Exhibit 4.3
WESTPAC SECURITIES ADMINISTRATION LIMITED
(as Trustee)
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
(the Trust Manager)
and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
(Note Trustee)
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NOTE TRUST DEED
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(C)▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Ref: AEJ 1279390 CTB
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TABLE OF CONTENTS
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1. DEFINITIONS AND INTERPRETATION ...................................... 1
1.1 Definitions and Interpretation ............................... 1
1.2 Definitions in Master Trust Deed, Series Notice and
Conditions ...................................................... 3
1.3 Incorporation by reference ................................... 4
1.4 Interpretation ............................................... 4
1.5 Determination, statement and certificate sufficient
evidence ........................................................ 4
1.6 Document or agreement ........................................ 4
1.7 Transaction Document ......................................... 5
1.8 Trustee as trustee ........................................... 5
1.9 Obligations of the Trustee ................................... 5
2. PAYMENTS ON OFFSHORE NOTES .......................................... 5
2.1 Principal amount ............................................. 5
2.2 Covenant to repay ............................................ 5
2.3 Deemed payment ............................................... 6
2.4 Following Event of Default ................................... 6
2.5 Requirements of Paying Agent ................................. 7
2.6 Certification ................................................ 7
2.7 Determinations ............................................... 7
3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, OFFSHORE NOTES ........... 8
3.1 Issue of Book-Entry Notes .................................... 8
3.2 Form of Book-Entry Notes ..................................... 8
3.3 Definitive Notes ............................................. 9
3.4 Stamp and Other Taxes ....................................... 10
3.5 Indemnity for non-issue ..................................... 10
3.6 Note Register and Note Registrar ............................ 10
4. COVENANT OF COMPLIANCE ............................................. 11
5. CANCELLATION OF OFFSHORE NOTES ..................................... 12
5.1 Cancellation ................................................ 12
5.2 Records ..................................................... 12
6. ENFORCEMENT ........................................................ 12
6.1 Actions following Event of Default .......................... 12
6.2 Evidence of default ......................................... 12
6.3 Overdue interest ............................................ 13
6.4 Restrictions on enforcement ................................. 13
7. PROCEEDINGS ........................................................ 14
7.1 Acting only on direction .................................... 14
7.2 Security Trustee acting ..................................... 14
7.3 Note Trustee alone entitled to act .......................... 14
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7.4 Available amounts ........................................... 15
7.5 Conflict of interests ....................................... 15
8. NOTICE OF PAYMENT .................................................. 15
9. INVESTMENT BY NOTE TRUSTEE ......................................... 15
10. PARTIAL PAYMENTS ................................................... 16
11. COVENANTS BY THE TRUSTEE AND TRUST MANAGER ......................... 16
11.1 Covenants by the Trustee and Trust Manager .................. 16
12. REMUNERATION OF NOTE TRUSTEE ....................................... 18
12.1 Fee ......................................................... 18
12.2 Additional Remuneration ..................................... 19
12.3 Costs, expenses ............................................. 19
12.4 Overdue rate ................................................ 19
12.5 Continuing obligation ....................................... 19
13. NOTE TRUSTEE ....................................................... 19
13.1 Preferential Collection of Claims Against Trustee ........... 19
13.2 Duties of Note Trustee ...................................... 19
13.3 Notice of Defaults .......................................... 20
13.4 Rights of Note Trustee ...................................... 20
14. NOTE TRUSTEE'S LIABILITY ........................................... 26
15. DELEGATION BY NOTE TRUSTEE ......................................... 27
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE ................................ 27
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE .............................. 27
18. WAIVER ............................................................. 28
19. AMENDMENT .......................................................... 28
19.1 Approval .................................................... 28
19.2 Resolution of Offshore Noteholders .......................... 29
19.3 Distribution of amendments .................................. 29
19.4 Conformity with TIA ......................................... 29
20. OFFSHORE NOTEHOLDERS ............................................... 29
20.1 Absolute Owner .............................................. 29
20.2 Clearing Agency Certificate ................................. 30
21. CURRENCY INDEMNITY ................................................. 30
22. NEW NOTE TRUSTEES .................................................. 31
22.1 Appointment by Trustee ...................................... 31
22.2 Appointment by Note Trustee ................................. 31
22.3 Notice ...................................................... 32
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23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL .............................. 32
23.1 Removal by Trustee .......................................... 32
23.2 Removal by Offshore Noteholders ............................. 33
23.3 Resignation ................................................. 33
23.4 Rating Agencies approval .................................... 33
23.5 Trust Corporation ........................................... 33
23.6 Successor to Note Trustee ................................... 33
23.7 Eligibility; Disqualification ............................... 34
24. NOTE TRUSTEE'S POWERS ADDITIONAL ................................... 34
25. SEVERABILITY OF PROVISIONS ......................................... 34
26. NOTICES ............................................................ 34
26.1 General ..................................................... 34
26.2 Details ..................................................... 35
27. GOVERNING LAW AND JURISDICTION ..................................... 36
28. COUNTERPARTS ....................................................... 36
29. LIMITED RECOURSE ................................................... 36
29.1 General ..................................................... 36
29.2 Liability of Trustee limited to its right to indemnity ...... 36
29.3 Unrestricted remedies ....................................... 37
29.4 Restricted remedies ......................................... 38
30. SUCCESSOR TRUSTEE .................................................. 38
31. OFFSHORE NOTEHOLDERS' LISTS AND REPORTS ............................ 38
31.1 Provision of information .................................... 38
31.2 Preservation of Information; Communications to Offshore
Noteholders ................................................. 39
31.3 Reports by Note Trustee ..................................... 39
31.4 Notices to Offshore Noteholders; Waiver ..................... 39
31.5 Reports by Trustee .......................................... 40
32. TRUST INDENTURE ACT - MISCELLANEOUS ................................ 40
32.1 Compliance Certificates and Opinions, etc ................... 40
32.2 Undertaking for Costs ....................................... 41
32.3 Exclusion of section 316 .................................... 42
32.4 Unconditional Rights of Offshore Noteholders to Receive
Principal and Interest ...................................... 42
32.5 Conflict with Trust Indenture Act ........................... 42
33. CONSENT OF OFFSHORE NOTEHOLDERS .................................... 43
33.1 General ..................................................... 43
33.2 Special Written Approvals ................................... 43
33.3 Requirement for writing ..................................... 44
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CROSS REFERENCE TABLE(1)
Trust Indenture Act Section Clause
310 (a)(1) 23.6
23.1(d)
(a)(2) 23.6
(a)(3) 22.2(b)
(a)(4) NA(2)
(a)(5) 23.6
(b) 23.6, 23.1
(c) ▇▇
▇▇▇ (▇) ▇▇.▇
(▇) ▇▇.▇
(▇) ▇▇
▇▇▇ (▇) 31.1,31.2(a)
(b) 31.2(b)
(c) 31.2(c)
313 (a) 31.3
(b)(1) 31.3
(b)(2) NA
(c) 31.4
(d) 31.3
314 (a)(1) 31.5
(a)(2) 31.5
(a)(3) 31.5
(a)(4) 11.1(i)
(b) 11.1(j)
(c) 32.1(a)
(d) 32.1(b)
(e) 32.1(c)
(f) 32.1(a)
315 (a) 13.2(b)
(b) 13.3
(c) 13.2(a)
(d) 13.2(c), (d)
(e) 32.2
316 (a)(1) 32.3
(a)(2) NA
(b) 32.4
317 (a)(1) 6.1
(a)(2) 2.5
(b) NA
318 (a) 32.5
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Notes:
1. This Cross Reference Table shall not, for any purpose, be deemed to be
part of this deed.
2. NA means not applicable.
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NOTE TRUST DEED
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DEED dated 1998 between:
1. WESTPAC SECURITIES ADMINISTRATION LIMITED (ACN 000 049 472) incorporated
in New South Wales of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ in its capacity as
trustee of the Series ▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ (the Trustee);
2. WESTPAC SECURITISATION MANAGEMENT PTY LIMITED (ACN ▇▇▇ ▇▇▇ ▇▇▇)
incorporated in the Australian Capital Territory of ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ as trust manager in relation to the Series ▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇
(the Trust Manager); and
3. ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK acting through its office at ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ OJP (Note Trustee), which expression
shall, wherever the context requires, include any other person or company
for the time being a trustee under this deed or trustees of this deed).
RECITALS
A. The Trustee has resolved at the direction of the Trust Manager to issue
US$[*] of mortgage backed floating rate notes due [ ] comprising US$[*]
Class A Notes and US$[*] Class B Notes, those Offshore Notes to be
constituted and secured in the manner provided in this deed and the other
Transaction Documents.
B. The Note Trustee has agreed to act as trustee for the Offshore Noteholders
under this deed.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions and Interpretation
The following definitions apply unless the context requires otherwise.
Clearing Agency Participant means a broker, dealer, bank, other financial
institution or other person for whom from time to time a Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
Conditions means:
(a) in respect of a Class A Note, the Class A Conditions;
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(b) in respect of a Class B Note, the Class B Conditions; and
(c) where no Class is specified, the applicable Conditions for the
relevant Notes,
and any reference in this deed to a particular numbered Condition shall be
construed accordingly.
Corporate Trust Office means the principal office of the Note Trustee at
which at any particular time its corporate trust business is administered
which at the date of the execution of this deed is ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ OJP or at such other address as the Note Trustee and the
Offshore Noteholders may designate by notice to the Trust Manager or the
principal corporate trust office of any successor Note Trustee.
Event of Default means, in respect of a Offshore Note, any of the events
described in the relevant Condition 9.
Exchange Act means the Securities ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ of the United States
of America, as amended.
Independent means, in relation to a person, that the person:
(a) is independent of the Trustee, the Trust Manager, the Servicer, any
Approved Seller and any of their Associates;
(b) does not have any direct financial interest or any material indirect
financial interest (other than less than 5% of the outstanding
amount of any publicly traded security) in any person referred to in
paragraph (a); and
(c) is not an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions of any
person referred to in paragraph (a).
Independent Certificate means, in relation to any person, a certificate or
opinion from that person where that person must be Independent, which
opinion or certificate states that the signer has read the definition of
Independent in this deed and that the signer is Independent within the
meaning of that definition.
Issuer Order and Issuer Request means a written order or request signed in
the name of the Trustee by any one of its Authorised Signatories and
delivered to the Note Trustee.
Master Trust Deed means the Master Trust Deed dated 14 February 1997
between the Trustee and the Trust Manager.
Note Depository Agreement means the agreement among Trustee, Note Trustee
and The Depository Trust Company, as the initial Clearing Agency, dated as
of the Closing Date, relating to the Offshore Notes, as the same may be
amended or supplemented from time to time.
Noteholders Report means the report to be delivered by the Trust Manager,
on behalf of the Trustee, in accordance with clause 11.1(1) containing the
information set out in Schedule 2.
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Officer's Certificate means a certificate signed by any Authorised
Signatory of the Trustee or the Trust Manager on behalf of the Trustee,
under the circumstances described in, and otherwise complying with, the
applicable requirements of section 314 of the TIA.
Offshore Note Owner means, with respect to a Book-Entry Note, the person
who is the owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency, or on the books of a person maintaining an account with
such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such
Clearing Agency).
Opinion of Counsel means one or more written opinions of legal counsel who
may, except as otherwise expressly provided in this deed, be employees of
or counsel to the Trustee or the Trust Manager on behalf of the Trustee
and who shall be satisfactory to the Trustee or the Note Trustee, as
applicable, and which opinion or opinions shall be addressed to the
Trustee or the Note Trustee, as applicable, and shall be in form and
substance satisfactory to the Trustee and the Note Trustee, as applicable.
Paying Agent means any institution, including where the context permits
the Principal Paying Agent at its office (for so long as required for
interest under the Offshore Notes to be exempt from interest withholding
tax under section 128F of the Income Tax Assessment Act 1936 (Cth),
outside of Australia):
(a) initially appointed as Paying Agent by the Trustee under the Agency
Agreement; or
(b) as may, with the prior written approval of, and on terms previously
approved in writing by, the Note Trustee (that approval not to be
unreasonably withheld or delayed) from time to time be appointed by
the Trustee in relation to the Offshore Notes,
in each case (except in the case of the initial Principal Paying Agent)
where notice of the appointment has been given to the Offshore Noteholders
under this deed and in accordance with the relevant Condition 12.
Responsible Officer means, with respect to the Note Trustee, any of its
officers, including any Vice President, Assistant Vice President,
Assistant Treasurer, Assistant Secretary, or any other of its officers
customarily performing functions similar to those performed by any of them
and, with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and familiarity
with the particular subject.
Series Notice means the Series Notice dated [*] 1998 between the Trustee,
the Trust Manager, the Note Trustee, Westpac Banking Corporation and the
Servicer.
TIA means the Trust Indenture Act of 1939 of the United States of America,
as amended.
Trust Account means the Collection Account, the US$ Account or any other
account maintained by or on behalf of the Trustee in relation to the
Trust.
Trust Corporation means any person eligible for appointment as a trustee
under an indenture to be qualified pursuant to the TIA, as set forth in
Section 310(a) of the TIA, which shall include ▇▇▇▇▇▇ Guaranty Trust
Company of New York for so long as it complies with such section.
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1.2 Definitions in Master Trust Deed, Series Notice and Conditions
(a) Words and expressions which are defined in the Master Trust Deed (as
amended by the Series Notice), the Series Notice and the Conditions
(including in each case by reference to another agreement) have the
same meanings when used in this deed unless the context otherwise
requires or unless otherwise defined in this deed.
(b) No change to the Master Trust Deed or any other document (including
the order of payment set out in the Series Notice) after the date of
this deed will change the meaning of terms used in this deed or
adversely affect the rights of the Note Trustee or any Offshore
Noteholder under this deed unless the Note Trustee has agreed in
writing to the changes under this deed.
1.3 Incorporation by reference
Where this deed refers to a provision of the TIA, the provision is
incorporated by reference in and made part of this deed. The following
terms used in the TIA have the following meaning in this deed.
Commission means the Securities and Exchange Commission.
indenture securities means the Offshore Notes.
indenture security holder means a Offshore Noteholder.
indenture to be qualified means the Note Trust Deed.
indenture trustee or institutional trustee means the Note Trustee.
obligor on the indenture securities means the Trustee.
Any other term which is used in this deed in respect of a section or
provision of the TIA and which is defined in the TIA, defined in the TIA
by reference to another statute or defined by or in any rule of or issued
by the Commission, will have the meaning assigned to them by such
definitions.
1.4 Interpretation
Clause 1.2 of the Master Trust Deed applies to this deed as if set out in
full and:
(a) a reference to an asset includes any real or personal, present or
future, tangible or intangible property or asset and any right,
interest, revenue or benefit in, under or derived from the property
or asset;
(b) an Event of Default subsists until it has been waived in writing by
the Note Trustee;
(c) a reference to an amount for which a person is contingently liable
includes an amount which that person may become actually or
contingently liable to pay if a contingency occurs, whether or not
that liability will actually arise; and
(d) all references to costs or charges or expenses include any value
added tax or similar tax charged or chargeable in respect of the
charge or expense.
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1.5 Determination, statement and certificate sufficient evidence
Except where otherwise provided in this deed any determination, statement
or certificate by the Note Trustee or an Authorised Signatory of the Note
Trustee provided for in this deed is sufficient evidence of each thing
determined, stated or certified until proven wrong.
