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Perpetual Limited
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ME Portfolio Management Limited
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The Bank of New York
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[AIB/BNY Fund Management (Ireland) Limited]
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Perpetual Trustee Company Limited
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NOTE TRUST DEED -
SMHL GLOBAL FUND
[ ]-[ ]
Cross Reference Table(1)
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TRUST INDENTURE ACT SECTION CLAUSE
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310 (a)(1) 1.1, 39.5, 39.6, 39.9(a)
(a)(2) 39.1(d), 39.9(b)
(a)(3) 38.2
(a)(4) NA(2)
(a)(5) 39.9(d)
(b) 39.9(c)
(c) NA
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311 (a) 13.1
(b) 13.1
(c) NA
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312 (a) 51.1, 51.2(a)
(b) 51.2(b)
(c) 51.2(c)
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313 (a) 51.3
(b)(1) 51.3
(b)(2) 51.3
(c) 51.4
(d) 51.3
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314 (a)(1) 51.6(a)
(a)(2) 51.6(b)
(a)(3) 51.6(c)
(a)(4) 11.1(j)
(b) 11.1(k)
(c) 52.1(a)
(d) 52.1(b), (c), (d)
(e) 52.1(e)
(f) NA
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315 (a) 13.2(b)
(b) 13.4
(c) 13.2(a)
(d) 13.2(c), (d)
(e) 52.2
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316 (a)(1) 52.3(a)
(a)(2) 52.3(b)
(b) 52.4
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317 (a)(1) 7.7(a)
(a)(2) 7.7(b)
(b) 2.6, 11.1(p)
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318 52.19
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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.
Note Trust Deed SMHL Global Fund [ ]-[ ]
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TABLE OF CONTENTS
Clause Page
1 DEFINITIONS AND INTERPRETATION 2
1.1 Definitions and Interpretation 2
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1.2 Definitions in Master Trust Deed, Supplementary Bond Terms
Notice and Conditions 6
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1.3 Incorporation by reference 6
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1.4 Interpretation 6
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1.5 Determination, statement and certificate sufficient
evidence 7
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1.6 Document or agreement 7
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1.7 Transaction Document 7
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1.8 Issuer as trustee 7
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1.9 Knowledge of Issuer and Security Trustee 7
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1.10 Knowledge of the Note Trustee, Calculation Agent, Note
Registrar or Principal Paying Agent, [Irish Paying Agent,]
[Class A[ ] Irish Paying Agent,] other Paying Agents 8
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1.11 Appointment of the Note Trustee 8
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1.12 Duration of Trust 8
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1.13 Obligations of the Issuer 9
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1.14 Limitation of liability of Security Trustee 9
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1.15 Opinion of counsel 9
2 PAYMENTS ON NOTES 9
2.1 Principal amount 9
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2.2 Covenant to repay 9
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2.3 Deemed payment 10
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2.4 Issuer's covenant to Class A Offered Noteholders and the
Note Trustee 10
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2.5 Following Event of Default 11
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2.6 Requirements of Paying Agents 12
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2.7 Certification 12
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2.8 Determinations 13
3 FORM OF, ISSUE OF AND DUTIES AND TAXES ON, NOTES 13
3.1 Issue of Book-Entry Notes 13
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3.2 Form of Book-Entry Notes 13
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3.3 Definitive Notes - Class A[ ] Notes 15
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3.4 [Definitive Notes - Class A[ ] Notes] 16
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3.5 Stamp and Other Taxes 17
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3.6 Indemnity for non-issue 17
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3.7 Note Register and Note Xxxxxxxxx 00
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Note Trust Deed SMHL Global Fund [ ]-[ ]
4 COVENANT OF COMPLIANCE 19
5 CANCELLATION OF CLASS A OFFERED NOTES 19
5.1 Cancellation 19
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5.2 Records 20
6 ENFORCEMENT 20
6.1 Actions following Event of Default 20
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6.2 Evidence of default 20
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6.3 Note Trustee must receive indemnity 21
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6.4 Restrictions on enforcement 21
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6.5 Action by Noteholders 22
7 PROCEEDINGS 22
7.1 Acting only on direction 22
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7.2 Security Trustee acting 22
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7.3 Note Trustee alone entitled to act 23
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7.4 Available amounts 23
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7.5 No obligation to ensure compliance 23
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7.6 Conflict of interests 23
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7.7 Note Trustee may enforce 24
8 NOTICE OF PAYMENT 24
9 INVESTMENT BY NOTE TRUSTEE 24
10 PARTIAL PAYMENTS 25
11 COVENANTS BY THE ISSUER AND MANAGER 25
11.1 Undertakings 25
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11.2 Representations and warranties 29
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11.3 [Undertakings to Class A[ ] Irish Paying Agent] 29
12 REMUNERATION OF NOTE TRUSTEE, PRINCIPAL PAYING AGENT,
CALCULATION AGENT AND NOTE XXXXXXXXX 00
12.1 Fee 29
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12.2 Additional Remuneration 29
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12.3 Costs, expenses 30
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12.4 Overdue rate 31
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12.5 Continuing obligation 31
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12.6 Goods and services tax (GST) 31
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12.7 Currency and VAT 32
13 NOTE TRUSTEE 32
13.1 Preferential collection of claims against Note Trustee 32
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Note Trust Deed SMHL Global Fund [ ]-[ ]
13.2 Duties of Note Trustee 32
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13.3 Obligations of Note Trustee 33
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13.4 Notice of Defaults 33
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13.5 Rights of Note Trustee 33
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13.6 Limitation on Note Trustee's' liability 42
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13.7 Wilful default of the Note Trustee 42
14 NOTE TRUSTEE'S LIABILITY 43
15 DELEGATION BY NOTE TRUSTEE 43
16 EMPLOYMENT OF AGENT BY NOTE TRUSTEE 44
17 NOTE TRUSTEE CONTRACTING WITH ISSUER 44
18 APPOINTMENT OF PAYING AGENTS [AND] [THE CLASS A[ ] IRISH
PAYING AGENT] 45
18.1 Appointment of Paying Agents 45
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18.2 [Appointment of the Class A[ ] Irish Paying Agent] 46
19 PAYMENT 47
19.1 Payment by Issuer 47
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19.2 Confirmation 47
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19.3 Payments by Paying Agents 47
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19.4 Method of Payment - Book-Entry Notes 47
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19.5 Method of payment - Definitive Notes 48
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19.6 Late payment 48
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19.7 Notice of non-receipt 48
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19.8 Reimbursement 48
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19.9 Method of payment 49
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19.10 No fee 49
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19.11 Securitisation Fund 49
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Note Trust Deed SMHL Global Fund [ ]-[ ]
20 REPAYMENT 49
21 APPOINTMENT OF THE CALCULATION AGENT 50
22 DUTIES OF THE CALCULATION AGENT 50
23 NOTICE OF ANY WITHHOLDING OR DEDUCTION 51
24 EARLY REDEMPTION OF NOTES 51
25 PRO RATA REDEMPTION, PURCHASES AND CANCELLATION OF NOTES 52
26 NOTICES TO NOTEHOLDERS 53
27 DOCUMENTS AND FORMS 53
28 AUTHENTICATION 53
29 INDEMNITY 54
30 THE NOTE REGISTER 55
30.1 Appointment of Note Xxxxxxxxx 00
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30.2 Details to be kept on the Note Register 55
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30.3 Payments of Principal and Interest 56
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30.4 Place of keeping Register, copies and access 56
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30.5 Details on Note Register conclusive 56
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30.6 Alteration of details on Note Register 57
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30.7 Rectification of Note Register 57
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30.8 Correctness of Note Register 57
31 CHANGES OF NOTE XXXXXXXXX 00
31.1 Removal 57
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31.2 Resignation 57
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31.3 Limitation 57
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31.4 Appointment of new Note Xxxxxxxxx 00
32 GENERAL 58
32.1 Communications to Class A Offered Noteholders 58
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32.2 Intentionally deleted 58
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32.3 Identity 58
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32.4 No set-off 59
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32.5 Reliance 59
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32.6 Entitled to deal 60
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32.7 Consultation 60
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Note Trust Deed SMHL Global Fund [ ]-[ ]
32.8 Duties 60
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32.9 Income Tax Returns 61
33 CHANGES IN PAYING AGENTS[, CLASS A[ ] IRISH PAYING
AGENT] AND CALCULATION AGENT 61
33.1 Removal 61
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33.2 Resignation 62
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33.3 Limitation 62
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33.4 Delivery of amounts 63
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33.5 Successor to Principal Paying Agent 63
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33.6 Successor to Calculation Agent 64
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33.7 Notice to Noteholders 64
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33.8 Change in Paying Office or Specified Office 65
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33.9 [Class A[ ] Irish Paying Agent] 65
34 WAIVER 66
35 AMENDMENT 67
35.1 Approval 67
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35.2 Resolution of Class A Offered Noteholders 68
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35.3 Distribution of amendments 68
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35.4 Amendments binding 68
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35.5 No Rating Agency downgrade 68
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35.6 Conformity with TIA 68
36 CLASS A OFFERED NOTEHOLDERS 68
36.1 Absolute owner 68
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36.2 Clearing Agency Certificate 70
37 CURRENCY INDEMNITY 70
38 NEW NOTE TRUSTEES 71
38.1 Appointment by Issuer 71
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38.2 Appointment by Note Trustee 71
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38.3 Notice 72
39 NOTE TRUSTEE'S RETIREMENT AND REMOVAL 72
39.1 Removal by Issuer 72
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39.2 Removal by Class A Offered Noteholders 73
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39.3 Resignation 73
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39.4 Rating Agencies approval 73
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39.5 Trust Corporation 73
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39.6 Successor to Note Trustee 74
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39.7 Notice 75
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39.8 Retention of Lien 75
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Note Trust Deed SMHL Global Fund [ ]-[ ]
39.9 Eligibility; Disqualification 75
40 NOTE TRUSTEE'S POWERS ADDITIONAL 75
41 SEVERABILITY OF PROVISIONS 75
42 NOTICES 76
42.1 General 76
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42.2 Details 76
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42.3 Communication through Principal Paying Agent 78
43 GOVERNING LAW AND JURISDICTION 78
43.1 Governing law 78
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43.2 Jurisdiction 79
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43.3 Agent 79
44 COUNTERPARTS 79
45 LIMITED RECOURSE 79
45.1 General 79
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45.2 Liability of Issuer limited to its right to indemnity 79
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45.3 Unrestricted remedies 80
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45.4 Restricted remedies 81
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45.5 Wilful Default of the Issuer 81
46 SUCCESSOR TRUSTEE 82
47 REIMBURSEMENT FOR THE COST OF INDEPENDENT ADVICE 82
48 NO LIABILITY 82
49 PROSPECTUS 83
50 NOTE TRUSTEE'S LIMITED LIABILITY 83
50.1 Reliance on certificate 83
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50.2 Note Trustee's reliance on Manager, Security Trustee,
Issuer or Mortgage Manager 83
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50.3 Compliance with laws 84
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50.4 Reliance on experts 84
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50.5 Oversights of others 84
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50.6 Powers, authorities and discretions 85
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50.7 Impossibility or impracticability 85
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50.8 Legal and other proceedings 85
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50.9 No liability except for negligence etc. 86
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50.10 Further limitations on Note Trustee's liability 86
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Note Trust Deed SMHL Global Fund [ ]-[ ]
50.11 Conflicts 87
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50.12 Information 88
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50.13 Investigation by Note Trustee 88
51 NOTEHOLDERS' LISTS AND REPORTS, CONTINUING SECURITY,
RELEASES AND WAIVERS 88
51.1 Provision of information 88
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51.2 Preservation of Information; Communications to Noteholders 89
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51.3 Reports by Note Trustee 89
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51.4 Notices to Class A Offered Noteholders; Waiver 89
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51.5 Issuer's Liability not Affected 90
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51.6 Reports by Issuer 90
52 TRUST INDENTURE ACT; MISCELLANEOUS 91
52.1 Compliance Certificates and Opinions 91
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52.2 Undertaking for Costs 92
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52.3 Exclusions of Section 316 93
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52.4 Unconditional Rights of Class A Offered Noteholders to
Receive Principal and Interest 93
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52.5 Continuing Obligation 93
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52.6 No Merger 93
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52.7 Waiver 94
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52.8 Consents and Approvals 94
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52.9 Written Waiver, Consent and Approval 94
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52.10 Time of Essence 94
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52.11 Moratorium Legislation 94
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52.12 Binding on Each Signatory 94
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52.13 Counterparts 94
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52.14 Assignment 95
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52.15 Power of Attorney 95
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52.16 Certificate of Note Trustee 95
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52.17 Remedies cumulative 95
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52.18 Interest on Judgment 95
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52.19 Conflict with Trust Indenture Act 95
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52.20 Know your customer 95
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52.21 Compliance with Regulation AB 96
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52.22 Direction of claims by the Manager 101
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52.23 Direction of defence of claims 102
53 CONSENT OF CLASS A OFFERED NOTEHOLDERS 103
53.1 General 103
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53.2 Special Written Approvals 103
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53.3 Requirement for writing 104
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53.4 Meetings of Class A Offered Noteholders 105
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53.5 Entire Agreement 105
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Note Trust Deed SMHL Global Fund [ ]-[ ]
SCHEDULE 1 - FORM OF BOOK-ENTRY NOTE 108
SCHEDULE 2 - NOTEHOLDERS REPORTS 120
SCHEDULE 3 - MEETING PROCEDURES 123
SCHEDULE 4 - TERMS AND CONDITIONS OF THE CLASS A OFFERED NOTES 128
[SCHEDULE 5 - FORM OF CLASS A[ ] DEFINITIVE NOTES] 182
SCHEDULE 6 - REPORT ON ASSESSMENT OF COMPLIANCE WITH REGULATION AB
SERVICING CRITERIA 188
SCHEDULE 7 - SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF
COMPLIANCE 189
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Page viii
Note Trust Deed SMHL Global Fund [ ]-[ ]
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DATE [ ]
PARTIES
PERPETUAL LIMITED ABN 86 000 000 000 of Xxxxx 00, 000 Xxxx Xxxxxx, Xxxxxx,
Xxx Xxxxx Xxxxx in its capacity as trustee of the Securitisation Fund
(ISSUER)
ME PORTFOLIO MANAGEMENT LIMITED ABN 79 005 964 134 of Xxxxx 00, 000
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx (MANAGER)
THE BANK OF NEW YORK of 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx
Xxxx 00000, Xxxxxx Xxxxxx of America (NOTE TRUSTEE)
THE BANK OF NEW YORK of 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New
York 10286, United States of America (in the case of the Class A[ ] Notes)
[and] [of 00xx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx, X00 0XX, Xxxxxx Xxxxxxx (xx
the case of the Class A[ ] Notes)] (PRINCIPAL PAYING AGENT)
THE BANK OF NEW YORK of 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New
York 10286, United States of America (CALCULATION AGENT)
THE BANK OF NEW YORK of 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx
Xxxx 00000, Xxxxxx Xxxxxx of America (NOTE REGISTRAR)
PERPETUAL TRUSTEE COMPANY LIMITED ABN 42 000 001 007 of Xxxxx 00, 000 Xxxx
Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx in its capacity as security trustee under
the Security Trust Deed (SECURITY TRUSTEE)
[AIB/BNY FUND MANAGEMENT (IRELAND) LIMITED of Xxxxx Xxxxx, Xxxxx Xxxxxx,
Xxxxxx 0, Xxxxxxxx of Ireland ([IRISH PAYING Agent] [and] [CLASS A[ ]
IRISH PAYING AGENT])]
RECITALS
A. The Manager has directed the Issuer in accordance with the
Master Trust Deed to issue mortgage backed pass through
floating rate notes comprising US$[ ] Class A[ ] Notes due
[ ], [(euro)[ ] Class A[ ] Notes due [ ],]
[A$[ ] Class A[ ] Notes due [ ]] and A$[ ]
Class B Notes due [ ]. The Class A Offered 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 Class A
Offered Noteholders under this deed.
C. The Issuer proposes, at the direction of Manager, to appoint
the Principal Paying Agent as principal paying agent, the
Calculation Agent as its reference agent and the Note
Registrar as registrar, in each case in respect of the Class A
Offered Notes upon the terms contained in this deed.
D. The Issuer proposes, at the direction of Manager, to appoint
[the Irish Paying Agent as Irish paying agent in respect of
the Class A[ ] Notes,] [and] [the Class A[ ] Irish Paying
Agent as Irish paying agent in respect of the Class A[ ]
Notes,] upon the terms contained in this deed.
E. Each of the Note Trustee, the Principal Paying Agent, [the
Irish Paying Agent,] [the Class A[ ] Irish Paying Agent,] the
Calculation Agent and the
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Page 1
Note Trust Deed SMHL Global Fund [ ]-[ ]
Note Registrar has agreed to act in those respective
capacities upon the terms of this deed.
THIS DEED WITNESSES
that in consideration of, among other things, the mutual promises
contained in this deed, the parties agree:
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1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS AND INTERPRETATION
The following definitions apply unless the context requires
otherwise:
ASSOCIATE has the meaning ascribed to the expression "associate" in
the Corporations Act.
AUTHORISATION means any consent, licence, approval or other
authority or deemed consent, licence approval or other authority.
CHARGE has the same meaning as in the Security Trust Deed.
CHARGED PROPERTY has the same meaning as in the Security Trust Deed.
CLASS A NOTEOWNER means:
(a) a Class A[ ] Noteowner; [or]
(b) [a Class A[ ] Noteowner.]
CLASS A[ ] BOOK-ENTRY NOTE means a Class A[ ] Note issued in the
form or substantially the form set out in part A of schedule 1.
[CLASS A[ ] BOOK-ENTRY NOTE means a Class A[ ] Note issued in the
form or substantially the form set out in part B of schedule 1.]
CLASS A[ ] NOTEOWNER means, with respect to a Class A[ ] Book-Entry
Note, the person who is the beneficial owner of such Class A[ ]
Book-Entry Note, as reflected in the books of the Clearing Agency,
or in the books of the person maintaining an account with the
Clearing Agency or as an indirect participant, in each case in
accordance with the rules of the Clearing Agency.
[CLASS A[ ] NOTEOWNER means, with respect to a Class A[ ] Book-Entry
Note, the person who is the beneficial owner of such Class A[ ]
Book-Entry Note, as reflected in the books of the Clearing Agency,
or in the books of the person maintaining an account with the
Clearing Agency or as an indirect participant, in each case in
accordance with the rules of the Clearing Agency.]
CLASS A OFFERED NOTE means each Class A[ ] Note [and] [each Class A[
] Note].
CLASS A OFFERED NOTEHOLDER means a Noteholder of a Class A Offered
Note.
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 a Clearing Agency.
COMMISSION has the meaning given to it in the Supplementary Bond
Terms Notice.
CORPORATE TRUST OFFICE means the principal office of the Note
Trustee at which
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Page 2
Note Trust Deed SMHL Global Fund [ ]-[ ]
at any particular time its corporate trust business is administered,
which at the date of the execution of this deed is 000 Xxxxxxx
Xxxxxx, Xxxxx 21 West, New York, New York 10286, Global Structured
Products Unit or at such other address as the Note Trustee may
designate by notice to the Manager, Noteholders and the Issuer or
the principal corporate trust office of any successor Note Trustee.
DEFINITIVE NOTE means:
(a) a Class A[ ] Definitive Note issued pursuant to clause 3.3 of
this deed[; or]
(b) [a Class A[ ] Definitive Note issued pursuant to clause 3.4 of
this deed.]
EU TAX DIRECTIVE means the European Union Council Directive
2003/48/EC on the taxation of savings income in the form of interest
payments which was adopted on 3 June 2003, or any law or regulation
implementing or complying with, or introduced to conform with such
directive.
EVENT OF DEFAULT means, in respect of a Class A Note, any of the
events described in Condition 9.
EXCHANGE ACT means the Securities Exchange Act of 1934 of the United
States of America, as amended.
INDEPENDENT means, in relation to a person, that the person:
(a) is independent of the Issuer, the Manager, the Mortgage
Manager and any of their Associates;
(b) does not have any direct financial interest or any material
indirect financial interest (other than less than 5% of the
outstanding amount of any publicly traded security) in any
person referred to in paragraph (a); and
(c) is not an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions of
any person referred to in paragraph (a).
INDEPENDENT CERTIFICATE means, in relation to any person, a
certificate or opinion from that person where that person must be
Independent, which opinion or certificate states that the signer has
read the definition of Independent in this deed and that the signer
is Independent within the meaning of that definition.
INSOLVENCY EVENT has the same meaning as the defined term "Event of
Insolvency" in the Master Trust Deed.
MASTER TRUST DEED means the Master Trust Deed for the Superannuation
Members' Home Loans Trusts dated 4 July 1994 between the Issuer, as
Trustee, and the Manager, as amended and restated from time to time.
MATERIAL ADVERSE EFFECT means a material adverse effect on the
ability of the Issuer to perform its payment obligations under this
deed and other Transaction Documents or, as the context may require,
a material adverse effect on the ability of the Note Trustee to
perform its obligations under this deed.
NOTE DEPOSITORY AGREEMENT means the agreement entitled "Letter of
Representations" among the Issuer, Note Trustee (as Agent) and The
Depository Trust Company, as the initial Clearing Agency, dated as
of the Closing Date, relating to the Class A[ ] Notes, as the same
may be amended or supplemented from time to time.
NOTE TRUST means the trust constituted under and by this deed.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
NOTEHOLDERS REPORT means the report to be delivered by the Manager,
on behalf of the Issuer, in accordance with clause 11.1(m)
containing the information set out in Schedule 2.
OFFICER'S CERTIFICATE means a certificate signed by any Authorised
Signatory of the Issuer or the Manager (as appropriate) on behalf of
the Issuer, 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 Issuer or the Manager on
behalf of the Issuer and who shall be satisfactory to the Issuer or
the Note Trustee, as applicable, and which opinion or opinions shall
be addressed to the Issuer or the Note Trustee, as applicable, and
shall be in form and substance satisfactory to the Issuer and the
Note Trustee, as applicable.
PAYING AGENT means, where the context permits:
(a) the Principal Paying Agent initially appointed as principal
paying agent by the Issuer under this deed and any successor
from time to time under this deed; [or]
(b) [the Irish Paying Agent initially appointed as Irish paying
agent by the Issuer under this deed and any successor from
time to time under this deed; or]
(c) any institution 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 Issuer as
paying agent in relation to the Notes, in each case (except in
the case of the initial Principal Paying Agent [or the initial
Irish Paying Agent]) where notice of the appointment has been
given to the Noteholders under this deed and in accordance
with Condition 12.
PAYING OFFICE means, in relation to a Paying Agent, the office of
the Paying Agent specified in the Class A Offered Notes or this deed
as the office at which payments in respect of the Class A Offered
Notes will be made as changed from time to time in accordance with
this deed and:
(a) in respect of the Principal Paying Agent and the Class A[ ]
Notes - its office at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New
York, New York, United States of America;
(b) [in respect of the Principal Paying Agent and the Class A[ ]
Notes - its office at 00xx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx, X00
0XX, Xxxxxx Xxxxxxx;]
(c) [in respect of the Irish Paying Agent and the Class A[ ] Notes
- its office at Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx 0, Xxxxxxxx
of Ireland;] [and]
(d) [in respect of the Class A[ ] Irish Paying Agent and the Class
A[ ] Notes - its office at Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx
0, Xxxxxxxx of Ireland.]
PERSON means any individual, corporation, limited liability company,
estate, partnership, joint venture, association, joint stock
company, trust (including any beneficiary thereof), unincorporated
organisation or government or any agency or political subdivision
thereof.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
RECORD DATE means:
(a) with respect to the Payment Date of any Book Entry Note, the
close of business on the Banking Day immediately preceding
that Payment Date; and
(b) with respect to the Payment Date for any Definitive Note, the
last day of the calendar month before that Payment Date.
REGULATION AB has the meaning given to it in the Supplementary Bond
Terms Notice.
RELEVANT CLASS A CURRENCY means:
(a) in respect of the Class A[ ] Notes - US$[; and]
(b) [in respect of the Class A[ ] Notes - (euro)].
RESPONSIBLE OFFICER means with respect to the Note Trustee, any of
its officers, including any Vice President, Assistant Vice
President, Assistant Treasurer, or any other of its officers
customarily performing functions similar to those performed by any
of them and, with respect to a particular matter, any other officer
to whom such matter is referred because of such officer's knowledge
of and familiarity with the particular subject.
SECURITIES ACT means the Securities Act of 1933 of the United States
of America, as amended.
SECURITISATION FUND means the Securitisation Fund established under
the Master Trust Deed known as SMHL Global Fund [ ]-[ ].
SPECIFIED OFFICE means:
(a) in relation to the Calculation Agent, the office of the
Calculation Agent specified under this deed as the office at
which the Calculation Agent will carry out its duties under
this deed; and
(b) in relation to the Note Registrar, the office of the Note
Registrar specified under this deed as the office at which the
Note Registrar will carry out its duties under this deed.
SUPPLEMENTARY BOND TERMS NOTICE means the document entitled
"Supplementary Bond Terms Notice: SMHL Global Fund [ ]-[ ] -
Class A Notes and Class B Notes" dated on or about the date of this
deed between the Issuer, the Manager, the Note Trustee and the
Security Trustee in respect of the Securitisation Fund.
TIA means the Trust Indenture Act of 1939 of the United States of
America, as amended.
TRUST ACCOUNT means the US$ Account, the Euro Account or any other
account maintained by or on behalf of the Issuer in relation to the
Securitisation Fund.
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 The Bank
of New York for so long as it complies with such section.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
1.2 DEFINITIONS IN MASTER TRUST DEED, SUPPLEMENTARY BOND TERMS NOTICE
AND CONDITIONS
(a) Subject to clause 1.1 and the Recitals, terms and expressions
which are defined in the Master Trust Deed (as amended by the
Supplementary Bond Terms Notice), the Supplementary Bond 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
Bond 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 Class A[ ] Notes;
INDENTURE SECURITY HOLDER means a Class A[ ] Noteholder;
INDENTURE TO BE QUALIFIED means the Note Trust Deed;
INDENTURE TRUSTEE OR INSTITUTIONAL TRUSTEE means the Note Trustee;
and
OBLIGOR on the indenture securities means the Issuer with respect to
the Class A[ ] Notes.
Any other term which is used in this deed in respect of a section or
provision of the TIA and which is defined in the TIA, by reference
to another statute or defined by or in any rule of or issued by the
Commission, will have the meaning assigned to them by such
definitions.
1.4 INTERPRETATION
Clause 1.2 of the Master Trust Deed applies to this deed as if set
out in full and:
(a) a reference to an asset includes any real or personal, present
or future, tangible or intangible property or asset and any
right, interest, revenue or benefit in, under or derived from
the property or asset;
(b) an Event of Default subsists until it has been cured or 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
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(d) all references to costs or charges or expenses include any
goods and services tax, 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 ISSUER AS TRUSTEE
(a) In this deed, except where provided to the contrary:
(1) a reference to the Issuer is a reference to the Issuer
in its capacity as trustee of the Securitisation Fund
only, and in no other capacity; and
(2) a reference to the Security Trustee is a reference to
the Security Trustee in its capacity as security trustee
under the Security Trust Deed only, and in no other
capacity; and
(3) a reference to the assets, business, property or
undertaking of the Issuer or the Security Trustee is a
reference to the assets, business, property or
undertaking of the Issuer or the Security Trustee
respectively only in the capacity described in
paragraphs (1) and (2) above.
(b) The rights and obligations of the parties under this deed
relate only to the Securitisation Fund and do not relate to
any other Fund (as defined in the Master Trust Deed).
1.9 KNOWLEDGE OF ISSUER AND SECURITY TRUSTEE
In relation to the Securitisation Fund, the Issuer and the Security
Trustee will only be considered to have knowledge, actual knowledge
or notice of, or be aware of, any matter or thing if the Issuer or
the Security Trustee (as the case may be) has
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knowledge, notice or awareness of that matter or thing by virtue of
the actual notice or awareness of the officers or employees of the
Issuer or the Security Trustee (as the case may be) who have day to
day responsibility for the administration of the Securitisation
Fund.
1.10 KNOWLEDGE OF THE NOTE TRUSTEE, CALCULATION AGENT, NOTE REGISTRAR OR
PRINCIPAL PAYING AGENT, [IRISH PAYING AGENT,] [CLASS A[ ] IRISH
PAYING AGENT,] OTHER PAYING AGENTS
In relation to the Securitisation Fund, the Note Trustee, the
Calculation Agent, the Note Registrar, the Principal Paying Agent,
[the Irish Paying Agent,] [the Class A[ ] Irish Paying Agent] and
any other Paying Agent will only be considered to have knowledge or
notice of, or be aware of, any matter or thing if the Note Trustee,
Calculation Agent, Note Registrar, Principal Paying Agent, [Irish
Paying Agent,] [Class A[ ] Irish Paying Agent] or other Paying
Agents (as the case may be) 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, Calculation Agent,
Note Registrar, Principal Paying Agent, [Irish Paying Agent,] [the
Class A[ ] Irish Paying Agent] or other Paying Agents (as the case
may be) who have day to day responsibility for the administration of
the Note Trust, or other duties of the relevant party constituted by
this deed.
1.11 APPOINTMENT OF THE NOTE TRUSTEE
The Note Trustee:
(a) is appointed to act as trustee on behalf of the Class A
Offered Noteholders on the terms and conditions of this deed;
and
(b) acknowledges and declares that it:
(1) holds the sum of US$10.00 received on the date of this
deed;
(2) will hold the benefit of the obligations of the Issuer
under this deed; and
(3) will hold the benefit of the covenants in clause 2.2 and
clause 4(c) and all other rights of the Class A Offered
Noteholders under the Class A Offered Notes,
in each case, on trust for each Class A Offered Noteholder, in
accordance with the terms and conditions of this deed.
1.12 DURATION OF TRUST
The trust established pursuant to this deed shall commence on the
date hereof and shall terminate on the first to occur of:
(a) the date on which the Issuer has satisfied in full its
obligations to the Class A Offered Noteholders and all Class A
Offered Notes have been cancelled or redeemed; and
(b) the 80th anniversary of the date of this deed.
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1.13 OBLIGATIONS OF THE ISSUER
(a) The Issuer 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 Issuer under this deed.
(b) Where the Manager is empowered to act on behalf of the Issuer,
the Manager undertakes to the Issuer that it will duly and
punctually perform, on behalf of the Issuer, those
obligations, imposed on the Issuer in accordance with the
terms of the relevant clause.
1.14 LIMITATION OF LIABILITY OF SECURITY TRUSTEE
(a) Notwithstanding any other provision of this deed, the Security
Trustee will have no liability under or in connection with
this deed or any other Transaction Document other than to the
extent to which the liability is able to be satisfied out of
the property from which the Security Trustee is actually
indemnified for the liability.
(b) This limitation will not apply to a liability of the Security
Trustee to the extent that it is not satisfied because, under
this deed, any other Transaction Document or by operation of
laws, there is a reduction in the extent of the Security
Trustee's indemnification as a result of the Security
Trustee's fraud, negligence or wilful default.
(c) Nothing in this clause or any similar provision in any other
Transaction Document limits or adversely affects the powers of
the Security Trustee, any Receiver or attorney in respect of
the Charge as defined in the Security Trust Deed or the
Charged Property (as defined in the Security Trust Deed).
1.15 OPINION OF COUNSEL
For the purposes of this deed, the Issuer may where necessary seek,
and rely conclusively on, any Opinion of Counsel on any matters
relating to or connected with the TIA. Where the Issuer 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 Issuer in relation to the Securitisation
Fund.
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2 PAYMENTS ON NOTES
2.1 PRINCIPAL AMOUNT
(a) The aggregate principal amount of the Class A[ ] Notes is
limited to US$[ ].
(b) [The aggregate principal amount of the Class A[ ] Notes is
limited to (euro)[ ].]
2.2 COVENANT TO REPAY
(a) The Issuer covenants that the Issuer will, in accordance with
the terms of any Class A Offered Notes (including the
Conditions) and the Transaction Documents (and subject to the
terms of the Transaction Documents and
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Note Trust Deed SMHL Global Fund [ ]-[ ]
the Conditions, including, without limitation, clauses 19 and
45 of this deed and Condition 5) at the direction of the
Manager on:
(1) the Final Maturity Date of the Class A Offered Notes; or
(2) each earlier date as those Class A Offered 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 the
Relevant Class A Currency in New York (in the case of the
Class A[ ] Notes) [or London (in the case of the Class A[ ]
Notes)], for immediate value the principal amount of those
Class A Offered Notes repayable, or in the case of a partial
payment of those Class A Offered Notes, the principal amount
payable, subject to and in accordance with the terms of those
Class A Offered Notes (including the Conditions).
(b) Subject to clause 2.3 and to the terms of the Class A Offered
Notes (including the Conditions and in particular Condition 6
of the Notes) and the Transaction Documents (including clauses
19 and 45 of this deed and Condition 5), until any payment as
well after as before any judgment or other order of a court of
competent jurisdiction, the Issuer shall, at the direction of
the Manager, duly and punctually pay or procure to be paid
unconditionally in accordance with this deed to or to the
order of the Note Trustee any interest, at the respective
rates and calculated in accordance with and payable on the
dates provided for in the Conditions.
2.3 DEEMED PAYMENT
Any payment of principal or interest in respect of any Class A
Offered Notes to or to the account of the Principal Paying Agent in
the manner provided in clause 19 shall satisfy the covenant in
relation to those Class A Offered Notes by the Issuer 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 Class A Offered Notes in accordance with the terms of those
Class A Offered Notes (including the Conditions).
2.4 ISSUER'S COVENANT TO CLASS A OFFERED NOTEHOLDERS AND THE NOTE
TRUSTEE
Subject to the terms of the Master Trust Deed and the Supplementary
Bond Terms Notice, the Issuer:
(a) acknowledges its indebtedness in respect of the Invested
Amount of each Class A Offered Note and interest thereon;
(b) covenants for the benefit of each Class A Offered Noteholder
and the Note Trustee that it will (subject to receiving any
directions required under and given in accordance with the
Transaction Documents):
(1) make all payments on or in respect of the Class A
Offered Notes held by that Class A Offered Noteholder on
the applicable Payment Date;
(2) comply with the terms of the Supplementary Bond Terms
Notice and the Transaction Documents in which it is a
party; and
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(3) pay the Outstanding Principal Balance in relation to the
Class A Offered Notes held by that Class A Offered
Noteholder on the Final Maturity Date and accrued and
unpaid interest on the Invested Amount.
2.5 FOLLOWING EVENT OF DEFAULT
(a) At any time when an Event of Default in respect of the Class A
Offered Notes is subsisting, or at any time after Definitive
Notes have not been issued when so required in accordance with
the Conditions, the Note Trustee may:
(1) by notice in writing to the Issuer, the Manager, the
Principal Paying Agent, any other Paying Agents and the
Calculation Agent and until such notice is withdrawn,
require the Principal Paying Agent, any other Paying
Agents and the Calculation Agent either:
(A) (i) 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 this deed, except
that the Note Trustee's liability 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 terms of the Note Trust and
which is available to be applied by the Note
Trustee under this deed; and
(ii) to hold all Definitive Notes and all
amounts, documents and records held by them
in respect of the Class A Offered 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 Class A Offered Notes to the Note
Trustee or as the Note Trustee shall direct in
that notice, other than any documents or records
which the relevant Paying Agent or Calculation
Agent is obliged not to release by any law or
regulation; or
(2) by notice in writing to the Issuer require it to make
all subsequent payments in respect of the Class A
Offered 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 Issuer and until that notice
is withdrawn, clause 2.3 shall not apply.
(b) The payment by the Issuer of its payment obligations on each
applicable Payment Date under the Supplementary Bond Terms
Notice and the Conditions to the Note Trust Deed in accordance
with clause 2.5(a) shall be a good discharge to the Issuer and
the Issuer shall not be liable for any act or omission or
default of the Note Trustee during the period it is required
to make payment to the Note Trustee under clause 2.5(a).
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(c) The Issuer 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 Class A Offered Notes to
the Note Trustee under clause 2.5(a).
(d) At any time whilst an Event of Default is subsisting which has
not been waived, if the Calculation Agent for any reason does
not determine the Interest Rate or calculate the Interest for
a Class A Offered Note, the Note Trustee shall do so and each
such determination or calculation shall be deemed to have been
made by the Calculation Agent. In doing so, the Note Trustee
shall apply the provisions of clause 22, with any necessary
consequential amendments, to the extent that, in its opinion,
it can do so, and, in all other respects it shall do so in
such a manner as it shall deem fair and reasonable in all the
circumstances.
(e) The Issuer, the Manager, the Note Trustee, the Security
Trustee and the Paying Agents may treat a Class A Offered
Noteholder as the absolute owner of a Class A Offered Note
(whether or not that Class A Offered Note is overdue and
despite any notation or notice to the contrary or writing on
it or any notice of previous loss or theft of it or of trust
or other interest in it) for the purpose of making payment and
for all other purposes.
2.6 REQUIREMENTS OF PAYING AGENTS
The Principal Paying Agent agrees with the Note Trustee, subject to
the provisions of this clause, that it shall:
(a) hold on account for the Note Trustee and the Class A Offered
Noteholders all sums held by the Principal Paying Agent for
the payment of principal and interest with respect to the
Class A Offered Notes until all relevant sums are paid to the
Note Trustee or the Class A Offered Noteholders or otherwise
disposed of as provided in this deed; and
(b) immediately notify in writing the Note Trustee, the Issuer,
the Security Trustee and the Manager if the full amount of any
payment of principal or interest required to be made by the
Supplementary Bond Terms Notice and the relevant Conditions in
respect of the Class A Offered Notes is not unconditionally
received by it or to its order in accordance with this deed.
2.7 CERTIFICATION
For the purposes of any redemption of Class A Offered Notes under
Condition 5, the Note Trustee may rely upon an Officer's Certificate
from the Manager certifying or stating the opinion of each person
signing that Officer's Certificate as to the following matters:
(a) the fair value (within 90 days of such release) of the
property or securities to be released from the Security Trust
Deed;
(b) that the proposed release will not impair the security under
the Security Trust Deed in contravention of the provisions of
the Security Trust Deed or this deed; and
(c) that the Issuer will be in a position to discharge all its
liabilities in respect of the relevant Class A Offered Notes
and any amounts required under the
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Security Trust Deed to be paid in priority to or pari passu
with those Class A Offered Notes,
and that Officer's Certificate shall be conclusive and binding on
the Issuer, the Note Trustee and the holders of those Class A
Offered Notes.
2.8 DETERMINATIONS
If the Manager does not at any time for any reason determine a
Principal Entitlement or the Outstanding Principal Balance or the
Invested Amount applicable to any Class A Offered Notes in
accordance with Condition 5(h), the Principal Entitlement, the
Outstanding Principal Balance and the Invested Amount (as the case
may be) may be determined by the Calculation Agent (or, failing the
Calculation Agent, the Note Trustee) in accordance with Condition
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 neither the Calculation Agent nor the Note Trustee
shall have any liability in respect thereof other than as a result
of the fraud, negligence or wilful default of the Calculation Agent
or the Note Trustee as the case may be.
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3 FORM OF, ISSUE OF AND DUTIES AND TAXES ON, NOTES
3.1 ISSUE OF BOOK-ENTRY NOTES
(a) Each Class of Class A Offered Notes shall, on initial issue be
represented by one or more Book-Entry Notes.
(b) Each Book-Entry Note must be signed manually or by facsimile
by an Authorised Signatory or attorney of the Issuer on behalf
of the Issuer 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[:]
(1) in the case of Class A[ ] Book-Entry Notes - in part A of
schedule 1[;]
(2) [and]
(3) [in the case of Class A[ ] Book-Entry Notes - in part B of
schedule 1].
(b) The procedures relating to the exchange, authentication,
delivery, surrender, cancellation, presentation, marking up or
down of any Book-Entry Note (or part of any Book-Entry Note)
and any other matters to be carried out by the relevant
parties upon exchange (in whole or part) of any Book-Entry
Note shall be made in accordance with the provisions of the
relevant terms of the Book-Entry Notes and the normal practice
of the Common Depository, the Note Registrar 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:
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(1) US$[ ] for the Class A[ ] Notes[; and]
(2) [(euro)[ ] for the Class A[ ] Notes].
(d) The Manager 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 Issuer. Until a Book-Entry
Note (or part of a Book-Entry Note) has been exchanged
pursuant to this deed, it (or that part) shall in all respects
be entitled to the same benefits as a Definitive Note. Each
Book-Entry Note shall be subject to this deed except that the
registered owner of a Book-Entry Note shall be the only person
entitled to receive payments from the Principal Paying Agent
of principal or interest in relation to it.
(e) The Class A[ ] Notes upon original issue will be issued in the
form of typewritten Class A[ ] Notes representing the Class A[
] Book-Entry Notes. [The Class A[ ] Notes upon original issue
will be issued in the form of typewritten Class A[ ] Notes
representing the Class A[ ] Book-Entry Notes.] The Manager
shall, on the date of this deed, deliver or arrange the
delivery of, on its behalf to the Principal Paying Agent, as
agent for the Clearing Agency, the Class A[ ] Book-Entry Notes
[and the Class A[ ] Book-Entry Notes]. The Book-Entry Notes so
issued shall initially be registered on the Note Register in
the name of the Common Depository as nominee of the Clearing
Agency, and no Class A Noteowner will receive a Definitive
Note representing such Class A Noteowner's interest in such
Note, except as provided in clause 3.3 [or clause 3.4].
(f) Whenever a notice or other communication to the Class A
Offered Noteholders is required under this deed, unless and
until Definitive Notes shall have been issued to a Class A
Noteowner pursuant to clause 3.3 [or clause 3.4], the Note
Trustee shall give all such notices and communications
specified herein to be given to Class A Noteowners to the
Common Depository, and shall have no obligation to the Class A
Noteowners.
(g) Unless and until the Definitive Notes have been issued to a
Class A Noteowner pursuant to clause 3.3 [or clause 3.4]:
(1) the provisions of this clause shall be in full force and
effect;
(2) the Note Registrar, the Issuer, the Manager, the
Security Trustee, 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 Class A Offered Notes
and the giving of instructions, notices or directions
hereunder) as the sole holder of the Class A Offered
Notes, and shall have no obligation to any Class A
Noteowners and none of the Note Registrar, the Issuer,
the Manager, each Paying Agent, and the Note Trustee or
the Security Trustee will be affected by notice to the
contrary;
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(3) to the extent that the provisions of this clause
conflict with any other provisions of this deed, the
provisions of this clause shall prevail;
(4) the rights of Class A Noteowners shall be exercised only
through the Clearing Agency and shall be limited to
those established by law and agreements between such
Class A Noteowners and the Clearing Agency and/or the
Clearing Agency Participants. In respect of Class A[ ]
Notes, pursuant to the Note Depository Agreement, unless
and until Class A[ ] 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 Class A[ ] Notes to such
Clearing Agency Participants [and in respect of Class A[
] Notes, unless and until Class A[ ] Definitive Notes
are issued pursuant to clause 3.4, 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 Class A[ ] Notes to such
Clearing Agency Participants]; and
(5) whenever this deed requires or permits actions to be
taken based upon instructions or directions of Class A
Noteowner evidencing a specific percentage of all
Invested Amounts of all Class A Offered Notes, the
Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received
instructions to such effect from Class A Noteowners
and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of
the beneficial interest in the Class A Offered Notes and
has delivered such instructions to the Principal Paying
Agent.
3.3 DEFINITIVE NOTES - CLASS A[ ] NOTES
In respect of Class A[ ] Book-Entry Notes, if:
(a) the Principal Paying Agent advises the Manager in writing that
the Clearing Agency is no longer willing or able to discharge
properly its responsibilities as depository for the Class A[ ]
Notes and the Manager is not able to locate a qualified
successor;
(b) the Issuer, at the direction of the Manager (at the Manager's
option) advises the Principal Paying Agent in writing that it
elects to terminate the book-entry system through the Clearing
Agency in respect of the Class A[ ] Notes; or
(c) after the occurrence of an Event of Default, the Note Trustee,
at the written direction of Class A[ ] Noteholders holding a
majority of the aggregate Outstanding Principal Balance of the
Class A[ ] Notes advises the Issuer and the Principal Paying
Agent that the continuation of a book entry system is no
longer in the best interests of the Class A[ ] Noteowners,
then the Issuer, at the direction of the Manager, must within 30
days of such event instruct the Clearing Agency to notify all of the
appropriate Class A[ ] Noteowners of the occurrence of any such
event and of the availability of Class A[ ] Definitive Notes to such
Class A[ ] Noteholders requesting the same. Upon the surrender of
the Class A[ ] Book-Entry Notes to the Issuer by the
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Common Depositary, and the delivery by the Clearing Agency of the
relevant registration instructions to the Issuer, the Issuer (with
the assistance of the Manager) shall execute and procure the
Principal Paying Agent to authenticate the Class A[ ] Definitive
Notes in accordance with the instructions of the Clearing Agency.
The Class A[ ] 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).
None of the Note Registrar, the Paying Agents, the Note Trustee or
the Issuer shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in
relying on, such instructions.
3.4 [DEFINITIVE NOTES - CLASS A[ ] NOTES]
(a) [In respect of Class A[ ] Book-Entry Notes, if:
(1) that Class A[ ] Book-Entry Note becomes immediately due
and repayable by reason of the occurrence of an Event of
Default;
(2) either Euroclear or Clearstream, Luxembourg is closed
for business for a continuous period of 14 days (other
than by reason of holiday, statutory or otherwise) or
announces an intention permanently to cease business; or
(3) as the result of any amendment to, or change in, the
laws or regulations of any jurisdiction or any body
politic, or government in any jurisdiction, or any
minister, department, office, commission,
instrumentality, agency, board, authority or
organisation of any government or any corporation owned
or controlled by any government having power to tax or
in the interpretation by a revenue authority or a court
of, or in the administration of, laws or regulations
relating to taxation which becomes effective on or after
the first Bond Issue Date, the Issuer or any Paying
Agent is or will be required to make any deduction or
withholding from any payment in respect of any of the
relevant Class A[ ] Notes which would not be required
were those Class A[ ] Notes in definitive form,
(b) then the Issuer, at the directionof the Manager, must (subject
to clause 3.4(c)), within 30 days of becoming aware of the
occurrence of the relevant event, instruct the Clearing Agency
to notify all of the appropriate Class A[ ] Noteowners of the
occurrence of any such event and of the availability of Class
A[ ] Definitive Notes to such Class A[ ] Noteholders
requesting the same. Upon the surrender of the Class A[ ]
Book-Entry Notes to the Issuer by the Common Depositary, and
the delivery by the Clearing Agency of the relevant
registration instructions to the Issuer, the Issuer (with the
assistance of the Manager) shall but not prior to 40 days
after the Bond Issue Date, execute and procure the Principal
Paying Agent to authenticate the Class A[ ] Definitive Notes
in accordance with the instructions of the Clearing Agency.
The Class A[ ] 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).The procedures to be carried out by
the relevant parties on an exchange under this clause shall be
made in
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Note Trust Deed SMHL Global Fund [ ]-[ ]
accordance with the provisions of the terms of a Class A[ ]
Book-Entry Note in respect of which exchange is to be made and
the normal practice of the Common Depository, the Principal
Paying Agent, and the rules and procedures of the relevant
Clearing Agency from time to time.
(c) Despite clause 3.4(b), the Issuer is not obliged to issue
Class A[ ] Definitive Notes until the later of:
(1) the expiry of 40 days after the later of the first Bond
Issue Date and the date on which the relevant Class A[ ]
Notes are first offered to persons other than
distributors in reliance on Regulation S of the
Securities Act (provided certification of non-US
beneficial ownership by the relevant Noteholder is
received by Euroclear or Clearstream, Luxembourg); and
(2) 30 days after it becomes aware of the occurrence of the
relevant event or request in clause 3.4(a).
(d) No Class A[ ] Definitive Note shall be delivered in the United
States of America.
(e) Each Class A[ ] Definitive Note shall be in the form or
substantially in the form set out in schedule 5.]
3.5 STAMP AND OTHER TAXES
The Manager will pay any stamp and other duties and Taxes (other
than income tax or any similar tax on net income) payable in
Australia, the United Kingdom, the Republic of Ireland or the United
States on or in connection with:
(a) the execution, delivery and performance of the Transaction
Documents or any other payment, receipt or other transaction
contemplated by the Transaction Documents;
(b) the constitution and original issue and delivery of the Class
A Offered Notes; and
(c) any action taken by the Note Trustee or where permitted under
this deed so to do, the Clearing Agency or any Class A
Noteowner to enforce or to resolve any doubts concerning, or
for any other purpose in relation to, the provisions of the
Class A Offered Notes or the Transaction Documents.
The Manager must indemnify and keep indemnified the Note Trustee,
the Paying Agent, [the Class A[ ] Irish Paying Agent,] the
Calculation Agent, the Note Registrar, the Issuer and the Security
Trustee against any loss or liability incurred or suffered by those
parties as a result of any delay or failure by the Manager to pay
any such stamp and other duties and Taxes.
3.6 INDEMNITY FOR NON-ISSUE
If the Issuer is required to issue, or procure the issue of,
Definitive Notes following an event specified in clause 3.3(a) or
clause 3.4(a), (and all conditions precedent to such issue have been
satisfied) but fails to do so within 30 days of delivery to the
Issuer of the Book-Entry Notes in accordance with clause 3.3 or
clause 3.4 then the Issuer shall (subject to clause 45) indemnify
the Note Trustee and the Class A Offered Noteholders and keep them
indemnified, against any loss or damage incurred by any of them if
the amount received by the Note Trustee
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Note Trust Deed SMHL Global Fund [ ]-[ ]
and the Class A Offered Noteholders is less than the amount that
would have been received had Definitive Notes been issued within the
30 days referred to in this clause 3.6. If the Issuer breaches its
obligations under clause 3.3, or clause 3.4, it is acknowledged and
agreed that damages alone will not be an adequate remedy for such a
breach and that, in addition to any other rights they may have, the
Note Trustee and the Class A Offered Noteholders are entitled to xxx
the Issuer for specific performance, injunctive relief or other
equitable relief to enforce the Issuer's obligations under clause
3.3 or clause 3.4. The Manager must promptly advise the Issuer if it
becomes actually aware of the occurrence of the relevant event and
the Issuer shall promptly notify the Note Trustee of the relevant
event.
3.7 NOTE REGISTER AND NOTE REGISTRAR
(a) The Note Registrar, on behalf of the Issuer, shall keep or
cause to be kept the Note Register and the Note Registrar will
be responsible for registering Notes and transfers of Class A
Offered Notes as herein provided. The Issuer may, with the
consent of the Note Trustee, appoint another person as Note
Registrar. Upon any resignation or removal of any Note
Registrar under this deed, the Issuer 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.
(b) Upon surrender for registration of transfer of any Class A
Offered Note to the Note Registrar, (and, in the case of a
Class A[ ] Note, if the requirements of Section 8-401(a) of
the Uniform Commercial Code of New York (the UCC) are met),
the Issuer shall, at the direction of the Manager, execute and
upon its written request the Principal Paying Agent shall
authenticate and the Class A Offered Noteholder shall obtain
from the Note Trustee, in the name of the designated
transferee or transferees, one or more new Class A Offered
Notes, in any authorised denominations, of the same class and
a like aggregate principal amount. The Issuer shall be
entitled to rely on any direction given by the Manager under
this clause and shall not be under any obligation to
investigate or query any such direction.
(c) At the option of the Class A Offered Noteholder, Class A
Offered Notes may be exchanged for other Class A Offered Notes
in any authorised denominations and a like aggregate principal
amount, upon surrender of the Class A Offered Notes to be
exchanged at such office or agency. Whenever any Class A
Offered Notes are so surrendered for exchange, (and, in the
case of Class A[ ] Note, if the requirements of Section
8-401(a) of the UCC are met) the Issuer shall, at the
direction of the Manager, execute, and upon its written
request the Principal Paying Agent shall authenticate and the
Class A Offered Noteholder shall obtain from the Note Trustee,
the Class A Offered Notes which the Class A Offered Noteholder
making the exchange is entitled to receive. The Issuer shall
be entitled to rely on any direction given by the Manager
under this clause and shall not be under any obligation to
investigate or query any such direction.
(d) Every Class A Offered Note presented or surrendered for
registration of transfer or exchange shall be:
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(1) duly endorsed by, or be accompanied by a written
instrument of transfer in a form satisfactory to the
Note Registrar duly executed by, the Class A Offered
Noteholder thereof or such Class A Offered 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 SMHL Global 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
(2) accompanied by such other documents as the Note
Registrar may require.
(e) No service charge shall be made to a Class A Offered
Noteholder for any registration of transfer or exchange of
Class A Offered Notes, but the Note Registrar 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 Class A Offered Notes.
(f) The preceding provisions of this clause 3.7 notwithstanding,
the Issuer shall not be required to make and the Note
Registrar need not register transfers or exchanges of Class A
Offered Notes, nor the Principal Paying Agent be required to
authenticate any Class A Offered Notes selected for redemption
for a period of 30 days preceding the due date for any payment
with respect to the Class A Offered Note.
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4 COVENANT OF COMPLIANCE
(a) The Issuer and the Manager covenant with the Note Trustee that
they will comply with and perform and observe all material
provisions of the Class A Offered Notes and Transaction
Documents which are expressed to be binding on them
respectively for the benefit of the Note Trustee or any Class
A Offered Noteholder.
