Exhibit 4.6
---------------------------------
DATED 18 MAY 2001
KINGFISHER TRUST 2001-1G
NOTE TRUST DEED
PERPETUAL TRUSTEE COMPANY
LIMITED
("TRUSTEE")
ANZ CAPEL COURT LIMITED
("TRUST MANAGER)
and
THE BANK OF NEW YORK, NEW YORK
BRANCH
("NOTE TRUSTEE")
MALLESONS ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Solicitors
Governor ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Telephone (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Fax (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
DX ▇▇▇ ▇▇▇▇▇▇
Ref: SRF:BCC
Copyright - Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(i)
--------------------------------------------------------------------------------
CONTENTS NOTE TRUST DEED
--------------------------------------------------------------------------------
1 DEFINITIONS AND INTERPRETATION 1
Definitions Schedule 1
Interpretation 2
Appointment of the Note Trustee 2
Interpretation of provisions incorporated from
TIA 2
2 COVENANT TO PAY 3
Covenant to Pay 3
Discharge 4
Payment after an Event of Default 4
Rate of Interest after an Event of Default 4
3 AMOUNT, FORM AND ISSUE OF CLASS A NOTES 4
Aggregate Amount and Denomination 4
Description and Form of Class A Notes 4
Initial issue as Class A Book-Entry Notes 5
Issue of Class A Definitive Notes 6
Indemnity of non-issue of Class A Definitive
Notes 7
4 CLASS A NOTE REGISTER 7
Provision of Class A Note Holder Information 7
Class A Note Register Conclusive 8
5 STAMP DUTIES 8
6 APPLICATION OF MONEYS RECEIVED BY THE NOTE
TRUSTEE 8
Declaration of Trust 8
Accumulation 9
Investment 9
7 COVENANTS 9
The Trustee and the Trust Manager 9
Covenants between Trustee and Trust Manager 12
8 ENFORCEMENT 13
Actions following Event of Default 13
Evidence of default 14
Overdue interest 15
Restrictions on enforcement 15
Liability for Enforcement 15
9 PROCEEDINGS 16
Acting only on direction 16
Security Trustee acting 17
Note Trustee alone entitled to act 17
10 REMUNERATION AND INDEMNIFICATION OF THE NOTE
TRUSTEE 17
Normal remuneration 17
Extra remuneration 18
Expenses 18
(ii)
--------------------------------------------------------------------------------
Indemnity 18
Continuing effect 18
11 SUPPLEMENTAL PROVISIONS 19
Liability to Account 19
Class A Notes 19
Advice 19
Note Trustee to assume performance 19
Resolutions of Class A Note Holders 19
Reliance 19
Certificate signed by Authorised Officer 20
Signatures 21
Deposit of documents 21
Discretion 21
Agents 21
Delegation 21
Application to Court 21
Interests of Class A Note Holders 22
Assumption as to Prejudice 22
Ratings 22
Validity of Transaction Documents 22
Defect in Security 22
Class A Note Holders Responsible 23
Limit on Obligation 23
No liability for breach 23
Dispute or ambiguity 23
Loss to charged property 23
Forged Class A Notes 24
Confidentiality 24
Disclosure 24
Determinations conclusive 24
Currency conversion 24
Class A Notes held by the Trustee etc 24
Legal opinions 24
No liability for tax on payments 25
Powers additional 25
12 NOTE TRUSTEE LIABLE FOR NEGLIGENCE 25
13 WAIVER 25
Waiver 25
14 NOTE TRUSTEE NOT PRECLUDED FROM ENTERING INTO
CONTRACTS 25
15 DUTIES OF NOTE TRUSTEE 26
Duties prior to an Event of Default 26
Duties following an Event of Default 26
Certain Limitations of Liability where Acting
in Good Faith 26
Note Trustee Not Relieved of Liability for
Negligence 27
Preferred Collection of Claims Against Trustee 27
Compliance with Section 310 of the TIA 27
Transaction Documents 27
16 AMENDMENT 27
(iii)
--------------------------------------------------------------------------------
Amendment by Note Trustee 27
Amendments requiring consent of all Class A
Note Holders 29
Compliance with TIA 29
No Designated Rating Agency downgrade 29
Distribution of amendments 29
Amendments binding on Class A Note Holders 29
17 REPORTS 29
Reports by Note Trustee 29
Reports by Trust Manager 29
Restricted Securities 30
18 APPOINTMENT, RETIREMENT AND REMOVAL OF THE NOTE
TRUSTEE 31
Appointment 31
Retirement of Note Trustee 31
Removal by Trustee 32
Note Trustee may Retire 32
Appointment of substitute note trustee by
Class A Note Holders 32
Successor to Note Trustee 33
Trustee and Trust Manager cannot be appointed 33
No Limitation of TIA 34
19 CLASS A NOTES HELD IN CLEARING SYSTEMS AND
NOTICES 34
Class A Notes held in Clearing Systems 34
20 CURRENCY INDEMNITY 34
Currency of account and payment 34
Extent of discharge 34
Indemnity 34
Indemnity separate 34
21 REPRESENTATIONS AND WARRANTIES 35
By the Trustee 35
By the Trust Manager 35
By the Note Trustee 36
22 NOTICES 37
Notices 37
Initial addresses 37
Time effective 38
Receipt 38
23 LIMITED RECOURSE 38
Limitation on Trustee's liability 38
Claims against Trustee 39
Breach of Trust 39
Acts or omissions 39
24 TERMINATION 40
25 TRUST INDENTURE ACT 40
Certificates and opinions 40
(iv)
--------------------------------------------------------------------------------
Undertaking for Costs 41
Exclusion of section 316(a)(1) 42
Unconditional rights of Class A Note Holders
to receive principal and interest 42
Conflict with Trust Indenture Act 42
26 MISCELLANEOUS 42
Certificate 42
Exercise of rights 42
Waiver and variation 43
Supervening legislation 43
Approvals and consent 43
Remedies cumulative 43
Indemnities 43
Time of the essence 43
Receipts 43
Acknowledgment 44
Disclosure of information 44
Rights cumulative 44
Signatures 44
Meetings 44
27 GOVERNING LAW 44
Governing Law 44
Submission to jurisdiction 45
Service 45
28 COUNTERPARTS 45
SCHEDULE 1 FORM OF CLASS A NOTE 46
SCHEDULE 2 PROVISIONS FOR MEETINGS OF CLASS A NOTE
HOLDERS 53
(v)
--------------------------------------------------------------------------------
TRUST INDENTURE ACT - CROSS REFERENCE TABLE
[This Cross Reference Table does not, for any purpose, form part of this Note
Trust Deed.] "NA" means not applicable.
TRUST INDENTURE ACT SECTION CLAUSE REFERENCE
310(a)(1) 15.7-9, 18.3(b), 18.4, 18.5
310(a)(2) 15.7, 15.8, 15.9
310(a)(3) NA
310(a)(4) NA
310(a)(5) 18.9
310(b) 15.9, 18.10
310(c) NA
311(a) 15.6
311(b) 15.6
311(c) NA
312(a) 4.2, 4.3
312(b) 4.3
312(c) 4.4
313(a) 17.1
313(b)(1) 17.1
313(b)(2) 17.1, 22.3
313(c) 17.1, 22.1
313(d) 17.1
314(a)(1) 17.2(a)
314(a)(2) 17.2(b)
314(a)(3) 17.2(c)
314(a)(4) 7.1(d)
314(b) 7.1(j)
314(c) 25.1(a)
314(d) 25.1(b)
314(e) 25.1(c)
315(a) 15.2
315(b) 8.1(a)
315(c) 15.3
(vi)
--------------------------------------------------------------------------------
TRUST INDENTURE ACT SECTION CLAUSE REFERENCE
315(d) 15.5, 11.5
315(e) 25.2
316(a)(1) 25.3
316(a)(2) 16.2
316(b) 25.4
316(c) 22.4
317(a)(1) 8.2(a)
317(a)(2) 8.2(b)
317(b) 6.1
318(a) 25.5
1
--------------------------------------------------------------------------------
KINGFISHER TRUST 2001-1G
NOTE TRUST DEED
DATE: 18 May 2001
PARTIES: PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001
007) having its registered office at ▇▇▇▇▇ ▇, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ in its capacity as
trustee of the Kingfisher Trust 2001-1G ("TRUSTEE")
ANZ CAPEL COURT LIMITED (ABN 30 004 768 807) having
its registered office at ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ("TRUST MANAGER")
THE BANK OF NEW YORK, NEW YORK BRANCH, a New York
banking corporation acting through its office at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("NOTE
TRUSTEE" which expression includes all persons being
the trustee of this Note Trust Deed)
RECITALS:
A. The Trustee wishes to issue, at the direction of the
Trust Manager, the Class A Notes.
B. The Note Trustee has agreed to act as Note Trustee for
the Class A Note Holders on the terms set out in this
deed.
C. This deed is an indenture qualified under, and subject to
the mandatory provisions of, the Trust Indenture ▇▇▇ ▇▇▇▇
of the United States of America, which are incorporated
by reference in and made part of this deed.
OPERATIVE PROVISIONS:
1 DEFINITIONS AND INTERPRETATION
--------------------------------------------------------------------------------
DEFINITIONS SCHEDULE
1.1 The following words have these meanings unless the
contrary intention appears:
DEFINITIONS SCHEDULE means the deed entitled "Kingfisher
Master Trusts Master Definitions Schedule" dated 1 August
2000 between the Trustee, the Trust Manager and P.T.
Limited, as amended by the deed entitled "Kingfisher
Master Trusts Amending Deed" dated 16 May 2001.
SUPPLEMENTAL DEED means the deed entitled "Kingfisher
Trust 2001-1G Supplemental Deed" dated on or about the
date of this deed between the Trustee, the Trust Manager
and others.
TRUST means the Kingfisher Trust 2001-1G.
2
--------------------------------------------------------------------------------
INTERPRETATION
1.2 Clauses 1.2 to 1.5 (inclusive) of the Definitions
Schedule are incorporated into this deed as if those
clauses were set out in full.
1.3 This deed binds the Trustee, the Trust Manager, the Note
Trustee and the Class A Note Holders of the Trust.
1.4 Except to the extent to which words and phrases are
otherwise defined in this deed, words and phrases defined
in the Definitions Schedule and the Supplemental Deed
shall bear the same meaning when used in this deed. Where
definitions are in respect of a "Trust" they shall be
interpreted in this deed in respect of the Trust. In the
event of any inconsistency between a definition expressly
defined in this deed and a definition in the Definitions
Schedule, the definition in this deed shall prevail. In
the event of any inconsistency between a definition in
the Definitions Schedule and a definition in the
Supplemental Deed, the definition in the Supplemental
Deed will prevail.
APPOINTMENT OF THE NOTE TRUSTEE
1.5 The Note Trustee:
(a) is appointed to act as trustee on behalf of the
Class A Note Holders on the terms and
conditions of this deed; and
(b) acknowledges and declares that it:
(i) holds the sum of $10 received on the date
of this deed; and
(ii) will hold the benefit of the obligations of
the Trustee and the Trust Manager under this
deed and under the other Transaction
Documents given in favour of the Note
Trustee,
in each case, on trust for each Class A Note
Holder, in accordance with the terms and conditions
of this deed.
INTERPRETATION OF PROVISIONS INCORPORATED FROM TIA
1.6 Where a provision of the TIA is incorporated into this
deed in accordance with the TIA (as described in clause
25.5) the following terms used in that provision have the
following meanings in this deed:
"DEFAULT" means an Event of Default.
"INDENTURE SECURITIES" means the Class A Notes.
"INDENTURE SECURITY HOLDER" means the Class A Note
Holder.
"INDENTURE TO BE QUALIFIED" means this deed.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means
the Note Trustee.
"OBLIGOR UPON THE INDENTURE SECURITIES" means the
Trustee.
3
--------------------------------------------------------------------------------
"SEC" has the meaning given to that term in the
Definitions Schedule.
Any other term, expression or provision which is used in
this deed in respect of a section or provision of the TIA
and which is defined in the TIA, defined in the TIA by
reference to another statute or defined by or in any rule
of or issued by the SEC, will have the meaning assigned
to it by such definitions. Any term or expression that is
used in both:
(a) (TIA): a mandatory provision of the TIA; and
(b) (THIS DEED): a clause of this deed that, on its
face, appears to satisfy or reflect that
mandatory provision of the TIA,
will be construed and interpreted as a Federal court of
the United States of America would construe and interpret
the term or expression.
2 COVENANT TO PAY
--------------------------------------------------------------------------------
COVENANT TO PAY
2.1 The Trustee at the direction of the Trust Manager shall
on any date when any Class A Note becomes due to be
redeemed, in whole or in part, unconditionally pay to or
to the order of the Note Trustee in accordance with, and
subject to, the terms of the Transaction Documents in
same day funds the principal of such Class A Note
becoming due on that date and shall (subject to the Class
A Note Conditions) until payment in whole of the
principal of the Class A Note (both before and after
judgment) unconditionally pay to or to the order of the
Note Trustee interest on the Invested Amount of the Class
A Note as set out in the Class A Note Conditions (subject
to clause 2.4), provided that:
(a) payment of any sum due in respect of the Class
A Notes made to a Paying Agent as provided in
the Agency Agreement (unless notice in
accordance with clause 3 of the Agency
Agreement has been given) or to the Note
Trustee in accordance with this deed shall to
that extent, satisfy such obligation except to
the extent that there is failure in the Paying
Agent's or the Note Trustee's (as the case may
be) subsequent payment to the relevant Class A
Note Holders under the Class A Note Conditions
and the Agency Agreement; and
(b) a payment made after the due date shall be
deemed to have been made when the full amount
due has been received by the Paying Agent or
the Note Trustee and notice to that effect has
been given to the Class A Note Holders, except
to the extent that there is failure in the
Paying Agent's or the Note Trustee's (as the
case may be) subsequent payment to the relevant
Class A Note Holders under the Class A Note
Conditions and the Agency Agreement.
4
--------------------------------------------------------------------------------
DISCHARGE
2.2 Subject to clause 2.1, any payment to be made in respect
of the Class A Notes by the Trustee or the Note Trustee
may be made as provided in the Class A Note Conditions
and any payment so made will (subject to clause 2.1) to
that extent be a good discharge to the Trustee or the
Note Trustee, as the case may be.
PAYMENT AFTER AN EVENT OF DEFAULT
2.3 At any time after an Event of Default has occurred, the
Note Trustee may take the actions referred to in clause 3
of the Agency Agreement.
RATE OF INTEREST AFTER AN EVENT OF DEFAULT
2.4 If the Class A Notes become immediately due and payable,
the rate of interest payable in respect of them shall
continue to be calculated by the Calculation Agent in
accordance with the Class A Note Conditions (with
consequential amendments as necessary) except that the
rate of interest need not be published unless the Note
Trustee otherwise requires. The first period in respect
of which interest shall be so calculable shall commence
on the expiry of the Interest Period during which the
Class A Notes become so repayable.
3 AMOUNT, FORM AND ISSUE OF CLASS A NOTES
--------------------------------------------------------------------------------
AGGREGATE AMOUNT AND DENOMINATION
3.1 The Class A Notes will be issued in minimum denominations
of US$100,000 each and multiples of US$10,000 in excess
of that amount.
DESCRIPTION AND FORM OF CLASS A NOTES
3.2 (a) (FORM OF CLASS A NOTES): The Class A Notes
must be serially numbered and typewritten or
printed (in the case of Class A Book-Entry
Notes) or typewritten, printed, lithographed or
engraved or produced by any combination of
these methods and with or without steel borders
(in the case of Class A Definitive Notes) in
the form or substantially in the form set out
in Schedule 1.
(b) (SIGNING OF CLASS A NOTES): Each Class A Note must
be signed by an Authorised Officer or other duly
appointed attorney or representative of the Trustee
on behalf of the Trustee.
(c) (AUTHENTICATION OF CLASS A NOTES): Each Class A
Note must be authenticated by an Authorised Officer
or other duly appointed representative of the Note
Trustee on behalf of the Note Trustee. No Class A
Note will be valid for any purpose unless and until
so authenticated.
(d) (DATING OF CLASS A NOTES): The Class A Notes
must be dated the date of their authentication.
5
--------------------------------------------------------------------------------
INITIAL ISSUE AS CLASS A BOOK-ENTRY NOTES
3.3 (a) (ISSUE AS CLASS A BOOK-ENTRY NOTES): The Class
A Notes will upon issue be represented by one or
more book-entry notes initially registered in
accordance with clause 4 in the name of Cede & Co,
as nominee of DTC as the initial Depository.
(b) (DELIVERY OF CLASS A BOOK-ENTRY NOTES): The Trustee
must on the date of this deed deliver or procure
the delivery of Class A Book-Entry Notes to the
Principal Paying Agent as agent for the Depository.
(c) (RIGHTS ATTACHING TO CLASS A BOOK-ENTRY
Notes): A Class A Book-Entry Note executed and
authenticated in accordance with clause 3.2
will constitute binding and valid obligations
of the Trustee. Until a Class A Book-Entry
Note has been exchanged pursuant to this deed,
it shall in all respects be entitled to the
same benefits as a Class A Definitive Note
except as specifically provided to the contrary
in this deed or the provisions of the Class A
Book-Entry Note.
