Exhibit 4.4
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[Class of US Note]
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Registered CUSIP No:
No. R- ISIN No.:
Common Code:
Unless this [Class of US Note] is presented by an authorised representative of
The Depository Trust Company, a New York corporation, ("DTC") to the Issuer
Trustee (as defined below) or its agent for registration of transfer, exchange
or payment, and any [Class of US Note] issued is registered in the name of
[name of nominee] or in such other name as is requested by an authorised
representative of DTC (and any payment is made to [name of nominee] or to such
other entity as is requested by an authorised representative of DTC), any
transfer, pledge or other use of the [Class of US Note] for value or otherwise
by or to any person is wrongful in as much as the registered owner hereof,
[name of nominee], has an interest in this[Class of US Note].
The principal of this [Class of US Note] is payable in instalments and may be
subject to charge-offs or exchange as set forth below, the Note Trust Deed and
in the [Class of US Note]Conditions. Accordingly, the outstanding principal
amount of this [Class of US Note]at any time may be less than the amount shown
on the face of this[Class of US Note].
[NAME AND ABN OF ISSUER TRUSTEE]
(a limited liability company incorporated under the law of New
South Wales, Australia) in its capacity as trustee ("Issuer Trustee")
of the National RMBS Trust 200[ ]-[ ] (the "Trust")
[CLASS OF US NOTE]
This [Class of US Note]is issued by the Issuer Trustee in an initial aggregate
principal amount of US$[ ] (the "[Class of US Notes]") and is:
(a) constituted by a Note Trust Deed (the "Note Trust Deed") dated [ ]
made between the Issuer Trustee, National Global MBS Manager Pty Ltd
(ABN 36 102 668 226) ("the Global Trust Manager") and [name of Note
Trustee] (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 [ ] made
between the Global Trust Manager and the Issuer Trustee [or to which
the Issuer Trustee has agreed to be bound] (as amended from time to
time);
(ii) a Supplemental Deed (the "Supplemental Deed") dated [ ] made
between National Australia Bank Limited, the Global Trust Manager,
the Issuer Trustee and [name of Security Trustee] ("Security
Trustee");
(iii) a Master Security Trust Deed (the "Master Security Trust Deed")
dated [ ] made between the Issuer Trustee [or to which the Issuer
Trustee has agreed to be bound], the Global Trust Manager, the Note
Trustee and the Security Trustee (as amended from time to time);
(iv) the Agency Agreement ("Agency Agreement") dated [ ] made
between the Issuer Trustee, the Note Trustee, the Global Trust
Manager, [name of Principal Paying Agent, Registrar and Calculation
Agent] as Principal Paying Agent,
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[Registrar of the Class of US Notes] and Calculation Agent, [name(s)
of Paying Agent(s)] as a Paying Agent;
(v) a Deed of Charge dated [ ] made between the Issuer Trustee, the
Security Trustee, the Global Trust Manager and the Note Trustee;
(vi) the Note Trust Deed; and
(vii) the [Conditions of the Class of US Notes]as set out in the Annexure
to this [Class of US Note] (the "[Conditions of the Class of US
Notes]").
Unless defined in this [Class of US Note], words and phrases defined in, or
incorporated in, either or both of the Note Trust Deed and the [Conditions of
the Class of US Notes] have the same meaning in this [Class of US Note]. Where
there is any inconsistency in a definition between the Note Trust Deed and the
[Conditions of Class of US Note], the Note Trust Deed prevails.
If this [Class of US Note] is a [Class of Book Entry US Note] and the Issuer
Trustee is obliged to issue [Class of Definitive US Notes] under clause 3.4(a)
of the Note Trust Deed, this [Class of US Note] will be exchangeable in whole
upon its surrender at the offices of the [Registrar of the Class of US Notes]
as specified in the [Conditions of the Class of US Notes] or notified to
[Noteholders of Class of US Note] from time to time (or such other place as
the Note Trustee may agree) for [Class of Definitive US Notes] and the Issuer
Trustee shall execute and procure that the Note Trustee authenticates and
delivers in full exchange for this [Class of US Note], [Class of Definitive US
Notes] in aggregate principal amount equal to the then Invested Amount of this
[Class of US Note] subject to and in accordance with clause 3.4(b) of the Note
Trust Deed. The Issuer Trustee is not obliged to issue [Class of Definitive US
Notes] until 30 days after the occurrence of an event set out in clause 3.4(a)
of the Note Trust Deed.
The Issuer Trustee in its capacity as trustee of the Trust, subject to and in
accordance with this [Class of US Note], the [Conditions of Class of US Note],
the Agency Agreement, the Supplemental Deed and the Note Trust Deed, promises
to pay to [name of nominee], as the registered holder of this [Class of US
Note], or to registered assigns of this [Class of US Note], the principal sum
of US$[ ] (or such part of that amount as may become repayable under the
[Conditions of Class of US Note], 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 [Conditions of Class of US Note], the
Supplemental Deed and the Note Trust Deed and to pay interest in arrear on
each Payment Date on the Invested Amount of this [Class of US Note] at rates
determined in accordance with Condition [ ] of the [Conditions of Class of US
Note]. The [Class of Definitive US Notes] to be issued on that exchange will
be in registered form each in the denomination of US$[ ] or integral multiples
thereof. If the Issuer Trustee fails to meet its obligations to issue [Class
of Definitive US Notes], this shall be without prejudice to the Issuer
Trustee's obligations with respect to the [Class of US Notes] under the Note
Trust Deed, the Master Trust Deed, the Supplemental Deed, the Agency Agreement
and this [Class of US Note].
Payments of interest on this [Class of US 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 [Conditions of the Class of US
Notes] and the Agency Agreement. If this [Class of US Note] is a [Class of
Book-Entry US Note] such payments will be made to the nominee of the
Depository (initially, such nominee to be [name of nominee]) 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 of US Note] will be entitled to receive any
payment so made in respect of that [Class of US Note] only in accordance with
the respective rules and procedures of DTC. Such persons will have no claim
directly against the Issuer Trustee in respect of payments due on the [Class
of US Notes] which must be made by the holder of this [Class of US Note], for
so long as this [Class of US Note] is outstanding.
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On any payment of principal and/or interest on the [Class of US Notes] details
of that payment shall be endorsed by or on behalf of the Issuer in the
[Register of the Class of US Notes] and, in the case of payments of principal,
the Invested Amount and the Stated Amount of the [Class of US Notes] shall be
reduced for all purposes by the amount so paid and endorsed in the [Register
of the Class of US Notes]. Any such record shall be prima facie evidence that
the payment in question has been made.
This [Class of US Note] shall not become valid for any purpose unless and
until the Certificate of Authentication attached has been signed by an
Authorised Person or other duly appointed representatives of the Note Trustee.
This [Class of US Note] is governed by, and shall be construed in accordance
with, the laws of the Australian Capital Territory, Australia.
If this [Class of US Note] is a[Class of Book Entry US Note], this [Class of
US Note] is a global note.
IN WITNESS the Issuer Trustee has caused this [Class of US Note] to be signed
manually by a person duly authorised on its behalf.
[NAME OF ISSUER TRUSTEE] by:
................................................
Authorised Person/duly appointed representative
IMPORTANT NOTES:
Neither the Global Trust Manager nor the Issuer Trustee is under any
obligation at any time to repurchase any [Class of US Notes] from [Noteholders
of Class of US Notes].
This [Class of US Note] is not a certificate of title and the [Register of the
Class of US Notes] on which these [Class of US Notes] are registered is the
only conclusive evidence of the title of the abovementioned person to the
[Class of US Notes].
The Issuer Trustee's liability is limited in accordance with Condition 12. The
Issuer Trustee issues this [Class of US 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 of US Note] or any other Transaction Document
is limited to and can be enforced against the Issuer Trustee only to the
extent to which it can be satisfied out of the Assets of the Trust out of
which the Issuer Trustee is actually indemnified for the liability. This
limitation of the Issuer Trustee's liability will not apply to any obligation
or liability of the Issuer 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 Issuer Trustee's
indemnification out of the Assets of the Trust as a result of any fraud,
negligence or breach of trust on the part of the Issuer Trustee. Subject to
the terms of the Transaction Documents, the Issuer Trustee will have no
liability for any act or omission of the Global Trust Manager or of any other
person.
