss is
occasioned by the fraud, negligence, or wilful default of the Note
Trustee.
(s) The Note Trustee has no responsibility whatsoever to the Trustee or
any Non-A$ Noteholder as regards any deficiency or additional payment,
as the case may be, which
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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 representations, warranties or
statements made by or on behalf of any Obligor in any application
for any advance or in any Mortgage or Loan or in any document
entered into in connection with them;
(vi) the 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,
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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 any person with the provisions and contents of
and the manner and formalities applicable to the execution of the
Mortgages and Loans and any documents connected with them or the
making of any advance intended to be secured by them or with any
applicable laws or regulations (including Consumer Credit
Legislation);
(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.
(v) The Note Trustee is not liable or responsible for any loss, cost,
damages, expenses, liabilities or inconvenience which may result from
anything done or omitted to be done by it in accordance with the
provisions of this deed, any other Transaction Document or any other
document.
(w) The Note Trustee is not liable in respect of it being treated as, or
being deemed to be, a credit provider, for the purposes of the
Consumer Credit Legislation, in respect of any of the Mortgages.
(x) In connection with any proposed modification, waiver, authorisation or
determination permitted by this deed, the Note Trustee shall not have
regard to the consequences thereof
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for individual Non-A$ 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 Non-A$ Notes by a Designated Rating
Agency or any other credit-rating agency or any other person.
(z) The Note Trustee shall be under no obligation to monitor or supervise
the functions of any person under any Authorised Investment, Support
Facility, Mortgage, Loan or Transaction Document or any other deed,
agreement or arrangement incidental to any of the above, and is
entitled, in the absence of actual knowledge of a breach of duty or
obligation, to assume that any person is properly performing its
obligations in accordance with each Transaction Document.
(aa) The Note Trustee acknowledges that the Trust Manager is responsible,
under the Series Notice, for calculating all amounts referred to in
clause 6.2 of the Series Notice (other than calculations required to
be made by the Calculation Agent under the Agency Agreement) and the
Note Trustee has no liability in respect of these calculations.
In relation to US$ Notes and US$ Noteholders, the Note Trustee shall comply
with section 311(a) of the TIA, excluding any creditor relationship listed
in section 311(b) of the TIA. A Note Trustee who has resigned or been
removed shall be subject to section 311(a) in relation to US$ Notes and US$
Noteholders of TIA only to the extent required by the TIA.
13.2 Examination of Documents
In relation to US$ Notes and US$ Noteholders, the Note Trustee shall
examine the evidence furnished to it pursuant to section 314 of the TIA to
determine whether the opinions, searches, reports, certificates, valuations
and investigations delivered or obtained or required to be delivered or
obtained at any time in connection with any Mortgage or Loan conform to the
requirements of this deed but shall not be obliged to confirm or verify the
mathematical calculations or other facts stated therein.
14. Note Trustee's liability
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14.1 No exemption from liability
Nothing in this deed shall exempt the Note Trustee from or indemnify it
against any liability for breach of trust or any liability in respect of
any fraud, negligence or wilful default of which it may be guilty in
relation to its duties under this deed.
14.2 Occurrence of an Event of Default
In the case of an Event of Default, the Note Trustee shall exercise, with
respect to the rights and powers vested in it by this deed, the same degree
of care and skill as a prudent person would exercise under the
circumstances in the conduct of such person's affairs.
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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 Non-A$
Noteholders think fit.
(b) If the Note Trustee exercises reasonable care in the selection of a
delegate under paragraph (a), the Note Trustee shall not be required
to supervise the actions of the delegate and shall not in any way be
responsible for any loss incurred by reason of any misconduct or
default on the part of any delegate or sub-delegate. The Note Trustee
must within a reasonable time prior to any delegation or any renewal,
extension or termination of any delegation give notice of it to the
Trustee and each Designated Rating Agency.
16. Employment of agent by Note Trustee
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The Note Trustee may in the conduct of the trusts of this deed instead of
acting personally employ and pay an agent, whether being a lawyer or other
professional person, to transact or concur in transacting any business and
to do or concur in doing all acts required to be done in connection with
the trusts of this deed. So long as the Note Trustee exercises reasonable
care in the selection of that agent, the Note Trustee shall not be required
to supervise the actions of the agent and shall not in any way be
responsible for any loss incurred by reason of any misconduct or default on
the part of that agent.
Any trustee of this deed which is a lawyer, accountant, broker or other
person engaged in any profession or business is entitled to charge and be
paid all usual professional and other charges for business transacted and
acts done by him or his firm in connection with the trusts of this deed and
also his reasonable charges in addition to disbursements for all other work
and business done and all time spent by him or his firm in connection with
matters arising in connection with this deed. Those charges will be for the
account of the Note Trustee unless agreed otherwise who shall be reimbursed
by the Trustee under clause 12.
17. Note Trustee Contracting with Trustee
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Neither the Note Trustee nor any director or officer of a corporation
acting as a trustee under this deed, nor the Security Trustee, is by reason
of its or their fiduciary position in any way precluded from entering into
or being interested in any contract or financial or other transaction or
arrangement with the Trustee or any other party to any of the Transaction
Documents or any person or body corporate associated with the Trustee
including any contract, transaction or arrangement of a banking or
insurance nature or any contract, transaction or arrangement in relation to
the making of loans or the provision of financial facilities to or the
purchase, placing or underwriting of or subscribing or procuring
subscriptions for or otherwise acquiring holding or dealing with any Non-A$
Notes, Coupons or Talons 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
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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 Non-A$ Noteholders are not materially prejudiced and the
rights of the Non-A$ Noteholders to receive principal and interest in
respect of the Non-A$ 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 Non-A$ Notes (including the relevant Conditions), the
Coupons or any other Transaction Document (as to which evidence
of a breach of one Non-A$ Note in a Class shall be deemed
evidence of a breach of all Non-A$ 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 Non-A$ Noteholders
pursuant to an Extraordinary Resolution.
(b) Any waiver, authorisation or determination under this clause is
binding on the Non-A$ Noteholders and if, but only if, the Note
Trustee so requires, shall be notified by the Trustee to the Non-A$
Noteholders in accordance with the relevant Condition 12 as soon as
practicable.
19. Amendment
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19.1 Approval
The Note Trustee, the Trust Manager and the Trustee may, following the
giving of notice to each Designated Rating Agency, by way of supplemental
deed alter, add to or modify this deed (including this clause 19) or the
relevant Conditions so long as that alteration, addition or modification
is:
(a) to correct a manifest error or ambiguity or is of a formal, technical
or administrative nature only;
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(b) in the opinion of the Note Trustee necessary to comply with the
provisions of any law or regulation or with the requirements of any
Government Agency;
(c) in the opinion of the Note Trustee appropriate or expedient as a
consequence of an amendment to any law or regulation or altered
requirements of any Government Agency (including, without limitation,
an alteration, addition or modification which is in the opinion of the
Note Trustee appropriate or expedient as a consequence of the
enactment of a law or regulation or an amendment to any law or
regulation or ruling by the Commissioner or Deputy Commissioner of
Taxation or any governmental announcement or statement, in any case
which has or may have the effect of altering the manner or basis of
taxation of trusts generally or of trusts similar to the Trust); or
(d) in the opinion of the Note Trustee not materially prejudicial nor
likely to be materially prejudicial to the interests of the Non-A$
Noteholders as a whole or a Class of Non-A$ 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 Non-A$ Noteholders
as a whole or a Class of Non-A$ 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 Non-A$ Noteholders
or that Class of Non-A$ Noteholders (as the case may be).
19.3 Distribution of amendments
The Trust Manager shall distribute to all Non-A$ Noteholders a copy of any
amendments made under clause 19.1 or 19.2 under the relevant Condition 12
as soon as reasonably practicable after the amendment has been made.
19.4 Amendments binding
Any amendment under this clause is binding on the Non-A$ Noteholders.
19.5 Conformity with TIA
Every amendment of this deed executed pursuant to this clause 19 which
affects the US$ Notes or the US$ Noteholders shall conform to the
requirements of the TIA as then in effect so long as this deed shall then
be qualified under the TIA.
20. Non-A$ Noteholders
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20.1 Class A3 Noteholder as Couponholder
Wherever in this deed the Note Trustee is required or entitled to exercise
a power, trust, authority or discretion, then except as ordered by a court
of competent jurisdiction or as required by applicable law the Note Trustee
shall, despite express notice to the contrary, assume that each holder of a
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Definitive Note for a Class A3 Note is the holder of all Coupons and Talons
relating to that Definitive Note.
20.2 Notice
None of the Note Trustee, the Trustee or the Trust Manager is required to
give any notice to the Couponholders for any purpose under this deed or the
relevant Conditions and the Couponholders shall for all purposes be taken
to have notice of the contents of any notice given to the Class A3
Notholders under the relevant Condition 12.
20.3 Absolute Owner
(a) The Trustee, the Trust Manager, the Security Trustee, the Note Trustee
and any Paying Agent may treat:
(i) the registered holder of any Definitive Note for any US$ 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); and
(ii) the bearer of any Definitive Note for any Class A3 Note and the
bearer of any Coupon or Talon relating to that Class A3 Note as
the absolute owner of that Definitive Note, Coupon or Talon, as
the case may be, (whether or not that Definitive Note, Coupon or
Talon is overdue and despite any notation or notice to the
contrary or writing on it or any notice of previous loss or theft
of it or of trust or other interest in it),
for the purpose of making payment and for all purposes and none of the
Trustee, the Trust Manager, the Security Trustee, the Note Trustee or
any Paying Agent is affected by any notice to the contrary.
(b) So long as the Non-A$ Notes, or any of them, are represented by a
Global Note, the Trustee, the Trust Manager, the Security Trustee, the
Note Trustee and any Paying Agent may treat the person for the time
being shown in the records of the relevant Clearing Agency as the
holder of any Non-A$ Notes as the absolute owner of those Non-A$ Notes
and the Trustee, the Trust Manager, the Security Trustee, the Note
Trustee and the Paying Agents are not affected by any notice to the
contrary, but without prejudice to the entitlement of the registered
holder of a Class A2 Global Note or a Class B1 Global Note and the
bearer of a Class A3 Global Note to be paid principal and interest on
the relevant Global Note in accordance with its terms. Without
limitation, notices to the Non-A$ Noteholders may be given by delivery
of the relevant notice to the relevant Clearing Agency as the holder
of the Non-A$ 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:
(i) the registered holder of the Global Notes for the US$ Notes; and
(ii) the bearer of the Class A3 Global Note,
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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
Non-A$ Notes for so long as those Non-A$ 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 Non-A$ Note under this
clause (or, in the case of a Class A2 Global Note or a Class B1 Global
Note, to or to the order of the registered holder of that Global Note
or, in the case of a Class A3 Global Note, to or to the order of the
bearer of that Global Note) shall be valid and, to the extent of the
sums so paid, effective to satisfy and discharge the liability for the
moneys payable upon those Non-A$ Notes and Coupons (as the case may
be).
20.4 Clearing System Certificate
The Trustee, the Trust Manager, the Security Trustee and the Note Trustee
may call for and shall be at liberty to accept and place full reliance on
as sufficient evidence a certificate or letter or confirmation signed on
behalf of a Clearing Agency or any form of record made by it to the effect
that at any particular time or throughout any particular period any
particular person is, was, or will be, shown in its records as entitled to
a particular interest in a Global Note.
21. Currency Indemnity
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Subject to this deed, including clause 29, the Trustee indemnifies the Note
Trustee and the Non-A$ Noteholders and keeps them indemnified against:
(a) in the case of US$ Notes:
(i) any loss or damage incurred by any of them arising from the
non-payment by the Trustee of any US$ due to the Note Trustee or
the relevant US$ Noteholders under this deed or the relevant US$
Notes by reason of any variation in the rates of exchange between
those used for the purposes of calculating the amount due under a
judgment or order in respect of that payment, which amount is
expressed in a currency other than US$, and under which the Note
Trustee or the US$ Noteholders do not have an option to have that
judgment or order expressed in US$, and those prevailing at the
date of actual payment by the Trustee;
(ii) any deficiency arising or resulting from any variation in rates
of exchange between:
(A) the date (if any) as of which the non-US$ currency
equivalent of the US$ amounts due or contingently due under
this deed (other than this clause) or in respect of the
relevant US$ Notes is calculated for the purposes of any
bankruptcy, insolvency or liquidation of the Trustee; and
(B) the final date for ascertaining the amount of claims in that
bankruptcy, insolvency or liquidation provided that in that
bankruptcy, insolvency or liquidation claims are required to
be made in a currency other than US$; and
(b) in the case of Class A3 Notes:
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(i) any loss or damage incurred by any of them arising from the
non-payment by the Trustee of any Euros due to the Note Trustee
or the relevant Class A3 Noteholders under this deed or the
relevant Class A3 Notes by reason of any variation in the rates
of exchange between those used for the purposes of calculating
the amount due under a judgment or order in respect of that
payment, which amount is expressed in a currency other than
Euros, and under which the Note Trustee or the Class A3
Noteholders do not have an option to have that judgment or order
expressed in Euros, and those prevailing at the date of actual
payment by the Trustee;
(ii) any deficiency arising or resulting from any variation in rates
of exchange between:
(A) the date (if any) as of which the non-Euro currency
equivalent of the Euro amounts due or contingently due under
this deed (other than this clause) or in respect of the
relevant Class A3 Notes is calculated for the purposes of
any bankruptcy, insolvency or liquidation of the Trustee;
and
(B) the final date for ascertaining the amount of claims in that
bankruptcy, insolvency or liquidation provided that in that
bankruptcy, insolvency or liquidation claims are required to
be made in a currency other than Euros.
The amount of that deficiency shall not be reduced by any variation in
rates of exchange occurring between that final date and the date of
any distribution of assets in connection with that bankruptcy,
insolvency or liquidation.
(c) The indemnities in this clause are obligations of the Trustee separate
and independent from its obligations under the relevant Non-A$ Notes
and Coupons and apply irrespective of any time or indulgence granted
by the Note Trustee or the relevant Non-A$ Noteholders from time to
time and shall continue in full force and effect despite the judgment
or filing of any proof or proofs in any bankruptcy, insolvency or
liquidation of the Trustee for a liquidated sum or sums in respect of
amounts due under this deed (other than this clause) or the relevant
Non-A$ Notes or Coupons. Any deficiency will constitute a loss
suffered by the relevant Non-A$ 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 Non-A$ Noteholders. One or more persons may
hold office as Note Trustee or Note Trustees of this deed but that Note
Trustee or those Note Trustees must be or include a Trust Corporation.
Whenever there are more than two Note Trustees of this deed the majority of
those Note Trustees are competent to execute and exercise all the duties,
powers, trusts, authorities and discretions vested in the Note Trustee by
this deed if a Trust Corporation is included in that majority.
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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 Non-A$
Noteholders (in accordance with the relevant 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 Non-A$ Noteholders;
(ii) for the purposes of conforming to any legal requirements,
restrictions or conditions in any jurisdiction in which any
particular act or acts is or are to be performed; or
(iii) for the purposes of obtaining a judgment in any jurisdiction or
the enforcement in any jurisdiction of either a judgment already
obtained or any of the provisions of this deed against the
Trustee.
(b) Subject to the provisions of this deed, a person appointed under
paragraph (a) has all trusts, rights, powers, authorities and
discretions (not exceeding those conferred on the Note Trustee by this
deed) and all duties and obligations conferred or imposed by the
instrument of appointment.
(c) Subject to this deed, all trusts, rights, powers, authorities,
discretions, duties and obligations conferred or imposed upon the Note
Trustee shall be conferred or imposed upon and exercised or performed
by the Note Trustee and a person appointed under paragraph (a) jointly
(it being understood that such separate Note Trustee or co-Note
Trustee is not authorised to act separately without the Note Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
the Note Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such trusts, rights, powers, authorities,
discretions, duties and obligations shall be exercised and performed
solely by such separate Note Trustee or co-Note Trustee, but only at
the direction of the Note Trustee.
(d) The Note Trustee may remove or accept the resignation of any person
appointed under this clause. The remuneration of any person appointed
under this clause together with any costs, charges and expenses
properly incurred by it in performing its function as Note Trustee or
co-Note Trustee will be costs, charges and expenses incurred by the
Note Trustee under this deed which shall be reimbursed by the Trustee
under clause 12.
22.3 Notice
The Note Trustee shall notify each Designated Rating Agency of any
appointment of a new Note Trustee or its retirement or removal as soon as
practicable.
22.4 Requirement for Note Trustee
Notwithstanding anything in this deed to the contrary, no person shall
become a Note Trustee under this deed unless it meets the requirements of
Section 26(a)(1) of the United States Investment Company Act of 1940, as
amended (the Investment Company Act).
