NOTE TRUST DEED
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PERPETUAL TRUSTEES CONSOLIDATED LIMITED
(Trustee)
CRUSADE MANAGEMENT LIMITED
(Manager)
WILMINGTON TRUST COMPANY
(Note Trustee)
BANKERS TRUST COMPANY
(Principal Paying Agent)
BANKERS TRUST COMPANY
(Calculation Agent)
P.T. LIMITED
(Security Trustee)
XXXXX XXXXX & XXXXXXX
The Chifley Tower
0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Tel 00 00000 0000
Fax 00 00000 0000
(C) Copyright Xxxxx Xxxxx & Xxxxxxx 2001
NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
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CROSS REFERENCE TABLE1
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TRUST INDENTURE ACT SECTION CLAUSE
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310 (a)(1) 23.6
(a)(2) 23.1(d)
(a)(3) 23.6
(a)(4) 22.2(b)
(a)(5) NA2
(b) 23.6
(c) 23.6, 23.1
NA
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311 (a) 13.1
(b) 13.1
(c) NA
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312 (a) 35.1, 35.2(a)
(b) 35.2(b)
(c) 35.2(c)
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313 (a) 35.3
(b)(1) 35.3
(b)(2) NA
(c) 35.4
(d) 35.3
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314 (a)(1) 35.5
(a)(2) 35.5
(a)(3) 35.5
(a)(4) 11.1(j)
(b) 11.1(k)
(c) 36.1(a)
(d) 36.1(b)
(e) 36.1(c)
(f) 36.1(a)
--------------------------------------------------- ----------------------------
315 (a) 13.2(b)
(b) 13.4
(c) 13.2(a)
(d) 13.2(c), (d)
(e) 36.2
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316 (a)(1) 36.3
(a)(2) NA
(b) 36.4
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317 (a)(1) 6.1
(a)(2) NA
(b) 2.5
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318 (a) 36.5
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NOTES:
1. This Cross Reference Table shall not, for any purpose, be deemed to be
part of this deed.
2. NA means not applicable.
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 2
1.1 Definitions and Interpretation 2
1.2 Definitions in Master Trust Deed, Supplementary Terms Notice and
Conditions 4
1.3 Incorporation by reference 4
1.4 Interpretation 5
1.5 Determination, statement and certificate sufficient evidence 5
1.6 Document or agreement 5
1.7 Transaction Document 5
1.8 Trustee as trustee 5
1.9 Knowledge of Trustee 6
1.10 Knowledge of the Note Trustee 6
1.11 Appointment of the Note Trustee 6
1.12 Obligations of the Trustee 6
1.13 Opinion of Counsel 7
2. PAYMENTS ON NOTES 7
2.1 Principal amount 7
2.2 Covenant to repay 7
2.3 Deemed payment 8
2.4 Following Event of Default 8
2.5 Requirements of Paying Agent 9
2.6 Certification 9
2.7 Determinations 10
3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, NOTES 10
3.1 Issue of Book-Entry Notes 10
3.2 Form of Book-Entry Notes 10
3.3 Definitive Notes 12
3.4 Stamp and Other Taxes 13
3.5 Indemnity for non-issue 13
3.6 Note Register and Note Registrar 13
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4. COVENANT OF COMPLIANCE 14
5. CANCELLATION OF US$ NOTES 15
5.1 Cancellation 15
5.2 Records 15
6. ENFORCEMENT 15
6.1 Actions following Event of Default 15
6.2 Evidence of default 16
6.3 Overdue interest 16
6.4 Restrictions on enforcement 16
6.5 Action by Noteholders 16
7. PROCEEDINGS 17
7.1 Acting only on direction 17
7.2 Security Trustee acting 17
7.3 Note Trustee alone entitled to act 18
7.4 Available amounts 18
7.5 No obligation to ensure compliance 18
7.6 Conflict of interests 18
8. NOTICE OF PAYMENT 19
9. INVESTMENT BY NOTE TRUSTEE 19
10. PARTIAL PAYMENTS 19
11. COVENANTS BY THE TRUSTEE AND MANAGER 20
12. REMUNERATION OF NOTE TRUSTEE 22
12.1 Fee 22
12.2 Additional Remuneration 22
12.3 Costs, expenses 23
12.4 Overdue rate 23
12.5 Continuing obligation 23
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13. NOTE TRUSTEE 24
13.1 Preferential Collection of Claims Against Trustee 24
13.2 Duties of Note Trustee 24
13.3 Obligations of Note Trustee 25
13.4 Notice of Defaults 25
13.5 Rights of Note Trustee 25
14. NOTE TRUSTEE'S LIABILITY 33
15. DELEGATION BY NOTE TRUSTEE 33
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE 33
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE 34
18. WAIVER 35
19. AMENDMENT 35
19.1 Approval 35
19.2 Resolution of US$ Noteholders 36
19.3 Distribution of amendments 36
19.4 Amendments binding 36
19.5 Conformity with TIA 36
20. US$ NOTEHOLDERS 37
20.1 Absolute Owner 37
20.2 Clearing Agency Certificate 38
21. CURRENCY INDEMNITY 38
22. NEW NOTE TRUSTEES 39
22.1 Appointment by Trustee 39
22.2 Appointment by Note Trustee 39
22.3 Notice 40
23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL 40
23.1 Removal by Trustee 40
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23.2 Removal by US$ Noteholders 41
23.3 Resignation 41
23.4 Rating Agencies approval 41
23.5 Trust Corporation 41
23.6 Successor to Note Trustee 42
23.7 Eligibility; Disqualification 42
24. NOTE TRUSTEE'S POWERS ADDITIONAL 43
25. SEVERABILITY OF PROVISIONS 43
26. NOTICES 43
26.1 General 43
26.2 Details 44
27. GOVERNING LAW AND JURISDICTION 45
28. XXXXXXXXXXXX 00
29. LIMITED RECOURSE 45
29.1 General 45
29.2 Liability of Trustee limited to its right to indemnity 45
29.3 Unrestricted remedies 46
29.4 Restricted remedies 47
30. SUCCESSOR TRUSTEE 47
31. REIMBURSEMENT FOR THE COST OF INDEPENDENT ADVICE 47
32. NO LIABILITY 48
33. INFORMATION MEMORANDUM 48
34. NOTE TRUSTEE'S LIMITED LIABILITY 48
34.1 Reliance on certificate 48
34.2 Note Trustee's reliance on Manager, Security Trustee, Trustee or
Servicer 49
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34.3 Compliance with laws 49
34.4 Reliance on experts 50
34.5 Oversights of others 50
34.6 Powers, authorities and discretions 50
34.7 Impossibility or impracticability 50
34.8 Legal and other proceedings 50
34.9 No liability except for negligence etc. 51
34.10 Further limitations on Note Trustee's liability 52
34.11 Conflicts 53
34.12 Information 53
34.13 Investigation by Note Trustee 54
35. NOTEHOLDERS' LISTS AND REPORTS 54
35.1 Provision of information 54
35.2 Preservation of Information; Communications to Noteholders 54
35.3 Reports by Note Trustee 54
35.4 Notices to US$ Noteholders; Waiver 55
35.5 Reports by Trustee 55
36. TRUST INDENTURE ACT - MISCELLANEOUS 56
36.1 Compliance Certificates and Opinions, etc 56
36.2 Undertaking for Costs 58
36.3 Exclusion of section 316 58
36.4 Unconditional Rights of US$ Noteholders to Receive Principal and
Interest 58
36.5 Conflict with Trust Indenture Act 59
37. CONSENT OF US$ NOTEHOLDERS 59
37.1 General 59
37.2 Special Written Approvals 59
37.3 Requirement for writing 60
SCHEDULE 1 64
Form Book-Entry Note 64
Assignment 68
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SCHEDULE 2 69
Information to be contained in Noteholder's Report 69
SCHEDULE 3 : TERMS AND CONDITIONS OF THE US$ NOTES 70
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DATE 2001
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PARTIES
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1. PERPETUAL TRUSTEES CONSOLIDATED LIMITED (ABN 81 004 029 841)
incorporated in Victoria of Level 0, 00 Xxxxxx Xxxxxx, Xxxxxx,
Xxx Xxxxx Xxxxx 0000 in its capacity as trustee of the Crusade
Global Trust No. 1 of 2001 (the TRUSTEE);
2. CRUSADE MANAGEMENT LIMITED (ABN 90 072 715 916) incorporated in
the Australian Capital Territory of 0-00 Xxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxxx Xxxxx 0000 as Manager of the Crusade Euro
Trust No. 2 of 1998 (the MANAGER);
3. CRUSADE MANAGEMENT LIMITED (ABN 90 072 715 916) incorporated in
the Australian Capital Territory of 0-00 Xxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxxx Xxxxx 0000 as Manager of the Crusade Global
Trust No. 1 of 2001 (the MANAGER);
4. WILMINGTON TRUST COMPANY acting through its office at Xxxxxx
Square North, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, (the NOTE TRUSTEE), which expression shall, wherever
the context requires, include any other person or company for
the time being a trustee under this deed or trustees of this
deed);
5. BANKERS TRUST COMPANY acting through its office at 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (the PRINCIPAL
PAYING AGENT), which expression shall wherever the context
requires, include any successor principal paying agent from time
to time appointed under the Agency Agreement.
6. BANKERS TRUST COMPANY acting through its office at 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the CALCULATION
AGENT), which expression shall wherever the context requires,
include any successor calculation agent from time to time
appointed under the Agency Agreement.
7. P.T. LIMITED (ABN 67 004 454 666) of Level 7, 00 Xxxxxx Xxxxxx,
Xxxxxx, XXX 2000 (the SECURITY TRUSTEE)
RECITALS
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A The Trustee has resolved at the direction of the Manager to
issue US$898,000,000 of mortgage backed pass through floating
rate notes comprising US$180,000,000 Class A-1 Notes due January
2032 , US$718,000,000 Class A-2 Notes due January 2032 (together
the US$ NOTES) and A$239,900,000 of mortgage backed pass through
floating rate notes comprising A$200,000,000 Class A-3 Notes due
January 2032, A$35,200,000 Class B Notes due January 2032 and
A$4,700,000 Class C Notes due January
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2032 (together the A$ NOTES). The US$ Notes are to be
constituted and secured in the manner provided in this deed and
the other Transaction Documents.
B The Note Trustee has agreed to act as trustee for the US$
Noteholders under this Deed.
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS AND INTERPRETATION
The following definitions apply unless the context requires
otherwise.
US$ NOTE OWNER means, with respect to a Book-Entry Note, the
person who is the beneficial owner of such Book-Entry Note, as
reflected on the books of the Clearing Agency, or on the books
of the person maintaining an account with such Clearing Agency
(directly as Clearing Agency Participant or as an indirect
participant) in each case in accordance with the rules of such
Clearing Agency.
CLEARING AGENCY PARTICIPANT means a broker, dealer, bank, other
financial institution or other person for whom from time to time
a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
CORPORATE TRUST OFFICE means the 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 Xxxxxx Square North, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, Xxxxxxx or at such other
address as the Note Trustee may designate by notice to the
Manager, Noteholders and the Trustee or the principal corporate
trust office of any successor Note Trustee.
EVENT OF DEFAULT means, in respect of a US$ Note, any of the
events described in Condition 9.
EXCHANGE ACT means the United States Securities Exchange Act of
1934, as amended [MBP TO CONFIRM].
INDEPENDENT means, in relation to a person, that the person:
(a) is independent of the Trustee, the Manager, the Servicer,
any Approved Seller and any of their Associates;
(b) does not have any direct financial interest or any material
indirect financial interest (other than less than 5% of the
outstanding amount of any publicly traded security) in any
person referred to in paragraph (a); and
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(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.
MASTER TRUST DEED means the Master Trust Deed dated 14 March
1998 between the Trustee, Xx.Xxxxxx Bank Limited and the
Manager.
NOTE DEPOSITORY AGREEMENT means the agreement among the Trustee,
the Principal Paying Agent and The Depository Trust Company, as
the initial Clearing Agency, dated as of the Closing Date,
relating to the Notes, as the same may be amended or
supplemented from time to time.
NOTEHOLDERS REPORT means the report to be delivered by the
Manager, on behalf of the Trustee, in accordance with clause
11(l)(i) containing the information set out in Schedule 2.
OFFICER'S CERTIFICATE means a certificate signed by any
Authorised Signatory of the Trustee or the Manager on behalf of
the Trustee, under the circumstances described in, and otherwise
complying with, the applicable requirements of section 314 of
the TIA.
OPINION OF COUNSEL means one or more written opinions of legal
counsel who may, except as otherwise expressly provided in this
deed, be employees of or counsel to the Trustee or the Manager
on behalf of the Trustee and who shall be satisfactory to the
Trustee or the Note Trustee, as applicable, and which opinion or
opinions shall be addressed to the Trustee or the Note Trustee,
as applicable, and shall be in form and substance satisfactory
to the Trustee and the Note Trustee, as applicable.
PAYING AGENT means any institution, including where the context
permits the Principal Paying Agent at its office:
(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
Notes,
in each case (except in the case of the initial Principal Paying
Agent) where notice of the appointment has been given to the US$
Noteholders under this deed and in accordance with 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
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referred because of such officer's knowledge of and familiarity
with the particular subject.
SUPPLEMENTARY TERMS NOTICE means the Supplementary Terms Notice
dated on or about the date of this Deed between the Trustee, the
Manager, the Note Trustee, the Security Trustee, Xx.Xxxxxx and
the Custodian.
TIA means the Unites States Trust Indenture Act of 1939, as
amended. [MBP TO CONFIRM]
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
[Bankers Trust Company] for so long as it complies with such
section.
1.2 DEFINITIONS IN MASTER TRUST DEED, SUPPLEMENTARY TERMS NOTICE AND
CONDITIONS
(a) Words and expressions which are defined in the Master Trust
Deed (as amended by the Supplementary Terms Notice), the
Supplementary Terms Notice and the 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
Supplementary Terms Notice) after the date of this deed
will change the meaning of terms used in this deed or
adversely affect the rights of the Note Trustee or any
Noteholder under this deed unless the Note Trustee (or the
Noteholders acting under clause 6.5, as the case may be)
has agreed in writing to the changes under this deed.
1.3 INCORPORATION BY REFERENCE
Where this deed refers to a provision of the TIA, the provision
is incorporated by reference in and made part of this deed. The
following terms used in the TIA have the following meaning in
this deed.
COMMISSION means the Securities and Exchange Commission of the
United States of America.
INDENTURE SECURITIES means the US$ Notes.
INDENTURE SECURITY HOLDER means a US$ Noteholder.
INDENTURE TO BE QUALIFIED means the Note Trust Deed.
INDENTURE TRUSTEE or INSTITUTIONAL TRUSTEE means the Note
Trustee.
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
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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.