(b) The Transaction Documents and the Conditions shall be binding
on the Issuer, the Note Trustee and the Class A Offered
Noteholders.
(c) The Note Trustee (or the Class A Offered Noteholders, under
clause 6.5, as the case may be) is entitled to enforce the
obligations of the Issuer under the Class A Offered 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). The Note Trustee shall hold the benefit of
this covenant for itself and the Class A Noteowners according
to its and their respective interests.
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5 CANCELLATION OF CLASS A OFFERED NOTES
5.1 CANCELLATION
The Note Registrar shall ensure that all Class A Offered Notes:
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(a) which have been surrendered for payment, registration of
transfer, exchange or redemption; or
(b) in the case of any Definitive Note, which, being mutilated or
defaced, have been surrendered and replaced under Condition
11,
shall be cancelled by or on behalf of the Issuer and will execute a
certificate and deliver same to the Note Trustee stating:
(a) the aggregate Outstanding Principal Balance of the Class A
Offered Notes which have been redeemed; and
(b) the serial numbers of such Class A Offered Notes in definitive
form (where applicable).
5.2 RECORDS
The Note Registrar shall procure:
(a) the keeping of a full and complete record of all Class A
Offered Notes and of their redemption, payment, exchange or
cancellation (as the case may be) and of all replacement Class
A Offered Notes issued in substitution for lost, stolen,
mutilated, defaced or destroyed Definitive Notes;
(b) the making available at its Specified Office of such records
to the Issuer and the Note Trustee and the Note Registrar on
reasonable notice and during business hours promptly following
the Note Trustee's request or the Issuer's request for the
same.
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6 ENFORCEMENT
6.1 ACTIONS FOLLOWING EVENT OF DEFAULT
At any time while an Event of Default is subsisting the Note Trustee
may (subject to the Security Trust Deed, to clauses 6.4 and 7, and
to 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 Issuer which are
permitted under the Transaction Documents;
(b) enforce the security created under the Security Trust Deed
(including anything set out in clause 7.2 of the Security
Trust Deed); and
(c) enforce repayment of the Class A Offered Notes together with
accrued interest and any other moneys payable to the Note
Trustee or the Class A Offered Noteholders under the
Transaction Documents.
6.2 EVIDENCE OF DEFAULT
If the Security Trustee or the Note Trustee takes any action against
the Issuer to enforce any of the provisions of any Class A Offered
Note or this deed, proof that as regards any Class A Offered Note,
the Issuer has not paid any principal or interest due in respect of
that Class A Offered Note shall (unless the contrary is proved) be
sufficient evidence that the Issuer has not paid that principal or
interest
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Note Trust Deed SMHL Global Fund [ ]-[ ]
on all other Class A Offered Notes in respect of which the relevant
payment is then due.
6.3 NOTE TRUSTEE MUST RECEIVE INDEMNITY
If:
(a) the Note Trustee convenes a meeting of the Class A Offered
Noteholders, or is required by the Class A Offered Noteholders
to take any action under this Deed, and advises them that the
Note Trustee will not act in relation to any matter
contemplated by this deed unless it is personally indemnified
by the Class A Offered Noteholders (other than the Note
Trustee) to its reasonable 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, in relation to any matter contemplated by this deed
and put in funds to the extent to which it may become liable
(including costs and expenses); and
(b) the Class A Offered Noteholders refuse to grant the requested
indemnity and put the Note Trustee in funds,
then the Note Trustee will not be obliged to act in relation to such
matter.
In those circumstances, the Class A Offered Noteholders may exercise
such powers as they determine by Extraordinary Resolution.
6.4 RESTRICTIONS ON ENFORCEMENT
If any of the Class A Offered Notes remain outstanding and are due
and payable otherwise than by reason of a default in payment of any
amount due on any Class A Offered 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 Charged Property unless:
(a) a sufficient amount would be realised to discharge in full all
amounts owing to the Class A Offered Noteholders and any other
amounts payable by the Issuer ranking in priority to or pari
passu with the Class A Offered Notes;
(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 for the purposes
of the Master Trust Deed and the Securitisation Fund), that
the cash flow receivable by the Issuer (or the Security
Trustee under the Security Trust Deed) will not (or that there
is a significant risk that it will not) be sufficient, having
regard to any other relevant actual, contingent or prospective
liabilities of the Issuer, to discharge in full in due course
all the amounts referred to in clause 6.4(a) relating to the
Securitisation Fund; or
(c) the Note Trustee is so directed by the holders of at least 75%
of the aggregate Invested Amount of the Class A Offered Notes
calculated and expressed in the A$ Equivalent.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
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 14
days and such failure is continuing, any of the Class A Offered
Noteholders may do so, but then only if and to the extent the Class
A Offered Noteholders are able to do so under the Transaction
Documents.
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7 PROCEEDINGS
7.1 ACTING ONLY ON DIRECTION
(a) 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, to 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 Class A Offered Notes and shall be bound to
so vote or direct the Security Trustee if directed or
requested to do so in writing by the holders of at least 75%
of the aggregate Invested Amount of the Class A Offered Notes
calculated and expressed in the A$ Equivalent 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) 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 Class A Offered 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
(a) Only the Security Trustee may enforce the provisions of the
Security Trust Deed and neither the Note Trustee nor any
holder of a Class A Offered Note is entitled to proceed
directly against the Issuer to enforce the performance of any
of the provisions of the Security Trust Deed or of the Class A
Offered 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 Class A Offered Noteholders (if entitled under
clause 6.5 to act in place of the Note Trustee) may proceed
directly against the Issuer to the extent permitted under the
Transaction Documents.
(b) 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 pursuant to the Security Trust Deed, provided that the
Security Trustee has the power under the Security Trust Deed
to take the action contemplated by the direction and would not
incur any personal liability in doing so, and the Security
Trustee shall not be
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Note Trust Deed SMHL Global Fund [ ]-[ ]
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 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 Class A Offered Notes (including the Conditions)
and no Class A Offered Noteholder is entitled to take any of the
above actions or to proceed directly against the Issuer to enforce
the performance of any of the provisions of this deed or the Class A
Offered 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 Issuer will be in a position to discharge
the liabilities referred to in those Conditions unless, either:
(a) the Issuer 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
Supplementary Bond Terms Notice; or
(b) the Issuer 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 whose short term unsecured and
unguaranteed debt securities are rated A-1+ by S&P, provided
that in both cases its short term unsecured and unguaranteed
debt securities are ranked P-1 by Moody's and F1 by Fitch
Ratings, to provide sufficient cash on or before the relevant
Payment Date to enable the Issuer to discharge the relevant
liabilities,
and in each circumstance the Manager has certified to the Note
Trustee that the requirements of clause 7.4(a) or 7.4(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 to so 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 where expressly provided otherwise, have regard to
the interests of the Class A Offered Noteholders.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
7.7 NOTE TRUSTEE MAY ENFORCE
The Note Trustee has the power, subject to clause 45:
(a) (ENFORCE FOLLOWING DEFAULT): in the event of a default in
repayment of the principal or payment of interest by the
Issuer in respect of any Class A Offered Note when and as the
same shall become due and payable, which default has continued
for a period of 10 days, to recover judgement, in its own name
and as trustee for the Class A Offered Noteholders, against
the Issuer for the whole amount of such principal and interest
remaining unpaid; and
(b) (FILE PROOFS): to file such proofs of claim and other payments
or documents as may be necessary or advisable in order to have
the claims of the Note Trustee and the Class A Offered
Noteholders allowed in any judicial proceedings in relation to
the Issuer; and
(c) (ENFORCE RIGHTS): if an Event of Default occurs and is
subsisting, to proceed, to protect and enforce its right and
the rights of the Class A Offered Noteholders by such
appropriate judicial proceedings as the Note Trustee deems
most effectual to protect and enforce any such rights, whether
for the performance of any provision of this deed or in aid of
the exercise of any power under this deed or to enforce any
other proper remedy;
but nothing in this clause 7.7 is to be construed as requiring the
Note Trustee to take any such action unless it has been directed to
do so by the holders of at least 75% of the aggregate Invested
Amount of the Class A Offered Notes calculated and expressed in the
A$ Equivalent and has been indemnified or put in funds to its
satisfaction by the Class A Offered Noteholders against any
liability that it may incur as a result of taking such action.
If the Note Trustee takes any action to enforce any of the
provisions of the Class A Offered Notes, proof that as regards any
Class A Offered Note the Issuer has not paid any principal or
interest due in respect of that Class A Offered Note will (unless
the contrary is proved) be sufficient evidence that the Issuer has
not paid that principal or interest on all other Class A Offered
Notes in respect of which the relevant payment is then due.
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8 NOTICE OF PAYMENT
The Principal Paying Agent shall give notice to the Class A Offered
Noteholders in accordance with Condition 12 of the day fixed for any
payment to them of amounts received by the Note Trustee under clause
12 of the Security Trust Deed. Those payments may be made in
accordance with Condition 6 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.
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9 INVESTMENT BY NOTE TRUSTEE
Any amount which, under the Note Trust ought to or may be invested
by the Note Trustee, may be invested in the name or under the
control of the Note Trustee at the written direction of the Manager
in any Authorised Investments. The Note
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Trustee shall not be liable for the selection of investments or for
investment losses incurred thereon in the absence of fraud,
negligence or wilful default on its part.
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10 PARTIAL PAYMENTS
In the case of Definitive Notes, on any payment of amounts received
by the Note Trustee under clause 12 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 Issuer certifying to the Note Trustee that an
indemnity has been given to the Issuer by the recipient of the
payment as the Issuer considers sufficient and the Note Trustee
shall be entitled to rely on such certification.
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11 COVENANTS BY THE ISSUER AND MANAGER
11.1 UNDERTAKINGS
Each of the Issuer and the Manager undertakes to the Note Trustee,
on behalf of the Class A Offered Noteholders, and the Manager
undertakes to the Issuer, in the case of clauses 11.1(q), (r) and
(s), as follows in relation to the Securitisation Fund for so long
as any of the Class A Offered 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)
(1) It will comply with its material obligations under the
Transaction Documents.
(2) 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 material obligations under that
Transaction Document.
(3) It shall not amend any Transaction Document in so far as
any such amendment affects or relates to the
Securitisation Fund without the prior consent of the
Note Trustee, other than in the circumstances
contemplated in clause 35.1.
(c) (ASSISTANCE) It will provide to the Note Trustee such
information, copies of any accounting records and other
documents, statements and reports required to be maintained
by, or that are otherwise in the possession of, the Issuer or
the Manager, as the case may be in relation to the Fund, as
the Note Trustee may reasonably require to enable the Note
Trustee to perform its duties and functions under this deed.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(d) (NOTIFY EVENTS OF DEFAULT)
(1) It will promptly notify the Note Trustee in writing if
it has knowledge or notice of or is aware of the
occurrence of an Event of Default, Trustee's Default or
Manager's Default including full details (to the extent
known, without making any enquiry) of that Event of
Default, Trustee's Default or Manager's Default (as the
case may be).
(2) In addition to its obligations under clause 11.1(d)(1),
the Manager will confirm to the Note Trustee in an
Officer's Certificate, to be provided on each
anniversary of this deed:
(A) whether or not the Manager is aware that any Event
of Default, Trustee's Default or Manager's Default
has occurred and give reasonable details of that
event; 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
Issuer will maintain in the Borough of Manhattan, The City of
New York, United States of America, an office or agency where
Class A[ ] Notes which are Class A[ ] Definitive Notes may be
surrendered for registration of transfer or exchange [and will
maintain in London, United Kingdom, an office or agency where
Class A[ ] Notes which are Class A[ ] Definitive Notes may be
surrendered for registration of transfer or exchange]. The
Issuer hereby initially appoints the Note Registrar to serve
as its agent for the foregoing purposes in respect of the
Class A Offered Notes. 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 Issuer 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 Issuer hereby
appoints the Note Trustee as its agent to receive all such
surrenders. The Note Registrar and the Note Trustee shall act
solely for, and as agent of, the Issuer and shall not have any
obligations towards or relationship or agency or trust with
any other person in respect of its appointment under this
clause 11.1(e).
(f) (CALCULATION AGENT) It will procure that, so long as any of
the Class A Offered 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 this deed and
Condition 12 of:
(1) any appointment, resignation or removal of any Paying
Agent (other than the appointment of the initial
Principal Paying Agent) or Calculation Agent;
(2) any change to any Paying Agent's Paying Office; or
(3) any change to the Calculation Agent's Specified Office.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(h) (ANNUAL FINANCIAL STATEMENTS) In the case of the Manager only,
it will deliver to the Note Trustee, within 180 days after the
end of each fiscal year of the Securitisation Fund (the first
such fiscal year commencing on [ , ]), the financial
statements of the Securitisation Fund. Such statements shall
be audited by the Issuer's Auditors and shall be prepared in
such form as will comply with all relevant legal and
accounting requirements.
(i) (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 Class A Offered Noteholders in
accordance with Condition 12.
(j) (ANNUAL STATEMENT AS TO COMPLIANCE) The Issuer (or the Manager
on its behalf) will deliver to the Note Trustee, within 120
days after the end of each fiscal year of the Securitisation
Fund (the first such fiscal year commencing on
[ , ]), and otherwise in compliance with the
requirements of section 314(a)(4) of the TIA, an Officer's
Certificate stating that:
(1) a review of the activities of the Issuer in respect of
the Securitisation Fund 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
(2) to the best of the knowledge of the Signatory, based on
the review referred to in clause 11.1(j)(1), the Issuer
has complied with all conditions and covenants under the
Transaction Documents throughout the relevant year, or,
if there has been a default in the compliance of any
such condition or covenant, specifying each such default
known to the Signatory of the nature and status of the
default.
For the purposes of this clause 11.1(j) compliance shall be
determined without regard to any period of grace or
requirement of notice under the Transaction Documents.
(k) (OPINIONS AS TO TRUST ESTATE) On the Closing Date, the Manager
shall furnish to the Note Trustee an Opinion of Counsel (who
may be counsel for the Manager) 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 [ , ], the Issuer (or the Manager on its behalf)
shall furnish to the Note Trustee an Opinion of Counsel (who
may be counsel for the Issuer) either stating that in the
opinion of such counsel such action has been taken with
respect to the recording, filing, re-recording, and refiling
of the Security Trust Deed and any other requisite documents
as is necessary to maintain the Security Interest created by
the Security Trust Deed, and reciting the details of such
action, or stating that in the opinion of such counsel no such
action is necessary to maintain such Security Interest.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(l) In addition, the Issuer shall procure that an Opinion of
Counsel is provided by its counsel as to the due validity and
enforceability of the Transaction Documents against the Issuer
and the Security Trustee.
(m) (NOTEHOLDERS REPORT)
(1) The Manager shall deliver to the Issuer, the Note
Trustee and the Principal Paying Agent by not later than
two Banking Days prior to each Monthly Payment Date the
Noteholders Report for the related Monthly Calculation
Period, with written instructions for the Note Trustee
and the Principal Paying Agent to forward the
Noteholders Report to each Class A Offered Noteholder.
(2) Each Noteholders Report shall contain the information
set out in Schedule 2.
(n) (CHANGE OF MANAGER) It will, in the case of the Issuer only,
promptly notify the Note Trustee of any retirement or
replacement of the Manager pursuant to clause 14 of the Master
Trust Deed and of the appointment of a replacement Manager.
(o) (TRANSACTION DOCUMENTS) It will, in the case of the Manager
only, provide to the Note Trustee, on or prior to the issue of
any of the Class A Offered Notes (ISSUE DATE), one copy of
each Transaction Document as at that Issue Date and provide to
the Note Trustee a copy of each Transaction Document which is
material to the interests of the Note Trustee and the
Noteholders executed after that Issue Date promptly after its
execution.
(p) (PAYING AGENTS) The Manager will ensure that each Paying Agent
agrees, as a term of its appointment, to hold on account for
the benefit of the Class A Offered Noteholders or the Note
Trustee all sums held by such Paying Agent for the payment of
the principal of or interest on the Class A Offered Notes and
to promptly give to the Note Trustee notice of any default by
the Issuer (without regard to any grace period) in the making
of any such payment.
(q) [(LISTING OF CLASS A[ ] NOTES) The Manager will procure that
the Class A[ ] Notes are listed on the Official List of the
Irish Stock Exchange and are admitted to trading on the
regulated market of the Irish Stock Exchange upon issue and
will use reasonable endeavours to ensure compliance by the
Issuer with the continuing obligations arising under the rules
and requirements of the Irish Stock Exchange for so long as
the Class A[ ] Notes are listed and traded on the Irish Stock
Exchange and the rules of the Irish Stock Exchange so
require.]
(r) [(INFORMATION TO IRISH STOCK EXCHANGE) The Manager will
provide to the Irish Stock Exchange all information required
because of the rules and requirements of the Irish Stock
Exchange for so long as the Class A[ ] Notes are listed and
traded on the Irish Stock Exchange and the rules of the Irish
Stock Exchange so require.]
(s) [(DOCUMENTS TO IRISH PAYING AGENT) The Manager will provide to
the Irish Paying Agent sufficient copies of all documents
required by the Irish Stock Exchange, with respect to the
Class A[ ] Notes, (for so long as the Class A[ ] Notes are
listed and traded on the Irish Stock Exchange and the rules of
the Irish Stock Exchange so require) to be available to the
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Class A[ ] Noteholders for issue or inspection (including the
Master Trust Deed and the Supplementary Bond Terms Notice).]
11.2 REPRESENTATIONS AND WARRANTIES
The Issuer and the Manager hereby confirm for the benefit of the
Note Trustee and the Class A Offered Noteholders the representations
and warranties provided by each of them under clause 5.1 and 5.2
respectively of the Security Trust Deed. For the purposes of this
warranty, all references in clauses 5.1 and 5.2 of the Security
Trust Deed to "this deed" shall refer to the Note Trust Deed.
11.3 [UNDERTAKINGS TO CLASS A[ ] IRISH PAYING AGENT]
[The Manager undertakes to the Class A[ ] Irish Paying Agent and the
Issuer as follows:
(a) (LISTING OF CLASS A[ ] NOTES) it will procure that the Class
A[ ] Notes are listed on the Official List of the Irish Stock
Exchange and are admitted to trading on the regulated market
of the Irish Stock Exchange upon issue and will use reasonable
endeavours to ensure compliance by the Issuer with the
continuing obligations arising under the rules and
requirements of the Irish Stock Exchange for so long as the
Class A[ ] Notes are listed and traded on the Irish Stock
Exchange and the rules of the Irish Stock Exchange so require;
(b) (INFORMATION TO IRISH STOCK EXCHANGE) it will provide to the
Irish Stock Exchange all information required because of the
rules and requirements of the Irish Stock Exchange for so long
as the Class A[ ] Notes are listed and traded on the Irish
Stock Exchange and the rules of the Irish Stock Exchange so
require; and
(c) (DOCUMENTS TO CLASS A[ ] IRISH PAYING AGENT) it will provide
to the Class A[ ] Irish Paying Agent sufficient copies of all
documents required by the Irish Stock Exchange , with respect
to the Class A[ ] Notes, (for so long as the Class A[ ] Notes
are listed and traded on the Irish Stock Exchange and the
rules of the Irish Stock Exchange so require) to be available
to the Class A[ ] Noteholders for issue or inspection
(including the Master Trust Deed and the Supplementary Bond
Terms Notice).]
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12 REMUNERATION OF NOTE TRUSTEE, PRINCIPAL PAYING AGENT, CALCULATION AGENT
AND NOTE REGISTRAR
12.1 FEE
The Issuer shall pay to the Note Trustee, the Principal Paying
Agent, [the Irish Paying Agent,] [the Class A[ ] Irish Paying
Agent,] the Calculation Agent and the Note Registrar the respective
fees agreed between each such party and the Manager from time to
time.
12.2 ADDITIONAL REMUNERATION
If the Note Trustee gives direction under Condition 10 or it
undertakes duties which it considers expedient or necessary under
this deed, or which the Issuer
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Note Trust Deed SMHL Global Fund [ ]-[ ]
requests it to undertake and which duties the Note Trustee, the
Issuer and, the Manager agree to be of an exceptional nature or
otherwise outside the scope of the normal duties of the Note Trustee
under this deed, the Issuer shall pay to the Note Trustee any
additional remuneration as the Note Trustee, the Issuer and the
Manager agree.
In the event of the Note Trustee, the Issuer and the Manager 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 Manager or, failing such approval, nominated (on the application
of the Note Trustee or the Manager) by the President for the time
being of the Law Society of New South Wales the expenses involved in
such nomination and the fees of such merchant or investment bank
being paid by the Issuer (which payments are an Expense for the
purposes of the Master Trust Deed) and the determination of any such
merchant or investment bank shall be final and binding upon the Note
Trustee, the Manager and the Issuer and shall be payable by the
Issuer to the Note Trustee.
Any fee payable under this clause 12.2 and the Issuer's share of any
costs payable to any expert in accordance with this clause 12.2
shall be an Expense as defined in the Master Trust Deed.
12.3 COSTS, EXPENSES
(a) Subject to clause 50.8, the Issuer shall also reimburse, pay
or discharge all reasonable costs, charges, liabilities and
expenses and any stamp and other Taxes (other than income tax)
or duties incurred by the Note Trustee (or the Class A Offered
Noteholders acting under clause 6.5 (as the case may be)),
[the Irish Paying Agent,] each other Paying Agent, [the Class
A[ ] Irish Paying Agent,] the Calculation Agent and the Note
Registrar 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 Class A
Offered Noteholders acting under clause 6.5 (as the case may
be)), [the Irish Paying Agent,] each other Paying Agent, [the
Class A[ ] Irish Paying Agent,] the Calculation Agent or the
Note Registrar to enforce any obligation under this deed or
the Class A Offered Notes or any other Transaction Documents.
Without limiting any right of indemnity available by law to
the Note Trustee, the Note Trustee is entitled to be
indemnified from the Securitisation Fund for and against all
such costs, charges, liabilities and expenses and any stamp
and other taxes (other than income tax) or duties. The Note
Trustee, [the Irish Paying Agent,] each other Paying Agent,
[the Class A[ ] Irish Paying Agent,] the Calculation Agent and
the Note Registrar 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 Issuer is itself entitled to be
indemnified, and subject to clause 45, the Issuer indemnifies
the Note Trustee (or the Class A Offered 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 Note Trust or of
their powers or in respect of any
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Note Trust Deed SMHL Global Fund [ ]-[ ]
matter or thing done or omitted in any way relating to this
deed (other than arising from any fraud, negligence or wilful
default by the Note Trustee or that person).
12.4 OVERDUE RATE
All sums payable by the Issuer under clauses 12, 29, 47 and 50.8
shall be payable by the Issuer on the next Payment Date in the order
set out in the Supplementary Bond 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 12 shall continue in full
force and effect notwithstanding such discharge, and even if the
Note Trustee has ceased to be the Note Trustee for any reason,
including but not limited to those contemplated in clause 39.
12.6 GOODS AND SERVICES TAX (GST)
(a) Subject to clause 12.6(b), all amounts referred to in this
deed which are relevant in determining a payment to be made by
one party to another are exclusive of GST unless specifically
indicated otherwise.
(b) If a party to this agreement is entitled to be indemnified or
reimbursed for any cost or expense incurred by that party,
then the indemnity or reimbursement will be calculated by
reference to the GST-exclusive amount of that cost or expense,
increased by an amount equal to that part of the cost or
expense for which the party is not entitled to an input tax
credit but would be if it were entitled to a full input tax
credit. For the avoidance of doubt, the amount calculated
under this clause 12.6(b) is a GST-exclusive amount.
(c) If GST is levied or imposed on a supplier in respect of any
supply made under or in connection with this deed for which
the consideration is a monetary payment, then the
consideration provided for that supply is increased by an
amount equal to the consideration multiplied by the rate at
which that GST is levied or imposed. This additional amount is
payable to the party with the liability to remit GST in the
manner and at the time when the consideration to which it
relates is payable. For the avoidance of doubt, if GST is
levied or imposed on the recipient of a supply under or in
connection with this deed, then no additional amount is
payable under this clause 12.6(c).
If an amount of consideration for a supply is denominated in a
currency other than Australian dollars, then the increase in
the consideration calculated under clause 12.6(c) will be
payable in the same currency as the consideration to which it
relates.
(d) The recipient of any consideration for a supply (whether in
money or otherwise) must provide to the other part a GST tax
invoice (or any other thing required under any legislation) in
the form required by the A New Tax System (Goods and Services
Tax) Xxx 0000.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(e) Where an "adjustment event", as defined in the A New Tax
System (Goods and Services Tax) Xxx 0000 occurs under this
agreement, the parties shall do all things necessary to ensure
that the adjustment event may be appropriately recognised,
including the issue of an "adjustment note", as that term is
defined in that Act.
12.7 CURRENCY AND VAT
The above fees and expenses will be paid in United States dollars.
The Issuer will in addition pay any value added tax which may be
applicable.
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13 NOTE TRUSTEE
13.1 PREFERENTIAL COLLECTION OF CLAIMS AGAINST NOTE 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:
(1) 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
(2) 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:
(1) this paragraph does not limit the effect of paragraph
(b) of this clause 13.2; and
(2) 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.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(d) Section 315(d)(3) of the TIA is expressly excluded by
this deed.
13.3 OBLIGATIONS OF NOTE TRUSTEE
(a) 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.
(b) If the Note Trustee is entitled under the Master Trust Deed or
the Security Trust Deed to vote at any meeting on behalf of
Class A Offered Noteholders, the Note Trustee must, subject to
clause 7.1(a), vote in accordance, where applicable, with the
directions of the Class A Offered Noteholders (whether or not
solicited and whether or not all Class A Offered Noteholders
have provided such directions) and otherwise in its absolute
discretion.
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 Class A Offered Noteholder notice
of the Event of Default within 90 days after becoming aware of
such an Event of Default.
(b) Except in the case of a default in payment of principal of or
interest on any Class A Offered Note (including payments
pursuant to the mandatory redemption provisions of that Class
A Offered 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 Class A Offered 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. The
Note Trustee is not liable to make good out of its own funds
any loss incurred by any person if a signature is forged or
otherwise fails to bind the person or persons whose signature
it purports to be or on whose behalf it purports to be made
unless the Note Trustee has actual notice of such matters.
(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 or any other Transaction Document
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.
Except for the obligations imposed on it under this deed, the
Class A Offered Notes or any other Transaction Document, the
Note Trustee is not obliged to do or
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Note Trust Deed SMHL Global Fund [ ]-[ ]
omit to do any thing, including entering into any transaction
or incurring any liability unless the Note Trustee's
liability, is limited in a manner satisfactory to the Note
Trustee in its absolute discretion.
(d) The Note Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this deed or
the Class A Offered Notes or any Transaction Document, shall
not be accountable for the Issuer's use of the proceeds from
the Class A Offered Notes and shall not be responsible for any
statement of the Issuer in this deed or in any document issued
in connection with the sale of the Class A Offered Notes or in
the Class A Offered Notes and is not liable for any failure to
obtain any licence, consent or other authority for the
execution, delivery, legality, effectiveness, adequacy,
genuineness, validity, performance, enforceability or
admissibility in evidence of this deed or any other
Transaction Document except in each case with respect to
itself or to the extent specifically provided in this deed or
such Transaction Document. The Note Trustee is not responsible
for recitals, statements, warranties or representations of any
party (other than itself) contained in any Transaction
Document (and is entitled to assume the accuracy and
correctness thereof).
(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
Issuer, the Note Trustee, the Manager, the Mortgage Manager or
otherwise. The Note Trustee will not be responsible for any
loss occasioned by so acting and in reliance on such advice.
(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 or facsimile transmission 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 Issuer 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 wilful default
(in the case of the Security Trustee) or fraud, negligence,
default or wilful default (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 such holding or placement
or of any assets secured by the Security Trust Deed, Charged
Property or any deed or documents of title thereto, being
uninsured or inadequately insured or being held by or to the
order of the Mortgage Manager or any of its
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Note Trust Deed SMHL Global Fund [ ]-[ ]
affiliates or by clearing organisations or their operators or
by any person on behalf of the Note Trustee if chosen in
accordance with the Transaction Documents.
(i) The Note Trustee shall not be responsible for the receipt or
application of the proceeds of the issue of any of the Class A
Offered Notes (except to the extent specifically provided in
this deed) or any moneys borrowed by the Issuer under any
Transaction Document or the transfer or cancellation of any
Class A Offered Note or 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 Issuer and each other
party to any Transaction Document is observing and performing
all the obligations on its part contained in the Class A
Offered 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 and need not inquire whether that is, in fact,
the case (but nothing in this clause 13.5(j) is to be
construed as limiting the Note Trustee's right to make such
inquiries in its discretion, and to exercise its power under
this deed to do so).
(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, powers, authorities and trusts vested in the Note
Trustee by this deed and the Transaction Documents (the
exercise of which as between the Note Trustee and the Class A
Offered Noteholders shall be conclusive and binding on the
Class A Offered 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 Class A
Offered 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
consider or disclose to any Class A Offered Noteholder or any
Secured Creditor, any information made available to the Note
Trustee by the Issuer or any other person in connection with
the Note Trust and no Class A Offered Noteholder shall be
entitled to take any action to obtain from the Note Trustee
any such information.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(n) Where it is necessary or desirable for any purpose in
connection with this deed or any Transaction Document 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 Manager and any
rate, method and date so agreed shall be binding on the Issuer
and the Class A Offered Noteholders.
(o) Subject to clauses 6.4 and 7.4, the Note Trustee may certify
in good faith whether or not any of the events set out in
paragraphs (b) to (d) of Condition 9 or any breach under
clause 7 of the Security Trust Deed is in its opinion
materially prejudicial to the interests of the relevant Class
A Offered 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 Class A Offered Notes that the
Issuer 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 Bond Terms Notice or
the Security Trust Deed, all interest (after payment of all
sums which are permitted under the Supplementary Bond 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 Issuer and the Class A Offered
Noteholders. The Note Trustee shall have no liability to the
Issuer, any Class A Offered 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 Issuer
and the Class A Offered Noteholders. The Issuer shall pay the
Note Trustee's reasonable costs and expenses of providing the
certificate at the times specified in the Supplementary Bond
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 Issuer under any
of the Transaction Documents, has happened or to monitor or
supervise the observance and performance by the Issuer 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 Issuer and each of the other parties
thereto are observing and performing all their respective
obligations thereunder.
(q) The Note Trustee shall not be bound or concerned to examine or
enquire into nor is it 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 Charged Property or any other security or failure to call
for delivery of documents of title to the Charged Property or
any other security or to require any further assurances in
relation to any property or assets comprised in the Charged
Property or any other security. The Note Trustee may accept
without enquiry, requisition or objection such title as the
Issuer may have to the Charged Property or any part
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Note Trust Deed SMHL Global Fund [ ]-[ ]
thereof from time to time and shall not be bound to
investigate or make any enquiry into the title of the Issuer
to the Charged Property or any part thereof from time to time.
(r) Without prejudice to the provisions of any Transaction
Document, the Note Trustee shall not be under any obligation
to insure any of the Charged 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.
(s) The Note Trustee shall not be responsible for any loss,
expense or liability occasioned to the Charged 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 wilful default of the Note Trustee.
(t) The Note Trustee has no responsibility whatsoever to the
Issuer or any Class A Offered Noteholder as regards any
deficiency or additional payment, as the case may be, which
might arise because the Note Trustee or the Issuer is subject
to any Tax in respect of that payment, the Charged Property,
the Security Trust Deed, this deed, or any other security or
any income or any proceeds from them.
(u) No provision of this deed requires the Note Trustee to do
anything which may be illegal or contrary to applicable law or
regulation or expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties, or in the exercise of any of its rights or powers, if
it has grounds to believe that repayment of those funds or
adequate indemnity against that risk or liability is not
assured to it. Without limitation nothing contained in this
deed imposes any obligation on the Note Trustee to make any
further advance to an obligor or to borrow any moneys under a
Transaction Document.
(v) 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:
(1) the nature, status, creditworthiness or solvency of any
Mortgagor or any other person or entity who has at any
time provided any
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Note Trust Deed SMHL Global Fund [ ]-[ ]
security or support whether by way of guarantee,
Security Interest or otherwise in respect of any advance
made to any Mortgagor;
(2) 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;
(3) the title, ownership, value, sufficiency or existence of
any Land, mortgaged property or any Mortgage Insurance
Policy;
(4) 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;
(5) the scope or accuracy of any representations, warranties
or statements made by or on behalf of any Mortgagor in
any application for any advance or in any Mortgage or
Loan or in any document entered into in connection with
them;
(6) the performance or observance by any Mortgagor or any
other person of any provisions of any Mortgage or Loan
or in any document entered into in connection with them
or the fulfilment or satisfaction of any conditions
contained in them or relating to them or as to the
existence or occurrence at any time of any default,
event of default or similar event contained in them or
any waiver or consent which has at any time been granted
in relation to any of the above;
(7) 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;
(8) the title of the Issuer to any Mortgage, Loan or other
Charged Property;
(9) 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;
(10) 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);
(11) the failure by the Issuer, any Mortgage Manager 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
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Note Trust Deed SMHL Global Fund [ ]-[ ]
the Mortgages or Loans or other documents entered into
in connection with them;
(12) 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;
(13) any accounts, books, records or files maintained by any
Mortgage Manager, the Issuer, the Manager or any other
person in respect of any of the Mortgages or Loans; or
(14) 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.
(w) The Note Trustee is not liable or responsible for any loss,
cost, damages, expenses, liabilities or inconvenience which
may result from anything done or omitted to be done by it in
accordance with the provisions of this deed, any other
Transaction Document or any other document or as a consequence
of or in connection with it being held or treated as, or being
deemed to be, a creditor, for the purposes of the consumer
credit legislation, in respect of any of the Mortgages.
(x) The Note Trustee shall be entitled to call for and rely on a
certificate or any letter of confirmation or explanation
reasonably believed by it to be genuine, of the Issuer, 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 Class A Offered 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.
(y) In connection with the exercise by it of any trusts, powers,
authorities and discretions under this deed or any other
Transaction Documents (including, without limitation, any
modification, waiver, authorisation or determination), the
Note Trustee must where it is required to have regard to the
interests of the Class A Offered Noteholders, have regard to
the general interests of the Class A Offered Noteholders as a
class. The Note Trustee will not incur any liability to any
Class A Offered Noteholder as a result of the Note Trustee
giving effect to this clause 13.5(y).
(z) 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 Class
A Offered Notes by a Designated Rating Agency or any other
credit-rating agency or any other person.
(aa) The Note Trustee shall be under no obligation to monitor or
supervise the functions of the Mortgage Manager from time to
time under the terms of any Mortgage Origination and
Management 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 Mortgage Manager is properly performing its
obligations in
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Note Trust Deed SMHL Global Fund [ ]-[ ]
accordance with the provisions of the Mortgage Origination and
Management Agreement or that any other person is properly
performing its obligations in accordance with each other
Transaction Document, as the case may be.
(bb) The Note Trustee acknowledges that the Manager is responsible,
under the Supplementary Bond Terms Notice, for calculating all
amounts referred to in clause 6 of the Supplementary Bond
Terms Notice and the Note Trustee has no liability in respect
of these calculations.
(cc) The Note Trustee shall not be liable to the Issuer 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 the
Clearing Agency or any Common Depository for it 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 Class A Offered Notes.
(dd) The Note Trustee is under no obligation to account to any
person for any moneys received pursuant to this deed or any
other Transaction Document other than those received by the
Note Trustee from the Issuer or received or recovered by the
Note Trustee under this deed or any other Transaction
Document, subject always to such deductions and withholdings
by the Note Trustee as are authorised by this deed.
Obligations of the Note Trustee to any person under or in
connection with this deed can only be enforced against the
Note Trustee to the extent to which they can be satisfied out
of such moneys in accordance with this deed.
(ee) The Note Trustee will not be responsible for having acted in
good faith upon a direction purporting to have been given by
the holders of at least 75% of the aggregate Invested Amount
of the Class A Offered Notes calculated and expressed in the
A$ Equivalent even though it may subsequently be found that
for any reason such direction was not valid or binding upon
the Note Trustee, other than as a result of fraud, negligence
or wilful default.
(ff) The Note Trustee is, for any purpose and at any time, entitled
to rely on, act upon, accept and regard as conclusive and
sufficient (without being in any way bound to call for further
evidence or information or being responsible for any loss that
may be occasioned by such reliance, acceptance or regard) any
of the following:
(1) any information, report, balance sheet, profit and loss
account, certificate or statement suppled by the Issuer,
the Security Trustee or the Manager or by any officer,
auditor or solicitor of the Issuer, the Security Trustee
or the Manager;
(2) any information or statement provided to it in relation
to the Class A Offered Notes, the Class A Offered
Noteholders or the Class A Noteowners by the Clearing
Agency or its nominee;
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(3) all statements (including statements made or given to
the best of the maker's knowledge and belief or
similarly qualified) contained in any information,
report, balance sheet, profit and loss account,
certificate or statement given pursuant to or in
relation to this deed, the Security Trust Deed, the
Master Trust Deed or the Supplementary Bond Terms
Notice;
(4) all accounts supplied to the Note Trustee pursuant to
this deed and all reports of the Auditor supplied to the
Note Trustee pursuant to this deed; and
(5) notices and other information supplied to the Note
Trustee under this deed;
save, in each case, when it is actually aware that the
information supplied pursuant to clauses 13.5(ff)(1) to (5) is
actually incorrect or incomplete.
(gg) The Note Trustee may, whenever it thinks it expedient in the
interests of the Class A Offered Noteholders, apply to any
court for directions in relation to any question of law or
fact arising either before or after an Event of Default and
assent to or approve any applications of any Class A Offered
Noteholder, the Issuer or the Manager.
(hh) Subject to this deed, any applicable laws and any duty of
confidentiality owed to any other person, the Note Trustee
may, for the purpose of meeting its obligations under this
Deed, disclose to any Class A Offered Noteholder any
confidential, financial or other information made available to
the Note Trustee by any person in connection with this deed.
(ii) The Note Trustee, as between itself and the Class A Offered
Noteholders, has full power to determine (acting reasonably
and in good faith) all questions and doubts arising in
relation to any of the provisions of this deed and every such
determination, whether made upon such a question actually
raised or implied in the acts or proceedings of the Note
Trustee, will be conclusive and will bind the Note Trustee and
the Class A Offered Noteholders.
(jj) The Note Trustee may (but is not obliged to) give (or request
that the Manager give) each Designated Rating Agency 5 Banking
Days' prior notice (or such other period agreed between the
Note Trustee and each Designated Rating Agency) of its
intention to exercise any power, trust, authority, duty or
discretion under or in relation to the Class A Offered Notes,
this deed or any other Transaction Document. If such notice
has been given and each Designated Rating Agency has confirmed
to the Note Trustee that such exercise will not adversely
affect the rating or credit assessment then assigned by it to
the Class A Offered Notes, the Note Trustee shall be entitled
to take into account such confirmation when determining
whether such exercise will be materially prejudicial to the
interest of the Class A Offered Noteholders.
(kk) Each Class A Offered Noteholder is solely responsible for
making its own independent appraisal of and investigation into
the financial condition, creditworthiness, condition, affairs,
status and, nature of the Issuer and the Securitisation Fund
and the Note Trustee does not at any time have any
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Note Trust Deed SMHL Global Fund [ ]-[ ]
responsibility for the same and no Class A Offered Noteholder
may rely on the Note Trustee in respect of such appraisal and
investigation.
(ll) In the event of any dispute or ambiguity as to the
construction or enforceability of this deed or any other
Transaction Document, or the Note Trustee's powers or
obligations under or in connection with this deed or the
determination or calculation of any amount or thing for the
purpose of this deed or the construction or validity of any
direction from Class A Offered Noteholders, provided the Note
Trustee is using reasonable endeavours to resolve such
ambiguity or dispute, the Note Trustee, in its absolute
discretion, may (but will have no obligation to) refuse to act
or refrain from acting in relation to matters affected by such
dispute or ambiguity.
13.6 LIMITATION ON NOTE TRUSTEE'S' LIABILITY
(a) Notwithstanding any other provision of this deed, the Note
Trustee will have no liability under or in connection with
this deed or any other Secured Document other than to the
extent to which the liability is able to be satisfied out of
the property from which the Note Trustee is actually
indemnified for the liability. This limitation will not apply
to a liability of the Note Trustee to the extent that it is
not satisfied because, under this deed or by operation of law,
there is a reduction in the extent of the Note Trustee's
indemnification as a result of the Note Trustee's fraud,
negligence or wilful default.
(b) The Note Trustee is not to be under any liability whatsoever
for a failure to take any action in respect of any breach by
the Issuer of its duties as trustee of the Securitisation Fund
of which the Note Trustee is not aware or in respect of any
Event of Default of which the Note Trustee is not aware.
13.7 WILFUL DEFAULT OF THE NOTE TRUSTEE
For the purposes of this deed the expression "wilful default":
(a) in relation to the Note Trustee, means a wilful default of
this deed by the Note Trustee;
(1) other than a default which:
(A) arises out of a breach of a Transaction Document
by a person other than the Note Trustee or any
person referred to in clause 13.7(b) in relation
to the Note Trustee;
(B) arises because some other act or omission is a
precondition to the relevant act or omission of
the Note Trustee, and that other act or omission
does not occur;
(C) is in accordance with a lawful court order or
direction or is required by law; or
(D) is in accordance with an instruction or direction
given to it by any person in circumstances where
that person is authorised to do so by any
Transaction Document; and
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(2) in circumstances where had it not committed that default
it would have been entitled to recoupment, reimbursement
or a right of indemnity for its costs and expenses (if
any) in complying with this deed from the Note Trust.
(b) A reference to the "fraud", "negligence" or "wilful default"
of the Note Trustee means the fraud, negligence or wilful
default of the Note Trustee and of its officers or employees,
but not of its agents or delegates, unless the Note Trustee is
liable for the acts or omissions of such other person under
the terms of this deed.
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14 NOTE TRUSTEE'S LIABILITY
Nothing in this deed shall exempt the Note Trustee from or indemnify
it against any liability in any case in which the Note Trustee has
failed to show the degree of care and diligence required of it as
trustee having regard to the provisions of this deed or any
liability in respect of any fraud, negligence or wilful default of
which it may be guilty in relation to its duties under this deed.
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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 duties, discretions, 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 Class A Offered Noteholders think fit.
(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 or
affiliates, the Note Trustee shall not be under any obligation
to supervise the proceedings or 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 Issuer and the Designated Rating Agencies.
(c) Notwithstanding any other provision in this clause 15, where
the Note Trustee delegates any power to a related body
corporate or affiliate, the Note Trustee shall be liable for
all acts or omissions of the delegate done or omitted whilst
acting in its capacity as such.
(d) For the purpose of this clause 15 the following expressions
have the following meaning:
"related body corporate" has the meaning ascribed thereto in
the Corporations Act of Australia;
"affiliate" means with respect to any specified person, any
other person controlling or controlled by or under common
control with such specified
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Note Trust Deed SMHL Global Fund [ ]-[ ]
person. For the purposes of this definition, "control" when
used with respect to any specified person means the power to
direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meanings correlative to
the foregoing.
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16 EMPLOYMENT OF AGENT BY NOTE TRUSTEE
(a) The Note Trustee may in the conduct of the Note Trust instead
of acting personally employ and pay an agent, whether being a
lawyer or other professional person, to transact or conduct or
concur in transacting or conducting any business and to do or
concur in doing all acts required to be done in connection
with the Note Trust.
(b) If the Note Trustee exercises reasonable care in the selection
of an agent under clause 16(a) and providing the Note Trustee
and the agent are not related bodies corporate (as defined in
the Corporations Act) or affiliates as defined in clause
15(d), 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 or be bound to supervise the
proceedings or acts of such person. The Note Trustee must
within a reasonable time prior to the employment of any agent
give notice of such employment to the Issuer and the
Designated Rating Agencies.
(c) Notwithstanding any other provision in this clause 16, where
the Note Trustee employs, under this clause 16, a related body
corporate (as defined in the Corporations Act) or an affiliate
as defined in clause 15(d), 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.
(d) Any such agent 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 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 Issuer under clause
12.
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17 NOTE TRUSTEE CONTRACTING WITH ISSUER
Neither the Note Trustee in its personal or any other capacity, its
directors or officers or any related body corporate or affiliate (as
defined in clause 15(d)) or shareholder of 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:
(a) entering into or being interested in any contract or financial
or other transaction or arrangement with the Issuer or any
other party to any of the Transaction Documents or any person
or body corporate associated with
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Note Trust Deed SMHL Global Fund [ ]-[ ]
the Issuer 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 Class A
Offered Notes or any of them, or any other bonds, stocks,
shares, debenture stock, debentures, notes or other securities
of the Issuer or any other party to any of the Transaction
Documents or any related person or body corporate; or
(b) accepting or holding the trusteeship of any other trust deed
constituting or securing any other securities issued by or
relating to the Issuer 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 Issuer 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.
Where any holding company, subsidiary or associated company of the
Issuer or any director or officer of the Issuer acting other than in
his capacity as such a director or officer has any information, the
Issuer shall not thereby be deemed also to have knowledge of such
information and, unless it shall have actual knowledge of such
information, shall not be responsible for any loss suffered by
Noteholders resulting from the Issuer's failing to take such
information into account in acting or refraining from acting under
or in relation to this deed.
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18 APPOINTMENT OF PAYING AGENTS [AND] [THE CLASS A[ ] IRISH PAYING AGENT]
18.1 APPOINTMENT OF PAYING AGENTS
(a) Subject to the terms of this deed, the Issuer (acting on the
direction of the Manager) appoints the Principal Paying Agent
as its principal paying agent, [the Irish Paying Agent as its
Irish paying agent,] and each other Paying Agent as its paying
agent, for making payments in respect of the Class A Offered
Notes in accordance with this deed and the Conditions at their
respective Paying Offices. The Principal Paying Agent, [the
Irish Paying Agent] and each other Paying Agent appointed
under this deed accepts that appointment.
(b) Except in clause 33 and as the context otherwise requires,
references to the Principal Paying Agent are to it acting
solely through its Paying Office.
(c) If at any time there is more than one Paying Agent, the
obligations of the Paying Agents under this deed shall be
several and not joint.
(d) It is acknowledged and agreed that:
(1) each of the Principal Paying Agent and the other Paying
Agents is the agent of the Issuer in its capacity as
trustee of the Securitisation Fund only; and
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(2) despite anything else in this deed, any other
Transaction Document or at law, the Issuer in its
personal capacity is not responsible for any act or
omission of the Principal Paying Agent or any other
Paying Agent.
(e) [The obligations of the Paying Agent with respect to the Class
A[ ] Notes under this agreement are subject to:
(1) the provisions of the EU Tax Directive; and
(2) the "beneficial owner" (as defined in Article 2 of the
EU Tax Directive) providing to that Paying Agent such
information and documents (if any) required by that
Paying Agent in order for it to comply with the EU Tax
Directive.]
(f) [The Issuer authorises each Paying Agent to make mandatory
disclosures required by the EU Tax Directive to be made to the
competent authority of the member state of the European Union
of that Paying Agent.]
18.2 [APPOINTMENT OF THE CLASS A[ ] IRISH PAYING AGENT]
[i) Subject to the terms of this deed, the Issuer (acting on the
direction of the Manager) appoints the Class A[ ] Irish Paying
Agent as its Irish paying agent in relation to the Class A[ ]
Notes. The appointment is made to fulfil the requirement under
the listing rules of the Irish Stock Exchange as a condition
of listing the Class A[ ] Notes on the Daily Official List of
the Irish Stock Exchange and the admission to trading of the
Class A[ ] Notes on the Irish Stock Exchange. The Class A[ ]
Irish Paying Agent will have only such duties, obligations and
responsibilities as may from time to time be agreed in writing
between the Issuer, the Manager and the Class A[ ] Irish
Paying Agent and will have no other duties, obligations or
responsibilities other than as provided in this clause 18.2.
The Class A[ ] Irish Paying Agent accepts its appointment.
(a) If at any time there is more than one Class A[ ] Irish Paying
Agent, the obligations of the Class A[ ] Irish Paying Agents
under this deed shall be several and not joint.
(b) It is acknowledged and agreed that:
(1) the Class A[ ] Irish Paying Agent is the agent of the
Issuer in its capacity as trustee of the Securitisation
Fund only; and
(2) despite anything else in this deed, any other
Transaction Document or at law, the Issuer in its
personal capacity is not responsible for any act or
omission of the Class A[ ] Irish Paying Agent.
(c) The obligations of the Class A[ ] Irish Paying Agent with
respect to the Class A[ ] Notes under this deed are subject
to:
(1) the provisions of the EU Tax Directive; and
(2) the "beneficial owner" (as defined in Article 2 of the
EU Tax Directive) providing to that Class A[ ] Irish
Paying Agent such information and documents (if any)
required by that Class A[ ] Irish Paying Agent in order
for it to comply with the EU Tax Directive.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(d) The Issuer authorises the Class A[ ] Irish Paying Agent to
make mandatory disclosures required by the EU Tax Directive to
be made to the competent authority of the member state of the
European Union of that Class A[ ] Irish Paying Agent.
(e) If, despite any provision of this deed any obligation or duty
is imposed on the Class A[ ] Irish Paying Agent by operation
of law, statute, regulation, listing rule or other similar
directive or requirement, the Manager and the Issuer will
provide such assistance as the Class A[ ] Irish Paying Agent
may reasonably require to enable it to fully perform such
obligation or duty.]
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19 PAYMENT
19.1 PAYMENT BY ISSUER
The Issuer shall, with the assistance of and, at the direction of
the Manager, not later than 10.00am (New York time) in the case of
the Class A[ ] Notes [or 10.00am (London time) in the case of the
Class A[ ] Notes] on each Payment Date, pay to or to the order of,
or procure the transfer to a non interest bearing trust account or
accounts in the name of the Issuer as notified by the Principal
Paying Agent to the Issuer and the Note Trustee in same day funds
the amount in the Relevant Class A Currency as may be required
(after taking account of any cash then held by the Principal Paying
Agent and available for the purpose) to be made on each Class of
Class A Offered Notes on that Payment Date under the Supplementary
Bond Terms Notice and the Conditions.
19.2 CONFIRMATION
Not later than 4.00 pm (Sydney time) on the second Banking Day prior
to each Payment Date, the Manager shall notify, or procure
notification to, the Principal Paying Agent and the Note Trustee of
the amount of interest or principal payable in respect of each Class
of Class A Offered Notes on the related Payment Date.
19.3 PAYMENTS BY PAYING AGENTS
Subject to payment being duly made as provided in clause 19.1 (or to
the Principal Paying Agent otherwise being satisfied that the
payment will be duly made on the due date), and subject to clause
23, the Paying Agents shall pay or cause to be paid on behalf of the
Issuer on each relevant Payment Date the relevant amounts of
principal and interest due in respect of each Class of the Class A
Offered Notes in accordance with the Supplementary Bond Terms Notice
and the Conditions.
19.4 METHOD OF PAYMENT - BOOK-ENTRY NOTES
The Principal Paying Agent shall cause all payments of principal or
interest (as the case may be) due in respect of each Class of Class
A Offered Notes represented by a Book-Entry Note to be made to the
Common Depository.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
19.5 METHOD OF PAYMENT - DEFINITIVE NOTES
Payments of principal and interest on the Definitive Notes, if any,
shall be made in accordance with the Conditions and the
Supplementary Bond Terms Notice.
19.6 LATE PAYMENT
(a) If any payment under clause 19.1 is made late but otherwise in
accordance with the provisions of this deed, each Paying Agent
shall make payments required to be made by it in respect of
the Class A Offered Notes as provided in this clause 19.
However, unless and until the full amount of any payment in
respect of the Class A Offered Notes required to be made under
the Transaction Documents has been made under clause 19.1 in
accordance with this deed, no Paying Agent shall be bound to
make a payment under this clause 19 (but may, in its
discretion, make such payment) except to the extent that
non-payment is caused by fraud, wilful default or negligence
on the part of that Paying Agent or of any of its directors,
officers, employees or servants.
(b) If the Principal Paying Agent has not received on a Payment
Date the full amount of principal and interest then payable on
any Class A Offered Note in accordance with the Supplementary
Bond Terms Notice and the Conditions, but receives the full
amount later, it shall:
(1) forthwith upon full receipt notify the other Paying
Agents (if any), the Note Registrar, the Calculation
Agent, the Issuer, the Note Trustee, the Security
Trustee and the Manager; and
(2) as soon as practicable after such full receipt give due
notice, in accordance with Condition 12 (unless the Note
Trustee agrees otherwise), to the Common Depository that
it has received the full amount.
19.7 NOTICE OF NON-RECEIPT
The Principal Paying Agent shall as soon as practicable notify by
facsimile the other Paying Agents (if any), the Note Registrar, the
Calculation Agent, the Note Trustee, the Issuer, the Security
Trustee and the Manager if the full amount of any payment of
principal or interest required to be made by the Supplementary Bond
Terms Notice and Conditions in respect of the Class A Offered Notes
is not unconditionally received by it or to its order in accordance
with this deed.
19.8 REIMBURSEMENT
The Principal Paying Agent shall (provided that it has been placed
in funds by the Issuer) on demand promptly reimburse the other
Paying Agents (if any) for payments of principal and interest
properly made by that Paying Agent in accordance with the
Supplementary Bond Terms Notice, the Conditions and this deed. The
Issuer shall not be concerned with the apportionment of any moneys
between the Principal Paying Agent, the other Paying Agents (if any)
and payment to the Principal Paying Agent of any moneys due to the
Paying Agents shall operate as a good discharge to the Issuer in
respect of such moneys.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
19.9 METHOD OF PAYMENT
(a) All sums payable by the Issuer to the Principal Paying Agent
under this deed shall be paid by the relevant Currency Swap
Provider on behalf of the Issuer in the Relevant Class A
Currency to the account or accounts specified in clause 19.1.