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23. Note Trustee's Retirement and Removal
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23.1 Removal by Trustee
The Trustee (or the Trust Manager on its behalf after informing the Trustee
of its intention to do so) may at any time terminate the appointment of the
Note Trustee by giving written notice to that effect to each Designated
Rating Agency and the Note Trustee with effect immediately on that notice,
if any of the following occurs in relation to the Note Trustee:
(a) an Insolvency Event has occurred in relation to the Note Trustee;
(b) the Note Trustee has ceased its business;
(c) the Note Trustee fails to comply with any of its obligations under any
Transaction Document and such failure has had or, if continued will
have, a Material Adverse Effect (as determined by the Trustee), and,
if capable of remedy, the Note Trustee does not remedy within 14 days
after the earlier of:
(i) the Note Trustee becoming aware of that failure; and
(ii) receipt by the Note Trustee of a written notice with respect
thereto from either the Trustee or the Trust Manager; or
(d) the Note Trustee fails to satisfy any obligation imposed on it under
the TIA with respect to the Trust or this deed or comply with clause
23.6.
23.2 Removal by Non-A$ Noteholders
The Non-A$ Noteholders may resolve by Extraordinary Resolution to require
the Trustee to remove the Note Trustee or Note Trustees for the time being
of this deed.
23.3 Resignation
(a) Subject to this clause 23, the Note Trustee may resign its appointment
under this deed at any time by giving to the Trustee, the Trust
Manager, the Security Trustee and each Designated Rating Agency not
less than 3 months written notice to that effect. Notwithstanding the
preceding sentence, the Note Trustee shall not resign its appointment
under this deed until a successor Note Trustee meeting the
requirements set forth in clauses 22.4 and 23.6 has been appointed and
has accepted its appointment as Note Trustee under this deed as
provided in clause 23.5.
(b) Subject to this deed, if a successor Note Trustee has not accepted its
appointment within 30 days after:
(i) the Note Trustee has given notice of its resignation in
accordance with paragraph (a); or
(ii) the removal of the Note Trustee under clause 23.1 or 23.2,
the Note Trustee may petition (the cost of which shall be an Expense
of the Trust) any court of competent jurisdiction for the appointment
of a successor Note Trustee.
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23.4 Trust Corporation
Each of the Trustee and the Trust Manager undertakes that if the only Note
Trustee which is a Trust Corporation retires or is removed it will use
reasonable endeavours to appoint a new Note Trustee of this deed which is a
Trust Corporation as soon as reasonably practicable. The retirement or
removal of any Note Trustee shall not become effective until a successor
Note Trustee which is a Trust Corporation is appointed. The Trust Manager
must assist the Trustee to appoint a new Note Trustee of this deed. If the
Trustee fails to appoint a new Note Trustee within three months from such
retirement or removal, the Note Trustee shall be entitled to appoint a new
Note Trustee which is a Trust Corporation and such appointment shall be
deemed to have been made under clause 22.2 of this deed.
23.5 Successor to Note Trustee
(a) On the execution by the Trustee, the Trust Manager and any successor
Note Trustee of an instrument effecting the appointment of that
successor Note Trustee, that successor Note Trustee shall, without any
further act, deed or conveyance, become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of the
predecessor Note Trustee with effect as if originally named as Note
Trustee in this deed and the Transaction Documents and that
predecessor Note Trustee, on payment to it of the pro rata proportion
of its fee and disbursements then unpaid (if any), shall have no
further liabilities under this deed, except for any accrued
liabilities arising from or relating to any act or omission occurring
prior to the date on which the successor Note Trustee is appointed.
(b) Any corporation:
(i) into which the Note Trustee is merged;
(ii) with which the Note Trustee is consolidated;
(iii) resulting from any merger or consolidation to which the Note
Trustee is a party;
(iv) to which the Note Trustee sells or otherwise transfers all or
substantially all the assets of its corporate trust business,
shall, on the date when that merger, conversion, consolidation, sale
or transfer becomes effective and to the extent permitted by
applicable law, become the successor Note Trustee under this deed
without the execution or filing of any agreement or document or any
further act on the part of the parties to this deed, unless otherwise
required by the Trustee or the Trust Manager, and after that effective
date all references in this deed to the Note Trustee shall be
references to that corporation.
(c) If no other person can be found to act as Note Trustee, the Non-A$
Noteholders may elect a Note Trustee from among the holders of the
Non-A$ Notes.
23.6 Eligibility; Disqualification
(a) The Note Trustee shall at all times satisfy the requirements of
section 310(a) of the TIA.
(b) The Note Trustee shall have a combined capital and surplus (as those
terms are used in the TIA) of at least US$50,000,000 as set forth in
its most recent published annual report of condition.
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(c) The Note Trustee shall comply with section 310(b) of the TIA, provided
that any indenture or indentures under which other securities of the
Trustee are outstanding shall be excluded from the operation of
section 310(b)(1) of the TIA for the purposes of paragraph (b) if the
requirements for such exclusion set out in section 310(b)(1) of the
TIA are met.
24. Note Trustee's Powers Additional
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The powers conferred upon the Note Trustee by this deed shall be in
addition to any powers which may from time to time be vested in the Note
Trustee by the general law or as a holder of any of the Non-A$ Notes,
Coupons or Talons.
25. Severability of provisions
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Any provision of this deed which is prohibited or unenforceable in any
jurisdiction is ineffective as to that jurisdiction to the extent of the
prohibition or unenforceability. That does not invalidate the remaining
provisions of this deed nor affect the validity or enforceability of that
provision in any other jurisdiction.
26. Notices
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26.1 General
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this deed:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) subject to paragraph (d), will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when delivered,
received or left at the address of the recipient shown in clause
26.2 or to any other address which may have been notified by the
recipient to the sender under this clause 26;
(ii) (in the case of facsimile transmission) on receipt of a
transmission report confirming successful transmission to the
number shown in clause 26.2 or any other number notified by the
recipient to the sender under this clause 26; and
(iii) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission to
the number shown in clause 26.2 or any other number notified by
the recipient to the sender under this clause 26,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is sent
or is later than 4.00 pm (local time), it will be taken to have been
duly given or made at the commencement of business on the next day on
which business is generally carried on in that place. Any party may by
notice to each party change its address, facsimile and telex under
this clause 26.1.
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(d) For the purposes of paragraph (c), all notices, requests, demands,
consents, approvals, agreements or other communications to the Note
Trustee must be given or made by facsimile transmission.
26.2 Details
The address, facsimile and telex of each person to whom notices may be sent
at the date of this deed are as follows:
The Trustee
PERPETUAL TRUSTEES VICTORIA LIMITED
Level 7
9 Castlereagh Street
Sydney NSW 2000
Australia
Tel: 61 2 9229 9000
Fax: 61 2 9221 7870
Attention: Manager, Securitisation
The Trust Manager
INTERSTAR SECURITISATION MANAGEMENT PTY LIMITED
Level 28
367 Collins Street
Melbourne VIC 3000
Australia
Tel: 61 3 9612 1111
Fax: 61 3 9621 2368
Attention: Chief Executive Officer
The Note Trustee
[THE BANK OF NEW YORK, NEW YORK BRANCH
101 Barclay Street
21W
New York New York 10286
United States
Tel: +1 212 815 5347
Telex: N/A
Fax: +1 212 815 5915/5917
Attention: Corporate Trust - Global Structured Finance]
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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 (in each case, to the extent they relate
to US$ Notes or US$ Noteholders) by the law of the State of New York and
(in each case, to the extent they relate to Class A3 Notes or Class A3
Noteholders) by the laws of England and Wales, 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 or of England and Wales (as
the case may be) in respect of the application of those powers and that
standard of care, the law of the State of New York or of England and Wales
(as the case may be) will prevail to the extent of the inconsistency.
28. Counterparts
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This deed may be executed in any number of counterparts. All counterparts
together will be taken to constitute one instrument.
29. Limited Recourse
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29.1 General
Clause 32 of the Master Trust Deed (as amended by the Series Notice)
applies to the obligations and liabilities of the Trustee and the Trust
Manager under this deed.
29.2 Liability of Trustee limited to its right of Indemnity
Without limiting the generality of clause 29.1, clause 32.16 of the Master
Trust Deed (as amended by the Series Notice) is incorporated into this
agreement as if set out in full, except that any reference to Trust refers
to the Trust.
29.3 Unrestricted remedies
Nothing in this clause 29 limits a party in:
(a) obtaining an injunction or other order to restrain any breach of this
agreement by any party;
(b) obtaining declaratory relief; or
(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);
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(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.
31. Indemnity 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 the Trustee or, if another
person is expressly stated in the relevant provision in a Transaction
Document, that person shall indemnify the Note Trustee for any costs and
expenses properly incurred by and payable to those advisors.
32. No liability
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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
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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 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 Non-A$ Notes or
the relevant Conditions and the Note Trustee is not bound in any such case
to call for further evidence.
The Note Trustee shall not incur any liability in respect of any action
taken or thing suffered by it in reliance on any notice, resolution,
direction, consent, certificate, receipt, affidavit, statement, valuation
report or other document (including any of the above submitted or provided
by the Trust Manager, a Noteholder or the Trustee) which it has no reason
to believe is not genuine, signed by the proper parties and with
appropriate authority.
In preparing any notice, certificate, advice or proposal the Note Trustee
shall be entitled to assume that each person under any Authorised
Investment, Support Facility, Mortgage, Loan, other Transaction Document or
any other deed, agreement or arrangement incidental to any of the above or
to any Trust, will perform their obligations under those documents in full
by the due date and otherwise in accordance with their terms.
34.2 Note Trustee's reliance on Trust Manager or Security Trustee
(a) (Authorised Signatories are sufficient evidence) Subject to clause
13.2, whenever any certificate, notice, proposal, direction,
instruction or other communication is to be given by the Trust Manager
or the Security Trustee to the Note Trustee, the Note Trustee may
accept as sufficient the form and content of a document unless it has
reason to believe that the relevant document was not signed on behalf
of the Trust Manager or the Security Trustee (as the case may be) or
by any Authorised Signatory of the Trust Manager or the Security
Trustee (as the case may be).
(b) (Note Trustee not liable for loss) The Note Trustee shall not be
responsible for any loss arising from any act, neglect, mistake or
discrepancy of the Trust Manager or the Security Trustee or any
officer, employee, agent or delegate of the Trust Manager or the
Security Trustee in preparing any such document or in compiling,
verifying or calculating any matter or information contained in any
such document, if the officers of the Note Trustee responsible for the
administration of the Trust are not actually aware that such document
is not genuine and correct, whether or not an error in any such
information, document, form or list is reproduced by the Note Trustee
in any step taken by it.
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34.3 Compliance with laws
The Note Trustee shall not incur any liability to anyone in respect of any
failure to perform or to do any act or thing which by reason of any
provision of any relevant present or future law of any place or any
ordinance, rule, regulation or by law or of any decree, order or judgement
of any competent court or other tribunal, the Note Trustee shall be
hindered, prevented or forbidden from doing or performing.
34.4 Reliance on experts
The Note Trustee may act on the opinion or statement or certificate or
advice of or information obtained from the Security Trustee, attorneys,
barristers or solicitors (whether instructed by the Note Trustee or not),
bankers, accountants, brokers, valuers and other persons believed by it in
good faith to be expert or properly informed in relation to the matters on
which they are consulted and the Note Trustee shall not be liable for
anything done or suffered by it in good faith in reliance on such opinion,
statement, certificate, advice or information.
34.5 Oversights of others
Subject to this deed, the Note Trustee shall not be responsible for any
act, omission, misconduct, mistake, oversight, error of judgement,
forgetfulness or want of prudence on the part of any attorney, banker,
receiver, barrister, solicitor, agent, any person or agent appointed by the
Note Trustee and on whom the Note Trustee is entitled to rely under this
deed (other than a Related Corporation) or other person acting as agent or
advisor to the Note Trustee.
34.6 Impossibility or impracticability
If for any reason whatsoever it becomes impossible or impracticable to
carry out any or all of the provisions of this deed or any other
Transaction Document, the Note Trustee shall not be under any liability nor
shall it incur any liability by reason of any error of law or any matter or
thing done or suffered or omitted to be done in good faith by it or its
officers, employees, agents or delegates except to the extent of its own
fraud, negligence or wilful default.
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:
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(iii) has been approved in advance by an Extraordinary Resolution of
the Non-A$ Noteholders; or
(iv) the Note Trustee reasonably considers the incurring of those
costs, disbursements, outgoings and expenses to be necessary to
protect the Note Trustee against potential personal liability.
(b) (Defence of proceedings alleging negligence, etc.) The Note Trustee
shall be entitled to claim in respect of the above indemnity from the
Trust for its expenses and liabilities incurred in defending any
action, suit, proceeding or dispute in which fraud, negligence or
wilful default is alleged or claimed against it, but on the same being
proved, accepted or admitted by it, it shall from its personal assets
immediately repay to the Trust the amount previously paid by the Trust
to it in respect of that indemnity.
34.8 No liability except for negligence etc.
In the absence of fraud, negligence or wilful default on the Note Trustee's
part or on the part of any of its officers or employees, or any agent or
delegate, sub-agent, sub-delegate employed by the Note Trustee in
accordance with this deed (and where this deed provides that the Note
Trustee is liable for the acts or omissions of any such person) to carry
out any transactions contemplated by this deed, the Note Trustee shall not
be liable personally for any losses, costs, liabilities or claims arising
from the failure to pay moneys on the due date for payment to any
Noteholder or any other person or for any loss howsoever caused in respect
of the Trust or to any Noteholder or other person.
34.9 Further limitations on Note Trustee's liability
Subject to clause 34.2, the Note Trustee shall not be liable:
(a) (for loss on direction) for any losses, costs, damages or expenses
caused by its acting (in circumstances where this deed requires it to
act or contemplates that it may so act) on any instruction or
direction given to it by:
(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;
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(e) (for acts of Calculation Agent) without limiting the Note Trustee's
obligations or powers under the Transaction Documents, for any act,
omission or default of the Calculation Agent in relation to its
obligations under the Transaction Documents;
(f) (for failure to carry out an agreement) for the failure of a person to
carry out an agreement with the Note Trustee in connection with the
Trust; or
(g) (for failure to check calculations, etc) for any losses, costs,
liabilities or expenses caused by the Note Trustee's failure to check
any calculation, information, document, form or list supplied or
purported to be supplied to it by the Trust Manager or the Security
Trustee,
except, in the case of paragraph (g), to the extent that it is caused by
the fraud, negligence or breach of trust of the Note Trustee.
Nothing in this clause 34.9 alone (but without limiting the operation of
any other clause of this deed) shall imply a duty on the Note Trustee to
supervise the Trust Manager or the Security Trustee in the performance of
the Trust Manager's or the Security Trustee's functions and duties, and the
exercise by the Trust Manager or the Security Trustee of its discretions.
34.10 Conflicts
(a) (No conflict) Nothing in this deed shall prevent the Note Trustee, the
Trustee, any Dealer, the Trust Manager, the Security Trustee or any
Related Corporation or Associate of any of them or their directors or
other officers (each a Relevant Person) from:
(i) subscribing for purchase, holding, dealing in or disposing of any
Notes;
(ii) entering into any financial, banking, development, insurance,
agency, broking or other transaction with, or providing any
advice or services for the Trust; or
(iii) being interested in any such contract or transaction or
otherwise at any time contracting or acting in any capacity as
representative or agent,
provided that notwithstanding anything else in this deed to the
contrary, the Note Trustee agrees that it shall not offer or provide
credit enhancement to the Trust.
(b) (Not liable to account) A Relevant Person shall not be in any way
liable to account to any Noteholder or any other person for any
profits or benefits (including any profit, bank charges, commission,
exchange, brokerage and fees) made or derived under or in connection
with any transaction or contract specified in paragraph (a) above.
(c) (Fiduciary relationship) A Relevant Person shall not by reason of any
fiduciary relationship be in any way precluded from making any
contracts or entering into any transactions or arrangements with the
Trustee or any other party to any of the Transaction Documents in the
ordinary course of the business or from undertaking any banking,
financial, development, agency or other services including any
contract or transaction in relation to the placing of or dealing with
any investment and the acceptance of any office or profit or any
contract of loan or deposits or other contract or transaction which
any person or company not being a party to this deed could or might
have lawfully entered into if not a party to this deed. A Relevant
Person shall not be accountable to any Noteholder or any other person
for any profits arising from any such contracts, transactions or
offices.
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34.11 Information
Except for notices and other documents and information (if any) expressed
to be required to be furnished to any person by the Note Trustee under this
deed or any other Transaction Document, the Note Trustee shall not have any
duty or responsibility to provide any person (including any Noteholder)
with any credit or other information concerning the affairs, financial
condition or business of the Trust.
34.12 Investigation by Note Trustee
Each Noteholder acknowledges that:
(a) the Note Trustee has no duty, and is under no obligation, to
investigate whether a Trust Manager's Default has occurred in relation
to the Trust other than where it has actual notice;
(b) in making any determination, the Note Trustee may seek and rely on
advice given to it by its advisors in a manner contemplated by this
deed.