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
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(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 KNOWLEDGE OF TRUSTEE
In relation to the Trust, the Trustee will be considered to have
knowledge or notice of or be aware of any matter or thing if the
Trustee has knowledge, notice or awareness of that matter or
thing by virtue of the actual notice or awareness of the
officers or employees of the Trustee who have day to day
responsibility for the administration of the Trust.
1.10 KNOWLEDGE OF THE NOTE TRUSTEE
In relation to the Trust, the Note Trustee will be considered to
have knowledge or notice of or be aware of any matter or thing
if the Note Trustee has knowledge, notice or awareness of that
matter or thing by virtue of the actual notice or awareness of
the officers or employees of the Note Trustee who have day to
day responsibility for the administration of the Note Trust.
1.11 APPOINTMENT OF THE NOTE TRUSTEE
The Note Trustee:
(a) is appointed to act as trustee on behalf of the US$
Noteholders on the terms and conditions of this Deed; and
(b) acknowledges and declares that it:
(i) holds the sum of US$10.00 received on the date of
this Deed; and
(ii) will hold the benefit of the obligations of the
Trustee under this Deed,
in each case, on trust for each US$ Noteholder, in accordance
with the terms and conditions of this Deed.
1.12 OBLIGATIONS OF THE TRUSTEE
(a) Where the Manager may act on behalf of the Trustee, failing
action by the Manager in accordance with the relevant
clause (including any requirement to take such action
within a specified time) the reference to the Manager
acting on behalf of the Trustee shall be construed as a
reference to the Trustee.
(b) Without limiting the Trustees obligations under paragraph
(a), the Trustee shall not be liable for any act or
omission by the Manager where it is acting or fails to act
(as the case may be) on behalf of the Trustee under this
deed.
(c) Where the Manager is empowered to act on behalf of the
Trustee, the Manager undertakes to the Trustee that it will
duly and punctually perform, on behalf of the Trustee,
those obligations, imposed on the Trustee in accordance
with the terms of the relevant clause.
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1.13 OPINION OF COUNSEL
For the purposes of this deed, the Trustee may where necessary
seek, and rely conclusively on, any Opinion of Counsel on any
matters relating to or connected with the TIA. Where the Trustee
elects to seek and has sought the Opinion of Counsel it shall
not be required to take any action under this deed unless and
until it has received such an Opinion of Counsel. The cost of
any such Opinion of Counsel will be an Expense of the Trustee in
relation to the Trust.
2. PAYMENTS ON NOTES
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2.1 PRINCIPAL AMOUNT
The aggregate principal amount of the US$ Notes is limited to
US$898,000,000 :
(a) US$180,000,000 in respect of the Class A-1 Notes;
(b) US$718,000,000 in respect of the Class A-2 Notes;
2.2 COVENANT TO REPAY
(a) The Trustee covenants with the Note Trustee that the
Trustee will, in accordance with the terms of any US$ 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
Condition 6) at the direction of the Manager on:
(i) the Maturity Date of the US$ Notes; or
(ii) each earlier date as those US$ Notes, or any of
them, may become repayable (whether in full or in
part),
pay or procure to be paid unconditionally in accordance
with this deed to or to the order of the Note Trustee in
US$ in London for immediate value the principal amount of
those US$ Notes repayable, or in the case of a partial
payment of those US$ Notes, the principal amount payable,
subject to and in accordance with the terms of those US$
Notes (including the Conditions).
(b) Subject to clause 2.3 and to the terms of the US$ Notes
(including the Conditions and in particular Condition 6)
and the Transaction Documents (including clause 29), until
any payment as well after as before any judgment or other
order of a court of competent jurisdiction the Trustee
shall, at the direction of the Manager, pay or procure to
be paid unconditionally in accordance with this deed to or
to the order of the Note Trustee:
(i) any interest, at the respective rates calculated
from time to time, in accordance with and on the
dates provided for in the Conditions; and
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(ii) principal payable at the times and in the amounts
as may be determined in accordance with Condition
5.
(c) The Note Trustee shall hold the benefit of the covenant in
this clause 2.2, and all other rights of the US$
Noteholders under the US$ Notes, on trust for the benefit
of the US$ Noteholders.
2.3 DEEMED PAYMENT
Any payment of principal or interest in respect of any US$ Notes
to or to the account of the Principal Paying Agent in the manner
provided in clause 3 of the Agency Agreement shall satisfy the
covenant in relation to those US$ Notes by the Trustee in this
clause 2 to the extent of that payment, except to the extent
that the Principal Paying Agent subsequently fails to pay that
amount under those US$ Notes in accordance with the terms of
those US$ Notes (including the Conditions).
2.4 FOLLOWING EVENT OF DEFAULT
(a) At any time after an Event of Default in respect of the US$
Notes 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:
(i) by notice in writing to the Trustee, the Manager,
the Principal Paying Agent, the other Paying
Agents (if any) and the Calculation Agent and
until such notice is withdrawn require the
Principal Paying Agent, the other Paying Agents
(if any) and the Calculation Agent under the
Agency Agreement either:
(A) (1) to act as Principal Paying Agent and
Paying Agents and Calculation Agent
respectively of the Note Trustee in
relation to payments to be made by or on
behalf of the Note Trustee under the
provisions of this deed on the terms of
the Agency Agreement except that the Note
Trustee's liability under any provisions
of the Agency Agreement for the
indemnification of the Paying Agents and
Calculation Agent shall be limited to any
amount for the time being held by the
Note Trustee on the trusts of this deed
and which is available to be applied by
the Note Trustee under this deed; and
(2) hold all Definitive Notes and all
amounts, documents and records held by
them in respect of the US$ Notes on
behalf of the Note Trustee; or
(B) to deliver up all Definitive Notes
and all amounts, documents and records
held by them in respect of the US$ Notes
to the Note Trustee or as the Note
Trustee
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shall direct in that notice, other than
any documents or records which the
relevant Paying Agent or Calculation
Agent is obliged not to release by any
law or regulation; or
(ii) by notice in writing to the Trustee require it to
make all subsequent payments in respect of the US$
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.
(b) The payment by the Trustee of its payment obligations on
each Payment Date under the Supplementary Terms Notice and
the Conditions to the Note Trustee in accordance with
paragraph (a) shall be a good discharge to the Trustee.
(c) The Trustee shall not be liable for any act or omission or
default of the Note Trustee during the period it is
required to make payments in respect of the US$ Notes to
the Note Trustee under paragraph (a).
2.5 REQUIREMENTS OF PAYING AGENT
The Manager on behalf of the Trustee will cause each Paying
Agent to execute and deliver to the Note Trustee an instrument
in which that Paying Agent shall agree with the Note Trustee,
subject to the provisions of this clause, that such Paying Agent
shall:
(a) hold in trust for the Note Trustee and the US$ Noteholders
all sums held by that Paying Agent for the payment of
principal and interest with respect to the US$ Notes until
all relevant sums are paid to the Note Trustee or the US$
Noteholders or otherwise disposed of as provided in this
deed; and
(b) immediately notify by facsimile the Note Trustee, the
Trustee, the Security Trustee and the Manager if the full
amount of any payment of principal or interest required to
be made by the Supplementary Terms Notice and the relevant
Conditions in respect of the US$ Notes is not
unconditionally received by it or to its order in
accordance with the Agency Agreement.
2.6 CERTIFICATION
For the purposes of any redemption of US$ Notes under Condition
5 the Note Trustee may rely upon an Officer's Certificate from
the Manager on behalf of the Trustee certifying or stating, the
opinion of each person signing that Officer's Certificate as to
the following matters:
(a) the fair value (within 90 days of such release) of the
property or securities to be released from the Security
Trust Deed;
(b) that the proposed release will not impair the security
under the Security Trust Deed in contravention of the
provisions of the Security Trust Deed or this deed; and
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(c) that the Trustee will be in a position to discharge all its
liabilities in respect of the relevant US$ Notes and any
amounts required under the Security Trust Deed to be paid
in priority to or pari passu with those US$ Notes,
and that Officer's Certificate shall be conclusive and binding
on the Trustee, the Note Trustee and the holders of those US$
Notes.
2.7 DETERMINATIONS
If the Manager does not at any time for any reason determine a
Principal Payment, the Bond Factor, the Invested Amount or the
Stated Amount applicable to any US$ Notes in accordance with
Condition 5(a) or 5(h), the Principal Payment, the Bond Factor,
Invested Amount and the Stated Amount may be determined by the
Calculation Agent (or, failing the Calculation Agent, the Note
Trustee) in accordance with Condition 5(a) or 5(h) (but based on
the information in its possession) and each such determination
or calculation shall be deemed to have been made by the Manager,
and the Note Trustee shall have no liability in respect thereof
other than as a result of the fraud, negligence, default or
breach of trust of the Note Trustee.
3. FORM OF, ISSUE OF AND DUTIES AND TAXES ON, NOTES
----------------------------------------------------------------------
3.1 ISSUE OF BOOK-ENTRY NOTES
(a) Each Class of US$ Notes shall, on issue be represented by
Book-Entry Notes.
(b) Each Book-Entry Note must be signed manually or by
facsimile by an Authorised Signatory of the Trustee on
behalf of the Trustee and must be manually authenticated by
the Principal Paying Agent.
3.2 FORM OF BOOK-ENTRY NOTES
(a) The Book-Entry Notes shall be typed in the form or
substantially in the form set out 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 US$ 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 Depository, the
Principal Paying Agent and the rules and procedures of the
Clearing Agency from time to time.
(c) The Book-Entry Notes shall be in an aggregate principal
amount of:
(i) US$180,000,000 for the Class A-1 Notes; and
(ii) US$718,000,000 for the Class A-2 Notes.
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(d) The Manager on behalf of Trustee shall procure that, prior
to the issue and delivery of any Book-Entry Note, that
Book-Entry Note will be authenticated manually by an
Authorised Signatory of the Principal Paying Agent and no
Book-Entry Note shall be valid for any purpose unless and
until so authenticated. A Book-Entry Note so executed and
authenticated shall be a binding and valid obligation of
the Trustee. Until a Book-Entry Note (or part of a
Book-Entry Note) has been exchanged pursuant to this deed,
it (or that part) shall in all respects be entitled to the
same benefits as a Definitive Note. Each Book-Entry Note
shall be subject to this deed except that the registered
owner of a Book-Entry Note shall be the only person
entitled to receive payments from the Principal Paying
Agent of principal or interest in relation to it.
(e) The US$ Notes upon original issue will be issued in the
form of typewritten Notes representing the Book-Entry
Notes. The Manager on behalf of the Trustee shall, on the
date of this deed, deliver or arrange the delivery on its
behalf to the Principal Paying Agent, as agent for the
Clearing Agency, of the Book-Entry Notes. The Book-Entry
Notes shall initially be registered on the Note Register in
the name of Cede & Co as nominee of the Clearing Agency,
and no US$ Note Owner will receive a Definitive Note
representing such US$ Note Owner's interest in such Note,
except as provided in clause 3.3.
(f) Whenever a notice or other communication to the US$
Noteholders is required under this deed, unless and until
Definitive Notes shall have been issued to US$ Note Owners
pursuant to clause 3.3, the Note Trustee shall give all
such notices and communications specified herein to be
given to US$ Noteholders to the Clearing Agency, and shall
have no obligation to the US$ Note Owners.
(g) Unless and until the Definitive Notes have been issued to a
US$ 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 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 US$ Notes and the
giving of instructions or directions hereunder) as
the sole holder of the US$ Notes, and shall have
no obligation to any US$ 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 US$ Note Owners shall be exercised
only through the Clearing Agency and shall be
limited to those established by law and agreements
between such US$ Note Owners and the Clearing
Agency and/or the Clearing Agency Participants.
Pursuant to the Note Depository Agreement,
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unless and until Definitive Notes are issued
pursuant to clause 3.3, the initial Clearing
Agency will make book-entry transfers among the
Clearing Agency Participants and receive and
transmit payments of principal and interest on the
US$ Notes to such Clearing Agency Participants;
and
(v) whenever this deed requires or permits actions to
be taken based upon instructions or directions of
US$ Note Owners evidencing a specific percentage
of all Invested Amounts of all US$ Notes, the
Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received
instructions to such effect from US$ Note Owners
and/or Clearing Agency Participants owning or
representing, respectively, such required
percentage of the beneficial interest in the US$
Notes and has delivered such instructions to the
Principal Paying Agent.
3.3 DEFINITIVE NOTES
If:
(a) the Principal Paying Agent advises the Manager in writing
that the Clearing Agency is no longer willing or able
properly to discharge its responsibilities with respect to
the US$ Notes or the Clearing Agency or its successor and
the Manager is unable to locate a qualified successor;
(b) the Trustee, at the direction of the Manager (at the
Manager's option) advises the Principal Paying Agent in
writing that the book-entry system is or is to be
terminated; or
(c) after the occurrence of an Event of Default, the Note
Trustee shall, at the direction of US$ Note Owners
representing beneficial interests aggregating to at least a
majority of the aggregate Invested Amount of the US$ Notes
advise both the Principal Paying Agent and the Issuer
Trustee in writing that the continuation of a book entry
system through the Clearing Agency is no longer in the best
interests of the US$ Note Owners,
then the Principal Paying Agent shall notify all of the
appropriate US$ Note Owners and the Trustee of the occurrence of
any such event and of the availability of Definitive Notes to
such US$ 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 (with the assistance of
the Manager) shall execute and procure the Principal Paying
Agent to authenticate the Definitive Notes in accordance with
the instructions of the Clearing Agency.
The Definitive Notes will be serially numbered and shall be
typewritten, printed, lithographed or engraved or produced by
any combination of these methods (with or without steel engraved
borders), all as determined by the Authorised Signatories
executing such Definitive Notes, as evidenced by their execution
of such Definitive Notes.
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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 Sates on or in connection with:
(a) the execution of the Transaction Documents;
(b) the constitution and original issue and delivery of the US$
Notes;
(c) any action taken by the Note Trustee or (where permitted
under this deed so to do), the Clearing Agency or any US$
Note Owner to enforce the provisions of the US$ Notes or
the Transaction Documents; and
(d) the creation of the security constituted under the Security
Trust Deed.
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(a)
but fails to do so within 30 days of delivery to the Trustee of
the Book-Entry Notes in accordance with clause 3.3 then the
Trustee shall (subject to clause 29) indemnify the Note Trustee,
the US$ Noteholders and the US$ 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 US$ Noteholders
or the US$ Note Owners is less than the amount that would have
been received had Definitive Notes been issued within the 30
days referred to in this clause 3.5. 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 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 Manager, on behalf of the Trustee, shall keep or cause
to be kept the Note Register in which, subject to such
reasonable regulations as it may prescribe, the Manager
shall provide for the registration of the US$ Notes and the
registration of transfers of US$ Notes. The NOTE REGISTRAR
will be responsible for registering Notes and transfers of
US$ Notes as herein provided. The Trustee may, with the
consent of the Note Trustee, appoint another person as Note
Registrar. Upon any resignation or removal of any Note
Registrar under the Agency Agreement, the Trustee with the
assistance of and at the direction of, the Manager shall
promptly appoint a successor or, if it elects not to make
such an appointment, assume the duties of the Note
Registrar.