Those sums shall be held in the relevant account for payment
to the Class A Offered Noteholders and, failing that payment
within the designated periods of prescription specified in
Condition 6, or upon the bankruptcy, insolvency, winding up or
liquidation of the Principal Paying Agent or default being
made by the Principal Paying Agent in the payment of any
amounts in respect of principal or interest in accordance with
this deed, on account for repayment to the Issuer (subject to
clause 20). On repayment in accordance with clause 20 to the
Issuer all liabilities of the Principal Paying Agent with
respect to those moneys shall cease.
(b) Subject to the terms of this deed, the Principal Paying Agent
shall be entitled to deal with moneys paid to it under this
deed in the same manner as other moneys paid to it as a banker
by its customers. The Principal Paying Agent shall be entitled
to retain for its own account any interest earned on the sums
from time to time credited to the separate account referred to
in clause 19.9(b) and it need not segregate such sums from
other amounts held by it.
(c) No Paying Agent may exercise any right of set-off or
combination of accounts in respect of any money payable to or
by it under the terms of this deed.
19.10 NO FEE
No Paying Agent will charge any commission or fee in relation to any
payment under this deed.
19.11 SECURITISATION FUND
Subject to clause 19.9(a), the Principal Paying Agent shall hold on
account for the Note Trustee and the Class A Offered Noteholders all
sums held by it for the payment of principal and interest with
respect to the Notes until all relevant sums are paid to the Note
Trustee or the Class A Offered Noteholders or otherwise disposed of
in accordance with this deed.
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20 REPAYMENT
(a) Immediately on any entitlement to receive principal or
interest under any Class A Offered Note becoming void under
the Conditions, the Principal Paying Agent shall repay to the
Issuer the amount which would have been due in respect of that
principal or interest if it had been paid before the
entitlement became void, together with any fees applicable to
that payment or entitlement (pro rated as to the amount and
time) to the extent already paid under clause 12.
(b) Despite clause 20(a), the Principal Paying Agent shall not be
obliged to make any repayment to the Issuer so long as any
amounts which should
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have been paid to or to the order of the Principal Paying
Agent or, if applicable, the Note Trustee, by the Issuer
remain unpaid.
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21 APPOINTMENT OF THE CALCULATION AGENT
(a) The Issuer (acting on the direction of the Manager) appoints
the Calculation Agent as its reference agent in respect of the
Class A Offered Notes upon the terms and conditions set forth
in this deed and the Calculation Agent accepts that
appointment.
(b) It is acknowledged and agreed that:
(1) the Calculation Agent is the agent of the Issuer in its
capacity as trustee of the Securitisation Fund only; and
(2) despite anything else in this deed, any other
Transaction Document or at law, the Issuer in its
personal capacity is not responsible for any act or
omission of the Calculation Agent.
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22 DUTIES OF THE CALCULATION AGENT
(a) The Calculation Agent shall in relation to each Class of Class
A Offered Notes until the Final Maturity Date or such earlier
date on which the Class A Offered Notes are due and payable in
full and in either case until the Issuer has paid all amounts
in relation to the Class A Offered Notes to the Principal
Paying Agent or, if applicable, the Note Trustee:
(1) perform such duties at its Specified Office as are set
forth in this deed and in the Conditions and any other
duties which are reasonably incidental at the request of
the Issuer, the Manager, the Note Trustee or the
Principal Paying Agent;
(2) determine LIBOR and EURIBOR for each Interest Period,
and calculate the relevant Interest and Interest Rate on
the Class A Offered Notes, in the manner set out in
Condition 4; and
(3) notify the Issuer, the Manager, the Note Trustee and the
Paying Agents in writing on or as soon as possible after
the first day of that Interest Period, of the Interest
Rate and the Interest so determined by it in relation to
that Interest Period, specifying to the Issuer and the
Manager the rates upon which they are based and (where
relevant) the names of the banks quoting those rates.
(b) The Interest, Interest Rate and relevant Payment Date made
available under Condition 4(d) may subsequently be amended (or
appropriate alternative arrangements made by way of
adjustment) without notice to Class A Offered Noteholders in
the event of a shortening of the Interest Period.
(c) If the Calculation Agent at any time for any reason does not
determine the Interest Rate or calculate the Interest for a
Class A Offered Note, the Manager shall do so and each such
determination or calculation shall be deemed to have been made
by the Calculation Agent. In doing so, the Manager shall apply
the provisions of this clause 22, with any necessary
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consequential amendments, to the extent that, in its opinion,
it can do so, and, in all other respects it shall do so in
such a manner as it shall deem fair and reasonable in all the
circumstances.
(d) If the Manager does not at any time for any reason determine a
Principal Payment, the Outstanding Principal Balance or the
Invested Amount applicable to Class A Offered Notes in
accordance with the Transaction Documents, the Principal
Payment, the Outstanding Principal Balance and the Invested
Amount may be determined by the Calculation Agent in
accordance with the Transaction Documents (but based on the
information in its possession) and each such determination or
calculation shall be deemed to have been made by the Manager.
The Calculation Agent may appoint any person as its agent for
the purpose of making any such calculation or determination.
23 NOTICE OF ANY WITHHOLDING OR DEDUCTION
If the Issuer or any Paying Agent is, in respect of any payment in
respect of the Class A Offered Notes compelled to withhold or deduct
any amount for or on account of any taxes, duties or charges as
contemplated by Condition 7, the Issuer must give notice to the
Principal Paying Agent, the Note Trustee and the Class A Offered
Noteholders in accordance with Condition 12 immediately after
becoming aware of the requirement to make the withholding or
deduction and must give to the Principal Paying Agent and the Note
Trustee such information as they reasonably require to enable each
of them to comply with the requirement.
24 EARLY REDEMPTION OF NOTES
(a) If the Issuer intends to redeem all (but not some only) of a
Class of Class A Offered Notes prior to its Final Maturity
Date pursuant to Condition 5(i) or (j) (which it may only do
at the direction of the Manager), the Manager shall give not
less than 5 days' prior notice to the Principal Paying Agent
and the Note Trustee before giving the requisite period of
notice to the relevant Class A Offered Noteholders in
accordance with Condition 5(i) or (j) and stating the date on
which such Class A Offered Notes are to be redeemed.
(b) The Principal Paying Agent shall, on receipt of a notice under
paragraph (a):
(1) notify the Clearing Agency of the proposed redemption,
specifying:
(A) the aggregate Outstanding Principal Balance and
Invested Amount (as the case may be) of each Class
of Class A Offered Notes to be redeemed;
(B) the amount of principal to be repaid in relation
to each Class of Class A Offered Notes; and
(C) the date on which each Class of Class A Offered
Notes are to be redeemed; and
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(2) promptly and in accordance with the relevant Conditions
on behalf of and at the expense of the Issuer publish
the notices required in connection with that redemption.
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25 PRO RATA REDEMPTION, PURCHASES AND CANCELLATION OF NOTES
(a) If the Issuer is required to redeem some (but not all) of a
Class of Class A Offered Notes prior to its Final Maturity
Date pursuant to Condition 5(a) the Manager shall on the
second Banking Day prior to each Payment Date give prior
notice to the Calculation Agent, the Principal Paying Agent
and the Note Trustee, as provided in Condition 5.
(b) On receipt of a notice under paragraph (a), the Principal
Paying Agent shall notify the Common Depository of the
proposed redemption, specifying in each case the aggregate
principal amount of the Class A Offered Notes to be redeemed,
the Class of Class A Offered Notes to be redeemed and the date
on which such Class A Offered Notes are to be redeemed.
(c) The Manager shall, no later than six Banking Days prior to
each Payment Date in respect of each Class of the Class A
Offered Notes calculate:
(1) the amount of principal to be repaid in respect of each
Class of Class A Offered Notes due on the related
Payment Date; and
(2) the Outstanding Principal Balance and Invested Amount of
each Class A Offered Note on the first day of the next
following Interest Period (after deducting any principal
due to be made on the related Payment Date),
and shall forthwith on the second Banking Day prior to the
Payment Date notify or cause to be notified to the Issuer, the
Calculation Agent the Note Trustee, the Principal Paying Agent
of each of those determinations in accordance with the
Supplementary Bond Terms Notice and Conditions. On receipt of
that notice, the Principal Paying Agent shall give a copy of
that notice to the Clearing Agency or any Common Depository
for them and, in the case of the Class A[ ] Notes only, in
accordance with the requirements of the Note Depository
Agreement.
(d) The Manager will immediately cause details of each
determination under clause 25(c) to be made available in
accordance with Condition 12 by one Banking Day before the
relevant Payment Date.
(e) If no principal is due to be repaid on the Class A Offered
Notes on any Payment Date, the Manager shall give notice or
shall cause a notice to this effect to be given to the Class A
Offered Noteholders in accordance with Condition 12.
(f) If any Class of Class A Offered Notes is redeemed in whole or
in part in accordance with the Conditions and the Transaction
Documents, the Principal Paying Agent will, if any Book-Entry
Notes are still outstanding in relation to that Class, cause
the Note Registrar to record all relevant details in the Note
Register. The Principal Paying Agent shall as soon as
possible, and in any event within three months after the date
of any redemption or purchase, furnish to each of the Issuer
and the Note Trustee
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a certificate setting out the aggregate Invested Amount or
Outstanding Principal Balance of Class A Offered Notes which
have been redeemed or the aggregate Invested Amount or
Outstanding Principal Balance of Class A Offered Notes which
have been purchased. If the Invested Amount of a Book-Entry
Note is reduced to nil, the Principal Paying Agent shall
destroy the relevant Book-Entry Note and issue a destruction
certificate forthwith to the Note Trustee and shall send a
copy of that certificate to the Issuer, the Manager and the
Note Trustee.
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26 NOTICES TO NOTEHOLDERS
(a) At the expense of the Issuer, the Principal Paying Agent shall
make available at its offices in New York City on a Banking
Day, all notices to Class A Offered Noteholders.
(b) The Principal Paying Agent shall promptly send to each of the
Note Trustee and the Issuer one copy of the form of every
notice given to Class A Offered Noteholders in accordance with
the Conditions.
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27 DOCUMENTS AND FORMS
(a) The Manager shall provide to the Principal Paying Agent for
distribution to each Paying Agent [(including the Irish Paying
Agent)] sufficient copies of all documents required by the
Conditions or the Note Trust Deed [or, with respect to the
Class A[ ] Notes, the Irish Stock Exchange (for so long as the
Class A[ ] Notes are listed and traded on the Irish Stock
Exchange and the rules of the Irish Stock Exchange so
require)] to be available to the Class A Offered Noteholders
for issue or inspection (including the Note Trust Deed, the
Master Trust Deed and the Supplementary Bond Terms Notice).
(b) The Manager shall provide to the Calculation Agent such
documents as the Calculation Agent may reasonably require from
the Manager or the Issuer (and in the case of the Issuer only
those documents that are in the Issuer's possession or power)
in order for the Calculation Agent properly to fulfil its
duties in respect of the Class A Offered Notes.
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28 AUTHENTICATION
The Principal Paying Agent shall authenticate or cause to be
authenticated the Book-Entry Notes and (if required) the Definitive
Notes (whether on initial issue or on replacement). The Principal
Paying Agent shall not be required to authenticate or cause to
authenticate any Book-Entry Note or Definitive Note unless it is
directed to do so in writing by the Issuer acting on the instruction
of the Manager.
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29 INDEMNITY
(a) Subject to clause 29(b) and clause 45, the Issuer shall
indemnify each Paying Agent, [the Class A[ ] Irish Paying
Agent,] the Note Registrar and the Calculation Agent and their
respective directors, officers and employees against any loss,
damages, proceeding, liability, cost, claim, action, demand or
expense (in this clause 29, each, an Expense) which the Paying
Agent, [the Class A[ ] Irish Paying Agent,] the Note Registrar
or the Calculation Agent and their respective directors,
officers and employees, as the case may be, may incur or which
may be made against the Paying Agent, [the Class A[ ] Irish
Paying Agent,] the Note Registrars or the Calculation Agents
(as the case may be), as a result of or in connection with the
Paying Agent's, [the Class A[ ] Irish Paying Agent's,] the
Note Registrar's or the Calculation Agent's, as the case may
be, appointment or the proper exercise and/or enforcement of
the Paying Agent's [or] [the Class A[ ] Irish Paying Agent's]
or the Note Registrar's or the Calculation Agent's, as the
case may be, duties under this deed, notwithstanding the
resignation or removal of that Paying Agent, [the Class A[ ]
Irish Paying Agent,] the Note Registrar or the Calculation
Agent in accordance with clause 33 (including any liability in
respect of payment of a cheque drawn by that Paying Agent [or
that Class A[ ] Irish Paying Agent] where the cheque is
collected or sued upon or an attempt at collection is made
after the amount in respect of which it is paid has been
returned to the Issuer under clause 20).
(b) The indemnity in paragraph (a) applies to any Expense of a
Paying Agent, [the Class A[ ] Irish Paying Agent,] the Note
Registrar or the Calculation Agent (as the case may be) only
to the extent the Expense does not result from the breach by
the Paying Agent, [the Class A[ ] Irish Paying Agent,] the
Note Registrar or the Calculation Agent (as the case may be)
of the terms of this deed or from the Paying Agent's, [the
Class A[ ] Irish Paying Agent's,] the Note Registrar's or the
Calculation Agent's (as the case may be) own fraud, wilful
default or negligence or that of its directors, officers or
employees or servants.
(c) Each of the Calculation Agent, the Paying Agents, [the Class
A[ ] Irish Paying Agent] and the Note Registrar severally
indemnifies the Issuer and the Manager and its respective
directors, officers and employees against any Expense which
the Issuer or the Manager or their respective directors,
officers or employees (as the case may be) may incur or which
may be made against it (but in no event punitive, indirect or
special damages or loss of profits) as a result of a breach by
the Calculation Agent, the Paying Agent[, the Class A[ ] Irish
Paying Agent] or the Note Registrar (as the case may be) of
the terms of this deed or its own fraud, wilful default or
negligence or that of its directors, officers or employees or
servants, including any failure to obtain and maintain in
existence any Authorisation required by it for the assumption,
exercise and performance of its powers and duties under this
deed. This clause 29 will survive the retirement or removal of
the Paying Agent, [the Class A[ ] Irish Paying Agent,] Note
Registrar or Calculation Agent (as the case may be) and the
termination of this deed.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
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30 THE NOTE REGISTER
30.1 APPOINTMENT OF NOTE REGISTRAR
The Issuer, at the direction of the Manager, appoints the Note
Registrar to be the initial Note Registrar upon the terms and
conditions of this deed. The Note Registrar accepts that
appointment.
30.2 DETAILS TO BE KEPT ON THE NOTE REGISTER
The Note Registrar shall keep the Note Register with respect to the
Class A Offered Notes in accordance with this deed, on which shall
be entered the following information relating to the Securitisation
Fund:
(a) (NAME) the name of the Securitisation Fund;
(b) (CREATION) the date of the creation of the Securitisation
Fund;
(c) (BOND ISSUE DATES) the Bond Issue Dates for Class A Offered
Notes issued in relation to the Securitisation Fund;
(d) (ORIGINAL PRINCIPAL BALANCE) the total Original Principal
Balance of Class A Offered Notes issued on each such Issue
Date;
(e) (OUTSTANDING PRINCIPAL BALANCE) the Outstanding Principal
Balance of each Class A Offered Note or Class of Class A
Offered Notes from time to time;
(f) (INVESTED AMOUNT) the Invested Amount of each Class A Offered
Note or Class of Class A Offered Notes from time to time;
(g) (SERIES) details of relevant Classes of Class A Offered Notes;
(h) (DETAILS OF NOTEHOLDERS) the name and address of each Class A
Offered Noteholder;
(i) (NUMBER OF NOTES) the number of Class A Offered Notes held by
each Class A Offered Noteholder;
(j) (DATE OF ENTRY) the date on which a person was entered as the
holder of Class A Offered Notes;
(k) (DATE OF CESSATION) the date on which a person ceased to be a
Class A Offered Noteholder;
(l) (ACCOUNT) the account to which any payments due to a Class A
Offered Noteholder are to be made (if applicable);
(m) (PAYMENTS) a record of each payment in respect of the Class A
Offered Notes; and
(n) (ADDITIONAL INFORMATION) such other information as:
(1) is required by the Supplementary Bond Terms Notice;
(2) the Note Registrar considers necessary or desirable; or
(3) the Manager or the Issuer reasonably requires.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
30.3 PAYMENTS OF PRINCIPAL AND INTEREST
(a) Any payment of principal or interest on any Class A Offered
Note shall be endorsed by the Note Registrar on the Note
Register. In the case of payments of principal, the
Outstanding Principal Balance and Invested Amount of the Class
A Offered Notes shall be reduced for all purposes by the
amount so paid and endorsed on the Note Register. Any such
record shall be prima facie evidence that the payment in
question has been made.
(b) If the amount of principal or interest (as the case may be)
due for payment on any Class A Offered Note is not paid in
full (including Carry Over Class A Charge Offs and by reason
of a deduction or withholding) the Note Registrar shall
endorse a record of that shortfall on the Note Register.
30.4 PLACE OF KEEPING REGISTER, COPIES AND ACCESS
The Note Register shall be:
(a) (PLACE KEPT) kept at the principal office of the Note
Registrar or at such place as the Issuer, the Manager and the
Note Registrar may agree;
(b) (ACCESS TO ISSUER AND MANAGER) open to the Issuer and the
Manager to inspect at the Note Registrar's Specified Office
during normal business hours;
(c) (INSPECTION BY CLASS A OFFERED NOTEHOLDERS) open for
inspection by a Class A Offered Noteholder during normal
business hours but only in respect of information relating to
that Class A Offered Noteholder; and
(d) (NOT FOR COPYING) not available to be copied by any person
(other than the Issuer or the Manager or the Note Trustee or
Paying Agent) except in compliance with such terms and
conditions (if any) as the Manager, the Issuer and the Note
Registrar or the Note Trustee or Paying Agent in their
absolute discretion nominate from time to time.
30.5 DETAILS ON NOTE REGISTER CONCLUSIVE
(a) (RELIANCE ON NOTE REGISTER) The Issuer, the Note Trustee and
the Paying Agents shall be entitled to rely on the Note
Register as being a correct, complete and conclusive record of
the matters set out in it at any time and whether or not the
information shown in the Note Register is inconsistent with
any other document, matter or thing. The Issuer, the Note
Trustee, and the Paying Agents and the Note Registrar are not
liable to any person in any circumstances whatsoever for any
inaccuracy in, or omission from, the Note Register.
(b) (NO TRUSTS) The Note Registrar shall not be obliged to enter
on the Note Register notice of any trust, Security Interest or
other interest whatsoever in respect of any Class A Offered
Notes and the Issuer, the Note Trustee, and the Paying Agents
and the Note Registrar shall be entitled to recognise a Class
A Offered Noteholder as the absolute owner of Class A Offered
Notes and the Issuer, the Note Trustee, and the Paying Agents
and the Note Registrar shall not be bound or affected by any
trust affecting the ownership of any Class A Offered Notes
unless ordered by a court or required by statute.
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30.6 ALTERATION OF DETAILS ON NOTE REGISTER
On the Note Registrar being notified of any change of name or
address or payment or other details of a Class A Offered Noteholder
by the Class A Offered Noteholder, the Note Registrar shall alter
the Note Register accordingly.
30.7 RECTIFICATION OF NOTE REGISTER
If:
(a) an entry is omitted from the Note Register;
(b) an entry is made in the Note Register otherwise than in
accordance with this deed;
(c) an entry wrongly exists in the Note Register;
(d) there is an error or defect in any entry in the Note Register;
or
(e) default is made or unnecessary delay takes place in entering
in the Note Register that any person has ceased to be the
holder of Class A Offered Notes.
the Note Registrar shall rectify the same.
30.8 CORRECTNESS OF NOTE REGISTER
The Note Registrar shall not be liable for any mistake on the Note
Register or in any purported copy except to the extent that the
mistake is attributable to its fraud, negligence or wilful default.
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31 CHANGES OF NOTE REGISTRAR
31.1 REMOVAL
The Issuer (on the direction of the Manager) may terminate the
appointment of the Note Registrar with the prior written approval of
the Note Trustee (which approval must not be unreasonably withheld
or delayed), with effect not less than 60 days from that notice.
31.2 RESIGNATION
Subject to this clause 31, the Note Registrar may resign its
appointment at any time by giving to the Issuer, the Manager and the
Note Trustee not less than 60 days written notice to that effect.
31.3 LIMITATION
Despite clauses 31.1 and 31.2:
(a) no resignation by or termination of the appointment of the
Note Registrar shall take effect until a new Note Registrar
approved in writing by the Note Trustee has been appointed on
terms previously approved in writing by the Note Trustee (in
each case, that approval not to be unreasonably withheld or
delayed); and
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(b) the appointment of a new Note Registrar shall be on terms and
subject to the conditions of this deed and the outgoing Note
Registrar shall co-operate fully to do all further acts and
things and execute any further documents as may be necessary
or desirable to give effect to the appointment of the new Note
Registrar.
31.4 APPOINTMENT OF NEW NOTE REGISTRAR
The Issuer shall forthwith appoint, as soon as reasonably practical,
a replacement Note Registrar in the event of the resignation or
removal of the Note Registrar under this clause 31. The retirement
or resignation of the Note Registrar shall not become effective
until the successor Note Registrar is appointed. The Manager must
assist the Issuer to appoint a new Note Registrar on this date or if
the Issuer fails to appoint a new Note Registrar by the date which
is one month prior to the Note Registrar's retirement or removal,
the Note Registrar may petition any court of competent jurisdiction
at the expense of the Issuer (which expense is an Expense for the
purposes of the Master Trust Deed) for the appointment of a new Note
Registrar acceptable to the Issuer.
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32 GENERAL
32.1 COMMUNICATIONS TO CLASS A OFFERED NOTEHOLDERS
The Principal Paying Agent shall, upon receipt from the Issuer,
Manager, Security Trustee, the Calculation Agent, the Note Registrar
or Note Trustee of any communication to be delivered to Class A
Offered Noteholders, including any communications pursuant to this
deed or any other solicitation of notice from or consent of the
Class A Offered Noteholders pursuant to or relating to this deed,
forward such communications to the Class A Offered Noteholders,
along with instructions that the responses relating to such
communications be returned to the Principal Paying Agent. Such
communication shall include the date upon which the response to such
solicitation shall be delivered (the RESPONSE DATE). The Principal
Paying Agent shall treat any Class A Offered Noteholder who has not
delivered its response as of the Response Date as having withheld
its consent to the proposed action. The Principal Paying Agent shall
notify the Issuer, Manager and Note Trustee of the results of any
such solicitations of consent.
The Principal Paying Agent will not be responsible for, or liable to
any person in respect of the contents of any communications
delivered to or from the Class A Offered Noteholders.
32.2 INTENTIONALLY DELETED
32.3 IDENTITY
(a) Each Paying Agent shall (except as ordered by a court of
competent jurisdiction or as required by law) be entitled to
treat the person:
(1) who is, while a Book-Entry Note remains outstanding, the
registered owner of that Book-Entry Note as the person
entitled to receive payments of principal or interest
(as applicable) and each person shown in the records of
the Common Depository as the
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Note Trust Deed SMHL Global Fund [ ]-[ ]
holder of any Class A Offered Note represented by a
Book-Entry Note shall be entitled to receive from the
registered owner of that Book-Entry Note any payment so
made in accordance with the respective rules and
procedures of the Common Depository and on the terms and
subject to the conditions of that Book-Entry Note;
(2) who is the registered owner of any relevant Definitive
Note, as the absolute owner or owners of that Definitive
Note, (whether or not that Definitive Note, is overdue
and despite any notice of ownership or writing on it or
any notice of previous loss or theft or of any trust or
other interest in it); or
(3) who, when a Book-Entry Note in respect of any Class of
Notes is no longer outstanding but Definitive Notes in
respect of that Class of Notes have not been issued, is
for the time being the Note Trustee, as the person
entrusted with the receipt of principal or interest, as
applicable, on behalf of the relevant Noteholders,
and in all cases and for all purposes despite any notice to
the contrary and shall not be liable for so doing.
(b) [The Class A[ ] Irish Paying Agent shall (except as ordered by
a court of competent jurisdiction or as required by law) be
entitled to treat the person who is the registered owner of a
Class A[ ] Note as the person entitled to receive payments of
principal or interest (as applicable) and each person shown in
the records of the relevant Clearing Agency as the holder of
any Class A[ ] Note shall be entitled to receive from the
registered owner of that Class A[ ] Note any payment so made
in accordance with the respective rules and procedures of the
relevant Clearing Agency and on the terms and subject to the
conditions of that Class A[ ] Note, and in all cases and for
all purposes despite any notice to the contrary and shall not
be liable for so doing.]
(c) [The Issuer, the Manager, the Security Trustee and the Class
A[ ] Irish Paying Agent shall be entitled to deal with the
Clearing Agency in respect of any Class A[ ] Notes for all
purposes of this deed, the Master Trust Deed and the
Supplementary Bond Terms Notice (including the payment of
principal and interest on the Class A[ ] Notes and the giving
of instructions, notices or directions hereunder) as the sole
holder of Class A[ ] Notes, and shall have no obligation to
any Class A[ ] Noteholder and none of the Issuer, Manager,
Security Trustee or the Class A[ ] Irish Paying Agent will be
affected by notice to the contrary.]
32.4 NO SET-OFF
No Paying Agent shall exercise any right of set-off, withholding,
counterclaim or lien against, or make any deduction in any payment
to, any person entitled to receive amounts of principal or interest
on the Class A Offered Notes in respect of moneys payable by it
under this deed.
32.5 RELIANCE
(a) Each of the Note Trustee, Calculation Agent, the Note
Registrar and the Paying Agent(s) shall be protected and shall
incur no liability for or in respect of any action taken,
omitted or suffered by it in reliance upon any
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Note Trust Deed SMHL Global Fund [ ]-[ ]
instruction, request or order from the Issuer or the Manager
or in reliance upon any Class A Offered Note or upon any
notice, resolution, direction, consent, certificate,
affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been delivered,
signed or sent by the proper party or parties.
(b) [The Class A[ ] Irish Paying Agent shall be protected and
shall incur no liability for or in respect of any action
taken, omitted or suffered by it in reliance upon any
instruction, request or order from the Issuer or the Manager
or upon any notice, resolution, direction, consent,
certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been
delivered, signed or sent by the proper party or parties.]
32.6 ENTITLED TO DEAL
The Note Trustee, the Calculation Agent, the Note Registrar, each
Paying Agent [and the Class A[ ] Irish Paying Agent] shall not be
precluded from acquiring, holding or dealing in any Class A Offered
Notes [or Class A[ ] Notes] or from engaging or being interested in
any contract or other financial or other transaction with the
Issuer, the Manager or the Mortgage Manager and in no event
whatsoever (other than fraud, negligence or wilful default) shall
any Note Trustee, Calculation Agent, Note Registrar[, the Class A[ ]
Irish Paying Agent] or any Paying Agent be liable to account to the
Issuer or any person entitled to receive amounts of principal or
interest on the Class A Offered Notes [or Class A[ ] Notes] for any
profit made or fees or commissions received in connection with this
deed or any Class A Offered Notes [or any Class A[ ] Notes].
32.7 CONSULTATION
Each of the Note Trustee, the Calculation Agent, the Note Registrar
and the Paying Agent may consult as to legal matters with lawyers
selected by it, who may be employees of or lawyers to any party to
this deed.
32.8 DUTIES
(a) The Note Trustee, the Calculation Agent, the Note Registrar
and the Paying Agents shall perform the duties, and only the
duties, contained in or reasonably incidental to this deed and
the Conditions and in the Class A Offered Notes, and no
implied duties or obligations (other than general laws as to
agency) shall be read into this deed or the Class A Offered
Notes against the Note Trustee, the Calculation Agent, the
Note Registrar or the Paying Agents. None of the Note Trustee,
the Calculation Agent, the Note Registrar or the Paying Agents
shall be required to take any action under this deed which
would require it to incur any expense or liability, for which
(in its reasonable opinion) either it would not be reimbursed
within a reasonable time or in respect of which it has not
been indemnified to its satisfaction.
(b) [The Class A[ ] Irish Paying Agent shall perform the duties,
and only the duties, contained in or reasonably incidental to
this deed, the Master Trust Deed and the Supplementary Bond
Terms Notice and no implied duties or obligations (other than
general laws as to agency) shall be read into this
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deed, the Master Trust Deed or the Supplementary Bond Terms
Notice against the Class A[ ] Irish Paying Agent. The Class A[
] Irish Paying Agent shall not be required to take any action
under this deed, the Master Trust Deed and the Supplementary
Bond Terms Notice which would require it to incur any expense
or liability, for which (in its reasonable opinion) either it
would not be reimbursed within a reasonable time or in respect
of which it has not been indemnified to its satisfaction.]
32.9 INCOME TAX RETURNS
The Principal Paying Agent shall deliver to each Class A Offered
Noteholder such information as may be reasonably required to enable
such Class A Offered Noteholder to prepare its income tax returns.
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33 CHANGES IN PAYING AGENTS[, CLASS A[ ] IRISH PAYING AGENT] AND CALCULATION
AGENT
33.1 REMOVAL
The Issuer (on the direction of the Manager) may at any time:
(a) with the prior written approval of the Note Trustee appoint:
(1) additional or alternative Paying Agents; or
(2) an alternative Calculation Agent;
(b) subject to this clause 33, terminate the appointment of any
Paying Agent or the Calculation Agent by giving written notice
to that effect to each Designated Rating Agency, the
Calculation Agent (if its appointment is to be terminated),
the Principal Paying Agent and the Note Trustee and (if
different) the Paying Agent whose appointment is to be
terminated:
(1) with effect immediately on that notice, if any of the
following occurs in relation to the Paying Agent or
Calculation Agent (as the case may be):
(A) an Insolvency Event has occurred in relation to
the Paying Agent or Calculation Agent;
(B) the Paying Agent or Calculation Agent has ceased
its business;
(C) the Paying Agent or Calculation Agent fails to
comply with any of its obligations under this deed
and, if capable of remedy, such failure is not
remedied within five Banking Days after the
earlier of the Paying Agent or the Calculation
Agent, as the case may be, having become aware of
that failure and the receipt by the Paying Agent
or the Calculation Agent, as the case may be, of
written notice with respect thereto from the
Issuer or Manager; or
(2) otherwise, with the prior written approval of the Note
Trustee (which approval must not be unreasonably
withheld or delayed) with effect from the next
succeeding Payment Date, if such date
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falls more than 30 days after the notice, or otherwise
from the following Payment Date.
33.2 RESIGNATION
Subject to this clause 33, a Paying Agent or the Calculation Agent
may resign its appointment under this deed at any time by giving to
the Issuer, the Manager, each Designated Rating Agency and (where a
Paying Agent is resigning and the Paying Agent is not the Principal
Paying Agent) the Principal Paying Agent not less than 60 days'
written notice to that effect, which notice shall expire not less
than 30 days before any due date for payment of any Class A Offered
Notes.
33.3 LIMITATION
Despite clauses 33.1 and 33.2:
(a) no resignation by or termination of the appointment of the
Principal Paying Agent shall take effect until a new Principal
Paying Agent approved in writing by the Note Trustee has been
appointed on terms previously approved in writing by the Note
Trustee (in each case, that approval not to be unreasonably
withheld or delayed);
(b) subject to clause 33.3(a), if the Principal Paying Agent or
the Calculation Agent gives a notice of resignation in
accordance with clause 33.2 and if by the date which is one
(1) month prior to the date of the Principal Paying Agent's or
the Calculation Agent's (as the case may be) proposed
retirement or removal, the Issuer or the Manager has not
appointed a new Principal Paying Agent or Calculation Agent,
then the Principal Paying Agent or Calculation Agent (as the
case may be) may petition any court of competent jurisdiction
at the expense of the Issuer (which expense is an Expense for
the purposes of the Master Trust Deed) for the appointment of
a new Principal Paying Agent or Calculation Agent (as the case
may be) acceptable to the Issuer and the Note Trustee;
(c) no resignation by or termination of the appointment of any
Paying Agent shall take effect if as a result of that
resignation or termination there would cease to be a Paying
Agent which has a Paying Office in the City of New York (in
the case of the Class A[ ] Notes) [or the United Kingdom (in
the case of the Class A[ ] Notes)] [and the Republic of
Ireland (for so long as the Class A[ ] Notes are listed and
traded on the Irish Stock Exchange)];
(d) no appointment or termination of the appointment of any Paying
Agent or the Calculation Agent (as the case may be) shall take
effect unless and until notice has been given to the Class A
Offered Noteholders in accordance with the Conditions; and
(e) no resignation by or termination of the appointment of the
Calculation Agent shall take effect until a new Calculation
Agent has been appointed; and
(f) the appointment of any additional Paying Agent shall be on the
terms and subject to the conditions of this deed and each of
the parties to this deed shall co-operate fully to do all
further acts and things and execute any further documents as
may be necessary or desirable to give effect to the
appointment of the Paying Agent (which shall be, in the case
of an
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appointment under clause 33.1(a) or a termination under clause
33.1(b)(2), at the cost of the relevant Paying Agent).
In addition, the Issuer shall forthwith appoint a Paying Agent in
New York City[, the United Kingdom and the Republic of Ireland (for
so long as the Class A[ ] Notes are listed and traded on the Irish
Stock Exchange) (as applicable)] (if there is no such Paying Agent
at the time) and while such circumstances subsist maintain such a
Paying Agent. Notice of any such termination or appointment and of
any change in the office through which any Paying Agent will act
will be given in accordance with Condition 12.
33.4 DELIVERY OF AMOUNTS
If the appointment of the Principal Paying Agent terminates, the
Principal Paying Agent shall, on the date on which that termination
takes effect, pay to the successor Principal Paying Agent any amount
held by it for payment of principal or interest in respect of any
Class A Offered Note and shall deliver to the successor Principal
Paying Agent all records maintained by it pursuant to this deed and
all documents (including any Definitive Notes) held by it.
33.5 SUCCESSOR TO PRINCIPAL PAYING AGENT
(a) On the execution by the Issuer, the Manager and any successor
Principal Paying Agent of an instrument effecting the
appointment of that successor Principal Paying Agent and a
deed whereby the successor agrees to be bound by the terms of
this deed, that successor Principal Paying Agent shall,
without any further act, deed or conveyance, become vested
with all the authority, rights, powers, trusts, immunities,
duties and obligations of its predecessor with effect as if
originally named as Principal Paying Agent in this deed and
that predecessor, on payment to it of the pro rata proportion
of its administration 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 Principal Paying Agent is appointed.
(b) Any corporation:
(1) into which the Principal Paying Agent is merged;
(2) with which the Principal Paying Agent is consolidated;
(3) resulting from any merger or consolidation to which the
Principal Paying Agent is a party;
(4) to which the Principal Paying Agent 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 upon
execution by the Issuer, the Manager and any such merged or
consolidated entity of a deed whereby that entity agrees to be
bound by the terms of this deed) and to the extent permitted
by applicable law, become the successor Principal Paying Agent
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 Issuer
or the Manager, and after that effective date all references
in this deed to the Principal Paying Agent shall be references
to
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that corporation.
(c) The Manager undertakes to use its best endeavours to procure
execution by the relevant parties of the deeds referred to in
clauses 33.5(a) and 33.5(b)
33.6 SUCCESSOR TO CALCULATION AGENT
(a) On the execution by the Issuer, the Manager and any successor
Calculation Agent of an instrument effecting the appointment
of that successor Calculation Agent and a deed whereby the
successor agrees to be bound by the terms of this deed, that
successor Calculation Agent shall, without any further act,
deed or conveyance, become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of
its predecessor with effect as if originally named as
Calculation Agent in this deed and that predecessor, on
payment to it of the pro rata proportion of its administration
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 Calculation
Agent is appointed.
(b) Any corporation:
(1) into which the Calculation Agent is merged;
(2) with which the Calculation Agent is consolidated;
(3) resulting from any merger or consolidation to which the
Calculation Agent is a party;
(4) to which the Calculation Agent 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 upon
execution by the Issuer, the Manager and any such merged or
consolidated entity of a deed whereby that entity agrees to be
bound by the terms of this deed) and to the extent permitted
by applicable law, become the successor Calculation Agent
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 Issuer
or the Manager, and after that effective date all references
in this deed to the Calculation Agent shall be references to
that corporation.
(c) The Manager undertakes to use its best endeavours to procure
execution by the relevant parties of the deeds referred to in
clauses 33.6(a) and 33.6(b).
33.7 NOTICE TO NOTEHOLDERS
The Manager on behalf of the Issuer shall, within 14 days of:
(a) the termination of the appointment of any Paying Agent or the
Calculation Agent;
(b) the appointment of a new Paying Agent or Calculation Agent; or
(c) the resignation of any Paying Agent or Calculation Agent,
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Note Trust Deed SMHL Global Fund [ ]-[ ]
give to the Class A Offered Noteholders notice of the
termination, appointment or resignation in accordance with
Condition 12 (in the case of a termination under clause
33.1(b) or 33.2 at the cost of the outgoing Paying Agent or
the Calculation Agent, as the case may be).
33.8 CHANGE IN PAYING OFFICE OR SPECIFIED OFFICE
(a) If any Paying Agent proposes to change its Paying Office or to
nominate a further Paying Office (which must be within the
same city as its previous Paying Office), it must give to the
Issuer, the Manager, the Note Trustee and, in the case of a
change in the Paying Office of a Paying Agent other than the
Principal Paying Agent, the Principal Paying Agent, not less
than 30 days' prior written notice of that change, giving the
address of the new Paying Office and stating the date on which
the change is to take effect. No change of Paying Office may
occur within the period of 30 days before any due date for
payment of any Notes.
(b) If the Calculation Agent proposes to change its Specified
Office (which must be in New York), or to nominate a further
Specified Office, it must give to the Issuer, the Manager and
the Note Trustee, not less than 30 days' prior written notice
of that change, giving the address of the new Specified Office
and stating the date on which the change is to take effect. No
change of specified office may occur within the period of 30
days before any due date for payment of any Class A Offered
Notes.
(c) If the Note Registrar proposes to change its Specified Office
(which must be in New York), or to nominate a further
Specified Office, it must give to the Issuer, the Manager and
the Note Trustee, not less than 30 days' prior written notice
of that change, giving the address of the new Specified Office
and stating the date on which the change is to take effect. No
change of specified office may occur within the period of 30
days before any due date for payment of any Class A Offered
Notes.
(d) The Manager on behalf of the Issuer must, within 14 days of
receipt of a notice under paragraph (a) or (b) (unless the
appointment is to terminate pursuant to clause 33.1 or 33.2 on
or prior to the date of that change) give to the Class A
Offered Noteholders notice in accordance with the Conditions
of that change and of the address of the new Paying Office or
Specified Office (as the case may be) but the costs of giving
that notice shall be borne by the Paying Agent or the
Calculation Agent (as the case may be) which is changing its
Paying Office or Specified Office and not by the Issuer or the
Manager.
(e) Despite any other provision of this deed, no Paying Office may
be located in Australia.
33.9 [CLASS A[ ] IRISH PAYING AGENT]
(a) [The Issuer, at the direction of the Manager, may at any time,
subject to this clause 33.9, terminate the appointment of the
Class A[ ] Irish Paying Agent under this deed at any time by
giving written notice to the Class A[ ] Irish Paying Agent to
that effect.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(b) Subject to this clause 33.9, the Class A[ ] Irish Paying Agent
may resign its appointment under this deed at any time by
giving to the Issuer and the Manager not less than 90 days'
written notice to that effect.
(c) The termination of the appointment or the retirement of the
Class A[ ] Irish Paying Agent will not have any effect until a
replacement agent is appointed with an office in the Republic
of Ireland for so long as the listing rules of the Irish Stock
Exchange require such a paying agent as a condition of listing
and trading the Class A[ ] Notes on the Daily Official List of
the Irish Stock Exchange.
(d) Where:
(1) the Issuer (at the direction of the Manager) has
terminated the appointment of the Class A[ ] Irish
Paying Agent in accordance with clause 33.9(a), the
Manager must promptly, after giving notice of such
termination, notify each Designated Rating Agency of the
termination in writing.
(2) the Class A[ ] Irish Paying Agent has resigned from its
appointment in accordance with clause 33.9(b), the
Manager must promptly, after receiving notice of such
resignation, notify each Designated Rating Agency of the
resignation in writing.
(e) Where under clause 33.9(c) a replacement agent is required to
be appointed for so long as the Class A[ ] Notes are listed
and traded on the Irish Stock Exchange, then the outgoing
Class A[ ] Irish Paying Agent must do all things reasonably
necessary to assist the Manager and the replacement agent to
enable the replacement agent to be able to perform its
obligations under this deed, and all other deeds, agreements
and other arrangements entered into by the existing Class A[ ]
Irish Paying Agent in relation to the Class A[ ] Notes.]
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34 WAIVER
(a) The Note Trustee may, without the consent of any of the Class
A Offered Noteholders, and if directed to do so by the holders
of at least 75% of the aggregate Invested Amount of the Class
A Offered Notes calculated and expressed in the A$ Equivalent
must, and 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 Class A Offered Noteholders are
not materially prejudiced unless the Note Trustee is acting at
the direction of the holders of at least 75% of the aggregate
Invested Amount of the Class A Offered Notes calculated and
expressed in the A$ Equivalent), waive or authorise on any
terms and subject to any conditions as it sees fit and proper:
(1) any breach or proposed breach by the Issuer of any of
the covenants or provisions contained in this deed or in
the Class A Offered Notes (including the Conditions) or
any other Transaction Document (as to which evidence of
a breach of one Class A Offered Note shall be deemed
evidence of a breach of all Class A Offered Notes); or
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(2) 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 34 in contravention of any express
direction given in writing by holders of Class A Offered Notes
representing at least 75% of the aggregate Invested Amount of
the Class A Offered Notes calculated and expressed in the A$
Equivalent or the affected class of Class A Offered Notes as
applicable. No direction or request shall affect any waiver,
authorisation or determination previously given or made.
(b) Any waiver, authorisation or determination under this clause
34 is binding on the Class A Offered Noteholders and if, but
only if, the Note Trustee so requires, shall be notified by
the Issuer to the Class A Offered Noteholders in accordance
with Condition 12 as soon as practicable.
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35 AMENDMENT
35.1 APPROVAL
The Manager and the Issuer may, following the giving of not less
than ten Banking Days' prior notice to each Designated Rating
Agency:
(a) by way of supplemental deed entered into with the parties to
this deed alter, add to or modify this deed (including this
clause 35), the Conditions and this clause 35 or any other
Transaction Document to which the Note Trustee is a party; or
(b) subject to (a), with the consent of the Note Trustee, alter,
add to or modify any Transaction Document (in so far as any
such amendment affects or relates to the Securitisation Fund),
so long as that alteration, addition or modification is:
(c) to correct a manifest error or ambiguity or is of a formal,
technical or administrative nature only;
(d) 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;
(e) in the opinion of the Note Trustee appropriate or expedient as
a consequence of an amendment to any statute 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 statute 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
Securitisation Fund); or
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(f) in the reasonable opinion of the Note Trustee neither
prejudicial nor likely to be prejudicial to the interests of
the Class A Offered Noteholders as a whole, and in the manner,
and to the extent, permitted by the Transaction Documents.
35.2 RESOLUTION OF CLASS A OFFERED NOTEHOLDERS
Where in the opinion of the Note Trustee a proposed alteration,
addition or modification to this deed or any other Transaction
Document, other than an alteration, addition or modification
referred to in clause 35.1, is prejudicial or likely to be
prejudicial to the interest of Class A Offered Noteholders as a
whole or any class of Class A Offered Noteholders, the Note Trustee,
the Manager and the Issuer may make that alteration, addition or
modification only if sanctioned in writing by holders of at least
75% of the aggregate Invested Amount of each such Class of Class A
Offered Notes calculated and expressed in the A$ Equivalent, as
applicable, and in any case, with respect to the Class A[ ] notes,
in compliance with the TIA.
35.3 DISTRIBUTION OF AMENDMENTS
The Manager shall distribute to all Class A Offered Noteholders and
each Designated Rating Agency a copy of any amendments made under
clause 35.1 or 35.2 in accordance with Condition 12 as soon as
reasonably practicable after the amendment has been made.
35.4 AMENDMENTS BINDING
Any amendment under this clause 35 is binding on the Noteholders.
35.5 NO RATING AGENCY DOWNGRADE
If each of the Designated Rating Agencies has confirmed in writing
that a proposed alteration, addition or revocation if effected will
not adversely affect the rating or credit assessment then assigned
by it to the Class A Offered Notes or the relevant sub-class of the
Class A Offered Notes, the Note Trustee shall be entitled to take
into account such confirmation when determining whether any proposed
alteration, addition or revocation will be prejudicial or will be
likely to be prejudicial to the interests of Class A Offered
Noteholders or a sub-class thereof.
35.6 CONFORMITY WITH TIA
Every amendment of this deed executed pursuant to this clause 35
shall conform to the requirements of the TIA, in respect of the
Class A[ ] Notes, as then in effect so long as this deed shall then
be qualified under the TIA.
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36 CLASS A OFFERED NOTEHOLDERS
36.1 ABSOLUTE OWNER
(a) The Issuer, 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
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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 Issuer,
the Manager, the Security Trustee, the Note Trustee or the
Paying Agent is affected by any notice to the contrary.
(b) So long as the Class A Offered Notes, or any of them, are
represented by a Book-Entry Note, the Issuer, 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 Class A Offered Note as the absolute owner of
that Class A Offered Note and the Issuer, the Manager, the
Note Trustee and the Paying Agent 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 Issuer in respect of payment due on the
Class A Offered Notes for so long as the Class A Offered Notes
are represented by a Book-Entry Note and the relevant
obligations of the Issuer will be discharged by payment to the
registered holder of the Book-Entry Note in respect of each
amount so paid.
(c) All payments made to the owner of a Class A Offered Note under
this clause 36 (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 Class A Offered Notes.
(d) Any instalment of interest or principal, payable on any Class
A Offered Note which is punctually paid or duly provided for
by the Issuer to the Paying Agent on the applicable Payment
Date or Final Maturity Date shall be paid to the person in
whose name such Class A Offered Note is registered on the
Record Date, by cheque mailed first-class, postage prepaid, to
such person's address as it appears on the Note Register on
such Record Date, except that, unless Definitive Notes have
been issued pursuant to clause 3.3 or clause 3.4, with respect
to Class A Offered Notes registered on the Record Date in the
name of the nominee of the Clearing Agency (initially, such
nominee to be the Common Depository), payment will be made by
wire transfer in immediately available funds to the account
designated by such nominee and except for the final instalment
of principal payable with respect to such Class A Offered Note
on a Payment Date or Final Maturity Date (and except for the
redemption of any Class A Offered Note called for redemption
pursuant to Condition 5 which shall be payable as provided
below).
(e) The principal of each Class A Offered Note shall be payable on
each Payment Date and the Final Maturity Date as set forth in
the Conditions. The Principal Paying Agent shall notify the
person in whose name a Class A Offered Note is registered at
the close of business on the Record Date preceding the Payment
Date on which the Issuer expects that the final instalment of
principal and interest on such Class A Offered 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 Class A Offered
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Note and shall specify the place where such Class A Offered
Note may be presented and surrendered for payment of such
instalment. Notices in connection with redemptions of Class A
Offered Notes shall be mailed to Class A Offered Noteholders
as provided in Condition 12.
36.2 CLEARING AGENCY CERTIFICATE
The Issuer, the Manager, the Security Trustee and the Note Trustee
may call for and shall be at liberty to accept and place full
reliance on as sufficient evidence a certificate or letter or
confirmation signed on behalf of any Clearing Agency or any form of
record made by either of them to the effect that at any particular
time or throughout any particular period any particular person is,
was or will be shown in its records as entitled to a particular
interest in a Book-Entry Note.
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37 CURRENCY INDEMNITY
Subject to this deed including, without limitation, clause 45, the
Issuer indemnifies the Note Trustee and the Class A Offered
Noteholders and keeps them indemnified against:
(a) any loss or damage incurred by any of them arising from the
non-payment by the Issuer of the Relevant Class A Currency due
to the Note Trustee or the relevant Class A Offered
Noteholders under this deed or the relevant Class A Offered
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 the
Relevant Class A Currency, and under which the Note Trustee
and the Class A Offered Noteholders do not have an option to
have that judgment or order expressed in the Relevant Class A
Currency, and those prevailing at the date of actual payment
by the Issuer; and
(b) any deficiency arising or resulting from any variation in
rates of exchange between:
(1) the date (if any) as of which the non-Relevant Class A
Currency equivalent of the Relevant Class A Currency
amounts due or contingently due under this deed (other
than this clause 37) or in respect of the relevant Class
A Offered Notes is calculated for the purposes of any
bankruptcy, insolvency or liquidation of the Issuer; and
(2) 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 the
Relevant Class A Currency.
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) If any payment is made by the Issuer under this deed or the
Class A Offered Notes or if the Note Trustee or any Class A
Offered Noteholder
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Note Trust Deed SMHL Global Fund [ ]-[ ]
receives or recovers any money under or pursuant to this deed
or the Class A Offered Notes in a currency (RECEIPT CURRENCY)
other than the currency in which the money was payable
pursuant to the terms of this deed or the Class A Offered
Notes (AGREED CURRENCY), the Issuer must, as a separate and
additional liability, pay to the recipient such additional
amount so that after conversion from the Receipt Currency into
the Agreed Currency of such money so paid, received or
recovered and after the payment of all commission and expenses
in relation to such conversion the recipient will receive net
in its hands an amount in the Agreed Currency equal to the
amount of the money payable under this deed or the Class A
Offered Notes in the Agreed Currency.
(d) Any payment purportedly pursuant to the terms of this deed or
a Class A Offered Note in a currency other than the currency
in which it is required to be paid will not discharge or
satisfy the relevant obligation of the payer to make the
payment except to the extent that, and insofar as, the
currency in which the payment is required to be made is
acquired by sale of the currency in which the payment was
actually made.
(e) The indemnities in this clause 37 are obligations of the
Issuer separate and independent from its obligations under the
other provisions of this deed and Class A Offered Notes and
apply irrespective of any time or indulgence granted by the
Note Trustee or the Class A Offered 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 Issuer for a liquidated sum
or sums in respect of amounts due under this deed (other than
this clause 37) or the Class A Offered Notes. Any deficiency
will constitute a loss suffered by the Class A Offered
Noteholders and no proof or evidence of any actual loss shall
be required by the Issuer or its liquidator.
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38 NEW NOTE TRUSTEES
38.1 APPOINTMENT BY ISSUER
The Issuer 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 Class A Offered Notes calculated and expressed in the A$
Equivalent. 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.
38.2 APPOINTMENT BY NOTE TRUSTEE
(a) The Note Trustee may, on not less than 14 days prior written
notice to the Issuer 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:
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(1) if the Note Trustee considers that appointment to be in
the interests of the Class A Offered Noteholders;
(2) 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
(3) 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 Issuer.
(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 38. The reasonable remuneration of any person appointed
under this clause 38 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.
38.3 NOTICE
(a) The Issuer shall notify the Principal Paying Agent and the
Class A Offered 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.
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39 NOTE TRUSTEE'S RETIREMENT AND REMOVAL
39.1 REMOVAL BY ISSUER
The Issuer (or the Manager after informing the Issuer of its
intention to do so) may at any time terminate the appointment of the
Note Trustee by giving written notice to that effect to each
Designated Rating Agency and the Note Trustee with
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effect immediately on that notice, subject to clause 39.4, if any of
the following occurs in relation to the Note Trustee:
(a) an Insolvency Event has occurred in relation to the Note
Trustee in its personal capacity or in respect of its personal
assets (and not in its capacity as trustee of any trust or in
respect of any assets it holds as trustee);
(b) 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 Issuer), and, if capable of remedy, the Note Trustee
does not remedy that failure within 14 days after the earlier
of:
(1) the Note Trustee becoming aware of that failure; and
(2) receipt by the Note Trustee of a written notice with
respect thereto from either the Issuer or the Manager;
or
(d) the Note Trustee fails to satisfy any obligation imposed on it
under the TIA with respect to the Securitisation Fund or this
deed or comply with clause 39.9.
39.2 REMOVAL BY CLASS A OFFERED NOTEHOLDERS
The Class A Offered Noteholders may resolve by written consent of
the holders of at least 75% of the aggregate Invested Amount of the
Class A Offered Notes calculated and expressed in the A$ Equivalent
to require the Issuer to terminate the appointment of the Note
Trustee or Note Trustees for the time being of this deed.
39.3 RESIGNATION
Subject to this clause 39, the Note Trustee may resign its
appointment under this deed at any time by giving to the Issuer, 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 (or such lesser time as the Manager,
the Issuer and the Note Trustee may agree) before any due date for
payment of the Class A Offered Notes.
39.4 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
Xxxxx'x, Xxxxx Ratings and S&P (such confirmation not to be
unreasonably withheld or delayed) that such appointment will not
cause a downgrading, qualification or withdrawal of the then current
ratings of the Class A Offered Notes. The Manager is responsible for
obtaining such confirmation from Xxxxx'x, Fitch Ratings and S&P.