35. Noteholders' Lists and Reports
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35.1 Provision of information
The 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 US$ Noteholders
(a) The Note Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the US$ Noteholders contained
in the most recent list (if any) furnished to the Note Trustee as
provided in clause 35.1 and if it acts as Note Registrar, the names
and addresses of US$ Noteholders received by the Note Trustee in its
capacity as Note Registrar. The Trustee may destroy any list furnished
to it as provided in such clause 35.1 upon receipt of a new list so
furnished.
(b) US$ Noteholders may communicate pursuant to section 312(b) of the TIA
with other US$ Noteholders with respect to their rights under this
deed or under the US$ Notes.
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(c) The Trustee, Note Trustee and Note Registrar shall have the protection
of section 312(c) of the TIA.
35.3 Reports by Note Trustee
If required by section 313(a) of the TIA, within 60 days after each 30
June, beginning with 30 June 2003, the Note Trustee shall mail to each 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 Non-A$ Noteholders; Waiver
(a) Where this deed provides for notice to Non-A$ 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 Non-A$ Notes are listed on the Australian
Stock Exchange, published in a leading newspaper having general
circulation in Australia. Each such notice will be deemed to be
given on the date of the first publication; or
(ii) in relation to any notice specifying a Payment Date, an Interest
Rate, any Interest payable, any Principal Payment (or the absence
of a Principal Payment) or the Principal Amount of any Non-A$
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 Non-A$ Noteholders.
Such notice will be deemed to be given on the first date on which
it appears on the relevant electronic reporting service.
(b) If, for any reason, it is impractical to give notice in the manner
provided in clause 35.4(a)(ii), then the manner of giving notice
referred to in clause 35.4(a)(i) shall be deemed to be a sufficient
giving of notice.
(c) Where this deed provides for notice in any manner, such notice may be
waived in writing by any person entitled to receive such notice,
either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by US$ Noteholders shall
be filed with the Note Trustee but such filing shall not be a
condition precedent to the validity of any action taken in reliance
upon such a waiver.
35.5 Reports by Trustee
The Trustee (or the Trust Manager on its behalf) shall:
(a) file with the Note Trustee, within 15 days after the Trustee is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
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time to time by rules and regulations prescribe) which the Trustee may
be required to file with the Commission pursuant to section 13 or
15(d) of the Exchange Act;
(b) file with the Note Trustee and the Commission in accordance with rules
and regulations prescribed from time to time by the Commission such
additional information, documents and reports with respect to
compliance by the Trustee with the conditions and covenants of this
deed as may be required from time to time by such rules and
regulations; and
(c) supply to the Note Trustee (and the Note Trustee shall transmit by
mail to all US$ Noteholders described in section 313(c) of the TIA)
such summaries of any information, documents and reports required to
be filed by the Trustee pursuant to clauses (a) and (b) of this clause
35.5 as may be required by rules and regulations prescribed from time
to time by the Commission.
36. Trust Indenture Act - Miscellaneous
- --------------------------------------------------------------------------------
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
Non-A$ Noteholder by such Non-A$ Noteholder's acceptance thereof shall
be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under
this deed, or in any suit against the Note Trustee for any action
taken, suffered or omitted by it as the Note Trustee, the filing by
any party litigant in such suit of an
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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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 Non-A$ Noteholder, or group of Non-A$
Noteholders in each case holding in the aggregate more than 10%
of the Total Principal Amount of the Non-A$ Notes; or
(iii) any suit instituted by any Non-A$ Noteholder for the enforcement
of the payment of principal or interest on any Non-A$ Note on or
after the respective due dates expressed in such Non-A$ Note and
in this deed (or, in the case of final redemption of a Non-A$
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 Non-A$ 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 Non-A$ Notes which the Note
Trustee knows are so owned shall be so disregarded.
36.4 Unconditional Rights of Non-A$ Noteholders to Receive Principal and
Interest
Notwithstanding any other provisions in this deed, any Non-A$ Noteholder
shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Non-A$ Note on or
after the respective due dates thereof expressed in such Non-A$ 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
Non-A$ 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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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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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 LOGO]
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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 Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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Note Trustee, Principal Paying Agent, Calculation Agent and Note Registrar
Executed as a deed by [The Bank of New
York, New York branch] in the presence of:
- ----------------------------------------- ------------------------------------
Witness Signature Signature
- ----------------------------------------- ------------------------------------
Print Name Print Name
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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Schedule 1
Part A
Form of Global Note - US$ Notes
- --------------------------------------------------------------------------------
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 BOND FOR THE PURPOSES OF SECTION 128F(10) OF THE
INCOME TAX ASSESSMENT ACT 1936 OF THE COMMONWEALTH OF AUSTRALIA.
PERPETUAL TRUSTEES VICTORIA LIMITED
(ABN 47 004 027 258)
(a limited liability company incorporated under the Commonwealth of Australia)
in its capacity as trustee of the Interstar Millennium Series 2003-3G Trust
(the "Trust")
CLASS [A2/B1] GLOBAL NOTE
representing
US$[*]
Class [A2/B1] Secured Floating Rate Notes Due [[*] 2035]
This Note certifies that Cede & Co is the registered holder of this Note and
that this Note is a Global Note without principal or interest coupons in respect
of a duly authorised issue of Notes of Perpetual Trustees Victoria Limited in
its capacity as trustee of the Interstar Millennium Series 2003-3G Trust (the
"Issuer"), designated as specified in the title above (the "Notes"), in an
initial aggregate Principal Amount of US$[*] ([*] 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 [*] 2003, by a Series Notice (the "Series Notice") dated
[*] 2003 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 Non-A$ Notes (the "Non-A$
Noteholders") and the Trust Manager and by the Conditions (as defined below);
(b) constituted by a Note Trust Deed dated [*] 2003 (the "Note Trust Deed")
between (among others) the Issuer, the Trust Manager,
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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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 [*] 2003 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 Part A of 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(a) of the
Note Trust Deed, this Global Note may be exchanged in whole by registration on
the Note Register for Definitive Notes of Class [A2/B1] 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(a) of
the Note Trust Deed.
The Issuer in its capacity as trustee of the Trust subject to this Global Note
and subject to and in accordance with the Conditions and the Note Trust Deed
promises to pay to the registered holder of this Global Note the principal sum
of US$[*] ([*] United States Dollars) or such lesser amount as may from time to
time be represented by this Global Note (or such part of that amount as may
become repayable under to the Conditions, the Series Notice and the Note Trust
Deed) on such date(s) that that principal sum (or any part of it) becomes
repayable in accordance with the Conditions, the Series Notice and the Note
Trust Deed and to pay interest in arrears on each Payment Date (as defined in
Condition 4) on the Principal Amount of this Global Note at rates determined in
accordance with Condition 4 and all subject to and in accordance with the
certification requirements described in this Global Note, the Conditions, the
Series Notice and the Note Trust Deed, which shall be binding on the registered
holder of this Global Note (as if references in the Conditions to the Notes and
the Noteholders were references to this Global Note and the registered holder of
this Global Note respectively and as if the same had been set out in this Global
Note in full with all necessary changes, except as otherwise provided in this
Global Note).
Interest and principal on this Global Note will be payable under this Global
Note in accordance with the relevant Conditions. Each of the persons appearing
from time to time in the records of DTC as the holder of a Class [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 LOGO]
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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 2003-3G 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, the Note Trustee 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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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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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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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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Schedule 1
Part B
Form of Temporary Class A3 Global Note
- --------------------------------------------------------------------------------
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE) WHO HOLDS
THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF
THE INTERNAL REVENUE CODE.
THIS OBLIGATION HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN CONTRAVENTION OF THAT
ACT.
THIS GLOBAL NOTE IS A GLOBAL BOND FOR THE PURPOSES OF SECTION 128F(10) OF THE
INCOME TAX ASSESSMENT ACT 1936 OF THE COMMONWEALTH OF AUSTRALIA.
PERPETUAL TRUSTEES VICTORIA LIMITED
(ABN 47 004 027 258)
(a limited liability company incorporated under the Commonwealth of Australia)
in its capacity as trustee of the Interstar Millennium Series 2000-3G Trust
(the "Trust")
TEMPORARY CLASS A3 GLOBAL NOTE
representing
(euro)[*]
Class A3 Mortgage Backed Pass Through Floating Rate Notes Due [[*] 2035]
This Note is a Temporary Class A3 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
2003-3G Trust (the "Issuer"), designated as specified in the title above (the
"Notes"), in an initial aggregate Principal Amount of (euro)[*] ([*]) and (a)
issued pursuant to a Master Trust Deed (the "Master Trust Deed") dated 2
December 1999 between the Issuer 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 [*] 2003, by a
Series Notice (the "Series Notice") dated [*] 2003 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 Non-A$ Notes (the "Non-A$ Noteholders") and the Trust Manager and
by the Conditions (as defined below); (b) constituted by a Note Trust Deed dated
[*] 2003 (the "Note Trust Deed") between (among others) the Issuer, the Trust
Manager and the Note Trustee; and (c) secured by a Security Trust Deed (the
"Security Trust Deed") dated [*] 2003 between the Issuer, the Trust Manager, the
Note Trustee and Perpetual Trustee Company Limited (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
A3 Notes (or that particular one of them) set out in Part B of schedule 5 to the
Note Trust Deed but with the deletion of those provisions which are applicable
only to Class A3
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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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(b) of the
Note Trust Deed, this Temporary Class A3 Global Note will be exchangeable in
whole or in part upon the request of the bearer for a Permanent Class A3 Global
Note substantially in the form set out in Part C of schedule 1 to the Note Trust
Deed only on and subject to the terms and conditions set out below and in the
Note Trust Deed. The Issuer is not obliged to issue Definitive Notes for the
Class A3 Notes until the later of:
(i) the expiry of 40 days after the Closing Date (provided certification of
non-US beneficial ownership by the relevant Noteholder is received by
Euroclear or Clearstream, Luxembourg); and
(ii) 30 days after it becomes aware of the occurrence of an event set out in
clause 3.3(b) of the Note Trust Deed.
The Issuer, in its capacity as trustee of the Trust, subject to this Temporary
Class A3 Global Note and subject to and in accordance with the Conditions and
the Note Trust Deed promises to pay to the bearer of this Temporary Class A3
Global Note the principal sum of (euro)[*] ([*]) or such lesser amount as may
from time to time be represented by this Temporary Class A3 Global Note (or such
part of that amount as may become repayable under the Conditions, the Series
Notice and the Note Trust Deed) on such date(s) that that principal sum (or any
part of it) becomes repayable in accordance with the Conditions, the Series
Notice and the Note Trust Deed and to pay interest in arrears on each Payment
Date (as defined in Condition 4) on the Principal Amount (as defined in
Condition 5(a)) of this Temporary Class A3 Global Note at rates determined in
accordance with Condition 4 and all subject to and in accordance with the
certification requirements described in this Temporary Class A3 Global Note, the
Conditions, the Series Notice and the Note Trust Deed, which shall be binding on
the bearer of this Temporary Class A3 Global Note (as if references in the
Conditions to the Notes and the Noteholders were references to this Temporary
Class A3 Global Note and the bearer of this Temporary Class A3 Global Note
respectively and as if the same had been set out in this Temporary Class A3
Global Note in full with all necessary changes, except as otherwise provided in
this Temporary Class A3 Global Note).
Interest and principal on this Temporary Class A3 Global Note will be payable
against presentation of this Temporary Class A3 Global Note by the relevant
Common Depository to the Principal Paying Agent provided that: (i) (subject to
the provisions of Condition 6(b)) no payment of interest on this Temporary Class
A3 Global Note may be made by, or upon presentation of this Temporary Class A3
Global Note to, the Issuer or any Paying Agent in the United States of America;
and (ii) certification of non-US beneficial ownership by the Class A3
Noteholders has been received by Euroclear or Clearstream, Luxembourg as
described below. Each of the persons appearing from time to time in the records
of Morgan Guaranty Trust Company of New York, Brussels office, as operator of
Euroclear, or of Clearstream Banking, societe anonyme, as the holder of a Class
A3 Note will be entitled to receive any payment so made in respect of that Class
A3 Note in accordance with the respective rules and procedures of Euroclear or,
as the case may be, Clearstream, Luxembourg. Such persons will have no claim
directly against the Issuer in respect of payments due on the Class A3 Notes
which must be made by the holder of this Temporary Class A3 Global Note, for so
long as this Temporary Class A3 Global Note is outstanding.
Payments of interest (if any) on any portion of this Temporary Class A3 Global
Note with respect to any beneficial interest(s) in this Temporary Class A3
Global Note and due to be made prior to the date or dates on which pertinent
beneficial interests in this Temporary Class A3 Global Note (or any portion of
it) are exchanged for a Permanent Class A3 Global Note (as provided below),
which date or dates shall be no earlier
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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than the Exchange Date (as defined below), may, at the direction of the bearer
of this Temporary Class A3 Global Note, be made on each due date for that
payment to Euroclear and/or Clearstream, Luxembourg for credit to the accounts
of the persons appearing in the records of Euroclear and/or Clearstream,
Luxembourg as having Class A3 Notes credited to them PROVIDED THAT any such
payment shall only be made in respect of those Notes in relation to which there
has been presented to [The Bank of New York, New York Branch] in its capacity as
principal paying agent in respect of the Non-A$ Notes (the "Principal Paying
Agent") at its office at [*] (or such other place outside the United States of
America , and any of its territories, and possessions and other areas subject to
its jurisdictions as the Note Trustee may agree), a certificate in the form set
out in Exhibit A from Euroclear and/or Clearstream, Luxembourg, as the case may
be, to the effect that it has received from or in respect of those persons a
certificate or certificates in the form of Exhibit B. Otherwise, no interest
will be paid on any of this Temporary Class A3 Global Note until this Temporary
Class A3 Global Note (or portion of it) is exchanged for a Permanent Class A3
Global Note, at which time the certificates in the forms set out in Exhibits A
and B, respectively, shall be presented as set out above.
On any payment of principal and/or interest on the Class A3 Notes as set out
above, details of that payment shall be endorsed by or on behalf of the Issuer
on Item 1 hereto and, in the case of payments of principal, the Principal Amount
of the Class A3 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.
On or after the date (the "Exchange Date") which is 40 days after the Closing
Date, this Temporary Class A3 Global Note may be exchanged in whole or in part
for a Permanent Class A3 Global Note in the form of Part C of schedule 1 to the
Note Trust Deed upon presentation of this Temporary Class A3 Global Note by its
bearer to the Principal Paying Agent at its offices at [*] (or such other place
outside the United States of America, and any of its territories and possessions
and other areas subject to its jurisdictions as the Note Trustee may agree). The
Permanent Class A3 Global Note shall be so delivered in exchange for only that
portion of this Temporary Class A3 Global Note in respect of which there is
presented to the Principal Paying Agent by Euroclear or Clearstream, Luxembourg
a certificate, in the form set out, to the effect that it has received from or
in respect of a person or persons entitled to a Class A3 Note or Class A3 Notes
to which this Temporary Class A3 Global Note relates comprising or comprised in
that portion (as shown by its records) a certificate or certificates from that
person or those persons in or substantially in the form of Exhibit B. On an
exchange of part only of this Temporary Class A3 Global Note for the Permanent
Class A3 Global Note, details of that exchange shall be entered by or on behalf
of the Issuer in Item 2 and the relevant space in Item 2 recording that exchange
shall be signed by or on behalf of the Issuer, following which the Principal
Amount of the Class A3 Notes to which this Temporary Class A3 Global Note
relates shall be reduced for all purposes by the Principal Amount so exchanged
and endorsed and Item 2 to the Permanent Class A3 Global Note shall be marked
accordingly by or on behalf of the Issuer following which the Principal Amount
of the Permanent Class A3 Global Note shall be increased by that amount. On an
exchange of the whole of this Temporary Class A3 Global Note, this Temporary
Class A3 Global Note shall be surrendered to the Principal Paying Agent. If,
following the issue of a Permanent Class A3 Global Note in exchange for this
Temporary Class A3 Global Note, further Notes are to be exchanged under this
paragraph, that exchange may be effected, without the issue of a new Permanent
Class A3 Global Note, by the Principal Paying Agent endorsing the schedule of
the Permanent Class A3 Global Note previously issued to reflect an increase in
the aggregate Principal Amount of that Permanent Class A3 Global Note by an
amount equal to the aggregate Principal Amount of the Permanent Class A3 Global
Note which would otherwise have been issued on that exchange.
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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Any certificate referred to in this Temporary Class A3 Global Note which is
delivered by Euroclear or Clearstream, Luxembourg may be relied upon by the
Issuer, the Note Trustee, the Trust Manager and the Principal Paying Agent as
conclusive evidence that the corresponding certification or certifications have
been delivered to Euroclear or Clearstream, Luxembourg, as the case may be, as
contemplated by the terms of this Temporary Class A3 Global Note.