Transfers of the [Class of US Notes] must be pursuant to the annexed form of
assignment and otherwise in accordance with clause [ ] of the Agency
Agreement.
None of the Global Trust Manager or the National Australia Bank Limited (the
"Bank") as the Seller and Servicer, or any other affiliate of the Bank or the
Issuer Trustee in its personal capacity or
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as trustee of any other trust guarantees the payment or repayment of any
principal, interest or other amounts owing in respect of the [Class of US
Notes].
The [Class of US Notes] do not represent deposits or other liabilities of the
Bank. The holding of the [Class of US 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 of them, stand in any way behind the capital value and/or
performance of the [Class of US Notes], or the Assets held by the Trust.
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ASSIGNMENT
Social Security or taxpayer I.D., or other identifying number of assignee:
For value received, the undersigned hereby sells, assigns and transfer unto
______________________________________________________________________________
(name and address of assignee)
the within [Class of US Note] and all rights thereunder, and hereby
irrevocably constitutes and appoints ______________________________, attorney
to transfer said [Class of US 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 of US Note]
Registrar, which requirements include
membership or participation in STAMP or
such other "signature guarantee program" as
may be determined by the [Registrar of the
Class of US Notes]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 of US Note] in
every particular without alteration, enlargement or any change whatsoever.
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CERTIFICATE OF AUTHENTICATION
This [Class of US Note] is authenticated by [name of Note Trustee] as Note
Trustee and until so authenticated shall not be valid for any purpose.
[NAME OF NOTE TRUSTEE] by:
................................................
Authorised Person/duly appointed representative
Dated: [ ]
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ANNEXURE
The following, subject to amendments, are the terms and conditions of the
[Class of US Notes], substantially as they will actually appear on the reverse
of any [Class of US Notes]. [Class of US Notes] will initially be issued in
book entry form. [Class of US Notes] in definitive form will only be issued in
limited circumstances. While the [Class of US Notes] remain in book entry
form, the same terms and conditions govern them, except to the extent that
they are appropriate only to the [Class of US Notes] in definitive form.
1 General
The issue of the US$[ ] [Class of US Note] Mortgage Backed Floating Rate Notes
due [year] ("[Class of US Notes]") the A$[ ] Class [ ] Mortgage Backed
Floating Rate Notes due [year] ("[Class of Junior Notes]") [other
Class/Classes of Notes] and certain Redraw Notes from time to time ("Redraw
Notes") (together the "Notes") by [Name, ABN and abbreviation of Issuer
Trustee] in its capacity as trustee of the National RMBS Trust 200[ ]-[ ]
("Trust") ([abbreviated name of Issuer Trustee] in such capacity, the "Issuer
Trustee") was authorised by a resolution of the board of directors of
[abbreviated name of Issuer Trustee] passed on [ ].
The [Class of US Notes]:
(a) are constituted by a [Class of US Note] Trust Deed ("Note Trust Deed")
dated on or about [ ] made between the Issuer Trustee, National Global
MBS Manager Pty Ltd ("Global Trust Manager") and [name of Note Trustee]
("Note Trustee") as trustee for the several persons who are for the time
being the owners of the [Class/Classes of US Notes] (each a "[Noteholder
of Class/Classes of US Notes]" and together the "[Noteholders of
Class/Classes of US Notes]"); and
(b) are issued subject to, and with the direct or indirect benefit of,
amongst other things:
(i) a Master Trust Deed ("Master Trust Deed") dated [ ] made between the
Global Trust Manager and [abbreviated name of Issuer Trustee] [(or
to which the Issuer Trustee has agreed to be bound)] (as amended
from time to time);
(ii) a Supplemental Deed ("Supplemental Deed") dated on or about [ ] made
between National Australia Bank Limited, ABN 12 004 044 937
(generally the "Bank" and in its respective capacities under the
Supplemental Deed the "Seller" and the initial "Servicer"), the
Global Trust Manager, the Issuer Trustee and [name and ABN of
Security Trustee] ("Security Trustee");
(iii) a Master Security Trust Deed ("Master Security Trust Deed") dated
on [ ] made between the Issuer Trustee [(or to which the Issuer
Trustee has agreed to be bound)], the Global Trust Manager, the Note
Trustee and the Security Trustee [(or to which the Security Trustee
has agreed to be bound)] (as amended from time to time) and a Deed
of Charge ("Deed of Charge") dated on or about [ ] between the same
parties;
(iv) the Note Trust Deed;
(v) these terms and conditions ("[Conditions of the Class of US
Notes]"); and
(vi) the Agency Agreement (as defined below); and
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(c) have certain defined terms, the meanings of which are contained in a
Definitions Schedule ("Definitions Schedule") dated [ ] made between,
amongst other parties, the Global Trust Manager, the Issuer Trustee [(or
to which the Issuer Trustee has agreed to be bound)], the Bank and the
Note Trustee (as amended from time to time).
Certain provisions of these [Conditions of the Class of US Notes](including
the definitions herein) are summaries of the Transaction Documents (as defined
in Condition 3) and are subject to the detailed provisions of the Transaction
Documents, a copy of each of which may be inspected as indicated in Condition
3.
Payments of interest and principal, and the calculation of certain amounts and
rates, under these [Conditions of the Class of US Notes]in respect of the
[Class of US Notes] will be made pursuant to an Agency Agreement ("Agency
Agreement") dated [ ] made between the Issuer Trustee, the Note Trustee, the
Global Trust Manager, [name of initial paying agent and calculation agent], as
the initial principal paying agent and the calculation agent ("Principal
Paying Agent" and "Calculation Agent") (together with any other paying agent
appointed from time to time under the Agency Agreement, "Paying Agents") and
as the initial [Registrar of the Class of US Notes]("[Class of US Note]
Registrar") and [name(s) of paying agent(s)] as initial paying agents.
The Issuer Trustee has entered into two ISDA Master Agreements (each a
"Currency Swap Agreement") with [names of currency swap providers] (each a
"Currency Swap Provider") and the Global Trust Manager, each together with a
schedule and a confirmation relating thereto in respect of the [Class of US
Notes] (each such confirmation documenting a "Currency Swap").
"US$" means the lawful currency for the time being of the United States of
America and "A$" means the lawful currency for the time being of the
Commonwealth of Australia.
2 Interpretation and Payment Calculations
2.1 Interpretation
In these [Conditions of Class of US Note], unless the context otherwise
requires:
(a) a reference to a party includes that party's executors,
administrators, successors, substitutes and assigns, including any
person replacing that party by way of novation;
(b) a reference to any regulation or to any section or provision thereof
includes any statutory modification or re-enactment or any statutory
provision substituted therefor and all ordinances, by-laws,
regulations and other statutory instruments issued thereunder;
(c) a reference to any document or agreement is a reference to such
document or agreement as amended, varied, supplemented or replaced
from time to time;
(d) words importing the singular include the plural (and vice versa);
(e) words denoting a given gender include all other genders; and
(f) headings are for convenience only and do not affect the
interpretation of these [Conditions of Class of US Note].
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2.2 Payment Calculations
Except as expressly provided otherwise in these [Conditions of Class of
US Note], all payments in a given currency under these [Conditions of the
Class of US Notes]will be rounded to the nearest cent in that currency.
3 [Noteholders of Class of US Notes] Bound
The [Noteholders of Class of US Notes] are bound by, and are deemed to
have notice of, all the provisions of the Transaction Documents. A copy
of each Transaction Document is available for inspection, upon reasonable
prior notice, during normal business hours on New York Business Days at
the registered office for the time being of the Note Trustee (which is,
at the date of these [Conditions of Class of US Note], [ ]).
"Transaction Documents" means the Master Trust Deed insofar as it relates
to the Trust, the Definitions Schedule insofar as it applies to the
Trust, the Notice of Creation of Trust, the Supplemental Deed, each
Support Facility, the Master Security Trust Deed insofar as it applies to
the Trust, the Deed of Charge, the Dealer Agreement, the Underwriting
Agreement, the Note Trust Deed, each Note, the Servicing Agreement
insofar as it applies to the Trust, the Agency Agreement, the Delegation
Deed, the Sale Agreement, any Offer to Sell and any other document which
is agreed by the Global Trust Manager and the Issuer Trustee to be a
Transaction Document in relation to the Trust.