39.5 TRUST CORPORATION
The Issuer undertakes that if the 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
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retirement or removal of any Note Trustee shall not become effective
until a successor Note Trustee which is a Trust Corporation is
appointed, save as hereinafter provided. The Manager must assist the
Issuer to appoint a new note trustee of this deed. If the Issuer
fails to appoint a new Note Trustee by the date which is one (1)
month prior to the date of the Note Trustee's proposed retirement or
removal, the Note Trustee shall be entitled to appoint a new Note
Trustee which is a Trust Corporation and such appointment shall be
deemed to have been made under clause 38.2 of this deed. If no other
person can be found to act as the Note Trustee, the Class A Offered
Noteholders may appoint a Note Trustee from among the holders of the
Class A Offered Notes.
39.6 SUCCESSOR TO NOTE TRUSTEE
(a) On the execution by the Issuer, the Manager and any successor
Note Trustee of an instrument effecting the appointment of
that successor Note Trustee and a deed whereby the successor
agrees to be bound by this deed, 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:
(1) into which the Note Trustee is merged;
(2) with which the Note Trustee is consolidated;
(3) resulting from any merger or consolidation to which the
Note Trustee is a party;
(4) 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 upon
execution by the Issuer, the Manager and any such merged or
consolidated entity of a deed whereby that entity agrees to be
bound by the terms of this deed) and to the extent permitted
by applicable law, including Section 310(a) of the TIA, 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 Issuer or the Manager, and after
that effective date all references in this deed to the Note
Trustee shall be references to that corporation.
(c) The Manager undertakes to use its best endeavours to procure
execution by the relevant parties of the deeds referred to in
clauses 39.6(a) and 39.6(b).
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39.7 NOTICE
(a) The Issuer shall notify the Principal Paying Agent and the
Class A Offered Noteholders of any appointment of a new note
trustee or any retirement or removal of the 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
its retirement as soon as practical.
39.8 RETENTION OF LIEN
(a) Nothing in this clause 39 shall release the Note Trustee from
any liability incurred by it prior to its retirement.
(b) The outgoing Note Trustee will remain entitled to the benefit
of the indemnities granted by this deed to the outgoing Note
Trustee in respect of any liability, cost or other obligation
incurred by it while acting as Note Trustee, as if it were
still the Note Trustee under this deed.
39.9 ELIGIBILITY; DISQUALIFICATION
(a) The Note Trustee shall at all times satisfy the requirements
of Section 310(a) of the TIA.
(b) The Note Trustee shall have a combined capital and surplus (as
those terms are used in the TIA) of at least US$50,000,000 as
set forth in its most recent published annual report of
condition.
(c) The Note Trustee shall comply with Section 310(b) of the TIA,
provided that any indenture or indentures under which other
securities of the Trustee are outstanding shall be excluded
from the operation of Section 310(b)(1) of the TIA for the
purposes of paragraph (b) if the requirements for such
exclusion set out in Section 310(b)(1) of the TIA are met.
(d) Neither the Manager, the Issuer nor any of their related
entities may be appointed as Note Trustee.
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40 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 Class A
Offered Notes.
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41 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.
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42 NOTICES
42.1 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:
(1) (in the case of delivery in person or by post) when
delivered, received or left at the address of the person
shown in clause 42.2 or to any other address of which
the sender may have been notified by the recipient; and
(2) (in the case of facsimile transmission) on receipt of a
transmission report confirming successful transmission
to the number shown in clause 42.2 or any other number
notified by the recipient to the sender in accordance
with this clause 42;
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
42.1.
42.2 DETAILS
The address and facsimile of each person to whom notices may be sent
at the date of this deed are as follows:
THE ISSUER
Perpetual Limited
Xxxxx 00
000 Xxxx Xxxxxx
Xxxxxx Xxx Xxxxx Xxxxx 0000
Xxxxxxxxx
Fax: x000 0000 0000
Attention: Head of Debt Markets/Manager, Securitisation
THE MANAGER
ME Portfolio Management Limited
Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxxx 0000
Xxxxxxxxx
Fax: x000 0000 0000
Attention: Manager - Capital Markets
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Note Trust Deed SMHL Global Fund [ ]-[ ]
THE NOTE TRUSTEE
The Bank of New York
000 Xxxxxxx Xxxxxx
Floor 00 Xxxx
Xxx Xxxx Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Fax: x0 000 000 0000
Attention: Global Structured Finance
THE CALCULATION AGENT
The Bank of New York
000 Xxxxxxx Xxxxxx
Floor 00 Xxxx
Xxx Xxxx Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Fax: x0 000 000 0000
Attention: Global Structured Finance
THE SECURITY TRUSTEE
Perpetual Trustee Company Limited
Xxxxx 00
000 Xxxx Xxxxxx
Xxxxxx Xxx Xxxxx Xxxxx 0000
Xxxxxxxxx
Fax: x000 0000 0000
Attention: Head of Debt Markets/Manager - Securitisation
THE NOTE REGISTRAR
The Bank of New York
000 Xxxxxxx Xxxxxx
Floor 00 Xxxx
Xxx Xxxx Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Fax: x0 000 000 0000
Attention: Global Structured Finance
THE PRINCIPAL PAYING AGENT
The Bank of New York
000 Xxxxxxx Xxxxxx
Floor 00 Xxxx
Xxx Xxxx Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Fax: x0 000 000 0000
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Attention: Global Structured Finance
[THE IRISH PAYING AGENT
AIB/BNY Fund Management (Ireland) Limited
Xxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxx 0
Xxxxxxxx of Ireland
Fax: x000 0 000 0000
Attention: Chief Operating Officer]
[THE CLASS A[ ] IRISH PAYING AGENT
AIB/BNY Fund Management (Ireland) Limited
Xxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxx 0
Xxxxxxxx of Ireland
Fax: x000 0 000 0000
Attention: Chief Operating Officer]
42.3 COMMUNICATION THROUGH PRINCIPAL PAYING AGENT
All communications relating to this agreement between the Issuer and
the Manager and the Calculation Agent and any of the Paying Agents
or between the Paying Agents themselves shall save as otherwise
provided in this agreement, be made through the Principal Paying
Agent.
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43 GOVERNING LAW AND JURISDICTION
43.1 GOVERNING LAW
(a) Subject to clause 43.1(b), this deed and the Note Trust are
governed by the law of New South Wales, Australia. The parties
submit to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
(b) The administration of the Note Trust created under this deed,
including the exercise of the Note Trustee's powers under
clause 13 of this deed, is governed by the law of New York. In
the event of any inconsistency between the operation of the
law of New South Wales, Australia and the law of New York in
respect of the application of those powers, the law of New
York will prevail to the extent of the inconsistency.
43.2 JURISDICTION
Each of the parties hereto irrevocably agrees for the benefit of
each other and the Noteholders that the courts of New South Wales,
Australia are to have jurisdiction to settle any disputes which may
arise out of or in connection with this deed and that accordingly
any notices, demands, suit, action or proceedings arising out of or
in connection with this deed (together referred to as "PROCEEDINGS")
may be
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Note Trust Deed SMHL Global Fund [ ]-[ ]
brought in the courts of New South Wales, Australia. Each of the
parties hereto irrevocably and unconditionally waives and agrees not
to raise any objection which it may have now or subsequently to the
laying of the venue of any Proceedings in the courts of New South
Wales, Australia and any claim that any Proceedings have been
brought in an inconvenient forum and further irrevocably and
unconditionally agrees that a judgment in any Proceedings brought in
the courts of New South Wales, Australia shall be conclusive and
binding upon it and may be enforced in the courts of any other
jurisdiction. Nothing in this Clause shall limit any right to take
Proceedings in any other court of competent jurisdiction, nor shall
the taking of Proceedings in one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction, whether
concurrently or not.
43.3 AGENT
The Issuer irrevocably and unconditionally appoints CT Corporation
System, 000 Xxxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx, 00000 and
in the event of its ceasing so to act will appoint such other person
as the Note Trustee may approve and as the Issuer may nominate in
writing to the Note Trustee for the purpose to accept service of
process on its behalf in respect of any Proceedings. The Issuer:
(a) agrees to procure that, so long as any of the Notes remains
outstanding, there shall be in force an appointment of such a
person approved by the Note Trustee with an office with
authority to accept service as aforesaid;
(b) agrees that failure by any such person to give notice of such
service of process to the Issuer shall not impair the validity
of such service or of any judgment based thereon;
(c) consents to the service of process in respect of any
Proceedings by airmailing of copies, postage prepaid, to the
Issuer in accordance with Clause 26; and
(d) agrees that nothing in this deed shall affect the right to
serve process in any other manner permitted by law.
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44 COUNTERPARTS
This deed may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
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45 LIMITED RECOURSE
45.1 GENERAL
Clause 26 of the Master Trust Deed applies to the obligations and
liabilities of the Issuer and the Manager under this deed.
45.2 LIABILITY OF ISSUER LIMITED TO ITS RIGHT TO INDEMNITY
(a) The Issuer enters into this deed only in its capacity as
trustee of the Securitisation Fund and in no other capacity
(except where the Transaction
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Documents provide otherwise). Subject to clause 45.2(c) below,
a liability arising under or in connection with this deed or
the Securitisation Fund is limited to and can be enforced
against the Issuer only to the extent to which it can be
satisfied out of the assets and property of the Securitisation
Fund which are available to satisfy the right of the Issuer to
be exonerated or indemnified for the liability. This
limitation of the Issuer's liability applies despite any other
provision of this deed and extends to all liabilities and
obligations of the Issuer in any way connected with any
representation, warranty, conduct, omission, agreement or
transaction related to this deed or the Securitisation Fund.
(b) Subject to 45.2(c) below, no person (including any Relevant
Party) may take action against the Issuer in any capacity
other than as trustee of the Securitisation Fund or seek the
appointment of a receiver (except under the Security Trust
Deed), or a liquidator, an administrator or any similar person
to the Issuer or prove in any liquidation, administration or
arrangements of or affecting the Issuer except in relation to
the Assets of the Securitisation Fund.
(c) The provisions of this clause 45.2 shall not apply to any
obligation or liability of the Issuer to the extent that it is
not satisfied because under a Transaction Document or by
operation of law there is a reduction in the extent of the
Issuer's indemnification or exoneration out of the Assets of
the Securitisation Fund as a result of the Issuer's fraud,
negligence or wilful 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
Securitisation Fund. No act or omission of the Issuer
(including any related failure to satisfy its obligations
under this deed) will be considered fraud, negligence or
wilful default of the Issuer for the purpose of clause 45.2(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 Issuer in
accordance with the Transaction Documents to fulfil its
obligations relating to the Securitisation Fund or by any
other act or omission of a Relevant Party or any such person.
(e) No attorney, agent, delegate, receiver or receiver and manager
appointed in accordance with this deed or any other
Transaction Document has authority to act on behalf of the
Issuer in a way which exposes the Issuer to any personal
liability and no act or omission of any such person will be
considered fraud, negligence or wilful default of the Issuer
for the purpose of clause 45.2(c) above.
(f) In this clause 45.2, Relevant Parties means any party to a
Transaction Document other than the Issuer.
(g) The Issuer is not obliged to do or refrain from doing anything
under this deed (including incurring liability) unless the
Issuer's liability is limited in the same manner as set out in
paragraphs (a) to (e) of this clause 45.2.
45.3 UNRESTRICTED REMEDIES
Nothing in clause 45.2 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) relation to its rights under the Security Trust Deed; or
(d) taking any legal action against the Issuer in its personal
capacity under clause 45.2(c)
45.4 RESTRICTED REMEDIES
Except as provided in clauses 45.2(c) and 45.3, none of the Note
Trustee, each Paying Agent or the Calculation Agent shall, in
respect of this Deed:
(a) (JUDGMENT) obtain a judgment for the payment of money or
damages by the Issuer;
(b) (STATUTORY DEMAND) issue any demand under s459E(1) of the
Corporations Act (or any analogous provision under any other
law) against the Issuer;
(c) (WINDING UP) apply for the winding up or dissolution of the
Issuer;
(d) (EXECUTION) levy or enforce any distress or other execution
to, on or against any assets of the Issuer;
(e) (COURT APPOINTED RECEIVER) apply for the appointment by a
court of a receiver to any of the assets of the Issuer;
(f) (SET-OFF OR COUNTERCLAIM) exercise or seek to exercise any
set-off or counterclaim against the Issuer; or
(g) (ADMINISTRATOR) appoint, or agree to the appointment, of any
administrator to the Issuer,
or take proceedings for any of the above and the Note Trustee, each
Paying Agent and the Calculation Agent waives their rights to make
those applications and take those proceedings.
A reference to the Issuer in this clause 45.4 is to the Issuer in
its personal capacity and not as trustee of the Securitisation Fund
45.5 WILFUL DEFAULT OF THE ISSUER
For the purposes of this deed the expression "wilful default":
(a) in relation to the Issuer, means a wilful default of this deed
by the Issuer:
(1) other than a default which:
(A) arises out of a breach of a Transaction Document
by a person other than the Issuer or any person
referred to in clause 45.5(b) in relation to the
Issuer;
(B) arises because some other act or omission is a
precondition to the relevant act or omission of
the Issuer and that other act or omission does not
occur;
(C) is in accordance with a lawful court order or
direction or is required by law; or
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(D) is in accordance with an instruction or direction
given to it by any person in circumstances where
that person is authorised to do so by any
Transaction Document; and
(2) in circumstances where had it not committed that default
it would have been entitled to recoupment, reimbursement
or a right of indemnity for its costs and expenses (if
any) in complying with this deed from the Securitisation
Fund;
(b) a reference to the "fraud", "negligence" or "wilful default"
of the Issuer means the fraud, negligence or wilful default of
the Issuer and of its officers or employees, but not of its
agents or delegates, unless the Issuer is liable for the acts
or omissions of such other person under the terms of this
deed.
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46 SUCCESSOR TRUSTEE
The Note Trustee, each Paying Agent and the Calculation Agent shall
do all things reasonably necessary to enable any successor Issuer
appointed under clause 18 of the Master Trust Deed to become the
Issuer under this deed.
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47 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 advisers as the Note Trustee reasonably requires to
assist in the giving of that opinion or the making of that
determination or calculation and any reasonable costs and expenses
payable to those advisers will be reimbursed to the Note Trustee by
the Issuer or if another person is expressly stated in the relevant
provision in a Transaction Document, that person.
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48 NO LIABILITY
Without limitation the Note Trustee shall not be liable (subject to
the mandatory requirements of the TIA) for:
(a) any decline in the value or loss realised upon any sale or
other disposition made under the Security Trust Deed of any
Charged Property or any other property charged to the Security
Trustee by any other person in respect of or relating to the
obligations of any person in respect of the Issuer or the
Secured Moneys (as defined in the Security Trust Deed) or
relating in any way to the Charged 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 or failing to act as a consequence of it
not being indemnified for any action it might otherwise have
taken as contemplated by clause 6.3; and
(c) any loss, expense or liability which may be suffered as a
result of any assets secured by the Security Trust Deed, the
Charged Property or any
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deeds or documents of title thereto being uninsured or
inadequately insured or being held by or to the order of the
Mortgage Manager or any of its affiliates or by clearing
organisations or their operator or by any person on behalf of
the Security Trustee or the Note Trustee,
except for the fraud, negligence or wilful default of the Note
Trustee.
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49 PROSPECTUS
The Note Trustee has no responsibility for any statement or
information in or omission from any prospectus, advertisement,
circular or other document issued by or on behalf of the Issuer or
Manager, including in connection with the issue of Class A Offered
Notes. Neither the Issuer nor the Manager may publish or permit to
be published any such document in connection with the offer of Class
A Offered Notes or an invitation for subscriptions for Class A
Offered 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 Class A Offered Noteholders.
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50 NOTE TRUSTEE'S LIMITED LIABILITY
50.1 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 (including any
of the above submitted or provided by the Manager, by the Issuer or
by a Class A Offered Noteholder) if the Note Trustee is entitled,
under clause 50.2 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,
Enhancement, Mortgage, other Transaction Document or any other deed,
agreement or arrangement incidental to any of the above or to the
Securitisation Fund, will perform their obligations under those
documents in full by the due date and otherwise in accordance with
their terms.
50.2 NOTE TRUSTEE'S RELIANCE ON MANAGER, SECURITY TRUSTEE, ISSUER OR
MORTGAGE MANAGER
(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:
(1) the authenticity and validity of any signature in any
such document and that such document has been duly
authorised; and
(2) the accuracy of any information contained in any such
documents,
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in either case unless the officers of the Note Trustee
responsible for the administration of the Note Trust are
actually aware to the contrary.
(b) (NOTE TRUSTEE NOT LIABLE FOR LOSS) The Note Trustee shall not
be responsible for any loss arising from any forgery or lack
of authenticity or any act, neglect, mistake or discrepancy of
the Manager, the Security Trustee, Issuer or the Mortgage
Manager or any officer, employee, agent or delegate of the
Manager, the Security Trustee, the Issuer or the Mortgage
Manager 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.
50.3 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.
50.4 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 Mortgage Manager, the Issuer, barristers or solicitors
(whether instructed by the Note Trustee or not), bankers,
accountants, brokers, valuers and other persons believed by it in
good faith to be expert or properly informed in relation to the
matters on which they are consulted and the Note Trustee shall not
be liable for anything done or suffered by it in good faith in
reliance on such opinion, statement, certificate, advice or
information except to the extent of losses, costs, claims or damages
caused by the Note Trustee's fraud, negligence or wilful default.
50.5 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 (as defined in section 9
of the Corporations Act)), attorney, banker, receiver, barrister,
solicitor, agent or other person acting as agent or adviser to the
Note Trustee except to the extent of losses, costs, claims or
damages caused by the Note Trustee's fraud, negligence or wilful
default, provided that nothing in this deed or any other Transaction
Document imposes any obligations on the Note Trustee to review or
supervise the performance by any other party of its obligations.
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50.6 POWERS, AUTHORITIES AND DISCRETIONS
Except as otherwise provided in this deed and in the absence of
fraud, negligence or wilful default, the Note Trustee shall not be
in any way responsible for any loss (whether consequential or
otherwise), costs, damages or inconvenience that may result from the
exercise or non-exercise of any powers, authorities and discretions
vested in it.
50.7 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 or
wilful default, nor shall it incur any liability by reason of any
error of law or any matter or thing done or suffered or omitted to
be done in good faith by it or its officers, employees, agents or
delegates.
50.8 LEGAL AND OTHER PROCEEDINGS
(a) (INDEMNITY FOR LEGAL COSTS) The Note Trustee or the Class A
Offered Noteholders acting under clause 6.5 (as the case may
be) (each an Indemnified Party) shall be indemnified by the
Issuer (subject to clause 45) for all legal costs and
disbursements on a full indemnity basis and all other cost,
disbursements, outgoings and expenses incurred by the
Indemnified Party in connection with:
(1) the enforcement or contemplated enforcement of, or
preservation of rights under;
(2) without limiting the generality of clause 50.8(a)(1)
above, the initiation, defence, carriage and settlement
of any action, suit, proceeding or dispute in respect
of; and
(3) 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 this deed; provided that the enforcement,
contemplated enforcement or preservation by the Note Trustee
(as the case may be) of the rights referred to in clause
50.8(a)(1) or the court proceedings referred to in clause
50.8(a)(2) (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:
(4) has been approved in advance by the written consent of
the holders of at least 75% of the aggregate Invested
Amount of the Class A Offered Notes calculated and
expressed in the A$ Equivalent; or
(5) the Indemnified Party reasonably considers the incurring
of those costs, disbursements, outgoings and expenses to
be necessary.
(b) (DEFENCE OF PROCEEDINGS ALLEGING NEGLIGENCE) The Indemnified
Party shall be entitled to claim in respect of the above
indemnity from the Issuer for its expenses and liabilities
incurred in defending any action, suit, proceeding or dispute
in which fraud, negligence or wilful default is
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alleged or claimed against it, but on the same being proved,
accepted or admitted by it, it shall immediately repay to the
Issuer the amount previously paid by the Issuer to it in
respect of that indemnity.
(c) (EXPENSES) Subject to clause 45, the Issuer will on demand
reimburse the Note Trustee for and keep the Note Trustee
indemnified against all expenses including legal costs and
disbursements (on a full indemnity basis) reasonably incurred
by the Note Trustee in connection with:
(1) the preparation and execution of this deed and any
subsequent consent, agreement, approval or waiver under
this deed or amendment to this deed;
(2) the exercise, enforcement, preservation or attempted
exercise enforcement or preservation of any rights under
this deed including without limitation any expenses
incurred in the evaluation of any matter of material
concern to the Note Trustee; and
(3) any enquiry by a Government Agency concerning the Issuer
or the Assets of the Securitisation Fund or a
transaction or activity the subject of the Transaction
Documents.
50.9 NO LIABILITY EXCEPT FOR NEGLIGENCE ETC.
Except to the extent caused by the fraud, negligence or wilful
default on the Note Trustee's part or on the part of any of its
officers or employees, or any agents or delegate, sub-agent,
sub-delegate employed by the Note Trustee in accordance with this
deed (and where this deed provides that the Note Trustee is liable
for the acts or omissions of any such person) to carry out any
transactions contemplated by this deed, the Note Trustee shall not
be liable for any losses, costs, liabilities or claims arising from
the failure to pay moneys on the due date for payment to any Class A
Offered Noteholder or any other person or for any loss howsoever
caused in respect of any of the Securitisation Fund or to any Class
A Offered 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,
claims and demands to which it may render itself liable and all
costs, charges, damages and expenses which it may incur by so doing.
50.10 FURTHER LIMITATIONS ON NOTE TRUSTEE'S LIABILITY
Subject to clause 50.2, the Note Trustee shall not be liable:
(a) for any losses, costs, liabilities or expenses arising out of
the exercise or non-exercise of its discretion or for any
other act or omission on its part under this deed, any other
Transaction Document or any other document except where the
exercise or non-exercise of any discretion, or any act or
omission, by the Note Trustee, or any of its officers or
employees, or any agent, delegate, sub-agent, sub-delegate
employed by the Note Trustee in accordance with this deed (and
where this deed provides that the Note Trustee is liable for
the acts or omissions of any such person) to carry out any
transactions contemplated by this deed, constitutes fraud,
negligence or wilful default;
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(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:
(1) any Class A Offered Noteholder under this deed, any
other Transaction Document or any other document;
(2) any person under an Enhancement or Mortgage,
except to the extent that it is caused by the fraud,
negligence or wilful default of the Note Trustee, or any of
its officers or employees, or an agent or delegate employed by
the Note Trustee in accordance with this deed to carry out any
transactions contemplated by this deed;
(c) for any Manager's Default;
(d) without limiting the Note Trustee's obligations under the
Transaction Documents, for any act, omission or default of any
Mortgage Manager in relation to its servicing duties or its
obligations under any Mortgage Origination and Management
Agreement;
(e) 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;
(f) 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;
(g) 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;
(h) for the failure of a person to carry out an agreement with the
Note Trustee in connection with the Securitisation Fund; or
(i) for any losses, costs, liabilities or expenses caused by the
Note Trustee's failure (except where it has an express
obligation to do so) to check any calculation, information,
document, form or list supplied or purported to be supplied to
it by the Manager, the Issuer or Security Trustee,
except, in the case of paragraphs (c) to (i) (inclusive), to the
extent that it is caused by the fraud, negligence or wilful default
of the Note Trustee.
Nothing in this clause 50.10 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.
50.11 CONFLICTS
(a) (NOT LIABLE TO ACCOUNT) the Note Trustee shall not be in any
way liable to account to any Class A Offered 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.
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(b) (FIDUCIARY RELATIONSHIP) the 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. The Note
Trustee shall not be accountable to any Class A Offered
Noteholder or any other person for any profits arising from
any such contracts, transactions or offices.
50.12 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 Class A Offered Noteholder) with any credit or
other information concerning the affairs, financial condition or
business of the Securitisation Fund.
50.13 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
or Trustee's Default has occurred in relation to the Securitisation
Fund other than where it has actual notice.
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51 NOTEHOLDERS' LISTS AND REPORTS, CONTINUING SECURITY, RELEASES AND WAIVERS
51.1 PROVISION OF INFORMATION
The Manager will 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 Class A Offered 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 Issuer 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 Class A Offered Notes are Book-Entry Notes,
no such list shall be required to be furnished.
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51.2 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 Class A
Offered Noteholders contained in the most recent list (if any)
furnished to the Note Trustee as provided in clause 51.1 and
if it acts as Note Registrar, the names and addresses of Class
A Offered Noteholders received by the Note Trustee in its
capacity as Note Registrar. The Note Trustee may destroy any
list furnished to it as provided in such clause 51.1 upon
receipt of a new list so furnished.
(b) The Note Trustee must comply with its obligations pursuant to
Section 312(b) of the TIA.
(c) Class A Offered Noteholders may communicate pursuant to
Section 312(b) of the TIA with other Class A Offered
Noteholders with respect to their rights under this deed or
under the Class A Offered Notes.
(d) The Issuer, Note Trustee and Note Registrar shall have the
protection of Section 312(c) of the TIA.
51.3 REPORTS BY NOTE TRUSTEE
If required by Section 313(a) of the TIA, within 60 days after each
30 June, beginning with 30 June [ ], the Note Trustee shall mail to
each Class A[ ] Noteholder, the Issuer, the Manager and such other
persons to whom the Note Trustee is required by Section 313(c) of
the TIA to provide reports, a brief report dated as of such date
that complies with Section 313(a) of the TIA. The Note Trustee also
shall comply with Section 313(b) of the TIA. A copy of each report
at the time of its mailing to Class A[ ] Noteholders shall be filed
by the Note Trustee with the Commission and each stock exchange, if
any, on which the Class A[ ] Notes are listed. The Manager on behalf
of the Issuer shall notify the Note Trustee if and when the Class A[
] Notes are listed on any stock exchange.
51.4 NOTICES TO CLASS A OFFERED NOTEHOLDERS; WAIVER
Where this deed provides for notice to Class A Offered 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 Class A Offered Noteholders is given by mail, neither the failure
to mail such notice nor any defect in any notice so mailed to any
particular Class A Offered Noteholder shall affect the sufficiency
of such notice with respect to other Class A Offered 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 Class A Offered 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
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Note Trust Deed SMHL Global Fund [ ]-[ ]
event to Class A Offered 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 Issuer shall
direct the Note Trustee shall be deemed to be a sufficient giving of
such notice.
51.5 ISSUER'S LIABILITY NOT AFFECTED
This deed and the liability of the Issuer under this deed will not
be affected or discharged by any of the following:
(a) (INDULGENCE): the granting to the Issuer or to any other
person of any time or other indulgence or consideration;
(b) (DELAY IN RECOVERY): subject to Condition 8 of the Conditions,
the Note Trustee failing or neglecting to recover any amounts
owing in respect of the Class A Offered Notes;
(c) (LACHES): any other laches, acquiescence, delay, act, omission
or mistake on the part of the Note Trustee or any other
person; or
(d) (RELEASE): the release, discharge, abandonment or transfer
whether wholly or partially and with or without consideration
of any other security judgment or negotiable instrument held
from time to time or recovered by the Note Trustee from or
against the Issuer or any other person.
51.6 REPORTS BY ISSUER
The Issuer or the Manager on its behalf shall:
(a) file with the Note Trustee, within 15 days after the Issuer,
the Securitisation Fund or the Manager 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 Issuer, the Securitisation Fund or the Manager may be
required to file with the Commission pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended, or,
if the Issuer, the Securitisation Fund or the Manager is not
required to file information, documents or reports with the
Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, to file with the Note
Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended, in respect of
a security listed on a national securities exchange as may be
prescribed in such rules and regulations;
(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 Issuer or the Manager on its
behalf with the conditions and covenants of this deed as may
be required from time to time by such rules and regulations;
and
(c) supply to the Note Trustee (and the Note Trustee shall
transmit by mail to all Class A[ ] Noteholders described in
Section 313(c) of the TIA) such
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summaries of any information, documents and reports required
to be filed by the Issuer, the Securitisation Fund or the
Manager pursuant to clauses 51.6(a) and 51.6(b) as may be
required by rules and regulations prescribed from time to time
by the Commission.
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52 TRUST INDENTURE ACT; MISCELLANEOUS
52.1 COMPLIANCE CERTIFICATES AND OPINIONS
(a) Upon any application or request by the Issuer or the Manager
to the Note Trustee to take any action under any provision of
this deed, the Issuer (or the Manager on its behalf) shall
furnish to the Note Trustee:
(1) 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;
(2) an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have
been complied with; and
(3) (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) Prior to the deposit of any property or securities with the
Issuer 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 Issuer (or the Manager
on its behalf) shall, in addition to any obligation imposed in
clause 52.1(a) or elsewhere in this deed, furnish to the Note
Trustee an Officer's Certificate meeting the applicable
requirements of Section 314(d)(2) of the TIA 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.
(c) Whenever any property or securities are to be released from
the Security Interest created by the Security Trust Deed, the
Issuer (or the Manager on its behalf) shall also furnish to
the Note Trustee an Officer's Certificate meeting the
applicable requirements of Section 314(d)(1) of the TIA
certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such
release) of the property or securities proposed to be released
and stating that in the opinion of such person the proposed
release will not impair the security under the Security Trust
Deed in contravention of the provisions of the Security Trust
Deed or this deed.
(d) Whenever the Issuer (or the Manager on its behalf) 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 clause 52.1(b) and (c), the Issuer
(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
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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 52.1(b) or (c) and this clause
52.1(d), equals 10% or more of the Outstanding Principal
Balance of the Notes calculated and expressed in the A$
Equivalent, 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 the A$ Equivalent of US$25,000 or
less than one percent of the then Outstanding Principal
Balance of the Notes calculated and expressed in the A$
Equivalent. Notwithstanding any other provision of this clause
52.1(d), the Issuer may:
(1) collect, liquidate, sell or otherwise dispose of
receivables or other Assets of the Securitisation Fund
as and to the extent permitted or required by the
Transaction Documents; and
(2) make or permit to be made cash payments out of the
Collection Account or the US$ Account or the Euro
Account as and to the extent permitted or required by
the Transaction Documents.
(e) Every Officer's Certificate or opinion with respect to
compliance with a condition or covenant provided for in this
deed shall include:
(1) a statement that each signatory of such certificate or
opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) 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;
(3) 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
(4) a statement as to whether or not, in the opinion of each
such signatory, such condition or covenant has been
complied with.
52.2 UNDERTAKING FOR COSTS
(a) Subject to clause 52.2(b), all parties to this deed agree, and
each Class A Offered Noteholder by such Class A Offered
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 52.2 shall not apply to:
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(1) any suit instituted by the Note Trustee;
(2) any suit instituted by any Class A Offered Noteholder,
or group of Class A Offered Noteholders in each case
holding in the aggregate more than 10% of the aggregate
Invested Amount of the Class A Offered Notes calculated
and expressed in the A$ Equivalent; or
(3) any suit instituted by any Class A Offered Noteholder
for the enforcement of the payment of principal or
interest on any Class A Offered Note on or after the
respective due dates expressed in such Class A Offered
Note and in this deed (or, in the case of final
redemption of a Class A Offered Note, on or after the
Final Maturity Date).
52.3 EXCLUSIONS 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 Class A Offered Noteholders have
concurred in any relevant direction or consent, Class A
Offered Notes owned by the Issuer or by any person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer, 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 Class A Offered Notes which the Note Trustee
knows are so owned shall be so disregarded.
52.4 UNCONDITIONAL RIGHTS OF CLASS A OFFERED NOTEHOLDERS TO RECEIVE
PRINCIPAL AND INTEREST
Notwithstanding any other provisions in this deed but subject to
clause 45, any Class A Offered Noteholder shall have the right,
which is absolute and unconditional, to receive payment of the
principal of and interest, if any, on such Class A Offered Note on
or after the respective due dates thereof expressed in such Class A
Offered 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 or affected without the consent of such Class A Offered
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.
52.5 CONTINUING OBLIGATION
This deed shall be a continuing obligation notwithstanding any
settlement of account intervening payment express or implied
revocation or any other matter or thing whatsoever until a final
discharge thereof has been given to the Issuer.
52.6 NO MERGER
Neither this deed nor any of the Note Trustee's powers shall merge
or prejudicially affect or be merged in or prejudicially affected by
and the Issuer's obligations hereunder shall not in any way be
abrogated or released by any other security, any judgment or order,
any contract, any cause of action or remedy or
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any other matter or thing now or hereafter existing in respect of
the Secured Moneys.
52.7 WAIVER
A failure to exercise or enforce or a delay in exercising or
enforcing or the partial exercise or enforcement of any right,
remedy, power or privilege hereunder by a party shall not in any way
preclude or operate as a waiver of any further exercise or
enforcement thereof or the exercise or enforcement of any other
right remedy power or privilege hereunder or provided by law.
52.8 CONSENTS AND APPROVALS
Where any act, matter or thing hereunder depends on the consent or
approval of the Note Trustee then unless expressly provided
otherwise herein such consent or approval may be given or withheld
in the absolute and unfettered discretion of the Note Trustee and
may be given subject to such conditions as the Note Trustee thinks
fit in its absolute and unfettered discretion and notwithstanding
anything to the contrary in this deed, may be given retrospectively.
52.9 WRITTEN WAIVER, CONSENT AND APPROVAL
Any waiver, consent or approval given by a party under this deed
shall only be effective and shall only bind that party if it is
given in writing or given verbally and subsequently confirmed in
writing and executed by that party or on its behalf by an officer
for the time being of that party.
52.10 TIME OF ESSENCE
Time is of the essence in respect of the Issuer's obligations
hereunder.
52.11 MORATORIUM LEGISLATION
To the fullest extent permitted by law, the provisions of all
Statutes operating directly or indirectly:
(a) to lessen or otherwise to vary or affect in favour of the
Issuer any obligation under this deed; or
(b) to delay or otherwise prevent or prejudicially affect the
exercise of any powers conferred on the Note Trustee, the
Principal Paying Agent, the Calculation Agent or the Note
Registrar under this deed;
are hereby expressly waived, negatived and excluded.
52.12 BINDING ON EACH SIGNATORY
This deed shall bind each of the signatories hereto notwithstanding
that any one or more of the named parties hereto does not execute
this deed, that there is any invalidity forgery or irregularity
touching any execution hereof or that this deed is or becomes
unenforceable, void or voidable against any such named party.
52.13 COUNTERPARTS
This deed may be executed in a number of counterparts and all such
counterparts taken together shall be deemed to constitute one and
the same instrument.
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52.14 ASSIGNMENT
No party may assign or transfer any of its rights or obligations
under this deed without the prior written consent of the other
parties and in accordance with the provisions of this deed with
respect to retirement of each of such parties from their respective
roles under this deed.
52.15 POWER OF ATTORNEY
Each attorney executing this deed states that he has no notice of
any alteration to, or revocation or suspension of, his power of
attorney.
52.16 CERTIFICATE OF NOTE TRUSTEE
A certificate in writing signed by a Responsible Officer of the Note
Trustee certifying any act, matter or thing relating to this deed is
conclusive and binding on the Issuer in the absence of manifest
error on the face of the certificate.
52.17 REMEDIES CUMULATIVE
The rights and remedies conferred by this deed upon the Note Trustee
are cumulative and in addition to all other rights or remedies
available to the Note Trustee by Statute or by general law.
52.18 INTEREST ON JUDGMENT
If a liability under this deed (other than a liability for
negligence, fraud or wilful default of the Issuer under the
Transaction Documents) becomes merged in a judgment or order then
the Issuer as an independent obligation will pay interest to the
Note Trustee on the amount of that liability at a rate being the
higher of the rate payable pursuant to the judgment or order and the
highest rate payable on the Class A Offered Notes from the date it
becomes payable until it is paid.
52.19 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 TIA, such required provision shall
prevail.
The provisions of Sections 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.
52.20 KNOW YOUR CUSTOMER
Subject to any confidentiality, privacy or general trust law
obligations owed by the Note Trustee or the Issuer to Bondholders
and any applicable confidentiality or privacy laws, except to the
extent those obligations or laws are overridden by applicable
anti-money laundering or counter-terrorism financing laws, each
party hereto (INFORMATION PROVIDER) agrees to provide any
information and documents reasonably required by another party
hereto (INFORMATION RECEIVER) for the Information Receiver to comply
with any applicable anti-money laundering or counter-terrorism
financing laws including, without limitation, any laws imposing
"know your customer" or other identification checks or procedures on
a party, but
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Note Trust Deed SMHL Global Fund [ ]-[ ]
only to the extent that such information is in the possession of, or
otherwise readily available to, the Information Provider. The
Information Receiver may, to the extent required by law, decline to
perform its affected obligations under the Transaction Documents to
which it is a party. Any Information Receiver receiving information
and documents pursuant to this clause 52.20 agrees to utilize such
information and documents solely for the purpose of complying with
applicable anti-money laundering or counter-terrorism financing
laws.
52.21 COMPLIANCE WITH REGULATION AB
In relation to compliance with Regulation AB:
(a) each party to this deed acknowledges and agrees that the
purpose of this clause 52.21 is to facilitate compliance by
such party in relation to the Securitisation Fund with the
provisions of Regulation AB and related rules and regulations
of the Commission to the extent applicable to such party;
(b) the Manager shall not exercise its right to request delivery
of information or other performance under these provisions
other than as required to comply with the Securities Act, the
Exchange Act and the rules and regulations of the Commission
thereunder, including Regulation AB, with respect to the
Securitisation Fund. The Manager shall not request the
delivery of information or other performance under this clause
52.21 unless the Manager is required under the Exchange Act to
file an annual report on Form 10-K with respect to the
Securitisation Fund. The Manager and each other party to this
Deed acknowledge that interpretations of the requirements of
Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff,
consensus among participants in the asset-backed securities
markets, advice of counsel, or otherwise, and agrees to comply
with requests made by the Manager in good faith for delivery
of information under these provisions on the basis of evolving
interpretations of Regulation AB; provided that, to the extent
the Manager and the Issuer or the Security Trustee (as
applicable) do not agree with respect to an interpretation of
Regulation AB, the Manager and the Issuer or the Security
Trustee (as applicable) shall obtain a written opinion of
counsel of U.S. national reputation in the practice of U.S.
federal securities laws reasonably acceptable to the Manager
and the Issuer or the Security Trustee (as applicable),
addressed to the Manager and the Issuer or the Security
Trustee (as applicable), stating the opinion of such counsel
with respect to the interpretation of the relevant
provision(s) of Regulation AB; provided, further, that the
costs and fees of such counsel incurred in the preparation of
such written opinion shall be divided equally between the
Manager and the Issuer or the Security Trustee (as
applicable). In relation to the Securitisation Fund, each
party to this Deed shall cooperate fully with the Manager to
deliver to the Manager (including any of its assignees or
designees), any and all statements, reports, certifications,
records and any other information within the control of such
party or for which such party is responsible necessary in the
good faith determination of the Manager to permit the Manager
to comply with the provisions of Regulation AB, together with
such disclosures relating to the Manager, such party, any
Subcontractor of such party, the Loans, the servicing of the
Loans or any other servicing activities within the meaning of
Item 1122 of
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Regulation AB, reasonably believed by the Manager to be
necessary in order to effect such compliance;
(c) the Manager (including any of its assignees or designees)
shall cooperate with each other party to this deed by
providing timely notice of requests for information under
these provisions following the Manager becoming aware that it
is required under the Exchange Act to file an annual report on
Form 10-K in any year and by reasonably limiting such requests
to information required, in the Manager's reasonable judgment,
to comply with Regulation AB;
(d) each party to this deed acknowledges and agrees that, to the
extent the Manager reasonably determines:
(1) in respect of the Issuer and the Security Trustee - upon
consultation with, and to the extent agreed with, such
party; and
(2) in respect of the Note Trustee, Note Registrar,
Principal Paying Agent and Calculation Agent - upon
consultation with such party,
that such party is "participating in the servicing function"
in relation to the Securitisation Fund within the meaning of
Item 1122 of Regulation AB, such party will comply with the
applicable requirements contained in clause 52.21(e) - (j);
provided that, to the extent the Manager and the Issuer or the
Security Trustee (as applicable) do not agree whether such
party is "participating in the servicing function" with
respect to one or more Servicing Criteria within the meaning
of Item 1122 in relation to the Securitisation Fund, the
Manager and the Issuer or the Security Trustee (as applicable)
shall obtain a written opinion of counsel of U.S. national
reputation in the practice of U.S. federal securities laws
reasonably acceptable to the Manager and the Issuer or the
Security Trustee (as applicable), addressed to the Manager and
the Issuer or the Security Trustee (as applicable), stating
whether, in the opinion of such counsel, the Issuer or the
Security Trustee (as applicable) is "participating in the
servicing function" with respect to such Servicing Criteria
within the meaning of Item 1122 in relation to the
Securitisation Fund; provided, further, that the costs and
fees of such counsel incurred in the preparation of such
written opinion shall be divided equally between the Manager
and the Issuer or the Security Trustee (as applicable);
(e) on or before September 1 of each calendar year, commencing in
[ ], such party shall upon the reasonable request of the
Manager:
(1) deliver to the Manager a report (in form and substance
reasonably satisfactory to the Manager) regarding such
party's assessment of compliance with the Servicing
Criteria during the immediately preceding financial year
ended June 30, as required under Rules 13a-18 and 15d-18
of the Exchange Act and Item 1122 of Regulation AB. Such
report shall be addressed to the Manager and signed by
an authorized officer of such party, and shall address
each of the Servicing Criteria specified on a
certification substantially in the form of Schedule 6
hereto and addressing, at a minimum, the criteria
identified in Schedule 7 hereto as "Applicable Servicing
Criteria", but only with respect to such of the
Servicing Criteria that such party performs;
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(2) deliver to the Manager a report of a registered public
accounting firm reasonably acceptable to the Manager
that attests to, and reports on, the assessment of
compliance made by such party and delivered pursuant to
the preceding paragraph. Such attestation shall be in
accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange
Act;
(3) cause each Subcontractor of such party (if any)
determined by the such party pursuant to clause 52.21(f)
to be "participating in the servicing function" within
the meaning of Item 1122 of Regulation AB, to deliver to
the Manager an assessment of compliance and accountants'
attestation as and when provided in clause 52.21(e)(1)
and (2), but only with respect to such of the Servicing
Criteria that such Subcontractor of such party performs;
An assessment of compliance provided by a Subcontractor of
such party pursuant to clause 52.21(e)(3) need not address any
elements of the Servicing Criteria other than those specified
by such party pursuant to clause 52.21(f), and need only
address such of the Servicing Criteria that such Subcontractor
performs;
(f) in relation to the use of Subcontractors:
(1) such party shall promptly upon the reasonable request of
the Manager provide to the Manager (or any designee of
the Manager) a written description (in form and
substance satisfactory to the Manager) of the role and
function of each Subcontractor utilized by such party,
specifying:
(A) the identity of each such Subcontractor;
(B) which (if any) of such Subcontractors are
"participating in the servicing function" within
the meaning of Item 1122 of Regulation AB; and
(C) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by
each Subcontractor identified pursuant to clause
52.21(f)(1)(B);
(2) as a condition to the utilization of any Subcontractor
determined to be "participating in the servicing
function" within the meaning of Item 1122 of Regulation
AB, (i) such party shall cause any such Subcontractor
used by such party for the benefit of the Manager to
comply with the provisions of clauses 52.21(e) - (j),
52.22 and 52.23 of this deed to the same extent as if
such Subcontractor were such party (provided that in the
case of a Subcontractor of the Issuer or the Security
Trustee, the obligations of such Subcontractor under
clause 52.21(h) will be owed directly to the Manager and
the Issuer or the Security Trustee, as the case may be,
will do all things reasonably necessary to cause the
Subcontractor to owe such obligations directly to the
Manager) and (ii) in the case of the Issuer and the
Security Trustee, such party shall obtain the written
consent of the Manager (which is not to be unreasonably
withheld or delayed) to the utilization of such
Subcontractor. Such party shall be responsible for
obtaining from each Subcontractor
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Note Trust Deed SMHL Global Fund [ ]-[ ]
and delivering to the Manager any assessment of
compliance and accountants' attestation required to be
delivered by such Subcontractor under clause 52.21(e) -
(j), in each case as and when required to be delivered;
(g) each of the Note Trustee, the Principal Paying Agent, the
Calculation Agent, the Note Registrar[, the Irish Paying
Agent] [and the Class A[ ] Irish Paying Agent] represents,
warrants and agrees that each report required pursuant to
clauses 52.21(e)(1) and 52.21(e)(3) to be provided by each
such party or any Subcontractor of any such party will be
accurate in all material respects and will not contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they are made, not misleading
(h) each of the Issuer and the Security Trustee shall indemnify
the Manager, and shall hold the Manager harmless from and
against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and any
other costs, fees and expenses that it sustains directly as a
result of:
(1) any untrue statement of a material fact contained or
alleged to be contained in any information, report,
certification, accountants' letter or other material
provided in written or electronic form under this clause
52.21 by or on behalf of such party, or provided under
this clause 52.21 by or on behalf of any Subcontractor
of such party (with respect to such party, collectively,
the "Company Information"); provided that in the case of
any untrue statement of a material fact contained or
alleged to be contained in the accountant's letter, each
of the Issuer and the Security Trustee will indemnify
and hold harmless the Manager only to the extent of the
sum that the Issuer or the Security Trustee,
respectively, recovers from the accounting firm
providing such accountant's letter (which recovery the
Issuer and the Security Trustee (as the case may be)
must if the Issuer or the Security Trustee (as the case
may be) in good faith determines the Issuer or the
Security Trustee (as the case may be) is entitled to do
so after taking professional advice pursue including by
taking action in any relevant court of competent
jurisdiction); provided, further, that neither the
Issuer nor the Security Trustee will indemnify or hold
harmless the Manager to the extent that the untrue
statement of a material fact contained or alleged to be
contained in the Company Information relates to
information provided to the Issuer or the Security
Trustee, respectively, by the Manager or any other party
to enable such party to complete its duties under the
Transaction Documents; or
(2) the omission or alleged omission to state in the Company
Information a material fact required to be stated in the
Company Information or necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; provided, by
way of clarification, that this clause 52.21(h)(2) shall
be construed solely by reference to the Company
Information and not to any other information
communicated in
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Note Trust Deed SMHL Global Fund [ ]-[ ]
connection with a sale or purchase of securities,
without regard to whether the Company Information or any
portion thereof is presented together with or separately
from such other information; provided, further, that in
the case of the omission or alleged omission to state in
an accountant's letter a material fact required to be
stated in the accountant's letter or necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not
misleading, each of the Issuer and the Security Trustee
will indemnify and hold harmless the Manager only to the
extent of the sum that the Issuer or the Security
Trustee, respectively, recovers from the accounting firm
providing such accountant's letter (which recovery the
Issuer and the Security Trustee (as the case may be)
must if the Issuer or the Security Trustee (as the case
may be) in good faith determines the Issuer or the
Security Trustee (as the case may be) is entitled to do
so after taking professional advice pursue including by
taking action in any relevant court of competent
jurisdiction); provided, further, that neither the
Issuer nor the Security Trustee will indemnify or hold
harmless the Manager to the extent that the omission or
alleged omission to state in the Company Information a
material fact required to be stated in the Company
Information or necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading, relates to information
provided to the Issuer or the Security Trustee,
respectively, by the Manager or any other party to
enable such party to complete its duties under the
Transaction Documents; or
(3) any failure by such party or any Subcontractor of such
party to deliver any information, report, certification,
accountants' letter or other material when and as
required under this clause 52.21, including any failure
by such party to disclose any non-compliance with any of
the Servicing Criteria in a certification or to identify
pursuant to clause 52.21(f) any Subcontractor
"participating in the servicing function" within the
meaning of Item 1122 of Regulation AB. In the case of
any failure of performance described in clause
52.21(h)(3), such party shall promptly reimburse the
Manager, for all costs reasonably incurred by the
Manager in order to obtain the information, report,
certification, accountants' letter or other material not
delivered as required by such party or any Subcontractor
of such party;
(i) any failure by such party or any Subcontractor of such party
to:
(1) deliver any information, report, certification,
accountants' letter or other material when and as
required under this clause 52.21, shall, except as
provided in clause 52.21(i)(2), immediately and
automatically, without notice or grace period, entitle
the Manager, in its sole discretion:
(A) to remove such party or direct such party to
remove the Subcontractor of such party from the
performance of any activities which the Manager
reasonably determines to constitute "participating
in the servicing function" in
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Note Trust Deed SMHL Global Fund [ ]-[ ]
relation to the Securitisation Fund within the
meaning of Item 1122 of Regulation AB; and
(B) to replace such party with respect to such
activities, each at the expense of such party,
without payment (notwithstanding anything in the
Transaction Documents to the contrary) of any
compensation to such party; provided that to the
extent that any provision of the Transaction
Documents expressly provides for the survival of
certain rights or obligations following
termination of such party, such provision shall be
given effect;
(2) deliver any information, report, certification or
accountants' letter when and as required under clause
52.21(e) - (j) or (except as provided below) any failure
by such party to identify pursuant to clause 52.21(f)
any Subcontractor of such party "participating in the
servicing function" within the meaning of Item 1122 of
Regulation AB, which continues unremedied for ten
calendar days after the date on which such information,
report, certification or accountants' letter was
required to be delivered, shall entitle the Manager, in
its sole discretion:
(A) to remove such party or direct such party to
remove the Subcontractor of such party from the
performance of any activities which the Manager
reasonably determines to constitute "participating
in the servicing function" in relation to the
Securitisation Fund within the meaning of Item
1122 of Regulation AB; and
(B) to replace such party with respect to such
activities, in the case of the Issuer, the
Security Trustee or any Subcontractor of either
such party, at the expense of such party, without
payment (notwithstanding anything in the
Transaction Documents to the contrary) of any
compensation to such party;
provided that to the extent that any provision of the
Transaction Documents expressly provides for the
survival of certain rights or obligations following
termination of such party, such provision shall be given
effect; and
(j) each of the Issuer and the Security Trustee shall promptly
reimburse the Manager (or any designee of the Manager), for
all reasonable expenses incurred by the Manager (or such
designee), as such are incurred, in connection with the
termination of such party and the transfer of servicing
activities within the meaning of Item 1122 of Regulation AB to
a successor. The provisions of this clause 52.21(j) shall not
limit whatever rights the Manager may have under other
provisions of the Transaction Documents or otherwise, whether
in equity or at law, such as an action for damages, specific
performance or injunctive relief.
52.22 DIRECTION OF CLAIMS BY THE MANAGER
(a) If the Issuer or the Security Trustee (for the purposes of
this clause 52.22, each a RELEVANT CLAIMANT) is entitled to
recover from the accounting firm
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Note Trust Deed SMHL Global Fund [ ]-[ ]
providing the accountant's letter referred to in clause
52.21(h) by any action, proceeding, claim or demand ((for the
purpose of this clause 52.22, a CLAIM), the Relevant Claimant
must if the Issuer or the Security Trustee in good faith
determines that it is entitled to do so after taking
professional advice pursue such Claim and must promptly notify
the Manager in writing of such Claim.
(b) Upon notice to the Manager of any such Claim under clause
52.22(a), the Manager will have the option to assume the
direction of that Claim (including the employment of legal
advisers selected by the Relevant Claimant but approved by the
Manager subject to the payment by the Relevant Claimant of all
fees and expenses).
(c) If the Relevant Claimant receives notice from the Manager of
its election to direct the Claim and the Manager approves the
legal advisers selected by the Relevant Claimant for the
purposes of that Claim, the Relevant Claimant will not be
liable to the Manager under this clause 52.22 for any fees or
expenses subsequently incurred by the Manager in connection
with the Claim unless the Relevant Claimant does not employ
legal advisers approved by or on behalf of the Manager to
represent the Manager within a reasonable time after notice of
the Claim.
52.23 DIRECTION OF DEFENCE OF CLAIMS
(a) If any action, proceeding, claim or demand brought against the
Manager in connection with (i) any untrue statement of a
material fact contained or alleged to be contained in the
Company Information referred to in clause 52.21(h) or (ii) the
omission or alleged omission to state in the Company
Information a material fact required to be stated in the
Company Information or necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (for the purpose of this
clause 52.23, a CLAIM), the Issuer and the Security Trustee
(for the purpose of this clause 52.23, each a RELEVANT
DEFENDANT) will have the option to assume the direction of
that Claim (including the employment of legal advisers
selected by the Relevant Defendant but approved by the Manager
subject to the payment by the Relevant Defendant of all fees
and expenses).
(b) If the Relevant Defendant notifies the Manager in writing of
its election to direct the defence of a Claim brought against
the Relevant Defendant and the Manager approves the legal
advisers selected by the Relevant Defendant for the purposes
of the defence of that Claim, the Relevant Defendant will not
be liable to the Manager under this clause 52.23 for any fees
or expenses subsequently incurred by the Manager in connection
with the Claim against the Relevant Defendant unless the
Relevant Defendant does not employ legal advisers approved by
or on behalf of the Manager to represent the Relevant
Defendant within a reasonable time after notice of the Claim.
(c) If any Claim brought against a Relevant Defendant is settled
with respect to the Relevant Defendant with the consent of the
Manager or if there is a final judgement against the Relevant
Defendant in relation to it, the Relevant Defendant agrees to
indemnify and hold harmless the Manager from and against any
loss or liability by reason of such settlement or
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Note Trust Deed SMHL Global Fund [ ]-[ ]
judgement (other than any fees and expenses incurred in
circumstances where the Relevant Defendant is not liable for
them under clause 52.23(b), or any fees and expenses incurred
in connection with any Claim brought against a Relevant
Defendant that is settled with respect to the Relevant
Defendant or compromised by the Relevant Defendant without the
consent of the Manager (unless the Manager has unreasonably
withheld its consent)).