This Temporary Class A3 Global Note shall not become valid for any purpose
unless and until the Certificate of Authentication attached has been signed by
an Authorised Signatory of the Principal Paying Agent (as defined in the Series
Notice).
This Temporary Class A3 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 Temporary Class A3 Global Note to be
signed by a person duly authorised on its behalf
IMPORTANT NOTES:
(a) The Issuer's liability to make payments in respect of the Class A3 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 A3 Notes can
be enforced against the Issuer only to the extent to which it can be
satisfied out of the assets of the Trust out of which the Issuer is
actually indemnified for the liability except in the case of (and to the
extent of) any fraud, negligence or wilful default on the part of the
Issuer.
(b) The Noteholder is required to accept any distribution of moneys under the
Security Trust Deed in full and final satisfaction of all moneys owing to
it, and any debt represented by any shortfall that exists after any such
final distribution is extinguished.
(c) Neither Perpetual Trustees Victoria Limited, the Note Trustee nor the
Security Trustee stands behind the capital value and/or performance of the
Class A3 Notes or the assets of the Trust except to the limited extent
provided for in the Transaction Documents relating to the Notes.
PERPETUAL TRUSTEES VICTORIA LIMITED
in its capacity as trustee of the Interstar Millennium Series 2003-3G Trust
By:
- -----------------------------------
Authorised Signatory
- --------------------------------------------------------------------------------
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CERTIFICATE OF AUTHENTICATION
This Temporary Class A3 Global Note is authenticated by [The Bank of New York,
New York branch] 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 London on [*] 2003
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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ITEM 1
PAYMENTS OF PRINCIPAL AND/OR INTEREST ON THE
CLASS A3 NOTES
The following payments of principal and/or interest in respect of the Class A3
Notes represented by this Temporary Class A3 Global Note have been made:
Amount of principal
reduced/increased
Amount of Amount of Amount of by way of charge
principal due interest due principal off/reimbursement Notation by
and payable and payable paid (Condition 5) or on behalf
Date made (euro) (euro) (euro) (euro) of the Issuer
- ---------- ------------- ------------ --------- ------------------- -------------
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ITEM 2
DECREASES IN VALUE IN RESPECT OF EXCHANGES FOR PERMANENT CLASS A3 GLOBAL NOTES
The following decreases in value consequent upon exchanges of the Temporary
Class A3 Global Notes for Permanent Class A3 Global Notes have been made:
Principal Amount of
Amount of decrease in Principal this Temporary Class
Amount of this Temporary Class A3 A3 Global Note Notation made by
Global Note due to exchanges of a following such or on behalf of
Date made Permanent Class A3 Global Note exchanges the Issuer
- --------- --------------------------------- -------------------- ----------------
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EXHIBIT A
CERTIFICATE OF CLEARING SYSTEM
PERPETUAL TRUSTEES VICTORIA LIMITED
(ABN 47 004 027 258)
in its capacity as trustee of the Interstar Millennium Series 2003-3G Trust
(euro)[*]
Class A3 Mortgage Backed Pass Through Floating Rate Notes Due [[*] 2035]
This is to certify that based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the Principal
Amount set forth below (our "Member Organisations") substantially to the effect
set forth in the Note Trust Deed, as of the date this certificate, the Principal
Amount of the above Notes: (i) is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States persons"); (ii) is
owned by United States persons that: (a) are foreign branches of United States
financial institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v) ("financial institutions")) purchasing for their own account
or for resale; or (b) are acquiring the Notes through foreign branches of United
States financial institutions and who hold the Notes through such United States
financial institutions on the date hereof (and in either case (a) or (b), each
such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations under that Code);
or (iii) is owned by United States or foreign financial institutions for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that
United States or foreign financial institutions described in this clause (iii)
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Notes for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
If the Notes are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act 1933, as amended then this is also to
certify with respect to such Principal Amount of Notes set forth above that we
have received in writing, by tested telex or by electronic transmission, from
our Member Organisations entitled to a portion of such Principal Amount,
certifications with respect to such portion, substantially to the effect set
forth in the Note Trust Deed.
We further certify: (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the Temporary Class A3 Global Note except as set forth herein; and
(ii) that as of the date of this certificate we have not received any
notification from any of our Member Organisations to the effect that the
statements made by such Member Organisations with respect to any portion of the
part submitted with this certificate for exchange (or, if relevant, exercise of
any rights or collection of any interest) are no longer true and cannot be
relied upon as of the date hereof.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in those proceedings.
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Dated:
Yours faithfully
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
Brussels Office, as
Operator of the Euroclear System
or
* CLEARSTREAM BANKING, SOCIETE ANONYME
By:
---------------------------
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EXHIBIT B
CERTIFICATE INCORPORATED BY REFERENCE TO CERTIFICATE OF
CLEARING SYSTEM
PERPETUAL TRUSTEES VICTORIA LIMITED
(ABN 47 004 027 258)
in its capacity as trustee of the Interstar Millennium Series 2003-3G Trust
(euro)[*]
Class A3 Mortgage Backed Pass Through Floating Rate Notes Due [[*] 2035]
This is to certify that as of the date of this certificate and except as set
forth below, the above Notes held by you for our account: (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"); (ii) are owned by United States person(s), that:
(a) are foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) "financial institutions")
purchasing for their own account or for resale; or (b) are acquiring the Notes
through foreign branches of United States Financial Institutions and who hold
the Notes through such United States Financial Institutions on the date hereof
(and in either case (a) or (b), each such United States financial institution
hereby agrees, on its own behalf or through its agent, that you may advise the
Issuer or the Issuer's agent that it will comply with the requirements of
Section 1.165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended and the regulations that Code); or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and in addition if the owner of the Notes is a United States or foreign
financial institution described in this clause (iii) (whether or not also
described in clause (i) or (ii)) this is to certify that such financial
institution has not acquired the Notes for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
If the Notes are of the Category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended (the "Act") then this
is also to certify that except as set forth below: (i) in the case of debt
securities, the Notes are beneficially owned by: (a) non-U.S. person(s); or (b)
U.S. person(s) who purchased the Notes in transactions which did not require
registration under the Act; or (ii) in the case of equity securities' the Notes
are owned by: (a) non-U.S. person(s); (and such person(s) are not acquiring the
Notes for the account or benefit of U.S. person(s)); or (b) U.S. person(s) who
purchased the Notes in a transaction which did not require registration under
the Act. If this certification is being delivered in connection with the
exercise of warrants under Section 230.902(m) of Regulation S under the Act,
then this is further to certify that, except as set forth below, the Notes are
being exercised by and on behalf of non-U.S. person(s). As used in this
paragraph the term "U.S. person" has the meaning given to it by Regulation S
under the Act.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Notes held by you
for our account in accordance with your operating
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Note Trust Deed [ALLENS ARTHUR ROBINSON LOGO]
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procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to (euro) ___________ of such
interest in the above Notes in respect of which we are not able to certify and
as to which we understand exchange and delivery of Definitive Notes (or, if
relevant, exercise of any rights of collection of any interest) cannot be made
until we do so certify.
We understand that this certification is required in connection with certain tax
laws and if applicable, certain securities laws of the United States. In
connection therewith if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in those proceedings.
Date: _______________________ *
Name of Person Making Certification
by:
----------------------------
As, or as agent for, the
beneficial owner(s) of the
Notes to which the
certificate relates.
To be dated not earlier than 15 days prior to the Exchange Date.
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Schedule 1
Part C
Form of Permanent Class A3 Global Note
- --------------------------------------------------------------------------------
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE) WHO HOLDS
THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287 (a) OF
THE INTERNAL REVENUE CODE.
THIS OBLIGATION HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN CONTRAVENTION OF THAT
ACT.
THIS GLOBAL NOTE IS A GLOBAL BOND FOR THE PURPOSES OF SECTION 128F(10) OF THE
INCOME TAX ASSESSMENT ACT 1936 OF THE COMMONWEALTH OF AUSTRALIA.
PERPETUAL TRUSTEES VICTORIA LIMITED
(ABN 47 004 027 258)
(a limited liability company incorporated under the Commonwealth of Australia)
in its capacity as trustee of the Interstar Millennium Series 2003-3G Trust
(the "Trust")
PERMANENT CLASS A3 GLOBAL NOTE
representing
(euro)[*]
Class A3 Mortgage Backed Pass Through Floating Rate Notes Due [[*] 2035]
This Note is a Permanent Class A3 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
2003-3G Trust (the "Issuer"), designated as specified in the title above (the
"Notes"), in an initial aggregate Principal Amount of (euro)[*] ([*]) and (a)
issued pursuant to a Master Trust Deed (the "Master Trust Deed") dated 2
December 1999 between the Issuer 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 [*] 2003, by a
Series Notice (the "Series Notice") dated [*] 2003 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 Non-A$ Notes (the "Non-A$ Noteholders") and the Trust Manager and
by the Conditions (as defined below); (b) constituted by a Note Trust Deed dated
[*] 2003 (the "Note Trust Deed") between (among others) the Issuer, the Trust
Manager and the Note Trustee; and (c) secured by a Security Trust Deed (the
"Security Trust Deed") dated [*] 2003 between the Issuer, the Trust Manager, the
Note Trustee and Perpetual Trustee Company Limited (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
A3 Notes (or that particular one of them) set out in Part B of schedule 5 to the
Note Trust Deed but with the deletion of those provisions which are applicable
only to Class A3
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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.
The Notes represented by this Permanent Class A3 Global Note were originally
represented by a Temporary Class A3 Global Note. Unless that Temporary Class A3
Global Note was exchanged in whole on the issue of this Permanent Class A3
Global Note, that Temporary Class A3 Global Note may be further exchanged, on
the terms and conditions set out in it, for this Permanent Class A3 Global Note.
If that exchange occurs following the date of issue of this Permanent Class A3
Global Note, the Principal Paying Agent shall endorse Item 2 to reflect the
increase in the aggregate Principal Amount of this Permanent Class A3 Global
Note due to that exchange following which the Principal Amount of this Permanent
Class A3 Global Note shall be increased for all purposes by the amount so
exchanged and endorsed.
If the Issuer is obliged to issue Definitive Notes under clause 3.3(b) of the
Note Trust Deed, this Permanent Class A3 Global Note may be exchanged in whole
at the offices of the Principal Paying Agent at [*] (or such other place outside
the United States of America and Australia and any of their respective
territories and possessions and other areas subject to either of their
respective jurisdictions as the Note Trustee may agree) for Definitive Notes and
the Issuer shall procure that the Principal Paying Agent issues and delivers, in
full exchange for this Permanent Class A3 Global Note, Definitive Notes in
aggregate Principal Amount equal to the Principal Amount of all Class A3 Notes
represented by this Permanent Class A3 Global Note. The Issuer is not obliged to
issue Definitive Notes until 30 days after it becomes aware of the occurrence of
an event set out in clause 3.3(b) of the Note Trust Deed.
The Issuer, in its capacity as trustee of the Trust, subject to this Permanent
Class A3 Global Note and subject to and in accordance with the Conditions and
the Note Trust Deed promises to pay to the bearer of this Permanent Class A3
Global Note the principal sum of (euro)[*] ([*]) or such lesser amount as may
from time to time be represented by this Permanent Class A3 Global Note (or such
part of that amount as may become repayable under to the Conditions, the Series
Notice and the Note Trust Deed) on such date(s) that that principal sum (or any
part of it) becomes repayable in accordance with the Conditions, the Series
Notice and the Note Trust Deed and to pay interest in arrears on each Payment
Date (as defined in Condition 4) on the Principal Amount (as defined in
Condition 5(a)) of this Permanent Class A3 Global Note at rates determined in
accordance with Condition 4 and all subject to and in accordance with the
certification requirements described in this Permanent Class A3 Global Note, the
Conditions, the Series Notice and the Note Trust Deed, which shall be binding on
the bearer of this Permanent Class A3 Global Note (as if references in the
Conditions to the Notes and the Noteholders were references to this Permanent
Class A3 Global Note and the bearer of this Permanent Class A3 Global Note
respectively and as if the same had been set out in this Permanent Class A3
Global Note in full with all necessary changes, except as otherwise provided in
this Permanent Class A3 Global Note).
Interest and principal on this Permanent Class A3 Global Note will be payable
against presentation of this Permanent Class A3 Global Note by the Common
Depository for the Class A3 Notes to the Principal Paying Agent provided that:
(i) no payment of interest may be made by, or upon presentation of this
Permanent Class A3 Global Note to the Issuer or any Paying Agent in the United
States of America; and (ii) certification of non-US beneficial ownership by the
Class A3 Noteholder has been received by Euroclear or Clearstream, Luxembourg.
Each of the persons appearing from time to time in the records of Morgan
Guaranty Trust Company of New York, Brussels office, as operator of Euroclear,
or of Clearstream Banking, societe anonyme, as the holder of a Class A3 Note
will be entitled to receive any payment so made in respect of that Class A3 Note
in accordance with the respective rules and procedures of Euroclear or, as the
case may be, Clearstream, Luxembourg. Such persons will have no claim directly
against the Issuer in respect of
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payments due on the Class A3 Notes which must be made by the holder of this
Permanent Class A3 Global Note, for so long as this Permanent Class A3 Global
Note is outstanding.
On any payment of principal and/or interest on the Class A3 Notes as set out
above, details of that payment shall be endorsed by or on behalf of the Issuer
on Item 1 hereto and, in the case of payments of principal, the Principal Amount
of the Class A3 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.
If the Issuer is obliged to issue Definitive Notes under clause 3.3(b) of the
Note Trust Deed this Permanent Class A3 Global Note will be exchangeable in
whole upon the request of the bearer for Definitive Notes substantially in the
form set out in Part B of schedule 2 to the Note Trust Deed only on and subject
to the terms and conditions set out below and in the Note Trust Deed.
The Definitive Notes to be issued on that exchange will be in bearer form each
in the denomination of (euro)[*] with coupons (and, if more than five years
remain before the Payment Date falling in [*], talons for further coupons)
attached. 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 Permanent Class A3 Global Note.
On an exchange of this Permanent Class A3 Global Note, this Permanent Class A3
Global Note shall be surrendered to the Principal Paying Agent.
This Permanent Class A3 Global Note shall not become valid for any purpose
unless and until the Certificate of Authentication attached has been signed by
an Authorised Signatory of [The Bank of New York, New York branch] as Principal
Paying Agent (as defined in the Series Notice).
This Permanent Class A3 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 Permanent Class A3 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 2000-3G Trust
By:
----------------------------
Authorised Signatory
IMPORTANT NOTES:
(a) The Issuer's liability to make payments in respect of the Class A3 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 A3 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 breach of trust 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
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(c) Neither Perpetual Trustees Victoria Limited, the Note Trustee nor the
Security Trustee stands behind the capital value and/or performance of the
Class A3 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 Permanent Class A3 Global Note is authenticated by [The Bank of New York,
New York branch] 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 London in [*] 2003
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ITEM 1
PAYMENTS OF PRINCIPAL AND/OR INTEREST ON THE
CLASS A3 NOTES
The following payments of principal and/or interest in respect of the Class A3
Notes represented by this Permanent Class A3 Global Note have been made:
Amount of principal
reduced/increased
Amount of Amount of Amount of by way of charge
principal due interest due principal Amount of off/reimbursement Notation by
and payable and payable paid interest paid (Condition 5) or on behalf
Date made (euro) (euro) (euro) (euro) (euro) of the Issuer
- ---------- ------------- ------------ --------- ------------- ------------------- -------------
- ---------- ------------- ------------ --------- ------------- ------------------- -------------
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- ---------- ------------- ------------ --------- ------------- ------------------- -------------
- ---------- ------------- ------------ --------- ------------- ------------------- -------------
- ---------- ------------- ------------ --------- ------------- ------------------- -------------
- ---------- ------------- ------------ --------- ------------- ------------------- -------------
- ---------- ------------- ------------ --------- ------------- ------------------- -------------
- ---------- ------------- ------------ --------- ------------- ------------------- -------------
- ---------- ------------- ------------ --------- ------------- ------------------- -------------
- ---------- ------------- ------------ --------- ------------- ------------------- -------------
- ---------- ------------- ------------ --------- ------------- ------------------- -------------
- ---------- ------------- ------------ --------- ------------- ------------------- -------------
- ---------- ------------- ------------ --------- ------------- ------------------- -------------
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ITEM 2
INCREASES IN VALUE OF PERMANENT CLASS A3 GLOBAL NOTES
The following increases in value consequent upon exchanges of the Temporary
Class A3 Global Notes for Permanent Class A3 Global Notes have been made:
Principal Amount of
Amount of increase in Principal this Permanent Class
Amount of this Permanent Class A3 A3 Global Note Notation made by
Global Note due to exchanges of a following such or on behalf of
Date made Temporary Class A3 Global Note exchanges the Issuer
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Schedule 2
Part A
Form of Definitive Note - US$ Notes
- --------------------------------------------------------------------------------
PERPETUAL TRUSTEES VICTORIA LIMITED
(ABN 47 004 027 258)
(a limited liability company incorporated under the laws of the Commonwealth of
Australia)
in its capacity as trustee of the Interstar Millennium Series 2003-3G Trust (the
"Trust")
US$100,000
Class [A2/B1] Secured Floating Rate Notes Due [[*] 2035]
The issue of the Class [A2/B1] Notes was authorised by resolutions of the Board
of Directors of Perpetual Trustees Victoria Limited in its capacity as trustee
of the Trust (the "Issuer") passed on [*] 2003.