"Dealer Agreement", "Support Facility", "Notice of Creation of Trust",
"Mortgage Insurance Policy", "Servicing Agreement", "Underwriting
Agreement", "Delegation Deed", "Sale Agreement" and "Initial Offer to
Sell" have the same respective meanings as in the Supplemental Deed or
the Definitions Schedule, as the case may be.
4 Form, Denomination and Title of and to, and the Issue of Definitive,
[Class of US Notes]
4.1 Form and Denomination
[Insert description of notes (including form and denomination) The
initial principal amount of each [Class of US Note] ("Initial Invested
Amount" in relation to that [Class of US Note]) will be stated on its
face.
4.2 Title
Title to the [Class of US Notes] will only be shown on, and will only
pass by registration in, the register ("[Register of the Class of US
Notes]") maintained by the [Registrar of the Class of US Notes] in
accordance with the Agency Agreement. [Class of US Notes] may be
transferred, or may be exchanged for other [Class of US Notes] in any
authorised denominations and a like Invested Amount (as defined in
Condition 6.4), upon the surrender of the [Class of US Notes] to be
transferred or exchanged, duly endorsed with or accompanied by a written
instrument of transfer and exchange duly executed (with such execution
guaranteed by an "eligible guarantor institution" meeting the
requirements of the [Class of US Note] Registrar) and the provision of
such other documents as the [Registrar of the Class of US Notes] may
reasonably require, to a specified office of the [Registrar of the Class
of US Notes](as set out at the end of these [Conditions of the Class of
US Notes]or otherwise notified to [Noteholders of Class of US Notes])
subject to and in accordance with the Agency Agreement. No service charge
may be made for any transfer or exchange, but the [Registrar of the Class
of US Notes]may require payment by
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the [Noteholder of Class of US Notes] of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with
any transfer or exchange of [Class of US Notes]. The [Registrar of the
Class of US Notes]need not register transfers or exchanges of [Class of
US Notes] for a period of 30 days preceding the due date for any payment
with respect to the [Class of US Notes] or for a period, not exceeding 30
days, specified by the Note Trustee prior to any meeting, which includes
[Noteholders of Class of US Notes], under the Master Trust Deed or the
Master Security Trust Deed, as applicable. The Issuer Trustee, the Note
Trustee, the Global Trust Manager, the Calculation Agent and each Paying
Agent may accept the correctness of the [Register of the Class of US
Notes] and any information provided to it by the [Registrar of the Class
of US Notes]and is not required to enquire into its authenticity. None of
the Issuer Trustee, the Note Trustee, the Global Trust Manager, the
Calculation Agent, any Paying Agent or the [Registrar of the Class of US
Notes]is liable for any mistake in the [Register of the Class of US
Notes] or in any purported copy except to the extent that the mistake is
attributable to (in the case of the Issuer Trustee or the Note Trustee)
its own fraud, negligence or breach of trust or (in the case of the other
parties) its fraud, negligence or material breach of obligation.
5 Status, Security and Relationship between the [Class of US Notes], the
[Classes of Notes subordinate to the Class of US Notes] and the Redraw
Notes
5.1 Status of the Securities
The [Class of US Notes] are direct, secured (as described in Condition
5.2) limited recourse (as described in Condition 5.3) obligations of the
Issuer Trustee.
Any Redraw Notes are direct, secured, limited recourse obligations of the
Issuer Trustee.
The [Classes of Notes subordinate to the Class of US Notes] are direct,
secured, limited recourse, subordinated obligations of the Issuer
Trustee.
[Insert status of further classes of Notes]
5.2 Security
The obligations of the Issuer Trustee under the [Class of US Notes] are
(amongst the other payment obligations of the Issuer Trustee comprising
the Secured Moneys (as defined below)) secured, pursuant to the Master
Security Trust Deed and the Deed of Charge, in favour of the Security
Trustee as trustee for the Secured Creditors (as defined below), by a
[fixed and floating] charge ("Charge") over all of the assets and
property, real and personal (including choses in action and other
rights), tangible and intangible, present or future, of the Trust
("Secured Property"). The Secured Property includes an equitable interest
in certain housing loans, and related mortgages, acquired by the Issuer
Trustee from National Australia Bank Limited ("Seller"). The Charge is a
first ranking security in the Secured Property.
"Secured Creditors" and "Secured Moneys" have the same respective
meanings as in the Deed of Charge.
5.3 Limited Recourse
The liability of the Issuer Trustee to make interest and principal
payments on the [Class of US Notes] is limited, except in certain
circumstances described in Condition 12, to the
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assets of the Trust available for this purpose in accordance with, and
subject to the order of priority of payments in, the Supplemental Deed.
The net proceeds of realisation of the assets and property of the Trust
(including following an Event of Default) may be insufficient to pay all
amounts due to the [Noteholders of Class of US Notes] and any other
amounts ranking in priority to or equally with amounts due to the
[Noteholders of Class of US Notes]. Except in the limited circumstances
described in Condition 12, the assets of [abbreviated name of Issuer
Trustee] held in its personal capacity will not be available for payment
of any shortfall arising and all claims in respect of such shortfall will
be extinguished. The assets of [abbreviated name of Issuer Trustee] held
in its capacity as trustee of any other trust (including any other trust
established pursuant to the Master Trust Deed) will not in any
circumstances be available to pay any amounts due to [Noteholders of
Class of US Notes].
None of the Bank, the Global Trust Manager, the Seller, the Fixed Rate
Swap Provider, the Basis Swap Provider, the Note Trustee, the Security
Trustee, the Principal Paying Agent, any Paying Agent, the Calculation
Agent or any Currency Swap Provider, amongst others, have any obligation
to any [Noteholder of Class of US Note] for payment of any amount owed by
the Issuer Trustee in respect of the [Class of US Notes].
"Event of Default" has the meaning given to it in the Deed of Charge.
5.4 No Preference within the [Class of US Notes]
The [Class of US Notes] rank equally and rateably and without any
preference or priority among themselves.
5.5 Issue of Redraw Notes
Under the Supplemental Deed, the Issuer Trustee is entitled to issue debt
securities ("Redraw Notes") from time to time at the direction of the
Global Trust Manager. If, on or prior to a Determination Date, the Global
Trust Manager considers that the Principal Collections to be calculated
on that Determination Date (determined prior to taking into account the
proceeds of issue of any Redraw Notes on the immediately following
Payment Date) are likely to be insufficient to meet in full any Redraws
provided by the Seller during the preceding Collection Periods and due to
be repaid or reimbursed to the Seller on the immediately following
Payment Date, the Global Trust Manager may direct the Issuer Trustee to
issue Redraw Notes for a principal amount specified in the direction. The
Total Invested Amount (as hereinafter defined) of the Redraw Notes
outstanding on any Determination Date must not exceed the amount
specified by the Global Trust Manager and which is the subject of a
confirmation from each Current Rating Agency that such issue will not
result in the reduction, qualification or withdrawal of the then ratings
assigned to the Notes.
"Current Rating Agency", "Collection Period", "Determination Date",
"Available Principal Collections", "Redraws", "Redraw Drawing", "Payment
Date" and "Redraw Principal Outstanding" have the same respective
meanings as in the Supplemental Deed.
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Prior to the occurrence of an Event of Default, under the Supplemental
Deed and the Master Security Trust Deed:
(i) the payment of interest on the Redraw Notes will rank equally and
rateably with the payment of the relevant A$ amount by the Issuer
Trustee to the Currency Swap Providers which in turn will be applied
to meet the payment of interest on the [Class of US Notes] as
explained in Condition 6.9); and
(ii) the repayment of principal on the Redraw Notes will rank ahead of
the payment of the relevant A$ amount by the Issuer Trustee to the
Currency Swap Providers which in turn will be applied to meet the
repayment of principal on the [Class of US Notes] as explained in
Condition 7.2).
Following the occurrence of an Event of Default, under the Master
Security Trust Deed and the Supplemental Deed the payment of amounts
owing in relation to the Redraw Notes will rank rateably with the payment
of amounts owing in relation to the [Class of US Notes] (the amounts
owing in respect of the [Class of US Notes] will, for the purposes of
determining distributions to, and allocations between, the [Noteholders
of Class of US Notes] and other Secured Creditors, be converted into A$
in accordance with the Master Security Trust Deed and the Supplemental
Deed).
