Note Trust Deed
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
(Trustee)
CRUSADE MANAGEMENT LIMITED
(Manager)
THE BANK OF NEW YORK
(Note Trustee)
THE BANK OF NEW YORK
(Principal Paying Agent)
THE BANK OF NEW YORK
(Calculation Agent)
P.T. LIMITED
(Security Trustee)
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Deutsche Bank Place
Corner Hunter and Phillip Streets
Sydney NSW 2000
Tel ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
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(C) Copyright ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2006
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CROSS REFERENCE TABLE(1)
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TRUST INDENTURE ACT SECTION CLAUSE
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310 (a)(1) 23.6
(a)(2) 23.6(b)
(a)(3) 23.6
(a)(4) 22.2(b)
(a)(5) NA(2)
(b) 23.6
(c) NA
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311 (a) 13.1
(b) 13.1
(c) NA
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312 (a) 35.1, 35.2(a)
(b) 35.2(b)
(c) 35.2(c)
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313 (a) 35.3
(b)(1) 35.3
(b)(2) NA
(c) 35.4
(d) 35.3
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314 (a)(1) 35.5
(a)(2) 35.5
(a)(3) 35.5
(a)(4) 11(j)
(b) 11(l)
(c) 36.1(a)
(d) 36.1(b)
(e) 36.1(c)
(f) 36.1(a)
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315 (a) 13.2(b)
(b) 13.4
(c) 13.2(a)
(d) 13.2(c), (d)
(e) 36.2
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316 (a)(1) 36.3
(a)(2) 37.2(b)
(b) 36.4, 37.2(a)
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317 (a)(1) 6.1
(a)(2) NA
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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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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions and Interpretation 2
1.2 Definitions in Master Trust Deed, Supplementary Terms Notice and Conditions 4
1.3 Incorporation by reference 4
1.4 Interpretation 5
1.5 Determination, statement and certificate sufficient evidence 5
1.6 Document or agreement 5
1.7 Transaction Document 5
1.8 Trustee as trustee 5
1.9 Knowledge of Trustee 6
1.10 Knowledge of the Note Trustee 6
1.11 Appointment of the Note Trustee 6
1.12 Obligations of the Trustee 6
1.13 Opinion of Counsel 6
2. PAYMENTS ON NOTES 7
2.1 Principal amount 7
2.2 Covenant to repay 7
2.3 Deemed payment 8
2.4 Following Event of Default 8
2.5 Requirements for Paying Agents 9
2.6 Certification 9
3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, NOTES 9
3.1 Issue of Book-Entry Notes 9
3.2 Form of Book-Entry Notes 9
3.3 Definitive Class A-1 Notes 11
3.4 Definitive Class A-2 Notes 12
3.5 Notice of Exchange Events 13
3.6 Stamp and Other Taxes 13
3.7 Indemnity for non-issue 14
3.8 Note Registers and Note Registrars 14
3.9 Transfer and Exchange of Book Entry Notes 15
3.10 Restrictions on Transfer and Exchange of Book Entry Notes 15
4. COVENANT OF COMPLIANCE 15
5. CANCELLATION OF OFFSHORE NOTES 16
5.1 Cancellation of Offshore Notes 16
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 Offshore Noteholders 18
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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 MANAGER 20
12. REMUNERATION OF NOTE TRUSTEE 24
12.1 Fee 24
12.2 Additional Remuneration 24
12.3 Costs, expenses 24
12.4 Overdue rate 25
12.5 Continuing obligation 25
13. NOTE TRUSTEE 25
13.1 Preferential Collection of Claims Against Trustee 25
13.2 Duties of Note Trustee 25
13.3 Rights and limited responsibilities of Note Trustee 26
13.4 Notice of Defaults 33
14. NOTE TRUSTEE'S LIABILITY 34
15. DELEGATION BY NOTE TRUSTEE 34
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE 34
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE 35
18. WAIVER 35
19. AMENDMENT 36
19.1 Approval 36
19.2 Extraordinary Resolution of Offshore Noteholders 36
19.3 Distribution of amendments 37
19.4 Amendments binding 37
19.5 Conformity with TIA 37
20. OFFSHORE NOTEHOLDERS 37
20.1 Absolute Owner 37
20.2 Clearing Agency Certificate 38
21. CURRENCY INDEMNITY 39
22. NEW NOTE TRUSTEES 39
22.1 Appointment by Trustee 39
22.2 Appointment by Note Trustee 40
22.3 Notice 40
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23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL 41
23.1 Removal by Trustee 41
23.2 Removal by Offshore Noteholders 41
23.3 Resignation 41
23.4 Trust Corporation 42
23.5 Successor to Note Trustee 42
23.6 Eligibility; Disqualification 43
24. NOTE TRUSTEE'S POWERS ADDITIONAL 43
25. SEVERABILITY OF PROVISIONS 43
26. NOTICES 43
26.1 General 43
26.2 Details 44
27. GOVERNING LAW AND JURISDICTION 45
28. COUNTERPARTS 46
29. LIMITED RECOURSE 46
29.1 General 46
29.2 Liability of Trustee limited to its right to indemnity 46
29.3 Unrestricted remedies 47
29.4 Restricted remedies 47
30. SUCCESSOR TRUSTEE 47
31. REIMBURSEMENT FOR THE COST OF INDEPENDENT ADVICE 48
32. NO LIABILITY 48
33. INFORMATION MEMORANDUM 48
34. NOTE TRUSTEE'S LIMITED LIABILITY 49
34.1 Reliance on certificate 49
34.2 Note Trustee's reliance on Manager, Security Trustee, Trustee or Servicer 49
34.3 Compliance with laws 50
34.4 Reliance on experts 50
34.5 Oversights of others 50
34.6 Powers, authorities and discretions 50
34.7 Impossibility or impracticability 50
34.8 Legal and other proceedings 51
34.9 No liability except for negligence etc. 51
34.10 Further limitations on Note Trustee's liability 52
34.11 Conflicts 53
34.12 Information 53
34.13 Investigation by Note Trustee 54
35. NOTEHOLDERS' LISTS AND REPORTS 54
35.1 Provision of information 54
35.2 Preservation of Information; Communications to Noteholders 54
35.3 Reports by Note Trustee 55
35.4 Notices to Offshore Noteholders; Waiver 55
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35.5 Reports by Trustee 55
36. TRUST INDENTURE ACT - MISCELLANEOUS 56
36.1 Compliance Certificates and Opinions, etc 56
36.2 Undertaking for Costs 57
36.3 Exclusion of section 316 58
36.4 Unconditional Rights of Offshore Noteholders to Receive Principal and Interest 58
36.5 Conflict with Trust Indenture Act 58
37. CONSENT OF OFFSHORE NOTEHOLDERS 58
37.1 General 58
37.2 Special Written Approvals 59
37.3 Requirement for writing 60
37.4 No conflict between actions of Offshore Noteholders 60
38. DOCUMENTS 60
39. KNOW YOUR CUSTOMER 60
40. ANTI-MONEY LAUNDERING 61
SCHEDULE 1 65
Form of Class A-1 Book-Entry Note 65
Assignment 69
SCHEDULE 2 70
Terms and Conditions of the Class A-1 Notes 70
SCHEDULE 3 94
Form of Class A-2 Book-Entry Note 94
Assignment 98
SCHEDULE 4 99
Terms and Conditions of the Class A-2 Notes 99
SCHEDULE 5 121
Information to be contained in Noteholder's Report 121
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DATE 19 September 2006
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PARTIES
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1. PERPETUAL TRUSTEES CONSOLIDATED LIMITED (ABN 81 004 029 841)
incorporated in Australia and registered in Victoria of Level ▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ in its capacity as
trustee of the Crusade Global Trust No. 2 of 2006 (the TRUSTEE);
2. CRUSADE MANAGEMENT LIMITED (ABN 90 072 715 916) incorporated in
Australia and registered in New South Wales of ▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ as Manager of the Crusade Global Trust
No. 2 of 2006 (the MANAGER);
3. THE BANK OF NEW YORK acting through its office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (the
NOTE TRUSTEE), which expression shall, wherever the context requires,
include any other person or company for the time being a trustee under
this deed or trustees of this deed;
4. THE BANK OF NEW YORK acting through its office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ as
principal paying agent for the Class A-1 Notes described below and
acting through its office at ▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as principal paying agent for the Class A-2 Notes
described below (together the PRINCIPAL PAYING AGENT), which expression
shall wherever the context requires, include any successor principal
paying agent from time to time appointed under the Agency Agreement;
5. THE BANK OF NEW YORK acting through its office at ▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the CALCULATION AGENT), which
expression shall wherever the context requires, include any successor
calculation agent from time to time appointed under the Agency
Agreement;
6. P.T. LIMITED (ABN 67 004 454 666) incorporated in Australia and
registered in Victoria of Level ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ in its capacity as security trustee (the SECURITY
TRUSTEE)
RECITALS
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A The Trustee has resolved at the direction of the Manager to issue
US$1,200,000,000 of Class A-1 Notes due November 2037 (the CLASS A-1
NOTES), (euro)450,000,000 of Class A-2 Notes due November 2037 (the
CLASS A-2 NOTES and together with the Class A-1 Notes, the OFFSHORE
NOTES),
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A$600,000,000 of Class A-3 Notes due November 2037, A$53,200,000 of
Class B Notes due November 2037 and A$24,300,000 of Class C Notes due
November 2037 (together those A$ denominated Notes being the A$ NOTES).
The Offshore Notes are to be constituted and secured in the manner
provided in this deed and the other Transaction Documents.
B The Note Trustee has agreed to act as trustee for the Offshore
Noteholders under this deed.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS AND INTERPRETATION
The following definitions apply unless the context requires otherwise.
CLASS A NOTE OWNER means a Class A-1 Note Owner or a Class A-2 Note
Owner (as applicable).
CLASS A-1 NOTE OWNER means, with respect to a Class A-1 Book-Entry Note,
the person who is the beneficial owner of such Class A-1 Book-Entry
Note, as reflected on the books of the Clearing Agency, or on the books
of the person maintaining an account with such Clearing Agency (directly
as Clearing Agency Participant or as an indirect participant) in each
case in accordance with the rules of such Clearing Agency.
CLASS A-2 NOTE OWNER means, with respect to a Class A-2 Book-Entry Note,
the person who is the beneficial owner of such Class A-2 Book-Entry
Note, as reflected on the books of the Clearing Agency, or on the books
of the person maintaining an account with such Clearing Agency (directly
as Clearing Agency Participant or as an indirect participant) in each
case in accordance with the rules of such Clearing Agency.
CLEARING AGENCY PARTICIPANT means a broker, dealer, bank, other
financial institution or other person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
CORPORATE TRUST OFFICE means the office of the Note Trustee at which at
any particular time its corporate trust business is administered, which
at the date of the execution of this deed is ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, or at such other
address as the Note Trustee may designate by notice to the Manager, the
Offshore Noteholders and the Trustee or the principal corporate trust
office of any successor Note Trustee.
EVENT OF DEFAULT means, in respect of an Offshore Note, any of the
events described in the relevant Condition 9.
EXCHANGE ACT means the United States Securities Exchange Act of 1934, as
amended.
EXTRAORDINARY RESOLUTION has the meaning given in clause 19.2.
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INDEPENDENT means, in relation to a person, that the person:
(a) is independent of the Trustee, the Manager, the Servicer, any
Approved Seller and any of their Associates;
(b) does not have any direct financial interest or any material
indirect financial interest (other than less than 5% of the
outstanding amount of any publicly traded security) in any
person referred to in paragraph (a); and
(c) is not an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions of any
person referred to in paragraph (a).
INDEPENDENT CERTIFICATE means, in relation to any person, a certificate
or opinion from that person where that person must be Independent, which
opinion or certificate states that the signer has read the definition of
INDEPENDENT in this deed and that the signer is Independent within the
meaning of that definition.
NOTE DEPOSITORY AGREEMENT means the agreement among the Trustee, the
Principal Paying Agent and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Class A-1
Notes, as the same may be amended or supplemented from time to time.
NOTEHOLDERS REPORT means the report to be delivered by the Manager, on
behalf of the Trustee, in accordance with clause 11(n)(i) containing the
information set out in Schedule 5.
OFFICER'S CERTIFICATE means a certificate signed by any Authorised
Signatory of the Trustee or the Manager on behalf of the Trustee, under
the circumstances described in, and otherwise complying with, the
applicable requirements of section 314 of the TIA.
OPINION OF COUNSEL means one or more written opinions of legal counsel
who may, except as otherwise expressly provided in this deed, be
employees of or counsel to the Trustee or the Manager on behalf of the
Trustee and who shall be satisfactory to the Trustee or the Note
Trustee, as applicable, and which opinion or opinions shall be addressed
to the Trustee or the Note Trustee, as applicable, and shall be in form
and substance satisfactory to the Trustee and the Note Trustee, as
applicable.
PAYING AGENT means any institution appointed as a Paying Agent by the
Trustee under the Agency Agreement.
RESPONSIBLE OFFICER means, with respect to the Note Trustee, any of its
officers, including any Vice President, Assistant Vice President or any
other of its officers customarily performing functions similar to those
performed by any of them and, with respect to a particular matter, any
other officer in the Corporate Trust Department to whom such matter is
referred because of such officer's knowledge of, and familiarity with,
the particular subject.
STATUTE means legislation now or hereafter in force of the Parliament of
the Commonwealth of Australia or of any State or Territory thereof or of
any legislative body of any other country or political subdivision
thereof and any rule, regulation, ordinance, by-law, statutory
instrument, order or notice now or hereafter made under such
legislation.
SUPPLEMENTARY TERMS NOTICE means the Supplementary Terms Notice dated on
or about the date of this deed between the Trustee, the Manager, the
Note Trustee, the Security Trustee, ▇▇.▇▇▇▇▇▇ and the Custodian.
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TIA means the United States Trust Indenture Act of 1939, as amended.
TRUST ACCOUNT means the Collection Account, the US$ Account, the Euro
Account or any other account maintained by or on behalf of the Trustee
in relation to the Trust.
TRUST CORPORATION means:
(a) a corporation with the power and authority to act as a trustee
in relation to the Note Trust at law or pursuant to legislation
applicable to trustees in any relevant jurisdiction; and
(b) any person eligible for appointment as a trustee under an
indenture to be qualified pursuant to the TIA, as set forth in
Section 310 of the TIA,
which shall include The Bank of New York for so long as it complies with
such legislation.
1.2 DEFINITIONS IN MASTER TRUST DEED, SUPPLEMENTARY TERMS NOTICE AND
CONDITIONS
(a) Words and expressions which are defined in the Master Trust Deed
(as amended by the Supplementary Terms Notice), the
Supplementary Terms Notice and the relevant Conditions
(including in each case by reference to another agreement) have
the same meanings when used in this deed unless the context
otherwise requires or unless otherwise defined in this deed.
(b) If a definition in any of the documents in paragraph (a) above
is inconsistent with any of the other documents in paragraph
(a), the definitions will prevail in the following order:
(i) definitions in this deed;
(ii) definitions in the Supplementary Terms Notice;
(iii) definitions in the Master Trust Deed;
(iv) definitions in the relevant Conditions.
(c) No change to the Master Trust Deed or any other document
(including the order of payment set out in the Supplementary
Terms Notice) after the date of this deed will change the
meaning of terms used in this deed or adversely affect the
rights of the Note Trustee or any Offshore Noteholder under this
deed unless the Note Trustee (or the relevant Offshore
Noteholders acting under clause 6.5, as the case may be) has
agreed in writing to the changes under this deed.
1.3 INCORPORATION BY REFERENCE
Where this deed refers to a provision of the TIA, the provision is
incorporated by reference in and made part of this deed. The following
terms used in the TIA have the following meaning in this deed.
INDENTURE SECURITIES means the Class A-1 Notes.
INDENTURE SECURITY HOLDER means a Class A-1 Noteholder.
INDENTURE TO BE QUALIFIED means the Note Trust Deed.
INDENTURE TRUSTEE or INSTITUTIONAL TRUSTEE means the Note Trustee.
OBLIGOR on the indenture securities means the Trustee.
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Any other term which is used in this deed in respect of a section or
provision of the TIA and which is defined in the TIA by reference to
another statute or defined by or in any rule of or issued by the
Commission, will have the meaning assigned to them by such definitions.
1.4 INTERPRETATION
Clause 1.2 of the Master Trust Deed applies to this deed as if set out
in full and:
(a) a reference to an ASSET includes any real or personal, present
or future, tangible or intangible property or asset and any
right, interest, revenue or benefit in, under or derived from
the property or asset;
(b) an Event of Default SUBSISTS until it has been waived in writing
by the Note Trustee;
(c) a reference to an amount for which a person is CONTINGENTLY
LIABLE includes an amount which that person may become actually
or contingently liable to pay if a contingency occurs, whether
or not that liability will actually arise; and
(d) all references to costs or charges or expenses include any GST,
value added tax or similar tax charged or chargeable in respect
of the charge or expense.
1.5 DETERMINATION, STATEMENT AND CERTIFICATE SUFFICIENT EVIDENCE
Except where otherwise provided in this deed any determination,
statement or certificate by the Note Trustee or an Authorised Signatory
of the Note Trustee provided for in this deed is sufficient evidence of
each thing determined, stated or certified until proven wrong.
1.6 DOCUMENT OR AGREEMENT
A reference to:
(a) an AGREEMENT includes a Security Interest, guarantee,
undertaking, deed, agreement or legally enforceable arrangement
whether or not in writing; and
(b) a DOCUMENT includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the
extent prohibited by this deed.
1.7 TRANSACTION DOCUMENT
This deed is a TRANSACTION DOCUMENT for the purposes of the Master Trust
Deed.
1.8 TRUSTEE AS TRUSTEE
In this deed, except where provided to the contrary:
(a) a reference to the Trustee is a reference to the Trustee in its
capacity as trustee of the Trust only, and in no other capacity;
and
(b) a reference to the assets, business, property or undertaking of
the Trustee is a reference to the assets, business, property or
undertaking of the Trustee only in the capacity described in
paragraph (a) above.
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1.9 KNOWLEDGE OF TRUSTEE
In relation to the Trust, the Trustee will only be considered to have
knowledge or notice of or be aware of any matter or thing if the Trustee
has knowledge, notice or awareness of that matter or thing by virtue of
the actual notice or awareness of the officers or employees of the
Trustee who have day to day responsibility for the administration of the
Trust.
1.10 KNOWLEDGE OF THE NOTE TRUSTEE
In relation to the Trust, the Note Trustee will only be considered to
have knowledge or notice of or be aware of any matter or thing if the
Note Trustee has knowledge, notice or awareness of that matter or thing
by virtue of the actual notice or awareness of the officers or employees
of the Note Trustee who have day to day responsibility for the
administration of the Note Trust.
1.11 APPOINTMENT OF THE NOTE TRUSTEE
The Note Trustee:
(a) is appointed to act as trustee on behalf of the Offshore
Noteholders on the terms and conditions of this deed; and
(b) acknowledges and declares that it:
(i) holds the sum of US$10.00 received on the date of this
deed;
(ii) will hold the benefit of the obligations of the Trustee
under this deed; and
(iii) will hold the benefit of the covenant in clause 2.2, the
covenants in clause 11 and all other rights of the
Offshore Noteholders under the Offshore Notes,
in each case, on trust for each Offshore Noteholder in accordance with
the terms and conditions of this deed.
1.12 OBLIGATIONS OF THE TRUSTEE
(a) Where the Manager may act on behalf of the Trustee, failing
action by the Manager in accordance with the relevant clause
(including any requirement to take such action within a
specified time) the reference to the Manager acting on behalf of
the Trustee shall be construed as a reference to the Trustee.
(b) Without limiting the Trustee's obligations under paragraph (a),
the Trustee shall not be liable for any act or omission by the
Manager where it is acting or fails to act (as the case may be)
on behalf of the Trustee under this deed.
(c) Where the Manager is empowered to act on behalf of the Trustee,
the Manager undertakes to the Trustee that it will duly and
punctually perform, on behalf of the Trustee, those obligations
imposed on the Trustee in accordance with the terms of the
relevant clause.
1.13 OPINION OF COUNSEL
For the purposes of this deed, the Trustee and the Note Trustee may
where necessary seek, and rely conclusively on, any Opinion of Counsel
on any matters relating to or connected with the TIA. Where the Trustee
or the Note Trustee elects to seek and has sought the Opinion of Counsel
it shall not be required to take any action under this deed unless and
until it has received such an Opinion of
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Counsel. The cost of any such Opinion of Counsel will be an Expense of
the Trustee in relation to the Trust.
2. PAYMENTS ON NOTES
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2.1 PRINCIPAL AMOUNT
(a) The aggregate initial principal amount of the Class A-1 Notes is
limited to US$1,200,000,000.
(b) The aggregate initial principal amount of the Class A-2 Notes is
limited to (euro)450,000,000.
2.2 COVENANT TO REPAY
(a) The Trustee covenants with the Note Trustee that the Trustee
will, in accordance with the terms of the Offshore Notes
(including the relevant Conditions) and the Transaction
Documents (and subject to the terms of the Transaction Documents
and the relevant Conditions, including clause 29 of this deed
and the relevant Condition 6) at the direction of the Manager
on:
(i) the Final Maturity Date; or
(ii) each earlier date as the Offshore Notes, or any of them,
may become repayable (whether in full or in part),
pay or procure to be paid unconditionally in accordance with
this deed to or to the order of the Note Trustee:
(iii) in US$ in New York for immediate value the principal
amount of those Class A-1 Notes repayable, or in the
case of a partial payment of those Class A-1 Notes, the
principal amount payable, subject to and in accordance
with the terms of those Class A-1 Notes (including the
relevant Conditions); and
(iv) in Euros in London for immediate value the principal
amount of those Class A-2 Notes repayable, or in the
case of a partial payment of those Class A-2 Notes, the
principal amount payable, subject to and in accordance
with the terms of those Class A-2 Notes (including the
relevant Conditions).
(b) Subject to clause 2.3 and to the terms of the Offshore Notes
(including the relevant Conditions and in particular the
relevant Condition 6) and the Transaction Documents (including
clause 29 of this deed), until any payment both before as well
as after any judgment or other order of a court of competent
jurisdiction, the Trustee shall, at the direction of the
Manager, pay or procure to be paid unconditionally in accordance
with this deed to or to the order of the Note Trustee:
(i) any interest on the Offshore Notes, at the respective
rates calculated from time to time, in accordance with
and on the dates provided for in the relevant
Conditions; and
(ii) principal payable on the Offshore Notes at the times and
in the amounts provided for in accordance with the
relevant Conditions.
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2.3 DEEMED PAYMENT
Any payment of principal or interest in respect of any Offshore Notes to
or to the account of the Principal Paying Agent in the manner provided
in clause 3 of the Agency Agreement shall satisfy the covenant in
relation to those Offshore Notes by the Trustee in this clause 2 to the
extent of that payment, except to the extent that the Principal Paying
Agent subsequently fails to pay that amount under those Offshore Notes
in accordance with the terms of those Offshore Notes (including the
relevant Conditions).
2.4 FOLLOWING EVENT OF DEFAULT
At any time after an Event of Default in respect of the Offshore Notes
has occurred, or at any time after Definitive Notes have not been issued
when so required in accordance with the relevant Conditions, the Note
Trustee may:
(a) by notice in writing to the Trustee, the Manager, the Principal
Paying Agent, the other Paying Agents (if any) and the
Calculation Agent and until such notice is withdrawn, 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 and Paying
Agents and Calculation Agent respectively of the
Note Trustee in relation to payments to be made
by or on behalf of the Note Trustee under the
provisions of this deed on the terms of the
Agency Agreement except that the Note Trustee's
liability under any provisions of the Agency
Agreement for the indemnification of the Paying
Agents and Calculation Agent shall be limited to
any amount for the time being held by the Note
Trustee under the Note Trust and which is
available to be applied by the Note Trustee
under this deed; and
(B) hold all Definitive Notes and all amounts,
documents and records held by them in respect of
the Offshore Notes on behalf of the Note
Trustee; or
(ii) to deliver up all Definitive Notes and all amounts,
documents and records held by them in respect of the
Offshore Notes to the Note Trustee or as the Note
Trustee shall direct in that notice, other than any
documents or records which the relevant Paying Agent or
Calculation Agent is obliged not to release by any law
or regulation; or
(b) by notice in writing to the Trustee require it to make all
subsequent payments in respect of the Offshore Notes to the
order of the Note Trustee and not to the Principal Paying Agent
and, with effect from the issue of that notice to the Trustee
and until that notice is withdrawn, clause 2.3 shall not apply.
The satisfaction by the Trustee of its payment obligations on each
Payment Date under the Supplementary Terms Notice and the relevant
Conditions to the Note Trustee in accordance with this paragraph (b)
shall be a good discharge to the Note Trustee, to the extent of such
payment.
The Trustee shall not be liable for any act or omission or default of
the Note Trustee during the period it is required to make payments in
respect of the Offshore Notes to the Note Trustee under paragraph (b).
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2.5 REQUIREMENTS FOR PAYING AGENTS
The Manager on behalf of the Trustee will cause each Paying Agent to
execute and deliver to the Note Trustee an instrument in which that
Paying Agent shall agree with the Note Trustee, subject to the
provisions of this clause, that such Paying Agent shall:
(a) hold on trust for the Note Trustee and the Offshore Noteholders
all sums held by that Paying Agent for the payment of principal
and interest with respect to the Offshore Notes until all
relevant sums are paid to the Note Trustee or the Offshore
Noteholders or otherwise disposed of as provided in this deed;
and
(b) immediately notify by facsimile the Note Trustee, the Trustee,
the Security Trustee and the Manager if the full amount of any
payment of principal or interest required to be made by the
Supplementary Terms Notice and the relevant Conditions in
respect of the Offshore Notes is not unconditionally received by
it or to its order in accordance with the Agency Agreement.
2.6 CERTIFICATION
For the purposes of any redemption of Offshore Notes under the relevant
Condition 5 the Note Trustee may rely upon an Officer's Certificate from
the Manager on behalf of the Trustee certifying or stating, the opinion
of each person signing that Officer's Certificate as to the following
matters:
(a) the fair value (within 90 days of such release) of the property
or securities to be released from the Security Trust Deed;
(b) that the proposed release will not impair the security under the
Security Trust Deed in contravention of the provisions of the
Security Trust Deed or this deed; and
(c) that the Trustee will be in a position to discharge all its
liabilities in respect of the relevant Offshore Notes and any
amounts required under the Security Trust Deed to be paid in
priority to or pari passu with those Offshore Notes,
and that Officer's Certificate shall be conclusive and binding on the
Trustee, the Note Trustee and the holders of those Offshore Notes. The
Note Trustee shall not incur any liability as a result of relying on
such certificate or such certificate subsequently being considered
invalid.
3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, NOTES
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3.1 ISSUE OF BOOK-ENTRY NOTES
(a) Each Class of Offshore Note shall, on initial issue be
represented by one or more Book-Entry Notes.
(b) Each Book-Entry Note must be signed manually or by facsimile by
an Authorised Signatory of the Trustee on behalf of the Trustee
and must be manually authenticated by the Principal Paying
Agent.
3.2 FORM OF BOOK-ENTRY NOTES
(a) The Book-Entry Notes shall be typed in the form or substantially
in the form set out:
(i) in the case of Class A-1 Book-Entry Notes - in Schedule
1; and
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(ii) in the case of Class A-2 Book-Entry Notes - in Schedule
3.
(b) The procedures relating to the exchange, authentication,
delivery, surrender, cancellation, presentation, marking up or
down of any of a Book-Entry Note (or part of a Book-Entry Note)
and any other matters to be carried out by the relevant parties
upon exchange (in whole or part) of any Book-Entry Note shall be
made in accordance with the provisions of the relevant terms of
the Book-Entry Notes and the normal practice of the relevant
Common Depository, the Principal Paying Agent and the rules and
procedures of the relevant Clearing Agency from time to time.
(c) The Book-Entry Notes shall be in an aggregate principal amount
of:
(i) US$1,200,000,000 for the Class A-1 Notes; and
(ii) (euro)450,000,000 for the Class A-2 Notes.
(d) The Manager on behalf of the Trustee shall procure by written
direction to the Principal Paying Agent that, prior to the issue
and delivery of any Book-Entry Note, that Book-Entry Note will
be authenticated manually by an Authorised Signatory of the
Principal Paying Agent and no Book-Entry Note shall be valid for
any purpose unless and until so authenticated. A Book-Entry Note
so executed and authenticated shall be a binding and valid
obligation of the Trustee. Until a Book-Entry Note (or part of a
Book-Entry Note) has been exchanged pursuant to this deed, it
(or that part) shall in all respects be entitled to the same
benefits as a Definitive Note. Each Book-Entry Note shall be
subject to this deed except that the registered owner of a
Book-Entry Note shall be the only person entitled to receive
payments from the Principal Paying Agent of principal or
interest in relation to it.
(e) The Class A-1 Notes and Class A-2 Notes upon original issue will
be issued in the form of typewritten Notes representing the
Class A-1 Book-Entry Notes and Class A-2 Book-Entry Notes
respectively. The Manager on behalf of the Trustee shall, on the
date of this deed, deliver or arrange the delivery on its behalf
to the Principal Paying Agent, as agent for the Clearing Agency,
of the Class A-1 Book-Entry Notes and the Class A-2 Book-Entry
Notes. The Class A-1 Book-Entry Notes shall initially be
registered on the Note Register in the name of the nominee of
the relevant Clearing Agencies. The Class A-2 Book-Entry Notes
shall initially be registered on the Note Register in the name
of the nominee of the Common Depository for and on behalf of the
relevant Clearing Agencies. No Class A Note Owner will receive a
Definitive Note representing such Class A Note Owner's interest
in such Note, except as provided in clause 3.3 or 3.4.
(f) Whenever a notice or other communication to the Offshore
Noteholders is required under this deed, unless and until
Definitive Notes shall have been issued to Class A Note Owners
pursuant to clause 3.3 or 3.4, the Note Trustee shall give all
such notices and communications specified herein to be given to
Offshore Noteholders to the registered holders of the Book-Entry
Notes, and shall have no obligation to the Class A Note Owners.
(g) Unless and until the Definitive Notes have been issued to the
Class A Note Owners pursuant to clause 3.3 or 3.4 (as the case
may be):
(i) the provisions of this clause shall be in full force and
effect;
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(ii) each Note Registrar, the Trustee, the Manager, each
Paying Agent and the Note Trustee shall be entitled to
deal with the registered holders of the Book-Entry Notes
for all purposes of this deed (including the payment of
principal of and interest on the Offshore Notes and the
giving of instructions or directions hereunder) as the
sole holder of the Offshore Notes, and shall have no
obligation to any Class A Note Owners;
(iii) to the extent that the provisions of this clause
conflict with any other provisions of this deed, the
provisions of this clause shall prevail;
(iv) the rights of Class A Note Owners shall be exercised
only through the relevant Clearing Agency and shall be
limited to those established by law and agreements
between such Class A Note Owners and the Clearing Agency
and/or the Clearing Agency Participants. In respect of
Class A-1 Notes, pursuant to the Note Depository
Agreement, unless and until Definitive Class A-1 Notes
are issued pursuant to clause 3.3, the relevant Clearing
Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit payments of
principal and interest on the Class A-1 Notes to such
Clearing Agency Participants. In respect of Class A-2
Notes, unless and until Definitive Class A-2 Notes are
issued pursuant to clause 3.4, the relevant Clearing
Agencies will make book-entry transfers among themselves
via book entries maintained by the relevant Common
Depository and among the Clearing Agency Participants in
respect of transfers among Clearing Agency Participants
with the relevant Clearing Agency and receive and
transmit payments of principal and interest on the Class
A-2 Notes to such Clearing Agency Participants; and
(v) whenever this deed requires or permits actions to be
taken based upon instructions or directions of a Class
of Class A Note Owners evidencing a specific percentage
of all Invested Amounts of all Offshore Notes in that
Class, the relevant Clearing Agency shall be deemed to
represent such percentage only to the extent that it has
received instructions to such effect from Class A Note
Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of
the beneficial interest in the Offshore Notes and has
delivered such instructions to the Principal Paying
Agent.
3.3 DEFINITIVE CLASS A-1 NOTES
(a) If:
(i) the Principal Paying Agent advises the Manager in
writing that the relevant Clearing Agency is no longer
willing or able properly to discharge its
responsibilities with respect to the Class A-1 Notes or
that Clearing Agency or its successor and the Manager is
unable to locate a qualified successor; or
(ii) after the occurrence of an Event of Default, the Note
Trustee, at the written direction of Class A-1 Note
Owners representing beneficial interests aggregating to
at least a majority of the aggregate Invested Amount of
the Class A-1 Notes, advises both the Principal Paying
Agent and the Trustee in writing that the
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continuation of a book-entry system through the Clearing
Agency for the Class A-1 Notes is no longer in the best
interests of the Class A-1 Note Owners,
then the Principal Paying Agent shall notify all of the
appropriate Class A-1 Note Owners and the Trustee of the
occurrence of any such event and of the availability of
Definitive Class A-1 Notes to such Class A-1 Note Owners. Upon
the surrender of the Class A-1 Book-Entry Notes to the Trustee
by the Clearing Agency, and the delivery by the Clearing Agency
of the relevant registration instructions to the Trustee, the
Trustee (with the assistance of the Manager) shall execute and
procure the Principal Paying Agent to authenticate the
Definitive Class A-1 Notes in accordance with the instructions
of that Clearing Agency.
(b) The Definitive Class A-1 Notes will be serially numbered and
shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without
steel engraved borders), all as determined by the Authorised
Signatories executing such Definitive Notes, as evidenced by
their execution of such Definitive Class A-1 Notes.
(c) No Note Registrar nor the Trustee shall be liable for any delay
in delivery of such instructions and may conclusively rely on,
and shall be protected in relying on, such instructions.
3.4 DEFINITIVE CLASS A-2 NOTES
(a) If, at any time any Class A-2 Notes, are represented by a
Book-Entry Note:
(i) that Book-Entry Note becomes immediately due and
repayable by reason of the occurrence of an Event of
Default;
(ii) either Euroclear or Clearstream, Luxembourg is closed
for business for a continuous period of 14 days (other
than by reason of holiday, statutory or otherwise) or
announces an intention permanently to cease business; or
(iii) as the result of any amendment to, or change in, the
laws or regulations of any jurisdiction or any body
politic, or government in any jurisdiction, or any
minister, department, office, commission,
instrumentality, agency, board, authority or
organisation of any government or any corporation owned
or controlled by any government having power to tax or
in the interpretation by a revenue authority or a court
of, or in the administration of, laws or regulations
relating to taxation which becomes effective on or after
the Note Issue Date, the Trustee or any Paying Agent is
or will be required to make any deduction or withholding
from any payment in respect of any of the Class A-2
Notes which would not be required were those Class A-2
Notes in definitive form,
then the Trustee shall (at its expense) (but subject to
paragraph (c) below), within 30 days of becoming aware of the
occurrence of the relevant event, but not prior to 40 days after
the Closing Date issue Definitive Class A-2 Notes in exchange
for the whole of the outstanding interest in that Book-Entry
Note.
(b) The procedures to be carried out by the relevant parties on an
exchange under paragraph (a) shall be made in accordance with
the provisions of the terms of the Book-Entry Note in
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respect of which exchange is to be made and the normal practice
of the relevant Common Depository, the Principal Paying Agent
and the rules and procedures of Euroclear and Clearstream,
Luxembourg from time to time.
(c) Despite this clause 3.4, the Trustee is not obliged to issue
Definitive Class A-2 Notes until the later of:
(i) the expiry of 40 days after the later of the Note Issue
Date and the date on which the relevant Class A-2 Notes
are first offered to persons other than distributors in
reliance on Regulation S of the Securities Act 1933, as
amended; and
(ii) 30 days after it becomes aware of the occurrence of the
relevant event or request in paragraph (a).
(d) All Definitive Class A-2 Notes shall, subject to the terms of
the Agency Agreement, be held by the Principal Paying Agent and
shall be authenticated and delivered (at the cost of the
Trustee) to the relevant Class A-2 Noteholders in accordance
with the instructions of the holder of the relevant Book-Entry
Note. The relevant Book-Entry Note shall be marked-down in
respect of those Definitive Class A-2 Notes which are so
delivered as appropriate.
(e) The Definitive Class A-2 Notes will be serially numbered and
shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without
steel engraved borders), all as determined by the Authorised
Signatories executing such Definitive Notes, as evidenced by
their execution of such Definitive Class A-2 Notes.
(f) No Note Registrar nor the Trustee shall be liable for any delay
in delivery of such instructions and may conclusively rely on,
and shall be protected in relying on, such instructions.
3.5 NOTICE OF EXCHANGE EVENTS
(a) The Trustee or the Manager shall notify the Note Trustee in
writing forthwith if the Trustee or the Manager (as the case may
be) becomes actually aware of any of the events referred to in
clause 3.3(a) and 3.4(a) and shall, unless the Note Trustee
agrees otherwise, promptly give notice of the event and of the
Trustee's obligation to issue Definitive Notes to the relevant
Offshore Noteholders in accordance with the relevant Condition
12.
(b) The Note Trustee shall notify the Trustee and the Manager in
writing forthwith if the Note Trustee becomes actually aware of
any of the events referred to in clause 3.3(a) and 3.4(a) and
(where relevant) actually aware that the relevant event has the
effect specified in that clause.
3.6 STAMP AND OTHER TAXES
The Trustee will pay any stamp and other duties and Taxes payable in
Australia, the United Kingdom, Belgium, Luxembourg or the United States
on or in connection with:
(a) the execution of the Transaction Documents;
(b) the constitution and original issue and delivery of the Offshore
Notes;
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(c) any action taken by the Note Trustee or (where permitted under
this deed so to do), the relevant Clearing Agency or an Offshore
Noteholder to enforce the provisions of the Offshore Notes or
the Transaction Documents; and
(d) the creation of the security constituted under the Security
Trust Deed.