This Class [A2/B1] Note forms one of a series of Notes which are (a) issued by a
Master Trust Deed (the "Master Trust Deed") dated 2 December 1999 between
Perpetual Trustees Victoria Limited and Interstar Securities (Australia) Pty
Limited and applying to the Trust by reason of the Notice of Creation of Trust
between Interstar Securities (Australia) Pty Limited, Interstar Securitisation
Management Pty Limited (the "Trust Manager") and the Issuer dated [*] 2003, by a
Series Notice (the "Series Notice") dated [*] 2003 between (among others) the
Issuer, [The Bank of New York, New York branch] (the Note Trustee for the time
being referred to as the "Note Trustee") as trustee for the holders for the time
being of the Non-A$ Notes (the "Non-A$ Noteholders") and the Trust Manager and
the terms and conditions attached to this Note (the "Conditions"); (b)
constituted by a Note Trust Deed dated [*] 2003 (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 [*] 2003 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
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 [*]
[2035] (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
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, the Note Trustee 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 2
Part B
Form of Definitive Note - Class A3 Notes
- --------------------------------------------------------------------------------
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE) WHO HOLS THIS
OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX
LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE
INTERNAL REVENUE CODE.
THIS OBLIGATION HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN CONTRAVENTION OF THAT
ACT.
PERPETUAL TRUSTEES VICTORIA LIMITED
(ABN 47 004 027 258)
(a limited liability company incorporated under the laws of the Commonwealth of
Australia)
in its capacity as trustee of the Interstar Millennium Series 2003-3G Trust
(the "Trust")
(euro)[*]
Class A3 Secured Floating Rate Notes Due [[*] 2035]
The issue of the Class A3 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 [*] 2003.
This Class A3 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 [*] 2003, by a
Series Notice (the "Series Notice") dated [*] 2003 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 Non-A$ Notes (the "Non-A$ Noteholders") and the Trust Manager and
the terms and conditions attached to this Note (the "Conditions"); (b)
constituted by a Note Trust Deed dated [*] 2003 (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 [*] 2003 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 A3
Note and subject to and in accordance with the Conditions and the Note Trust
Deed for value received promises to pay to the bearer of this Class A3 Note on
the Payment Date (as defined in Condition 4 of the terms and conditions (the
"Conditions") endorsed on the form of this Class A3 Note) falling in [*] [2035]
(or on such earlier date(s) as the Principal Amount of this Class A3 Note (or
part of it) may become repayable in accordance with the Conditions) the
principal sum of:
(euro)[*] ([*])
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or such part of that amount as may be repayable on such date(s) in accordance
with the Conditions, the Series Notice, the Master Trust Deed and the Note Trust
Deed, together with interest on the Principal Amount payable in arrears on each
Payment Date and such other amounts (if any) as may be payable, all subject to
and in accordance with the Conditions and the provisions of the Series Notice,
the Master Trust Deed and the Note Trust Deed.
Neither this Class A3 Note nor any of the coupons or talons attached to it shall
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 A3 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 A3 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 A3 Noteholder is required to accept any distribution of moneys
under the Security Trust Deed in full and final satisfaction of all moneys
owing to it, and any debt represented by any shortfall that exists after
any such final distribution is extinguished.
(c) Neither Perpetual Trustees Victoria Limited, the Note Trustee nor the
Security Trustee stands behind the capital value and/or performance of the
Class A3 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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- FORM OF PRINCIPAL COUPON -
On the front:
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE) WHO HOLDS
THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(i) AND 1287(a) OF
THE INTERNAL REVENUE CODE
PERPETUAL TRUSTEES VICTORIA LIMITED Coupon No.
(ABN 47 004 027 258)
(euro)[*] CLASS A3 MORTGAGE
BACKED PASS THROUGH FLOATING RATE NOTES
DUE [[*] 2035]
This Coupon is payable to bearer FRN - Principal payment
subject to the Conditions under
which it may become void before
its due date and may, in certain
circumstances only, be payable on
surrender of the Note to which
this Coupon appertains.
[No.] [0000000] [ISIN NUMBER] [Series] [Serial No]
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- FORM OF INTEREST COUPON -
On the front:
ANY UNITED STATES PERSON (AS DEFINED IN THE INTERNAL REVENUE CODE) WHO HOLDS
THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(i) AND 1287(a) OF
THE INTERNAL REVENUE CODE
PERPETUAL TRUSTEES VICTORIA LIMITED Coupon No.
(ABN 47 004 027 258)
(euro)[*] CLASS A3 MORTGAGE
BACKED PASS THROUGH FLOATING RATE NOTES
DUE [[*] 2035]
This Coupon is payable to bearer FRN - Interest payment
subject to the Conditions under
which it may become void before
its due date and may, in certain
circumstances only, be payable on
surrender of the Note to which this
Coupon appertains.
[No.] [0000000] [ISIN NUMBER] [Series] [Serial No]
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- FORM OF TALON FOR FURTHER PRINCIPAL COUPONS -
On the front:
PERPETUAL TRUSTEES VICTORIA LIMITED
(ABN 47 004 027 258)
(euro)[*] CLASS A2 MORTGAGE BACKED PASS THROUGH
FLOATING RATE NOTES DUE [[*] 2035]
After the Payment Date (as defined in the Conditions endorsed on the Note to
which this Talon relates) falling in [*], [*] further Principal Coupons and a
further Talon for Principal Coupons relating to that Note will, subject to the
Conditions, be issued at the specified office of any of the Paying Agents set
out on the reverse of this Talon (and/or such other or further Paying Agents
and/or specified offices as may from time to time be duly appointed and notified
to the Noteholders) upon production and surrender of this Talon.
This Talon may, in certain circumstances, become void under the Conditions
before the Payment Date.
No:
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- FORM OF TALON FOR FURTHER INTEREST COUPONS -
On the front:
PERPETUAL TRUSTEES VICTORIA LIMITED
(ABN 47 004 027 258)
(euro)[*] CLASS A2 MORTGAGE BACKED PASS THROUGH
FLOATING RATE NOTES DUE [[*] 2035]
After the Payment Date (as defined in the Conditions endorsed on the Note to
which this Talon relates) falling in [*], [*] further Interest Coupons and a
further Talon for Interest Coupons relating to that Note will, subject to the
Conditions, be issued at the specified office of any of the Paying Agents set
out on the reverse of this Talon (and/or such other or further Paying Agents
and/or specified offices as may from time to time be duly appointed and notified
to the Noteholders) upon production and surrender of this Talon.
This Talon may, in certain circumstances, become void under the Conditions
before the Payment Date.
No:
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On the back of the Coupons and the Talons:
PRINCIPAL PAYING AGENT
[THE BANK OF NEW YORK, NEW YORK BRANCH]
101 Barclay Street
21W New York NY 10286
and/or such other Principal Paying Agent and/or other or further Paying Agents
outside the United States (subject to Condition 6(b)) and Australia and/or
specified offices outside the United States (subject to Condition 6(b)) and
Australia as may from time to time be duly appointed by the Issuer with the
approval of the Note Trustee and notice of which has been given to the
Noteholders.
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Schedule 3
Provisions for Meetings of Non-A$ 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;
(b) it is certified that each holder of such Notes has instructed such
Paying Agent or that the relevant Clearing Agency has advised such
Paying Agent that the holder of such Notes has
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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 mea Non-A$ Notes and Non-A$ 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.
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
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Amount of the Notes for the time being then outstanding convene a meeting
of the Noteholders and if the Trustee makes default for a period of seven
days in convening such a meeting the same may be convened by the Note
Trustee or the requisitioners. Every such meeting shall be held at such
place as the Note Trustee may appoint or approve.
3. Notice of Meetings
At least 21 days' notice (exclusive of the day on which the notice is given
and the day on which the meeting is held) specifying the place, day and
hour of meeting shall be given by the Note Trustee (if the meeting is
convened by the Note Trustee), by the Trustee (if the meeting is convened
by the Trustee) or by the Trust Manager (if the meeting is convened by the
Trust Manager) to the relevant Noteholders prior to any meeting of the
relevant Noteholders in the manner provided by the relevant Condition 12.
Such notice shall state generally the nature of the business to be
transacted at the meeting thereby convened by and (except for an
Extraordinary Resolution) it shall not be necessary to specify in such
notice the terms of any resolution to be proposed. Such notice shall
include a statement to the effect that Notes may be deposited with Paying
Agents or (to their satisfaction) held to their order or under their
control or blocked by a depository holding the same in a manner approved by
the Note Trustee for the purpose of obtaining voting certificates or
appointing proxies until 48 hours before the time fixed for the meeting but
not thereafter. A copy of the notice shall be sent by post to the Note
Trustee (unless the meeting is convened by the Note Trustee) and to the
Trustee (unless the meeting is convened by the Trustee or the Trust
Manager).
4. Chairman
Some person (who may but need not be a Noteholder) nominated in writing by
the Note Trustee shall be entitled to take the chair at every such meeting
but if no such nomination is made or if at any meeting the person nominated
shall not be present within fifteen minutes after the time appointed for
holding the meeting the relevant Noteholders present shall choose one of
their number to he Chairman. The Chairman of an adjourned meeting need not
be the same person as the Chairman of the original meeting.
5. Quorum
At any meeting two or more persons present holding Notes or voting
certificates or being proxies in respect thereof and holding or
representing in the aggregate not less than one-twentieth of the aggregate
Principal Amount of the Notes, then outstanding, shall (except for the
purposes of passing an Extraordinary Resolution) form a quorum for the
transaction of business and no business (other than the choosing of a
Chairman) shall be transacted at any meeting unless the requisite quorum be
present at the commencement of business. The quorum at any such meeting for
passing an Extraordinary Resolution shall (subject as provided below) be
two or more persons present holding Notes, or voting certificates or being
proxies in respect thereof and holding or representing in the aggregate a
clear majority of the aggregate Principal Amount of the Notes, then
outstanding PROVIDED THAT subject to paragraph 13(b) below, at any meeting
the business of which includes 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;
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(c) alteration of the amount of interest payable on any class of the Notes
or modification of the method of calculating the amount of interest
payable on the Notes or modification of the date of payment of an,
interest payable on the Notes;
(d) alteration of the currency in which payments under the Notes are to be
made;
(e) alteration of the majority required to pass an Extraordinary
Resolution or the manner in which such majority is constituted;
(f) the sanctioning of any such scheme or proposal as is described in
paragraph 18 below; or
(g) alteration of this proviso or the proviso to paragraph 6 below,
the quorum shall, subject as provided further below, be two or more persons
present holding Notes, as the case may be, or voting certificates or being
proxies in respect thereof and holding or representing in the aggregate not
less than three-quarters or at any adjourned meeting, 25% of the aggregate
Principal Amount of the Notes then outstanding.
6. Adjournment
If within fifteen minutes after the time appointed for any such meeting a
quorum is not present the meeting shall, if convened upon the requisition
of the Noteholders be dissolved. In any other case it shall stand adjourned
to the same day in the next week (or if such day is a public holiday the
next succeeding business day) at the same time and place (except in the
case of a meeting at which an Extraordinary Resolution is to be proposed in
which case it shall stand adjourned for such period being not less than 14
days nor more than 42 days, and at such place as may be appointed by the
Chairman of the meeting and approved by the Note Trustee) and at such
adjourned meeting two or more persons present holding Notes, or voting
certificates or being proxies in respect thereof (whatever the aggregate of
the Principal Amount of the Notes then outstanding held) shall (subject as
provided below) form a quorum and shall (subject as provided below) have
power to pass any Extraordinary Resolution or other resolution and to
decide upon all matters which could properly have been dealt with at the
meeting from which the adjournment took place had the requisite quorum been
present PROVIDED THAT, subject to paragraph 13(b) below, at any adjourned
meeting the business of which includes any of the matters specified in the
proviso to paragraph 5 above, the quorum shall, subject as provided further
below, be two or more persons present holding Notes be or voting
certificates or being proxies in respect thereof and holding or
representing in the aggregate not less than one-quarter of the aggregate of
the Principal Amount of the Notes, then outstanding.
The Chairman may with the consent of (and shall if directed by) any such
meeting adjourn the same from time to time and from place to place but no
business shall be transacted at an, adjourned meeting except business which
might lawfully (but for lack of required quorum) have been transacted at
the meeting from which the adjournment took place.
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.
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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 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:
(i) in the case of the Class A2 Notes or the Class B1 Notes, in
respect of each US$; and
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(ii) in the case of the Class A3 Notes, in respect of the (euro)
Equivalent (as defined in the Security Trust Deed) in respect of
each US$,
of Principal Amount of the Notes then outstanding of the Notes so
produced or represented by the voting certificate so produced or in
respect of which he is a proxy.
Without prejudice to the obligations of the proxies named in any block
voting instructions any person entitled to more than one vote need not use
all his votes or cast all the votes to which he is entitled in the same
way. The proxies named in any block voting instruction need not be
Noteholders.
11. Requirements for Proxies
Each block voting instruction together (if so required by the Note Trustee)
with proof satisfactory to the Note Trustee of its due execution on behalf
of the relevant Paying Agent shall be deposited at such place as the Note
Trustee shall approve not less than 24 hours before the time appointed for
holding the meeting or adjourned meeting at which the proxies named in the
block voting instruction propose to vote and in default of such deposit the
block voting instruction shall not be treated as valid unless the Chairman
of the meeting decides otherwise before such meeting or adjourned meeting
proceeds to business. A notarially certified copy of each block voting
instruction shall, unless the Note Trustee otherwise agrees, be deposited
with the Note Trustee before the commencement of the meeting or adjourned
meeting but the Note Trustee shall not thereby be obliged to investigate or
be concerned with the validity of or the authority of the proxies named in
any such block voting.
12. Proxy remains valid
Any vote cast in accordance with the terms of a block voting instruction
shall be valid notwithstanding the previous revocation or amendment of the
block voting instruction or of any of the Noteholder's instructions
pursuant to which it was executed PROVIDED THAT no intimation in writing of
such revocation or amendment shall have been received from the relevant
Paying Agent by the Trustee at its registered office (or such other place
as may have been approved by the Note Trustee for the purpose) by the time
being 24 hours before the time appointed for holding the meeting or
adjourned meeting at which the block voting instruction is to be used.
13. Extraordinary resolutions
(a) Subject to paragraph (b), a meeting of the Noteholders shall in
addition to the powers given under this deed have the following powers
exercisable by Extraordinary Resolution (subject to the provisions
relating to quorum contained in paragraphs 5 and 6 above) only:
(i) power to sanction any compromise or arrangement proposed to be
made between the Trustee and the Noteholders;
(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;
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(iv) power to give any authority or sanction which under the
provisions of this deed or the Notes (including the Conditions)
is required to be given by Extraordinary Resolution;
(v) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees any
powers or discretions which the Noteholders could themselves
exercise by Extraordinary Resolution;
(vi) power to approve of a person to be appointed a trustee and power
to remove any trustee or trustees for the time being under this
deed;
(vii) power to discharge or exonerate the Note Trustee from all
liability in respect of any act or omission for which the Note
Trustee may have become responsible under this deed or under the
Notes;
(viii) power to authorise the Note Trustee to concur in and execute
and do all such deeds, instruments, acts and things as may be
necessary to carry out and give effect to any Extraordinary
Resolution;
(xi) power to sanction any scheme or proposal for the exchange or sale
of the Notes for, or the conversion of the Notes as the case may
be, into, or the cancellation of the Notes in consideration of
shares, stock, notes, bonds' debentures, debenture stock and/or
other obligations and/or securities of the Trustee or of any
other company formed or to be formed, or for or into or in
consideration of cash, or partly for or into or in consideration
of such shares, stock, notes, bonds, debenture stock and/or other
obligations and/or securities as aforesaid and partly for or into
or in consideration of cash.
(b) Despite paragraph (a) no modification involving any of the matters
referred to in paragraphs 5(a) to 5(e) (both inclusive) above in
relation to the Noteholders shall be effective unless the Note Trustee
is of the opinion that such modification is being proposed by the
Trustee as a result of, or in order to avoid, an Event of Default.