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(b) Upon surrender for registration of transfer of any US$ Note
at the office or agency of the Trustee to be maintained as
provided in clause 11(f), if the requirements of Section
8-401(a) of the Uniform Commercial Code of New York (the
UCC) are met the Trustee shall, at the direction of the
Manager, execute and upon its written request the Principal
Paying Agent shall authenticate and the US$ Noteholder
shall obtain from the Note Trustee, in the name of the
designated transferee or transferees, one or more new US$
Notes, in any authorised denominations, of the same class
and a like aggregate principal amount.
(c) At the option of the US$ Noteholder, US$ Notes may be
exchanged for other US$ Notes in any authorised
denominations and a like aggregate principal amount, upon
surrender of the US$ Notes to be exchanged at such office
or agency. Whenever any US$ Notes are so surrendered for
exchange, if the requirements of Section 8-401(a) of the
UCC are met the Trustee shall, at the direction of the
Manager, execute and upon its written request the Principal
Paying Agent shall authenticate and the US$ Noteholder
shall obtain from the Note Trustee, the US$ Notes which the
US$ Noteholder making the exchange is entitled to receive.
(d) Every US$ Note presented or surrendered for registration of
transfer or exchange shall be (i) duly endorsed by, or be
accompanied by a written instrument of transfer in a form
satisfactory to the Note Registrar duly executed by, the
US$ Noteholder thereof or such US$ 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 US$ Noteholder for any
registration of transfer or exchange of US$ Notes, but the
Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of
US$ Notes.
(f) 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 US$
Notes selected for redemption or of any US$ Note for a
period of 30 days preceding the due date for any payment
with respect to the US$ Note.
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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 US$ Noteholder. The
Transaction Documents and the Conditions shall be binding on the
Trustee, the Note Trustee and the US$ Noteholders. The Note
Trustee (or the US$ Noteholders, under clause 6.5, as the case
may be) is entitled to enforce the obligations of the Trustee
under the US$ 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 Notes).
5. CANCELLATION OF US$ NOTES
----------------------------------------------------------------------
5.1 CANCELLATION
The Trustee shall procure that all US$ Notes:
(a) which have been surrendered for payment, registration of
transfer, exchange or redemption; or
(b) in the case of any Definitive Note, which, being mutilated
or defaced, has been surrendered and replaced under
Condition 11,
shall be cancelled by or on behalf of the Trustee.
5.2 RECORDS
The Trustee shall procure that:
(a) the Principal Paying Agent keeps a full and complete record
of all US$ Notes and of their redemption, payment, exchange
or cancellation (as the case may be) and of all replacement
US$ Notes issued in substitution for lost, stolen,
mutilated, defaced or destroyed Definitive Notes;
(b) such records shall be made available to the Note Trustee on
reasonable notice and during business hours promptly
following the Note Trustee's request for the same.
6. ENFORCEMENT
----------------------------------------------------------------
6.19 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 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;
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(b) enforce the security created under the Security Trust Deed
(including anything set out in clause 8.2 of the Security
Trust Deed); and
(c) enforce repayment of the US$ Notes together with accrued
interest and any other moneys payable to the Note Trustee,
the US$ Noteholders under the Transaction Documents.
6.2 EVIDENCE OF DEFAULT
If the Security Trustee or the Note Trustee takes any action
against the Trustee to enforce any of the provisions of any US$
Notes or this deed, proof that as regards any US$ Note, the
Trustee has not paid any principal or interest due in respect of
that US$ Note shall (unless the contrary is proved) be
sufficient evidence that the Trustee has not paid that principal
or interest on all other US$ Notes in respect of which the
relevant payment is then due.
6.3 OVERDUE INTEREST
The rates of interest payable in respect of any US$ Note which
has become due and repayable in full and which has not been
repaid shall be calculated at three-monthly intervals,
commencing on the expiry of the Interest Period during which the
US$ Note became due and repayable in accordance with the
provisions of Condition 4 except that no notices need be given
to US$ Noteholders, in relation to that interest.
6.4 RESTRICTIONS ON ENFORCEMENT
If any of the US$ Notes remain outstanding and are due and
payable otherwise than by reason of a default in payment of any
amount due on any US$ Notes, the Note Trustee must not vote
under the Security Trust Deed to, or otherwise direct the
Security Trustee to, enforce the Security Trust Deed or dispose
of the Mortgaged Property unless either:
(a) a sufficient amount would be realised to discharge in full
all amounts owing to the US$ Noteholders and any other
amounts payable by the Trustee ranking in priority to or
pari passu with the US$ Notes; or
(b) the Note Trustee is of the opinion, reached after
considering at any time and from time to time the advice of
a merchant bank or other financial adviser selected by the
Note Trustee (the cost of which advice shall be an expense
incurred by the Note Trustee under the Transaction
Documents), that the cash flow receivable by the Trustee
(or the Security Trustee under the Security Trust Deed)
will not (or that there is a significant risk that it will
not) be sufficient, having regard to any other relevant
actual, contingent or prospective liabilities of the
Trustee, to discharge in full in due course all the amounts
referred to in paragraph (i) relating to the Trust.
6.5 ACTION BY NOTEHOLDERS
Notwithstanding any other provision of this Deed, if the Note
Trustee, having become bound to take steps and/or proceed under
clause 6.1 and/or the Security Trust Deed, fails to do so within
a reasonable time and such failure is continuing, the US$
Noteholders may proceed directly against the
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Trustee but then only if and to the extent the US$ Noteholders
are able to do so under Australian law.
7. PROCEEDINGS
----------------------------------------------------------------------
7.1 ACTING ONLY ON DIRECTION
(a) Subject to paragraph (b), the Note Trustee may, but 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
US$ Notes, unless directed or requested to do so in writing
by the holders of at least 75% of the aggregate Invested
Amount of the US$ Notes and then only if the Note Trustee
is indemnified to its satisfaction against all actions,
proceedings, claims and demands to which it may render
itself liable and all costs, charges, damages and expenses
which it may incur by so doing.
(b) If an Extraordinary Resolution (as defined in the Security
Trust Deed) of Voting Mortgagees (as defined in the
Security Trust Deed) elects not to direct the Security
Trustee to enforce the Security Trust Deed, in
circumstances where the Security Trustee could enforce, the
Note Trustee must, at the direction of the US$ Noteholders,
direct the Security Trustee to enforce the Security Trust
Deed on behalf of the US$ Noteholders.
(c) The Note Trustee shall be protected with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of the
required aggregate Invested Amount of the US$ Notes in
accordance with this deed relating to the time, method and
place of conducting any proceeding for any remedy available
to, or exercising any trust or power conferred upon it,
under this deed.
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 US$ Note is entitled to proceed directly against the
Trustee to enforce the performance of any of the provisions of
the Security Trust Deed or of the US$ Notes (including the
Conditions), provided that if the Security Trustee having become
bound to take steps and/or to proceed under the Security Trust
Deed, fails to do so within a reasonable time and such failure
is continuing, the Note Trustee and/or US$ Noteholders (if
entitled under the Transaction Documents to act in place of the
Note Trustee) may proceed directly against the Trustee but then
only if and to the extent the US$ Noteholders are able to do so
under Australian law. The Security Trustee shall comply with all
directions given to it by the Note Trustee pursuant to any power
to give directions granted to the Note Trustee pursuant to this
deed or to the Security Trust Deed provided that the Security
Trustee has the power under the Security Trust
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Deed to take the action contemplated by the direction, and the
Security Trustee shall not be liable for all direct and indirect
costs, expenses, losses, damages, liabilities or actions arising
or resulting from any action or conduct undertaken or not taken
by the Security Trustee or its officers, employees or agents
including as a consequence of following those directions.
7.3 NOTE TRUSTEE ALONE ENTITLED TO ACT
Subject to clauses 6.5 and 7.2, only the Note Trustee may:
(a) direct the Security Trustee to enforce or not to enforce;
or
(b) enforce the provisions of this deed or of the US$ Notes
(including the Conditions),
and no US$ Noteholder is entitled to take any of the above
actions or to proceed directly against the Trustee to enforce
the performance of any of the provisions of this deed the US$
Notes (including the Conditions).
7.4 AVAILABLE AMOUNTS
For the purpose of Conditions 5(i) and 5(j) the Note Trustee
shall not be satisfied that the Trustee will be in a position to
discharge the liabilities referred to in those Conditions
unless, either:
(a) the Trustee will have available to it sufficient cash in
the Collection Account and sufficient Authorised
Investments which will mature on or before the relevant
Payment Date after making any other payments or provisions
having priority in order of application under the
applicable provisions of the Security Trust Deed; or
(b) the Trustee has entered into a legally binding contract
with an entity either whose long term unsecured and
unguaranteed debt is rated AA- by S&P or AA- by Fitch IBCA
or whose short term unsecured and unguaranteed debt
securities are rated A-1+ by S&P or F1+ by Fitch IBCA,
provided that in both cases its short term unsecured and
unguaranteed debt securities are ranked P-1 by Xxxxx'x, to
provide sufficient cash on or before the relevant Payment
Date to enable the Trustee to discharge the relevant
liabilities,
and in each circumstance the Manager or the Trustee has
certified to the Note Trustee that the requirements of clause
7.4(a) or (b) have been met and the Note Trustee shall be
entitled to rely on such certification.
7.5 NO OBLIGATION TO ENSURE COMPLIANCE
In giving any direction to the Security Trustee under this Deed
or the Security Trust Deed, the Note Trustee shall not be
obliged to ensure that the Security Trustee complies with such
direction and will not be liable for failure by the Security
Trustee so to comply.
7.6 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
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where expressly provided otherwise, have regard to the interests
of the US$ Noteholders.
8. NOTICE OF PAYMENT
----------------------------------------------------------------------
The Principal Paying Agent shall give notice to the US$
Noteholders in accordance with 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 and in any relevant
circumstance will certify to the Note Trustee that the
requirements of Clauses 7.1(a) and (b) of the Note Trust Deed
have been satisfied (and the Note Trustee shall be entitled to
rely upon such certification). Trust Those payments may be made
in accordance with Condition 6 (in the case of Definitive Notes)
or in the name of the nominee of the Clearing Agency by wire
transfer in immediately available funds to an account designated
by such nominee to the order of the registered holder of the US$
Note (in the case of any Book-Entry Note) and payment of those
amounts by the Note Trustee to the Principal Paying Agent for
that purpose shall be a good discharge 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 in good faith. The Note Trustee must not make any
investment that could have an adverse effect on the 50% risk
weighting attributed to the Notes by the Bank of England and the
Note Trustee need only account for interest equal to the highest
rate payable by it to an independent depositor in respect of
comparable deposits.
10. PARTIAL PAYMENTS
----------------------------------------------------------------------
In the case of Definitive Notes, on any payment of amounts
received by the Note Trustee under clause 16 of the Security
Trust Deed (other than the payment in full against surrender of
a Definitive Note) 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 the Trustee
certifying to the Note Trustee that an indemnity has been given
to the Trustee by the recipient of the payment as the Trustee
considers sufficient and the Note Trustee shall be entitled to
rely on such certification.
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11. COVENANTS BY THE TRUSTEE AND MANAGER
----------------------------------------------------------------------
Each of the Trustee and the Manager undertake severally to the
Note Trustee, on behalf of the US$ Noteholders, as follows in
relation to the Trust for so long as any of the US$ Notes remain
outstanding (except to the extent that the Note Trustee
otherwise consents in accordance with this Deed).
(a) (MASTER TRUST DEED COVENANTS) It will comply with its
covenants in the Master Trust Deed.
(b) (TRANSACTION DOCUMENTS)
(i) It will comply with its material obligations under
the Transaction Documents.
(ii) It will use reasonable endeavours (to the extent
that it is able to do so under the Master Trust
Deed) to procure that each other party to a
Transaction Document complies with and performs
its obligations under that Transaction Document.
(c) (INFORMATION) It will give to the Note Trustee a copy of
any information in its possession relating to the Trust as
soon as reasonably practicable in connection with the
exercise and performance of its powers and obligations
under this deed and which the Trustee or the Manager (as
the case may be) reasonably considers has a material
bearing on the interest of the US$ Noteholders.
(d) (NOTIFY EVENTS OF DEFAULT)
(i) It will promptly notify the Note Trustee if it has
knowledge or notice of or is aware of the
occurrence of an Event of Default, Trustee's
Default, Servicer Transfer Event, Title Perfection
Event or Manager's Default including full details
(to the extent known, without making any enquiry)
of that Event of Default, Trustee's Default,
Servicer Transfer Event, Title Perfection Event or
Manager's Default (as the case may be).
(ii) In addition to its obligations under sub-clause
item (d)(i) of this Clause 11, the Manager, on
behalf of the Trustee, will confirm to the Note
Trustee, on each anniversary of this deed:
(A) whether or not the Manager or the Trustee
is aware that any Event of Default has
occurred; and
(B) any other matter which is required to be
notified to the Note Trustee under the
Transaction Documents and which has not
previously been so notified.
(e) (MAINTENANCE OF OFFICE OR AGENCY) The Manager on behalf of
the Trustee will maintain in the Borough of Manhattan, The
City of New York [AND IN LONDON], [MBP TO CONFIRM WHETHER
STILL REQUIRED] an office or agency where US$ Notes may be
surrendered for registration of transfer or exchange, and
where notices and demands to or upon the Trustee in respect
of the US$ Notes and this deed may
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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 Manager will give prompt
written notice to the Note Trustee of the location, and of
any change in the location, of any such office or agency.
If at any time the 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.
(f) (CALCULATION AGENT) It will procure that, so long as any of
the US$ Notes remain outstanding, there will at all times
be a Calculation Agent.
(g) (CHANGE TO PAYING AGENTS OR CALCULATION AGENT) It will give
notice to the Noteholders in accordance with the Agency
Agreement and Condition 12 of:
(i) any appointment, resignation or removal of any
Paying Agent (other than the appointment of the
initial Principal Paying Agent) or Calculation
Agent;
(ii) any change to any Paying Agent's Paying Office (as
defined in the Agency Agreement); or
(iii) any change to the Calculation Agent's Specified
Office (as defined in the Agency Agreement).
(h) (NOTICES) It will promptly give to the Note Trustee, or
ensure that the Note Trustee receives for approval by the
Note Trustee, two copies of the form of every notice prior
to the notice being given to the US$ Noteholders in
accordance with Condition 12.