(d) (EXCHANGE ETC): Subject to this deed, the
procedures relating to the exchange,
authentication, delivery, surrender,
cancellation, presentation, marking up or down
of any Class A Book-Entry Note and any other
matters to be carried out by the relevant
parties upon exchange of any Class A Book-Entry
Note will be made in accordance with the
provisions of the Class A Book-Entry Notes and
the normal practice of the Depository's
nominee, the Class A Note Registrar and the
rules and procedures of the Depository from
time to time.
(e) (DEALINGS WITH DEPOSITORY): Unless and until the
Class A Definitive Notes have been issued to a
Class A Note Owner pursuant to clause 3.4, the
following provisions apply:
(i) the Trustee, the Trust Manager, each
Agent and the Note Trustee will be
entitled to deal with the Depository for
all purposes whatsoever (including the
payment of principal of and interest on
the Class A Notes and the giving of
instructions or directions under this
deed) as the absolute holder of the Class
A Notes and none of the Trustee, the
Trust Manager, any Agent or the Note
Trustee will be affected by notice to the
contrary;
(ii) whenever a notice or other communication to
the Class A Note Holders is required under
this deed or any other Transaction Document
all such notices and communications must be
given to the Depository and are not required
to be given to the Class A Note Owners;
(iii) the rights of Class A Note Owners may be
exercised only through the Depository and are
limited to those
6
--------------------------------------------------------------------------------
established by law and agreements between
such Class A Note Owners and the Depository
and/or the Clearing Agency Participants;
(iv) the Trustee, the Trust Manager, each Agent
and the Note Trustee may conclusively rely
upon any statement from the Depository or any
Clearing Agency Participant as to the votes,
instructions or directions it has received
from Class A Note Owners and/or Clearing
Agency Participants.
To the extent that the provisions of this clause
3.3 conflict with any other provisions of this
deed, the provisions of this clause 3.3 prevail.
ISSUE OF CLASS A DEFINITIVE NOTES
3.4 (a) (EVENTS LEADING TO EXCHANGE): If:
(i) the Depository advises the Note Trustee in
writing that the Depository is no longer
willing or able properly to discharge its
responsibilities with respect to the Class A
Notes and the Trust Manager is unable to
locate a qualified successor to act as
Depository;
(ii) the Trust Manager (at its option) advises the
Trustee, the Note Trustee, the Paying Agents
and the Depository in writing that the Class
A Definitive Notes are to be issued in
replacement of the Class A Book-Entry Notes;
or
(iii) an Event of Default has occurred and is
subsisting and the Class A Note Owners
representing beneficial interests aggregating
to at least a majority of the aggregate
Invested Amount of the Class A Notes advise
the Trustee through the Depository in writing
that the continuation of a book entry system
is no longer in the best interests of the
Class A Note Owners,
then the Trustee, on the direction of the Trust
Manager, must within 30 days of such event instruct
the Depository to notify all of the appropriate
Class A Note Owners of the occurrence of any such
event and of the availability of Class A Definitive
Notes to such Class A Note Owners requesting the
same. The Note Trustee must promptly advise the
Trustee and the Trust Manager upon the occurrence
of an event referred to in clause 3.4(a)(i) and the
Trustee must promptly advise the Note Trustee and
the Trust Manager upon the occurrence of an event
referred to in clause 3.4(a)(iii).
(b) (EXCHANGE FOR CLASS A DEFINITIVE NOTES): Upon the
surrender to the Trustee of Class A Book-Entry
Notes by the Depository following an instruction
of the Trustee pursuant to clause 3.4(a), and the
delivery by the Depository of the
7
--------------------------------------------------------------------------------
relevant registration instructions to the Trustee,
the Trustee must issue and execute and the Note
Trustee must authenticate and deliver Class A
Definitive Notes of the same aggregate Invested
Amount as those Class A Book-Entry Notes, replacing
those Class A Book-Entry Notes, in accordance with
clause 3.2 and the instructions of the Depository.
None of the Note Trustee, the Trust Manager, the
Trustee or any Agent will be liable for any delay
in delivery of such instructions and each such
person may conclusively rely on, and will be
protected in relying on, such instructions.
(c) (NO OTHER ENTITLEMENT): No other Class A Note Owner
will be entitled to receive a Class A Definitive
Note representing such Class A Note Owner's
interest in a Class A Note, except as provided in
this clause 3.4.
INDEMNITY OF NON-ISSUE OF CLASS A DEFINITIVE NOTES
3.5 If the Trustee is required to issue Class A Definitive
Notes following an event specified in clause 3.4 but
fails to do so within 30 days of surrender to the Trustee
of the Class A Book-Entry Notes in accordance with clause
3.4 then the Trustee must, subject to clause 23,
indemnify the Note Trustee, the Class A Note Holders and
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 Class A Note Holders or
Class A Note Owners, respectively, is less than the
amount that would have been received had Class A
Definitive Notes been issued. If the Trustee breaches its
obligations under clause 3.4, it is acknowledged and
agreed that damages alone will not be an adequate remedy
for such a breach and that, in addition to any other
rights they may have(but subject to clause 23), the Note
Trustee, the Class A Note Holders and the Class A Note
Owners are entitled to ▇▇▇ the Trustee for specific
performance, injunctive relief or other equitable relief
to enforce the Trustee's obligations under clause 3.4.
4 CLASS A NOTE REGISTER
--------------------------------------------------------------------------------
MAINTENANCE OF CLASS A NOTE REGISTER
4.1 The Note Trustee must procure that the Class A Note
Register is maintained, and that Class A Notes are
transferred, exchanged, replaced, redeemed and cancelled,
all in accordance with the provisions of the Class A
Notes (including the Class A Note Conditions) and the
Agency Agreement. If at any time for any reason there
ceases to be a person performing the functions of the
Class A Note Registrar under the Agency Agreement, the
Note Trustee must act as the Class A Note Registrar and
perform all of the obligations of the Class A Note
Registrar contained in the Agency Agreement.
PROVISION OF CLASS A NOTE HOLDER INFORMATION
4.2 (PROVISION OF INFORMATION): The Trustee must provide or
procure the provision to the Note Trustee (if the Note
Trustee is not the Class A Note Registrar) at intervals
of not more than 6 months (commencing as from the Closing
Date), and at such other times as the Note Trustee may
request in writing, all information in the possession or
control of
8
--------------------------------------------------------------------------------
the Class A Note Registrar as to the names and addresses
of the Class A Note Holders, provided that the Trustee
will not have any obligations pursuant to this clause 4.2
while the Class A Notes are all Class A Book-Entry Notes.
4.3 (NOTE TRUSTEE'S OBLIGATIONS): The Note Trustee must
preserve, in as current form as is reasonably
practicable, the names and addresses of the Class A Note
Holders provided to it pursuant to clause 4.2 or
otherwise received by it in any capacity and must comply
with its obligations pursuant to section 312(b) of the
TIA.
4.4 (PROTECTION): The Trustee, the Note Trustee and the Class
A Note Registrar will have the protection of section
312(c) of the TIA in relation to the disclosure of
information in accordance with clause 4.2 and 4.3.
CLASS A NOTE REGISTER CONCLUSIVE
4.5 A Class A Note is not a certificate of title and the
Class A Note Register is the only conclusive evidence of
title to the Class A Notes.
5 STAMP DUTIES
--------------------------------------------------------------------------------
The Trustee shall pay any stamp, issue, documentary,
registration or other duty or tax duties including
interest and penalties, payable in the Commonwealth of
Australia, New South Wales, the Australian Capital
Territory, the United States of America and the United
Kingdom in respect of the creation, issue and offering of
the Class A Notes and the execution or delivery of this
deed and each other Transaction Document. Subject to
clause 23, the Trustee shall also indemnify the Note
Trustee and the Class A Note Holders from and against all
stamp, issue, documentary and other registration taxes
paid by any of them in any jurisdiction in connection
with any action taken by or on behalf of the Note Trustee
or the Class A Note Holders and Class A Note Owners to
enforce the Trustee's obligations under this deed or the
Class A Notes.
6 APPLICATION OF MONEYS RECEIVED BY THE NOTE TRUSTEE
--------------------------------------------------------------------------------
DECLARATION OF TRUST
6.1 All moneys received by the Note Trustee in respect of the
Class A Notes or amounts payable under this deed shall,
despite any appropriation of all or part of them by the
Trustee, be held by the Note Trustee on trust to apply
them (subject to clause 6.2):
(a) first, in payment of all costs, charges, expenses
and liabilities incurred by the Note Trustee
(including all fees and remuneration payable to it)
in carrying out its functions under this deed;
(b) secondly, pari passu and rateably in payment of
any amounts owing in respect of the Class A
Notes; and
9
--------------------------------------------------------------------------------
(c) thirdly, in payment of any balance to the Trustee
for distribution in accordance with the Master
Trust Deed and the Supplemental Deed in respect of
the Trust.
If the Note Trustee holds any moneys in respect of Class
A Notes which have become void or in respect of which
claims have become prescribed, the Note Trustee shall
hold them on these trusts.
ACCUMULATION
6.2 If the amount of the moneys at any time (other than on a
Payment Date) available for payment in respect of the
Class A Notes under clause 6.1 is less than 10 per cent
of the then Invested Amount of the Class A Notes and upon
receipt of a written direction from the Trust Manager,
the Note Trustee may invest such moneys in Authorised
Investments denominated in US Dollars until the next
Payment Date. In the event the Trust Manager does not
provide written instructions to the Note Trustee within 5
days of receipt of funds, the Note Trustee may at its
discretion, invest the funds in units of money market
funds, including money market funds managed or advised by
the Note Trustee or an affiliate thereof, having the
highest possible rating by a recognised rating agency in
the US. The Note Trustee may retain such investments and
accumulate the income from them until the earlier of the
next Payment Date or when the investments and the
accumulations, together with any other funds for the time
being under its control and available for such payment,
amount to at least 10 per cent of the Invested Amount of
the Class A Notes then outstanding and then such
investments, accumulations and funds (after deduction of,
or provision for, any applicable taxes) shall be applied
as specified in clause 6.1.
INVESTMENT
6.3 Moneys held by the Note Trustee may be invested in its
name or under its control in Authorised Investments in
accordance with clause 6.2 or deposited in its name or
under its control at such bank or other financial
institution which has the Required Credit Rating in US$.
If that bank or institution is the Note Trustee or a
subsidiary, holding or associated company of the Note
Trustee, it need only account for an amount of interest
equal to the largest amount of interest payable by it on
such a deposit to an independent customer. The Note
Trustee may at any time vary or transpose any such
investments or assets, and shall not be responsible for
any resulting loss, whether by depreciation in value or
otherwise.
7 COVENANTS
--------------------------------------------------------------------------------
THE TRUSTEE AND THE TRUST MANAGER
7.1 So long as any Class A Note is outstanding, each of the
Trustee and the Trust Manager severally covenants in
favour of the Note Trustee that it:
(a) (CLASS A NOTES) will comply with all of its
obligations under the Class A Notes (as if the
provisions of the Class A Notes,
10
--------------------------------------------------------------------------------
including the Class A Note Conditions, were set out
in full in this deed);
(b) (TRANSACTION DOCUMENTS):
(i) will comply with, perform and observe all
of its material obligations under all the
other Transaction Documents to which it
is a party; and
(ii) will enforce its rights under the Transaction
Documents in a manner consistent with its
respective obligations and duties under the
Transaction Documents;
(c) (NOTICE OF EVENT OF DEFAULT) will notify the Note
Trustee in writing promptly on becoming aware of
the occurrence of any Event of Default, Trust
Manager's Default, Servicer Termination Event,
Title Perfection Event or Trustee Default;
(d) (CERTIFICATE OF COMPLIANCE) will provide to the
Note Trustee within 120 days after the end of each
financial year of the Trust (commencing on the
financial year ending on 30 September 2001):
(i) in accordance with section 314(a)(4) of
the TIA, a certificate from its principal
executive officer, principal financial
officer or principal accounting officer
as to his or her knowledge of the
activities of the Trustee or the Trust
Manager, as the case may be, in respect
of the Trust during that year and of the
Trustee's or Trust Manager's, as the case
may be, compliance with all conditions,
covenants and other provisions under this
deed (and determined without regard to
any period of grace or requirement of
notice under this deed or any other
Transaction Document) and giving
reasonable details about any
non-compliance; and
(ii) a certificate (which may be part of the
certificate referred to in clause 7.1(d)(i))
from an Authorised Officer of the Trustee or
the Trust Manager, as the case may be,
stating whether to the best of his or her
knowledge in the period since the date of
execution of this deed (in the case of the
first such certificate) based on a review of
the activities referred to in clause
7.1(d)(i) or since the provision of the most
recent certificate under this clause
7.1(d)(ii) (in the case of any other such
certificate), an Event of Default, Title
Perfection Event, Servicer Termination Event,
Trust Manager's Default or Trustee Default
has occurred and, if any such event has
occurred, giving reasonable details of that
event;
11
--------------------------------------------------------------------------------
(e) (NOTICES TO CLASS A NOTE HOLDERS) will send to the
Note Trustee the form of each notice to be given to
Class A Note Holders and Class A Note Owners and,
once given, two copies of each such notice, such
notice to be in a form previously approved by the
Note Trustee;
(f) (FURTHER ACTS) will so far as permitted by
applicable law, do such further things as may be
necessary in the opinion of the Note Trustee to
give effect to this deed;
(g) (NOTICE OF LATE PAYMENT) will promptly upon request
by the Note Trustee, give notice to the Class A
Note Holders of any unconditional payment to the
Paying Agent or the Note Trustee of any sum due in
respect of the Class A Notes made after the due
date for such payment;
(h) (LISTING) will, in the case of the Trust
Manager only, use all reasonable endeavours to
maintain the listing of the Class A Notes on
the London Stock Exchange but, if it is unable
to do so, having used such endeavours, or if
the maintenance of such listing is agreed by
the Note Trustee to be unduly onerous and the
Note Trustee is satisfied that the interests of
the Class A Note Holders would not be thereby
materially prejudiced, instead use all
reasonable endeavours to obtain and maintain a
listing of the Class A Notes on another stock
exchange previously approved in writing by the
Note Trustee and, if necessary, following that
quotation or listing enter into a deed
supplemental to this deed to effect any
consequential amendments to this deed necessary
to comply with the requirements of any such
stock exchange;
(i) (CHANGE IN AGENTS) will give at least 14 days'
prior notice to the Class A Note Holders of any
future appointment, resignation or removal of an
Agent or of any change by an Agent of its Specified
Office and not make any such appointment or removal
without the Note Trustee's prior written approval;
(j) (PROVISION OF LEGAL OPINIONS) will procure the
delivery of legal opinions addressed to the Note
Trustee in accordance with section 314(b) of the
TIA:
(i) on the Closing Date, a legal opinion
either stating that the Global Master
Security Trust Deed and the Deed of
Charge in respect of the Trust has been
properly recorded and filed so as to make
effective the Security Interest intended
to be created by the Deed of Charge in
respect of the Trust, and reciting the
details of such action, or stating that
no such action is necessary to make such
Security Interest effective; and
(ii) within 120 days after the end of each
financial year of the Trust (commencing on
the financial year ending in 30 September
2001), a legal opinion either stating that
12
--------------------------------------------------------------------------------
such action has been taken with respect to
the recording, filing, re-recording (if any)
and re-filing (if any) of the Deed of Charge
in respect of the Trust as is necessary to
maintain the Security Interest created by
such Deed of Charge, and reciting the details
of such action or stating that no such
action, is necessary to maintain such
Security Interest;
(k) (CHANGE OF TRUST MANAGER) will, in the case of the
Trustee only, promptly notify the Note Trustee of
any retirement or replacement of the Trust Manager
pursuant to clause 23 of the Master Trust Deed and
of the appointment of a replacement Trust Manager;
(l) (CLASS A NOTES HELD BY TRUSTEE ETC) will, in
the case of the Trustee only, send to the Note
Trustee as soon as practicable after being so
requested by the Note Trustee a certificate of
the Trustee signed by an Authorised Officer of
the Trustee stating the number of Class A Notes
held or issued at the date of such certificate
by or on behalf of the Trustee;
(m) (BOOKS OF ACCOUNT) will, in the case of the
Trustee only, keep proper books of account and,
at any time after an Event of Default has
occurred or if the Note Trustee reasonably
believes that such an event has occurred, so
far as permitted by applicable law, allow the
Note Trustee and anyone appointed by it, access
to the books of account of the Trustee at all
times during normal business hours; and
(n) (FINANCIAL STATEMENTS ETC) will, in the case of
the Trustee only, send to the Note Trustee at
the time of their issue and in the case of
annual financial statements in any event within
180 days of the end of each financial year two
copies in English of the Trust's accounts and
every notice, statement or circular issued, or
which legally or contractually should be
issued, to the members or creditors (or any
class of them) of the Trust in their capacity
as such.