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53 CONSENT OF CLASS A OFFERED NOTEHOLDERS
53.1 GENERAL
Except as expressly provided elsewhere in this deed or in clause
53.2 below, any action that may be taken by the Class A Offered
Noteholders under this deed may be taken by registered holders of
not less than a majority of the aggregate Invested Amount of Class A
Offered Notes calculated and expressed in the A$ Equivalent.
53.2 SPECIAL WRITTEN APPROVALS
(a) The following matters are only capable of being effected by
the approval in writing of holders of at least 75% of the
aggregate Invested Amount of the Class A Offered Notes
calculated and expressed in the A$ Equivalent, namely:
(1) modification of the date fixed for final maturity of the
Class A Offered Notes;
(2) reduction or cancellation of the principal payable on
the Class A Offered Notes or any alteration of the date
or priority of redemption of the Class A Offered Notes;
(3) alteration of the amount of interest payable on any
class of the Class A Offered Notes or modification of
the method of calculating the amount of interest payable
on the Class A Offered Notes or modification of the date
of payment of or interest payable on the Class A Offered
Notes;
(4) alteration of the currency in which payments under the
Class A Offered Notes are to be made;
(5) altering the required percentage of aggregate Invested
Amount of the Class A Offered Notes required to consent
or take any action;
(6) alteration of this sub-paragraph.
(b) The Class A Offered Noteholders shall in addition to the
powers given under this deed have the following powers if
approval is given by holders of at least 75% of the aggregate
Invested Amount of the Class A Offered Notes calculated and
expressed in the A$ Equivalent as appropriate,
(1) power to sanction any compromise or arrangement proposed
to be made between the Issuer and the Class A Offered
Noteholders;
(2) power to sanction any abrogation, modification,
compromise or arrangement in respect of the rights of
the Class A Offered Noteholders against the Issuer or
against any of its property or
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Note Trust Deed SMHL Global Fund [ ]-[ ]
against any other person whether such rights shall arise
under these presents, any of the Notes or otherwise;
(3) power to assent to any modification of the provisions
contained in this deed, the Class A Offered Notes
(including the Conditions) or the provisions of any of
the Transaction Documents which shall be proposed by the
Issuer or the Note Trustee;
(4) power to give any authority or sanction which under the
provisions of this deed or the Class A Offered Notes
(including the Conditions) is required to be given in
writing by holders of at least 75% of the aggregate
Invested Amount of the Class A Offered Notes calculated
and expressed in the A$ Equivalent;
(5) 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;
(6) power to discharge or exonerate the Note Trustee from
all liability in respect of any act or omission for
which the Note Trustee may have become responsible under
this deed or under the Class A Offered Notes;
(7) power to authorise the Note Trustee to concur in and
execute and do all such deeds, instruments, acts and
things as may be necessary to carry out and give effect
to the approval in writing by holders of at least 75% of
the aggregate Invested Amount of the Class A Offered
Notes calculated and expressed in the A$ Equivalent;
(8) override any waiver by the Note Trustee of a breach of
any provisions of Transaction Documents or an Event of
Default under the Security Trust Deed;
(9) power to sanction any scheme or proposal for the
exchange or sale of the Class A Offered Notes, as the
case may be, or for the conversion of the Class A
Offered Notes, or for the cancellation of the Class A
Offered Notes, in consideration of shares, stock, notes,
bonds, debentures, debenture stock and/or other
obligations and/or securities of the Issuer 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.
53.3 REQUIREMENT FOR WRITING
Except as expressly provided elsewhere in this deed, all notices and
consents from Class A Offered Noteholders shall be delivered in
writing. Any solicitation of such notices or consent shall be in
writing and be delivered by the Issuer, Manager or Note Trustee, as
applicable, seeking such notice or consent from the Class A Offered
Noteholders to the Principal Paying Agent, who shall deliver the
foregoing to the appropriate Class A Offered Noteholders. With
respect to any solicitation of approval of Class A Offered
Noteholders, the Record Date for determining Class A Offered
Noteholders with respect to such solicitation shall be the date upon
which the Principal Paying Agent distributes such notices or
solicitation to the Class A Offered Noteholders.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
53.4 MEETINGS OF CLASS A OFFERED NOTEHOLDERS
Meetings of Class A Offered Noteholders may be convened in the
manner set out in the Meeting Procedures set out in Schedule 3 in
any circumstance where a matter arises for determination by the
Class A Offered Noteholders pursuant to this deed.
[Notwithstanding any of the foregoing, the Class A[ ] Noteholders
and the Class A[ ] Noteholders may take action as a Class on any
matters that relate solely to their relevant Class of Class A
Offered Notes, provided that:
(a) the Class A[ ] Noteholders may not do anything which would
materially affect the rights and interests of the Class A[ ]
Noteholders absent the consent of the Class A[ ] Noteholders;
and
(b) the Class A[ ] Noteholders may not do anything which would
materially affect the rights and interests of the Class A[ ]
Noteholders absent the consent of the Class A[ ] Noteholders
and may not do anything which would affect the compliance of
this deed with the TIA.]
53.5 ENTIRE AGREEMENT
This deed together with such of the Transaction Documents to which
each of the parties hereto is a party, constitutes the entire
agreement between the parties to it as to the subject matter with
which it deals.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
EXECUTED AS A DEED:
Each attorney executing this deed states that he or she has no notice of,
alteration to, or revocation or suspension of, his or her power of attorney.
ISSUER
SIGNED SEALED AND DELIVERED for
PERPETUAL LIMITED
by its attorney in the presence of:
----------------------------------------- --------------------------------
Witness Attorney
----------------------------------------- --------------------------------
Name (please print) Name (please print)
MANAGER
SIGNED SEALED AND DELIVERED for
ME PORTFOLIO MANAGEMENT LIMITED
by its attorney in the presence of:
----------------------------------------- --------------------------------
Witness Attorney
----------------------------------------- --------------------------------
Name (please print) Name (please print)
NOTE TRUSTEE / PRINCIPAL PAYING AGENT / CALCULATION AGENT / NOTE REGISTRAR
EXECUTED for
THE BANK OF NEW YORK
by its Authorised Signatory in the
presence of:
----------------------------------------- --------------------------------
Witness Authorised Signatory
----------------------------------------- --------------------------------
Name (please print) Name (please print)
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Note Trust Deed SMHL Global Fund [ ]-[ ]
SECURITY TRUSTEE
SIGNED SEALED AND DELIVERED for
PERPETUAL TRUSTEE COMPANY LIMITED
by its attorney in the
presence of:
----------------------------------------- --------------------------------
Witness Attorney
----------------------------------------- --------------------------------
Name (please print) Name (please print)
[IRISH PAYING AGENT AND CLASS A[ ] IRISH PAYING AGENT
SIGNED SEALED AND DELIVERED for
AIB/BNY FUND MANAGEMENT (IRELAND) LIMITED
by its attorney in the
presence of:
----------------------------------------- --------------------------------
Witness Attorney
----------------------------------------- --------------------------------
Name (please print) Name (please print)]
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Note Trust Deed SMHL Global Fund [ ]-[ ]
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SCHEDULE 1 - FORM OF BOOK-ENTRY NOTE
PART A - FORM OF CLASS A[ ] BOOK-ENTRY NOTE
REGISTERED CUSIP No...................
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 Limited
(ABN 86 000 000 000)
(a limited liability company incorporated under the law of
New South Wales, Australia)
in its capacity as trustee of the
SMHL Global Fund [ ]-[ ]
CLASS A[ ] BOOK-ENTRY NOTE
representing
US$[ ]
Class A[ ] Mortgage Backed Floating Rate Notes Due on
the Payment Date falling in [ , ]
This Note is a Class A[ ] Book-Entry Note in respect of a duly authorised issue
of Notes of Perpetual Limited in its capacity as trustee of the SMHL Global Fund
[ ]-[ ] (the "SECURITISATION FUND") (the "ISSUER"), designated as specified in
the title above (the "NOTES"), in an initial aggregate principal amount of
** US$[ ] **
and (a) constituted by a Master Trust Deed (the "MASTER TRUST DEED") dated 4
July 1994 as amended and restated from time to time between the Issuer as
trustee, and ME Portfolio Management Limited (the "MANAGER"), by a Supplementary
Bond Terms Notice (the "SUPPLEMENTARY BOND TERMS NOTICE") dated [ , ]
executed by the Issuer, the Security Trustee (as defined herein), The Bank of
New York (the note trustee for the time being referred
--------------------------------------------------------------------------------
Page 108
Note Trust Deed SMHL Global Fund [ ]-[ ]
to as the "NOTE TRUSTEE") as trustee for the holders for the time being of the
Class A Offered Notes (the "CLASS A OFFERED NOTEHOLDERS") and the Manager, and
by the Conditions; (b) issued subject to a Note Trust Deed dated [ , ]
(the "NOTE TRUST DEED") between (among others) the Issuer, the Manager and the
Note Trustee [and AIB/BNY Fund Management (Ireland) Limited (the "IRISH PAYING
AGENT")]; and (c) secured by a Security Trust Deed (the "SECURITY TRUST DEED")
dated [ , ] between the Issuer, the Manager, the Note Trustee, and
Perpetual Trustee Company Limited (ABN 42 000 001 007) (the "SECURITY TRUSTEE",
which expression shall include its successor for the time being as security
trustee under the Security Trust Deed) (as amended). References to the
Conditions (or to any particular numbered Condition) shall be to the Terms and
Conditions of the Class A[ ] Notes set out in Part A of Schedule 4 to the Note
Trust Deed but with the deletion of those provisions which are applicable only
to Class A[ ] 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 Class A[ ] Definitive Notes under Clause 3.3
of the Note Trust Deed this Class A[ ] Book-Entry Note will be exchangeable in
whole at the offices of the Note Registrar at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West,
New York, New York 10286, United States of America (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) during normal business
hours for Class A[ ] Definitive Notes and the Issuer shall execute and procure
that the Principal Paying Agent authenticates and delivers in full exchange for
this Class A[ ] Book-Entry Note, Class A[ ] Definitive Notes in aggregate
principal amount equal to the Amount of all Class A[ ] Notes represented by this
Class A[ ] Book-Entry Note. The Issuer is not obliged to issue Class A[ ]
Definitive Notes until 30 days after the occurrence of an event set out in
clause 3.3 of the Note Trust Deed.
If the Issuer fails to meet its obligations to issue Class A[ ] Definitive
Notes, this shall be without prejudice to the Issuer's obligations with respect
to the Class A[ ] Notes under the Note Trust Deed, the Master Trust Deed, the
Supplementary Bond Terms Notice and this Class A[ ] Book-Entry Note.The Issuer,
in its capacity as trustee of the Securitisation Fund, subject to this Class A[
] 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[ ] Book-Entry Note the principal sum of US$[ ] or such lesser
amount as may from time to time be represented by this Class A[ ] Book-Entry
Note (or such part of that amount as may become repayable under the Conditions,
the Supplementary Bond 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 Bond Terms Notice and the Note Trust Deed and to
pay interest in arrears on each Payment Date (as defined in Condition 4) on the
Invested Amount (as defined in Condition 5(a)) of this Class A[ ] Book-Entry
Note at rates determined in accordance with Condition 4 and all subject to and
in accordance with the certification requirements described in this Class A[ ]
Book-Entry Note, the Conditions, the Supplementary Bond Terms Notice and the
Note Trust Deed, which shall be binding on the registered holder of this Class
A[ ] Book-Entry Note (as if references in the Conditions to the Notes and the
Noteholders were references to this Class A[ ] Book-Entry Note and the
registered holder of this Class A[ ] Book-Entry Note respectively and as if the
same had been set out in this Class A[ ] Book-Entry Note in full with all
necessary changes, except as otherwise provided in this Class A[ ] Book-Entry
Note).
Payments of interest on this Class A[ ] Book-Entry Note due and payable on each
Payment Date, together with the instalment of principal, if any, shall be
payable to the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.). No payment of interest or principal may be made by the Issuer or
any Paying Agent in the Commonwealth of Australia or its possessions or into a
bank account or to an address in the Commonwealth of Australia. Each of the
persons
--------------------------------------------------------------------------------
Page 109
Note Trust Deed SMHL Global Fund [ ]-[ ]
appearing from time to time in the records of DTC, as the holder of a beneficial
interest in a Class A[ ] Note will be entitled to receive any payment so made in
respect of that Class A[ ] Note 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[ ] Notes which must be made by the
holder of this Class A[ ] Book-Entry Note, for so long as this Class A[ ]
Book-Entry Note is outstanding.
On any payment of principal and/or interest on the Class A[ ] Notes as set out
above details of that payment shall be endorsed by the Note Registrar in the
Note Register and, in the case of payments of principal, the Outstanding
Principal Balance and Invested Amount of the Class A[ ] 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 Class A[ ] Definitive Notes under Clause 3.3
of the Note Trust Deed, the Class A[ ] Book-Entry Notes will be surrendered to
the Issuer by a Clearing Agency and a Clearing Agency will deliver the relevant
registration instructions to the Issuer. Class A[ ] Definitive Notes shall be
executed by the Issuer and authenticated by the Principal Paying Agent and
delivered as per the instructions of the Clearing Agency.
The Class A[ ] Definitive Notes to be issued on that exchange will be in
registered form each in the denomination of US$[ ] or integral multiples thereof
(in respect of each Class A[ ] Note). If the Issuer fails to meet its
obligations to issue Class A[ ] Definitive Notes (in respect of any Class A[ ]
Note), this shall be without prejudice to the Issuer's obligations with respect
to the Class A[ ] Notes under the Note Trust Deed, the Master Trust Deed, the
Supplementary Bond Terms Notice and this Class A[ ] Book-Entry Note.
On an exchange of this Class A[ ] Book-Entry Note, this Class A[ ] Book-Entry
Note shall be surrendered to the Issuer.
This Class A[ ] 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 Bond Terms Notice).
This Class A[ ] Book-Entry Note is not a document of title. Title shall be
determined by entry in the Register and only the duly registered holder from
time to time is entitled to payments in respect of this Class A[ ] Book-Entry
Note.
This Class A[ ] 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[ ] Book-Entry Note to be signed
[manually/in facsimile] by a person duly authorised on its behalf
PERPETUAL LIMITED in its capacity as trustee of the SMHL Global Fund [ ]-[ ]
By:
--------------------------------------
Authorised Signatory
Date:
------------------------------------
--------------------------------------------------------------------------------
Page 110
Note Trust Deed SMHL Global Fund [ ]-[ ]
IMPORTANT NOTICE:
-------------------------------------------------------
(a) The Class A[ ] Notes do not represent deposits or other liabilities of
Perpetual Limited, ABN 86 000 000 000, or associates of Perpetual Limited.
(b) The holding of Class A[ ] Notes is subject to investment risk, including
possible delays in repayment and loss of income and principal invested.
(c) None of Perpetual Limited, any associate of Perpetual Limited, the
Security Trustee, the Note Trustee, the Note Registrar, the Calculation
Agent[, the Class A[ ] Irish Paying Agent] or the Paying Agents in any way
stands behind the capital value and/or performance of the Class A[ ] Notes
or the assets of the Securitisation Fund except in the case of the Issuer
only to the limited extent provided in the Transaction Documents for the
Securitisation Fund.
(d) None of Perpetual Limited, the Manager, the Security Trustee, the Note
Trustee, the Note Registrar, the Calculation Agent, [the Class A[ ] Irish
Paying Agent,] the Paying Agents[, the Euro Currency Swap Provider] or the
US Currency Swap Provider (as defined in the Supplementary Bond Terms
Notice) guarantees the payment of interest or the repayment of principal
due on the Class A[ ] Notes.
(e) None of the obligations of the Issuer or the Manager are guaranteed in any
way by any associate either of them.
(f) Without limiting the Conditions, the Issuer's liability to make payments
in respect of the Class A[ ] Notes is limited to its right of indemnity
from the assets of the Securitisation Fund from time to time available to
make such payments under the Master Trust Deed and Supplementary Bond
Terms Notice. All claims against the Issuer in relation to the Class A[ ]
Notes can be enforced against the Issuer only to the extent to which it
can be satisfied out of the assets of the Securitisation Fund 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 wilful 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.
--------------------------------------------------------------------------------
Page 111
Note Trust Deed SMHL Global Fund [ ]-[ ]
CERTIFICATE OF AUTHENTICATION
This Class A[ ] Book-Entry Note is authenticated by The Bank of New York and
until so authenticated shall not be valid for any purpose.
THE BANK OF NEW YORK
as Principal Paying Agent
By:
--------------------------------------
--------------------------------------------------------------------------------
Page 112
Note Trust Deed SMHL Global Fund [ ]-[ ]
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: Signature
------------------------- Guaranteed:
---------------------------------
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Note Registrar, which requirements
include membership or participation
in STAMP or such other "signature
guarantee program" as may be
determined by the Note Registrar in
addition to, or in substitution
for, STAMP, all in accordance with
the Securities Exchange Act of
1934, as amended.
-----------------------------------
* NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular without alteration, enlargement or any change whatsoever.
--------------------------------------------------------------------------------
Page 113
Note Trust Deed SMHL Global Fund [ ]-[ ]
[PART B - FORM OF BOOK-ENTRY CLASS A[ ] GLOBAL NOTE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO THE
DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE COMMENCEMENT OF
THE OFFERING OF THE CLASS A[ ] NOTES MAY NOT BE OFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES, OR FOR THE ACCOUNT OR BENEFIT OF
U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND IN ACCORDANCE WITH ANY APPLICABLE LAWS OF ANY STATE OF THE UNITED
STATES.
THIS NOTE IS A GLOBAL BOND FOR THE PURPOSES OF SECTION 128F(10) OF THE INCOME
TAX ASSESSMENT XXX 0000 OF THE COMMONWEALTH OF AUSTRALIA.
REGISTERED ISIN No...............................
Common Code...........................
Unless this Note is presented by an authorised representative of Euroclear Bank
S.A./N.V. as operator of Euroclear ("EUROCLEAR") or of Clearstream Banking,
Societe Anonyme ("CLEARSTREAM, LUXEMBOURG"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of The Bank of New York Depositary (Nominees) Limited or the Common
Depository for Euroclear or Clearstream, Luxembourg or in such other name as is
requested by an authorised representative of Euroclear or Clearstream,
Luxembourg (and any payment is made to Euroclear or Clearstream, Luxembourg, The
Bank of New York Depositary (Nominees) Limited or that Common Depository or to
such other entity as is requested by an authorised representative of Euroclear
or Clearstream, Luxembourg), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, being The Bank of New York Depositary (Nominees) Limited, 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 Limited
(ABN 86 000 000 000)
(a limited liability company incorporated under the law of
New South Wales, Australia)
in its capacity as trustee of the
SMHL Global Fund [ ]-[ ]
CLASS A[ ] BOOK-ENTRY NOTE
representing
(euro)[ ]
--------------------------------------------------------------------------------
Page 114
Note Trust Deed SMHL Global Fund [ ]-[ ]
Class A[ ] Mortgage Backed Floating Rate Notes Due on
the Payment Date falling in [ , ]
This Note is a Class A[ ] Book-Entry Note in respect of a duly authorised issue
of Notes of Perpetual Limited in its capacity as trustee of the SMHL Global Fund
[ ]-[ ] (the "SECURITISATION FUND") (the "ISSUER"), designated as
specified in the title above (the "NOTES"), in an initial aggregate principal
amount of
** (euro)[ ] **
and (a) constituted by a Master Trust Deed (the "MASTER TRUST DEED") dated 4
July 1994 between the Issuer as trustee, and ME Portfolio Management Limited
(the "MANAGER") as amended and restated from time to time, by a Supplementary
Bond Terms Notice (the "SUPPLEMENTARY BOND TERMS NOTICE") dated [ , ]
executed by the Issuer, the Security Trustee (as defined herein), The Bank of
New York (the note trustee for the time being referred to as the "NOTE TRUSTEE")
as trustee for the holders for the time being of the Class A Offered Notes (the
"CLASS A OFFERED NOTEHOLDERS") and the Manager, and by the Conditions; (b)
issued subject to a Note Trust Deed dated [ , ] (the "NOTE TRUST DEED")
between (among others) the Issuer, the Manager, AIB/BNY Fund Management
(Ireland) Limited (the "IRISH PAYING AGENT") and the Note Trustee; and (c)
secured by a Security Trust Deed (the "SECURITY TRUST Deed") dated [ , ]
between the Issuer, the Manager, the Note Trustee and Perpetual Trustee Company
Limited (ABN 42 000 001 007) (the "SECURITY TRUSTEE", which expression shall
include its successor for the time being as security trustee under the Security
Trust Deed) (as amended). References to the Conditions (or to any particular
numbered Condition) shall be to the Terms and Conditions of the Class A[ ] Notes
set out in Part B of Schedule 4 to the Note Trust Deed but with the deletion of
those provisions which are applicable only to Class A[ ] 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 Class A[ ] Definitive Notes under Clause 3.4
of the Note Trust Deed this Class A[ ] Book-Entry Note will be exchangeable in
whole at the offices of the Note Registrar at 00xx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxx, X00 0XX, Xxxxxx Xxxxxxx (or such other place outside the United States
of America and Commonwealth of Australia and any of their respective territories
and possessions and other areas subject to jurisdictions as the Note Trustee may
agree) during normal business hours for Class A[ ] Definitive Notes and the
Issuer shall execute and procure that the Principal Paying Agent authenticates
and delivers in full exchange for this Class A[ ] Book-Entry Note, Class A[ ]
Definitive Notes in aggregate principal amount equal to the Amount of all Class
A[ ] Notes represented by this Class A[ ] Book-Entry Note. The Issuer is not
obliged to issue Class A[ ] Definitive Notes until 30 days after it becomes
aware of the occurrence of the relevant event or request in clause 3.4(b).
If the Issuer fails to meet its obligations to issue Class A[ ] Definitive
Notes, this shall be without prejudice to the Issuer's obligations with respect
to the Class A[ ] Notes under the Note Trust Deed, the Master Trust Deed, the
Supplementary Bond Terms Notice and this Class A[ ] Book-Entry Note.
The Issuer, in its capacity as trustee of the Securitisation Fund, subject to
this Class A[ ] Book-Entry Note and subject to and in accordance with the
Conditions and the Note Trust Deed promises to pay to the registered holder of
this Class A[ ] Book-Entry Note, or registered assigns of this Class A[ ]
Book-Entry Note the principal sum of (euro)[ ] or such lesser amount as
may from time to time be represented by this Class A[ ] Book-Entry Note (or such
part of that amount as may become repayable under the Conditions, the
Supplementary Bond 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 Bond Terms Notice and the Note Trust
--------------------------------------------------------------------------------
Page 115
Note Trust Deed SMHL Global Fund [ ]-[ ]
Deed and to pay interest in arrears on each Payment Date (as defined in
Condition 4) on the Invested Amount (as defined in Condition 5(a)) of this Class
A[ ] Book-Entry Note at rates determined in accordance with Condition 4 and all
subject to and in accordance with the certification requirements described in
this Class A[ ] Book-Entry Note, the Conditions, the Supplementary Bond Terms
Notice and the Note Trust Deed, which shall be binding on the registered holder
of this Class A[ ] Book-Entry Note (as if references in the Conditions to the
Notes and the Noteholders were references to this Class A[ ] Book-Entry Note and
the registered holder of this Class A[ ] Book-Entry Note respectively and as if
the same had been set out in this Class A[ ] Book-Entry Note in full with all
necessary changes, except as otherwise provided in this Class A[ ] Book-Entry
Note).
Payments of interest on this Class A[ ] Note due and payable on each Payment
Date, together with the instalment of principal, if any, shall be payable to the
nominee of the Clearing Agency (initially, such nominee to be the Common
Depository in respect of the Class A[ ] Notes). No payment of interest or
principal may be made by the Issuer or any Paying Agent in the Commonwealth of
Australia or their 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 Euroclear or Clearstream, Luxembourg, as the holder of a
beneficial interest in a Class A[ ] Note will be entitled to receive any payment
so made in respect of that Class A[ ] Note in accordance with the respective
rules and procedures of Euroclear and Clearstream, Luxembourg. Such persons will
have no claim directly against the Issuer in respect of payments due on the
Class A[ ] Notes which must be made by the holder of this Class A[ ] Book-Entry
Note, for so long as this Class A[ ] Book-Entry Note is outstanding.
On any payment of principal and/or interest on the Class A[ ] Notes as set out
above details of that payment shall be endorsed by the Note Registrar in the
Note Register and, in the case of payments of principal, the Outstanding
Principal Balance and Invested Amount of the Class A[ ] 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.
On an exchange of this Class A[ ] Book-Entry Note, this Class A[ ] Book-Entry
Note shall be surrendered to the Issuer.
This Class A[ ] 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 Bond Terms Notice).
This Class A[ ] Book-Entry Note is not a document of title. Title shall be
determined by entry in the Register and only the duly registered holder from
time to time is entitled to payments in respect of this Class A[ ] Book-Entry
Note.
This Class A[ ] 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[ ] Book-Entry Note to be signed
[manually/in facsimile] by a person duly authorised on its behalf
PERPETUAL LIMITED in its capacity as trustee of the SMHL Global Fund [ ]-[ ]
By:
--------------------------------------
Authorised Signatory
Date:
------------------------------------
--------------------------------------------------------------------------------
Page 116
Note Trust Deed SMHL Global Fund [ ]-[ ]
--------------------------------------------------------------------------------
Page 117
Note Trust Deed SMHL Global Fund [ ]-[ ]
IMPORTANT NOTICE:
---------------------------------------------------------
(a) The Class A[ ] Notes do not represent deposits or other liabilities of
Perpetual Limited, ABN 86 000 000 000, or associates of Perpetual Limited.
(b) The holding of Class A[ ] Notes is subject to investment risk, including
possible delays in repayment and loss of income and principal invested.
(c) None of Perpetual Limited, any associate of Perpetual Limited, the
Security Trustee, the Note Trustee, the Note Registrar, the Calculation
Agent, the Class A[ ] Irish Paying Agent or the Paying Agents in any way
stands behind the capital value and/or performance of the Class A[ ] Notes
or the assets of the Securitisation Fund except in the case of Perpetual
Limited only to the limited extent provided in the Transaction Documents
for the Securitisation Fund.
(d) None of Perpetual Limited, the Manager, the Security Trustee, the Note
Trustee, the Note Registrar, the Calculation Agent, the Class A[ ] Irish
Paying Agent, the Paying Agents, the Euro Currency Swap Provider or, the
US Currency Swap Provider (as defined in the Supplementary Bond Terms
Notice) guarantees the payment of interest or the repayment of principal
due on the Class A[ ] Notes.
(e) None of the obligations of the Issuer or the Manager are guaranteed in any
way by any associate either of them.
(f) Without limiting the Conditions, the Issuer's liability to make payments
in respect of the Class A[ ] Notes is limited to its right of indemnity
from the assets of the Securitisation Fund from time to time available to
make such payments under the Master Trust Deed and Supplementary Bond
Terms Notice. All claims against the Issuer in relation to the Class A[ ]
Notes can be enforced against the Issuer only to the extent to which it
can be satisfied out of the assets of the Securitisation Fund 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 wilful 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.
--------------------------------------------------------------------------------
Page 118
Note Trust Deed SMHL Global Fund [ ]-[ ]
CERTIFICATE OF AUTHENTICATION
This Class A[ ] Book-Entry Note is authenticated by The Bank of New York and
until so authenticated shall not be valid for any purpose.
THE BANK OF NEW YORK
as Principal Paying Agent
By:
--------------------------------------
--------------------------------------------------------------------------------
Page 119
Note Trust Deed SMHL Global Fund [ ]-[ ]
--------------------------------------------------------------------------------
SCHEDULE 2 - NOTEHOLDERS REPORTS
INFORMATION TO BE CONTAINED IN NOTEHOLDERS REPORT
o The applicable Cut Off, Interest Determination Date and Payment Date.
o The aggregate amount of payments received with respect to the Loans
secured by Mortgages comprised in Assets of the Securitisation Fund,
including any prepayment amounts.
o The Collections.
o The Interest Collections.
o The Principal Collections.
o The aggregate principal amount redrawn under any Loan Redraw Facilities
and the aggregate principal amount advanced under any Top-up Loans during
the relevant Calculation Period.
o The shortfall, if any, between the aggregate principal amount redrawn
under any Loan Redraw Facilities payable by the Issuer and the amount of
Collections that represent prepayments of principal received by the Issuer
at the end of the relevant Calculation Period.
o The shortfall, if any, between the aggregate principal amount advanced
under any Top-up Loans payable by the Issuer and the amount of Collections
that represent repayments or prepayments of principal received by the
Issuer at the end of the relevant Calculation Period.
o The shortfall, if any, between the amount payable by the Issuer to any
Interest Hedge Provider or provider of any other Enhancement in respect of
termination of the Interest Hedge or other Enhancement and the amount
received in respect of these costs from the relevant Mortgage at the end
of the relevant Calculation Period.
o The amount, if any, for the relevant Calculation Period and each prior
Calculation Period, paid or allocated under clauses 6.2(a)(1), 6.2(a)(2),
6.2(a)(3) or 6.2(a)(4) (or 6.2(c)(1), 6.2(c)(2), 6.2(c)(3) or 6.2(c)(4))
of the Supplementary Bond Terms Notice and which has not been reimbursed
under clause 6.1(a)(8) or 6.1(c)(8).
o The bond factor for each class of Notes on the relevant Payment Date,
which with respect to a Class of Notes means the aggregate of the Invested
Amount of the Class of Notes on the relevant Payment Date, divided by the
aggregate Original Principal Balance of that Class of Notes.
o The Class A Charge Offs.
o The Class B Charge Offs.
o The Redraw Charge Offs.
o The Top-up Charge Offs.
o The Carry Over Class A Charge Offs.
o The Carry Over Class B Charge Offs.
o The Carry Over Redraw Charge Offs.
o The Carry Over Top-up Charge Offs.
o The threshold rate.
--------------------------------------------------------------------------------
Page 120
Note Trust Deed SMHL Global Fund [ ]-[ ]
o The relevant Interest Rate of each class of Notes, as of the first day of
the related Interest Period.
o The amount of any fees or Expenses paid, with an identification of the
general purpose of such fees or Expenses and the party receiving such fees
or Expenses.
o The aggregate amount of principal paid or allocated in respect of each
Class of Notes, if any.
o The aggregate amount of interest paid or allocated in respect of each
Class of Notes, if any.
o The Outstanding Principal Balance of each Class of Notes before and after
giving effect to the payment or allocation of principal on the relevant
Payment Date.
o Updated pool composition information, including the weighted average
seasoning and the weighted average remaining term in relation to each
Class of Notes.
o The balance of the Cash Collateral Account as at the relevant Payment Date
and as at the previous Payment Date and the disposition of funds on
deposit in the Cash Collateral Account since such previous Payment Date.
o The percentage of the Outstanding Principal Balance of the Class A Notes,
after giving effect to payments and allocations on the relevant Payment
Date.
o In the case of notes benefiting from Enhancements or other support
described in a prospectus supplement, the amount of coverage under such
arrangements as of the relevant Payment Date and, if applicable, a
description of any Enhancement substituted therefore;
o The Unpaid Balance presented with respect to each of fixed rate and
variable rate Loans, after giving effect to the payment of principal on
the relevant Payment Date, and the number of Loans secured by Mortgages
comprised in Assets of the Securitisation Fund, at the beginning and end
of the relevant Calculation Period.
o Based on the most recent reports furnished by the Mortgage Manager or any
subservicer, the number and aggregate principal balances of any Loans
secured by Mortgages comprised in Assets of the Securitisation Fund that
are delinquent:
(a) 30-59 days;
(b) 60-89 days;
(c) 90-119 days; and
(d) 120 or more days, and
that are in foreclosure and any material changes to the
information specified in the prospectus supplement with
respect to how delinquencies, charge offs and uncollectible
accounts are defined.
o The amount of any Realised Losses on the Loans secured by Mortgages
comprised in Assets of the Securitisation Fund during the relevant
Calculation Period.
o Information about the amount, terms and general purpose of any advances
made or reimbursed during the relevant Calculation Period, including the
general use of funds advanced and the general source of funds for
reimbursements.
o Any material modifications, extensions or waivers to the terms, fees,
penalties or payments of the Loans secured by Mortgages comprised in
Assets of the Securitisation Fund during the Calculation Period or that
have cumulatively become material over time.
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o Any material breaches of housing loan representations or warranties or
covenants in the Mortgage Origination and Management Agreement, the
Supplementary Bond Terms Notice and the Bond Issue Confirmation
Certificate (as defined in the Mortgage Origination and Management
Agreement).
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SCHEDULE 3 - MEETING PROCEDURES
1. CONVENING OF MEETINGS
1.1 A meeting of Class A Offered Noteholders must be convened by the
Note Registrar if required to do so in writing:
(a) by the Issuer:
(b) by the Note Trustee; or
(c) by Class A Offered Noteholders representing not less than 25%
of the Class A Offered Notes calculated and expressed in the
A$ Equivalent.
1.2 Each meeting of Class A Offered Noteholders will be held at the time
and place designated by the Note Registrar.
2. NOTICE OF MEETINGS
2.1 The Note Registrar shall give notice of a proposed meeting of Class
A Offered Noteholders to each Class A Offered Noteholder, the Issuer
and the Note Trustee as follows:
(a) the notice must specify the date, time and place of the
meeting and the nature of each specific resolution (if any) to
be proposed at that meeting;
(b) the notice must be given 5 Banking Days in advance of the
meeting (inclusive of the day on which the notice is given and
of the day on which the meeting is held), unless the matter
requires, in the opinion of the Note Trustee, urgent
attention; and
(c) the notice may be given to each recipient in any manner
provided in relation to that recipient under this deed.
2.2 An accidental omission to give notice to, or the non-receipt of
notice by, any person entitled to such notice, does not invalidate
the proceedings at any meeting.
3. CHAIRMAN
A representative of the Note Trustee, nominated in writing, is
entitled to take the chair at every meeting of Class A Offered
Noteholders. If no such nomination is made or the person nominated
is not present at the meeting within 15 minutes after the time
appointed for the meeting to be held, the Class A Offered
Noteholders present may choose one of their number to be chairman.
4. QUORUM
At any meeting of Class A Offered Noteholders any 2 or more persons
present in person, by telephone, by video conference or other means
of simultaneous electronic communication, or by Representative,
being Class A Offered Noteholders who represent in excess of 50% of
the aggregate Invested Amount of the Class A Offered Notes
calculated and expressed in the A$ Equivalent will form a quorum for
the transaction of business and no business (other than the choosing
of a chairman) may be transacted at any meeting unless the requisite
quorum is present at the commencement of business.
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5. ADJOURNMENT
5.1 If within 15 minutes from the time appointed for any meeting of
Noteholders a quorum is not present then:
(a) If convened on the requisition of Class A Offered Noteholders,
the meeting will be dissolved; and
(b) in any other case, the meeting will stand adjourned (unless
the Note Trustee agrees that it be dissolved) for the period,
not less than 7 days or more than 42 days determined by the
chairman.
In any adjourned meeting two or more Class A Offered Noteholders
present in person or by Representative representing in excess of 25%
of the aggregate Invested Amount of the Class A Offered Notes
calculated and expressed in the A$ Equivalent will form a quorum and
will have the power to pass any resolution and to decide all matters
which could properly have been dealt with at the meeting from which
the adjournment took place had a quorum been present.
5.2 The chairman may with the consent of (and must if directed by) any
meeting adjourn it from time to time and from place to place. No
business may be transacted at any adjourned meeting except business
which might lawfully have been transacted at the meeting from which
the adjournment took place.
5.3 Notice of any meeting adjourned through want of a quorum must be
given in accordance with clause 2.1 of the Meetings Procedures and
must state the quorum required at that adjourned meeting. That
notice need not contain any further information regarding the
adjourned meeting.
6. VOTING PROCEDURE
6.1 Every question submitted to a meeting will be decided in the first
instance by a show of hands.
6.2 Unless a poll is (before or on the declaration of the result of the
show of hands) demanded by the chairman, the Issuer, the Note
Trustee or by one or more Class A Offered Noteholders or
Representatives of Class A Offered Noteholders whose aggregate
Invested Amount calculated and expressed in the A$ Equivalent
exceeds 5% of the full Invested Amount calculated and expressed in
the A$ Equivalent, a declaration by the chairman that a resolution
has been carried by a particular majority or lost or not carried by
any particular majority is conclusive.
6.3 If a poll is so demanded, it must be taken in such manner and
(subject to clause 6.5) either at once or after such adjournment as
the chairman directs and the result of such poll is taken to be the
resolution of the meeting at which the poll was demanded. The demand
for a poll will not prevent the continuance of the meeting for the
transaction of any business other than the question on which the
poll has been demanded.
6.4 Any poll demanded at any meeting on the election of a chairman or on
any question of adjournment will be taken at the meeting without
adjournment.
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6.5 (a) On a show of hands every person present being a Class A
Offered Noteholder holding, or a Representative holding or
representing, one or more Class A Offered Notes has one vote
except that the Note Trustee shall represent each Class A
Offered Noteholder who has directed the Note Trustee to vote
on its behalf.
(b) On a poll every Class A Offered Noteholder (or its
Representative) present has one vote for each A$100 (but not
part thereof) of the Outstanding Principal Balance of the
Class A Offered Notes held and registered in the Class A
Offered Noteholder's name calculated and expressed in the A$
Equivalent.
(c) Any person entitled to more than one vote need not:
(1) use all their votes; or
(2) cast all their votes in the same way.
7. RIGHT TO ATTEND AND SPEAK
The Manager, the Issuer and the Note Trustee (through their
respective representatives) and their respective financial and legal
advisers is entitled to attend and speak at any meeting of the Class
A Offered Noteholders. No other person is entitled to attend or vote
at any meeting of the Class A Offered Noteholders or to join with
others in requesting the convening of such a meeting unless they are
a Class A Offered Noteholder or a Representative of a Class A
Offered Noteholder.
8. APPOINTMENT OF PROXIES
8.1 Each appointment of a proxy:
(a) must be in writing;
(b) if so required by the Issuer, must be accompanied by proof
satisfactory to the Issuer of its due execution; and
(c) must be deposited with the Note Registrar at its address for
service of notices under this deed or at such other place as
the Note Registrar designated or approves not less than 24
hours before the time appointed for holding the meeting or
adjourned meeting at which the named proxy proposes to vote.
In default, the appointment of proxy is not valid unless the
chairman of the meeting decided otherwise before such meeting or
adjourned meeting proceeds to business.
8.2 The proxy named in any appointment of proxy need not be a Class A
Offered Noteholder.
8.3 The Issuer is not obliged to investigate or be concerned with the
validity of, or the authority of, the proxy named in any appointment
of proxy.
8.4 Any vote cast in accordance with the terms of an appointment of
proxy conforming with clause 8.1 is valid despite the previous
revocation or amendment of the appointment of proxy or of any of the
Class A Offered Noteholder's instructions under which it was
executed, unless written notice of that revocation or amendment is
received by the Note Registrar at its address for service of notices
under this deed or by the chairman of the meeting not less than 24
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Note Trust Deed SMHL Global Fund [ ]-[ ]
hours before the commencement of the meeting or adjourned meeting at
which the appointment of proxy is used.
9. APPOINTMENT OF CORPORATE REPRESENTATIVES
A person authorised in a manner similar to sections 249(3)-(6) of the
Corporations Act (as if that section applied to meetings of Class A
Offered Noteholders) by a Class A Offered Noteholder being a body
corporate to act for it at any meeting shall, in accordance with the
person's authority (until the Note Registrar receives notice of revocation
of the person's authority) be entitled to exercise the same powers on
behalf of that body corporate as that body corporate could exercise if it
were an individual Class A Offered Noteholder and must, if requested to do
so by the chairman of any meeting or adjourned meeting, produce evidence
of authority so to act at or before the meeting.
10. RIGHTS OF REPRESENTATIVES
A Representative of a Class A Offered Noteholder may demand or join in
demanding a poll and (except to the extent the Representative is
specifically directed to vote for or against any proposal) has power
generally to act at a meeting for the Class A Offered Noteholder.
11. MINUTES AND RECORDS
11.1 The Note Registrar shall make and enter in its books minutes of all
resolutions and proceedings at every meeting of Class A Offered
Noteholders promptly following the conclusion of the relevant
meeting.
11.2 Minutes of meetings of Class A Offered Noteholders are conclusive
evidence if signed (or purportedly signed) by the chairman of that
meeting or the chairman of the next succeeding meeting. Until the
contrary is proved every meeting of which minutes have been made and
signed is taken to have been duly convened and held and all
resolutions passed or proceedings transacted at that meeting are
taken to have been duly passed and transacted.
11.3 The Note Registrar shall provide a Class A Offered Noteholder with a
copy of the minutes of each meeting of Class A Offered Noteholders
promptly after request.
12. WRITTEN RESOLUTIONS
Despite the above provisions of these Meeting Procedures, a resolution of
all the Class A Offered Noteholders (including an Extraordinary
Resolution) may be passed and adopted without any meeting being required,
by an instrument in writing signed (including by counterparts):
(a) in the case of a Class A Offered Noteholders' Resolution by
Class A Offered Noteholders whose aggregate Invested Amount is
not less than 50% of the aggregate Invested Amount of all
Class A Offered Notes calculated and expressed in the A$
Equivalent unless the relevant resolution concerns action to
be taken under Condition 8 following the occurrence of an
Event of Default, in which case the required percentage is
67%; and
(b) in the case of an Extraordinary Resolution, by Class A Offered
Noteholders whose aggregate Invested Amount is not less than
75% of the aggregate Invested Amount of all Class A Offered
Notes calculated and expressed in the A$ Equivalent.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Any such instrument is effective on presentation to the Note Registrar and
Note Trustee for entry in the records of the Note Trust. The Note
Registrar shall give to each Class A Offered Noteholder, the Note Trustee
and the Issuer at least 5 Banking Days' notice of the proposed resolution.
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SCHEDULE 4 - TERMS AND CONDITIONS OF THE CLASS A OFFERED NOTES
PART A - TERMS AND CONDITIONS OF THE CLASS A[ ] NOTES
The issue of US$[ ] Class A[ ] Note Mortgage Backed Pass Through Floating
Rate Notes due [ ] (the "CLASS A[ ] NOTES")[, (euro)[ ] Class A[ ] Note
Mortgage Backed Pass Through Floating Rate Notes due [ ] (the "CLASS A[ ]
NOTES" and together with the Class A[ ] Notes, the "CLASS A OFFERED NOTES")],
[A$] Class A[ ] Note Mortgaged Backed Pass Through Floating Rate Notes due
[ ] (the "CLASS A[ ] NOTES" and together with the Class A Offered Notes,
the "CLASS A NOTES")] and A$[ ] Class B Mortgage Backed Pass Through
Floating Rate Notes due [ ] (the "CLASS B NOTES" and together with the
Class A Notes, the "NOTES") by Perpetual Limited, in its capacity as trustee of
the SMHL Global Fund [ ]-[ ] (the "SECURITISATION FUND") (in such capacity, the
"ISSUER"). These Notes are (a) issued subject to a Master Trust Deed (the
"MASTER TRUST DEED") dated 4 July 1994 between the Issuer and ME Portfolio
Management Limited (formerly called Superannuation Members' Home Loans Limited)
(in such capacity, the "MANAGER") (as amended and restated), a Supplementary
Bond Terms Notice (the "SUPPLEMENTARY BOND TERMS NOTICE") dated on or about [
, ] executed by (among others) the Issuer, Perpetual Trustee
Company Limited (ABN 42 000 001 007) (as the security trustee for the time being
referred to as the "SECURITY TRUSTEE"), The Bank of New York (the note trustee
for the time being referred to as the "NOTE TRUSTEE") and the Manager, and in
respect of the Class A Offered Notes these terms and conditions (the
"CONDITIONS"); (b) in respect of the Class A Offered Notes only, constituted by
a note trust deed dated on or about [ , ] (the "NOTE TRUST DEED")
between the Issuer, the Manager, the Security Trustee, The Bank of New York as
trustee for the holders for the time being of the Class A Offered Notes (the
"CLASS A OFFERED NOTEHOLDERS" [and together with the holders for the time being
of the Class A[ ] Notes (the "CLASS A[ ] NOTEHOLDERS")], the "CLASS A
NOTEHOLDERS" and together with the holders for the time being of the Class B
Notes (the "CLASS B NOTEHOLDERS"), the "NOTEHOLDERS"), The Bank of New York as
Principal Paying Agent (the "PRINCIPAL PAYING AGENT", which expression includes
its successors as Principal Paying Agent under the Note Trust Deed), [AIB/BNY
Fund Management (Ireland) Limited as Irish Paying Agent (the "IRISH PAYING
AGENT", which expression includes its successors as Irish Paying Agent under the
Note Trust Deed),] [AIB/BNY Fund Management (Ireland) Limited as Class A[ ]
Irish Paying Agent (the "CLASS A[ ] IRISH PAYING AGENT", which expression
includes its successors as Class A[ ] Irish Paying Agent under the Note Trust
Deed)],] The Bank of New York, as calculation agent (the "CALCULATION AGENT",
which expression includes its successors as Calculation Agent under the Note
Trust Deed) and The Bank of New York as note registrar (the "NOTE REGISTRAR");
and (c) secured by a Security Trust Deed (the "SECURITY TRUST Deed") dated [
, ] between the Issuer, the Manager, the Note Trustee and the Security Trustee
(as amended).
The statements set out below include summaries of, and are subject to the
detailed provisions of, the Master Trust Deed, the Supplementary Bond Terms
Notice, the Security Trust Deed and the Note Trust Deed. Certain words and
expressions used herein have the meanings defined in those documents. In
accordance with the Note Trust Deed, under which further paying agents may be
appointed (together with the Principal Paying Agent [and the Irish Paying
Agent], the "PAYING AGENTS", which expression includes the successors of each
paying agent under the Note Trust Deed and any additional paying agents
appointed), payments in respect of the Class A Offered Notes will be made by the
Paying Agents and the Calculation Agent will make the determinations specified
in the Note Trust Deed. The Class A Offered Noteholders will be entitled
(directly or indirectly) to the benefit of, will be bound by, and will be deemed
to have notice of, all the provisions of the Master Trust Deed, the
Supplementary Bond Terms Notice,
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Note Trust Deed SMHL Global Fund [ ]-[ ]
the Security Trust Deed, the Note Trust Deed, the Mortgage Origination and
Management Agreement dated 4 July 1994 and novated by the Deed of Novation dated
28 September 1995 (as amended) (the "MORTGAGE ORIGINATION AND MANAGEMENT
AGREEMENT") between Members' Equity Pty Limited (formerly known as NMFM Lending
Pty Limited) as mortgage manager (together with any substitute or successor, the
"MORTGAGE MANAGER"), the Manager and the Issuer, (together with the agreements
with respect to the Fixed Floating Rate Swap, and the Currency Swaps (as each
such term is defined below), (those documents the "RELEVANT DOCUMENTS") and
certain other transaction documents defined as such in the Master Trust Deed,
collectively the "TRANSACTION DOCUMENTS"). Copies of the Transaction Documents
are available for inspection at the office of the Principal Paying Agent, being
at the date hereof The Bank of New York at its offices at 000 Xxxxxxx Xxxxxx,
Xxxxx 21 West, New York, New York, United States of America.
The Issuer has entered into a separate ISDA Master Agreement dated [
, ] with [ ] (the "FIXED-FLOATING RATE SWAP PROVIDER") together
with a confirmation relating thereto as at the Closing Date (the "FIXED-FLOATING
RATE SWAP"). The Issuer has also entered into a ISDA Master Agreement dated [
, ] with [ ] (the "US CURRENCY SWAP PROVIDER" [and the
"EURO CURRENCY SWAP PROVIDER",] or the "CURRENCY SWAP PROVIDER"), (together the
Fixed-Floating Rate Swap Provider, and the Currency Swap Provider, the "SWAP
PROVIDER") together with the confirmations relating thereto which have an
effective date of the Closing Date in respect of the Class A Offered Notes (the
"US CURRENCY SWAP" [and] [or] [the "EURO CURRENCY SWAP", respectively and
together] the "CURRENCY SWAP[S]").
Perpetual Limited as trustee of the Securitisation Fund, at the direction of the
Manager, may in the future enter into Fixed-Floating Rate Swaps with new
fixed-floating rate swap providers provided that each new fixed-floating rate
swap provider has at least the minimum credit rating specified by each rating
agency, if any, in order to provide such fixed-floating rate swaps to the
Securitisation Fund.
Class A[ ] Book-Entry Notes will also bear the following legend: "This
book-entry note is a global note for the purposes of section 128F(10) of the
Income Tax Assessment Xxx 0000 of the Commonwealth of Australia".
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1 FORM, DENOMINATION AND TITLE
The Class A[ ] Notes will be issued in registered form without interest coupons
in minimum denominations of US$[ ] and integral multiples thereof.
Each Class A[ ] Book Entry Note is not a document of title. Title shall be
determined by entry in the Register and only the duly registered holder from
time to time is entitled to payments in respect of a Class A[ ] Book Entry Note.
Each Class A[ ] Note will be represented by one or more typewritten fully
registered book-entry notes (each, a "CLASS A[ ] BOOK-ENTRY NOTE" and
collectively, the "CLASS A[ ] BOOK-ENTRY NOTES") registered in the name of Cede
& Co ("CEDE") as nominee of The Depository Trust Company ("DTC"). Beneficial
interests in the Class A[ ] Book-Entry Notes will be shown on, and transfers
thereof will be effected only through, records maintained by DTC and its
participants. Euroclear Bank S.A./N.V, as operator of the Euroclear System
("EUROCLEAR") and Clearstream Banking, Societe Anonyme ("CLEARSTREAM,
LUXEMBOURG"), may hold interests in the Class A[ ] Book-Entry Notes on behalf of
persons who have accounts with Euroclear and Clearstream, Luxembourg through
accounts maintained in the names of Euroclear or Clearstream, Luxembourg, or in
the names of their respective depositories, with DTC.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
If the Issuer is obliged to issue Class A[ ] Definitive Notes under clause 3.3
of Note Trust Deed, interests in the applicable Class A[ ] Book-Entry Note will
be transferred to the beneficial owners thereof in the form of Class A[ ]
Definitive Notes, without interest coupons, in the denominations set forth
above. A Class A[ ] Definitive Note will be issued to each Class A[ ] Noteholder
in respect of its registered holding or holdings of Class A[ ] Notes against
delivery by such Class A[ ] Noteholders of a written order containing
instructions and such other information as the Issuer and The Bank of New York,
acting as a note registrar (the "NOTE REGISTRAR") may require to complete,
execute and deliver such Class A[ ] Definitive Notes. In such circumstances, the
Issuer will cause sufficient Class A[ ] Definitive Notes to be executed and
delivered to the Note Registrar for completion, authentication (by the Principal
Paying Agent) and dispatch to the relevant Class A[ ] Noteholders.
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2 STATUS, SECURITY AND RELATIONSHIP BETWEEN THE CLASS A NOTES AND THE CLASS
B NOTES
The Class A Notes are secured by a first ranking floating charge over all of the
assets of the Trust (which include, among other things, the Loans (as defined
below) and the Mortgages (as defined below) and related securities) (as more
particularly described in the Security Trust Deed) and will rank pari passu and
rateably without any preference or priority among themselves.
The Class A Notes are issued subject to the Master Trust Deed and the
Supplementary Bond Terms Notice and are secured by the same security as the
Class B Notes but the Class A Notes will rank in priority to the Class B Notes
both before and after enforcement of the security and in respect of both
principal and interest (as set out in Conditions 4 and 5).
The proceeds of the issue of the Class A Notes and the Class B Notes are to be
used by the Issuer to purchase an interest in certain housing loans (the
"LOANS") and certain related mortgages (the "MORTGAGES").
In the event that the security for the Class A Notes is enforced and the
proceeds of such enforcement are insufficient, after payment of all other claims
ranking in priority to or pari passu with the Class A Notes under the Security
Trust Deed, to pay in full all principal and interest and other amounts due in
respect of the Class A Notes, then the Class A Noteholders shall have no further
claim against the Issuer in respect of any such unpaid amounts.
The net proceeds of realisation of the assets of the Securitisation Fund
(including following enforcement of the Security Trust Deed) may be insufficient
to pay all amounts due to the Noteholders. Save in certain limited circumstances
the other assets of the Issuer will not be available for payment of any
shortfall and all claims in respect of such shortfall shall be extinguished (see
further Condition 15). None of the Mortgage Manager, the Manager, the Note
Trustee, the Calculation Agent, the Principal Paying Agent, [the Irish Paying
Agent,] the Note Registrar, the Security Trustee or the Swap Provider (as
defined in the Supplementary Bond Terms Notice) has any obligation to any
Noteholder for payment of any amount by the Issuer in respect of the Notes.
The Note Trust Deed contains provisions requiring the Note Trustee to have
regard to the interests of Class A Offered Noteholders as regards all the
powers, trusts, authorities, duties and discretions of the Note Trustee (except
where expressly provided otherwise).
The Security Trust Deed contains provisions requiring the Security Trustee,
subject to the other provisions of the Security Trust Deed, to give priority to
the interests of the Class A Noteholders, if there is a conflict between the
interest of such Noteholders and any other Voting Secured Creditor (as defined
below).