14. Resolution binding on Noteholders
Subject to paragraph 13(b) above, any resolution passed at a meeting of the
Noteholders generally, or a Class of Noteholders, duly convened and held in
accordance with this deed shall be binding upon all the Noteholders whether
present or not present at such meeting and whether or not voting; and, in
such case, each of such Noteholders shall be bound to give effect to such
resolution accordingly and the passing of any such resolution shall be
conclusive evidence that the circumstances justify the passing thereof.
Notice of the result of the voting on any resolution duly considered by the
Noteholders shall be published in accordance with the relevant Condition 12
by the Trustee within 14 days of such result being known PROVIDED THAT the
non-publication of such notice shall not invalidate such resolution.
15. Minutes and Records
Minutes of all resolutions and proceedings at every such meeting shall be
made and duly entered in books to be from time to time provided for that
purpose by the Trustee and any such Minutes as aforesaid if purporting to
be signed by the Chairman of the meeting at which such resolutions were
passed or proceedings had shall be conclusive evidence of the matters
contained in them and until
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the contrary is proved every such meeting in respect of the proceedings of
which Minutes have been made shall be deemed to have been duly held and
convened and all resolutions passed at proceedings to have been duly passed
or had.
16. Further Procedures for Meetings
Subject to all other provisions contained in this deed the Note Trustee may
without the consent of the Trustee the Noteholders prescribe such further
regulations regarding the requisitioning and/or the holding of meetings of
Noteholders and attendance and voting at meetings of Noteholders as the
Note Trustee may in its sole discretion think fit.
17. Written resolutions
References in this deed to a resolution duly passed at a meeting of the
Noteholders shall include, where the context permits, a resolution in
writing signed by or on behalf of all Noteholders or a Class of Noteholders
who for the time being are entitled to receive notice of a meeting in
accordance with the provisions herein contained. Such resolution in writing
may be contained in one document or in several documents in like form each
signed by or on behalf of one or more of the Noteholders.
18. Global noteholder
So long as the Notes are represented by any Global Note, the holder of a
Global Note shall for the purposes of paragraph 5 be deemed to constitute a
quorum and for the purposes of this schedule be deemed to be holding such
Principal Amount of the Notes (up to the Principal Amount of Notes then
outstanding) as the holder of the Global Note may specify and able to vote
such amount for or against or to abstain from voting in such Principal
Amount as the holder may specify.
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Schedule 4
Information to be contained in Noteholders Report
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The following information is to be included in the 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 Payment Date;
(i) the Interest Rate for the Class B1 Notes for the Interest Period ending on
the day before the next 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 Aggregate Principal Loss Amount (if any) for the Collection Period;
(m) the Charge-offs and Carryover Charge-offs in relation to each Non-A$ Note
on the corresponding Payment Date (if any);
(n) the Recovery Amount for the corresponding Payment Date (if any); and
(o) delinquency and loss statistics with respect to the Purchased Loans during
the Collection Period.
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Schedule 5
Part A
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$[*] Mortgage Backed Floating Rate Notes due [[*] 2035] (the
Class A2 Notes), (euro)[*] Mortgage Backed Floating Rate Notes due [[*] 2035]
(the Class A3 Notes), A$[*] Mortgage Backed Floating Rate Notes due [[*] 2035]
(the Class A4 Notes), US$[*] Mortgage Backed Floating Rate Notes due [[*] 2035]
(the Class B1 Notes) and A$[*] Mortgage Backed Floating Rate Notes due [[*]
2035] (the Class B2 Notes) (the Class A1 Notes (as defined in the Series
Notice), the Class A2 Notes, the Class A3 Notes and the Class A4 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 2003-3G Trust (the Trust) (in such capacity the Issuer) was authorised by
a resolution of the Board of Directors of the Issuer passed on [*] 2003. 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 [*] 2003, by a Series Notice (the Series Notice) dated [*] 2003
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 Non-A$ Notes (the Non-A$ Noteholders) and
the Trust Manager and by these terms and conditions (the Conditions); (b)
constituted by a Note Trust Deed dated [*] 2003 (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 [*]
2003 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
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expressions used in these Conditions have the meanings defined in those
documents. In accordance with an agency agreement (the Agency Agreement) dated
[*] 2003 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 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 for the US$ Notes will bear the following legend: "This global
note is a global bond for the purposes of section 128F(10) of the Income Tax
Assessment Act 1936 of the Commonwealth of Australia".
1. CONDITION 1. Form, Denomination and Title
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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. Euroclear Bank S.A./N.V.,
as operator of the Euroclear System (Euroclear) and Clearstream Banking,
societe anonyme (Clearstream, Luxembourg), may hold interests in the Global
Notes on behalf of persons who have accounts with Euroclear and
Clearstream, Luxembourg through accounts maintained in the names of
Euroclear or Clearstream, Luxembourg, or in the names of their respective
depositories, with DTC.
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If the Issuer is obliged to issue Definitive Notes under clause 3.3(a) of
the Note Trust Deed, interests in the applicable Global Note will be
transferred to the beneficial owners thereof in the form of Definitive
Notes, without interest coupons, in the denominations set forth above. A
Definitive Note will be issued to each Noteholder in respect of its
registered holding or holdings of US$ Notes against 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, the Class A2 Notes, the Class A3 Notes and the Class A4
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, the Class A3
Notes, and the Class A4 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 created by the Security Trust Deed being enforced.
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, the Class A3 Notes and the Class A4 Notes
where the Threshold Requirements are satisfied and are subordinated to such
payments on the Class A2 Notes, the Class A3 Notes and the Class A4 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 Securities (Australia) Pty Limited (the Approved
Seller).
The net proceeds of realisation of the assets of the Trust (including
following enforcement of the Security Trust Deed) may be insufficient to
pay all amounts due to the Noteholders. Save in certain limited
circumstances, the other assets of the Issuer will not be available for
payment of any shortfall arising and all claims in respect of such
shortfall shall be extinguished. None of the Servicer, the Trust Manager,
the Note Trustee, the Security Trustee, the Swap Providers, the Paying
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Agents, the Calculation Agent, the Note Registrar or the Note Managers (as
defined in the Series Notice) has any obligation to any Noteholder for
payment of any amount by the Issuer in respect of the Notes.
The Note Trust Deed contains provisions requiring the Note Trustee to have
regard to the interests of the Non-A$ 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, the Class A2 Noteholders, the
Class A3 Noteholders and the Class A4 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, the Class A2
Noteholders, the Class A3 Noteholders and the Class A4 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
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remedies and perform all its obligations under the Master Trust
Deed, the Transaction Documents and all other deeds, agreements
and other arrangements entered into by the Issuer under the
Master Trust Deed; and
(vii) comply with the rules and regulations of any Stock Exchange on
which any Note is listed from time to time.
(c) Except as provided in any Transaction Document (and other than the
charge given to the Security Trustee), the Issuer must not, nor shall
it permit any of its officers to, sell, mortgage, charge or otherwise
encumber or part with possession of any asset of the Trust (the Trust
Assets).
(d) The Issuer will open and operate certain bank accounts in accordance
with the Master Trust Deed and the Series Notice.
(e) Subject to the Master Trust Deed and any Transaction Document to which
it is a party, the Issuer must act on all directions given to it by
the Trust Manager in accordance with the terms of the Master Trust
Deed.
(f) The Issuer must properly perform the functions which are necessary for
it to perform under all Transaction Documents in respect of the Trust.
4. CONDITION 4. Interest
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(a) Payment Dates
Each US$ Note bears interest on its Principal Amount from and
including [*] 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 March, June, September and
December, provided that, if any such date would otherwise fall on a
day which is not a Business Day (as defined below), it will be
postponed to the next day which is a Business Day (as defined below),
(each such date a Payment Date). The first Payment Date is [*] 2003.
The final Payment Date will be the earlier of the Payment Date falling
in [[*] 2035] (the Maturity Date) and the 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 Payment Date, and each successive period
beginning on (and including) a Payment Date and ending on (but
excluding) the next Payment Date and the final period referred to
below is called an Interest Period for the US$ Notes. Interest payable
on a US$ Note in respect of any relevant Interest Period or any other
period will be calculated on the basis of the actual number of days
elapsed and a 360 day year.
The final Interest Period for a US$ Note begins on (and includes) the
Payment Date prior to the earlier of the Maturity Date and the date on
which that US$ Note is redeemed in accordance with its terms and ends
on (but excludes) the earlier of the Maturity Date and the date on
which that US$ Note is so redeemed (as the case may be).
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(b) Interest Rate
The rate of interest applicable from time to time to a US$ Note (the
Interest Rate) will be determined by the Calculation Agent on the
basis of the following paragraphs.
On the date which is 2 Business Days before the beginning of each
Interest Period for the US$ Notes (each a Rate Reset Date), the
Calculation Agent will determine LIBOR for that Interest Period, which
is the rate applicable for deposits in US dollars for a period of 3
months which appears on the Telerate Page 3750 as of 11.00am London
time on that Rate Reset Date. If such rate does not appear on the
Telerate Page 3750, the rate for that Interest Period will be
determined as if the Issuer and the Calculation Agent had specified
the rate USD-LIBOR-Reference Banks as the applicable Floating Rate
Option under the Definitions of the International Swaps and
Derivatives Association, Inc. (ISDA) incorporating the 2000 ISDA
Definitions, as amended and updated as at the Issue Date (the ISDA
Definitions). "USD-LIBOR-Reference Banks" means that the rate for an
Interest Period for the US$ Notes will be determined on the basis of
the rates at which deposits in US dollars are offered by the Reference
Banks (being four major banks in the London interbank market agreed to
by the Calculation Agent and the relevant Currency Swap Provider) at
approximately 11.00 am, London time, on the Rate Reset Date to prime
banks in the London interbank market for a period of 3 months
commencing on the first day of that Interest Period and in a
Representative 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 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
Payment Date falling in [[*] 2008], 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 Payment Date falling in [[*] 2008],
the Interest Rate applicable
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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
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 Payment Date so published may subsequently
be amended (or appropriate alternative arrangements made by way of
adjustment) without notice in the event of an amendment of the
Interest Period.
(e) Determination or Calculation by the Trust Manager
If the Calculation Agent at any time for any reason does not determine
the Interest Rate for or calculate the Interest payable on a US$ Note,
the Trust Manager must do so and each such determination or
calculation will be deemed to have been made by the Calculation Agent.
In doing so, the Trust Manager must apply the foregoing provisions of
this Condition, with any necessary consequential amendments, to the
extent that it can do so, and, in all other respects it must do so in
such a manner as it reasonably considers to be fair and reasonable in
all the circumstances.
(f) Calculation Agent
The Issuer will procure that, so long as any of the US$ Notes remain
outstanding, there will at all times be a Calculation Agent. The
Issuer, or the Trust Manager with the consent of the Issuer (such
consent not to be unreasonably withheld), with the prior written
approval of the Note Trustee, reserves the right at any time to
terminate the appointment of the Calculation Agent immediately on the
occurrence of certain specified events or, otherwise, by giving not
less than 60 days notice in writing to, among others, the Calculation
Agent. Notice of that termination will be given to the US$ Noteholders
in accordance with Condition 12. If any person is unable or unwilling
to continue to act as the Calculation Agent, or if the appointment of
the Calculation Agent is terminated, the Issuer will, with the
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prior written approval of the Note Trustee, appoint a successor
Calculation Agent to act as such in its place, provided that neither
the resignation nor removal of the Calculation Agent will take effect
until a successor approved by the Note Trustee has been appointed.
(g) Income distribution
Capitalised terms in this paragraph (g) have the same meaning given in
the Series Notice unless otherwise defined in these Conditions.
(i) On each Payment Date, the Issuer shall, prior to the enforcement
of the Security Trust Deed (in accordance with the written
direction provided to it by the Trust Manager on or before the
date which is 4 Business Days before that Payment Date), out of
the Income for the Collection Period immediately before the
Payment Date (and out of the proceeds of disposal of any Liquid
Authorised Investments and/or out of Mortgage Principal
Repayments as provided for in Condition 4(g)(v)) make the
following payments or retain moneys in the following order of
priority.
(A) First - an amount equal to any Interest Adjustment required
to be paid to an Approved Seller and then outstanding (and
the Issuer acknowledges and agrees that it has no
entitlement to the moneys comprising the Interest
Adjustment).
(B) Second - payment of any Taxes payable in relation to the
Trust (not including any GST covered in Conditions 4(g)(vii)
and 4(g)(viii)).
(C) Third- subject to the above sub-paragraph (B) and Condition
4(g)(iii), payment (in the following order of priority) of:
(1) pari passu and rateably as between themselves, payments
of:
(I) the Trustee's Fee for the Collection Period (as
adjusted in accordance with Condition 4(g)(viii));
and
(II) any fees payable to the Note Trustee under the
Transaction Documents for the Collection Period;
(2) pari passu and rateably as between themselves, payments
of:
(I) any fees payable, pari passu and rateably, to the
Paying Agents under the Transaction Documents for
the Collection Period; and
(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
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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 ending 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 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 on that Payment Date in order
to enable the Issuer to meet its obligations to
pay Interest on the Class A2 Notes on that Payment
Date;
(4) (I) prior to the termination of the Class A3 Currency
Swap, payment to the Class A3 Currency Swap
Provider of the Class A3 A$ Interest Amount for
that Payment Date (and any reciprocal payment by
the Class A3 Currency Swap Provider is thereafter
to be applied in accordance with Condition 5(d)(i)
towards payment of Interest on the Class A3
Notes); and
(II) after the termination of the Class A3 Currency
Swap, to the Note Trustee for application in
accordance with
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Condition 5(d) 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 A3 Notes on that Payment Date.
(5) payment of any Interest for the Interest Period for the
Class A4 Notes ending on that Payment Date to the Class
A4 Noteholders;
(6) 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; and
(7) payment to the Class A3 Currency Swap Provider of any
Break Costs payable under the Class A3 Currency Swap
other than in respect of the termination of the Class
A3 Currency Swap where the Class A3 Currency Swap
Provider is the Defaulting Party.
(F) Sixth - pari passu and rateably based on the amount owing as
between themselves:
(1) payment of any Interest for the Interest Period for the
Class B2 Notes ending 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 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 that 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 - to be applied by the Issuer as Mortgage Principal
Repayments received by the Issuer during the corresponding
Collection Period, of an amount equal to the aggregate of
all amounts previously applied under
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Condition 5(b)(i)(A)(1), to the extent not previously so
replenished under this sub-paragraph.
(H) Eighth - in reducing the Aggregate Principal Loss Amount for
the corresponding Collection Period until the Aggregate
Principal Loss Amount is reduced to zero.
(I) Ninth - in reducing any Carryover Charge-offs that have not
been reduced prior to that Payment Date until the Carryover
Charge-offs are reduced to zero.
(J) Tenth - in payment pari passu and rateably of any Break
Costs payable to:
(1) the Interest Rate Swap Provider in respect of the
termination of the Interest Rate Swap; and
(2) a Currency Swap Provider in respect of the termination
of a Currency Swap where the Currency Swap Provider is
the Defaulting Party.
(K) Eleventh - in payment of any Approved Seller's Fee.
(L) Twelfth - subject to clause 15.1(d) of the Series Notice, in
payment of the balance, by way of a distribution of the
income of the Trust, to the Residual Income Beneficiaries in
proportion to their respective Income Percentages.
(ii) The obligation of the Issuer to make any payment under each of
the above paragraphs of this Condition 4(g)(i) is limited in each
case to the Income, Liquid Authorised Investments and Mortgage
Principal Repayments or (as the case may be) to the balance of
the Income, Liquid Authorised Investments and Mortgage Principal
Repayments available after payment in accordance with the
preceding paragraph or paragraphs (if any).
(iii) In the event that for any reason whatsoever the Issuer does not
have sufficient cash to make all of the payments as provided in
Conditions 4(g)(i) and 4(g)(v) then the amount available to be
paid shall be distributed in the order of priority of
distribution as referred to in Condition 4(g)(i), and:
(A) in the case of the payment of Interest to Class A1
Noteholders, Class A2 Noteholders, Class A3 Noteholders or
Class A4 Noteholders under sub-paragraph (i)(E), the
proportion of any amount available to be paid to each
Noteholder of such Class shall be the proportion which the
Principal Amount of the Notes of that Class held by that
Noteholder bears to the Total Principal Amount of all Notes
of that Class; and
(B) in the case of the payment of Interest to Class B1
Noteholders or Class B2 Noteholders under sub-paragraph
(i)(F), the proportion of any amount available to be paid to
each Noteholder of such Class shall be the proportion which
the Principal Amount of that Class held by that Noteholder
bears to the Total Principal Amount of all Notes of that
Class.