5.6 Subordination of [insert relevant Notes]
[Insert provisions detailing the ranking of the Class of US Notes in
relation to the other classes of notes in the series, both prior to, and
following, the occurrence of an Event of Default.]
5.7 The Securities Rank Equally Except as Provided in the Transaction
Documents
[The [Class of US Notes], the [Class/Classes of Notes subordinate to the
Class of US Notes] and the Redraw Notes enjoy the same rights,
entitlements, benefits and restrictions except as expressly provided in
the Transaction Documents.]
6 Interest
6.1 Period of Accrual
6.2 [Insert methodology re calculation of period of accrual] Interest Periods
[Insert methodology re calculation of Interest Periods]
6.3 Interest Rate for the [Class of US Notes]
[Insert methodology re calculation of Interest Rate]
6.4 Calculation of Interest on the [Class of US Notes]
[Insert methodology re calculation of Interest]
6.5 Determination of Interest Rate and Interest Amount
The Calculation Agent will, as soon as practicable after [ ] (London
time or, if applicable, New York City time) on each Rate Set Date,
determine the Interest Rate in relation to the [Class of US Notes], and
calculate the Interest Amount, for the immediately
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succeeding Interest Period in accordance with, respectively, Conditions
6.3 and 6.4. The determination of the Interest Rate, and the calculation
of the Interest Amount, by the Calculation Agent in accordance with,
respectively, Conditions 6.3 and 6.4 will (in the absence of manifest
error, wilful default or bad faith) be final and binding upon all
parties.
6.6 Notification and Publication of Interest Rate and Interest Amount
The Calculation Agent will cause the Interest Rate, the Interest Amount
and the Principal Amount (as defined in Condition 7.2(c)) for each
Interest Period, and the date of the next Payment Date, to be notified to
the Issuer Trustee, the Global Trust Manager, the Note Trustee, the
Currency Swap Providers and the Paying Agents on or as soon as practical
after the Calculation Agent has determined the Interest Rate and
calculated the Interest Amount and will cause the same to be published in
accordance with Condition 11.2 as soon as possible after that
notification. The Interest Amount and the Payment Date may subsequently
be amended (or appropriate alternative arrangements made by way of
adjustment) without notice in the event of an extension or shortening of
the Interest Period. If following the occurrence of an Event of Default
(as defined in Condition 5.3), the Security Trustee declares in
accordance with the Master Security Trust Deed that the [Class of US
Notes] are immediately due and payable, the Interest Rate in respect of
the [Class of US Notes] will nevertheless continue to be calculated by
the Calculation Agent in accordance with this Condition 6.6, but no
publication of the Interest Rate so calculated needs to be made unless
the Note Trustee otherwise requires.
6.7 Determination or Calculation by the Note Trustee
If the Calculation Agent at any time for any reason does not determine
the Interest Rate in respect of the [Class of US Notes], or calculate the
Interest Amount, in accordance with this Condition 6, the Note Trustee
will do so and each such determination or calculation by the Note Trustee
will be as if made by the Calculation Agent. In doing so, the Note
Trustee will apply the foregoing provisions of this Condition 6, with any
necessary consequential amendments, to the extent that it can and in all
other respects it will do so in such a manner as it considers to be fair
and reasonable in all the circumstances.
6.8 Calculation Agent
The Issuer Trustee will procure that, for so long as any of the [Class of
US Notes] remain outstanding, there will at all times be a Calculation
Agent. The Global Trust Manager may, with the prior written approval of
the Note Trustee and the Issuer Trustee, terminate the appointment of the
Calculation Agent at any time by giving not less than 45 days' notice in
writing to, amongst others, the Calculation Agent. Notice of that
termination will be given by the Issuer Trustee to the [Noteholders of
Class of US Notes] in accordance with Condition 11.1. If any person is
unable or unwilling to continue to act as the Calculation Agent, or if
the appointment of the Calculation Agent is terminated, the Issuer
Trustee, at the direction of the Global Trust Manager, will appoint a
successor Calculation Agent to act as such in its place, provided that
neither the resignation nor removal of the Calculation Agent will take
effect:
(a) until a successor approved by the Note Trustee and the Issuer
Trustee has been appointed; and
(b) if as a result there would cease to be Agents as required by these
[Conditions of Class of US Note], [and provided further that there
must at all times be a Paying Agent in relevant jurisdiction].
14
Notice of the appointment of the successor shall be given by the Issuer
Trustee to the [Noteholders of Class of US Notes] in accordance with
Condition 11.1. The initial Calculation Agent and its specified office
are set out at the end of these [Conditions of Class of US Note].
"Agent" and "Paying Agent" have the meanings given to them in the
Definitions Schedule.
6.9 Payment of the Interest Amount
[Insert provisions re payment of Interest Amount]
7 Redemption
7.1 Final redemption of the [Class of US Notes]
Unless previously redeemed (or deemed to be redeemed) in full, the Issuer
Trustee will redeem the [Class of US Notes] at their then Stated Amount
(without double counting), together with all then accrued but unpaid
interest, on the Payment Date occurring in [month, year] ("Final Maturity
Date").
7.2 Part Redemption of [Class of US Notes]
[Insert provisions re part redemption of Class of US Notes]
7.3 Call Option
The Issuer Trustee will, subject to the other provisions of this
Condition 7, when directed by the Global Trust Manager (at the Global
Trust Manager's option), redeem all, but not some only, of the Notes at
their then Invested Amount (without double counting), subject to the
following, together with all accrued but unpaid interest in respect of
the Notes to (but excluding) the date of redemption, on any Payment Date
falling on or after the earlier of:
(a) the Payment Date falling in [month, year] ("Call Option Date"); and
(b) the Payment Date on which the aggregate Outstanding Principal
Balance of all Housing Loans referable to the Purchased Mortgage
Loans (calculated as at the end of the immediately preceding
Collection Period) is less than 10% of the aggregate Outstanding
Principal Balance of all Housing Loans referable to the Purchased
Mortgage Loans on the Closing Date.
Notwithstanding the foregoing, the Issuer Trustee may redeem the Notes at
their Stated Amount on a Call Option Date, instead of at their Invested
Amount (without double counting), together with accrued but unpaid
interest in respect of the Notes to (but excluding) the date of
redemption, if so approved by an Extraordinary Resolution (as defined in
Condition 9.1) of the Noteholders.
However, the Issuer Trustee will not redeem the Notes unless it is in a
position on the relevant Payment Date to repay the then Invested Amounts
or the Stated Amounts (without double counting), as required, of the
Notes together with all accrued but unpaid interest to (but excluding)
the date of redemption and to discharge all its liabilities in respect of
amounts which are required under the Master Security Trust Deed and the
15
Supplemental Deed to be paid in priority to or equally with the Notes as
if the Deed of Charge in respect of the Trust were enforced.
The Issuer Trustee will give not more than 60 nor less than 45 days'
notice (which will be irrevocable) of the Payment Date on which a
proposed redemption under this Condition 7.3 will occur to the Seller,
the Note Trustee, the Principal Paying Agent, the [Class of US Note]
Registrar, the Calculation Agent and the [Noteholders of Class of US
Notes] in accordance with Condition 11.1.
"Outstanding Principal Balance", "Purchased Mortgage Loans" and "Housing
Loans" have the same respective meanings given to them in the Definitions
Schedule.