(i) (ANNUAL STATEMENT AS TO COMPLIANCE) The Trustee (or the
Manager on its behalf) will deliver to the Note Trustee,
within 120 days after the end of each fiscal year of the
Trust (commencing on 30 September 2001), 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.
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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.
(j) (OPINIONS AS TO TRUST ESTATE) On the Closing Date, the
Trustee (or the Manager on its behalf) shall furnish to the
Note Trustee an Opinion of Counsel (who may be of counsel
for the Trustee) either stating that in the opinion of such
counsel the Security Trust Deed and any other requisite
documents has been properly recorded and filed so as to
make effective the Security Interest intended to be created
by the Security Trust Deed, and reciting the details of
such action, or stating that in the opinion of such counsel
no such action is necessary to make such Security Interest
effective.
Within 120 days after the end of each fiscal year
commencing on 30 September 2001 the Trustee (or the Manager
on its behalf) shall furnish to the Note Trustee an Opinion
of Counsel (who may be of counsel for the Trustee) either
stating that in the opinion of such counsel such action has
been taken with respect to the recording, filing,
re-recording, and refiling of the Security Trust Deed and
any other requisite documents as is necessary to maintain
the Security Interest created by the Security Trust Deed,
and reciting the details of such action, or stating that in
the opinion of such counsel no such action is necessary to
maintain such Security Interest.
(k) (NOTEHOLDER REPORT)
(i) The Trustee (or the Manager on its behalf) shall
deliver to the Principal Paying Agent and the Note
Trustee on each Collection Determination Date the
Noteholders Report for the related Collection
Period, with written instructions for the Note
Trustee and the Principal Paying Agent to forward
the Noteholders Report to each US$ 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
and at the times specified in the Supplementary Terms Notice.
12.2 ADDITIONAL REMUNERATION
If the Note Trustee gives a notice under 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 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,
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the Trustee shall pay to the Note Trustee any additional remuneration
as they agree.
In the event of the Note Trustee, the Manager and the Trustee failing
to agree on such additional remuneration, such remuneration shall be
determined by a merchant or investment bank (acting as an expert and
not as an arbitrator) selected by the Note Trustee and approved by the
Trustee or, failing such approval, nominated (on the application of
the Note Trustee or the Trustee) by the President for the time being
of The Law Society of England and Wales (the expenses involved in such
nomination and the fees of such merchant or investment bank being
shared equally by the Trustee and the Note Trustee) and the
determination of any such merchant or investment bank shall be final
and binding upon the Note Trustee and the Trustee and shall be payable
by the Trustee to the Note Trustee.
12.3 COSTS, EXPENSES
(a) Subject to clause 34.8, the Trustee shall also reimburse,
pay or discharge all reasonable costs, charges, liabilities
and expenses and any stamp and other Taxes or duties paid
by the Note Trustee (or the US$ Noteholders acting under
clause 6.5 (as the case may be)) in connection with
properly undertaking its duties under the Transaction
Documents and in connection with any legal proceedings
brought by the Note Trustee (or the US$ Noteholders acting
under clause 6.5 (as the case may be)) to enforce any
obligation under this deed or the US$ Notes. The Note
Trustee shall not be reimbursed for any overhead or general
operating expenses which it incurs.
(b) Without prejudice to the right of indemnity by law given to
trustees, to the extent the Trustee is itself entitled to
be indemnified, and subject to clause 29, the Trustee
indemnifies the Note Trustee (or the US$ Noteholders acting
under clause 6.5 (as the case may be)) and every other
person properly appointed by it or any of them under this
deed from and against all liabilities, losses, damages,
costs, expenses, actions, proceedings, claims and demands
incurred by or made against it or him in the execution of
the trusts of this deed or of their powers or in respect of
any matter or thing done or omitted in any way relating to
this deed (other than arising from any fraud, negligence,
default or breach of trust by the Note Trustee or that
person).
12.4 OVERDUE RATE
All sums payable by the Trustee under clauses 12 and 34.8 shall be
payable by the Trustee on the next Payment Date in the order set out
in the Supplementary Terms Notice or (if applicable) the Security
Trust Deed and shall carry interest at the rate of LIBOR plus 2% from
the due date. Any amount payable shall carry interest at that rate
from the due date to the date of actual payment.
12.5 CONTINUING OBLIGATION
Unless otherwise specifically stated in any discharge relating to this
deed the provisions of this clause shall continue in full force and
effect
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notwithstanding such discharge and even if the Note Trustee has ceased
to be the Note Trustee for any reason including but not limited to
those contemplated in clause 23 it will be entitled to all rights
arising to it prior to it ceasing to be the Note Trustee.
13. NOTE TRUSTEE
----------------------------------------------------------------------
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 only to the extent required by the TIA.
13.2 DUTIES OF NOTE TRUSTEE
(a) If an Event of Default has occurred and is subsisting, 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.
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
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13.3 OBLIGATIONS OF NOTE TRUSTEE
The Note Trustee represents and warrants that it is duly qualified to
assume its obligations under this deed and has obtained all necessary
approvals required to perform its obligations under this deed.
13.4 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 US$ 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 US$ Note (including payments pursuant to
the mandatory redemption provisions of that US$ 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 US$ Noteholders.
13.5 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 US$ Notes, shall not be accountable for the
Trustee's use of the proceeds from the US$ 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 US$ Notes or in the US$ Notes.
(e) The Note Trustee may in relation to this deed act on the
advice or opinion of or any information obtained from any
lawyer, valuer, accountant, banker, broker, credit-rating
agency, lead manager or other expert whether obtained by
the Trustee, the Note Trustee, the Manager, the Servicer or
otherwise.
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
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(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
such 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 two Authorised Signatories of the Trustee or the Manager
(as the case may be) and the Note Trustee shall not be
bound in any such case to call for further evidence or be
responsible for any loss that may be occasioned by the Note
Trustee acting on that certificate.
(h) The Note Trustee is at liberty to hold or to place this
deed and any other documents relating to this deed in any
part of the world (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 except in the case of fraud, negligence
or breach of trust (in the case of the Security Trustee) or
fraud, negligence, default or breach of trust (in the case
of the Note Trustee) of that party, neither the Note
Trustee nor the Security Trustee shall be responsible for
any loss, expense or liability which may be suffered as a
result of any assets secured by the Security Trust Deed,
Mortgaged Property or any deed or documents of title
thereto, being uninsured or inadequately insured or being
held by or to the order of the Servicer or any of its
affiliates or by clearing organisations or their operators
or by any person on behalf of the Note Trustee if prudently
chosen in accordance with the Transaction Documents.
(i) The Note Trustee shall not be responsible for the
application of the proceeds of the issue of any of the US$
Notes by the Trustee or any moneys borrowed by the Trustee
under any Transaction Document or the exchange of any
Book-Entry Note for any other Book-Entry Note or Definitive
Note, as the case may be.
(j) Except as otherwise provided in this Deed or any other
Transaction Documents to which it is a party, the Note
Trustee shall not be bound to give notice to any person of
the execution of this deed or any of the Transaction
Documents or any transaction contemplated hereby or thereby
or to take any steps to ascertain whether any Event of
Default has happened and, until it has actual knowledge or
express notice to the contrary, the Note Trustee is
entitled to assume that no Event of Default has happened
and that the Trustee and each other party to any Relevant
Document is observing and performing all the obligations on
its part contained in the US$ 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.
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
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(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 US$ Noteholders) shall be conclusive
and binding on the US$ Noteholders but whenever the Note
Trustee is under the provisions of this deed or the
Transaction Documents bound to act at the request or
direction of the US$ 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 US$ Noteholder or any
Mortgagee, any information made available to the Note
Trustee by the Trustee or any other person in connection
with the trusts of this deed and no US$ 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, any other Transaction Document or required by
law) be converted at the rate or rates, in accordance with
the method and as at the date for the determination of the
rate of exchange, as may be agreed by the Note Trustee in
consultation with the Trustee and the Manager as relevant
and any rate, method and date so agreed shall be binding on
the Trustee, the US$ Noteholders.
(o) Subject to clauses 6.5 and 7.4, the Note Trustee may
certify in good faith whether or not any of the events set
out in paragraphs (b) to (e) of 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 US$
Noteholders and may certify, in relation to the event set
out in paragraph (a) of Condition 9 in relation to any
payment of interest on the US$ Notes that the Trustee had,
on the due date for payment of the amount of interest in
question, sufficient cash to pay, in accordance with the
provisions of the Supplementary Terms Notice or the
Security Trust Deed, all interest (after payment of all
sums which are permitted under the Supplementary Terms
Notice or the Security Trust Deed to be paid in priority to
or pari passu with them) and that certificate shall be
conclusive and binding upon the
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
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Trustee, the US$ Noteholders. The Note Trustee shall have
no liability to the Trustee, any US$ Noteholder or any
other person in relation to any such certificate or in
relation to any delay or omission in providing such
certificate. In giving any certificate relating to
paragraph (a) of 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 US$
Noteholders. The Trustee shall pay the Note Trustee
reasonable costs and expenses of providing the certificate
at the times specified in the Supplementary Terms Notice.
(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
(other than itself) contained in any Transaction Document
or other document entered into in connection with it and
shall assume its accuracy and correctness and (except with
respect to itself) the execution, legality, effectiveness,
adequacy, genuineness, validity or enforceability or
admissibility in evidence of that agreement or other
document or any security constituted by them, and the Note
Trustee may accept without enquiry, requisition or
objection all title as the Trustee may have to any of the
Mortgaged Property or as any other person may have to any
other security charged from time to time to the Note
Trustee and shall not be bound to investigate or make any
enquiry in the title of the Trustee to any of the Mortgaged
Property or the title of any other person to any other
security charged from time to time to the Note Trustee
whether or not any default or failure might be, or might
have been, discovered upon examination inquiry or
investigation and whether or not capable of remedy.
Notwithstanding the generality of the foregoing each US$
Noteholder is solely responsible for making its own
independent appraisal of and investigation into the Trust
and the US$ Notes and the Note Trustee shall not at any
time have any responsibility for the same and no US$
Noteholder 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 for delivery of
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
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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 US$ 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
Obligor under a Purchased Receivable or 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 a Mortgage in Australia or for any
related legal, administrative or other fees, costs and
expenses (including, but not limited to, any proper
disbursements and any goods and services tax). The Manager
will provide to the Note Trustee such information and the
Trustee will pay to the Note Trustee such costs as the Note
Trustee reasonably considers necessary to make these
determinations and, subject to clause 29, the Trustee
indemnifies the Note Trustee against any loss or damage
suffered as a result of the Note Trustee incurring such an
obligation.
(t) 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
insurance.
(u) 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
Account, from time to time however caused (including any
bank, broker, depository, warehouseman or other
intermediary or any clearing system or its operator acting
in accordance with or contrary to the terms of any of the
Transaction Documents or otherwise), unless that loss is
occasioned by the fraud, negligence, default or breach of
trust of the Note Trustee.
(v) The Note Trustee has no responsibility whatsoever to the
Trustee or any US$ 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.
(w) 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
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
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in the performance of any of its duties, or in the exercise
of any of its rights or powers, if it has grounds to
believe that repayment of those funds or adequate indemnity
against that risk or liability is not assured to it.
Without limitation nothing contained in this deed imposes
any obligation on the Note Trustee to make any further
advance to an Obligor or to borrow any moneys under a
Transaction Document or to maintain, protect or preserve
any moneys standing to the credit of the Collection
Account.
(x) The Note Trustee is not responsible (except as to itself)
for the genuineness, validity, effectiveness or suitability
of any of the Transaction Documents or any of the
Mortgages, Security Interests or other documents entered
into in connection with them or any Mortgage Insurance
Policy or any other document or any obligation or rights
created or purported to be created by them or under them or
any Security Interest or the priority constituted by or
purported to be constituted by or pursuant to that Security
Interest, nor shall it (except as to itself) be responsible
or liable to any person because of any invalidity of any
provision of those documents or the unenforceability of
those documents, whether arising from statute, law or
decision of any court and (without limitation) the Note
Trustee shall not be responsible for or have any duty to
make any investigation in respect of or in any way be
liable whatsoever for:
(i) the nature, status, creditworthiness or solvency of
any Obligor or any other person or entity who has at
any time provided any security or support whether by
way of guarantee, Security Interest or otherwise in
respect of any advance made to any Obligor;
(ii) the execution, legality, validity, adequacy,
admissibility in evidence or enforceability of any
Mortgage or Loan or any other document entered into
in connection with them;
(iii) the title, ownership, value, sufficiency or
existence of any Land, Mortgaged Property or any
Mortgage Insurance Policy;
(iv) the registration, filing, protection or perfection
of any Mortgage or the priority of the security
created under a Mortgage whether in respect of any
initial advance or any subsequent advance or any
other sums or liabilities;
(v) the scope or accuracy of any representations,
warranties or statements made by or on behalf of any
Obligor in any application for any advance or in any
Mortgage or Loan or in any document entered into in
connection with them;
(vi) the performance or observance by any Obligor or any
other person of any provisions of any Mortgage or
Loan or in any document entered into in connection
with them or the fulfilment or satisfaction of any
conditions contained in them or relating to them or
as to the existence or occurrence at any time of any
default, event of default or similar event contained
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
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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 Mortgages 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 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 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
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.
(y) The Note Trustee is not liable or responsible for any loss,
cost, damages, expenses, liabilities or inconvenience which
may result from anything done or omitted to be done by it
in accordance with the provisions of this deed, any other
Transaction Document or any other document or as a
consequence of or in connection with it being
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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.
(z) The Note Trustee shall be entitled to call for and rely on
a certificate or any letter of confirmation or explanation
reasonably believed by it to be genuine, of any Approved
Seller, the Servicer, the Trustee, the Manager, any Paying
Agent, the Calculation Agent, any Designated Rating Agency
or any other credit rating agency in respect of every
manner and circumstance for which a certificate is
expressly provided for under this deed or in respect of the
rating of the US$ Notes or the Conditions and the Note
Trustee is not bound in any such case to call for further
evidence or be responsible for any loss, liability, costs,
damages, expenses or inconvenience that may be occasioned
by its failing so to do.
(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 US$ Noteholders resulting from their
being for any purpose domiciled or resident in, or
otherwise connected with, or subject to, the jurisdiction
of any particular territory.
(bb) Except as otherwise provided in this deed or any other
Transaction Document, the Note Trustee shall have no
responsibility for the maintenance of any rating of the US$
Notes by a Designated Rating Agency or any other
credit-rating agency or any other person.
(cc) The Note Trustee shall be under no obligation to monitor or
supervise the functions of the Servicer from time to time
under the terms of the Servicing Agreement or any other
person under any other Transaction Document, and is
entitled, in the absence of actual knowledge of a breach of
duty or obligation, to assume that the Servicer is properly
performing its obligations in accordance with the
provisions of the Servicing Agreement or that any other
person is properly performing its obligations in accordance
with each other Transaction Document, as the case may be.