1.6 Document or agreement
A reference to:
(a) an agreement includes a Security Interest, Guarantee, undertaking,
deed, agreement or legally enforceable arrangement whether or not in
writing; and
(b) a document includes an agreement (as so defined) in writing or a
certificate, notice, instrument or document.
A reference to a specific agreement or document includes it as amended,
novated, supplemented or replaced from time to time, except to the extent
prohibited by this deed.
1.7 Transaction Document
This deed is a Transaction Document for the purposes of the Master Trust
Deed.
1.8 Trustee as trustee
In this deed, except where provided to the contrary:
(a) a reference to the Trustee is a reference to the Trustee in its
capacity as trustee of the Trust only, and in no other capacity; and
(b) a reference to the assets, business, property or undertaking of the
Trustee is a reference to the assets, business, property or
undertaking of the Trustee only in the capacity described in
paragraph (a) above.
1.9 Obligations of the Trustee
(a) A reference to the Trustee in each of clauses 3.6 other than the
first sentence, 5, 11.1(i), 11.1(j), 31.1, 31.5 and 32.1 is a
reference to the Trust Manager on behalf of the Trustee and, failing
action by the Trust Manager in accordance with the relevant clause
(including any requirement to take such action within a specified
time), the Trustee.
(b) The Trustee shall not be liable for any omission by the Trust
Manager where it is acting on behalf of the Trust Manager under
sub-paragraph (a).
2. PAYMENTS ON OFFSHORE NOTES
2.1 Principal amount
(a) Subject to clause 2.3, the aggregate principal amount of the Class A
Notes is limited to US$[*].
(b) The aggregate principal amount of the Class B Notes is limited to
US$[*].
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2.2 Covenant to repay
(a) The Trustee covenants with the Note Trustee that the Trustee will,
in accordance with the terms of the Offshore Notes (including the
Conditions) and the Transaction Documents (and subject to the terms
of the Transaction Documents and the Conditions, including clause 29
of this deed and the relevant Condition 6) on:
(i) the Maturity Date of the Offshore Notes; or
(ii) each earlier date as the Offshore Notes, or any of them, may
become repayable (whether in full or in part),
pay or procure to be paid unconditionally to or to the order of the
Note Trustee in US$ in [London] for immediate value the principal
amount of the Offshore Notes repayable, or in the case of a partial
payment of the Offshore Notes, the principal amount payable, subject
to and in accordance with the terms of the Offshore Notes (including
the Conditions).
(b) Subject to clause 2.3 and to the terms of the Offshore Notes
(including the Conditions) and the Transaction Documents, until any
payment as well after as before any judgment or other order of a
court of competent jurisdiction the Trustee shall pay or procure to
be paid unconditionally to or to the order of the Note Trustee:
(i) any interest, at the respective rates calculated from time to
time, in accordance with and on the dates provided for in the
Class A Conditions and the Class B Conditions respectively;
and
(ii) principal payable at the times and in the amounts as may be
determined in accordance with Class A Condition 5 or Class B
Condition 5, as the case may be.
(c) The Note Trustee shall hold the benefit of the covenant in this
clause 2.2, and all other rights of the Offshore Noteholders under
the Offshore Notes, on trust for the benefit of the Offshore
Noteholders.
2.3 Deemed payment
Any payment of principal or interest in respect of Offshore Notes to or to
the account of the Principal Paying Agent in the manner provided in clause
3 of the Agency Agreement shall satisfy the covenant in relation to the
Offshore Notes by the Trustee in this clause 2 to the extent of that
payment, except to the extent that the Principal Paying Agent subsequently
fails to pay that amount under the Offshore Notes in accordance with the
terms of the Offshore Notes (including the Conditions).
2.4 Following Event of Default
At any time after an Event of Default in respect of the Class A Notes or
the Class B Notes (as the case may be) has occurred, or at any time after
Definitive Notes have not been issued when so required in accordance with
the Conditions, the Note Trustee may:
(a) by notice in writing to the Trustee, the Trust Manager, the
Principal Paying Agent, the other Paying Agents and the Agent Bank
require the Principal Paying Agent, the other Paying Agents and the
Agent Bank under the Agency Agreement either:
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(i)(A) to act as Principal Paying Agent and Paying Agents and
Agent Bank respectively of the Note Trustee in relation
to payments to be made by or on behalf of the Note
Trustee under the provisions of this deed on the terms
of the Agency Agreement except that the Note Trustee's
liability under any provisions of the Agency Agreement
for the indemnification of the Paying Agents and Agent
Bank shall be limited to any amount for the time being
held by the Note Trustee on the trusts of this deed and
which is available to be applied by the Note Trustee
under this deed; and
(B) hold all Definitive Notes, and all amounts, documents
and records held by them in respect of the Offshore
Notes, on behalf of the Note Trustee; or
(ii) to deliver up all Definitive Notes and all amounts, documents
and records held by them in respect of the Offshore Notes, to
the Note Trustee or as the Note Trustee shall direct in that
notice, other than any documents or records which the relevant
Paying Agent or Agent Bank is obliged not to release by any
law or regulation; and
(b) by notice in writing to the Trustee require it to make all
subsequent payments in respect of the Offshore Notes to the order of
the Note Trustee and not to the Principal Paying Agent and, with
effect from the issue of that notice to the Trustee and until that
notice is withdrawn clause 2.3 shall not apply.
2.5 Requirements of Paying Agent
The Trustee will cause each Paying Agent to execute and deliver to the
Note Trustee an instrument in which that Paying Agent shall agree with the
Note Trustee, subject to the provisions of this Clause, that that Paying
Agent shall:
(a) hold in trust for the Note Trustee and the Offered Noteholders all
sums held by that Paying Agent for the payment of principal and
interest with respect to the Offered Notes until all relevant sums
are paid to the Note Trustee or the Offered Noteholders or otherwise
disposed of as provided in this deed; and
(b) immediately notify by telex or facsimile the Note Trustee, the
Trustee, the Security Trustee and the Trust Manager if the full
amount of any payment of principal or interest required to be made
by the Series Notice and the relevant Conditions in respect of the
Offshore Notes is not unconditionally received by it or to its order
in accordance with the Agency Agreement.
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2.6 Certification
For the purposes of any redemption of Offshore Notes under the relevant
Condition 5 the Note Trustee may rely upon an Officer's Certificate from
the Trust Manager on behalf of the Trustee certifying or stating, the
opinion of each person signing that Officer's Certificate as:
(a) the fair value (within 90 days of such release) of the property or
securities to be released from the Security Trust Deed;
(b) that the proposed release will not impair the security under the
Security Trust Deed in contravention of the provisions of the
Security Trust Deed or this deed;
(c) that the Trustee will be in a position to discharge all its
liabilities in respect of the relevant Offshore Notes; and
(d) any amounts required under the Security Trust Deed to be paid in
priority to or pari passu with those Offshore Notes,
and that Officer's Certificate shall be conclusive and binding on the
Trustee, the Note Trustee and the holders of those Offshore Notes.
2.7 Determinations
If the Trust Manager does not at any time for any reason determine a
Principal Payment, the Invested Amount, the Stated Amount or the Bond
Factor applicable to any Offshore Notes in accordance with the relevant
Condition 5(m), the Principal Payment, Invested Amount, the Stated Amount
and the Bond Factor may be determined by the Note Trustee in accordance
with the relevant Conditions 5(i) and 5(m) (but based on the information
in its possession) and each such determination or calculation shall be
deemed to have been made by the Trust Manager, and the Note Trustee shall
have no liability in respect thereof other than as a result of the gross
negligence or wilful default of the Note Trustee.
3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, OFFSHORE NOTES
3.1 Issue of Book-Entry Notes
(a) The Class A Notes and the Class B Notes shall on issue be
represented by, respectively, the Class A Book-Entry Notes and the
Class B Book-Entry Notes.
(b) Each Book-Entry Note must be signed manually or by facsimile by an
Authorised Signatory of the Trustee on behalf of the Trustee and
must be manually authenticated by the Principal Paying Agent.
3.2 Form of Book-Entry Notes
(a) The Class A Book-Entry Notes and the Class B Book-Entry Notes shall
be typed in the form or substantially in the form set out in
schedule 1.
(b) The procedures relating to the exchange, authentication, delivery,
surrender, cancellation, presentation, marking up or down of any of
the Book-Entry Note (or part of the Book-Entry Note and any other
matters to be carried out by the relevant parties upon exchange (in
whole or part) of any Offshore Note shall be made in accordance with
the provisions of the relevant terms of the Book-Entry Notes and the
normal practice of the Common Depositary, the
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Principal Paying Agent and the rules and procedures of the Clearing
Agency from time to time.
(c) The Class A Book-Entry Notes shall be in an aggregate principal
amount of US$[*]. The Class B Book-Entry Notes shall be in an
aggregate principal amount of US$[*].
(d) The Trustee shall procure that, prior to the issue and delivery of
any Book-Entry Note, that Book-Entry Note will be authenticated
manually by an Authorised Signatory of the Principal Paying Agent
and no Book-Entry Note shall be valid for any purpose unless and
until so authenticated. A Book-Entry Note so executed and
authenticated shall be binding and valid obligations of the Trustee.
Until a Book-Entry Note (or part of a Book-Entry Note) has been
exchanged pursuant to this deed, it (or that part) shall in all
respects be entitled to the same benefits as a Definitive Note. Each
Book-Entry Note shall be subject to this deed except that the
registered owner of a Book-Entry Note shall be the only person
entitled to receive payments of principal or interest in relation to
it.
(e) The Offshore Notes upon original issue will be issued in the form of
Notes representing the Book-Entry Notes. The Trustee shall, on the
date of this deed, deliver or arrange the delivery on its behalf to
the Principal Paying Agent, as agent for the Clearing Agency, of the
Book-Entry Notes. The Book-Entry Notes shall initially be registered
on the Note Register in the name of the Common Depositary as nominee
of the Clearing Agency, and no Offshore Note Owner will receive a
Definitive Note representing such Offshore Note Owner's interest in
such Offshore Note, except as provided in clause 3.3.
(f) Whenever a notice or other communication to the Offshore Noteholders
is required under this deed, unless and until Definitive Notes shall
have been issued to Offshore Note Owners pursuant to clause 3.3, the
Note Trustee shall give all such notices and communications
specified herein to be given to Offshore Noteholders to the Clearing
Agency, and shall have no obligation to the Offshore Note Owners.
(g) Unless and until the Definitive Notes have been issued to a Offshore
Note Owner pursuant to clause 3.3:
(i) the provisions of this clause shall be in full force and
effect;
(ii) the Note Registrar, the Trustee, the Trust Manager, each
Paying Agent and the Note Trustee shall be entitled to deal
with the Clearing Agency for all purposes of this deed
(including the payment of principal of and interest on the
Offshore Notes and the giving of instructions or directions
hereunder) as the sole holder of the Offshore Notes, and shall
have no obligation to any Offshore Note Owners;
(iii) to the extent that the provisions of this clause conflict with
any other provisions of this deed, the provisions of this
clause shall prevail;
(iv) the rights of Offshore Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Offshore Note
Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Note Depository Agreement,
unless and until Definitive Notes are issued pursuant to
clause 3.3, the initial Clearing Agency will make book-entry
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transfers among the Clearing Agency Participants and receive
and transmit payments of principal and interest on the
Offshore Notes to such Clearing Agency Participants; and
(v) whenever this deed requires or permits actions to be taken
based upon instructions or directions of Offshore Note Owners
evidencing a specific percentage of all Invested Amounts of
all Offshore Notes, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has
received instructions to such effect from Offshore Note Owners
and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial
interest in the Offshore Notes and has delivered such
instructions to the Principal Paying Agent.
3.3 Definitive Notes
If:
(a) the Trust Manager advises the Principal Paying Agent in writing that
the Clearing Agency is no longer willing or able properly to
discharge its responsibilities with respect to the Offshore Notes or
the Clearing Agency or its successor and the Trust Manager is unable
to locate a qualified successor;
(b) the Trustee, at the direction of the Trust Manager (at the Trust
Manager's option) advises the Principal Paying Agent in writing that
the book-entry system through the Clearing Agency is or is to be
terminated; or
(c) after the occurrence of an Event of Default, the Offshore Note
Owners representing beneficial interests aggregating to at least a
majority of the aggregate Invested Amount of a Class of Offshore
Notes advise the Trustee through the Clearing Agency in writing that
the continuation of a book entry system through the Clearing Agency
is no longer in the best interests of the Offshore Note Owners of
such Class of Offshore Notes,
then the Principal Paying Agent shall notify all of the appropriate
Offshore Note Owners and the Trustee of the occurrence of any such event
and of the availability of Definitive Notes to such Offshore Note Owners
requesting the same. Upon the surrender of the Book-Entry Notes to the
Trustee by the Clearing Agency, and the delivery by the Clearing Agency of
the relevant registration instructions to the Trustee, the Trustee shall
execute and authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without
steel engraved borders), all as determined
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by the Authorised Signatories executing such Definitive Notes, as
evidenced by their execution of such Definitive Notes.
Neither the Note Registrar nor the Trustee shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions.
3.4 Stamp and Other Taxes
The Trustee will pay any stamp and other duties and Taxes payable in
Australia, the United Kingdom, Belgium, Luxembourg or the United States on
or in connection with:
(a) the execution of the Transaction Documents;
(b) the constitution and original issue and delivery of the Offshore
Notes; and
(c) any action taken by the Note Trustee or (where permitted under this
deed so to do), the Clearing Agency, or any Offshore Note Owner to
enforce the provisions of the Offshore Notes or the Transaction
Documents.
3.5 Indemnity for non-issue
If the Trustee is required to issue, or procure the issue of, Definitive
Notes following an event specified in clause 3.3 but fails to do so within
30 days of delivery to the Trustee of the Book-Entry Notes in accordance
with clause 3.3(e) then the Trustee shall indemnify the Note Trustee, the
Offshore Noteholders and Offshore Note Owners, and keep them indemnified,
against any loss or damage incurred by any of them if the amount received
by the Note Trustee, the Offshore Noteholders or Offshore Note Owners is
less than the amount that would have been received had Definitive Notes
been issued. If and for so long as the Trustee discharges its obligations
under this indemnity, the breach by the Trustee of the provisions of
clause 3.3 shall be deemed to be cured. The Trust Manager must promptly
advise the Trustee if it becomes actually aware of the occurrence of the
relevant event and the Trustee shall promptly notify the Note Trustee of
the relevant event.
3.6 Note Register and Note Registrar
(a) The Trustee shall keep or cause to be kept the Note Register in
which, subject to such reasonable regulations as it may prescribe,
the Trustee shall provide for the registration of the Offshore Notes
and the registration of transfers of Offshore Notes. The Note
Registrar will be responsible for registering Notes and transfers of
Offshore Notes as herein provided. The Trustee may, with the consent
of the Note Trustee, appoint another person as Note Registrar. Upon
any resignation or removal of any Note Registrar under the Agency
Agreement, the Trustee with the assistance of and at the direction
of, the Trust Manager shall promptly appoint a successor or, if it
elects not to make such an appointment, assume the duties of the
Note Registrar.
(b) Upon surrender for registration of transfer of any Offshore Note at
the office or agency of the Trustee to be maintained as provided in
clause 11.1, if the requirements of Section 8-401(a) of the Uniform
Commercial Code of New York (the UCC) are met the Trustee shall
execute and upon its written request
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the Note Registrar shall authenticate and the Offshore Noteholder
shall obtain from the Note Trustee, in the name of the designated
transferee or transferees, one or more new Offshore Notes, in any
authorised denominations, of the same class and a like aggregate
principal amount.