7.4 Redemption for Taxation or Other Reasons
If the Global Trust Manager satisfies the Issuer Trustee and the Note
Trustee immediately prior to giving the notice referred to below that by
virtue of a change in law of the Commonwealth of Australia or any of its
political subdivisions or any of its authorities or any other
jurisdiction to which the Issuer Trustee becomes subject (a "Relevant
Jurisdiction") or a change in the application or official interpretation
thereof, from that in effect on the Closing Date, either:
(a) on the next Payment Date the Issuer Trustee will be required to
deduct or withhold from any payment of principal or interest in
respect of the Notes including corresponding payments under any
Currency Swap, any amount for or on account of any present or future
taxes, duties, assessments or governmental charges of whatever
nature imposed, levied, collected, withheld or assessed by a
Relevant Jurisdiction; or
(b) on the next Payment Date the total amount payable in respect of
interest in relation to any of the Mortgage Loans for a Collection
Period ceases to be receivable (whether or not actually received) by
the Issuer Trustee by reason of any present or future taxes, duties,
assessments or governmental charges of whatever nature imposed,
levied, collected, withheld or assessed by a Relevant Jurisdiction,
and, in each case, such obligation cannot be avoided by the Issuer
Trustee taking reasonable measures available to it, the Issuer Trustee
must, when so directed by the Global Trust Manager (at the Global Trust
Manager's option), redeem all, but not some only, of the Notes on any
subsequent Payment Date at their then Invested Amount (without double
counting), subject to the following, together with accrued but unpaid
interest in respect of the Notes to (but excluding) the date of
redemption. Notwithstanding the foregoing, the Issuer Trustee may redeem
the Notes at their Stated Amount, instead of at their Invested Amount
(without double counting), together with accrued but unpaid interest in
respect of the Notes to (but excluding) the date of redemption, if so
approved by an Extraordinary Resolution (as defined in Condition 9.1) of
the Noteholders.
The Global Trust Manager will not direct the Issuer Trustee to, and the
Issuer Trustee will not, so redeem the Notes unless the Issuer Trustee is
in a position on such Payment Date to repay in respect of the Notes their
then Invested Amount or Stated Amount (without double counting), as
required, together with all accrued but unpaid interest to (but
excluding) the date of redemption and to discharge all its liabilities in
respect of amounts which are required under the Master Security Trust
Deed and the Supplemental Deed to
16
be paid in priority to or equally with the Notes as if the Deed of Charge
in respect of the Trust was enforced.
The Issuer Trustee will give not more than 60 nor less than 45 days'
notice (which will be irrevocable) of the Payment Date on which a
proposed redemption under this Condition 7.4 will occur to the Note
Trustee, the Seller, the Principal Paying Agent, the [Registrar of the
Class of US Notes], the Calculation Agent and the [Noteholders of Class
of US Notes] in accordance with Condition 11.1.
If an event referred to in paragraph (a) of this Condition 7.4 occurs in
respect of only the [Class of US Notes] (and not any other Notes) and as
a result thereof the Issuer Trustee gives notice in accordance with this
Condition 7.4 that it proposes to redeem all of the Notes on the Payment
Date referred to in that notice, the [Noteholders of Class of US Notes]
may by an Extraordinary Resolution (as defined in Condition 10.3) in
accordance with the Note Trust Deed elect that they do not require the
Issuer Trustee to redeem the Notes. If the [Noteholders of Class of US
Notes] make such an election they (or the Note Trustee on their behalf)
must notify the Issuer Trustee and the Global Trust Manager not less than
21 days before the proposed Payment Date for the redemption of the Notes.
Upon receipt of such a notice, the Issuer Trustee must not so redeem the
Notes.
7.5 Certification
For the purpose of any redemption made under Condition 7.3 or 7.4, the
Issuer Trustee and the Note Trustee may rely on any certificate of an
Authorised Person (as defined in the Master Trust Deed) of the Global
Trust Manager that the Issuer Trustee will be in a position to repay in
respect of the [Class of US Notes] their then Invested Amount or Stated
Amount (without double counting), as applicable, together with all
accrued but unpaid interest to (but excluding) the date of redemption and
to discharge all its liabilities in respect of amounts required under the
Master Security Trust Deed and the Supplemental Deed to be paid in
priority to or equally with the [Class of US Notes] as if the Deed of
Charge in respect of the Trust was enforced.
7.6 Redemption on Final Payment
Upon a final distribution being made in respect of the [Class of US
Notes] under these [Conditions of the Class of US Notes] or clause 14.18
of the Supplemental Deed, the [Class of US Notes] will thereupon be
deemed to be redeemed and discharged in full and any obligation to pay
any accrued but then unpaid [Class of US Note] Interest Amount or any
then unpaid Invested Amount, Stated Amount or other amounts in relation
to the [Class of US Notes] will be extinguished in full.
7.7 Cancellation
All [Class of US Notes] redeemed in full (or deemed to be redeemed in
full) pursuant to the above [Conditions of the Class of US Notes]will be
cancelled and may not be resold or reissued.
7.8 No Payment in excess of Stated Amount
Subject to Conditions 7.3 and 7.4, no amount of principal will be paid in
respect of a [Class of US Note] in excess of the Stated Amount of the
[Class of US Note].
17
7.9 Calculation of [Class of US Note] Principal Amounts, Stated Amounts and
other amounts
(a) No later than two Business Days prior to each Payment Date, the
Global Trust Manager will determine:
(i) the amount of any [Class of US Note] Principal Amount payable
in respect of each [Class of US Note] on the Payment Date;
(ii) the Stated Amount and Invested Amount of each [Class of US
Note] as at the first day of the Interest Period commencing on
the Payment Date (after deduction of any [Class of US Note]
Principal Amounts due to be paid in respect of such [Class of
US Notes] on that Payment Date and after making any other
adjustment to the Stated Amount or the Invested Amount (as the
case may be) of the [Class of US Note] in accordance with these
[Conditions of the Class of US Notes]on or with effect from
that Payment Date); and
(iii) the amount of the interest payment to be made on the Payment
Date applicable to each [Class of US Note].
(b) The Global Trust Manager will notify the Issuer Trustee, the Note
Trustee, the Principal Paying Agent, the Calculation Agent and the
[Registrar of the Class of US Notes] as soon as practical (and in
any event by not later than two Business Days prior to the Payment
Date, of each determination of an amount or percentage referred to
in Condition 7.9(a) and will cause details of each of those
determinations to be published in accordance with Condition 11.2 as
soon as practical after that notification. If no [Class of US Note]
Principal Amount is due to be paid on the [Class of US Notes] on any
Payment Date the Global Trust Manager will cause a notice to be
given in accordance with Condition 11.2 as soon as practicable (and
in any event by no later than the relevant Payment Date).
(c) If the Global Trust Manager does not at any time for any reason make
one or more of the determinations referred to in Condition 7.9(a),
the Calculation Agent (or, failing the Calculation Agent, the Note
Trustee) must make such determinations in accordance with this
Condition 7.9 (but based on the information in its possession) and
each such determination will be deemed to have been made by the
Global Trust Manager.
8 Payments
8.1 Method of Payment
Any instalment on account of interest or principal payable on any [Class
of US Note] which is punctually paid or duly provided for by or on behalf
of or at the direction of the Issuer Trustee to the Paying Agents on the
applicable Payment Date shall be paid to the person in whose name such
[Class of US Note] is registered on the relevant Record Date (as defined
below), by wire transfer in immediately available funds to the account
designated by such person or, if such person so requests in writing, by
cheque mailed first-class, postage prepaid, to such person's address as
it appears on the [Register of the Class of US Notes] on such Record
Date.
18
"Record Date" in relation to a Payment Date or any other date for any
payment to be made in respect of a [Class of US Note] means the day which
is the date which is 2 Business Days before a Payment Date.
8.2 Surrender on Final Payment
Prior to a final distribution being made in respect of the [Class of US
Notes] under clause 14 of the Supplemental Deed, the Note Trustee must
notify the [Noteholders of Class of US Notes] on the relevant Record Date
of the date upon which the Note Trustee expects that final distribution
to be made and specify if that such final distribution will be payable
only upon surrender of the relevant [Class of US Note] to a Paying Agent
at its specified office. No such final distribution will be made other
than upon the surrender of the relevant [Class of US Notes] and none of
the Issuer Trustee, the Note Trustee, the Security Trustee or any Paying
Agent will be liable to pay any additional amount to any [Noteholder of
Class of US Note] as a result of any delay in payment due to a [Class of
US Note] not having been surrendered in accordance with this Condition
8.2.
8.3 Paying Agents
The initial Paying Agents and their respective specified offices are set
out at the end of these [Conditions of Class of US Note].
The Issuer Trustee, at the direction of the Global Trust Manager, may,
with the prior written approval of the Note Trustee, terminate the
appointment of any Paying Agent in accordance with the Agency Agreement
and appoint additional or other Paying Agents, provided that notice of
any termination or appointment of a Paying Agent or of any change in the
office through which any Paying Agent will act will be given to the
[Noteholders of Class of US Notes] in accordance with Condition 11.1.