(dd) The Note Trustee acknowledges that the Manager is
responsible, under the Supplementary Terms Notice, for
calculating all amounts referred to in clause 5 of the
Supplementary Terms Notice (other than calculations
required to be made by the Calculation Agent under the
Agency Agreement) and the Note Trustee has no liability in
respect of these calculations other than as a result of the
fraud, negligence, default or breach of trust of the Note
Trustee.
(ee) The Note Trustee shall not be liable to the Trustee, or any
Noteholder by reason of having accepted as valid or not
having rejected any Definitive Note purporting to be such
and subsequently found to be forged or not authentic and
the Note Trustee may call for and shall be at liberty to
accept and place full reliance on as sufficient evidence of
the facts stated therein a certificate or letter of
confirmation certified as true and accurate and signed on
behalf of
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
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the Common Depository or any common depository for them or
any person as the Note Trustee reasonably considers
appropriate, or any form of record made by any of them to
the effect that at any particular time or through any
particular period any particular person is, was, or will
be, shown in its records as entitled to a particular number
of US$ Notes.
14. NOTE TRUSTEE'S LIABILITY
----------------------------------------------------------------------
Nothing in this deed shall exempt the Note Trustee from or indemnify
it against any liability for breach of trust or any liability in
respect of any fraud, negligence, default 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 US$ Noteholders think fit, provided that
appointment does not have an adverse effect on the ratings
of the US$ Notes.
(b) If the Note Trustee exercises reasonable care in the
selection of a delegate under paragraph (a), providing the
Note Trustee and the delegate are not related bodies
corporate (as defined in the Corporations Law), 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 and the Designated Rating
Agencies.
(c) Notwithstanding other provision in this clause 15, where
the Note Trustee delegates any power to a related body
corporate (as defined in the Corporations Law), the Note
Trustee shall be liable for all acts or omissions of the
delegate done or omitted whilst acting in its capacity as
such.
16. EMPLOYMENT OF AGENT BY NOTE TRUSTEE
----------------------------------------------------------------------
(a) 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 provided that
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the use of such an agent does not have an adverse effect on
the ratings of the US$ Notes. If the Note Trustee exercises
reasonable care in the selection of that agent and
providing the Note Trustee and the agent are not related
bodies corporate (as defined in the Corporations Law), 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.
(b) Notwithstanding other provision in this clause 16, where
the Note Trustee employs, under this clause 16, a related
body corporate (as defined in the Corporations Law) as
agent, the Note Trustee shall be liable for all acts or
omissions of the agent done or omitted whilst acting in its
capacity as such.
(c) Any trustee of this deed which is a lawyer, accountant,
broker or other person engaged in any profession or
business is entitled to charge and be paid all usual
professional and other charges for business transacted and
acts done by him or his firm in connection with the trusts
of this deed and also his reasonable charges in addition to
disbursements for all other work and business done and all
time spent by him or his firm in connection with matters
arising in connection with this deed. Those charges will be
for the account of the Note Trustee unless agreed
otherwise, who shall be reimbursed by the Trustee under
clause 12.
17. NOTE TRUSTEE CONTRACTING WITH TRUSTEE
----------------------------------------------------------------------
Neither the Note Trustee nor any director or officer of a corporation
acting as a trustee under this deed is by reason of its or their
fiduciary position only 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 US$ Notes or any of them, or any other
bonds, stocks, shares, debenture stock, debentures, notes or other
securities of the Trustee or any other party to any of the Transaction
Documents or any related person or body corporate or from accepting or
holding the trusteeship of any other trust deed constituting or
securing any other securities issued by or relating to the Trustee or
any other party to any of the Transaction Documents or any related
person or body corporate or any other office of profit under the
Trustee or any other party to any of the Transaction Documents or any
related person or body corporate and shall be entitled to retain and
shall not be in any way liable to account for any profit made or share
of brokerage or commission or remuneration or other benefit received
by them or in connection with any of those arrangements.
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
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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 US$
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 US$ Notes (including the Conditions)
or any other Transaction Document (as to which
evidence of a breach of one US$ Note shall be deemed
evidence of a breach of all US$ Notes); 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 US$ Notes
representing at least 75% of the aggregate Invested Amount
of the US$ Notes or by request under Condition 10(d). 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 US$ Noteholders if, but only if,
the Note Trustee so requires, shall be notified by the
Trustee to the US$ Noteholders in accordance with Condition
12 as soon as practicable.
19. AMENDMENT
----------------------------------------------------------------------
19.1 APPROVAL
The Note Trustee, the Manager and the Trustee may, following the
giving of not less than ten Business Days' prior 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 the proviso in clause 37.2 or 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;
--------------------------------------------------------------------------------
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
(b) in the opinion of the Note Trustee necessary to comply with
the provisions of any law or regulation or with the
requirements of any Government Agency;
(c) in the opinion of the Note Trustee appropriate or expedient
as a consequence of an amendment to any law or regulation
or altered requirements of any Government Agency
(including, without limitation, an alteration, addition or
modification which is in the opinion of the Note Trustee
appropriate or expedient as a consequence of the enactment
of a law or regulation or an amendment to any law or
regulation or ruling by the Commissioner or Deputy
Commissioner of Taxation or any governmental announcement
or statement, in any case which has or may have the effect
of altering the manner or basis of taxation of trusts
generally or of trusts similar to the Trust); or
(d) in the opinion of the Note Trustee not materially
prejudicial to the interests of the US$ Noteholders as a
whole,
and in the manner, and to the extent, permitted by the
Transaction Documents.
19.2 RESOLUTION OF US$ 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 US$ Noteholders as a whole or any class of US$
Noteholders, the Note Trustee, the Manager and the Trustee may
make that alteration, addition or modification only if
sanctioned in writing by holders of at least 75% of the
aggregate Invested Amount of the US$ Notes.
19.3 DISTRIBUTION OF AMENDMENTS
The Manager shall distribute to all US$ Noteholders and each
Designated Rating Agency a copy of any amendments made under
clause 19.1 or 19.2 under 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 US$
Noteholders.
19.5 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.
--------------------------------------------------------------------------------
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
20. US$ NOTEHOLDERS
----------------------------------------------------------------------
20.1 ABSOLUTE OWNER
(a) The Trustee, the Manager, the Security Trustee, the Note
Trustee and any Paying Agent may treat the registered
holders of any Definitive Note as the absolute owner of
that Definitive Note (whether or not that Definitive Note
is overdue and despite any notation or notice 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 Manager, the Security Trustee, the Note
Trustee or the Paying Agents is affected by any notice to
the contrary.
(b) So long as the US$ Notes, or any of them, are represented
by a Book-Entry Note, the Trustee, the Manager, the Note
Trustee and any Paying Agent may treat the person for the
time being shown in the records of the Clearing Agency as
the holder of any US$ Note as the absolute owner of that
US$ Note and the Trustee, the Manager, the Note Trustee and
the Paying Agents are not affected by any notice to the
contrary, but without prejudice to the entitlement of the
registered holder of the Book-Entry Note to be paid
principal and interest on the Book-Entry Note in accordance
with its terms. Such person shall have no claim directly
against the Trustee in respect of payment due on the US$
Notes for so long as the US$ 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) Any payments by the Trustee to the registered holder of a
Book Entry Note or to an owner of a US$ Note under this
clause will be a good discharge to the Trustee.
(d) All payments made to the owner of a US$ 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 US$ Notes.
(e) Any instalment of interest or principal, payable on any US$
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 US$ 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 US$ 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 US$ Note on a Payment Date or
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
Maturity Date (and except for the redemption for any US$
Note called for redemption pursuant to Condition 5 which
shall be payable as provided below.
(f) The principal of each US$ Note shall be payable on each
Payment Date and the Maturity Date as set forth in the
Conditions. The Principal Paying Agent shall notify the
person in whose name a US$ 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 US$ 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 US$ Note and shall
specify the place where such US$ Note may be presented and
surrendered for payment of such instalment. Notices in
connection with redemptions of US$ Notes shall be mailed to
US$ Noteholders as provided in clause 31.4.
20.2 CLEARING AGENCY CERTIFICATE
The Trustee, the 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.
21. CURRENCY INDEMNITY
----------------------------------------------------------------------
Subject to this deed including, without limitation, clause 29, the
Trustee indemnifies the Note Trustee and the US$ 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 US$ Noteholders under this deed or
the relevant US$ Notes by reason of any variation in the
rates of exchange between those used for the purposes of
calculating the amount due under a judgment or order in
respect of that payment, which amount is expressed in a
currency other than US$, and under which the Note Trustee,
the US$ Noteholders do not have an option to have that
judgment or order expressed in US$, and those prevailing at
the date of actual payment by the Trustee; and
(b) any deficiency arising or resulting from any variation in
rates of exchange between:
(i) the date (if any) as of which the non-US$ currency
equivalent of the US$ amounts due or contingently
due under this deed (other than this clause) or in
respect of the relevant US$
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
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$.
The amount of that deficiency shall not be reduced by any
variation in rates of exchange occurring between that final
date and the date of any distribution of assets in
connection with that bankruptcy, insolvency or liquidation.
(c) The indemnities in this clause are obligations of the
Trustee separate and independent from its obligations under
the US$ Notes and apply irrespective of any time or
indulgence granted by the Note Trustee or the US$
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 US$ Notes. Any deficiency will constitute a
loss suffered by the US$ 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, at the direction of the 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 US$ 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.
22.2 APPOINTMENT BY NOTE TRUSTEE
(a) The Note Trustee may, on 30 days prior written notice to
the Trustee and Manager, appoint any person established or
resident in any jurisdiction (whether a Trust Corporation
or not) to act either as a separate note trustee or as a
co-note trustee jointly with the Note Trustee:
(i) if the Note Trustee considers that appointment to be
in the interests of the US$ Noteholders;
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
(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
US$ 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 in accordance with
Condition 12.
(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 Manager on its behalf after informing the
Trustee of its intention to do so) may at any time terminate the
appointment of the Note Trustee by giving written notice to that
effect to each Designated Rating
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--------------------------------------------------------------------------------
Agency and the Note Trustee with effect immediately on that
notice, if any of the following occurs in relation to the Note
Trustee:
(a) an Insolvency Event has occurred in relation to the Note
Trustee;
(b) the Note Trustee has ceased its business;
(c) the Note Trustee fails to comply with any of its
obligations under any Transaction Document and such failure
has had or, if continued, will have, a Material Adverse
Effect (as determined by the Trustee), and, if capable of
remedy, the Note Trustee does not remedy that failure
within 14 days after the earlier of:
(i) the Note Trustee becoming aware of that failure; and
(ii) receipt by the Note Trustee of a written notice with
respect thereto from either the Trustee or the
Manager; or
(d) the Note Trustee fails to satisfy any obligation imposed on
it under the TIA with respect to the Trust or this deed or
comply with clause 23.7.
23.2 REMOVAL BY US$ NOTEHOLDERS
The US$ Noteholders may resolve by written consent of the
holders of at least 75% of the aggregate Invested Amount of the
US$ Notes to require the Trustee 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 Manager, the Security Trustee and each Designated
Rating Agency not less than 3 months written notice to that
effect which notice shall expire not less than 30 days before
nor 30 days after any due date for payment of the US$ 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 US$ 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. The Manager must assist the Note
Trustee to appoint a new note trustee of this deed. If the
Trustee fails to appoint a new Note Trustee within three months
from such retirement or removal, the
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--------------------------------------------------------------------------------
Note Trustee shall be entitled to appoint a new Note Trustee
which is a Trust Corporation and such appointment shall be
deemed to have been made under clause 22.2 of this Deed.
23.6 SUCCESSOR TO NOTE TRUSTEE
(a) On the execution by the Trustee, the Manager and any
successor Note Trustee of an instrument effecting the
appointment of that successor Note Trustee, that successor
Note Trustee shall, without any further act, deed or
conveyance, become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of the
predecessor Note Trustee with effect as if originally named
as Note Trustee in this deed and the Transaction Documents
and that predecessor Note Trustee, on payment to it of the
pro rata proportion of its fee and disbursements then
unpaid (if any), shall have no further liabilities under
this deed, except for any accrued liabilities arising from
or relating to any act or omission occurring prior to the
date on which the successor Note Trustee is appointed.
(b) Any corporation:
(i) into which the Note Trustee is merged;
(ii) with which the Note Trustee is consolidated;
(iii) resulting from any merger or consolidation to which
the Note Trustee is a party;
(iv) to which the Note Trustee sells or otherwise
transfers all or substantially all the assets of its
corporate trust business,
shall, on the date when that merger, conversion,
consolidation, sale or transfer becomes effective and to
the extent permitted by applicable law, become the
successor Note Trustee under this deed without the
execution or filing of any agreement or document or any
further act on the part of the parties to this deed, unless
otherwise required by the Trustee or the Manager, and after
that effective date all references in this deed to the Note
Trustee shall be references to that corporation.
(c) If no other person can be found to act as Note Trustee, the
Noteholders may elect a Note Trustee from among the holders
of the US$ Notes.
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
US$50,000,000 as set forth in its most recent published
annual report of condition.
(c) The Note Trustee shall comply with section 310(b) of the
TIA, provided that any indenture or indentures under which
other securities of the Trustee are outstanding shall be
excluded from the
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--------------------------------------------------------------------------------
operation of section 310(b)(1) of the TIA for the purposes
of paragraph (b) if the requirements for such exclusion set
out in section 310(b)(1) of the TIA are met.
24. NOTE TRUSTEE'S POWERS ADDITIONAL
----------------------------------------------------------------------
The powers conferred upon the Note Trustee by this deed shall be
in addition to any powers which may from time to time be vested
in the Note Trustee by the general law or as a holder of any of
the US$ Notes.
25. SEVERABILITY OF PROVISIONS
----------------------------------------------------------------------
Any provision of this deed which is prohibited or unenforceable
in any jurisdiction is ineffective as to that jurisdiction to
the extent of the prohibition or unenforceability. That does not
invalidate the remaining provisions of this deed nor affect the
validity or enforceability of that provision in any other
jurisdiction.
26. NOTICES
----------------------------------------------------------------------
26.1 GENERAL
All notices, requests, demands, consents, approvals, agreements
or other communications to or by a party to this deed:
(a) must be in writing;
(b) must be signed by an Authorised Signatory of the sender;
and
(c) 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
person shown in clause 26.2 or to any other address
of which the sender may have been notified by the
recipient;
(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 in accordance with this clause under this
clause 26,
but if delivery or receipt is on a day on which business is
not generally carried on in the place to which the
communication is sent or is later than 5.00 pm (local
time), it will be taken to have been duly given or made at
the commencement of business on the next day on which
business is generally carried on in that place. Any party
may by notice to each party change its address and
facsimile under this clause 26.1.