(c) At the option of the Offshore Noteholder, Offshore Notes may be
exchanged for other Offshore Notes in any authorised denominations,
of the same class and a like aggregate principal amount, upon
surrender of the Offshore Notes to be exchanged at such office or
agency. Whenever any Offshore Notes are so surrendered for exchange,
if the requirements of Section 8-401(a) of the UCC are met the
Trustee shall execute and upon its written request the Note
Registrar shall authenticate and the Offshore Noteholder shall
obtain from the Note Trustee, the Offshore Notes which the Offshore
Noteholder making the exchange is entitled to receive.
(d) Every Offshore Note presented or surrendered for registration of
transfer or exchange shall be (i) duly endorsed by, or be
accompanied by a written instrument of transfer in a form
satisfactory to the Note Registrar duly executed by, the Offshore
Noteholder thereof or such Offshore Noteholder's attorney duly
authorised in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Note Registrar which requirements include membership or
participation of Securities Transfer Agents Medallion Program
(Stamp) or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution
for, Stamp, all in accordance with the Exchange Act, and (ii)
accompanied by such other documents as the Note Registrar may
require.
(e) No Service charge shall be made to a Offshore Noteholder for any
registration of transfer or exchange of Offshore Notes, but the
Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Offshore Notes.
(f) The preceding provisions of this section notwithstanding, the
Trustee shall not be required to make and the Note Registrar need
not register transfers or exchanges of Offshore Notes selected for
redemption or of any Offshore Note for a period of 30 days preceding
the due date for any payment with respect to the Offshore Note.
4. COVENANT OF COMPLIANCE
The Trustee covenants with the Note Trustee that it will comply with and
perform and observe all material provisions of the Transaction Documents
which are expressed to be binding on it for the benefit of the Note
Trustee or any Offshore Noteholder. The Conditions shall be binding on the
Trustee, the Note Trustee and the Offshore Noteholders. The Note Trustee
is entitled to enforce the obligations of the Trustee under the Offshore
Notes and the Conditions as if the same were set out and contained in this
deed (which shall be read and construed as one document with the Offshore
Notes).
5. CANCELLATION OF OFFSHORE NOTES
5.1 Cancellation
The Trustee shall procure that all Offshore Notes:
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(a) which have been surrendered for payment, registration of transfer,
exchange or redemption; or
(b) in the case of any Definitive Note, which, being mutilated or
defaced, have been surrendered and replaced under the relevant
Condition 11,
shall forthwith be cancelled by or on behalf of the Trustee.
5.2 Records
The Trustee shall procure that:
(a) the Principal Paying Agent keeps a full and complete record of all
Offshore Notes and of their redemption, payment, exchange or
cancellation (as the case may be) and of all replacement Offshore
Notes, issued in substitution for lost, stolen, mutilated, defaced
or destroyed Definitive Notes; and
(b) such records shall be made available to the Note Trustee at all
reasonable times.
6. ENFORCEMENT
6.1 Actions following Event of Default
At any time while an Event of Default is subsisting the Note Trustee
may (subject to the Security Trust Deed, to clauses 6.4 and 7, and to
the relevant Conditions 9 and 10) at its discretion and without further
notice take any action available to it to direct the Security Trustee
to:
(a) institute any proceedings against the Trustee which are permitted
under the Transaction Documents;
(b) enforce the security created under the Security Trust Deed
(including anything set out in clause 8.2 of the Security Trust
Deed); and
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(c) enforce repayment of the Offshore Notes together with accrued
interest and any other moneys payable to the Note Trustee, the
Offshore Noteholders or the under the Transaction Documents.
6.2 Evidence of default
If the Security Trustee or the Note Trustee takes any action against the
Trustee to enforce any of the provisions of any Offshore Notes or this
deed, proof that as regards any Offshore Note, the Trustee has not paid
any principal or interest due in respect of that Offshore Note shall
(unless the contrary is proved) be sufficient evidence that the Trustee
has not paid that principal or interest on all other Offshore Notes in
respect of which the relevant payment is then due.
6.3 Overdue interest
The rates of interest payable in respect of any Offshore Note which has
become due and repayable in full (subject, in the case of the Class B
Notes, to the provisions of Class B Condition 7) and which has not been
repaid shall be calculated at three-monthly intervals, commencing on the
expiry of the Coupon Period for the Offshore Note during which the
Offshore Note became due and repayable in accordance with the provisions
of Class A Condition 4 (in the case of Class A Notes), and Class B
Condition 4 (in the case of Class B Notes) except that no notices need be
given to Offshore Noteholders, in relation to that interest.
6.4 Restrictions on enforcement
(a) If any of the 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 Security Trust Deed to, or otherwise direct the Security
Trustee to, dispose of the Mortgaged Property unless either:
(i) a sufficient amount would be realised to discharge in full all
amounts owing to the Class A Noteholders and any other amounts
payable by the Trustee ranking in priority to or pari passu
with the Class A Notes; or
(ii) the Note Trustee is of the opinion, reached after considering
at any time and from time to time the advice of a merchant
bank or other financial adviser selected by the Note Trustee,
that the cash flow receivable by the Trustee (or the Security
Trustee under the Security Trust Deed) will not (or that there
is a significant risk that it will not) be sufficient, having
regard to any other relevant actual, contingent or prospective
liabilities of the Trustee, to discharge in full in due course
all the amounts referred to in paragraph (i).
(b) If all Class A Notes have been redeemed in full but while any of the
Class B Notes remain outstanding and are due and payable otherwise
than by reason of a default in payment of any amount due on the
Class B Notes, the Note Trustee must not vote under the Security
Trust Deed to, or otherwise direct the Security Trustee to, dispose
of the Mortgaged Property unless either:
(i) a sufficient amount would be realised to discharge in full all
amounts owing to the Class B Noteholders and any other amounts
payable by the Trustee ranking in priority thereto or pari
passu with the Class B Notes; or
(ii) the Note Trustee is of the opinion, reached after considering
at any time and from time to time the advice of a merchant
bank or other financial
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adviser selected by the Note Trustee, that the cash flow
prospectively receivable by the Trustee (or the Security
Trustee under the Security Trust Deed) will not (or that there
is a significant risk that it will not) be sufficient, having
regard to any other relevant actual, contingent or prospective
liabilities of the Trustee, to discharge in full in due course
all amounts referred to in paragraph (i).
(c) Neither the Note Trustee nor the Security Trustee will be liable for
any decline in the value, nor any loss realised upon any sale or
other dispositions made under the Security Trust Deed, of any
Mortgaged Property or any other property which is charged to the
Security Trustee by any other person in respect of or relating to
the obligations of the Trustee or any third party in respect of the
Trustee or the Offshore Notes or relating in any way to the
Mortgaged Property. Without limitation, neither the Note Trustee nor
the Security Trustee shall be liable for any such decline or loss
directly or indirectly arising from its acting, or failing to act,
as a consequence of an opinion reached by it in good faith based on
advice received by it in accordance with paragraph (a) or (b).
7. PROCEEDINGS
7.1 Acting only on direction
(a) Subject to paragraph (b), the Note Trustee shall not be bound to
vote under the Security Trust Deed, or otherwise direct the Security
Trustee under the Security Trust Deed, or take any proceedings,
actions or steps under, or any other proceedings pursuant to or in
connection with, the Security Trust Deed, this deed, or any Offshore
Notes, unless directed or requested to do so in writing by holders
of at least 75% of the aggregate Invested Amount of Class A Notes or
the Class B Notes, as appropriate and then only if the Note Trustee
is indemnified to its satisfaction against all action, proceedings,
claims and demands to which it may render itself liable and all
costs, charges, damages and expenses which it may incur by so doing;
or
(b) So long as any of the Class A Notes remains outstanding, the Note
Trustee shall not, and shall not be bound to, act at the request or
direction of the Class B Noteholders under paragraph (a) unless:
(i) so to do would not in its opinion be materially prejudicial to
the interests of the Class A Noteholders; or
(ii) the relevant action is sanctioned by holders of at least 75%
of the aggregate Invested Amount of the Class A Notes or the
Class B Notes, as appropriate; or
(iii) in the case of giving notice pursuant to Class B Condition 10,
the Class A Notes are all then repayable in full.
(c) If the Note Trustee is directed or requested to take any
proceedings, actions or steps under this clause, it shall not be
liable in respect of the time, method, or place of conducting any
proceeding or in exercising any trust or power conferred on it under
this deed.
7.2 Security Trustee acting
Only the Security Trustee may enforce the provisions of the Security Trust
Deed and neither the Note Trustee nor any holder of a Offshore Note is
entitled to proceed directly
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against the Trustee to enforce the performance of any of the provisions of
the Security Trust Deed, the Offshore Notes (including the Conditions).
7.3 Note Trustee alone entitled to act
Only the Note Trustee may:
(a) direct the Security Trustee to enforce or otherwise; or
(b) enforce the provisions of this deed, the Offshore Notes (including
the Conditions),
and no Offshore Noteholder or is entitled to take any of the above actions
or to proceed directly against the Trustee to enforce the performance of
any of the provisions of this deed the Offshore Notes (including the
Conditions).
7.4 Available amounts
For the purpose of Condition 5(n) the Note Trustee shall not be satisfied
that the Trustee will be in a position to discharge the liabilities
referred in those Conditions unless, either:
(a) the Trustee will have available to it sufficient cash in the
Collection Account and sufficient Authorised Investments which will
mature on or before the relevant Payment Date after making any other
payments or provisions having priority in order of application under
the applicable provisions of the Security Trust Deed; or
(b) the Trustee has entered into a legally binding contract with an
entity either whose long term unsecured and unguaranteed debt is
rated AA- by S&P and AA- by Fitch (and, where the obligations relate
to Class A Notes Aa3 by ▇▇▇▇▇'▇) or whose short term unsecured and
unguaranteed debt securities are rated A-1 by S&P and F-1 by Fitch
(and, where the obligations relate to Class A Notes P-1 by Moody's)
to provide sufficient cash on or before the relevant Payment Date to
enable the Trustee to discharge the relevant liabilities.
7.5 Conflict of interests
The Note Trustee shall, with respect to all the powers, trusts,
authorities, duties and discretions vested in it by the Transaction
Documents, except where expressly provided otherwise, have regard to the
interests of the Class A Noteholders and the Class B Noteholders subject
to the proviso in the following sentence. If the Note Trustee is required
by the Transaction Documents or Notes to have regard to the interests of
the Class A Noteholders and the Class B Noteholders and where, in the
opinion of the Note Trustee, there is a conflict between the interests of
the Class A Noteholders and the interests of the Class B Noteholders, the
Note Trustee shall have regard only to the interests of the Class A
Noteholders despite anything to the contrary in the Transaction Documents.
In such an event, the Class B Noteholders shall have no claim against the
Note Trustee for doing so.
8. NOTICE OF PAYMENT
The Note Trustee shall give notice to the relevant Offshore Noteholders in
accordance with the relevant Condition 12 of the day fixed for any payment
to them of amounts received by the Note Trustee under clause 16 of the
Security Trust Deed. Those payments may be made in accordance with
Condition 6 as appropriate (in the case of Definitive Notes) or in the
name of the nominee of the Common Depositary by wire transfer in
immediately available funds to an account designated by such nominee to
the order of the registered holder of the Offshore Note (in the case of
any Book-Entry
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Note) and payment of those amounts by the Note Trustee to the Principal
Paying Agent for that purpose shall be a good discharge to the Note
Trustee.
9. INVESTMENT BY NOTE TRUSTEE
Any amount which, under the trusts of this Deed ought to or may be
invested by the Note Trustee, may be invested in the name or under the
control of the Note Trustee in any Authorised Investments and the Note
Trustee may at any time or times vary any Authorised Investments into
other Authorised Investments and shall not be responsible for any loss due
to depreciation in value or otherwise resulting from any Authorised
Investments made by it.
10. PARTIAL PAYMENTS
In the case of Definitive Notes, on any payment of amounts received by or
on behalf of the Note Trustee under clause 16 of the Security Trust Deed
(other than the payment in full against surrender of a Definitive Note)
the Definitive Note in respect of which such payment is made shall be
produced to the Note Trustee or the Paying Agent by or through whom such
payment is made and the Note Trustee shall or shall cause the Paying Agent
to enface on the Definitive Note a memorandum of the amount and the date
of payment, but the Note Trustee may in any particular case dispense with
that production and enfacement upon an indemnity being given to the Note
Trustee by the recipient of the payment as the Note Trustee considers
sufficient.
11. COVENANTS BY THE TRUSTEE AND TRUST MANAGER
11.1 Covenants by the Trustee and Trust Manager
Each of the Trustee and the Trust Manager undertakes to the Note Trustee,
on behalf of the Offshore Noteholders as follows in relation to the Trust
for so long as any of the Offshore Notes remain outstanding (except to the
extent that the Note Trustee otherwise consents).
(a) (Master Trust Deed covenants) It will comply with its covenants in
clause 18, 22 or 29 of the Master Trust Deed (as the case may be).
(b) (Transaction Documents):
(i) It will ensure that it complies with its material obligations
under the Transaction Documents.
(ii) It will use its best endeavours to procure that each other
party to a Transaction Document complies with and performs its
obligations under that Transaction Document.
(c) (Information) Give to the Note Trustee a copy of any information
relating to the Trust that the Note Trustee reasonably requests in
connection with the exercise and performance of its powers and
obligations under this deed.
(d) (Notify Events of Default)
(i) It will promptly notify the Note Trustee if, to the knowledge
of its officers who are responsible for the administration of
the Trust, it becomes actually aware of the occurrence of an
Event of Default, Trustee's Default, Servicer Transfer Event,
Title Perfection Event or Trust Manager's Default including
full details (to the extent known, without making any enquiry)
of that Event of Default, Trustee's Default, Servicer Transfer
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Event, Title Perfection Event or Trust Manager's Default (as
the case may be).
(ii) The Trustee will confirm to the Note Trustee in writing, on
each anniversary of this deed:
(A) whether or not any Event of Default is subsisting of
which it is actually aware; and
(B) any other matter which is required to be notified to the
Note Trustee under the Transaction Documents and which
has not previously been so notified.
(e) (Listing) It will use its best endeavours to:
(i) obtain and maintain the listing of the Offshore Notes on the
Stock Exchange (including compliance with the continuing
obligations applicable to the Trustee by virtue of the
admission of the Offshore Notes to the Official List of the
Stock Exchange) or, if it is unable to do so having used best
endeavours, use best endeavours to obtain and maintain a
quotation or listing of the Offshore Notes on any other stock
exchange or exchanges or securities market or markets as the
Trust Manager (with the prior written approval of the Note
Trustee, that approval not to be unreasonably withheld or
delayed) decides and following that quotation or listing enter
into a deed supplemental to this Trust Deed to effect such
consequential amendments to this deed necessary to comply with
the requirements of any such stock exchange or securities
market; and
(ii) procure that there will at all times be furnished to the Stock
Exchange (or to any other relevant stock exchange or
securities market) any information which the Stock Exchange
or, as the case may be, any other such stock exchange or
securities market, may require to be furnished in accordance
with its requirements.