8.4 Taxation
All payments in respect of the [Class of US Notes] will be made without
withholding or deduction for, or on account of, any present or future
taxes, duties or charges of whatsoever nature unless the Issuer Trustee
or any Paying Agent is required by any applicable law to make such a
withholding or deduction. In that event the Issuer Trustee or that Paying
Agent (as the case may be) will, after making such withholding or
deduction, account to the relevant authorities for the amount so required
to be withheld or deducted. Neither the Issuer Trustee nor any Paying
Agent nor the Note Trustee will be obliged to make any additional
payments in respect of the relevant [Class of US Notes] in relation to
the withholding or deduction. Immediately after becoming aware that such
a withholding or deduction is or will be required, the Issuer Trustee
will notify the Note Trustee, the Principal Paying Agent and the
[Noteholders of Class of US Notes] in accordance with Condition 11.1,
thereof.
8.5 Prescription
A [Class of US Note] will become void in its entirety unless surrendered
for payment within a period of 10 years from the Relevant Date in respect
of any payment of principal or interest thereon, the effect of which will
be to reduce the Stated Amount of, and all accrued but unpaid interest
on, that [Class of US Note] to zero. After the date on which a [Class of
US Note] becomes void in its entirety, no claim can be made in respect of
it.
19
"Relevant Date" in respect of a [Class of US Note] means the date on
which a payment in respect thereof first becomes due or (if the full
amount of the moneys payable in respect of the [Class of US Notes] which
is due on or before that date has not been duly received by the Principal
Paying Agent or the Note Trustee on or prior to such date) the date on
which the full amount of such moneys having been so received.
8.6 Notify Late Payments
In the event of the unconditional payment to the Principal Paying Agent
or the Note Trustee of any sum due in respect of the [Class of US Notes]
or any of them being made after the due date for payment thereof, the
Issuer Trustee will forthwith give or procure to be given notice to the
[Noteholders of Class of US Notes] in accordance with Condition 11.1 that
such payment has been made.
8.7 Rounding of Payments
All payments made to [Noteholders of Class of US Notes] will be rounded
down to the nearest cent.
9 Enforcement following occurrence of an Event of Default
9.1 Enforcement
The Master Security Trust Deed provides that at any time after the
Security Trustee becomes actually aware of the occurrence of an Event of
Default, the Security Trustee will (subject to Condition 10.4 and subject
to being appropriately indemnified), if so directed by an Extraordinary
Resolution of the Voting Secured Creditors, declare the Notes immediately
due and payable (in which case, subject to Condition 12, the Stated
Amount of, and all accrued but unpaid interest in relation to, the [Class
of US Notes] will become immediately due and payable) and enforce the
Charge.
Subject to being indemnified in accordance with the Master Security Trust
Deed and to the provisions of Condition 9.2, the Security Trustee will
take all action necessary to give effect to any direction in accordance
with the foregoing and will comply with all such directions.
"Voting Secured Creditors" have the same respective meanings as in the
Definitions Schedule.
9.2 Security Trustee may enforce Charge without direction
After the Security Trustee becomes actually aware of the occurrence of an
Event of Default, the Security Trustee must not enforce the Deed of
Charge in accordance with the Master Security Trust Deed without an
Extraordinary Resolution of the Voting Secured Creditors unless, in the
opinion of the Security Trustee, the delay required to obtain the consent
of the Voting Secured Creditors would be prejudicial to the interests of
those Voting Secured Creditors as a class.
9.3 Priority of payments from Proceeds from the enforcement of the Charge
Following the enforcement of the Charge, all moneys received in
connection with the Master Security Trust Deed and the Charge by the
Security Trustee or by any receiver appointed in relation to the Secured
Property pursuant to the provisions of the Master Security Trust Deed and
the Deed of Charge are to be applied, subject to the Master
20
Security Trust Deed, in accordance with the order of priority contained
in the Supplemental Deed.
9.4 Security Trustee and Note Trustee Not Liable for Loss on enforcement
Except in the case of fraud, negligence or breach of trust (in the case
of the Security Trustee) and, subject to the mandatory provisions of the
Trust Indenture Act, fraud, negligence (except as specifically provided
in the Trust Indenture Act), fraud, negligence or breach of trust (in the
case of the Note Trustee), neither the Note Trustee or the Security
Trustee is liable for any decline in the value, nor any loss realised
upon any sale or other disposition made under the Master Security Trust
Deed of any Secured Property or any other property which is charged to
the Security Trustee in respect of or relating to the obligations of the
Issuer Trustee or the [Class of US Notes] or relating in any way to the
Secured Property. Without limitation, neither the Note Trustee nor the
Security Trustee will be liable for any such decline or loss directly or
indirectly arising from its acting, or failing to act, as a consequence
of an opinion reached by it which, in the case of the Note Trustee, is
based in good faith on advice received by it in accordance with the
applicable requirements of the Note Trust Deed (and the Trust Indenture
Act) or the Master Security Trust Deed, as the case may be. In respect of
the Security Trustee only, the Security Trustee is not liable for any
omission, delay or mistake or any loss or irregularity in or about the
exercise, attempted exercise, non-exercise or purported exercise of any
of its powers under the Master Security Trust Deed or the Deed of Charge
except to the extent caused or contributed to by any fraud, negligence or
breach of trust on the part of the Security Trustee.
"Trust Indenture Act" means the Trust Indenture ▇▇▇ ▇▇▇▇ of the United
States of America as in force at the date of the Note Trust Deed.
9.5 Directions from [Noteholders of Class of US Notes] to Note Trustee
following Event of Default
If an Event of Default has occurred and is known to the Note Trustee, the
Note Trustee must:
(a) notify each [Noteholder of Class of US Note] of the Event of Default
within 10 days or such shorter period as may be required by the
rules of any stock exchange on which the [Class of US Notes] are
listed) after becoming aware of the Event of Default, provided that,
except in the case of a default in payment of principal or interest
on any [Class of US 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 its authorised officers
under the Note Trust Deed in good faith determine that withholding
the notice is in the interest of the [Noteholders of Class of US
Notes];
(b) if a meeting of Voting Secured Creditors is to be held under the
Master Security Trust Deed, determine whether it proposes to seek
directions from the [Noteholders of Class of US Notes] 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 [Noteholders of Class of US Notes];
and
(c) vote at any meeting of Voting Secured Creditors held under the
Master Security Trust Deed.
21
In acting in accordance with the directions of the [Noteholders of Class
of US Notes], the Note Trustee must exercise its votes for or against any
proposal to be put to a meeting of Voting Secured Creditors under the
Master Security Trust Deed in the same proportion as that of the
aggregate Invested Amounts of the [Class of US Notes] held by
[Noteholders of Class of US Notes] who have directed the Note Trustee to
vote for or against such a proposal.
If any of the [Class of US Notes] remain outstanding and are due and
payable otherwise than by reason of a default in payment of any amount
due on the [Class of US Notes], the Note Trustee must not vote at a
meeting of Voting Secured Creditors under the Master Security Trust Deed
to, or otherwise direct the Security Trustee to, dispose of the Secured
Property unless:
(a) a sufficient amount would be realised to discharge in full all
amounts owing to the [Noteholders of Class of US Notes] in respect
of the [Class of US Notes] and any other amounts owing by the Issuer
Trustee to any other person ranking in priority to or with the
[Class of US 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 Issuer Trustee (or the Security Trustee under the
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 Issuer
Trustee, to discharge in full in due course all the amounts referred
to in paragraph (a).
The Note Trustee need not do anything to find out if an Event of Default
has occurred. 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 Issuer Trustee and each other party to the Transaction Documents
is performing all its obligations under the Note Trust Deed and the
[Class of US Notes].