COVENANTS BETWEEN TRUSTEE AND TRUST MANAGER
7.2 (a) (OBLIGATIONS OF TRUST MANAGER): Without
limiting any other obligations of the Trust
Manager pursuant to any Transaction Document,
the Trust Manager covenants in favour of the
Trustee to prepare and submit to the Trustee
all documents required to be filed with or
submitted to the SEC or the London Stock
Exchange by the Trustee in relation to the
Class A Notes, the Trust or this deed at least,
where possible, 5 Business Days before such
filing or submission is required and to take
such other actions as may reasonably be taken
by the Trust Manager to perform or ensure the
performance by the Trustee of its obligations
under the TIA, the Exchange Act or the listing
rules of the United Kingdom Listing
13
--------------------------------------------------------------------------------
Authority in relation to the Class A Notes, the
Trust or this deed. No breach by the Trustee of any
obligation under the TIA, the Exchange Act, the
listing rules of the United Kingdom Listing
Authority or this deed will be considered to be
fraud, gross negligence or wilful default for the
purposes of clause 23.3 to the extent that it
results from a breach by the Trust Manager of this
clause 7.2(a).
(b) (OBLIGATION OF TRUSTEE): Subject to compliance
by the Trust Manager with clause 7.2(a), the
Trustee covenants in favour of the Trust
Manager to sign all documents and do all things
reasonably requested by the Trust Manager in
relation to the compliance by the Trustee or
the Trust Manager of its obligations under the
TIA, the Exchange Act or the listing rules of
the United Kingdom Listing Authority in
relation to the Class A Notes, the Trust or
this deed.
8 ENFORCEMENT
--------------------------------------------------------------------------------
ACTIONS FOLLOWING EVENT OF DEFAULT
8.1 If an Event of Default has occurred in respect of the
Trust, the Note Trustee must:
(a) (NOTIFY CLASS A NOTE HOLDERS): notify each
Class A Note Holder and such other persons as
are specified in section 313(c) of the TIA of
the Event of Default in respect of the Trust,
as the case may be, within 90 days, or such
shorter period as may be required by the rules
of any stock exchange on which the Class A
Notes are listed, after the occurrence of the
Event of Default in respect of the Trust
provided that, except in the case of a default
in payment of principal or interest on any
Class A Note, the Note Trustee may withhold
such notice if and so long as the board of
directors, the executive committee or a trust
committee of its directors and/or Authorised
Officers in good faith determine that
withholding the notice is in the interest of
Class A Note Holders;
(b) (DETERMINE WHETHER TO SEEK DIRECTIONS): if a
meeting of Voting Secured Creditors is to be
held under the Global Master Security Trust
Deed, determine whether it proposes to seek
directions from Class A Note Holders as to how
to vote at that meeting and, if so, whether it
proposes to instruct the Security Trustee to
delay the holding of that meeting while it
obtains such directions from the Class A Note
Holders; and
(c) (VOTE AT MEETING OF VOTING SECURED CREDITORS):
subject to clause 8.5, vote at any meeting of
Voting Secured Creditors held under the Global
Master Security Trust Deed. Any such votes by
the Note Trustee must be exercised for or
against any proposal at the meeting of Voting
Secured Creditors in the same proportion as
that of the aggregate Invested Amounts of the
Class A Notes held by Class A Note Holders who
have directed the Note Trustee to vote for or
against such a proposal.
14
--------------------------------------------------------------------------------
8.2 In addition to the above provisions of this clause 8, and
for avoidance of doubt, the Note Trustee also has the
power, subject to clause 23 and to the Global Master
Security Trust Deed:
(a) (ENFORCE FOLLOWING DEFAULT) in the event of a
default in repayment of the principal or
payment of interest by the Trustee in respect
of any Class A Note when and as the same shall
become due and payable, which default has
continued for a period of 10 days, to recover
judgment, in its own name and as the Note
Trustee, against the Trustee upon the Class A
Notes for the whole amount of such principal
and interest remaining unpaid;
(b) (FILE PROOFS) to file such proofs of claim and
other payments or documents as may be necessary
or advisable in order to have the claims of the
Note Trustee and the Class A Note Holders
allowed in any judicial proceedings in relation
to the Trustee upon the Class A Notes, the
Secured Creditors in relation to the Trust or
the Assets of the Trust;
(c) (COLLECT MONEYS) to collect and receive any moneys
or other property payable or deliverable on any of
those claims and to distribute those moneys; and
(d) (ENFORCE RIGHTS) if an Event of Default occurs
in respect of the Trust and is subsisting, to
proceed to protect and enforce its rights and
the rights of the Class A Note Holders by such
appropriate judicial proceedings as the Note
Trustee deems most effectual to protect and
enforce any such rights, whether for the
performance of any provision of this deed or in
aid of the exercise of any power under this
deed or to enforce any other proper remedy,
but nothing in this clause 8.2 is to be construed as
requiring the Note Trustee to take any such action unless
it has been directed to do so by the Class A Note Holders
and has been indemnified or put in funds to its
satisfaction by the Class A Note Holders against any
liability that it may incur as a result of taking such
action.
EVIDENCE OF DEFAULT
8.3 If the Security Trustee or the Note Trustee takes any
action against the Trustee to enforce any of the
provisions of any Class A Notes or this deed, proof that:
(a) as regards any Class A Note, the Trustee has not
paid any principal or interest due in respect of
that Class A Note shall (unless the contrary is
proved) be sufficient evidence that the Trustee has
not paid that principal or interest on all other
Class A Notes in respect of which the relevant
payment is then due; and
(b) as regards any Interest Amount, the Trustee has not
paid any interest due in respect of that Interest
Amount shall (unless the contrary is proved) be
sufficient evidence that the Trustee has
15
--------------------------------------------------------------------------------
not paid that interest on all other Interest
Amounts in respect of which the relevant payment is
then due.
OVERDUE INTEREST
8.4 The rates of interest payable in respect of any Class A
Note which has become due and repayable in full and which
has not been repaid shall be calculated at three-monthly
intervals, commencing on the expiry of the Interest
Period during which the Class A Note became due and
repayable in accordance with the provisions of Condition
6.4 of the Class A Note Conditions, except that no
notices need be given to Class A Note Holders in relation
to that interest.
RESTRICTIONS ON ENFORCEMENT
8.5 If any of the Class A Notes remain outstanding and are
due and payable otherwise than by reason of a default in
payment of any amount due on the Class A Notes, the Note
Trustee must not vote under the Global Master Security
Trust Deed to, or otherwise direct the Security Trustee
to, dispose of the Secured Property in respect of the
Trust or consent to the Security Trustee so disposing
unless either:
(a) a sufficient amount would be realised to discharge
in full all amounts owing to the Class A Note
Holders and any other amounts payable by the
Trustee in respect of the Trust ranking in priority
to or PARI PASSU with the Class A Notes; or
(b) the Note Trustee is of the opinion, reached
after considering at any time and from time to
time the advice of a merchant bank or other
financial adviser selected by the Note Trustee,
that the cash flow receivable by the Trustee
(or the Security Trustee under the Global
Master Security Trust Deed) will not (or that
there is a significant risk that it will not)
be sufficient, having regard to any other
relevant actual, contingent or prospective
liabilities of the Trustee, to discharge in
full in due course all the amounts referred to
in paragraph (a).
LIABILITY FOR ENFORCEMENT
8.6 Subject to clauses 12, 15.3, 15.5 and the mandatory
provisions of the TIA, the Note Trustee will not be
liable for any decline in the value, nor any loss
realised upon any sale or other dispositions made under
the Global Master Security Trust Deed and the Deed of
Charge in respect of the Trust, of any Secured Property
in respect of the Trust or any other property which is
charged to the Security Trustee by any other person in
respect of or relating to the obligations of the Trustee
or any third party in respect of the Trustee or the Class
A Notes or relating in any way to the Secured Property
except where caused by its fraud, gross negligence or
wilful default. Without limitation, the Note Trustee
shall not 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
clause 8.5.
8.7 The Note Trustee will not be liable for any loss, expense
or liability which may be suffered as a result of any
assets secured by the Global Master Security Trust Deed
and the Deed of Charge in respect of the
16
--------------------------------------------------------------------------------
Trust, the Secured Property or any deeds or documents of
title thereto being uninsured or inadequately insured or
by clearing organisations or their operator or by any
person on behalf of the Security Trustee or the Note
Trustee, except where caused by its fraud, gross
negligence or wilful default.
8.8 In giving any direction to the Security Trustee under
this deed or the Global Master 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.
9 PROCEEDINGS
--------------------------------------------------------------------------------
ACTING ONLY ON DIRECTION
9.1 (a) Subject to paragraph (b), the Note Trustee may
but shall not be bound to vote under the Global
Master Security Trust Deed and the Deed of
Charge in respect of the Trust, or otherwise
direct the Security Trustee under the Global
Master Security Trust Deed and the Deed of
Charge in respect of the Trust, or take any
proceedings, actions or steps under, or any
other proceedings pursuant to or in connection
with, the Global Master Security Trust Deed and
the Deed of Charge in respect of the Trust,
this deed or any Class A Notes unless directed
or requested to do so by an Extraordinary
Resolution of the Class A Note Holders and then
only if the Note Trustee 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 which it may incur by so doing.
(b) So long as any of the Class A Notes remain
outstanding, the Note Trustee shall not, and shall
not be bound to, act at the request or direction of
any Class A Note Holders other than the Class A
Note Holders under paragraph (a) unless:
(i) so to do would not, in its opinion be
materially prejudicial to the interests
of the Class A Note Holders; or
(ii) the relevant action is sanctioned by an
Extraordinary Resolution of the Class A Note
Holders.
(c) If the Note Trustee is entitled to vote at any
meeting of the Voting Secured Creditors on
behalf of the Class A Note Holders, the Note
Trustee must vote in accordance with the
directions of the Class A Note Holders and
otherwise in its absolute discretion. In
acting in accordance with the directions of the
Class A Note Holders, the Note Trustee must
exercise its votes for or against any proposal
to be put to a meeting in the same proportion
as that of the aggregate Invested Amounts of
the Class A Note Holders who have directed the
Note Trustee to vote for or against that
proposal.
17
--------------------------------------------------------------------------------
SECURITY TRUSTEE ACTING
9.2 Only the Security Trustee may enforce the provisions of
the Global Master Security Trust Deed and the Deed of
Charge in respect of the Trust and neither the Note
Trustee nor any Class A Note Holder is entitled to
proceed directly against the Trustee to enforce the
performance of any of the provisions of the Deed of
Charge, the Global Master Security Trust Deed or the
Class A Notes (including the Class A Note Conditions)
except that if the Security Trustee, having become bound
to take steps and/or to proceed under the Global Master
Security Trust Deed and the Deed of Charge in respect of
the Trust, fails to do so within 7 Business Days and such
failure is continuing, the Note Trustee failing which the
Class A Note Holders may proceed directly against the
Trustee but then only if and to the extent the Note
Trustee, failing which the Class A Note Holders, are able
to do so under Australian law.
NOTE TRUSTEE ALONE ENTITLED TO ACT
9.3 Only the Note Trustee may:
(a) direct the Security Trustee to enforce the
provisions of the Global Master Security Trust Deed
and the Deed of Charge in respect of the Trust or
otherwise; or
(b) enforce the provisions of this deed or the
Class A Notes (including the Class A Note
Conditions),
and no Class A Note Holder is entitled to take any of the
above actions or to proceed directly against the Note
Trustee to enforce the performance of any of the
provisions of this deed or the Class A Notes (including
the Class A Note Conditions) except that if the Note
Trustee, having become bound to take steps and/or proceed
under clause 8, this clause 9 and/or the Global Master
Security Trust Deed and the Deed of Charge in respect of
the Trust, fails to do so within a reasonable time and
such failure is continuing, the Class A Note Holders may
take such steps and/or proceedings directly but then only
if and to the extent the Class A Note Holders are able to
do so under Australian law.
10 REMUNERATION AND INDEMNIFICATION OF THE NOTE TRUSTEE
--------------------------------------------------------------------------------
NORMAL REMUNERATION
10.1 So long as any Class A Note is outstanding, the Note
Trustee will receive a fee as remuneration for:
(a) its services as note trustee; and
(b) the services of each Agent (as defined in the
Agency Agreement),
in an amount equal to such sum on such dates in each case
as may be agreed from time to time with the Trust
Manager. Such remuneration shall accrue from day to day
from the date of this deed until the Trust is terminated,
and is to be paid from the Assets of the Trust in
18
--------------------------------------------------------------------------------
accordance with and limited to the order of payment set
out in clauses 15.8 and 15.18 of the Supplemental Deed.
EXTRA REMUNERATION
10.2 At any time after the Trustee has failed to pay any sums
due under the Class A Notes, or if the Note Trustee
undertakes duties which it considers necessary or
expedient under this deed, or is requested by the Trust
Manager to undertake duties, and in either case which
they both agree to be of an exceptional nature or
otherwise outside the scope of the Note Trustee's normal
duties under this deed, the Note Trustee shall receive
such additional remuneration as they may agree or,
failing agreement as to any of the matters in this clause
(or as to such sums referred to in clause 10.1), as
determined by a merchant or investment bank (acting as an
expert and not as arbitrator) selected by the Note
Trustee and approved by the Trust Manager or, failing
such approval, nominated by the President for the time
being of the New South Wales Law Society. The expenses
involved in such nomination and such merchant bank's fee
shall be paid out of the Assets of the Trust. The
determination of such merchant or investment bank shall
be conclusive and binding on the Trust Manager, the
Trustee, the Note Trustee and the Class A Note Holders.
EXPENSES
10.3 The Note Trustee shall also, on each Payment Date, be
indemnified for all costs, charges, liabilities and
expenses properly incurred by the Note Trustee (except
for any overhead or general operating expenses incurred
by the Note Trustee) in the preparation and execution of
this deed and the performance of its functions under this
deed including, but not limited to, legal expenses in
connection with any legal proceedings properly brought by
the Note Trustee against the Trustee to enforce any
provision of this deed, the Class A Notes, and any stamp,
documentary, registration or other taxes or duties
including any GST paid by the Note Trustee in connection
with those documents and its supply of services.
INDEMNITY
10.4 Subject to clause 23, the Note Trustee shall be
indemnified in respect of all liabilities and expenses
properly incurred by it or by anyone appointed by it or
to whom any of its functions may be delegated by it in
the carrying out of its functions and against any loss,
liability, cost, claim, action, demand or expense
(including, but not limited to, all proper costs, charges
and expenses paid or incurred in disputing or defending
any of the foregoing) which any of them may incur or
which may be made against any of them arising out of or
in relation to or in connection with, its appointment or
the exercise of its functions.
CONTINUING EFFECT
10.5 Clauses 10.3 and 10.4 will continue in full force and
effect as regards the Note Trustee even if it no longer
is Note Trustee.
10.6 Amounts paid to the Note Trustee under this clause 10
will be paid in accordance with and are limited to the
order of payment set out in clauses 15.8 and 15.18 of the
Supplemental Deed.
19
--------------------------------------------------------------------------------
11 SUPPLEMENTAL PROVISIONS
--------------------------------------------------------------------------------
LIABILITY TO ACCOUNT
11.1 The Note Trustee is under no obligation to account to any
Interested Person for any moneys received pursuant to
this deed or any other Transaction Document other than
those received by the Note Trustee from the Trustee or
received or recovered by the Note Trustee under this deed
or any other Transaction Document, subject always to such
deductions and withholdings by the Note Trustee as are
authorised by this deed. Obligations of the Note Trustee
to any Interested Person or any other person under or in
connection with this deed can only be enforced against
the Note Trustee to the extent to which they can be
satisfied out of such moneys in accordance with this
deed.
CLASS A NOTES
11.2 The Note Trustee is not responsible for the receipt or
application of the proceeds of issue of any of the Class
A Notes or (except when acting as Class A Note Registrar
and to the extent specifically provided in this deed or
the Agency Agreement) for the exchange, transfer or
cancellation of any Note.
ADVICE
11.3 The Note Trustee may act on the opinion or advice of, or
information obtained from, any expert (including any
lawyer, valuer, accountant, banker, broker, credit-rating
agency or lead manager) and shall not be responsible to
anyone for any loss occasioned by so acting to the extent
it conforms with any applicable requirements of this deed
or the TIA. Any such opinion, advice or information may
be sent or obtained by letter, telex, telegraph, cable or
fax and the Note Trustee shall not be liable to anyone
for acting in good faith on any opinion, advice or
information purporting to be conveyed by such means even
if it contains some error or is not authentic.
NOTE TRUSTEE TO ASSUME PERFORMANCE
11.4 The Note Trustee need not notify anyone of the execution
of this deed or any other Transaction Document or any
transaction contemplated by them or do anything to find
out if an Event of Default has occurred in respect of the
Trust. Until it has actual knowledge or express notice to
the contrary, the Note Trustee may assume that no such
event has occurred and that the Trustee and each other
party to the Transaction Documents (other than itself) is
performing all its obligations under this deed and the
Class A Notes.