3.7 INDEMNITY FOR NON-ISSUE
If the Trustee is required to issue, or procure the issue of, Definitive
Notes following an event specified in clause 3.3(a) or 3.4(a) but fails
to do so within 30 days of the Trustee or the Manager becoming actually
aware of the occurrence of the relevant event then the Trustee shall
(subject to clause 29) indemnify the Note Trustee, the Offshore
Noteholders, and the Class A Note Owners and keep them indemnified,
against any loss or damage incurred by any of them if the amount
received by the Note Trustee, the Offshore Noteholders or the Class A
Note Owners is less than the amount that would have been received had
Definitive Notes been issued within the 30 days referred to above. If
and for so long as the Trustee discharges its obligations under this
indemnity, the breach by the Trustee of the provisions of clause 3.3(a)
or 3.4(a) shall be deemed to be cured. The Manager must promptly advise
the Trustee if it becomes actually aware of the occurrence of the
relevant event and the Trustee shall promptly notify the Note Trustee of
the relevant event.
3.8 NOTE REGISTERS AND NOTE REGISTRARS
(a) The Manager, on behalf of the Trustee, shall keep or cause to be
kept the Note Registers in which, subject to such reasonable
regulations as it may prescribe, the Manager shall provide for
the registration of the Offshore Notes and the registration of
transfers of Offshore Notes. The Note Registrar will be
responsible for registering relevant Offshore Notes and
transfers of relevant Offshore Notes as herein provided. The
Trustee may, with the consent of the Note Trustee, appoint
another person as Note Registrar. Upon any resignation or
removal of any Note Registrar under the Agency Agreement, the
Trustee with the assistance of and at the direction of, the
Manager shall promptly appoint a successor or, if it elects not
to make such an appointment, assume the duties of that Note
Registrar.
(b) Upon surrender for registration of transfer of any Offshore Note
at the office or agency of the Trustee to be maintained as
provided in clause 11(e) (and in the case of a Class A-1 Note,
if the requirements of Section 8-401(a) of the Uniform
Commercial Code of New York (the UCC) are met), the Trustee
shall, at the direction of the Manager, execute and upon its
written direction the Principal Paying Agent shall authenticate
and the Offshore Noteholder shall obtain from the Note Trustee,
in the name of the designated transferee or transferees, one or
more new Offshore Notes, in any authorised denominations, of the
same class and a like aggregate principal amount.
(c) At the option of the Offshore Noteholder, Offshore Notes may be
exchanged for other Offshore Notes in any authorised
denominations and a like aggregate principal amount, upon
surrender of the Offshore Notes to be exchanged at such office
or agency. Whenever any Offshore Notes are so surrendered for
exchange (and in the case of a Class A-1 Note, if the
requirements of Section 8-401(a) of the UCC are met), the
Trustee shall, at the direction of the Manager, execute and upon
its written request the Principal Paying Agent shall
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authenticate and the Offshore Noteholder shall obtain from the
Note Trustee, the Offshore Notes which the Offshore Noteholder
making the exchange is entitled to receive.
(d) Every Class A-1 Note presented or surrendered for registration
of transfer or exchange shall be (i) duly endorsed by, or be
accompanied by a written instrument of transfer in a form
satisfactory to the relevant Note Registrar duly executed by,
the Class A-1 Noteholder thereof or such Class A-1 Noteholder's
attorney duly authorised in writing, with such signature
guaranteed by an "eligible guarantor institution" meeting the
requirements of that Note Registrar which requirements include
membership or participation of Securities Transfer Agents
Medallion Program (STAMP) or such other "signature guarantee
program" as may be determined by that 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
that Note Registrar may require. Every Class A-2 Note presented
or surrendered for registration of transfer or exchange shall be
(i) duly endorsed by, or be accompanied by a written instrument
of transfer in a form satisfactory to the relevant Note
Registrar duly executed by, the Class A-2 Noteholder thereof or
such Class A-2 Noteholder's attorney duly authorised in writing,
and (ii) accompanied by such other documents as the Note
Registrar may require.
(e) No service charge shall be made to an Offshore Noteholder for
any registration of transfer or exchange of Offshore Notes, but
the Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of
Offshore Notes.
(f) The preceding provisions of this section notwithstanding, the
Trustee shall not be required to make and each Note Registrar
need not register transfers or exchanges of Offshore Notes
selected for redemption or of any Offshore Note for a period of
30 days preceding the due date for any payment with respect to
the Offshore Note.
3.9 TRANSFER AND EXCHANGE OF BOOK ENTRY NOTES
The Transfer and exchange of Book Entry Notes or beneficial interests in
Book Entry Notes shall be effected through the relevant Common
Depository, as provided in clause 3.10 and the procedures of the
relevant Common Depository for such transfer and exchange.
3.10 RESTRICTIONS ON TRANSFER AND EXCHANGE OF BOOK ENTRY NOTES
Notwithstanding any other provision of this Deed, a Book Entry Note may
not be transferred as a whole except by the relevant Common Depository
to a nominee of the relevant Common Depository or by a nominee of the
relevant Common Depository to the relevant Common Depository or another
nominee of the relevant Common Depository or by the relevant Common
Depository or any such nominee to a successor relevant Common Depository
or a nominee of such successor relevant Common Depository.
4. COVENANT OF COMPLIANCE
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Each of the Manager and the Trustee covenants with the Note Trustee that
it will comply with and perform and observe all provisions of the
Transaction Documents which are expressed to be binding on it for the
benefit of the Note Trustee or any Offshore Noteholder. The Transaction
Documents to
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which the Trustee and the Note Trustee are a party and the relevant
Conditions shall be binding on the Trustee, the Note Trustee and the
Offshore Noteholders). The Note Trustee (or the Offshore Noteholders,
under clause 6.5, as the case may be) is entitled to enforce the
obligations of the Trustee under the Offshore Notes and the relevant
Conditions as if the same were set out and contained in this deed (which
shall be read and construed as one document with the Notes). The
provisions contained in Schedule 2 and Schedule 4 shall have effect as
if set out in this deed.
5. CANCELLATION OF OFFSHORE NOTES
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5.1 CANCELLATION OF OFFSHORE NOTES
The Trustee shall procure that all Offshore Notes:
(a) which have been surrendered for payment, registration of
transfer, exchange or redemption; or
(b) in the case of any Definitive Note, which, being mutilated or
defaced, has been surrendered and replaced under the relevant
Condition 11,
shall be cancelled by or on behalf of the Trustee.
5.2 RECORDS
The Trustee shall procure that:
(a) the Principal Paying Agent keeps a full and complete record of
all Offshore Notes and of their redemption, payment, exchange or
cancellation (as the case may be) and of all replacement
Offshore Notes issued in substitution for lost, stolen,
mutilated, defaced or destroyed Definitive Notes; and
(b) such records referred to in paragraph (a) above shall be made
available to the Note Trustee on reasonable notice and during
business hours promptly following the Note Trustee's request for
the same.
6. ENFORCEMENT
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6.1 ACTIONS FOLLOWING EVENT OF DEFAULT
(a) At any time while an Event of Default is subsisting the Note
Trustee may (subject to the Security Trust Deed, to clauses 6.4
and 7, and to the relevant Conditions 9 and 10) at its
discretion, and must, if so directed or requested under clause
7.1, without further notice take any action available to it to
direct the Security Trustee to:
(i) institute any proceedings against the Trustee and/or the
Manager which are permitted under the Transaction
Documents;
(ii) enforce the security created under the Security Trust
Deed (including anything set out in clause 8.2 of the
Security Trust Deed); and
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(iii) enforce repayment of the Offshore Notes together with
accrued interest and any other moneys payable to the
Note Trustee, the Offshore Noteholders under the
Transaction Documents.
6.2 EVIDENCE OF DEFAULT
If the Security Trustee or the Note Trustee takes any action against the
Trustee to enforce any of the provisions of any Offshore Notes or this
deed, proof that as regards any Offshore Note, the Trustee has not paid
any principal or interest due in respect of that Offshore Note shall
(unless the contrary is proved) be sufficient evidence that the Trustee
has not paid that principal or interest on all other Offshore Notes in
respect of which the relevant payment is then due.
6.3 OVERDUE INTEREST
The rates of interest payable in respect of any Offshore Note which has
become due and repayable in full and which has not been repaid shall be
calculated at three-monthly intervals, commencing on the expiry of the
Quarterly Interest Period during which the Offshore Note became due and
repayable in accordance with the provisions of the relevant Condition 4
except that no notices need be given to Offshore Noteholders, in
relation to that interest.
6.4 RESTRICTIONS ON ENFORCEMENT
(a) If any of the Offshore Notes remain outstanding and are due and
payable otherwise than by reason of a default in payment of any
amount due on any Offshore Notes, the Note Trustee must not vote
under the Security Trust Deed to, or otherwise direct the
Security Trustee to, enforce the Security Trust Deed or dispose
of the Mortgaged Property unless either:
(i) the Note Trustee is of the opinion, reached after
considering at any time the advice of a merchant bank or
other financial adviser selected by the Note Trustee in
its sole and absolute discretion (the cost of such
advice shall be an Expense payable to the Note Trustee),
that a sufficient amount would be realised to discharge
in full all amounts owing to the Offshore Noteholders
and any other amounts payable by the Trustee ranking in
priority to or pari passu with the Offshore Notes; or
(ii) the Note Trustee is of the opinion, reached after
considering at any time and from time to time the advice
of a merchant bank or other financial adviser selected
by the Note Trustee in its sole and absolute discretion
(the cost of such advice shall be an Expense payable to
the Note Trustee), that the cash flow receivable by the
Trustee (or the Security Trustee under the Security
Trust Deed) will not (or that there is a significant
risk that it will not) be sufficient, having regard to
any other relevant actual, contingent or prospective
liabilities of the Trustee, to discharge in full in due
course all the amounts referred to in paragraph (i)
relating to the Trust.
(b) Neither the Note Trustee (except in the case of negligence,
fraud or wilful default by it) nor the Security Trustee (except
in the case of negligence, fraud or breach of trust by it) will
be liable for any decline in the value, nor any loss realised
upon any sale or other dispositions made under the Security
Trust Deed, of any Mortgaged Property or any other property
which is charged to the Security Trustee by any other person in
respect of or relating to the obligations of the Trustee or any
third party in respect of the Trustee or the Offshore Notes
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or relating in any way to the Mortgaged Property. Without
limitation, neither the Note Trustee nor the Security Trustee
shall be liable for any such decline or loss directly or
indirectly arising from its acting, or failing to act, as a
consequence of an opinion reached by it in good faith based on
advice received by it in accordance with paragraph (a).
6.5 ACTION BY OFFSHORE NOTEHOLDERS
Notwithstanding any other provision of this deed, if the Note Trustee,
having become bound to take steps and/or proceed under clause 6.1 and/or
the Security Trust Deed, fails to do so within a reasonable time and
such failure is continuing, the Offshore Noteholders may proceed
directly against the Trustee but then only if and to the extent the
Offshore Noteholders are able to do so under the Transaction Documents
and Australian law.
7. PROCEEDINGS
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7.1 ACTING ONLY ON DIRECTION
(a) The Note Trustee may vote under the Security Trust Deed, or
otherwise direct the Security Trustee under the Security Trust
Deed, or take any proceedings, actions or steps under, or any
other proceedings pursuant to or in connection with, the
Security Trust Deed, this deed or any Offshore Notes.
(b) Subject to the Note Trustee being indemnified to its
satisfaction against all actions, proceedings, claims and
demands to which it may render itself liable and all costs,
charges, damages and expenses which it may incur, the Note
Trustee:
(i) shall only be bound to undertake any of the acts
contemplated in paragraph (a) if it is directed to do so
in writing by the holders of at least 75% of the
aggregate Invested Amount (or such higher percentage as
may be required by the TIA) of either all the Offshore
Notes, all the Class A-1 Notes or all the Class A-2
Notes, as appropriate; and
(ii) shall, if an Extraordinary Resolution of Voting
Mortgagees elects not to direct the Security Trustee to
enforce the Security Trust Deed in circumstances where
the Security Trustee could enforce the Security Trust
Deed, at the direction of either the Offshore
Noteholders, the Class A-1 Noteholders or the Class A-2
Noteholders in accordance with paragraph (b)(i), direct
the Security Trustee to enforce the Security Trust Deed
on behalf of the Offshore Noteholders, the Class A-1
Noteholders or the Class A-2 Noteholders (as the case
may be).
(c) The Note Trustee shall be protected with respect to any action
taken or omitted to be taken by it in good faith in accordance
with the direction of the holders of the required aggregate
Invested Amount of the relevant Offshore Notes in accordance
with this deed relating to the time, method and place of
conducting any proceeding for any remedy available to, or
exercising any trust or power conferred upon it, under this
deed.
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7.2 SECURITY TRUSTEE ACTING
Only the Security Trustee may enforce the provisions of the Security
Trust Deed and neither the Note Trustee nor any Offshore Noteholder is
entitled to proceed directly against the Trustee to enforce the
performance of any of the provisions of the Security Trust Deed, the
Offshore Notes (including the Conditions), provided that if the Security
Trustee having become bound to take steps and/or to proceed under the
Security Trust Deed, fails to do so within a reasonable time and such
failure is continuing, the Note Trustee and/or Offshore Noteholders may
proceed directly against the Trustee but then only if and to the extent
the Note Trustee and/or the Offshore Noteholders are able to do so under
the Transaction Documents and Australian law. The Security Trustee shall
comply with all directions given to it by the Note Trustee pursuant to
any power to give directions granted to the Note Trustee pursuant to
this deed or to the Security Trust Deed provided that the Security
Trustee has the power under the Security Trust Deed to take the action
contemplated by the direction, and the Security Trustee shall not be
liable for any direct and indirect costs, expenses, losses, damages,
liabilities or actions arising or resulting from any action or conduct
undertaken or not taken by the Security Trustee or its officers,
employees or agents including as a consequence of following those
directions.
7.3 NOTE TRUSTEE ALONE ENTITLED TO ACT
Subject to clauses 6.5 and 7.2, only the Note Trustee may:
(a) direct the Security Trustee to enforce or not to enforce the
Security Trust Deed; or
(b) enforce the provisions of this deed, the Offshore Notes
(including the Conditions),
and no Offshore Noteholder is entitled to take any of the above actions
or to proceed directly against the Trustee to enforce the performance of
any of the provisions of this deed or the Offshore Notes (including the
Conditions).
7.4 AVAILABLE AMOUNTS
For the purpose of Condition 5 of each Class of Offshore Notes, the Note
Trustee shall not be satisfied that the Trustee will be in a position to
discharge the liabilities referred to in those Conditions unless,
either:
(a) the Trustee will have available to it sufficient cash in the
Collection Account and sufficient Authorised Investments which
will mature on or before the relevant Payment Date after making
any other payments or provisions having priority in order of
application under the applicable provisions of the Security
Trust Deed; or
(b) the Trustee has entered into a legally binding contract with an
entity either whose long term unsecured and unguaranteed debt is
rated AA- by S&P, Aa3 by ▇▇▇▇▇'▇ or AA- by Fitch Ratings or
whose short term unsecured and unguaranteed debt securities are
rated A-1+ by S&P, P-1 by ▇▇▇▇▇'▇ or F1+ by Fitch Ratings, to
provide sufficient cash on or before the relevant Payment Date
to enable the Trustee to discharge the relevant liabilities,
and in each circumstance the Manager or the Trustee has certified to the
Note Trustee that the requirements of clause 7.4(a) or (b) have been met
and the Note Trustee shall be entitled to rely on such certification.
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7.5 NO LIABILITY
In giving any direction to the Security Trustee under this deed or the
Security Trust Deed, the Note Trustee shall not be obliged to ensure
that the Security Trustee complies with such direction and will not be
liable for failure by the Security Trustee so to comply.
8. NOTICE OF PAYMENT
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The Principal Paying Agent shall give notice to the relevant Offshore
Noteholders in accordance with the relevant Condition 12 of the day
fixed for any payment to them of amounts received by the Note Trustee
under clause 16 of the Security Trust Deed. Those payments may be made
in accordance with the relevant Condition 6 as appropriate (in the case
of Definitive Notes) or to an account designated by the nominee of the
relevant Clearing Agency in the name of such nominee by wire transfer in
immediately available funds or to the order of the Offshore Noteholder
(in the case of any Book-Entry Note), and payment of those amounts by
the Note Trustee to the Principal Paying Agent for that purpose shall be
a good discharge by the Note Trustee.
9. INVESTMENT BY NOTE TRUSTEE
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At the direction of the Manager, the Note Trustee must invest any moneys
held by the Note Trustee under the Note Trust in such Authorised
Investments as the Manager may specify from time to time and the Note
Trustee shall not be responsible for any loss due to depreciation in
value or otherwise resulting from any Authorised Investments made by it
in compliance with any such direction. The Manager must not direct the
Note Trustee to make any investment that could have an adverse effect on
the 50% risk weighting attributed to the Class A-2 Notes by the Bank of
England and the Note Trustee need only account for interest on money
held on deposit with itself equal to the highest rate payable by it to
an independent depositor in respect of comparable deposits.
10. PARTIAL PAYMENTS
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In the case of Definitive Notes, on any payment of amounts received by
the Note Trustee in accordance with the Supplementary Terms Notice, the
relevant Condition or under clause 16 of the Security Trust Deed (other
than the payment in full against surrender of a Definitive Note) the
Definitive Note in respect of which such payment is made shall be
produced to the Note Trustee or a Paying Agent by or through whom such
payment is made and the Note Trustee shall, or shall cause that Paying
Agent to, enface on the Definitive Note a memorandum of the amount and
the date of payment, but the Note Trustee may in any particular case
dispense with that production and enfacement upon the Trustee certifying
to the Note Trustee that an indemnity has been given to the Trustee by
the recipient of the payment as the Trustee considers sufficient and the
Note Trustee shall be entitled to rely on such certification.
11. COVENANTS BY THE TRUSTEE AND MANAGER
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Each of the Trustee and the Manager undertakes to the Note Trustee, on
behalf of the Offshore Noteholders, as follows in relation to the Trust
for so long as any of the Offshore Notes remain
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outstanding (except to the extent that the Note Trustee otherwise
consents in accordance with this deed).
(a) (MASTER TRUST DEED COVENANTS) It will comply with its covenants
in the Master Trust Deed.
(b) (TRANSACTION DOCUMENTS)
(i) It will comply with its material obligations under the
Transaction Documents.
(ii) It will use reasonable endeavours (to the extent that it
is able to do so under the Master Trust Deed) to procure
that each other party to a Transaction Document complies
with and performs its obligations under that Transaction
Document.
(c) (INFORMATION) It will give to the Note Trustee a copy of any
information in its possession relating to the Trust as soon as
reasonably practicable in connection with the exercise and
performance of its powers and obligations under this deed and
which the Trustee or the Manager (as the case may be) reasonably
considers has a material bearing on the interest of the Offshore
Noteholders.
(d) (NOTIFY EVENTS OF DEFAULT)
(i) It will promptly notify the Note Trustee in writing if
it has knowledge or notice of or is aware of the
occurrence of an Event of Default, Trustee's Default,
Servicer Transfer Event, Title Perfection Event or
Manager's Default including full details (to the extent
known, without making any enquiry) of that Event of
Default, Trustee's Default, Servicer Transfer Event,
Title Perfection Event or Manager's Default (as the case
may be).
(ii) In addition to its obligations under sub-clause item
(d)(i) of this clause 11, the Manager, on behalf of the
Trustee, will confirm to the Note Trustee in writing, on
each anniversary of this deed:
(A) whether or not the Manager or the Trustee is
aware that any Event of Default has occurred;
and
(B) any other matter which is required to be
notified to the Note Trustee under the
Transaction Documents and which has not
previously been so notified.
(e) (MAINTENANCE OF OFFICE OR AGENCY) The Manager on behalf of the
Trustee will maintain:
(i) in the Borough of Manhattan, The City of New York an
office or agency where Class A-1 Notes may be
surrendered for registration of transfer or exchange,
and where notices and demands to or upon the Trustee in
respect of the Class A-1 Notes and this deed may be
served and the Trustee initially appoints the Principal
Paying Agent acting through its office at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ for this
purpose; and
(ii) in London, United Kingdom, an office or agency where
Class A-2 Notes may be surrendered for registration of
transfer or exchange, and where notices and demands to
or upon the Trustee in respect of the Class A-2 Notes
and this deed may be served and the Trustee initially
appoints the Principal Paying Agent acting
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through its office at ▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ for this purpose.
The Trustee hereby initially appoints the Principal Paying Agent
to serve as its agent for the purposes of the surrender of Class
A-1 Notes and Class A-2 Notes for registration of transfer or
exchange. The Manager will give prompt written notice to the
Note Trustee of the location, and of any change in the location,
of any such office or agency. If at any time the Manager on
behalf of the Trustee shall fail to maintain any such office or
agency or shall fail to furnish the Note Trustee with the
address thereof, such notices and demands may be made or served
at the Corporate Trust Office. The Trustee hereby appoints the
Note Trustee as its agent to receive all such notices and
demands to be served at the Corporate Trust Office. Each of the
Principal Paying Agent and the Note Trustee shall, in respect of
its appointment under this sub-paragraph (e), act solely for,
and as agent of, the Trustee and shall not have any obligations
towards or relationship or agency or trust with any other
person. The Manager shall procure that the Trustee maintains the
appointment of, if a withholding tax is imposed on a payment
made by a paying agent pursuant to European Council Directive
2003/48/EC or any other directive implementing the conclusions
of the ECOFIN Council Meeting of 26-27 November 2000, a Paying
Agent in a member state of the European Union that will not be
obliged to withhold or deduct tax pursuant to any such directive
or any law implementing or complying with, or introduced to
conform with, such directive.
(f) (LISTING) In the case of the Manager only, it will use its best
endeavours to:
(i) obtain and maintain the listing of the Class A-2 Notes
on the ASX (including compliance with the continuing
obligations applicable to the Trustee and the Trust by
virtue of the admission of the Class A-2 Notes to the
ASX) or, if it is unable to do so having used best
endeavours, use best endeavours to obtain and maintain a
quotation or listing of the Class A-2 Notes on any other
stock exchange or exchanges or securities market or
markets as the Manager (with the prior written approval
of the Note Trustee and the 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
ASX (or to any other relevant stock exchange or
securities market) any information which the ASX or, as
the case may be, any other such stock exchange or
securities market, may require to be furnished in
accordance with its requirements,
and the Trustee will provide all reasonable assistance required
by the Manager in relation to that listing.
(g) (CALCULATION AGENT) It will procure that, so long as any of the
Offshore Notes remain outstanding, there will at all times be a
Calculation Agent.
(h) (PRINCIPAL PAYING AGENT) It will procure that, so long as any of
the Offshore Notes remain outstanding, there will at all times
be a Principal Paying Agent.
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(i) (CHANGE TO PAYING AGENTS OR CALCULATION AGENT) It will give
notice to the Offshore Noteholders in accordance with the Agency
Agreement and the relevant Condition 12 of:
(i) any appointment, resignation or removal of any Paying
Agent (other than the appointment of the initial
Principal Paying Agent 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).
(j) (NOTICES) It will promptly give to the Note Trustee, or ensure
that the Note Trustee receives for approval by the Note Trustee,
two copies of the form of every notice prior to the notice being
given to the Offshore Noteholders in accordance with the
relevant Condition 12.
(k) (ANNUAL STATEMENT AS TO COMPLIANCE) The Manager on behalf of the
Trustee will deliver to the Note Trustee, within 90 days after
the end of each fiscal year of the Trust (commencing on 30
September 2006), 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 this
deed has been made under supervision of the person
signing the Officer's Certificate (the Signatory); and
(ii) to the best of the knowledge of the Signatory, based on
the review referred to in sub-paragraph (i), the Trustee
has complied with all conditions and covenants under
this deed throughout the relevant year, or, if there has
been a default in the compliance of any such condition
or covenant, specifying each such default known to the
Signatory of the nature and status of the default.
For the purposes of this clause 11(l) compliance shall be
determined without regard to any period of grace or requirement
of notice under the Transaction Documents.
(l) (OPINIONS AS TO TRUST ESTATE) On the Closing Date, the Manager
on behalf of the Trustee shall furnish to the Note Trustee an
Opinion of Counsel (who may be the counsel for the Trustee)
either stating that in the opinion of such counsel the Security
Trust Deed and any other requisite documents has been properly
recorded and filed so as to make effective the Security Interest
intended to be created by the Security Trust Deed, and reciting
the details of such action, or stating that in the opinion of
such counsel no such action is necessary to make such Security
Interest effective.
Within 90 days after the end of each fiscal year commencing on
30 September 2006 the Trustee (or the Manager on its behalf)
shall furnish to the Note Trustee an Opinion of Counsel (who may
be the counsel for the Trustee) either stating that in the
opinion of such counsel such action has been taken with respect
to the recording, filing, re-recording, and refiling of the
Security Trust Deed and any other requisite documents as is
necessary to maintain the Security Interest created by the
Security Trust Deed, and reciting the details of such action, or
stating that in the opinion of such counsel no such action is
necessary to maintain such Security Interest.
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(m) (NOTEHOLDER REPORT)
(i) The Trustee (or the Manager on its behalf) shall deliver
to the Principal Paying Agent and the Note Trustee on
each Determination Date the Noteholders Report for the
related Collection Period, with written instructions for
the Note Trustee and the Principal Paying Agent to
forward the Noteholder Report to each Offshore
Noteholder.
(ii) Each Noteholder Report shall contain the information set
out in Schedule 5.
12. REMUNERATION OF NOTE TRUSTEE
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12.1 FEE
The Trustee shall pay to the Note Trustee a fee agreed between them and
the Manager from time to time and at the times specified in the
Supplementary Terms Notice.
12.2 ADDITIONAL REMUNERATION
If the Note Trustee undertakes any of the acts contemplated in clause
7.1 or it undertakes duties which it considers expedient or necessary
under this deed, or which the Trustee or the Manager requests it to
undertake and which duties the Note Trustee, the Manager and the Trustee
agree to be of an exceptional nature or otherwise outside the scope of
the normal duties of the Note Trustee under this deed, the Trustee shall
pay to the Note Trustee any additional remuneration as they agree.
In the event that the Note Trustee, the Manager and the Trustee fail to
agree on such additional remuneration, such remuneration shall be
determined by a merchant or investment bank (acting as an expert and not
as an arbitrator) selected by the Note Trustee and approved by the
Trustee or, failing such approval, nominated (on the application of the
Note Trustee or the Trustee) by the President for the time being of The
Law Society of New South Wales (the expenses involved in such nomination
and the fees of such merchant or investment bank being shared equally by
the Trustee and the Note Trustee) and the determination of any such
merchant or investment bank shall be final and binding upon the Note
Trustee and the Trustee and shall be payable by the Trustee to the Note
Trustee.
12.3 COSTS, EXPENSES
(a) Subject to clause 34.8, the Trustee shall also reimburse, pay or
discharge all costs, charges, liabilities and expenses and any
stamp and other Taxes or duties properly incurred or paid by the
Note Trustee (or the Offshore Noteholders acting under clause
6.5 (as the case may be)) in connection with properly
undertaking its duties under the Transaction Documents
(including the fees and expenses of its counsel) and in
connection with any legal proceedings brought by the Note
Trustee (or the Offshore Noteholders acting under clause 6.5 (as
the case may be)) to enforce any obligation under this deed the
Offshore Notes.
(b) Without prejudice to the right of indemnity by law given to
trustees, to the extent the Trustee is itself entitled to be
indemnified, and subject to clause 29, the Trustee indemnifies
the Note Trustee (or the Offshore Noteholders acting under
clause 6.5 (as the case may be)) and every other person properly
appointed by it or any of them under this deed from and against
all liabilities, losses, damages, costs, expenses, actions,
proceedings, claims and
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demands incurred by or made against it or him in the execution
of the Note Trust or of their powers or in respect of any matter
or thing done or omitted in any way relating to this deed (other
than arising from any fraud, negligence or wilful default by the
Note Trustee or that person).
12.4 OVERDUE RATE
All sums payable by the Trustee under clauses 12 and 34.8 shall survive
termination of this deed and the resignation or removal of the Note
Trustee and shall be payable by the Trustee on the next Payment Date in
the order set out in the Supplementary Terms Notice or (if applicable)
the Security Trust Deed and shall carry interest at the rate of LIBOR
(in the case of sums payable in US$), EURIBOR (in the case of sums
payable in Euros) and the applicable Bank Bill Rate (in the case of sums
payable in A$) (as applicable) plus 2% from the due date. Any amount
payable shall carry interest at that rate from the due date to the date
of actual payment.
12.5 CONTINUING OBLIGATION
Unless otherwise specifically stated in any discharge relating to this
deed the provisions of this clause shall continue in full force and
effect notwithstanding such discharge and even if the Note Trustee has
ceased to be the Note Trustee for any reason including but not limited
to those contemplated in clause 23 it will be entitled to all rights
arising to it prior to it ceasing to be the Note Trustee.
13. NOTE TRUSTEE
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13.1 PREFERENTIAL COLLECTION OF CLAIMS AGAINST TRUSTEE
The Note Trustee shall comply with section 311(a) of the TIA, excluding
any creditor relationship listed in section 311(b) of the TIA. A Note
Trustee who has resigned or been removed shall be subject to section
311(a) of the TIA only to the extent required by the TIA.
13.2 DUTIES OF NOTE TRUSTEE
(a) If an Event of Default has occurred and is subsisting, and a
Responsible Officer of the Note Trustee has received written
notice of such from the Trustee and the Manager, the Note
Trustee shall exercise the rights and powers vested in it by
this deed and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except while an Event of Default subsists:
(i) the Note Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
deed and no implied covenants or obligations shall be
read into this deed against the Note Trustee; and
(ii) in the absence of bad faith on its part, the Note
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Note Trustee and conforming to the requirements of this
deed; however, the Note Trustee shall examine the
certificates
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and opinions to determine whether or not they conform to
the requirements of this deed.
(c) The Note Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own
wilful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(a) of this clause; and
(ii) the Note Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer
unless it is proved that the Note Trustee was negligent
in ascertaining the pertinent facts.
(d) Section 315(d)(3) of the TIA is expressly excluded by this deed.
13.3 RIGHTS AND LIMITED RESPONSIBILITIES OF NOTE TRUSTEE
By way of supplement to any Statute regulating the Note Trust and in
addition to the powers and protections which may from time to time be
vested or available to the Note Trustee by general law, and subject to
clause 14, it is expressly declared as follows.
(a) The Note Trustee may conclusively rely on any document believed
by it to be genuine and to have been signed or presented by the
proper person. The Note Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Note Trustee acts or refrains from acting, it may
require an Officer's Certificate or an Opinion of Counsel. The
Note Trustee shall not be liable for any action it takes,
suffers or omits to take in good faith in reliance on the
Officer's Certificate or Opinion of Counsel.
(c) No provision of this deed shall require the Note Trustee to
expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties hereunder or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or
indemnity satisfactory to it against such risk or liability is
not assured to it.
(d) The Note Trustee shall not be responsible for and makes no
representations as to the validity or adequacy of this deed
(other than in relation to its own execution of this deed) or
the Offshore Notes, shall not be accountable for the Trustee's
use of the proceeds from the Offshore Notes, and shall not be
responsible for any statement of the Trustee in this deed or in
any document issued in connection with the sale of the Offshore
Notes or in the Offshore Notes.
(e) The Note Trustee may, in relation to this deed, act on the
advice or opinion of or any information obtained from any
lawyer, valuer, accountant, banker, broker, credit-rating
agency, lead manager or other expert whether obtained by the
Trustee, the Note Trustee, the Manager, the Servicer or
otherwise.
(f) Any advice, opinion or information obtained by the Note Trustee
under paragraph (e) may be sent or obtained by letter, telegram,
facsimile transmission, email or cable and may be conclusively
relied on by the Note Trustee without further investigation and
the Note Trustee shall not be liable for acting on any such
advice, opinion or information purporting
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to be conveyed by any such letter, telegram, facsimile
transmission, email or cable although the same shall contain
some error or shall not be authentic.
(g) The Note Trustee may call for and shall be at liberty to accept
as sufficient evidence of any fact or matter or the expediency
of any transaction or thing a certificate signed by two
Authorised Signatories of the Trustee or the Manager (as the
case may be) and the Note Trustee shall not be bound in any such
case to call for further evidence or be responsible for any loss
that may be occasioned by the Note Trustee acting on that
certificate.
(h) The Note Trustee is at liberty to hold or to place this deed and
any other documents relating to this deed in any part of the
world with any banker or banking company or company whose
business includes undertaking the safe custody of documents or
lawyer or firm of lawyers reasonably considered by the Note
Trustee to be of good repute, and, except in the case of fraud,
negligence or breach of trust (in the case of the Security
Trustee) or fraud, negligence or wilful default (in the case of
the Note Trustee), neither the Note Trustee nor the Security
Trustee shall be responsible for any loss, expense or liability
which may be suffered as a result of any assets secured by the
Security Trust Deed, Mortgaged Property or any deed or documents
of title thereto, being uninsured or inadequately insured or
being held by or to the order of the Servicer or any of its
affiliates or by any clearing organisations or their operators
or by any person on behalf of the Note Trustee if prudently
chosen in accordance with the Transaction Documents.
(i) The Note Trustee shall not be responsible for the application of
the proceeds of the issue of any of the Offshore Notes by the
Trustee or any moneys borrowed by the Trustee under any
Transaction Document or the exchange of any Book-Entry Note for
any other Book-Entry Note or Definitive Note, as the case may
be.
(j) Except as otherwise provided in this deed or any other
Transaction Documents to which it is a party, the Note Trustee
shall not be bound to give notice to any person of the execution
of this deed or any of the Transaction Documents or any
transaction contemplated hereby or thereby or to take any steps
to ascertain whether any Event of Default has happened and,
until it has actual knowledge or express notice to the contrary,
the Note Trustee is entitled to assume that no Event of Default
has happened and that the Trustee and each other party to any
Relevant Document is observing and performing all the
obligations on its part contained in the Offshore Notes and
under this deed or, as the case may be, the Security Trust Deed
or any other Transaction Document to which it is a party.
(k) Save as expressly otherwise provided in this deed or the
Transaction Documents:
(i) the Note Trustee shall have absolute and uncontrolled
discretion as to the exercise of the discretions vested
in the Note Trustee by this deed and the Transaction
Documents (the exercise of which as between the Note
Trustee and the Offshore Noteholders shall be conclusive
and binding on the Offshore Noteholders) but whenever
the Note Trustee is under the provisions of this deed or
the Transaction Documents bound to act at the request or
direction of the Offshore Noteholders, or any of them,
the Note Trustee shall nevertheless not be so bound
unless it is first indemnified or accepts security to
its satisfaction against all actions, proceedings,
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claims and demands to which it may render itself liable
and all costs, charges, damages, expenses and
liabilities which it may incur by so doing; and
(ii) in the absence of fraud, negligence or wilful default,
the Note Trustee shall not be in any way responsible for
any loss (whether consequential or otherwise), costs,
damages or inconvenience that may result from the
exercise or non-exercise of any powers, authorities and
discretions vested in it.
(l) The Note Trustee shall not be liable for acting upon any
resolution purporting to have been passed at any meeting of all
Offshore Noteholders, the Class A-1 Noteholders or the Class A-2
Noteholders (as the case may be) in respect of which minutes
have been made and signed even though subsequently it may be
found that there was some defect in the constitution of the
meeting or the passing of the resolution or that for any reason
the resolution was not valid or binding upon the Offshore
Noteholders, Class A-1 Noteholders or the Class A-2 Noteholders
(as the case may be).
(m) The Note Trustee shall not be liable to the Trustee or any
Offshore Noteholder by reason of having accepted as valid or not
having rejected any Definitive Note purporting to be such and
subsequently found to be forged or not authentic and the Note
Trustee may call for and shall be at liberty to accept and place
full reliance on as sufficient evidence of the facts stated
therein a certificate or letter of confirmation certified as
true and accurate and signed on behalf of a Clearing Agency, any
Note Registrar or any Common Depository for any of them or any
person as the Note Trustee reasonably considers appropriate, or
any form of record made by any of them to the effect that at any
particular time or through any particular period any particular
person is, was, or will be, shown in its records as entitled to
a particular number of Offshore Notes.
(n) Any consent or approval given by the Note Trustee for the
purpose of this deed, the Conditions and any Transaction
Document may be given on any terms and subject to any conditions
as the Note Trustee thinks fit and despite anything to the
contrary contained in this deed, any Transaction Document or the
Conditions may be given retrospectively.
(o) Save to the extent provided in this deed, the Note Trustee shall
not (unless and to the extent ordered so to do by a court of
competent jurisdiction) be required to disclose to any Offshore
Noteholder or any Mortgagee, any information made available to
the Note Trustee by the Trustee or any other person in
connection with the Note Trust and no Offshore Noteholder shall
be entitled to take any action to obtain from the Note Trustee
any such information.
(p) Where it is necessary or desirable for any purpose in connection
with this deed to convert any sum from one currency to another
it shall (unless otherwise provided by this deed, any other
Transaction Document or required by law) be converted at the
rate or rates, in accordance with the method and as at the date
for the determination of the rate of exchange, as may be agreed
by the Note Trustee in consultation with the Trustee and the
Manager as relevant and any rate, method and date so agreed
shall be binding on the Trustee and the Offshore Noteholders.
(q) Subject to clauses 6.5 and 7.4, the Note Trustee may certify in
good faith whether or not any of the events set out in the
relevant Condition 9 or any breach under clause 8 of the
Security
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Trust Deed is in its opinion materially prejudicial to the
interests of the relevant Offshore Noteholders and may certify,
in relation to the event set out in paragraph (a) of relevant
Condition 9 in relation to any payment of interest on the
Offshore Notes that the Trustee had, on the due date for payment
of the amount of interest in question, sufficient cash to pay,
in accordance with the provisions of the Supplementary Terms
Notice or the Security Trust Deed, all interest (after payment
of all sums which are permitted under the Supplementary Terms
Notice or the Security Trust Deed to be paid in priority to or
pari passu with them) and that certificate shall be conclusive
and binding upon the Trustee and the Offshore Noteholders. The
Note Trustee shall have no liability to the Trustee, any
Offshore Noteholder or any other person in relation to any such
certificate or in relation to any delay or omission in providing
such certificate. In giving any certificate relating to
paragraph (a) of the relevant Condition 9, the Note Trustee may
rely on any determination made by any independent accountants of
recognised standing in Australia and any such determination
shall be conclusive and binding on the Trustee and the Offshore
Noteholders. The Trustee shall pay the Note Trustee all proper
costs and expenses of providing the certificate at the times
specified in the Supplementary Terms Notice.