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
26.2 DETAILS
The address, facsimile and telex of each person to whom notices
may be sent at the date of this deed are as follows:
THE TRUSTEE
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
Level 0, 00 Xxxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxx Xxxxx 0000
[Tel: 0000 0000
Fax: 0000 0000
Attention: Manager, Securitisation
THE MANAGER
CRUSADE MANAGEMENT LIMITED
Level 11
00 Xxxxxx Xxxxxx
XXXXXX XXX 0000
XXXXXXXXX
Tel: 000 0000 0000
Fax: 000 0000 0000
Attention: Executive Manager, Securitisation
THE PRINCIPAL PAYING AGENT
BANKERS TRUST COMPANY
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxx Xxx Xxxx 00000
Tel: [*]
Fax: [*]
Attention: Issuer Services
THE CALCULATION AGENT
BANKERS TRUST COMPANY
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxx Xxx Xxxx 00000
Tel: [*]
Fax: [*]
Attention: Issuer Services
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--------------------------------------------------------------------------------
THE NOTE TRUSTEE
WILMINGTON TRUST COMPANY
Xxxxxx Square North
0000 Xxxxxx Xxxxxx
Wilmington Delaware 19890-0001
Tel: [*]
Fax: [*]
Attention: [*]
THE SECURITY TRUSTEE
P.T. LIMITED
Level 0
00 Xxxxxx Xxxxxx,
XXXXXX, XXX 0000
Tel: [*]
Fax: [*]
Attention: [*]
27. GOVERNING LAW AND JURISDICTION
----------------------------------------------------------------------
This deed and the Trust constituted under this deed are governed
by the law of New South Wales, Australia. The parties submit to
the non-exclusive jurisdiction of courts exercising jurisdiction
there.
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 30 of the Master Trust Deed applies to the obligations
and liabilities of the Trustee and the Manager under this deed.
29.2 LIABILITY OF TRUSTEE LIMITED TO ITS RIGHT TO INDEMNITY
(a) The Trustee enters into this Deed only in its capacity as
trustee of the Trust and in no other capacity (except where
the Transaction Documents provide otherwise). Subject to
paragraph (c) below, a liability arising under or in
connection with this Deed or the Trust can be enforced
against the Trustee only to the extent to which it can be
satisfied out of the assets and property of the Trust which
are available to satisfy the right of the Trustee to be
exonerated or
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
indemnified for the liability. This limitation of the
Trustee's liability applies despite any other provision of
this Deed and extends to all liabilities and obligations of
the Trustee in any way connected with any representation,
warranty, conduct, omission, agreement or transaction
related to this Deed or the Trust.
(b) Subject to paragraph (c) below, no person (including any
Relevant Party) may take action against the Trustee in any
capacity other than as trustee of the Trust or seek the
appointment of a receiver (except under the Security Trust
Deed), or a liquidator, an administrator or any similar
person to the Trustee or prove in any liquidation,
administration or arrangements of or affecting the Trustee.
(c) The provisions of this clause 29.2 shall not apply to any
obligation or liability of the Trustee to the extent that
it is not satisfied because under a Transaction Document or
by operation of law there is a reduction in the extent of
the Trustee's indemnification or exoneration out of the
Assets of the Trust as a result of the Trustee's fraud,
negligence, or Default.
(d) It is acknowledged that the Relevant Parties are
responsible under this Deed or the other Transaction
Documents for performing a variety of obligations relating
to the Trust. No act or omission of the Trustee (including
any related failure to satisfy its obligations under this
Deed) will be considered fraud, negligence or Default of
the Trustee for the purpose of paragraph (c) above to the
extent to which the act or omission was caused or
contributed to by any failure by any Relevant Party or any
person who has been delegated or appointed by the Trustee
in accordance with the Transaction Documents to fulfil its
obligations relating to the Trust or by any other act or
omission of a Relevant Party or any such person.
(e) In exercising their powers under the Transaction Documents,
each of the Trustee, the Security Trustee and the
Noteholders must ensure that no attorney, agent, delegate,
receiver or receiver and manager appointed by it in
accordance with this Deed or any other Transaction
Documents has authority to act on behalf of the Trustee in
a way which exposes the Trustee to any personal liability
and no act or omission of any such person will be
considered fraud, negligence, or Default of the Trustee for
the purpose of paragraph (c) above.
(f) In this clause, RELEVANT PARTIES means each of the Manager,
the Servicer, the Custodian, the Calculation Agent, each
Paying Agent, the Note Trustee and the provider of any
Support Facility.
(g) Nothing in this clause limits the obligations expressly
imposed on the Trustee under the Transaction Documents.
29.3 UNRESTRICTED REMEDIES
Nothing in clause 29.2 limits any party in:
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(a) obtaining an injunction or other order to restrain any
breach of this deed by any party;
(b) obtaining declaratory relief;
(c) in relation to its rights under the Security Trust Deed or
this Deed; or
(d) taking any legal action against the Trustee in its personal
capacity under clause 29.2(c).
29.4 RESTRICTED REMEDIES
Except as provided in clause 29.3, the Note Trustee shall not:
(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 the Note Trustee
waives its rights to make those applications and take those
proceedings.
30. SUCCESSOR TRUSTEE
----------------------------------------------------------------------
The Note Trustee shall do all things reasonably necessary of
itself to enable any successor Trustee appointed under clause 20
of the Master Trust Deed to become the Note Trustee under this
deed.
31. REIMBURSEMENT FOR THE COST OF INDEPENDENT ADVICE
----------------------------------------------------------------------
Where the Note Trustee is required to express an opinion or make
a determination or calculation under this deed or the other
Transaction Documents, the Note Trustee may appoint or engage
such independent advisors including any of the persons referred
to in clause 13(a) as the Note Trustee reasonably requires to
assist in the giving of that opinion or the making of that
determination or calculation and any reasonable costs and
expenses payable to those advisors will be reimbursed to the
Note Trustee by the Trustee or if another person is expressly
stated in the relevant provision in a Transaction Document, that
person.
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32. NO LIABILITY
----------------------------------------------------------------------
Without limitation the Note Trustee shall not be liable (subject
to the mandatory requirements of the TIA
0 for:
(a) any decline in the value or loss realised upon any sale or
other disposition made under the Security Trust Deed of any
Mortgaged Property (as defined in the Security Trust Deed)
or any other property charged to the Security Trustee by
any other person in respect of or relating to the
obligations of any person in respect of the Trustee or the
Secured Moneys (as defined in the Security Trust Deed) or
relating in any way to the Mortgaged Property;
(b) any decline or loss directly or indirectly arising from the
Note Trustee acting or failing to act as a consequence of
an opinion reached by it; and
(c) any loss, expense or liability which may be suffered as a
result of any assets secured by the Security Trust Deed,
the Mortgaged Property or any deeds or documents of title
thereto being uninsured or inadequately insured or being
held by or to the order of the Servicer or any of its
affiliates or by clearing organisations or their operator
or by any person on behalf of the Security Trustee or the
Note Trustee,
except for the fraud, negligence, default or breach of trust of
the Note Trustee.
33. INFORMATION MEMORANDUM
----------------------------------------------------------------------
The Note Trustee has no responsibility for any statement or
information in or omission from any information memorandum,
advertisement, circular or other document issued by or on behalf
of the Trustee or Manager, including in connection with the
issue of US$ Notes. Neither the Trustee nor the Manager may
publish or permit to be published any such document in
connection with the offer of US$ Notes or an invitation for
subscriptions for US$ Notes containing any statement which makes
reference to the Note Trustee without the prior written consent
of the Note Trustee, which consent must not be unreasonably
withheld. In considering whether to give its consent, the Note
Trustee is not required to take into account the interests of
the Noteholders.
34. NOTE TRUSTEE'S LIMITED LIABILITY
----------------------------------------------------------------------
34.1 RELIANCE ON CERTIFICATE
The Note Trustee shall not incur any liability as a result of
relying upon the authority, validity, due authorisation of, or
the accuracy of any information contained in any notice,
resolution, direction, consent, certificate, receipt, affidavit,
statement, valuation report or other document or communication
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(including any of the above submitted or provided by the
Manager, by the Trustee or by a US$ Noteholder) if the Note
Trustee is entitled, under clause 34.2 to assume such
authenticity, validity, due authorisation or accuracy.
In preparing any notice, certificate, advice or proposal the
Note Trustee shall be entitled to assume, unless it is actually
aware to the contrary, that each person under any Authorised
Investment, Support Facility, Receivable, Receivable Security,
Related Securities, other Transaction Document or any other
deed, agreement or arrangement incidental to any of the above or
to the Trust, will perform their obligations under those
documents in full by the due date and otherwise in accordance
with their terms.
34.2 NOTE TRUSTEE'S RELIANCE ON MANAGER, SECURITY TRUSTEE, TRUSTEE
OR SERVICER
(a) (AUTHORISED SIGNATORIES ARE SUFFICIENT EVIDENCE) Whenever
any certificate, notice, proposal, direction, instruction,
document or other communication is to be given to the Note
Trustee, the Note Trustee may assume:
(i) the authenticity and validity of any signature in
any such document and that such document has been
duly authorised; and
(ii) the accuracy of any information contained in any
such documents,
in either case unless the officers of the Note Trustee
responsible for the administration of the trust constituted
under this Deed (the NOTE TRUST) are actually aware to the
contrary.
(b) (NOTE TRUSTEE NOT LIABLE FOR LOSS) The Note Trustee shall
not be responsible for any loss arising from any forgery or
lack of authenticity or any act, neglect, mistake or
discrepancy of the Manager, the Security Trustee, Trustee
or the Servicer or any officer, employee, agent or delegate
of the Manager, the Security Trustee, the Trustee or the
Servicer in preparing any such document or in compiling,
verifying or calculating any matter or information
contained in any such document, if the officers of the Note
Trustee responsible for the administration of the Note
Trust are not actually aware of such forgery, lack of
authenticity or validity, act, neglect, mistake or
discrepancy.
34.3 COMPLIANCE WITH LAWS
The Note Trustee shall not incur any liability to anyone in
respect of any failure to perform or to do any act or thing
which by reason of any provision of any applicable present or
future law of any place or any applicable ordinance, rule,
regulation or by law or of any applicable decree, order or
judgment of any competent court or other tribunal, the Note
Trustee shall be prohibited from doing or performing.
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34.4 RELIANCE ON EXPERTS
The Note Trustee may rely on and act on the opinion or statement
or certificate or advice of or information obtained from the
Security Trustee, the Servicer, the Trustee, barristers or
solicitors (whether instructed by the Note Trustee or not),
bankers, accountants, brokers, valuers and other persons
believed by it in good faith to be expert or properly informed
in relation to the matters on which they are consulted and the
Note Trustee shall not be liable for anything done or suffered
by it in good faith in reliance on such opinion, statement,
certificate, advice or information except to the extent of
losses, costs, claims or damages caused by the Note Trustee's
fraud, negligence, default or breach of trust.
34.5 OVERSIGHTS OF OTHERS
Having regard to the limitations on the Note Trustee's duties,
powers, authorities and discretions under this Deed, the Note
Trustee shall not be responsible for any act, omission,
misconduct, mistake, oversight, error of judgment, forgetfulness
or want of prudence on the part of any person or agent appointed
by the Note Trustee or on whom the Note Trustee is entitled to
rely under this Deed (other than a Related Body Corporate),
attorney, banker, receiver, barrister, solicitor, agent or other
person acting as agent or adviser to the Note Trustee except to
the extent of losses, costs, claims or damages caused by the
Note Trustee's fraud, negligence, default or breach of trust,
provided that nothing in this Deed or any other Transaction
Document imposes any obligations on the Note Trustee to review
or supervise the performance by any other party of its
obligations.
34.6 POWERS, AUTHORITIES AND DISCRETIONS
Except as otherwise provided in this Deed and in the absence of
fraud, negligence, default or breach of trust, the Note Trustee
shall not be in any way responsible for any loss (whether
consequential or otherwise), costs, damages or inconvenience
that may result from the exercise or non-exercise of any powers,
authorities and discretions vested in it.
34.7 IMPOSSIBILITY OR IMPRACTICABILITY
If for any other reason it becomes impossible or impracticable
for it to carry out any or all of the provisions of this Deed or
any other Transaction Document, the Note Trustee shall not be
under any liability and, except to the extent of its own fraud,
negligence, default or breach of trust, nor shall it incur any
liability by reason of any error of law or any matter or thing
done or suffered or omitted to be done in good faith by it or
its officers, employees, agents or delegates.
34.8 LEGAL AND OTHER PROCEEDINGS
(a) (INDEMNITY FOR LEGAL COSTS) The Note Trustee or the US$
Noteholders acting under Clause 6.5 (as the case may be)
(each an INDEMNIFIED PARTY) shall be indemnified by the
Trustee (subject to clause 29) for all legal costs and
disbursements on a full indemnity
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--------------------------------------------------------------------------------
basis and all other cost, disbursements, outgoings and
expenses incurred by the Indemnified Party in connection
with:
(i) the enforcement or contemplated enforcement of, or
preservation of rights under;
(ii) without limiting the generality of paragraph (i)
above, the initiation, defence, carriage and
settlement of any action, suit, proceeding or
dispute in respect of; and
(iii) obtaining legal advice or opinions concerning or
relating to the interpretation or construction of,
this Deed or any other Transaction Document or otherwise
under or in respect of the Note Trust Deed provided that
the enforcement, contemplated enforcement or preservation
by the Note Trustee (as the case may be) of the rights
referred to in paragraph (i) or the court proceedings
referred to in paragraph (ii) (including in each case the
defence of any action, suit, proceeding or dispute brought
against the Indemnified Party), and the basis of incurring
any of those costs, disbursements, outgoings and expenses
by the Indemnified Party:
(iv) has been approved in advance by the written consent
of the holders of at least 75% of the aggregate
Invested Amount of the US$ Notes; or
(v) the Indemnified Party reasonably considers the
incurring of those costs, disbursements, outgoings
and expenses to be necessary.
(b) (DEFENCE OF PROCEEDINGS ALLEGING NEGLIGENCE ETC.) The
Indemnified Party shall be entitled to claim in respect of
the above indemnity from the Trustee for its expenses and
liabilities incurred in defending any action, suit,
proceeding or dispute in which fraud, negligence, default
or breach of trust is alleged or claimed against it, but on
the same being proved, accepted or admitted by it, it shall
immediately repay to the Trust the amount previously paid
by the Trustee to it in respect of that indemnity.