(f) (Maintenance of Office or Agency) The Trustee will maintain in the
Borough of Manhattan, The City of New York and in London, an office
or agency where Offshore Notes may be surrendered for registration
of transfer or exchange, and where notices and demands to or upon
the Trustee in respect of the Offshore Notes and this deed may be
served. The Trustee hereby initially appoints the Principal Paying
Agent to serve as its agent for the foregoing purposes. The
Principal Paying Agent shall act solely for and as agent of the
Trustee and shall not have any obligations towards or relationship
or agency or trust with any other person in respect of its
appointment under this sub-paragraph (f). The Trustee will give
prompt written notice to the Note Trustee of the location, and of
any change in the location, of any such office or agency. If at any
time the Trustee shall fail to maintain any such office or agency or
shall fail to furnish the Note Trustee with the address thereof,
such surrenders, notices and demands may be made or served at the
Corporate Trust Office, and the Trustee hereby appoints the Note
Trustee as its agent to receive all such surrenders, notices and
demands.
(g) (Agent Bank) It will procure that, so long as any of the Offshore
Notes remain outstanding, there will at all times be an Agent Bank.
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(h) (Change to Paying Agents or Agent Bank) It will give notice to the
Offshore Noteholders in accordance with the Agency Agreement and the
relevant Condition 12 of:
(i) any appointment, resignation or removal of any Paying Agent
(other than the appointment of the initial Principal Paying
Agent) or Agent Bank;
(ii) any change to any Paying Agent's Paying Office (as defined in
the Agency Agreement); or
(iii) any change to the Agent Bank's Specified Office (as defined in
the Agency Agreement).
(i) (Notices) It will promptly give to the Note Trustee, or ensure that
the Note Trustee receives, two copies of the form of every notice
given to the Offshore Noteholders in accordance with Condition 12.
(j) (Annual Statement as to Compliance) The Trustee will deliver to the
Note Trustee, within 120 days after the end of each fiscal year of
the Trust (commencing on 30 June 1999), and otherwise in compliance
with the requirements of section 314(a)(4) of the TIA, an Officer's
Certificate stating that:
(i) a review of the activities of the Trustee in respect of the
Trust during such year and of performance under the
Transaction Documents has been made under supervision of the
person signing the Officer's Certificate (the Signatory); and
(ii) to the best of the knowledge of the Signatory, based on the
review referred to in paragraph (i), the Trustee has complied
with all conditions and covenants under the Transaction
Documents throughout the relevant year, or, if there has been
a default in the compliance of any such condition or covenant,
specifying each such default known to the Signatory of the
nature and status of the default.
For the purposes of this clause 11.2(j) compliance shall be
determined without regard to any period of grace or requirement of
notice under the Transaction Documents.
(k) (Opinions as to Trust Estate) On the Closing Date, the Trustee shall
furnish to the Note Trustee an Opinion of Counsel (who may be of
counsel for the Trustee) either stating that in the opinion of such
counsel the Security Trust Deed and any other requisite documents
has been properly recorded and filed so as to make effective the
Security Interest intended to be created by the Security Trust Deed,
and reciting the details of such action, or stating that in the
opinion of such counsel no such action is necessary to make such
Security Interest effective.
Within 120 days after the end of each fiscal year commencing on 30
June 1999 the Trustee shall furnish to the Note Trustee an Opinion
of Counsel (who may be of counsel for the Trustee) either stating
that in the opinion of such counsel such action has been taken with
respect to the recording, filing, re-recording, and refiling of the
Security Trust Deed and any other requisite documents as is
necessary to maintain the Security Interest created by the Security
Trust Deed, and
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reciting the details of such action, or stating that in the opinion
of such counsel no such action is necessary to maintain such
Security Interest.
(1)(i) The Trustee (or the Trust Manager on its behalf) shall
deliver to the Principal Paying Agent on each Collection
Determination Date the Noteholders Report for the
related Collection Period, with written instructions for
the Principal Paying Agent to forward the Noteholders
Report to each Offshore Noteholder.
(ii) Each Noteholder Report shall contain the information set
out in Schedule 2.
12. REMUNERATION OF NOTE TRUSTEE
12.1 Fee
The Trustee shall pay to the Note Trustee a fee agreed between them.
12.2 Additional Remuneration
If the Note Trustee gives a notice under the relevant Condition 10 or it
undertakes duties which it considers expedient or necessary under this
deed, or which the Trustee requests it to undertake and which duties the
Note Trustee, the Trust Manager and the Trustee agree to be of an
exceptional nature or otherwise outside the scope of the normal duties of
the Note Trustee under this deed, the Trustee shall pay to the Note
Trustee any additional remuneration as they agree.
12.3 Costs, expenses
(a) The Trustee shall also reimburse, pay or discharge all reasonable
costs, charges, liabilities and expenses and any stamp and other
Taxes or duties paid by the Note Trustee in connection with properly
undertaking its duties under the Transaction Documents and in
connection with any legal proceedings brought by the Note Trustee to
enforce any obligation under this deed or the Offshore Notes. The
Note Trustee shall not be reimbursed for any overhead or general
operating expenses incurred by the Note Trustee.
(b) Without prejudice to the right of indemnity by law given to
trustees, to the extent the Trustee is itself entitled to be
indemnified, the Trustee indemnifies the Note Trustee and every
other person properly appointed by it under this deed from and
against all liabilities, losses, damages, costs, expenses, actions,
proceedings, claims and demands incurred by or made against it or
him in the execution of the trusts of this deed or of their powers
or in respect of any matter or thing done or omitted in any way
relating to this deed (other than arising from any breach of trust,
fraud, wilful default or negligence by the Note Trustee or that
person).
12.4 Overdue rate
All sums payable by the Trustee under clause 12.3 shall be payable by the
Trustee on the next Payment Date in the order set out in the Series Notice
or (if applicable) the Security Trust Deed and shall carry interest at the
rate of LIBOR from the due date. Any amount payable shall carry interest
at that rate from the due date to the date of actual payment.
12.5 Continuing obligation
Unless otherwise specifically stated in any discharge relating to this
deed the provisions of this clause shall continue in full force and effect
notwithstanding such discharge.
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13. NOTE TRUSTEE
13.1 Preferential Collection of Claims Against Trustee
The Note Trustee shall comply with section 311(a) of the TIA, excluding
any creditor relationship listed in section 311(b) of the TIA. A Note
Trustee who has resigned or been removed shall be subject to section
311(a) of TIA to the extent required by the TIA.
13.2 Duties of Note Trustee
(a) If an Event of Default has occurred and is subsisting, of which a
Responsible Officer of the Note Trustee has actual knowledge, the
Note Trustee shall exercise the rights and powers vested in it by
this deed and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except while an Event of Default subsists:
(i) the Note Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this deed and no
implied covenants or obligations shall be read into this deed
against the Note Trustee; and
(ii) in the absence of bad faith on its part, the Note Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Note Trustee and
conforming to the requirements of this deed; however, the Note
Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this deed.
(c) The Note Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (a) of
this clause; and
(ii the Note Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is
proved that the Note Trustee was negligent in ascertaining the
pertinent facts.
(d) Section 315(d)(3) of the TIA is expressly excluded by this deed.
13.3 Notice of Defaults
(a) If an Event of Default occurs and is subsisting and the Note Trustee
is actually aware of that Event of Default, the Note Trustee shall
mail to each Offshore Noteholder notice of the Event of Default
within 90 days after becoming so aware.
(b) Except in the case of a default in payment of principal of or
interest on any Offshore Note (including payments pursuant to the
mandatory redemption provisions of that Offshore Note), the Note
Trustee may withhold the notice referred to in paragraph (a) if and
so long as the board of directors, the executive committee or a
trust committee of its directors in good faith determines that
withholding the notice is in the interest of Offshore Noteholders.
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13.4 Rights of Note Trustee
(a) The Note Trustee may conclusively rely on any document believed by
it to be genuine and to have been signed or presented by the proper
person. The Note Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Note Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel. The Note Trustee
shall not be liable for any action it takes, suffers or omits to
take in good faith in reliance on the Officer's Certificate or
Opinion of Counsel.
(c) No provision of this deed shall require the Note Trustee to expend
or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any
of its rights or powers, if it shall have reasonable grounds to
believe that repayment of such funds or indemnity satisfactory to it
against such risk or liability is not assured to it.
(d) The Note Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this deed or the
Offshore Notes, shall not be accountable for the Trustee's use of
the proceeds from the Offshore Notes, and shall not be responsible
for any statement of the Trustee in this deed or in any document
issued in connection with the sale of the Offshore Notes or in the
Offshore Notes.
(e) The Note Trustee may in relation to this deed act on the advice or
opinion of or any information obtained from any lawyer, valuer,
accountant, banker, broker, credit-rating agency, lead manager or
other expert whether obtained by the Trustee, the Note Trustee, the
Trust Manager, the Servicer or otherwise.
(f) Any advice, opinion or information may be sent or obtained by
letter, telex, telegram, facsimile transmission or cable and the
Note Trustee shall not be liable for acting on any advice, opinion
or information purporting to be conveyed by any such letter, telex,
telegram, facsimile transmission or cable although the same shall
contain some error or shall not be authentic.
(g) The Note Trustee may call for and shall be at liberty to accept as
sufficient evidence of any fact or matter or the expediency of any
transaction or thing a certificate signed by an Authorised Signatory
of the Trustee or the Trust Manager (as the case may be) and the
Note Trustee shall not be bound in any such case to call for further
evidence or be responsible for any loss that may be occasioned by
the Note Trustee acting on that certificate.
(h) The Note Trustee is at liberty to hold or to place this deed and any
other documents relating to this deed in any part of the world
(other than Australia) with any banker or banking company or company
whose business includes undertaking the safe custody of documents or
lawyer or firm of lawyers reasonably considered by the Note Trustee
to be of good repute and neither the Note Trustee nor the Security
Trustee shall be responsible for or required to insure against any
loss incurred in connection with any such deposit and may pay all
sums required to be paid on account of or in respect of any such
deposit.
(i) The Note Trustee shall not be responsible for the application of the
proceeds of the issue of any of the Offshore Notes by the Trustee or
any moneys borrowed by the Trustee under any Transaction Document or
the exchange of any Book-Entry Note for any other Book-Entry Note or
Definitive Note, as the case may be.
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(j) The Note Trustee shall not be bound to give notice to any person of
the execution of this deed or any of the Transaction Documents or
any transaction contemplated hereby or thereby or to take any steps
to ascertain whether any Event of Default has happened and, until it
has actual knowledge or express notice to the contrary, the Note
Trustee is entitled to assume that no Event of Default has happened
and that the Trustee and each other party to any Relevant Document
is observing and performing all the obligations on its part
contained in the Offshore Notes and under this deed or, as the case
may be, the Security Trust Deed or any other Transaction Document to
which it is a party.
(k) Save as expressly otherwise provided in this deed or the Transaction
Documents, the Note Trustee shall have absolute and uncontrolled
discretion as to the exercise of the discretions vested in the Note
Trustee by this deed and the Transaction Documents (the exercise of
which as between the Note Trustee and the Offshore Noteholders and
Couponholders) shall be conclusive and binding on the Offshore
Noteholders and Couponholders but whenever the Note Trustee is under
the provisions of this deed or the Transaction Documents bound to
act at the request or direction of the Offshore Noteholders, or any
of them, the Note Trustee shall nevertheless not be so bound unless
first indemnified to its satisfaction against all actions,
proceedings, claims and demands to which it may render itself liable
and all costs, charges, damages, expenses and liabilities which it
may incur by so doing.
(l) Any consent or approval given by the Note Trustee for the purpose of
this deed, the Conditions and any Transaction Document may be given
on any terms and subject to any conditions as the Note Trustee
thinks fit and despite anything to the contrary contained in this
deed, any Transaction Document or the Conditions may be given
retrospectively.
(m) The Note Trustee shall not (unless and to the extent ordered so to
do by a court of competent jurisdiction) be required to disclose to
any Offshore Noteholder or any Mortgagee, any confidential
financial, price sensitive or other information made available to
the Note Trustee by the Trustee or any other person in connection
with the trusts of this deed and no Offshore Noteholder shall be
entitled to take any action to obtain from the Note Trustee any such
information.
(n) Where it is necessary or desirable for any purpose in connection
with this deed to convert any sum from one currency to another it
shall (unless otherwise provided by this deed or required by law) be
converted at the rate or rates, in accordance with the method and as
at the date for the determination of the rate of exchange, as may be
agreed by the Note Trustee in consultation with the Trustee and the
Trust Manager as relevant and any rate, method and date so agreed
shall be binding on the Trustee, the Offshore Noteholders.
(o) The Note Trustee may certify whether or not any of the events set
out in paragraphs (b) to (e) of the relevant Condition 9 or any
breach under clause 8 of the Security Trust Deed is in its opinion
materially prejudicial to the interests of the relevant Offshore
Noteholders and may certify, in relation to the event set out in
paragraph (a) of the relevant Condition 9 in relation to any payment
of interest on the Offshore Notes that the Trustee had, on the due
date for payment of the amount of interest in question, sufficient
cash to pay, in accordance with the provisions of the Series Notice
or the Security Trust Deed, all interest (after payment of all sums
which are permitted under the Series Notice or the Security Trust
Deed to be paid in priority to or pari passu with them) and that
certificate shall be conclusive and binding upon the Trustee, the
Offshore Noteholders. The Note Trustee shall have no liability to
the Trustee, any Offshore Noteholder or any other person
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in relation to any such certificate or in relation to any delay or
omission in providing certificate. In giving any certificate
relating to paragraph (a) of the relevant Condition 9, the Note
Trustee may rely on any determination made by any independent
accountants of recognised standing in Australia and any such
determination shall be conclusive and binding on the Trustee and the
Offshore Noteholders.
(p) The Note Trustee shall not be bound to take any steps to ascertain
whether any event, condition or act, the happening of which would
cause a right or remedy to become exercisable by the Note Trustee
under this deed or by the Trustee under any of the Transaction
Documents has happened or to monitor or supervise the observance and
performance by the Trustee or any of the other parties thereto of
their respective obligations thereunder and, until it shall have
actual knowledge or express notice to the contrary the Note Trustee
shall be entitled to assume that no such event, condition or act has
happened and that the Trustee and each of the other parties thereto
are observing and performing all their respective obligations
thereunder.
(q) The Note Trustee shall not be responsible for recitals, statements,
warranties or representations of any party contained in any
Transaction Document or other document entered into in connection
with it and shall assume its accuracy and correctness and its
execution, legality, effectiveness, adequacy, genuineness, validity
or enforceability or admissibility in evidence of that agreement or
other document or any security constituted by them, and the Note
Trustee may accept without enquiry, requisition or objection all
title as the Trustee may have to any of the Mortgaged Property or as
any other person may have to any other security charged from time to
time to the Note Trustee and shall not be bound to investigate or
make any enquiry in the title of the Trustee to any of the Mortgaged
Property or the title of any other person to any other security
charged from time to time to the Note Trustee whether or not any
default or failure is or was known to the Note Trustee or might be,
or might have been, discovered upon examination inquiry or
investigation and whether or not capable of remedy. Notwithstanding
the generality of the foregoing each Offshore Noteholder is solely
responsible for making its own independent appraisal of and
investigation into the financial condition, creditworthiness,
condition, affairs, status and nature of the Trustee and the Note
Trustee shall not at any time have any responsibility for the same
and no Offshore Noteholder or Couponholder shall rely on the Note
Trustee in that respect.
(r) The Note Trustee shall not be liable for any failure, omission or
defect in or filing or procuring registration or filing of or
otherwise protecting or perfecting the Security Trust Deed or the
Mortgaged Property or any other security or failure to call or
delivery of documents of title to the Mortgaged Property or any
other security or to require any further assurances in relation to
any property or assets comprised in the Mortgaged Property or any
other security.