(r) The Note Trustee shall not be bound to take any steps to
ascertain whether any event, condition or act, the happening of
which would cause a right or remedy to become exercisable by the
Note Trustee under this deed or by the Trustee under any of the
Transaction Documents has happened or to monitor or supervise
the observance and performance by the Trustee or any of the
other parties thereto of their respective obligations thereunder
and, until it shall have actual knowledge or express notice to
the contrary the Note Trustee shall be entitled to assume that
no such event, condition or act has happened and that the
Trustee and each of the other parties thereto are observing and
performing all their respective obligations thereunder.
(s) The Note Trustee shall not be responsible for recitals,
statements, warranties or representations of any party (other
than itself) contained in any Transaction Document or other
document entered into in connection with it and shall assume its
accuracy and correctness and (except with respect to itself) the
execution, legality, effectiveness, adequacy, genuineness,
validity or enforceability or admissibility in evidence of that
agreement or other document or any security constituted by them,
and the Note Trustee may accept without enquiry, requisition or
objection all title as the Trustee may have to any of the
Mortgaged Property or as any other person may have to any other
security charged from time to time to the Note Trustee and shall
not be bound to investigate or make any enquiry in the title of
the Trustee to any of the Mortgaged Property or the title of any
other person to any other security charged from time to time to
the Note Trustee whether or not any defect or failure might be,
or might have been, discovered upon examination inquiry or
investigation and whether or not capable of remedy.
Notwithstanding the generality of the foregoing, each Offshore
Noteholder is solely responsible for making its own independent
appraisal of and investigation into the Trust and the Offshore
Notes and the Note Trustee shall not at any time have any
responsibility for the same and no Offshore Noteholder shall
rely on the Note Trustee in that respect.
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(t) The Note Trustee shall not be liable for any failure, omission
or defect in or filing or procuring registration or filing of or
otherwise protecting or perfecting the Security Trust Deed or
the Mortgaged Property or any other security or failure to call
for delivery of documents of title to the Mortgaged Property or
any other security or to require any further assurances in
relation to any property or assets comprised in the Mortgaged
Property or any other security.
(u) The Note Trustee shall not be obliged (whether or not directed
to do so by the Offshore Noteholders) to direct the Security
Trustee to perfect legal title to any Purchased Receivable if,
in the opinion of the Note Trustee, that perfection would or
might result in the Note Trustee becoming liable to or incurring
any obligation to any Obligor under a Purchased Receivable and,
in its opinion, there is or would be insufficient cash to
discharge, in accordance with the provisions of the Security
Trust Deed, that liability or obligations as and when they
arise. Notwithstanding the generality of the foregoing, the Note
Trustee shall have no responsibility or liability for the
payment of any fees for the registration of the relevant
Mortgages in Australia or for any related legal, administrative
or other fees, costs and expenses (including, but not limited
to, any proper disbursements and any goods and services tax or
analogous value added tax). The Manager will provide to the Note
Trustee such information and the Trustee will pay to the Note
Trustee such costs as the Note Trustee reasonably considers
necessary to make these determinations and, subject to clause
29, the Trustee indemnifies the Note Trustee against any loss or
damage suffered as a result of the Note Trustee incurring such
an obligation.
(v) The Note Trustee shall, as regards all the powers, trusts,
authorities, duties and discretions vested in it by this deed,
the Transaction Documents or the Offshore Notes (including the
Conditions), except where expressly provided otherwise, have
regard to the interests of the Offshore Noteholders.
(w) Without prejudice to the provisions of any Transaction Document,
the Note Trustee shall not be under any obligation to insure any
of the Mortgaged Property (or any other property) or any deeds
or documents of title or other evidence relating to that
property or to require any other person to maintain any such
insurance or monitor the adequacy of any such insurance and
shall not be responsible for any loss, expense or liability
which may be suffered by any person as a result of the lack of
or inadequacy of any insurance.
(x) The Note Trustee shall not be responsible for any loss, expense
or liability (including, without limitation, any decline in the
value or loss realised upon any sale or disposition made under
the Security Trust Deed) occasioned to the Mortgaged Property or
any other property or in respect of all or any of the moneys
which may stand to the credit of the Collection Accounts, from
time to time however caused (including any bank, broker,
depository, warehouseman or other intermediary or any clearing
system or its operator acting in accordance with or contrary to
the terms of any of the Transaction Documents or otherwise),
unless that loss is occasioned by the fraud, negligence or
wilful default of the Note Trustee.
(y) The Note Trustee has no responsibility whatsoever to the Trustee
or any Offshore Noteholder as regards any deficiency or
additional payment, as the case may be, which might arise
because the Note Trustee or the Trustee is subject to any Tax in
respect of the
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Mortgaged Property, the Security Trust Deed or any other
security or any income or any proceeds from them.
(z) No provision of this deed requires the Note Trustee to do
anything which may be illegal or contrary to applicable law or
regulation or expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties,
or in the exercise of any of its rights or powers, if it has
grounds to believe that repayment of those funds or adequate
indemnity against that risk or liability is not assured to it.
Without limitation nothing contained in this deed imposes any
obligation on the Note Trustee to make any further advance to an
Obligor or to borrow any moneys under a Transaction Document or
to maintain, protect or preserve any moneys standing to the
credit of the Collection Account.
(aa) The Note Trustee is not responsible (except as to itself) for
the genuineness, validity, effectiveness or suitability of any
of the Transaction Documents or any of the Mortgages, Security
Interests or other documents entered into in connection with
them or any Mortgage Insurance Policy or any other document or
any obligation or rights created or purported to be created by
them or under them or any Security Interest or the priority
constituted by or purported to be constituted by or pursuant to
that Security Interest, nor shall it (except as to itself) be
responsible or liable to any person because of any invalidity of
any provision of those documents or the unenforceability of
those documents, whether arising from statute, law or decision
of any court and (without limitation) the Note Trustee shall not
be responsible for or have any duty to make any investigation in
respect of or in any way be liable whatsoever for:
(i) the nature, status, creditworthiness or solvency of any
Obligor or any other person or entity who has at any
time provided any security or support whether by way of
guarantee, Security Interest or otherwise in respect of
any advance made to any Obligor;
(ii) the execution, legality, validity, adequacy,
admissibility in evidence or enforceability of any
Mortgage or Loan or any other document entered into in
connection with them;
(iii) the title, ownership, value, sufficiency or existence of
any Land, Mortgaged Property or any Mortgage Insurance
Policy;
(iv) the registration, filing, protection or perfection of
any Mortgage or the priority of the security created
under a Mortgage whether in respect of any initial
advance or any subsequent advance or any other sums or
liabilities;
(v) the scope or accuracy of any representations, warranties
or statements made by or on behalf of any Obligor in any
application for any advance or in any Mortgage or Loan
or in any document entered into in connection with them;
(vi) the performance or observance by any Obligor or any
other person of any provisions of any Mortgage or Loan
or in any document entered into in connection with them
or the fulfilment or satisfaction of any conditions
contained in them or relating to them or as to the
existence or occurrence at any time of any default,
event of default or similar event contained in them or
any waiver or consent which has at any time been granted
in relation to any of the above;
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(vii) the existence, accuracy or sufficiency of any legal or
other opinions, searches, reports, certificates,
valuations or investigations delivered or obtained or
required to be delivered or obtained at any time in
connection with any Mortgage or Loan;
(viii) the title of the Trustee to any Mortgage, Loan or other
Mortgaged Property;
(ix) the suitability, adequacy or sufficiency of any
guidelines under which Loans are entered into or
compliance with those guidelines or compliance with any
applicable criteria for any further advances or the
legality or ability or enforceability of the advances or
the priority of the Mortgages in relation to the
advances;
(x) the compliance of any person with the provisions and
contents of and the manner and formalities applicable to
the execution of the Mortgages and Loans and any
documents connected with them or the making of any
advance intended to be secured by them or with any
applicable laws or regulations (including Consumer
Credit Legislation);
(xi) the failure of the Approved Seller, the Trustee, the
Servicer or the Manager to obtain or comply with the
Transaction Documents or any Authorisation in connection
with the origination, sale, purchase or administration
of any of the Mortgages or Loans or the making of any
advances in connection with them or the failure to
effect or procure registration of or to give notice to
any person in relation to or otherwise protect the
security created or purported to be created by or
pursuant to any of the Mortgages or Loans or other
documents entered into in connection with them;
(xii) the failure to call for delivery of documents of title
to or require any transfers, legal mortgages, charges or
other further assurances in relation to any of the
assets the subject matter of any of the Transaction
Documents or any other document;
(xiii) any accounts, books, records or files maintained by the
Approved Seller, the Servicer, the Trustee, the Manager
or any other person in respect of any of the Mortgages
or Loans; or
(xiv) any other matter or thing relating to or in any way
connected with any Mortgage or Loan or any document
entered into in connection with them whether or not
similar to the above.
(bb) The Note Trustee is not liable or responsible for any loss,
cost, damages, expenses, liabilities or inconvenience which may
result from anything done or omitted to be done by it in
accordance with the provisions of this deed, any other
Transaction Document or any other document or as a consequence
of or in connection with it being held or treated as, or being
deemed to be, a creditor, for the purposes of the Consumer
Credit Legislation, in respect of any of the Mortgages.
(cc) The Note Trustee shall be entitled to call for and rely on a
certificate or any letter of confirmation or explanation
reasonably believed by it to be genuine, of the Approved Seller,
the Servicer, the Trustee, the Manager, any Paying Agent, the
Calculation Agent, any Designated Rating Agency or any other
credit-rating agency in respect of every manner and circumstance
for which a certificate or any letter of confirmation or
explanation is expressly
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provided for under this deed or in respect of the rating of the
Offshore Notes or the Conditions and the Note Trustee is not
bound in any such case to call for further evidence or be
responsible for any loss, liability, costs, damages, expenses or
inconvenience that may be occasioned by its failing so to do.
(dd) In connection with any proposed modification, waiver,
authorisation or determination permitted by this deed, the Note
Trustee shall not have regard to the consequences thereof for
individual Offshore Noteholders resulting from their being for
any purpose domiciled or resident in, or otherwise connected
with, or subject to, the jurisdiction of any particular
territory.
(ee) Except as otherwise provided in this deed or any other
Transaction Document, the Note Trustee shall have no
responsibility for the maintenance of any rating of the Offshore
Notes by a Designated Rating Agency or any other credit-rating
agency or any other person.
(ff) The Note Trustee shall be under no obligation to monitor or
supervise the functions of the Servicer from time to time under
the terms of the Servicing Agreement or any other person under
any other Transaction Document, and is entitled, in the absence
of actual knowledge of a breach of duty or obligation, to assume
that the Servicer is properly performing its obligations in
accordance with the provisions of the Servicing Agreement or
that any other person is properly performing its obligations in
accordance with each other Transaction Document, as the case may
be.
(gg) The Note Trustee acknowledges that the Manager is responsible,
under the Supplementary Terms Notice, for calculating all
amounts referred to in clause 5 of the Supplementary Terms
Notice (other than calculations required to be made by the
Calculation Agent under the Agency Agreement) and the Note
Trustee has no liability in respect of these calculations other
than as a result of the fraud, negligence or wilful default of
the Note Trustee.
(hh) Subject to clause 36.5, where there are any inconsistencies
between any Statute regulating the Note Trust and the provisions
of this deed, the provisions of this deed shall, to the extent
allowed by law, prevail.
(ii) Subject to clause 36.5 and to the maximum extent permitted by
law, any duty imposed on the Note Trustee under any Statute
shall not apply to the Note Trustee unless and only to the
extent that the relevant duty is expressly stated as applying to
the Note Trustee in this deed.
13.4 NOTICE OF DEFAULTS
(a) If an Event of Default occurs and is subsisting and the Note
Trustee has received notice of that Event of Default from the
Trustee and the Manager, the Note Trustee shall mail to each
Offshore Noteholder notice of the Event of Default within 90
days after receipt of such notice.
(b) Except in the case of a default in payment of principal of or
interest on any Offshore Note (including payments pursuant to
the mandatory redemption provisions of that Offshore Note), the
Note Trustee may withhold the notice referred to in paragraph
(a) if and so long as the board of directors, the executive
committee or a trust committee in good faith determines that
withholding the notice is in the interest of the Offshore
Noteholders.
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14. NOTE TRUSTEE'S LIABILITY
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(a) Subject to paragraph (b), the Note Trustee will have no
liability under or in connection with this deed or any other
Transaction Document (whether to the Offshore Noteholders, the
Trustee, the Manager or any other person) other than to the
extent to which the liability is able to be satisfied out of the
assets of the Note Trust from which the Note Trustee is actually
indemnified for the liability.
(b) The limitation in paragraph (a) will not apply to a liability of
the Note Trustee to the extent that it is not satisfied because,
under this deed or by operation of law, there is a reduction in
the extent of the Note Trustee's indemnification as a result of
the Note Trustee's fraud, negligence or wilful default. Nothing
in this clause or any similar provision in any other Transaction
Document limits or adversely affects the rights of the Note
Trustee.
15. DELEGATION BY NOTE TRUSTEE
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(a) The Note Trustee may whenever it thinks fit delegate by power of
attorney or otherwise to any person or persons for any period
(whether exceeding one year or not) or indefinitely all or any
of the trusts, powers and authorities vested in the Note Trustee
by this deed and that delegation may be made upon any terms and
subject to any conditions (including power to sub-delegate) and
subject to any regulations as the Note Trustee may in the
interests of the Offshore Noteholders think fit.
(b) If the Note Trustee exercises reasonable care in the selection
of a delegate under paragraph (a), the Note Trustee shall not be
required to supervise the actions of the delegate and shall,
providing the Note Trustee and the delegate are not Related
Bodies Corporate, not in any way be responsible for any loss
incurred by reason of any fraud, negligence, misconduct or
default on the part of any delegate or sub-delegate. The Note
Trustee must within a reasonable time prior to any delegation or
any renewal, extension or termination of any delegation give
notice of it to the Trustee and the Designated Rating Agencies.
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE
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The Note Trustee may in the conduct of the Note Trust, instead of acting
personally employ and pay an agent, whether being a lawyer or other
professional person, to transact or concur in transacting any business
and to do or concur in doing all acts required to be done in connection
with the Note Trust. If the Note Trustee exercises reasonable care in
the selection of that agent, the Note Trustee shall not be required to
supervise the actions of the agent and shall not in any way be
responsible for any loss incurred by reason of any fraud, negligence,
misconduct or default on the part of that agent.
Any Note Trustee or the agent of the Note Trustee which is a banker,
lawyer, accountant, broker or other person engaged in any profession or
business is entitled to charge and be paid all usual professional and
other charges for business transacted and acts done by him or his firm
in connection with the Note Trust and also his reasonable charges in
addition to disbursements for all other work and business done and all
time spent by him or his firm in connection with matters arising in
connection with this deed including matters which might or should have
been attended to in person by a trustee not being a banker, lawyer,
accountant, broker or other professional. Those charges will
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be for the account of the Note Trustee unless agreed otherwise, who
shall be reimbursed by the Trustee under clause 12.
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE
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Neither the Note Trustee nor any director or officer of a corporation
acting as Note Trustee is by reason of its or their fiduciary position
in any way precluded from entering into or being interested in any
contract or financial or other transaction or arrangement with the
Trustee or any other party to any of the Transaction Documents or any
person or body corporate associated with the Trustee including any
contract, transaction or arrangement of a banking or insurance nature or
any contract, transaction or arrangement in relation to the making of
loans or the provision of financial facilities to or the purchase,
placing or underwriting of or subscribing or procuring subscriptions for
or otherwise acquiring holding or dealing with the Offshore Notes or any
of them, or any other bonds, stocks, shares, debenture stock,
debentures, notes or other securities of the Trustee or any other party
to any of the Transaction Documents or any related person or body
corporate or from accepting or holding the trusteeship of any other
trust deed constituting or securing any other securities issued by or
relating to the Trustee or any other party to any of the Transaction
Documents or any related person or body corporate or any other office of
profit under the Trustee or any other party to any of the Transaction
Documents or any related person or body corporate and shall be entitled
to retain and shall not be in any way liable to account for any profit
made or share of brokerage or commission or remuneration or other
benefit received by them or in connection with any of those
arrangements.
18. WAIVER
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(a) The Note Trustee may, without prejudice to its rights in respect
of any subsequent breach, condition, event or act from time to
time and at any time (but only if, and in so far as, in its
opinion the interests of any of the Offshore Noteholders are not
materially prejudiced), waive or authorise on any terms and
subject to any conditions as it sees fit and proper:
(i) any breach or proposed breach by the Trustee or Manager
of any of the covenants or provisions contained in this
deed or in the Offshore Notes (including the Conditions)
or any other Transaction Document (as to which evidence
of a breach of one Offshore Note shall be deemed
evidence of a breach of all Offshore Notes in the Class
to which that Offshore Note belongs); or
(ii) determine that any condition, event or act which
constitutes, or which with the giving of notice, the
lapse of time or the issue of a certificate would
constitute, but for that determination, an Event of
Default shall not, or shall not subject to specified
conditions, be so treated for the purposes of this deed,
but the Note Trustee shall not exercise any powers conferred on
it by this clause in contravention of:
(iii) any express direction given in writing by holders of
Offshore Notes representing at least 75% of the
aggregate Invested Amount of the Offshore Notes;
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(iv) a request made by the Offshore Noteholders in accordance
with the relevant Condition 10; or
(v) clauses 36.4 or 37.2 of this deed,
and shall at all times act in accordance with the requirements
of the TIA.
No direction or request shall affect any waiver, authorisation
or determination previously given or made.
(b) Any waiver, authorisation or determination under this clause is
binding on the Offshore Noteholders and if, but only if, the
Note Trustee so requires, shall be notified by the Trustee to
the Offshore Noteholders in accordance with the relevant
Condition 12 as soon as practicable.
19. AMENDMENT
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19.1 APPROVAL
The Note Trustee, the Manager and the Trustee may, following giving
notice to each Designated Rating Agency, by way of supplemental deed
alter, add to or modify this deed (including this clause 19), the
Conditions (subject to the relevant Condition 13) and this clause or
any Transaction Document so long as that alteration, addition or
modification is:
(a) to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(b) in the opinion of the Note Trustee necessary to comply with the
provisions of any law or regulation or with the requirements of
any Government Agency;
(c) in the opinion of the Note Trustee appropriate or expedient as a
consequence of an amendment to any law or regulation or altered
requirements of any Government Agency (including, without
limitation, an alteration, addition or modification which is in
the opinion of the Note Trustee appropriate or expedient as a
consequence of the enactment of a law or regulation or an
amendment to any law or regulation or ruling by the Commissioner
or Deputy Commissioner of Taxation or any governmental
announcement or statement, in any case which has or may have the
effect of altering the manner or basis of taxation of trusts
generally or of trusts similar to the Trust); or
(d) in the opinion of the Note Trustee not materially prejudicial to
the interests of the Offshore Noteholders as a whole or any
Class of Offshore Noteholder,
and in the manner, and to the extent, permitted by the Transaction
Documents.
For the avoidance of doubt, the Note Trustee shall be entitled to rely
conclusively on, and shall not be liable to any person for such reliance
on, an Opinion of Counsel in connection with any alteration, addition or
modification under sub-paragraphs (b) to (d) (inclusive) above.
19.2 EXTRAORDINARY RESOLUTION OF OFFSHORE NOTEHOLDERS
Subject to clause 37.2, where in the opinion of the Note Trustee a
proposed alteration, addition or modification to this deed, other than
an alteration, addition or modification referred to in clause 19.1,
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is materially prejudicial or likely to be materially prejudicial to the
interest of Offshore Noteholders as a whole or any Class of Offshore
Noteholders, the Note Trustee, the Manager and the Trustee may make that
alteration, addition or modification (subject to the TIA (if
applicable)) only if sanctioned in writing by holders of at least 75% of
the aggregate Invested Amount of the Offshore Notes (an EXTRAORDINARY
RESOLUTION).
19.3 DISTRIBUTION OF AMENDMENTS
The Manager shall distribute to all Offshore Noteholders and each
Designated Rating Agency a copy of any amendments made under clause 19.1
or 19.2 under relevant Condition 12 as soon as reasonably practicable
after the amendment has been made.
19.4 AMENDMENTS BINDING
Any amendment under this clause is binding on the Offshore Noteholders.
19.5 CONFORMITY WITH TIA
Every amendment of this deed executed pursuant to this clause 19 which
affects the Class A-1 Notes or the Class A-1 Noteholders shall conform
to the requirements of the TIA as then in effect so long as this deed
shall then be qualified under the TIA.
20. OFFSHORE NOTEHOLDERS
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20.1 ABSOLUTE OWNER
(a) The Trustee, the Manager, the Security Trustee, the Note Trustee
and any Paying Agent may treat the registered holders of any
Definitive Note as the absolute owner of that Definitive Note
(whether or not that Definitive Note is overdue and despite any
notation or notice to the contrary or writing on it or any
notice of previous loss or theft of it or trust or other
interest in it) for the purpose of making payment and for all
purposes and none of the Trustee, the Manager, the Security
Trustee, the Note Trustee or the Paying Agents is affected by
any notice to the contrary.
(b) So long as the Offshore Notes, or any of them, are represented
by a Book-Entry Note, the Trustee, the Manager, the Note Trustee
and any Paying Agent may treat the person for the time being
shown in the records of the relevant Clearing Agency as the
holder of any Offshore Note as the absolute owner of that
Offshore Note and the Trustee, the Manager, the Note Trustee and
the Paying Agents are not affected by any notice to the
contrary, but without prejudice to the entitlement of the
registered holder of the Book-Entry Note to be paid principal
and interest on the Book-Entry Note in accordance with its
terms. Without limitation, notices to Offshore Noteholders may
be given by:
(i) in the case of the Class A-1 Noteholders, delivery of
the relevant notice to the relevant Clearing Agency for
the Class A-1 Notes as the holder of the relevant Class
A-1 Notes for communication by them to entitled account
holders in substitution for publication as required by
the relevant Conditions; or
(ii) in the case of the Class A-2 Noteholders, delivery of
the relevant notice to Euroclear or Clearstream,
Luxembourg for communication by them to entitled
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account holders in substitution for publication as
required by the relevant Conditions.
(c) Provided the Trustee pays the relevant Noteholder in accordance
with the Transaction Documents, such Noteholder shall have no
claim directly against the Trustee, the Note Trustee or the
Principal Paying Agent in respect of payment due on the Offshore
Notes for so long as the Offshore Notes are represented by a
Book Entry Note and the relevant obligations of the Trustee will
be discharged by payment to the registered holder of the Book
Entry Note in respect of each amount so paid.
(d) All payments made to any person treated as the owner of an
Offshore Note under this clause (or, in the case of a Book-Entry
Note, to or to the order of the registered holder of that
Book-Entry Note) shall be valid and, to the extent of the sums
so paid, effective to satisfy and discharge the liability for
the moneys payable upon that Offshore Note.
(e) Any instalment of interest or principal, payable on any Offshore
Note which is punctually paid or duly provided for by the
Trustee to the Paying Agent on the applicable Payment Date or
Maturity Date shall be paid to the person in whose name such
Offshore Note is registered on the Record Date, by cheque mailed
first-class, postage prepaid, to such person's address as it
appears on the Note Register on such Record Date, except that,
unless Definitive Notes have been issued pursuant to clause 3.3
or clause 3.4, with respect to Offshore Notes registered on the
Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be the Common Depository), payment
will be made by wire transfer in immediately available funds to
the account designated by such nominee and except for the final
instalment of principal payable with respect to such Offshore
Note on a Payment Date or Maturity Date (and except for the
redemption for any Offshore Note called for redemption pursuant
to the relevant Condition 5 which shall be payable as provided
in paragraph (f).
(f) The principal of each Offshore Note shall be payable on each
Payment Date and the Final Maturity Date as set forth in the
relevant Conditions. The Principal Paying Agent shall notify the
person in whose name an Offshore Note is registered at the close
of business on the Record Date preceding the Payment Date, of
the date on which the Trustee expects that the final instalment
of principal and interest on such Offshore Note will be paid.
Such notice shall be mailed or transmitted by facsimile prior to
such Final Maturity Date and shall specify that such final
instalment will be payable only upon presentation and surrender
of such Offshore Note and shall specify the place where such
Offshore Note may be presented and surrendered for payment of
such instalment. Notices in connection with redemptions of
Offshore Notes shall be mailed to Offshore Noteholders as
provided in clause 26.1.
20.2 CLEARING AGENCY CERTIFICATE
The Trustee, the Manager, the Security Trustee and the Note Trustee may
call for and shall be at liberty to accept and place full reliance on as
sufficient evidence a certificate or letter or confirmation signed on
behalf of any Clearing Agency or any form of record made by either of
them to the effect that at any particular time or throughout any
particular period any particular person is, was, or will be, shown in
its records as entitled to a particular interest in a Book-Entry Note.
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21. CURRENCY INDEMNITY
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Subject to this deed including clause 29, the Trustee indemnifies the
Note Trustee, the Offshore Noteholders and keeps them indemnified
against:
(a) any loss or damage incurred by any of them arising from the
non-payment by the Trustee of any US$ or Euro amount due to the
Note Trustee or the relevant Offshore Noteholders under this
deed or the relevant Offshore Notes by reason of any variation
in the rates of exchange between those used for the purposes of
calculating the amount due under a judgment or order in respect
of that payment, which amount is expressed in a currency other
than US$ or Euros, and under which the Note Trustee or the
Offshore Noteholders do not have an option to have that judgment
or order expressed in US$ or Euros (as the case may be), and
those prevailing at the date of actual payment by the Trustee;
and
(b) any deficiency arising or resulting from any variation in rates
of exchange between:
(i) the date (if any) as of which the non-US$ or non-Euro
(as the case may be) currency equivalent of the US$ or
Euro (as the case may be) amounts due or contingently
due under this deed (other than this clause) or in
respect of the relevant Offshore Notes is calculated for
the purposes of any bankruptcy, insolvency or
liquidation of the Trustee; and
(ii) the final date for ascertaining the amount of claims in
that bankruptcy, insolvency or liquidation provided that
in that bankruptcy, insolvency or liquidation claims are
required to be made in a currency other than US$ or
Euros (as the case may be).
The amount of that deficiency shall not be reduced by any
variation in rates of exchange occurring between that final date
and the date of any distribution of assets in connection with
that bankruptcy, insolvency or liquidation.
(c) The indemnities in this clause are obligations of the Trustee
separate and independent from its obligations under the Offshore
Notes and apply irrespective of any time or indulgence granted
by the Note Trustee or the Offshore Noteholders from time to
time and shall continue in full force and effect despite the
judgment or filing of any proof or proofs in any bankruptcy,
insolvency or liquidation of the Trustee for a liquidated sum or
sums in respect of amounts due under this deed (other than this
clause) or the Offshore Notes. Any deficiency will constitute a
loss suffered by the Offshore Noteholders and no proof or
evidence of any actual loss shall be required by the Trustee or
its liquidator.
22. NEW NOTE TRUSTEES
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22.1 APPOINTMENT BY TRUSTEE
The Trustee may, at the direction of the Manager, at any time appoint a
new Note Trustee of this deed who has previously been approved by an
Extraordinary Resolution of the Offshore Noteholders. One or more
persons may hold office as Note Trustee or Note Trustees but that Note
Trustee or those Note Trustees must be or include a Trust Corporation.
Whenever there are more than two Note Trustees the majority of those
Note Trustees are competent to execute and exercise all
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the duties, powers, trusts, authorities and discretions vested in the
Note Trustee by this deed if a Trust Corporation is included in that
majority.
22.2 APPOINTMENT BY NOTE TRUSTEE
(a) The Note Trustee may, on 30 days prior written notice to the
Trustee and Manager, appoint any person established or resident
in any jurisdiction (whether a Trust Corporation or not) to act
either as a separate Note Trustee or as a co-Note Trustee
jointly with the Note Trustee:
(i) if the Note Trustee considers that appointment to be in
the interests of the Offshore Noteholders;
(ii) for the purposes of conforming to any legal
requirements, restrictions or conditions in any
jurisdiction in which any particular act or acts is or
are to be performed; or
(iii) for the purposes of obtaining a judgment in any
jurisdiction or the enforcement in any jurisdiction of
either a judgment already obtained or any of the
provisions of this deed against the Trustee.
(b) Subject to the provisions of this deed, a person appointed under
paragraph (a) has all trusts, rights, powers, authorities and
discretions (not exceeding those conferred on the Note Trustee
by this deed) and all duties and obligations conferred or
imposed by the instrument of appointment.
(c) Subject to this deed, all trusts, rights, powers, authorities,
discretions, duties and obligations conferred or imposed upon
the Note Trustee shall be conferred or imposed upon and
exercised or performed by the Note Trustee and a person
appointed under paragraph (a) jointly (it being understood that
such separate Note Trustee or co-Note Trustee is not authorised
to act separately without the Note Trustee joining in such act),
except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed the Note
Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such trusts, rights, powers,
authorities, discretions, duties and obligations shall be
exercised and performed solely by such separate Note Trustee or
co-Note Trustee, but solely at the direction of the Note
Trustee.
(d) The Note Trustee may remove or accept the resignation or
retirement of any person appointed under this clause. The
reasonable remuneration of any person appointed under this
clause together with any costs, charges and expenses properly
incurred by it in performing its function as Note Trustee or
co-Note Trustee will be costs, charges and expenses incurred by
the Note Trustee under this deed, which shall be reimbursed by
the Trustee under clause 12.
22.3 NOTICE
(a) The Trustee shall notify the Principal Paying Agent of any
appointment of a new Note Trustee or any retirement or
resignation or removal of an existing Note Trustee of this deed
as soon as practicable after becoming aware of that appointment,
retirement or removal in accordance with the relevant Condition
12.
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(b) The Note Trustee shall notify each Designated Rating Agency and
the Offshore Noteholders of any appointment of a new Note
Trustee or its retirement or removal as soon as practicable.
23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL
-------------------------------------------------------------------------------
23.1 REMOVAL BY TRUSTEE
The Trustee (or the Manager on its behalf after informing the Trustee
of its intention to do so) may at any time terminate the appointment of
the Note Trustee by giving written notice to that effect to each
Designated Rating Agency and the Note Trustee with effect immediately
on that notice, if any of the following occurs in relation to the Note
Trustee:
(a) an Insolvency Event has occurred in relation to the Note
Trustee;
(b) the Note Trustee has ceased its business;
(c) the Note Trustee fails to comply with any of its obligations
under any Transaction Document and such failure has had or, if
continued, will have, a Material Adverse Effect (as determined
by the Trustee), and, if capable of remedy, the Note Trustee
does not remedy that failure within 14 days after the earlier
of:
(i) the Note Trustee becoming aware of that failure; and
(ii) receipt by the Note Trustee of a written notice with
respect thereto from either the Trustee or the Manager;
or
(d) the Note Trustee fails to satisfy any obligation imposed on it
under the TIA with respect to the Trust or this deed or comply
with clause 23.6.
23.2 REMOVAL BY OFFSHORE NOTEHOLDERS
The Offshore Noteholders may resolve by written consent of the holders
of at least 75% of the aggregate Invested Amount of all the Offshore
Notes to require the Trustee to remove the Note Trustee or Note
Trustees for the time being of this deed.
23.3 RESIGNATION
(a) Subject to this clause 23, the Note Trustee may resign its
appointment under this deed at any time by giving to the
Trustee, the Manager, the Security Trustee and each Designated
Rating Agency not less than 3 months written notice to that
effect which notice shall expire not less than 30 days before
any due date for payment of any Class of Offshore Notes.
(b) Notwithstanding paragraph (a), the Note Trustee shall not resign
its appointment under this deed until a successor Note Trustee
meeting the requirements set forth in clause 23.4 has been
appointed and has accepted its appointment as Note Trustee under
this deed as provided in clause 23.5.
(c) Subject to this deed, if a successor Note Trustee has not
accepted its appointment within 30 days after:
(i) the Note Trustee has given notice of its resignation in
accordance with paragraph (a); or
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(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.
(d) The costs of the resignation of the Note Trustee under this
clause 23.3, or of the removal of the Note Trustee under clause
23.2, will be an Expense of the Trust.
23.4 TRUST CORPORATION
Each of the Trustee and the Manager undertakes that if the only Note
Trustee which is a Trust Corporation retires, resigns or is removed it
will use its reasonable endeavours to appoint a new Note Trustee which
is a Trust Corporation as soon as reasonably practicable. The
retirement, resignation or removal of any Note Trustee shall not become
effective until a successor Note Trustee which is a Trust Corporation is
appointed. The Manager must assist the Trustee to appoint a new Note
Trustee of this deed. If the Trustee fails to appoint a new Note Trustee
within three months from such retirement, resignation or removal, the
Note Trustee shall be entitled to appoint a new Note Trustee which is a
Trust Corporation and such appointment shall be deemed to have been made
under clause 22.2 of this deed.
23.5 SUCCESSOR TO NOTE TRUSTEE
(a) On the execution by the Trustee, the Manager and any successor
Note Trustee of an instrument effecting the appointment of that
successor Note Trustee, that successor Note Trustee shall,
without any further act, deed or conveyance, become vested with
all the authority, rights, powers, trusts, immunities, duties
and obligations of the predecessor Note Trustee with effect as
if originally named as Note Trustee in this deed and the
Transaction Documents and that predecessor Note Trustee, on
payment to it of the pro rata proportion of its fee and
disbursements then unpaid (if any), shall have no further
liabilities under this deed, except for any accrued liabilities
arising from or relating to any act or omission occurring prior
to the date on which the successor Note Trustee is appointed.
(b) Any corporation:
(i) into which the Note Trustee is merged;
(ii) with which the Note Trustee is consolidated;
(iii) resulting from any merger or consolidation to which the
Note Trustee is a party;
(iv) to which the Note Trustee sells or otherwise transfers
all or substantially all the assets of its corporate
trust business,
shall, on the date when that merger, conversion, consolidation,
sale or transfer becomes effective and to the extent permitted
by applicable law, become the successor Note Trustee under this
deed without the execution or filing of any agreement or
document or any further act on the part of the parties to this
deed, unless otherwise required by the Trustee or the Manager,
and after that effective date all references in this deed to the
Note Trustee shall be references to that corporation.
(c) If no other person can be found to act as Note Trustee, the
Offshore Noteholders may elect a Note Trustee from among the
holders of the Offshore Notes.
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23.6 ELIGIBILITY; DISQUALIFICATION
(a) The Note Trustee shall at all times satisfy the requirements of
section 310(a) of the TIA.
(b) The Note Trustee shall have a combined capital and surplus (as
those terms are used in the TIA) of at least US$50,000,000 as
set forth in its most recent published annual report of
condition.
(c) The Note Trustee shall comply with section 310(b) of the TIA,
provided that any indenture or indentures under which other
securities of the Trustee are outstanding shall be excluded from
the operation of section 310(b)(1) of the TIA for the purposes
of paragraph (b) if the requirements for such exclusion set out
in section 310(b)(1) of the TIA are met.
24. NOTE TRUSTEE'S POWERS ADDITIONAL
-------------------------------------------------------------------------------
The powers conferred upon the Note Trustee by this deed shall be in
addition to any powers which may from time to time be vested in the Note
Trustee by the general law or as a holder of any of the Offshore Notes.
25. SEVERABILITY OF PROVISIONS
-------------------------------------------------------------------------------
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
-------------------------------------------------------------------------------
26.1 GENERAL
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this deed:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender; and
(c) subject to paragraph (d), will be taken to be duly given or
made:
(i) (in the case of delivery in person or by post) when
delivered, received or left at the address of the
recipient shown in clause 26.2 or to any other address
which may have been notified to the sender under this
clause 26; and
(ii) (in the case of facsimile transmission) on receipt of a
transmission report confirming successful transmission
to the number shown in clause 26.2 or any other number
notified by the recipient to the sender under this
clause 26,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is
sent or is later than 5.00 pm (local time), it will be taken to
have been duly given or made at the commencement of business on
the next day on
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which business is generally carried on in that place. Any party
may by notice to each party change its address and facsimile
under this clause 26.1.
(d) For the purposes of paragraph (c), all notices, requests,
demands, consents, approvals, agreements or other communications
to the Note Trustee, Principal Paying Agent, any Note Registrar
or the Calculation Agent must be given or made by facsimile
transmission.
26.2 DETAILS
The address and facsimile of each person to whom notices may be sent at
the date of this deed are as follows:
THE TRUSTEE
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
Level ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Manager, Securitisation
THE MANAGER
CRUSADE MANAGEMENT LIMITED
Level 11
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Executive Manager, Securitisation
THE PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK
IN RELATION TO THE CLASS A-1 NOTES, CLASS A-1 NOTEHOLDERS AND CLASS A-1
NOTE OWNERS:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/5803
Attention: Global Trust Services
IN RELATION TO THE CLASS A-2 NOTES, CLASS A-2 NOTEHOLDERS AND CLASS A-2
NOTE OWNERS:
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▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attention: Global Trust Services
THE CALCULATION AGENT
THE BANK OF NEW YORK
▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attention: Global Trust Services
THE NOTE TRUSTEE
THE BANK OF NEW YORK
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/5803
Attention: Global Trust Services
THE SECURITY TRUSTEE
P.T. LIMITED
Level ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Manager, Securitisation
27. GOVERNING LAW AND JURISDICTION
--------------------------------------------------------------------------------
(a) Subject to paragraph (b), this deed and the Note Trust are
governed by the law of New South Wales, Australia. The parties
submit to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
(b) The administration of the Note Trust, including the exercise of
the Note Trustee's powers under clause 13 of this deed, is
governed by the law of the State of New York and in the event of
any inconsistency between the operation of the law of New South
Wales, Australia and the law of the State of New York in respect
of the application of those powers, the law of the State of New
York will prevail to the extent of the inconsistency.
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(c) Any provisions in this deed relating to the majority required
for resolutions of the Voting Mortgagees, including clause
7.1(b)(i), are governed by, and shall be construed in accordance
with, the laws of New South Wales, Australia.
28. COUNTERPARTS
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This deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
29. LIMITED RECOURSE
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29.1 GENERAL
Clause 30 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Manager under this deed.