RESOLUTIONS OF CLASS A NOTE HOLDERS
11.5 The Note Trustee shall not be responsible for having
acted in good faith on a resolution purporting to have
been passed at a meeting of Class A Note Holders in
respect of which minutes have been made and signed even
if it is later found that there was a defect in the
constitution of the meeting or the passing of the
resolution or that the resolution was not valid or
binding on the Class A Note Holders.
RELIANCE
11.6 Subject to clause 15.2(b), the Note Trustee is, for any
purpose and at any time, entitled to rely on, act upon,
accept and regard as conclusive
20
--------------------------------------------------------------------------------
and sufficient (without being in any way bound to call
for further evidence or information or being responsible
for any loss that may be occasioned by such reliance,
acceptance or regard) any of the following:
(a) any information, report, balance sheet, profit and
loss account, certificate or statement supplied by
the Trustee, the Security Trustee, or the Trust
Manager or by an officer, auditor or solicitor of
the Trustee, the Security Trustee, or the Trust
Manager;
(b) any information or statement provided to it in
relation to the Class A Notes, the Class A Note
Holders or the Class A Note Owners by the
Depository or its nominee;
(c) all statements (including statements made or
given to the best of the maker's knowledge and
belief or similarly qualified) contained in any
information, report, balance sheet, profit and
loss account, certificate, opinion or statement
given pursuant to or in relation to this deed,
the Global Master Security Trust Deed, the Deed
of Charge in respect of the Trust, the Master
Trust Deed or the Supplemental Deed in respect
of the Trust provided the Note Trustee shall
examine, where applicable, the evidence
furnished to it pursuant to any provision of
this deed to determine whether or not such
evidence conforms to the requirements of this
deed;
(d) all accounts supplied to the Note Trustee pursuant
to this deed and all reports of the Auditor
supplied to the Note Trustee pursuant to this deed;
and
(e) notices and other information supplied to the
Note Trustee under this deed,
save, in each case, when it is actually aware that the
information supplied pursuant to subclauses (a) to (e) is
incorrect or incomplete.
CERTIFICATE SIGNED BY AUTHORISED OFFICER
11.7 If the Note Trustee, in the exercise of its functions,
requires to be satisfied or to have information as to any
fact or the expediency of any act, it may call for and
accept as sufficient evidence of that fact or the
expediency of that act a certificate signed by an
Authorised Officer of the Trustee or the Trust Manager as
to that fact or to the effect that, in their opinion,
that act is expedient and the Note Trustee need not call
for further evidence and shall not be responsible for any
loss occasioned by acting on such a certificate. Nothing
in this clause 11.7 is to be construed as either limiting
the Note Trustee's right to call for such evidence, in
its discretion, and to exercise its powers under this
deed so to do or permitting the Note Trustee to rely on
evidence of compliance with conditions precedent where
such reliance is not permitted by section 314 of the TIA.
21
--------------------------------------------------------------------------------
SIGNATURES
11.8 The Note Trustee may rely in good faith on the validity
of any signature on any Note, transfer, form or
application or other instrument or document unless the
Note Trustee has reason to believe that the signature is
not genuine. The Note Trustee is not liable to make good
out of its own funds any loss incurred by any person if a
signature is forged or otherwise fails to bind the person
whose signature it purports to be or on whose behalf it
purports to be made.
DEPOSIT OF DOCUMENTS
11.9 The Note Trustee may deposit this deed and any other
documents with any bank or entity whose business includes
the safe custody of documents or with any lawyer or firm
of lawyers believed by it to be of good repute and may
pay all sums due in respect thereof.
DISCRETION
11.10 The Note Trustee shall have absolute and uncontrolled
discretion as to the exercise of its functions and shall
not be responsible for any loss, liability, cost, claim,
action, demand, expense or inconvenience which may result
from their exercise or non-exercise except where it
arises from the Note Trustee's fraud, gross negligence or
wilful default.
AGENTS
11.11 Whenever it considers it expedient in the interests of
the Class A Note Holders, the Note Trustee may, in the
conduct of its trust business, instead of acting
personally, employ and pay an agent selected by it,
whether or not a lawyer or other professional person, to
transact or conduct, or concur in transacting or
conducting, any business and to do or concur in doing all
acts required to be done by the Note Trustee (including
the receipt and payment of money). The Note Trustee
remains liable for the acts or omissions of an agent
except where the Note Trustee has acted in good faith and
without negligence or breach of trust in relation to the
appointment of the agent. The Note Trustee is not bound
to supervise the proceedings or acts of any such agent.
DELEGATION
11.12 Whenever it considers it expedient in the interests of
the Class A Note Holders, the Note Trustee may delegate
to any person on any terms (including power to
sub-delegate) all or any of its functions. The Note
Trustee remains liable for the acts or omissions of a
delegate except where the Note Trustee has acted in good
faith and without negligence or breach of trust in
relation to the appointment of the delegate. The Note
Trustee shall not have any obligation to supervise such
delegate or be responsible for any loss, liability, cost,
claim, action, demand or expense incurred by reason of
any misconduct or default by any such delegate or
sub-delegate.
APPLICATION TO COURT
11.13 The Note Trustee may, whenever it thinks it expedient in
the interests of the Class A Note Holders, apply to any
court for directions in relation to any question of law
or fact arising either before or after an Event of
Default in respect of the Trust and assent to or approve
any applications of any Class A Note Holder, the Trustee
or the Trust Manager.
22
--------------------------------------------------------------------------------
INTERESTS OF CLASS A NOTE HOLDERS
11.14 In connection with the exercise by it of any of its
trusts, powers, authorities and discretions under this
deed or any other Transaction Document (including,
without limitation, any modification, waiver,
authorisation or determination), the Note Trustee must
where it is required to have regard to the interests of
the Class A Note Holders, have regard to the general
interests of the Class A Note Holders. The Note Trustee
will not incur any liability to any Class A Note Holder
as a result of the Note Trustee giving effect to this
clause.
ASSUMPTION AS TO PREJUDICE
11.15 The Note Trustee is entitled to assume, for the purposes
of exercising any power, trust, authority, duty or
discretion under or in relation to the Class A Notes,
this deed or any other Transaction Document in respect of
the Trust, that such exercise will not be materially
prejudicial to the interest of the Class A Note Holders
if each Designated Rating Agency has confirmed in writing
that such exercise will not result in the reduction,
qualification or withdrawal of the credit rating then
assigned by it to the Class A Notes (but nothing in this
clause is to be construed as requiring the Note Trustee
to obtain such confirmation).
RATINGS
11.16 Except as otherwise provided in this deed or any other
Transaction Document in respect of the Trust, the Note
Trustee has no responsibility for the maintenance of any
rating of the Class A Notes by any Designated Rating
Agency or any other person.
VALIDITY OF TRANSACTION DOCUMENTS
11.17 The Note Trustee is not responsible for the execution,
delivery, legality, effectiveness, adequacy, genuineness,
validity, performance, enforceability, admissibility in
evidence, form or content of this deed or any other
Transaction Document in respect of the Trust (other than
the execution and delivery by it of this deed and each
other Transaction Document in respect of the Trust to
which it is expressed to be a party and the performance
of those obligations expressed to be binding on it under
this deed and such Transaction Documents) and is not
liable for any failure to obtain any licence, consent or
other authority for the execution, delivery, legality,
effectiveness, adequacy, genuineness, validity,
performance, enforceability or admissibility in evidence
of this deed or any other Transaction Document in respect
of the Trust except to the extent specifically provided
in this deed or such Transaction Document. The Note
Trustee is not responsible for recitals, statements,
warranties or representations of any party (other than
itself) contained in any Transaction Document in respect
of the Trust (and is entitled to assume the accuracy and
correctness thereof).
DEFECT IN SECURITY
11.18 The Note Trustee is not bound or concerned to examine or
enquire into nor is it liable for any defect in or
failure to perfect any Security Interest created or
purported to be created by the Global Master Security
Trust Deed or the Deed of Charge in respect of the Trust
and the Note Trustee may accept without enquiry,
requisition or objection such title as the Security
Trustee may have to the Secured Property in
23
--------------------------------------------------------------------------------
respect of the Trust or any part thereof from time to
time and shall not be bound to investigate or make any
enquiry into the title of the Security Trustee or the
Secured Property in respect of the Trust or any part
thereof from time to time.
CLASS A NOTE HOLDERS RESPONSIBLE
11.19 Each Class A Note Holder is solely responsible for making
its own independent appraisal of and investigation into
the financial condition, creditworthiness, condition,
affairs, status and, nature of the Trustee and the Trust
and the Note Trustee does not at any time have any
responsibility for the same and no Class A Note Holder
may rely on the Note Trustee in respect of such appraisal
and investigation.
LIMIT ON OBLIGATION
11.20 No provision of this deed or any other Transaction
Document requires the Note Trustee to do anything which
may be contrary to any applicable law or regulation or to
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 shall have reasonable grounds for believing
that repayment of such funds or full indemnity against
such risk or liability is not assured to it. Except for
the obligations imposed on it under this deed, the Class
A Notes or any other Transaction Document, the Note
Trustee is not obliged to do or omit to do any thing,
including entering into any transaction or incurring any
liability unless the Note Trustee's liability, is limited
in a manner satisfactory to the Note Trustee in its
absolute discretion.
NO LIABILITY FOR BREACH
11.21 The Note Trustee is not to be under any liability
whatsoever for a failure to take any action in respect of
any breach by the Trustee of its duties as trustee of the
Trust of which the Note Trustee is not aware or in
respect of any Event of Default in respect of the Trust
of which the Note Trustee is not aware.
DISPUTE OR AMBIGUITY
11.22 In the event of any dispute or ambiguity as to the
construction or enforceability of this deed or any other
Transaction Document in respect of the Trust, or the Note
Trustee's powers or obligations under or in connection
with this deed or the determination or calculation of any
amount or thing for the purpose of this deed or the
construction or validity of any direction from Class A
Note Holders, provided the Note Trustee is using
reasonable endeavours to resolve such ambiguity or
dispute, the Note Trustee, in its absolute discretion,
may (but will have no obligation to) refuse to act or
refrain from acting in relation to matters affected by
such dispute or ambiguity.
LOSS TO CHARGED PROPERTY
11.23 The Note Trustee shall not be responsible for any loss,
expense or liability occasioned to the Secured Property
in respect of the Trust or any other property or in
respect of all or any of the moneys which may stand to
the credit of the Collections Account from time to time
however caused (including, without limitation, where
caused by an act or omission of the Security Trustee)
unless that loss is occasioned by the fraud, gross
negligence or wilful default of the Note Trustee.
24
--------------------------------------------------------------------------------
FORGED CLASS A NOTES
11.24 The Note Trustee shall not be liable to the Trustee or
any Class A Note Holder by reason of having accepted as
valid or not having rejected any Note purporting to be
such and later found to be forged or not authentic.
CONFIDENTIALITY
11.25 Unless ordered to do so by a court of competent
jurisdiction, the Note Trustee shall not be required to
disclose to any Class A Note Holder or Unitholder any
confidential financial or other information made
available to the Note Trustee by the Trustee.
DISCLOSURE
11.26 Subject to this deed, any applicable laws and any duty of
confidentiality owed by any Interested Person to any
other person, the Note Trustee may, for the purpose of
meeting its obligations under this deed, disclose to any
Class A Note Holder any confidential, financial or other
information made available to the Note Trustee by an
Interested Person or any other person in connection with
this deed.
DETERMINATIONS CONCLUSIVE
11.27 As between itself and the Class A Note Holders, the Note
Trustee may determine all questions and doubts arising in
relation to any of the provisions of this deed or the
Class A Note Conditions. Such determinations, whether
made upon such a question actually raised or implied in
the acts or proceedings of the Note Trustee, shall be
conclusive and shall bind the Note Trustee and the Class
A Note Holders.
CURRENCY CONVERSION
11.28 Subject to the Class A Note Conditions, the Global Master
Security Trust Deed, and the Deed of Charge in respect of
the Trust, where it is necessary or desirable to convert
any sum from one currency to another, it shall (unless
otherwise provided hereby or required by law) be
converted at such rate or rates, in accordance with such
method and as at such date as may reasonably be specified
by the Note Trustee but having regard to current rates of
exchange, if available. Any rate, method and date so
specified shall be binding on the Trustee, Trust Manager
and the Class A Note Holders.
CLASS A NOTES HELD BY THE TRUSTEE ETC
11.29 In the absence of actual knowledge or express notice to
the contrary, the Note Trustee may assume without enquiry
that no Class A Notes are for the time being held by or
on behalf of the Trustee.
LEGAL OPINIONS
11.30 Subject to the requirements of the TIA imposed on the
Note Trustee in relation to opinions, the Note Trustee
shall not be responsible to any person for failing to
request, require or receive any legal opinion relating to
any Class A Notes or for checking or commenting upon the
content of any such legal opinion.
25
--------------------------------------------------------------------------------
NO LIABILITY FOR TAX ON PAYMENTS
11.31 The Note Trustee has no responsibility whatsoever to any
Class A Note Holder or any other person in relation to
any deficiency in a payment by the Note Trustee to any
Class A Note Holders if that deficiency arises as a
result of the Note Trustee or the Trustee being subject
to any Tax in respect of that payment, the Secured
Property in respect of the Trust, the Global Master
Security Trust Deed, this deed or any income or proceeds
from them.
POWERS ADDITIONAL
11.32 The powers conferred upon the Note Trustee by this deed
are in addition to its powers under general law.
12 NOTE TRUSTEE LIABLE FOR NEGLIGENCE
--------------------------------------------------------------------------------
If the Note Trustee fails to show the degree of care and
diligence required of it as trustee having regard to the
provisions of this deed and the mandatory provisions of
the TIA conferring on it any trusts, powers, authorities
or discretions, nothing in this deed shall relieve or
indemnify it from or against any liability which would
otherwise attach to it in respect of any fraud, gross
negligence or wilful default of which it may be guilty.
13 WAIVER
--------------------------------------------------------------------------------
WAIVER
The Note Trustee may, without the consent of the Class A
Note Holders and without prejudice to its rights in
respect of any subsequent breach, from time to time and
at any time, if in its opinion the interests of the Class
A Note Holders will not be materially prejudiced thereby,
waive or authorise, on such terms as seem expedient to
it, any breach or proposed breach by the Trustee of this
deed or the Class A Note Conditions provided that the
Note Trustee shall not do so in contravention of an
express direction given by an Extraordinary Resolution of
the Class A Note Holders or a request made pursuant to
Condition 10.1. No such direction or request will affect
a previous waiver, authorisation or determination. Any
such waiver, authorisation or determination shall be
binding on the Class A Note Holders and, if the Note
Trustee so requires, will be notified to the Class A Note
Holders as soon as practicable.
14 NOTE TRUSTEE NOT PRECLUDED FROM ENTERING INTO CONTRACTS
------------------------------------------------------------------------------
The Note Trustee and any other person (including any
director or officer of the Note Trustee), whether or not
acting for itself, may acquire, hold or dispose of any
Class A Note or other security (or any interest therein)
of the Trustee or any other person, may enter into or be
interested in any contract or transaction with the
Trustee or any other party to a Transaction Document in
respect of the Trust and may act on, or as depository or
agent for, any committee or body of holders of any
securities of any such person in each case with the same
rights
26
--------------------------------------------------------------------------------
as it would have had if the Note Trustee were not acting
as Note Trustee and need not account for any profit or
commission received in connection with such arrangements.
This clause 14 only applies if the Note Trustee is
subject to section 311(a) of the TIA.
15 DUTIES OF NOTE TRUSTEE
--------------------------------------------------------------------------------
NOTE TRUSTEE'S GENERAL DUTIES
15.1 The Note Trustee must comply with the duties imposed on
it by this deed, the Class A Notes (including the Class A
Note Conditions) and each other Transaction Document in
respect of the Trust to which it is a party and must in
the exercise of all discretions vested in it by this deed
and all other Transaction Documents in respect of the
Trust except where expressly provided otherwise, have
regard to the interest of the Class A Note Holders.
DUTIES PRIOR TO AN EVENT OF DEFAULT
15.2 Prior to an Event of Default in respect of the Trust:
(a) the Note Trustee shall not be liable except for
the performance of such duties as are
specifically set out in this deed, the Class A
Notes (including the Class A Note Conditions)
or any other Transaction Document in respect of
the Trust to which it is a party and no implied
covenants or obligations on the part of the
Note Trustee are to be read into this deed
(subject to the mandatory requirements of the
TIA); and
(b) (subject to the mandatory requirements of the
TIA) the Note Trustee may conclusively rely, as
to the truth of the statements and the
correctness of the opinions expressed therein,
in the absence of bad faith on the part of the
Note Trustee, upon certificates or opinions
furnished to the Note Trustee and conforming to
the requirements of this deed provided that the
Note Trustee shall examine, where applicable,
the evidence furnished to it pursuant to any
provision of this deed to determine whether or
not such evidence conforms to the requirements
of this deed.
DUTIES FOLLOWING AN EVENT OF DEFAULT
15.3 If an Event of Default has occurred in respect of the
Trust and is subsisting, 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.