(s) The Note Trustee shall not be obliged (whether or not directed to do
so by the Offshore Noteholders) to direct the Security Trustee to
perfect legal title to any Purchased Receivable Security if, in the
opinion of the Note Trustee, that perfection would or might result
in the Note Trustee becoming liable to or incurring any obligation
to any Borrower under a Purchased Receivable Security and, in its
opinion, there is or would be insufficient cash to discharge, in
accordance with the provisions of the Security Trust Deed, that
liability or obligations as and when they arise. Notwithstanding the
generality of the foregoing, the Note Trustee shall have no
responsibility or liability for the payment of any fees for the
registration of any Receivable Security in Australia or for any
related legal, administrative or other fees, costs and expenses
(including, but not limited to, any proper disbursements and any
value added tax).
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(t) The Note Trustee shall, as regards all the powers, trusts,
authorities, duties and discretions vested in it by this deed, the
Transaction Documents or the Offshore Notes (including the
Conditions), except where expressly provided otherwise have regard
to the interests of the Class A Noteholders and the Class B
Noteholders, except that where the Note Trustee is required by this
deed, the Transaction Documents or the Offshore Notes (including the
Conditions) to have regard to the interests of the Class A
Noteholders and the Class B Noteholders and where, in the opinion of
the Note Trustee, there is a conflict between the interests of the
Class A Noteholders and the interests of the Class B Noteholders the
Note Trustee shall, despite anything to the contrary contained in
this deed, the Transaction Documents or the Offshore Notes
(including the Conditions), have regard only to the interests of the
Class A Noteholders and the Class B Noteholders who shall have no
claim against the Note Trustee for so doing.
(u) Without prejudice to the provisions of any Transaction Document, the
Note Trustee shall not be under any obligation to insure any of the
Mortgaged Property (or any other property) or any deeds or documents
of title or other evidence relating to that property and shall not
be responsible for any loss, expense or liability which may be
suffered as a result of the lack of or inadequacy of any that
insurance.
(v) The Note Trustee shall not be responsible for any loss, expense or
liability occasioned to the Mortgaged Property or any other property
or in respect of all or any of the moneys which may stand to the
credit of the Collection Accounts from time to time however caused
(including any bank, broker, depositary, warehouseman or other
intermediary or any clearing system or its operator acting in
accordance with or contrary to the terms of any of the Transaction
Documents or otherwise), unless that loss is occasioned by the
wilful neglect or misconduct or fraud of the Note Trustee.
(w) The Note Trustee has no responsibility whatsoever to the Trustee or
any Offshore Noteholder as regards any deficiency or additional
payment, as the case may be, which might arise because the Note
Trustee or the Trustee is subject to any Tax in respect of the
Mortgaged Property, the Security Trust Deed or any other security or
any income or any proceeds from them.
(x) No provision of this deed requires the Note Trustee to do anything
which may be illegal or contrary to applicable law or regulation or
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties, or in the
exercise of any of its rights or powers, if it has reasonable
grounds to believe that repayment of those funds or adequate
indemnity against that risk or liability is not assured to it.
Without limitation nothing contained in this deed imposes any
obligation on the Note Trustee to make any further advance to a
Borrower or to borrow any moneys under a Transaction Document or to
maintain, protect or preserve any moneys standing to the credit of
the Collection Account.
(y) The Note Trustee is not responsible for the genuineness, validity,
effectiveness or suitability of any of the Transaction Documents or
any of the Mortgages, Charges or other documents entered into in
connection with them or any Mortgage Insurance Policy or any other
document or any obligation or rights created or purported to be
created by them or under them or any Security Interest or the
priority of constituted by or purported to be constituted by or
pursuant to that Security Interest, nor shall it be responsible or
liable to any person because of any invalidity of any provision of
those documents or the unenforceability of those documents, whether
arising from statute, law or decision of any court and (without
limitation) the Note Trustee shall not be responsible for or have
any duty to make any investigation in respect of or in any way be
liable whatsoever for:
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(i) the nature, status, creditworthiness or solvency of any
Borrower or any other person or entity who has at any time
provided any security or support whether by way of Guarantee,
Security Interest or otherwise in respect of any advance made
to any Borrower;
(ii) the execution, legality, validity, adequacy, admissibility in
evidence or enforceability of any Mortgage or Loan or any
other document entered into in connection with them;
(iii) the title, ownership, value, sufficiency or existence of any
Land, Mortgaged Property, any Mortgage Insurance Policy;
(iv) the registration, filing, protection or perfection of any
Mortgage or the priority of the security created under a
Mortgage whether in respect of any initial advance or any
subsequent advance or any other sums or liabilities;
(v) the scope or accuracy of any representations, warranties or
statements made by or on behalf of any Borrower in any
application for any advance or in any Mortgage or Loan or in
any document entered into in connection with them;
(vi) the performance or observance by any Borrower or any other
person of any provisions of any Mortgage or Loan or in any
document entered into in connection with them or the
fulfilment or satisfaction of any conditions contained in them
or relating to them or as to the existence or occurrence at
any time of any default, event of default or similar event
contained in them or any waiver or consent which has at any
time been granted in relation to any of the above;
(vii) the existence, accuracy or sufficiency of any legal or other
opinions, searches, reports, certificates, valuations or
investigations delivered or obtained or required to be
delivered or obtained at any time in connection with any
Mortgage or Loan;
(viii)the title of the Trustee to any Mortgage, Loan or other
Mortgaged Property;
(ix) the suitability, adequacy or sufficiency of any guidelines
under which Loans are entered into or compliance with those
guidelines or compliance with any applicable criteria for any
further advances or the legality or ability or enforceability
of the advances or the priority of the Mortgage in relation to
the advances;
(x) the compliance of the provisions and contents of and the
manner and formalities applicable to the execution of the
Mortgages and Loans and any documents connected with them or
the making of any advance intended to be secured by them or
with any applicable laws or regulations (including Consumer
Credit Legislation);
(xi) the failure by any Approved Seller, the Trustee, the Servicer
or the Trust Manager to obtain or comply with any
Authorisation in connection with the origination, sale,
purchase or administration of any of the Mortgages or Loans or
the making of any advances in connection with them or the
failure to effect or procure registration of or to give notice
to any person in relation to or otherwise protect the security
created or purported to be
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created by or pursuant to any of the Mortgages or Loans or
other documents entered into in connection with them;
(xii) the failure to call for delivery of documents of title to or
require any transfers, legal mortgages, charges or other
further assurances in relation to any of the assets the
subject matter of any of the Transaction Documents or any
other document;
(xiii) any accounts, books, records or files maintained by any
Approved Seller, the Servicer, the Trustee, the Trust Manager
or any other person in respect of any of the Mortgages or
Loans; or
(xiv) any other matter or thing relating to or in any way connected
with any Mortgage or Loans or any document entered into in
connection with them whether or not similar to the above.
(z) The Note Trustee is not liable or responsible for any loss, cost,
damages, expenses or inconvenience which may result from anything
done or omitted to be done by it in accordance with the provisions
of this deed, any Transaction Document or any other document or as a
consequence of or in connection with it being held or treated as, or
being deemed to be, a creditor, for the purposes of the Consumer
Credit Legislation, in respect of any of the Mortgages.
(aa) In connection with any proposed modification, waiver, authorisation
or determination permitted by this deed, the Note Trustee shall not
have regard to the consequences thereof for individual Offshore
Noteholders or Couponholders resulting from their being for any
purpose domiciled or resident in, or otherwise connected with, or
subject to, the jurisdiction of any particular territory.
(ab) The Note Trustee shall have no responsibility for the maintenance of
any rating of the Offshore Notes by a Designated Rating Agency or
any other credit-rating agency or any other person.
(ac) The Note Trustee has no liability whatsoever for any loss, cost,
damage or expenses directly or indirectly suffered or incurred by
the Trustee, any Offshore Noteholder or any other person as a result
of the delivery by the Note Trustee of a certificate, or the
omission by it to deliver a certificate, to the Trustee as to
material prejudice pursuant to the relevant Condition 9 on the basis
of an opinion formed by it in good faith.
(ad) The Note Trustee shall be under no obligation to monitor or
supervise the functions of the Servicer from time to time under the
terms of the Servicing Agreement or any other person under any other
Transaction Document, including and is entitled, in the absence of
actual knowledge of a breach of duty or obligation, to assume that
the Servicer is properly performing its obligations in accordance
with the provisions of the Servicing Agreement or that any other
person is properly performing its obligations in accordance with
each other Transaction Document, as the case may be.
(ae) The Note Trustee acknowledges that the Trust Manager is responsible,
under the Series Notice, for calculating all amounts referred to in
clause 6.2 of the Series Notice (other than calculations required to
be made by the Agent Bank under the Agency Agreement) and the Note
Trustee has no liability in respect of these calculations other than
as a result of the negligence, bad faith or wilful default of the
Note Trustee.
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14. NOTE TRUSTEE'S LIABILITY
Nothing in this deed shall in any case in which the Note Trustee has
failed to show the degree of care and diligence required of it as trustee
having regard to the provisions of this deed conferring on it any powers,
authorities or discretions exempt the Note Trustee from or indemnify it
against any liability for breach of trust or any liability which by virtue
of any rule of law would otherwise attach to it in respect of any wilful
misconduct, negligence, default, breach of duty or breach of trust of
which it may be guilty in relation to its duties under this deed.
15. DELEGATION BY NOTE TRUSTEE
(a) The Note Trustee may whenever it thinks fit delegate by power of
attorney or otherwise to any person or persons for any period
(whether exceeding one year or not) or indefinitely all or any of
the trusts, powers and authorities vested in the Note Trustee by
this deed and that delegation may be made upon any terms and subject
to any conditions (including power to sub-delegate) and subject to
any regulations as the Note Trustee may in the interests of the
Offshore Noteholders think fit.
(b) If the Note Trustee exercises reasonable care in the selection of a
delegate under paragraph (a), the Note Trustee shall not be in any
way responsible for any loss incurred by reason of any misconduct or
default on the part of any delegate or sub-delegate. The Note
Trustee must within a reasonable time prior to any delegation or any
renewal, extension or termination of any delegation give notice of
it to the Trustee.
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE
The Note Trustee may in the conduct of the trusts of this deed instead of
acting personally employ and pay an agent, whether being a lawyer or other
professional person, to transact or concur in transacting any business and
to do or concur in doing all acts required to be done in connection with
the trusts of this deed. If the Note Trustee exercises reasonable care in
the selection of that agent, the Note Trustee shall not in any way be
responsible for any loss incurred by reason of any misconduct or default
on the part of that agent.
Any trustee of this deed which is a lawyer, accountant, broker or other
person engaged in any profession or business is entitled to charge and be
paid all usual professional and other charges for business transacted and
acts done by him or his firm in connection with the trusts of this deed
and also his reasonable charges in addition to disbursements for all other
work and business done and all time spent by him or his firm in connection
with matters arising in connection with this deed. Those charges will be
for the account of the Note Trustee who shall be reimbursed by the Trustee
under clause 12.
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE
Neither the Note Trustee nor any director or officer of a corporation
acting as a trustee under this deed, nor the Security Trustee, is by
reason of its or their fiduciary position in any way precluded from
entering into or being interested in any contract or financial or other
transaction or arrangement with the Trustee or any other party to any of
the Transaction Documents or any person or body corporate associated with
the Trustee including any contract, transaction or arrangement of a
banking or insurance nature or any contract, transaction or arrangement in
relation to the making of loans or the provision of financial facilities
to or the purchase, placing or underwriting of or subscribing or procuring
subscriptions for or otherwise acquiring holding or dealing with the
Offshore Notes, or any of them, or any other bonds, stocks, shares,
debenture stock, debentures, notes or other securities of the Trustee or
any other party to any of the Transaction Documents or any related person
or body corporate or from accepting or holding the trusteeship of any
other
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trust deed constituting or securing any other securities issued by or
relating to the Trustee or any other party to any of the Transaction
Documents or any related person or body corporate or any other office of
profit under the Trustee or any other party to any of the Transaction
Documents or any related person or body corporate and shall be entitled to
retain and shall not be in any way liable to account for any profit made
or share of brokerage or commission or remuneration or other benefit
received or in connection with any of those arrangements.
18. WAIVER
(a) The Note Trustee may without prejudice to its rights in respect of
any subsequent breach, condition, event or act from time to time and
at any time (but only if, and in so far as, in its opinion the
interests of any of the Offshore Noteholders are not materially
prejudiced), waive or authorise on any terms and subject to any
conditions as it sees fit and proper:
(i) any breach or proposed breach by the Trustee of any of the
covenants or provisions contained in this deed or in the
Offshore Notes (including the Conditions) or any other
Transaction Document; or
(ii) determine that any condition, event or act which constitutes,
or which with the giving of notice, the lapse of time or the
issue of a certificate would constitute, but for that
determination, an Event of Default shall not, or shall not
subject to specified conditions, be so treated for the
purposes of this deed,
but the Note Trustee shall not exercise any powers conferred on it
by this clause in contravention of any express direction given in
writing by holders of Offshore Notes representing at least 75% of
the aggregate Invested Amount of the Offshore Notes or by a request
under the relevant Condition 10(d) (being, in the case of a
direction or request of the Class B Noteholders, a request or
direction which is binding on the Note Trustee in accordance with
clause 7.1). No direction or request shall affect any waiver,
authorisation or determination previously given or made.
(b) Any waiver, authorisation or determination under this clause is
binding on the Offshore Noteholders and if, but only if, the Note
Trustee so requires, shall be notified by the Trustee to the
Offshore Noteholders in accordance with the relevant Condition 12 as
soon as practicable.
19. AMENDMENT
19.1 Approval
The Note Trustee, the Trust Manager and the Trustee may, following giving
notice to each Designated Rating Agency, by way of supplemental deed
alter, add to or modify this deed (including this clause 19), the
Conditions (other than any provision of this deed or the Conditions
referred to in that proviso) and this clause or any Transaction Document
so long as that alteration, addition or modification is:
(a) to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(b) in the opinion of the Note Trustee necessary to comply with the
provisions of any law or regulation or with the requirements of any
Government Authority;
(c) in the opinion of the Note Trustee appropriate or expedient as a
consequence of an amendment to any law or regulation or altered
requirements of any Government
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Agency (including, without limitation, an alteration, addition or
modification which is in the opinion of the Note Trustee appropriate
or expedient as a consequence of the enactment of a law or
regulation or an amendment to any law or regulation or ruling by the
Commissioner or Deputy Commissioner of Taxation or any governmental
announcement or statement, in any case which has or may have the
effect of altering the manner or basis of taxation of trusts
generally or of trusts similar to the Trust); or
(d) in the opinion of the Note Trustee neither materially prejudicial
nor likely to be prejudicial to the interest of the Offshore
Noteholders as a whole or any Class of Offshore Noteholder or,
and in the manner, and to the extent, permitted by the Transaction
Documents.
19.2 Resolution of Offshore Noteholders
Where in the opinion of the Note Trustee a proposed alteration, addition
or modification to this deed, other than an alteration, addition or
modification referred to in clause 19.1, is materially prejudicial or
likely to be materially prejudicial to the interest of Offshore
Noteholders as a whole or any class of Offshore Noteholders, or the Note
Trustee, the Trust Manager and the Trustee may make that alteration,
addition or modification if sanctioned in writing by holders of at least
75% of the aggregate Invested Amount of the Class A Notes or the Class B
Notes, as appropriate.