29.2 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT TO INDEMNITY
(a) This deed applies to the Trustee only in its capacity as trustee
of the Trust and in no other capacity (except where the
Transaction Documents provide otherwise). Subject to paragraph
(c) below, a liability arising under or in connection with this
deed or the Trust can be enforced against the Trustee only to
the extent to which it can be satisfied out of the assets and
property of the Trust which are available to satisfy the right
of the Trustee to be exonerated or indemnified for the
liability. This limitation of the Trustee's liability applies
despite any other provision of this deed and extends to all
liabilities and obligations of the Trustee in any way connected
with any representation, warranty, conduct, omission, agreement
or transaction related to this deed or the Trust.
(b) Subject to paragraph (c) below, no person (including any
Relevant Party) may take action against the Trustee in any
capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust
Deed), or a liquidator, an administrator or any similar person
to the Trustee or prove in any liquidation, administration or
arrangements of or affecting the Trustee.
(c) The provisions of this clause 29.2 shall not apply to any
obligation or liability of the Trustee to the extent that it is
not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of the
Trustee's indemnification or exoneration out of the Assets of
the Trust as a result of the Trustee's fraud, negligence, or
Default.
(d) It is acknowledged that the Relevant Parties are responsible
under this deed or the other Transaction Documents for
performing a variety of obligations relating to the Trust. No
act or omission of the Trustee (including any related failure to
satisfy its obligations under this deed) will be considered
fraud, negligence or Default of the Trustee for the purpose of
paragraph (c) above to the extent to which the act or omission
was caused or contributed to by any failure by any Relevant
Party or any person who has been delegated or appointed by the
Trustee in accordance with the Transaction Documents to fulfil
its obligations relating to the Trust or by any other act or
omission of a Relevant Party or any such person.
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(e) In exercising their powers under the Transaction Documents, each
of the Trustee, the Security Trustee and the Noteholders must
ensure that no attorney, agent, delegate, receiver or receiver
and manager appointed by it in accordance with this deed or any
other Transaction Documents has authority to act on behalf of
the Trustee in a way which exposes the Trustee to any personal
liability and no act or omission of any such person will be
considered fraud, negligence, or Default of the Trustee for the
purpose of paragraph (c) above.
(f) In this clause, RELEVANT PARTY means each of the Manager, the
Servicer, the Custodian, the Calculation Agent, each Paying
Agent, the Note Trustee, each Note Registrar and the provider of
any Support Facility.
(g) Nothing in this clause limits the obligations expressly imposed
on the Trustee under the Transaction Documents.
29.3 UNRESTRICTED REMEDIES
Nothing in clause 29.2 or 29.4 limits any party in:
(a) obtaining an injunction or other order to restrain any breach of
this deed by any party;
(b) obtaining declaratory relief; or
(c) relation to its rights under the Security Trust Deed or this
deed.
29.4 RESTRICTED REMEDIES
Except as provided in clause 29.3, no party shall:
(a) (JUDGMENT) obtain a judgment for the payment of money or damages
by the Trustee;
(b) (STATUTORY DEMAND) issue any demand under section 459E(1) of the
Corporations Act 2001 (Cth) (or any analogous provision under
any other law) against the Trustee;
(c) (WINDING UP) apply for the winding up or dissolution of the
Trustee;
(d) (EXECUTION) levy or enforce any distress or other execution to,
on, or against any assets of the Trustee;
(e) (COURT APPOINTED RECEIVER) apply for the appointment by a court
of a receiver to any of the assets of the Trustee;
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against the Trustee; or
(g) (ADMINISTRATOR) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and each party waives its
rights to make those applications and take those proceedings.
30. SUCCESSOR TRUSTEE
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The Note Trustee shall do all things reasonably necessary to enable any
successor Trustee appointed under clause 20 of the Master Trust Deed to
become the Trustee under this deed.
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31. REIMBURSEMENT FOR THE COST OF INDEPENDENT ADVICE
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Where the Note Trustee is required to express an opinion or make a
determination or calculation under this deed or the other Transaction
Documents, the Note Trustee may appoint or engage such independent
advisors including any of the persons referred to in clause 13(a) as the
Note Trustee reasonably requires to assist in the giving of that opinion
or the making of that determination or calculation and any costs and
expenses properly incurred by and payable to those advisors will be
reimbursed to the Note Trustee by the Trustee or if another person is
expressly stated in the relevant provision in a Transaction Document,
that person.
32. NO LIABILITY
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Without limitation the Note Trustee shall not be liable (subject to the
mandatory requirements of the TIA) for:
(a) any decline in the value or loss realised upon any sale or other
dispositions made under the Security Trust Deed of any Mortgaged
Property or any other property charged to the Security Trustee
by any other person in respect of or relating to the obligations
of any person in respect of the Trustee or the Secured Moneys
(as defined in the Security Trust Deed) or relating in any way
to the Mortgaged Property;
(b) any decline in value directly or indirectly arising from the
Note Trustee acting or failing to act as a consequence of an
opinion reached by it; or
(c) any loss, expense or liability which may be suffered as a result
of any assets secured by the Security Trust Deed, the Mortgaged
Property or any deeds or documents of title thereto being
uninsured or inadequately insured or being held by or to the
order of the Servicer or any of its affiliates or by clearing
organisations or their operator or by any person on behalf of
the Security Trustee or the Note Trustee,
except for the fraud, negligence, or wilful default of the Note Trustee.
33. INFORMATION MEMORANDUM
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The Note Trustee has no responsibility for any statement or information
in or omission from any information memorandum, prospectus, offering
circular, advertisement, circular or other document issued by or on
behalf of the Trustee or Manager, including in connection with the issue
of Offshore Notes. Neither the Trustee nor the Manager may publish or
permit to be published any such document in connection with the offer of
Offshore Notes or an invitation for subscriptions for Offshore Notes
containing any statement which makes reference to the Note Trustee
without the prior written consent of the Note Trustee, which consent
must not be unreasonably withheld. In considering whether to give its
consent, the Note Trustee is not required to take into account the
interests of the Noteholders.
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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 CERTIFICATE
(a) The Note Trustee shall be entitled to call for and rely on a
certificate or any letter of confirmation or explanation
reasonably believed by it to be genuine, of the Trustee, the
Manager, any Paying Agent, the Calculation Agent or any
Designated Rating Agency in respect of every manner and
circumstance for which a certificate or any letter of
confirmation or explanation is expressly provided for under this
deed or in respect of the rating of any of the Offshore Notes or
the relevant Conditions and the Note Trustee is not bound in any
such case to call for further evidence.
(b) The Note Trustee shall not incur any liability as a result of
relying upon the authority, validity, due authorisation of, or
the accuracy of any information contained in any notice,
resolution, direction, consent, certificate, receipt, affidavit,
statement, valuation report or other document or communication
(including any of the above submitted or provided by the
Manager, by the Trustee or by an Offshore Noteholder) if the
Note Trustee is entitled, under clause 34.2 to assume such
authenticity, validity, due authorisation or accuracy.
(c) In preparing any notice, certificate, advice or proposal the
Note Trustee shall be entitled to assume, unless it is actually
aware to the contrary, that each person under any Authorised
Investment, Support Facility, Receivable, Receivable Security,
Related Securities, other Transaction Document or any other
deed, agreement or arrangement incidental to any of the above or
to the Trust, will perform their obligations under those
documents in full by the due date and otherwise in accordance
with their terms.
34.2 NOTE TRUSTEE'S RELIANCE ON MANAGER, SECURITY TRUSTEE, TRUSTEE OR
SERVICER
(a) (AUTHORISED SIGNATORIES ARE SUFFICIENT EVIDENCE) Whenever any
certificate, notice, proposal, direction, instruction, document
or other communication is to be given to the Note Trustee, the
Note Trustee may assume:
(i) the authenticity and validity of any signature in any
such document and that such document has been duly
authorised; and
(ii) the accuracy of any information contained in any such
documents,
in either case unless the officers of the Note Trustee
responsible for the administration of the Note Trust are
actually aware to the contrary.
(b) (NOTE TRUSTEE NOT LIABLE FOR LOSS) The Note Trustee shall not be
responsible for any loss arising from any forgery or lack of
authenticity or any act, neglect, mistake or discrepancy of the
Manager, the Security Trustee, Trustee or the Servicer or any
officer, employee, agent or delegate of the Manager, the
Security Trustee, the Trustee or the Servicer in preparing any
such document or in compiling, verifying or calculating any
matter or information contained in any such document, if the
officers of the Note Trustee responsible
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for the administration of the Note Trust are not actually aware
of such forgery, lack of authenticity or validity, act, neglect,
mistake or discrepancy.
34.3 COMPLIANCE WITH LAWS
The Note Trustee shall not incur any liability to anyone in respect of
any failure to perform or to do any act or thing which by reason of any
provision of any applicable present or future law of any place or any
applicable ordinance, rule, regulation or by law or of any applicable
decree, order or judgment of any competent court or other tribunal, the
Note Trustee shall be prohibited from doing or performing.
34.4 RELIANCE ON EXPERTS
The Note Trustee may rely on and act on the opinion or statement or
certificate or advice of or information obtained from the Security
Trustee, the Servicer, the Trustee, barristers or solicitors (whether
instructed by the Note Trustee or not), bankers, accountants, brokers,
valuers and other persons believed by it in good faith to be expert or
properly informed in relation to the matters on which they are consulted
and the Note Trustee shall not be liable for anything done or suffered
by it in good faith in reliance on such opinion, statement, certificate,
advice or information except to the extent of losses, costs, claims or
damages caused by the Note Trustee's fraud, negligence or wilful
default.
34.5 OVERSIGHTS OF OTHERS
Having regard to the limitations on the Note Trustee's duties, powers,
authorities and discretions under this deed, the Note Trustee shall not
be responsible for any act, omission, misconduct, mistake, oversight,
error of judgement, forgetfulness or want of prudence on the part of any
person or agent appointed by the Note Trustee or on whom the Note
Trustee is entitled to rely under this deed (other than a Related Body
Corporate), attorney, banker, receiver, barrister, solicitor, agent or
other person acting as agent or adviser to the Note Trustee except to
the extent of losses, costs, claims or damages caused by the Note
Trustee's fraud, negligence or wilful default, provided that nothing in
this deed or any other Transaction Document imposes any obligations on
the Note Trustee to review or supervise the performance by any other
party of its obligations.
34.6 POWERS, AUTHORITIES AND DISCRETIONS
Except as otherwise provided in this deed and in the absence of fraud,
negligence, or wilful default, the Note Trustee shall not be in any way
responsible for any loss (whether consequential or otherwise), costs,
damages or inconvenience that may result from the exercise or
non-exercise of any powers, authorities and discretions vested in it.
34.7 IMPOSSIBILITY OR IMPRACTICABILITY
If for any reason whatsoever it becomes impossible or impracticable for
the Note Trustee to carry out any or all of the provisions of this deed
or any other Transaction Document, the Note Trustee shall not be under
any liability and, except to the extent of its own fraud, negligence or
wilful default, nor shall it incur any liability by reason of any error
of law or any matter or thing done or suffered or omitted to be done in
good faith by it or its officers, employees, agents or delegates.
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34.8 LEGAL AND OTHER PROCEEDINGS
(a) (INDEMNITY FOR LEGAL COSTS) The Note Trustee or the Offshore
Noteholders acting under clause 6.5 (as the case may be) (each
an INDEMNIFIED PARTY) shall be indemnified by the Trustee
(subject to clause 29) for all legal costs and disbursements on
a full indemnity basis and all other costs, disbursements,
outgoings and expenses incurred by the Indemnified Party in
connection with:
(i) the enforcement or contemplated enforcement of, or
preservation of rights under;
(ii) without limiting the generality of paragraph (i) above,
the initiation, defence, carriage and settlement of any
action, suit, proceeding or dispute in respect of; and
(iii) obtaining legal advice or opinions concerning or
relating to the interpretation or construction of,
this deed or any other Transaction Document or otherwise under
or in respect of the Note Trust Deed provided that in relation
to the matters referred to in paragraph (i) or (ii) only, the
Indemnified Party shall only be so indemnified by the Trustee
if:
(iv) the basis upon which any of those costs, disbursements,
outgoings and expenses will be incurred has been
approved in advance by the written consent of the
holders of at least 75% of the aggregate Invested Amount
of the Offshore Notes; or
(v) the Indemnified Party reasonably considers the incurring
of those costs, disbursements, outgoings and expenses to
be necessary.
(b) (DEFENCE OF PROCEEDINGS ALLEGING NEGLIGENCE ETC) The Indemnified
Party shall be entitled to claim in respect of the above
indemnity from the Trustee for its expenses and liabilities
incurred in defending any action, suit, proceeding or dispute in
which fraud, negligence or wilful default is alleged or claimed
against it, but on the same being proved, accepted or admitted
by it, it shall immediately repay to the Trust the amount
previously paid by the Trustee to it in respect of that
indemnity.
34.9 NO LIABILITY EXCEPT FOR NEGLIGENCE ETC.
Except to the extent caused by the fraud, negligence or wilful default
on the Note Trustee's part or on the part of any of its officers or
employees, or any agents or delegate, sub-agent, sub-delegate employed
by the Note Trustee in accordance with this deed (and where this deed
provides that the Note Trustee is liable for the acts or omissions of
any such person) to carry out any transactions contemplated by this
deed, the Note Trustee shall not be liable for any losses, costs,
liabilities or claims arising from the failure to pay moneys on the due
date for payment to any Offshore Noteholder or any other person or for
any loss howsoever caused in respect of any of the Trust or to any
Offshore Noteholder or other person.
The Note Trustee is not obliged to take any action under this deed
unless it is indemnified to its satisfaction against all actions,
proceedings, claims and demands to which it may render itself liable and
all costs, charges, damages and expenses it may incur in doing so, to
the extent permitted by law.
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34.10 FURTHER LIMITATIONS ON NOTE TRUSTEE'S LIABILITY
Subject to clause 34.2, the Note Trustee shall not be liable:
(a) for any losses, costs, liabilities or expenses arising out of
the exercise or non-exercise of its discretion or for any other
act or omission on its part under this deed, any other
Transaction Document or any other document except where the
exercise or non-exercise of any discretion, or any act or
omission, by the Note Trustee, or any of its officers or
employees, or any agent, delegate, sub-agent, sub-delegate
employed by the Note Trustee in accordance with this deed (and
where this deed provides that the Note Trustee is liable for the
acts or omissions of any such person) to carry out any
transactions contemplated by this deed, constitutes fraud,
negligence or wilful default;
(b) for any losses, costs, damages or expenses caused by its acting
(in circumstances where this deed requires it to act or
contemplates that it may so act) on any instruction or direction
given to it by:
(i) any Offshore Noteholder under this deed, any other
Transaction Document or any other document;
(ii) by any person under a Support Facility, Receivable or
Receivable Security,
except to the extent that it is caused by the fraud, negligence
or wilful default of the Note Trustee, or any of its officers or
employees, or an agent or delegate employed by the Note Trustee
in accordance with this deed to carry out any transactions
contemplated by this deed;
(c) for any Manager's Default, Servicer Transfer Event or Title
Perfection Event;
(d) without limiting the Note Trustee's obligations or powers under
the Transaction Documents, for any act, omission or default of
the Servicer in relation to its servicing duties or its
obligations under the Servicing Agreement;
(e) without limiting the Note Trustee's obligations or powers under
the Transaction Documents, for any act, omission or default of
the Custodian in relation to its custodial duties or its
obligations under the Custodian Agreement;
(f) without limiting the Note Trustee's obligations or powers under
the Transaction Documents, for any act, omission or default of
the Security Trustee in relation to its obligations under the
Transaction Documents;
(g) without limiting the Note Trustee's obligations or powers under
the Transaction Documents, for any act, omission or default of a
Paying Agent in relation to its obligations under the
Transaction Documents;
(h) without limiting the Note Trustee's obligations or powers under
the Transaction Documents, for any act, omission or default of
the Calculation Agent in relation to its obligations under the
Transaction Documents;
(i) for the failure of a person to carry out an agreement with the
Note Trustee in connection with the Trust; or
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(j) for any losses, costs, liabilities or expenses caused by the
Note Trustee's failure to check any calculation, information,
document, form or list supplied or purported to be supplied to
it by the Manager, the Trustee, Security Trustee or the
Servicer,
except, in the case of paragraphs (c) to (j) (inclusive), to the extent
that it is caused by the fraud, negligence or wilful default of the Note
Trustee.
Nothing in this clause 34.10 alone (but without limiting the operation
of any other clause of this deed) shall imply a duty on the Note Trustee
to supervise the Manager or the Security Trustee in the performance of
the Manager's or the Security Trustee's functions and duties, and the
exercise by the Manager or the Security Trustee of its discretions.
34.11 CONFLICTS
(a) (NO CONFLICT) Nothing in this deed shall prevent the Note
Trustee (subject to clause 13.1 and section 311 of the TIA), the
Trustee, the Manager, the Security Trustee or any Related
Corporation or Associate of any of them or their directors or
other officers (each a RELEVANT PERSON) from:
(i) subscribing for purchase, holding, dealing in or
disposing of any Offshore Notes;
(ii) entering into any financial, banking, development,
insurance, agency, broking or other transaction with, or
providing any advice or services for the Trust and
receiving compensation for such services; or
(iii) being interested in any such contract or transaction or
otherwise at any time contracting or acting in any
capacity as representative or agent.
provided that notwithstanding anything else in this deed to the
contrary, the Note Trustee agrees that it shall not offer or
provide credit enhancement to the Trust.
(b) (NOT LIABLE TO ACCOUNT) A Relevant Person shall not be in any
way liable to account to any Offshore Noteholder or any other
person for any profits or benefits (including any profit, bank
charges, commission, exchange, brokerage and fees) made or
derived under or in connection with any transaction or contract
specified in paragraph (a) above.
(c) (FIDUCIARY RELATIONSHIP) A Relevant Person shall not by reason
of any fiduciary relationship be in any way precluded from
making any contracts or entering into any transactions with any
such person in the ordinary course of its business or from
undertaking any banking, financial, development, agency or other
services including any contract or transaction in relation to
the placing of or dealing with any investment and the acceptance
of any office or profit or any contract of loan or deposits or
other contract or transaction which any person or company not
being a party to this deed could or might have lawfully entered
into if not a party to this deed. A Relevant Person shall not be
accountable to any Offshore Noteholder or any other person for
any profits arising from any such contracts, transactions or
offices.
34.12 INFORMATION
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the Note
Trustee under this deed or any other Transaction Document, the
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Note Trustee shall not have any duty or responsibility to provide any
person (including any Offshore Noteholder) with any credit or other
information concerning the affairs, financial condition or business of
the Trust.
34.13 INVESTIGATION BY NOTE TRUSTEE
Each Noteholder acknowledges that:
(a) the Note Trustee has no duty, and is under no obligation, to
investigate whether a Manager's Default, Servicer Transfer Event
or Title Perfection Event has occurred in relation to the Trust
other than where it has actual notice; and
(b) in making any determination, the Note Trustee may seek and rely
on advice given to it by its advisors in a manner contemplated
by this deed.
35. NOTEHOLDERS' LISTS AND REPORTS
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35.1 PROVISION OF INFORMATION
The Trustee (or the Manager on its behalf) will furnish or cause to be
furnished to the Note Trustee:
(a) every six months (with the first six month period commencing on
the Closing Date) (each such date being a NOTICE DATE), a list,
in such form as the Note Trustee may reasonably require, of the
names and addresses of the Offshore Noteholders as of the Record
Date immediately preceding that Notice Date; and
(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 each Note Registrar; or
(d) the Offshore Notes are Book-Entry Notes,
no such list shall be required to be furnished.
35.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTEHOLDERS
(a) The Note Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Offshore
Noteholders contained in the most recent list (if any) furnished
to the Note Trustee as provided in clause 35.1 and if it acts as
a Note Registrar, the names and addresses of Offshore
Noteholders received by the Note Trustee in its capacity as that
Note Registrar. The Trustee may destroy any list furnished to it
as provided in such clause 35.1 upon receipt of a new list so
furnished.
(b) Class A-1 Noteholders may communicate pursuant to section 312(b)
of the TIA with other Class A-1 Noteholders with respect to
their rights under this deed or under the Class A-1 Notes.
(c) The Trustee, Note Trustee and Note Registrar shall have the
protection of section 312(c) of the TIA.
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35.3 REPORTS BY NOTE TRUSTEE
If required by section 313(a) of the TIA, within 60 days after each 30
September, beginning with 30 September 2006, the Note Trustee shall mail
to each Class A-1 Noteholder, the Trustee and the Manager as required by
section 313(c) of the TIA a brief report dated as of such date that
complies with section 313(a) of the TIA. The Note Trustee also shall
comply with section 313(b) of the TIA. A copy of each report at the time
of its mailing to Class A-1 Noteholders shall be filed by the Note
Trustee with the Commission and each stock exchange, if any, on or by
which the Class A-1 Notes are then listed. The Manager on behalf of the
Trustee shall notify the Note Trustee in writing if and when the Class
A-1 Notes are listed on or by any stock exchange.
35.4 NOTICES TO OFFSHORE NOTEHOLDERS; WAIVER
Where this deed provides for notice to Offshore Noteholders of any
event, such notice shall be sufficiently given unless otherwise herein
expressly provided, if in writing and mailed, first-class, postage
prepaid to each Offshore Noteholder affected by such event, at his or
her address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In any case where notice to Offshore Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so
mailed to any particular Offshore Noteholder shall affect the
sufficiency of such notice with respect to other Offshore Noteholders,
and any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given.
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 Offshore Noteholders shall be filed
with the Note Trustee but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail services as a
result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Offshore Noteholders when
such notice is required to be given pursuant to any provision of this
deed, then any manner of giving such notice as the Manager on behalf of
the Trustee shall direct the Note Trustee shall be deemed to be a
sufficient giving of such notice.
35.5 REPORTS BY TRUSTEE
The Manager on behalf of the Trustee shall:
(a) file with the Note Trustee, within 15 days after the Trustee is
required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Trustee may be required to file with the
Commission pursuant to section 13 or 15(d) of the Exchange Act;
(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
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(c) supply to the Note Trustee (and the Note Trustee shall transmit
by mail to all Class A-1 Noteholders described in section 313(c)
of the TIA) such summaries of any information, documents and
reports required to be filed by the Trustee pursuant to clauses
(a) and (b) of this clause 35.5 as may be required by rules and
regulations prescribed from time to time by the Commission.
36. TRUST INDENTURE ACT - MISCELLANEOUS
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36.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC
(a) Upon any application or request by the Trustee or the Manager to
the Note Trustee to take any action under any provision of this
deed, the Trustee (or the Manager on its behalf) shall furnish
to the Note Trustee:
(i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this deed relating to
the proposed action have been complied with;
(ii) an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have
been complied with; and
(iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the
applicable requirements of section 314(c)(3) of the TIA,
except that, in the case of any such application or
request as to which the furnishing of such documents is
specifically required by any provision of this deed, no
additional certificate or opinion need be furnished.
(b) (i) Prior to the deposit of any property or securities with
the Trustee that is to be made the basis for the release
of any property or securities subject to the Security
Interest created by the Security Trust Deed, the Trustee
(or the Manager on its behalf) shall, in addition to any
obligation imposed in clause 36.1(a) or elsewhere in
this deed, furnish to the Note Trustee an Officer's
Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value
(within 90 days of such deposit) of the property or
securities to be so deposited.
(ii) Whenever any property or securities are to be released
from the Security Interest created by the Security Trust
Deed, the Trustee shall also furnish to the Note Trustee
an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to
the fair value (within 90 days of such release) of the
property or securities proposed to be released and
stating that in the opinion of such person the proposed
release will not impair the security under the Security
Trust Deed in contravention of the provisions of the
Security Trust Deed or this deed.
(iii) Whenever the Trustee is required to furnish to the Note
Trustee an Officer's Certificate certifying or stating
the opinion of any signer thereof as to the matters
described in paragraphs (i) and (ii), the Trustee (or
the Manager on its behalf) shall also furnish to the
Note Trustee an Independent Certificate as to the same
matters if the fair value of the property or securities
and of all other property or securities deposited or
released from the Security Interest created by the
Security Trust Deed
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since the commencement of the then current calendar
year, as set forth in the certificate required by clause
(ii) and this clause (iii), equals 10% or more of the
Total Invested Amount of the Notes, but such certificate
need not be furnished in the case of any release of
property or securities if the fair value thereof as set
forth in the related Officer's Certificate is less than
US$25,000 or less than one percent of the then Total
Invested Amount of the Notes.
Notwithstanding any other provision of this clause, the
Trustee may:
(A) collect, liquidate, sell or otherwise dispose of
Receivables or other Assets of the Trust as and
to the extent permitted or required by the
Transaction Documents; and
(B) make or permit to be made cash payments out of
the Collection Account or the US$ Account 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 Offshore Noteholder by such Offshore Noteholder's
acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the
enforcement of any right or remedy under this deed, or in any
suit against the Note Trustee for any action taken, suffered or
omitted by it as the Note Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against
any party litigant in such suit, having due regard to the merits
and good faith of the claims or defences made by such party
litigant.
(b) The provisions of this clause shall not apply to:
(i) any suit instituted by the Note Trustee;
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(ii) any suit instituted by any Offshore Noteholder, or group
of Offshore Noteholders in each case holding in the
aggregate more than 10% of the aggregate Invested Amount
of the Offshore Notes; or
(iii) any suit instituted by any Offshore Noteholder for the
enforcement of the payment of principal or interest on
any Offshore Note on or after the respective due dates
expressed in such Offshore Note and in this deed (or, in
the case of final redemption of a Offshore Note, on or
after the Final Maturity Date).
36.3 EXCLUSION OF SECTION 316
(a) Section 316(a)(1) of the TIA is expressly excluded by this deed.
(b) For the purposes of section 316(a)(2) of the TIA in determining
whether any Offshore Noteholders have concurred in any relevant
direction or consent, Notes owned by the Trustee or by any
Associate of the Trustee, shall be disregarded, except that for
the purposes of determining whether the Note Trustee shall be
protected in relying on any such direction or consent, only
Offshore Notes which the Note Trustee knows are so owned shall
be so disregarded.
36.4 UNCONDITIONAL RIGHTS OF OFFSHORE NOTEHOLDERS TO RECEIVE PRINCIPAL AND
INTEREST
Notwithstanding any other provisions in this deed, but subject to clause
29 and to the terms of the Security Trust Deed, any Offshore Noteholder
shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Offshore Note
on or after the respective due dates thereof expressed in such Offshore
Note or in this deed (or, in the case of final redemption of an Offshore
Note, on or after the Final Maturity Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired
without the consent of such Offshore Noteholder, except to the extent
that the institution or prosecution thereof or the entry of judgment
therein would, under applicable law, result in the surrender,
impairment, waiver, or loss of the Security Interest created by the
Security Trust Deed upon any property subject to such Security Interest.
36.5 CONFLICT WITH TRUST INDENTURE ACT
If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required to be included in this deed by any of
the provisions of the TIA, such TIA required provision shall prevail.
The provisions of section 310 to 317 (inclusive) of the TIA that impose
duties on any person (including the provisions automatically deemed
included herein unless expressly excluded by this deed) are a part of
and govern this deed, whether or not contained herein.
37. CONSENT OF OFFSHORE NOTEHOLDERS
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37.1 GENERAL
Except as expressly provided in elsewhere in this deed or in clause 37.2
below, any action that may be taken by the Offshore Noteholders under
this deed may be taken by the holders of not less than a majority of the
aggregate Invested Amount of the Offshore Notes.
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37.2 SPECIAL WRITTEN APPROVALS
(a) The following matters are only capable of being effected by the
approval in writing of all holders of the Offshore Notes,
namely:
(i) modification of the date fixed for final maturity of the
Offshore Notes;
(ii) reduction or cancellation of the principal payable on
the Offshore Notes or any alteration of the date or
priority of redemption of the Offshore Notes;
(iii) alteration of the amount of interest payable on any
class of the Offshore Notes or modification of the
method of calculating the amount of interest payable on
the Offshore Notes or modification of the date of
payment of or interest payable on the Offshore Notes;
(iv) alteration of the currency in which payments under the
Offshore Notes are to be made;
(v) altering the required percentage of the aggregate
Invested Amount of the Offshore Notes required to
consent or take any action;
(vi) an election to receive the Stated Amount of the Offshore
Notes instead of the Invested Amount in the event of a
call under clause 7.1 of the Supplementary Terms Notice;
and
(vii) alteration of this sub-paragraph.
(b) The Offshore Noteholders shall in addition to the powers given
under this deed, have the following powers if approval is given
by an Extraordinary Resolution of the Offshore Noteholders (or
such higher percentage as may be required by the TIA)):
(i) power to sanction any compromise or arrangement proposed
to be made between the Trustee and the Offshore
Noteholders;
(ii) power to sanction any abrogation, modification,
compromise or arrangement in respect of the rights of
the Offshore Noteholders against the Trustee or against
any of its property or against any other person whether
such rights shall arise under these presents, any of the
Offshore Notes or otherwise;
(iii) power to assent to any modification of the provisions
contained in these presents, the Offshore Notes
(including the Conditions) or the provisions of any of
the Relevant Documents which shall be proposed by the
Trustee or the Note Trustee;
(iv) power to give any authority or sanction which under the
provisions of these presents or the Offshore Notes
(including the relevant Conditions) is required to be
given by, in writing by the holders of at least 75% of
the aggregate Invested Amount of the Offshore Notes;
(v) power to approve a person to be appointed a trustee and
power to remove any trustee or trustees for the time
being under this deed;
(vi) power to discharge or exonerate the Note Trustee from
all liability in respect of any act or omission for
which the Note Trustee may have become responsible under
this deed or under the Offshore Notes;
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(vii) power to authorise the Note Trustee to concur in and
execute and do all such deeds, instruments, acts and
things as may be necessary to carry out and give effect
to the approval in writing by holders of at least 75% of
the aggregate Invested Amount of the Offshore Notes;
(viii) power to sanction any scheme or proposal for the
exchange or sale of the Offshore Notes, as the case may
be, for, or the conversion of the Offshore Notes, into,
or the cancellation of the Offshore Notes, in
consideration of shares, stock, notes, bonds'
debentures, debenture stock and/or other obligations
and/or securities of the Trustee or of any other company
formed or to be formed, or for or into or in
consideration of cash, or partly for or into or in
consideration of such shares, stock, notes, bonds,
debenture stock and/or other obligations and/or
securities as aforesaid and partly for or into or in
consideration of cash.
37.3 REQUIREMENT FOR WRITING
Except as expressly provided elsewhere in this deed, all notices and
consents from Offshore Noteholders and any Class A Note Owners (as the
case may be) shall be delivered in writing. Any solicitation of such
notices or consent shall be in writing and be delivered by the Trustee,
Manager or Note Trustee, as applicable, seeking such notice or consent
from the Offshore Noteholders or Class A Note Owners (as the case may
be) to the Principal Paying Agent, who shall deliver the foregoing to
the appropriate Offshore Noteholders or Class A Note Owners. With
respect to any solicitation of approval of Offshore Noteholders, the
record date for determining Offshore Noteholders with respect to such
solicitation shall be the date upon which the Principal Paying Agent
distributes such notices or solicitation to the Offshore Noteholders.
37.4 NO CONFLICT BETWEEN ACTIONS OF OFFSHORE NOTEHOLDERS
Notwithstanding any of the foregoing, the Class A-1 Noteholders and the
Class A-2 Noteholders may take action as a Class on any matters that
relate solely to that Class of Notes.
38. DOCUMENTS
--------------------------------------------------------------------------------
The Manager and the Trustee shall provide to the Note Trustee sufficient
copies of all documents required by the relevant Conditions, this deed,
the Prospectus for the Class A-1 Notes or the Offering Circular for the
Class A-2 Notes to be made available by the Note Trustee to Offshore
Noteholders for issue or inspection but only to the extent that such
documents are in the Manager's or the Trustee's possession or are
otherwise available to the Manager or the Trustee.
39. KNOW YOUR CUSTOMER
--------------------------------------------------------------------------------
The Trustee and the Manager agree to, and the Offshore Noteholders may
be requested to, provide any information and documents reasonably
required by the Note Trustee for it to comply with any "know your
customer" or other identification checks or procedures under any law or
regulation to the extent that such information is in the possession of,
or otherwise available to the Trustee, Manager or the Offshore
Noteholders (as the case may be). The Note Trustee may, to the extent
required by law,
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decline to perform its affected obligations under the Transaction
Documents to which it is a party to the extent that such information and
documents are not provided.
40. ANTI-MONEY LAUNDERING
--------------------------------------------------------------------------------
(a) Subject to paragraph (b), each party (the PROVIDER) must, on the
request of any other party (the RECIPIENT), provide the
Recipient with any information or document in the Provider's
possession or otherwise readily available to the Provider, where
such information or document is required by the Recipient to
comply with any applicable anti-money laundering or
counter-terrorism financing laws including any such laws
requiring the Recipient to carry out "know your customer" or
other identification checks or procedures (RELEVANT LAWS).
(b) The Provider's obligations under paragraph (a) are subject to
any confidentiality, privacy or other obligations imposed by law
on the Provider in relation to the requested information or
document, except to the extent overridden by the Relevant Laws.
(c) Each party must comply with any Relevant Laws applicable to it,
to the extent required to comply with its obligations under the
Transaction Documents. Any party may decline to perform any
obligation under the Transaction Documents to the extent it
forms the view, in its reasonable opinion, that notwithstanding
that it has taken all action to comply with any applicable
Relevant Laws, it is required by Relevant Laws to decline to
perform any such obligation.
(d) To the maximum extent permitted by law, each party and each
Mortgagee (as defined in the Security Trust Deed) releases, to
the extent that it is able, each other party from any
confidentiality, privacy or general law obligations that such
other party would otherwise owe and which would otherwise
prevent such other party from providing any information or
documents requested in accordance with this clause or any
similar clause in any other Transaction Document, to the extent
necessary to allow such other party to provide such information
or documents and solely for the purpose of providing such
information or documents.
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EXECUTED as a deed.
Each attorney executing this deed states that he or she has no notice of,
alteration to, or revocation or suspension of, his or her power of attorney.
TRUSTEE
SIGNED SEALED AND DELIVERED for PERPETUAL
TRUSTEES CONSOLIDATED LIMITED by its attorney
in the presence of:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------- -------------------------------
Witness Signature Attorney Signature
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------- -------------------------------
Print Name ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Print Name ▇▇▇▇▇▇ ▇▇▇▇▇
MANAGER
SIGNED SEALED AND DELIVERED for CRUSADE
MANAGEMENT LIMITED by its attorney in the
presence of:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------- -------------------------------
Witness Signature Attorney Signature
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------- -------------------------------
Print Name Print Name ▇▇▇▇▇▇ ▇▇▇▇▇
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NOTE TRUSTEE
EXECUTED for and on behalf of THE BANK OF NEW YORK by:
/s/ ▇▇▇▇ ▇▇▇
-----------------------------------------
Authorised Signatory
ASSISTANT VICE PRESIDENT
-----------------------------------------
Print Name ▇▇▇▇ ▇▇▇
PRINCIPAL PAYING AGENT
EXECUTED for and on behalf of THE BANK OF NEW YORK by:
/s/ ▇▇▇▇ ▇▇▇
-----------------------------------------
Authorised Signatory
ASSISTANT VICE PRESIDENT
-----------------------------------------
Print Name ▇▇▇▇ ▇▇▇
CALCULATION AGENT
EXECUTED for and on behalf of THE BANK OF NEW YORK by:
/s/ ▇▇▇▇ ▇▇▇
-----------------------------------------
Authorised Signatory
ASSISTANT VICE PRESIDENT
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-----------------------------------------
Print Name ▇▇▇▇ ▇▇▇
SECURITY TRUSTEE
SIGNED SEALED AND DELIVERED for P.T. LIMITED
by its attorney in the presence of:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------- -------------------------------
Witness Signature Attorney Signature
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------- -------------------------------
Print Name Print Name ▇▇▇▇▇▇ ▇▇▇▇▇
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SCHEDULE 1
FORM OF CLASS A-1 BOOK-ENTRY NOTE
--------------------------------------------------------------------------------
REGISTERED CUSIP No. 22882W AA 4
No. R- ISIN No. US22882WAA45
Common Code 026885426
Unless this Note is presented by an authorised representative of The Depository
Trust Company, a New York corporation (DTC), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorised
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorised representative of DTC), any transfer,
pledge or other use hereof for value or otherwise by or to any person is
wrongful inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THIS BOOK-ENTRY NOTE IS A GLOBAL BOND FOR THE PURPOSES OF SECTION 128F(10) OF
THE INCOME TAX ASSESSMENT ACT 1936 OF THE COMMONWEALTH OF AUSTRALIA.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
(ABN 81 004 029 841)
(a limited liability company incorporated in Australia)
in its capacity as trustee of the Crusade Global Trust No. 2 of 2006
BOOK-ENTRY NOTE
representing
US$1,200,000,000
Class A-1 Mortgage Backed Floating Rate Notes Due on the Final Maturity Date
falling in November 2037.
This Note is a Class A-1 Book-Entry Note without principal or interest in
respect of a duly authorised issue of Notes of Perpetual Trustees Consolidated
Limited in its capacity as trustee of the Crusade Global Trust No. 2 of 2006
(the "TRUST") (the "ISSUER"), designated as specified in the title above (the
"NOTES"), in an initial aggregate principal amount of
US$1,200,000,000
and (a) constituted by a Master Trust Deed (the "MASTER TRUST DEED") dated 14
March 1998 between the Issuer, ▇▇.▇▇▇▇▇▇ Bank Limited and Crusade Management
Limited (the "MANAGER"), by a Supplementary Terms Notice (the "SUPPLEMENTARY
TERMS NOTICE") dated on or about 19 September 2006 between (among others) the
Issuer, the Security Trustee (as defined herein), ▇▇.▇▇▇▇▇▇ Custodial Pty
Limited, The Bank of New York (the note trustee for the time being referred to
as the "NOTE TRUSTEE") as trustee for the holders for the time being of the
Class A-1 Notes (the "CLASS A-1 NOTEHOLDERS") and the Manager, and by the
Conditions; (b) issued subject to a Note Trust Deed dated 19 September 2006 (the
"NOTE TRUST DEED")
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between (among others) the Issuer, the Manager and the Note Trustee; and (c)
secured by a Security Trust Deed (the "SECURITY TRUST DEED") dated 14 September
2006 between the Issuer, the Manager, P.T. Limited (ABN 67 004 454 666) (the
"SECURITY TRUSTEE") which expression shall include its successor for the time
being as security trustee under the Security Trust Deed) and the Note Trustee.