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3 COVENANTS OF THE ISSUER
So long as any of the Class A Notes remain outstanding, the Issuer has made
certain covenants for the benefit of the Class A Noteholders which are set out
in the Master Trust Deed.
These covenants include the following.
(a) The Issuer shall act continuously as trustee of the Securitisation Fund
until the Securitisation Fund is terminated as provided by the Master
Trust Deed or the Issuer has retired or been removed from office in the
manner provided under the Master Trust Deed.
(b) The Issuer shall:
(1) act honestly and in good faith and comply with all relevant material
laws in the performance of its duties and in the exercise of its
discretions under the Master Trust Deed;
(2) exercise such diligence and prudence as a prudent person of business
would exercise in performing its express functions and in exercising
its discretions under the Master Trust Deed, having regard to the
interests of the Class A Noteholders, the Class B Noteholders, the
Beneficiaries and other Noteholders of the Securitisation Fund in
accordance with its obligations under the relevant Transaction
Documents;
(3) use its best endeavours to carry on and conduct its business in so
far as it relates to the Master Trust Deed in a proper and efficient
manner;
(4) do everything and take all such actions which are necessary
(including obtaining all such authorisations and approvals as are
appropriate) to ensure that it is able to exercise all its powers
and remedies and perform all its obligations under the Master Trust
Deed, the Transaction Documents and all other deeds, agreements and
other arrangements entered into by the Issuer pursuant to the Master
Trust Deed;
(5) not, as Issuer, engage in any business or activity in respect of the
Securitisation Fund except as contemplated or required by the
Transaction Documents;
(6) except as contemplated or required by the Transaction Documents,
not, in respect of the Securitisation Fund, guarantee or become
obligated for the debts of any other entity or hold out its credit
as being available to settle the obligations of others;
(7) within 45 days of notice from the Manager to do so, remove any of
its agents or delegates that breaches any obligation imposed on the
Issuer under the Master Trust Deed or any other Transaction Document
where the Manager reasonably believes it will materially adversely
affect the rating of either or both of the Class A Notes and Class B
Notes; and
(8) not agree to any amendment to Agreed Procedures (as defined in the
Mortgage Origination and Management Agreement) unless each
Designated Rating Agency confirms that it will not withdraw or
downgrade the rating of the Notes as a result of such amendment.
(c) Except as provided in any Transaction Document (and other than the charge
given to the Security Trustee and the Issuer's lien over the assets of the
Securitisation Fund), the Issuer shall not nor permit any of its officers
to sell, mortgage, charge or otherwise encumber or part with possession of
any assets of the Securitisation Fund (the "FUND ASSETS").
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(d) The Issuer shall duly observe and perform the covenants and obligations of
the Master Trust Deed and will be personally liable to the Noteholders,
the Beneficiaries, or any other creditors for its negligence, fraud or
wilful default (as defined in Condition 15).
(e) The Issuer will open and operate certain bank accounts in accordance with
the Master Trust Deed and any Transaction Document.
(f) Subject to the Master Trust Deed and any Transaction Document to which it
is a party, the Issuer must act on all directions given to it by the
Manager in accordance with the terms of the Master Trust Deed.
(g) The Issuer must properly perform the functions which are necessary for it
to perform under all Transaction Documents in respect of the
Securitisation Fund.
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4 INTEREST
(a) QUARTERLY PAYMENT DATES
Each Class A[ ] Note bears interest on the Invested Amount (as defined in
the Supplementary Bond Terms Notice) of that Class A[ ] Note from and
including ] or such later date as may be agreed between the Manager and
the Issuer for the issue of the Class A[ ] Notes (the "CLOSING DATE").
Interest in respect of the Class A[ ] Notes will be payable in arrears on
[ ] in respect of the period from (and including) the Closing Date and
ending on (but excluding) [ ] (the "FIRST QUARTERLY PAYMENT DATE")
and thereafter on each [ ], [ ], [ ] and [ ]
(each such date a "QUARTERLY PAYMENT DATE"). If any Quarterly Payment Date
would otherwise fall on a day which is not a Banking Day (as defined
below), it shall be postponed to the next day which is a Banking Day. The
final Quarterly Payment Date for a Class of Notes will be the earlier of
the Final Maturity Date for that Class of Notes and the Quarterly Payment
Date on which the Notes are redeemed in full.
"BANKING DAY" in this Condition 4 (other than Condition 4(b)) and in
Conditions 5 and 9 below means any day (other than a Saturday, Sunday or
public holiday) on which banks are open for business in [London,] New
York[, Sydney and Melbourne] [and which is a TARGET Settlement Day].
The period beginning on (and including) the Closing Date and ending on
(but excluding) the first Quarterly Payment Date, and each successive
period beginning on (and including) a Quarterly Payment Date and ending on
(but excluding) the next Quarterly Payment Date is called an "INTEREST
PERIOD". Interest payable on a Class A[ ] Note in respect of any Interest
Period or any other period will be calculated on the basis of the actual
number of days in that Interest Period and a 360 day year.
[SKADDEN NOTE: THE AMENDMENTS TO THE DEFINITIONS OF MONTHLY AND QUARTERLY
INTEREST PERIOD IN THE SBTN ARE TO CONFORM TO THE FOLLOWING PROVISION] A
Class A[ ] Note will stop earning interest on any date on which the
Outstanding Principal Balance of the Class A[ ] Note is zero (provided
that interest shall thereafter begin to accrue from (and including) any
date on which the Outstanding Principal Balance of the Class A[ ] Note
becomes greater than zero) or if the Outstanding Principal Balance of the
Class A[ ] Note is not zero on the due date for redemption in full of the
Class A[ ] Note, unless payment of principal is improperly withheld or
refused, following which the Class A[ ] Note will continue to earn
interest on the Invested Amount of the Class A[ ] Note at the rate from
time to time applicable to the Class A[ ] Note until the later of the date
on which the Note Trustee or Principal Paying Agent receives the moneys in
respect of the Class A[ ] Notes
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Note Trust Deed SMHL Global Fund [ ]-[ ]
and notifies the holders of that receipt or the date on which the
Outstanding Principal Balance of the Class A[ ] Note has been reduced to
zero but interest will begin to accrue from and including any date on
which the Outstanding Principal Balance of the Class A[ ] Note becomes
greater than zero.
If interest is not paid on a Class A[ ] Note on the date when it is due
and payable (other than because the due date is not a Banking Day) that
unpaid interest will itself bear interest at the Interest Rate applicable
to that Class A[ ] Note until the unpaid interest and the amount of
interest on it is available for payment by the Issuer.
(b) INTEREST RATE
The rate of interest applicable from time to time for Class A[ ] Notes
(the "CLASS A[ ] INTEREST RATE") will be determined by the Calculation
Agent on the basis of the following paragraphs.
The second Banking Day before the beginning of each Interest Period (each
an "INTEREST DETERMINATION DATE"), the Calculation Agent will determine
the rate "USD-LIBOR-BBA" as the applicable Floating Rate Option under the
Definitions of the International Swaps and Derivatives Association, Inc.
("ISDA") (the "ISDA DEFINITIONS") being the rate applicable to any
Interest Period for three-month (or in the case of the first Interest
Period, the rate will be determined by linear interpolation calculated by
reference to the duration of that first Interest Period) deposits in US
dollars which appears on the Telerate Page 3750 as of 11.00 am, London
time, on the Interest Determination Date. If such rate does not appear on
the Telerate Page 3750, the rate for that Interest Period will be
determined as if the Issuer and Calculation Agent had specified
"USD-LIBOR-REFERENCE BANKS" as the applicable Floating Rate Option under
the ISDA Definitions. "USD-LIBOR-REFERENCE BANKS" means that the rate for
an Interest Period will be determined on the basis of the rates at which
deposits in US dollars are offered by the Reference Banks (being four
major banks in the London interbank market agreed to by the Calculation
Agent and the US Currency Swap Provider) at approximately 11.00 am, London
time, on the Interest Determination Date to prime banks in the London
interbank market for a period of three months (or in the case of the first
Interest Period, the rate will be determined by linear interpolation
calculated by reference to the duration of that first Interest Period)
commencing on the first day of the Interest Period and in a Representative
Amount (as defined in the ISDA Definitions). The Calculation Agent will
request the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations are
provided, the rate for that Interest Period will be the arithmetic mean of
the quotations. If fewer than two quotations are provided as requested,
the rate for that Interest Period will be the arithmetic mean of the rates
quoted by not less than two major banks in New York City, selected by the
Calculation Agent and the US Currency Swap Provider, at approximately
11.00 am, New York City time, on that Interest Determination Date for
loans in US dollars to leading European banks for a period of three months
(or in the case of the first Interest Period, the rate will be determined
by linear interpolation calculated by reference to the duration of that
first Interest Period) commencing on the first day of the Interest Period
and in a Representative Amount. If no such rates are available in New York
City, then the rate for such Interest Period shall be the most recently
determined rate in accordance with this paragraph.
For the purpose of the foregoing paragraph, Banking Day means any day on
which commercial banks are open for business (including dealings in
foreign exchange and foreign currency deposits) in London.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
The Class A[ ] Interest Rate applicable to the Class A[ ] Notes for such
Interest Period will be the aggregate of (i) the interest rate or
arithmetic mean as determined by the Calculation Agent under the previous
paragraph; and (ii) the margin of [ ]% (the "CLASS A[ ] MARGIN") in
relation to the Class A[ ] Notes.
If the Issuer has not redeemed all of the Class A Notes on or before the
Quarterly Payment Date falling on [ ], the Class A[ ] Margin will
increase to [ ]% for the period from (and including) that date until (but
excluding) the date on which the Class A[ ] Notes are redeemed in full in
accordance with these Conditions.
There is no maximum or minimum Class A[ ] Interest Rate.
(c) DETERMINATION OF INTEREST RATE AND CALCULATION OF INTEREST
The Calculation Agent will, as soon as practicable after 11.00 am (London
time) on each Interest Determination Date, determine the Class A[ ]
Interest Rate applicable to, and calculate the amount of interest payable
(the "CLASS A[ ] Interest") for, the immediately succeeding Interest
Period in respect of the Class A[ ] Notes. The Class A[ ] Interest is
calculated by applying the Class A[ ] Interest Rate for the Class A[ ]
Notes to the Invested Amount (as defined in the Supplementary Bond Terms
Notice) of that Class A[ ] Note on the first day of the next Interest
Period after giving effect to any payments of principal made with respect
for such class on such day, multiplying such product by a fraction, the
numerator of which is the actual number of days in the relevant Interest
Period and the denominator of which is 360 days and rounding the resultant
figure down to the nearest cent (half a cent being rounded upwards). The
determination of the Class A[ ] Interest Rate and the Class A[ ] Interest
by the Calculation Agent shall (in the absence of manifest error) be final
and binding upon all parties.
(d) NOTIFICATION OF CLASS A[ ] INTEREST RATE AND CLASS A[ ] INTEREST
The Calculation Agent will cause the Class A[ ] Interest Rate and the
Class A[ ] Interest applicable to each Class A[ ] Note for each Interest
Period and the relevant Quarterly Payment Date to be notified to the
Issuer, the Manager, the Note Trustee and the Paying Agents. The Class A[
] Interest, Class A[ ] Interest Rate and the relevant Quarterly Payment
Date so made available may subsequently be amended (or appropriate
alternative arrangements made by way of adjustment) without notice in the
event of a shortening of the Interest Period.
(e) DETERMINATION OR CALCULATION BY THE MANAGER
If the Calculation Agent at any time for any reason does not determine the
relevant Class A[ ] Interest Rate or calculate the Class A[ ] Interest for
a Class A[ ] Note, the Manager shall do so and each such determination or
calculation shall be deemed to have been made by the Calculation Agent. In
doing so, the Manager shall apply the foregoing provisions of this
Condition, with any necessary consequential amendments, to the extent that
in its opinion, it can do so, and, in all other respects it shall do so in
such a manner as it reasonably considers to be fair and reasonable in all
the circumstances.
(f) CALCULATION AGENT
The Issuer will procure that, so long as any of the Class A Offered Notes
remains outstanding, there will, at all times, be a Calculation Agent. The
Issuer, or the Manager with the consent of the Issuer (such consent not to
be unreasonably withheld), reserves the right at any time to terminate the
appointment of the Calculation Agent subject to the terms of the Note
Trust Deed. Notice of that termination will be given to the Class A
Offered Noteholders. If any person is unable or unwilling to continue to
act as the Calculation Agent, or if the appointment of the Calculation
Agent is terminated, the
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Issuer will, with the approval of the Note Trustee, appoint a successor
Calculation Agent to act as such in its place, provided that neither the
resignation nor removal of the Calculation Agent shall take effect until a
successor approved by the Note Trustee has been appointed.
(g) INTEREST DISTRIBUTION
On each Quarterly Payment Date, and based on the calculations,
instructions and directions provided to it by the Manager, and subject to
the terms of the Security Trust Deed and the Supplementary Bond Terms
Notice, (to the extent it has not already done so) the Issuer must apply
the Interest Collections for the Monthly Calculation Period ending
immediately before the relevant Quarterly Payment Date but in respect of
the applicable Quarterly Calculation Period as follows:
(1) first, in payment of Taxes in respect of the Securitisation Fund,
which have been incurred prior to that Quarterly Payment Date and
which have not previously been paid on a prior Monthly Payment Date;
(2) secondly, pari passu and rateably in payment of the Issuer's Fee,
the Manager's Fee and any Expenses (other than the Expenses referred
to in paragraph (9) below) in respect of the Securitisation Fund
which have been incurred prior to that Quarterly Payment Date and
which have not previously been paid on a prior Monthly Payment Date;
(3) thirdly, without duplication, in or toward any amounts payable or to
be applied under paragraph (4) below on any previous Quarterly
Payment Date, if there had been sufficient Interest Collections,
which have not previously been paid or allocated by the Issuer,
together with accrued interest thereon which in the case of a Note
must be at the Interest Rate applicable to the relevant Note;
(4) fourthly, pari passu and rateably:
(A) in payment of any interest due under any Redraw Funding
Facility or Top-up Funding Facility for the applicable
Quarterly Interest Period, including (without duplication)
amounts allocated on the two preceding Monthly Payment Dates
(NON-DISTRIBUTED AMOUNT); [and]
(B) in payment to the Currency Swap Providers, in payment of the
A$ Class A Interest Amount payable under the Confirmations at
that Quarterly Payment Date, which is thereafter to be applied
to payment of interest on the Class A Offered Notes for the
applicable Quarterly Interest Period, including (without
duplication) any Non-Distributed Amount; [and]
(C) [in payment of any interest due under any Class A[ ] Notes for
the applicable Monthly Interest Period;]
(5) fifthly, without duplication, in payment of any amounts payable
under paragraph (6) below on any previous Quarterly Payment Date, if
there had been sufficient Interest Collections, which have not
previously been paid or allocated by the Issuer together with
accrued interest thereon at the Interest Rate applicable to the
relevant Note;
(6) sixthly, pari passu and rateably in payment to Class B Noteholders
of the Class B Interest due on the Class B Notes on that Quarterly
Payment Date for the applicable Quarterly Interest Period, including
(without duplication) any Non-Distributed Amount;
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(7) seventhly, in crediting to the Cash Collateral Account the amount
(if any) by which the Required Cash Collateral exceeds the Cash
Collateral;
(8) eighthly, to reimburse in the order of priorities specified in
Condition 5(b) any amounts that have been paid or allocated in any
previous Interest Periods under Conditions 5(b)(1), (2), (3) and (4)
(to the extent not previously reimbursed under this Condition
4(g)(8)) for the applicable Monthly Interest Period (in the case of
Conditions 5(b)(1), (2) and (3)) and Quarterly Interest Period (in
the case of Condition 5(b)(4)) including (without duplication) any
Non-Distributed Amount;
(9) ninthly, in payment toward any break costs payable on cancellation
of any Fixed-Floating Rate Swap to the extent that those amounts are
not recovered under the relevant Loan secured by Mortgages comprised
in the Assets of the Securitisation Fund in the form of any
applicable prepayment fees or a drawing has not been made under a
Payment Funding Facility including (without duplication) any
Non-Distributed Amount;
(10) tenthly, pari passu and rateably in payment to the Liquidity
Noteholder of interest payable in respect of the Liquidity Notes and
in payment of any interest in respect of any Payment Funding
Facility for the applicable Quarterly Interest Period, including
(without duplication) any Non-Distributed Amount;
(11) eleventhly, in respect of the amount of any Class A Charge Offs, any
Redraw Charge Offs and any Top-up Charge Offs in and towards
reinstatement of in the books of the Securitisation Fund, pari passu
and rateably allocated to[:]
(A) [that portion of the Class A Charge Offs that relates to the
Class A[ ] Notes for that Calculation Period; and]
(B) Redraw Charge Offs, Top-up Charge Offs and that portion of the
Class A Charge Offs that relates to the Class A Offered Notes
for that Calculation Period, including any Non-Distributed
Amount;
(12) twelfthly, in respect of the amount of any Carry Over Redraw Charge
Offs, any Carry Over Top-up Charge Offs and the A$ Equivalent of any
Carry Over Class A Charge Offs allocated to[:]
(A) [each Class A[ ] Note; and]
(B) each Class A Offered Note,
in reinstatement of in the books of the Securitisation Fund, pari
passu and rateably (as between any Carry Over Redraw Charge Offs,
any Carry Over Top-up Charge Offs and the A$ Equivalent of any Carry
Over Class A Charge Offs allocated to each Class A Note) of:
(i) the A$ Equivalent of any Carry Over Class A Charge Offs;
(ii) any Carry Over Redraw Charge Offs; and
(iii) any Carry Over Top-up Charge Offs;
[on that Monthly Payment Date (in the case of the Class A[ ] Notes)
and] on that Quarterly Payment Date including (without duplication)
any Non-Distributed Amount (in the case of the Class A Offered
Notes, any Carry Over Redraw Charge Offs and any Carry Over Top-up
Charge Offs);
(13) thirteenthly, in respect of the amount of any Class B Charge Offs
and any Carry Over Class B Charge Offs in and towards reinstatement
of in the books of the
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Securitisation Fund including any Non-Distributed Amount and in the
following order:
(A) any Class B Charge Offs for the applicable Calculation Period;
and
(B) pari passu and rateably the Invested Amount of the Class B
Notes to the extent of any Carry Over Class B Charge Offs;
(14) fourteenthly, (to the extent not paid under Condition 5(b)) pari
passu and rateably, in repayment of any principal due and payable
under any Redraw Funding Facility, in repayment of any principal due
and payable under any Top-up Funding Facility and in or toward
repayment of any principal due and payable under any Payment Funding
Facility including (without duplication) any Non-Distributed Amount;
(15) fifteenthly, in payment of or provision for amounts payable to the
Income Unitholder of the Securitisation Fund in accordance with
Conditions 22.1(d) and 22.3(d) of the Master Trust Deed including
(without duplication) any Non-Distributed Amount.
Capitalised terms in this Condition 4(g) have the same meaning given in
the Supplementary Bond Terms Notice unless otherwise defined in this
document.
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5 REDEMPTION AND PURCHASE
Capitalised terms in this Condition 5 have the same meaning given in the
Supplementary Bond Terms Notice unless otherwise defined in this document.
(a) MANDATORY REDEMPTION IN PART FROM PRINCIPAL COLLECTIONS AND APPORTIONMENT
OF PRINCIPAL COLLECTIONS BETWEEN THE CLASS A NOTES AND THE CLASS B NOTES
The Class A Notes shall be subject to mandatory redemption in part on any
Quarterly Payment Date [(or in the case of the Class A[ ] Notes, any
Monthly Payment Date)] if on that date there are any Principal Collections
available to be distributed in relation to such Class A Notes. The
principal amount so redeemable in respect of each Class A Note prior to
enforcement of the Security Trust Deed (each a "PRINCIPAL PAYMENT") on any
Quarterly Payment Date shall be the amount available for payment as set
out in Condition 5(b) on the day which is seven Banking Days prior to the
Quarterly Payment Date (the "CUT Off") divided by the aggregate Invested
Amount of all Class A Notes, multiplied by the Invested Amount of that
Note, provided always that no Principal Payment on a Class A Note on any
date may exceed the amount equal to the Invested Amount of that Class A
Note at that date.
Notice of amounts to be redeemed will be provided by the Manager to the
Issuer, the Calculation Agent, the Principal Paying Agent and the Note
Trustee.
(b) PRINCIPAL DISTRIBUTIONS ON NOTES
On each Quarterly Payment Date, and in accordance with the calculations,
instructions and directions provided to it by the Manager and subject to
the terms of the Security Trust Deed and the Supplementary Bond Terms
Notice (to the extent it has not already done so), the Issuer must apply
the Principal Collections together with any amounts to be applied under
this Condition 5(b) pursuant to Condition 5(d)(2) for the Monthly
Calculation Period ending immediately before the relevant Quarterly
Payment Date but in respect of the applicable Quarterly Calculation Period
and Condition 5(d)(2) in relation to
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Note Trust Deed SMHL Global Fund [ ]-[ ]
the two preceding Monthly Payment Dates towards the following payments in
the following order of priority:
(1) first, in payment of Taxes in respect of the Securitisation Fund (to
the extent not paid as described in Condition 4);
(2) secondly, pari passu and rateably in payment of the Issuer's Fee,
the Manager's Fee and any Expenses (other than the Expenses referred
to in this Condition 5(b) below) in respect of the Securitisation
Fund (to the extent not paid or provided for as described in
Condition 4(g));
(3) thirdly, in payment of the amounts payable and in the priority under
Condition 4(g)(4) and which have not previously been paid or allowed
for on a previous Payment Date [(or on the relevant Monthly Payment
Date, in respect of the Class A[ ] Notes)] (to the extent not paid
or allowed for as described in Condition 4(g)(3));
(4) fourthly, in payment of the amounts payable under and in the
priority as specified in, Condition 4(g)(6) and which have not
previously been paid or allowed for on a previous Payment Date for
the applicable Quarterly Calculation Period, including (without
duplication) any amounts allocated on the two preceding Monthly
Payment Dates (NON-DISTRIBUTED AMOUNT) (to the extent not paid or
allowed for under Condition 4(g)(5));
(5) fifthly, pari passu and rateably in repayment of any Redraw
Principal Outstanding under a Redraw Funding Facility or any Top-up
Principal Outstanding under any Top-up Funding Facility for the
applicable Quarterly Calculation Period, including (without
duplication) any Non-Distributed Amount;
(6) sixthly, pari passu and rateably in payment of amounts approved by
the Manager under any Loan Redraw Facility or Top-up Loan for the
applicable Quarterly Calculation Period, including (without
duplication) any Non-Distributed Amount;
(7) seventhly, pari passu and rateably[:]
(A) [in payment of principal to the Class A[ ] Noteholders for the
applicable Monthly Calculation Period until the Outstanding
Principal Balance of the Class A[ ] Notes is reduced to zero;]
[and]
(B) in payment to the Currency Swap Provider under a Confirmation
relating to the Class A Offered Notes for the applicable
Quarterly Calculation Period including (without duplication)
any Non-Distributed Amount until the Outstanding Principal
Balance of the Class A Offered Notes is reduced to zero,
of an amount equal to the lesser of:
(C) the amount available for distribution under this paragraph (7)
after all payments which have priority under this paragraph
(b); and
(D) the A$ Equivalent of the Outstanding Principal Balance for all
Class A Notes;
(8) eighthly, toward payment of principal to the Class B Noteholders
pari passu and rateably, until the Outstanding Principal Balance of
the Class B Notes is reduced to zero of an amount equal to the
lesser of:
(A) the amount available for distribution under this paragraph (8)
after all payments which have priority under this paragraph
(b); and
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(B) the Outstanding Principal Balance for all Class B Notes,
including (without duplication) all Non-Distributed Amounts;
(9) ninthly, pari passu and rateably as between any Carry Over Redraw
Charge Offs, any Carry Over Top-up Charge Offs and the A$ Equivalent
of any Carry Over Class A Charge Offs allocated to each Class A
Note:
(A) in payment to the Currency Swap Provider under a Confirmation
of the A$ Equivalent of any Carry Over Class A Charge Offs
relating to the Class A Offered Notes including (without
duplication) all Non-Distributed Amounts;
(B) in repaying the Redraw Principal Outstanding of each Redraw
Funding Facility to the extent of any Carry Over Redraw Charge
Offs including (without duplication) all Non-Distributed
Amounts; and
(C) in repaying the Top-up Principal Outstanding of each Top-up
Funding Facility to the extent of any Carry Over Top-up Charge
Offs including (without duplication) all Non-Distributed
Amounts[; and]
(D) [in payment to the Class A[ ] Noteholders of any Carry Over
Class A Charge Offs relating to the Class A[ ] Notes;]
(10) tenthly, in repaying the Invested Amount of the Class B Notes to the
extent of any Carry Over Class B Charge Offs including (without
duplication) all amounts all Non-Distributed Amounts;
(11) eleventhly, in payment towards any break costs payable on
cancellation of any Fixed-Floating Rate Swap to the extent that
those amounts are not recovered under the relevant Loan secured by
Mortgages comprised in Assets of the Securitisation Fund in the form
of any applicable prepayment fees or a drawing has not been made
under a Payment Funding Facility (to the extent not paid as
described under Condition 4(g)); and
(12) twelfthly, subject to paragraph (c) below, pari passu and rateably
in payment to the Liquidity Noteholder of the principal amount
outstanding in respect of the Liquidity Notes and in repayment of
any principal in respect of any Payment Funding Facility for the
applicable Quarterly Calculation Period including (without
duplication) all Non-Distributed Amounts.
Capitalised terms in this Condition 5(b) have the same meaning given in
the Supplementary Bond Terms Notice unless otherwise defined in this
document.
(c) RIGHTS OF LIQUIDITY NOTEHOLDER
On any Quarterly Payment Date, the Issuer must not make any payments out
of Principal Collections to the Liquidity Noteholder under Condition 5(b)
above unless the Invested Amount of all the Notes is zero, or will be zero
following any payments made on the relevant Quarterly Payment Date.
(d) PAYMENT OF CHARGE OFFS AND NON-DISTRIBUTED AMOUNTS
(1) The amount of any reinstatement under Conditions 4(g)(11), (12) and
(13) together with any amounts reimbursed under Condition 4(g)(8)
must be applied on the Quarterly Payment Date of the reimbursement
in accordance with Condition 5(b) as if the amount reimbursed formed
part of Principal Collections.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(2) Any Non-Distributed Amount relating to the two Monthly Payment Dates
which precede a Quarterly Payment Date which has not previously been
paid or allowed for under Condition 4(g), must be applied in
accordance with Condition 5(b) as if the amount reimbursed formed
part of Principal Collections.
(e) GENERAL
No amount of principal will be paid to a Noteholder in excess of the
Invested Amount applicable to the Notes held by that Noteholder.
(f) [EURO ACCOUNT
The Issuer must direct the Euro Currency Swap Provider to pay all amounts
denominated in (euro) payable to the Issuer by the Euro Currency Swap
Provider under the Euro Currency Swap into the Euro Account or to the
Principal Paying Agent on behalf of the Issuer.
On each Quarterly Payment Date, the Issuer must, on the direction of the
Manager, or must require that the Principal Paying Agent on its behalf,
distribute from the Euro Account the relevant amounts of principal and
interest due in respect of each Class A[ ] Note in accordance with the
Note Trust Deed and in the order of priority in Conditions 4(g) and 5(b).]
(g) US$ ACCOUNT
The Issuer must direct the US Currency Swap Provider to pay all amounts
denominated in US$ payable to the Issuer by the US Currency Swap Provider
under the US Currency Swap into the US$ Account or to the Principal Paying
Agent on behalf of the Issuer.
On each Quarterly Payment Date, the Issuer must, on the direction of the
Manager, or must require that the Principal Paying Agent on its behalf,
distribute from the US$ Account the relevant amounts of interest and
principal due in respect of each Class A[ ] Note in accordance with the
Note Trust Deed and in order of priority in Conditions 4(g) and 5(b).
(h) CALCULATION OF PRINCIPAL PAYMENTS, OUTSTANDING PRINCIPAL BALANCE AND
INVESTED AMOUNT
The Manager must, not later than two Banking Days before each Quarterly
Payment Date advise the Issuer, and in respect of the Class A Offered
Notes only, the Currency Swap Providers in writing of:
(1) all amounts payable or to be provided for under clause 6 of the
Supplementary Bond Terms Notice (which includes the amounts payable
to be provided under Conditions 4(g) and 5(b));
(2) reasonable details of the calculation of all such amounts; and
(3) the Outstanding Principal Balance and Invested Amount of each Class
A Note and Class B Note following the making of all payments to be
made on that Quarterly Payment Date in accordance with the
Supplementary Bond Terms Notice.
The Manager must also notify the Issuer of all details of payments which
are to be made by or on behalf of the Issuer on or by each Quarterly
Payment Date. The Manager must, not later than two Banking Days before
each Quarterly Payment Date, also notify the Currency Swap Provider of all
payments which are to be made by or on behalf of the Issuer under
Conditions 4(g) and 5(b) in respect of the Class A Offered Notes.
The Manager will notify the Issuer, the Note Trustee, the Principal Paying
Agent and the Calculation Agent by not later than two Banking Days prior
to the relevant Quarterly
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Payment Date of each such determination and will immediately cause
details, of each of those determinations to be made available in
accordance with Condition 12 one Banking Day before the relevant Quarterly
Payment Date. If no repayment of principal is due to be made on the Class
A Notes on any Quarterly Payment Date a notice to this effect will be
given to the Class A Noteholders in accordance with Condition 12.
If the Manager does not at any time for any reason determine a repayment
of principal or the Outstanding Principal Balance and the Invested Amount
applicable to Class A Offered Notes in accordance with this paragraph, the
repayment of principal and Outstanding Principal Balance and the Invested
Amount may be determined by the Calculation Agent in accordance with this
paragraph (but based on the information in its possession) and each such
determination or calculation shall be deemed to have been made by the
Manager.
(i) CALL
The Issuer must, when so directed by the Manager (at the Manager's
option), having given not more than 60 nor less than 45 days' notice to
the Class A Noteholders and in case of Class A Offered Notes in accordance
with Condition 12, purchase or redeem all, but not some only, of the Class
A Notes by repaying the Outstanding Principal Balance of those Class A
Notes together with accrued interest to (but excluding) the date of
repurchase or redemption, on any Quarterly Payment Date falling on or
after the earlier of:
(1) the [Quarterly] Payment Date on which the Outstanding Principal
Balance of all Notes calculated and expressed in the A$ Equivalent
is equal to or less than 10% of the total initial Outstanding
Principal Balance of all Notes calculated and expressed in the A$
Equivalent; and
(2) in the case of Class A Offered Notes, the Quarterly Payment Date
falling on [ , ] [and in the case of the Class A[ ] Notes, the
Monthly Payment Date falling on [ , ]],
provided that:
(3) if the aggregate Outstanding Principal Balance for all Class A Notes
calculated and expressed in the A$ Equivalent on such date of
redemption or repurchase has been reduced by Class A Charge Offs
which have not been repaid under Conditions 4(g)(10) and (11), the
Noteholders owning at least 75% of the aggregate Invested Amount of
the Class A Notes calculated and expressed in the A$ Equivalent must
consent to such repurchase or redemption; and
(4) the Issuer will be in a position on such Quarterly Payment Date to
discharge (and the Manager so certifies to the Issuer and the Note
Trustee upon which certification the Issuer and the Note Trustee
will rely conclusively) all its liabilities in respect of the Class
A Notes (at their Outstanding Principal Balance) and any amounts
which would be required under the Security Trust Deed to be paid in
priority or pari passu with the Class A Notes if the security for
the Notes were being enforced.
(j) REDEMPTION FOR TAXATION OR OTHER REASONS
If the Manager satisfies the Issuer and the Note Trustee immediately prior
to giving the notice referred to below either:
(1) that on the next Quarterly Payment Date the Issuer would be required
to deduct or withhold from any payment of principal or interest in
respect of the Class A
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Notes, the Currency Swaps, the Payment Funding Facility, the Top-up
Funding Facility or the Redraw Funding Facility any amount for or on
account of any present or future taxes, duties, assessments or
governmental charges of whatever nature imposed, levied, collected,
withheld or assessed by the Commonwealth of Australia or any of its
political sub-divisions or any of its authorities; or
(2) the total amount payable in respect of interest in relation to any
of the Loans secured by Mortgages comprised in the Assets of the
Securitisation Fund for a Calculation Period ceases to be receivable
(whether or not actually received) by the Issuer during such
Calculation Period (but this paragraph (2) does not apply to a
failure by the Trustee to receive any interest in relation to any of
the Loans merely by reason of the failure by any borrowers to pay
that interest in breach of the relevant Loans),
the Issuer must, when so directed by the Manager, at the Manager's option
(provided that the Issuer will be in a position on such Quarterly Payment
Date to discharge (and the Manager will so certify to the Issuer and the
Note Trustee) all its liabilities in respect of the Class A Notes (at
their Invested Amount) and any amounts which would be required under the
Security Trust Deed to be paid in priority or pari passu with the Class A
Notes if the security for the Class A Notes were being enforced), having
given not more than 60 nor less than 45 days' notice to the Class A
Noteholders in accordance with Condition 12, redeem all, but not some
only, of the Class A Notes at their then Invested Amount together with
accrued interest to (but excluding) the date of redemption on any
subsequent Quarterly Payment Date, provided that the Class A Noteholders
may by Extraordinary Resolution elect, and shall notify the Issuer and the
Manager not less than 21 days before the next Quarterly Payment Date
following the receipt of notice of such proposed redemption that they do
not require the Issuer to redeem the Class A Notes.
(k) REDEMPTION ON FINAL MATURITY
If not otherwise redeemed, the Class A Notes must be repaid in full on
[ , ].
(l) CANCELLATION
All Class A Notes redeemed in full pursuant to the above provisions will
be cancelled.
(m) CERTIFICATION
For the purposes of any redemption made pursuant to this Condition 5, the
Note Trustee may rely upon an Officer's Certificate under the Note Trust
Deed from the Manager certifying or stating the opinion of each person
signing such certificate as:
(1) to the fair value (within 90 days of such release) of the property
or securities proposed to be released from the Security Trust Deed;
(2) that in the opinion of such person the proposed release will not
impair the security under the Security Trust Deed in contravention
of the provisions of the Security Trust Deed or the Note Trust Deed;
and
(3) that the Issuer will be in a position to discharge all its
liabilities in respect of the relevant Class A Offered Notes and any
amounts required under the Security Trust Deed to be paid in
priority to or pari passu with those Class A Offered Notes,
and such Officer's Certificate shall be conclusive and binding on the
Issuer, the Note Trustee and the holders of those Class A Offered Notes.
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6 PAYMENTS
(a) METHOD OF PAYMENT
Any instalment of interest or principal, payable on any Class A[ ] Note
which is punctually paid or duly provided for by the Issuer to the
Principal Paying Agent on the applicable Quarterly Payment Date or Final
Maturity Date shall be paid to the person in whose name such Class A[ ]
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 Class A[ ] Definitive
Notes have been issued pursuant to clause 3.3 of the Note Trust Deed, with
respect to Class A[ ] Notes registered on the Record Date in the name of
the nominee of the Clearing Agency (initially in respect of the Class A[ ]
Notes such Clearing Agency to be DTC and 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 Class A[ ] Note on a Quarterly
Payment Date or Final Maturity Date.
(b) INITIAL PRINCIPAL PAYING AGENT
The initial Principal Paying Agent for the Class A[ ] Note is The Bank of
New York at its offices in New York City.
(c) PAYING AGENTS
The Issuer may (at the direction of the Manager) at any time (with the
prior written approval of the Note Trustee) terminate the appointment of
any Paying Agent and appoint additional or other Paying Agents, provided
that (among other things) the new Paying Agent has been approved in
writing by the Note Trustee and appointed on terms previously approved in
writing by the Note Trustee, notice has been provided to the Class A
Offered Noteholder, and it will at all times maintain a Paying Agent
having a specified office in New York City (in respect of the Class A[ ]
Notes) [and the United Kingdom (in respect of the Class A[ ] Notes) and
the Republic of Ireland (for so long as the Class A[ ] Notes are listed on
the Irish Stock Exchange)]. Notice of any such termination or appointment
and of any change in the office through which any Paying Agent will act
will be given in accordance with Condition 12.
(d) PAYMENT ON BANKING DAYS
If the due date for payment of any amount of principal or interest in
respect of any Class A[ ] Note is not a Banking Day then payment will not
be made until the next succeeding Banking Day and the holder of that Class
A[ ] Note shall not be entitled to any further interest or other payment
in respect of that delay. In this Condition 6 the expression "Banking Day"
means any day (other than a Saturday, Sunday or a public holiday) on which
banks are open for business in the place where the specified office of the
Paying Agent at which the Class A[ ] Note is presented for payment is
situated and, in the case of payment by transfer to a US dollar account,
in New York City prior to the exchange of a Class A[ ] Book-Entry Note for
any Class A[ ] Definitive Notes, means any day on which DTC is open for
business.
(e) INTEREST
If interest is not paid in respect of a Class A[ ] Note on the date when
due and payable (other than because the due date is not a Banking Day),
that unpaid interest shall itself bear interest at the Interest Rate
applicable from time to time to the Class A[ ] Notes until
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the unpaid interest, and interest on it, is available for payment and
notice of that availability has been duly given in accordance with
Condition 12.
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7 TAXATION
All payments in respect of the Class A Notes will be made without withholding or
deduction for, or on account of, any present or future taxes, duties or charges
of whatsoever nature unless the Issuer or any Paying Agent is required by
applicable law to make any such payment in respect of the Class A Notes subject
to any withholding or deduction for, or on account of, any present or future
taxes, duties or charges of whatever nature. In that event the Issuer or that
Paying Agent (as the case may be) shall make such payment after such withholding
or deduction has been made and shall account to the relevant authorities for the
amount so required to be withheld or deducted. Neither the Issuer nor any Paying
Agent nor the Note Trustee will be obliged to make any additional payments to
Class A Noteholders in respect of that withholding or deduction.
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8 PRESCRIPTION
A Class A Note shall become void in its entirety unless surrendered for payment
within ten years of the Relevant Date (as such term is defined below) in respect
of any payment on it the effect of which would be to reduce the Outstanding
Principal Balance of that Class A Note to zero. After the date on which a Class
A Note becomes void in its entirety, no claim may be made in respect of it.
As used in these Conditions, the "RELEVANT DATE" means the date on which a
payment first becomes due but, if the full amount of the money payable has not
been received by the Principal Paying Agent or the Note Trustee on or prior to
that date, it means the date on which the full amount of such money having been
so received, notice to that effect is duly given by the Principal Paying Agent
in accordance with Condition 12.
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9 EVENTS OF DEFAULT
Subject to the Supplementary Bond Terms Notice each of the following events is
an Event of Default whether or not caused by any reason whatsoever outside the
control of an Interested Person (as defined in the Security Trust Deed) or any
other person:
(a) the Issuer does not within 10 Banking Days of the due date, and in the
specified manner, pay in full any Secured Moneys (except in respect of any
moneys payable under any Payment Funding Facility, Top-up Funding Facility
and Redraw Funding Facility which fall due for payment prior to the
Repayment Date or payment of interest on 1 Class B Notes unless all Class
A Notes have been repaid);
(b) the Issuer defaults in fully performing observing and fulfilling any
material obligation in relation to the Securitisation Fund under the
Security Trust Deed or any Secured Document (other than a provision
requiring the payment of money as contemplated by paragraph (a) of this
clause or, prior to the Repayment Date, in respect of any such default
under a Payment Funding Facility, Top-up Funding Facility and Redraw
Funding Facility) and such default has not been remedied within 10 Banking
Days of the Issuer receiving notice from the Security Trustee specifying
the breach and requiring the same to be rectified;
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(c) any representation, warranty or statement in relation to the
Securitisation Fund made, repeated or deemed to be made or repeated in the
Security Trust Deed or in any Secured Document by the Issuer is proved to
be untrue in any material respect when made, repeated or deemed to be made
or repeated (as the case may be) (except, prior to the Repayment Date, in
respect of any representation, warranty or statement made, repeated or
deemed to be made or repeated under the Payment Funding Facility, Top-up
Funding Facility and Redraw Funding Facility);
(d) the Issuer breaches any material undertaking given at any time to the
Security Trustee in relation to the Securitisation Fund or fails to comply
with any material condition imposed by the Security Trustee in relation to
the Securitisation Fund in agreeing to any matter (including any waiver)
(except, prior to the Repayment Date, in respect of any breach of any
material undertaking or failure to comply with any material condition
under the Payment Funding Facility, Top-up Funding Facility and Redraw
Funding Facility);
(e) any Insolvency Event occurs in relation to the Issuer other than for the
reconstruction of the Issuer or the Securitisation Fund with the prior
written approval of the Manager and the Security Trustee and provided that
each Designated Rating Agency has confirmed in writing that such
reconstruction will not have an adverse effect on the rating of the Notes;
(f) any Encumbrance over any Charged Property becomes enforceable or any
Encumbrance that is a floating security over any Charged Property
crystallises or otherwise becomes a fixed or specific security;
(g) any investigation into the affairs, or into particular affairs, of the
Issuer in relation to the Securitisation Fund is directed or commenced
under any Statute;
(h) any Secured Document is, becomes or is claimed by the Issuer or the
Manager to be void, voidable or unenforceable in whole or in any material
part;
(i) the Issuer disaffirms, disclaims, repudiates or rejects any Secured
Document in whole or in any material part;
(j) there occurs without the prior written approval of the Security Trustee,
any vesting or distribution of any assets of the Securitisation Fund other
than in accordance with the relevant Supplementary Bond Terms Notices;
(k) any material breach of trust in relation to the Securitisation Fund by the
Issuer or the Issuer for any reason loses or ceases to be entitled to a
material extent to its right of indemnity against the assets of the
Securitisation Fund;
(l) as a result of the act or omission of the Issuer the assets of the
Securitisation Fund are materially diminished or made materially less
accessible to the Security Trustee;
(m) without the prior consent of the Security Trustee, the Securitisation Fund
is wound-up, or the Issuer is required to wind up the Securitisation Fund
under the Master Trust Deed or the applicable law, or the winding up of
the Securitisation Fund commences; and
(n) the Charge ceases to rank as contemplated by clause 4.2 of the Security
Trust Deed.
Capitalised terms in this Condition 9 have the same meaning given in the
Security Trust Deed unless defined in this document.
In the event that the security constituted by the Security Trust Deed becomes
enforceable following an event of default under the Notes, any funds resulting
from the realisation of such security shall be applied in accordance with the
order of priority of payments as stated in the Security Trust Deed.
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10 ENFORCEMENT
At any time after an Event of Default occurs, the Security Trustee may (subject
to the Security Trust Deed), if so directed by (a) the Noteholder Secured
Creditors (as defined in the Security Trust Deed) alone, where the Noteholder
Secured Creditors are the only Voting Secured Creditors, or otherwise (b) an
"Extraordinary Resolution" of the Voting Secured Creditors (being 75% of votes
capable of being cast by Voting Secured Creditors present in person or by proxy
at the relevant meeting or a written resolution signed by all Voting Secured
Creditors, which includes the Note Trustee on behalf of Class A Offered
Noteholders, but not, unless the Note Trustee has become bound to take steps
and/or proceed under the Security Trust Deed and fails to do so within a
reasonable period of time and such failure is continuing, the Class A Offered
Noteholders themselves), declare the Class A Notes immediately due and payable
and declare the security to be enforceable. If an Extraordinary Resolution of
the Voting Secured Creditors referred to above elects not to direct the Security
Trustee to enforce the Security Trust Deed, in the circumstances where the
Security Trustee could enforce, the Noteholder Secured Creditor may
nevertheless, and the Note Trustee as Noteholder Secured Creditor shall subject
to the terms of the Note Trust Deed, at the direction of the Class A Offered
Noteholders, direct the Security Trustee to enforce the Security Trust Deed on
behalf of the Class A Offered Noteholders.
"VOTING SECURED CREDITOR" means:
(a) with respect only to the enforcement of the security under the Security
Trust Deed, for so long as the Secured Moneys of the Class A Noteholders
and the Class B Noteholders each calculated and expressed in the A$
Equivalent are 75% or more of total Secured Moneys calculated and
expressed in the A$ Equivalent, the Noteholder Secured Creditors alone;
and
(b) at any other time (subject to clause 16.3 of the Security Trust Deed):
(1) the Note Trustee, acting on behalf of the Class A Offered
Noteholders under the Note Trust Deed and clause 3 of the Security
Trust Deed or, if the Note Trustee has become bound to take steps
and/or to proceed under the Security Trust Deed and fails to do so
within a reasonable time and such failure is continuing, the Class A
Offered Noteholders and then only to the extent permitted by the
Australian Law; and
(2) each other Secured Creditor (other than a Class A Offered
Noteholder).
Any reference to the Noteholder Secured Creditors while they are the only Voting
Secured Creditors, or where their consent is required under the Security Trust
Deed in relation to a direction or act of the Security Trustee, means the
Noteholder Secured Creditors representing more than 50% of the aggregate
Invested Amount of the Class A Notes and the Class B Notes each calculated and
expressed in the A$ Equivalent.
Subject to the Security Trust Deed, the Security Trustee shall take all action
necessary to give effect to any direction by the Noteholder Secured Creditors
where they are the only Voting Secured Creditors or to any Extraordinary
Resolution of the Voting Secured Creditors and shall comply with all directions
given by the Note Trustee where it is the only Voting Secured Creditor or
contained in or given pursuant to any Extraordinary Resolution of the Voting
Secured Creditors in accordance with the Security Trust Deed.
No Class A Noteholder is entitled to enforce the Security Trust Deed or to
appoint or cause to be appointed a receiver to any of the assets secured by the
Security Trust Deed or otherwise to exercise any power conferred by the terms of
any applicable law on chargees except as provided in the Security Trust Deed.
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If any of the Class A Offered Notes remain outstanding and are due and payable
otherwise than by reason of a default in payment of any amount due on the Class
A Offered Notes, the Note Trustee must not vote under the Security Trust Deed
to, or otherwise direct the Security Trustee to, dispose of the Charged Property
unless either:
(a) a sufficient amount would be realised to discharge in full all amounts
owing to the Class A Offered Noteholders and any other amounts payable by
the Issuer ranking in priority to or pari passu with the Class A Offered
Notes;
(b) the Note Trustee is of the opinion, reached after considering at any time
and from time to time the advice of a merchant bank or other financial
adviser selected by the Note Trustee, that the cash flow receivable by the
Issuer (or the Security Trustee under the Security Trust Deed) will not
(or that there is a significant risk that it will not) be sufficient,
having regard to any other relevant actual, contingent or prospective
liabilities of the Issuer, to discharge in full in due course all the
amounts referred to in paragraph (a);
(c) the Note Trustee is directed by the Holders of at least 75% of the
aggregate Invested Amount of Class A Offered Notes calculated and
expressed in the A$ Equivalent.
Neither the Note Trustee nor the Security Trustee will be liable for any decline
in the value, nor any loss realised upon any sale or other dispositions made
under the Security Trust Deed, of any Charged Property or any other property
which is charged to the Security Trustee by any other person in respect of or
relating to the obligations of the Issuer or any third party in respect of the
Issuer or the Secured Moneys or the Class A Offered Notes or relating in any way
to the Charged Property. Without limitation, neither the Note Trustee nor the
Security Trustee shall be liable for any such decline or loss directly or
indirectly arising from its acting, or failing to act, as a consequence of an
opinion reached by it.
The Note Trustee shall not be bound to vote under the Security Trust Deed, or
otherwise direct the Security Trustee under the Security Trust Deed or to take
any proceedings, actions or steps under, or any other proceedings pursuant to or
in connection with the Security Trust Deed, the Note Trust Deed, any Class A
Offered Notes, unless directed or requested to do so in writing by Noteholders
holding at least 75% of the aggregate Invested Amount of Class A Offered Notes
calculated and expressed in the A$ Equivalent at the time; and then only if the
Note Trustee is indemnified to its satisfaction against all action, proceedings,
claims and demands to which it may render itself liable and all costs, charges,
damages and expenses which it may incur by so doing.
Only the Security Trustee may enforce the provisions of the Security Trust Deed
and neither the Note Trustee nor any Class A Offered Noteholder is entitled to
proceed directly against the Issuer to enforce the performance of any of the
provisions of the Security Trust Deed and the Class A Offered Notes (including
these Class A Offered Note Conditions) unless otherwise as set out in a
Transaction Document.
The rights, remedies and discretions of the Class A Offered Noteholders under
the Security Trust Deed including all rights to vote or give instructions or
consent can only be exercised by the Note Trustee on behalf of the Class A
Offered Noteholders in accordance with the Security Trust Deed. The Security
Trustee may rely on any instructions or directions given to it by the Note
Trustee as being given on behalf of the Class A Offered Noteholders from time to
time and need not enquire whether the Note Trustee or the Class A Offered
Noteholders from time to time have complied with any requirements under the Note
Trust Deed or as to the reasonableness or otherwise of the Note Trustee. The
Security Trustee is not obliged to take any action, give any consent or waiver
or make any determination under the Security Trust Deed without being
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directed to do so by the Note Trustee or the Voting Secured Creditors in
accordance with the Security Trust Deed.
Upon enforcement of the security created by the Security Trust Deed, the net
proceeds of enforcement may be insufficient to pay all amounts due on redemption
to the Noteholders. The proceeds from enforcement (which will not include
amounts required by law to be paid to the holder of any prior ranking security
interest, and the proceeds of cash collateral lodged with and payable to a Swap
Provider or other provider of an Enhancement (as defined in the Master Trust
Deed)) will be applied in the order of priority as set out in the Security Trust
Deed. Any claims of the Noteholders remaining after realisation of the security
and application of the proceeds as aforesaid shall, except in certain limited
circumstances, be extinguished.
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11 REPLACEMENT OF CLASS A OFFERED NOTES
If any Class A Offered Note is lost, stolen, mutilated, defaced or destroyed, it
may be replaced at the specified office of the Principal Paying Agent upon
payment by the claimant of the expenses incurred in connection with that
replacement and on such terms as to evidence and indemnity as the Manager may
reasonably require. Mutilated or defaced Class A Offered Notes must be
surrendered before replacements will be issued.
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12 NOTICES
All notices, other than notices given in accordance with the following
paragraphs, to Class A Offered Noteholders shall be deemed to be given if in
writing and mailed, first-class, postage prepaid to each Class A Offered
Noteholder, at his or her address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Class A Offered Noteholders
is given by mail, neither the failure to mail such notice nor any defect in any
notice so mailed to any particular Class A Offered Noteholder shall affect the
sufficiency of such notice with respect to other Class A Offered Noteholders,
and any notice that is mailed in the manner herein provided shall conclusively
be presumed to have been duly given.
A notice may be waived in writing by the relevant Class A Offered Noteholder,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by the Class A Offered 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 the Class A Offered Noteholders when such notice is
required to be given, then any manner of giving such notice as the Issuer shall
direct the Note Trustee shall be deemed to be a sufficient giving of such
notice.
The Manager shall deliver a quarterly servicing report for each Calculation
Period to each Class A Offered Noteholder on the notice date relating to such
Calculation Period in the method provided in the first paragraph of this
Condition 12.
All consents and approvals in these Conditions are to be given in writing.
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13 MEETINGS OF VOTING SECURED CREDITORS AND MEETINGS OF CLASS A OFFERED
NOTEHOLDERS; MODIFICATIONS; CONSENTS; WAIVER
The Security Trust Deed contains provisions for convening meetings of the Voting
Secured Creditors to, among other things, enable the Voting Secured Creditors to
direct or consent to the Security Trustee taking or not taking certain actions
under the Security Trust Deed, for example to enable the Voting Secured
Creditors to direct the Security Trustee to enforce the Security Trust Deed.
The Note Trust Deed contains provisions for convening meetings of Class A
Offered Noteholders to consider any matter affecting their interests, including
the directing of the Note Trustee to direct the Security Trustee to enforce the
security under the Security Trust Deed, or the sanctioning by the Extraordinary
Resolution of the Class A Offered Noteholders of a modification of the Class A
Offered Notes (including these Class A Offered Note Conditions) or the
provisions of any of the Transaction Documents, provided that no modification of
certain terms including, among other things, the date of maturity of the Class A
Offered Notes, or a modification which would have the effect of altering the
amount of interest payable in respect of a Class A Offered Note or modification
of the method of calculation of the interest payable or of the date for payment
of interest in respect of any Class A Offered Notes, reducing or cancelling the
amount of principal payable in respect of any Class A Offered Notes or altering
the majority required to pass an Extraordinary Resolution or altering the
currency of payment of any Class A Offered Notes or an alteration of the date or
priority of payment of interest on, or redemption of, the Class A Offered Notes
in the event of a call under Condition 5(i) or 5(j) (any such modification being
referred to below as a "BASIC TERMS MODIFICATION") shall be effective except
that, if the Note Trustee is of the opinion that such a Basic Terms Modification
is being proposed by the Issuer as a result of, or in order to avoid, an Event
of Default, such Basic Terms Modification may be sanctioned by Extraordinary
Resolution of the Class A Offered Noteholders as described below. An
Extraordinary Resolution passed by the Class A Offered Noteholders shall be
binding on all Class A Offered Noteholders. The vote required for an
Extraordinary Resolution shall be a majority consisting of not less than 75% of
the votes capable of being cast by Voting Secured Creditors present in person or
by proxy at a duly convened meeting or a written resolution signed by all of the
Voting Secured Creditors.