CERTAIN LIMITATIONS OF LIABILITY WHERE ACTING IN GOOD FAITH
15.4 The Note Trustee shall not be liable under this deed or
any Transaction Document in respect of the Trust for any
error of judgment made in good faith by an Authorised
Officer of the Note Trustee unless it is proved that the
Note Trustee was negligent in ascertaining the pertinent
facts.
27
--------------------------------------------------------------------------------
NOTE TRUSTEE NOT RELIEVED OF LIABILITY FOR NEGLIGENCE
15.5 Subject to clauses 15.2 and 15.4, nothing in this deed
will relieve the Note Trustee from liability for its own
fraud, its own grossly negligent action, its own grossly
negligent failure to act or its own wilful default.
Section 315(d)(3) of the TIA is expressly excluded by
this deed.
PREFERRED COLLECTION OF CLAIMS AGAINST TRUSTEE
15.6 The Note Trustee must comply with section 311(a) of the
TIA and the rules thereunder other than with respect to
any creditor relationship excluded from the operation of
section 311(a) by section 311(b) of the TIA. Following
its retirement or removal pursuant to clause 18, the Note
Trustee will remain subject to section 311(a) of the TIA
to the extent required by the TIA.
COMPLIANCE WITH SECTION 310 OF THE TIA
15.7 (SECTION 310(A) OF TIA): The Note Trustee must ensure
that it at all times satisfies the requirements of
section 310(a) of the TIA.
15.8 (CAPITAL): Without limiting the foregoing, the Note
Trustee must ensure that it at all times has 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.
15.9 (SECTION 310(B) OF TIA): The Note Trustee must at all
times comply with section 310(b) of the TIA, provided
that any indenture or indentures under which other
securities of the Trustee are outstanding will be
excluded from the operation of section 310(b)(1) of the
TIA if the requirements for such exclusion set out in
section 310(b)(1) of the TIA are met.
TRANSACTION DOCUMENTS
15.10 The Note Trustee must make available at the Note
Trustee's registered office for inspection by Class A
Note Holders a copy of each Transaction Document in
accordance with Condition 11 (provided that the Note
Trustee will not be in default of its obligations
pursuant to this clause 15.10 in respect of any
Transaction Document, other than a Transaction Document
to which the Note Trustee in respect of the Trust is a
party, a copy of which has not been provided to the Note
Trustee).
16 AMENDMENT
--------------------------------------------------------------------------------
AMENDMENT BY NOTE TRUSTEE
16.1 Subject to this clause 16 and to any approval required by
law, the Note Trustee, the Trust Manager and the Trustee
may together agree, without the consent of any Class A
Note Holders, by way of supplemental deed to alter, add
to or modify any provision of this deed or the Class A
Notes (including the Class A Note Conditions) so long as
such alteration, addition or modification is not a
Payment Modification and such alteration, addition or
revocation in the opinion of the Note Trustee:
28
--------------------------------------------------------------------------------
(a) (NECESSARY OR EXPEDIENT) is necessary or
expedient to comply with the provisions of any
statute or with the requirements of any
Governmental Agency;
(b) (MANIFEST ERROR) is made to correct a manifest
error or ambiguity, or is to correct inconsistency
between the provisions of any Transaction Document
and the description of the provisions thereof in
the related prospectus, or is of a formal,
technical or administrative nature only;
(c) (AMENDMENT TO LAW) is appropriate or expedient
as a consequence of an amendment to any statute
or altered requirements of any Governmental
Agency or any decision of any court (including,
without limitation, an alteration, addition or
modification which is in the opinion of the
Note Trustee appropriate or expedient as a
consequence of the enactment of a statute or an
amendment to any statute or ruling by the
Federal Commissioner of Taxation or Deputy
Commissioner of Taxation or any governmental
announcement or statement or any decision of
any court, in any case which has or may have
the effect of altering the manner or basis of
taxation of trusts generally or of trusts
similar to the Trust or the Note Trust); or
(d) (OTHERWISE DESIRABLE) in the opinion of the Note
Trustee and the Trustee is otherwise desirable for
any reason and:
(i) is not in the opinion of the Note Trustee
likely, upon coming into effect, to be
materially prejudicial to the interests of
Class A Note Holders; or
(ii) if it is in the opinion of the Note Trustee
likely, upon coming into effect, to be
materially prejudicial to the interests of
Class A Note Holders, the consent of an
Extraordinary Resolution of the Class A Note
Holders to the alteration, addition or
resolution has been obtained. For the purpose
of determining whether there has been an
Extraordinary Resolution of the Class A Note
Holders consenting to an alteration, addition
or revocation, Class A Notes which are
beneficially owned by the Trustee or the
Trust Manager or by any person directly or
indirectly controlling or controlled by or
under direct or indirect common control with
the Trustee or the Trust Manager, shall be
disregarded,
provided that the Note Trustee, the Trust Manager
and the Trustee may not alter, add to or modify any
provision of this deed or the Class A Notes unless
the Trust Manager has notified each Designated
Rating Agency 5 Business Days in advance.
29
--------------------------------------------------------------------------------
AMENDMENTS REQUIRING CONSENT OF ALL CLASS A NOTE HOLDERS
16.2 The Note Trustee, the Trust Manager and the Trustee
may together agree by way of supplemental deed to make or
effect a Payment Modification to this deed or the Class A
Notes (including the Class A Note Conditions) if, and
only if, the consent has first been obtained of each
Class A Note Holder to such Payment Modification.
COMPLIANCE WITH TIA
16.3 Any supplemental deed altering, adding to or revoking any
provision of this deed or the Class A Notes (including
the Class A Note Conditions) referred to in this clause
16 must conform, to the extent applicable, with the
requirements of the TIA.
NO DESIGNATED RATING AGENCY DOWNGRADE
16.4 The Note Trustee will be entitled to assume that any
proposed alteration, addition or revocation, other than a
Payment Modification, will not be materially prejudicial
to the interests of Class A Note Holders if each
Designated Rating Agency confirms in writing that if the
alteration, addition or revocation is effected this will
not lead to a reduction, qualification or withdrawal of
the then rating given to the Class A Notes by the
Designated Rating Agency.
DISTRIBUTION OF AMENDMENTS
16.5 Unless the Note Trustee agrees otherwise, the Trust
Manager on behalf of the Trustee must distribute to all
Class A Note Holders a copy of any amendment made
pursuant to this clause 16 as soon as reasonably
practicable after the amendment has been made.
AMENDMENTS BINDING ON CLASS A NOTE HOLDERS
16.6 Any alteration, addition or revocation of a provision of
this deed or the Class A Notes made pursuant to this
clause 16 is binding on all Class A Note Holders.
17 REPORTS
--------------------------------------------------------------------------------
REPORTS BY NOTE TRUSTEE
17.1 If so required by section 313(a) of the TIA, the Note
Trustee shall provide to each Class A Note Holder, and
such other persons as the Note Trustee is required by
section 313(c) of the TIA to provide, at intervals of not
more than 12 months (commencing as from the Closing Date)
a brief report of the events referred to in section
313(a) of the TIA that have occurred within the preceding
12 months and shall provide such additional reports to
Class A Note Holders, and such other persons as the Note
Trustee is required by section 313(c) of the TIA to
provide reports to, as are required by section 313(b) of
the TIA at the times specified in that section. A copy of
each such report at the time of its provision to Class A
Note Holders must be copied to the Trustee and the Trust
Manager and must be filed by the Note Trustee with the
SEC and each stock exchange, if any, on which the Class A
Notes are listed.
REPORTS BY TRUST MANAGER
17.2 The Trust Manager covenants that it will:
30
--------------------------------------------------------------------------------
(a) (COPY SECURITIES EXCHANGE ACT REPORTS TO NOTE
TRUSTEE) file:
(i) with the SEC at such times as are
required under the Exchange Act; and
(ii) with the Note Trustee, within 15 days
after it is required to file the same
with the SEC,
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 SEC
may from time to time by rules and regulations
prescribe), if any, which it may be required to
file with the SEC pursuant to section 13 or 15(d)
of the Exchange Act or, if it is not required to
file information, documents or reports pursuant to
either of such sections, then to file with the Note
Trustee and the SEC, in accordance with the rules
and regulations prescribed by the SEC, such of the
supplementary and periodic information, documents
and reports which may be required pursuant to
section 13 of the Exchange Act, in respect of a
security listed and registered on a national
securities exchange as may be prescribed in such
rules and regulations;
(b) (OTHER REPORTS) file with the Note Trustee and
the SEC, in accordance with rules and
regulations prescribed from time to time by the
SEC, such additional information, documents and
reports with respect to compliance by it with
the conditions and covenants of this deed as
may be required from time to time by such rules
and regulations; and
(c) (SUMMARIES TO CLASS A NOTE HOLDERS) transmit to
Class A Note Holders, and such other persons as
are required by section 314(a)(3) of the TIA,
such summaries of any information, documents
and reports required to be filed by the Trust
Manager pursuant to clauses 17.2(a) and (b) as
may be required by rules and regulations
prescribed from time to time by the SEC.
RESTRICTED SECURITIES
17.3 The Trustee and the Trust Manager each severally
covenants that it will forthwith notify the Note Trustee
if, at any time, after the Closing Date, any Class A
Notes become "restricted securities" (as defined in Rule
144(a)(3) of the Securities Act of 1933 of the United
States of America) and during any period during which the
Trustee or the Trust Manager is neither subject to
Sections 13 or 15(d) of the Exchange Act nor exempt from
reporting pursuant to Rule 12g3-2(d) under the Exchange
Act, make available to each holder of those Class A Notes
in connection with any resale of those Class A Notes and
to any prospective purchaser of the Class A Notes from
that holder, in each case upon request, the information
specified in and meeting the requirements of Rule
144(A)(d)(4) under the Securities Act.
31
--------------------------------------------------------------------------------
18 APPOINTMENT, RETIREMENT AND REMOVAL OF THE NOTE TRUSTEE
--------------------------------------------------------------------------------
APPOINTMENT
18.1 The Trustee has the power to appoint new note trustees
but no-one may be so appointed unless previously approved
by an Extraordinary Resolution of the Class A Note
Holders. The Trustee may not appoint a new Note Trustee
if such appointment would result in the suspension,
reduction, qualification or withdrawal of a rating
assigned to any of the Class A Notes by any Designated
Rating Agency. Any appointment of a new Note Trustee
shall be notified by the Trustee to the Class A Note
Holders and each Designated Rating Agency as soon as
practicable. Any new Note Trustee must forthwith execute
a deed on substantially the same terms as this deed.
RETIREMENT OF NOTE TRUSTEE
18.2 The Note Trustee covenants that it will retire as Note
Trustee if:
(a) (INSOLVENCY): an Insolvency Event occurs in
relation to the Note Trustee in its personal
capacity or in respect of its personal assets
(and not in its capacity as trustee of any
trust or in respect of any assets it holds as
trustee);
(b) (CEASES TO CARRY ON BUSINESS): it ceases to
carry on business;
(c) (CEASES TO BE AN ELIGIBLE TRUST CORPORATION):
it ceases to be an Eligible Trust Corporation;
(d) (CLASS A NOTE HOLDERS REQUIRE RETIREMENT): it
is so directed by the Extraordinary Resolution
of the Class A Note Holders;
(e) (BREACH OF DUTY): it fails to comply with any
of its obligations under any Transaction
Document with respect to the applicable Trust
and the Trustee and the Trust Manager
determines that this failure has had, or if
continued, will have, a Material Adverse
Effect, and if capable of remedy, the Note
Trustee does not remedy this failure within 14
days after the earlier of the following:
(i) the Note Trustee becoming aware of this
failure; and
(ii) receipt by the Note Trustee of written notice
with respect to this failure from either the
Trustee or the Trust Manager; and
(iii) the Note Trustee fails to satisfy any
obligation imposed on it under the TIA with
respect to a Trust or this deed; or
(f) (CHANGE IN OWNERSHIP): there is a change in
ownership of 50% or more of the issued equity
share capital of the Note Trustee from the
position as at the date of this deed or
effective control of the Note Trustee alters
from the position as at the date of this deed
unless in either case approved by the Trust
32
--------------------------------------------------------------------------------
Manager (whose approval must not be
unreasonably withheld); or
(g) there is an Event of Default in respect of the
Trust which requires the Note Trustee to resign by
virtue of its obligations under the TIA.
REMOVAL BY TRUSTEE
18.3 If the Note Trustee refuses to retire, the Trustee at the
direction of the Trust Manager is entitled to remove the
Note Trustee from office immediately by notice in writing
to the Note Trustee if any event referred to in clause
18.2 has occurred. On the retirement or removal of the
Note Trustee under the provisions of clause 18.2 or this
clause 18.3:
(a) (NOTIFY DESIGNATED RATING AGENCIES): the
Trustee must promptly notify each Designated
Rating Agency of such retirement or removal; and
(b) (APPOINT SUBSTITUTE NOTE TRUSTEE): subject to
any approval required by law, the Trustee is
entitled to and must use reasonable endeavours
to appoint in writing some other Eligible Trust
Corporation that is approved by each Designated
Rating Agency to be the substitute note trustee
and whose appointment is confirmed by each
Designated Rating Agency not to result in the
suspension, reduction, qualifications or
withdrawal of a rating assigned by them to any
of the Class A Notes.
NOTE TRUSTEE MAY RETIRE
18.4 The Note Trustee may retire at any time as trustee under
this deed upon giving 3 months (or such lesser time as
the Trust Manager, the Trustee and the Note Trustee
agree) notice in writing to the Trustee, the Trust
Manager, the Security Trustee and each Designated Rating
Agency, without giving any reason and without being
responsible for any liabilities incurred by reason of
such retirement provided that such retirement is in
accordance with this deed, provided further that no such
period of notice of retirement may expire within the
period of 30 days preceding each Payment Date. Upon such
retirement, the Note Trustee, subject to any approval
required by law, may appoint in writing any other
Eligible Trust Corporation that is approved by the Trust
Manager, which approval must not be unreasonably withheld
by the Trust Manager, as Note Trustee in its stead and
whose appointment is confirmed by each Designated Rating
Agency not to result in an Adverse Rating Effect in
respect of the Class A Notes. If the Note Trustee does
not propose a replacement by the date which is 1 month
prior to the date of its proposed retirement, the Trust
Manager is entitled to appoint a substitute note trustee,
which must be an Eligible Trust Corporation that is
approved by each Designated Rating Agency, as of the date
of the proposed retirement.
APPOINTMENT OF SUBSTITUTE NOTE TRUSTEE BY CLASS A NOTE HOLDERS
18.5 Notwithstanding clauses 18.2, 18.3 and 18.4, no
retirement or removal of the Note Trustee will be
effective until a substitute note trustee has
33
--------------------------------------------------------------------------------
been appointed in its place. If a substitute note trustee
has not been appointed under clauses 18.2, 18.3 and 18.4
at a time when the position of Note Trustee would, but
for this clause 18.5, become vacant in accordance with
those clauses, the Trustee must promptly advise the Class
A Note Holders who may appoint an Eligible Trust
Corporation nominated to act as Note Trustee.
SUCCESSOR TO NOTE TRUSTEE
18.6 On the execution by the Trustee, the Trust Manager and
any successor note trustee of an instrument effecting the
appointment of that successor note trustee, that
successor note trustee accepts the appointment and 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 in
respect of the Trust 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.
18.7 Any corporation:
(a) into which the Note Trustee is merged;
(b) with which the Note Trustee is consolidated;
(c) resulting from any merger or consolidation to
which the Note Trustee is a party;
(d) 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, consolidation, sale
or transfer becomes effective and to the extent permitted
by applicable law, become the successor Note Trustee
under this deed without the execution or filing of any
agreement or document or any further act on the part of
the parties to this deed, unless otherwise required by
the Trustee or the Trust Manager, and after that
effective date all references in this deed to the Note
Trustee shall be references to that corporation.
18.8 If no other person can be found to act as Note Trustee,
the Class A Note Holders may elect a Note Trustee from
among the holders of the Class A Notes (if any Class A
Notes are outstanding).
TRUSTEE AND TRUST MANAGER CANNOT BE APPOINTED
18.9 Notwithstanding the preceding provisions of this clause
18, none of the Trust Manager, the Trustee, any Support
Facility Provider nor any of their Related Entities may
be appointed as Note Trustee.
34
--------------------------------------------------------------------------------
NO LIMITATION OF TIA
18.10 Nothing in this clause 18 is to be construed as limiting
any right of a Class A Note Holder to take any action to
remove the Note Trustee in accordance with section 310(b)
of the TIA.
19 CLASS A NOTES HELD IN CLEARING SYSTEMS AND NOTICES
--------------------------------------------------------------------------------
CLASS A NOTES HELD IN CLEARING SYSTEMS
19.1 So long as any Class A Note is held on behalf of a
Clearing System, in considering the interests of Class A
Note Holders, the Note Trustee may have regard to any
information provided to it by such Clearing System or its
operator as to the identity (either individually or by
category) of its accountholders or participants with
entitlements to any such Class A Note and may consider
such interests on the basis that such accountholders or
participants were the holder(s) thereof.