References to the Conditions (or to any particular numbered Condition) shall be
to the Terms and Conditions of the Class A-1 Notes set out in schedule 2 to the
Note Trust Deed but with the deletion of those provisions which are applicable
only to Class A-1 Notes in definitive form. Terms and expressions defined in the
Note Trust Deed and the Conditions shall, save as expressly stated otherwise,
bear the same meanings when used herein.
If the Issuer is obliged to issue Definitive Class A-1 Notes under Clause 3.3 of
the Note Trust Deed this Class A-1 Book-Entry Note will be exchangeable in whole
at the offices of the Principal Paying Agent at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (or such other place
outside Australia and any of its respective territories and possessions and
other areas subject to jurisdictions as the Note Trustee may agree) for
Definitive Class A-1 Notes and the Issuer shall execute and procure that the
Principal Paying Agent authenticates and delivers in full exchange for this
Class A-1 Book-Entry Note, Definitive Class A-1 Notes in aggregate principal
amount equal to the principal amount of all Class A-1 Notes represented by this
Class A-1 Book-Entry Note. The Issuer is not obliged to issue Definitive Class
A-1 Notes until 30 days after the occurrence of an event set out in clause 3.3
of the Note Trust Deed.
The Issuer, in its capacity as trustee of the Trust, subject to this US$
Book-Entry Note and subject to and in accordance with the Conditions and the
Note Trust Deed promises to pay to Cede & Co., or registered assigns of this
Class A-1 Book-Entry Note the principal sum of US$1,200,000,000 (one billion and
two hundred million dollars) or such lesser amount as may from time to time be
represented by this Class A-1 Book-Entry Note (or such part of that amount as
may become repayable under the Conditions, the Supplementary Terms Notice and
the Note Trust Deed) on such date(s) that principal sum (or any part of it)
becomes repayable in accordance with the Conditions, the Supplementary Terms
Notice and the Note Trust Deed and to pay interest in arrears on each Quarterly
Payment Date (as defined in Condition 4) on the Invested Amount (as defined in
Condition 5(a)) of this Class A-1 Book-Entry Note at rates determined in
accordance with Condition 4 and all subject to and in accordance with the
certification requirements described in this Class A-1 Book-Entry Note, the
Conditions, the Supplementary Terms Notice and the Note Trust Deed, which shall
be binding on the registered holder of this Class A-1 Book-Entry Note (as if
references in the Conditions to the Notes and the Noteholders were references to
this Class A-1 Book-Entry Note and the registered holder of this Class A-1
Book-Entry Note respectively and as if the same had been set out in this Class
A-1 Book-Entry Note in full with all necessary changes, except as otherwise
provided in this Class A-1 Book-Entry Note).
Payments of interest on this Class A-1 Note due and payable on each Quarterly
Payment Date, together with the instalment of principal, if any, shall be
payable to the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.). No payment of interest or principal may be made by the Issuer or
any Paying Agent in the Commonwealth of Australia or its possessions or into a
bank account or to an address in the Commonwealth of Australia. Each of the
persons appearing from time to time in the records of DTC, as the holder of a
beneficial interest in a Class A-1 Note will be entitled to receive any payment
so made in respect of that Class A-1 Note in accordance with the respective
rules and procedures of DTC. Such persons will have no claim directly against
the Issuer in respect of payments due on the Class A-1 Notes which must be made
by the registered holder of this Class A-1 Book-Entry Note, for so long as this
Class A-1 Book-Entry Note is outstanding.
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On any payment of principal and/or interest on the Class A-1 Notes as set out
above details of that payment shall be endorsed by or on behalf of the Issuer in
the Note Register and, in the case of payments of principal, the Invested Amount
of the Class A-1 Notes shall be reduced for all purposes by the amount so paid
and endorsed in the Note Register. Any such record shall be prima facie evidence
that the payment in question has been made.
If the Issuer is obliged to issue Definitive Class A-1 Notes under clause 3.3 of
the Note Trust Deed, the Class A-1 Book-Entry Notes will be surrendered to the
Trustee by the Clearing Agency and the Clearing Agency will deliver the relevant
registration instructions to the Trustee. Definitive Class A-1 Notes shall be
executed by the Trustee and authenticated by the Principal Paying Agent and
delivered as per the instructions of the Clearing Agency.
The Definitive Class A-1 Notes to be issued on that exchange will be in
registered form each in the denomination of US$100,000 and multiples of US$1 in
excess thereof. If the Issuer fails to meet its obligations to issue Definitive
Class A-1 Notes, this shall be without prejudice to the Issuer's obligations
with respect to the Notes under the Note Trust Deed, the Master Trust Deed, the
Supplementary Terms Notice and this Class A-1 Book-Entry Note.
On an exchange of this Class A-1 Book-Entry Note, this Class A-1 Book-Entry Note
shall be surrendered to the Principal Paying Agent.
This Class A-1 Book-Entry Note shall not become valid for any purpose unless and
until the Certificate of Authentication attached has been signed by an
Authorised Signatory of the Principal Paying Agent (as defined in the
Supplementary Terms Notice).
This Class A-1 Book-Entry Note is governed by, and shall be construed in
accordance with, the laws of New South Wales, Australia.
IN WITNESS the Issuer has caused this Class A-1 Book-Entry Note to be signed
manually or in facsimile by a person duly authorised on its behalf.
Perpetual Trustees Consolidated Limited in its capacity as trustee of the
Crusade Global Trust No. 2 of 2006
By:
-----------------------------------------
Authorised Signatory
IMPORTANT NOTICE:
(a) The Class A-1 Notes do not represent deposits or other liabilities of
▇▇.▇▇▇▇▇▇ Bank Limited, ABN 92 055 513 070 ("▇▇.▇▇▇▇▇▇") or associates of
▇▇.▇▇▇▇▇▇.
(b) The holding of Class A-1 Notes is subject to investment risk, including
possible delays in repayment and loss of income and principal invested.
(c) None of ▇▇.▇▇▇▇▇▇, any associate of ▇▇.▇▇▇▇▇▇, Perpetual Trustees
Consolidated Limited, the Security Trustee, the Note Trustee, the
Principal Paying Agent, the Note Registrar, the Calculation Agent, any
Paying Agent nor any Note Manager in any way stands behind the capital
value and/or performance of the Class A-1 Notes or the assets of the Trust
except to the limited extent provided in the Transaction Documents for the
Trust (which, for the avoidance of doubt, does not apply to the Note
Trustee, the Principal Paying Agent, the Note Registrar, any Paying Agent
nor the Calculation Agent).
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(d) None of ▇▇.▇▇▇▇▇▇, Perpetual Trustees Consolidated Limited, the Custodian
(as defined in the Supplementary Terms Notice), the Servicer (as defined
in the Supplementary Terms Notice), the Manager, the Security Trustee, the
Note Trustee, the Principal Paying Agent, the Note Registrar, any Paying
Agent, the Calculation Agent, the Currency Swap Provider (as defined in
the Supplementary Terms Notice) or any of the Note Managers (as defined in
the Supplementary Terms Notice) guarantees the payment of interest or the
repayment of principal due on the Class A-1 Notes.
(e) None of the obligations of the Issuer or the Manager are guaranteed in any
way by ▇▇.▇▇▇▇▇▇ or any associate of ▇▇.▇▇▇▇▇▇ or associate of Perpetual
Trustees Consolidated Limited.
(f) Without limiting the Conditions, the Issuer's liability to make payments
in respect of the Class A-1 Notes is limited to its right of indemnity
from the assets of the Trust from time to time available to make such
payments under the Master Trust Deed and Supplementary Terms Notice. All
claims against the Issuer in relation to the Class A-1 Notes can be
enforced against the Issuer only to the extent to which it can be
satisfied out of the assets of the Trust out of which the Issuer is
actually indemnified for the liability except in the case of (and to the
extent of) any fraud, negligence or Default (as defined in the Master
Trust Deed) on the part of the Issuer.
(g) The Noteholder is required to accept any distribution of moneys under the
Security Trust Deed in full and final satisfaction of all moneys owing to
it, and any debt represented by any shortfall that exists after any such
final distribution is extinguished.
CERTIFICATE OF AUTHENTICATION
This Class A-1 Book-Entry Note is to be authenticated by The Bank of New York
and until so authenticated shall not be valid for any purpose.
THE BANK OF NEW YORK as Principal Paying Agent
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ASSIGNMENT
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Social Security or taxpayer I.D. or other identifying number of assignee
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
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(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
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attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated:
------------------------ ------------------------------------------
Signature Guaranteed:
Dated:
------------------------ ------------------------------------------
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Note Registrar,
which requirements include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Note Registrar in
addition to, or in substitution for,
STAMP, all in accordance with the Exchange
Act.
____________________________
* NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular without alteration, enlargement or any change whatsoever.
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SCHEDULE 2
TERMS AND CONDITIONS OF THE CLASS A-1 NOTES
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The following, subject to amendments, are the terms and conditions of the Class
A-1 Notes, substantially as they will appear on the reverse of the Class A-1
Notes in definitive form. Class A-1 Notes in definitive form will only be issued
in certain circumstances. While the Class A-1 Notes remain in book-entry form,
the same terms and conditions govern them, except to the extent that they are
appropriate only to the Class A-1 Notes in definitive form. For a summary of the
provisions relating to the Class A-1 Notes in book-entry form, see the summary
at the end of this section.
Paragraphs in italics are included by way of explanation only, and do not
constitute part of the terms and conditions of the Class A-1 Notes.
The issue of US$1,200,000,000 Mortgage Backed Pass Through Floating Rate Class
A-1 Notes due November 2037 (the CLASS A-1 NOTES) was authorised by a resolution
of the Board of Directors of the Issuer passed on or about 29 August 2006, and
are issued in conjunction with (euro)450,000,000 Mortgage Backed Pass Through
Floating Rate Class A-2 Notes due November 2037 (the CLASS A-2 NOTES),
A$600,000,000 Mortgage Backed Pass Through Floating Rate Class A-3 Notes due
November 2037 (the CLASS A-3 NOTES, and together with the Class A-1 Notes, and
the Class A-2 Notes, the CLASS A NOTES) and A$53,200,000 Mortgage Backed Pass
Through Floating Rate Class B Notes due November 2037 (the CLASS B NOTES) and
A$24,300,000 Mortgaged Backed Pass Through Floating Rate Class C Notes due
November 2037 (the CLASS C NOTES) (the Class B Notes, the Class C Notes and the
Class A-3 Notes, together, are the A$ NOTES and the $A Notes and the Class A-1
Notes and the Class A-2 Notes, together, are the NOTES) by Perpetual Trustees
Consolidated Limited, in its capacity as trustee of the Crusade Global Trust No.
2 of 2006 (the TRUST) (in such capacity, the ISSUER). These Notes are (a) issued
subject to a Master Trust Deed (the MASTER TRUST DEED) dated 14 March 1998
between the Issuer, Crusade Management Limited (in such capacity, the MANAGER
and, in the capacity of residual income beneficiary under the Trust, the
RESIDUAL INCOME BENEFICIARY) and ▇▇.▇▇▇▇▇▇ Bank Limited (▇▇.▇▇▇▇▇▇), a
Supplementary Terms Notice (the SUPPLEMENTARY TERMS NOTICE) dated on or about
September 2006 between (among others) the Issuer and The Bank of New York (the
note trustee for the time being referred to as the NOTE TRUSTEE) as trustee for
the holders for the time being of the Class A-1 Notes (the CLASS A-1
NOTEHOLDERS) and the holders for the time being of the Class A-2 Notes (the
CLASS A-2 NOTEHOLDERS) (the holders for the time being of the A$ Notes being the
A$ NOTEHOLDERS and, together with the Class A-1 Noteholders and the Class A-2
Noteholders, the NOTEHOLDERS)) and the Manager, and these terms and conditions
(the CONDITIONS); (b) in the case of the Class A-1 Notes and the Class A-2
Notes, issued subject to a Note Trust Deed dated on or about 19 September 2006
(the NOTE TRUST DEED) between the Issuer, the Manager and the Note Trustee; and
(c) secured by a Security Trust Deed (the SECURITY TRUST DEED) dated 14
September 2006 between the Issuer, the Manager, the Note Trustee and P.T.
Limited (ABN 67 004 454 666) (the security trustee for the time being referred
to as the SECURITY TRUSTEE).
The statements set out below include summaries of, and are subject to the
detailed provisions of, the Master Trust Deed, the Supplementary Terms Notice,
the Security Trust Deed and the Note Trust Deed. Certain words and expressions
used herein have the meanings defined in those documents. In accordance with an
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agency agreement (the AGENCY AGREEMENT) dated on or about 19 September 2006
between the Issuer, the Manager, the Note Trustee and The Bank of New York
acting through its office designated from time to time under the Agency
Agreement as Principal Paying Agent (the PRINCIPAL PAYING AGENT, which
expression includes its successors as Principal Paying Agent under the Agency
Agreement) and The Bank of New York, as calculation agent (the CALCULATION
AGENT, which expression includes its successors as Calculation Agent under the
Agency Agreement), and under which further paying agents may be appointed
(together with the Principal Paying Agent, the PAYING AGENTS, which expression
includes the successors of each paying agent as such under the Agency Agreement
and any additional paying agents appointed), payments in respect of the Class
A-1 Notes will be made by the Paying Agents and the Calculation Agent will make
the determinations specified in the Agency Agreement. The Class A-1 Noteholders
will be entitled (directly or indirectly) to the benefit of, will be bound by,
and will be deemed to have notice of, all the provisions of the Master Trust
Deed, the Supplementary Terms Notice, the Security Trust Deed, the Note Trust
Deed, the Agency Agreement, the Servicing Agreement dated 19 March 1998 and made
between the Issuer, the Manager and ▇▇.▇▇▇▇▇▇ as servicer (together with any
substitute or successor, the SERVICER), the Custodian Agreement (the CUSTODIAN
AGREEMENT) dated 19 March 1998 and made between the Issuer, the Manager and
▇▇.▇▇▇▇▇▇ Custodial Pty Ltd as custodian (together with any substitute or
successor, the CUSTODIAN) and the Indemnity (the INDEMNITY) dated 19 March 1998
between ▇▇.▇▇▇▇▇▇ as indemnifier (in such capacity, the INDEMNIFIER), the
Manager, the Custodian and the Issuer (together with the agreements with respect
to the Basis Swap, the Fixed-Floating Rate Swap and the Currency Swap (as each
such term is defined below), those documents the RELEVANT DOCUMENTS and certain
other transaction documents defined as such in the Supplementary Terms Notice,
the TRANSACTION DOCUMENTS). Copies of the Transaction Documents are available
for inspection at the principal office of the Note Trustee, being at the date
hereof ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ and at the specified offices for the time being of the Paying
Agents.
In connection with the issue of the Class A-1 Notes, the Issuer has entered into
an ISDA (defined below) master interest rate exchange agreement dated on or
about 19 September 2006 with Crusade Management Limited (the BASIS SWAP
PROVIDER) and ▇▇.▇▇▇▇▇▇ (as standby basis swap provider) together with a
confirmation relating thereto dated on or about 19 September 2006 (the BASIS
SWAP). The Issuer has also entered into an ISDA master interest rate exchange
agreement dated on or about 19 September 2006 with Crusade Management Limited
(the FIXED-FLOATING RATE SWAP PROVIDER) and ▇▇.▇▇▇▇▇▇ (as standby fixed and
floating rate swap provider) together with a confirmation relating thereto dated
on or about 19 September 2006 (the FIXED-FLOATING RATE SWAP). The Issuer has
also entered into an ISDA master currency exchange agreement (including
schedule) dated on or about 19 September 2006 with Credit Suisse (USA), Inc.
(the CURRENCY SWAP PROVIDER) (the Currency Swap Provider together with the Basis
Swap Provider and the Fixed-Floating Rate Swap Provider, the SWAP PROVIDERS)
together with a confirmation relating thereto dated on or about 19 September
2006 in respect of a swap transaction relating to the Class A-1 Notes (the CLASS
A-1 CURRENCY SWAP).
Book-Entry Notes will also bear the following legend: "This book-entry note is a
global bond for the purposes of section 128F(10) of the Income Tax Assessment
Act 1936 of the Commonwealth of Australia".
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1. FORM, DENOMINATION AND TITLE
-------------------------------------------------------------------------------
The Class A-1 Notes will be issued in registered form without interest
coupons in minimum denominations of US$100,000 and multiples of US$1 in
excess thereof.
Each Class of Notes will be represented by one or more typewritten fully
registered book-entry notes (each, a BOOK-ENTRY NOTE and collectively,
the BOOK-ENTRY NOTES) registered in the name of Cede & Co. as nominee of
The Depository Trust Company (DTC). Beneficial interests in the
Book-Entry Notes will be shown on, and transfers thereof will be
effected only through, records maintained by DTC and its participants
and pursuant to the terms of the Note Trust Deed including restrictions
on transfer contained therein. Euroclear Bank, S.A./N.V, as operator of
the Euroclear System (EUROCLEAR) and Clearstream Banking, societe
anonyme (CLEARSTREAM, LUXEMBOURG), may hold interests in the Book-Entry
Notes on behalf of persons who have accounts with Euroclear and
Clearstream, Luxembourg through accounts maintained in the names of
Euroclear or Clearstream, Luxembourg, or in the names of their
respective depositories, with DTC.
If the Issuer is obliged to issue Definitive Class A-1 Notes under
clause 3.3 of the Note Trust Deed, interests in the applicable
Book-Entry Note will be transferred to the beneficial owners thereof in
the form of Definitive Class A-1 Notes, without interest coupons, in the
denominations set forth above. A Definitive Class A-1 Note will be
issued to each Noteholder in respect of its registered holding or
holdings of Class A-1 Notes against delivery by such Noteholders of a
written order containing instructions and such other information as the
Issuer and The Bank of New York, acting as note registrar in relation to
the Class A-1 Notes (the NOTE REGISTRAR) may require to complete,
execute and deliver such Definitive Class A-1 Notes. In such
circumstances, the Issuer will cause sufficient Definitive Class A-1
Notes to be executed and delivered to the Note Registrar for completion,
authentication and dispatch to the relevant Noteholders.
2. STATUS, SECURITY AND RELATIONSHIP BETWEEN THE CLASS A-1 NOTES AND THE A$
NOTES
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The Class A-1 Notes are secured by a first ranking floating charge over
all of the assets of the Trust (which include, among other things, the
Loans (as defined below) and the Mortgages (as defined below) and
related securities) (as more particularly described in the Security
Trust Deed) and will rank, together with the Class A-2 Notes and the
Class A-3 Notes, pari passu and rateably without any preference or
priority among themselves.
The Class A-1 Notes are issued subject to the Master Trust Deed and the
Supplementary Terms Notice and are secured by the same security as
secures the A$ Notes and the Class A-2 Notes. The Class A-1 Notes, the
Class A-2 Notes and the Class A-3 Notes, will rank in priority to the
Class B Notes and Class C Notes in the event of the security being
enforced and in respect of principal and interest (as set out in
Conditions 4 and 5).
The proceeds of the issue of the Class A-1 Notes, the Class A-2 Notes
and the A$ Notes are to be used by the Issuer to purchase an equitable
interest in certain housing loans (the LOANS) and certain related
mortgages (the MORTGAGES) from ▇▇.▇▇▇▇▇▇ as an approved seller (the
APPROVED SELLER), establish the Liquidity Reserve and to invest in such
Authorised Investments as the Manager may specify from time to time.
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In the event that the security for the Class A-1 Notes is enforced and
the proceeds of such enforcement are insufficient, after payment of all
other claims ranking in priority to or pari passu with the Class A-1
Notes under the Security Trust Deed, to pay in full all principal and
interest and other amounts whatsoever due in respect of the Class A
Notes, then the Class A Noteholders shall have no further claim against
the Issuer in respect of any such unpaid amounts.
The net proceeds of realisation of the assets of the Trust (including
following enforcement of the Security Trust Deed) may be insufficient to
pay all amounts due to the Noteholders. Save in certain limited
circumstances the other assets of the Issuer will not be available for
payment of any shortfall arising and all claims in respect of such
shortfall shall be extinguished (see further Condition 15). None of the
Servicer, the Manager, ▇▇.▇▇▇▇▇▇, the Note Trustee, the Security
Trustee, the Swap Providers, the Paying Agents, the Calculation Agent or
the Note Managers (as defined in the Supplementary Terms Notice) has any
obligation to any Noteholder for payment of any amount by the Issuer in
respect of the Notes.
The Note Trust Deed contains provisions requiring the Note Trustee to
have regard to the interests of Class A-1 Noteholders as regards all the
powers, trusts, authorities, duties and discretions of the Note Trustee
(except where expressly provided otherwise).
The Security Trust Deed contains provisions requiring the Security
Trustee, subject to the other provisions of the Security Trust Deed, to
give priority to the interests of the Class A Noteholders, if there is a
conflict between the interest of such Noteholders and any other Voting
Mortgagee (as defined below).
3. COVENANTS OF THE ISSUER
--------------------------------------------------------------------------------
So long as any of the Class A-1 Notes remains outstanding, the Issuer
has made certain covenants for the benefit of the Class A-1 Noteholders
which are set out in the Master Trust Deed.
These covenants include the following.
(a) The Issuer shall act continuously as trustee of the Trust until
the Trust is terminated as provided by the Master Trust Deed or
the Issuer has retired or been removed from office in the manner
provided under the Master Trust Deed.
(b) The Issuer shall:
(i) act honestly and in good faith and comply with all
relevant material laws in the performance of its duties
and in the exercise of its discretions under the Master
Trust Deed;
(ii) subject to the Master Trust Deed, exercise such
diligence and prudence as a prudent person of business
would exercise in performing its express functions and
in exercising its discretions under the Master Trust
Deed, having regard to the interests of the Class A
Noteholders, the Class B Noteholders, the Class C
Noteholders, the Beneficiaries and the other Creditors
of the Trust in accordance with its obligations under
the relevant Transaction Documents;
(iii) use its best endeavours to carry on and conduct its
business in so far as it relates to the Master Trust
Deed in a proper and efficient manner;
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(iv) keep, or ensure that the Manager keeps, accounting
records which correctly record and explain all amounts
paid and received by the Issuer;
(v) keep the Trust separate from each other trust which is
constituted under the Master Trust Deed and from its own
assets and account for assets and liabilities of the
Trust separately from those of other trusts constituted
under the Master Trust Deed and from its own assets and
liabilities;
(vi) do everything and take all such actions which are
necessary (including obtaining all appropriate
Authorisations which relate to it as trustee of the
Trust and taking all actions necessary to assist the
Manager to obtain all other appropriate Authorisations)
to ensure that it is able to exercise all its powers and
remedies and perform all its obligations under the
Master Trust Deed, the Transaction Documents and all
other deeds, agreements and other arrangements entered
into by the Issuer under the Master Trust Deed;
(vii) not, as Issuer, engage in any business or activity in
respect of the Trust except as contemplated or required
by the Transaction Documents;
(viii) except as contemplated or required by the Transaction
Documents, maintain an independent and arm's length
relationship with its related bodies corporate in
relation to dealings affecting the Trust;
(ix) except as contemplated or required by the Transaction
Documents, not, in respect of the Trust, guarantee or
become obligated for the debts of any other entity or
hold out its credit as being available to settle the
obligations of others;
(x) comply with the rules and regulations of any stock
exchange on which any Note is listed from time to time
(the STOCK EXCHANGE); and
(xi) within 45 days of notice from the Manager to do so,
remove any of its agents or delegates that breaches any
obligation imposed on the Issuer under the Master Trust
Deed or any other Transaction Document where the Manager
believes it will have a Material Adverse Effect.
(c) Except as provided in any Transaction Document (and other than
the charge given to the Security Trustee), the Issuer shall not,
nor shall it permit any of its officers to, sell, mortgage,
charge or otherwise encumber or part with possession of any
assets of the Trust (the TRUST ASSETS).
(d) The Issuer shall duly observe and perform the covenants and
obligations of the Master Trust Deed and will be personally
liable to the Servicer, the Noteholders, the Beneficiaries, the
Note Manager or any other Creditors only if it is guilty of
negligence, fraud or Default (as defined in Condition 15). The
Issuer is not responsible for the acts or omissions of its
agents or delegates (including persons referred to in clause
17.6 of the Master Trust Deed) selected by the Issuer in good
faith using reasonable care except where the Trustee expressly
instructs the agent or delegate to do or omit to do the relevant
act, if the Trustee is aware of the default and does not take
the action available to it under the Transaction Documents to
address the act or omission or where the Transaction Documents
expressly provide that the Trustee is so liable.
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(e) The Issuer will open and operate certain bank accounts in
accordance with the Master Trust Deed and the Supplementary
Terms Notice.
(f) Subject to the Master Trust Deed and any Transaction Document to
which it is a party, the Issuer shall act on all directions
given to it by the Manager in accordance with the terms of the
Master Trust Deed.
(g) The Issuer shall properly perform the functions which are
necessary for it to perform under all Transaction Documents in
respect of the Trust.
4. INTEREST
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(A) PAYMENT DATES
Each Class A-1 Note bears interest on its Invested Amount (as
defined below) from and including 21 September 2006 or such
later date as may be agreed between the Issuer and the
Underwriters for the issue of the Class A-1 Notes (the CLOSING
DATE). Interest in respect of the Class A-1 Notes will be
payable quarterly in arrears on 15 November 2006 in respect of
the period from (and including the Closing Date and ending on
(but excluding) 15 November 2006 (the FIRST QUARTERLY PAYMENT
DATE) and thereafter on each 15 February, 15 May, 15 August and
15 November (each such date a QUARTERLY PAYMENT DATE). If any
Quarterly Payment Date would otherwise fall on a day which is
not a Business Day (as defined below), it shall be postponed to
the next day which is a Business Day, unless it would thereby
fall into the next calendar month, in which case the due date
shall be brought forward to the immediately the preceding
Business Day. The final Quarterly Payment Date will be the
earlier of the Final Maturity Date and the Payment Date on which
the Notes are redeemed in full.
BUSINESS DAY in these Conditions means any day, other than a
Saturday, Sunday or public holiday, on which Banks are open for
business in London, New York, Sydney and The Trans-European
Real-Time Gross Settlement Express Transfer (TARGET) System or
any successor to it is open.
The period beginning on (and including) the Closing Date and
ending on (but excluding) the First Quarterly Payment Date, and
each successive period beginning on (and including) a Quarterly
Payment Date and ending on (but excluding) the next Quarterly
Payment Date is called a QUARTERLY INTEREST PERIOD. Interest
payable on a Class A-1 Note in respect of any Quarterly Interest
Period or any other period will be calculated on the basis of
the actual number of days in that Quarterly Interest Period and
a 360 day year.
Interest shall cease to accrue on any Class A-1 Note for the
period from (and including):
(i) the date on which the Stated Amount (as defined in
Condition 5(a)) of that Class A-1 Note is reduced to
zero (provided that interest shall thereafter begin to
accrue from (and including) any date on which the Stated
Amount of the Class A-1 Note becomes greater than zero);
or
(ii) if the Stated Amount of the Class A-1 Note on the due
date for redemption is not zero, the due date for
redemption of the Class A-1 Note, unless, after the due
date for redemption payment of principal due is
improperly withheld or refused,
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following which interest shall continue to accrue on the
Invested Amount of the Class A-1 Note at the rate from
time to time applicable to the Class A-1 Notes until the
later of:
(A) the date on which the moneys in respect of that
Class A-1 Note have been received by the Note
Trustee or the Principal Paying Agent and notice
to that effect is given in accordance with
Condition 12; and
(B) the Stated Amount of that Class A-1 Note has
been reduced to zero, providing that interest
shall thereafter begin to accrue from (and
including) any date on which the Stated Amount
of that Class A-1 Note becomes greater than
zero.
(B) INTEREST RATE
The rate of interest applicable from time to time to a Class of
Notes (the INTEREST RATE) will be determined by the Calculation
Agent on the basis of the following paragraphs.
On the second LIBOR Business Day before the beginning of each
Quarterly Interest Period (each an INTEREST DETERMINATION DATE),
the Calculation Agent will determine LIBOR as described in the
definition of LIBOR set out in clause 2.1 of the Supplementary
Terms Notice.
For the purposes of the foregoing paragraph, LIBOR Business Day
means any day on which commercial banks are open for business
(including dealings in foreign exchange and foreign currency
deposits) in London.
The Interest Rate applicable to the Class A-1 Notes for such
Quarterly Interest Period shall be determined by the Calculation
Agent in the manner set out in the definition of Interest Rate
set out in clause 2.1 of the Supplementary Terms Notice.
The applicable Margin on the Class A-1 Notes is as set out in
clause 4.2 of the Supplementary Terms Notice.
There is no maximum or minimum Interest Rate.
(C) DETERMINATION OF INTEREST RATE AND CALCULATION OF INTEREST
The Calculation Agent will, as soon as practicable after 11:00
am (London time) on each Interest Determination Date, determine
the Interest Rate applicable to, and calculate the amount of
interest payable (the INTEREST) for the immediately succeeding
Quarterly Interest Period. The Interest is calculated in
accordance with clause 4.8 of the Supplementary Terms Notice.
The determination of the Interest Rate and the Interest by the
Calculation Agent shall (in the absence of manifest error) be
final and binding upon all parties.
(D) NOTIFICATION AND PUBLICATION OF INTEREST RATE AND INTEREST
The Calculation Agent will cause the Interest Rate and the
Interest applicable to each Class A-1 Note for each Quarterly
Interest Period and the relevant Quarterly Payment Date to be
notified to the Issuer, the Manager, the Note Trustee and the
Paying Agents.
The Interest, Interest Rate and the relevant Quarterly Payment
Date may subsequently be amended (or appropriate alternative
arrangements made by way of adjustment) without notice in the
event of a shortening of the Quarterly Interest Period.
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(E) DETERMINATION OR CALCULATION BY THE MANAGER
If the Calculation Agent at any time for any reason does not
determine the relevant Interest Rate or calculate the Interest
for a Class A-1 Note, the Manager shall do so and each such
determination or calculation shall be deemed to have been made
by the Calculation Agent. In doing so, the Manager shall apply
the foregoing provisions of this Condition, with any necessary
consequential amendments, to the extent that in its opinion, it
can do so, and, in all other respects it shall do so in such a
manner as it reasonably considers to be fair and reasonable in
all the circumstances.
(F) CALCULATION AGENT
The Issuer will procure that, so long as any of the Class A-1
Notes remains outstanding, there will, at all times, be a
Calculation Agent. The Issuer, or the Manager with the consent
of the Issuer (such consent not to be unreasonably withheld)
reserves the right at any time to terminate the appointment of
the Calculation Agent immediately on the occurrence of certain
specified events or, otherwise, with the prior written approval
of the Note Trustee, by giving not less than 60 days written
notice to, inter alia, the Calculation Agent. Notice of that
termination will be given to the Class A-1 Noteholders. If any
person is unable or unwilling to continue to act as the
Calculation Agent, or if the appointment of the Calculation
Agent is terminated, the Issuer will, with the approval of the
Note Trustee, appoint a successor Calculation Agent to act as
such in its place, provided that neither the resignation nor
removal of the Calculation Agent shall take effect until a
successor approved by the Note Trustee has been appointed.
(G) INCOME DISTRIBUTION
On each Monthly Payment Date, and based on the calculations,
instructions and directions provided to it by the Manager, the
Issuer must pay or apply, or cause to be paid or applied, out of
Total Available Funds, in relation to the Monthly Collection
Period (defined below) ending immediately before that Monthly
Payment Date, the amounts specified in clause 5.1(a) of the
Supplementary Terms Notice in the order of priority specified in
that clause.
The Issuer shall only make a payment under any of the
sub-paragraphs of clause 5.1(a) or clause 5.1(c) of the
Supplementary Terms Notice if it is directed in writing by the
Manager to do so and only to the extent that any Total Available
Funds remain from which to make the payment after amounts with
priority to that payment have been distributed.
The Issuer is required to make payments of interest to the Class
A-1 Notes on each Quarterly Payment Date (as defined below) as
more fully described in the Supplementary Terms Notice.
Capitalised terms in this paragraph (g) have the same meaning
given in the Supplementary Terms Notice unless otherwise defined
in this document.
5. REDEMPTION AND PURCHASE
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Capitalised terms in this Condition 5 have the same meaning given in the
Supplementary Terms Notice unless otherwise defined in this document.
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(A) MANDATORY REDEMPTION IN PART FROM PRINCIPAL COLLECTIONS AND
APPORTIONMENT OF PRINCIPAL COLLECTIONS BETWEEN THE CLASS A-1
NOTES, THE CLASS A-2 NOTES AND THE A$ NOTES
The Class A-1 Notes shall be subject to mandatory redemption in
part on any Quarterly Payment Date if on that date there are any
Principal Collections available to be distributed in relation to
such Class A-1 Notes. The principal amount so redeemable in
respect of each Class A-1 Note prior to enforcement of the
Security Trust Deed (each a PRINCIPAL PAYMENT) on any Quarterly
Payment Date shall be the amount available for payment in
respect of the Class A-1 Notes as set out in Condition 5(b) on
the day which is two Business Days prior to the Quarterly
Payment Date (the QUARTERLY DETERMINATION DATE) divided by the
aggregate Invested Amount of all Class A-1 Notes, multiplied by
the Invested Amount of that Note, provided always that no
Principal Payment on a Class A-1 Note on any date may exceed the
amount equal to the Invested Amount of that Class A-1 Note at
that date less amounts charged off as at that date and not to be
reinstated on the next Quarterly Payment Date, or to be charged
off on the Quarterly Payment Date, as described in Condition
5(c) (that reduced amount being the STATED AMOUNT of that Class
A-1 Note).
Notice of amounts to be redeemed will be provided by the Manager
to the Issuer, the Calculation Agent, the Principal Paying Agent
and the Note Trustee.
Following notification of the amount to be redeemed for each
Quarterly Payment Date, the Manager will determine the Bond
Factor for the Class A-1 Notes as of such Quarterly Payment Date
and will notify the Issuer, the Calculation Agent, the Principal
Paying Agent and the Note Trustee of this amount and shall cause
the Bond Factor to be published pursuant to Condition 12.
(B) PRINCIPAL ALLOCATIONS AND PAYMENTS ON NOTES
On each Monthly Payment Date, and based on the calculations,
instructions and directions provided to it by the Manager, the
Issuer must allocate or cause to be allocated or distribute or
cause to be distributed out of relevant Principal Collections in
relation to the Monthly Collection Period ending immediately
before that Monthly Payment Date the following amounts in the
following order of priority:
(i) first, in the manner and order of priority set out in
clause 5.4 of the Supplementary Terms Notice;
(ii) then:
(A) prior to the Stepdown Date, or at any time if a
Trigger Event is subsisting, in the manner and
order of priority set out in clause 5.5 of the
Supplementary Terms Notice; and
(B) on and after the Stepdown Date, provided that no
Trigger Event is subsisting, in the manner and
order of priority set out in clause 5.6 of the
Supplementary Terms Notice.
The Issuer shall only make a payment under any of sub-paragraphs
of clause 5.4, 5.5 and 5.6 (as applicable) if it is directed in
writing to do so by the Manager and only to the extent
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that any Principal Collections remain from which to make the
payment after amounts with priority to that payment have been
distributed.
The Issuer is also required to make certain payments out of
Principal Collections (including allocating Principal Draws to
Total Available Funds) on each Monthly Payment Date in
accordance with the Supplementary Terms Notice.
(C) GENERAL
No amount of principal will be paid to a Noteholder in excess of
the Invested Amount applicable to the Notes held by that
Noteholder.
(D) EXCESS AVAILABLE INCOME - REIMBURSEMENT OF CHARGE OFFS,
PRINCIPAL DRAWS AND LIQUIDITY DRAWS
(i) General
On each Monthly Determination Date, the Manager must
determine, for a Monthly Collection Period, the amount
(if any) by which the Total Available Funds for the
Monthly Collection Period exceeds the Total Payments for
the Monthly Collection Period or, in relation to any
Monthly Collection Period, the end of which is
immediately followed by a Quarterly Payment Date, any
amounts retained or invested under clause 5.2(a) of the
Supplementary Terms Notice on the two immediately
preceding Monthly Payment Dates for application on that
Quarterly Payment Date (the EXCESS AVAILABLE INCOME).
(ii) Distribution of Excess Available Income
Subject to clause 5.2(b) of the Supplementary Terms
Notice, on each Quarterly Determination Date, the
Manager must apply any Excess Available Income for the
Quarterly Collection Period relating to that Quarterly
Determination Date in the order of priority specified in
clause 5.2(a) of the Supplementary Terms Notice.
(E) EXCESS DISTRIBUTION
The Issuer must at the written direction of the Manager pay any
Excess Distribution for a Quarterly Collection Period to the
Residual Income Beneficiary on the relevant Quarterly Payment
Date. Once paid to the Residual Income Beneficiary, the Issuer
may not recover any Excess Distributions from the Residual
Income Beneficiary other than in the circumstances specified in
clause 5.3 of the Supplementary Terms Notice.
(F) US$ ACCOUNT
The Issuer shall direct the Currency Swap Provider to pay all
amounts denominated in US$ payable to the Issuer by the Currency
Swap Provider under the Currency Swap into the US$ Account or to
the Principal Paying Agent under the Agency Agreement on behalf
of the Issuer.
If any of the Issuer, the Manager or the Servicer receive any
amount denominated in US$ from the Currency Swap Provider under
the Currency Swap, they will promptly pay that amount to the
credit of the US$ Account.
The Issuer shall, on the direction of the Manager, or shall
require that the Paying Agent on its behalf, pay all amounts
credited to the US$ Account by the Currency Swap Provider as
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specified in clause 5.16 of the Supplementary Terms Notice, and
in accordance with the Note Trust Deed and the Agency Agreement.