9.6 Only Security Trustee May Enforce Charge
Only the Security Trustee may enforce the Charge and neither the Note
Trustee nor any Noteholder of Class of US Note] (nor any other Secured
Creditor) is entitled to proceed directly against the Issuer Trustee to
enforce the performance of any of the provisions of the Master Security
Trust Deed, the Note Trust Deed, the [Class of US Notes] or any other
applicable Transaction Document, except as provided for in the Master
Security Trust Deed, the Note Trust Deed, the Master Trust Deed and the
Supplemental Deed. The Security Trustee is not required to act in
relation to the enforcement of the Charge unless its liability is limited
in a manner reasonably satisfactory to it or, if required by the Security
Trustee (in its absolute discretion), it is adequately indemnified from
the Secured Property or the Security Trustee receives from the Voting
Secured Creditors an indemnity in a form reasonably satisfactory to the
Security Trustee (which may be by way of an Extraordinary Resolution of
the Voting Secured Creditors) and is put in funds to the extent
necessary.
9.7 Exercise of [Noteholder of Class of US Note] Rights by Note Trustee
The rights, remedies and discretions of the [Noteholders of Class of US
Notes] under the Note Trust Deed and the Master Security Trust Deed,
including all rights to vote or to give an instruction or consent, can
only be exercised by the Note Trustee on behalf of the
22
[Noteholders of Class of US Notes] in accordance with the Note Trust Deed
and the Master Security Trust Deed. The Security Trustee may rely on any
instructions or directions given to it by the Note Trustee as being given
on behalf of the [Noteholders of Class of US Notes] from time to time and
need not inquire whether any such instructions or directions are in
accordance with the Note Trust Deed, whether the Note Trustee or the
[Noteholders of Class of US Notes] from time to time have complied with
any requirements under the Note Trust Deed or as to the reasonableness or
otherwise of the Note Trustee.
10 Meetings of Voting Secured Creditors, directions of [Noteholders of Class
of US Notes], modifications, consents, waivers and indemnities
10.1 Meetings of Voting Secured Creditors
The Master Security Trust Deed contains provisions for convening meetings
of the Voting Secured Creditors to, among other things, enable the Voting
Secured Creditors to direct or consent to the Security Trustee taking or
not taking certain actions under the Master Security Trust Deed; for
example to enable the Voting Secured Creditors, following the occurrence
of an Event of Default, to direct the Security Trustee to declare the
[Class of US Notes] immediately due and payable and/or to enforce the
Charge.
10.2 Directions of [Noteholders of Class of US Notes]
Under the Note Trust Deed the Note Trustee may seek directions from the
[Noteholders of Class of US Notes] from time to time, including following
the occurrence of an Event of Default. 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 [Noteholders of Class of US Notes] 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 [Noteholders of Class of US Notes].
If the Note Trustee is entitled under the Master Trust Deed or the Master
Security Trust Deed to vote at any meeting on behalf of [Noteholders of
Class of US Notes], the Note Trustee must vote in accordance with the
directions of the [Noteholders of Class of US Notes] and otherwise in its
absolute discretion. In acting in accordance with the directions of
[Noteholders of Class of US Notes], 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 of US
Notes] held by [Noteholders of Class of US Notes] who have directed the
Note Trustee to vote for or against that proposal.
10.3 Amendments to Note Trust Deed and [Class of US Notes]
Pursuant, and subject, to the Note Trust Deed and subject to any approval
required by law, the Note Trustee, the Global Trust Manager and the
Issuer Trustee may together agree, without the consent or sanction of any
[Noteholder of Class of US Note], by way of supplemental deed to alter,
add to or revoke (each a "modification") any provision of the Note Trust
Deed or the [Class of US Notes] (including these [Conditions of Class of
US Note]) so long as such modification is not a Payment Modification (as
defined below) and such modification in the opinion of the Note Trustee:
(a) is necessary or expedient to comply with the provisions of any
statute or regulation or with the requirements of any governmental
agency;
23
(b) 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) is appropriate or expedient as a consequence of an amendment to any
statute or regulation or altered requirements of any governmental
agency or any decision of any court (including, without limitation,
a modification which is in the opinion of the Note Trustee
appropriate or expedient as a consequence of the enactment of a
statute or regulation or an amendment to any statute or regulation
or ruling by the Australian Commissioner 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 trust constituted under the
Note Trust Deed); or
(d) and the Issuer 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
[Noteholders of Class of US Notes]; 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
[Noteholders of Class of US Notes], the consent of an
Extraordinary Resolution of the [Noteholders of Class of US
Notes] to the alteration, addition or resolution has been
obtained. For the purpose of determining whether there has been
an Extraordinary Resolution of the [Noteholders of Class of US
Notes] consenting to an alteration, addition or revocation,
[Class of US Notes] which are beneficially owned by the Issuer
Trustee or the Global Trust Manager or by any person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer Trustee or the Global
Trust Manager, shall be disregarded.
The Global Trust Manager must give the Current Rating Agencies (as
defined in the Supplemental Deed) 5 Business Days' prior notice of any
such modification. The Note Trustee will be entitled to assume that any
proposed modification, other than a Payment Modification, will not be
materially prejudicial to the interest of [Noteholders of Class of US
Notes] if each of the Current Rating Agencies confirms in writing that if
the modification is effected this will not lead to a reduction,
qualification or withdrawal of the then rating given to the [Class of US
Notes] by that Current Rating Agency.
Pursuant to the Note Trust Deed, the Note Trustee may concur with the
Issuer Trustee and the Global Trust Manager in making or effecting any
Payment Modification if and only if the consent has first been obtained
of each [Noteholder of Class of US Note] to such Payment Modification.
Any supplemental deed that effects any such modifications must conform to
the requirements of the Trust Indenture Act and copies of any such
supplemental deed must be distributed by the Issuer Trustee to the
[Noteholders of Class of US Notes] in accordance with Condition 11.1 as
soon as reasonably practicable after the modifications have been made.
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"Payment Modification" means any alteration, addition or revocation of
any provision of the Transaction Documents or the [Class of US Notes]
(including the [Conditions of Class of US Note]) which modifies:
(a) the amount, timing, place, currency or manner of payment of
principal or interest in respect of the [Class of US Notes]
including, without limitation, any modification to the Stated
Amount, Invested Amount, Interest Rate or Final Maturity Date in
respect of the [Class of US Notes] or to Conditions 6.9 and 7.2 or
which would impair the rights of [Noteholders of Class of US Notes]
to institute suit for enforcement of such payment on or after the
due date for such payment;
(b) the definition of the term "Extraordinary Resolution", clause 21.4
of the Note Trust Deed or the circumstances in which the consent or
direction of a Special Majority of [Noteholders of Class of US
Notes] is required;
(c) clause 14.18 of the Supplemental Deed; or
(d) the requirements for altering, adding to or revoking any provision
of the Note Trust Deed or the [Class of US Notes] (including the
[Conditions of Class of US Note]).
"Extraordinary Resolution" has the meaning given in the Definitions
Schedule.
10.4 Waivers, etc.
The Security Trustee may, in accordance with the Master Security Trust
Deed and without the consent or sanction of the Voting Secured Creditors
(but not in contravention of an Extraordinary Resolution of the Voting
Secured Creditors), waive or ignore any breach or proposed breach or
determine that any event that would otherwise be an Event of Default will
not be treated as such if such action, in its opinion, will not be
prejudicial to the interests of the Secured Creditors.
The Note Trustee may, without the consent of the [Noteholders of Class of
US Notes] 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 [Noteholders of Class of US Notes] will not be
materially prejudiced thereby, waive or authorise, on such terms as seem
expedient to it, any breach or proposed breach by the Issuer Trustee of
the Note Trust Deed or these [Conditions of the Class of US Notes]
provided that the Note Trustee shall not do so in contravention of an
express direction given by an Extraordinary Resolution 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 [Noteholders of
Class of US Notes] and, if the Note Trustee so requires, will be notified
to the [Noteholders of Class of US Notes] as soon as practicable.
10.5 Indemnification and Exoneration of the Note Trustee and the Security
Trustee
The Note Trust Deed and the Master Security Trust Deed contain provisions
for the indemnification of the Note Trustee and the Security Trustee
(respectively) and for their relief from responsibility, including
provisions relieving them from taking proceedings to realise the security
and to obtain repayment of the [Class of US Notes] unless indemnified to
their satisfaction. Each of the Note Trustee and the Security Trustee is
entitled, subject in the case of the Note Trustee to the mandatory
provisions of the Trust Indenture Act, to
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enter into business transactions with the Issuer Trustee and/or any other
party to the Transaction Documents without accounting for any profit
resulting from such transactions.