20 CURRENCY INDEMNITY
--------------------------------------------------------------------------------
CURRENCY OF ACCOUNT AND PAYMENT
20.1 U.S. Dollars is the sole currency of account and payment
for all sums payable by the Trustee under or in
connection with this deed and the Class A Notes,
including damages.
EXTENT OF DISCHARGE
20.2 Any amount received or recovered in a currency other than
U.S. Dollars (whether as a result of, or of the
enforcement of, a judgment or order of a court of any
jurisdiction, in the winding-up or dissolution of the
Trustee or otherwise), by the Note Trustee or any Class A
Note Holder in respect of any sum expressed to be due to
it from the Trustee shall only discharge the Trustee to
the extent of the U.S. Dollar amount which the recipient
is able to purchase with the amount so received or
recovered in that other currency on the date of that
receipt or recovery (or, if it is not practicable to make
that purchase on that date, on the first date on which it
is practicable to do so).
INDEMNITY
20.3 If that U.S. Dollar amount is less than the U.S. Dollar
amount expressed to be due to the recipient under this
deed or the Class A Notes, the Trustee shall indemnify
the recipient against any loss sustained by it as a
result. In any event, the Trustee shall (subject to
clause 23) indemnify the recipient against the cost of
making any such purchase.
INDEMNITY SEPARATE
20.4 The indemnities in this clause 20 and in clause 10.5
constitute separate and independent obligations from the
other obligations in this deed, shall give rise to a
separate and independent cause of action, shall apply
irrespective of any indulgence granted by the Note
Trustee and/or any Class A Note Holder and shall continue
in full force and effect despite any judgment, order,
claim or proof for a liquidated amount in respect of any
sum due under this deed, the Class A Notes or any other
judgment or order.
35
--------------------------------------------------------------------------------
21 REPRESENTATIONS AND WARRANTIES
--------------------------------------------------------------------------------
BY THE TRUSTEE
21.1 The Trustee represents and warrants to the Note
Trustee that:
(a) (DUE INCORPORATION): it is duly incorporated
and has the corporate power to own its property
and to carry on its business as is now being
conducted;
(b) (CONSTITUTION): the execution, delivery and
performance of this deed does not violate its
constitution;
(c) (CORPORATE POWER): it has the power and has
taken all corporate and other action required
to enter into this deed and to authorise the
execution and delivery of this deed and the
performance of its obligations under this deed;
(d) (FILINGS): all corporate notices and all
registrations with the Australian Securities
and Investments Commission required to be filed
or effected, as applicable, by it in connection
with the execution, delivery and performance of
this deed have been filed or effected, as
applicable, and all such filings and
registrations are current, complete and
accurate;
(e) (EXECUTION, DELIVERY AND PERFORMANCE): its
execution, delivery and performance of this
deed does not violate any existing law or
regulation in any applicable jurisdiction or
any document or agreement to which it is a
party or which is binding upon it or any of its
assets;
(f) (AUTHORISATION): all consents, licences, approvals
and authorisations of every Governmental Agency
required to be obtained by it in connection with
the execution, delivery and performance of this
deed in its personal capacity have been obtained
and are valid and subsisting; and
(g) (NO BREACH): it is not in breach of any
material provision of the Master Trust Deed or
the Supplemental Deed in respect of the Trust.
BY THE TRUST MANAGER
21.2 The Trust Manager represents and warrants to the Note
Trustee that:
(a) (DUE INCORPORATION): it is duly incorporated
and has the corporate power to own its property
and to carry on its business as is now being
conducted;
(b) (CONSTITUTION): the execution, delivery and
performance of this deed does not violate its
constitution;
(c) (CORPORATE POWER): it has the power and has
taken all corporate and other action required
to enter into this deed and to authorise the
execution and delivery of this deed and the
performance of its obligations under this deed;
36
--------------------------------------------------------------------------------
(d) (FILINGS): all corporate notices and all
registrations with the Australian Securities
and Investments Commission required to be filed
or effected, as applicable, by it in connection
with the execution, delivery and performance of
this deed have been filed or effected, as
applicable, and all such filings and
registrations are current, complete and
accurate;
(e) (EXECUTION, DELIVERY AND PERFORMANCE): its
execution, delivery and performance of this
deed does not violate any existing law or
regulation in any applicable jurisdiction or
any document or agreement to which it is a
party or which is binding upon it or any of its
assets;
(f) (AUTHORISATION): all consents, licences, approvals
and authorisations of every Governmental Agency
required to be obtained by it in connection with
the execution, delivery and performance of this
deed in its personal capacity have been obtained
and are valid and subsisting;
(g) (INVESTMENT COMPANY): the Trust is not, and, if
all the parties to the Transaction Documents
perform their obligations under the Transaction
Documents, will not become, an "investment
company" as that term is defined in the
Investment Company Act of 1940 of the United
States of America;
(h) (COMPLIANCE WITH TIA): this deed has been duly
qualified under the TIA; and
(i) (NO BREACH): it is not in breach of any
material provision of the Master Trust Deed or
the Supplemental Deed in respect of the Trust.
BY THE NOTE TRUSTEE
21.3 The Note Trustee represents and warrants to the Trustee
and the Trust Manager that:
(a) (DUE INCORPORATION): it is duly incorporated
and has the corporate power to own its property
and to carry on its business as is now being
conducted;
(b) (CONSTITUTION): the execution, delivery and
performance of this deed does not violate its
constitution;
(c) (CORPORATE POWER): it has the power and has
taken all corporate and other action required
to enter into this deed and to authorise the
execution and delivery of this deed and the
performance of its obligations under this deed;
(d) (FILINGS): all corporate notices and all
registrations with the Australian Securities
and Investments Commission, the SEC or similar
office in its jurisdiction of incorporation and
in any other jurisdiction required to be filed
or effected, as
37
--------------------------------------------------------------------------------
applicable, by it in connection with the execution,
delivery and performance of this deed have been
filed or effected, as applicable, and all such
filings and registrations are current, complete and
accurate;
(e) (EXECUTION, DELIVERY AND PERFORMANCE): its
execution, delivery and performance of this
deed does not violate any existing law or
regulation in any applicable jurisdiction or
any document or agreement to which it is a
party or which is binding upon it or any of its
assets;
(f) (AUTHORISATION): all consents, licences, approvals
and authorisations of every Governmental Agency
required to be obtained or made by the Note Trustee
in connection with the execution, delivery and
performance of this deed have been obtained or made
and are valid and subsisting;
(g) (ELIGIBLE TRUST CORPORATION): it is an Eligible
Trust Corporation;
(h) (NO INSOLVENCY EVENT): no Insolvency Event has
occurred and is continuing in relation to the
Note Trustee; and
(i) (NO LITIGATION): no litigation, arbitration,
dispute or administrative proceeding has been
commenced or is pending or, to the knowledge of
the Note Trustee, threatened by any person
which will, or is likely to, have a material
and adverse effect on the ability of the Note
Trustee to perform its obligations under this
deed.
22 NOTICES
--------------------------------------------------------------------------------
NOTICES
22.1 Subject to clauses 22.4, 22.5 and 22.6, any notice,
approval, consent or other communication in connection
with this deed:
(a) must be given by an Authorised Officer of the
relevant party;
(b) must be in writing; and
(c) must be left at the address of the addressee or
sent by prepaid ordinary post to the address of
the addressee or sent by facsimile to the
facsimile number of the addressee specified in
clause 22.2 or any other address or facsimile
number any party may from time to time notify
to the other parties as its address for service
of communications pursuant to this deed.
INITIAL ADDRESSES
22.2 The initial address and facsimile numbers of the Trustee,
the Trust Manager and the Note Trustee are:
38
--------------------------------------------------------------------------------
TRUSTEE:
Address: ▇▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Manager, Securitisation
TRUST MANAGER:
Address: ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇ ▇) ▇▇▇▇ ▇▇▇▇
Attention: Manager, Primary Markets Group
NOTE TRUSTEE:
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: Global Structured Products Unit
TIME EFFECTIVE
22.3 Unless a later time is specified in it, a notice,
approval, consent or other communication takes effect
from the time it is received.
RECEIPT
22.4 A communication is taken to be received:
(a) in the case of a posted letter, on the third
(seventh, if posted to or from a place outside
Australia) day after posting; and
(b) in the case of a facsimile, on production of a
transmission report by the machine from which the
facsimile was sent which indicates that the
facsimile was sent in its entirety to the facsimile
number of the recipient notified for the purpose of
this clause.
However, if the time of deemed receipt of any notice is
not before 4.00 p.m. (local time at the address of the
recipient) on a Business Day it is deemed to have been
received at the commencement of business on the next
following Business Day.
22.5 Subject to clause 3.3(e), all notices with respect to the
Class A Note Holders are valid if despatched in
accordance with, and will be regulated by, the Class A
Note Conditions.
23 LIMITED RECOURSE
--------------------------------------------------------------------------------
LIMITATION ON TRUSTEE'S LIABILITY
23.1 The Trustee enters into this deed only in its capacity as
trustee of the Trust and in no other capacity. A
liability incurred by the Trustee arising under or in
connection with this deed or the Trust is limited to and
can be enforced against the Trustee only to the extent to
which it can be satisfied out of Assets of the Trust out
of which the Trustee is actually indemnified for the
liability. This limitation of the Trustee's
39
--------------------------------------------------------------------------------
liability applies despite any other provision of this
deed (other than clause 23.3) 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.
CLAIMS AGAINST TRUSTEE
23.2 The parties other than the Trustee may not ▇▇▇ the
Trustee in any capacity other than trustee of the Trust,
including seeking the appointment of a receiver (except
in relation to the Assets of the Trust), or a liquidator,
an administrator or any similar person to the Trustee or
prove in any liquidation, administration or arrangements
of or affecting the Trustee (except in relation to the
Assets of the Trust)
BREACH OF TRUST
23.3 The provisions of this clause 23 limiting the Trustee's
liability will not apply to any obligation or liability
of the Trustee to the extent that it is not satisfied
because under this deed or any other Transaction Document
in relation to the Trust or by operation of law there is
a reduction in the extent of the Trustee's
indemnification out of the Assets of the Trust, as a
result of the Trustee's fraud, gross negligence or wilful
default.
ACTS OR OMISSIONS
23.4 It is acknowledged that the Relevant Parties are
responsible under this deed and the other Transaction
Documents in relation to the Trust for performing a
variety of obligations relating to the Trust. No act or
omission of the Trustee (including any related failure to
satisfy its obligations or breach of representation or
warranty under this deed) will be considered fraud, gross
negligence or wilful default for the purpose of clause
23.3 if and to the extent the act or omission was caused
or contributed to by any failure by any Relevant Party or
any other person appointed by the Trustee under any
Transaction Document (other than a person whose acts or
omissions the Trustee is liable for in accordance with
any Transaction Document) to fulfil its obligations
relating to the Trust or by any other act or omission of
any Relevant Party or any other such person regardless of
whether or not the act or omission is purported to be
done on behalf of the Trustee.
23.5 No attorney, agent, receiver or receiver and manager
appointed in accordance with this deed or any other
Transaction Document has authority to act on behalf of
the Trustee in a way that exposes the Trustee to any
personal liability, and no act or omission of any such
person will be considered fraud, gross negligence or
wilful default of the Trustee for the purpose of clause
23.3.
23.6 The Trustee is not obliged to do anything or refrain from
doing anything under or in connection with this deed
(including incur a liability) unless the Trustee's
liability is limited in the same manner as set out in
this clause.
40
--------------------------------------------------------------------------------
24 TERMINATION
--------------------------------------------------------------------------------
At any time after the expiry of the latest period after
which the right to any payment of interest or principal
becomes void in accordance with the Class A Note
Conditions, the Trustee may by notice to the Note Trustee
and copied to the Trust Manager terminate the trust
constituted by this deed.
25 TRUST INDENTURE ACT
--------------------------------------------------------------------------------
CERTIFICATES AND OPINIONS
25.1 (a) (CLASS A NOTE CONDITIONS PRECEDENT) Upon any
application or request by the Trustee to the Note
Trustee to take any action under any provision of
this deed, the Trustee must furnish to the Note
Trustee:
(i) a certificate from two Authorised Officers of
the Trustee stating that all conditions
precedent, if any, provided for in this deed
relating to the proposed action have been
complied with;
(ii) Counsel's Opinion stating that all such
conditions precedent, if any, have been
complied with; and
(iii) if required by the TIA, a certificate
from an accountant meeting the applicable
requirements of section 314(c)(3) of the
TIA,
provided that in the case of any such application
or request as to which the furnishing of such
documents is specifically required by any other
provision of this deed no additional certificate or
opinion need be furnished.
(b) (FAIR VALUE) The Trustee must furnish to the Note
Trustee a certificate or opinion of an engineer,
appraiser or other expert as to the fair value:
(i) of any property or securities to be released
from the Security Interest created by the
Global Master Security Trust Deed and the
Deed of Charge in respect of the Trust, where
this is required by section 314(d)(1) of the
TIA;
(ii) to the Trustee of any securities the deposit
of which with the Trustee is to be made the
basis for the release of any property or
securities subject to the Security Interest
created by the Global Master Security Trust
Deed and the Deed of Charge in respect of the
Trust, where this is required by section
314(d)(2) of the TIA; and
(iii) to the Trustee of any property the subjection
of which to the Security Interest created by
the Global Master
41
--------------------------------------------------------------------------------
Security Trust Deed and the Deed of Charge in
respect of the Trust is to be made the basis
for the release of any property or securities
subject to the Security Interest created by
the Global Master Security Trust Deed and the
Deed of Charge in respect of the Trust, where
this is required by section 314(d)(3) of the
TIA,
and every such certificate or opinion must comply
with the relevant provisions of section 314(d) of
the TIA (and, except as provided otherwise in
section 314 of the TIA, may be given by an
Authorised Officer of the Trustee).
(c) (FORM OF CERTIFICATES AND OPINIONS) Each
certificate or opinion with respect to compliance
with a condition or covenant provided for in this
deed (other than the certificate referred to in
clause 7.1(d)(i)) shall include:
(i) a statement that each signatory of such
certificate or opinion has read such covenant
or condition and the definitions used
therein;
(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.
UNDERTAKING FOR COSTS
25.2 (a) (UNDERTAKING) Subject to clause 25.2(b), all
parties to this deed agree, and each Class A
Note Holder by such Class A Note Holder's
acceptance of the Class A Notes are 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) (EXCEPTIONS)The provisions of clause 25.2(a)
shall not apply to:
42
--------------------------------------------------------------------------------
(i) any suit instituted by the Note Trustee;
(ii) any suit instituted by any Class A Note
Holder, or group of Class A Note Holders, in
each case holding in the aggregate Class A
Notes with an Invested Amount of more than
10% of the then aggregate Invested Amount of
all Class A Notes; or
(iii) any suit instituted by any Class A Note
Holder for the enforcement of the payment of
principal or interest on any Class A Note on
or after the respective due dates expressed
in such Class A Note and in this deed.
EXCLUSION OF SECTION 316(A)(1)
25.3 Section 316(a)(1) of the TIA is expressly excluded by
this deed.
UNCONDITIONAL RIGHTS OF CLASS A NOTE HOLDERS TO RECEIVE PRINCIPAL AND
INTEREST
25.4 Notwithstanding any other provisions in this deed, any
Class A Note Holder shall have the right, which is
absolute and unconditional, to receive payment of the
principal of and interest, if any, on each Class A Note
held by it on or after the respective due dates thereof
expressed in such Class A Note or in this deed or to
institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent
of such Class A Note Holder, except to the extent that
this deed or the Global Master Security Trust Deed
contains provisions limiting or denying the right of any
Class A Note Holder to institute any such suit, if and 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 Global Master
Security Trust Deed upon any property subject to such
Security Interest.
CONFLICT WITH TRUST INDENTURE ACT
25.5 The provisions of section 310 to 317 (inclusive) of the
TIA are incorporated into, are a part of and govern this
deed, whether or not contained in this deed, unless
expressly excluded by this deed in accordance with the
TIA. If any provision of this deed limits, qualifies or
conflicts with any provision that is deemed to be
included in this deed by virtue of any of the provisions
of the TIA, such provision deemed to be included in this
deed will prevail.
26 MISCELLANEOUS
--------------------------------------------------------------------------------
CERTIFICATE
26.1 A certificate signed by the Trustee, Trust Manager or
Note Trustee or its solicitors about a matter or about a
sum payable to the Trustee, the Trust Manager or the Note
Trustee in connection with this deed or the Supplemental
Deed is sufficient evidence of the matter or sum stated
in the certificate unless the matter or sum is proved to
be false.
EXERCISE OF RIGHTS
26.2 The Trustee, Trust Manager, Note Trustee or an attorney
appointed under this deed may exercise a right, power or
remedy at its discretion,
43
--------------------------------------------------------------------------------
and separately or concurrently with another right, power
or remedy. A single or partial exercise of a right, power
or remedy by the person does not prevent a further
exercise of that or an exercise of any other right, power
or remedy. Failure by the person to exercise or delay in
exercising a right, power or remedy does not prevent its
exercise. The person with the right, power or remedy is
not liable for any loss caused by its exercise, attempted
exercise, failure to exercise or delay in exercising it
except in the case of its fraud, gross negligence or
wilful default.