(G) CHARGE OFFS
If the Principal Charge Offs for any Monthly Collection Period
exceed the Excess Available Income calculated on the Monthly
Determination Date for that Monthly Collection Period, the
Manager must, on and with effect from the Monthly Payment Date
immediately following the end of the Monthly Collection Period
comply with clause 5.14 of the Supplementary Terms Notice.
(H) CALCULATION OF PRINCIPAL PAYMENTS AND STATED AMOUNT
On (or as soon as practicable after) each Determination Date,
the Manager shall calculate the amount of principal to be repaid
or allocated (as the case may be) in respect of each Class A-1
Note, on the next Payment Date following that Determination
Date; (B) the Stated Amount, the Notional Stated Amount and the
Invested Amount of each Note on the first day of the next
following Payment Date (after deducting any principal due to be
made or allocated (as the case may be) on the next Payment
Date); and (C) the Bond Factor for each Class of Note on each
Quarterly Determination Date in respect of the Collection Period
ending before that Quarterly Determination Date.
The Manager will notify the Issuer, the Note Trustee, the
Principal Paying Agent and the Calculation Agent by not later
than (or as soon as practicable after) the Determination Date
immediately preceding the relevant Payment Date of each such
determination and will immediately cause details of each of
those determinations to be published in accordance with
Condition 12 by one Business Day before the relevant Payment
Date. If no Principal Payment is due to be made on or allocated
to the Class A-1 Notes on any Payment Date a notice to this
effect will be given to the Class A-1 Noteholders in accordance
with Condition 12.
(I) CALL
The Issuer must, when so directed by the Manager (at the
Manager's option), purchase or redeem all, but not some only, of
the Class A-1 Notes in accordance with, and in the circumstances
specified in clause 7.1 of the Supplementary Terms Notice.
Clause 7.1 of the Supplementary Terms Notice requires the Issuer
to give not more than 60 nor less than 25 days' notice to the
Class A-1 Noteholders of a repurchase under that section 7.1.
(J) REDEMPTION FOR TAXATION OR OTHER REASONS
If the Manager satisfies the Issuer and the Note Trustee
immediately prior to giving the notice referred to below that
either (i) on the next Quarterly Payment Date the Issuer would
be required to deduct or withhold from any payment of principal
or interest in respect of the Class A-1 Notes or the Currency
Swap any amount for or on account of any present or future
taxes, duties, assessments or governmental charges of whatever
nature imposed, levied, collected, withheld or assessed by the
Commonwealth of Australia or any of its political sub-divisions
or any of its authorities or (ii) the total amount payable in
respect of interest in relation to any of the Loans for a
Quarterly Collection Period ceases to be
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receivable (whether or not actually received) by the Issuer
during such Quarterly Collection Period (but, for the avoidance
of doubt, this paragraph (ii) does not apply to the failure by
the Issuer to receive any interest on any Purchased Receivable
merely by reason of the failure by the relevant Obligors to pay
that interest in breach of the relevant Receivable Agreement),
the Issuer must, when so directed by the Manager, at the
Manager's option (subject to the provisos specified in clause
7.1 of the Supplementary Terms Notice) redeem all, but not some
only, of the Class A-1 Notes in accordance with clause 7.1 of
the Supplementary Terms Notice.
(K) REDEMPTION ON FINAL MATURITY
If not otherwise redeemed, the Class A-1 Notes will be redeemed
at their Stated Amount on the Quarterly Payment Date falling in
November 2037.
(L) CANCELLATION
All Class A-1 Notes redeemed in full pursuant to the above
provisions will be cancelled forthwith, and may not be resold or
reissued.
(M) CERTIFICATION
For the purposes of any redemption made pursuant to this
Condition 5, the Note Trustee may rely upon an Officer's
Certificate under the Note Trust Deed from the Manager on behalf
of the Issuer certifying or stating the opinion of each person
signing such certificate as:
(i) to the fair value (within 90 days of such release) of
the property or securities proposed to be released from
the Security Trust Deed;
(ii) that in the opinion of such person the proposed release
will not impair the security under the Security Trust
Deed in contravention of the provisions of the Security
Trust Deed or the Note Trust Deed; and
(iii) that the Issuer will be in a position to discharge all
its liabilities in respect of the relevant Class A-1
Notes and any amounts required under the Security Trust
Deed to be paid in priority to or pari passu with those
Class A-1 Notes,
and such Officer's Certificate shall be conclusive and binding
on the Trustee, the Note Trustee and the holders of those Class
A-1 Notes.
6. PAYMENTS
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(A) METHOD OF PAYMENT
Any instalment of interest or principal, payable on any Class
A-1 Note which is punctually paid or duly provided for by the
Trustee to the Paying Agent on the applicable Payment Date or
Maturity Date shall be paid to the person in whose name such
Class A-1 Note is registered on the Record Date, by cheque
mailed first-class, postage prepaid, to such person's address as
it appears on the Note Register on such Record Date, except
that, unless Definitive Class A-1 Notes have been issued
pursuant to clause 3.3 of the Note Trust Deed, with respect to
Class A-1 Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially such Clearing Agency
to be DTC and such nominee to be
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Cede & Co.), payment will be made by wire transfer in
immediately available funds to the account designated by such
nominee and except for the final instalment of principal payable
with respect to such Class A-1 Note on a Payment Date or
Maturity Date.
(B) INITIAL PRINCIPAL PAYING AGENT
The initial Principal Paying Agent is The Bank of New York at
its office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ or such other office as
designated from time to time under the Agency Agreement.
(C) PAYING AGENTS
The Issuer (or the Manager on its behalf with the consent of the
Issuer, such consent not to be unreasonably withheld), may at
any time (with the previous written approval of the Note
Trustee) vary or terminate the appointment of any Paying Agent
and appoint additional or other Paying Agents, provided that it
will at all times maintain a Paying Agent having a paying office
in New York City, and a Paying Agent having a paying office in
the United Kingdom (which may be the same person) or such other
jurisdiction as the Paying Agent, the Manager and the Trustee
may agree from time to time. Notice of any such termination or
appointment and of any change in the office through which any
Paying Agent will act will be given in accordance with Condition
12.
The Manager shall procure that the Issuer maintains the
appointment of, if a withholding tax is imposed on a payment
made by a paying agent pursuant to European Council Directive
2003/48/EC or any other directive implementing the conclusions
of the ECOFIN Council Meeting of 26-27 November 2000, a Paying
Agent in a member state of the European Union that will not be
obliged to withhold or deduct tax pursuant to any such directive
or any law implementing or complying with, or introduced to
conform with, such directive.
(D) PAYMENT ON BUSINESS DAYS
Payments in respect of any amount of principal or Interest in
respect of any Class A-1 Note shall be made on a Business Day.
If the due date for payment of any amount of principal or
Interest in respect of any Class A-1 Note is not a Business Day
then payment will not be made until the next succeeding Business
Day unless that day falls in the next calendar month, in which
case the due date will be the preceding Business Day and the
holder of that Class A-1 Note shall not be entitled to any
further interest or other payment in respect of that delay.
(E) INTEREST
If Interest is not paid in respect of a Class A-1 Note on the
date when due and payable (other than because the due date is
not a Business Day), that unpaid Interest shall itself bear
interest at the Interest Rate applicable from time to time to
the Class A-1 Notes until the unpaid Interest, and interest on
it, is available for payment and notice of that availability has
been duly given in accordance with Condition 12.
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7. TAXATION
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All payments in respect of the Class A-1 Notes will be made without
withholding or deduction for, or on account of, any present or future
taxes, duties or charges of whatsoever nature unless the Issuer or any
Paying Agent is required by applicable law to make any such payment in
respect of the Class A-1 Notes subject to any withholding or deduction
for, or on account of, any present or future taxes, duties or charges of
whatever nature. In that event the Issuer or that Paying Agent (as the
case may be) shall make such payment after such withholding or deduction
has been made and shall account to the relevant authorities for the
amount so required to be withheld or deducted. Neither the Issuer nor
any Paying Agent will be obliged to make any additional payments to
Class A-1 Noteholders in respect of that withholding or deduction.
8. PRESCRIPTION
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A Class A-1 Note shall become void in its entirety unless surrendered
for payment within ten years of the Relevant Date in respect of any
payment on it the effect of which would be to reduce the Stated Amount
(in the case of final maturity, if applicable) or the Invested Amount of
that Class A-1 Note to zero. After the date on which a Class A-1 Note
becomes void in its entirety, no claim may be made in respect of it.
As used in these Conditions, the RELEVANT DATE means the date on which a
payment first becomes due but, if the full amount of the money payable
has not been received by the Principal Paying Agent or the Note Trustee
on or prior to that date, it means the date on which, the full amount of
such money having been so received, notice to that effect is duly given
by the Principal Paying Agent in accordance with Condition 12.
9. EVENTS OF DEFAULT
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Clause 8.1 of the Security Trust Deed sets out which events constitute
an Event of Default (whether or not it is within the control of the
Issuer) for the purpose of these Conditions and the Security Trust Deed.
In the event that the security constituted by the Security Trust Deed
becomes enforceable following an event of default under the Notes any
funds resulting from the realisation of such security shall be applied
in accordance with the order of priority of payments as stated in the
Security Trust Deed.
10. ENFORCEMENT
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At any time after an Event of Default occurs, the Security Trustee shall
(subject to being appropriately indemnified), if so directed by (a) the
Noteholder Mortgagees (as defined in the Security Trust Deed) alone,
where the Noteholder Mortgagees are the only Voting Mortgagees, or
otherwise (b) an "Extraordinary Resolution of the Voting Mortgagees"
(being 75% of votes capable of being cast by Voting Mortgagees present
in person or by proxy of the relevant meeting or a written resolution
signed by all Voting Mortgagees - which includes the Note Trustee on
behalf of Class A-1 Noteholders, but not, unless the Note Trustee has
become bound to take steps and/or proceed under the Security Trust Deed
and fails to do so within a reasonable period of time and such
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failure is continuing, the Class A-1 Noteholders themselves), declare
the Class A Notes immediately due and payable and declare the security
to be enforceable. If an Extraordinary Resolution of Voting Mortgagees
referred to above elects not to direct the Security Trustee to enforce
the Security Trust Deed, in circumstances where the Security Trustee
could enforce, the Noteholder Mortgagees (in the case of the Class A-1
Noteholders, as represented by the Note Trustee acting at the direction
of the Class A-1 Noteholders) may nevertheless direct the Security
Trustee to enforce the Security Trust Deed on behalf of the Noteholders.
VOTING MORTGAGEE has the meaning given to it in the Supplementary Terms
Notice.
Any reference to the Noteholder Mortgagees while they are the only
Voting Mortgagees or where their consent is required under the Security
Trust Deed in relation to a direction or act of the Security Trustee,
means Noteholder Mortgagees representing more than 50% of the aggregate
Invested Amount of the Class A-1 Notes, the Class A-2 Notes and the A$
Notes.
Subject to being indemnified in accordance with the Security Trust Deed,
the Security Trustee shall take all action necessary to give effect to
any direction by the Noteholder Mortgagees where they are the only
Voting Mortgagees or to any Extraordinary Resolution of the Voting
Mortgagees and shall comply with all directions given by the Note
Trustee where it is the only Voting Mortgagee or contained in or given
pursuant to any Extraordinary Resolution of the Voting Mortgagees in
accordance with the Security Trust Deed.
No Class A-1 Noteholder is entitled to enforce the Security Trust Deed
or to appoint or cause to be appointed a receiver to any of the assets
secured by the Security Trust Deed or otherwise to exercise any power
conferred by the terms of any applicable law on chargees except as
provided in the Security Trust Deed.
If any of the Class A-1 Notes remains outstanding and is due and payable
otherwise than by reason of a default in payment of any amount due on
the Class A-1 Notes, the Note Trustee must not vote under the Security
Trust Deed to, or otherwise direct the Security Trustee to, dispose of
the Mortgaged Property unless either:
(a) the Note Trustee is of the opinion, reached after considering at
any time the advice of a merchant bank or other financial
adviser selected by the Note Trustee in its sole and absolute
discretion (the cost of such advice shall be an Expense payable
to the Note Trustee), that a sufficient amount would be realised
to discharge in full all amounts owing to the Class A-1
Noteholders and any other amounts payable by the Issuer ranking
in priority to or pari passu with the Class A-1 Notes; or
(b) the Note Trustee is of the opinion, reached after considering at
any time and from time to time the advice of a merchant bank or
other financial adviser selected by the Note Trustee in its sole
and absolute discretion (the cost of such advice shall be an
Expense payable to the Note Trustee), that the cash flow
receivable by the Issuer (or the Security Trustee under the
Security Trust Deed) will not (or that there is a significant
risk that it will not) be sufficient, having regard to any other
relevant actual, contingent or prospective liabilities of the
Issuer, to discharge in full in due course all the amounts
referred to in paragraph (a) above.
Except in the case of negligence, fraud or breach of trust (in the case
of the Security Trustee) or negligence, fraud or wilful default (in the
case of the Note Trustee), neither the Note Trustee nor the Security
Trustee will be liable for any decline in the value, nor any loss
realised upon any sale or
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other dispositions made under the Security Trust Deed, of any Mortgaged
Property or any other property which is charged to the Security Trustee
by any other person in respect of or relating to the obligations of the
Issuer or any third party in respect of the Issuer or the Class A-1
Notes or relating in any way to the Mortgaged Property. Without
limitation, neither the Note Trustee nor the Security Trustee shall be
liable for any such decline or loss directly or indirectly arising from
its acting, or failing to act, as a consequence of an opinion reached by
it in good faith based on advice received by it in accordance with the
Note Trust deed or the Security Trust Deed, as the case may be.
Subject to the provisions of the Note Trust Deed (including clause
37.2), the Note Trustee shall not be bound to vote under the Security
Trust Deed, or otherwise direct the Security Trustee under the Security
Trust Deed or to take any proceedings, actions or steps under, or any
other proceedings pursuant to or in connection with the Security Trust
Deed, the Note Trust Deed or any Class A-1 Notes on behalf of the Class
A-1 Noteholders unless directed or requested to do so by an
Extraordinary Resolution of the Class A-1 Noteholders at the time (or
such higher percentage as may be required by the TIA); and then only if
the Note Trustee is indemnified to its satisfaction against all action,
proceedings, claims and demands to which it may render itself liable and
all costs, charges, damages and expenses which it may incur by so doing.
Only the Security Trustee may enforce the provisions of the Security
Trust Deed and neither the Note Trustee nor any Class A-1 Noteholder is
entitled to proceed directly against the Issuer to enforce the
performance of any of the provisions of the Security Trust Deed or the
Class A-1 Notes (including these Conditions) except as provided for in
the Security Trust Deed and the Note Trust Deed.
The rights, remedies and discretions of the Class A-1 Noteholders under
the Security Trust Deed including all rights to vote or give
instructions or consent can only be exercised by the Note Trustee on
behalf of the Class A-1 Noteholders in accordance with the Security
Trust Deed. The Security Trustee may rely on any instructions or
directions given to it by the Note Trustee as being given on behalf of
the Class A-1 Noteholders from time to time and need not enquire whether
the Note Trustee or the Noteholders from time to time have complied with
any requirements under the Note Trust Deed or as to the reasonableness
or otherwise of the Note Trustee. The Security Trustee is not obliged to
take any action, give any consent or waiver or make any determination
under the Security Trust Deed without being directed to do so by the
Note Trustee or the Voting Mortgagees in accordance with the Security
Trust Deed.
Prior to the Security Trustee becoming actually aware of the occurrence
of an Event of Default and provided that it has been indemnified in
accordance with the Security Trust Deed, the Security Trustee may
enforce the Security Trust Deed without an Extraordinary Resolution of
the Voting Mortgagees if it believes (in its absolute discretion) that
it is necessary to do so to protect the interests of the Mortgagees
(provided that it shall enforce the Security Trust Deed if so directed
by an Extraordinary Resolution of the Voting Mortgagees).
Upon enforcement of the security created by the Security Trust Deed, the
net proceeds thereof may be insufficient to pay all amounts due on
redemption to the Noteholders. The proceeds from enforcement (which will
not include amounts required by law to be paid to the holder of any
prior ranking security interest and the proceeds of cash collateral
lodged with and payable to a Swap Provider or other provider of a
Support Facility (as defined in the Master Trust Deed)) will be applied
in the order of priority as set out in the Security Trust Deed. Any
claims of Noteholders
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remaining after realisation of the security and application of the
proceeds as aforesaid shall, except in certain limited circumstances, be
extinguished.
11. REPLACEMENTS OF CLASS A-1 NOTES
-------------------------------------------------------------------------------
If any Class A-1 Note is lost, stolen, mutilated, defaced or destroyed,
it may be replaced at the specified office of the Principal Paying Agent
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ or such other office as may be designated from
time to time under the Agency Agreement, upon payment by the claimant of
the expenses incurred in connection with that replacement and on such
terms as to evidence and indemnity as the Issuer may reasonably require.
Mutilated or defaced Class A-1 Notes must be surrendered before
replacements will be issued.
12. NOTICES
-------------------------------------------------------------------------------
All notices, other than notices given in accordance with the following
paragraph, to Class A-1 Noteholders shall be deemed given if in writing
and mailed, first-class, postage prepaid to each Class A-1 Noteholder,
at his or her address as it appears on the Note Register, not later than
the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice.
In any case where notice to Class A-1 Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so
mailed to any particular Class A-1 Noteholder shall affect the
sufficiency of such notice with respect to other Class A-1 Noteholders,
and any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given.
A notice may be waived in writing by the relevant Class A-1 Noteholder,
either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Class A-1 Noteholders
shall be filed with the Note Trustee but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon
such a waiver.
Any such notice shall be deemed to have been given on the date such
notice is deposited in the mail.
In case, by reason of the suspension of regular mail services as a
result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Class A-1 Noteholders when
such notice is required to be given, then any manner of giving such
notice as the Trustee shall direct (on the instructions of the Trust
Manager) the Note Trustee shall be deemed to be a sufficient giving of
such notice.
Any notice required to be given by the Principal Paying Agent at any
time shall be deemed to have been duly given if the information
contained in such notice appears on the relevant page of the Reuters
Screen, on the Website (as defined below) or such other similar
electronic reporting service as may be approved by the Note Trustee and
notified to Class A-1 Noteholders (the RELEVANT SCREEN). Any such notice
shall be deemed to have been given on the first date on which such
information appeared on the Relevant Screen. If it is impossible or
impracticable to give notice in accordance with this paragraph then
notice of the matters referred to in this Condition shall be given in
accordance with the preceding paragraph.
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WEBSITE means the website at the following address:
▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
or such other website as the Principal Paying Agent shall notify the
Note Trustee, the Trustee, the Manager and the Class A-1 Noteholders, in
accordance with this Condition, from time to time.
All consents and approvals in these Conditions are to be given in
writing.
13. MEETINGS OF VOTING MORTGAGEES AND MEETINGS OF CLASS A-1 NOTEHOLDERS;
MODIFICATIONS; CONSENTS; WAIVER
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The Security Trust Deed contains provisions for convening meetings of
the Voting Mortgagees to, among other things, enable the Voting
Mortgagees to direct or consent to the Security Trustee taking or not
taking certain actions under the Security Trust Deed, for example to
enable the Voting Mortgagees to direct the Security Trustee to enforce
the Security Trust Deed.
The Note Trust Deed contains provisions permitting Class A-1 Noteholders
to act in relation to any matter affecting their interests, including
the directing of the Note Trustee to direct the Security Trustee to
enforce the security under the Security Trust Deed, or the sanctioning
by Extraordinary Resolution of the Class A-1 Noteholders of a
modification of the Class A-1 Notes (including these Conditions) or the
provisions of any of the Transaction Documents, provided that no
modification of certain terms including, among other things, the date of
maturity of the Class A-1 Notes, or a modification which would have the
effect of altering the amount of interest payable in respect of a Class
A-1 Note or modification of the method of calculation of the interest
payable or of the date for payment of or interest payable in respect of
any Class A-1 Notes, reducing or cancelling the amount of principal
payable in respect of any Class A-1 Notes or altering the currency of
payment of any Class A-1 Notes or an alteration of the date or priority
of redemption of, the Class A-1 Notes or altering the required
percentage of the aggregate Invested Amount of the Class A-1 Notes
required to consent or take any action, or an election to receive the
Stated Amount of the Notes instead of the Invested Amount in the event
of a call under Condition 5(i) or 5(j), or any other matter referred to
in clause 37.2 of the Note Trust Deed needing the approval of all
holders of Class A-1 Notes (any such modification being referred to
below as a BASIC TERMS MODIFICATION) shall be effective unless
sanctioned by all of the Class A-1 Noteholders. The quorum at any
meeting of Class A-1 Noteholders for passing an Extraordinary Resolution
shall be two or more persons holding or representing over 50% of the
aggregate Invested Amount of the Class A-1 Notes then outstanding or, at
any adjourned meeting, two or more persons being or representing Class
A-1 Noteholders whatever the aggregate Invested Amount of the Class A-1
Notes so held or represented, except that, at any meeting the business
of which includes the sanctioning of a Basic Terms Modification, the
necessary quorum for passing any such resolution shall be all of the
Class A-1 Noteholders. The Note Trust Deed contains provisions limiting
the powers of the Class A-1 Noteholders, among other things, to request
or direct the Note Trustee to take any action or to pass an effective
Extraordinary Resolution or a resolution passed under clause 37.2,
according to the effect thereof on the interests of the Class A-1
Noteholders. Except in certain circumstances, the Note Trust Deed
imposes no such limitations on the powers of the Class A-1 Noteholders,
the exercise of which will be binding on the Class A-1 Noteholders,
irrespective of the effect on their interests. An Extraordinary
Resolution or resolution effecting a Basic Terms Modification passed at
any meeting of Class A-1 Noteholders
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shall be binding on all Class A-1 Noteholders, whether or not they are
present at the meeting. The majority required for an Extraordinary
Resolution shall be 75% of the votes cast in respect of that
Extraordinary Resolution.
The Note Trust Deed permits the Note Trustee, the Manager and the
Trustee to, following the giving of notice to each Designated Rating
Agency, alter, add to or modify, by way of supplemental deed, the Note
Trust Deed (including the meeting and amendment provisions), the
Conditions (subject to the proviso more fully described in clause 37.2
of the Note Trust Deed or any other terms of that deed or the Conditions
to which it refers) or any Transaction Document so long as that
alteration, addition or modification is:
o to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
o in the opinion of the Note Trustee necessary to comply with the
provisions of any law or regulation or with the requirements of
any Government Agency;
o in the opinion of the Note Trustee appropriate or expedient as a
consequence of a change to any law or regulation or a change in
the requirements of any Government Agency (including, but not
limited to, an alteration, addition or modification which is in
the opinion of the Note Trustee appropriate or expedient as a
consequence of the enactment of a law or regulation or an
amendment to any law or regulation or ruling by the Commissioner
or Deputy Commissioner of Taxation or any governmental
announcement or statement, in any case which has or may have the
effect of altering the manner or basis of taxation of trusts
generally or of trusts similar to the Trust); or
o in the opinion of the Note Trustee not materially prejudicial to
the interests of the Class A-1 Noteholders as a whole,
and is undertaken in a manner and to the extent, permitted by the
Transaction Documents.
Subject to clause 37.2 of the Note Trust Deed, where, in the opinion of
the Note Trustee, a proposed alteration, addition or modification to
this deed, other than an alteration, addition or modification referred
to above, is materially prejudicial or likely to be materially
prejudicial to the interests of Class A-1 Noteholders as a whole or any
Class of Class A-1 Noteholders, the Note Trustee, the Manager and the
Trustee may make that alteration, addition or modification only if
sanctioned in writing by holders of at least 75% of the aggregate
Invested Amount of the Class A-1 Notes.
The Note Trustee may also, in accordance with the Note Trust Deed and
without the consent of the Class A-1 Noteholders (but not in
contravention of an Extraordinary Resolution or a resolution passed in
accordance with clause 37.2 of the Note Trust Deed), waive or authorise
any breach or proposed breach of the Class A-1 Notes (including these
Conditions) or any Transaction Document or determine that any Event of
Default or any condition, event or act which with the giving of notice
and/or lapse of time and/or the issue of a certificate would constitute
an Event of Default shall not, or shall not subject to specified
conditions, be treated as such. Any such modification, waiver,
authorisation or determination shall be binding on the Class A-1
Noteholders and, if, but only if, the Note Trustee so requires, any such
modification shall be notified to the Class A-1 Noteholders in
accordance with Condition 12 as soon as practicable.
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The Manager shall distribute to all Class A-1 Noteholders and the
Designated Rating Agencies a copy of any amendments made in accordance
with the procedure described in that clause 19 of the Note Trust Deed
and under the relevant Condition 12 as soon as reasonably practicable
after the amendment has been made.
Any amendment made will be binding on the Class A-1 Noteholders.
14. INDEMNIFICATION AND EXONERATION OF THE NOTE TRUSTEE AND THE SECURITY
TRUSTEE
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(a) The Note Trust Deed and the Security Trust Deed contain
provisions for the indemnification of the Note Trustee and the
Security Trustee (respectively) and for their relief from
responsibility, including provisions relieving them from taking
proceedings to realise the security and to obtain repayment of
the Class A-1 Notes unless indemnified to their satisfaction.
Each of the Note Trustee and the Security Trustee is entitled to
enter into business transactions with the Issuer and/or any
other party to the Transaction Documents without accounting for
any profit resulting from such transactions. Except in the case
of negligence, fraud or breach of trust (in the case of the
Security Trustee) or negligence, fraud, or wilful default (in
the case of the Note Trustee), neither the Security Trustee nor
the Note Trustee will be responsible for any loss, expense or
liability which may be suffered as a result of any assets
secured by the Security Trust Deed, Mortgaged Property or any
deeds or documents of title thereto, being uninsured or
inadequately insured or being held by or to the order of the
Servicer or any of its affiliates or by clearing organisations
or their operators or by any person on behalf of the Note
Trustee if prudently chosen in accordance with the Transaction
Documents.
(b) Where the Note Trustee is required to express an opinion or make
a determination or calculation under the Transaction Documents,
the Note Trustee may appoint or engage such independent advisers
as the Note Trustee reasonably requires to assist in the giving
of that opinion or the making of that determination or
calculation and any properly incurred costs and expenses payable
to those advisers will be reimbursed to the Note Trustee by the
Issuer or if another person is expressly stated in the relevant
provision in a Transaction Document, that person.
15. LIMITATION OF LIABILITY OF THE ISSUER
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(A) GENERAL
Clause 30 of the Master Trust Deed applies to the obligations
and liabilities of the Issuer in relation to the Class A-1
Notes.
(B) LIABILITY OF ISSUER LIMITED TO ITS RIGHT OF INDEMNITY
(i) The Issuer enters into the Transaction Documents and
issues the Notes only in its capacity as trustee of the
Trust and in no other capacity (except where the
Transaction Documents provide otherwise). Subject to
paragraph (iii) below, a liability arising under or in
connection with the Transaction Documents or the
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Trust can be enforced against the Issuer only to the
extent to which it can be satisfied out of the assets
and property of the Trust which are available to satisfy
the right of the Issuer to be exonerated or indemnified
for the liability. This limitation of the Issuer's
liability applies despite any other provision of the
Transaction Documents and extends to all liabilities and
obligations of the Issuer in any way connected with any
representation, warranty, conduct, omission, agreement
or transaction related to the Transaction Documents or
the Trust.
(ii) Subject to paragraph (iii) below, no person (including
any Relevant Party) may take action against the Issuer
in any capacity other than as trustee of the Trust or
seek the appointment of a receiver (except under the
Security Trust Deed), or a liquidator, an administrator
or any similar person to the Issuer or prove in any
liquidation, administration or arrangement of or
affecting the Issuer.
(iii) The provisions of this Condition 15 shall not apply to
any obligation or liability of the Issuer to the extent
that it is not satisfied because under a Transaction
Document or by operation of law there is a reduction in
the extent of the Issuer's indemnification or
exoneration out of the assets of the Trust as a result
of the Issuer's fraud, negligence or Default.
(iv) It is acknowledged that the Relevant Parties are
responsible under the Transaction Documents for
performing a variety of obligations relating to the
Trust. No act or omission of the Issuer (including any
related failure to satisfy its obligations under the
Transaction Documents) will be considered fraud,
negligence or Default of the Issuer for the purpose of
paragraph (iii) of this Condition 15 to the extent to
which the act or omission was caused or contributed to
by any failure by any Relevant Party or any person who
has been delegated or appointed by the Issuer in
accordance with the Transaction Documents to fulfil its
obligations relating to the Trust or by any other act or
omission of a Relevant Party or any such person.
(v) In exercising their powers under the Transaction
Documents, each of the Issuer, the Security Trustee and
the Noteholders must ensure that no attorney, agent,
delegate, receiver or receiver and manager appointed by
it in accordance with a Transaction Document has
authority to act on behalf of the Issuer in a way which
exposes the Issuer to any personal liability and no act
or omission of any such person will be considered fraud,
negligence or Default of the Issuer for the purpose of
paragraph (iii).
(vi) In this Condition 15, RELEVANT PARTIES means each of the
Manager, the Servicer, the Calculation Agent, each
Paying Agent, the Note Registrar, the Note Trustee, the
Custodian, the Basis Swap Provider, the Fixed-Floating
Rate Swap Provider and the Currency Swap Provider and
any other provider of a Support Facility.
(vii) In this Condition 15, DEFAULT means a failure by the
Issuer to comply with an obligation which is expressly
imposed on it by the terms of a Transaction Document or
a written direction given by the Manager in accordance
with a Transaction Document (and in terms which are
consistent with the requirements of the Transaction
Documents) in circumstances where the Transaction
Documents
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require or contemplate that the Issuer will comply with
that direction; in each case within any period of time
specified in, or contemplated by, the relevant
Transaction Document for such compliance. However, it
will not be the Default of the Issuer if the Issuer does
not comply with an obligation or direction where the
Note Trustee or the Security Trustee directs the Issuer
not to comply with that obligation or direction.
(viii) Nothing in this clause limits the obligations expressly
imposed on the Issuer under the Transaction Documents.
16. GOVERNING LAW
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Except for:
(a) the Subscription Agreement for the Class A-1 Notes (as defined
in the Supplementary Terms Notice) which is governed by the law
of the State of New York;
(b) the Subscription Agreement for the Class A-2 Notes (as defined
in the Supplementary Terms Notice) which is governed by the law
of England; and
(c) the administration of the Note Trust (as defined in the Note
Trust Deed), including the exercise of the Note Trustee's powers
under clause 13 of the Note Trust Deed, which are both governed
by the law of the State of New York and in the event of any
inconsistency between the operation of the law of New South
Wales, Australia and the Law of the State of New York in respect
of the application of those powers, the law of the State of New
York will prevail to the extent of the inconsistency,
the Class A-1 Notes and the Relevant Documents are governed by, and
shall be construed in accordance with, the laws of New South Wales,
Australia.
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SUMMARY OF PROVISIONS RELATING TO THE CLASS A-1 NOTES
WHILE IN BOOK-ENTRY FORM
Each Class A-1 Note will initially be represented by typewritten book-entry
notes (the BOOK-ENTRY NOTES), without coupons, in the principal amount of
US$1,200,000,000. The Book-Entry Notes will be deposited with the Common
Depositary for DTC on or about the Closing Date. Upon deposit of the Book-Entry
Notes with the Common Depositary, DTC will credit each investor in the Class A-1
Notes with a principal amount of Class A-1 Notes for which it has subscribed and
paid.
The Book-Entry Note will be exchangeable for definitive Class A-1 Notes in
certain circumstances described below.
Each person who is shown in the Note Register as the holder of a particular
principal amount of Class A-1 Notes will be entitled to be treated by the Issuer
and the Note Trustee as a holder of such principal amount of Class A-1 Notes and
the expression Class A-1 Noteholder shall be construed accordingly, but without
prejudice to the entitlement of the holder of the Book-Entry Note to be paid
principal and interest thereon in accordance with its terms. Such persons shall
have no claim directly against the Issuer in respect of payment due on the Class
A-1 Notes for so long as the Class A-1 Notes are represented by a Book-Entry
Note and the relevant obligations of the Issuer will be discharged by payment to
the registered holder of the Book-Entry Note in respect of each amount so paid.
(A) PAYMENTS
Interest and principal on each Book-Entry Note will be payable by the Principal
Paying Agent to the Common Depositary.
Each of the persons appearing from time to time as the beneficial owner of a
Class A-1 Note will be entitled to receive any payment so made in respect of
that Class A-1 Note in accordance with the respective rules and procedures of
DTC. Such persons will have no claim directly against the Issuer in respect of
payments due on the Class A-1 Notes which must be made by the holder of the
relevant Book-Entry Note, for so long as such Book-Entry Note is outstanding.
A record of each payment made on a Book-Entry Note, distinguishing between any
payment of principal and any payment of interest, will be recorded in the Note
Register by the Principal Paying Agent and such record shall be prima facie
evidence that the payment in question has been made.
(B) EXCHANGE
The Book-Entry Note will be exchangeable for definitive Class A-1 Notes only if:
(i) the Trust Manager advises the Principal Paying Agent in writing that the
Clearing Agency is no longer willing or able properly to discharge its
responsibilities with respect to the Class A-1 Notes or the Clearing
Agency ceases to carry on business, and the Trust Manager is unable to
located a qualified successor; or
(ii) after the occurrence of an Event of Default the Class A-1 Note Owner's
representing beneficial interests aggregating to at least a majority of
the aggregate Invested Amount of the Class A-1 Notes advise the
Principal Paying Agent and Issuer through the Clearing Agency in writing
that the
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continuation of a book-entry system through the Clearing Agency is no
longer in the best interest of the Class A-1 Note Owners,
then the Principal Paying Agent shall notify all Class A-1 Note Owners and the
Issuer of the occurrence of any such event and of the availability of Definitive
Class A-1 Notes to Class A-1 Note Owners requesting the same. Upon the surrender
of the Book-Entry Notes to the Issuer by the Clearing Agency, and the delivery
by the Clearing Agency of the relevant registration instructions to the Issuer,
the Issuer shall execute and procure the Principal Paying Agent to authenticate
the Definitive Class A-1 Notes in accordance with the instructions of the
Clearing Agency.
(C) NOTICES
So long as the Notes are represented by the Book-Entry Note and the same is/are
held on behalf of the Clearing Agency, notices to Class A-1 Noteholders may be
given by delivery of the relevant notice to the Clearing Agency for
communication by them to entitled account holders in substitution for delivery
to each Class A-1 Noteholder as required by the Conditions.
(D) CANCELLATION
Cancellation of any Class A-1 Note required by the Conditions will be effected
by reduction in the principal amount of the relevant Book-Entry Note.
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SCHEDULE 3
FORM OF CLASS A-2 BOOK-ENTRY NOTE
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THIS CLASS A-2 BOOK-ENTRY NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW,
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CLASS A-2 NOTES, MAY NOT BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES, OR FOR THE ACCOUNT OR
BENEFIT OF U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT)
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE LAWS OF ANY STATE OF THE
UNITED STATES.
THIS CLASS A-2 BOOK-ENTRY NOTE IS A GLOBAL BOND FOR THE PURPOSES OF SECTION
128F(10) OF THE INCOME TAX ASSESSMENT ACT 1936 OF THE COMMONWEALTH OF AUSTRALIA.
REGISTERED ISIN No .................. XS0268688669
Common Code .............. 026868866
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
(ABN 81 004 029 841)
(a limited liability company incorporated in Australia)
in its capacity as trustee of the Crusade Global Trust No. 2 of 2006
CLASS A-2 BOOK-ENTRY NOTE
representing
(euro)450,000,000
Class A-2 Mortgage Backed Floating Rate Notes Due on the Final Maturity
Date falling in November 2037
This Note is a Class A-2 Book-Entry Note without principal or interest in
respect of a duly authorised issue of Notes of Perpetual Trustees Consolidated
Limited in its capacity as trustee of the Crusade Global Trust No. 2 of 2006
(the "TRUST") (the "ISSUER"), designated as specified in the title above (the
"NOTES"), in an initial aggregate principal amount of
(euro)450,000,000
and (a) constituted by a Master Trust Deed (the "MASTER TRUST DEED") dated 14
March 1998 between the Issuer, ▇▇.▇▇▇▇▇▇ Bank Limited and Crusade Management
Limited (the "MANAGER"), by a Supplementary Terms Notice (the "SUPPLEMENTARY
TERMS NOTICE") dated on or about 19 September 2006 between (among
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others) the Issuer, the Security Trustee (as defined herein), ▇▇.▇▇▇▇▇▇
Custodial Pty Limited, The Bank of New York (the note trustee for the time being
referred to as the "NOTE TRUSTEE") as trustee for the holders for the time being
of the Class A-2 Notes (the "CLASS A-2 NOTEHOLDERS") and the Manager, and by the
Conditions; (b) issued subject to a Note Trust Deed dated 19 September 2006 (the
"NOTE TRUST DEED") between (among others) the Issuer, the Manager and the Note
Trustee; and (c) secured by a Security Trust Deed (the "SECURITY TRUST DEED")
dated 14 September 2006 between the Issuer, the Manager, P.T. Limited (ABN 67
004 454 666) (the "SECURITY TRUSTEE") which expression shall include its
successor for the time being as security trustee under the Security Trust Deed)
and the Note Trustee. References to the Conditions (or to any particular
numbered Condition) shall be to the Terms and Conditions of the Class A-2 Notes
set out in Schedule 4 to the Note Trust Deed but with the deletion of those
provisions which are applicable only to Class A-2 Notes in definitive form.
Terms and expressions defined in the Note Trust Deed and the Conditions shall,
save as expressly stated otherwise, bear the same meanings when used herein.