Subject to the mandatory provisions of the Trust Indenture Act, the Note
Trustee shall not be responsible for any loss, expense or liability
occasioned to the Secured Property or any other property or in respect of
all or any of the moneys which may stand to the credit of the Collections
Account (as defined in the Supplemental Deed) 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,
negligence or breach of trust of the Note Trustee. The Security Trustee
is not, nor is any receiver appointed in relation to the Secured Property
pursuant to the provisions of the Master Security Trust Deed, liable or
otherwise accountable for any omission, delay or mistake or any loss or
irregularity in or about the exercise, attempted exercise, non-exercise
or purported exercise of any of the powers of the Security Trustee or of
the receiver under the Master Security Trust Deed except for fraud,
negligence or breach of trust.
Except in the case of fraud, negligence (except as specifically provided
in the Trust Indenture Act) or breach of trust, and subject to the
mandatory provisions of the Trust Indenture Act, the Note Trustee may act
on the opinion or advice of, or information obtained from, any expert
(including any lawyer, valuer, banker, broker, accountant, credit rating
agency or lead manager) and shall not be responsible to anyone for any
loss occasioned by so acting to the extent it complies with any
applicable requirements of the Note Trust Deed or the Trust Indenture
Act.
Any such opinion, advice or information may be sent or obtained by
letter, telex or facsimile transmission and the Note Trustee will not be
liable to any [Noteholders of Class of US Notes], amongst others, for
acting in good faith on any opinion, advice or information purporting to
be conveyed by such means even if it contains some error which is not a
manifest error or is not authentic.
11 Notices
11.1 General
Subject to Condition 11.2, all notices, other than notices given in
accordance with the following paragraph and Condition 11.3, to
[Noteholders of Class of US Notes] will be deemed given if in writing and
mailed, first-class, postage prepaid to each [Noteholder of Class of US
Note], at his or her address as it appears on the [Register of the Class
of US Notes], not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case
where notice to [Noteholders of Class of US Notes] is given by mail,
neither the failure to mail such notice nor any defect in any notice so
mailed to any particular [Noteholder of Class of US Note] will affect the
sufficiency of such notice with respect to other [Noteholders of Class of
US Notes], and any notice that is mailed in the manner herein provided
will conclusively be presumed to have been duly given.
A notice may be waived in writing by the relevant [Noteholder of Class of
US Note], either before or after the event, and such waiver will be the
equivalent of such notice. Waivers of notice by [Noteholders of Class of
US Notes] will be filed with the Note Trustee but such filing will not be
a condition precedent to the validity of any action taken in reliance
upon such a waiver.
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Any such notice will be deemed to have been given on the date such notice
is deposited in the mail.
In case, by reason of the suspension of regular mail services as a result
of a strike, work stoppage or similar activity, it is impractical to mail
notice of any event to [Noteholders of Class of US Notes] when such
notice is required to be given, then any manner of giving such notice as
the Issuer Trustee directs the Note Trustee will be deemed to be a
sufficient giving of such notice.
In addition to the above, notices to the [Noteholders of Class of US
Notes] shall be valid if published in a leading daily newspaper in
[relevant jurisdictions]. It is expected that publication will be made in
[relevant jurisdictions]. Any such notice shall be deemed to have been
given on the date of such publication or, if published more than once, on
the date of the first such publication.
11.2 Book-Entry Notes
Unless and until the [Class of Definitive US Notes] have been issued in
definitive form, whenever a notice or other communication to the
[Noteholders of Class of US Notes] is required under the Note Trust Deed
or any other Transaction Document all such notices and communications
must be given to The Depositary Trust Company and are not required to be
given to the beneficial owners of the [Class of US Notes]. Any such
notice given to the Depository Trust Company shall also be published in
accordance with the requirements set forth in the last paragraph of
Condition 11.1.
"[Class of Definitive US Note]" has the same meaning as in the
Supplemental Deed.
11.3 [Class of US Note] Information
Any notice specifying a Payment Date, an Interest Rate in relation to the
[Class of US Notes], an Interest Amount, a [Class of US Note] Principal
Amount (or the absence of a [Class of US Note] Principal Amount), an
Invested Amount, a Stated Amount or any other matter permitted to be
given in accordance with this Condition 11.3, will be deemed to have been
duly given if the information contained in the notice appears on the
relevant page of the Reuters Screen or the Electronic information system
made available to its subscribers by Bloomberg, L.P. or another similar
electronic reporting service approved by the Note Trustee in writing and
notified to [Noteholders of Class of US Notes] pursuant to Condition 11.1
(the "Relevant Screen"). Any such notice will be deemed to have been
given on the first date on which such information appeared on the
Relevant Screen. If it is impossible or impracticable to give notice in
accordance with this paragraph then notice of the matters referred to in
this Condition will be given in accordance with Condition 11.1.
12 Limitation of liability of the Issuer Trustee
(a) The Issuer Trustee enters into each Transaction Document, and issues
the [Class of US Notes], only in its capacity as trustee of the
Trust and in no other capacity. A liability arising under or in
connection with the [Class of US Notes], a Transaction Document or
the Trust is limited to and can be enforced against the Issuer
Trustee only to the extent to which it can be satisfied out of the
assets of the Trust out of which the Issuer Trustee is actually
indemnified for the liability. This limitation of the Issuer
Trustee's liability applies despite any other provision of any
Transaction Document (other than paragraph (c) below) and extends to
all
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liabilities and obligations of the Issuer Trustee in any way
connected with any representation, warranty, conduct, omission,
agreement or transaction related to a Transaction Document, the
[Class of US Notes] or the Trust.
(b) In relation to the Trust, no person (including, without limitation,
any Unitholder or Secured Creditor other than the Issuer Trustee)
may ▇▇▇ the Issuer Trustee in any capacity other than as 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 Issuer Trustee or prove
in any liquidation, administration or arrangements of or affecting
the Issuer Trustee (except in relation to the assets of the Trust).
(c) The provisions of this Condition 12 will not apply to any obligation
or liability of the Issuer Trustee to the extent that it is not
satisfied because under the Master Trust Deed or the Supplemental
Deed or by operation of law there is a reduction in the extent of
the Issuer Trustee's indemnification out of the assets of the Trust
as a result of the Issuer Trustee's fraud, negligence or breach of
trust.
(d) It is acknowledged that the Relevant Parties (as defined in the
Definitions Schedule) are responsible under the Transaction
Documents in relation to the Trust for performing a variety of
obligations relating to the Trust. No act or omission of the Issuer
Trustee (including any related failure to satisfy its obligations or
breach of a representation or warranty under any Transaction
Document or the [Class of US Notes]) will be considered fraud,
negligence or breach of trust of the Issuer Trustee for the purpose
of paragraph (c) to the extent to which the act or omission was
caused or contributed to by any failure by a Relevant Party or any
other person who provides services in respect of the Trust to fulfil
its obligations relating to the Trust or by any other act or
omission of a 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 Issuer Trustee.
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with any Transaction Document has authority to act on
behalf of the Issuer Trustee in a way which exposes the Issuer
Trustee to any liability in excess of that contemplated under this
Condition 12, and no act or omission of any such person will be
considered fraud, negligence or breach of trust of the Issuer
Trustee for the purpose of paragraph (c).
(f) The Issuer Trustee is not obliged to do anything or refrain from
doing anything under or in connection with these [Conditions of the
Class of US Notes]or any other Transaction Document (including incur
a liability) unless the Issuer Trustee's liability is limited in the
same manner as set out in this Condition 12.
13 Governing law
The Notes and the Transaction Documents (other than the Underwriting
Agreement and the Mortgage Insurance Policy) are governed by, and will be
construed in accordance with, the laws of the Australian Capital
Territory of the Commonwealth of Australia. Each of the Issuer Trustee
and the Global Trust Manager has in the Note Trust Deed irrevocably
agreed for the benefit of the Note Trustee and the [Noteholders of Class
of US Notes] that the courts of the Australian Capital Territory are to
have non-exclusive jurisdiction to settle any disputes which may arise
out of or in connection with the Note Trust Deed and the [Class of US
Notes].
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Agents
Principal Paying Agent and [Name and address of agent]
Calculation Agent:
[Class of US Note] Registrar: [Name and address of agent]
Paying Agent: [Name and address of agent]