WAIVER AND VARIATION
26.3 A provision of or a right created under this deed may not
be waived or varied except in writing signed by the party
or parties to be bound.
SUPERVENING LEGISLATION
26.4 Any present or future legislation which operates to vary
the obligations of the Trustee, Trust Manager or Note
Trustee in connection with this deed with the result that
the rights, powers or remedies of the Trustee, Trust
Manager or Note Trustee are adversely affected
(including, without limitation, by way of delay or
postponement) is excluded except to the extent that its
exclusion is prohibited or rendered ineffective by law.
APPROVALS AND CONSENT
26.5 The Trustee, the Trust Manager, Note Trustee or an
attorney appointed under this deed may give conditionally
or unconditionally or withhold its approval or consent in
its absolute discretion, unless this deed expressly
provides otherwise.
REMEDIES CUMULATIVE
26.6 The rights, powers and remedies provided in this deed are
cumulative with and not exclusive of the rights, powers
or remedies provided by law independently of this deed.
INDEMNITIES
26.7 Each indemnity in this deed is a continuing obligation,
separate and independent from the other obligations of
the Trustee, the Trust Manager and the Note Trustee and
survives termination of this deed. It is not necessary
for the Trustee, the Trust Manager or the Note Trustee to
incur expense or make payment before enforcing a right of
indemnity conferred by this deed.
TIME OF THE ESSENCE
26.8 Time is of the essence in this deed in respect of an
obligation of the Trustee or Note Trustee to pay money.
RECEIPTS
26.9 The receipt of a Receiver, or an Authorised Officer of
the Trustee or Note Trustee, releases the person paying
money to the Receiver, the Trustee or the Note Trustee in
connection with this deed from:
(a) liability for the money paid or expressed to be
received; and
44
--------------------------------------------------------------------------------
(b) being concerned to see to its application or
being answerable or accountable for its loss or
misapplication.
ACKNOWLEDGMENT
26.10 The parties acknowledge and agree that the Trustee, the
Trust Manager and the Note Trustee in exercising their
powers and discretions under this deed, and in performing
their obligations under this deed, must act in accordance
with their duties and obligations under this deed and may
exercise such powers and discretions as provided in this
deed and (without limitation) in forming any opinion may
obtain and act upon the advice of persons who are not
parties to this deed.
26.11 The parties acknowledge that they are bound by the terms
of this deed.
DISCLOSURE OF INFORMATION
26.12 Subject to this deed, the Trustee and the Note Trustee
are not required (unless ordered so to do by a court of
competent jurisdiction) to disclose to any Unitholder,
Secured Creditor or any other person confidential,
financial or other information made available to the
Trustee and the Note Trustee in connection with this
deed.
RIGHTS CUMULATIVE
26.13 The rights, powers and remedies provided in this deed are
cumulative and not exclusive of the rights, powers or
remedies provided by law independently of this deed.
SIGNATURES
26.14 The Trustee, the Trust Manager and the Note Trustee may
rely on the validity of any signature on any transfer,
form of application or other instrument or document
unless the Trustee, the Trust Manager or the Note Trustee
(as the case may be) has reasonable grounds to believe
that the signature is not genuine. Neither the Trustee,
the Trust Manager nor the Note Trustee is liable to make
good out of its own funds any loss incurred by any person
if a signature is forged or otherwise fails to bind the
person whose signature it purports to be or on whose
behalf it purports to be made. Any such loss, subject to
any right of reimbursement from any other person
(including the Trust Manager) is to be borne by the
relevant Trust in respect of which the loss is incurred.
MEETINGS
26.15 A reference in this deed to a meeting of Secured
Creditors of a Trust is a reference to a meeting of
Secured Creditors of the Trust conducted in accordance
with the provisions of the Global Master Security Trust
Deed and the relevant Deed of Charge.
27 GOVERNING LAW
--------------------------------------------------------------------------------
GOVERNING LAW
27.1 This deed and each Trust are governed by the law in force
in New South Wales and the rights, liabilities and
obligations of the Trust Manager, the Trustee, the Note
Trustee, the Unitholders and the
45
--------------------------------------------------------------------------------
Secured Creditors are governed by the laws in force in
New South Wales.
SUBMISSION TO JURISDICTION
27.2 Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of New South
Wales and courts of appeal from them. Each party waives
any right it has to object to an action being brought in
those courts including, without limitation, by claiming
that the action has been brought in an inconvenient forum
or that those courts do not have jurisdiction.
SERVICE
27.3 Without preventing any other mode of service, any
document in an action (including, without limitation, any
writ of summons or other originating process or any third
or other party notice) may be served on any party by
being delivered to or left for that party at its address
for service of notices under clause 22.
28 COUNTERPARTS
--------------------------------------------------------------------------------
This Note Trust Deed may consist of any number of
counterparts and all counterparts taken together will be
deemed to constitute one and the same instrument.
EXECUTED as a deed.
46
--------------------------------------------------------------------------------
SCHEDULE 1 FORM OF CLASS A NOTE
--------------------------------------------------------------------------------
Registered CUSIP No:
No. R- ISIN No.:
Common Code:
Unless this Class A Note is presented by an authorised representative of The
Depository Trust Company, a New York corporation, ("DTC") to the Trustee (as
defined below) or its agent for registration of transfer, exchange or payment,
and any Class A Note issued is registered in the name of Cede & Co or in such
other name as is requested by an authorised representative of DTC (and any
payment is made to Cede & Co or to such other entity as is requested by an
authorised representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE OF THE
CLASS A NOTE FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much
as the registered owner hereof, Cede & Co, has an interest in this Class A Note.
[THE ABOVE PARAGRAPH IS TO APPEAR IN THE CLASS A BOOK ENTRY NOTES ONLY.]
THE PRINCIPAL OF THIS CLASS A NOTE IS PAYABLE IN INSTALMENTS AND MAY BE SUBJECT
TO CHARGE-OFFS OR EXCHANGE AS SET FORTH BELOW, IN THE NOTE TRUST DEED AND IN THE
CLASS A NOTE CONDITIONS. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
CLASS A NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE OF THIS
CLASS A NOTE.
PERPETUAL TRUSTEE COMPANY LIMITED (ABN 42 000 001 007)
(a limited liability company incorporated under the law of
New South Wales, Australia)
in its capacity as trustee ("TRUSTEE") of the Kingfisher Trust 2001-1G
(the "TRUST")
CLASS A NOTE
This Class A Note is issued by the Trustee in an initial aggregate principal
amount of US$[ ] (the "CLASS A NOTES") and is:
(a) constituted by a Note Trust Deed (the "NOTE TRUST DEED") dated [ ] 2001
made between the Trustee, ANZ Capel Court Limited (the "TRUST MANAGER")
and The Bank of New York, New York Branch (the "NOTE TRUSTEE"); and
(b) issued subject to, and with the benefit of, amongst other things:
(i) a Master Trust Deed (the "MASTER TRUST DEED") dated 1 August 2000
made between the Trust Manager and the Trustee as amended from time
to time;
(ii) a Supplemental Deed (the "SUPPLEMENTAL DEED") dated [ ]
made between Australia and New Zealand Banking Group Limited,
the Trust Manager, the Trustee, P.T. Limited ("SECURITY
Trustee") and each Unitholder;
(iii) a Global Master Security Trust Deed (the "GLOBAL MASTER SECURITY
TRUST DEED") dated [ ] 2001 made between the Trustee,
the Trust Manager, the Note Trustee and the Security Trustee;
(iv) the Agency Agreement ("AGENCY AGREEMENT") dated [ ] 2001 made
between the Trustee, the Note Trustee, the Trust Manager, The Bank
of New York, New York Branch as Principal Paying Agent, Class A
Note Registrar and Calculation Agent and The Bank of New York,
London Branch as Paying Agent;
47
--------------------------------------------------------------------------------
(v) a Deed of Charge dated [ ] 2001 made between
the Trustee, the Security Trustee, the Trust Manager and the
Note Trustee;
(vi) the Note Trust Deed; and
(vii) the Class A Note Conditions as set out in the Annexure to this
Class A Note (the "CLASS A NOTE CONDITIONS").
Unless defined in this Class A Note, words and phrases defined in, or
incorporated in, either or both of the Note Trust Deed and the Class A Note
Conditions have the same meaning in this Class A Note. Where there is any
inconsistency in a definition between the Note Trust Deed and the Class A Note
Conditions, the Note Trust Deed prevails.
If this Class A Note is a Class A Book Entry Note and the Trustee is obliged to
issue Class A Definitive Notes under clause 3.4(a) of the Note Trust Deed, this
Class A Note will be exchangeable in whole upon its surrender at the offices of
the Class A Note Registrar as specified in the Class A Note Conditions or
notified to Class A Note Holders from time to time (or such other place as the
Note Trustee may agree) for Class A Definitive Notes and the Trustee shall
execute and procure that the Note Trustee authenticates and delivers in full
exchange for this Class A Note, Class A Definitive Notes in aggregate principal
amount equal to the then Invested Amount of this Class A Note subject to and in
accordance with clause 3.4(b) of the Note Trust Deed. The Trustee is not obliged
to issue Class A Definitive Notes until 30 days after the occurrence of an event
set out in clause 3.4(a) of the Note Trust Deed.
The Trustee in its capacity as trustee of the Trust, subject to and in
accordance with this Class A Note, the Class A Note Conditions, the Agency
Agreement, the Supplemental Deed and the Note Trust Deed, promises to pay to [ ]
as the registered holder of this Class A Note, or to registered assigns of this
Class A Note, the principal sum of US$[ ] (or such part of that amount as may
become repayable under the Class A Note Conditions, the Supplemental Deed and
the Note Trust Deed) on such date(s) as the principal sum (or any part of it)
becomes repayable in accordance with the Class A Note Conditions, the
Supplemental Deed and the Note Trust Deed and to pay interest in arrears on each
Payment Date on the Invested Amount of this Class A Note at rates determined in
accordance with Condition 6 of the Class A Note Conditions. The Class A
Definitive Notes to be issued on that exchange will be in registered form each
in the denomination of US$100,000 or integral multiples thereof. If the Trustee
fails to meet its obligations to issue Class A Definitive Notes, this shall be
without prejudice to the Trustee's obligations with respect to the Class A Notes
under the Note Trust Deed, the Master Trust Deed, the Supplemental Deed, the
Agency Agreement and this Class A Note.
Payments of interest on this Class A Note due and payable on each Payment Date,
together with the instalment of principal, if any, shall be payable in
accordance with Condition 8.1 of the Class A Note Conditions and the Agency
Agreement. If this Class A Note is a Class A Book-Entry Note such payments will
be made to the nominee of the Depository (initially, such nominee to be Cede &
Co.) and each of the persons appearing from time to time in the records of DTC
as the holder of a beneficial interest in a Class A Note will be entitled to
receive any payment so made in respect of that Class A Note only in accordance
with the respective rules and procedures of DTC. Such persons will have no claim
directly against the Trustee in respect of payments due on the Class A Notes
which must be made by the holder of this Class A Note, for so long as this Class
A Note is outstanding.
On any payment of principal and/or interest on the Class A Notes details of that
payment shall be endorsed by or on behalf of the Trustee in the Class A Note
Register and, in the case of payments of principal, the Invested Amount and the
Stated Amount of the Class A Notes shall be reduced for all
48
--------------------------------------------------------------------------------
purposes by the amount so paid and endorsed in the Class A Note Register. Any
such record shall be prima facie evidence that the payment in question has been
made.
This Class A Note shall not become valid for any purpose unless and until the
Certificate of Authentication attached has been signed by an Authorised Officer
or other duly appointed representatives of the Note Trustee.
This Class A Note is governed by, and shall be construed in accordance with, the
laws of New South Wales, Australia.
If this Class A Note is a Class A Book-Entry Note, this Class A Note is a global
note.
IN WITNESS the Trustee has caused this Class A Note to be signed manually by a
person duly authorised on its behalf.
PERPETUAL TRUSTEE COMPANY LIMITED by:
.........................................................
Authorised Officer/duly appointed representative
IMPORTANT NOTES:
Neither the Trust Manager nor the Trustee is under any obligation at any time to
repurchase any Class A Notes from Class A Note Holders.
This Class A Note is not a certificate of title and the Class A Note Register on
which these Class A Notes are registered is the only conclusive evidence of the
title of the abovementioned person to the Class A Notes.
The Trustee's liability is limited in accordance with Condition 12. The Trustee
issues this Class A Note only in its capacity as trustee of the Trust and in no
other capacity. A liability arising under or in connection with the Trust under
the Master Trust Deed, the Supplemental Deed, the Note Trust Deed, this Class A
Note or any other Transaction Document is limited to and can be enforced against
the Trustee only to the extent to which it can be satisfied out of the Assets of
the Trust out of which the Trustee is actually indemnified for the liability.
This limitation of the Trustee's liability will not apply to any obligation or
liability of the Trustee to the extent that it is not so satisfied because under
any Transaction Document in relation to the Trust or by operation of law there
is a reduction in the extent of the Trustee's indemnification out of the Assets
of the Trust as a result of any fraud, gross negligence or wilful default on the
part of the Trustee. Subject to the terms of the Transaction Documents, the
Trustee will have no liability for any act or omission of the Trust Manager or
of any other person.
Transfers of the Class A Notes must be pursuant to the annexed form of
assignment and otherwise in accordance with the Agency Agreement.
None of the Trust Manager or the Australia and New Zealand Banking Group Limited
(the "BANK") as the Seller and Servicer, or any other affiliate of the Bank or
the Trustee in its personal capacity or as trustee of any other trust guarantees
the payment or repayment of any principal, interest or other amounts owing in
respect of the Class A Notes.
The Class A Notes do not represent deposits or other liabilities of the Bank.
The holding of the Class A Notes is subject to investment risk, including
possible delays in payment and loss of income and principal invested. No party
to the Transaction Documents for the Trust, or any affiliate of any
49
--------------------------------------------------------------------------------
of them, stand in any way behind the capital value and/or performance of the
Class A Notes, or the Assets held by the Trust.
50
--------------------------------------------------------------------------------
ASSIGNMENT
Social Security or taxpayer I.D., or other identifying number of assignee:
For value received, the undersigned hereby sells, assigns and transfers unto
----------------------------------
(name and address of assignee)
the within Class A Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ________________________ , attorney to transfer the
said Class A Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: *
Signature Guaranteed:
Signatures must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Class A Note
Registrar, which requirements include
membership or participation in STAMP or
such other "signature guarantee program"
as may be determined by the Class A Note
Registrar in addition to, or in
substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934,
as amended.
* NOTE: The signatures of this assignment must correspond with the name of the
registered owner as it appears on the face of the within Class A Note in every
particular without alteration, enlargement or any change whatsoever.
51
--------------------------------------------------------------------------------
CERTIFICATE OF AUTHENTICATION
This Class A Note is authenticated by The Bank of New York, New York Branch as
Note Trustee and until so authenticated shall not be valid for any purpose.
THE BANK OF NEW YORK, NEW YORK BRANCH by:
......
Authorised Officer/duly appointed representative
Dated: [ ]
52
--------------------------------------------------------------------------------
ANNEXURE
[Insert completed Class A Note Conditions]
53
--------------------------------------------------------------------------------
SCHEDULE 2 PROVISIONS FOR MEETINGS OF CLASS A NOTE HOLDERS
--------------------------------------------------------------------------------
VALIDITY
1 A holder of a Class A Note may obtain a Voting
Certificate from a Paying Agent or require Paying Agents
to issue a Block Voting Instruction by depositing his
Class A Note with such Paying Agent not later than 48
hours before the time fixed for any meeting. Each Voting
Certificate and Block Voting Instruction shall be valid
for so long as the relevant Class A Notes shall not be
released (as set out in the relevant definition in the
Definitions Schedule) and during the validity of such
Voting Certificate or Block Voting Instruction the holder
of such Voting Certificate or (as the case may be) the
Proxy named in such Block Voting Instruction shall, for
all purposes in connection with any meeting of Class A
Note Holders, be deemed to be the Class A Note Holder of
the Class A Notes to which such Voting Certificate or
Block Voting Instruction relates and the Paying Agents
with which (or to the order of which) such Class A Notes
have been deposited shall be deemed for such purposes not
to be the Class A Note Holder of those Class A Notes.
WHO MAY CONVENE MEETINGS
2 The Note Trustee or the Trustee at any time may, and the
Note Trustee (subject to it being indemnified to its
satisfaction against all costs and expenses thereby
occasioned) upon request in writing of the Class A Note
Holders holding not less than five per cent. of the
aggregate Invested Amount of the relevant Class A Notes
for the time being outstanding shall, convene a meeting
of the Class A Note Holders. Whenever the Trustee or the
Note Trustee upon such request of the relevant Class A
Note Holders is about to convene any such meeting it
shall give notice in writing to the Note Trustee (or the
Trustee as the case may be) of the day, time and place of
that meeting and of the nature of the business to be
transacted at that meeting. If the Note Trustee receives
notice of a meeting pursuant to the terms of the Global
Master Security Trust Deed it shall convene a meeting of
the Class A Note Holders as soon as practicable
thereafter. Every such meeting shall be held at such time
and place as the Note Trustee may approve.