If the Issuer is obliged to issue Definitive Class A-2 Notes under clause 3.4 of
the Note Trust Deed, this Class A-2 Book-Entry Note will be exchanged in whole
at the offices of the Principal Paying Agent at ▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (or such other place outside Australia and any of
its territories and possessions and other areas subject to its jurisdiction as
the Note Trustee may agree) for Definitive Class A-2 Notes and the Issuer shall
procure that the Principal Paying Agent issues and delivers, in full exchange
for this Class A-2 Book-Entry Note, Definitive Class A-2 Notes in aggregate
principal amount equal to the principal amount of all Class A-2 Notes
represented by this Class A-2 Book-Entry Note. The Issuer is not obliged to
issue Definitive Class A-2 Notes until the later of:
(a) the expiry of 40 days after the later of the Note Issue Date and the
date on which the relevant Class A-2 Notes are first offered to persons
other than distributors in reliance on Regulation S of the Securities
Act 1933, as amended; and
(b) 30 days after it becomes aware of the occurrence of the relevant event
or request in clause 3.4(a) of the Note Trust Deed.
If the Issuer fails to meet its obligations to issue Definitive Class A-2 Notes,
this shall be without prejudice to the Issuer's obligations with respect to the
Class A-2 Notes under the Note Trust Deed, the Master Trust Deed, the
Supplementary Terms Notice and this Class A-2 Book-Entry Note.
The Issuer, in its capacity as trustee of the Trust, subject to this Class A-2
Book-Entry Note and subject to and in accordance with the Conditions and the
Note Trust Deed promises to pay to The Bank of New York Depository (Nominees)
Limited, or registered assigns of this Class A-2 Book-Entry Note the principal
sum of (euro)450,000,000 (four hundred and fifty million Euros) or such lesser
amount as may from time to time be represented by this Class A-2 Book-Entry Note
(or such part of that amount as may become repayable under the Conditions, the
Supplementary Terms Notice and the Note Trust Deed) on such date(s) that
principal sum (or any part of it) becomes repayable in accordance with the
Conditions, the Supplementary Terms Notice and the Note Trust Deed and to pay
interest in arrears on each Quarterly Payment Date (as defined in Condition 4)
on the Invested Amount of this Class A-2 Book-Entry Note at rates determined in
accordance with Condition 4 and all subject to and in accordance with the
certification requirements described in this Class A-2 Book-Entry Note, the
Conditions, the Supplementary Terms Notice and the Note Trust Deed, which shall
be binding on the registered holder of this Class A-2 Book-Entry Note (as if
references in the Conditions to the Notes and the Noteholders were references to
this Class A-2 Book-Entry Note and the
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registered holder of this Class A-2 Book-Entry Note respectively and as if the
same had been set out in this Class A-2 Book-Entry Note in full with all
necessary changes, except as otherwise provided in this Class A-2 Book-Entry
Note).
Payments of interest on this Class A-2 Book-Entry Note payable on each Quarterly
Payment Date, together with the instalment of principal, if any, shall be
payable by the Principal Paying Agent to the registered holder of the Class A-2
Notes provided that no payment of interest may be made by the Issuer or any
Paying Agent in the Commonwealth of Australia or its respective territories or
possessions. Each of the persons appearing from time to time in the records of
Euroclear Bank S.A./N.V., as operator of Euroclear, or of Clearstream Banking,
Societe Anonyme, as the holder of a beneficial interest in the Class A-2 Note
will be entitled to receive any payment so made in respect of that Class A-2
Note in accordance with the respective rules and procedures of Euroclear or, as
the case may be, Clearstream, Luxembourg. Such persons will have no claim
directly against the Issuer in respect of payments due on the Class A-2 Notes
which must be made by the registered holder of this Class A-2 Book-Entry Note,
for so long as this Class A-2 Book-Entry Note is outstanding.
On any payment of principal and/or interest on the Class A-2 Notes as set out
above details of that payment shall be endorsed by or on behalf of the Issuer in
the Note Register and, in the case of payments of principal, the Invested Amount
of the Class A-2 Notes shall be reduced for all purposes by the amount so paid
and endorsed in the Note Register. Any such record shall be prima facie evidence
that the payment in question has been made.
If the Issuer is obliged to issue Definitive Class A-2 Notes under clause 3.4 of
the Note Trust Deed, the Book-Entry Notes will be surrendered to the Trustee by
the Clearing Agency and the Clearing Agency will deliver the relevant
registration instructions to the Trustee. Definitive Class A-2 Notes shall be
executed by the Trustee and authenticated by the Principal Paying Agent and
delivered as per the instructions of the Clearing Agency.
The Definitive Class A-2 Notes to be issued on that exchange will be in
registered form each in the denomination of (euro)100,000 and integral multiples
thereof. If the Issuer fails to meet its obligations to issue Definitive Class
A-2 Notes, this shall be without prejudice to the Issuer's obligations with
respect to the Notes under the Note Trust Deed, the Master Trust Deed, the
Supplementary Terms Notice and this Class A-2 Book-Entry Note.
On an exchange of this Class A-2 Book-Entry Note, this Class A-2 Book-Entry Note
shall be surrendered to the Principal Paying Agent.
This Class A-2 Book-Entry Note shall not become valid for any purpose unless and
until the Certificate of Authentication attached has been signed by an
Authorised Signatory of the Principal Paying Agent (as defined in the
Supplementary Terms Notice).
This Class A-2 Book-Entry Note is governed by, and shall be construed in
accordance with, the laws of New South Wales, Australia.
IN WITNESS the Issuer has caused this Class A-2 Book-Entry Note to be signed
manually or in facsimile by a person duly authorised on its behalf.
Perpetual Trustees Consolidated Limited in its capacity as trustee of the
Crusade Global Trust No. 2 of 2006
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By:
--------------------------------------------
Authorised Signatory
IMPORTANT NOTICE:
(a) The Class A-2 Notes do not represent deposits or other liabilities of
▇▇.▇▇▇▇▇▇ Bank Limited, ABN 92 055 513 070 ("▇▇.▇▇▇▇▇▇") or associates
of ▇▇.▇▇▇▇▇▇.
(b) The holding of Class A-2 Notes is subject to investment risk, including
possible delays in repayment and loss of income and principal invested.
(c) None of ▇▇.▇▇▇▇▇▇, any associate of ▇▇.▇▇▇▇▇▇, Perpetual Trustees
Consolidated Limited, the Security Trustee, the Note Trustee, the
Principal Paying Agent, the Note Registrar, the Calculation Agent, any
Paying Agent nor any Note Manager in any way stands behind the capital
value and/or performance of the Class A-2 Notes or the assets of the
Trust except to the limited extent provided in the Transaction Documents
for the Trust (which, for the avoidance of doubt, does not apply to the
Note Trustee, the Principal Paying Agent, the Note Registrar, any Paying
Agent nor the Calculation Agent).
(d) None of ▇▇.▇▇▇▇▇▇, Perpetual Trustees Consolidated Limited, the
Custodian (as defined in the Supplementary Terms Notice), the Servicer
(as defined in the Supplementary Terms Notice), the Manager, the
Security Trustee, the Note Trustee, the Principal Paying Agent, the Note
Registrar, any Paying Agent, the Calculation Agent, the Currency Swap
Provider (as defined in the Supplementary Terms Notice) or any of the
Note Managers (as defined in the Supplementary Terms Notice) guarantees
the payment of interest or the repayment of principal due on the Class
A-2 Notes.
(e) None of the obligations of the Issuer or the Manager are guaranteed in
any way by ▇▇.▇▇▇▇▇▇ or any associate of ▇▇.▇▇▇▇▇▇ or associate of
Perpetual Trustees Consolidated Limited.
(f) Without limiting the Conditions, the Issuer's liability to make payments
in respect of the Class A-2 Notes is limited to its right of indemnity
from the assets of the Trust from time to time available to make such
payments under the Master Trust Deed and Supplementary Terms Notice. All
claims against the Issuer in relation to the Class A-2 Notes can be
enforced against the Issuer only to the extent to which it can be
satisfied out of the assets of the Trust out of which the Issuer is
actually indemnified for the liability except in the case of (and to the
extent of) any fraud, negligence or Default (as defined in the Master
Trust Deed) on the part of the Issuer.
(g) The Noteholder is required to accept any distribution of moneys under
the Security Trust Deed in full and final satisfaction of all moneys
owing to it, and any debt represented by any shortfall that exists after
any such final distribution is extinguished.
CERTIFICATE OF AUTHENTICATION
This Class A-2 Book-Entry Note is to be authenticated by The Bank of New York
and until so authenticated shall not be valid for any purpose.
THE BANK OF NEW YORK as Principal Paying Agent
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ASSIGNMENT
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Social Security or taxpayer I.D. or other identifying number of assignee
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
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(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
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attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated:
-------------------------- -------------------------------------
Authorised Signatory:
Dated:
-------------------------- -------------------------------------
____________________________
* NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular without alteration, enlargement or any change whatsoever.
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SCHEDULE 4
TERMS AND CONDITIONS OF THE CLASS A-2 NOTES
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The following, subject to amendments in accordance with the Note Trust Deed, are
the terms and conditions of the Class A-2 Notes, substantially as they will
appear on the reverse of the Class A-2 Notes in definitive form. Class A-2 Notes
in definitive form will only be issued in certain circumstances. While the Class
A-2 Notes remain in book-entry form, the same terms and conditions govern them,
except to the extent that they are appropriate only to the Class A-2 Notes in
definitive form. For a summary of the provisions relating to the Class A-2 Notes
in book-entry form, see the summary at the end of this Section.
Paragraphs in italics are included by way of explanation only, and do not
constitute part of the terms and conditions of the Class A-2 Notes.
The issue of (euro)450,000,000 Mortgage Backed Pass Through Floating Rate Class
A-2 Notes due November 2037 (the CLASS A-2 NOTES) was authorised by a resolution
of the Board of Directors of the Issuer passed on or about 29 August 2006, and
are issued in conjunction with US$1,200,000,000 Mortgage Backed Pass Through
Floating Rate Class A-1 Notes due November 2037 (the CLASS A-1 NOTES),
A$600,000,000 Mortgage Backed Pass Through Floating Rate Class A-3 Notes due
November 2037 (the CLASS A-3 NOTES, and together with the Class A-1 Notes, and
the Class A-2 Notes, the CLASS A NOTES) and A$53,200,000 Mortgage Backed Pass
Through Floating Rate Class B Notes due November 2037 (the CLASS B NOTES) and
A$24,300,000 Mortgaged Backed Pass Through Floating Rate Class C Notes due
November 2037 (the CLASS C NOTES) (the Class B Notes, the Class C Notes and the
Class A-3 Notes, together, are the A$ NOTES and the $A Notes and the Class A-1
Notes and the Class A-2 Notes, together, are the NOTES) by Perpetual Trustees
Consolidated Limited, in its capacity as trustee of the Crusade Global Trust No.
2 of 2006 (the TRUST) (in such capacity, the ISSUER).
The Notes are:
(a) issued subject to a Master Trust Deed (the "MASTER TRUST DEED") dated 14
March 1998 between Perpetual Trustees Consolidated Limited, Crusade
Management Limited (ABN 90 072 715 916) (in such capacity, the "MANAGER"
and, in the capacity of residual income beneficiary under the Trust, the
"RESIDUAL INCOME BENEFICIARY") and ▇▇.▇▇▇▇▇▇ Bank Limited (ABN 92 055
513 070) ("▇▇.▇▇▇▇▇▇"), a Supplementary Terms Notice (the "SUPPLEMENTARY
TERMS NOTICE") dated on or around 19 September 2006 between (among
others) the Issuer, The Bank of New York (the Note Trustee for the time
being, referred to as the "NOTE TRUSTEE") as trustee for the holders for
the time being of the Class A-1 Notes (the "CLASS A-1 NOTEHOLDERS") and
the Class A-2 Notes (the "CLASS A-2 NOTEHOLDERS" and, together with the
Class A-1 Noteholders (the "RELEVANT NOTEHOLDERS") and the Relevant
Noteholders together with the holders for the time being of the Class
A-3 Notes, the "CLASS A NOTEHOLDERS"), of the Class B Notes (the "CLASS
B NOTEHOLDERS") and of the Class C Notes (the "CLASS C NOTEHOLDERS"),
the Class A Noteholders, the Class B Noteholders and the Class C
Noteholders together being, the "NOTEHOLDERS" and the Class A-3
Noteholders, the Class B Noteholders and the Class C Noteholders
together being the "A$ NOTEHOLDERS") and the Manager, and these terms
and conditions (the "CONDITIONS");
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(b) in the case of the Class A-1 Notes and the Class A-2 Notes, issued
subject to a Note Trust Deed dated on or around 19 September 2006 (the
"NOTE TRUST DEED") between the Issuer, the Manager and the Note Trustee;
and
(c) secured by a Security Trust Deed (the "SECURITY TRUST DEED") dated 14
September 2006 between the Issuer, the Manager, the Note Trustee and
P.T. Limited (ABN 67 004 454 666) (the security trustee for the time
being, referred to as the "SECURITY TRUSTEE").
The statements set out below include summaries of, and are subject to the
detailed provisions of, the Master Trust Deed, the Supplementary Terms Notice,
the Security Trust Deed and the Note Trust Deed. Certain words and expressions
used herein have the meanings defined in those documents.
In accordance with an agency agreement (the "AGENCY AGREEMENT") dated on or
around 19 September 2006 between the Issuer, the Manager, the Note Trustee and
The Bank of New York as principal paying agent (the "PRINCIPAL PAYING AGENT",
which expression includes its successors as Principal Paying Agent under the
Agency Agreement) and The Bank of New York, as calculation agent (the
"CALCULATION AGENT", which expression includes its successors as Calculation
Agent under the Agency Agreement), and under which further paying agents may be
appointed (together with the Principal Paying Agent, the "PAYING AGENTS", which
expression includes the successors of each paying agent as such under the Agency
Agreement and any additional paying agents appointed), payments in respect of
the Class A-2 Notes will be made by the Paying Agents and the Calculation Agent
will make the determinations specified in the Agency Agreement.
The Class A-2 Noteholders will be entitled (directly or indirectly) to the
benefit of, will be bound by, and will be deemed to have notice of, all the
provisions of the Conditions, the Master Trust Deed, the Supplementary Terms
Notice, the Security Trust Deed, the Note Trust Deed, the Servicing Agreement
(the "SERVICING AGREEMENT") dated 14 March 1998 and made between Perpetual
Trustees Consolidated Limited, the Manager and ▇▇.▇▇▇▇▇▇ as servicer (together
with any substitute or successor, the "SERVICER"), the Custodian Agreement (the
"CUSTODIAN AGREEMENT") dated 14 March 1998 and made between Perpetual Trustees
Consolidated Limited, the Manager and ▇▇.▇▇▇▇▇▇ Custodial Pty Ltd as custodian
(together with any substitute or successor, the "CUSTODIAN") and the Indemnity
(the "INDEMNITY") dated 14 March 1998 between ▇▇.▇▇▇▇▇▇ as indemnifier (in such
capacity, the "INDEMNIFIER"), the Manager, the Custodian and Perpetual Trustees
Consolidated Limited (together with the agreements with respect to the Basis
Swap, the Fixed-Floating Rate Swap and the Currency Swap (as each such term is
defined below), those documents, together with certain other transaction
documents, the "TRANSACTION DOCUMENTS"). Copies of the Transaction Documents are
available for inspection at the principal office of the Note Trustee, being at
the date hereof ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇.
In connection with the issue of the Notes, the Issuer has entered into an ISDA
(defined below) master interest rate exchange agreement dated on or around 19
September 2006 with Crusade Management Limited (the "BASIS SWAP PROVIDER")
together with one confirmation relating thereto dated on or around 19 September
2006 (the "BASIS SWAP"). The Issuer has also entered into an ISDA master
interest rate exchange agreement dated on or around 19 September 2006 with
Crusade Management Limited (the "FIXED-FLOATING RATE SWAP PROVIDER") together
with one confirmation relating thereto dated on or around 19 September 2006 (the
"FIXED-FLOATING RATE SWAP"). The Issuer has also entered into an ISDA master
currency exchange agreement dated on or around 19 September 2006 with Credit
Suisse (USA) Inc. (the "CURRENCY SWAP PROVIDER" and, together with the Basis
Swap Provider and the Fixed-Floating Rate Swap Provider, the "SWAP PROVIDERS")
together with one schedule and confirmation relating thereto dated on or around
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19 September 2006 in respect of the swap transaction relating to the Class A-2
Notes (the "CURRENCY SWAP").
Each Class A-2 Note, whether in the form of a Class A-2 Book-Entry Note or a
Definitive Class A-2 Note will bear the following legend: "THIS CLASS A-2 NOTE
HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED, (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO THE DATE THAT IS 40
DAYS AFTER THE LATER OF THE CLOSING DATE AND THE COMMENCEMENT OF THE OFFERING OF
THE CLASS A-2 NOTES, MAY NOT BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES, OR FOR THE ACCOUNT OR BENEFIT OF U.S.
PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH ANY APPLICABLE LAWS OF ANY STATE OF THE UNITED STATES."
Each Book-Entry Note will also bear the following legend: "This book-entry note
is a global bond for the purposes of section 128F(10) of the Income Tax
Assessment Act 1936 of the Commonwealth of Australia".
1. FORM, DENOMINATION AND TITLE
The Class A-2 Notes are issued in registered form, in minimum denominations of
(euro)100,000 and integral multiples thereof.
Each Class A-2 Note (whether in global or definitive form) is not a document of
title. Title shall be determined by entry in the Note Register and only the duly
registered holder from time to time is entitled to payments in respect of a
Class A-2 Note.
Each Class A-2 Note will be represented initially by a book-entry note in
registered form (each a "CLASS A-2 BOOK-ENTRY NOTE") registered in the name of
The Bank of New York Depository (Nominees) Limited and deposited with the Common
Depository in respect of the Class A-2 Notes. Beneficial interests in the Class
A-2 Book-Entry Notes will be shown on, and transfers thereof will be effected
only through, records maintained by Euroclear or Clearstream, Luxembourg and
their participants and pursuant to the terms of the Note Trust Deed including
restrictions on transfer contained therein. Euroclear and Clearstream,
Luxembourg may hold interests in the Class A-2 Book-Entry Notes on behalf of
persons who have accounts with Euroclear and Clearstream, Luxembourg through
accounts maintained in the names of Euroclear or Clearstream, Luxembourg.
If the Issuer is obliged to issue Definitive Class A-2 Notes under clause 3.4 of
the Note Trust Deed, interests in the applicable Class A-2 Book-Entry Note will
be transferred to the beneficial owners thereof in the form of Definitive Class
A-2 Notes, without interest coupons, in the denominations set forth above. A
Definitive Class A-2 Note will be issued to each Class A-2 Noteholder in respect
of its registered holding or holdings of Class A-2 Notes against delivery by
such Class A-2 Noteholder of a written order containing instructions and such
other information as the Issuer and The Bank of New York, acting as a note
registrar in relation to the Class A-2 Notes (the "NOTE REGISTRAR") may require
to complete, execute and deliver such Definitive Class A-2 Notes. In such
circumstances, the Issuer will cause sufficient Definitive Class A-2 Notes to be
executed and delivered to the Note Registrar for completion, authentication (by
the Principal Paying Agent) and dispatch to the relevant Class A-2 Noteholders.
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2. STATUS, SECURITY AND RELATIONSHIP BETWEEN THE NOTES
The Notes are secured by a floating security over all of the assets of the Trust
(which include, among other things, the Purchased Loans (as defined below) and
the Mortgages (as defined below) and related securities) granted by the Issuer
under the Security Trust Deed) (the "ASSETS") and within each class will rank
pari passu and rateably without any preference or priority among themselves.
The Class A-2 Notes are issued subject to the Master Trust Deed and the
Supplementary Terms Notice and are secured by the same security as secures the
A$ Notes and the Class A-1 Notes. The Class A-2 Notes, the Class A-1 Notes and
the Class A-3 Notes will rank in priority to the Class B Notes and Class C Notes
in the event of the security being enforced and in respect of principal and
interest (as set out in Conditions 4 and 5).
The proceeds of the issue of the Class A-1 Notes, the Class A-2 Notes and the A$
Notes are to be used by the Issuer to purchase an equitable interest in certain
housing loans (the "LOANS") and certain related mortgages (the "MORTGAGES") from
▇▇.▇▇▇▇▇▇ as an approved seller (the "APPROVED SELLER"), establish the Liquidity
Reserve and to invest in such Authorised Investments as the Manager may specify
from time to time.
In the event that the security for the Class A-2 Notes is enforced and the
proceeds of such enforcement are insufficient, after payment of all other claims
ranking in priority to or pari passu with the Class A Notes under the Security
Trust Deed, to pay in full all principal and interest and other amounts
whatsoever due in respect of the Class A Notes, then the Class A Noteholders
shall have no further claim against the Issuer in respect of any such unpaid
amounts.
The net proceeds of realisation of the Assets of the Trust (including following
enforcement of the Security Trust Deed) may be insufficient to pay all amounts
due to the Noteholders. Save in certain limited circumstances the other assets
of the Issuer will not be available for payment of any shortfall arising and all
claims in respect of such shortfall shall be extinguished (see further Condition
15). None of the Servicer, the Manager, ▇▇.▇▇▇▇▇▇, the Note Trustee, the
Security Trustee, the Swap Providers, the Paying Agents, the Calculation Agent
or the Note Managers (as defined in the Supplementary Terms Notice) has any
obligation to any Noteholder for payment of any amount by the Issuer in respect
of the Notes.
The Note Trust Deed contains provisions requiring the Note Trustee to have
regard to the interests of Class A-2 Noteholders as regards all the powers,
trusts, authorities, duties and discretions of the Note Trustee (except where
expressly provided otherwise).
The Security Trust Deed contains provisions requiring the Security Trustee,
subject to the other provisions of the Security Trust Deed, to give priority to
the interests of the Class A Noteholders, if there is a conflict between the
interest of such Noteholders and any other Voting Mortgagee (as defined below).
3. COVENANTS OF THE ISSUER
So long as any of the Class A-2 Notes remains outstanding, the Issuer has made
certain covenants for the benefit of the Noteholders which are set out in the
Master Trust Deed.
These covenants include the following:
(a) The Issuer shall act continuously as trustee of the Trust until the
Trust is terminated as provided by the Master Trust Deed or the Issuer
has retired or been removed from office in the manner provided under the
Master Trust Deed.
(b) The Issuer shall:
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(i) act honestly and in good faith and comply with all relevant
material laws in the performance of its duties and in the
exercise of its discretions under the Master Trust Deed;
(ii) subject to the Master Trust Deed, exercise such diligence and
prudence as a prudent person of business would exercise in
performing its express functions and in exercising its
discretions under the Master Trust Deed, having regard to the
interests of the Noteholders and other creditors and
beneficiaries of the Trust;
(iii) use its best endeavours to carry on and conduct its business in
so far as it relates to the Master Trust Deed in a proper and
efficient manner;
(iv) keep, or ensure that the Manager keeps, accounting records which
correctly record and explain all amounts paid and received by
the Issuer;
(v) keep the Trust separate from each other trust which is
constituted under the Master Trust Deed and from its own assets
and account for assets and liabilities of the Trust separately
from those of other trusts constituted under the Master Trust
Deed and from its own assets and liabilities;
(vi) do everything and take all such actions which are necessary
(including obtaining all appropriate authorisations which relate
to it as trustee of the Trust and taking all actions necessary
to assist the Manager to obtain all other appropriate
authorisations) to ensure that it is able to exercise all its
powers and remedies and perform all its obligations under the
Master Trust Deed, the Transaction Documents and all other
deeds, agreements and other arrangements entered into by the
Issuer under the Master Trust Deed;
(vii) not engage in any business or activity in respect of the Trust
except as contemplated or required by the Transaction Documents;
(viii) except as contemplated or required by the Transaction Documents,
maintain an independent and arm's length relationship with its
related bodies corporate in relation to dealings affecting the
Trust;
(ix) except as contemplated or required by the Transaction Documents,
not, in respect of the Trust, guarantee or become obligated for
the debts of any other entity or hold out its credit as being
available to settle the obligations of others; and
(x) comply with the rules and regulations of any stock exchange on
which any Note is listed from time to time (the STOCK EXCHANGE);
and
(xi) within 45 days of notice from the Manager to do so, remove any
of its agents or delegates that breaches any obligation imposed
on the Issuer under the Master Trust Deed or any other
Transaction Document where the Manager believes it will have a
Material Adverse Affect.
(c) Except as provided in any Transaction Document (and other than the
charge given to the Security Trustee), the Issuer shall not, nor shall
it permit any of its officers to, sell, mortgage, charge or otherwise
encumber or part with possession of any Asset of the Trust.
(d) The Issuer covenants that it will duly observe and perform the covenants
and obligations of the Master Trust Deed, and the Issuer will be
personally liable to the Servicer, the Noteholders, the Residual Income
Beneficiary, the Note Managers, the Note Trustee or other creditors of
the Trust, as the case may be, only to the extent that there has been a
reduction in its indemnity from the Assets as a result of its
negligence, fraud or Default (as defined in Condition 15(b)(vii)
"Liability of Trustee limited to its
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right of indemnity"). The Issuer is not responsible for the acts or
omissions of its agents and delegates (including persons referred to in
clause 17.6 of the Master Trust Deed) selected by the Issuer in good
faith and using reasonable care, except where the Issuer expressly
instructs the agent or delegate to do (or omit to do) the relevant act,
if the Issuer is aware of the default of the agent or delegate and does
not take the action available to it under the Transaction Documents to
address the act or omission or where the Transaction Documents expressly
provide that the Issuer is so liable.
(e) The Issuer will open and operate certain bank accounts in accordance
with the Master Trust Deed and the Supplementary Terms Notice.
(f) Subject to the Master Trust Deed and any Transaction Document to which
it is a party, the Issuer shall act on all directions given to it by the
Manager in accordance with the terms of the Master Trust Deed.
(g) The Issuer shall properly perform the functions which are necessary for
it to perform under all Transaction Documents in respect of the Trust.
4. INTEREST
(A) PAYMENT DATES
Each Class A-2 Note bears interest on its Invested Amount (as defined below)
from and including 21 September 2006 or such later date as may be agreed between
the Issuer and the Joint Managers (as defined in the Subscription Agreement) for
the issue of the Class A-2 Notes (the "CLOSING DATE"). Interest in respect of
the Class A-2 Notes will be payable quarterly in arrears on 15 November 2006 in
respect of the period from (and including) the Closing Date and ending on (but
excluding) 15 November 2006 (the "FIRST QUARTERLY PAYMENT DATE"). If any Payment
Date would otherwise fall on a day which is not a Business Day, it shall be
postponed to the next day which is a Business Day, unless it would thereby fall
into the next calendar month, in which case the due date shall be brought
forward to the immediately preceding Business Day. The final Quarterly Payment
Date will be the earlier of the Final Maturity Date and the Payment Date on
which the Notes are redeemed in full.
"BUSINESS DAY" in these Conditions means any day, other than a Saturday, Sunday
or public holiday, on which Banks are open for business in London, New York,
Sydney and The Trans-European Real-Time Gross Settlement Express Transfer
(TARGET) System or any successor to it is open.
The period beginning on (and including) the Closing Date and ending on (but
excluding) the first Quarterly Payment Date, and each successive period
beginning on (and including) a Quarterly Payment Date and ending on (but
excluding) the next Quarterly Payment Date and the final period referred to
below is called a "QUARTERLY INTEREST PERIOD". Interest payable on a Class A-2
Note in respect of any Quarterly Interest Period or any other period will be
calculated on the basis of the actual number of days elapsed and a 360 day year.
Interest shall cease to accrue on any Class A-2 Note from (and
including):
(i) the date on which the Stated Amount of that Class A-2 Note is
reduced to zero (provided that interest shall thereafter begin
to accrue from (and including) any date on which the Stated
Amount of that Class A-2 Note becomes greater than zero); or
(ii) if the Stated Amount on the due date for redemption in full of
that Class A-2 Note is not zero, the due date for redemption in
full of that Class A-2 Note, unless, after the due date for
redemption, payment of principal due is improperly withheld or
refused, following which interest shall
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continue to accrue on the Invested Amount of the Class A-2 Note at the
rate from time to time applicable to the Class A-2 Notes until the later
of:
(A) the date on which the moneys in respect of that Class A-2 Note
have been received by the Note Trustee or the Principal Paying
Agent and notice to that effect is given in accordance with
Condition 12 "Notices"; and
(B) the Stated Amount of that Class A-2 Note has been reduced to
zero (provided that interest shall thereafter begin to accrue
from (and including) any date on which the Stated Amount of that
Class A-2 Note becomes greater than zero).
(B) INTEREST RATE
The rate of interest applicable from time to time to the Class A-2 Notes (the
"INTEREST RATE") will be determined by the Calculation Agent on the basis of the
following paragraphs.
On the second EURIBOR Business Day before the beginning of each Quarterly
Interest Period (each an "INTEREST DETERMINATION DATE"), the Calculation Agent
will determine "EURIBOR", which is the rate "EUR-EURIBOR - Telerate", as the
applicable Floating Rate Option under the Definitions of the International Swaps
and Derivatives Association, Inc. ("ISDA") incorporating the 2000 ISDA
Definitions, as amended and updated as at the Note Issue Date (the "ISDA
DEFINITIONS") being applicable for deposits in Euros for a period of three
months which appears on the Telerate Page 248 as of 11.00 am, Brussels time, on
the relevant Interest Determination Date. If such rate does not appear on the
Telerate Page 248, the rate for that Quarterly Interest Period will be
determined as if the Issuer and the Calculation Agent had specified
"EUR-EURIBOR-REFERENCE BANKS" as the applicable Floating Rate Option under the
ISDA Definitions. "EUR-EURIBOR-REFERENCE BANKS" means that the rate for a
Quarterly Interest Period for a Class A-2 Note will be determined on the basis
of the rates at which deposits in Euros are offered by four major banks in the
Euro-zone interbank market agreed to by the Calculation Agent and the Currency
Swap Provider (the "REFERENCE BANKS") at approximately 11.00 am, Brussels time,
on the relevant Interest Determination Date to prime banks in the Euro-zone
interbank market for a period of three months commencing on the first day of the
Quarterly Interest Period and in a Representative Amount (as defined in the ISDA
Definitions). The Calculation Agent will request the principal Euro-zone office
of each of the Reference Banks to provide a quotation of its rate. If at least
two such quotations are provided by Reference Banks to the Calculation Agent,
the rate for that Quarterly Interest Period will be the arithmetic mean of the
quotations. If fewer than two quotations are provided by Reference Banks to the
Calculation Agent following the Calculation Agent's request, the rate for that
Quarterly Interest Period will be the arithmetic mean of the rates quoted by
four major banks in the Euro-zone, selected by the Calculation Agent and the
Currency Swap Provider, at approximately 11.00 am, Brussels time, on that
Interest Determination Date for loans in Euros to leading European banks for a
period of 3 months, or in the case of the first Quarterly Interest Period, the
linear interpolation of 1 and 2 months, commencing on the first day of the
Quarterly Interest Period and in a Representative ▇▇▇▇▇▇. If no such rates are
available in the Euro-zone, then the rate for such Quarterly Interest Period
will be the most recently determined rate in accordance with this definition.
In this definition of EURIBOR, EURIBOR BUSINESS DAY means any day on which the
Trans-European Real-Time Gross Settlement Express Transfer (TARGET) System or
any successor to it is open.
There is no maximum or minimum Interest Rate.
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(C) DETERMINATION OF INTEREST RATE AND CALCULATION OF INTEREST
The Calculation Agent will, as soon as practicable after 11.00 am (Brussels
time) on each Interest Determination Date, determine the relevant Interest Rate
applicable to, and calculate the amount of interest payable on each Class A-2
Note (the "INTEREST") for the immediately succeeding Quarterly Interest Period.
The Interest is calculated in accordance with clause 4.8 of the Supplementary
Terms Notice. The determination of the Interest Rate and the Interest by the
Calculation Agent shall (in the absence of manifest error) be final and binding
upon all parties.
(D) NOTIFICATION AND PUBLICATION OF INTEREST RATE AND INTEREST
The Calculation Agent will cause the Interest Rate and the Interest applicable
to the Class A-2 Notes for each Quarterly Interest Period and the relevant
Quarterly Payment Date to be notified to the Issuer, the Manager, the Note
Trustee, the Paying Agents and the Currency Swap Provider and the Manager on
behalf of the Issuer will cause the same to be published in accordance with
Condition 12 "Notices" on or as soon as possible after the date of commencement
of the relevant Quarterly Interest Period. The Interest and the relevant
Quarterly Payment Date so published may subsequently be amended (or appropriate
alternative arrangements made by way of adjustment) without notice in the event
of a shortening of the Quarterly Interest Period.
(E) DETERMINATION OR CALCULATION BY THE MANAGER
If the Calculation Agent at any time for any reason does not determine the
Interest Rate or calculate the Interest for the Class A-2 Notes, the Manager
shall do so and each such determination or calculation shall be deemed to have
been made by the Calculation Agent. In doing so, the Manager shall apply the
foregoing provisions of this Condition, with any necessary consequential
amendments, to the extent that it can do so, and, in all other respects it shall
do so in such a manner as it reasonably considers to be fair and reasonable in
all the circumstances.
(F) CALCULATION AGENT
The Issuer will procure that, so long as any of the Class A-2 Notes remains
outstanding, there will at all times be a Calculation Agent. The Issuer, or the
Manager with the consent of the Issuer (such consent not to be unreasonably
withheld), reserves the right at any time to terminate the appointment of the
Calculation Agent immediately on the occurrence of certain specified events or
otherwise, with the prior written approval of the Note Trustee, by giving not
less than 60 days' notice in writing to, inter alia, the Calculation Agent.
Notice of that termination will be given to the Class A-2 Noteholders, and any
stock exchange or other relevant authority on which the Class A-2 Notes are
listed and/or traded, in accordance with the Agency Agreement. If any person is
unable or unwilling to continue to act as the Calculation Agent, or if the
appointment of the Calculation Agent is terminated, the Issuer will, with the
prior written approval of the Note Trustee, appoint a successor Calculation
Agent to act as such in its place, provided that neither the resignation nor
removal of the Calculation Agent shall take effect until a successor approved by
the Note Trustee has been appointed.
(G) INCOME DISTRIBUTION
On each Monthly Payment Date, and based on the calculations, instructions and
directions provided to it by the Manager, the Issuer must pay or apply, or cause
to be paid or applied, out of Total Available Funds, in relation to the Monthly
Collection Period (defined below) ending immediately before that Monthly Payment
Date, the amounts specified in clause 5.1(a) of the Supplementary Terms Notice
in the order of priority specified in that clause.
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The Issuer shall only make a payment under any of the sub-paragraphs of clause
5.1(a) of the Supplementary Terms Notice if it is directed in writing by the
Manager to do so and only to the extent that any Total Available Funds remain
from which to make the payment after amounts with priority to that payment have
been distributed.
The Issuer is required to make payments of interest to the Class A-2 Notes on
each Quarterly Payment Date (as defined below) as more fully described in the
Supplementary Terms Notice.
Capitalised terms in this paragraph (g) have the same meaning given in the
Supplementary Terms Notice unless otherwise defined in this document.
5. REDEMPTION
Capitalised terms in this Condition 5 have the same meaning given in the
Supplementary Terms Notice unless otherwise defined in this document.
(A) MANDATORY REDEMPTION IN PART FROM PRINCIPAL COLLECTIONS AND
APPORTIONMENT OF PRINCIPAL COLLECTIONS BETWEEN THE CLASS A-1 NOTES, THE
CLASS A-2 NOTES AND THE A$ NOTES
The Class A-2 Notes shall be subject to mandatory redemption in part on any
Quarterly Payment Date if on that date there are any Principal Collections (as
defined below) available to be distributed in relation to such Class A-2 Notes.
The principal amount so redeemable in respect of each Class A-2 Note prior to
enforcement of the Security Trust Deed (each a "PRINCIPAL PAYMENT") on any
Quarterly Payment Date shall be the amount available for payment in respect of
the Class A-2 Notes as set out in Condition 5(b) on the day which is two
Business Days prior to the Quarterly Payment Date (the "QUARTERLY DETERMINATION
DATE") divided by the aggregate Invested Amount of all Class A-2 Notes,
multiplied by the Invested Amount of that Note, provided always that no
Principal Payment on a Class A-2 Note on any date may exceed the amount equal to
the Invested Amount of that Class A-2 Note at that date, less amounts charged
off as at that date and not to be reinstated on the next Quarterly Payment Date,
or to be charged off on the Quarterly Payment Date, as described in Condition
5(c) (that reduced amount being the "STATED AMOUNT" of that Class A-2 Note).
Notice of amounts to be redeemed will be provided by the Manager to the Issuer,
the Calculation Agent, the Principal Paying Agent and the Note Trustee.
Following notification of the amount to be redeemed for each Quarterly Payment
Date, the Manager will determine the Bond Factor for the Class A-2 Notes as of
such Quarterly Payment Date and will notify the Issuer, the Calculation Agent,
the Principal Paying Agent and the Note Trustee of this amount and shall cause
the Bond Factor to be published pursuant to Condition 12.
(B) PRINCIPAL ALLOCATIONS AND PAYMENTS ON NOTES
On each Monthly Payment Date, and based on the calculations, instructions and
directions provided to it by the Manager, the Issuer must allocate or cause to
be allocated or distribute or cause to be distributed out of relevant Principal
Collections, in relation to the Monthly Collection Period ending immediately
before that Monthly Payment Date the following amounts in the following order of
priority:
(i) first, in the manner and order of priority set out in clause 5.4 of the
Supplementary Terms Notice;
(ii) then:
(A) prior to the Stepdown Date, or at any time if a Trigger Event is
subsisting, in the manner and order of priority set out in
clause 5.5 of the Supplementary Terms Notice; and
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(B) on and after the Stepdown Date, provided that no Trigger Event
is subsisting, in the manner and order of priority set out in
clause 5.6 of the Supplementary Terms Notice.
The Issuer shall only make a payment under any of clause 5.4, 5.5 and
5.6 (as applicable) if it is directed in writing to do so by the Manager
and only to the extent that any Principal Collections remain from which
to make the payment after amounts with priority to that payment have
been distributed.
The Issuer is also required to make certain payments out of Principal
Collections (including allocating Principal Draws to Total Available
Funds) on each Monthly Payment Date in accordance with the Supplementary
Terms Notice.
(C) GENERAL
No amount of principal will be paid to a Noteholder in excess of the Invested
Amount applicable to the Notes held by that Noteholder.