The Note Trust Deed permits the Note Trustee, the Manager and the Issuer to,
following the giving of not less than 10 Banking Days' notice to each Designated
Rating Agency, alter, add to or modify, by way of supplementary deed, the Note
Trust Deed (including the meeting and amendment provisions), the Conditions
(subject to the proviso more fully described in clause 35.2 of the Note Trust
Deed or any other terms of that deed or the Conditions to which it refers) or
any Transaction Document so long as that alteration, addition or modification
is:
o to correct a manifest error or ambiguity or is of a formal, technical or
administrative nature only;
o in the opinion of the Note Trustee necessary to comply with the provisions
of any law or regulation or with the requirements of any Government
Agency;
o in the opinion of the Note Trustee appropriate or expedient as a
consequence of a change to any law or regulation or a change in the
requirements of any Government Agency (including, but not limited to, an
alteration, addition or modification which is in the opinion of the Note
Trustee appropriate or expedient as a consequence of the enactment of a
law or regulation or an amendment to any law or regulation or ruling by
the Commissioner or Deputy Commissioner of Taxation or any governmental
announcement
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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 Securitisation Fund); or
o in the reasonable opinion of the Note Trustee neither prejudicial nor
likely to be prejudicial to the interests of the Class A Offered
Noteholders as a whole, and is undertaken in a manner and to the extent,
permitted by the Transaction Documents.
Where, in the opinion of the Note Trustee, a proposed alteration, addition or
modification to the Note Trust Deed, other than an alteration, addition or
modification referred to above, is prejudicial or likely to be prejudicial to
the interests of Class A Offered Noteholders as a whole or any Class of Class A
Offered Noteholders, the Note Trustee, the Manager and the Issuer may make that
alteration, addition or modification only if sanctioned in writing by holders of
at least 75% of the aggregate Invested Amount of the Class A Offered Notes
calculated and expressed in the A$ Equivalent.
The Note Trustee may also, in accordance with the Note Trust Deed and without
the consent of the Class A Offered Noteholders (but not in contravention of an
Extraordinary Resolution), waive or authorise any breach or proposed breach of
the Class A Offered Notes (including these Class A Offered Note Conditions) or
any Transaction Document or determine that any Event of Default or any
condition, event or act which with the giving of notice and/or lapse of time
and/or the issue of a certificate would constitute an Event of Default shall
not, or shall not subject to specified conditions, be treated as such. Any such
modification, waiver, authorisation or determination shall be binding on the
Class A Offered Noteholders and, if, but only if, the Note Trustee so requires,
any such modification shall be notified to the Class A Offered Noteholders in
accordance with Condition 12 as soon as practicable.
Every amendment to the Note Trust Deed must conform to the requirements of the
TIA as then in effect so long as the Note Trust Deed shall be qualified under
the TIA.
The Manager shall distribute to all Class A Offered Noteholders and the
Designated Rating Agencies a copy of any amendments made under clause 35.1 or
35.2 of the Note Trust Deed in accordance with Condition 12 as soon as
reasonably practicable after the amendment has been made.
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14 INDEMNIFICATION AND EXONERATION OF THE NOTE TRUSTEE AND THE SECURITY
TRUSTEE
(a) The Note Trust Deed and the Security Trust Deed contain provisions for the
indemnification of the Note Trustee and the Security Trustee
(respectively) and for their relief from responsibility, including
provisions relieving them from taking proceedings to realise the security
and to obtain repayment of the Class A Offered Notes (in respect of the
Note Trustee) and the Class A Notes (in respect of the Security Trustee)
unless indemnified to their satisfaction. Each of the Note Trustee and the
Security Trustee is entitled to enter into business transactions with the
Issuer and/or any other party to the Transaction Documents without
accounting for any profit resulting from such transactions. Except in the
case of negligence, fraud or wilful default (in the case of the Security
Trustee) or negligence, fraud, or wilful default (in the case of the Note
Trustee), neither the Security Trustee nor the Note Trustee will be
responsible for any loss, expense or liability which may be suffered as a
result of any assets secured by the Security Trust Deed, Charged Property
or any deeds or documents of title thereto, being uninsured or
inadequately insured or being held by or to the order of the Mortgage
Manager 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.
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(b) Where the Note Trustee is required to express an opinion or make a
determination or calculation under the Transaction Documents, the Note
Trustee may appoint or engage such independent advisers as the Note
Trustee reasonably requires to assist in the giving of that opinion or the
making of that determination or calculation and any reasonable costs and
expenses payable to those advisers will be reimbursed to the Note Trustee
by the Issuer or if another person is expressly stated in the relevant
provision in a Transaction Document, that person.
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15 LIMITATION OF LIABILITY OF THE ISSUER
(a) GENERAL
Clause 26 of the Master Trust Deed applies to the obligations and
liabilities of the Issuer in relation to the Class A Notes.
(b) LIABILITY OF ISSUER LIMITED TO ITS RIGHT OF INDEMNITY
(1) The Issuer enters into the Transaction Documents and issues the
Notes only in its capacity as trustee of the Securitisation Fund and
in no other capacity (except where the Transaction Documents provide
otherwise). Subject to paragraph (3) below, a liability arising
under or in connection with the Transaction Documents, the Notes or
the Securitisation Fund is limited to and can be enforced against
the Issuer only to the extent to which it can be satisfied out of
the assets and property of the Securitisation Fund and which are
available to satisfy the right of the Issuer to be exonerated or
indemnified for the liability. This limitation of the Issuer's
liability applies despite any other provision of the Transaction
Documents and extends to all liabilities and obligations of the
Issuer in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to the
Transaction Documents, the Notes or the Securitisation Fund.
(2) Subject to paragraph (3) below, no person (including any Relevant
Party) may take action against the Issuer in any capacity other than
as trustee of the Securitisation Fund or seek the appointment of a
receiver (except under the Security Trust Deed), or a liquidator, an
administrator or any similar person to the Issuer or prove in any
liquidation, administration or arrangements of or affecting the
Issuer except in relation to the Assets of the Securitisation Fund.
(3) The provisions of this Condition 15 shall not apply to any
obligation or liability of the Issuer to the extent that it is not
satisfied because under a Transaction Document or by operation of
law there is a reduction in the extent of the Issuer's
indemnification or exoneration out of the assets of the
Securitisation Fund as a result of the Issuer's fraud, negligence or
wilful default.
(4) It is acknowledged that the Relevant Parties are responsible under
the Transaction Documents for performing a variety of obligations
relating to the Securitisation Fund. No act or omission of the
Issuer (including any related failure to satisfy its obligations
under the Transaction Documents or the Notes) will be considered
fraud, negligence or wilful default of the Issuer for the purpose of
paragraph (b)(3) of this Condition 15 to the extent to which the act
or omission was caused or contributed to by any failure by any
Relevant Party or any person who has been delegated or appointed by
the Issuer in accordance with the Transaction Documents to fulfil
its obligations relating to the Securitisation Fund or by any other
act or omission of a Relevant Party or any such person.
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(5) No attorney, agent, delegate, receiver or receiver and manager
appointed in accordance with this deed or any other Transaction
Documents has authority to act on behalf of the Issuer in a way
which exposes the Issuer to any personal liability and no act or
omission of any such person will be considered fraud, negligence or
wilful default of the Issuer for the purpose of paragraph (b)(3).
(6) The Issuer is not obliged to do or refrain from doing anything under
the Transaction Documents (including incur any liability) unless the
Issuer's liability is limited in the same manner as set out in
paragraphs (1) to (5).
(7) In this Condition 15 "RELEVANT PARTIES" means each party to a
Transaction Document other than the Issuer.
(8) The expression "WILFUL DEFAULT" as used in this Condition 15 is
defined in clause 26.6 of the Security Trust Deed.
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16 GOVERNING LAW
The Class A[ ] Notes and the Relevant Documents are governed by, and shall be
construed in accordance with, the laws of New South Wales, Australia. The
administration of the Note Trust created under the Note Trust Deed, including
the exercise of the Note Trustee's powers under clause 13 of the Note Trust
Deed, is governed by the law of New York. In the event of any inconsistency
between the operation of the law of New South Wales, Australia and the law of
New York in respect of the application of those powers, the law of New York will
prevail to the extent of the inconsistency.
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17 SUMMARY OF PROVISIONS RELATING TO THE CLASS A[ ] NOTES WHILE IN BOOK-ENTRY
FORM
Each Class A[ ] Note will initially be represented by typewritten book-entry
notes (the "CLASS A[ ] BOOK-ENTRY NOTES"), without coupons, in the principal
amount of US$[ ]. The Class A[ ] Book-Entry Notes will be deposited with the
Common Depositary for DTC on or about the Closing Date. Upon deposit of the
Class A[ ] Book-Entry Notes with the Common Depositary, DTC will credit each
investor in the Class A[ ] Notes with a principal amount of Class A[ ] Notes for
which it has subscribed and paid.
The Class A[ ] Book-Entry Notes will be exchangeable for Class A[ ] Definitive
Notes in certain circumstances described below.
Each person who is shown in the Note Register as the holder of a particular
principal amount of Class A[ ] Notes will be entitled to be treated by the
Issuer and the Note Trustee as a holder of such principal amount of Class A[ ]
Notes and the expression "CLASS A[ ] NOTEHOLDER" shall be construed accordingly,
but without prejudice to the entitlement of the holder of the Class A[ ]
Book-Entry Note to be paid principal and interest thereon in accordance with its
terms. Such persons shall have no claim directly against the Issuer in respect
of payment due on the Class A[ ] Notes for so long as the Class A[ ] Notes are
represented by a Class A[ ] Book-Entry Note and the relevant obligations of the
Issuer will be discharged by payment to the registered holder of the Class A[ ]
Book-Entry Note in respect of each amount so paid.
(a) PAYMENTS
Interest and principal on each Class A[ ] Book-Entry Note will be payable
by the Principal Paying Agent to the Common Depositary provided that no
payment of interest
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Note Trust Deed SMHL Global Fund [ ]-[ ]
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 or its possessions.
Each of the persons appearing from time to time as the beneficial owner of
a Class A[ ] Note will be entitled to receive any payment so made in
respect of that Class A[ ] Note in accordance with the respective rules
and procedures of DTC (in respect of the Class A[ ] Notes). Such persons
will have no claim directly against the Issuer in respect of payments due
on the Class A[ ] Notes which must be made by the holder of the relevant
Class A[ ] Book-Entry Note, for so long as such Class A[ ] Book-Entry Note
is outstanding.
A record of each payment made on a Class A[ ] Book-Entry Note,
distinguishing between any payment of principal and any payment of
interest, will be recorded in the Note Register by the Note Registrar and
such record shall be prima facie evidence that the payment in question has
been made.
(b) EXCHANGE
The Class A[ ] Book-Entry Notes will be exchangeable for Class A[ ]
Definitive Notes only if:
(1) the Principal Paying Agent advises the Manager in writing that the
Clearing Agency is no longer willing or able to discharge properly
its responsibilities as depository of the Class A[ ] Notes and the
Manager is not able to locate a qualified successor;
(2) the Issuer, at the direction of the Manager (at the Manager's
option), advises the Principal Paying Agent in writing that it
elects to terminate the book entry system through the Clearing
Agency in respect of the Class A[ ] Notes; or
(3) after the occurrence of an Event of Default, the Note Trustee at the
written direction of the Class A[ ] Noteholders holding a majority
of the aggregate Outstanding Principal Balance of the Class A[ ]
Notes, advises both the Principal Paying Agent and Issuer that the
continuation of a book entry system is no longer in the best
interest of the Class A[ ] Noteowners,
then the Principal Paying Agent must within 30 days of such event instruct
the Clearing Agency to notify all Class A[ ] Noteowners of the occurrence
of any such event and of the availability of Class A[ ] Definitive Notes.
Upon the surrender of the Class A[ ] Book-Entry Notes to the Issuer by the
Clearing Agency, and the delivery by the Clearing Agency of the relevant
registration instructions to the Issuer, the Issuer shall execute and
procure the Principal Paying Agent to authenticate the Class A[ ]
Definitive Notes in accordance with the instructions of the Clearing
Agency.
Class A[ ] Noteowner has the meaning given to it in the Note Trust Deed.
(c) NOTICES
So long as the Class A[ ] Notes are represented by the Class A[ ]
Book-Entry Note and the same is/are held on behalf of the Clearing Agency,
notices to Class A[ ] Noteholders may be given by delivery of the relevant
notice to the Clearing Agency for communication by the Clearing Agency to
entitled account holders in substitution for delivery to each Class A[ ]
Noteholder as required by the Conditions.
(d) CANCELLATION
The Note Registrar shall ensure that all Class A[ ] Notes:
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(1) which have been surrendered for payment, registration of transfer,
exchange or redemption; or
(2) in the case of any Class A[ ] Definitive Note, which, being
mutilated or defaced, have been surrendered and replaced under
Condition 11,
shall be cancelled by or on behalf of the Issuer and will execute a
certificate and deliver same to the Note Trustee stating:
(3) the aggregate Outstanding Principal Balance of Class A[ ] Notes
which have been redeemed; and
(4) the serial numbers of such Class A[ ] Notes in definitive form
(where applicable).
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Note Trust Deed SMHL Global Fund [ ]-[ ]
[PART B - TERMS AND CONDITIONS OF THE CLASS A[ ] NOTES]
[The issue of US$[ ] Class A[ ] Note Mortgage Backed Pass Through Floating
Rate Notes due [ ] (the "CLASS A[ ] NOTES"), (euro)[ ] Class A[
] Note Mortgage Backed Pass Through Floating Rate Notes due [ ] (the
"CLASS A[ ] NOTES"), and together with the Class A[ ] Notes, the ("CLASS A
OFFERED NOTES") [, A$[ ] Class A[ ] Note Mortgage Backed Pass Through
Floating Rate Notes due [ ] (the "CLASS A[ ] NOTES" and together with the
Class A Offered Notes, the "CLASS A NOTES")] and A$[ ] Class B Mortgage
Backed Pass Through Floating Rate Notes due [ ] (the "CLASS B NOTES" and
together with the Class A Notes, the "NOTES") by Perpetual Limited, in its
capacity as trustee of the SMHL Global Fund [ ]-[ ] (the "SECURITISATION
FUND") (in such capacity, the "ISSUER"). These Notes are (a) issued subject to a
Master Trust Deed (the "MASTER TRUST DEED") dated 4 July 1994 between the Issuer
and ME Portfolio Management Limited (formerly called Superannuation Members'
Home Loans Limited) (in such capacity, the "MANAGER") (as amended and restated),
a Supplementary Bond Terms Notice (the "SUPPLEMENTARY BOND TERMS NOTICE") dated
on or about [ , ] executed by (among others) the Issuer, Perpetual
Trustee Company Limited (ABN 42 000 001 007) (as the security trustee for the
time being referred to as the "SECURITY TRUSTEE"), The Bank of New York (the
note trustee for the time being referred to as the "NOTE TRUSTEE") and the
Manager, and in respect of the Class A Offered Notes these terms and conditions
(the "CONDITIONS"); (b) in respect of the Class A Offered Notes only,
constituted by a note trust deed dated on or about [ , ] (the "NOTE
TRUST DEED") between the Issuer, the Manager, the Security Trustee, The Bank of
New York as trustee for the holders for the time being of the Class A Offered
Notes (the "CLASS A OFFERED NOTEHOLDERS" and [together with the holders for the
time being of the Class A[ ] Notes (the "CLASS A[ ] NOTEHOLDERS"),] the "CLASS A
NOTEHOLDERS" and together with the holders for the time being of the Class B
Notes (the "CLASS B NOTEHOLDERS"), the "NOTEHOLDERS"), The Bank of New York as
Principal Paying Agent (the "PRINCIPAL PAYING AGENT", which expression includes
its successors as Principal Paying Agent under the Note Trust Deed), AIB/BNY
Fund Management (Ireland) Limited as Irish Paying Agent (the "IRISH PAYING
AGENT", which expression includes its successors as Irish Paying Agent under the
Note Trust Deed)[, AIB/BNY Fund Management (Ireland) Limited as Class A[ ] Irish
Paying Agent (the "CLASS A[ ] IRISH PAYING AGENT", which expression includes its
successors as Class A[ ] Irish Paying Agent under the Note Trust Deed)], The
Bank of New York, as calculation agent (the "CALCULATION AGENT", which
expression includes its successors as Calculation Agent under the Note Trust
Deed) and The Bank of New York as note registrar (the "NOTE REGISTRAR"); and (c)
secured by a Security Trust Deed (the "SECURITY TRUST DEED") dated
[ , ] between the Issuer, the Manager, the Note Trustee and the
Security Trustee (as amended).
The statements set out below include summaries of, and are subject to the
detailed provisions of, the Master Trust Deed, the Supplementary Bond Terms
Notice, the Security Trust Deed and the Note Trust Deed. Certain words and
expressions used herein have the meanings defined in those documents. In
accordance with the Note Trust Deed, under which further paying agents may be
appointed (together with the Principal Paying Agent and the Irish Paying Agent,
the "PAYING AGENTS", which expression includes the successors of each paying
agent under the Note Trust Deed and any additional paying agents appointed),
payments in respect of the Class A Offered Notes will be made by the Paying
Agents and the Calculation Agent will make the determinations specified in the
Note Trust Deed. The Class A Offered Noteholders will be entitled (directly or
indirectly) to the benefit of, will be bound by, and will be deemed to have
notice of, all the provisions of the Master Trust Deed, the Supplementary Bond
Terms Notice, the Security Trust Deed, the Note Trust Deed, the Mortgage
Origination and Management Agreement dated 4 July 1994 and novated by the Deed
of Novation dated 28 September 1995 (as amended) (the "MORTGAGE ORIGINATION AND
MANAGEMENT AGREEMENT") between Members' Equity Pty Limited (formerly known as
NMFM Lending Pty Limited) as mortgage manager
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(together with any substitute or successor, the "MORTGAGE MANAGER"), the Manager
and the Issuer, (together with the agreements with respect to the Fixed Floating
Rate Swap, and the Currency Swaps (as each such term is defined below), (those
documents the "RELEVANT DOCUMENTS") and certain other transaction documents
defined as such in the Master Trust Deed, collectively the "TRANSACTION
DOCUMENTS"). Copies of the Transaction Documents are available for inspection at
the office of the Principal Paying Agent, being at the date hereof The Bank of
New York at its offices at 00xx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx, X00 0XX, Xxxxxx
Xxxxxxx, and at the registered office of the Irish Paying Agent, being at the
date hereof AIB/BNY Fund Management (Ireland) Limited at Xxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxx 0, Xxxxxxxx of Ireland.
The Issuer has entered into a ISDA Master Agreement dated [ , ]
with [ ] (the "FIXED-FLOATING RATE SWAP PROVIDER") together with a
confirmation relating thereto as at the Closing Date (the "FIXED-FLOATING RATE
SWAP"). The Issuer has also entered into a ISDA Master Agreement dated
[ , ] with [ ] (the "US CURRENCY SWAP PROVIDER" and the
"EURO CURRENCY SWAP PROVIDER" or the "CURRENCY SWAP PROVIDER"), (together the
Fixed-Floating Rate Swap Provider, and the Currency Swap Provider, the "SWAP
PROVIDER") together with the confirmations relating thereto which have an
effective date of the Closing Date in respect of the Class A Offered Notes (the
"US CURRENCY SWAP" and the "EURO CURRENCY SWAP", respectively and together the
"CURRENCY SWAPS").
Perpetual Limited as trustee of the Securitisation Fund, at the direction of the
Manager, may in the future enter into Fixed-Floating Rate Swaps with new
fixed-floating rate swap providers provided that each new fixed-floating rate
swap provider has at least the minimum credit rating specified by each rating
agency, if any, in order to provide such fixed-floating rate swaps to the
Securitisation Fund.
Class A[ ] Book-Entry Notes will also bear the following legend: "This
book-entry note is a global note for the purposes of section 128F(10) of the
Income Tax Assessment Xxx 0000 of the Commonwealth of Australia".
The Class A[ ] Notes will also bear the following legend:
"THIS CLASS A[ ] NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW,
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CLASS A[ ] NOTES MAY NOT BE OFFERED, RESOLD,
PLEDGED OR OTHER WISE TRANSFERRED WITHIN THE UNITED STATES, OR FOR THE ACCOUNT
OR BENEFIT OF U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT)
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE LAWS OF ANY STATE OF THE
UNITED STATES."
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1 FORM, DENOMINATION AND TITLE
The Class A[ ] Notes will be issued in registered form without interest coupons
in minimum denominations of (euro)[ ] and integral multiples thereof.
Each Class A[ ] Book Entry Note is not a document of title. Title shall be
determined by entry in the Register and only the duly registered holder from
time to time is entitled to payments in respect of a Class A[ ] Book Entry Note.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
The Class A[ ] Note will be represented by one ore more typewritten fully
registered book-entry notes (each, a "CLASS A[ ] BOOK-ENTRY NOTE" and
collectively, the "CLASS A[ ] BOOK-ENTRY NOTES") registered in the name of The
Bank of New York Depositary (Nominees) Limited and deposited with the Common
Depository in respect of the Class A[ ] Notes. Beneficial interests in the Class
A[ ] Book-Entry Notes will be shown on, and transfers thereof will be effected
only through, records maintained by Euroclear or Clearstream, Luxembourg and
their participants. Euroclear and Clearstream, Luxembourg may hold interests in
the Class A[ ] Book-Entry Notes on behalf of persons who have accounts with
Euroclear and Clearstream, Luxembourg through accounts maintained in the names
of Euroclear or Clearstream, Luxembourg.
If the Issuer is obliged to issue Class A[ ] Definitive Notes under clause 3.4
of Note Trust Deed, interests in the applicable Class A[ ] Book Entry Note will
be transferred to the beneficial owners thereof in the form of Class A[ ]
Definitive Notes, without interest coupons, in the denominations set forth
above. A Class A[ ] Definitive Note will be issued to each Class A[ ] Noteholder
in respect of its registered holding or holdings of Class A[ ] Notes against
delivery by such Class A[ ] Noteholders of a written order containing
instructions and such other information as the Issuer and The Bank of New York,
acting as a note registrar (the "Note Registrar") may require to complete,
execute and deliver such Class A[ ] Definitive Notes. In such circumstances, the
Issuer will cause sufficient Class A[ ] Definitive Notes to be executed and
delivered to the Note Registrar for completion, authentication (by the Principal
Paying Agent) and dispatch to the relevant Class A[ ] Noteholders.
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2 STATUS, SECURITY AND RELATIONSHIP BETWEEN THE CLASS A NOTES AND THE CLASS
B NOTES
The Class A Notes are secured by a first ranking floating charge over all of the
assets of the Trust (which include, among other things, the Loans (as defined
below) and the Mortgages (as defined below) and related securities) (as more
particularly described in the Security Trust Deed) and will rank pari passu and
rateably without any preference or priority among themselves.
The Class A Notes are issued subject to the Master Trust Deed and the
Supplementary Bond Terms Notice and are secured by the same security as the
Class B Notes but the Class A Notes will rank in priority to the Class B Notes
both before and after enforcement of the security and in respect of both
principal and interest (as set out in Conditions 4 and 5).
The proceeds of the issue of the Class A Notes and the Class B Notes are to be
used by the Issuer to purchase an interest in certain housing loans (the
"LOANS") and certain related mortgages (the "MORTGAGES").
In the event that the security for the Class A Notes is enforced and the
proceeds of such enforcement are insufficient, after payment of all other claims
ranking in priority to or pari passu with the Class A Notes under the Security
Trust Deed, to pay in full all principal and interest and other amounts due in
respect of the Class A Notes, then the Class A Noteholders shall have no further
claim against the Issuer in respect of any such unpaid amounts.
The net proceeds of realisation of the assets of the Securitisation Fund
(including following enforcement of the Security Trust Deed) may be insufficient
to pay all amounts due to the Noteholders. Save in certain limited circumstances
the other assets of the Issuer will not be available for payment of any
shortfall and all claims in respect of such shortfall shall be extinguished (see
further Condition 15). None of the Mortgage Manager, the Manager, the Note
Trustee, the Calculation Agent, the Principal Paying Agent, the Irish Paying
Agent, the Note Registrar, the Security Trustee or the Swap Provider (as defined
in the Supplementary Bond
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Terms Notice) has any obligation to any Noteholder for payment of any amount by
the Issuer in respect of the Notes.
The Note Trust Deed contains provisions requiring the Note Trustee to have
regard to the interests of Class A Offered Noteholders as regards all the
powers, trusts, authorities, duties and discretions of the Note Trustee (except
where expressly provided otherwise).
The Security Trust Deed contains provisions requiring the Security Trustee,
subject to the other provisions of the Security Trust Deed, to give priority to
the interests of the Class A Noteholders, if there is a conflict between the
interest of such Noteholders and any other Voting Secured Creditor (as defined
below).
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3 COVENANTS OF THE ISSUER
So long as any of the Class A Notes remain outstanding, the Issuer has made
certain covenants for the benefit of the Class A Noteholders which are set out
in the Master Trust Deed.
These covenants include the following.
(a) The Issuer shall act continuously as trustee of the Securitisation Fund
until the Securitisation Fund is terminated as provided by the Master
Trust Deed or the Issuer has retired or been removed from office in the
manner provided under the Master Trust Deed.
(b) The Issuer shall:
(1) act honestly and in good faith and comply with all relevant material
laws in the performance of its duties and in the exercise of its
discretions under the Master Trust Deed;
(2) exercise such diligence and prudence as a prudent person of business
would exercise in performing its express functions and in exercising
its discretions under the Master Trust Deed, having regard to the
interests of the Class A Noteholders, the Class B Noteholders, the
Beneficiaries and other Noteholders of the Securitisation Fund in
accordance with its obligations under the relevant Transaction
Documents;
(3) use its best endeavours to carry on and conduct its business in so
far as it relates to the Master Trust Deed in a proper and efficient
manner;
(4) do everything and take all such actions which are necessary
(including obtaining all such authorisations and approvals as are
appropriate) to ensure that it is able to exercise all its powers
and remedies and perform all its obligations under the Master Trust
Deed, the Transaction Documents and all other deeds, agreements and
other arrangements entered into by the Issuer pursuant to the Master
Trust Deed;
(5) not, as Issuer, engage in any business or activity in respect of the
Securitisation Fund except as contemplated or required by the
Transaction Documents;
(6) except as contemplated or required by the Transaction Documents,
not, in respect of the Securitisation Fund, guarantee or become
obligated for the debts of any other entity or hold out its credit
as being available to settle the obligations of others;
(7) within 45 days of notice from the Manager to do so, remove any of
its agents or delegates that breaches any obligation imposed on the
Issuer under the Master Trust Deed or any other Transaction Document
where the Manager reasonably
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Note Trust Deed SMHL Global Fund [ ]-[ ]
believes it will materially adversely affect the rating of either or
both of the Class A Notes and Class B Notes; and
(8) not agree to any amendment to Agreed Procedures (as defined in the
Mortgage Origination and Management Agreement) unless each
Designated Rating Agency confirms that it will not withdraw or
downgrade the rating of the Notes as a result of such amendment.
(c) Except as provided in any Transaction Document (and other than the charge
given to the Security Trustee and the Issuer's lien over the assets of the
Securitisation Fund), the Issuer shall not nor permit any of its officers
to sell, mortgage, charge or otherwise encumber or part with possession of
any assets of the Securitisation Fund (the "FUND ASSETS").
(d) The Issuer shall duly observe and perform the covenants and obligations of
the Master Trust Deed and will be personally liable to the Noteholders,
the Beneficiaries, or any other creditors for its negligence, fraud or
wilful default (as defined in Condition 15).
(e) The Issuer will open and operate certain bank accounts in accordance with
the Master Trust Deed and any Transaction Document.
(f) Subject to the Master Trust Deed and any Transaction Document to which it
is a party, the Issuer must act on all directions given to it by the
Manager in accordance with the terms of the Master Trust Deed.
(g) The Issuer must properly perform the functions which are necessary for it
to perform under all Transaction Documents in respect of the
Securitisation Fund.
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4 INTEREST
(a) QUARTERLY PAYMENT DATES
Each Class A[ ] Note bears interest on the Invested Amount (as defined in
the Supplementary Bond Terms Notice) of that Class A[ ] Note from and
including ] or such later date as may be agreed between the Manager and
the Issuer for the issue of the Class A[ ] Notes (the "CLOSING DATE").
Interest in respect of the Class A[ ] Notes will be payable in arrears on
[ ] in respect of the period from (and including) the Closing Date
and ending on (but excluding) [ ] (the "FIRST QUARTERLY PAYMENT
DATE") and thereafter on each [ ], [ ], [ ] and
[ ] (each such date a "Quarterly PAYMENT DATE"). If any Quarterly
Payment Date would otherwise fall on a day which is not a Banking Day (as
defined below), it shall be postponed to the next day which is a Banking
Day. The final Quarterly Payment Date for a Class of Notes will be the
earlier of the Final Maturity Date for that Class of Notes and the
Quarterly Payment Date on which the Notes are redeemed in full.
"BANKING DAY" in this Condition 4 (other than Condition 4(b)) and in
Conditions 5 and 9 below means any day (other than a Saturday, Sunday or
public holiday) on which banks are open for business in London[,] [and]
New York[, Sydney and Melbourne] and which is a TARGET Settlement Day.
The period beginning on (and including) the Closing Date and ending on
(but excluding) the first Quarterly Payment Date, and each successive
period beginning on (and including) a Quarterly Payment Date and ending on
(but excluding) the next Quarterly Payment Date is called an "INTEREST
PERIOD". Interest payable on a Class A[ ] Note in
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Note Trust Deed SMHL Global Fund [ ]-[ ]
respect of any Interest Period or any other period will be calculated on
the basis of the actual number of days in that Interest Period and a 360
day year.
A Class A[ ] Note will stop earning interest on any date on which the
Outstanding Principal Balance of the Class A[ ] Note is zero (provided
that interest shall thereafter begin to accrue from (and including) any
date on which the Outstanding Principal Balance of the Class A[ ] Note
becomes greater than zero) or if the Outstanding Principal Balance of the
Class A[ ] Note is not zero on the due date for redemption in full of the
Class A[ ] Note, unless payment of principal is improperly withheld or
refused, following which the Class A[ ] Note will continue to earn
interest on the Invested Amount of the Class A[ ] Note at the rate from
time to time applicable to the Class A[ ] Note until the later of the date
on which the Note Trustee or Principal Paying Agent receives the moneys in
respect of the Class A[ ] Notes and notifies the holders of that receipt
or the date on which the Outstanding Principal Balance of the Class A[ ]
Note has been reduced to zero but interest will begin to accrue from and
including any date on which the Outstanding Principal Balance of the Class
A[ ] Note becomes greater than zero.
If interest is not paid on a Class A[ ] Note on the date when it is due
and payable (other than because the due date is not a Banking Day) that
unpaid interest will itself bear interest at the Interest Rate applicable
to that Class A[ ] Note until the unpaid interest and the amount of
interest on it is available for payment by the Issuer.
(b) INTEREST RATE
The rate of interest applicable from time to time for Class A[ ] Notes
(the "CLASS A[ ] INTEREST RATE") will be determined by the Calculation
Agent on the basis of the following paragraphs.
The second Banking Day before the beginning of each Interest Period (each
an INTEREST DETERMINATION DATE), the Calculation Agent will determine the
rate "EUR-EURIBOR-Telerate" as the applicable Floating Rate Option under
the Definitions of the International Swaps and Derivatives Association,
Inc. ("ISDA") (the "ISDA DEFINITIONS") being the rate applicable to any
Interest Period for three-month (or, in the case of the first Interest
Period, the rate will be determined by linear interpolation calculated by
reference to the duration of the first Interest Period) deposits in Euros
which appears on the Telerate Page 248 as of 11:00 a.m., Brussels time,
determined on the Interest Determination Date by the Calculation Agent. If
such rate does not appear on the Telerate Page 248, the rate for that
Interest Period will be determined as if the Issuer and the Calculation
Agent had specified "EUR-EURIBOR-Reference Banks" as the applicable
Floating Rate Option under the ISDA Definitions. "EUR-EURIBOR-Reference
Banks" means that the rate for an Interest Period will be determined on
the basis of the rates at which deposits in Euros are offered by the
Reference Banks (being four major banks in the Euro-zone interbank market
agreed to by the Calculation Agent and the Euro Currency Swap Provider) at
approximately 11:00 a.m., Brussels time, on the Interest Determination
Date to prime banks in the Euro-zone interbank market for a period of
three months (or, in the case of the first Interest Period, the rate will
be determined by linear interpolation calculated by reference to the
duration of the first Interest Period) commencing on the first day of the
Interest Period and in Representative Amount (as defined in the ISDA
Definitions). The Calculation Agent will request the principal Euro-zone
office of each of the Reference Banks to provide a quotation of its rate.
If at least two such quotations are provided, the rate for that Interest
Period will be the arithmetic mean of the quotations. If fewer than two
quotations are provided as requested, the rate for that Interest Period
will be the arithmetic mean of the rates quoted by major banks in the
Euro-zone interbank market, selected by the Calculation Agent and the Euro
Currency Swap Provider, at
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Note Trust Deed SMHL Global Fund [ ]-[ ]
approximately 11:00 a.m., Brussels time, on that Interest Determination
Date for loans in Euros to leading European banks for a period of three
months (or, in the case of the first Interest Period, the rate will be
determined by linear interpolation calculated by reference to the duration
of the first Interest Period) commencing on the first day of the Interest
Period and in a Representative Amount. If no such rates are available in
the Euro-zone interbank market, then the rate for such Interest Period
will be the most recently determined rate in accordance with this
paragraph.
For the purpose of the foregoing paragraph, Banking Day means any day
which is a TARGET Settlement Day.
The Class A[ ] Interest Rate applicable to the Class A[ ] Notes for such
Interest Period will be the aggregate of (i) the interest rate or
arithmetic mean as determined by the Calculation Agent under the previous
paragraph; and (ii) the margin of [ ]% (the "CLASS A[ ] MARGIN") in
relation to the Class A[ ] Notes.
If the Issuer has not redeemed all of the Class A Notes on or before the
Quarterly Payment Date falling [ ], the Class A[ ] Margin will
increase to [ ]% for the period from (and including) that date until (but
excluding) the date on which the Class A[ ] Notes are redeemed in full in
accordance with these Conditions.
There is no maximum or minimum Class A[ ] Interest Rate.
(c) DETERMINATION OF INTEREST RATE AND CALCULATION OF INTEREST
The Calculation Agent will, as soon as practicable after 11.00 am
(Brussels time) on each Interest Determination Date, determine the Class
A[ ] Interest Rate applicable to, and calculate the amount of interest
payable (the "CLASS A[ ] Interest") for, the immediately succeeding
Interest Period in respect of the Class A[ ] Notes. The Class A[ ]
Interest is calculated by applying the Class A[ ] Interest Rate for the
Class A[ ] Notes to the Invested Amount (as defined in the Supplementary
Bond Terms Notice) of that Class A[ ] Note on the first day of the next
Interest Period after giving effect to any payments of principal made with
respect for such class on such day, multiplying such product by a
fraction, the numerator of which is the actual number of days in the
relevant Interest Period and the denominator of which is 360 days and
rounding the resultant figure down to the nearest cent (half a cent being
rounded upwards). The determination of the Class A[ ] Interest Rate and
the Class A[ ] Interest by the Calculation Agent shall (in the absence of
manifest error) be final and binding upon all parties.
(d) NOTIFICATION OF CLASS A[ ] INTEREST RATE AND CLASS A[ ] INTEREST
The Calculation Agent will cause the Class A[ ] Interest Rate and the
Class A[ ] Interest applicable to each Class A[ ] Note for each Interest
Period and the relevant Quarterly Payment Date to be notified to the
Issuer, the Manager, the Note Trustee, the Irish Stock Exchange and the
Paying Agents. The Class A[ ] Interest, Class A[ ] Interest Rate and the
relevant Quarterly Payment Date so made available may subsequently be
amended (or appropriate alternative arrangements made by way of
adjustment) without notice in the event of a shortening of the Interest
Period.
(e) DETERMINATION OR CALCULATION BY THE MANAGER
If the Calculation Agent at any time for any reason does not determine the
relevant Class A[ ] Interest Rate or calculate the Class A[ ] Interest for
a Class A[ ] Note, the Manager shall do so and each such determination or
calculation shall be deemed to have been made by the Calculation Agent. In
doing so, the Manager shall apply the foregoing provisions of this
Condition, with any necessary consequential amendments, to the extent
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that in its opinion, it can do so, and, in all other respects it shall do
so in such a manner as it reasonably considers to be fair and reasonable
in all the circumstances.
(f) CALCULATION AGENT
The Issuer will procure that, so long as any of the Class A Offered Notes
remains outstanding, there will, at all times, be a Calculation Agent. The
Issuer, or the Manager with the consent of the Issuer (such consent not to
be unreasonably withheld), reserves the right at any time to terminate the
appointment of the Calculation Agent subject to the terms of the Note
Trust Deed. Notice of that termination will be given to the Class A
Offered Noteholders. If any person is unable or unwilling to continue to
act as the Calculation Agent, or if the appointment of the Calculation
Agent is terminated, the Issuer will, with the approval of the Note
Trustee, appoint a successor Calculation Agent to act as such in its
place, provided that neither the resignation nor removal of the
Calculation Agent shall take effect until a successor approved by the Note
Trustee has been appointed.
(g) INTEREST DISTRIBUTION
On each Quarterly Payment Date, and based on the calculations,
instructions and directions provided to it by the Manager, and subject to
the terms of the Security Trust Deed and the Supplementary Bond Terms
Notice, (to the extent it has not already done so) the Issuer must apply
the Interest Collections for the Monthly Calculation Period ending
immediately before the relevant Quarterly Payment Date but in respect of
the applicable Quarterly Calculation Period as follows:
(1) first, in payment of Taxes in respect of the Securitisation Fund,
which have been incurred prior to that Quarterly Payment Date and
which have not previously been paid on a prior Monthly Payment Date;
(2) secondly, pari passu and rateably in payment of the Issuer's Fee,
the Manager's Fee and any Expenses (other than the Expenses referred
to in paragraph (9) below) in respect of the Securitisation Fund
which have not previously been paid on a prior Monthly Payment Date;
(3) thirdly, without duplication, in or toward any amounts payable or to
be applied under paragraph (4) below on any previous Quarterly
Payment Date, if there had been sufficient Interest Collections,
which have not previously been paid or allocated by the Issuer,
together with accrued interest thereon which in the case of a Note
must be at the Interest Rate applicable to the relevant Note;
(4) fourthly, pari passu and rateably:
(A) in payment of any interest due under any Redraw Funding
Facility or Top-up Funding Facility for the applicable
Quarterly Calculation Period including (without duplication)
any amounts allocated on the two preceding Monthly Payment
Dates (NON-DISTRIBUTED AMOUNT); [and]
(B) and in payment to the Currency Swap Provider, in payment of
the A$ Class A Interest Amount payable under the Confirmations
on that Quarterly Payment Date, which is thereafter to be
applied to payment of interest on the Class A Offered Notes
for the for the applicable Quarterly Calculation Period
including (without duplication) any Non-Distributed Amount;
[and]
(C) [in payment of any interest due under any Class A[ ] Notes for
the applicable Monthly Interest Period;]
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(5) fifthly, without duplication, in payment of any amounts payable
under paragraph (6) below on any previous Quarterly Payment Date, if
there had been sufficient Interest Collections, which have not
previously been paid or allocated by the Issuer together with
accrued interest thereon at the Interest Rate applicable to the
relevant Note;
(6) sixthly, pari passu and rateably in payment to Class B Noteholders
of the Class B Interest due on the Class B Notes on that Quarterly
Payment Date for the applicable Quarterly Interest Period including
(without duplication) any Non-Distributed Amount;
(7) seventhly, in crediting to the Cash Collateral Account the amount
(if any) by which the Required Cash Collateral exceeds the Cash
Collateral;
(8) eighthly, to reimburse in the order of priorities specified in
Condition 5(b) any amounts that have been paid or allocated in any
previous Interest Periods under Conditions 5(b)(1), (2), (3) and (4)
(to the extent not previously reimbursed under this Condition
4(g)(8)) for the applicable Monthly Interest Period (in the case of
Conditions 5(b)(1), (2) and (3)) and Quarterly Interest Period (in
the case of Condition 5(b)(4)) including (without duplication) any
Non-Distributed Amount;
(9) ninthly, in payment toward any break costs payable on cancellation
of any Fixed-Floating Rate Swap to the extent that those amounts are
not recovered under the relevant Loan secured by Mortgages comprised
in the Assets of the Securitisation Fund in the form of any
applicable prepayment fees or a drawing has not been made under a
Payment Funding Facility including (without duplication) any
Non-Distributed Amount;
(10) tenthly, pari passu and rateably in payment to the Liquidity
Noteholder of interest payable in respect of the Liquidity Notes and
in payment of any interest in respect of any Payment Funding
Facility for the applicable Quarterly Interest Period including
(without duplication) any Non-Distributed Amount;
(11) eleventhly, in respect of the amount of any Class A Charge Offs, any
Redraw Charge Offs and any Top-up Charge Offs in and towards
reinstatement of in the books of the Securitisation Fund, pari passu
and rateably allocated to[:]
(A) [that portion of the Class A Charge Offs that relates to the
Class A[ ] Notes for that Calculation Period; and]
(B) Redraw Charge Offs, Top-up Charge Offs and that portion of the
Class A Charge Offs that relates to the Class A Offered Notes
for that Calculation Period, including any Non-Distributed
Amount;
(12) twelfthly, in respect of the amount of any Carry Over Redraw Charge
Offs, any Carry Over Top-up Charge Offs and the A$ Equivalent of any
Carry Over Class A Charge offs allocated to[:]
(A) [each Class A[ ] Note; and]
(B) each Class A Offered Note,
in reinstatement of in the books of the Securitisation Fund, pari
passu and rateably (as between any Carry Over Redraw Charge Offs,
any Carry Over Top-up Charge Offs and the A$ Equivalent of any Carry
Over Class A Charge Offs allocated to each Class A Note) of:
(i) the A$ Equivalent of any Carry Over Class A Charge Offs;
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(ii) any Carry Over Redraw Charge Offs; and
(iii) any Carry Over Top-up Charge Offs;
[on that Monthly Payment Date (in the case of the Class A[ ] Notes)
and] on that Quarterly Payment Date including (without duplication)
any Non-Distributed Amount (in the case of the Class A Offered
Notes, any Carry Over Redraw Charge Offs and any Carry Over Top-up
Charge Offs);
(13) thirteenthly, in respect of the amount of any Class B Charge Offs
and any Carry Over Class B Charge Offs in and towards reinstatement
of in the books of the Securitisation Fund including any
Non-Distributed Amount and in the following order:
(A) any Class B Charge Offs for the applicable Calculation Period;
and
(B) pari passu and rateably the Invested Amount of the Class B
Notes to the extent of any Carry Over Class B Charge Offs;
(14) fourteenthly, (to the extent not paid under Condition 5(b)) pari
passu and rateably, in repayment of any principal due and payable
under any Redraw Funding Facility, in repayment of any principal due
and payable under any Top-up Funding Facility and in or toward
repayment of any principal due and payable under any Payment Funding
Facility including (without duplication) any Non-Distributed Amount;
(15) fifteenthly, in payment of or provision for amounts payable to the
Income Unitholder of the Securitisation Fund in accordance with
Conditions 22.1(d) and 22.3(d) of the Master Trust Deed including
(without duplication) any Non-Distributed Amount.
Capitalised terms in this Condition 4(g) have the same meaning given in
the Supplementary Bond Terms Notice unless otherwise defined in this
document.
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5 REDEMPTION AND PURCHASE
Capitalised terms in this Condition 5 have the same meaning given in the
Supplementary Bond Terms Notice unless otherwise defined in this document.
(a) MANDATORY REDEMPTION IN PART FROM PRINCIPAL COLLECTIONS AND APPORTIONMENT
OF PRINCIPAL COLLECTIONS BETWEEN THE CLASS A NOTES AND THE CLASS B NOTES
The Class A Notes shall be subject to mandatory redemption in part on any
Quarterly Payment Date [(or in the case of the Class A[ ] Notes, any
Monthly Payment Date)] if on that date there are any Principal Collections
available to be distributed in relation to such Class A Notes. The
principal amount so redeemable in respect of each Class A Note prior to
enforcement of the Security Trust Deed (each a "PRINCIPAL PAYMENT") on any
Quarterly Payment Date shall be the amount available for payment as set
out in Condition 5(b) on the day which is seven Banking Days prior to the
Quarterly Payment Date (the "CUT Off") divided by the aggregate Invested
Amount of all Class A Notes, multiplied by the Invested Amount of that
Note, provided always that no Principal Payment on a Class A Note on any
date may exceed the amount equal to the Invested Amount of that Class A
Note at that date.
Notice of amounts to be redeemed will be provided by the Manager to the
Issuer, the Calculation Agent, the Principal Paying Agent and the Note
Trustee.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(b) PRINCIPAL DISTRIBUTIONS ON NOTES
On each Quarterly Payment Date, and in accordance with the calculations,
instructions and directions provided to it by the Manager and subject to
the terms of the Security Trust Deed and the Supplementary Bond Terms
Notice (to the extent it has not already done so), the Issuer must apply
the Principal Collections together with any amounts to be applied under
this Condition 5(b) pursuant to Condition 5(d) for the Monthly Calculation
Period ending immediately before the relevant Quarterly Payment Date but
in respect of the applicable Quarterly Calculation Period and Condition
5(d)(2), in relation to the two preceding Monthly Payment Dates, towards
the following payments in the following order of priority:
(1) first, in payment of Taxes in respect of the Securitisation Fund (to
the extent not paid as described in Condition 4);
(2) secondly, pari passu and rateably in payment of the Issuer's Fee,
the Manager's Fee and any Expenses (other than the Expenses referred
to in this Condition 5(b) below) in respect of the Securitisation
Fund (to the extent not paid or provided for as described in
Condition 4(g));
(3) thirdly, in payment of the amounts payable and in the priority under
Condition 4(g)(4) and which have not previously been paid or allowed
for on a previous Payment Date [(or in relation to the Monthly
Payment Date which falls on that Quarterly Payment Date, in respect
of the Class A[ ] Notes)] (to the extent not paid or allowed for as
described in Condition 4(g)(3));
(4) fourthly, in payment of the amounts payable under and in the
priority as specified in, Condition 4(g)(6) and which have not
previously been paid or allowed for on a previous Payment Date for
the applicable Quarterly Calculation Period, including (without
duplication) any amounts allocated on the two preceding Monthly
Payment Dates (NON-DISTRIBUTED AMOUNT) (to the extent not paid or
allowed for under Condition 4(g)(5));
(5) fifthly, pari passu and rateably in repayment of any Redraw
Principal Outstanding under a Redraw Funding Facility or any Top-up
Principal Outstanding under any Top-up Funding Facility for the
applicable Quarterly Calculation Period, including (without
duplication) all Non-Distributed Amounts;
(6) sixthly, pari passu and rateably in payment of amounts approved by
the Manager under any Loan Redraw Facility or Top-up Loan for the
applicable Quarterly Calculation Period, including (without
duplication) all Non-Distributed Amounts;
(7) seventhly, pari passu and rateably[:]
(A) [in payment of principal to the Class A[ ] Noteholders for the
applicable Monthly Calculation Period until the Outstanding
Principal Balance of the Class A[ ] Notes is reduced to zero;]
[and]
(B) in payment to the Currency Swap Provider under a Confirmation
relating to the Class A Notes for the applicable Quarterly
Calculation Period, including (without duplication) any
Non-Distributed Amount until the Outstanding Principal Balance
of the Class A Offered Notes is reduced to zero, of an amount
equal to the lesser of:
(i) the amount available for distribution under this
paragraph (7) after all payments which have priority
under this paragraph (b); and
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(ii) the A$ Equivalent of the Outstanding Principal Balance
for all Class A Notes;
including (without duplication) all Non-Distributed Amounts
(8) eighthly, toward payment of principal to the Class B Noteholders
pari passu and rateably, until the Outstanding Principal Balance of
the Class B Notes is reduced to zero of an amount equal to the
lesser of:
(A) the amount available for distribution under this paragraph (8)
after all payments which have priority under this paragraph
(b); and
(B) the Outstanding Principal Balance for all Class B Notes;
including (without duplication) all Non-Distributed Amounts;
(9) ninthly, pari passu and rateably as between any Carry Over Redraw
Charge Offs, any Carry Over Top-up Charge Offs and the A$ Equivalent
of any Carry Over Class A Charge Offs allocated to each Class A
Note:
(A) in payment to the Currency Swap Provider under a Confirmation
of the A$ Equivalent of any Carry Over Class A Charge Offs
relating to the Class A Offered Notes including (without
duplication) all Non-Distributed Amounts;
(B) in repaying the Redraw Principal Outstanding of each Redraw
Funding Facility to the extent of any Carry Over Redraw Charge
Offs including (without duplication) all Non-Distributed
Amounts; and
(C) in repaying the Top-up Principal Outstanding of each Top-up
Funding Facility to the extent of any Carry Over Top-up Charge
Offs including (without duplication) all Non-Distributed
Amounts[; and]
(D) [in payment to the Class A[ ] Noteholders of any Carry Over
Class A Charge Offs relating to the Class A[ ] Notes;]
(10) tenthly, in repaying the Invested Amount of the Class B Notes to the
extent of any Carry Over Class B Charge Offs including (without
duplication) all Non-Distributed Amounts;
(11) eleventhly, in payment towards any break costs payable on
cancellation of any Fixed-Floating Rate Swap to the extent that
those amounts are not recovered under the relevant Loan secured by
Mortgages comprised in Assets of the Securitisation Fund in the form
of any applicable prepayment fees or a drawing has not been made
under a Payment Funding Facility (to the extent not paid as
described under Condition 4(g)); and
(12) twelfthly, subject to Condition (c) below, pari passu and rateably
in payment to the Liquidity Noteholder of the principal amount
outstanding in respect of the Liquidity Notes and in repayment of
any principal in respect of any Payment Funding Facility for the
applicable Quarterly Calculation Period including (without
duplication) all Non-Distributed Amounts.
Capitalised terms in this Condition (b) have the same meaning given in the
Supplementary Bond Terms Notice unless otherwise defined in this document.
(c) RIGHTS OF LIQUIDITY NOTEHOLDER
On any Quarterly Payment Date, the Issuer must not make any payments out
of Principal Collections to the Liquidity Noteholder under Condition (b)
above unless the Invested
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Amount of all the Notes is zero, or will be zero following any payments
made on the relevant Quarterly Payment Date.
(d) PAYMENT OF CHARGE OFFS AND NON-DISTRIBUTED AMOUNTS
(1) The amount of any reinstatement under Conditions 4(g)(11), (12) and
(13) together with any amounts reimbursed under Condition 4(g)(8)
must be applied on the Quarterly Payment Date of the reimbursement
in accordance with Condition 5(b) as if the amount reimbursed formed
part of Principal Collections.
(2) Any Non-Distributed Amount relating to the two Monthly Payment Dates
which precede a Quarterly Payment Date which has not previously been
paid or allowed for under Condition 4(g), must be applied in
accordance with Condition 5(b) as if the amounts allowed for formed
part of Principal Collections.
(e) GENERAL
No amount of principal will be paid to a Noteholder in excess of the
Invested Amount applicable to the Notes held by that Noteholder.
(f) EURO ACCOUNT
The Issuer must direct the Euro Currency Swap Provider to pay all amounts
denominated in (euro) payable to the Issuer by the Euro Currency Swap
Provider under the Euro Currency Swap into the Euro Account or to the
Principal Paying Agent on behalf of the Issuer.
On each Quarterly Payment Date, the Issuer must, on the direction of the
Manager, or must require that the Principal Paying Agent on its behalf,
distribute from the Euro Account the relevant amounts of principal and
interest due in respect of each Class A[ ] Note in accordance with the
Note Trust Deed and in the order of priority in Conditions 4(g) and 5(b).
(g) US$ ACCOUNT
The Issuer must direct the US Currency Swap Provider to pay all amounts
denominated in US$ payable to the Issuer by the US Currency Swap Provider
under the US Currency Swap into the US$ Account or to the Principal Paying
Agent on behalf of the Issuer.
On each Quarterly Payment Date, the Issuer must, on the direction of the
Manager, or must require that the Principal Paying Agent on its behalf,
distribute from the US$ Account the relevant amounts of interest and
principal due in respect of each Class A[ ] Note in accordance with the
Note Trust Deed and in order of priority in Conditions 4(g) and 5(b).
(h) CALCULATION OF PRINCIPAL PAYMENTS, OUTSTANDING PRINCIPAL BALANCE AND
INVESTED AMOUNT
The Manager must, not later than two Banking Days before each Quarterly
Payment Date advise the Issuer, and in respect of the Class A Offered
Notes only, the Currency Swap Provider in writing of:
(1) all amounts payable or to be provided for under clause 6 of the
Supplementary Bond Terms Notice (which includes the amounts payable
to be provided under Conditions 4(g) and 5(b));
(2) reasonable details of the calculation of all such amounts; and
(3) the Outstanding Principal Balance and Invested Amount of each Class
A Note and Class B Note following the making of all payments to be
made on that Quarterly Payment Date in accordance with the
Supplementary Bond Terms Notice.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
The Manager must also notify the Issuer of all details of payments which
are to be made by or on behalf of the Issuer on or by each Quarterly
Payment Date. The Manager must, not later than two Banking Days before
each Quarterly Payment Date, also notify the Currency Swap Provider of all
payments which are to be made by or on behalf of the Issuer under
Conditions 4(g) and 5(b) in respect of the Class A Offered Notes.