NOTIFICATION OF MEETINGS
3 At least 14 days' notice (exclusive of the day on which
the notice is given and of the day on which the meeting
is held) specifying the day, time and place of meeting
shall be given to the relevant Class A Note Holders. A
copy of the notice shall be given to the Note Trustee,
unless the meeting is convened by the Note Trustee, and
to the Trustee unless the meeting shall be convened by
the Trustee. Such notice shall, unless in any particular
case the Note Trustee otherwise agrees, specify the terms
of the resolutions to be proposed and shall include
statements to the effect that Class A Notes may be
deposited with (or to the order of) the Paying Agent or
any Paying Agent for the purpose of obtaining Voting
Certificates or Block Voting Instructions (and appointing
Proxies) until 48 hours before the time fixed for the
meeting but not thereafter.
54
--------------------------------------------------------------------------------
CHAIRMAN
4 A person (who may, but need not, be a relevant Class A
Note Holder) nominated in writing by the Note Trustee
shall be entitled to take the chair at every such meeting
but if no such nomination is made or if at any meeting
the person nominated shall not be present within 15
minutes after the time appointed for the holding of such
meeting the relevant Class A Note Holders present shall
choose one of their number to be chairman and, failing
such nomination, the Trustee may appoint a chairman (who
may, but need not, be a relevant Class A Note Holder).
The chairman of an adjourned meeting need not be the same
person as was chairman of the original meeting.
QUORUM
5 (a) At any such meeting any two or more persons
present in person holding relevant Class A
Notes or Voting Certificates or Block Voting
Instructions or being Proxies or
representatives holding or representing in the
aggregate at least 51% in principal amount of
the relevant Class A Notes for the time being
outstanding shall form a quorum for the
transaction of business and no business (other
than the choosing of a chairman) shall be
transacted at any meeting unless the requisite
quorum be present at the commencement of
business. The quorum at any such meeting for
passing an Extraordinary Resolution shall
(subject as provided below) be two or more
persons present in person holding relevant
Class A Notes or voting certificates or being
proxies or representatives and holding or
representing in the aggregate at least 67% in
principal amount of the relevant Class A Notes
for the time being outstanding provided that at
any meeting the business of which includes any
of the matters specified in the proviso to
paragraph 13 the quorum shall be two or more
persons present in person holding relevant
Class A Notes or voting certificates or being
proxies or representatives and holding or
representing in the aggregate not less than 75%
in principal amount of the relevant Class A
Notes. For the purpose of this Schedule, when
all the relevant Class A Notes for the time
being outstanding are represented by or
comprised in a single Class A Book-Entry Note,
the holder of such Note shall be treated as two
persons for the purposes of any quorum
requirements of a meeting of the relevant Class
A Note Holders.
(b) If within half an hour from the time appointed
for any such meeting a quorum is not present
the meeting shall, if convened upon the
requisition of Class A Note Holders, be
dissolved. In any other case it shall stand
adjourned (unless the Trustee and the Note
Trustee agree that it be dissolved) for such
period, being not less than 21 days nor more
than 42 days and to such time and place, as
may be appointed by the chairman. At such
adjourned meeting two or more persons present
in person holding relevant Class A Notes or
Voting Certificates or Block Voting
Instructions or being Proxies or
representatives (whatever the principal amount
of the relevant Class A Notes so held or
represented by them) shall form a quorum and
shall
55
--------------------------------------------------------------------------------
have the power to pass any resolution and to decide
upon all matters which could properly have been
dealt with at the meeting from which the
adjournment took place had a quorum been present at
such meeting provided that the quorum at any
adjourned meeting at which is to be proposed an
Extraordinary Resolution for the purpose of
effecting any of the modifications specified in the
proviso to paragraph 13 shall be two or more
persons present holding relevant Class A Notes or
Voting Certificates or Block Voting Instructions or
being Proxies or representatives and holding or
representing in the aggregate not less than 51% in
principal amount of the relevant Class A Notes for
the time being outstanding.
ADJOURNMENT
6 The chairman may with the consent of (and shall if
directed by) any meeting adjourn the same from time to
time and from place to place, but no business shall be
transacted at any adjourned meeting except business which
might lawfully have been transacted at the meeting from
which the adjournment took place.
NOTICE OF ADJOURNED MEETING
7 At least ten days' notice of any meeting adjourned
through want of a quorum shall be given in the same
manner as of an original meeting and such notice shall
state the quorum required at such adjourned meeting.
Otherwise, it is not necessary to give any notice of an
adjourned meeting.
RESOLUTION BY SHOW OF HANDS
8 (a) Every question submitted to a meeting shall be
decided in the first instance by a show of
hands and in the case of equality of votes the
chairman shall both on a show of hands and on a
poll have a casting vote in addition to the
vote or votes (if any) to which he may be
entitled as a relevant Class A Note Holder or
as a holder of a Voting Certificate or Block
Voting Instruction or as a Proxy or
representative.
(b) At any meeting, unless a poll is (before or on
the declaration of the result of the show of
hands) demanded by the chairman or the Trustee,
the Note Trustee or by one or more persons
holding one or more of the relevant Class A
Notes or Voting Certificates or Block Voting
Instructions or being Proxies or
representatives representing in the aggregate
not less than two per cent. of the principal
amount of the relevant Class A Notes for the
time being outstanding, a declaration by the
chairman that a resolution has been carried or
carried by a particular majority or lost or not
carried by any particular majority shall be
conclusive evidence of the fact without proof
of the number or proportion of the votes
recorded in favour of or against such
resolution.
POLL
9 (a) If at any meeting a poll is demanded, it shall
be taken in such manner and (subject to the
provisions of this schedule) either at once or
after such an adjournment as the chairman
directs
56
--------------------------------------------------------------------------------
and the result of such poll shall be deemed to be
the resolution of the meeting at which the poll was
demanded as at the date of the taking of the poll.
The demand for a poll shall not prevent the
continuance of the meeting for the transaction of
any business other than the question on which the
poll has been demanded.
(b) Any poll demanded at any meeting on the election of
a chairman or on any question of adjournment shall
be taken at the meeting without adjournment.
ENTITLEMENT TO ATTEND
10 The Note Trustee and the Trustee (through their
respective representatives) and their respective
financial and legal advisers shall be entitled to attend
and speak at any meeting of the relevant Class A Note
Holders. No other person shall be entitled to attend or
vote at any meeting of the relevant Class A Note Holders
or to join with others in requesting the convening of
such a meeting unless he produces the relevant Class A
Note or Class A Notes of which he is the holder, a Voting
Certificate, a Block Voting Instruction naming him as
Proxy or evidence of his appointment as a representative
of a Class A Note Holder. The Trustee is not entitled to
vote in respect of relevant Class A Notes beneficially
held by it or on its behalf but this shall not prevent
any Proxy named in any Block Voting Instruction from
being a director, officer or representative of, or
otherwise connected with, the Trustee or any of its
subsidiaries or associated companies.
VOTING RIGHTS
11 (a) Except as provided in paragraph 10 above, at
any such meeting:
(i) on a show of hands every person who is
present in person and produces a relevant
Note, a Voting Certificate, a Block Voting
Instruction naming him as a Proxy or evidence
of his appointment as a representative of a
Class A Note Holder shall have one vote; and
(ii) on a poll every person who is so present
shall have one vote in respect of each
principal amount of Class A Notes which is
equal to the minimum authorised denomination
for such Class A Notes, so produced or
represented by the Voting Certificate so
produced or in respect of which he is a Proxy
or in respect of which he is a
representative. Without prejudice to the
obligations of the Proxies named in any Block
Voting Instruction, any person entitled to
more than one vote need not use all his votes
or cast all the votes to which he is entitled
in the same way. (b) A Proxy or
representative need not be a relevant Class A
Note Holder.
57
--------------------------------------------------------------------------------
PROXIES
12 (a) Each Block Voting Instruction, together (if so
required by the Note Trustee) with proof
satisfactory to the Note Trustee of its due
execution on behalf of the Paying Agent or
Paying Agent, shall be deposited at the
specified office of the Trustee or at such
other place as the Note Trustee shall designate
or approve not less than 48 hours before the
time appointed for holding the meeting or
adjourned meeting at which the Proxy named in
the Block Voting Instruction proposes to vote
and in default the Block Voting Instruction
shall not be treated as valid unless the
chairman of the meeting decides otherwise
before such meeting or adjourned meeting
proceeds to business. Unless otherwise agreed
by the Note Trustee, a notarially certified
copy of each such Block Voting Instruction and
such satisfactory proof (if applicable) shall
be deposited with the Note Trustee before the
commencement of the meeting or adjourned
meeting but the Note Trustee shall not thereby
be obliged to investigate or be concerned with
the validity of, or the authority of the Proxy
named in, any such Block Voting Instruction.
(b) Any vote given in accordance with the terms of
a Block Voting Instruction shall be valid
despite the previous revocation or amendment of
the Block Voting Instruction or of any of the
relevant Class A Note Holders' instructions
pursuant to which it was executed, provided
that no intimation in writing of such
revocation or amendment shall have been
received from the Paying Agent or the Paying
Agent by the Trustee or the Note Trustee at the
specified office of the Trustee or the Note
Trustee or by the chairman of the meeting, in
each case not less then 48 hours before the
commencement of the meeting or adjourned
meeting at which the Block Voting Instruction
is intended to be used.
POWERS EXERCISABLE BY EXTRAORDINARY RESOLUTION
13 A meeting of the Class A Note Holders shall, subject to
the provisions contained in the Class A Note Conditions,
in addition to the powers set out in this schedule, but
without prejudice to any powers conferred on other
persons by this schedule or the Note Trust Deed, have the
following powers exercisable by Extraordinary Resolution
namely:
(a) to authorise and request the Note Trustee to
direct the Security Trustee to enforce the
Global Master Security Trust Deed;
(b) to sanction any proposal by the Trustee for any
modification, abrogation, variation, compromise of,
or arrangement in respect of, the rights of the
relevant Class A Note Holders or any of them
against the Trustee whether such rights shall arise
under the Class A Notes or otherwise;
(c) to sanction any proposal by the Trustee for the
exchange or sale of the relevant Class A Notes
for, or substitution for the relevant Class A
Notes of, or the conversion of the relevant
Class A Notes into, or the cancellation of the
relevant Class A Notes in consideration of
bonds, debentures, debenture stock
58
--------------------------------------------------------------------------------
or other obligations or securities of the Trustee
or any other body corporate formed or to be formed
or cash or any combination of the above;
(d) subject to the Note Trust Deed, to assent to any
modification of the provisions contained in the
relevant Class A Notes, the Agency Agreement, the
Note Trust Deed or this schedule which shall be
proposed by the Trustee or the Note Trustee;
(e) to waive or authorise any breach or proposed
breach by the Trustee or Note Trustee of its
obligations under this deed;
(f) to override any waiver by the Note Trustee of a
breach of any provisions of the Transaction
Documents or an Event of Default under the Global
Master Security Trust Deed;
(g) to approve a person proposed to be appointed as a
new Note Trustee under the Note Trust Deed and
power to remove any trustee or trustees for the
time being thereof in relation to the relevant
Class A Notes;
(h) to authorise the Note Trustee to concur in and
execute and do all such documents, acts and things
as may be necessary to carry out and give effect to
any Extraordinary Resolution;
(i) to discharge or exonerate the Note Trustee from any
liability in respect of any act or omission for
which the Note Trustee may have become responsible
under the Note Trust Deed or under the relevant
Class A Notes;
(j) to give any authority, direction or sanction which
under the relevant Class A Notes or the Note Trust
Deed is required to be given by Extraordinary
Resolution;
(k) to appoint any persons (whether relevant Class
A Note Holders or not) as a committee or
committees to represent the interests of the
relevant Class A Note Holders and to confer
upon such committee or committees any powers or
discretions which the relevant Class A Note
Holders could themselves exercise by
Extraordinary Resolution,
(l) subject to the Note Trust Deed, to alter, add
or modify the terms and conditions of the Class
A Notes or the provisions of any of the
Transaction Documents if the alteration,
addition or modification is, in the opinion of
the Note Trustee, materially prejudicial or
likely to be materially prejudicial to the
Class A Note Holders, other than to correct a
manifest error or ambiguity or to comply with
the law, and shall include any modifications
which would have the effect of changing the
Final Maturity Date.
provided that the special quorum provisions contained in
paragraphs 5(a) and 5(b) and, in the case of any
adjourned meeting, the proviso to
59
--------------------------------------------------------------------------------
paragraph 5(b) shall apply in relation to any
Extraordinary Resolution for the purpose of making a
modification which:
(i) varies the date fixed for final maturity or
redemption of the relevant Class A Notes;
(ii) reduces or cancels the principal amount of the
relevant Class A Notes or the rate of interest
applicable to the relevant Class A Notes;
(iii) alters the currency in which payments under the
relevant Class A Notes are to be made;
(iv) varies the provisions in this schedule concerning
the quorum required for any meeting of the relevant
Class A Note Holders or the majority required to
pass an Extraordinary Resolution;
(v) postpones the date for payment of interest or
the rate of interest applicable to a Class of
Notes; or
(vi) amends this proviso in any manner.
BINDING EFFECT OF RESOLUTIONS
14 A resolution passed at a meeting of the relevant Class A
Note Holders duly convened and held in accordance with
this schedule is binding upon all the relevant Class A
Note Holders, whether present or not present at such
meeting, and each of the relevant Class A Note Holders
shall be bound to give effect thereto accordingly. The
passing of any such resolution shall be conclusive
evidence that the circumstances of such resolution
justify the passing of it.
MINUTES
15 Minutes of all resolutions and proceedings at every such
meeting shall be made and duly entered in books to be
from time to time provided for that purpose by the
Trustee or the Note Trustee and any such minutes, if
purporting to be signed by the chairman of the meeting at
which such resolutions were passed or proceedings
transacted or by the chairman of the next succeeding
meeting of the relevant Class A Note Holders, shall be
conclusive evidence of the matters referred to in the
minutes and until the contrary is proved every such
meeting in respect of the proceedings of which minutes
have been made and signed by the chairman shall be deemed
to have been duly held and convened and all resolutions
passed or proceedings transacted thereat to have been
duly passed and transacted.
SIGNED RESOLUTION
16 A resolution in writing signed by or on behalf of all the
holders of the Class A Notes shall be as valid and
effectual as an Extraordinary Resolution passed at a
meeting of such holders duly convened and held in
accordance with the provisions herein contained.
FURTHER REGULATIONS
17 Subject to all other provisions contained in this deed,
the Note Trustee may from time to time without the
consent of the Trustee or the
60
--------------------------------------------------------------------------------
relevant Class A Note Holders or any of them prescribe
such further regulations regarding the requisitioning and
holding of meetings of Class A Note Holders and
attendance and voting thereat and in relation to
resolutions in writing as the Note Trustee may in its
sole discretion determine including particularly (but
without prejudice to the generality of the foregoing)
such regulations and requirements as the Note Trustee
thinks reasonable:
(a) so as to satisfy itself that persons who propose to
requisition a meeting in accordance with paragraph
2 or who propose to make any requisition to the
Note Trustee are in fact Class A Note Holders; and
(b) as to the form of Voting Certificates or Block
Voting Instructions to be issued so as to satisfy
itself that persons who purport to attend or vote
at any meeting of Class A Note Holders are entitled
to do so.
61
--------------------------------------------------------------------------------
EXECUTION PAGE
--------------------------------------------------------------------------------
TRUSTEE
SIGNED, SEALED AND DELIVERED by )
as attorney for PERPETUAL TRUSTEE )
COMPANY LIMITED under power of )
attorney dated )
)
in the presence of: )
)
................................. )
Signature of witness )
)
................................. )
Name of witness (block letters) )
)
................................. )
Address of witness ) .................................
) By executing this deed the
................................. ) attorney states that the attorney
Occupation of witness ) has received no notice of
) revocation of the power of
attorney
TRUST MANAGER
SIGNED by )
on behalf of and SEALED AND )
DELIVERED by ANZ CAPEL COURT )
LIMITED in the presence of: )
)
................................. )
Signature of witness )
)
................................. )
Name of witness (block letters) )
)
................................. )
Address of witness )
)
................................. ) .................................
Occupation of witness ) By executing this deed the
) signatory states that the
) signatory has received no notice
) of revocation of the authority
under which this deed is executed
62
--------------------------------------------------------------------------------
NOTE TRUSTEE
SIGNED, SEALED AND DELIVERED by )
as authorised signatory for THE )
BANK OF NEW YORK, NEW YORK BRANCH )
in the presence of: )
)
................................. )
Signature of witness )
)
................................. )
Name of witness (block letters) )
)
................................. )
Address of witness )
) .................................
................................. ) By executing this deed the
Occupation of witness ) signatory states that the
) signatory has received no notice
) of revocation of the
authorisation under which this
deed is signed, sealed and
delivered