(D) EXCESS AVAILABLE INCOME - REIMBURSEMENT OF CHARGE OFFS, PRINCIPAL DRAWS
AND LIQUIDITY DRAWS
(i) General
On each Monthly Determination Date, the Manager must determine, for a
Quarterly Collection Period, the amount (if any) by which the Total
Available Funds for the Monthly Collection Period exceeds the Total
Payments for the Monthly Collection Period or, in relation to any
Monthly Collection Period, the end of which is immediately followed by a
Quarterly Payment Date, any amounts retained or invested under clause
5.2(a) of the Supplementary Terms Notice on the two immediately
preceding Monthly Payment Dates for application on that Quarterly
Payment Date ("EXCESS AVAILABLE INCOME").
(ii) Distribution of Excess Available Income
Subject to clause 5.2(b) of the Supplementary Terms Notice, on each
Quarterly Determination Date, the Manager must apply any Excess
Available Income for the Quarterly Collection Period relating to that
Quarterly Determination Date in the order of priority specified in
clause 5.2(a) of the Supplementary Terms Notice.
(E) EXCESS DISTRIBUTION
The Issuer must at the written direction of the Manager pay any Excess
Distribution for a Quarterly Collection Period to the Residual Income
Beneficiary on the relevant Quarterly Payment Date. Once paid to the Residual
Income Beneficiary, the Issuer may not recover any Excess Distributions from the
Residual Income Beneficiary other than in the circumstances specified in clause
5.3 of the Supplementary Terms Notice.
(F) EURO ACCOUNT
The Issuer shall direct the Currency Swap Provider to pay all amounts
denominated in (euro) payable to the Issuer by the Currency Swap Provider under
the Currency Swap into the Euro Account or to the Principal Paying Agent under
the Agency Agreement on behalf of the Issuer.
If any of the Issuer, the Manager or the Servicer receives any amount
denominated in (euro) from the Currency Swap Provider under a Currency Swap,
they will promptly pay that amount to the credit of the Euro Account.
The Issuer shall, on the direction of the Manager, or shall require that the
Paying Agent on its behalf, pay all amounts credited to the Euro Account by the
Currency Swap Provider as specified in clause 5.18 of the Supplementary Terms
Notice, and in accordance with the Note Trust Deed and the Agency Agreement.
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(G) CHARGE OFFS
If the Principal Charge Offs for any Monthly Collection Period exceed the Excess
Available Income calculated on the Monthly Determination Date for that Monthly
Collection Period, the Manager must, on and with effect from the Monthly Payment
Date immediately following the end of the Monthly Collection Period comply with
clause 5.14 of the Supplementary Terms Notice.
(H) CALCULATION OF PRINCIPAL PAYMENTS AND STATED AMOUNT
On (or as soon as practicable after) each Determination Date, the Manager shall
(A) calculate the amount of principal to be repaid or allocated (as the case may
be) in respect of each Class A-2 Note, on the next Payment Date following that
Determination Date, (B) the Stated Amount, the Notional Stated Amount and the
Invested Amount of each Note on the first day of the next following Payment Date
(after deducting any principal due to be made or allocated (as the case may be)
on the next Payment Date); and (C) the Bond Factor for each Class of Note on
each Quarterly Determination Date in respect of the Collection Period ending
before that Quarterly Determination Date.
The Manager will notify the Issuer, the Note Trustee, the Principal Paying Agent
and the Calculation Agent by not later than (or as soon as practicable after)
the Quarterly Determination Date immediately preceding the relevant Quarterly
Payment Date of each such determination and will immediately cause details of
each of those determinations to be published in accordance with Condition 12 by
one Business Day before the relevant Payment Date. If no Principal Payment is
due to be made on the Class A-2 Notes on any Payment Date a notice to this
effect will be given to the Class A-2 Noteholders in accordance with Condition
12.
(I) CALL
The Issuer must, when so directed by the Manager (at the Manager's option),
purchase or redeem all, but not some only, of the Class A-2 Notes in accordance
with, and in the circumstances specified in clause 7.1 of the Supplementary
Terms Notice.
Clause 7.1 of the Supplementary Terms Notice requires the Issuer to give not
more than 60 nor less than 25 days' notice to the Class A-2 Noteholders of a
repurchase under that section 7.1.
(J) REDEMPTION FOR TAXATION OR OTHER REASONS
If the Manager satisfies the Issuer and the Note Trustee immediately prior to
giving the notice referred to below that either:
(i) on the next Quarterly Payment Date the Issuer would be required to
deduct or withhold from any payment of principal or interest in respect
of the Class A-2 Notes or the Currency Swap any amount for or on account
of any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed, levied, collected, withheld or
assessed by the Commonwealth of Australia or any of its political
sub-divisions or any of its authorities; or
(ii) the total amount payable in respect of interest in relation to any of
the Loans for a Quarterly Collection Period ceases to be receivable
(whether or not actually received) by the Issuer during such Quarterly
Collection Period (but, for the avoidance of doubt, this paragraph (ii)
does not apply to the failure by the Issuer to receive any interest on
any Purchased Receivable merely by reason of the failure by the relevant
Obligors to pay that interest in breach of the relevant Receivable
Agreement),
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the Issuer must, when so directed by the Manager, at the Manager's option,
(subject to the provisions specified in clause 7.1 of the Supplementary Terms
Notice) redeem all, but not some only, of the Class A-2 Notes in accordance with
clause 7.1 of the Supplementary Terms Notice.
(K) REDEMPTION ON FINAL MATURITY
If not otherwise redeemed, the Class A-2 Notes will be redeemed at their Stated
Amount on the Quarterly Payment Date falling in November 2037.
(L) CANCELLATION
All Class A-2 Notes redeemed in full pursuant to the above provisions will be
cancelled forthwith, and may not be resold or reissued.
(M) CERTIFICATION
For the purposes of any redemption made pursuant to this Condition 5, the Note
Trustee may rely upon an Officer's Certificate under the Note Trust Deed from
the Manager on behalf of the Issuer certifying or stating the opinion of each
person signing such certificate as:
(i) to the fair value (within 90 days of such release) of the property or
securities proposed to be released from the Security Trust Deed);
(ii) that in the opinion of such person the proposed release will not impair
the security under the Security Trust Deed in contravention of the
provisions of the Security Trust Deed or the Note Trust Deed; and
(iii) that the Issuer will be in a position to discharge all its liabilities
in respect of the relevant Class A-2 Notes and any amounts required
under the Security Trust Deed to be paid in priority to or pari passu
with those Class A-2 Notes,
and such Officer's Certificate shall be conclusive and binding on the Trustee,
the Note Trustee and the holders of those Class A-2 Notes.
6. PAYMENTS
(A) METHOD OF PAYMENT
Any instalment of interest or principal payable on any Class A-2 Note which is
punctually paid or duly provided for by the Issuer to the Principal Paying Agent
on the applicable Quarterly Payment Date or Final Maturity Date shall be paid to
the person in whose name such Class A-2 Note is registered on the Record Date,
by cheque mailed first-class, postage prepaid, to such person's address as it
appears on the Note Register on such Record Date, except that, unless Definitive
Class A-2 Notes have been issued pursuant to clause 3.4 of the Note Trust Deed,
with respect to Class A-2 Notes registered on the Record Date in the name of the
nominee of the Clearing Agencies (initially in respect of the Class A-2 Notes
such Clearing Agencies to be Euroclear or Clearstream, Luxembourg and such
nominee to be The Bank of New York Depository (Nominees) Limited, the nominee of
the Common Depository, payment will be made by wire transfer in immediately
available funds to the account designated by such nominee and except for the
final instalment of principal payable with respect to such Class A-2 Note on a
Quarterly Payment Date or Final Maturity Date.
Payments are subject in all cases to any fiscal or other laws or regulations
applicable in the place of payment.
(B) INITIAL PRINCIPAL PAYING AGENT
The initial Principal Paying Agent is The Bank of New York acting through its
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(C) PAYING AGENTS
The Issuer (or the Manager on its behalf with the consent of the Issuer, such
consent not to be unreasonably withheld) may at any time with the prior written
consent of the Note Trustee vary or terminate the appointment of any Paying
Agent and appoint additional or other Paying Agents, provided that it will at
all times maintain a Principal Paying Agent and will maintain at all times a
Paying Agent having a paying office in the United Kingdom (in respect of the
Class A-2 Notes).
The Manager shall procure that the Issuer maintains the appointment of, if a
withholding tax is imposed on a payment made by a paying agent pursuant to
European Council Directive 2003/48/EC or any other directive implementing the
conclusions of the ECOFIN Council Meeting of 26-27 November 2000, a Paying Agent
in a member state of the European Union that will not be obliged to withhold or
deduct tax pursuant to any such directive or any law implementing or complying
with, or introduced to conform with, such directive.
(D) PAYMENT ON BUSINESS DAYS
Payments in respect of any amount of principal or Interest in respect of any
Class A-2 Note shall be made on a Business Day. If the due date for payment of
any amount of principal or Interest in respect of any Class A-2 Note is not a
Business Day then payment will not be made until the next succeeding Business
Day unless that day falls in the next calendar month, in which case the due date
will be the preceding Business Day and the holder of that Class A-2 Note shall
not be entitled to any further interest or other payment in respect of that
delay.
(E) INTEREST ON UNPAID INTEREST
If Interest is not paid in respect of a Class A-2 Note on the date when due and
payable (other than because the due date is not a Business Day), that unpaid
Interest shall itself bear interest at the relevant Interest Rate applicable
from time to time to the relevant Class A-2 Notes until the unpaid Interest, and
interest on it, is available for payment and notice of that availability has
been duly given in accordance with Condition 12 "Notices".
7. TAXATION
All payments in respect of the Class A-2 Notes will be made without withholding
or deduction for, or on account of, any present or future taxes, duties or
charges of whatsoever nature unless the Issuer, any Paying Agent or the Currency
Swap Provider is required by applicable law to make any such payment in respect
of the Class A-2 Notes subject to any withholding or deduction for, or on
account of, any present or future taxes, duties or charges of whatever nature.
In that event the Issuer, that Paying Agent or the Currency Swap Provider (as
the case may be) shall make such payment after such withholding or deduction has
been made and shall account to the relevant authorities for the amount so
required to be withheld or deducted. Neither the Issuer, any Paying Agent or the
Currency Swap Provider will be obliged to make any additional payments to Class
A-2 Noteholders in respect of that withholding or deduction.
8. PRESCRIPTION
A Class A-2 Note shall become void in its entirety unless surrendered for
payment within 10 years of the Relevant Date in respect of any payment on it the
effect of which would be to reduce the relevant Stated Amount (in the case of
final maturity, if applicable) or the relevant Invested Amount of that Class A-2
Note to zero. After the date on which a Class A-2 Note becomes void in its
entirety, no claim may be made in respect of it.
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As used in these Conditions, the "RELEVANT DATE" means the date on which a
payment first becomes due but, if the full amount of the money payable has not
been received in London by the Principal Paying Agent or the Note Trustee on or
prior to that date, it means the date on which, the full amount of such money
having been so received, notice to that effect is duly given by the Principal
Paying Agent in accordance with Condition 12 "Notices".
9. EVENTS OF DEFAULT
Clause 8.1 of the Security Trust Deed sets out which events constitute an "EVENT
OF DEFAULT" (whether or not it is within the control of the Issuer) for the
purpose of these Conditions and the Security Trust Deed.
In the event that the security constituted by the Security Trust Deed becomes
enforceable following an event of default under the Notes any funds resulting
from the realisation of such security shall be applied in accordance with the
order of priority of payments as stated in the Security Trust Deed.
10. ENFORCEMENT
At any time after an Event of Default occurs, the Security Trustee shall
(subject to being appropriately indemnified), if so directed by (a) the
Noteholder Mortgagees (as defined in the Security Trust Deed) alone, where the
Noteholder Mortgagees are the only Voting Mortgagees, or otherwise (b) an
"Extraordinary Resolution of the Voting Mortgagees" (being 75% of votes capable
of being cast by Voting Mortgagees present in person or by proxy of the relevant
meeting or a written resolution signed by all Voting Mortgagees), which includes
the Note Trustee on behalf of the Class A-2 Noteholders, but not, unless the
Note Trustee has become bound to take steps and/or proceed under the Security
Trust Deed and fails to do so within a reasonable period of time and such
failure is continuing, the Class A-2 Noteholders themselves), declare the Class
A Notes immediately due and payable and declare the security to be enforceable.
If an Extraordinary Resolution of Voting Mortgagees referred to above elects not
to direct the Security Trustee to enforce the Security Trust Deed, in
circumstances where the Security Trustee could enforce, the Noteholder
Mortgagees (in the case of the Class A-2 Noteholders, as represented by the Note
Trustee acting at the direction of the Class A-2 Noteholders) may nevertheless
direct the Security Trustee to enforce the Security Trust Deed on behalf of the
Noteholders.
"VOTING MORTGAGEE" has the meaning given to it in the Supplementary Terms
Notice.
Any reference to the Noteholder Mortgagees while they are the only Voting
Mortgagees or where their consent is required under the Security Trust Deed in
relation to a direction or act of the Security Trustee, means Noteholder
Mortgagees representing more than 50% of the aggregate Invested Amount of the
Class A-2 Notes and the A$ Notes.
Subject to being indemnified in accordance with the Security Trust Deed, the
Security Trustee shall take all action necessary to give effect to any direction
by the Noteholder Mortgagees where they are the only Voting Mortgagees or to any
Extraordinary Resolution of the Voting Mortgagees and shall comply with all
directions given by the Note Trustee where it is the only Voting Mortgagee or
contained in or given pursuant to any Extraordinary resolution of the Voting
Mortgagees in accordance with the Security Trust Deed.
No Class A-2 Noteholder is entitled to enforce the Security Trust Deed or to
appoint or cause to be appointed a receiver to any of the assets secured by the
Security Trust Deed or otherwise to exercise any power conferred by the terms of
any applicable law on chargees except as provided in the Security Trust Deed.
If any of the Class A-2 Notes remains outstanding and is due and payable
otherwise than by reason of a default in payment of any amount due on the Class
A-2 Notes, the Note Trustee must not vote under the
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Security Trust Deed to, or otherwise direct the Security Trustee to, dispose of
the Mortgaged Property unless either:
(a) the Note Trustee is of the opinion, reached after considering at any
time the advice of a merchant bank or other financial adviser selected
by the Note Trustee in its sole and absolute discretion (the cost of
such advice shall be an Expense payable to the Note Trustee), that a
sufficient amount would be realised to discharge in full all amounts
owing to the Class A-2 Noteholders and any other amounts payable by the
Issuer ranking in priority to or pari passu with the Class A-2 Notes; or
(b) the Note Trustee is of the opinion, reached after considering at any
time and from time to time the advice of a merchant bank or other
financial adviser selected by the Note Trustee in its sole and absolute
discretion (the cost of such advice shall be an Expense payable to the
Note Trustee), that the cash flow receivable by the Issuer (or the
Security Trustee under the Security Trust Deed) will not (or that there
is a significant risk that it will not) be sufficient, having regard to
any other relevant actual, contingent or prospective liabilities of the
Issuer, to discharge in full in due course all the amounts referred to
in paragraph (a) above.
Except in the case of negligence, fraud or breach of trust (in the case of the
Security Trustee) or negligence, fraud or wilful default (in the case of the
Note Trustee), neither the Note Trustee nor the Security Trustee will be liable
for any decline in the value, nor any loss realised upon any sale or other
dispositions made under the Security Trust Deed, of any Mortgaged Property or
any other property which is charged to the Security Trustee by any other person
in respect of or relating to the obligations of the Issuer or any third party in
respect of the Issuer or the Class A-2 Notes or relating in any way to the
Mortgaged Property. Without limitation, neither the Note Trustee nor the
Security Trustee shall be liable for any such decline or loss directly or
indirectly arising from its acting, or failing to act, as a consequence of a
reasonable opinion reached by it in good faith based on advice received by it in
accordance with the Note Trust Deed or the Security Trust Deed, as the case may
be.
Subject to the provisions of the Note Trust Deed (including clause 37.2), the
Note Trustee shall not be bound to vote under the Security Trust Deed, or
otherwise direct the Security Trustee under the Security Trust Deed, or to take
any proceedings, actions or steps under, or any other proceedings pursuant to or
in connection with the Security Trust Deed, the Note Trust Deed or any Class A-2
Notes on behalf of the Class A-2 Noteholders unless directed or requested to do
so by an Extraordinary Resolution of the Class A-2 Noteholders at the time; and
then only if the Note Trustee is indemnified to its satisfaction against all
action, proceedings, claims and demands to which it may render itself liable and
all costs, charges, damages and expenses which it may incur by so doing.
Only the Security Trustee may enforce the provisions of the Security Trust Deed
and neither the Note Trustee nor any Class A-2 Noteholder is entitled to proceed
directly against the Issuer to enforce the performance of any of the provisions
of the Security Trust Deed or the Class A-2 Notes (including these Conditions)
except as provided for in the Security Trust Deed and the Note Trust Deed.
The rights, remedies and discretions of the Class A-2 Noteholders under the
Security Trust Deed, including all rights to vote or give instructions or
consent, can only be exercised by the Note Trustee on behalf of the Class A-2
Noteholders in accordance with the Security Trust Deed. The Security Trustee may
rely on any instructions or directions given to it by the Note Trustee as being
given on behalf of the Class A-2 Noteholders from time to time and need not
enquire whether the Note Trustee or the Noteholders from time to time have
complied with any requirements under the Note Trust Deed or as to the
reasonableness or otherwise
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of the Note Trustee. The Security Trustee is not obliged to take any action,
give any consent or waiver or make any determination under the Security Trust
Deed without being directed to do so by the Note Trustee or the Voting
Mortgagees in accordance with the Security Trust Deed.
Prior to the Security Trustee becoming actually aware of the occurrence of an
Event of Default and provided that it has been indemnified in accordance with
the Security Trust Deed, the Security Trustee may enforce the Security Trust
Deed without an Extraordinary Resolution of the Voting Mortgagees if it believes
(in its absolute discretion) that it is necessary to do so to protect the
interests of the Mortgagees (provided that it shall enforce the Security Trust
Deed if so directed by an Extraordinary Resolution of the Voting Mortgagees).
Upon enforcement of the security created by the Security Trust Deed, the net
proceeds thereof may be insufficient to pay all amounts due on redemption to the
Noteholders. The proceeds from enforcement (which will not include amounts
required by law to be paid to the holder of any prior ranking security interest
the proceeds of or amounts credited to the collateral account under the
Liquidity Facility Agreement (as defined in the Master Trust Deed) and payable
to the Liquidity Facility Provider (as defined in the Master Trust Deed), and
the proceeds of cash collateral lodged with and payable to a Swap Provider or
other provider of a Support Facility (as defined in the Master Trust Deed)) will
be applied in the order of priority as set out in the Security Trust Deed. Any
claims of Noteholders remaining after realisation of the security and
application of the proceeds as aforesaid shall, except in certain limited
circumstances, be extinguished.
11. REPLACEMENTS OF CLASS A-2 NOTES
If any Class A-2 Note is lost, stolen, mutilated, defaced or destroyed, it may
be replaced at the specified office of the Principal Paying Agent located at
▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ or such other office as may be
designated from time to time under the Agency Agreement upon payment by the
claimant of the costs incurred in connection with that replacement and on such
terms as to evidence and indemnity as the Principal Paying Agent may reasonably
require. Mutilated or defaced Class A-2 Notes must be surrendered before
replacements will be issued.
12. NOTICES
All notices, other than notices given in accordance with the following
paragraph, to Class A-2 Noteholders shall be deemed given if in writing and
mailed, first-class, postage prepaid to each Class A-2 Noteholder, at his or her
address as it appears on the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Class A-2 Noteholders is given by mail, neither the
failure to mail such notice nor any defect in any notice so mailed to any
particular Class A-2 Noteholder shall affect the sufficiency of such notice with
respect to other Class A-2 Noteholders, and any notice that is mailed in the
manner herein provided shall conclusively be presumed to have been duly given.
A notice may be waived in writing by the relevant Class A-2 Noteholder, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Class A-2 Noteholders shall be filed with the Note
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
Any such notice shall be deemed to have been given on the date such notice is
deposited in the mail.
In case, by reason of the suspension of regular mail services as a result of a
strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Class A-2 Noteholders when such notice is
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required to be given, then any manner of giving such notice as the Trustee shall
direct (on the instructions of the Trust Manager) the Note Trustee shall be
deemed to be a sufficient giving of such notice.
Any notice required to be given by the Principal Paying Agent at any time shall
be deemed to have been duly given if the information contained in such notice
appears on the relevant page of the Reuters Screen, on the Website (as defined
below) or such other similar electronic reporting service as may be approved by
the Note Trustee and notified to Class A-2 Noteholders (the "RELEVANT SCREEN").
Any such notice shall be deemed to have been given on the first date on which
such information appeared on the Relevant Screen. If it is impossible or
impracticable to give notice in accordance with this paragraph then notice of
the matters referred to in this Condition shall be given in accordance with the
preceding paragraph.
"WEBSITE" means the website at the following address:
▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
or such other website as the Principal Paying Agent shall notify the Note
Trustee, the Trustee, the Manager and the Class A-2 Noteholders, in accordance
with this Condition, from time to time.
All consents and approvals in these Conditions are to be given in writing.
13. MEETINGS OF VOTING MORTGAGEES AND MEETINGS OF RELEVANT NOTEHOLDERS;
MODIFICATIONS; CONSENTS; WAIVER
The Security Trust Deed contains provisions permitting the Voting Mortgagees to,
among other things, direct or consent to the Security Trustee taking or not
taking certain actions under the Security Trust Deed, for example to enable the
Voting Mortgagees to direct the Security Trustee to enforce the Security Trust
Deed.
The Note Trust Deed contains provisions permitting the Relevant Noteholders to
act on any matter affecting their interests, including the directing of the Note
Trustee to direct the Security Trustee to enforce the security under the
Security Trust Deed, or the sanctioning by an Extraordinary Resolution of the
Relevant Noteholders of a modification of the Relevant Notes (including these
Conditions) or the provisions of any of the Transaction Documents, provided that
no modification of certain terms including, among other things, the date of
maturity of the Class A-2 Notes, or a modification which would have the effect
of altering the amount of interest payable in respect of a Class A-2 Note or
modification of the method of calculation of the interest payable or of the date
for payment of or interest payable in respect of any Class A-2 Notes, reducing
or cancelling the amount of principal payable in respect of any Class A-2 Notes
or altering the currency of payment of any Class A-2 Notes or an alteration of
the date or priority of redemption of, the Class A-2 Notes or altering the
required percentage of the aggregate Invested Amount of the Class A-2 Notes
required to consent or take any action, or an election to receive the Stated
Amount of the Notes instead of the Invested Amount in the event of a call under
Condition 5(m) "Call" or 5(n) "Redemption for Taxation or Other Reasons", or any
other matter referred to in clause 37.2 of the Note Trust Deed needing the
approval of all holders of the Class A-2 Notes (any such modification being
referred to below as a BASIC TERMS MODIFICATION) shall be effective unless
sanctioned by all of the Class A-2 Noteholders. The quorum at any meeting of
Class A-2 Noteholders for passing an Extraordinary Resolution of Class A-2
Noteholders shall be two or more persons holding or representing over 50% of the
aggregate Invested Amount of the Class A-2 Notes then outstanding or, at any
adjourned meeting, two or more persons being or representing Class A-2
Noteholders whatever the aggregate Invested Amount of the Class A-2 Notes so
held or represented except that, at any meeting the business of which includes
the sanctioning of a Basic Terms Modification, the necessary quorum for passing
any such resolution shall be all of the Class A-2 Noteholders. An Extraordinary
Resolution and a resolution passed effecting a Basic Terms Modification passed
at any meeting
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of Class A-2 Noteholders shall be binding on all Class A-2 Noteholders, whether
or not they are present at the meeting.
The majority required for an "EXTRAORDINARY RESOLUTION" of Class A-2 Noteholders
shall be 75% of the votes cast in respect of that Extraordinary Resolution in
accordance with the terms of the Security Trust Deed.
The Note Trust Deed permits the Note Trustee, the Manager and the Trustee to,
following the giving of notice to each Designated Rating Agency, alter, add to
or modify, by way of supplemental deed, the Note Trust Deed (including the
meeting and amendment provisions), the Conditions (subject to the proviso more
fully described in clause 37.2 of the Note Trust Deed or any other terms of that
deed or the Conditions to which it refers) or any Transaction Document so long
as that alteration, addition or modification is:
(a) to correct a manifest error or ambiguity or is of a formal, technical or
administrative nature only;
(b) in the opinion of the Note Trustee, necessary to comply with the
provisions of any law or regulation or with the requirements of any
governmental authority;
(c) in the opinion of the Note Trustee, appropriate or expedient as a
consequence of an amendment to any law or regulation or altered
requirements of any governmental authority; or
(d) in the opinion of the Note Trustee, neither materially prejudicial nor
likely to be prejudicial to the interests of the Relevant Noteholders.
The Note Trustee may also, but is not obliged to, in accordance with the Note
Trust Deed and without the consent of any Class A-2 Noteholders (but not in
contravention of an Extraordinary Resolution or any resolution passed in
accordance with clause 37.2 of the Note Trust Deed), waive or authorise any
breach or proposed breach of Class A-2 Notes (including these Conditions) or any
Transaction Document or determine that any Event of Default or any condition,
event or act which with the giving of notice and/or lapse of time and/or the
issue of a certificate would constitute an Event of Default shall not, or shall
not subject to specified conditions, be treated as such. Any such modification,
waiver, authorisation or determination shall be binding on the relevant Class
A-2 Noteholders and, if, but only if, the Note Trustee so requires, any such
modification shall be notified to the relevant Class A-2 Noteholders in
accordance with Condition 12 "Notices" as soon as practicable.
14. INDEMNIFICATION AND EXONERATION OF THE NOTE TRUSTEE AND THE SECURITY
TRUSTEE
The Note Trust Deed and the Security Trust Deed contain provisions for the
indemnification of the Note Trustee and the Security Trustee (respectively) and
for their relief from responsibility, including provisions relieving them from
taking proceedings to realise the security and to obtain repayment of the Notes
unless indemnified to their satisfaction. Each of the Note Trustee and the
Security Trustee is entitled to enter into business transactions with the Issuer
and/or any other party to the Transaction Documents without accounting for any
profit resulting from such transactions. Except in the case of negligence, fraud
or breach of trust (in the case of the Security Trustee) or negligence, fraud or
wilful default (in the case of the Note Trustee), neither the Security Trustee
nor the Note Trustee will be responsible for any loss, expense or liability
which may be suffered as a result of any assets secured by the Security Trust
Deed, the Mortgaged Property or any deeds or documents of title thereto, being
uninsured or inadequately insured or being held by or to the order of the
Servicer or any of its affiliates or by clearing organisations or their
operators or by any person on behalf of the Note Trustee if prudently chosen in
accordance with the Transaction Documents.
Where the Note Trustee is required to express an opinion or make a determination
or calculation under the Transaction Documents, the Note Trustee may appoint or
engage such independent advisers as the Note
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Trustee requires to assist in the giving of that opinion or the making of that
determination or calculation and any costs and expenses payable to those
advisers will be reimbursed to the Note Trustee by the Issuer or if another
person is expressly stated in the relevant provision in a Transaction Document,
that person.
15. LIMITATION OF LIABILITY OF THE ISSUER
(A) GENERAL
Clause 30 of the Master Trust Deed applies to the obligations and liabilities of
the Issuer in relation to the Notes.
(B) LIABILITY OF ISSUER LIMITED TO ITS RIGHT OF INDEMNITY
(i) The Issuer enters into the Transaction Documents and issues the
Notes only in its capacity as trustee of the Trust and in no
other capacity (except where the Transaction Documents provide
otherwise). Subject to paragraph (iii) below, a liability
arising under or in connection with the Transaction Documents,
the Trust or the Notes is limited to and can be enforced against
the Issuer only to the extent to which it can be satisfied out
of the Assets and property of the Trust which are available to
satisfy the right of the Issuer to be indemnified for the
liability. This limitation of the Issuer's liability applies
despite any other provision of the Transaction Documents and
extends to all liabilities and obligations of the Issuer in any
way connected with any representation, warranty, conduct,
omission, agreement or transaction related to the Transaction
Documents or the Trust.
(ii) Subject to paragraph (iii) below, no person (including any
Relevant Party) may take action against the Issuer in any
capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust
Deed), or a liquidator, an administrator or any similar person
to the Issuer or prove in any liquidation, administration or
arrangements of or affecting the Issuer.
(iii) The provisions of this Condition 15 shall not apply to any
obligation or liability of the Issuer to the extent that it is
not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of the
Issuer's indemnification out of the Assets of the Trust as a
result of the Issuer's fraud, negligence or Default.
(iv) It is acknowledged that the Relevant Parties are or may be
responsible under the Transaction Documents for performing a
variety of obligations relating to the Trust. No act or omission
of the Issuer (including any related failure to satisfy its
obligations under the Transaction Documents) will be considered
fraud, negligence or Default of the Issuer for the purpose of
paragraph (iii) of this Condition 15 to the extent to which the
act or omission was caused or contributed to by any failure by
any Relevant Party or any person who has been delegated or
appointed by the Issuer in accordance with the Transaction
Documents to fulfil its obligations relating to the Trust or by
any other act or omission of a Relevant Party or any such
person.
(v) In exercising their powers under the Transaction Documents, each
of the Issuer, the Security Trustee and the Noteholders must
ensure that no attorney, agent, delegate, receiver or receiver
and manager appointed by it in accordance with a Transaction
Document has authority to act on behalf of the Issuer in a way
which exposes the Issuer to any personal liability and no act or
omission of any such person will be considered fraud, negligence
or Default of the Issuer for the purpose of paragraph (iii)
above.
(vi) In this Condition, "RELEVANT PARTIES" means each of the Manager,
the Servicer, the Calculation Agent, each Paying Agent, the Note
Trustee, the Custodian, the Basis Swap Provider, the Fixed-
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Floating Rate Swap Provider, the Principal Paying Agent, each
Lead Manager, the Currency Swap Provider and any other provider
of a Support Facility.
(vii) In this Condition, "DEFAULT" means a failure by the Issuer to
comply with:
(A) an obligation which is expressly imposed on it by the
terms of a Transaction Document; or
(B) a written direction given by the Manager in accordance
with a Transaction Document (and in terms which are
consistent with the requirements of the Transaction
Documents) in circumstances where the Transaction
Documents require or contemplate that the Issuer will
comply with that direction,
in each case within any period of time specified in, or
contemplated by, the relevant Transaction Document for such
compliance. However, it will not be the Default of the Issuer if
the Issuer does not comply with an obligation or direction where
the Note Trustee or the Security Trustee directs the Issuer not
to comply with that obligation or direction.
(viii) Nothing in this Condition limits the obligations expressly
imposed on the Issuer under the Transaction Documents.
16. GOVERNING LAW
The Class A-2 Notes, and the Transaction Documents are governed by, and shall be
construed in accordance with, the laws of New South Wales, Australia except for:
(a) the Subscription Agreement for the Class A-2 Notes (as defined in the
Supplementary Terms Notice) which is governed by the law of England;
(b) the Subscription Agreement for the Class A-1 Notes (as defined in the
Supplementary Terms Notice) which is governed by the law of the State of
New York; and
(c) the administration of the Note Trust (as defined in the Note Trust
Deed), including the exercise of the Note Trustee's powers under clause
13 of the Note Trust Deed, which are both governed by the law of the
State of New York and in the event of any inconsistency between the
operation of the law of New South Wales, Australia and the Law of the
State of New York in respect of the application of those powers, the law
of the State of New York will prevail to the extent of the
inconsistency.
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Summary of Provisions Relating to the Class A-2 Notes while in Book-Entry Form
Each Class A-2 Note will initially be represented by typewritten book-entry
notes (each, a "CLASS A-2 BOOK-ENTRY NOTE"), without coupons or talons, in the
principal amount of (euro)450,000,000. The Class A-2 Book-Entry Notes will be
registered in the name of The Bank of New York Depository (Nominees) Limited and
deposited with the Common Depositary in respect of the Class A-2 Notes on or
about the Closing Date. Upon deposit of a Class A-2 Book-Entry Note with the
Common Depositary for the Class A-2 Notes, Euroclear or Clearstream, Luxembourg
will credit each subscriber of the relevant Class A-2 Notes with a principal
amount of those Class A-2 Notes for which it has subscribed and paid.
The Class A-2 Book-Entry Notes will be exchangeable for definitive Class A-2
Notes in certain circumstances described below.
Each person who is for the time being shown in the Note Register as the holder
of a particular principal amount of those Class A-2 Notes will be entitled to be
treated by the Issuer and the Note Trustee as a holder of such principal amount
of those Class A-2 Notes and the expression "CLASS A-2 NOTEHOLDER" shall be
construed accordingly. Such persons will have no claim directly against the
Issuer in respect of payments due on the Class A-2 Notes which must be made by
the registered holder of the relevant Class A-2 Book-Entry Note, for so long as
such Class A-2 Book-Entry Note is outstanding.
(A) PAYMENTS
Interest and principal on each Class A-2 Book-Entry Note will be payable
by the Principal Paying Agent to the Common Depositary for the Class A-2
Notes provided that no payment of interest may be made by the Issuer or
any Paying Agent in the Commonwealth of Australia or its territories or
possessions. Each of the persons appearing from time to time in the
records of Euroclear, or of Clearstream, Luxembourg, as the beneficial
owner of a Class A-2 Note will be entitled to receive any payment so
made in respect of that Class A-2 Note in accordance with the respective
rules and procedures of Euroclear or, as the case may be, Clearstream,
Luxembourg.
A record of each payment made on a Class A-2 Book-Entry Note,
distinguishing between any payment of principal and any payment of
interest, will be recorded in the Note Register by the Note Registrar,
and such record is sufficient evidence unless the contrary is proved
that the payment in question has been made.
(B) EXCHANGE
A Class A-2 Book-Entry Note will be exchangeable for Definitive Class
A-2 Notes only if: (i) the principal amount of those Class A-2 Notes
becomes immediately due and payable by reason of an Event of Default (as
set out in Condition 10 "Enforcement"); or (ii) either Euroclear or
Clearstream, Luxembourg is closed for business for a continuous period
of 14 days (other than by reason of holiday, statutory or otherwise) or
announces an intention permanently to cease business; or (iii) as the
result of any amendment to, or change in, the laws or regulations of any
jurisdiction or any body politic, or government in any jurisdiction, or
any minister, department, office, commission, instrumentality, agency,
board, authority or organisation of any government or any corporation
owned or controlled by any government having power to tax or in the
interpretation by a revenue authority or a court of, or in the
administration of, laws or regulations relating to taxation which
becomes effective on or after the Closing Date, the Issuer or any Paying
Agent is or will be required to make any deduction or
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withholding from any payment in respect of those Class A-2 Notes which
would not be required were those Class A-2 Notes in definitive form,
then the Issuer will (at the Issuer's expense) issue those definitive
Class A-2 Notes represented by that Class A-2 Book-Entry Note in
exchange for the whole outstanding interest in that Class A-2 Book-Entry
Note within 30 days after becoming aware of the occurrence of the
relevant event but in any event not prior to the expiry of 40 days after
the Note Issue Date.
(C) NOTICES
So long as any Class A-2 Notes are represented by any Class A-2
Book-Entry Note and that Class A-2 Book-Entry Note is held on behalf of
Euroclear and/or Clearstream, Luxembourg, notices to the relevant Class
A-2 Noteholders may be given by delivery of the relevant notice to
Euroclear and/or Clearstream, Luxembourg for communication by them to
entitled account holders.
(D) CANCELLATION
Cancellation of any Class A-2 Note required by the Conditions will be
effected by reduction in the principal amount of the relevant Class A-2
Book-Entry Note.
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SCHEDULE 5
INFORMATION TO BE CONTAINED IN NOTEHOLDER'S REPORT
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The following information is to be included in each Noteholder's Report:
(a) the applicable Record Date, Determination Date and Payment Date;
(b) the Invested Amount, the Stated Amount and the Notional Stated
Amount of each Class of Notes;
(c) the interest allocations and payments and principal allocations
and distributions on each Class of Notes;
(d) the Available Income;
(e) the Total Available Funds;
(f) the aggregate of all Redraws made during that Collection Period;
(g) the Redraw Shortfall;
(h) the Payment Shortfall (if any);
(i) the Principal Draw (if any) for that Collection Period, together
with all Principal Draws made before the start of that
Collection Period and not repaid;
(j) the Principal Collections;
(k) the Principal Charge Off (if any);
(l) the Class A Bond Factor in respect of each Class of Class A
Notes, the Class B Bond Factor and the Class C Bond Factor;
(m) the Class A Charge Offs, the Class B Charge Offs, the Class C
Charge Offs and the Redraw Charge Offs (if any);
(n) all Carryover Charge Offs (if any);
(o) if required, the Threshold Rate at that Collection Determination
Date;
(p) the relevant Interest Rate, as at the first day of the related
Interest Period ending immediately after that Collection
Determination Date as calculated by the Agent Bank;
(q) scheduled and unscheduled payments of principal on the Housing
Loans;
(r) aggregate Balances Outstanding of Fixed Rate Housing Loans and
aggregate Balances Outstanding of Variable Rate Housing Loans;
(s) delinquency and loss statistics with respect to the Housing
Loans including the number and Balances Outstanding of Housing
Loans in the Trust that are delinquent 31-60 days, 61-90 days
and 91 or more days, and that are in foreclosure;
(t) the Liquidity Reserve as at that Determination Date;
(u) the Servicing Fee payable to the Servicer and, if any, the
Subservicer;
(v) the Class A Interest Amount, the Class B Interest Amount and
Class C Interest Amount;
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(w) updated pool composition information, including weighted average
interest rate and weighted average remaining Term;
(x) the Class A Carryover Amount, the Class B Carryover Amount and
the Class C Carryover Amount on that Payment Date;
(y) the percentage of the Class A Stated Amount, if applicable,
after giving effect to the payments on that Payment Date;
(z) any material modifications, extensions or waivers to the terms,
fees, penalties or payments on the Housing Loans during the
Collection Period or that have cumulatively become material over
time; and
(aa) any material breaches of representations or warranties or
covenants in the Supplementary Terms Notice relating to any
Housing Loan.
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