The Manager will notify the Issuer, the Note Trustee, the Principal Paying
Agent and the Calculation Agent by not later than two Banking Days prior
to the relevant Quarterly Payment Date of each such determination and will
immediately cause details, of each of those determinations to be made
available in accordance with Condition 12 one Banking Day before the
relevant Quarterly Payment Date. If no repayment of principal is due to be
made on the Class A Offered Notes on any Quarterly Payment Date a notice
to this effect will be given to the Class A Offered Noteholders in
accordance with Condition 12.
If the Manager does not at any time for any reason determine a repayment
of principal or the Outstanding Principal Balance and the Invested Amount
applicable to Class A Offered Notes in accordance with this paragraph, the
repayment of principal and Outstanding Principal Balance and the Invested
Amount may be determined by the Calculation Agent in accordance with this
paragraph (but based on the information in its possession) and each such
determination or calculation shall be deemed to have been made by the
Manager.
(i) CALL
The Issuer must, when so directed by the Manager (at the Manager's
option), having given not more than 60 no less than 45 days' notice to the
Class A Noteholders and in case of Class A Offered Notes in accordance
with Condition 12, purchase or redeem all, but not some only, of the Class
A Notes by repaying the Outstanding Principal Balance of those Class A
Notes together with accrued interest to (but excluding) the date of
repurchase or redemption, on any Quarterly Payment Date falling on or
after the earlier of:
(1) the Quarterly Payment Date on which the Outstanding Principal
Balance of all Notes calculated and expressed in the A$ Equivalent
is equal to or less than 10% of the total initial Outstanding
Principal Balance of all Notes calculated and expressed in the A$
Equivalent; and
(2) in the case of Class A Notes, the Quarterly Payment Date falling on
[ ] [and in the case of the Class A[ ] Notes, the Monthly
Payment Date falling on [ ]],
provided that:
(3) if the aggregate Outstanding Principal Balance for all Class A Notes
calculated and expressed in the A$ Equivalent on such date of
redemption or repurchase has been reduced by Class A Charge Offs
which have not been repaid under Conditions 4(g)(10) and (11), the
Noteholders owning at least 75% of the aggregate Invested Amount of
the Class A Notes calculated and expressed in the A$ Equivalent must
consent to such repurchase or redemption; and
(4) the Issuer will be in a position on such Quarterly Payment Date to
discharge (and the Manager so certifies to the Issuer and the Note
Trustee upon which certification the Issuer and the Note Trustee
will rely conclusively) all its liabilities in respect of the Class
A Notes (at their Outstanding Principal Balance) and any amounts
which would be required under the Security Trust Deed to be paid in
priority or pari passu with the Class A Notes if the security for
the Notes were being enforced.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(j) REDEMPTION FOR TAXATION OR OTHER REASONS
If the Manager satisfies the Issuer and the Note Trustee immediately prior
to giving the notice referred to below either:
(1) that on the next Quarterly Payment Date the Issuer would be required
to deduct or withhold from any payment of principal or interest in
respect of the Class A Notes, the Currency Swaps, the Payment
Funding Facility, the Top-up Funding Facility or the Redraw Funding
Facility any amount for or on account of any present or future
taxes, duties, assessments or governmental charges of whatever
nature imposed, levied, collected, withheld or assessed by the
Commonwealth of Australia or any of its political sub-divisions or
any of its authorities; or
(2) the total amount payable in respect of interest in relation to any
of the Loans secured by Mortgages comprised in the Assets of the
Securitisation Fund for a Calculation Period ceases to be receivable
(whether or not actually received) by the Issuer during such
Calculation Period (but this paragraph (2) does not apply to a
failure by the Trustee to receive any interest in relation to any of
the Loans merely by reason of the failure by any borrowers to pay
that interest in breach of the relevant Loans),
the Issuer must, when so directed by the Manager, at the Manager's option
(provided that the Issuer will be in a position on such Quarterly Payment
Date to discharge (and the Manager will so certify to the Issuer and the
Note Trustee) all its liabilities in respect of the Class A Notes (at
their Invested Amount) and any amounts which would be required under the
Security Trust Deed to be paid in priority or pari passu with the Class A
Notes if the security for the Class A Notes were being enforced), having
given not more than 60 nor less than 45 days' notice to the Class A
Noteholders in accordance with Condition 12, redeem all, but not some
only, of the Class A Notes at their then Invested Amount together with
accrued interest to (but excluding) the date of redemption on any
subsequent Quarterly Payment Date, provided that the Class A Noteholders
may by Extraordinary Resolution elect, and shall notify the Issuer and the
Manager not less than 21 days before the next Quarterly Payment Date
following the receipt of notice of such proposed redemption that they do
not require the Issuer to redeem the Class A Notes.
(k) REDEMPTION ON FINAL MATURITY
If not otherwise redeemed, the Class A Notes must be repaid in full on 9
November 2039.
(l) CANCELLATION
All Class A Notes redeemed in full pursuant to the above provisions will
be cancelled.
(m) CERTIFICATION
For the purposes of any redemption made pursuant to this Condition 5, the
Note Trustee may rely upon an Officer's Certificate under the Note Trust
Deed from the Manager certifying or stating the opinion of each person
signing such certificate as:
(1) to the fair value (within 90 days of such release) of the property
or securities proposed to be released from the Security Trust Deed;
(2) that in the opinion of such person the proposed release will not
impair the security under the Security Trust Deed in contravention
of the provisions of the Security Trust Deed or the Note Trust Deed;
and
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Note Trust Deed SMHL Global Fund [ ]-[ ]
(3) that the Issuer will be in a position to discharge all its
liabilities in respect of the relevant Class A Notes and any amounts
required under the Security Trust Deed to be paid in priority to or
pari passu with those Class A Notes,
and such Officer's Certificate shall be conclusive and binding on the
Issuer, the Note Trustee and the holders of those Class A Notes.
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6 PAYMENTS
(a) METHOD OF PAYMENT
Any instalment of interest or principal, payable on any Class A[ ] Note
which is punctually paid or duly provided for by the Issuer to the
Principal Paying Agent on the applicable Quarterly Payment Date or Final
Maturity Date shall be paid to the person in whose name such Class A[ ]
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 Class A[ ] Definitive
Notes have been issued pursuant to clause 3.4 of the Note Trust Deed, with
respect to Class A[ ] Notes registered on the Record Date in the name of
the nominee of the Clearing Agency (initially in respect of the Class A[ ]
Notes such Clearing Agency to be Euroclear or Clearstream, Luxembourg and
such nominee to be the Common Depository of Euroclear or Clearstream,
Luxembourg), payment will be made by wire transfer in immediately
available funds to the account designated by such nominee and except for
the final instalment of principal payable with respect to such Class A[ ]
Note on a Quarterly Payment Date or Final Maturity Date.
(b) INITIAL PRINCIPAL PAYING AGENT
The initial Principal Paying Agent in respect of the Class A[ ] Notes is
The Bank of New York at its offices in London, United Kingdom.
(c) PAYING AGENTS
The Issuer may (at the direction of the Manager) at any time (with the
prior written approval of the Note Trustee) terminate the appointment of
any Paying Agent and appoint additional or other Paying Agents, provided
that (among other things) the new Paying Agent has been approved in
writing by the Note Trustee and appointed on terms previously approved in
writing by the Note Trustee, notice has been provided to the Class A
Offered Noteholders, and it will at all times maintain a Paying Agent
having a specified office in New York City (in respect of the Class A[ ]
Notes) and the United Kingdom (in respect of the Class A[ ] Notes) and the
Republic of Ireland (for so long as the Class A[ ] Notes are listed and
traded on the Irish Stock Exchange). Notice of any such termination or
appointment and of any change in the office through which any Paying Agent
will act will be given in accordance with Condition 12.
The initial Irish Paying Agent is AIB/BNY Fund Management (Ireland)
Limited at its registered office in Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx 0,
Xxxxxxxx of Ireland.
(d) PAYMENT ON BANKING DAYS
If the due date for payment of any amount of principal or interest in
respect of any Class A[ ] Note is not a Banking Day then payment will not
be made until the next succeeding Banking Day and the holder of that Class
A[ ] Note shall not be entitled to any further interest or other payment
in respect of that delay. In this Condition 6 the expression "Banking Day"
means any day (other than a Saturday, Sunday or a public
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holiday) on which banks are open for business in London and in the place
where the specified office of the Paying Agent at which the Class A[ ]
Note is presented for payment is situated and which is a TARGET Settlement
Day and, in the case of payment by transfer to a Euro account in London,
prior to the exchange of a Class A[ ] Book-Entry Note for any Class A[ ]
Definitive Notes, means any day (other than Saturday, Sunday or public
holiday) on which banks are open for business in London and on which
Euroclear or Clearstream, Luxembourg is open for business and which is a
TARGET Settlement Day.
(e) INTEREST
If interest is not paid in respect of a Class A[ ] Note on the date when
due and payable (other than because the due date is not a Banking Day),
that unpaid interest shall itself bear interest at the Interest Rate
applicable from time to time to the Class A[ ] Notes until the unpaid
interest, and interest on it, is available for payment and notice of that
availability has been duly given in accordance with Condition 12.
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7 TAXATION
All payments in respect of the Class A Notes will be made without withholding or
deduction for, or on account of, any present or future taxes, duties or charges
of whatsoever nature unless the Issuer or any Paying Agent is required by
applicable law to make any such payment in respect of the Class A Notes subject
to any withholding or deduction for, or on account of, any present or future
taxes, duties or charges of whatever nature. In that event the Issuer or that
Paying Agent (as the case may be) shall make such payment after such withholding
or deduction has been made and shall account to the relevant authorities for the
amount so required to be withheld or deducted. Neither the Issuer nor any Paying
Agent nor the Note Trustee will be obliged to make any additional payments to
Class A Noteholders in respect of that withholding or deduction.
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8 PRESCRIPTION
A Class A Note shall become void in its entirety unless surrendered for payment
within ten years of the Relevant Date (as such term is defined below) in respect
of any payment on it the effect of which would be to reduce the Outstanding
Principal Balance of that Class A Note to zero. After the date on which a Class
A Note becomes void in its entirety, no claim may be made in respect of it.
As used in these Conditions, the "RELEVANT DATE" means the date on which a
payment first becomes due but, if the full amount of the money payable has not
been received by the Principal Paying Agent or the Note Trustee on or prior to
that date, it means the date on which the full amount of such money having been
so received, notice to that effect is duly given by the Principal Paying Agent
in accordance with Condition 12.
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9 EVENTS OF DEFAULT
Subject to the Supplementary Bond Terms Notice each of the following events is
an Event of Default whether or not caused by any reason whatsoever outside the
control of an Interested Person (as defined in the Security Trust Deed) or any
other person:
(a) the Issuer does not within 10 Banking Days of the due date, and in the
specified manner, pay in full any Secured Moneys (except in respect of any
moneys payable under any
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Payment Funding Facility, Top-up Funding Facility and Redraw Funding
Facility which fall due for payment prior to the Repayment Date or payment
of interest on Class B Notes unless all Class A Notes have been repaid);
(b) the Issuer or the Manager defaults in fully performing observing and
fulfilling any material obligation in relation to the Securitisation Fund
under the Security Trust Deed or any Secured Document (other than a
provision requiring the payment of money as contemplated by paragraph (a)
of this clause or, prior to the Repayment Date, in respect of any such
default under a Payment Funding Facility, Top-up Funding Facility and
Redraw Funding Facility) and such default has not been remedied within 10
Banking Days of the Issuer or the Manager (as the case requires) receiving
notice from the Security Trustee specifying the breach and requiring the
same to be rectified;
(c) any representation, warranty or statement in relation to the
Securitisation Fund made, repeated or deemed to be made or repeated in the
Security Trust Deed or in any Secured Document by the Issuer or the
Manager (as the case requires) is proved to be untrue in any material
respect when made, repeated or deemed to be made or repeated (as the case
may be) (except, prior to the Repayment Date, in respect of any
representation, warranty or statement made, repeated or deemed to be made
or repeated under the Payment Funding Facility, Top-up Funding Facility
and Redraw Funding Facility);
(d) the Issuer or the Manager (as the case requires) breaches any material
undertaking given at any time to the Security Trustee in relation to the
Securitisation Fund or fails to comply with any material condition imposed
by the Security Trustee in relation to the Securitisation Fund in agreeing
to any matter (including any waiver) (except, prior to the Repayment Date,
in respect of any breach of any material undertaking or failure to comply
with any material condition under the Payment Funding Facility, Top-up
Funding Facility and Redraw Funding Facility);
(e) any Insolvency Event occurs in relation to the Issuer other than for the
reconstruction of the Issuer or the Securitisation Fund with the prior
written approval of the Manager and the Security Trustee and provided that
each Designated Rating Agency has confirmed in writing that such
reconstruction will not have an adverse effect on the rating of the Notes;
(f) any Encumbrance over any Charged Property becomes enforceable or any
Encumbrance that is a floating security over any Charged Property
crystallises or otherwise becomes a fixed or specific security;
(g) any investigation into the affairs, or into particular affairs, of the
Issuer in relation to the Securitisation Fund is directed or commenced
under any Statute;
(h) any Secured Document is, becomes or is claimed by the Issuer or the
Manager to be void, voidable or unenforceable in whole or in any material
part;
(i) the Issuer or the Manager disaffirms, disclaims, repudiates or rejects any
Secured Document in whole or in any material part; (j) there occurs
without the prior written approval of the Security Trustee, any vesting or
distribution of any assets of the Securitisation Fund other than in
accordance with the relevant Supplementary Bond Terms Notices;
(k) any material breach of trust in relation to the Securitisation Fund by the
Issuer or the Issuer for any reason loses or ceases to be entitled to a
material extent to its right of indemnity against the assets of the
Securitisation Fund;
(l) as a result of the act or omission of the Issuer the assets of the
Securitisation Fund are materially diminished or made materially less
accessible to the Security Trustee;
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(m) without the prior consent of the Security Trustee, the Securitisation Fund
is wound-up, or the Issuer is required to wind up the Securitisation Fund
under the Master Trust Deed or the applicable law, or the winding up of
the Securitisation Fund commences; and
(n) the Charge ceases to rank as contemplated by clause 4.2 of the Security
Trust Deed.
Capitalised terms in this Condition 9 have the same meaning given in the
Security Trust Deed unless defined in this document.
In the event that the security constituted by the Security Trust Deed becomes
enforceable following an event of default under the Notes, any funds resulting
from the realisation of such security shall be applied in accordance with the
order of priority of payments as stated in the Security Trust Deed.
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10 ENFORCEMENT
At any time after an Event of Default occurs, the Security Trustee may (subject
to the Security Trust Deed), if so directed by (a) the Noteholder Secured
Creditors (as defined in the Security Trust Deed) alone, where the Noteholder
Secured Creditors are the only Voting Secured Creditors, or otherwise (b) an
"Extraordinary Resolution" of the Voting Secured Creditors (being 75% of votes
capable of being cast by Voting Secured Creditors present in person or by proxy
at the relevant meeting or a written resolution signed by all Voting Secured
Creditors, which includes the Note Trustee on behalf of Class A Offered
Noteholders, but not, unless the Note Trustee has become bound to take steps
and/or proceed under the Security Trust Deed and fails to do so within a
reasonable period of time and such failure is continuing, the Class A Offered
Noteholders themselves), declare the Class A Notes immediately due and payable
and declare the security to be enforceable. If an Extraordinary Resolution of
the Voting Secured Creditors referred to above elects not to direct the Security
Trustee to enforce the Security Trust Deed, in the circumstances where the
Security Trustee could enforce, the Noteholder Secured Creditor may
nevertheless, and the Note Trustee as Noteholder Secured Creditor shall subject
to the terms of the Note Trust Deed, at the direction of the Class A Offered
Noteholders, direct the Security Trustee to enforce the Security Trust Deed on
behalf of the Class A Offered Noteholders.
"VOTING SECURED CREDITOR" means:
(a) with respect only to the enforcement of the security under the Security
Trust Deed, for so long as the Secured Moneys of the Class A Noteholders
and the Class B Noteholders each calculated and expressed in the A$
Equivalent are 75% or more of total Secured Moneys calculated and
expressed in the A$ Equivalent, the Noteholder Secured Creditors alone;
and
(b) at any other time (subject to clause 16.3 of the Security Trust Deed):
(1) the Note Trustee, acting on behalf of the Class A Offered
Noteholders under the Note Trust Deed and clause 3 of the Security
Trust Deed or, if the Note Trustee has become bound to take steps
and/or to proceed under the Security Trust Deed and fails to do so
within a reasonable time and such failure is continuing, the Class A
Offered Noteholders and then only to the extent permitted by the
Australian Law; and
(2) each other Secured Creditor (other than a Class A Offered
Noteholder).
Any reference to the Noteholder Secured Creditors while they are the only Voting
Secured Creditors, or where their consent is required under the Security Trust
Deed in relation to a direction or act of the Security Trustee, means the
Noteholder Secured Creditors representing
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more than 50% of the aggregate Invested Amount of the Class A Notes and the
Class B Notes each calculated and expressed in the A$ Equivalent.
Subject to the Security Trust Deed, the Security Trustee shall take all action
necessary to give effect to any direction by the Noteholder Secured Creditors
where they are the only Voting Secured Creditors or to any Extraordinary
Resolution of the Voting Secured Creditors and shall comply with all directions
given by the Note Trustee where it is the only Voting Secured Creditor or
contained in or given pursuant to any Extraordinary Resolution of the Voting
Secured Creditors in accordance with the Security Trust Deed.
No Class A Noteholder is entitled to enforce the Security Trust Deed or to
appoint or cause to be appointed a receiver to any of the assets secured by the
Security Trust Deed or otherwise to exercise any power conferred by the terms of
any applicable law on chargees except as provided in the Security Trust Deed.
If any of the Class A Notes remain outstanding and are due and payable otherwise
than by reason of a default in payment of any amount due on the Class A Offered
Notes, the Note Trustee must not vote under the Security Trust Deed to, or
otherwise direct the Security Trustee to, dispose of the Charged Property unless
either:
(a) a sufficient amount would be realised to discharge in full all amounts
owing to the Class A Offered Noteholders and any other amounts payable by
the Issuer ranking in priority to or pari passu with the Class A Offered
Notes;
(b) the Note Trustee is of the opinion, reached after considering at any time
and from time to time the advice of a merchant bank or other financial
adviser selected by the Note Trustee, that the cash flow receivable by the
Issuer (or the Security Trustee under the Security Trust Deed) will not
(or that there is a significant risk that it will not) be sufficient,
having regard to any other relevant actual, contingent or prospective
liabilities of the Issuer, to discharge in full in due course all the
amounts referred to in paragraph (a);
(c) the Note Trustee is directed by the Holders of at least 75% of the
aggregate Invested Amount of Class A Offered Notes calculated and
expressed in the A$ Equivalent.
Neither the Note Trustee nor the Security Trustee will be liable for any decline
in the value, nor any loss realised upon any sale or other dispositions made
under the Security Trust Deed, of any Charged Property or any other property
which is charged to the Security Trustee by any other person in respect of or
relating to the obligations of the Issuer or any third party in respect of the
Issuer or the Secured Moneys or the Class A Offered Notes or relating in any way
to the Charged Property. Without limitation, neither the Note Trustee nor the
Security Trustee shall be liable for any such decline or loss directly or
indirectly arising from its acting, or failing to act, as a consequence of an
opinion reached by it.
The Note Trustee shall not be bound to vote under the Security Trust Deed, or
otherwise direct the Security Trustee under the Security Trust Deed or to take
any proceedings, actions or steps under, or any other proceedings pursuant to or
in connection with the Security Trust Deed, the Note Trust Deed, any Class A
Offered Notes, unless directed or requested to do so in writing by Noteholders
holding at least 75% of the aggregate Invested Amount of Class A Offered Notes
calculated and expressed in the A$ Equivalent at the time; and then only if the
Note Trustee is indemnified to its satisfaction against all action, proceedings,
claims and demands to which it may render itself liable and all costs, charges,
damages and expenses which it may incur by so doing.
Only the Security Trustee may enforce the provisions of the Security Trust Deed
and neither the Note Trustee nor any Class A Offered Noteholder is entitled to
proceed directly against the
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Issuer to enforce the performance of any of the provisions of the Security Trust
Deed and the Class A Offered Notes (including these Class A Offered Note
Conditions) unless otherwise as set out in a Transaction Document.
The rights, remedies and discretions of the Class A Offered Noteholders under
the Security Trust Deed including all rights to vote or give instructions or
consent can only be exercised by the Note Trustee on behalf of the Class A
Offered Noteholders in accordance with the Security Trust Deed. The Security
Trustee may rely on any instructions or directions given to it by the Note
Trustee as being given on behalf of the Class A Offered Noteholders from time to
time and need not enquire whether the Note Trustee or the Class A Offered
Noteholders from time to time have complied with any requirements under the Note
Trust Deed or as to the reasonableness or otherwise of the Note Trustee. The
Security Trustee is not obliged to take any action, give any consent or waiver
or make any determination under the Security Trust Deed without being directed
to do so by the Note Trustee or the Voting Secured Creditors in accordance with
the Security Trust Deed.
Upon enforcement of the security created by the Security Trust Deed, the net
proceeds of enforcement may be insufficient to pay all amounts due on redemption
to the Noteholders. The proceeds from enforcement (which will not include
amounts required by law to be paid to the holder of any prior ranking security
interest, and the proceeds of cash collateral lodged with and payable to a Swap
Provider or other provider of an Enhancement (as defined in the Master Trust
Deed)) will be applied in the order of priority as set out in the Security Trust
Deed. Any claims of the Noteholders remaining after realisation of the security
and application of the proceeds as aforesaid shall, except in certain limited
circumstances, be extinguished.
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11 REPLACEMENT OF CLASS A OFFERED NOTES
If any Class A Offered Note is lost, stolen, mutilated, defaced or destroyed, it
may be replaced at the specified office of the Principal Paying Agent upon
payment by the claimant of the expenses incurred in connection with that
replacement and on such terms as to evidence and indemnity as the Manager may
reasonably require. Mutilated or defaced Class A Offered Notes must be
surrendered before replacements will be issued.
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12 NOTICES
All notices, other than notices given in accordance with the following
paragraphs, to Class A Offered Noteholders shall be deemed to be given if in
writing and mailed, first-class, postage prepaid to each Class A Offered
Noteholder, at his or her address as it appears on the Note Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Class A Offered Noteholders
is given by mail, neither the failure to mail such notice nor any defect in any
notice so mailed to any particular Class A Offered Noteholder shall affect the
sufficiency of such notice with respect to other Class A Offered Noteholders,
and any notice that is mailed in the manner herein provided shall conclusively
be presumed to have been duly given.
A notice may be waived in writing by the relevant Class A Offered Noteholder,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by the Class A Offered 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.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
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 the Class A Offered Noteholders when such notice is
required to be given, then any manner of giving such notice as the Issuer shall
direct the Note Trustee shall be deemed to be a sufficient giving of such
notice.
The Manager shall deliver a quarterly servicing report for each Calculation
Period to each Class A Offered Noteholder on the notice date relating to such
Calculation Period in the method provided in the first paragraph of this
Condition 12.
All consents and approvals in these Conditions are to be given in writing.
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13 MEETINGS OF VOTING SECURED CREDITORS AND MEETINGS OF CLASS A OFFERED
NOTEHOLDERS; MODIFICATIONS; CONSENTS; WAIVER
The Security Trust Deed contains provisions for convening meetings of the Voting
Secured Creditors to, among other things, enable the Voting Secured Creditors to
direct or consent to the Security Trustee taking or not taking certain actions
under the Security Trust Deed, for example to enable the Voting Secured
Creditors to direct the Security Trustee to enforce the Security Trust Deed.
The Note Trust Deed contains provisions for convening meetings of Class A
Offered Noteholders to consider any matter affecting their interests, including
the directing of the Note Trustee to direct the Security Trustee to enforce the
security under the Security Trust Deed, or the sanctioning by the Extraordinary
Resolution of the Class A Offered Noteholders of a modification of the Class A
Offered Notes (including these Class A Offered Note Conditions) or the
provisions of any of the Transaction Documents, provided that no modification of
certain terms including, among other things, the date of maturity of the Class A
Offered Notes, or a modification which would have the effect of altering the
amount of interest payable in respect of a Class A Offered Note or modification
of the method of calculation of the interest payable or of the date for payment
of interest in respect of any Class A Offered Notes, reducing or cancelling the
amount of principal payable in respect of any Class A Offered Notes or altering
the majority required to pass an Extraordinary Resolution or altering the
currency of payment of any Class A Offered Notes or an alteration of the date or
priority of payment of interest on, or redemption of, the Class A Offered Notes
in the event of a call under Condition 5(i) or 5(j) (any such modification being
referred to below as a "BASIC TERMS MODIFICATION") shall be effective except
that, if the Note Trustee is of the opinion that such a Basic Terms Modification
is being proposed by the Issuer as a result of, or in order to avoid, an Event
of Default, such Basic Terms Modification may be sanctioned by Extraordinary
Resolution of the Class A Offered Noteholders as described below. An
Extraordinary Resolution passed by the Class A Offered Noteholders shall be
binding on all Class A Offered Noteholders. The vote required for an
Extraordinary Resolution shall be a majority consisting of not less than 75% of
the votes capable of being cast by Voting Secured Creditors present in person or
by proxy at a duly convened meeting or a written resolution signed by all of the
Voting Secured Creditors.
The Note Trust Deed permits the Note Trustee, the Manager and the Issuer to,
following the giving of not less than 10 Banking Days' notice to each Designated
Rating Agency, alter, add to or modify, by way of supplementary deed, the Note
Trust Deed (including the meeting and amendment provisions), the Conditions
(subject to the proviso more fully described in clause 35.2 of the Note Trust
Deed or any other terms of that deed or the Conditions to which it refers) or
any Transaction Document so long as that alteration, addition or modification
is:
o to correct a manifest error or ambiguity or is of a formal, technical or
administrative nature only;
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Note Trust Deed SMHL Global Fund [ ]-[ ]
o in the opinion of the Note Trustee necessary to comply with the provisions
of any law or regulation or with the requirements of any Government
Agency;
o in the opinion of the Note Trustee appropriate or expedient as a
consequence of a change to any law or regulation or a change in the
requirements of any Government Agency (including, but not limited to, an
alteration, addition or modification which is in the opinion of the Note
Trustee appropriate or expedient as a consequence of the enactment of a
law or regulation or an amendment to any law or regulation or ruling by
the Commissioner or Deputy Commissioner of Taxation or any governmental
announcement or statement, in any case which has or may have the effect of
altering the manner or basis of taxation of trusts generally or of trusts
similar to the Securitisation Fund); or
o in the reasonable opinion of the Note Trustee neither prejudicial nor
likely to be prejudicial to the interests of the Class A Offered
Noteholders as a whole, and is undertaken in a manner and to the extent,
permitted by the Transaction Documents.
Where, in the opinion of the Note Trustee, a proposed alteration, addition or
modification to the Note Trust Deed, other than an alteration, addition or
modification referred to above, is prejudicial or likely to be prejudicial to
the interests of Class A Offered Noteholders as a whole or any Class of Class A
Offered Noteholders, the Note Trustee, the Manager and the Issuer may make that
alteration, addition or modification only if sanctioned in writing by holders of
at least 75% of the aggregate Invested Amount of the Class A Offered Notes
calculated and expressed in the A$ Equivalent.
The Note Trustee may also, in accordance with the Note Trust Deed and without
the consent of the Class A Offered Noteholders (but not in contravention of an
Extraordinary Resolution), waive or authorise any breach or proposed breach of
the Class A Offered Notes (including these Class A Offered Note Conditions) or
any Transaction Document or determine that any Event of Default or any
condition, event or act which with the giving of notice and/or lapse of time
and/or the issue of a certificate would constitute an Event of Default shall
not, or shall not subject to specified conditions, be treated as such. Any such
modification, waiver, authorisation or determination shall be binding on the
Class A Offered Noteholders and, if, but only if, the Note Trustee so requires,
any such modification shall be notified to the Class A Offered Noteholders in
accordance with Condition 12 as soon as practicable.
Every amendment to the Note Trust Deed must conform to the requirements of the
TIA as then in effect so long as the Note Trust Deed shall be qualified under
the TIA.
The Manager shall distribute to all Class A Offered Noteholders and the
Designated Rating Agencies a copy of any amendments made under clause 35.1 or
35.2 of the Note Trust Deed in accordance with Condition 12 as soon as
reasonably practicable after the amendment has been made.
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14 INDEMNIFICATION AND EXONERATION OF THE NOTE TRUSTEE AND THE SECURITY
TRUSTEE
(a) The Note Trust Deed and the Security Trust Deed contain provisions for the
indemnification of the Note Trustee and the Security Trustee and for their
relief from responsibility, including provisions relieving them from
taking proceedings to realise the security and to obtain repayment of the
Class A Offered Notes (in respect of the Note Trustee) and the Class A
Notes (in respect of the Security Trustee) unless indemnified to their
satisfaction. Each of the Note Trustee and the Security Trustee is
entitled
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to enter into business transactions with the Issuer and/or any other party
to the Transaction Documents without accounting for any profit resulting
from such transactions. Except in the case of negligence, fraud or wilful
default (in the case of the Security Trustee) or negligence, fraud, or
wilful default (in the case of the Note Trustee), neither the Security
Trustee nor the Note Trustee will be responsible for any loss, expense or
liability which may be suffered as a result of any assets secured by the
Security Trust Deed, Charged Property or any deeds or documents of title
thereto, being uninsured or inadequately insured or being held by or to
the order of the Mortgage Manager or any of its affiliates or by clearing
organisations or their operators or by any person on behalf of the Note
Trustee if prudently chosen in accordance with the Transaction Documents.
(b) Where the Note Trustee is required to express an opinion or make a
determination or calculation under the Transaction Documents, the Note
Trustee may appoint or engage such independent advisers as the Note
Trustee reasonably requires to assist in the giving of that opinion or the
making of that determination or calculation and any reasonable costs and
expenses payable to those advisers will be reimbursed to the Note Trustee
by the Issuer or if another person is expressly stated in the relevant
provision in a Transaction Document, that person.
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15 LIMITATION OF LIABILITY OF THE ISSUER
(a) GENERAL
Clause 26 of the Master Trust Deed applies to the obligations and
liabilities of the Issuer in relation to the Class A Notes.
(b) LIABILITY OF ISSUER LIMITED TO ITS RIGHT OF INDEMNITY
(1) The Issuer enters into the Transaction Documents and issues the
Notes only in its capacity as trustee of the Securitisation Fund and
in no other capacity (except where the Transaction Documents provide
otherwise). Subject to paragraph (3) below, a liability arising
under or in connection with the Transaction Documents, the Notes or
the Securitisation Fund is limited to and can be enforced against
the Issuer only to the extent to which it can be satisfied out of
the assets and property of the Securitisation Fund and which are
available to satisfy the right of the Issuer to be exonerated or
indemnified for the liability. This limitation of the Issuer's
liability applies despite any other provision of the Transaction
Documents and extends to all liabilities and obligations of the
Issuer in any way connected with any representation, warranty,
conduct, omission, agreement or transaction related to the
Transaction Documents, the Notes or the Securitisation Fund.
(2) Subject to paragraph (3) below, no person (including any Relevant
Party) may take action against the Issuer in any capacity other than
as trustee of the Securitisation Fund or seek the appointment of a
receiver (except under the Security Trust Deed), or a liquidator, an
administrator or any similar person to the Issuer or prove in any
liquidation, administration or arrangements of or affecting the
Issuer except in relation to the Assets of the Securitisation Fund.
(3) The provisions of this Condition 15 shall not apply to any
obligation or liability of the Issuer to the extent that it is not
satisfied because under a Transaction Document or by operation of
law there is a reduction in the extent of the Issuer's
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Note Trust Deed SMHL Global Fund [ ]-[ ]
indemnification or exoneration out of the assets of the
Securitisation Fund as a result of the Issuer's fraud, negligence or
wilful default.
(4) It is acknowledged that the Relevant Parties are responsible under
the Transaction Documents for performing a variety of obligations
relating to the Securitisation Fund. No act or omission of the
Issuer (including any related failure to satisfy its obligations
under the Transaction Documents or the Notes) will be considered
fraud, negligence or wilful default of the Issuer for the purpose of
paragraph (3) of this Condition 15 to the extent to which the act or
omission was caused or contributed to by any failure by any Relevant
Party or any person who has been delegated or appointed by the
Issuer in accordance with the Transaction Documents to fulfil its
obligations relating to the Securitisation Fund or by any other act
or omission of a Relevant Party or any such person.
(5) No attorney, agent, delegate, receiver or receiver and manager
appointed in accordance with this deed or any other Transaction
Documents has authority to act on behalf of the Issuer in a way
which exposes the Issuer to any personal liability and no act or
omission of any such person will be considered fraud, negligence or
wilful default of the Issuer for the purpose of paragraph (3).
(6) The Issuer is not obliged to do or refrain from doing anything under
the Transaction Documents (including incur any liability) unless the
Issuer's liability is limited in the same manner as set out in
paragraphs (1) to (5).
(7) In this Condition 15 "RELEVANT PARTIES" means each party to a
Transaction Document other than the Issuer.
(8) The expression "WILFUL DEFAULT" as used in this Condition 15 is
defined in clause 26.6 of the Security Trust Deed.
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16 GOVERNING LAW
The Class A[ ] Notes and the Relevant Documents are governed by, and shall be
construed in accordance with, the laws of New South Wales, Australia. The
administration of the Note Trust created under the Note Trust Deed, including
the exercise of the Note Trustee's powers under clause 13 of the Note Trust
Deed, is governed by the law of New York. In the event of any inconsistency
between the operation of the law of New South Wales, Australia and the law of
New York in respect of the application of those powers, the law of New York will
prevail to the extent of the inconsistency.
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17 SUMMARY OF PROVISIONS RELATING TO THE CLASS A NOTES WHILE IN BOOK-ENTRY
FORM
Each Class A[ ] Note will be initially represented by typewritten book-entry
notes (the "CLASS A[ ] BOOK-ENTRY NOTES"), without coupons, in the principal
amount of (euro)[ ].The Class A[ ] Book-Entry Notes will be registered in
the name of The Bank of New York Depositary (Nominees) Limited and deposited
with the Common Depository in respect of the Class A[ ] Notes on or about the
Closing Date. Upon deposit of the Class A[ ] Book-Entry Notes with the Common
Depository, the Common Depository will credit each investor in the Class A[ ]
Notes with a principal amount of Class A[ ] Notes for which it has subscribed
and paid.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
The Class A[ ] Book Entry Notes will be exchangeable for Class A[ ] Definitive
Notes in certain circumstances described below.
Each person who is shown in the Note Register as the holder of a particular
principal amount of Class A[ ] Notes will be entitled to be treated by the
Issuer and the Note Trustee as a holder of such principal amount of Class A[ ]
Notes and the expression "CLASS A[ ] NOTEHOLDER" shall be construed accordingly,
but without prejudice to the entitlement of the holder of the Class A[ ]
Book-Entry Note to be paid principal and interest thereon in accordance with its
terms. Such persons shall have no claim directly against the Issuer in respect
of payment due on the Class A[ ] Notes for so long as the Class A[ ] Notes are
represented by a Class A[ ] Book-Entry Note and the relevant obligations of the
Issuer will be discharged by payment to the registered holder of the Class A[ ]
Book-Entry Note in respect of each amount so paid.
(a) PAYMENTS
Interest and principal on each Class A[ ] Book-Entry Note will be payable
by the Principal Paying Agent to the Common Depositary provided that no
payment of interest may be made by the Issuer or any Paying Agent in the
Commonwealth of Australia or their possessions or into a bank account or
to an address in the Commonwealth of Australia or their possessions.
Each of the persons appearing from time to time as the beneficial owner of
a Class A[ ] Note will be entitled to receive any payment so made in
respect of that Class A[ ] Note in accordance with the respective rules
and procedures of Euroclear or Clearstream, Luxembourg (in respect of the
Class A[ ] Notes). Such persons will have no claim directly against the
Issuer in respect of payments due on the Class A[ ] Notes which must be
made by the holder of the relevant Class A[ ] Book-Entry Note, for so long
as such Class A[ ] Book-Entry Note is outstanding.
A record of each payment made on a Class A[ ] Book-Entry Note,
distinguishing between any payment of principal and any payment of
interest, will be recorded in the Note Register by the Note Registrar and
such record shall be prima facie evidence that the payment in question has
been made.
(b) EXCHANGE
The Class A[ ] Book-Entry Notes will be exchangeable for Class A[ ]
Definitive Notes only if:
(1) that Class A[ ] Book-Entry Note being a Class A[ ] Book-Entry Note
becomes immediately due and repayable by reason of the occurrence of
an Event of Default:
(2) either Euroclear or Clearstream, Luxembourg is closed for business
for a continuous period of 14 days (other than by reason of holiday,
statutory or otherwise) or announces an intention permanently to
cease business; or
(3) as the result of any amendment to, or change in, the laws or
regulations of any jurisdiction or any body politic, or government
in any jurisdiction, or any minister, department, office,
commission, instrumentality, agency, board, authority or
organisation of any government or any corporation owned or
controlled by any government having power to tax or in the
interpretation by a revenue authority or a court of, or in the
administration of, laws or regulations relating to taxation which
becomes effective on or after the first Bond Issue Date, the Issuer
or any Paying Agent is or will be required to make any deduction or
withholding from any payment in respect of any of the relevant Class
A[ ] Notes which would not be required were those Class A[ ] Notes
in definitive form,
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Note Trust Deed SMHL Global Fund [ ]-[ ]
then the Issuer (with the assistance of the Manager) shall (but subject to
Clause 3.4(c) of the Note Trust Deed), within 30 days of becoming aware of
the occurrence of the relevant event, but not prior to 40 days after the
Bond Issue Date issue Class A[ ] Definitive Notes in exchange for the
whole of the outstanding interest in that Class A[ ] Book-Entry Note being
a Class A[ ] Book-Entry Note in respect of Class A[ ] Notes.
Class A[ ] Noteowner has the meaning given to it in the Note Trust Deed.
(c) NOTICES
So long as the Class A[ ] Notes are represented by the Class A[ ]
Book-Entry Note and the same is/are held on behalf of the Clearing Agency,
notices to Class A[ ] Noteholders may be given by delivery of the relevant
notice to the Clearing Agency for communication by the Clearing Agency to
entitled account holders in substitution for delivery to each Class A[ ]
Noteholder as required by the Conditions.
So long as the Class A[ ] Notes are listed on the Irish Stock Exchange and
the rules of the Irish Stock Exchange so require the Manager will inform
the Irish Stock Exchange if the ratings assigned to the Class A[ ] Notes
as of the Closing Date are, at any time, downgraded or withdrawn.
(d) CANCELLATION
The Note Registrar shall ensure that all Class A[ ] Notes:
(1) which have been surrendered for payment, registration of transfer,
exchange or redemption; or
(2) in the case of any Class A[ ] Definitive Note, which, being
mutilated or defaced, have been surrendered and replaced under
Condition 11,
shall be cancelled by or on behalf of the Issuer and will execute a
certificate and deliver same to the Note Trustee stating:
(3) the aggregate Outstanding Principal Balance of Class A[ ] Notes
which have been redeemed; and
(4) the serial numbers of such Class A[ ] Notes in definitive form
(where applicable).]
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Note Trust Deed SMHL Global Fund [ ]-[ ]
--------------------------------------------------------------------------------
[SCHEDULE 5 - FORM OF CLASS A[ ] DEFINITIVE NOTES]
[THIS OBLIGATION HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE US SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED OR SOLD IN CONTRAVENTION OF THAT
ACT.
THIS CLASS A[ ] NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW,
PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CLASS A[ ] NOTES MAY NOT BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES, OR FOR THE ACCOUNT OR
BENEFIT OF U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT)
EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE LAWS OF ANY STATE OF THE
UNITED STATES.
THIS CLASS A[ ] DEFINITIVE NOTE IS A GLOBAL BOND FOR THE PURPOSE OF SECTION
128F(10) OF THE INCOME TAX ASSESSMENT XXX 0000 OF THE COMMONWEALTH OF AUSTRALIA
REGISTERED ISIN No......................
Common Code..................
Perpetual Limited
(ABN 86 000 000 000)
(a limited liability company incorporated under the law of
New South Wales, Australia)
in its capacity as trustee of the
SMHL Global Fund [ ]-[ ]
(euro)[ ]
Class A[ ] Mortgage Backed Floating Rate Notes Due on
the Payment Date falling in [ ] [20 ]
This Class A[ ] Definitive Note in respect of a duly authorised issue of Notes
of Perpetual Limited in its capacity as trustee of the SMHL Global Fund
[ ]-[ ] (the "SECURITISATION FUND") (the "ISSUER"), designated as specified
in the title above (the "NOTES"), in an initial aggregate principal amount of
** (euro)[ ] **
and (a) constituted by a Master Trust Deed (the "MASTER TRUST DEED") dated 4
July 1994 between the Issuer as trustee, and ME Portfolio Management Limited
(the "MANAGER") as amended and restated from time to time, by a Supplementary
Bond Terms Notice (the
--------------------------------------------------------------------------------
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Note Trust Deed SMHL Global Fund [ ]-[ ]
"SUPPLEMENTARY BOND TERMS NOTICE") dated [ , ] executed by the Issuer,
the Security Trustee (as defined herein), The Bank of New York (the note trustee
for the time being referred to as the "NOTE TRUSTEE") as trustee for the holders
for the time being of the Class A Offered Notes (the "CLASS A OFFERED
NOTEHOLDERS") and the Manager, and by the Conditions; (b) issued subject to a
Note Trust Deed dated [ , ] (the "NOTE TRUST DEED") between (among
others) the Issuer, the Manager, AIB/BNY Fund Management (Ireland) Limited (the
"IRISH PAYING AGENT" [and "CLASS A[ ] IRISH PAYING AGENT")] and the Note
Trustee; and (c) secured by a Security Trust Deed (the "SECURITY TRUST DEED")
dated [ , ] between the Issuer, the Manager, the Note Trustee and
Perpetual Trustee Company Limited (ABN 42 000 001 007) (the "SECURITY TRUSTEE",
which expression shall include its successor for the time being as security
trustee under the Security Trust Deed) (as amended). References to the
Conditions (or to any particular numbered Condition) shall be to the Terms and
Conditions of the Class A[ ] Notes set out in Schedule 5 to the Note Trust Deed.
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.
The Issuer, in its capacity as trustee of the Securitisation Fund, subject to
this Class A[ ] Note and subject to and in accordance with the Conditions and
the Note Trust Deed promises to pay to the registered holder of this Class A[ ]
Definitive Note on the Payment Date (as defined in Condition 4) endorsed on this
Class A[ ] Definitive Note falling in [________________] (or on such earlier
date(s) as the Invested Amount of this Class A[ ] Definitive Note (as defined in
Condition 5(a)) (or any part of it) may become repayable in accordance with the
Conditions, the principal sum of:
(euro)[ ] ([ ] Euros)
or such part of that amount as may be repayable on such date(s) in accordance
with the Conditions, the Supplementary Bond Terms Notice, the Master Trust Deed
and the Note Trust Deed, together with interest on the Invested Amount (as
defined in Condition 5(a)) and payable in arrear on each Payment Date and such
other amounts (if any) as may be payable, all subject to and in accordance with
the Conditions and the provisions of the Supplementary Bond Terms Notice, the
Master Trust Deed and the Note Trust Deed.
This Class A[ ] Definitive Note shall not become valid for any purpose unless
and until the attached Certificate of Authentication has been signed by any
signatory of the Bank of New York as Principal Paying Agent.
This Class A[ ] Definitive Note is not a document of title. Title shall be
determined by entry in the Register and only the duly registered holder from
time to time is entitled to payments in respect of this Class A[ ] Definitive
Note.
Terms used in this Class A[ ] Definitive Note and not otherwise defined in it
have the same meaning as in the Supplementary Bond Terms Notice.
IN WITNESS the Issuer has caused this Class A[ ] Definitive Note to be signed
[manually/in facsimile] by a person duly authorised on its behalf.
PERPETUAL LIMITED in its capacity as trustee of the SMHL Global Fund [ ]-[ ]
By:
--------------------------------------
Authorised Signatory
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Note Trust Deed SMHL Global Fund [ ]-[ ]
Date:
------------------------------------
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Note Trust Deed SMHL Global Fund [ ]-[ ]
IMPORTANT NOTICE:
-----------------------------------------------------
(a) The Class A[ ] Notes do not represent deposits or other liabilities of
Perpetual Limited, ABN 86 000 000 000, or associates of Perpetual Limited.
(b) The holding of Class A[ ] Notes is subject to investment risk, including
possible delays in repayment and loss of income and principal invested.
(c) None of Perpetual Limited, any associate of Perpetual Limited, the
Security Trustee, the Note Trustee, the Note Registrar, the Calculation
Agent, the Class A[ ] Irish Paying Agent or the Paying Agents in any way
stands behind the capital value and/or performance of the Class A[ ] Notes
or the assets of the Securitisation Fund except in the case of the Issuer
only to the limited extent provided in the Transaction Documents for the
Securitisation Fund.
(d) None of Perpetual Limited, the Manager, the Security Trustee, the Note
Trustee, the Note Registrar, the Calculation Agent, [the Class A[ ] Irish
Paying Agent,] the Paying Agents, the Euro Currency Swap Provider or, the
US Currency Swap Provider (as defined in the Supplementary Bond Terms
Notice) guarantees the payment of interest or the repayment of principal
due on the Class A[ ] Notes.
(e) None of the obligations of the Issuer or the Manager are guaranteed in any
way by any associate either of them.
(f) Without limiting the Conditions, the Issuer's liability to make payments
in respect of the Class A[ ] Notes is limited to its right of indemnity
from the assets of the Securitisation Fund from time to time available to
make such payments under the Master Trust Deed and Supplementary Bond
Terms Notice. All claims against the Issuer in relation to the Class A[ ]
Notes can be enforced against the Issuer only to the extent to which it
can be satisfied out of the assets of the Securitisation Fund 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 wilful 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.
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Note Trust Deed SMHL Global Fund [ ]-[ ]
CERTIFICATE OF AUTHENTICATION
This Class A[ ] Definitive Note is authenticated by The Bank of New York and
until so authenticated shall not be valid for any purpose.
THE BANK OF NEW YORK
as Principal Paying Agent
By:
--------------------------------------
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Note Trust Deed SMHL Global Fund [ ]-[ ]
PRINCIPAL PAYING AGENT
THE BANK OF NEW YORK
00xx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx, X00 0XX
Xxxxxx Xxxxxxx
and/or such other Principal Paying Agent and/or other or further Paying Agents
outside the United States (subject to Condition 6(b)) and the Commonwealth of
Australia and/or specified offices outside the United States (subject to
Condition 6(b)) and the Commonwealth of Australia as may from time to time be
duly appointed by the Issuer with the approval of the Note Trustee and notice of
which has been given to the Class A[ ] Noteholders.
IRISH PAYING AGENT
AIB/BNY FUND MANAGEMENT (IRELAND) LIMITED
Xxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxxx 0
Republic of Ireland
and/or such other Irish Paying Agent that may from time to time be duly
appointed by the Issuer with the approval of the Note Trustee and notice of
which has been given to the Class A[ ] Noteholders.]
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Note Trust Deed SMHL Global Fund [ ]-[ ]
--------------------------------------------------------------------------------
SCHEDULE 6 - REPORT ON ASSESSMENT OF COMPLIANCE WITH REGULATION AB SERVICING
CRITERIA
ME Portfolio Management Limited
Xxxxx 00
000 Xxxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
[________________] (the "ASSERTING PARTY") is responsible for assessing
compliance as of June 30, [ ] and for the period from [ ] (date of
issuance of SMHL Global Fund [ ]-[ ]) through June 30, [ ] (the
"REPORTING PERIOD") with the servicing criteria set forth in Section 229.1122(d)
of the Code of Federal Regulations (the "CFR"), except for criteria 229.1122(d)
[insert section numbers in Regulation AB that are not applicable to Asserting
Party] of the CFR, which have not been determined pursuant to the transaction
documents for the SMHL Global Fund [ ]-[ ] to be, and the Asserting Party
has concluded are not, servicing criteria that the Asserting Party performs, or
in which the Asserting Party participates, in relation to SMHL Global Fund
[ ]-[ ] (the "APPLICABLE SERVICING CRITERIA"). This assessment of compliance
is provided in relation to SMHL Global Fund [ ]-[ ].
The Asserting Party has assessed its compliance with the Applicable Servicing
Criteria for the Reporting Period and has concluded that the Asserting Party has
complied, in all material respects, with the Applicable Servicing Criteria in
relation to SMHL Global Fund [ ]-[ ].
[____________], an independent registered public accounting firm, has issued an
attestation report on the assessment of compliance with the Applicable Servicing
Criteria for the Reporting Period as set forth in this assertion.
[NAME OF ASSERTING PARTY]
Date:
-----------------------------------
By:
Name:
-----------------------------------
Title:
----------------------------------
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Note Trust Deed SMHL Global Fund [ ]-[ ]
--------------------------------------------------------------------------------
SCHEDULE 7 - SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
-----------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE
SERVICING
CRITERIA
-----------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------
GENERAL SERVICING CONSIDERATIONS
-----------------------------------------------------------------------------------------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance
or other triggers and events of default in accordance with the
transaction agreements.
-----------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor the
third party's performance and compliance with such servicing
activities.
-----------------------------------------------------------------------------------------------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a
back-up servicer for the mortgage loans are maintained.
-----------------------------------------------------------------------------------------------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on
the party participating in the servicing function throughout the
reporting period in the amount of coverage required by and
otherwise in accordance with the terms of the transaction
agreements.
-----------------------------------------------------------------------------------------------------------
CASH COLLECTION AND ADMINISTRATION
-----------------------------------------------------------------------------------------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate
custodial bank accounts and related bank clearing accounts no
more than two business days following receipt, or such other
number of days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or
to an investor are made only by authorized personnel.
-----------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows
or distributions, and any interest or other fees charged for such
advances, are made, reviewed and approved as specified in the
transaction agreements.
-----------------------------------------------------------------------------------------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the transaction
agreements.
-----------------------------------------------------------------------------------------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured
depository institution as set forth in the
-----------------------------------------------------------------------------------------------------------
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Note Trust Deed SMHL Global Fund [ ]-[ ]
-----------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE
SERVICING
CRITERIA
-----------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------
transaction agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign financial
institution means a foreign financial institution that meets the
requirements of Rule 13k-1(b)(1) of the Securities Exchange Act.
-----------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized
access.
-----------------------------------------------------------------------------------------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B) prepared
within 30 calendar days after the bank statement cutoff date, or
such other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than the
person who prepared the reconciliation; and (D) contain
explanations for reconciling items. These reconciling items are
resolved within 90 calendar days of their original
identification, or such other number of days specified in the
transaction agreements.
-----------------------------------------------------------------------------------------------------------
INVESTOR REMITTANCES AND REPORTING
-----------------------------------------------------------------------------------------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically,
such reports (A) are prepared in accordance with timeframes and
other terms set forth in the transaction agreements; (B) provide
information calculated in accordance with the terms specified in
the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with
investors' or the trustee's records as to the total unpaid
principal balance and number of mortgage loans serviced by the
Servicer.
-----------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance
with timeframes, distribution priority and other terms set forth
in the transaction agreements.
-----------------------------------------------------------------------------------------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two business
days to the Servicer's investor records, or such other number of
days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment,
-----------------------------------------------------------------------------------------------------------
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Note Trust Deed SMHL Global Fund [ ]-[ ]
-----------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE
SERVICING
CRITERIA
-----------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------
or custodial bank statements.
-----------------------------------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related mortgage loan
documents.
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required
by the transaction agreements
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are posted to
the Servicer's obligor records maintained no more than two
business days after receipt, or such other number of days
specified in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in accordance
with the related mortgage loan documents.
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with
the Servicer's records with respect to an obligor's unpaid
principal balance.
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's
mortgage loans (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance with
the transaction agreements and related pool asset documents.
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the
period a mortgage loan is delinquent in accordance with the
transaction agreements. Such records are maintained on at least a
monthly basis, or such other period specified in the transaction
agreements, and describe the entity's activities in monitoring
delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency
is deemed temporary
-----------------------------------------------------------------------------------------------------------
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Note Trust Deed SMHL Global Fund [ ]-[ ]
-----------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE
SERVICING
CRITERIA
-----------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------
(e.g., illness or unemployment).
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage
loans with variable rates are computed based on the related
mortgage loan documents.
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least an annual basis,
or such other period specified in the transaction agreements; (B)
interest on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and state
laws; and (C) such funds are returned to the obligor within 30
calendar days of full repayment of the related mortgage loans, or
such other number of days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the
servicer at least 30 calendar days prior to these dates, or such
other number of days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be
made on behalf of an obligor are paid from the servicer's funds
and not charged to the obligor, unless the late payment was due
to the obligor's error or omission.
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two
business days to the obligor's records maintained by the
servicer, or such other number of days specified in the
transaction agreements.
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction
agreements.
-----------------------------------------------------------------------------------------------------------
1122(d)(4)(xv) Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
maintained as set forth in the transaction agreements.
-----------------------------------------------------------------------------------------------------------
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Note Trust Deed SMHL Global Fund [ ]-[ ]
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