19.3 Distribution of amendments
The Trust Manager shall distribute to all Offshore Noteholders a copy of
any amendments made under clause 19.1 or 19.2 under the relevant Condition
12 as soon as reasonably practicable after the amendment has been made.
19.4 Amendments binding
Any amendment under this clause is binding on the Offshore Noteholders.
19.4 Conformity with TIA
Every amendment of this deed executed pursuant to this clause 19 shall
conform to the requirements of the TIA as then in effect so long as this
deed shall then be qualified under the TIA.
20. OFFSHORE NOTEHOLDERS
20.1 Absolute Owner
(a) The Trustee, the Trust Manager, the Security Trustee, the Note
Trustee and any Paying Agent may treat the registered holders or
bearer of any Definitive Note as the absolute owner of that
Definitive Note (whether or not that Definitive Note is overdue and
despite any notation or notice of ownership or writing on it or any
notice of previous loss or theft of it or trust or other interest in
it) for the purpose of making payment and for all purposes and none
of the Trustee, the Trust Manager, the Security Trustee, the Note
Trustee or the Paying Agents is affected by any notice to the
contrary.
(b) So long as the Offshore Notes, or any of them, are represented by a
Book-Entry Note, the Trustee, the Trust Manager, the Note Trustee
and any Paying Agent may treat the person for the time being shown
in the records of the Clearing
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Agency as the holder of any Offshore Note as the absolute owner of
that Offshore Note and the Trustee, the Trust Manager, the Note
Trustee and the Paying Agents are not affected by any notice to the
contrary, but without prejudice to the entitlement of the registered
holder the Book-Entry Note to be paid principal and interest on the
Book-Entry Note in accordance with its terms. Such person shall have
no claim directly against the Trustee in respect of payment due on
the Offshore Notes for so long as the Offshore Notes are represented
by a Book-Entry Note and the relevant obligations of the Trustee
will be discharged by payment to the registered holder of the
Book-Entry Note in respect of each amount so paid.
(c) All payments made to the owner of an Offshore Note under this clause
(or, in the case of a Book-Entry Note, to or to the order of the
registered holder of that Book-Entry Note) shall be valid and, to
the extent of the sums so paid, effective to satisfy and discharge
the liability for the moneys payable upon those Offshore Notes.
(d) Any instalment of interest or principal, payable on any Offshore
Note which is punctually paid or duly provided for by the Trustee to
the Paying Agent on the applicable Payment Date or Maturity Date
shall be paid to the person in whose name such Offshore Note is
registered on the Record Date, by cheque mailed first-class, postage
prepaid, to such person's address as it appears on the Note Register
on such Record Date, except that, unless Definitive Notes have been
issued pursuant to clause 3.3, with respect to Offshore Notes
registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payment
will be made by wire transfer in immediately available funds to the
account designated by such nominee and except for the final
instalment of principal payable with respect to such Offshore Note
on a Payment Date or Maturity Date (and except for the redemption
for any Offshore Note called for redemption pursuant to Condition 5
which shall be payable as provided below.
(e) The principal of each Note shall be payable on each Payment Date and
the Maturity Date as set forth in the Conditions. The Note Trustee
shall notify the person in whose name an Offshore Note is registered
at the close of business on the Record Date preceding the Payment
Date on which the Trustee expects that the final instalment of
principal of and interest on such Offshore Note will be paid. Such
notice shall be mailed or transmitted by facsimile prior to such
Final Maturity Date and shall specify that such final instalment
will be payable only upon presentation and surrender of such
Offshore Note and shall specify the place where such Offshore Note
may be presented and surrendered for payment of such instalment.
Notices in connection with redemptions of Offshore Notes shall be
mailed to Noteholders as provided in clause 31.4.
20.2 Clearing Agency Certificate
The Trustee, the Trust Manager and the Note Trustee may call for and shall
be at liberty to accept and place full reliance on as sufficient evidence
a certificate or letter or confirmation signed on behalf of any Clearing
Agency or any form of record made by either of them to the effect that at
any particular time or throughout any particular period any particular
person is, was, or will be, shown in its records as entitled to a
particular interest in a Book-Entry Note.
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21. CURRENCY INDEMNITY
Subject to this deed, the Trustee indemnifies the Note Trustee and the
Offshore Noteholders and keeps them indemnified against:
(a) any loss or damage incurred by any of them arising from the
non-payment by the Trustee of any US$ due to the Note Trustee or the
relevant Offshore Noteholders under this deed or the relevant
Offshore Notes by reason of any variation in the rates of exchange
between those used for the purposes of calculating the amount due
under a judgment or order in respect of that payment, which amount
is expressed in a currency other than US$, and under which the Note
Trustee, the Offshore Noteholders do not have an option to have that
judgment or order expressed in US$, and those prevailing at the date
of actual payment by the Trustee; and
(b) any deficiency arising or resulting from any variation in rates of
exchange between:
(i) the date (if any) as of which the non-US$ currency equivalent
of the US$ amounts due or contingently due under this deed
(other than this clause) or in respect of the relevant
Offshore Notes is calculated for the purposes of any
bankruptcy, insolvency or liquidation of the Trustee; and
(ii) the final date for ascertaining the amount of claims in that
bankruptcy, insolvency or liquidation provided that in that
bankruptcy, insolvency or liquidation claims are required to
be made in a currency other than US$.
The amount of that deficiency shall not be reduced by any
variation in rates of exchange occurring between that final
date and the date of any distribution of assets in connection
with that bankruptcy, insolvency or liquidation.
(c) The indemnities in this clause are obligations of the Trustee
separate and independent from its obligations under the Offshore
Notes and apply irrespective of any time or indulgence granted by
the Note Trustee or the Offshore Noteholders from time to time and
shall continue in full force and effect despite the judgment or
filing of any proof or proofs in any bankruptcy, insolvency or
liquidation of the Trustee for a liquidated sum or sums in respect
of amounts due under this deed (other than this clause) or the
Offshore Notes. Any deficiency will constitute a loss suffered by
the Offshore Noteholders and no proof or evidence of any actual loss
shall be required by the Trustee or its liquidator.
22. NEW NOTE TRUSTEES
22.1 Appointment by Trustee
The Trustee may on the recommendation of the Trust Manager at any time
appoint a new note trustee of this deed who has previously been approved
in writing by holders of at least 75% of the aggregate Invested Amount of
the Class A Notes, or, if none of the Class A Notes remains outstanding,
by approval in writing by holders of at least 75% of the aggregated
Invested Amount of the Class B Notes. One or more persons may hold office
as note trustee or note trustees of this deed but that note trustee or
note trustees must be or include a Trust Corporation. Whenever there are
more than two note trustees of this deed the majority of those note
trustees are competent to execute and exercise all the duties, powers,
trusts, authorities and discretions vested in the Note Trustee by this
deed if a Trust Corporation is included in that majority.
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22.2 Appointment by Note Trustee
(a) The Note Trustee may, on 30 days prior written notice to the Trustee
and Trust Manager, appoint any person established or resident in any
jurisdiction (whether a Trust Corporation or not) to act either as a
separate note trustee or as a co-note trustee jointly with the Note
Trustee:
(i) if the Note Trustee considers that appointment to be in the
interests of the Offshore Noteholders;
(ii) for the purposes of conforming to any legal requirements,
restrictions or conditions in any jurisdiction in which any
particular act or acts is or are to be performed; or
(iii) for the purposes of obtaining a judgment in any jurisdiction
or the enforcement in any jurisdiction of either a judgment
already obtained or any of the provisions of this deed against
the Trustee.
(b) Subject to the provisions of this deed, a person appointed under
paragraph (a) has all trusts, powers, authorities and discretions
(not exceeding those conferred on the Note Trustee by this deed) and
all duties and obligations conferred or imposed by the instrument of
appointment. All rights, powers, duties and obligations conferred or
imposed upon the Note Trustee shall be conferred or imposed upon and
exercised or performed by the Note Trustee and such separate note
trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorised to act separately
without the Note Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular act
or acts are to be performed the Note Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Note Trustee.
(c) The Note Trustee may remove any person appointed under this clause.
The reasonable remuneration of any person appointed under this
clause together with any costs, charges and expenses properly
incurred by it in performing its function as note trustee or co-note
trustee will be costs, charges and expenses incurred by the Note
Trustee under this deed.
22.3 Notice
(a) The Trustee shall notify the Principal Paying Agent and the Offshore
Noteholders of any appointment of a new note trustee or any
retirement or removal of an existing note trustee of this deed as
soon as practicable after becoming aware of that appointment,
retirement or removal.
(b) The Note Trustee shall notify each Designated Rating Agency of any
appointment of a new note trustee or its retirement or removal as
soon as practicable.
23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL
23.1 Removal by Trustee
The Trustee (or the Trust Manager on its behalf after advising the
Trustee) may at any time terminate the appointment of the Note Trustee by
giving written notice to that effect to each Designated Rating Agency and
the Note Trustee with effect immediately on that notice, if any of the
following occurs in relation to the Note Trustee:
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(a) an Insolvency Event has occurred in relation to the Note Trustee;
(b) the Note Trustee has ceased its business;
(c) the Note Trustee has failed to remedy within fourteen days after
prior written notice by the Trustee or Trust Manger any material
breach of this deed on the part of the Note Trustee;
(d) the Note Trustee fails to satisfy any obligation imposed on it under
the TIA with respect to the Trust or this deed or comply with clause
23.6; or
(e) the rating (if any) assigned to the long term debt obligations of
the Note Trustee, or any of its holding companies is less than [*]
or, having been assigned, is withdrawn by any Designated Rating
Agency.
23.2 Removal by Offshore Noteholders
The Class A Noteholders or, if none of the Class A Noteholders remains
outstanding, the Class B Noteholders may resolve by written consent of the
holders of at least 75% of the aggregate Invested Amount of Class A Notes
or the Class B Notes, as appropriate, to require the Trustee (or the Trust
Manager on its behalf) to remove the Note Trustee or note trustees for the
time being of this deed.
23.3 Resignation
Subject to this clause 23, the Note Trustee may resign its appointment
under this deed at any time by giving to the Trustee, the Trust Manager
and each Designated Rating Agency not less than 3 months written notice to
that effect, which notice shall expire not less than 30 days before nor 30
days after any due date for payment of any Offshore Notes.
23.4 Rating Agencies approval
Any resignation or removal of the Note Trustee and appointment of a
successor note trustee will not become effective until acceptance of the
appointment by that successor note trustee and confirmation by the
Designated Rating Agencies that such appointment will not cause a
downgrading, qualification or withdrawal of the then current ratings of
the Offshore Notes.
23.5 Trust Corporation
The Trustee undertakes that if the only Note Trustee which is a Trust
Corporation retires or is removed it will use its best endeavours to
appoint a new note trustee of this deed which is a Trust Corporation as
soon as reasonably practicable. The retirement or removal of any Note
Trustee shall not become effective until a successor Note Trustee which is
a Trust Corporation is appointed.
23.6 Successor to Note Trustee
(a) On the execution by the Trustee, the Trust Manager and any successor
Note Trustee of an instrument effecting the appointment of that
successor Note Trustee, that successor Note Trustee shall, without
any further act, deed or conveyance, become vested with all the
authority, rights, powers, trusts, immunities, duties and
obligations of the predecessor Note Trustee with effect as if
originally named as Note Trustee in this deed and 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.
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(b) Any corporation:
(i) into which the Note Trustee is merged;
(ii) with which the Note Trustee is consolidated;
(iii) resulting from any merger or consolidation to which the Note
Trustee is a party;
(iv) to which the Note Trustee sells or otherwise transfers all or
substantially all the assets of its corporate trust business,
shall, on the date when that merger, conversion, consolidation, sale
or transfer becomes effective and to the extent permitted by
applicable law, become the successor Note Trustee under this deed
without the execution or filing of any agreement or document or any
further act on the part of the parties 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.
23.7 Eligibility; Disqualification
(a) The Note Trustee shall at all times satisfy the requirements of
section 310(a) of the TIA.
(b) The Note Trustee shall have a combined capital and surplus (as those
terms are used in the TIA) of at least $50,000,000 as set forth in
its most recent published annual report of condition.
(c) The Note Trustee shall comply with section 310(b) of the TIA
provided that any indenture or indentures under which other
securities of the Trustee are outstanding shall be excluded from the
operation of section 310(b)(1) of the TIA for the purposes of
paragraph (b) if the requirements for such exclusion set out in
section 310(b)(1) of the TIA are met.
24. NOTE TRUSTEE'S POWERS ADDITIONAL
The powers conferred upon the Note Trustee by this deed shall be in
addition to any powers which may from time to time be vested in the Note
Trustee by the general law or as a holder of any of the Offshore Notes.
25. SEVERABILITY OF PROVISIONS
Any provision of this deed which is prohibited or unenforceable in any
jurisdiction is ineffective as to that jurisdiction to the extent of the
prohibition or unenforceability. That does not invalidate the remaining
provisions of this deed nor affect the validity or enforceability of that
provision in any other jurisdiction.
26. NOTICES
26.1 General
All notices, requests, demands, consents, approvals, agreements or other
communications to or by a party to this deed:
(a) must be in writing;
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(b) must be signed by an Authorised Signatory of the sender; and
(c) will be taken to be duly given or made:
(i) (in the case of delivery in person or by post) when delivered,
received or left at the address of the recipient shown in
clause 26.2 or to any other address which it may have notified
by the recipient to the sender;
(ii) (in the case of facsimile transmission) on receipt of a
transmission report confirming successful transmission to the
number shown in clause 26.2 or any other number notified by
the recipient to the sender under this clause 26; and
(iii) (in the case of a telex) on receipt by the sender of the
answerback code of the recipient at the end of transmission to
the number shown in clause 26.2 or any other number notified
by the recipient to the sender under this clause 26,
but if delivery or receipt is on a day on which business is not
generally carried on in the place to which the communication is sent
or is later than 4.00 pm (local time), it will be taken to have been
duly given or made at the commencement of business on the next day
on which business is generally carried on in that place.
26.2 Details
The address, facsimile and telex of each party at the date of this deed
are as follows:
The Trustee
WESTPAC SECURITIES ADMINISTRATION LIMITED
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Tel:
Telex:
Fax:
Attention:
The Trust Manager
WESTPAC SECURITISATION MANAGEMENT PTY LIMITED
▇▇▇▇▇ ▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Tel:
Telex:
Fax:
Attention:
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The Principal Paying Agent
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
Global Trust and Agency Services
▇.▇. ▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ OJP
Tel: 171 325 8977
Telex: 896631 MGT G
Fax: 171 325 8154
Attention: Global Trust and Agency Services
The Agent Bank
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
Global Trust and Agency Services
▇.▇. ▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ OJP
Tel: 171 325 8816
Telex: 896631 MGT G
Fax: 171 325 8293
Attention: Global Trust and Agency Services
The Note Trustee
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
Global Trust and Agency Services
▇.▇. ▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ OJP
Tel: 171 325 5102
Telex: 896631 MGT G
Fax: 171 325 8215
Attention: Global Trust and Agency Services
27. GOVERNING LAW AND JURISDICTION
This deed is governed by the laws of New South Wales. The Trustee submits
to the non-exclusive jurisdiction of courts exercising jurisdiction there.
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28. COUNTERPARTS
This deed may be executed in any number of counterparts. All counterparts
together will be taken to constitute one instrument.