34.9 NO LIABILITY EXCEPT FOR NEGLIGENCE ETC.
Except to the extent caused by the fraud, negligence, default or
breach of trust on the Note Trustee's part or on the part of any
of its officers or employees, or any agents or delegate,
sub-agent, sub-delegate employed by the Note Trustee in
accordance with this Deed (and where this Deed provides that the
Note Trustee is liable for the acts or omissions of any such
person) to carry out any transactions contemplated by this Xxxx,
the Note Trustee shall not be liable for any losses, costs,
liabilities or claims arising from the failure to pay moneys on
the due date for payment to any US$ Noteholder or any other
person or for any loss howsoever caused in respect of any of the
Trust or to any US$ Noteholder or other person. The Note Trustee
is not obliged to take any action under this Deed unless it is
indemnified to its reasonable satisfaction against all actions,
proceedings,
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
claims and demands to which it may render itself liable and all
costs, charges, damages and expenses which it may incur by so
doing.
34.10 FURTHER LIMITATIONS ON NOTE TRUSTEE'S LIABILITY
Subject to clause 34.2, the Note Trustee shall not be liable:
(a) for any losses, costs, liabilities or expenses arising out
of the exercise or non-exercise of its discretion or for
any other act or omission on its part under this Deed, any
other Transaction Document or any other document except
where the exercise or non-exercise of any discretion, or
any act or omission, by the Note Trustee, or any of its
officers or employees, or any agent, delegate, sub-agent,
sub-delegate employed by the Note Trustee in accordance
with this Deed (and where this Deed provides that the Note
Trustee is liable for the acts or omissions of any such
person) to carry out any transactions contemplated by this
Deed, constitutes fraud, negligence, default or breach of
trust;
(b) for any losses, costs, damages or expenses caused by its
acting (in circumstances where this Deed requires it to act
or contemplates that it may so act) on any instruction or
direction given to it by:
(i) any US$ Noteholder under this Deed, any other
Transaction Document or any other document;
(ii) by any person under a Support Facility, Receivable
or Receivable Security,
except to the extent that it is caused by the fraud,
negligence, default or breach of trust of the Note Trustee,
or any of its officers or employees, or an agent or
delegate employed by the Note Trustee in accordance with
this Deed to carry out any transactions contemplated by
this Deed;
(c) for any Manager's Default, Servicer Transfer Event or Title
Perfection Event;
(d) without limiting the Note Trustee's obligations under the
Transaction Documents, for any act, omission or default of
the Servicer in relation to its servicing duties or its
obligations under the Servicing Agreement;
(e) without limiting the Note Trustee's obligations under the
Transaction Documents, for any act, omission or default of
the Custodian in relation to its custodial duties or its
obligations under the Custodian Agreement;
(f) without limiting the Note Trustee's obligations under the
Transaction Documents, for any act, omission or default of
the Security Trustee in relation to its obligations under
the Transaction Documents;
(g) without limiting the Note Trustee's obligations under the
Transaction Documents, for any act, omission or default of
a Paying Agent in relation to its obligations under the
Transaction Documents;
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(h) without limiting the Note Trustee's obligations under the
Transaction Documents, for any act, omission or default of
the Calculation Agent in relation to its obligations under
the Transaction Documents;
(i) for the failure of a person to carry out an agreement with
the Note Trustee in connection with the Trust; or
(j) for any losses, costs, liabilities or expenses caused by
the Note Trustee's failure to check any calculation,
information, document, form or list supplied or purported
to be supplied to it by the Manager, the Trustee, Security
Trustee or the Servicer,
except, in the case of paragraphs (c) to (j) (inclusive), to the
extent that it is caused by the fraud, negligence, default or
breach of trust of the Note Trustee.
Nothing in this clause 34.10 alone (but without limiting the
operation of any other clause of this Deed) shall imply a duty
on the Note Trustee to supervise the Manager or the Security
Trustee in the performance of the Manager's or the Security
Trustee's functions and duties, and the exercise by the Manager
or the Security Trustee of its discretions.
34.11 CONFLICTS
(a) (NOT LIABLE TO ACCOUNT) Note Trustee shall not be in any
way liable to account to any US$ Noteholder or any other
person for any profits or benefits (including any profit,
bank charges, commission, exchange, brokerage and fees)
made or derived under or in connection with any transaction
or contract specified in paragraph (b) below.
(b) (FIDUCIARY RELATIONSHIP) Note Trustee shall not by reason
of any fiduciary relationship be in any way precluded from
making any contracts or entering into any transactions with
any such person in the ordinary course of its business or
from undertaking any banking, financial, development,
agency or other services including any contract or
transaction in relation to the placing of or dealing with
any investment and the acceptance of any office or profit
or any contract of loan or deposits or other contract or
transaction which any person or company not being a party
to this Deed could or might have lawfully entered into if
not a party to this Deed. Note Trustee shall not be
accountable to any US$ Noteholder or any other person for
any profits arising from any such contracts, transactions
or offices.
34.12 INFORMATION
Except for notices and other documents and information (if any)
expressed to be required to be furnished to any person by the
Note Trustee under this Deed or any other Transaction Document,
the Note Trustee shall not have any duty or responsibility to
provide any person (including any US$ Noteholder) with any
credit or other information concerning the affairs, financial
condition or business of the Trust.
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34.13 INVESTIGATION BY NOTE TRUSTEE
Each Noteholder acknowledges that the Note Trustee has no duty,
and is under no obligation, to investigate whether a Manager's
Default, Servicer Transfer Event or Title Perfection Event has
occurred in relation to the Trust other than where it has actual
notice.
35. NOTEHOLDERS' LISTS AND REPORTS
----------------------------------------------------------------------
35.1 PROVISION OF INFORMATION
The Trustee (or the Manager on its behalf) will furnish or cause
to be furnished to the Note Trustee:
(a) every six months (with the first six month period
commencing on the Closing Date) (each such date being a
NOTICE DATE), a list, in such form as the Note Trustee may
reasonably require, of the names and addresses of the US$
Noteholders as of the Record Date immediately preceding
that Notice Date; and
(b) at such other times as the Note Trustee may request in
writing, within 30 days after receipt by the Manager with a
copy provided to the Trustee of any such request, a list of
similar form and content as of a date not more than 10 days
prior to the time such list is furnished,
provided that so long as:
(c) the Note Trustee is the Note Registrar; or
(d) the US$ Notes are Book-Entry Notes,
no such list shall be required to be furnished.
35.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTEHOLDERS
(a) The Note Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the US$
Noteholders contained in the most recent list (if any)
furnished to the Note Trustee as provided in clause 35.1
and if it acts as Note Registrar, the names and addresses
of US$ Noteholders received by the Note Trustee in its
capacity as Note Registrar. The Trustee may destroy any
list furnished to it as provided in such clause 35.1 upon
receipt of a new list so furnished.
(b) US$ Noteholders may communicate pursuant to section 312(b)
of the TIA with other US$ Noteholders with respect to their
rights under this Deed or under the US$ Notes.
(c) The Trustee, Note Trustee and Note Registrar shall have the
protection of section 312(c) of the TIA.
35.3 REPORTS BY NOTE TRUSTEE
If required by section 313(a) of the TIA, within 60 days after
each 30 June, beginning with 30 June 2001, the Note Trustee
shall mail to each US$
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--------------------------------------------------------------------------------
Noteholder, the Trustee and the Manager as required by section
313(c) of the TIA a brief report dated as of such date that
complies with section 313(a) of the TIA. The Note Trustee also
shall comply with section 313(b) of the TIA. A copy of each
report at the time of its mailing to US$ Noteholders shall be
filed by the Note Trustee with the Commission and each stock
exchange, if any, on which the US$ Notes are listed. The Manager
on behalf of the Trustee shall notify the Note Trustee if and
when the US$ Notes are listed on any stock exchange.
35.4 NOTICES TO US$ NOTEHOLDERS; WAIVER
Where this deed provides for notice to US$ 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 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 US$ Noteholders is given by mail, neither
the failure to mail such notice nor any defect in any notice so
mailed to any particular US$ Noteholder shall affect the
sufficiency of such notice with respect to other US$
Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this deed provides for notice in any manner, such notice
may be waived in writing by any person entitled to receive such
notice, either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by US$
Noteholders shall be filed with the Note Trustee but such filing
shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
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 US$
Noteholders when such notice is required to be given pursuant to
any provision of this deed, then any manner of giving such
notice as the Manager on behalf of the Trustee shall direct the
Note Trustee shall be deemed to be a sufficient giving of such
notice.
35.6 REPORTS BY TRUSTEE
The Trustee (or the Manager on its behalf) shall:
(a) file with the Note Trustee, within 15 days after the
Trustee is required to file the same with the Commission,
copies of the annual reports and of the information,
documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from 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
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--------------------------------------------------------------------------------
covenants of this deed as may be required from time to time
by such rules and regulations; and
(c) supply to the Note Trustee (and the Note Trustee shall
transmit by mail to all US$ Noteholders described in
section 313(c) of the TIA) such summaries of any
information, documents and reports required to be filed by
the Trustee pursuant to clauses (a) and (b) of this clause
35.5 as may be required by rules and regulations prescribed
from time to time by the Commission.
36. TRUST INDENTURE ACT - MISCELLANEOUS
----------------------------------------------------------------------
36.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC
(a) Upon any application or request by the Trustee or the
Manager to the Note Trustee to take any action under any
provision of this deed, the Trustee (or the Manager on its
behalf) shall furnish to the Note Trustee:
(i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this deed
relating to the proposed action have been complied
with;
(ii) an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any,
have been complied with; and
(iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting
the applicable requirements of section 314(c)(3) of
the TIA, except that, in the case of any such
application or request as to which the furnishing of
such documents is specifically required by any
provision of this deed, no additional certificate or
opinion need be furnished.
(b) (i) Prior to the deposit of any property or securities
with the Trustee that is to be made the basis for
the release of any property or securities subject to
the Security Interest created by the Security Trust
Deed, the Trustee (or the Manager on its behalf)
shall, in addition to any obligation imposed in
clause 36.1(a) or elsewhere in this deed, furnish to
the Note Trustee an Officer's Certificate certifying
or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of
such deposit) of the property or securities to be so
deposited.
(ii) Whenever any property or securities are to be
released from the Security Interest created by the
Security Trust Deed, the Trustee shall also furnish
to the Note Trustee an Officer's Certificate
certifying or stating the opinion of each person
signing such certificate as to the fair value
(within 90 days of such release) of the property or
securities proposed to be
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--------------------------------------------------------------------------------
released and stating that in the opinion of such
person the proposed release will not impair the
security under the Security Trust Deed in
contravention of the provisions of the Security
Trust Deed or this deed.
(iii) Whenever the Trustee is required to furnish to the
Note Trustee an Officer's Certificate certifying or
stating the opinion of any signer thereof as to the
matters described in paragraphs (i) and (ii), the
Trustee (or the Manager on its behalf) shall also
furnish to the Note Trustee an Independent
Certificate as to the same matters if the fair value
of the property or securities and of all other
property or securities deposited or released from
the Security Interest created by the Security Trust
Deed since the commencement of the then current
calendar year, as set forth in the certificate
required by clause (ii) and this clause (iii),
equals 10% or more of the Total Invested Amount of
the Notes, but such certificate need not be
furnished in the case of any release of property or
securities if the fair value thereof as set forth in
the related Officer's Certificate is less than
[US$25,000] or less than one percent of the then
Total Invested Amount of the Notes.
Notwithstanding any other provision of this clause,
the Trustee may:
(A) collect, liquidate, sell or otherwise dispose
of Receivables or other Assets of the Trust
as and to the extent permitted or required by
the Transaction Documents; and
(B) make or permit to be made cash payments out
of the Collection Account or the US$ Account
as and to the extent permitted or required by
the Transaction Documents.
(c) Every Officer's Certificate or opinion with respect to
compliance with a condition or covenant provided for in
this deed shall include:
(i) a statement that each signatory of such certificate
or opinion has read or has caused to be read such
covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the
statements or opinions contained in such certificate
or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination
or investigation as is necessary to enable such
signatory to express an informed opinion as to
whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each
such signatory such condition or covenant has been
complied with.
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36.2 UNDERTAKING FOR COSTS
(a) Subject to paragraph (b), all parties to this deed agree,
and each US$ Noteholder by such US$ 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 US$ Noteholder, or group
of US$ Noteholders in each case holding in the
aggregate more than 10% of the aggregate Invested
Amount of the US$ Notes; or
(iii) any suit instituted by any US$ Noteholder for the
enforcement of the payment of principal or interest
on any US$ Note on or after the respective due dates
expressed in such US$ Note and in this deed (or, in
the case of final redemption of a US$ Note, on or
after the Final Maturity Date).
36.3 EXCLUSION OF SECTION 316
(a) Section 316(a)(1) of the TIA is expressly excluded by this
deed.
(b) For the purposes of section 316(a)(2) of the TIA in
determining whether any US$ 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 US$ Notes which the
Note Trustee knows are so owned shall be so disregarded.
36.4 UNCONDITIONAL RIGHTS OF US$ NOTEHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST
Notwithstanding any other provisions in this deed, any US$
Noteholder shall have the right, which is absolute and
unconditional, to receive payment of the principal of and
interest, if any, on such US$ Note on or after the respective
due dates thereof expressed in such US$ Note or in this deed
(or, in the case of final redemption of a 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 US$ Noteholder, except to the extent
that the institution or prosecution thereof or the entry of
judgment therein would, under applicable law, result in the
surrender, impairment, waiver, or loss of the Security Interest
created by the Security Trust Deed upon any property subject to
such Security Interest.
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
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36.5 CONFLICT WITH TRUST INDENTURE ACT
If any provision hereof limits, qualifies or conflicts with
another provision hereof that is required to be included in this
indenture by any of the provisions of the 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.
37. CONSENT OF US$ NOTEHOLDERS
----------------------------------------------------------------------
37.1 GENERAL
Except as expressly provided in elsewhere in this deed or in
clause 37.2 below, any action that may be taken by the US$
Noteholders under this deed may be taken by registered holders
of not less than a majority of the aggregate Invested Amount of
US$ Notes.
37.2 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 US$ Notes, namely:
(i) modification of the date fixed for final maturity of
the US$ Notes;
(ii) reduction or cancellation of the principal payable
on the US$ Notes or any alteration of the date or
priority of redemption of the US$ Notes;
(iii) alteration of the amount of interest payable on any
class of the US$ Notes or modification of the method
of calculating the amount of interest payable on the
US$ Notes or modification of the date of payment of
or interest payable on the US$ Notes;
(iv) alteration of the currency in which payments under
the US$ Notes are to be made;
(v) altering the required percentage of aggregate
Invested Amount required to consent or take any
action of the US$ 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 US$ Notes, as
appropriate,
(i) power to sanction any compromise or arrangement
proposed to be made between the Trustee and the US$
Noteholders;
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
(ii) power to sanction any abrogation, modification,
compromise or arrangement in respect of the rights
of the US$ Noteholders against the Trustee or
against any of its property or against any other
person whether such rights shall arise under these
presents, any of the Notes or otherwise;
(iii) power to assent to any modification of the
provisions contained in these presents, the US$
Notes (including the Conditions) or the provisions
of any of the Relevant Documents which shall be
proposed by the Trustee or the Note Trustee;
(iv) power to give any authority or sanction which under
the provisions of these presents or the US$ Notes
(including the Conditions) is required to be given
by, in writing by holders of at least 75% of the
aggregate Invested Amount of the US$ Notes;
(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 US$ 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
US$ Notes;
(viii) power to sanction any scheme or proposal for the
exchange or sale of the US$ Notes, as the case may
be, for, or the conversion of the US$ Notes, into,
or the cancellation of the US$ Notes, in
consideration of shares, stock, notes, bonds'
debentures, debenture stock and/or other obligations
and/or securities of the Trustee or of any other
company formed or to be formed, or for or into or in
consideration of cash, or partly for or into or in
consideration of such shares, stock, notes, bonds,
debenture stock and/or other obligations and/or
securities as aforesaid and partly for or into or in
consideration of cash.