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(iv) In the event that:
(A) the Issuer receives a payment under Condition 4(g)(i)(C) or
4(g)(v) for Expenses which the Issuer reasonably anticipates
will be incurred prior to the next Payment Date; and
(B) all or any part of such Expenses are not actually incurred
prior to that next Payment Date,
then the following provisions apply:
(C) the Issuer shall repay into the Assets of the Trust on that
next Payment Date such excess amount which was not actually
incurred; or
(D) if the Issuer fails to repay the amount in accordance with
sub-paragraph (iv)(C), then such amount shall be set-off
against the amount which would otherwise be payable under
sub-paragraph (i)(C) to the Issuer with respect to such
Expenses on that next Payment Date.
(v) If, during any Financial Year, the Income accrued for a
Collection Period to be applied on the corresponding Payment Date
is less than the aggregate of the amounts payable by the Issuer
under Conditions 4(g)(i)(A) to 4(g)(i)(F) (inclusive) on that
Payment Date (the Shortfall) then the Issuer shall (at the
direction of the Trust Manager) apply:
(A) first, Liquid Authorised Investments; and
(B) second, to the extent the Liquid Authorised Investments are
insufficient to cover the Shortfall in full, Mortgage
Principal Repayments,
in payment of those amounts in the order of priority set out in
Condition 4(g)(i), to the extent available to do so.
(vi) If any Approved Seller's Fee is not paid in full on a relevant
Payment Date, then the unpaid balance shall bear interest at a
rate determined by the Trust Manager and advised to the Issuer
from time to time, such interest to be calculated on a daily
balance from the due date up to and including the date of actual
payment.
(vii) Any GST which applies or may apply in respect of any services
provided pursuant to the Transaction Documents by the Trust
Manager in relation to the Trust will be paid by the Trust
Manager from the Trust Manager's Fee or from the Trust Manager's
own resources.
(viii) In relation to any supply by the Issuer under the Transaction
Documents of goods or services in relation to the Trust, the fee
payable will be adjusted to take into account any change after 1
July 2000 in the rate of GST payable pursuant to the A New Tax
System (Goods and Services Tax Imposition - General) Act 1999.
(ix) Interest to which any Noteholder may be entitled in respect of a
Note for an Interest Period shall only fall due for payment by
the Issuer to the Noteholder upon the applicable Payment Date.
(h) Redraws
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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 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 shall make such directions to the Issuer, and
the Issuer must comply with those directions required to ensure
that, subject to sub-paragraph (ii), the value of the Liquid
Authorised Investments is not at any time less than the
Prescribed Minimum Level at that time.
(ii) The Trust Manager must direct the Issuer, and the Issuer must, at
the direction of the Trust Manager, apply all or part of the
Liquid Authorised Investments towards payment of the Shortfall in
the amounts referred to in Conditions 4(g)(i)(A) to 4(g)(i)(F)
(inclusive) as provided in Condition 4(g)(v).
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
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The US$ Notes are subject to mandatory redemption in part on any
Payment Date if on that date there are any Mortgage Principal
Repayments, (subject to the Prescribed Minimum Level) Liquid
Authorised Investments and the Recovery Amount available to be
distributed in relation to such US$ Notes (as detailed in Condition
5(b)). The principal amount so redeemable in respect of each US$ Note
prior to enforcement of the Security Trust Deed (each a Principal
Payment) on any Payment Date is subject to the priorities set out in
Condition 5(b) and will be the amount available for payment as set out
in Condition 5(b) on the day which is 4 Business Days before the
Payment Date divided by the number of US$ Notes in that Class which
are then outstanding (rounded down to the nearest cent), provided
always that no Principal Payment on a US$ Note on any date may exceed
the amount equal to the Principal Amount of that US$ Note at that
date.
The amount of mandatory principal redemptions after enforcement of the
Security Trust Deed is subject to the priority of payments set out in
the Security Trust Deed.
Notice of amounts to be redeemed will be provided by the Trust Manager
to the Issuer, the Calculation Agent, the Principal Paying Agent, each
Currency Swap Provider and the Note Trustee.
(b) Principal Distributions on Notes prior to the enforcement of the
Security Trust Deed
(i) (A) All Mortgage Principal Repayments which are received by the
Issuer in each Collection Period, except to the extent the
Trust Manager directs the Issuer in writing that such moneys
be applied or retained for Liquidity Purposes in accordance
with the provisions of the Series Notice and (subject to
Condition 5(b)(i)(C)) any Liquid Authorised Investments and
the Recovery Amount for the corresponding Payment Date must,
prior to the enforcement of the Security Trust Deed, be
deposited or paid by the Issuer (at the direction of the
Trust Manager, such direction to be given on or before the
date which is 4 Business Days before the relevant Payment
Date) on the corresponding Payment Date in the following
order of priority.
(1) First - in accordance with Condition 4(g)(v).
(2) Second - to replenish Liquid Authorised Investments
until the value of the Liquid Authorised Investments
equals the Prescribed Minimum Level.
(3) Third - to 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.
(4) Fourth -
(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).
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(5) Fifth - subject to clauses 10.2(c) and 15.1(d) of the
Series Notice, in payment of the balance by way of a
distribution of the capital of the Trust, to the
Residual Income Beneficiaries in proportion to their
respective Income Percentages.
The obligation of the Issuer to make any deposit or
payment under each of the above paragraphs of Condition
5(b)(i) is limited in each case to the Mortgage
Principal Repayments, (subject to Condition 5(b)(i)(C))
Liquid Authorised Investments and the Recovery Amount
or (as the case may be) to the balance of the Mortgage
Principal Repayments, (subject to Condition 5(b)(i)(C))
Liquid Authorised Investments and the Recovery Amount
available after deposit or payment in accordance with
the preceding paragraph or paragraphs (if any).
(B) The proportion of any amount available to be paid to any
Noteholder as contemplated in Condition 5(b) in respect of
any Class of Notes will be the proportion which the
Principal Amount of the Note in respect of that Class of
Notes held by that Noteholder bears to the Total Principal
Amount of all Notes in respect of that Class of Notes.
(C) The Trust Manager must not direct the Issuer to, and the
Issuer must not, deposit or pay any Liquid Authorised
Investments under Condition 5(b)(i)(A)(3), 5(b)(i)(A)(4) or
5(b)(i)(A)(5) where such deposit or payment would result in
the value of the Liquid Authorised Investments being less
than the Prescribed Minimum Level.
(ii) On any Payment Date when the Total Principal Amount of all Notes
does not exceed 10% of the Initial Principal Amount of all Notes
the Issuer must, if so directed in writing by the Trust Manager
on or before the date which is 4 Business Days before that
Payment Date, repay the whole of the Principal Amount of all
Notes together with any outstanding Interest in relation to those
Notes subject to the following conditions:
(A) the Trust Manager having provided to:
(1) each relevant Noteholder, the Issuer and the Note
Trustee, 30 days' prior notice (in the case of US$
Noteholders, in accordance with Condition 12); and
(2) each Designated Rating Agency, 30 days' prior written
notice,
of the Trust Manager's intention to direct the Issuer to
redeem the relevant Notes under this sub-paragraph;
(B) the Issuer having sufficient cash to make such repayment
(upon which the Issuer may rely conclusively on a
certification from the Trust Manager);
(C) the Issuer retaining such amount as the Trust Manager or the
Issuer reasonably determines will be necessary to satisfy
any outstanding or anticipated Expenses or payment to any
Swap Provider under a Hedge Agreement; and
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(D) the repayment being made in the order of priority set out in
Condition 5(b)(i).
(iii) On any Payment Date on or after a Step-Up Margin Date the Issuer
must, if so directed by the Trust Manager on or before the date
which is 4 Business Days before that Payment Date, repay the
whole of the Principal Amount of any Class of Notes together with
any outstanding Interest in relation to those Notes subject to
the following conditions:
(A) the Trust Manager having provided to:
(1) each relevant Noteholder, the Issuer and the Note
Trustee, 30 days' prior notice (in the case of US$
Noteholders, in accordance with Condition 12); and
(2) each Designated Rating Agency, 30 days' prior written
notice, of the Trust Manager's intention to direct the
Issuer to redeem the relevant Notes under this
sub-paragraph;
(B) the Trust Manager receiving from each Designated Rating
Agency written confirmation that the repayment will not
result in a downgrade or withdrawal of the rating of any
other Notes;
(C) the Issuer having sufficient cash to make such repayment
(upon which the Issuer may rely conclusively on a
certification from the Trust Manager);
(D) the Issuer retaining such amount as the Trust Manager or the
Issuer reasonably determines will be necessary to satisfy
any outstanding or anticipated Expenses, payment to any
Noteholder in respect of a Note (other than a Note in
respect of which Principal Amount and Interest are to be
repaid) or payment to any Swap Provider under a Hedge
Agreement; and
(E) the repayment being made in the order of priority set out in
Condition 5(b)(i).
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,
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Notes held by that Noteholder.
(v) The Issuer may not recover any Beneficiary distribution from a
Beneficiary once it is paid to that Beneficiary except where
there has been an error in the relevant calculation of the
Beneficiary distribution.
(vi) If, on a Payment Date, the Trust Manager directs the Issuer that
the Threshold Requirements are satisfied, amounts applied under
Condition 5(b)(i)(A)(4)(I) must be deposited or paid, pari passu
and rateably:
(A) (1) prior to the termination of the Class A2 Currency
Swap, to the Class A2 Currency Swap Provider of
the Class A2 A$ Equivalent of the Principal Amount
of the Class A2 Notes on that Payment Date (and
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)) until such time as all Class
A2 Notes have been redeemed in full; 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
Principal Amount of the Class A2 Notes on that Payment
Date until such time as all Class A2 Notes have been
redeemed in full;
(B) (1) prior to the termination of the Class A3 Currency
Swap, to the Class A3 Currency Swap Provider of
the Class A3 A$ Equivalent of the Principal Amount
of the Class A3 Notes on that Payment Date (and
any reciprocal payment by the Class A3 Currency
Swap Provider is thereafter to be applied in
accordance with Condition 5(d)(ii) towards payment
of the Principal Amount of the Class A3 Notes (in
the proportion as specified in sub-paragraph
(i)(B)) until such time as all Class A3 Notes have
been redeemed in full; and
(2) after the termination of the Class A3 Currency Swap, to
the Note Trustee for application in accordance with
Condition 5(d) of the Class A3 A$ Equivalent of the
Principal Amount of the Class A3 Notes on that Payment
Date until such time as all Class A3 Notes have been
redeemed in full;
(C) to Class A4 Noteholders (in the proportion as specified in
sub-paragraph (i)(B)) in payment of the Principal Amount of
the Class A4 Notes until such time as all Class A4 Notes
have been redeemed in full;
(D) (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 Principal Amount
of the Class B1 Notes on that Payment Date (and
any reciprocal payment by the Class B1 Currency
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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)) until such time as all Class B1 Notes have
been redeemed in full; 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
Principal Amount of the Class B1 Notes on that Payment
Date until such time as all Class B1 Notes have been
redeemed in full; and
(E) 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 until such time as all Class B2 Notes
have been redeemed in full;
provided that each such amount specified in Condition 5(b)(vi)
shall only be deposited or paid to the extent that such deposit
or payment will not result in a breach of the Threshold
Requirements.
(vii) If, on a Payment Date, the Trust Manager directs the Issuer that
the Threshold Requirements are not satisfied, amounts applied
under Condition 5(b)(i)(A)(4)(II) must be deposited or paid in
the following order of priority:
(A) first, pari passu and rateably:
(1) (I) 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 Principal Amount
of the Class A2 Notes on that Payment Date (and
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
(II) 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 Principal Amount of the Class A2
Notes on that Payment Date,
and, in each case, until such time as the Class A2
Notes have been redeemed in full;
(2) (I) prior to the termination of the Class A3 Currency
Swap, to the Class A3 Currency Swap Provider of
the Class A3 A$ Equivalent of the Principal Amount
of the Class A3 Notes on that Payment Date (and
any reciprocal payment by the Class A3 Currency
Swap Provider is thereafter to be applied in
accordance with
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Condition 5(d)(ii) towards payment of the
Principal Amount of the Class A3 Notes (in the
proportion as specified in sub-paragraph (i)(B));
and
(II) after the termination of the Class A3 Currency
Swap, to the Note Trustee for application in
accordance with Condition 5(d) of the Class A3 A$
Equivalent of the Principal Amount of the Class A3
Notes on that Payment Date,
and, in each case, until such time as the Class A3
Notes have been redeemed in full;
(3) to Class A4 Noteholders (in the proportion as specified
in sub-paragraph (i)(B)) in payment of the Principal
Amount of the Class A4 Notes, until such time as the
Class A4 Notes have been redeemed in full.
(B) second, 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 Principal Amount
of the Class B1 Notes on that Payment Date (and
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
(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 Principal Amount of the Class B1
Notes on 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 that Currency Swap
Provider under each relevant Currency Swap into the US$ Account or to
the Principal Paying Agent under the Agency Agreement. The Issuer has
given this direction in each relevant Currency Swap.
The Note Trustee must, on each Payment Date on which the Issuer pays
an amount under Condition 4(g)(i)(E)(3)(II), 4(g)(i)(F)(2)(II),
5(b)(vi)(A)(2), 5(b)(vi)(D)(2),
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5(b)(vii)(A)(1)(II) or 5(b)(vii)(B)(1)(II) (the AUD US$ Amount), pay
into the US$ Account or to the Principal Paying Agent under the Agency
Agreement, an amount in US$ equal to the AUD US$ Amount at the spot
exchange rate in New York City for US$ purchases of Australian dollars
on that Payment Date.
The Issuer must, or must require that the Paying Agents on its behalf,
at the direction of the Trust Manager pay all such amounts as follows,
and in accordance with the Note Trust Deed and the Agency Agreement
(the following not in any order of priority):
(i) as contemplated in Conditions 4(g)(i)(E)(3)(I) and
4(g)(i)(E)(3)(II), pari passu to Class 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)(I) and 5(b)(vii)(A)(1)(II), 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)(2)(I) and
4(g)(i)(F)(2)(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)(D)(1), 5(b)(vi)(D)(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):
(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 Conditions 5(g), 5(h) and 5(i):
(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) Euro Account
The Issuer must direct each Currency Swap Provider to pay all amounts
denominated in Euros payable to the Issuer by that Currency Swap
Provider under each relevant Currency Swap into the Euro Account or to
the Principal Paying Agent under the Agency Agreement. The Issuer has
given this direction in each relevant Currency Swap.
The Note Trustee must, on each Payment Date on which the Issuer pays
an amount under Condition 4(g)(i)(E)(4)(II), 5(b)(vi)(B)(2) or
5(b)(vii)(A)(2)(II) (the AUD Euro Amount), pay into the Euro Account
or to the Principal Paying Agent under the Agency Agreement, an amount
in Euros equal to the AUD Euro Amount at the spot exchange rate in
[London] for Euro purchases of Australian dollars on that Payment
Date.
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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)(4)(I) and
4(g)(i)(E)(4)(II), pari passu to Class A3 Noteholders in relation
to Class A3 Notes as payments of Interest on those Class A3
Notes;
(ii) as contemplated in Conditions 5(b)(vi)(B)(1), 5(b)(vi)(B)(2),
5(b)(vii)(A)(2)(I) and 5(b)(vii)(A)(2)(II), pari passu to Class
A3 Noteholders in payment of the Principal Amount of the Class A3
Notes until such time as all Class A3 Notes have been redeemed;
(iii) as contemplated in Conditions 5(b)(ii) and 5(b)(iii), pari passu
to Class A3 Noteholders in relation to Class A3 Notes as payment
of redemption amounts; and
(iv) as contemplated in Condition 5(g), 5(h) and 5(i), pari passu to
Class A3 Noteholders in relation to Class A3 Notes as payment of
redemption amounts.
(e) Calculation of Principal Payments and Principal Amount
(i) On each date which is 4 Business Days before each Payment Date,
the Trust Manager must determine:
(A) the amount of any Principal Payment in respect of each US$
Note on the Payment Date following that date; and
(B) the Principal Amount of each US$ Note as at the first day of
the next following Interest Period for the US$ Notes (after
deducting any Principal Payment due to be made in respect of
each US$ Note on the next Payment Date).
(ii) The Trust Manager must notify the Issuer, the Note Trustee, each
Paying Agent, the Calculation Agent and each Currency Swap
Provider by not later than (or as soon as practicable after) the
date which is 4 Business Days before the relevant Payment Date of
each determination with respect to the US$ Notes of the Principal
Payment and Principal Amount in respect of that Payment Date and
will immediately cause details of each of those determinations to
be published in accordance with Condition 12. If no Principal
Payment is due to be made on the Class 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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(f) 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.