29. LIMITED RECOURSE
29.1 General
Clause 33 of the Master Trust Deed applies to the obligations and
liabilities of the Trustee and the Trust Manager under this deed.
29.2 Liability of Trustee limited to its right to indemnity
(a) This deed applies to the Trustee only in its capacity as trustee of
the Trust and in no other capacity. A liability arising under or in
connection with this deed or the Trust can be enforced against the
Trustee only to the extent to which it can be satisfied out of
property of the Trust out of which the Trustee is actually
indemnified for the liability. This limitation of the Trustee's
liability applies despite any other provision of this deed and
extends to all liabilities and obligations of the Trustee in any way
connected with any representation, warranty, conduct, omission,
agreement or transaction related to this deed or the Trust.
(b) The parties other than the Trustee may not ▇▇▇ the Trustee in any
capacity other than as trustee of the Trust or seek the appointment
of a receiver (except under the Security Trust Deed), or a
liquidator, an administrator or any similar person to the Trustee or
prove in any liquidation, administration or arrangements of or
affecting the Trustee.
(c) The provisions of this clause 29 shall not apply to any obligation
or liability of the Trustee to the extent that it is not satisfied
because under a Transaction Document or by operation of law there is
a reduction in the extent of the Trustee's indemnification out of
the Assets of the Trust as a result of the Trustee's fraud,
negligence or breach of trust.
(d) Without affecting any limit or exclusion of liability in relation to
the duties, powers or obligations under the Transaction Documents of
any of the Trust Manager, the Servicer, the Note Trustee, the
Principal Paying Agent, the other Paying Agents or the Agent Bank
(each a Relevant Party), it is acknowledged that the Trust Manager,
the Servicer, the Note Trustee, the Principal Paying Agent, the
other Paying Agents and the Agent Bank (each a Relevant Party) are
responsible under this deed and the other Transaction Documents for
performing a variety of obligations relating to the Trust. No act or
omission of the Trustee (including any related failure to satisfy
its obligations under this deed) will be considered fraud,
negligence or breach of trust of the Trustee for the purpose of
sub-paragraph (iii) to the extent to which the act or omission was
caused or contributed to by any failure by any Relevant Party or any
other person who provides services in respect of the Trust (other
than a person who has been delegated or appointed by the Trustee and
for whom the Trustee is responsible under this deed or the relevant
Transaction Documents, but excluding any Relevant Party) to fulfil
its obligations relating to the Trust or by any other act or
omission of a Relevant Party or any other person who provides
services in respect of the Trust (other than a person who has been
delegated or appointed by the Trustee and for whom the Trustee is
responsible under this deed or the relevant Transaction Documents,
but excluding any Relevant Party).
(e) No attorney, agent, receiver or receiver and manager appointed in
accordance with this deed or any other Transaction Documents
(including a Relevant Party) has
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authority to act on behalf of the Trustee in a way which exposes the
Trustee to any personal liability and no act or omission of any such
person will be considered fraud, negligence or breach of trust of
the Trustee for the purpose of sub-paragraph (iii), if the Trustee
has exercised reasonable care in the selection and supervision of
such a person.
29. Unrestricted remedies
Nothing in clause 29.2 limits any party (other than the Trustee) in:
(a) obtaining an injunction or other order to restrain any breach of
this deed by any party;
(b) obtaining declaratory relief; or
(c) in relation to its rights under the Security Trust Deed.
29. Restricted remedies
Except as provided in clause 29.3, no Paying Agent shall:
(a) (judgment) obtain a judgment for the payment of money or damages by
the Trustee;
(b) (statutory demand) issue any demand under s459E(1) of the
Corporations Law (or any analogous provision under any other law)
against the Trustee;
(c) (winding up) apply for the winding up or dissolution of the Trustee;
(d) (execution) levy or enforce any distress or other execution to, on,
or against any assets of the Trustee;
(e) (court appointed receiver) apply for the appointment by a court of a
receiver to any of the assets of the Trustee;
(f) (set-off or counterclaim) exercise or seek to exercise any set-off
or counterclaim against the Trustee; or
(g) (administrator) appoint, or agree to the appointment, of any
administrator to the Trustee,
or take proceedings for any of the above and each Paying Agent waives its
rights to make those applications and take those proceedings.
30. SUCCESSOR TRUSTEE
The Note Trustee shall do all things reasonably necessary to enable any
successor Trustee appointed under clause 24 of the Master Trust Deed to
become the Trustee under this deed.
31. OFFSHORE NOTEHOLDERS' LISTS AND REPORTS
31.1 Provision of information
The Trustee will furnish or cause to be furnished to the Note Trustee:
(a) every six months (with the first six month period commencing on the
Closing Date) (each such date being a Notice Date), a list, in such
form as the Note Trustee may
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reasonably require, of the names and addresses of the Offshore
Noteholders as of the Record Date immediately preceding that Notice
Date; and
(b) at such other times as the Note Trustee may request in writing,
within 30 days after receipt by the Trustee of any such request, a
list of similar form and content as of a date not more than 10 days
prior to the time such list is furnished,
provided that so long as:
(c) the Note Trustee is the Note Registrar; or
(d) the Offshore Notes are Book-Entry Notes,
no such list shall be required to be furnished.
31.2 Preservation of Information; Communications to Offshore Noteholders
(a) The Note Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Offshore
Noteholders contained in the most recent list (if any) furnished to
the Note Trustee as provided in clause 31.1 and, so long as it
continues to act as Note Registrar, the names and addresses of
Offshore Noteholders received by the Note Trustee in its capacity as
Note Registrar. The Trustee may destroy any list furnished to it as
provided in such clause 31.1 upon receipt of a new list so
furnished.
(b) Offshore Noteholders may communicate pursuant to section 312(b) of
the TIA with other Offshore Noteholders with respect to their rights
under this Deed or under the Offshore Notes.
(c) The Trustee, Note Trustee and Note Registrar shall have the
protection of section 312(c) of the TIA.
31.3 Reports by Note Trustee
If required by section 313(a) of the TIA, within 60 days after each 30
June, beginning with 30 June 1999, the Note Trustee shall mail to each
Offshore Noteholder and the Trustee as required by section 313(c) of the
TIA a brief report dated as of such date that complies with section 313(a)
of the TIA. The Note Trustee also shall comply with section 313(b) of the
TIA. A copy of each report at the time of its mailing to Offshore
Noteholders shall be filed by the Note Trustee with the Commission and
each stock exchange, if any, on which the Offshore Notes are listed. The
Trust Manager on behalf of the Trustee shall notify the Note Trustee if
and when the Offshore Notes are listed on any stock exchange.
31.4 Notices to Offshore Noteholders; Waiver
Where this deed provides for notice to Offshore Noteholders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class, postage prepaid to each
Offshore Noteholder affected by such event, at his or her address as it
appears on the Note Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Offshore Noteholders is given by mail, neither
the failure to mail such notice nor any defect in any notice so mailed to
any particular Offshore Noteholder shall affect the sufficiency of such
notice with respect to other Offshore Noteholders, and any notice that is
mailed in the manner herein provided shall conclusively be presumed to
have been duly given.
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Where this deed provides for notice in any manner, such notice may be
waived in writing by any person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Offshore Noteholders shall be filed with the
Note Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail services as a result
of a strike, work stoppage or similar activity, it shall be impractical to
mail notice of any event to Offshore Noteholders when such notice is
required to be given pursuant to any provision of this deed, then any
manner of giving such notice as the Trustee shall direct the Note Trustee
shall be deemed to be a sufficient giving of such notice.
31.5 Reports by Trustee
The Trustee shall:
(a) file with the Note Trustee, within 15 days after the Trustee is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the
Trustee may be required to file with the Commission pursuant to
section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended;
(b) file with the Note Trustee and the Commission in accordance with
rules and regulations prescribed from time to time by the Commission
such additional information, documents and reports with respect to
compliance by the Trustee with the conditions and covenants of this
deed as may be required from time to time by such rules and
regulations; and
(c) supply to the Note Trustee (and the Note Trustee shall transmit by
mail to all Offshore Noteholders described in section 313(c) of the
TIA) such summaries of any information, documents and reports
required to be filed by the Trustee pursuant to clauses (a) and (b)
of this clause 31.5 as may be required by rules and regulations
prescribed from time to time by the Commission.
32. TRUST INDENTURE ACT - MISCELLANEOUS
32.1 Compliance Certificates and Opinions, etc
(a) Upon any application or request by the Trustee to the Note Trustee
to take any action under any provision of this deed, the Trustee
shall furnish to the Note Trustee:
(i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this deed relating to the
proposed action have been complied with;
(ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been
complied with; and
(iii) (if required by the TIA) an Independent Certificate from a
firm of certified public accountants meeting the applicable
requirements of section 314(c)(3) of the TIA, except that, in
the case of any such application or request as to which the
furnishing of such documents is specifically required by any
provision of this deed, no additional certificate or opinion
need be furnished.
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(b)(i)Prior to the deposit of any property or securities with
the Trustee that is to be made the basis for the release of
any property or securities subject to the Security Interest
created by the Security Trust Deed, the Trustee shall, in
addition to any obligation imposed in clause 32.1(a) or
elsewhere in this deed, furnish to the Note Trustee an
Officer's Certificate certifying or stating the opinion of
each person signing such certificate as to the fair value
(within 90 days of such deposit) of the property or securities
to be so deposited.
(ii) Whenever any property or securities are to be released from
the Security Interest created by the Security Trust Deed, the
Trustee shall also furnish to the Note Trustee an Officer's
Certificate certifying or stating the opinion of each person
signing such certificate as to the fair value (within 90 days
of such release) of the property or securities proposed to be
released and stating that in the opinion of such person the
proposed release will not impair the security under the
Security Trust Deed in contravention of the provisions of the
Security Trust Deed or this deed.
(iii) Whenever the Trustee is required to furnish to the Note
Trustee an Officer's Certificate certifying or stating the
opinion of any signer thereof as to the matters described in
paragraphs (i) and (ii), the Trustee shall also furnish to the
Note Trustee an Independent Certificate as to the same matters
if the fair value of the property or securities and of all
other property or securities deposited or released from the
Security Interest created by the Security Trust Deed since the
commencement of the then current calendar year, as set forth
in the certificate required by clause (ii) and this clause
(iii), equals 10% or more of the Total Invested Amount of the
Notes, but such certificate need not be furnished in the case
of any release of property or securities if the fair value
thereof as set forth in the related Officer's Certificate is
less than $25,000 or less than one percent of the then Total
Invested Amount of the Notes.
Notwithstanding any other provision of this clause, the
Trustee may:
(A) collect, liquidate, sell or otherwise dispose of
Receivables or other Assets of the Trust as and to the
extent permitted or required by the Transaction
Documents; and
(B) make cash payments out of the [Trust Accounts] as and to
the extent permitted or required by the Transaction
Documents.
(c) Every Officer's Certificate or opinion with respect to compliance
with a condition or covenant provided for in this deed shall
include:
(i) a statement that each signatory of such certificate or opinion
has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
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(iv) a statement as to whether, in the opinion of each such
signatory such condition or covenant has been complied with.
32.2 Undertaking for Costs
(a) Subject to paragraph (b), all parties to this deed agree, and each
Offshore Noteholder by such Offshore Noteholder's acceptance thereof
shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy
under this deed, or in any suit against the Note Trustee for any
action taken, suffered or omitted by it as the Note Trustee, the
filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defences made by such party
litigant.
(b) The provisions of this clause shall not apply to:
(i) any suit instituted by the Note Trustee;
(ii) any suit instituted by any Offshore Noteholder, or group of
Offshore Noteholders in each case holding in the aggregate
more than 10% of the aggregate Invested Amount of the Offshore
Notes; or
(iii) any suit instituted by any Offshore Noteholder for the
enforcement of the payment of principal or interest on any
Offshore Note on or after the respective due dates expressed
in such Offshore Note and in this deed (or, in the case of
final redemption of a Offshore Note, on or after the Final
Maturity Date).
32.3 Exclusion of section 316
(a) Section 316(a)(1) of the TIA is expressly excluded by this deed.
(b) For the purposes of section 316(a)(2) of the TIA in determining
whether any Offshore Noteholders have concurred in any relevant
direction or consent, Notes owned by the Trustee or by any Associate
of the Trustee, shall be disregarded, except that for the purposes
of determining whether the Note Trustee shall be protected in
relying on any such direction or consent, only Offshore Notes which
the Note Trustee knows are so owned shall be so disregarded.
32.4 Unconditional Rights of Offshore Noteholders to Receive Principal and
Interest
Notwithstanding any other provisions in this deed, any Offshore Noteholder
shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Offshore Note on
or after the respective due dates thereof expressed in such Offshore Note
or in this deed (or, in the case of final redemption of a Offshore Note,
on or after the Final Maturity Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired
without the consent of such Offshore Noteholder, except to the extent that
this deed contains provisions limiting or denying the right of any
Offshore Noteholder 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 Security Trust Deed upon
any property subject to such Security Interest.
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Page 44
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32.5 Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with another
provision hereof that is required to be included in this indenture by any
of the provisions of the Trust Indenture Act, such required provision
shall prevail.
The provisions of section 310 to 317 (inclusive) of the TIA that impose
duties on any person (including the provisions automatically deemed
included herein unless expressly excluded by this deed) are a part of and
govern this deed, whether or not contained herein.
33. CONSENT OF OFFSHORE NOTEHOLDERS
33.1 General
Except as expressly provided in elsewhere in this deed or in clause 33.2
below, any action that may be taken by the Offshore Noteholders under this
deed may be taken by registered holders of not less than a majority of the
aggregate Invested Amount of Offshore Notes or the relevant Class of
Offshore Notes, as applicable.
33.2 Special Written Approvals
(a) The following matters are only capable of being effected by the
approval in writing of holders of at least 75% of the aggregate
Invested Amount of the Class A Notes or the Class B Notes, as
appropriate namely:
(i) modification of the date fixed for final maturity of the Class
A Notes or the Class B Notes;
(ii) reduction or cancellation of the principal payable on the
Class A Notes or the Class B Notes or any alteration of the
date or priority of redemption of the Class A Notes or the
Class B Notes;
(iii) alteration of the amount of interest payable on any class of
the Class A Notes or the Class B Notes or modification of the
method of calculating the amount of interest payable on the
Class A Notes or the Class B Notes or modification of the date
of payment of an, interest payable on the Class A Notes or the
Class B Notes;
(iv) alteration of the currency in which payments under the Class A
Notes or the Class B Notes are to be made;
(v) altering the required percentage of aggregate Invested Amount
required to consent or take any action of the Offshore Notes
or a Class of Offshore Notes;
(vi) alteration of this sub-paragraph.