37.3 REQUIREMENT FOR WRITING
Except as expressly provided elsewhere in this deed, all notices
and consents from US$ Noteholders and US$ Note Owners shall be
delivered in writing. Any solicitation of such notices or
consent shall be in writing and be delivered by the Trustee,
Manager or Note Trustee, as applicable, seeking such notice or
consent form the US$ Noteholders or US$ Note Owners to the
Principal Paying Agent, who shall deliver the foregoing to the
appropriate US$ Noteholders or US$ Note Owners. With respect to
any solicitation of
--------------------------------------------------------------------------------
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
approval of US$ Noteholders, the record date for determining US$
Noteholders with respect to such solicitation shall be the date
upon which the Principal Paying Agent distributes such notices
or solicitation to the US$ Noteholders.
EXECUTED as a deed in New York.
Each attorney executing this deed states that he or she has no notice of,
alteration to, or revocation or suspension of, his or her power of attorney.
TRUSTEE
SIGNED on behalf of )
PERPETUAL TRUSTEES )
CONSOLIDATED LIMITED )
(ABN 81 004 029 841) )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
------------------------------------
Signature
---------------------------------------- ------------------------------------
Witness Print name
----------------------------------------
Print name
MANAGER
SIGNED, SEALED AND )
DELIVERED on behalf of )
CRUSADE MANAGEMENT )
LIMITED )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
------------------------------------
Signature
---------------------------------------- ------------------------------------
Witness Print name
----------------------------------------
Print name
--------------------------------------------------------------------------------
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
NOTE TRUSTEE
SIGNED, SEALED AND )
DELIVERED on behalf of )
WILMINGTON TRUST COMPANY )
)
by its attorney under the Power of )
Attorney dated )
in the presence of: )
-------------------------------------
Signature
---------------------------------------- -------------------------------------
Witness Print name
----------------------------------------
Print name
PRINCIPAL PAYING AGENT
SIGNED, SEALED AND )
DELIVERED on behalf of )
BANKERS TRUST COMPANY )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
-------------------------------------
Signature
---------------------------------------- -------------------------------------
Witness Print name
----------------------------------------
Print name
CALCULATION AGENT
SIGNED, SEALED AND )
DELIVERED on behalf of )
BANKERS TRUST COMPANY )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
--------------------------------------
Signature
--------------------------------------- --------------------------------------
Witness Print name
---------------------------------------
Print name
--------------------------------------------------------------------------------
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
SECURITY TRUSTEE
SIGNED, SEALED AND )
DELIVERED on behalf of )
P.T. LIMITED )
by its attorney under the Power of )
Attorney dated )
in the presence of: )
------------------------------------
Signature
----------------------------------------- ------------------------------------
Witness Print name
-----------------------------------------
Print name
--------------------------------------------------------------------------------
PAGE 63
NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
SCHEDULE 1
FORM 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.
PERPETUAL TRUSTEES CONSOLIDATED LIMITED
(ABN 81 004 029 841)
(a limited liability company incorporated under the law of Victoria, Australia)
in its capacity as trustee of the Crusade Global Trust No. 1 of 2001
BOOK-ENTRY NOTE
representing
US$[NUMBER]**
Class [A-1/A-2] Mortgage Backed Floating Rate Notes Due on the Final Maturity
Date falling in January 2032
This Note is a Class [A-1/A-2] Book-Entry Note without principal or interest in
respect of a duly authorised issue of Notes of Perpetual Trustees Consolidated
Limited in its capacity as trustee of the Crusade Global Trust No. 1 of 2001
(the "TRUST") (the "ISSUER"), designated as specified in the title above (the
"NOTES"), in an initial aggregate principal amount of
[ ]** (US$ [ ])**
and (a) constituted by a Master Trust Deed (the "MASTER TRUST DEED") dated 14
March 1998 between the Issuer, Xx.Xxxxxx Bank Limited and Crusade Management
Limited (the "MANAGER"), by a Supplementary Terms Notice (the "SUPPLEMENTARY
TERMS NOTICE") dated [*] 2001 between (among others) the Issuer, the Security
Trustee (as defined herein), Xx.Xxxxxx Custodial Pty Limited, [Bankers Trust
Company] (the note trustee for the time being referred to as the "NOTE TRUSTEE")
as trustee for the holders for the time being of the Class [A-1/A-2] Notes (the
"CLASS
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
[A-1/A-2] NOTEHOLDERS") and the Manager, and by the Conditions; (b) issued
subject to a Note Trust Deed dated [*] 2001 (the "NOTE TRUST DEED") between
(among others) the Issuer, the Manager and the Note Trustee; and (c) secured by
a Security Trust Deed (the "SECURITY TRUST DEED") dated [*] 2001 between the
Issuer, the Manager, the Note Trustee and P.T. Limited (ABN 67 004 454 666) (the
"SECURITY TRUSTEE"), which expression shall include its successor for the time
being as security trustee under the Security Trust Deed). References to the
Conditions (or to any particular numbered Condition) shall be to the Terms and
Conditions of the US$ Notes set out in Schedule 3 to the Note Trust Deed but
with the deletion of those provisions which are applicable only to US$ 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-1/A-2] Book-Entry Note will be exchangeable in whole at
the offices of the Principal Paying Agent at 0000 Xxxx Xxxxxx, Xxxxxx Place,
Santa Ana, California 92705, (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-1/A-2]Definitive Notes
and the Issuer shall execute and procure that the Principal Paying Agent
authenticates and delivers in full exchange for this Class [A-1/A-2] Book-Entry
Note, Class [A-1/A-2] Definitive Notes in aggregate principal amount equal to
the Amount of all Class [A-1/A-2] Notes represented by this Class [A-1/A-2]
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 US$
Book-Entry Note and subject to and in accordance with the Conditions and the
Note Trust Deed promises to pay to Cede & Co., or registered assigns of this
Class [A-1/A-2] 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-1/A-2] Book-Entry Note (or such part of that amount as may become
repayable under the Conditions, the Supplementary Terms Notice and the Note
Trust Deed) on such date(s) that principal sum (or any part of it) becomes
repayable in accordance with the Conditions, the Supplementary Terms Notice and
the Note Trust Deed and to pay interest in arrears on each Quarterly Payment
Date (as defined in Condition 4) on the Invested Amount (as defined in Condition
5(a)) of this Class [A-1/A-2] Book-Entry Note at rates determined in accordance
with Class [A-1/A-2] Condition 4 and all subject to and in accordance with the
certification requirements described in this Class [A-1/A-2] Book-Entry Note,
the Conditions, the Supplementary Terms Notice and the Note Trust Deed, which
shall be binding on the registered holder of this Class [A-1/A-2] Book-Entry
Note (as if references in the Conditions to the Notes and the Noteholders were
references to this Class [A-1/A-2] Book-Entry Note and the registered holder of
this Class [A-1/A-2] Book-Entry Note respectively and as if the same had been
set out in this Class [A-1/A-2] Book-Entry Note in full with all necessary
changes, except as otherwise provided in this Class [A-1/A-2] Book-Entry Note).
Payments of interest on this Class [A-1/A-2] Note due and payable on each
Quarterly Payment Date, together with the instalment of principal, if any, shall
be payable to the nominee of the Common Depository (initially, such nominee to
be
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PAGE 65
Cede & Co.). No payment of interest or principal may be made by the Issuer or
any Paying Agent in the Commonwealth of Australia or its possessions or into a
bank account or to an address in the Commonwealth of Australia. Each of the
persons appearing from time to time in the records of DTC, as the holder of a
beneficial interest in a Class [A-1/A-2] Note will be entitled to receive any
payment so made in respect of that Class [A-1/A-2] Note in accordance with the
respective rules and procedures of DTC. Such persons will have no claim directly
against the Issuer in respect of payments due on the Class [A-1/A-2] Notes which
must be made by the holder of this Class [A-1/A-2] Book-Entry Note, for so long
as this Class [A-1/A-2] Book-Entry Note is outstanding.
On any payment of principal and/or interest on the Class [A-1/A-2] Notes as set
out above details of that payment shall be endorsed by or on behalf of the
Issuer in the Note Register and, in the case of payments of principal, the
Invested Amount of the Class [A-1/A-2] Notes shall be reduced for all purposes
by the amount so paid and endorsed in the Note Register. Any such record shall
be prima facie evidence that the payment in question has been made.
If the Issuer is obliged to issue Definitive 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 US$ Definitive Notes to be issued on that exchange will be in registered
form each in the denomination of US$100,000 or integral multiples thereof. If
the Issuer fails to meet its obligations to issue US$ 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 Supplementary Terms Notice
and this US$ Book-Entry Note.
On an exchange of this Class [A-1/A-2] Book-Entry Note, this Class [A-1/A-2]
Book-Entry Note shall be surrendered to the Principal Paying Agent.
This Class [A-1/A-2] Book-Entry Note shall not become valid for any purpose
unless and until the Certificate of Authentication attached has been signed by
an Authorised Signatory of the Principal Paying Agent (as defined in the
Supplementary Terms Notice).
This Class [A-1/A-2] Book-Entry Note is governed by, and shall be construed in
accordance with, the laws of New South Wales, Australia.
IN WITNESS the Issuer has caused this Class [A-1/A-2]Book-Entry Note to be
signed [manually/in facsimile] by a person duly authorised on its behalf
Perpetual Trustees Consolidated Limited in its capacity as trustee of the
Crusade Global Trust No. 1 of 2001
By:
------------------------------------
Authorised Signatory
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
IMPORTANT NOTICE:
(a) The Notes do not represent deposits or other liabilities of Xx.Xxxxxx Bank
Limited, ABN 92 055 513 070 ("XX.XXXXXX") or associates of Xx.Xxxxxx.
(b) The holding of Notes is subject to investment risk, including possible
delays in repayment and loss of income and principal invested.
(c) Neither Xx.Xxxxxx, any associate of Xx.Xxxxxx, Perpetual Trustees
Consolidated Limited, the Security Trustee, the Note Trustee nor any Note
Manager in any way stands behind the capital value and/or performance of
the Notes or the assets of the Trust except to the limited extent provided
in the Transaction Documents for the Trust.
(d) None of Xx.Xxxxxx, Perpetual Trustees Consolidated Limited, the Custodian
(as defined in the Supplementary Terms Notice), the Servicer (as defined in
the Supplementary Terms Notice), the Manager, the Security Trustee, the
Note Trustee, the Standby Guarantor (as defined in the Supplementary Terms
Notice), Deutsche Bank AG in its capacity as standby provider of an
Interest Hedge (as defined in the Supplementary Terms Notice), the Currency
Swap Provider (as defined in the Supplementary Terms Notice) or any of the
Note Managers (as defined in the Supplementary Terms Notice) guarantees the
payment of interest or the repayment of principal due on the Notes.
(e) None of the obligations of the Issuer or the Manager are guaranteed in any
way by Xx.Xxxxxx or any associate of Xx.Xxxxxx or associate of Perpetual
Trustees Consolidated Limited.
(f) Without limiting the Conditions, the Issuer's liability to make payments in
respect of the Notes is limited to its right of indemnity from the assets
of the Trust from time to time available to make such payments under the
Master Trust Deed and Supplementary Terms Notice. All claims against the
Issuer in relation to the Notes can be enforced against the Issuer only to
the extent to which it can be satisfied out of the assets of the Trust out
of which the Issuer is actually indemnified for the liability except in the
case of (and to the extent of) any fraud, negligence or Default (as defined
in the Master Trust Deed) on the part of the Issuer.
(g) The Noteholder is required to accept any distribution of moneys under the
Security Trust Deed in full and final satisfaction of all moneys owing to
it, and any debt represented by any shortfall that exists after any such
final distribution is extinguished.
CERTIFICATE OF AUTHENTICATION
This Class [A-1/A-2] Book-Entry Note is to be authenticated by Bankers Trust
Company and until so authenticated shall not be valid for any purpose.
BANKERS TRUST COMPANY as Principal Paying Agent
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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
ASSIGNMENT
--------------------------------------------------------------------------------
Social Security or taxpayer I.D. or other identifying number of assignee
--------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
(name and address of assignee)
the within 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:
Dated:
---------------------- ----------------------------------
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the Note
Registrar, which requirements include
membership or participation in STAMP
or such other "signature guarantee
program" as may be determined by the
Note Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the 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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NOTE TRUST DEED XXXXX XXXXX & XXXXXXX
--------------------------------------------------------------------------------
SCHEDULE 2
INFORMATION TO BE CONTAINED IN NOTEHOLDER'S REPORT
--------------------------------------------------------------------------------
The following information is to be included in each 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 Payment Shortfall (if any);
(viii) 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;
(ix) the Liquidity Draw, if any, for that Collection Period together with
all Liquidity Draws made before the start of that Collection Period and
not repaid;
(x) the Gross Principal Collections;
(xi) the Principal Collections;
(xii) the Liquidity Shortfall (if any);
(xiii) the Remaining Liquidity Shortfall (if any);
(xiv) the Principal Charge Off (if any);
(xv) the Class A Bond Factor, the Class B Bond Factor and the Class C Bond
Factor;
(xvi) the Class A Charge Offs, the Class B Charge Offs, the Class C Charge
Offs and the Redraw Charge Offs (if any);
(xvii) all Carryover Charge Offs (if any);
(xviii) if required, the Threshold Rate at that Collection Determination Date;
(xix) the relevant Interest Rate, as at the first day of the related Interest
Period ending immediately after that Collection Determination Date as
calculated by the Agent Bank;
(xx) scheduled and unscheduled payments of principal on the Housing Loans;
(xxi) aggregate Balances Outstanding of Fixed Rate Housing Loans and
aggregate Balances Outstanding of Variable Rate Housing Loans; and
(xxii) delinquency statistics with respect to the Housing Loans.
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SCHEDULE 3 : TERMS AND CONDITIONS OF THE US$ NOTES