(g) Redemption for Taxation or Other Reasons
If the Trust Manager satisfies the Issuer and the Note Trustee
immediately prior to giving the notice referred to below that:
(i) on the next Payment Date the Issuer or a Paying Agent would be
required to deduct or withhold from any payment:
(A) of principal or interest in respect of the Notes; or
(B) to a Currency Swap Provider under a Currency Swap,
any amount for or on account of any present or future taxes,
duties, assessments or governmental charges of whatever nature
imposed, levied, collected, withheld or assessed by any
Government Agency; or
(ii) a Government Agency requires the deduction or withholding from
any payment by an Obligor in respect of a Purchased Loan of any
amount for or on account of any taxes, duties, assessments or
governmental charges of whatever nature imposed, levied,
collected, withheld or assessed by that Government Agency,
the Issuer must, when so directed by Noteholders representing at least
75% of the outstanding Principal Amount of the Notes (provided that
the Issuer will be in a position on the next Payment Date to discharge
(and the Trust Manager will so certify to the Issuer and the Note
Trustee upon which certification the Issuer and the Note Trustee will
rely conclusively) all its liabilities in respect of the Notes (at
their relevant Principal Amount) and any amounts which would be
required under the Security Trust Deed to be paid in priority or pari
passu with the Notes if the security for the Notes were being
enforced), having given not more than 60 nor less than 45 days notice
to the Noteholders (in the case of US$ Noteholders, in accordance with
Condition 12), redeem all, but not some only, of the Notes at their
relevant Principal Amount together with accrued interest to (but
excluding) the date of redemption on the next Payment Date, provided
that the redemption is made in the order of priority set out in
Condition 5(b)(i).
(h) Redemption for Gross Up under Currency Swaps
If the Trust Manager satisfies the Issuer and the Note Trustee
immediately prior to giving the notice referred to below that on the
next Payment Date a Currency Swap Provider would be required to deduct
or withhold from any payment under a Currency Swap any amount for or
on account of any present or future taxes, duties, assessments or
governmental charges of whatever nature imposed, levied, collected,
withheld or assessed by any Government Agency, the Issuer must, when
so directed by the Trust Manager (in its sole discretion) (provided
that the Issuer will be in a position on such Payment Date to
discharge (and the Trust Manager will so certify to the Issuer and the
Note Trustee) all its
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liabilities in respect of the Notes (at their relevant Principal
Amount) and any amounts which would be required under the Security
Trust Deed to be paid in priority or pari passu with the Notes if the
security for the Notes were being enforced), having given not more
than 60 nor less than 45 days notice to the Noteholders, redeem all,
but not some only, of the Notes at their relevant Principal Amount
together with accrued interest to (but excluding) the date of
redemption on the next Payment Date, provided that the redemption is
made in the order of priority set out in Condition 5(b)(i).
(i) Redemption on Maturity
If not otherwise redeemed, the Issuer must redeem US$ Notes at their
Principal Amount on the Maturity Date.
(j) 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.
(k) 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 amount of such excess will be the Charge-off for that
Payment Date.
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(a) of the Note Trust Deed, with
respect to US$ Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially such Clearing Agency to be DTC
and such nominee to be Cede & Co.), payment will be made by wire transfer
in immediately available funds to the account designated by such nominee.
(a) Initial Principal Paying Agent
The initial Principal Paying Agent is [The Bank of New York, New York
branch] at its office at [101 Barclay Street, 21W, New York, New York,
10286].
(b) Paying Agents
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The Issuer (or the Trust Manager on its behalf with the consent of the
Issuer, such consent not to be unreasonably withheld), may at any time
(with the previous written approval of the Note Trustee) vary or
terminate the appointment of any Paying Agent and appoint additional
or other Paying Agents, provided that it will at all times maintain a
Paying Agent having a specified office in New York City and a Paying
Agent having a specified office in [London] (which may be the same
person). Notice of any such termination or appointment and of any
change in the office through which any Paying Agent will act will be
given by the Trust Manager on behalf of the Issuer in accordance with
Condition 12.
(c) Payment on Business Days
If the due date for payment of any amount of principal or Interest in
respect of any US$ Note is not a Business Day then payment will be
made on the next succeeding Business Day unless that day falls in the
next calendar month, in which case the due date will be the preceding
Business Day and the holder of that US$ Note is not entitled to any
further interest or other payment in respect of that delay.
(d) Interest on unpaid Interest
If Interest is not paid in respect of a US$ Note on the date when due
and payable (other than because the due date is not a Business Day),
that unpaid Interest will itself bear interest (both before and after
judgment) at the relevant Interest Rate applicable from time to time
to the relevant US$ Note until the unpaid Interest, and interest on
it, is available for payment and notice of that availability has been
duly given in accordance with Condition 12.
7. CONDITION 7. Taxation
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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 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
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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 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
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(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;
(vii) the Issuer is or makes a statement from which it may be
reasonably deduced that the Issuer is, the subject of an event
described in section 459C(2)(b) or section 585 of the
Corporations Act;
(viii) the Issuer takes any step to obtain protection or is granted
protection from its creditors, under any applicable legislation;
or
(ix) anything analogous to an event referred to in sub-paragraphs (i)
to (viii) (inclusive) or having substantially similar effect
occurs with respect to the Issuer.
(d) The charge created by the Security Trust Deed is not or ceases to be a
first ranking charge over the assets of the Trust, or any other
obligation of the Issuer (other than as mandatorily preferred by law)
ranks ahead of or pari passu with any of the moneys secured by the
Security Trust Deed.
(e) Any security interest over the assets of the Trust is enforced.
(f) (i) For so long as any Secured Moneys are owing to the Class A
Noteholders, an Interest Rate Swap, Class A2 Currency Swap or
Class A3 Currency Swap is terminated and a replacement Interest
Rate Swap, Class A2 Currency Swap or Class A3 Currency Swap (as
the case may be) on terms that will not lead to a withdrawal or
downgrade of the rating assigned to any Notes, is not put in
place; or
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(ii) at any other time, an Interest Rate Swap or Class B1 Currency
Swap is terminated and a replacement Interest Rate Swap or Class
B1 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 Notes immediately due and payable and
declare the charge to be enforceable. If an Extraordinary Resolution
of Voting Mortgagees referred to above elects not to direct the
Security Trustee to enforce the Security Trust Deed, in circumstances
where the Security Trustee could enforce, the Note Trustee must, at
the direction of the relevant Class of US$ Noteholders (by an
Extraordinary Resolution of those US$ Noteholders (as defined in the
Note Trust Deed) or in writing by the holders of at least 75% of the
aggregate Principal Amount of the US$ Notes in that Class), direct the
Security Trustee to enforce the Security Trust Deed on behalf of that
Class of Noteholders.
Voting Mortgagee means:
(i) with respect only to the enforcement of the charge under the
Security Trust Deed, for so long as the amounts outstanding under
the 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 Non-A$ 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
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continuing, the Non-A$ Noteholders and then only if and to the
extent that the Non-A$ 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 and the Class A3 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 the Class A3
Noteholders and then only if and to the extent that the
Class A2 Noteholders and the Class A3 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:
(i) the Note Trustee is of the opinion, reached after considering at
any time and from time to time the advice of a merchant bank or
other financial advisor selected by the Note Trustee, that a
sufficient amount would be realised to discharge in full all
amounts owing to the US$ Noteholders and any other amounts
payable by the Issuer ranking in priority to or pari passu with
the US$ Notes; or
(ii) the Note Trustee is of the opinion, reached after considering at
any time and from time to time the advice of a merchant bank or
other financial advisor selected by the Note Trustee, that the
cash flow receivable by the Issuer (or the Security Trustee under
the Security Trust Deed) will not (or that there is a significant
risk that it will not) be sufficient, having regard to any other
relevant actual, contingent or prospective liabilities of the
Issuer, to discharge in full in due course all the amounts
referred to in sub-paragraph (i).
(c) Neither the Note Trustee (except in the case of negligence, fraud or
wilful default by it) nor the Security Trustee (except in the case of
negligence, fraud or wilful default by it) will be
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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 relevant Class of US$ Noteholders; or
(ii) in writing by the holders of at least three-quarters of the
aggregate Principal Amount of the relevant Class of US$ Notes, and
then only if the Note Trustee is indemnified to its satisfaction
against all action, proceedings, claims and demands to which it may
render itself liable and all costs, charges, damages and expenses
which it may incur by so doing.
(e) Only the Security Trustee may enforce the provisions of the Security
Trust Deed and neither the Note Trustee nor any holder of a US$ Note
is entitled to proceed directly against the Issuer to enforce the
performance of any of the provisions of the Security Trust Deed or the
US$ Notes (including these Conditions) except as provided for in the
Security Trust Deed and the Note Trust Deed.
(f) The rights, remedies and discretions of the US$ Noteholders under the
Security Trust Deed including all rights to vote or give instructions
or consent can only be exercised by the Note Trustee on behalf of the
US$ Noteholders in accordance with the Security Trust Deed. The
Security Trustee may rely on any instructions or directions given to
it by the Note Trustee as being given on behalf of the US$ Noteholders
from time to time and need not enquire whether the Note Trustee or the
US$ Noteholders from time to time have complied with any requirements
under the Note Trust Deed or as to the reasonableness or otherwise of
the Note Trustee. The Security Trustee is not obliged to take any
action, give any consent or waiver or make any determination under the
Security Trust Deed without being directed to do so by the Voting
Mortgagees in accordance with the Security Trust Deed.
(g) Prior to the Security Trustee becoming actually aware of the
occurrence of an Event of Default and provided that it has been
indemnified in accordance with the Security Trust Deed, the Security
Trustee may enforce the Security Trust Deed without an Extraordinary
Resolution of the Voting Mortgagees if it believes (in its absolute
discretion) that it is necessary to do so to protect the interests of
the Mortgagees (provided that it must enforce the Security Trust Deed
if so directed by an Extraordinary Resolution of the Voting
Mortgagees).
Upon enforcement of the charge created by the Security Trust Deed, the net
proceeds of enforcement may be insufficient to pay all amounts due on
redemption of the Notes. The proceeds from enforcement (which will not
include amounts required by law to be paid to the holder of any prior
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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 Payment Date, an Interest
Rate, any Interest payable, any Principal Payment (or the absence
of a Principal Payment) or the Principal Amount of any US$ Note
after any Principal Payment, that notice is published on a page
of the Reuters Screen or the electronic information system made
available by Bloomberg L.P. or any other similar electronic
reporting service as may be approved by the Note Trustee in
writing and notified to the US$ Noteholders.
Such notice will be deemed to be given on the first date on which
it appears on the relevant electronic reporting service.
(b) If, for any reason, it is impractical to give notice in the manner
provided in paragraph (ii) of Condition 12(a), then the manner of
giving notice referred to in paragraph (i) of Condition 12(a) shall be
deemed to be a sufficient giving of notice.
(c) Where these conditions provide for notice in any manner, such notice
may be waived in writing by any person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by US$ Noteholders shall
be filed with the Note Trustee but such filing shall not be a
condition precedent to the validity of any action taken in reliance
upon such a waiver.
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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 (among
others) US$ Noteholders and Classes of US$ Noteholders to consider any
matter affecting their interests, including the directing of the Note
Trustee to direct the Security Trustee to enforce the charge under the
Security Trust Deed, or the sanctioning by Extraordinary Resolution of a
Class of US$ Noteholders of a modification of that Class of US$ Notes
(including these Conditions) or the provisions of any of the Relevant
Documents, provided that no modification of certain terms including, among
other things, the date of maturity of any US$ Notes, or a modification
which would have the effect of altering the amount of interest payable in
respect of a US$ Note or modification of the method of calculation of the
interest payable or of the date for payment of interest in respect of any
US$ Notes, reducing or cancelling the amount of principal payable in
respect of any US$ Notes or altering the majority required to pass an
Extraordinary Resolution or altering the currency of payment of any US$
Notes or an alteration of the date or priority of payment of interest on,
or redemption of, any US$ Notes (any such modification being referred to
below as a Basic Terms Modification) will be effective except that, if the
Note Trustee is of the opinion that such a Basic Terms Modification is
being proposed by the Issuer as a result of, or in order to avoid, an Event
of Default, such Basic Terms Modification may be sanctioned by
Extraordinary Resolution of the relevant Class of US$ Noteholders as
described below. The quorum at any meeting of a Class of US$ Noteholders
for passing an Extraordinary Resolution will be two or more persons holding
or representing over 50% of the aggregate Principal Amount of the US$ Notes
in that Class then outstanding or, at any adjourned meeting, two or more
persons being or representing US$ Noteholders in that Class whatever the
aggregate Principal Amount of the US$ Notes so held or represented except
that, at any meeting the business of which includes the sanctioning of a
Basic Terms Modification, the necessary quorum for passing an Extraordinary
Resolution will be two or more persons holding or representing 75% or at
any adjourned such meeting 25%, or more of the aggregate Principal Amount
of the US$ Notes in that Class then outstanding. An Extraordinary
Resolution passed at any meeting of a Class of US$ Noteholders will be
binding on all US$ Noteholders in that Class, whether or not they are
present at the meeting. The majority required for an Extraordinary
Resolution will be 75% of the votes cast in respect of that Extraordinary
Resolution.
Pursuant to the terms of the Note Trust Deed, the Note Trustee, the Trust
Manager and the Issuer may agree, without the consent of the US$
Noteholders, among other things, to any alteration, addition or
modification to the Notes or any Transaction Document that is:
(a) to correct a manifest error or ambiguity or is of a formal, technical
or administrative nature only;
(b) in the opinion of the Note Trustee, necessary to comply with the
provisions of any law or regulation or with the requirements of any
governmental authority;
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(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.
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.
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(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 Documents) to fulfil its
obligations relating to the Trust or by any other act or omission
of any Relevant Party (other than a person whose acts or
omissions the Issuer is liable for in accordance with the
Transaction Documents) regardless of whether or not that act or
omission is purported to be done on behalf of the Issuer.
(v) No attorney, agent, receiver or receiver and manager appointed in
accordance with a Transaction Document has authority to act on
behalf of the Issuer in a way which exposes the Issuer to any
personal liability and no act or omission of any such person will
be considered fraud, negligence or wilful default of the Issuer
for the purpose of paragraph (iii) of this Condition 15, provided
(in the case of any person selected and appointed by the Issuer)
that the Issuer has exercised reasonable care in the selection of
such persons.
(vi) In this Condition 15(b), Relevant Party means each of the Trust
Manager, the Servicer, the Calculation Agent, each Paying Agent,
the Note Trustee and any Support Facility Provider.
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16. CONDITION 16. Governing Law
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The US$ Notes and the Relevant Documents are governed by, and shall be
construed in accordance with, the laws of New South Wales, Australia. The
Note Trust Deed is governed by the laws of New South Wales, Australia and
the administration of the trust constituted under the Note Trust Deed is
governed (to the extent that it relates to US$ Notes or US$ Noteholders) 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 Depository for
DTC on or about the Closing Date. Upon deposit of the Global Notes with the
Common Depository, DTC will credit each investor in the US$ Notes with a
principal amount of US$ Notes for which it has subscribed and paid.
Each Global Note will be exchangeable for definitive Notes in certain
circumstances described below.
(a) Payments
Interest and principal on each Global Note will be payable by the each Paying
Agent to the Common Depository.
Each of the persons appearing from time to time as the beneficial owner of a US$
Note will be entitled to receive any payment so made in respect of that US$ Note
in accordance with the respective rules and procedures of DTC. Such persons will
have no claim directly against the Issuer in respect of payments due on the US$
Notes which must be made by the Issuer to the holder of the relevant Global Note
for so long as such Global Note is outstanding.
A record of each payment made on a Global Note, distinguishing between any
payment of principal and any payment of interest, will be recorded in the Note
Register by the Note Registrar and such record shall be prima facie evidence
that the payment in question has been made.
(b) Exchange
A Global Note will be exchangeable for Definitive Notes only if:
(i) the Principal Paying Agent advises the Trust Manager in writing that
DTC is no longer willing or able to discharge properly its
responsibilities as depository for the US$ Notes and the Trust Manger
is unable to locate a qualified successor; or
(ii) the Issuer, at the direction of the Trust Manager, advises the
Principal Paying Agent in writing that it has elected to terminate the
book-entry system through DTC; or
(iii) after the occurrence of an Event of Default, the Note Trustee, at the
written direction of Noteholders holding a majority of the outstanding
Principal Amount of the US$ Notes, advises the Issuer and the
Principal Paying Agent that the continuation of a book-entry system is
no longer in the best interests of the US$ Noteholders.
If any event referred to above occurs, the Trust Manager must direct the Issuer
to, and the Issuer must (at its expense), within 30 days of becoming aware of
the occurrence of the relevant event, issue Definitive Notes in exchange for the
whole of the outstanding interest in the relevant Global Note.
(c) Notices
So long as the US$ Notes are represented by Global Notes and the same are held
on behalf of a Clearing Agency, notices to US$ Noteholders may be given to the
relevant Clearing Agency for communication by it
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to entitled account holders in substitution for delivery to each Note Owner of a
US$ Note as required by the relevant Conditions.
(d) Cancellation
Cancellation of any US$ Note required by the relevant Conditions will be
effected by reduction in the principal amount of the relevant Global Note.
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Schedule 5
Part B
Terms and Conditions of Class A3 Notes
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[To be inserted once finalised]
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