(b) Subject to paragraph (c) the Noteholders shall in addition to the
powers given under this deed have the following powers if approval
is given by holders of at least 75% of the aggregate Invested Amount
of the Class A Notes or the Class B Notes:
(i) power to sanction any compromise or arrangement proposed to be
made between the Trustee and the Class A Noteholders or the
Class B Noteholders;
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(ii) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Class A
Noteholders or the Class B Noteholders, as the case may be,
against the Trustee or against any of its property or against
any other person whether such rights shall arise under these
presents, any of the Notes or otherwise;
(iii) power to assent to any modification of the provisions
contained in these presents, the Class A Notes or the Class B
Notes, as the case may be, (including the Conditions) or the
provisions of any of the Relevant Documents which shall be
proposed by the Trustee or the Note Trustee;
(iv) power to give any authority or sanction which under the
provisions of these presents or the Class A Notes or the
Class B Notes, as the case may be, (including the Conditions)
is required to be given by, in writing by holders of at least
75% of the aggregate Invested Amount of the Class A Notes or
the Class B Notes as appropriate;
(v) power to approve of a person to be appointed a trustee and
power to remove any trustee or trustees for the time being
under this deed;
(vi) power to discharge or exonerate the Note Trustee from all
liability in respect of any act or omission for which the
Note Trustee may have become responsible under this deed or
under the Class A Notes or the Class B Notes;
(vii) power to authorise the Note Trustee to concur in and execute
and do all such deeds, instruments, acts and things as may be
necessary to carry out and give effect to the approval in
writing by holders of at least 75% of the aggregate Invested
Amount of the Class A Notes or the Class B Notes as
appropriate;
(viii) power to sanction any scheme or proposal for the exchange or
sale of the Class A Notes or the Class B Notes, as the case
may be, for, or the conversion of the Class A Notes or the
Class B Notes, as the case may be, into, or the cancellation
of the Class A Notes or the Class B Notes, as the case may
be, in consideration of shares, stock, notes, bonds'
debentures, debenture stock and/or other obligations and/or
securities of the Trustee or of any other company formed or
to be formed, or for or into or in consideration of cash, or
partly for or into or in consideration of such shares, stock,
notes, bonds, debenture stock and/or other obligations and/or
securities as aforesaid and partly for or into or in
consideration of cash.
(c) Despite paragraph (b) no approval in writing by the holders of at
least 75% of the aggregate Invested Amount of the Class B
Noteholders shall be effective unless:
(i) the Note Trustee is of the opinion that it will not be
materially prejudicial to the interests of the Class A
Noteholders; or
(ii) it is sanctioned by approval in writing by the holders of at
least 75% of the aggregate Invested Amount of the Class A
Notes; or
(iii) none of the Class A Notes remains outstanding.
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33.3 Requirement for writing
Except as expressly provided elsewhere in this deed, all notices and
consents from Offshore Noteholders and Offshore Note Owners shall be
delivered in writing. Any solicitation of such notices or consent shall be
in writing and be delivered by the Trustee, Trust Manager or Note Trustee,
as applicable, seeking such notice or consent form the Offshore
Noteholders or Offshore Note Owners to the Principal Paying Agent, who
shall deliver the foregoing to the appropriate Classes of Offshore
Noteholders or Offshore Note Owners. With respect to any solicitation of
approval of Offshore Noteholders, the record date for determining Offshore
Noteholders with respect to such solicitation shall be the date upon which
the Principal Paying Agent distributes such notices or solicitation to the
Offshore Noteholders.
EXECUTED as a deed in [*].
Each attorney executing this deed states that he has no notice of revocation or
suspension of his power of attorney.
TRUSTEE
SIGNED on behalf of )
WESTPAC SECURITIES )
ADMINISTRATION LIMITED )
by its attorney )
in the presence of: ) ________________________________
Signature
_____________________________________ ________________________________
Witness Print name
_____________________________________
Print name
TRUST MANAGER
SIGNED on behalf of )
WESTPAC SECURITISATION )
MANAGEMENT PTY LIMITED by its )
in the presence of: ) ________________________________
Signature
_____________________________________ ________________________________
Witness Print name
_____________________________________
Print name
--------------------------------------------------------------------------------
47
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NOTE TRUSTEE
SIGNED on behalf of )
▇▇▇▇▇▇ GUARANTY TRUST )
COMPANY OF NEW YORK )
by its attorney )
in the presence of: ) ________________________________
Signature
_____________________________________ ________________________________
Witness Print name
_____________________________________
Print name
--------------------------------------------------------------------------------
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SCHEDULE 1
FORM OF CLASS A/CLASS B* BOOK-ENTRY NOTE
REGISTERED CUSIP NO.
No. R- ISIN No.
Common Code
Unless this Note is presented by an authorised representative of The Depository
Trust Company, a New York corporation (DTC), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorised
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorised representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
CLASS B*: THIS NOTE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A NOTES AS
DESCRIBED IN THE TRANSACTION DOCUMENTS.
WESTPAC SECURITIES ADMINISTRATION LIMITED
(ACN 000 049 472)
(a limited liability company incorporated under the law of New South Wales,
Australia)
in its capacity as trustee of the Series ▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇
CLASS A/CLASS B* BOOK-ENTRY NOTE
representing
US$[number]**
Class A/Class B* Mortgage Backed Floating Rate Notes Due [ ]
This Note is a Class A/Class B* Book-Entry Note without principal or interest in
respect of a duly authorised issue of Notes of Westpac Securities Administration
Limited in its capacity as trustee of the Series ▇▇▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ (the "Trust")
(the "Issuer"), designated as specified in the title above (the "Notes"), in an
initial aggregate principal amount of
[ ]** (US$ [ ])**
and (a) constituted by a Master Trust Deed (the "Master Trust Deed") dated 14
February 1997 between the Issuer and Westpac Securitisation Management Pty
Limited (the "Trust Manager"), by a Series Notice (the "Series Notice") dated
[*] 1998 between (among others) the Issuer, ▇▇▇▇▇▇ Guaranty Trust Company of New
York, London office (the note trustee for the time being referred to as the
"Note Trustee") as trustee for the holders for the time being of the Class A
Notes (the "Class A Noteholders") and the holders for the time being of the
Class B Notes (the "Class B Noteholders", and together with the Class A
Noteholders the "Noteholders") and the Trust Manager, and by these
--------------------------------------------------------------------------------
Conditions; (b) issued subject to a Note Trust Deed dated [*] 1998 (the "Note
Trust Deed") between the Issuer, the Trust Manager and the Note Trustee; and (c)
secured by a Security Trust Deed (the "Security Trust Deed") dated [*] 1998
between the Issuer, the Trust Manager, the Note Trustee and Perpetual Trustee
Company Limited (ACN 000 001 007) (the "Security Trustee", which expression
shall include its successor for the time being as security trustee under the
Security Trust Deed). References to the Conditions (or to any particular
numbered Condition) shall be to the Terms and Conditions of the Class A/Class B*
Notes (or that particular one of them) set out in Schedule 2/3* to the Note
Trust Deed but with the deletion of those provisions which are applicable only
to Class A/Class B* Notes in definitive form. Terms and expressions defined in
the Note Trust Deed and the Conditions shall, save as expressly stated
otherwise, bear the same meanings when used herein.
If the Issuer is obliged to issue Definitive Notes under Clause 3.3 of the Note
Trust Deed this Class A/Class B* Book-Entry Note will be exchangeable in whole
at the offices of the Principal Paying Agent at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ (or such other place outside Australia and any of its respective
territories and possessions and other areas subject to jurisdictions as the Note
Trustee may agree) for Class A/Class B* Definitive Notes and the Issuer shall
execute and procure that the Principal Paying Agent authenticates and delivers
in full exchange for this Class A/Class B* Book-Entry Note, Class A/Class B*
Definitive Notes in aggregate principal amount equal to the Amount of all Class
A/Class B* Notes represented by this Class A/Class B* Book-Entry Note. The
Issuer is not obliged to issue Definitive Notes until 30 days after the
occurrence of an event set out in clause 3.3 of the Note Trust Deed.
The Issuer, in its capacity as trustee of the Trust, subject to this Class
A/Class B* Book-Entry Note and subject to and in accordance with the Conditions
and the Note Trust Deed promises to pay to Cede Co., or registered assigns of
this Class A/Class B* Book-Entry Note the principal sum of US$[words]**
(US$[number])** or such lesser amount as may from time to time be represented by
this Class A/Class B* Book-Entry Note (or such part of that amount as may become
repayable under the Conditions, the Series Notice and the Note Trust Deed) on
such date(s) that principal sum (or any part of it) becomes repayable in
accordance with the Conditions, the Series Notice and the Note Trust Deed and to
pay interest in arrear on each Payment Date (as defined in Condition 4) on the
Invested Amount (as defined in Condition 5(a)) of this Class A/Class B*
Book-Entry Note at rates determined in accordance with Class A/Class B*
Condition 4 and all subject to and in accordance with the certification
requirements described in this Class A/Class B* Book-Entry Note, the Conditions,
the Series Notice and the Note Trust Deed, which shall be binding on the
registered holder of this Class A/Class B* Book-Entry Note (as if references in
the Conditions to the Notes and the Noteholders were references to this Class
A/Class B* Book-Entry Note and the registered holder of this Class A/Class B*
Book-Entry Note respectively and as if the same had been set out in this Class
A/Class B* Book-Entry Note in full with all necessary changes, except as
otherwise provided in this Class A/Class B* Book-Entry Note).
Payments of interest on this Note due and payable on each Payment Date, together
with the instalment of principal, if any, shall be payable to the nominee of the
Common Depositary (initially, such nominee to be Cede & Co.). No payment of
interest or principal may be made by the Issuer or any Paying Agent in the
Commonwealth of Australia or its possessions or into a bank account or to an
address in the Commonwealth of
--------------------------------------------------------------------------------
Australia. Each of the persons appearing from time to time in the records of
DTC, as the holder of a beneficial interest in a Class A/Class B* Note will be
entitled to receive any payment so made in respect of that Class A/Class B* Note
in accordance with the respective rules and procedures of DTC. Such persons will
have no claim directly against the Issuer in respect of payments due on the
Class A/Class B* Notes which must be made by the holder of this Class A/Class B*
Book-Entry Note, for so long as this Class A/Class B* Book-Entry Note is
outstanding.
On any payment of principal and/or interest on the Class A/Class B* Notes as set
out above details of that payment shall be endorsed by or on behalf of the
Issuer in the Note Register and, in the case of payments of principal, the
Invested Amount of the Class A/Class B* Notes shall be reduced for all purposes
by the amount so paid and endorsed in the Note Register. Any such record shall
be prima facie evidence that the payment in question has been made.
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If the Issuer is obliged to issue Definitive Notes under Clause 3.3 of the Note
Trust Deed, the Book-Entry Notes will be surrendered to the Trustee by the
Clearing Agency and the Clearing Agency will deliver the relevant registration
instructions to the Trustee. Definitive Notes shall be executed by the Trustee
and authenticated by the Principal Paying Agent and delivered as per the
instructions of the Clearing Agency.
The Class A/Class B* 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 Issuer fails to meet its obligations to issue Class A/Class B*
Definitive Notes, this shall be without prejudice to the Issuer's obligations
with respect to the Notes under the Note Trust Deed, the Master Trust Deed, the
Series Notice and this Class A/Class B* Book-Entry Note.
On an exchange of this Class A/Class B* Book-Entry Note, this Class A/Class B*
Book-Entry Note shall be surrendered to the Principal Paying Agent.
This Class A/Class B* Book-Entry Note shall not become valid for any purpose
unless and until the Certificate of Authentication attached has been signed by
an Authorised Signatory of the Principal Paying Agent (as defined in the Series
Notice).
This Class A/Class B* Book-Entry Note is governed by, and shall be construed in
accordance with, the laws of New South Wales, Australia.
IN WITNESS the Issuer has caused this Class A/Class B* Book-Entry Note to be
signed [manually/in facsimile] by a person duly authorised on its behalf
WESTPAC SECURITIES ADMINISTRATION LIMITED
By: __________________________
Authorised Signatory
IMPORTANT NOTES:
(a) The Class A/Class B* Notes do not represent deposits or other liabilities
of Westpac Banking Corporation, ARBN 007 457 141 ("Westpac") or associates
of Westpac.
(b) The holding of Class A/Class B* Notes is subject to investment risk,
including possible delays in repayment and loss of income and principal
invested.
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(c) Neither Westpac nor any associate of Westpac in any way stands behind the
capital value and/or performance of the Class A/Class B* Notes or the
assets of the Trust except to the limited extent provided in the Series
Notice, the Master Trust Deed, the Note Trust Deed and the other documents
for the Trust.
(d) None of Westpac, the Issuer, Westpac Securitisation Management Pty Limited
as servicer on behalf of the Issuer (the "Servicer") or the Trust Manager
guarantees the payment of interest or the repayment of principal due on
the Class A/Class B* Notes.
(e) None of the obligations of the Issuer or the Trust Manager are guaranteed
in any way by Westpac or any associate of Westpac.
(f) The Issuer's liability to make payments in respect of the Class A/Class B*
Notes is limited to its right of indemnity from the assets of Trust from
time to time available to make such payments under the Master Trust Deed
and Series Notice. All claims against the Issuer in relation to the Class
A/Class B* Notes can be enforced against the Issuer only to the extent to
which it can be satisfied out of the assets of the Trust out of which the
Issuer is actually indemnified for the liability except in the case of
(and to the extent of) any fraud, negligence or breach of trust on the
part of the Issuer.
(g) The Noteholder is required to accept any distribution of moneys under the
Security Trust Deed in full and final satisfaction of all moneys owing to
it, and any debt represented by any shortfall that exists after any such
final distribution is extinguished.
CERTIFICATE OF AUTHENTICATION
This Class A/Class B* Book-Entry Note is authenticated by ▇▇▇▇▇▇ Guaranty Trust
Company of New York and until so authenticated shall not be valid for any
purpose.
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK
as Principal Paying Agent
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ASSIGNMENT
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Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
________________________________________________________________________________
attorney, to transfer said 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 Note
Registrar, which requirements include
membership or participation in STAMP
or such other "signature guarantee
program" as may be determined by the
Note Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
_________________________________
*/ NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in
every particular without alteration, enlargement or any change
whatsoever.
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WESTPAC SECURITIES ADMINISTRATION LIMITED
SCHEDULE 2
Information to be contained in Noteholder's Report
(i) the Invested Amount and the Stated Amount of each Class of Notes;
(ii) the Interest Payments and principal distributions on each Class of
Notes;
(iii) the Available Income;
(iv) the Total Available Funds;
(v) the aggregate of all Redraws made during that Collection Period;
(vi) the Redraw Shortfall;
(vii) the Subordinated Percentage;
(viii) the Initial Subordinated Percentage;
(ix) the Payment Shortfall (if any);
(x) the Principal Draw (if any) for that Collection Period, together with
all Principal Draws made before the start of that Collection Period and
not repaid;
(xi) the Gross Principal Collections;
(xii) the Principal Collections;
(xiii) the Liquidity Shortfall (if any);
(xiv) the Remaining Liquidity Shortfall (if any);
(xv) the Principal Charge Off (if any);
(xvi) the Class A Percentage and the Class B Percentage;
(xvii) the Class A Bond Factor, the Class B Bond Factor, the RFS Class A Bond
Factor and the RFS Bond Factor for each RFS Series (The "Bond Factor"
with respect to a Class of Notes is the Initial Invested Amount of such
Class less all principal payments on such Class divided by the Initial
Invested Amount of such Class);
(xxviii) the Class A Charge Offs, the Class B Charge Offs, the RFS Class A
Charge Offs, the RFS Charge Offs and the Redraw Charge Offs (if any);
(xix) all Carryover Charge Offs (if any);
(xx) if required, the Threshold Rate at that Collection Determination Date;
(xxi) the Quarterly Percentage;
(xxii) LIBOR, as at the first day of the related Interest Period ending
immediately after that Collection Determination Date as calculated by
the Agent Bank;
(xxiii) scheduled and unscheduled payments of principal on the Housing Loans;
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(xxiv) aggregate Balances Outstanding of Fixed Rate Housing Loans and
aggregate Balances Outstanding of Variable Rate Housing Loans; and
(xxv) delinquency statistics with respect to the Housing Loans.
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